Goodwin v Amelie Housing ACN 103 181 700 (Appeal)
[2023] ACAT 10
•3 February 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GOODWIN v AMELIE HOUSING ACN 103 181 700 (Appeal) [2023] ACAT 10
AA 3/2023 (RT 823/2022)
Catchwords: APPEAL – residential tenancies – appeal against termination and possession order (TPO) made for breach of a payment order made in the absence of the tenant – tenant’s representative ‘partially instructed’ – whether tribunal should have adjourned the application for the TPO notwithstanding no application for an adjournment – consideration of the legislative scheme leading to an application for TPO for breach of the payment order – whether making the TPO in the absence of the tenant where there was no explanation for the tenant’s absence was procedurally unfair – no error found in proceeding to make the TPO – consideration of tribunal decision to dismiss a subsequent application to set aside the TPO – nothing the tenant could have said might have made a material difference to the outcome – appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 47A
Residential Tenancies Act 1997 ss 49A, 49B, 49C, 81
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 rr 63, 70
ACT Civil and Administrative Tribunal Practice Note Number 2 of 2020: Adjournments
Cases cited:Allesch v Maunz [2000] HCA 40
Commissioner for Social Housing v Cook [2020] ACAT 36
Commissioner for Social Housing v Kennedy [2018] ACAT 22
Commissioner for Social Housing v Williams [2017] ACAT 53
Coutts v Close [2014] FCA 19
Felle v Commissioner for Social Housing [2012] ACAT 82
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Harada v Barnes & Anor [2021] ACAT 66
House v R [1936] HCA 40
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parteLam [2003] HCA 6
Reynolds v Powley & Anor [2020] ACAT 7
List of
Texts/Papers cited: Explanatory Statement to the Residential Tenancies Amendment Bill 2018
R Creyke, M Groves, J McMillan and M Smyth, Control of Government Action (5th edition) 2019, LexisNexis Butterworths
Tribunal:Presidential Member G McCarthy
Date of Orders: 3 February 2023
Date of Reasons for Decision: 22 February 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 3/2023
BETWEEN:
MELISSA GOODWIN
Appellant
AND:
AMELIE HOUSING ACN 103 181 700
Respondent
APPEAL TRIBUNAL: Presidential Member G McCarthy
DATE:3 February 2023
ORDER
The Tribunal orders that:
The application for appeal dated 24 January 2023 is dismissed.
......................Signed.....................
Presidential Member G McCarthy
REASONS FOR DECISION
On 24 January 2023, the appellant, Melissa Goodwin, appealed from a decision of the Tribunal (the Original Tribunal) made on 19 January 2023 to make a termination and possession order (TPO) pursuant to section 49C of the Residential Tenancies Act 1997 (the RT Act). On 3 February 2023, I heard the appeal. After doing so, I ordered the appeal be dismissed. What follows are my reasons for doing so.
Background
The respondent, Amelie Housing, was the lessor of residential premises leased to Ms Goodwin. On 25 July 2022, Amelie Housing issued a notice to remedy to Ms Goodwin requiring her to pay outstanding rent arrears of $1,377.82.
Ms Goodwin did not pay the outstanding rent arrears. As a consequence, on 14 October 2022, Amelie Housing applied to the tribunal for a TPO and for orders that Ms Goodwin pay rent arrears and compensation for damage to the premises.
On 3 November 2022, the tribunal adjourned Amelie Housing’s application to 1 December 2022 and ordered Ms Goodwin to pay $314.62 each fortnight for ongoing rent and rent arrears.
On 1 December 2022, the tribunal heard Amelie Housing’s application for a TPO consequent upon Ms Goodwin’s failure to pay rent. The tribunal declined to make a TPO, but made a payment order pursuant to section 49A(2) of the RT Act. The relevant parts of section 49A state:
49A Failure to pay rent—payment order
(1) This section applies if a lessor applies to the ACAT for a termination and possession order under section 49 (2).
(2) Instead of making a termination and possession order, the ACAT may make an order (a payment order) requiring the tenant to pay 1 or both of the following:
(a)the rent, or a stated part of the rent, that has become payable;
(b)future rent as it becomes payable.
(3) The ACAT must not make a payment order unless satisfied—
(a)the tenant is reasonably likely to make the payments required under the order; and
…
Orders 2, 3 and 4 of the payment order stated:
2. The tenant is to pay to the lessor the sum of $454.47 for arrears of rent, such payment to be in 7 fortnightly instalments of $60.00 beginning on 1 December 2022; and an eighth payment of $34.47 a fortnight thereafter.
3. The tenant is to pay future rent as it becomes payable under the tenancy agreement, less any rebate granted, the next payment of rebate rent (currently $234.62) being due on or before Thursday, 1 December 2022 and fortnightly thereafter.
4. If the tenant fails to comply with orders 2 or 3, the lessor may apply for a termination and possession order under section 49B of the Residential Tenancies Act 1997.
Ms Goodwin did not make any payment of rent arrears or rent due and payable on or before 1 December 2022 in breach of orders 2 and 3 of the payment order.
Ms Goodwin did not make any payment of rent arrears or rent due and payable on or before 15 December 2022 in breach of orders 2 and 3 of the payment order.
On 20 December 2022, Amelie Housing applied for a TPO under section 49B(2) of the RT Act (the TPO application). Section 49B states:
49B Failure to comply with payment order
(1) This section applies if—
(a)the tenant has failed to comply with a payment order in the last 60 days; and
(b)the order has not expired; and
(c)the tenant continues to live at the premises.
(2) The lessor may apply to the registrar for a termination and possession order.
(3) On receiving an application for a termination and possession order, the registrar must—
(a)list the application for hearing before the ACAT not earlier than 1 week after the day the notice under paragraph (b) is given to the tenant; and
(b)give notice to the tenant stating—
(i)that an application for a termination and possession order has been made; and
(ii)the time when, and the place where, the application is to be heard; and
(iii)that the tenant should seek legal advice about the application if the tenant wants to continue to live at the premises.
(4) If the lessor does not apply to the ACAT under subsection (2), the payment order, residential tenancy agreement and any debt under the residential tenancy agreement is not affected.
By listing notice dated 22 December 2022, the tribunal registry notified Ms Goodwin and Amelie Housing that Amelie Housing’s TPO application was listed for hearing on 19 January 2023 at 12:00pm.
On 18 January 2023, a solicitor with Canberra Community Law, Ms Walker, provided the Tribunal with a letter from Dr Benjamin Harkness, Ms Goodwin’s regular general practitioner, who stated –
Ms Goodwin has been under significant psycho social stressors over recent months. These stressors have resulted in exacerbation of her long standing depression. Features of depression for Ms Goodwin include avoidance behaviours, poor motivation, difficulty executive function and poor self-esteem. I believe these symptoms have significantly contributed to her not fulfilling her Centrelink and accommodation obligations and falling behind in rental payments. I appreciate if you can take these events into consideration at tomorrow’s hearing.
On 19 January 2023, the Original Tribunal heard the TPO application. Ms Walker attended the hearing to represent Ms Goodwin, but Ms Goodwin did not attend. The Original Tribunal called the matter for hearing a number of times.[1] It then stood the matter down to give Ms Walker an opportunity to “get in touch”[2] with Ms Goodwin, but she was unable to do so.[3] At 12:15pm, the Original Tribunal proceeded to hear the TPO application in Ms Goodwin’s absence.
[1] Transcript of proceeding, 19 January 2023, page 3, line 14
[2] Transcript of proceeding, 19 January 2023, page 2, line 4
[3] Transcript of proceeding, 19 January 2023, page 2, lines 4-6
Ms Walker acknowledged that Ms Goodwin was aware of the hearing. She did not (and, I accept, could not) offer an explanation for Ms Goodwin’s absence. Ms Walker described herself as “partially instructed”[4] in the sense that she was able to make submissions on the basis that Ms Goodwin had given Ms Walker “some information about the circumstances of her failure to comply”[5] with the payment order.
[4] Transcript of proceeding, 19 January 2023, page 3, line 7
[5] Transcript of proceeding, 19 January 2023, page 3, lines 9-10
Ms Ryan, appearing for Amelie Housing, noted that Ms Goodwin had not paid anything by way of rent arrears or rent since the payment order was made on 1 December 2022. As at 19 January 2023, this meant Ms Goodwin had not complied with the payment order for payments of rent arrears and fortnightly rent due on 1, 15 and 29 December 2022 and 12 January 2023.
Ms Walker explained that Ms Goodwin’s savings had run out and she did not have any income. She said Ms Goodwin had put in a claim to Centrelink for JobSeeker payments and thought it was being processed, but later found she had not provided all the documents required. Ms Walker said the claim was now being processed but Ms Goodwin was unlikely to receive a payment until 27 January 2023. On Ms Goodwin’s behalf, Ms Walker asked the Original Tribunal to give Ms Goodwin more time to try and get her Centrelink payments restarted so she could then make payments towards her rent and rent arrears.
After hearing Ms Walker’s submissions, the Original Tribunal made a TPO under section 49C(1)(a) of the RT Act. The relevant parts of section 49C state:
49C Hearing of application—failure to comply with payment order
(1) After considering an application under section 49B and hearing the parties who attend the hearing, the ACAT must—
(a)make a termination and possession order; or
(b)refuse to make a termination and possession order.
(2) If the ACAT makes a termination and possession order, the ACAT—
(a)must direct the registrar to issue a warrant for the eviction of the tenant; and
(b)may make an order to pay any unpaid rent that is payable.
(3) If the ACAT refuses to make a termination and possession order, the ACAT may—
(a)confirm the payment order; or
(b)make another payment order; or
(c)set aside the payment order.
Later that day, 19 January 2023, Ms Goodwin filed an application for an order that the TPO be set aside pursuant to rule 70(7) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (the ACAT Rules) and that the matter be “returned to the list” (the set aside application).
Ms Goodwin explained in her set aside application that she had been arrested at 11:00pm the previous night (18 January 2023), came before the Magistrates Court the following day and was released on bail at around 12:20pm. Ms Walker later explained that Ms Goodwin had spent the night in the watchhouse.
In her set aside application, Ms Goodwin said she “came straight to ACAT but missed the hearing”. She contended that had she been present at the hearing, “it would have made a material difference to the outcome as she would have been able to explain why she had failed to comply with the payment order.”[6]
[6] Set aside application dated 19 January 2023
At 3:13pm that day the Original Tribunal, constituted by the same member, heard Ms Goodwin’s set aside application. Ms Goodwin attended the hearing, again represented by Ms Walker. Ms Ryan again represented Amelie Housing.
Ms Walker relied on rule 70 of the ACAT Rules, the relevant parts of which state:
70 Setting aside final orders without appeal
(1) This rule applies to a final order—
…
(d)made in the absence of a party.
(2) The tribunal may set aside a final order on application by a party or on its own initiative.
...
(3) The tribunal may set aside a final order only if it is in the interests of justice to do so.
…
(7) In considering whether to set aside a final order made in the absence of a party, the tribunal must take into account the following:
(a)the reason why the party was absent;
(b)whether it might have made a material difference to the outcome if the party had attended;
(c)anything else the tribunal considers relevant.
With reference to rule 70(7)(a), Ms Walker noted Ms Goodwin was in custody and not bailed until 12:20pm. Accordingly, her absence from the hearing listed for 12 noon was unavoidable.
With reference to rule 70(7)(b), Ms Walker said:
What we say is that she would have been able to put evidence before the tribunal that while it may not have satisfied the tribunal that she was able to make payments, under a new payment order, it would, at least, have served to explain her failure to comply with the order, in a more fulsome way than I was able to, in her absence, and she also would have been able to put additional evidence, before the tribunal, that would have been relevant to its discretion to grant an adjournment.[7]
[7] Transcript of proceedings, 19 January 2023, page 11, lines 39-46
In order to address Ms Walker’s claim that Ms Goodwin’s attendance at the hearing of the TPO application earlier that day might have made a material difference to the outcome, the Original Tribunal took evidence on affirmation from Ms Goodwin.
By way of explanation for her non-payment of rent, Ms Goodwin said she had “filled out the forms and whatever” to obtain benefits from Centrelink and “I thought it was all going to be back on track fine, but it wasn’t”.[8] She said “I had just been trying to make rent payments out of the money I had saved up” and then Centrelink “closed at Christmas”.[9] Ms Goodwin then said:
I'm not exactly sure what happened but I had to process the whole Job Seeker claim all together, like start it all over again. I've done that. They've sent me a text message saying that the application has been submitted successfully, they're just processing it and they allow up to 27th of this month for the process to be complete.[10]
[8] Transcript of proceedings, 19 January 2023, page 14, lines 27-28
[9] Transcript of proceedings, 19 January 2023, page 14, line 30
[10] Transcript of proceedings, 19 January 2023, page 14, lines 32-35
Ms Goodwin said if the process was completed and approved, she could expect a payment in the first reporting period after that date.
The following exchange then occurred between Ms Walker and Ms Goodwin:
MS WALKER: Ms Goodwin, if you had been at the tribunal at lunch time today, at 12 o'clock, in your hearing, I know you're aware I filed the Directions Health letter,[11] for you, but is there anything else you think you would have been able to give to the tribunal, if you had been there?
MS GOODWIN: Well, I could have, but if, yes, if I didn't get taken away last night and left my phone and that, the MyGov stuff, I could have showed you that proof about the application being submitted with Centrelink and what not, my MyGov account and things. But I really don't know what else I could have showed, you know. I don't know.[12]
[11] The Directions Health letter is a reference to the letter from Dr Harkness to which Ms Walker referred in her submissions made earlier in the day
[12] Transcript of proceedings, 19 January 2023, page 15, line 44 – page 16, line 6
Ms Walker then asked Ms Goodwin about where she thought her Centrelink application was “at, back then on 1 December 2022”. Ms Goodwin replied:
I thought it was all good, like it was going to be back on track, that I just had to – because I went to the appointment and I just had to wait for the following fortnight, I think it would have been, yes, to report and then get the payment. But I just didn't think because I did have money in my account, so I set up the – or went to set up the direct debit for the rent and that just came out, or I would just pay it myself, like online. So I didn't even really look at my account to see and I didn't think much of it and then the Christmas break, so it was closed and I didn't – because I didn't end up having to report either, actually. So, yes, thinking about it now, I should have clicked something wrong, because that's not right itself, but I just had a lot going on, I suppose and, yes, I didn't think.[13]
[13] Transcript of proceeding, 19 January 2023, page 16, lines 14-24
When asked when she realised that she did not have an income anymore, Ms Goodwin answered “just before Christmas”.[14]
[14] Transcript of proceeding, 19 January 2023, page 16, line 35
When asked about the consequences for her of the TPO, Ms Goodwin said “I’d lose everything. Like my partner, he wouldn’t have anywhere to live either”.[15]
[15] Transcript of proceeding, 19 January 2023, page 17, lines 17-18
In cross examination, Ms Ryan asked Ms Goodwin why she had told the Tribunal on 1 December 2022 that she had received a Centrelink payment when she was not in receipt of Centrelink payments, to which Ms Goodwin said:
Well, that day I said that yes, I would have been due to get one that day, but obviously I didn't, but I still had the money in the bank, so I know I still made a payment that day, but obviously it wasn't from Centrelink, it just was my account then. But how I said before too, I didn't really or closer look at the account because I knew money was in there so I just would type in the amount I had to pay and did it that way. But now, until now, but, the Centrelink process and once it is all finalised and what not, which hopefully it will be sooner than the 27th.[16]
[16] Transcript of proceeding, 19 January 2023, page 18, lines 28-35
Ms Goodwin’s evidence that she made a payment on 1 December 2022 was not true, which prompted Ms Ryan to ask:
… you said you had savings in the bank account and you were the one paying the rent, because you'd cancelled your Centrepay quite a long time before that, so on that 1 December, when you said you'd make sure a payment was made, why didn't you go to your bank account, like you would normally do, because you're making your own payments, and pay it, because you said you had your savings in there, you'd been living off your savings?
MS GOODWIN: I thought I did, on 1 December, like make a payment.
MS RYAN: What about the fortnight after?
MS GOODWIN: Yes, well, with that I know I've missed a couple, but that's what I said, I didn't end up having enough, that's what I'm saying, but I would – I tried to see if I could borrow or, you know, and I'd ask Jeremy,[17] but he wouldn't help me with money so I just couldn't get it together. That's why I didn't have the payments or make the payment. I know that, you know, if you give me another go and if I stuff it up basically again, I know that there's no coming back from that whatsoever.[18]
[17] ‘Jeremy’ is Ms Goodwin's partner who lived with her in the rented premises but was not a tenant under the lease
[18] Transcript of proceedings, 19 January 2023, page 19, lines 21-38
When asked by the Original Tribunal why she thought she had made a payment on 1 December 2022, Ms Goodwin said:
I’ve got the phone banking, but I had my phone on, but I didn’t have the Wi-Fi or data whatever and so I had to wait till I got home to connect to my Wi-Fi thing.[19]
[19] Transcript of proceedings, 19 January 2023, page 20, lines 6-8
Ms Goodwin said she was “sure” she made the payment but “honestly don’t even know now”. Ms Goodwin spoke about trying to borrow money and doing odd jobs to make money without success.
Ms Goodwin said she asked for financial help from her partner, Jeremy, who lived with her in the rented premises but “he would just say no”.[20] This was despite him having a full-time job.[21] Jeremy was not a tenant under the lease.
[20] Transcript of proceedings, 19 January 2023, page 20, line 14
[21] Transcript of proceedings, 19 January 2023, page 5, line 40
The Original Tribunal asked Ms Goodwin why she did not get in touch with anyone about her trouble making the payments required under the payment order. Ms Goodwin replied she “thought that the Centrelink was on track and the direct debit was supposed to be up and running”[22] and did not realise that payments were not being made until near Christmas by which time everything was closing. These answers were problematic because Ms Goodwin had not set up a direct debit with Amelie Housing and was not receiving any benefits from Centrelink.
[22] Transcript of proceedings, 19 January 2023, page 20, lines 27-28
The Original Tribunal explained to Ms Goodwin that in response to a failure to comply with the payment order, the Tribunal had two options: to make a TPO or to refuse to make a TPO. If it was considering whether to refuse to make the TPO, it needed to consider whether it might make another payment order, make no payment order or confirm the original payment order. The following exchange then occurred:
SENIOR MEMBER: What I would like to know is whether you would have anything to say about the making of a new payment order, or confirming the existing payment order, particularly where the tribunal would need to consider your financial circumstances as part of that consideration. Do you understand what I'm asking you about?
MS GOODWIN: Yes.
SENIOR MEMBER: I want to know what you would have said, if anything, about that?[23]
[23] Transcript of proceedings, 19 January 2023, page 22, lines 34-43
In reply, Ms Goodwin agreed that she could not make any payments unless and until she received a Centrelink payment. She said she would go to Jeremy and ask him for funds or ask friends if she could do some work for cash.[24]
[24] Transcript of proceedings, 19 January 2023, page 23, lines 1-28
At the close of Ms Goodwin’s evidence, Ms Walker asked Ms Goodwin about a form she said she had signed authorising Centrelink to pay Amelie Housing by direct payment. Ms Goodwin first said she “signed the form” but then said she “hadn’t set it up because I could just do it myself, on the phone banking thing”.[25] Ms Goodwin also acknowledged her understanding that Amelie Housing would only get payment through a direct debit if Centrelink paid her.[26]
[25] Transcript of proceedings, 19 January 2023, page 24, lines 10-11
[26] Transcript of proceedings, 19 January 2023, page 23, line 40 – page 24, line 15
In her closing submissions, Ms Walker acknowledged it was “unlikely”[27] the tribunal would have been satisfied of the matters set out in section 49A(3) of the RT Act in order to make a new payment order or confirm the existing payment order because Ms Goodwin was without an income and there was uncertainty about the Centrelink payments. By this, Ms Walker was acknowledging that the precondition for making a payment order under section 49A(3)(a) was “unlikely” to be met.
[27] Transcript of proceedings, 19 January 2023, page 25, line 20
Ms Walker submitted it was nevertheless “in the interests of justice”[28] to set aside the TPO made earlier that day because the Original Tribunal could have adjourned the application to give Ms Goodwin an opportunity “to get back on payments and to gather together material to put her case including proof of her income and potentially a budget from Care Financial and show that she could service a payment order”.[29]
[28] This was a reference to rule 70(3) of the ACAT Rules
[29] Transcript of proceedings, 19 January 2023, page 25, lines 24-28
Ms Walker submitted an adjournment would have made a material difference to the original tribunal’s exercise of its discretion to make a TPO because it would have had the benefit of the evidence Ms Goodwin “has just given to the Tribunal”[30] about her failure to comply; her circumstances; what she had done to try and get her payments back up and running; and the consequences for her of eviction.
[30] Transcript of proceedings, 19 January 2023, page 26, line 7
Ms Walker concluded by saying “the thrust of my argument” is that there were factual matters “relevant to the exercise of the Tribunal’s discretion that were not before the Tribunal when it exercised that discretion, because Ms Goodwin was not in attendance … which is the evidence that we have heard from her today.”[31]
[31] Transcript of proceedings, 19 January 2023, page 27, lines 18-25
The transcript records the Original Tribunal adjourned for a short time following which she dismissed the set aside application and gave oral reasons for her decision.
After reciting background facts including the factual events that occurred that day, the Original Tribunal referred to rule 70 for the purpose of deciding whether it was in the interests of justice to set aside the TPO made earlier that day. With reference to rule 70(7)(a), the Original Tribunal accepted there was a good and sufficient reason for Ms Goodwin’s absence but was not satisfied that had Ms Goodwin attended the hearing, it might have made a material difference to the outcome. In particular, after noting the substance of Ms Goodwin’s evidence and the submissions made on her behalf, the Original Tribunal concluded:
The question is whether, if this information was before the tribunal earlier today, might it have made a material difference to the outcome. Unfortunately, I do not see how, even with this information, I could have been persuaded as to a different outcome. It was submitted that two other factors are relevant; the first, the tenant being potentially rendered homeless and bailed to the address that she currently lives at. Those factors may be relevant but they are not determinative of the outcome, when balanced against a total failure to comply with the payment order and no certainty whether the tenant could comply with any other order, or any other evidence as to her capacity to pay future rent means that the discretion to make a payment order would not have been enlivened, even if the information that she told the tribunal today was before me this morning.
There was nothing before the tribunal this afternoon that would change the evidentiary position as to whether a payment order, in the same terms or a different one, could be made and could be satisfied by the tenant, in circumstances where the earlier payment order had not been complied with at all. Nothing before me might have meant the termination and possession order application would have been dismissed.[32]
The appeal
[32] Transcript of proceedings, 19 January 2023, page 30, lines 23-40
Ms Goodwin appealed from the TPO made on 19 January 2023, not the order dismissing the set aside application.
In her application for appeal, Ms Goodwin alleged four errors of fact or law:
1. The original tribunal erred by not exercising its discretion under section 47A(2)(d)(ii) of the ACT Civil and Administrative Tribunal Act (the ACAT Act) to order “the application be set down for hearing at another time”.
2. The original tribunal failed to observe natural justice and procedural fairness, contrary to section 7(b) of the ACAT Act.
3. The original tribunal erred in making the TPO by failing to consider matters relevant to the exercise of its discretion under section 49C(1) of the RT Act, including:
a.the hardship to Ms Goodwin and her partner, Jeremy, who resided at the premises; financial hardship; the risk of prolonged homelessness and the difficulty of finding other suitable accommodation; and
b.the hardship to Ms Goodwin due to her physical and mental health conditions.
4. The original tribunal erred by giving no consideration to Ms Goodwin’s human rights.
Ms Sivasamy, solicitor from Canberra Community Law, appeared for Ms Goodwin on the appeal. She began by submitting (correctly in my view) that “the balance of ACAT jurisprudence currently supports the view that the Tribunal does not have jurisdiction to hear appeals in relation to interlocutory orders or decisions”. In this respect, she relied on the decision of President Neate in Reynolds v Powley.[33] Ms Sivasamy described the making of the TPO as “the original decision” and the order dismissing the set aside application as “the interlocutory decision”.[34] Whether the dismissal of the set aside application was an interlocutory decision is not an issue I needed to consider.[35]
[33] Reynolds v Powley & Anor [2020] ACAT 7 at [106]
[34] Appellant’s submissions (undated) at [3]
[35] The distinction between a final and an interlocutory order is difficult to draw – see for example, Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248; Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School [2014] ACTSC 326; GP v McMcKenzie & Ors [2018] ACAT 96 at [60] – [61]; Walls v Coutts [2019] ACAT 107 at [27]; and Wicks v Hurst Meyers Charity Ltd [2020] ACAT 64 at [18] – [46]
Referring to rule 70(7) of the ACAT Rules, Ms Sivasamy acknowledged that two questions arose when considering the set aside application: the reason for Ms Goodwin’s absence from the hearing and whether her attendance might have made a material difference to the outcome. Ms Sivasamy submitted, however, that these are “fundamentally different questions” to the question whether the Original Tribunal erred when making the TPO.
Regarding the first ground of appeal, Ms Sivasamy submitted the Original Tribunal erred because it did not “consider exercising its discretion to adjourn the matter”[36] under section 47A(2)(d)(ii) of the ACAT Act. Section 47A sets out options for the Tribunal when proceeding in the absence of a party. It states:
[36] Appellant’s submissions (undated) at [7]
47A Procedure in absence of party
(1) This section applies if—
(a)the tribunal requires a party to appear either personally or by a representative before the tribunal in relation to an application; and
(b)the party fails to appear.
(2) The tribunal may—
(a)if the party is the applicant—dismiss the application; or
(b)if the party is the respondent—decide the application; or
(c)if the party is not the applicant or respondent—remove the party from the application; or
(d)do any of the following:
(i)continue with the hearing in the absence of the party either generally or in relation to any relief claimed in the application;
(ii)order that the application be set down for hearing at another time;
(iii)order that stated steps be taken before the hearing takes place as the tribunal directs;
(iv)make any other orders that the tribunal considers appropriate.
Ms Sivasamy submitted that where the Original Tribunal knew or should have understood from Dr Harkness’ letter that Ms Goodwin intended to attend the hearing, it should have considered making an order setting down the hearing of the application for a TPO at another time pursuant to section 47A(2)(d)(ii).
Ms Sivasamy submitted the Original Tribunal erred by “refusing” to adjourn the matter at “the first return date”[37] of the TPO application (meaning at the hearing listed for 12:00pm) because Ms Goodwin had not had a proper opportunity to present her case. This, she said, led to a denial of procedural fairness being the second ground of appeal.
[37] Appellant’s submissions (undated) at [8]
Ms Sivasamy referred to the decision, Commissioner for Social Housing v Cook, in which the tribunal said:
It is a basic rule of statutory construction that where a statute does not provide an indication as to what factors should and should not be considered in the exercise of discretion, a court or tribunal must have regard to the terms, language, scope and object of the legislation as a whole in the exercise of that discretion.[38]
[38] Commissioner for Social Housing v Cook [2020] ACAT 36 at [16]
Ms Sivasamy submitted that the requirement to observe procedural fairness or natural justice “goes to the language, scope and object of the ACAT Act” and that the tribunal should therefore have exercised its discretionary power to adjourn the matter, “particularly at the first return date, because [Ms Goodwin] had not had the opportunity to properly put her case”.[39]
[39] Appellant’s submissions (undated) at [18]
Ms Sivasamy submitted that “in refusing to grant an adjournment” the Original Tribunal erred by failing to have regard to whether an adjournment would cause Amelie Housing or Ms Goodwin “to suffer substantial injustice”.[40]
[40] Appellant’s submissions (undated) at [9]
Ms Sivasamy submitted an adjournment “of at least one week”[41] would have given Ms Goodwin the opportunity to file evidence to support a submission that instead of making a TPO, the Original Tribunal should refuse to make a TPO and confirm the existing payment order or make another payment order. In particular, if an adjournment had been given, Ms Goodwin would have had the opportunity to file evidence:
(a)that she had not complied with the payment order because she was not receiving any income and had not been receiving Centrelink benefits for some time;
(b)that she had expected to start receiving Jobseeker payments soon after the payment order was made, but her Centrelink claim was not processed as she expected and therefore she had to re-lodge the forms; and
(c)that she would soon start receiving her Jobseeker payments and could soon start paying rent and instalments towards her arrears in rent.
[41] Appellant’s submissions (undated) at [10]
Ms Sivasamy also drew on ACT Civil and Administrative Tribunal Practice Note Number 2 of 2020, dated 3 February 2020, which “sets out when and how a party can seek an adjournment, the principles that apply to an adjournment request and how the Tribunal considers the request”. Ms Sivasamy relied in particular on paragraph 11 of the Practice Note which, “in considering a request for an adjournment”, notes the matters the Tribunal “must take into account”.
Whilst acknowledging that no request for an adjournment was made at the hearing of the TPO application, Ms Sivasamy submitted the Original Tribunal nevertheless erred in not adjourning Amelie Housing’s application for a TPO because “it is an accepted practice”[42] or a “usual practice”[43] of the tribunal to consider adjourning matters “at the first listing”[44] which recognises the tribunal’s obligation to assist the parties, the known vulnerability of public housing tenants and the tribunal’s obligation to afford procedural fairness and natural justice.[45]
[42] Appellant’s submissions (undated) at [21]
[43] Appellant’s submissions (undated) at [40]
[44] Appellant’s submissions (undated) at [21]
[45] Appellant’s submissions (undated) at [21]
In this respect, Ms Sivasamy relied[46] on the tribunal’s decision in Commissioner for Social Housing v Kennedy (Kennedy) in which the tribunal said “matters involving the Commissioner and listed in the termination and possession list are not usually decided on the first return date – directions are usually made instead”.[47]
[46] Appellant’s submissions (undated) at [40]
[47] Commissioner for Social Housing v Kennedy [2018] ACAT 22 at [17]
Ms Sivasamy also relied on the appeal tribunal’s decision in Felle v Commissioner for Social Housing[48] (Felle) in which, she said, the appeal tribunal “entertained the submission that the Original Tribunal should have adjourned the matter to give the appellant, a vulnerable tenant who did not attend the hearing, an opportunity to be heard.”[49] Ms Sivasamy quoted from the appeal tribunal’s decision:
… the Tribunal finds to adjourn the matter on 10 July 2012 for a short period would have afforded the appellant a reasonable opportunity to present his case. This would not amount to an unreasonable delay in concluding the litigation. Rather, this would have been in keeping with the Principles in section 7(b) of the ACAT Act.[50]
[48] [2012] ACAT 82
[49] Appellant’s submissions (undated) at [38]
[50] Felle v Commissioner for Social Housing [2012] ACAT 82 at [43]
Ms Sivasamy acknowledged the Original Tribunal was not compelled to grant an adjournment, but submitted its practice suggests that in most circumstances its obligation to afford procedural fairness “leads it to grant the tenant one adjournment in order to seek legal advice and prepare their case.”[51]
[51] Appellant’s submissions (undated) at [42]
Regarding the second ground of appeal, Ms Sivasamy relied on the Original Tribunal’s obligation to observe natural justice and procedural fairness pursuant to section 7(b) of the ACAT Act which states:
7 Tribunal principles
In exercising its functions under this Act, the tribunal must—
…
(b) observe natural justice and procedural fairness.
Ms Sivasamy also relied on section 81 of the RT Act, which (she said) “underscores that the Tribunal must give utmost importance to observing procedural fairness and natural justice”.[52] Section 81 states:
The ACAT must actively assist the parties to a tenancy or occupancy dispute to understand the hearing process and present their case.
[52] Appellant’s submissions (undated) at [16]
Ms Sivasamy submitted that where the possible outcome of the hearing (meaning, termination of Ms Goodwin’s tenancy and her eviction) was so adverse, the Original Tribunal should have adjourned the matter and given Ms Goodwin, a vulnerable tenant, the opportunity to be heard. By not doing so, she said, the Original Tribunal breached its obligation under section 7(b).
Ms Sivasamy submitted if the matter had been adjourned, Ms Goodwin would have had an opportunity to show she was again receiving Centrelink payments, and that any prejudice to Amelie Housing by granting an adjournment would have been outweighed by giving Ms Goodwin the opportunity to give that evidence.
Regarding the third ground of appeal, Ms Sivasamy relied on the “disproportionate impact” of the Original Tribunal’s “failure” to grant an adjournment, meaning the consequent eviction and homelessness for Ms Goodwin resulting from the TPO. She submitted that public and community housing tenants are considerably more socio-economically disadvantaged than private tenants and are more likely to be impacted by multiple stressors such as domestic and family violence, drug and alcohol addiction, mental health conditions, disability and financial hardship. She submitted that homelessness exacerbates and entrenches their disadvantage. She noted that crisis and transitional accommodation in the ACT is extremely limited and difficult to obtain.
Regarding the fourth ground of appeal, nothing was advanced in support of the alleged error that the original tribunal gave no consideration to Ms Goodwin’s human rights save, perhaps, a general submission that a person’s human rights include protection of their accommodation for the reasons set out above.
Consideration
The starting point of an appeal conducted by way of a rehearing under section 79 of the ACAT Act, as this appeal was, is that the appellant must show that the Original Tribunal committed an error of fact or law and that the error affected the result.[53]
[53] Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [29] – [42]; Commissioner for Social Housing v Williams [2017] ACAT 53 at [28]; Harada v Barnes [2021] ACAT 66 at [7] – [8]
In this case, all the grounds of appeal amounted to an allegation that the Original Tribunal failed to observe procedural fairness by determining the TPO application in Ms Goodwin’s absence rather than adjourning the hearing of the application to a later time. To succeed, Ms Goodwin therefore needed to establish the alleged error and that the error affected the result.
The alleged error raised for consideration what is sometimes described as the hearing rule, meaning what is required to conduct a hearing in a procedurally fair manner. Generally speaking, the hearing rule entails three minimum requirements:
(a)prior notice that a decision will be made;
(b)disclosure of an outline of the substance of the information on which the decision is proposed to be based (that is, a summary of the case that has to be met); and
(c)an opportunity to comment on that information and present the individual’s own case.[54]
[54] R Creyke, M Groves, J McMillan and M Smyth, Control of Government Action (5th edition) 2019, LexisNexis Butterworths at [11.4.10]
Ms Goodwin was plainly given prior notice of the intended decision to be made: it is stated in the tribunal’s listing notice dated 22 December 2022.
Ms Goodwin was also given an outline or summary of the case she needed to meet, as evidenced by the application filed by Amelie Housing on 20 December 2022 entitled “Application-Failure to comply with a Payment Order” stating that Amelie Housing was “applying for termination and possession under section 49B(2)” of the RT Act and was relying on the attached statutory declaration from Ms Ryan in which Ms Ryan noted that payments under the payment order due on 1 and 15 December 2022 were “not paid” and that Ms Goodwin “has been provided with numerous opportunities including payment orders to pay rent and rental arrears via a payment plan. All opportunities have resulted in default. Ongoing non-rent payment issue.”
In issue was the third requirement, namely whether Ms Goodwin was given an opportunity to comment and present her case. The focus is on the opportunity, not whether the case was actually presented. In Allesch v Maunz, the High Court per Kirby J said:
[I]t is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.[55]
[55] Allesch v Maunz [2000] HCA 40 at [38]
In this case, at the hearing of the application for a TPO, there was no explanation for Ms Goodwin’s absence from the hearing and Ms Walker did not offer any explanation.[56]
[56] I accept that she was unable to do so because she did not know Ms Goodwin's whereabouts
I also take into account that Ms Walker was present at the hearing on behalf of Ms Goodwin, plainly intending to represent Ms Goodwin at the hearing and expecting her to be there. She then presented Ms Goodwin’s case in her absence as best she could. Whether Ms Walker should have sought an adjournment is debatable, but the fact remains that an adjournment was not sought.
I accept the Original Tribunal could have adjourned the matter of its own volition to a later date in the exercise of its discretion pursuant to section 47A of the ACAT Act, but I am not persuaded it erred by not doing so. None of the reasons put forward on appeal for why the Original Tribunal erred by not exercising the discretion was persuasive.
First, it is well settled that a court or tribunal on appeal will interfere with a discretionary decision only in specific circumstances such as committing a specific error, acting on a wrong principle, making a mistake as to the facts, relying on irrelevant considerations, giving an inappropriate weight to such considerations, or that the decision was so unreasonable or unjust as to give rise to an inference of error.[57]
[57] House v R [1936] HCA 40
In this case, there was no discretionary decision. Rather, error was alleged because the Original Tribunal did not exercise a discretion it was not asked to exercise. In the context of an application for a TPO for breach of a payment order listed for hearing, I see no error in it proceeding to hear the application when no one asked it to consider an adjournment. The proposition that the Original Tribunal erred by not “considering its discretion to adjourn” is curious. Error is determined by reference to what a decision-maker decides. What the decision-maker might have considered, or not, is immaterial unless it had a bearing on what is actually decided. In this case, the whole question of an adjournment never arose.
Also, Ms Walker’s presentation of Ms Goodwin’s case without any suggestion of being unable to proceed in Ms Goodwin’s absence, at the least led the original tribunal to understand the hearing of the TPO application could proceed rather than be adjourned. I refer for example to the following exchange:
SENIOR MEMBER: ... I'm proposing to hear the application in her absence and I'm happy for you to make any submissions that you wish to make, in that regard.
MS WALKER: Yes, thank you.[58]
[58] Transcript of proceedings, 19 January 2023, page 13, lines 15-19
No submission contrary to the Original Tribunal’s proposal to hear the TPO application was made.
For the same reason, the Tribunal’s Practice Note regarding adjournments is not applicable. It “sets out when and how a party can seek an adjournment” and the competing considerations the tribunal must take into account when considering the request. In this case, there was no request.
For these reasons, the submission that the Original Tribunal “refused” to grant an adjournment, when it was not asked to do so, is misconceived.
Second, the Original Tribunal had to weigh in the balance the interests of Amelie Housing. Ms Ryan would have been understandably perplexed if the Original Tribunal had adjourned the hearing, notwithstanding Ms Walker being present and not asking it to do so.
Third, I reject the proposition that the hearing on 19 January 2023 was a “first return date” for the purpose of making directions for the hearing and determination of the TPO application on a later date. Many factors count against that understanding.
I begin with the legislation. An application for a TPO for failure to comply with a payment order is not an initiating application for relief consequent upon non-payment of rent. It is part of a factual continuum:
(a)commencing with an application for a TPO for non-payment of rent;[59]
[59] Residential Tenancies Act 1997, section 49(2)
(b)followed by the Tribunal choosing not to grant a TPO[60] and instead making a payment order[61] requiring the tenant to pay the rent that has become payable and future rent as it becomes payable;[62]
(c)followed by the tenant failing to comply with the payment order and continuing to live in the premises;[63]
(d)followed by the lessor becoming entitled to apply, and applying, to the registrar for a TPO;[64]
(e)followed by obligations on the registrar to:
(i) list the application for hearing;[65]
(ii) give the tenant notice of the application for a TPO,[66] notice of the time, date and place when the application “is to be heard”[67] and notice that they should “seek legal advice about the application if the tenant wants to continue to live at the premises”;[68]
(f)followed by the Tribunal hearing the application and:
(i) being required either to make a TPO or to refuse to make a TPO;[69]
(ii) if it makes a TPO, being required to “direct the registrar to issue a warrant for the eviction of the tenant”;[70] and
(iii) being unable to confirm the payment order or make another payment order[71] (if it refuses to make a TPO) “unless satisfied the tenant is reasonably likely to make the payments required under the [payment] order”.[72]
[60] Residential Tenancies Act 1997, section 49(3)
[61] Residential Tenancies Act 1997, sections 49(3)(a) and 49A(2)
[62] Residential Tenancies Act 1997, section 49A(2)(a) and (b)
[63] Residential Tenancies Act 1997, section 49B(1)(a) and (c)
[64] Residential Tenancies Act 1997, section 49B(2)
[65] Residential Tenancies Act 1997, section 49B(3)(a)
[66] Residential Tenancies Act 1997, section 49B(3)(b)(i)
[67] Residential Tenancies Act 1997, section 49B(3)(b)(ii)
[68] Residential Tenancies Act 1997, section 49B(3)(b)(iii)
[69] Residential Tenancies Act 1997, section 49C(1)
[70] Residential Tenancies Act 1997, section 49C(2)(a)
[71] Residential Tenancies Act 1997, section 49C(3)
[72] Residential Tenancies Act 1997, section 49A(3)(a)
I also take into account that sections 49A, 49B and 49C of the RT Act were introduced to “replace the conditional termination and possession order (CTPO) provisions [of the RT Act] with a new concept of a payment order”.[73] This was an important policy change:
(a)to remove the “self-executing component”[74] of a CTPO pursuant to which a breach automatically ended the tenancy;
(b)to require the lessor to apply for a TPO (if it seeks a TPO) if a breach of the payment order has occurred; and
(c)to give the tenant an opportunity to be heard as to whether a TPO should be made.
[73] Explanatory Statement to the Residential Tenancies Amendment Bill 2018, page 2
[74] Explanatory Statement to the Residential Tenancies Amendment Bill 2018, page 2
These changes implemented greater procedural fairness, but not an independent or separate procedure. The lessor’s right under section 49B to apply for a TPO is conditional upon:
(a)a breach of the lease for non-payment of rent;
(b)a consequential making of a payment order; and
(c)a breach of the payment order.
True, a tenant is able to request an adjournment of a hearing of an application for a TPO made under section 49B for failure to comply with a payment order under rule 63 of the ACAT Rules, but it is clear from the statutory scheme that a tenant cannot reasonably expect the hearing to be no more than a “first return date” and should expect the application to be heard and determined on the day it is listed for hearing. Indeed, the conduct of Ms Walker and Ms Goodwin at the hearing of the TPO application and then at the set aside application is consistent with that understanding.
That understanding is consistent with the facts. The listing notice referred to Amelie Housing’s application for a TPO, and why it had been made. It stated that the application was listed “for a Hearing” on Thursday, 19 January 2023 at 12:00pm. It stated that if Ms Goodwin did not take part in the hearing the tribunal may make orders without hearing from her and may make orders against her in her absence including “terminating the lease; requiring [her] to vacate the premises; and issuing a warrant to evict [her] from the premises.” The notice invited Ms Goodwin to contact Canberra Community Law for “free legal advice”. Ms Goodwin did so.
Ms Walker attended the hearing. There was no suggestion of any understanding on her part that the matter was listed otherwise than for hearing and determination of Amelie Housing’s application for a TPO.
The observation of the tribunal in Kennedy on which Ms Sivasamy relied “that matters involving the Commissioner and listed in the termination and possession list are not usually decided on the first return date – directions are usually made instead” overlooks the context in which the comment was made, namely in response to an application for an adjournment. In this case, there was no application for an adjournment.
Also, in Kennedy, the tribunal described the argument in support of an adjournment that “it is not unusual for matters to be adjourned on the first return date” as “unconvincing”[75] because “the matter” – meaning the dispute between the tenant and the lessor – had already had its first hearing in response to which a differently constituted tribunal made a TPO. In other words, this was not the first return date for “the matter”. In Kennedy, the tribunal went on to dismiss the application for an adjournment and make a TPO.
[75] Commissioner for Social Housing v Kennedy [2018] ACAT 22 at [17]
The reasoning and outcome in Kennedy is consistent with the approach taken by the Original Tribunal in this case. There had been an application for a TPO for non-payment of rent. It was heard on 3 November 2022 on which date the tribunal did not hear and determine the application: it adjourned the matter to 1 December 2022 and made orders regarding payment of rent and rent arrears. On 1 December 2022, instead of making the TPO, the tribunal made a payment order stating precise amounts to be paid by way of arrears of rent; ordering Ms Goodwin to pay future rent; and putting Ms Goodwin on notice that if she failed to comply with the orders requiring payment, Amelie Housing could apply for a TPO. In other words, Ms Goodwin had already had two hearings arising from her non-compliance with the tenancy agreement and was on notice of the consequences should she not comply with the payment order.
Ms Sivasamy’s reliance on the appeal tribunal’s decision in Felle was, with respect, similarly misconceived. In that matter, the lessor lodged an application for a TPO under section 49 of the RT Act for non-payment of rent. It was the lessor’s first step in the tribunal arising from the tenant’s non-payment of rent. It was materially equivalent to Amelie Housing’s application for a TPO lodged on 14 October 2022. Unlike in this case, where the tribunal adjourned Amelie Housing’s application from 3 November 2022 to 1 December 2022, the tribunal in Felle heard and decided the application on the first occasion it was before the tribunal by making an unconditional termination and possession order. In other words, the Original Tribunal did not make the error identified in Felle.
Also, the facts in Felle were materially different. A key consideration for why the appeal tribunal allowed the appeal was that the tenant, who was a university student, was making periodic payments including a payment of $1,000 three days before the hearing.[76] By contrast, the primary consideration for why the Original Tribunal made the TPO in this case (and dismissed the set aside application) was that Ms Goodwin had not made any payment at all in response to the payment order that was made as a consequence of her earlier breaches of her obligations under the lease to pay rent.
[76] Felle v Commissioner for Social Housing [2012] ACAT 82 at [49]
The closing portion of the paragraph in Felle, quoted in paragraph 59, on which Ms Sivasamy relied, needs to be put in context. The opening portion of the paragraph provides the reasons why the appeal tribunal found an adjournment for a short period would have been appropriate, which are very different to the circumstances in this case:
Given that the appellant was a student in student accommodation provided by the respondent; that the application was seeking to terminate his tenancy and that he had made a payment of $1,000 three days before the hearing, …[77]
[77] Felle v Commissioner for Social Housing [2012] ACAT 82 at [43]
Last, on the question whether the Original Tribunal erred by proceeding to hear the TPO application in Ms Goodwin’s absence rather than adjourning it, there is the quite precise issue the Original Tribunal took into account when deciding to make the TPO, namely complete non-compliance with the payment order. In this respect, the evidence was overwhelming. It was not a question of balance, for example with some payments made and some missed as occurred in Felle. On the evidence presented, and not in dispute, Ms Goodwin breached the payment order on the day after it was made and continued to breach it by not paying anything towards arrears of rent or any future rent from that day right through to 19 January 2023 when the application for the TPO was heard.
Ms Walker offered explanation, in terms of Ms Goodwin thinking her rent was being paid from Centrelink payments because she had filled in the forms and not realising payments were not being made until close to Christmas by which time (she said) Centrelink was closed, but those arguments were unconvincing. It defies logic that Ms Goodwin could think Centrelink was paying her rent, as a part payment from her Centrelink payments, when she had not set up a direct debit and was not herself receiving any Centrelink payments at all.
Then, there was the viewpoint of Amelie Housing. As at 19 January 2023, a period of a day short of seven weeks had passed since the tribunal made the payment order, yet Ms Goodwin had not paid anything by way of arrears of rent or rent. The evidence suggested that an adjournment would only have compounded Amelie Housing’s loss.
I acknowledge that Ms Goodwin was a vulnerable tenant and that the TPO had the very serious consequence of likely homelessness for her, but the Original Tribunal similarly recognised that consequence. When dismissing the set aside application, to leave the TPO in place, the Original Tribunal observed “This will, no doubt, have an impact of a profound nature on the tenant”.[78] In other words, it was a factor taken into account. I see no error in the Original Tribunal concluding, in substance, that there comes a point where a tenant cannot be provided still further flexibility to pay rent and still further opportunity to comply with their obligation under their lease in the face of repeated and ongoing non-payment of rent.
[78] Transcript of proceeding, 19 January 2023, page 31, line 1
I should comment on some further documents that Ms Sivasamy stated in her written submissions she wished to rely on for the purposes of the appeal. The documents were a witness statement from Ms Goodwin dated 3 February 2023, email correspondence from Centrelink dated 19 January 2023 confirming Ms Goodwin’s application for JobSeeker payments had been assessed and granted; and “screenshots” showing Ms Goodwin’s JobSeeker payments would recommence on 24 January 2023 with a payment of $392.43.
At the appeal hearing, Ms Sivasamy did not press an application for leave to adduce the evidence as evidence on the appeal. Rather, she characterised the evidence as evidence on which she would wish to rely if I were satisfied that the Original Tribunal erred, that the TPO should be set aside and that I should hear and determine the application for a TPO afresh as contemplated by order 7 made on 25 January 2023.
However, lest there was any misunderstanding, if an application for leave to adduce the further evidence as evidence on the appeal had been pressed and granted, I still would not have allowed the appeal because none of it showed, or would have showed, the Original Tribunal erred by proceeding to make the TPO rather than adjourning the hearing.
In particular, the further evidence would only have confirmed that Ms Goodwin had not made any payment in accordance with the payment order; repeated the explanations Ms Walker gave at the hearing of the TPO application for why Ms Goodwin had not made any payments; repeated Ms Goodwin’s hope that Centrelink payments would resume later in January 2023; and confirmed that Ms Goodwin had not received any Centrelink payments in the 15 months prior to the payment made on 24 January 2023. The Original Tribunal knew the substance of all of that, and took it into account, when deciding to proceed with the hearing and make the TPO.
The only additional information was that Ms Goodwin’s application for Centrelink benefits had been approved and her first payment $392.43 was paid on 24 January 2023. I do not accept that further evidence would have made any difference to the question whether the Original Tribunal erred by not adjourning the hearing of the TPO application because Ms Walker had already told the Original Tribunal that Ms Goodwin’s application for Centrelink payments would “hopefully”[79] start on 27 January 2023 following which she could start making payments towards her rent and rent arrears.[80] The Original Tribunal stated in its reasons that it took into account the information Ms Walker provided[81] but was not persuaded that it made any difference. Determinative of the Original Tribunal’s decision to make the TPO was that Ms Goodwin made “no attempt ... to comply with [the payment order] whatsoever”, no attempt to deal with the failure to comply with the order and did not notify anybody that she was not going to comply with the order. I see no error in the Original Tribunal making the TPO for that reason regardless of the Centrelink payments that, it was told, were about to commence.
[79] Transcript of proceedings, 19 January 2023, page 5, line 30
[80] Transcript of proceedings, 19 January 2023, page 4, lines 33-34
[81] Transcript of proceedings, 19 January 2023, page 7, lines 41-43
For these reasons, I saw no error in the Original Tribunal not exercising its discretion to adjourn the hearing of Amelie Housing’s application for a TPO.
For completeness, I should also respond to the fourth ground of appeal, namely that the Original Tribunal failed to give consideration to Ms Goodwin’s human rights. This ground of appeal was not developed. There was no reference to any section of the Human Rights Act2004 said to have been breached. There was no submission as to what human right the Original Tribunal should have considered or, if it had considered it, why the outcome would have been different. The fourth ground of appeal failed.
Before concluding my reasons, I should say something about what occurred after the TPO was made. I do so because the hearing and outcome of the set aside application was relevant for the purpose of determining whether Ms Goodwin was denied procedural fairness by the Original Tribunal determining the TPO application in her absence rather than adjourning it. I recognise this is a different question to that raised by the grounds of appeal.
At the commencement of the hearing of the set aside application, Ms Walker explained that Ms Goodwin was unable to attend the hearing of the application for the TPO because she was in the watchhouse and then before the Magistrates Court before being released on bail. I accept, as did the Original Tribunal, that Ms Goodwin was therefore prevented from attending the hearing of the application for the TPO. For this reason, it is arguable that Ms Goodwin was denied an opportunity to be heard. I say, arguable, because she was represented by Ms Walker to the extent she could.
Accepting for the purposes of the argument that Ms Goodwin was denied the opportunity to be heard, the question is whether there was a denial of procedural fairness. They are not the same thing.
That is not to suggest possible error on the part of the Original Tribunal: it had no knowledge of why Ms Goodwin did not attend. It is a question of whether, in all the circumstances, procedural fairness was denied (through no fault of the Original Tribunal or anyone at the original hearing) such that the TPO should have been set aside.
Courts have repeatedly stated “there are no universal rules governing the content of the requirements of natural justice or procedural fairness and the content of those requirements can vary according to the particular statutory framework and other relevant circumstances.”[82] In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, the High Court per Kitto J said “What is fair in a given situation depends on the circumstances”.[83]
[82] Coutts v Close [2014] FCA 19 at [112]
[83] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 at [13]
Perhaps the leading statement at present regarding procedural fairness (or natural justice) is that of the High Court, per Gleeson CJ, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam. His Honour said:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[84]
[84] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parteLam [2003] HCA 6 at [37]
With reference to Lam, in Coutts v Close the Federal Court, per Griffith J, said:
It is also now settled that procedural fairness is not an abstract issue; rather, attention needs to be focused on the question whether conduct which is said to be procedurally unfair produced some practical injustice.[85]
[85] Coutts v Close [2014] FCA at [120]
Accordingly, did Ms Goodwin’s absence from the original hearing produce some practical injustice? In this respect, in Allesch v Maunz, the High Court per Kirby J said:
The dual considerations for reopening: explanation and utility
It has been suggested that there is a particular rule that governs the setting aside of a judicial order made in the absence of a party (or perhaps a witness) where that absence is adequately explained and promptly brought to the notice of the court concerned. In such a case it is said justice ordinarily "demands" a rehearing.
...
I am not inclined to approach the matter as if a special rule of law, universally applicable, solves the problem presented by every such case. … it is desirable, as it seems to me, to treat the considerations applicable to such decisions conceptually and to classify them as impinging upon the two criteria that have for a very long time been viewed as critical to an affirmative decision to set aside a judicial order made in default of the appearance of a party. These are:
(1) that an explanation, reasonable to the circumstances, is provided for the party's absence or other default; and
(2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order.
If no reasonable explanation is given for the default, it is not an injustice to deny the party in default a second opportunity to be heard. …
Similarly, there will be no miscarriage of justice if the party affected by the impugned order cannot demonstrate an arguable case that reopening the matter might reasonably produce a materially different result which is more favourable to that party. ….
Correction concentrates on any supposed error in the ultimate judicial orders and not exclusively on the procedures leading to, or reasons given for, those orders.[86] (footnotes omitted)
[86] Allesch v Maunz [2000] HCA 40 at [48] – [50]
These two criteria are reflected in Rule 70(7)(a) and (b) of the ACAT Rules.
Applying the criteria to this case, the Original Tribunal accepted there was a reasonable explanation for Ms Goodwin’s absence or “default in appearance” – she was detained in the watchhouse – but was not persuaded that Ms Goodwin had a material argument that might have produced a materially different result.
It reached that conclusion after taking Ms Goodwin’s evidence on affirmation and hearing submissions from Ms Walker who described Ms Goodwin’s evidence as the evidence, she “would have been able to give” had she been at the hearing of the application for the TPO earlier in the day.
Ms Walker submitted that Ms Goodwin’s evidence, had she been able to give it the earlier hearing, “would have made a material difference to the balancing exercised that the tribunal must engage in”[87] but the Original Tribunal rejected the submission for the reasons it gave as set out in paragraph 44 above. I see no error in it doing so.
[87] Transcript of proceedings, 19 January 2023, page 27, lines 24-25
………………………………..
Presidential Member G McCarthy
| Date(s) of hearing: | 3 February 2023 |
| Solicitors for the Appellant: | Canberra Community Law Ltd |
| Solicitors for the Respondent: | N/A |
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