Ikechukwu v Duong

[2018] ACAT 97

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IKECHUKWU v DUONG (Appeal) [2018] ACAT 97

AA 19/2018

Catchwords:              APPEAL – residential tenancies – Tribunal power to correct defect in notice to remedy and termination notice – factors relevant to exercise of discretion to correct defects – Tribunal’s failure to advise self represented tenant that he might apply to suspend termination and possession order for up to three weeks

Legislation cited:      Residential Tenancies Act 1997 ss 49, 59, 83 standard terms 92, 93

ACT Civil and Administrative Tribunal Act 2008 s82

Cases cited:B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219

Chakravarty v Commissioner for ACT Revenue [2013] ACAT 11

Commissioner for Social Housing v Pesi [2015] ACAT 58
Commissioner for Social Housing v Thorn [2016] ACAT 37
Commissioner for Social Housing v Woodward [2016] ACAT 85
Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55
House v R (1936) 55 CLR 499
Kenny v Ritter (2009) 52 MVR 360
Maher v Carpenter [2012] ACTSC 38
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
Owners of “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54
Tomasevic v Travaglini [2007] VSC 337

The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207

Warren v Coombes (1979) 142 CLR 531

Tribunal:                   Presidential Member MT Daniel

Date of Orders:  17 May 2018

Date of Reasons for Decision:         12 October 2018

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          AA 19/2018

BETWEEN:

FESTUS EMMANUEL IKECHUKWU

Appellant

AND:

SUA DUONG

Respondent

TRIBUNAL:Presidential Member MT Daniel

DATE:17 May 2018

ORDER

The Tribunal orders that:

1.Orders 4 and 5 of the orders of 3 May 2018 on RT 312/2018 are set aside.

2.The orders of 3 May 2018 on RT 318/2018 are amended to add the following:

“4.   If the tenant fails to vacate the premises as required by paragraph 2 of this order the lessor may request the Registrar of the ACT Civil Administrative Tribunal to issue a warrant for eviction;

5.    The operation of paragraph 2, 3 and 4 of this order is suspended until 5:00pm on 24 May 2018; and

8.    The Office of Rental Bonds is directed to release the bond to the lessor to be credited against the sum payable in paragraph 6 above.”

…………....Signed…….……..

Presidential Member MT Daniel

REASONS FOR DECISION

1.On 3 May 2018 the Tribunal made orders with effect as a warrant of eviction terminating the residential tenancy agreement between the tenant and lessor, and granting immediate possession of the premises to the respondent. The tenant appealed to the Appeal Tribunal from those orders. On 17 May 2018 I heard the tenant’s appeal, and upheld it in part. I gave short oral reasons for my decision, and said that I would publish longer reasons in due course. These are those reasons.

Background

2.The tenant rented the premises from the lessor in 2015. The parties have been before the Tribunal in relation to the tenancy on multiple occasions.

3.There had been difficulty with the scheduling of payments of rent, which was expressed to be ‘weekly’ in the written agreement. At the conclusion of earlier proceedings before the tribunal[1] on 16 August 2017, in which both lessor’s and tenant’s claims were dismissed, the tribunal noted that from 1 September 2017 the rent should revert to $840 per fortnight rather than two payments of $840 per calendar month. In the proceedings now appealed from, the parties agreed that rent was payable as $840 fortnightly from 1 September 2017.

[1] RT 501/2017

4.There is no dispute the tenant fell behind in the rent in the latter part of 2017.[2] He ultimately lost his employment in December 2017.

[2] The lessor also asserted that the tenant also failed to pay water bills over the period of the tenancy – that issue remained to be determined at the time of hearing of the appeal.

5.On 16 November 2017 the lessor applied to the tribunal for a termination and possession order on the basis of unpaid rent, asserting that payments due on 2 and 16 November 2017 had not been made. That application came before the tribunal on 1 February 2018 for hearing. The lessor attended the tribunal to represent himself, the tenant did not attend. The tribunal dismissed the application for a termination and possession order because no notice to remedy or notice to vacate had been served upon the tenant in accordance with clause 92 of the prescribed terms, and section 49 of the Residential Tenancies Act 1997 (RT Act).

6.The lessor then retained the services of a lawyer to draft and serve the requisite notices. On 8 February 2018 the lawyer wrote a letter to the tenant which was headed “Letter of demand on overdue rent”. The letter asserted that three fortnightly rent payments were outstanding, and also made reference to unpaid water consumption bills. The letter concluded:

Please attend to the payment of the above amount within 14 days from the date of this letter, otherwise our client have no other option but to terminate the tenancy and proceed the matter at ACAT for the review and order of the Tribunal.

7.That letter was ultimately relied upon by the lessor as a notice to remedy under clause 92 of the standard terms.

8.The tenant failed to bring the rent up to date.

9.On 2 March 2018 the lawyer sent a further letter to the tenant. This was headed “Termination Notice”. The letter referred to the previous letter, and noted payment of the arrears had not been made. It continued:

Pursuant to Clause 92 and 93 of the tenancy agreement, we hereby terminate the tenancy agreement.

We hereby revoke permission for yourself to access the property and to vacate the property within 7 days from the date hereof. If you or any of your assignees access the property after this date, it may be deemed as a trespass and further action may be taken.

You are to hand all keys, remotes and warranties to our clients and remove your items from the property at a time mutually agreed between yourself and our clients.

If you decide not to comply with the above, we will have the matter reviewed at the ACT Civil and Administrative Tribunal and seek compensation for any losses.

10.This letter was relied upon by the lessor as a notice to vacate.[3]

[3] otherwise known as a termination notice

11.The tenant did not vacate the premises, and the lessor applied to the Tribunal on 17 April 2018 for a termination and possession order. That application came on for hearing on 3 May 2018, coincidentally before the same Tribunal member as had dismissed the previous termination and possession application on 1 February 2018.

12.Both the lessor and tenant were self represented at the hearing on 3 May 2018. The lessor tendered a schedule of rent payments that he said were due since 1 September 2017, and water invoices that he said remained unpaid. This showed that if the rent due on 3 May 2018 were included, the tenant owed $5,880 for rent.

13.The tenant said he had received the letters from the lawyer, but he disputed the amount said to be owing for rent. He conceded that he owed rent, but said he was not sure of the exact amount. He said that he wished to see the lessor’s bank statements, as he had paid the rent directly into the lessors account. He argued that the matter should not proceed on 3 May 2018, as he had not had time to do his own reconciliation of the amount owing. He conceded that he had made no rent payments at all since 13 March 2018. He had not paid more rent, he said, because he had been unable to do so as he had no money. He said his failure was not intentional - he had been looking for work and had been required to travel overseas for his daughter’s wedding.

14.The Tribunal noted that insofar as the letters of 8 February and 2 March 2018 were relied upon as notices for the purposes of Clause 92 of the standard terms, they contained significant defects. The Tribunal asked the tenant why it should not correct those defects, and he submitted that it would be a serious miscarriage of justice if the defects were corrected. The Tribunal suggested it might also be a serious miscarriage of justice in the circumstances to allow the tenant to rely on technical defects to avoid eviction.

15.Ultimately the Tribunal made the orders now appealed from correcting the defects in the two notices, terminating the tenancy and granting possession of the premises to the lessor.

16.In making those orders, the Tribunal stated that it was satisfied that the tenant had breached his obligations under the lease by failing to pay rent, and – while there might be some disagreement by the tenant as to the total outstanding – he nonetheless owed significant rent at the time of issue of each notice and at the time of the hearing. In relation to the notices, the Tribunal was satisfied that the defects in the two notices had not resulted in any disadvantage to the tenant, and corrected the notices.

17.In relation to the amount of arrears of rent, the Tribunal accepted the evidence of the lessor, which had been given on affirmation, including evidence that he was suffering financial hardship as a consequence of the non-payment of rent.

18.The Tribunal made orders with effect as a warrant of eviction. The Tribunal did not make any orders under subsection 49(5) of the RT Act suspending the operation of the termination and possession order. The question of whether such an order should be made was not raised by any party, or by the Tribunal, in the hearing.

The appeal

19.On 9 May 2018 the tenant filed an application for appeal which challenged the decision in general terms on grounds of procedural fairness, bias, wrongly adduced evidence and irrelevant considerations. These were particularised in seven asserted errors by the Tribunal.

20.On 14 May 2018 the Appeal Tribunal heard an application by the tenant for a stay of the termination and possession orders pending hearing of the appeal. The tenant was present; the lessor despite being served with notice of that application was not. The tenant tendered submissions dated 13 May 2018, and an incomplete copy of a document which he said was an employment agreement between himself and a nursing agency. The Appeal Tribunal stayed the termination and possession orders until midday on 17 May 2018, and listed the appeal for hearing at 10:30 am on 17 May 2018. The tenant was directed to file and serve any further documents he wished to rely upon at the appeal.

21.The tenant did not file any further documents in advance of the appeal hearing, however the lessor filed extracts of his bank statements and correspondence confirming he had borrowed money from family to meet his mortgage repayments for the premises.

22.At the hearing of the appeal on 17 May 2018 the tenant was legally represented, and the lessor remained self represented. The tenant’s solicitor indicated that the seven errors specified in the application for appeal were not pressed as originally formulated, and that the appeal would instead focus on two arguments:

(a)The Tribunal erred by correcting the defects in the two notices. The tenant submitted that the defects were of such a nature, and were so substantial, that they could not and should not have been corrected under the power provided by the RT Act.

(b)In the circumstances, it was unreasonable of the Tribunal not to have suspended the termination and possession order for the maximum three week period. This was particularly so given that the tenant’s 18 year old daughter lived with him, and would need to be housed in emergency or refuge accommodation for women, and thus separately from the tenant, if time for alternative accommodation to be found was not given. The tenant submitted that by reference to this information the decision not to suspend the order was so unreasonable an exercise of the discretionary power that it must have been affected by error.[4]

Principles applying to appeals

[4] House v R (1936) 55 CLR 499

23.Section 82 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that the Appeal Tribunal may either deal with the appeal as a new application (a hearing de novo) or as a review (rehearing).[5] Because the matter had at first instance been conducted as a full hearing and taking into account the confined issues raised on appeal, the appeal was dealt with as a review/rehearing.

[5] The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 at [14]; B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219 at [11] & [12]

24.In Chakravarty[6] the Appeal Tribunal succinctly explained that the appeal is concerned with the correction of error:

It is well recognised that an appellate tribunal should not disturb a discretionary decision as there is a presumption that the discretion was exercised correctly and should therefore be affirmed unless clearly wrong. It is not sufficient to set aside a discretionary decision simply because another view could have been taken or another view reached.

The role of the Appeal Tribunal is limited to addressing errors in the original decision.

[6] Chakravarty v Commissioner for ACT Revenue [2013] ACAT 11

25.It is not enough that the Appeal Tribunal might have decided the matter differently. There are multiple authorities setting out the established bases on which a superior court or a tribunal conducting such a review/rehearing will interfere with findings of fact or law[7], or with an exercise of discretion.[8]

Did the tribunal err in correcting the defects in the notices issued under the Residential Tenancies Act 1997

[7] For example see Warren v Coombes (1979) 142 CLR 531

[8] House v R (1936) 55 CLR 499

26.The RT Act and standard terms set out various routes to termination of a tenancy agreement: most are predicated upon the tenant or lessor giving notice. These notices generally fall into two classes – some are notices to remedy and others[9] are notices of an intention to terminate the tenancy.[10]

[9] sometimes but not always issued after the failure to comply with a notice to remedy

[10] variously referred to as a notice to vacate or termination notice

27.Clause 92 of the standard terms, which deals with unpaid rent, sets out a process which requires the lessor to give the tenant a notice to remedy giving seven days to pay the outstanding rent, followed in the event of noncompliance with a notice to vacate (termination notice) giving 14 days to vacate the premises, followed by an application to the tribunal for a termination and possession order:

Termination for failure to pay rent

92 The tribunal may order the termination of the tenancy and eviction of the tenant on the ground of nonpayment of rent in the following circumstances:

(a)rent has been unpaid for 1 week. The first day of this period concludes at midnight on the day when the unpaid rent was due;

(b)the lessor has served a notice to remedy on the tenant for the failure to pay the rent, being a notice—

(i)served not earlier than 1 week after the day when the rent was due; and

(ii)containing a statement that if the tenant pays the rent outstanding to the date of payment within 7 days of the date of service of the notice to remedy, no further action must be taken and the tenancy continues;

(c)if all rent is not paid within 1 week of the date of service of the notice to remedy—the lessor may then serve a notice to vacate on the tenant requiring the tenant to vacate the premises within 2 weeks of service of the notice to vacate;

(d)no earlier than the date when the notice to vacate is served, the lessor may apply to the tribunal for an order terminating the tenancy and evicting the tenant;

(e)the tribunal hearing of the application to terminate and evict must not be earlier than the end of the period specified in the notice to vacate;

(f)during any tenancy in which the lessor has previously issued 2 notices to remedy, the lessor may serve a notice to vacate 1 week after the day when the rent has fallen due without serving a notice to remedy.

28.Section 49(1) of the RT Act reiterates the requirement of service of a termination notice where termination is sought by a lessor on the basis of unpaid rent:

49   Failure to pay rent

(1)   On application by a lessor, the ACAT may make a termination and possession order if—

(a)the tenant has failed to pay rent that has become payable under the residential tenancy agreement; and

(b)the lessor has served a termination notice on the tenant on the basis of the failure to pay rent; and

(c)the tenant has not vacated the premises in accordance with the notice.

29.The service of a termination notice for unpaid rent is thus a precondition to the tribunal making a termination and possession order under section 49 of the RT Act, and it is a precondition to the service of a termination notice that there be prior service of at least one notice to remedy in accordance with clause 92.

30.It was submitted on behalf of the tenant that in this case the purported notices were so defective as to be incapable of being rectified by the Tribunal, and it followed as a matter of law the application for termination and possession order should have been dismissed on the basis that no notices had been given.

31.The notice to remedy of 8 February 2018 was submitted to be defective because:

(a)the amount of arrears stated in the notice was lower than the actual arrears;

(b)the time frame for compliance was stated to be 14 days not seven days; and

(c)it did not contain the express statement that no further action would be taken if the arrears were paid in the specified time frame.

32.The tenant submitted that the termination notice of 2 March 2018 was defective because:

(a)The amount of arrears stated in the notice was lower than the actual arrears; and

(b)The time frame for compliance was stated to be 7 days not 14 days.

33.Section 59 of the RT Act provides that the tribunal may waive certain defects in the form or service of a termination notice:

59     Lessor’s defective notice if tenant does not vacate

(1)     If—

(a)a lessor purports to serve a termination notice on a tenant; and

(b)the notice is not—

(i)in the form approved under section 133 (Approved forms—Minister) for a termination notice; or

(ii)served as prescribed by regulation; and

(c)    the tenant does not vacate the premises;

the lessor may apply to the ACAT for a waiver of the defect in the notice or in the service of the notice and for the making of a termination and possession order.

(2)     The ACAT must not waive a defect in a termination notice or its service and make a termination and possession order unless satisfied that the defect did not, and is not likely to, place the tenant in a significantly worse position than the tenant would have been in had the notice been in, and served in, accordance with the standard residential tenancy terms.

34.It was submitted for the tenant that the power to waive defects provided by section 59 is limited. The Appeal Tribunal was referred to the decision in Commissioner for Social Housing v Woodward[11] in which the Tribunal stated that the section 59 power is a power that is closer in scope to the ‘slip rule’ than a power to correct substantive errors.

[11] [2016] ACAT 85

35.I note that section 59 provides a specific power which is available only in relation to termination notices, and only where the defect is a failure to comply with the prescribed form or a failure to serve in the manner prescribed by regulation. In those circumstances, the tribunal may ‘waive’ that defect in form or service.

36.Section 83(k) of the RT Act provides the tribunal with a more general power to ‘correct’ defects in a notice or service of a notice:

Without limiting the orders the ACAT may make, the ACAT may make the following orders in relation to an application about a tenancy dispute or occupancy dispute:

…

(k) an order correcting a defect in a notice or in the service of a notice.

37.It is sometimes suggested, as the tenant did in this case, that section 83(k) does no more than recognise the power provided by section 59. I do not think this is the correct interpretation of the RT Act, because a comparison of the two sections demonstrates that they are very different:

(a)Section 59 is expressly limited to termination notices, section 83(k) on its face applies to any kind of notice.

(b)Section 59 applies only where the defect is a departure from the prescribed form of notice or prescribed manner of service, section 83(k) applies to all kinds of defects.

(c)Section 59 provides for ‘waiver’ of defects, section 83(k) permits defects to be ‘corrected’.

38.Applying principles of statutory interpretation the general power would ordinarily be read as limited by the presence of the specific power. This means that in the circumstances in which section 59 applies – that is, a termination notice does not comply with the prescribed form, or has not been served as prescribed – the tribunal may waive such defect only where permitted by section 59(2). In circumstances in which section 59 does not apply – such as defective notices to remedy, or termination notices with some other kind of defect – section 83(k) provides the power to correct that defect.

39.In this case, section 59 did not apply – one notice was a notice to remedy, and the defect in the termination notice was not a failure to comply with a prescribed form, or a failure to serve in the prescribed manner. In any event, the Tribunal did not rely upon the power provided by section 59 – the Tribunal clearly made orders ‘correcting’ rather than ‘waiving’ the defects.

40.It was submitted on behalf of the tenant that even if the power under section 83(k) had been used, the Tribunal erred in correcting the defects in the notices because the gap between what was required of each notice under clause 92 of the standard terms, and what was actually issued, was so great that in essence no notice had been given. It was submitted that core requirements of the notices had not been met, and that section 83(k) could not be utilised to rectify such fundamental flaws. It was submitted that there are so few legislated requirements of these notices, that it would be an inappropriate exercise of power to correct a failure to meet a key requirement.

41.Should section 83(k) be interpreted as a power available only for the correction of insubstantial or ‘non-core’ errors in notices? The High Court has said, albeit in a different context, “It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.”[12] The same principle might be called upon here. While the argument that there are some defects that are so substantial that they just cannot be rectified is intuitively attractive, on close examination of the legislation and consideration of its purpose and extrinsic material[13] I cannot identify any basis to imply such a limitation in the application of section 83(k). On the contrary, neither the RT Act nor the ACAT Act, under which the tribunal operates would seem to be intended to require parties to master technical points of service or drafting in order to access the tribunal and enable its jurisdiction to resolve disputes to be called upon.

[12] Owners of “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54 at [29]

[13] As required both by Part 14.2 of the Legislation Act 2001, and accepted principles of statutory construction: Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55

42.Of course, the power provided by section 83(k) does not extend to the tribunal finding that a notice has been given where no notice was given. Such a finding or order to give effect to it extends beyond the concept of ‘correction’. However, provided some sort of notice has in some way been given, it is within the power of the tribunal under section 83(k) to correct even substantial or ‘core’ defects in the content of the notice, or the way it has been served, provided that the defect is not a defect to which section 59 of the RT Act applies.

43.The tribunal’s correction power under section 83(k) is a broad discretionary power designed to be exercised judicially, in the circumstances of each case, to do substantial justice between the parties. At a minimum this requires reference to the type of notice, the purpose of the requirement in relation to which the notice or its service is defective, and the impact of the defect upon the person to whom the notice was given. Other factors may also be relevant.

44.As the tribunal has commented in previous cases, much will turn upon the individual circumstances. A substantial defect may in one case have been of little account, and thus be corrected, where in another case a less significant defect has the effect of misleading the recipient as to their obligations and will not be corrected:

If a notice to remedy, or a notice to vacate served upon the tenant contains a defect which could readily mislead the tenant about an essential element of the breach that had to be remedied, so that the decision as to what action they should take is influenced by the defective information, then taking into account the serious consequences (potential homelessness) for the tenant, the Tribunal should be extremely cautious about correcting a defect in relation to the quantum of arrears, said to be owed by the tenant.[14]

In determining whether to correct a defect in a notice to remedy or a notice to terminate, the Tribunal ought to take into account all relevant circumstances. The quantum and the relative amount of arrears are but one factor. In this matter other factors that should be considered include that:
(a) the tenant was aware of her obligations to pay rent;
(b) there had been one CTPO made and complied with;
(c) the tenant would have understood from the notices to remedy and the notice to vacate that she was in arrears;
(d) the tenant would have understood that an application to the tribunal was likely to be made by the lessor should she not remedy the arrears;
(e) by March 2015, as a result of her failure to make any significant payments of rent over a three month period she would have understood that she was significantly in arrears of rent; and

(f) there is no evidence that the tenant took any steps to address the arrears, or to contact the lessor.[15]

[14] Commissioner for Social Housing v Pesi [2015] ACAT 58

[15] Commissioner for Social Housing v Thorn [2016] ACAT 37

45.I am satisfied therefore that the Tribunal had the power under section 83(k) to correct the defects in the notices. The question next to be decided is whether the Tribunal erred in its exercise of that power. The decision to correct the defects under section 83(k) was the exercise of a discretion which would ordinarily be presumed to have been correctly exercised unless the appellant is able to demonstrate some error.[16]

[16] House v R (1936) 55 CLR 499

46.Turning to the approach taken by the Tribunal in this case, there is no doubt that both the notice to remedy and termination notice fell short of what was required by clause 92 of the standard terms. Nonetheless, the Tribunal was satisfied that the central messages of a demand for payment of rental arrears in default of which termination action would be taken, the requirement to vacate the property for failure to rectify the arrears, and the prospect of tribunal proceedings, were made clear to the tenant. Although the tenant submitted to the Tribunal that it would be a ‘miscarriage of justice’ to correct the defects, there was no evidence before the Tribunal (or indeed upon appeal) that the inadequacies in the notices had any impact upon the tenant. There had been no attempt by the tenant to pay the arrears, he stated clearly that he was unable to comply with the notice to remedy as he had no income. There was no suggestion to the Tribunal that the tenant had misunderstood the notices, or would have acted differently if a correctly worded notice had been provided. The approach of the tenant, both before the Tribunal and on appeal, was that he currently had no source of income with which to pay rent but wished to remain in the property while he secured further employment, which would enable him to catch up the arrears and end the tenancy later in the year ‘with honour’.

47.The Tribunal turned its mind to whether it should correct the significant shortcomings in the notices, and considered that it was an appropriate exercise of discretion to do so. On appeal, the tenant failed to demonstrate any error in the Tribunal’s decision to exercise that power in this case. Indeed, if the Appeal Tribunal were required to re-exercise the discretion the Appeal Tribunal would take the same course.

The tribunal’s obligation to advise a self represented litigant that they may seek a suspension of the orders

48.The tenant also raised on appeal the Tribunal’s failure to suspend the termination and possession order under subsection 49(5) of the RT Act.

49.As the original hearing unfolded, there was no point at which the question of whether to suspend the order or not was raised by the tenant, or by the Tribunal with the parties. At the conclusion of the hearing, the Tribunal seemed to be under pressure to call the next matter and this issue was not discussed. It is not clear from the transcript that the Tribunal turned its mind to the question, although it is an integral part of section 49 and does not require an application be made by the tenant. The order that was issued by the Tribunal – being a termination and possession order with effect as a warrant of eviction – is indication that the Tribunal turned its mind to the issue and declined to suspend the orders.[17]

[17] An order with effect as a warrant of eviction is usually issued by the Tribunal only in urgent cases, because if a termination and possession order is suspended a practical process of confirming whether or not the tenant has vacated the property at the conclusion of the period of suspension is required, and such a clear process is provided by the lessor’s application for a warrant of eviction.

50.This ground of appeal raises the issue of the tribunal’s duty to self represented litigants, and whether the process in this case was unfair to the tenant. Should the Tribunal have explained to the parties that the termination and possession order could be suspended for up to three weeks, and heard their submissions and evidence as to the hardship caused to each party if the order were to be suspended?

51.A court or tribunal’s duty to a self represented litigant is bound up with the obligation to act in a procedurally fair manner, and in practice “raises issues of considerable complexity” (Mortimer J in MZAIB[18]). In Maher v Carpenter[19] Justice Refshauge quoted from the decision of Kenny v Ritter[20] where the relevant principles were summarised as follows:

[18] MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392

[19] Maher v Carpenter [2012] ACTSC 38

[20] Kenny v Ritter (2009) 52 MVR 360

In our view, the following principles emerge from the authorities discussed.

— A litigant has a fundamental right to appear in person. When faced with a litigant in person, the court is under a duty to give such assistance to that litigant as may be required to ensure that there is a fair trial.

The purpose of the assistance is to ensure that as far as possible, the disadvantage that litigants may suffer as a result of lack of representation is adequately addressed.

— Although the duties of the court in relation to self represented litigants are discussed by numerous authorities, it is difficult to ascertain a common approach as to the manner and form in which assistance is provided which can be applied in practice to all circumstances. This is unsurprising bearing in mind the myriad of circumstances in which litigants may appear in person. However, the authorities do provide general guidance as to principles which can be applied by the courts.

— Judicial assistance would include ensuring that unrepresented litigants are aware of their substantive and procedural rights, which in turn would depend upon the nature and circumstance of the case.

— The degree and form of the judicial assistance required depends upon several factors, including the overall knowledge and skills of the litigant and the particular circumstances of the case.

— Judicial assistance is to be limited to that which is necessary to diminish so far as possible the disadvantage that the unrepresented litigant will suffer when another party or parties are represented by a lawyer. It is a matter of redressing imbalance so far as possible but at the same time ensuring that the party who is represented is not thereby disadvantaged and thereby obtains less entitlements.

— In order to provide assistance to redress any imbalance or disadvantage which may arise by reason of lack of legal representation, the court should first assess the degree to which an unrepresented person may require assistance. This is not to be an automatic assumption.

— It is not part of the role of a judge to become an advocate for the unrepresented person; or stand in the shoes of counsel acting for that litigant; or unduly interfere with the conduct of the trial on the litigant’s behalf. Instead, the court has the difficult task of striving to achieve a balance between these seemingly conflicting duties to ensure that there is a fair trial.

— The court at all times is under an obligation to maintain the appearance of impartiality and neutrality and not be seen to apply preferential rules to the self represented litigant to the disadvantage of the represented litigant.

52.In MZAIB Mortimer J outlined a number of judicial statements on the content of the duty and reflected upon the impact of time pressures and busy court lists, commenting at [77]:

The pressures which may be involved in hearing and determining matters in the migration jurisdiction of the Federal Circuit Court do not mean that applicants in that jurisdiction should receive hearings which do not accord with the principles set out above.

53.In this case both parties were self represented. It is not clear whether or not the Tribunal considered whether to suspend the orders, however it is clear that the Tribunal failed to raise this issue with the parties, and did not hear their evidence or submissions in relation to hardship. In this, the Tribunal failed to accord procedural fairness to them.

54.Being satisfied that there was an error in this respect by the original Tribunal, it was appropriate for the Appeal Tribunal to take evidence and hear submissions as to hardship from the parties in order to make a decision whether or not to suspend the termination and possession order.

55.At the hearing of the appeal, the tenant provided further information that if required to move out immediately, his daughter would have to move into a refuge separately from him. Further, while it could have been inferred from the lessor’s evidence before the Tribunal that he was in real and imminent risk of having the bank repossess the house, at the hearing of the appeal the lessor provided further information to the Appeal Tribunal which demonstrated that he had managed the mortgage payments by loans from family and friends, and was not in breach of his mortgage.

56.On the basis of the further information provided, I was satisfied that it was appropriate to put in place an order pursuant to section 49(5) that should have been made by the original Tribunal, suspending the termination and possession order for a three week period. For utility, this was done by setting aside the order with effect as a warrant of eviction, and in its place making an unconditional termination and possession order enforceable in the usual way by the lessor’s application for a warrant, suspended for three weeks.

57.It was submitted on behalf of the tenant that the Appeal Tribunal should suspend the order appealed from for three weeks from the date of hearing of the appeal. This would have had the effect of the orders of 3 May being effectively suspended for a period of five weeks, rather than the maximum of three weeks permitted by section 49(5). Given that the substantive decision to make a termination and possession order was upheld on appeal, and the extent of the rental arrears, I was not satisfied that this was an appropriate case in which to take that approach.

………………………………..

Presidential Member MT Daniel

HEARING DETAILS

FILE NUMBER:	AA 19/2018
PARTIES, APPLICANT:	Festus Emmanuel Ikechukwu
PARTIES, RESPONDENT:	Sua Duong
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	ACT Tenants Union
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Presidential Member MT Daniel
DATES OF HEARING:	17 May 2018