Kazmar v Commissioner for Social Housing (Appeal)
[2024] ACAT 83
•29 October 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
KAZMAR v COMMISSIONER FOR SOCIAL HOUSING (Appeal) [2024] ACAT 83
AA 6/2024 (RT 1185/2023)
Catchwords: APPEAL – residential tenancy – termination and possession order under section 51A of the Residential Tenancies Act 1997 – whether conduct of the tenant is threatening, intimidating, harassing or abusive – notice requirements – purpose of notice requirements – whether sufficient notice provided – effect of failure to comply with notice requirements – conduct of the lessor in responding to complaints by the tenant about noise from neighbour – whether conduct likely to continue in future due to sensitivity to noise – whether consequence of homelessness of tenant considered – whether Tribunal can order lessor provide alternative housing to the tenant – whether transfer of housing application decision can be reviewed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 32, 82
Legislation Act 2001 ss 139, 140, 146
Residential Tenancies Act 1997 ss 4A, 45A, 51, 51A, 72, 83
Residential Tenancies Legislation Amendment Act 2023
Cases cited:Council of the Law Society of the ACT v LP 201920 [2021] ACAT 16
Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory (Appeal) [2021] ACAT 116
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
House v R [1936] HCA 40
Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207
Lockwood v The Commonwealth [1954] HCA 31
Norbis v Norbis [1986] HCA 17
Ogilvie v Jemena Networks (ACT) Pty Ltd & Anor [2023] ACAT 20
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
List of
Texts/Papers cited: Revised explanatory statement, Residential Tenancies Legislation Amendment Bill 2022
Appeal Tribunal: Acting Presidential Member D Stewart
Senior Member R Orr KC
Date of Orders: 29 October 2024
Date of Reasons for Decision: 29 October 2024
Date of Publication: 7 November 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 6/2024
BETWEEN:
STEVEN KAZMAR
Appellant
AND:
COMMISSIONER FOR SOCIAL HOUSING
Respondent
APPEAL TRIBUNAL: Acting Presidential Member D Stewart
Senior Member R Orr KC
DATE:29 October 2024
ORDER
The Tribunal orders that:
The appeal is upheld.
The orders made by the Original Tribunal on 11 January 2024 are set aside.
The respondent’s application dated 8 December 2023 for a termination and possession order is dismissed.
………………………………..
Acting Presidential Member D Stewart
For and on behalf of the Appeal Tribunal
REASONS FOR DECISION
Introduction
Steven Kazmar (Mr Kazmar or appellant) is the tenant of premises in Amaroo, Australian Capital Territory, under a residential tenancy agreement (tenancy) which commenced on 11 December 2019 with the Australian Capital Territory, as represented by the Commissioner for Social Housing (Commissioner or respondent).
In the reasons that follow, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Appeal Tribunal’ refers to the presently constituted tribunal. When referring to the first instance decision, the Tribunal uses the expression ‘original proceedings’ or ‘Original Tribunal” in RT 1185/2023. For ease of reference, references to the respondent in these reasons includes actions taken by the respondent’s employees and representatives in relation to this matter. References to sections of legislation are from the RT Act unless otherwise indicated.
The Commissioner applied to ACAT to terminate the tenancy. On 11 January 2024, the Original Tribunal made orders under section 51A of the Residential Tenancies Act 1997 (RT Act) terminating that residential tenancy agreement. Mr Kazmar appeals that decision, claiming that it involved what are variously referred to as errors of fact, law, and discretion. We discuss each of those grounds below.
Summary of appeal decision
The Original Tribunal declined to terminate the tenancy under section 51 of the RT Act, but did terminate it under section 51A.
Section 51 provides for termination, in summary, on the basis of serious damage to the premises, injury to the lessor, or interference with quiet enjoyment (section 51(1)). Section 51A provides for termination on the basis, in summary, of threatening, intimidating, harassing, or abusive conduct against the lessor or a related person (section 51A(1)), with a specified process and considerations. Section 51A(3) provides that in relation to such a termination, the lessor “must, not later than 14 days before making an application [to the ACAT]… give the tenant written notice that includes the details of the conduct mentioned” in section 51A(1).
One ground of appeal was that section 51A(3) was not complied with. Warning notices were sent to Mr Kazmar on 25 October and 10 November 2024. Neither of these notices referred to section 51A. They specified conduct, but neither of the notices stated that the relevant conduct was against the lessor or a related person, as provided for in section 51A. The purpose of section 51A(3) is to ensure that a tenant has a reasonable opportunity to make their case in discussions with the lessor, and in the tribunal. We regard the conduct of the appellant as serious, and we are mindful not to require unnecessary formal or technical measures in this process, but here, a key element of the requirement was not complied with, and this ground of appeal is therefore made out and upheld.
The appeal also raised whether relevant considerations, including some of those specified in section 51A(7), were taken into account by the Original Tribunal, namely: the behaviour of the lessor, whether the conduct was likely to continue, the consequences of homelessness for Mr Kazmar, the protection order in his favour, and the nature of his conduct. In our view, these matters were considered by the Original Tribunal, so these grounds of appeal are not made out.
The appellant also sought an order that the respondent provide an alternative tenancy. We do not think that the Tribunal can or should make such an order.
Therefore, the appeal is upheld and the orders of the Original Tribunal that the tenancy be terminated under section 51A of the RT Act is set aside. As the required notice was not provided the respondent’s original application for a termination and possession order is dismissed.
Nature of the appeal
Under section 82(1) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), an appeal tribunal may deal with an appeal as either a new application or as a review of all or part of the original decision. [1] In submissions prior to the appeal hearing, the appellant submitted that this appeal should proceed as a new application. However, at the commencement of the appeal hearing, the appellant expressed a willingness to proceed by way of a review, or rehearing, of the application, but with permission for both parties to file new evidence in the form of witness statements and accompanying documents. The Appeal Tribunal proceeded on that basis.
[1] Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 at [13]-[14]; see also Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [36]-[37]
A number of additional statements were provided (see below at paragraphs [46]–[48]). In particular, Kathryn Looke, Senior Director of ACT Housing, provided a witness statement for the respondent, and was subject to cross‑examination. The respondent did not wish to cross-examine the appellant, nor other witnesses who had provided new witness statements for the appellant.
To succeed in his appeal, the appellant must show “an error of fact or law in the decision under appeal and that the error affected the result”.[2] The Original Tribunal’s exercise of discretionary powers is generally presumed to be correct unless shown to materially rely on a fact or application of legal principle shown to be in error, or was otherwise wrong. Only when satisfied that there was an error may the Appeal Tribunal exercise its discretion in substitution for the Original Tribunal.[3]
Statutory background
[2] Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory(Appeal) [2021] ACAT 116 at [7]
[3] Ogilvie v Jemena Networks (ACT) Pty Ltd [2023] ACAT 20 at [28], citing House v R [1936] HCA 40; Norbis v Norbis [1986] HCA 17; Council of the Law Society of the ACT v LP 201920 [2021] ACAT 16 at [62]–[66]
The original application seeking termination of the tenancy agreement between the parties dated 8 December 2023 (Respondent’s Application for Termination) relied on both section 51 and section 51A of the RT Act. They state:
51 Damage, injury or intention to damage or injure
(1) On application by a lessor, the ACAT may make a termination and possession order effective immediately if satisfied that the tenant has intentionally or recklessly caused or allowed, or is likely to cause or allow—
(a) serious damage to the premises or to other property of the lessor; or
(b)if the lessor is an individual—injury to the lessor or a member of the lessor’s family; or
(c)if the lessor is a corporation—injury to a representative of the corporation or a member of a representative’s family; or
(d)serious or continuous interference with the quiet enjoyment of nearby premises by an occupier of the premises.
51A Threats, harassment, intimidation or abuse by tenant
(1) This section applies if a lessor believes that a tenant has engaged in any of the following conduct against a lessor or related person:
(a)conduct that is threatening, intimidating, harassing or abusive;
(b)conduct that the lessor or related person is reasonably likely to find threatening, intimidating, harassing or abusive.
(2) The lessor may apply to the ACAT for a termination and possession order.
(3) The lessor must, not later than 14 days before making an application under subsection (2), give the tenant written notice that includes the details of the conduct mentioned in subsection (1) that the lessor believes the tenant has engaged in.
(4) On receiving an application for a termination and possession order, the registrar must list the hearing before the ACAT not earlier than 21 days after the day the lessor gives the tenant notice in accordance with subsection (3).
(5) The ACAT may make—
(a)a termination and possession order if satisfied that—
(i)the tenant has engaged in the conduct mentioned in subsection (1); and
(ii)at least 21 days has passed since the lessor gave the tenant notice in accordance with subsection (3); and
(iii)it is appropriate to make the order; and
(b)any other order the ACAT considers appropriate.
(6) If the ACAT makes a termination and possession order under subsection (5) (a), the ACAT may suspend the operation of the termination and possession order for a stated period of not more than 21 days if satisfied that—
(a)the tenant would suffer significant hardship if the operation of the order was not suspended for the period; and
(b)the tenant’s hardship would be greater than the hardship that would be suffered by the lessor if the operation of the order was not suspended for the period; and
(c)it is appropriate to suspend the operation of the order for the period.
(7) In deciding whether it is appropriate to make a termination and possession order, the ACAT must take the following into account:
(a)the nature, frequency and duration of the conduct;
(b)the circumstances of the conduct, including any behaviour of the lessor or related person;
(c)whether the conduct is likely to continue;
(d)whether the tenant has—
(i)stopped the conduct; or
(ii)agreed to stop the conduct and is reasonably likely to stop the conduct in accordance with the agreement;
(e)any family violence order or protection order made against the tenant or another person living at the premises by the Magistrates Court;
(f)any order under a law of a State or a foreign country that has the same effect, or substantially the same effect, as an order mentioned in paragraph (e);
(g)the effect of the conduct on the lessor;
(h)whether any other order under this Act is reasonably available;
(i)any other matter the ACAT considers relevant.
(8) In this section:
related person means—
(a)an agent or representative of the lessor; or
(b)a family member of the lessor.
Factual background
Initial complaints
Both the appellant and respondent relied on the long history of complaints made to the respondent by the appellant about noise coming from his neighbour’s apartment. The appellant claims that he first raised concerns in 2020 about being unable to sleep due to the noise, often late at night, that was audible in his bedroom and that seemed to be coming from his adjoining neighbour, who was also a tenant of the respondent.[4]
[4] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [5]–[15]
The appellant received an email from an employee of the respondent on 9 December 2020 suggesting that the respondent was unable to “breach the tenant without the EPA readings” and that they had contacted the neighbouring tenant “in a bid to get the music turned down”.[5]
[5] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [13]
The appellant then continued to make complaints about the noise, escalating to what the respondent described in their application for termination as “threatening and harassing” emails and text messages. Two letters were written to the appellant referring to his “intimidation and abuse” of the respondent’s staff on 28 June 2021 and 10 November 2021.[6]
[6] Respondent’s Application for Termination, attachment C, pages 52–3. This document is included in an agreed list of documents provided by the respondent on 25 March 2024, and the page numbers to this document used in this decision are to the numbering in this bundle
The appellant’s evidence indicated that he had made numerous complaints to the Environmental Protection Agency (EPA). Readings taken by the EPA indicated that the noise was within the decibel reading permitted in the commercial area in which the premises was located. On 11 May 2022, an officer from the EPA emailed the respondent to describe readings taken two days previously.[7] That email described the L10 (which the Tribunal understands to refer to an overall noise level) at one point as being 33.1dB(A), indicating that the noise complied with the limits before 10:00pm. However, the email continued:
The LCeq-LAeq that can also be seen in the attached gave 20.4dB(A) this is a separate reading of the bass/low frequency noise from the music being played, this level given is extremely high for a residential area and it is understandable why [the appellant] is so affected by the noise, to give you an idea of how loud this bass is we licence outdoor concerts in the ACT with a condition allowing them to reach an LCeq-LAeq of 20dB(A).
I believe this matter should be addressed in the hope of reducing the bass from your tenant ... as the health issues accosted (sic) with long term exposure to this kind of low frequency noise is very serious and there are many study's (sic) been undertaken in the past that can back this up also supporting behaviours been undertaken by [the appellant] since he has been affected by this noise.
[7] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [24]
The respondent issued a notice to remedy to the neighbour on 26 May 2022.[8]
[8] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [30]
In June 2022, the appellant paid over $2,400 to have a sound board placed on the wall adjoining the neighbour’s apartment.[9]
[9] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [25]-[26]; invoice dated 10 June 2022, Mr Kazmar’s original proceedings documents
The EPA officer attended the appellant’s premises again on 10 July 2022, indicating that the insulation had little effect and the “noise was clearly audible to a point it would affect [the appellant's] amenity”. An “extremely high” LCeq‑LAeq of 17.3 dB(A) was recorded.[10]
[10] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [34]
On 16 August 2022, a workplace protection order was made by the Magistrates Court at the request of the Commissioner against Mr Kazmar, including prohibiting him for 12 months from contacting the respondent except by way of a specified email address, and engaging in threatening, harassing, intimidating, or offensive behaviour.[11]
Prior tribunal proceedings
[11] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [36]; Respondent’s Application for Termination, attachment E, page 56
On 27 May 2022, the appellant filed an application with the tribunal against the Commissioner, seeking to resolve a residential tenancy dispute relating to the noise complaints. This was dismissed on 12 December 2022. No reasons were published.[12]
[12] Respondent’s Application for Termination, attachment D, pages 54–5; Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [39]
The appellant had also filed an application against his neighbour in October 2022. On 12 December 2022, orders were made that the neighbour “is not to operate his music system so as to materially interfere with the appellant’s peace and comfort”.[13]
Transfer request
[13] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [37]–[38]
The appellant submitted an application to be transferred to another premises on 1 June 2022. However, it was not accepted by the respondent as a complete application and returned to the appellant with a request to supply further information.[14] No further information was provided. There was no direct evidence made available as to the nature of the application or the reasons for it not being proceeded with, other than references by both the appellant and respondent in the original decision that income information may not have been complete.[15]
[14] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [33]; transcript of appeal hearing dated 20 June 2024, pages 16-18
[15] Transcript of appeal hearing dated 20 June 2024, page 17
The appellant submitted another application for a transfer on 5 January 2024. On 11 January 2024, the appellant was informed that his application had been approved and he had been placed on the High Needs Allocation register. He indicated that it “is my understanding that even if you are on the High Needs register finding new housing can take up to 3 years”. The respondent also confirmed that this application had been made.[16]
Events leading up to the first warning notice
[16] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [59]–[60]; Transcript of appeal hearing dated 20 June 2024, pages 22–3 and 66–7; Exhibit R2
The appellant’s evidence suggests that the music from the neighbour subsided after the tribunal orders in December 2022 until May 2023.[17] He started making complaints again after then. On 7 July 2023, an Australian Federal Police (AFP) officer visited his premises and noted in their report that the music could be heard, and it would disturb them if they were trying to sleep.[18]
[17] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [40]
[18] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [41]–[42]
On 9 October 2023, an employee of the respondent contacted the appellant in response to an email from him. The employee noted the appellant’s complaint that the neighbour had started playing music again, and that the appellant was going to “deal with this bullshit again and would burn the building down ... he would go to the petrol station to get fuel and burn the unit”.[19]
[19] Respondent’s Application for Termination, attachment F, page 60
The respondent was also emailed by the AFP on 17 October 2023 to inform them of threats by the appellant to “burn the apartment down as he cannot handle the noise” and that he had walked to a service station to purchase a jerry can of fuel. The email requests housing assists the appellant transfer from his current accommodation.[20]
[20] Respondent’s Application for Termination, attachment G, page 61
Also on 17 October 2023, an employee of the respondent noted that an email from the appellant had included abusive language and a concern “for the safety of people in this building”. The appellant, when contacted, had advised that the fuel he had purchased had been confiscated after he had called the police. He apologised for the abusive emails but suggested they were “the only way I could cope with the noise”.[21]
[21] Respondent’s Application for Termination, attachment H, page 62
On 18 October 2023, the appellant informed the respondent that he had broken a window in his premises after throwing a frying pan in frustration with the noise.[22]
First warning notice
[22] Respondent’s Application for Termination, attachments I and J, pages 63–6
On 25 October 2023, the respondent provided the appellant with what was titled a “warning notice”.[23] It referenced email exchanges with the respondent’s staff on 17 and 22 October 2023, in which the appellant had made threatening and violent statements, and the threats to set fire to the appellant’s premises. The letter stated:
Your threats and behaviour are unacceptable and have the potential to place yourself, your neighbours, and the surrounding community at significant risk of harm and damage.
Due to your actions, as detailed in this warning notice, and the presenting risk to potentially cause significant harm to yourself, neighbours and the property, Housing ACT intends to submit an application to the ACT Civil and Administrative Tribunal seeking the termination of your occupancy agreement pursuant to section 13.2 of the Occupancy Agreement. This application may be submitted 14 days after the service of this notice.
...
You have already been spoken to regarding complaints concerning your behaviour in relation to threatening and abusive behaviour towards staff.
[23] Respondent’s Application for Termination, attachment K, page 67
The respondent acknowledged at the appeal hearing that the reference to an occupancy agreement and section 13.2 was not relevant.[24]
Events leading up to the second warning notice
[24] Transcript of appeal hearing dated 20 June 2024, page 140
The appellant provided evidence that on 30 October 2023, he had been verbally abused by his neighbour while walking to the bus interchange in Gungahlin. He reported this to the respondent. He had also been verbally abused previously by his neighbour at and around his premises.[25] On 23 November 2023, he applied for a Personal Protection Order against his neighbour. Those proceedings were discontinued on 2 April 2024, after the original decision in this matter, with the neighbour giving undertakings to not contact the appellant or engage in behaviour that constitutes family violence towards the appellant for 12 months.[26]
[25] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [48]–[50]
[26] Kazmar Witness Statement dated 23 May 2024, signed 6 June 2024 at [51]–[52]
The appellant sent the respondent various emails from 5 November 2023 complaining about the noise, including referring, on 6 November 2023, to being woken by the neighbour just before 3am and that the “Petrol station opens at 5am so I cope until then”.[27]
[27] Respondent’s Application for Termination, attachment M, pages 70–2
On 7 November 2023, the respondent noted that the appellant had contacted them, and then sent emails, again threatening to burn the building down. On 9 November 2023, he emailed the respondent to inform them that he had broken the window again.[28]
Second warning notice
[28] Respondent’s Application for Termination, attachments N and O, pages 73–6
On 10 November 2023, the respondent provided the appellant with a letter titled “second warning notice”.[29] This letter referred to the first warning notice and his recent threats to purchase petrol and set fire to his unit, and to cause serious damage to property. The letter continued:
I reiterate my previous direction to cease this behaviour immediately. Your threats and behaviour are unacceptable and have the potential to place yourself, your neighbours, and the surrounding community at significant risk of harm and damage.
Due to your actions, as detailed in this letter and my previous correspondence, Housing ACT will commence actions in the ACT Civil and Administrative Tribunal seeking the immediate termination of your tenancy under section 51 of the Residential Tenancies Act.
[29] Respondent’s Application for Termination, attachment P, page 77
The proceedings were conducted by both parties on the basis that the letter of 10 November 2023, including its reference back to the letter of 25 October 2023, was the relevant notice for the purposes of section 51A(3).
On 15 November 2023, an interim workplace protection order was issued by the Magistrates Court in similar terms as the order of 22 August 2022.[30]
Original Tribunal decision
[30] Respondent’s Application for Termination, attachment Q, page 78
The Respondent’s Application for Termination sought orders under section 51 or 51A of the RT Act terminating the tenancy, and contained a summary entitled “What is the dispute about” with a number of attachments marked A to R.
There was a hearing before the Original Tribunal on 11 January 2023. Mr Kazmar also provided documents during the hearing (Mr Kazmar’s original proceedings documents).
The Original Tribunal made the decision to terminate the tenancy on 11 January 2024. There were no published reasons for the decision, and the parties and this Appeal Tribunal have relied on the transcript of the proceedings. The Original Tribunal declined to terminate the tenancy under section 51 of the RT Act, finding that the appellant had not, and was not likely to, cause serious damage to the premises. The Original Tribunal stated that the risk of serious damage was a strong possibility but not likely:
[The risk that the tenant would cause serious damage to the property] would become real if there was a certain constellation of events which is continued bass; a sense of no action or powerlessness on your part which you are taking action to address … so hopefully you wouldn't get continued noise coinciding with you feeling unable to take actions legally about that, or you having no supports.[31]
[31] Transcript of original hearing dated 11 January 2024, page 46, lines 14-18
However, the Original Tribunal did terminate the tenancy under section 51A:
I want to turn then to section 51A. I am going to terminate this lease because of a whole mixture of reasons, and one of them is my deep concern for you, and you are not going to feel that, but I want to put on the record, I am really troubled by the fact that you were so troubled that you actually tried to take your own life. That frightens me. You need to be out of this property.[32]
[32] Transcript of original hearing dated 11 January 2024, page 46, lines 26-31
The Original Tribunal then considered whether the conduct was threatening, intimidating, harassing, or abusive, finding that emails in the past were certainly abusive but even more recent emails suggesting that the appellant was not going to be able to cope with the noise again were “bordering on harassing”, given the history of emails and history of responses to the noise.
As part of the discussion with the appellant, the Original Tribunal refers to various additional factors that contributed to her decision: the noise being at a time when the appellant wants to sleep; the premises being in a commercial zone; the disappointment that the June 2022 application for a transfer did not go through; concerns again with the appellant’s health, and in particular, the risk to the appellant if things go wrong. The Original Tribunal then discusses with the appellant the possibility of finding new accommodation through OneLink.
Both parties accepted that this Appeal Tribunal may infer from the transcript the reasons for the Original Tribunal’s decision. Both also relied on comments earlier in the original hearing which may have added context to the comments made later by the Original Tribunal after stating her intention to make an order under section 51A, while allowing for the possibility that views expressed prior to making her decision would not be final.
Appeal
Mr Kazmar lodged an application for appeal dated 12 January 2024, which attached a number of documents. He also provided: an appellant’s list of errors of fact, errors of law, or discretionary errors in the decision, dated 8 May 2024; appeal submissions filed on 23 May 2024; and further submissions dated 13 June 2024.
He provided a witness statement made and filed on 23 May 2024 and signed on 6 June 2024 (Kazmar Witness Statement). The Appeal Tribunal was able to have regard to this, though Mr Kazmar was not cross-examined on this statement.[33] He also provided witness statements by Sheila Hernandez dated 8 April 2024, and by Lisa Best dated 5 April 2024, neither of whom were cross‑examined.[34]
[33] Transcript of appeal hearing dated 20 June 2024, page 18
[34] Transcript of appeal hearing dated 20 June 2024, page 18
The Commissioner provided an outline of submissions on appeal dated 4 March 2024 and supplementary submissions on appeal dated 30 May 2024. They also provided a witness statement of Kathryn Looke dated 21 March 2024. Ms Looke gave some oral evidence and was cross-examined on her statement and evidence.[35] There was no cross-appeal by the Commissioner of the decision of the Original Tribunal not to terminate the tenancy under section 51 of the RT Act.
Alleged errors
[35] Transcript of appeal hearing dated 20 June 2024, pages 23–73
As noted, the appellant provided a list of errors on 8 May 2024. Most of those errors were also discussed in the appellant’s outline of submissions on appeal filed on 23 May 2024. Because those submissions formed the basis of oral submissions made by the appellant at the appeal hearing, we will generally adopt the headings used in those submissions in what follows.
Non-compliance with notice requirement in section 51A(3)
Section 51A(1) says that the section applies if a lessor believes that a tenant has engaged in conduct “against a lessor or related person” (emphasis added) that was or is reasonably likely to be found by the lessor or related persons as threatening, intimidating, harassing or abusive (threatening etc.). Section 51A(3) provides that the lessor must, not later than 14 days before making an application under subsection (2), give the tenant written notice that “includes the details of the conduct mentioned” (emphasis added) in subsection (1) that the lessor believes the tenant has engaged in, that is, the conduct against the lessor or related person that was said to be threatening etc.
The appellant conceded that their conduct was, or is reasonably likely to be found by the lessor or related persons as, threatening etc.[36] However, they submitted that that neither the first nor second warning notices provided sufficient notice under section 51A(3) of the RT Act.
[36] Transcript of appeal hearing dated 20 June 2024, page 81
The appellant relied on several alleged flaws in the notices. The first warning notice mistakenly refers to a breach of an occupancy agreement between the parties. It does not refer to any section of the RT Act.
That notice refers to emails of 17 and 22 October which were said to be threatening and violent statements, and consistently threatening to set fire to the unit. The notice then refers in paragraphs 2 and 3 to threats and harm to Mr Kazmar, surrounding neighbours, the surrounding community, and the property. There is no mention of any threats or harm to the lessor or related persons here. It is then said in paragraph 4 that due to these actions and risk to himself, neighbours and the property, Housing intends to submit an application to ACAT to terminate under the Occupancy Agreement, and a suggestion that Mr Kazmar seek legal advice. It is then said in paragraph 6 that: “You have already been spoken to regarding complaints concerning your behaviour in relation to threatening and abusive behaviour towards staff”. It is true that this is a reference to threats to the lessor. But this seems to be simply a matter of background information, and that the substantive terms of the notice only refer to threats and harm to Mr Kazmar, neighbours and the property.
The second warning notice does not refer to the section of the RT Act ultimately relied upon as the basis of the order. It refers only to section 51, which as noted the Original Tribunal did not rely on.
The second notice refers to the actions “as detailed in this letter and my previous correspondence”. The letter of 25 October is specifically identified at the beginning of the notice. It also refers to the conduct of threatening to purchase petrol and set fire to the premises. It is then said that “your threats and behaviour are unacceptable and have the potential to place yourself, your neighbours, and the surrounding community at significant risk of harm and damage”. Again, there is no mention of the lessor or related persons.
The respondent submitted that the second warning notice complied with the requirements of section 51A(3). They argued that this notice referred to the conduct in similar terms to that of the section, pointing out the threatening nature of the conduct and that it constituted a threat to a premises in which employees of the respondent may work. The appellant's conduct threatened to cause harm to himself and others if the respondent did not take further action in response to his complaints. Provided the notice set out the relevant conduct on which an order terminating the tenancy might be sought, there was no requirement to spell out the relevant section of the RT Act.
The respondent did not argue that they did not need to comply with the requirements of section 51A(3). In our view, this was the appropriate position to take. The terms of the provision — in particular the use of “must”[37] — and the nature of the provision suggest that it is the purpose of the legislation that an act done in breach of the requirement should be invalid.[38] Therefore, the key issues are, first, what does section 51A(3) require? This involves consideration of the text, purpose, and context of the provision. And second, was this provided in this case? We consider these issues below.
Comments of Original Tribunal
[37] See s 146 of the Legislation Act 2001. This section is a determinative provision in relation to s 51A of the RT Act
[38] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [93]
The Original Tribunal, in the course of hearing the appellant’s submissions in the original hearing, clearly considered the appellant’s conduct to be threatening etc. for the purposes of section 51A(1). The Original Tribunal referred to the appellant’s earlier emails as abusive and described his statements about setting fire to the building or harming himself as harassing conduct: they “may not be threatening [staff of the respondent], but it causes psychological damage to people who have to read that”.[39]
[39] Transcript of original hearing dated 11 January 2024, page 44
The Original Tribunal had also, early in the original hearing, referred to the need for any notice to refer to the consequence of the respondent applying for a termination and possession order from the Tribunal if the behaviour repeats.[40]
Text of section 51A
[40] Transcript of original hearing dated 11 January 2024, pages 29–30
The specified requirement for the notice is that it contains:
(a)details of the conduct;
(b)against the lessor or related person;
(c)that is threatening etc.; and
(d)that the lessor believes the tenant has engaged in.
The concept of ‘details’ is not defined, so it takes its general meaning of “an individual or minute part; an item or particular”.[41] The details need to include the conduct and that this was against the lessor or related person.
[41] Macquarie Dictionary online
We also note that section 51A(5) states that ACAT may make a termination order if satisfied of various things, which includes that “at least 21 days has passed since the lessor gave the tenant notice in accordance with subsection (3)”. It is not enough just that the conduct has been engaged in (section 51A(5)(a)(i)), and that it is appropriate to make the order (section 51A(5)(a)(iii)). It is also necessary that there be a notice in the required form (section 51A(5)(a)(ii)). This reinforces the importance of the notice in accordance with the statutory requirements.
Purpose of section 51A(3)
In determining the meaning of section 51A(3), section 139(1) of the Legislation Act 2001 provides that in working this out, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
The stated objects, or purpose, of the RT Act include that, “in recognition of the importance of stable and secure housing for people in the ACT community”, to “(a) define the rights and obligations of tenants and lessors under residential tenancy agreements”; and “(d) ensure that parties to residential tenancy agreements and occupancy agreements can easily access suitable, low cost, informal and timely ways to enforce their rights under those agreements.”[42]
[42] RT Act s 4A
Section 51A was introduced, along with section 45A, by the Residential Tenancies Legislation Amendment Act 2023. Both sections enable the tribunal to make a termination and possession order on the basis of threatening etc. conduct of various types, either by a tenant against a lessor (section 51A) or by a lessor against a tenant (section 45A). There are different time frames for the respective notices, with only seven days’ notice required before a tenant can apply for an order to terminate their tenancy.
The revised explanatory statement accompanying the introduction of the Residential Tenancies Legislation Amendment Bill 2022, which included these provisions, describes the notice requirements in section 45A and 51A as matters of procedural fairness:
It is noted that the timeframes for notice to the tenant and the date on which ACAT may hear a matter are longer in this section [51A] than in 45A. This is in acknowledgement of the differing outcomes for parties in the exercise of each section. In section 45A when the tenant relies on the provision, the tenant is choosing to end the tenancy. However, in s 51A a tenant may have their tenancy ended (against their wishes) in a relatively short timeframe. To increase the protections available to tenants in this circumstance, the timeframes are slightly longer.
In setting out why any limitations of the right to privacy by the Bill should be considered reasonable, the explanatory statement suggests that, “in the interests of procedural fairness”:
section 51A offers tenants additional safeguards in recognition of the disproportionate impact on their right to privacy and freedom from arbitrary interference with home. Specifically:
· a lessor must provide written notice of their intention to apply to ACAT at least 2 weeks before making any such application;
· to ensure that a tenant has a reasonable opportunity to put their case, the written notice must include details of the alleged conduct; and
· the application must not be heard, and an order cannot be made by ACAT, unless at least 21 days has passed since the lessor has provided written notice.
The provision of longer notice periods for tenants ensures that the tenant has a reasonable period in which to prepare a response to any allegations of inappropriate conduct. It also provides some additional time to consider alternative accommodation options should the tenancy end.
The RT Act applies to a wide variety of residential tenancies, including unsophisticated tenants and lessors. The tribunal is required to ensure its procedures are “as simple, quick, inexpensive and informal as is consistent with achieving justice”,[43] and this is confirmed in part by the RT Act.[44] These considerations support the view that the requirement to give notice should not be interpreted to require onerous or technical measures.
[43] ACAT Act s 7
[44] S 4A(d)
However, in addition to the text of section 51A and the purpose set out in the explanatory material, there are several aspects of the RT Act which suggest the notice must be sufficiently detailed to enable a tenant to understand and respond. These include:
(a)the consequences of an order terminating a tenancy can impose significant hardship, depriving a person of what they may have considered their home;
(b)as the circumstances in this case suggest, suitable alternative accommodation, even temporary, may be difficult to find;
(c)the seriousness of the allegations made against the tenant;
(d)the relatively short time in which an order may be made after the notice is provided, and possibly even shorter time after an application is made to the tribunal; and
(e)the range of factors that must be considered by the tribunal in deciding whether it is appropriate to make the order, set out in section 51A(7).
This suggests that the notice requirement is a protection to the tenant in light of the consequences which could follow, in particular to enable them to understand what is being alleged, and to prepare for possible negotiations and a response, including in the tribunal hearing, and for the possibility that they will lose their accommodation.
Context of section 51A(3)
In working out its meaning, a provision of an Act must be read in the context of the Act as a whole.[45] Section 51A sits within Part 4 of the RT Act, concerning termination of residential tenancies, and in particular Division 4.4, concerning termination initiated by the lessor. Division 4.4 provides for a range of bases for termination by the lessor. One set of facts can arguably fall under a number of these bases.
[45] Legislation Act2001 s 140
In particular, section 51 is concerned with where a tenant has, or is likely to, cause damage to premises, injury to the lessor, or interference with nearby premises. As discussed, section 51A is concerned with conduct against a lessor that is threatening etc. While distinct grounds, as these proceedings show, one set of facts can arguably fall under both provisions.
But, the processes for and consequences of the orders are different. The time frames involved in seeking an order under section 51A can be contrasted with the immediate termination and possession order available under section 51 if the tribunal is satisfied that the tenant has caused serious damage to the premises or injury to the lessor, and the longer notice to remedy and notice to vacate requirements under clause 93 of the Standard Residential Tenancy Terms.
Section 51A(3) requires a special notice. This is confirmed by section 51A(5)(a)(ii). Section 51A(6) provides expressly for suspension. Section 51A(7) deals with considerations which must be taken into account.
As the respondent submitted, a lessor is able to issue a notice when they form the view that the conduct is threatening etc., or they and their employees are reasonably likely to find it threatening etc. It is then up to the tribunal to determine if the tenant has engaged in such conduct, that sufficient time has passed since notice was given, and it is appropriate to make the order. It is only in determining the appropriateness of the order that the tribunal weighs “the seriousness of the conduct that has occurred against the seriousness of ordering a tenancy termination”.[46] The conduct only has to be sufficiently serious to meet the definitions of threatening etc., before the tribunal has the discretion to make the order.
[46] Revised explanatory statement, Residential Tenancies Legislation Amendment Bill 2022
These differences suggest that it is important the decision-makers have regard to which section is being relied upon, and that the lessee be notified of this.
Summary of considerations
Therefore, in our view and in summary, the text of section 51A(3), and section 51A(5), requires that the notice set out the conduct against the lessor that is threatening etc. This requirement implements the purpose of the provision which is to enable the tenant to understand the case against them and consider their position and put their case in negotiations and at any hearing. The notice requirement is particularly important in light of the fact that section 51A provides one of a range of possible bases for termination in the RT Act, with differing requirements. In our view, this means the notice needs to make it clear that section 51A is being relied upon and deal with the four specified issues, including that the conduct was against the lessor or a related person.
Was there compliance with section 51A(3) notice requirements?
In our view, there are several reasons why this requirement was not met in this case.
Not clear from notice that section 51A is relied on
First, the notice does not make it clear that section 51A is being relied upon. The second notice refers expressly to section 51, suggesting that this is what is being relied upon.[47] The first notice referred to “section 13.2 of the Occupancy Agreement,” which makes the notices even more unclear. It is not necessary that there be express reference to section 51A, but it is necessary to indicate in some way that this is what is being relied upon. There is nothing in the notices which stated or implied that section 51A was being relied upon.
Not clear from notice that conduct against the lessor is relied on
[47] There is a general presumption an act purporting to be done under one statutory power may be supported under another statutory power, see for example Lockwood v The Commonwealth [1954] HCA 31. But here the requirements of the notice in relation to section 51A are specifically set out in the Act
Second, the notice does not make it clear that it is conduct “against a lessor or related party” that is relied on, as required by section 51A.
In our view, section 51A means that the conduct must be directed at, or the harms occasioned by the conduct experienced by, the lessor or their representatives. As the appellant accepted that their conduct met the requirements of section 51A(1) we do not need to explore the limits of when threatening etc. conduct, which only indirectly relates to the lessor, may still be against them for the purposes of that section.
Conduct was threatening
In our view, the appellant's conduct in this matter was threatening etc. Even though the threat was most immediately of harm to the lessor's property or the safety of the appellant or other tenants, it still involved an attempt to use menace to influence the respondent. The frequency and potential harm involved with the conduct may also constitute harassment. There is no need for the respondent to establish that any action to burn down the building may also have directly harmed employees of the respondent caught up in any fire. The objective nature of section 51A(1)(b) requires only that the lessor believe that the conduct can be reasonably considered threatening etc.
However, importantly for this case, section 51A(3) requires “written notice that includes the details of the conduct mentioned in subsection (1) that the lessor believes the tenant has engaged in”. Subsection (1) in turn refers to conduct against the lessor or related person. In relation to the four matters required to be specified in section 51A(3), summarised in paragraph [60] above, it is clear that there are details of three events, the emails of 17 and 22 October, and that of 6 November. While this conduct is specified, there is nothing which links it to an allegation of threat against the lessor or related person to support action under section 51A.
Notice does not implement the purpose of section 51A(3)
As discussed, the notice under section 51A(3) expressly plays a role in when an application can be made to the tribunal and when that application can be heard. By setting out “the conduct mentioned in subsection (1)” the notice establishes the basis of any potential order, and provides the tenant with time to prepare for the tribunal hearing. As the revised explanatory statement suggests, the notice provides a “reasonable opportunity” for the tenant to put their case to the tribunal.
The notice period also provides an opportunity for the tenant to respond to what the lessor believes to be inappropriate conduct. This may include correcting misunderstandings about the nature of the conduct or how it was viewed by the lessor or related persons. The tenant may point out the contribution of the lessor or related persons, or provide additional information to justify or ameliorate the effect of the conduct. The tenant is also given the opportunity to stop or agree to stop the conduct, a factor that must be taken into account by the tribunal in determining if termination of the tenancy is appropriate, but which is not sufficient to prevent an order being made. Along with the power of the tribunal to suspend any termination of the tenancy, the notice period also provides time to consider alternative accommodation.
Therefore, in our view, a notice should include identification of the conduct in question with sufficient detail to enable the tenant to at least understand why the conduct should be considered threatening etc., and is against the lessor or related persons. Importantly, the notice must enable the tenant to be prepared to argue why an order terminating their tenancy is not available or should not be made. It therefore must sufficiently identify the basis for the order being sought and enable the tenant to identify the criteria to be applied by the tribunal if it is to make the order.
Notice does refer to relevant conduct
In this case, the second warning notice relied upon by the respondent as notice for the purposes of section 51A(3) refers explicitly to the appellant's threats to purchase petrol and set fire to the unit, both as detailed in the first warning notice and as occurred since then. It refers to the potential for those threats to cause serious damage to property and to place the appellant, neighbours, and surrounding community at significant risk of harm and damage. It states that the respondent will commence actions in the tribunal seeking the immediate termination of the tenancy under section 51 of the RT Act.
In our view, the second warning notice provides sufficient detail for the appellant to identify the conduct in question.
But not that relevant conduct is threats against the respondent
But, the notice does not provide that it is threats to the respondent that are being relied upon. In our view, reference only to threats to yourself, surrounding neighbours, and the property are too general. It is not sufficient to merely reference threats which were included in communication with the lessor. It was also not self-evident in the nature of the conduct described that they involved threats against the lessor. The notice does not make it clear that it is threats against the lessor, and section 51A, which is in issue.
The second warning notice therefore does not enable the appellant to prepare a response to an application under section 51A. By referring to the risk of harm to property, the notice directs the tenant to the risk posed by his conduct of damage to the premises. It suggests that the respondent is not concerned with the effect or intent of the appellant’s conduct on the respondent. There is no indication that ceasing the conduct or other factors may affect the intention of the respondent to apply for an order or the appropriateness of terminating the tenancy. In suggesting that the respondent will be seeking immediate termination under section 51, the notice distracts from the timing of any application, hearing, and order needed under section 51A.
Section 51A(5) provides that the tribunal may make a termination and possession order if satisfied that, among other things, at least 21 days has passed since the lessor gave the tenant notice in accordance with subsection (3). As noted, both parties made their submissions on the basis that the tribunal's jurisdiction to make a termination and possession order under section 51A(5) was dependent on the issue of a valid notice under section 51A(3). We agree. In any event, by acting on the basis that the second warning letter constituted sufficient notice to enable the tribunal to make a termination and possession order, the Original Tribunal has made an error of law which has materially affected the decision.
Was procedural fairness otherwise provided?
It is true that the Respondent’s Application for Termination made to ACAT does refer to sections 51 and 51A of the RT Act.[48] Also the hearing before the Original Tribunal on 11 January 2024 considered both sections.[49] If the claim by the appellant had been based on the general law concept of procedural fairness, or natural justice, in relation to the tribunal hearing, there would be an argument that this was provided. But the claim was rather based on the express requirements in section 51A, which as we have discussed provided significant statutory rights to the appellant, based on a clear policy. The statute provided expressly for significant notice in addition to the application to the tribunal, and the hearing.
Conclusion
[48] Respondent’s Application for Termination, page 13
[49] Transcript of original hearing dated 11 January 2024, pages 16-20, 46-48
We regard the conduct of the appellant as serious. We also recognise that the provisions should not be read to require unnecessary formal or technical measures. But, we do not think requiring identification of the key elements of the basis for the proposed termination is doing so, especially when it is clear that the purpose of section 51A(3) was to specifically require this. We note that if the respondent thinks it appropriate to do so, a further notice can be issued.
This finding is sufficient to allow the appeal. However, given the orders sought by the appellant depend to some extent on the success of other submissions, we consider them below.
Failure to take into account relevant considerations
Circumstances of the conduct, including any behaviour of the lessor or related person (section 51A(7)(b))
Section 57A(7) lists various factors which must be taken into account by the tribunal in deciding whether it is appropriate to make a termination and possession order. Paragraph (b) lists “the circumstances of the conduct, including any behaviour of the lessor or related person”.
Mr Kazmar submitted that the Original Tribunal had failed to consider, or at least adequately consider, the respondent’s conduct in responding to the appellant’s complaints about the noise and abuse from his neighbour. The appellant had made numerous complaints, taken all the steps outlined by the respondent including making multiple reports to the EPA, and provided evidence of the significant distress and damage caused by his neighbour’s conduct. In response, on the evidence before the Appeal Tribunal, the respondent had issued only one notice to remedy to the neighbour and, in investigating the more recent complaints leading up to the conduct of the appellant in question, only spoken to one other neighbour. The appellant submitted that the respondent had “not taken proper steps to investigate the [appellant’s] complaints and take action accordingly to protect his right to quiet enjoyment of the property”.[50]
[50] Appellant’s outline of submissions on appeal at [54]
The respondent accepted that the appellant had made a large number of complaints about the neighbour’s conduct, but submitted that any conduct by the respondent could not excuse the conduct of the appellant. The conduct of the respondent was sufficient given the rights of other tenants and when considered in conjunction with the steps appropriately being taken by the appellant.[51] Proceedings against the respondent were dismissed. There were also limits on the ability of the respondent to transfer the appellant without a complete application and the difficulties of finding appropriate premises. In those circumstances, the respondent submitted that even if the Appeal Tribunal considers that the respondent might have done more, that does not suggest that the Original Tribunal committed an error in exercising their discretion as to the appropriateness of the order.
[51] Transcript of appeal hearing dated 20 June 2024, page 108
We are not satisfied that the Original Tribunal erred in failing to consider the contribution of the respondent’s conduct. The Original Tribunal referred to the relevant elements of section 57A(7) in asking for submissions at the original hearing.[52] There was extensive discussion at the original hearing where the appellant and the Original Tribunal discussed the history of his complaints and frustration with the respondent’s lack of response.[53]
[52] Transcript of original hearing dated 11 January 2024, page 44
[53] Transcript of original hearing dated 11 January 2024, pages 42–4
The Original Tribunal was informed at the original hearing about the notice to remedy being issued to the neighbour.[54] She raised the question of whether being within the legal limit for a commercial zone meant that was the “end of the matter”, to which the respondent referred to the dismissal of the appellant's application against the respondent.[55] The Original Tribunal also recognised that “there could have been other solutions” and that:
I'm not saying any of that [the conduct of the appellant in making threatening comments in November 2023] is right, but I'm saying I can see how it ended up there, and there may have been other pathways and you may feel that Housing could have taken a different fork in the road at various points, and we would never have ended up here, but that's all water under the bridge. The reality is, is this is where we are.[56]
[54] Transcript of original hearing dated 11 January 2024, page 21-22
[55] Transcript of original hearing dated 11 January 2024, pages 22-23
[56] Transcript of original hearing dated 11 January 2024, page 50
The Original Tribunal also stated that she was “very disappointed that [the] June 2022 transfer application didn’t go through because we would have been a year and a half ahead of where we are now”.[57]
[57] Transcript of original hearing dated 11 January 2024, page 48
We may accept that the respondent could, and perhaps should, have done more in trying to resolve the complaints by taking more action against the neighbouring tenant. However, we are not satisfied that such a view means that the exercise of discretion by the Original Tribunal in terminating the tenancy was wrong.
The principal concern expressed by the Original Tribunal was the affect that staying in the premises was having on the appellant’s health.[58] She acknowledged the drain the three years of the tenancy had had on the appellant’s emotional and mental resources[59] and that it had caused sufficient distress for the appellant to try to take his own life.[60] The Original Tribunal also acknowledged the appellant now had additional supports to prevent a re-occurrence of the worst of his past conduct. He had also taken action in the Magistrates Court to enforce the orders against his neighbour. However, the Original Tribunal reached the conclusion that there remained a real risk that the noise would continue, and in doing so, cause ongoing harm to Mr Kazmar and possibly lead to a reoccurrence of threatening conduct by him.
[58] Transcript of original hearing dated 11 January 2024, page 48
[59] Transcript of original hearing dated 11 January 2024, page 52
[60] Transcript of original hearing dated 11 January 2024, page 46
The Original Tribunal also expressed concern that the risk of harm would continue even if a new neighbour moved in.[61] In other words, even if the respondent had taken action sooner to discourage or stop the neighbour’s conduct which led to the eviction or removal of the neighbour, that may not have prevented noise arising in future which may have further affected the appellant’s physical and mental health and lead to a re-occurrence of the appellant’s threatening conduct.
[61] Transcript of original hearing dated 11 January 2024, page 54
Therefore, even if the Original Tribunal had mistakenly not understood the full role of the respondent in the appellant’s conduct, the ongoing risks of adverse effects on the appellant’s health and re-occurrence and escalation of the appellant's conduct were sufficient for the Original Tribunal to be satisfied that the termination and possession order was appropriate.
Whether the conduct is likely to continue (section 51A(7)(c))
The appellant submitted that the Original Tribunal erred in finding that the appellant was sensitive to noise and therefore his conduct was likely to continue in the future, a factor which the Original Tribunal was bound to take into account under section 51A(7)(c).
In discussing the consequences of her decision to terminate the tenancy, the Original Tribunal stated:
I don't think you should be in a property in a commercial area because you do know that you have anxiety. You have suffered from stress in the past. You are sensitive to noise. You need to be ... in a unit or a townhouse, but preferably not in a commercial zone.[62]
[62] Transcript of original hearing dated 11 January 2024, page 49
Mr Kazmar submitted that there was no evidence that he was any more sensitive to noise than any other person. The reference to being sensitive to noise suggested that the Original Tribunal had failed to appreciate the effect on the appellant of the conduct of the neighbour and, in particular, the high level of bass in the music being played. This also led to insufficient weight being placed on the role of the respondent in not taking further steps to deter the neighbour’s conduct.
In response, the respondent submitted that the Original Tribunal was right to find that there was a likelihood that the appellant would continue to be affected by noise while he remained in his premises. The appellant had a history of escalating behaviour, which was further demonstrated by his conduct since the termination of his tenancy was stayed. The respondent also submitted that the Original Tribunal:
… was aware of the appellant's diagnosis of Charcot-Marie-Tooth disease and associated psychosocial disability at the time of the hearing. Therefore it was open to find that the Appellant was "sensitive to noise" more than the average person.[63]
[63] Respondent’s supplementary submissions on appeal at [13]
We agree with the appellant’s submissions that there was no evidence before the Original Tribunal to suggest that the appellant was more sensitive to noise in the sense that he was more likely to be frustrated by or adversely affected by noise at a given level than other people, due to any disabilities or otherwise. However, we are not satisfied that the Original Tribunal relied on any particular inherent sensitivity of the appellant in making her decision.
In discussing her order, the Original Tribunal referred to both the appellant’s possible reaction to noise generally and to the noise generated by his neighbour. After suggesting that the appellant was sensitive to noise generally, the Original Tribunal stated that because “it’s a commercial zone there will always be a level of noise”.[64] Later, the Original Tribunal stated, “I am absolutely satisfied that noise is going to repeat ... if not with this neighbour, there will be a change of tenants and it will happen again”.[65] Being in a commercial zone meant that a higher level of noise was permitted, restricting the ability of the EPA, for example, to take action to restrict the noise. Remaining in the premises, even if the neighbour was removed, still risked being affected by a high level of noise and the frustration of having limited options of prevention. The appellant had also given evidence that, due to his medical conditions, the appellant may need to sleep during the day or go to sleep earlier in the evenings.[66]
[64] Transcript of original hearing dated 11 January 2024, page 49
[65] Transcript of original hearing dated 11 January 2024, page 54
[66] Transcript of original hearing dated 11 January 2024, page 15
Early in the original hearing, the Original Tribunal had discussed with the appellant how he may be acutely aware of the bass noise coming from his neighbour and its effect on his levels of anxiety.[67] Later, in an apparent reference to this earlier discussion, the Original Tribunal stated:
You are sensitised to the noise. It is clear that the neighbour is there long-term, and really I don't want you in the situation where you might become a risk to yourself if things get beyond you. And I can see a real possibility of that... There might be another bad patch, and how would you manage ...[68]
[67] Transcript of original hearing dated 11 January 2024, pages 11–12
[68] Transcript of original hearing dated 11 January 2024, page 50
In our view, the Original Tribunal was referring to sensitivity in two senses: that high levels of noise, combined with frustrations over management of the noise levels, may lead to a re-occurrence of the conduct and risk of harm to the appellant and others; and a sensitisation to the bass noise coming from the neighbour due to not only its inherent level but the feelings of anxiety associated with it. Both of these views were reasonably open on the evidence presented.
Consequence of homelessness
At the appeal hearing, the appellant also submitted that the Original Tribunal had failed to consider the effect of the termination order on the appellant:
It was an error to form the view that Mr Kazmar would be rehomed if an eviction was successful, and that the primary homelessness and loss of his possessions would have, obviously, a significant impact on the appellant given his disability and his health concerns...[69]
[69] Transcript of original hearing dated 11 January 2024, page 98
It was claimed that the Original Tribunal had not considered the special needs of the appellant in finding alternative accommodation, including accessibility issues, his possible need to sleep during the day, and treatment of his medical conditions at night that make sharing accommodation impractical. The Original Tribunal expressed the view that accommodation “will be found”,[70] and that OneLink, an ACT government service providing information and referrals for people who are homeless, would ensure that “no one is ever having to sleep on the streets”.[71] The appellant claimed that there was no evidence that OneLink would be able to adequately provide that assistance in the appellant's circumstances.
[70] Transcript of original hearing dated 11 January 2024, page 55
[71] Transcript of original hearing dated 11 January 2024, page 58
We are not satisfied that the Original Tribunal failed to consider the impact of the termination and possession order on the appellant. The orders made by the Original Tribunal included an order suspending the termination of the tenancy for three weeks, the maximum allowable under section 51A(6). The Original Tribunal also encouraged the appellant to contact OneLink to find alternative accommodation. The appellant had earlier in the hearing brought up the difficulty of getting assistance from OneLink in finding alternative accommodation due to him already having housing.[72] After indicating that she was going to make the termination order, the Original Tribunal discussed how the order meant that the appellant would now be eligible for more forms of assistance:
Legally you were in accommodation which meant you couldn't access alternative accommodation. ... Now that you are legally not accommodated, so all sorts of things will now be opened up.[73]
[72] Transcript of original hearing dated 11 January 2024, page 36
[73] Transcript of original hearing dated 11 January 2024, page 55
The Original Tribunal also discussed the likelihood that the respondent would not take action to evict the appellant in circumstances while he was trying to find alternative accommodation.[74]
[74] Transcript of original hearing dated 11 January 2024, page 49
The appellant was successful in staying the effect of the orders before the suspension of the termination order expired. That stay remained in effect up to the hearing of this appeal and was extended until further order at the conclusion of the appeal hearing. There was also no evidence before us going to the ability or otherwise of OneLink or other services to be able to provide accommodation suitable for the appellant. It is therefore not clear whether the appellant may have been able to secure alternative accommodation. We are therefore not satisfied that the exercise of discretion in making a termination was wrong due to the likely difficulties faced by the appellant in securing suitable alternative accommodation.
Other grounds for appeal
The appellant also submitted that the Original Tribunal had failed to consider the appellant's application for a protection order against the neighbour and the undertakings agreed to. As this evidence was not before the Original Tribunal, we are not satisfied that the Original Tribunal erred in not taking it into account. Section 51A(7)(e) requires the tribunal to take into account any protection orders made against the tenant or another person living at the premises. It does not require consideration of orders made to protect the tenant. In any event, in our view the impact on the appellant of the neighbour's conduct was considered by the Original Tribunal for the reasons given above.
The appellant also submitted that the Original Tribunal, when considering the effect of the conduct on the lessor for the purposes of section 51A(7)(g), failed to recognise that the conduct of the appellant was within the “normal course” for employees of the respondent, and there was no evidence of any psychological distress suffered due to the appellant’s conduct.[75] We do not agree with this characterisation of the appellant's conduct and consider that the Original Tribunal relied on the threatening etc. nature of the conduct to establish jurisdiction and considered the order appropriate due to the ongoing risks of harm to the appellant and others in his building if allowed to remain.
Orders sought by the appellant
[75] Appellant’s outline of submissions on appeal at [57]
The appellant sought an order setting aside the orders of the Original Tribunal and that the application for a termination and possession order made by the respondents be dismissed under section 32 of the ACAT Act. The appellant also sought an order under section 83(1)(m) of the RT Act that the respondent provide the appellant “with a residential tenancy at an alternative appropriate housing immediately”. In their response to the respondent’s supplementary submissions on appeal, the appellant sought at a minimum that assignment of the appellant to the High Needs Housing list following assessment of his transfer application be amended to Priority Housing.
As discussed above, we have concluded that the requirement that the lessor provide the appellant with written notice under section 51A(3) has not been met. As a consequence, the Original Tribunal could not have been satisfied that at least 21 days had passed since providing the notice, in accordance with that subsection, under section 51A(5)(a)(ii), and hence there was no power to make the termination and possession order. The order made by the Original Tribunal terminating the tenancy should therefore be set aside and the application for the termination and possession order dismissed.
Under section 51A(5)(b), the tribunal may make “any other order the ACAT considers appropriate”. It is not clear whether this power, like that to make a termination and possession order, is also conditioned on the lessor providing a valid notice to the tenant under section 51A(3). The apparent legislative intention of requiring a valid notice is to protect the tenant by providing a form of procedural fairness. Statutory procedural fairness requirements are generally considered jurisdictional requirements, meaning that any material breach of the requirement will invalidate the subsequent decision. That would support the view that the tribunal does not have the power to make orders under section 51A(5). However, it alternatively could be argued that the application could allow for some other orders, at least where the orders being considered by the tribunal are for the benefit of the tenant.
The Tribunal notes that section 51A(7)(h) refers, as a factor to be taken into account in deciding whether a termination and possession order is appropriate, to “whether any other order under this Act is reasonably available”. A note to the paragraph refers to the example of section 83 of the RT Act. We do not consider that section to provide the tribunal with the power to make any other order, under section 83 or otherwise, but merely to reflect the possibility that other orders may be available which may count against making the termination and possession order sought.
The appellant proposed that the tribunal had power under section 83(1)(m) to make an order for alternative accommodation. That section states:
83 Orders by ACAT
(1) 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:
...
(m)any other order the ACAT considers appropriate including declaratory orders in relation to a matter in this Act.
A tenancy dispute includes “a dispute if an application relating to the dispute may be made under part 4 (Termination of residential tenancy agreements)” which includes section 51A.[76] The power to make an order under section 83 therefore involves a similar concern over whether an application for a termination and possession order under section 51A has to comply with the notice requirements in section 51A(3) before it can be the basis of orders by the tribunal. A question may also arise whether an application which also seeks to rely on section 51 can be an alternative source of power under section 83, or whether the appellant has to make his own application before being able to seek orders under that section. A further alternative, not put forward by the appellant, can be found in section 82(2)(e) of the ACAT Act, which provides an appeal tribunal with the power to make any other order it considers appropriate.
[76] RT Act s 72
In any event, we consider that the orders sought by the appellant to provide alternative housing to the appellant are not appropriate in this matter. The decision to allocate housing is also unsuitable to tribunal determination, given it involves a polycentric decision to allocate scarce resources among a large number of likely competing and compelling applicants. The basis on which the tribunal may review a decision by the respondent in response to a transfer application was not provided. Even if the tribunal has jurisdiction, there was no such application before us, and no evidence as to the process and criteria to be applied. The Tribunal is also not in a position to assess whether the appellant meets any such criteria on the evidence presented given the nature of the appeal as a review of the original decision rather than a new application.
In those circumstances, the Tribunal orders that the appeal is upheld, the orders of the Original Tribunal made on 11 January 2024 are set aside, and the respondent’s application dated 8 December 2023 for a termination and possession order is dismissed.
………………………………..
Acting Presidential Member D Stewart
For and behalf of the Appeal Tribunal
| Date(s) of hearing: | 20 June 2024 |
| Counsel for the Appellant: Solicitors for the Appellant: | Ms S Andersen-Cooke Griffin Legal |
| Counsel for the Respondent: Solicitors for the Respondent: | Ms A Costin ACT Government Solicitor |
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