Krutsky v Commissioner for Social Housing (Appeal) - [2023] ACAT 68

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KRUTSKY v COMMISSIONER FOR SOCIAL HOUSING (Appeal) [2023] ACAT 68

AA 26/2023 (RT 883/2022)

Catchwords: APPEAL – RESIDENTIAL TENANCY – discretion to make termination and possession order – application for leave to rely on further evidence – whether the evidence is likely to have affected the outcome of the decision made at first instance – application for leave to rely on further evidence dismissed –whether there was procedural unfairness in original tribunal deciding not to adjourn for the appellant to seek legal representation – appellant had sufficient time to seek representation – whether it was reasonable for the original tribunal not to grant an adjournment – discretionary decision not to adjourn was not legally unreasonable – appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 6
Residential Tenancies Act 1997 s 51

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules r 63

Cases cited:Minister for Immigration and Citizenship v Li [2013] HCA 18
WZAVK v Minister for Immigration and Citizenship Migrant Services and Multicultural Affairs [2020] FCA 114

Tribunal:Presidential Member G McCarthy
Senior Member J Francis

Date of Orders:  9 November 2023
Date of Reasons for Decision:      9 November 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 26/2023

BETWEEN:

REBECCA KATHERINE KRUTSKY
Appellant/Tenant

AND:

COMMISSIONER FOR SOCIAL HOUSING
Respondent/Lessor

APPEAL TRIBUNAL: Presidential Member G McCarthy
Senior Member J Francis

DATE:9 November 2023

ORDER

The Tribunal orders that:

The application for appeal is dismissed.
Order 1 made on 25 September 2023, staying orders 2, 3 and 4 of the orders made on 17 August 2023 in matter RT 883/2022, is vacated.
Order 5 of the orders made on 17 August 2023 in matter RT 883/2022, staying orders 2, 3 and 4 of the orders made on 17 August 2023 in matter RT 883/2022 is varied by substituting “14 September 2023” with “30 November 2023”.
………………………………..

Presidential Member G McCarthy
For and on behalf of the tribunal

REASONS FOR DECISION

By application dated 24 August 2023, the appellant appealed from the orders of the original tribunal made on 17 August 2023 terminating her residential tenancy agreement with the respondent Commissioner.
On 25 September 2023, consequent upon the appellant’s lodgement of the appeal, the Appeal Tribunal stayed the order terminating the tenancy agreement until further order.
On 11 October 2023, the appellant filed an outline of submissions on the appeal. At hearing, Ms Kelly, solicitor for the appellant, presented the appellant’s case on the appeal by reference to the outline. We treated the outline as an articulation of the grounds of appeal originally pleaded.
The respondent filed a response on 1 November 2023 and was represented by Mr Bloomfield, solicitor.

Application for leave to rely on further evidence

The appellant commenced with an application for leave to adduce two pieces of further evidence. First, a document evidencing that at the time of the original hearing, unbeknown to the appellant, the appellant’s neighbours had listed their property for sale.
The appellant submitted the document, evidencing that the neighbours wished to sell their house and move away, was relevant and important in that it diminished, if not eliminated, the original tribunal’s concern – central to its decision – that the appellant’s conduct caused the neighbours to no longer feel safe in their home. In other words, the appellant submitted the neighbour’s concerns about feeling unsafe in their home (should the appellant continue as their neighbour) fell away because the neighbours were intending to leave.
A material consideration when deciding whether to give an appellant leave to rely on further evidence on an appeal conducted by way of a rehearing, as this was, is whether the evidence is likely to have affected the outcome of the decision made at first instance. In this respect, we were not persuaded that the notice of listing is likely to have had that result. It was, at best, equivocal, because the evidence said nothing about why the property was listed for sale. More importantly, it is entirely consistent with the neighbours having an ongoing fear of the appellant and an ongoing fear of her returning to the tenanted property as their neighbour – hence their wish to sell and leave. Also of importance is that the property is not sold and, presumably, in the meantime the neighbours are continuing to live in their home. In other words, the original tribunal’s concern about ongoing anxiety and no longer feeling safe in their own home remains true regardless of the listing notice. Accordingly, we dismissed the application for leave to adduce the further evidence.
The appellant also sought leave to give further oral evidence from herself about the circumstances of her two young adult children and the impact on them of the original tribunal’s decision to terminate the appellant’s tenancy. After the Appeal Tribunal’s exchange of views with Ms Kelly about that application, it was not pressed.

Ground 1: reliance on “outdated” evidence.

The appellant contended the original tribunal erred by relying on victim impact statements provided by the neighbours regarding the impact of the appellant’s conduct towards them in circumstances where the statements were six months old at the time of the original hearing. The appellant characterised the statements as “outdated” for this reason.[1]
[1] Appellant’s outline of submissions filed 10 October 2023 at [20]
In the course of the appeal hearing on 7 November 2023, the appellant accepted (appropriately) that the preconditions under section 51(d) of the Residential Tenancies Act 1997 (the RT Act) were, and remained, met regardless of the date of the statements. In particular, the appellant accepted her conduct “may continue to have an ongoing impact on neighbours”.[2]
[2] Appellant’s outline of submissions filed 10 October 2023 at [21]
The appellant noted, however, that termination, where the preconditions in section 51(d) are met, is not mandatory and there remains an overarching discretion whether to make a termination and possession order (the T&P Order). The original tribunal acknowledged the correctness of that proposition, as do we.[3]
[3] Commissioner for Social Housing v Krutsky [2023] ACAT 55 at [63]
The appellant submitted that, by failing to take into account the date of the victim impact statements, in the sense there was scope for the impact of the appellant’s conduct on the neighbours to “shift with time”,[4] the original tribunal erred in the exercise of its discretion to make the T&P Order.
[4] Appellant’s outline of submissions filed 10 October 2023 at [22]
The appellant acknowledged the original tribunal considered many factors, when deciding whether to exercise the discretion.[5] However, the appellant submitted that whether to exercise the discretion was finely balanced and that, had the original tribunal taken into account the statements were outdated and so should have been given less weight when determining which way to exercise the discretion, the lack of weight that should have been given to the outdated statements should have ‘tipped the scales’ in favour of not exercising the discretion.
[5] Commissioner for Social Housing v Krutsky [2023] ACAT 55 at [64]-[75]
We were not persuaded the original tribunal erred in the way submitted or, if it did, the error affected the outcome.
First, there is no evidence the original tribunal did not take into account the dates of the statements. Indeed, the evidence is to the contrary. The original tribunal stated it relied on the statements,[6] which implicitly means it read them - meaning not only their content but also the date on which they were written.
[6] Commissioner for Social Housing v Krutsky [2023] ACAT 55 at [62]
Second, there is no suggestion the original tribunal was asked to discount the weight it should give to the statements by reason of their dates. We were not persuaded the original tribunal erred by not giving less weight to the statements by reason of their dates when it was not asked to do so.
Third, the statements go only to the impact of the appellant’s conduct on the neighbours. For this reason, the submission that less weight should have been given to the statements because of their date, in the sense that the impact may have shifted with time, contradicts the appellant’s acceptance that the conduct may have an ongoing impact on the neighbours. In other words, regardless of the date, the described impacts remain materially relevant.
Finally, the original tribunal relied on many and varied factors when deciding whether to exercise the discretion and make the T&P order. Those factors included an acceptance that the neighbours “no longer feel safe in their home” and that the risk of ongoing interference of the kind the neighbours previously experienced “is precisely the kind of circumstance that the power to evict in section 51 (d) is intended to address”.[7] After considering this and all the other factors the original tribunal took into account, when deciding whether to exercise the discretion, we were not persuaded – even if the original tribunal did not take into account the dates of the statements (which we do not accept) – it would have made any difference to the outcome, namely the exercise of the discretion to terminate.
[7] Commissioner for Social Housing v Krutsky [2023] ACAT 55 at [74]
For these reasons, ground 1 fails.

Ground 2: denial of procedural fairness

The appellant submitted the original tribunal erred in unreasonably refusing the request for an adjournment to allow her to access legal representation. The appellant accepted that whether to grant or refuse the request for an adjournment was a statutory discretion under section 63 of the ACT Civil and Administrative Tribunal Procedures Rules. With acknowledgement of that discretion, the appellant submitted the original tribunal erred because its exercise of the statutory discretion was unreasonable in the sense that it lacked “an evident or intelligible justification”.[8]
[8] Appellant’s outline of submissions filed 10 October 2023, citing Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76] (Li)
The appellant relied on many factors for why the refusal to grant the adjournment was unreasonable. The appellant appeared to acknowledge that none of the factors, by themselves, grounded a conclusion that the refusal was unreasonable but submitted “when viewed cumulatively” that conclusion should be drawn.[9]
[9] Appellant’s outline of submissions filed 10 October 2023 at [34]
In considering this ground, we accept that a statutory discretion must be exercised reasonably in the sense that it must be “legal and regular, not arbitrary, vague and fanciful”.[10] It is not enough that we, as the Appeal Tribunal, would have taken a different course in the sense that we would or may have granted the adjournment had we been asked to exercise the discretion. To succeed on this ground of appeal, the appellant needed to show a failure to exercise the discretion reasonably in the sense that the outcome is unreasonable or plainly unjust.
[10] Li at [65]
In Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li), on which the appellant relied,[11] the High Court added:
Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[12]
[11] Appellant’s outline of submissions filed 10 October 2023 at [32]-[33]
[12] Li at [76]
When reading the appellant’s submissions as a whole, it became apparent the appellant was more contending the decision not to adjourn was legally unreasonable in the sense of being plainly unjust and contrary to the Tribunal’s obligations to resolve proceedings as quickly as possible “as is consistent with achieving justice”, per section 6(d) of the ACT Civil and Administrative Tribunal Act 2008, rather than lacking “an evident or intelligible justification”. As for the latter proposition, the original tribunal’s reasons for refusing the adjournment are plainly “evident and intelligible”.[13]
[13] Commissioner for Social Housing v Krutsky [2023] ACAT 55 at [25]-[30]
Turning to the question whether the decision not to adjourn so as to allow the appellant to obtain legal representation was legally unreasonable, we accept the appellant has properly set out the relevant principles.[14]
[14] Appellant’s outline of submissions filed 10 October 2023 at [31], quoting WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2] (WZAVK).
In particular, a lack of legal representation is not of itself a reason to adjourn;[15] there is no “right” to legal representation;[16] a wish to obtain legal representation is a relevant factor in considering whether an adjournment should be granted;[17] and factors relevant in determining “the weight to be given” to a person’s wish to obtain legal representation may include:
(a)the amount of time the party has had to obtain legal representation;
(b)the steps the party has taken to obtain such representation during that time;
(c)the explanation for any delay in that respect;
(d)the utility of any adjournment, including the likelihood of the appellant obtaining legal representation; and
(e)the time required for the appellant to do so.[18]
[15] Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19]
[16] EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 at [18]
[17] BSY16 v Minister for Immigration and Border Protection [2019] FCA 140 at [5]
[18] Appellant’s outline of submissions filed 10 October 2023 at 31, citing BSY16 v Minister for Immigration and Border Protection [2019] FCA 140 at [5] and Pallas v Minister for Home Affairs [2019] FCAFC 149 at [42]
Our concern was with the first three factors, each of which counted against error on the part of the original tribunal by refusing the adjournment.
In relation to the first factor, the Commissioner’s application for a T&P order was lodged on 1 November 2022, listed for hearing on 10 November 2022, adjourned to 15 November 2022, adjourned again to 26 July 2023 and adjourned again to 17 August 2023 when it was heard. It follows, in our view, the appellant had had approximately 10 months to obtain legal representation in response to the application for a T&P order. In our view, for an application of that kind, notwithstanding the circumstances of the appellant’s criminal proceedings and her ill health on the originally listed hearing on 26 July 2023, 10 months was sufficient time within which the appellant could have obtained legal representation. It is relevant, in our view, that it was not until the commencement of the hearing on 17 August 2023 that the appellant sought an adjournment in order to facilitate Legal Aid representing her on the next occasion.
At the appeal hearing, the appellant personally said she was legally represented by Canberra Community Law prior to the hearing, but they ceased to act for her and so she had to seek alternative legal representation, hence the request at the commencement of the hearing for the adjournment. We were not persuaded by that submission as demonstrating error on the part of the original tribunal. We were not taken to any transcript of the original proceeding evidencing the original tribunal was told of that circumstance, nor could we find such a reference in the transcript. We see no error in the original tribunal not taking into account a circumstance it did not know.
In relation to the second factor, the appellant told the original tribunal she had spoken to Legal Aid “this morning” – meaning the morning of the hearing.[19] It seems to follow that the appellant had only recently taken steps to obtain legal representation by Legal Aid, notwithstanding her knowing since 26 July 2023 that the application for the T&P order had been adjourned to 17 August 2023. In other words, the lack of legal representation at hearing was primarily because the appellant had not sought legal assistance until close to the commencement of the hearing or in time for legal representation to be provided.
[19] Transcript of proceeding, 17 August 2023, page 2, line 24
Referring to the third factor, the appellant submitted the original tribunal erred by not granting an adjournment because she was not given an opportunity “to explain facts material to the delay”, meaning her delay in seeking legal representation.[20] The proposition, on its face, was untenable: the appellant attended the hearing, sought an adjournment, and was given every opportunity to explain her delay in seeking legal representation. All that can be said is that she did not do so.
[20] Appellant’s outline of submissions filed 10 October 2023 at [34](f)
At the appeal hearing, Ms Kelly adjusted the alleged error by submitting, where the explanation for delay in seeking legal representation is a relevant consideration when deciding to grant an adjournment,[21] the original tribunal had a duty to ask the appellant for the explanation and erred by not doing so.
[21] WZAVK at [2](4)(c)
On enquiry, Ms Kelly could not refer us to any legal authority in support of that proposition, and we were not persuaded by it.
First, the submission does not fairly reflect the Federal Court’s reasons in WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 (WZAVK). Jackson J commented that matters relevant in determining the weight to be given to a wish to obtain legal representation “may include” the explanation for delay, meaning explanation is not a mandatory consideration.[22] It “may” arise in some cases, but not in others, depending on the circumstances.
[22] WZAVK at [2](4)
More importantly, we accept the tribunal could in an appropriate case enquire of the person why they had not earlier sought legal representation, but we do not accept it has a legal duty to do so or errs by not doing so. In our view, where the grant or refusal of an adjournment is a discretionary decision to be made after weighing up relevant considerations, the tribunal’s only obligation is to consider whether to adjourn by reference to the grounds put forward by the person seeking the adjournment, together with any other considerations it chooses to take into account.
In this case, the original tribunal was asked for an adjournment by reason of the factors listed in [25] of its reasons, and it responded to those factors. The appellant never put forward any problem or difficulty she had had in obtaining legal representation. Her sole position was that she wanted to obtain it, and so wanted an adjournment. We see no error in the original tribunal responding to the application by reference to the manner in which was made.
We turn next to the many factors on which the appellant relied for why it was unreasonable for the original tribunal not to grant the adjournment.
The appellant contended that because she was in custody, her ability to represent herself was compromised by the inherent restrictions of her closed setting, and so she should have been given an adjournment.[23] The submission was unpersuasive. Where the appellant never asked for an adjournment for this reason, we do not accept the original tribunal erred by not granting an adjournment for a reason that was not put forward. Also, we were not taken to any evidence to suggest the appellant’s ability to represent herself was, in fact, compromised: it appeared to be advanced as something self-evident that necessarily followed from the appellant’s closed setting. We disagree. Whilst that might sometimes be so in some cases, in this case the original tribunal’s reasons for decision, especially the acknowledgement of the appellant’s eloquent submissions, are inconsistent with the proposition that the appellant’s ability to represent herself was compromised by her closed setting.[24]
[23] Appellant’s outline of submissions filed 10 October 2023 at [34](a)(i)
[24] See Commissioner for Social Housing v Krutsky [2023] ACAT 55 at [29], [33], [39]-[49]

Next, the appellant submitted her disadvantage was “compounded” by only being afforded one week to review the material relied on by the Commissioner.[25] This argument, too, was unpersuasive for the reasons given by the original tribunal.[26] At the appeal hearing, we were not taken to any document in the Commissioner’s bundle to support the submission of a compounded disadvantage by late provision of the bundle.
[25] Appellant’s outline of submissions filed 10 October 2023 at [34](1)(ii)
[26] Commissioner for Social Housing v Krutsky [2023] ACAT 55 at [27]
Next, the appellant submitted the making of a T&P order was “of serious import” to the appellant’s interests.[27] That is clearly true, but we do not accept it is a reason, by itself or cumulatively with other reasons, for why an adjournment should have been granted. As mentioned, the appellant had known about the application for months. The serious import of the proposed order, one would think, would have motivated the appellant to seek legal representation in time for representation to be provided at the hearing.
[27] Appellant’s outline of submissions filed 10 October 2023 at [34](1)(iii)
Next, the appellant submitted the consequences of making of a T&P order were “all the more significant” for the appellant because it was likely to impact negatively on her prospects of obtaining parole.[28] Again, that may be true, but it was not put forward as a reason for an adjournment. Again, we see no error in the original tribunal not adjourning for a reason that was not put. Also, the appellant was aware of that consequence and relied on it for why a T&P order should not be made.[29]
[28] Appellant’s outline of submissions filed 10 October 2023 at [34](1)(iv)
[29] Commissioner for Social Housing v Krutsky [2023] ACAT 55 at [47] and [66]
Next, the appellant submitted the original tribunal erred by not granting an adjournment because it denied her an opportunity to seek assistance from a lawyer to prepare a witness statement in advance of the hearing. The appellant contended this would have allowed her to “articulate more fulsomely her feelings of remorse and better demonstrate her understanding of her neighbour’s concerns”.[30] We repeat our reasons for why this submission is unpersuasive. The appellant had had months to seek assistance from a lawyer to prepare a witness statement. This circumstance was never advanced as a reason for an adjournment. The appellant was given every opportunity to speak about her feelings of remorse and her understanding of her neighbours’ concerns, and did so in a manner the original tribunal described as “eloquent”.[31]
[30] Appellant’s outline of submissions filed 10 October 2023 at [34](b)
[31] Commissioner for Social Housing v Krutsky [2023] ACAT 55 at [33] and [48]
Next, the appellant submitted the original tribunal erred by not granting an adjournment because it caused her to lose the opportunity to put a submission that the original tribunal should either adjourn or decline the making of a T&P order until the Commissioner had given consideration to transferring the appellant to different accommodation. The appellant submitted it was “noteworthy” that the Commissioner’s representative remarked that a transfer “would not be put through or entertained” which should have been a factor weighing against the exercise of the discretion to terminate.[32]
[32] Appellant’s outline of submissions filed 10 October 2023 at [34](c)
In the context of whether the original tribunal erred by not granting an adjournment, this submission had many problems. First, it was not put forward as a reason for an adjournment. True, the appellant might not have been aware of that possible submission, but that is true for a host of different submissions that a legal representative for the appellant might have made. We see no error in the original tribunal not granting an adjournment for a reason that was never put. Also, the original tribunal considered the prospect of a transfer as a reason for why a T&P order should not be made and concluded it was not a sufficient basis to decline exercising the discretion.[33] In other words, even if an adjournment had been given and a legal representative had subsequently put the submission, it would likely have been rejected.
[33] Commissioner for Social Housing v Krutsky [2023] ACAT 55 at [77]
Last, the transcript of the original hearing does not support the proposition that the Commissioner’s representative said a transfer “would not be put through or entertained”.[34] In answer to a question from the original tribunal “has the prospect of a transfer been explored”, the Commissioner’s representative said “I understand that it may have. My instructions are fairly limited but simply that she may reapply but not that a transfer would be put through or entertained”.[35] In our view, on a fair reading, the representative was saying the appellant could apply for a transfer but there was no assurance it would be put through or entertained, rather than saying it would not.
[34] Appellant’s outline of submissions filed 10 October 2023 at [34](c)
[35] Transcript of proceedings dated 17 August 2023, page 15, lines 26-30
Next, the appellant submitted the original tribunal erred by not granting an adjournment because there was no evidence to suggest a further adjournment for a brief duration was likely to significantly prejudice the Commissioner or adversely affect the well-being of the appellant’s neighbours. Whilst that may have been a consideration, save to observe it is likely the ongoing prospect of the appellant returning to the property would have caused continuing anxiety for the neighbours, it was not the only consideration. As the original tribunal observed, whether to adjourn for a fourth time involved a weighing of considerations only one of which was the prejudice, or not, to others.[36] We see no error in the original tribunal not adjourning, notwithstanding the lack of or limited prejudice to others.
[36] Commissioner for Social Housing v Krutsky [2023] ACAT 55 at [30]
Next, the appellant submitted the original tribunal erred by not granting an adjournment because she said she wished to seek assistance from Legal Aid, was in the process of obtaining that assistance, and had been told to seek an adjournment because representation could not be facilitated on the day. Whilst the original tribunal commented on the absence of evidence to support the prospect of Legal Aid’s representation, it did not reject the appellant’s claim about wishing to seek legal representation and dealt with it on its merits as a ground for whether an adjournment should be granted.[37] Whilst we accept an adjournment for this reason was a relevant consideration, it was not the only consideration the original tribunal needed to take into account - as the original tribunal pointed out.[38]
[37] Commissioner for Social Housing v Krutsky [2023] ACAT 55 at [28]
[38] Commissioner for Social Housing v Krutsky [2023] ACAT 55 at [28]
Where, for the reasons given, we were not persuaded any of the factors the appellant advanced for why the original tribunal erred in not granting the adjournment had force, it follows that the cumulative effect of them does not improve the submission. We were not persuaded the decision to refuse the adjournment was legally unreasonable.
For these reasons, ground 2 fails.
Where we were not satisfied the original tribunal erred in making a T&P order, it was neither necessary nor appropriate to consider the subsequent submissions that were put about relief if error were established.
………………………………..

Presidential Member G McCarthy
For and on behalf of the tribunal

Date of hearing:	7 November 2023
Solicitors for the Applicant:	Ms S Kelly, Legal Aid ACT
Solicitors for the Respondent:	Mr D Bloomfield, ACT Government Solicitor