LUCAS & COMMISSIONER for SOCIAL HOUSING in the ACT
[2010] ACAT 11
•1 March 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LUCAS v COMMISSIONER FOR SOCIAL HOUSING IN THE
AUSTRALIAN CAPITAL TERRITORY (Residential Tenancies) [2010] ACAT 11
AA 35 of 2009
Catchwords: RESIDENTIAL TENANCIES – ACT Civil and Administrative Tribunal Act 2008 (ACT) s 38, s 39 – private hearing – de-identified witness statements – interests of justice
Legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT)
Case Law: Scott and Scott (1913) AC 417
Johnston and Cameron [2002] FCAFC 251
Herald and Weekly Times Ltd and Gregory Williams [2003] FCAFC 217
Commissioner for Social Housing in the ACT and Pye [2009] ACAT 48
Tribunal: Mr C.G. Chenoweth Acting Presidential Member
Date of Orders: 1 March 2010
Date of Reasons for Decision: 11 March 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 35 of 2009
BETWEEN:
JOYCE MARY LUCASAppellant
AND:
COMMISSIONER FOR SOCIAL HOUSING
IN THE AUSTRALIAN CAPITAL TERRITORYRespondent
TRIBUNAL:Mr C.G. Chenoweth
DATE: 1 March 2010
ORDER
That pursuant to section 39(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) the witness statements filed by the respondent in this matter and specified in Annexure A to the application of the Respondent dated the 3rd February 2010 be de-identified for the public record by the exclusion of the names and addresses of the authors.
That any witnesses whose statements have been de-identified pursuant to order 1 also be disclosed to the appellant in the de-identified form.
That pursuant to section 39(5)(c) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) any witnesses whose statements have been de-identified pursuant to order 1 and who are required to attend for cross examination by the appellant’s legal representative be allowed to give their evidence in a hearing closed to the public and in the absence of the appellant, but in the presence of the appellant’s legal representative.
That the matter be heard in the Tribunal’s hearing rooms.
…………………………….
Mr C.G. Chenoweth
Acting Presidential Member
REASONS FOR DECISION
This is an interlocutory application by the respondent for certain evidence in this appeal to be given confidentially, and without the appellant being present.
On the 24 November 2009, the Tribunal ordered that the appellant’s residential tenancy from the respondent be terminated and possession of the premises was to be given to the respondent by 4 PM on the 24th November 2009. The order was suspended for a period of 21 days. There were further orders relating to dealing with any uncollected goods on the premises after termination.
On 16 December 2009, the appellant appealed against the order for eviction referred to in the above paragraph, and asked that the order be set aside and that any warrant for eviction be stayed.
The General President of the Tribunal considered the matter further on the 22 January 2010. The respondent then foreshadowed that an application would be made under section 39 (2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (‘the ACAT Act’), that certain evidence in the appeal should be given in confidence.
On 29 January, the matter was listed before me. I made orders that the interlocutory application under section 39 of the ACAT Act was to be adjourned to the 4th February 2010, and that the application and witness statement/summaries of evidence were to be filed by 3 February 2010. I also ordered that the appeal be dealt with as a new application.
On 3 February 2010, the respondent filed the foreshadowed interlocutory application. The orders sought were as follows:
“1. That the witness statement filed by the respondent in this matter and specified in annexure A to this application are de-identified for the public record by the exclusion of names and addresses of the authors pursuant to section 39(2)(b).
2. That any witnesses whose statements have been de-identified pursuant to order [1], also be disclosed to the applicant only in de-identified form pursuant to section 39(2)(c).
3. That any witnesses whose statements have been de-identified pursuant to order [1] and who are required by the applicant to attend cross examination by her legal representative, be allowed to give their evidence in a hearing closed to the public and in the absence of the applicant but not her legal representative pursuant to section 39(2)(a).
4. That the hearing of this appeal be held at a location away from the tribunal's usual place of business in order to ensure witness anonymity.”
At the hearing of the interlocutory application, the respondent was represented by counsel and the applicant by a solicitor from the Legal Rights and Welfare Centre. Statements from nine witnesses were filed in an identified as well as de-identified form, and copies of these had been served upon the solicitor for the appellant. The solicitor for the appellant properly undertook not to disclose the material in the statements to his client prior to a decision on the interlocutory application.
The statutory provisions.
Section 38 of the ACAT Act provides as follows:
“ Hearings usually in public.
(1) The hearing of an application by the tribunal must be in public.
(2) However, this section does not apply to a hearing, or part of a hearing, if the tribunal makes an order under section 39 in relation to the hearing, or part.”
Section 39 provides:
“ Hearings in private or partly in private.
(1)This section applies in relation to an application, or part of an application, if the tribunal is satisfied that the right to a public hearing is outweighed by competing interests.
(2)The tribunal may, by order, do one or more of the following:
(a) direct that the hearing of the application, or part of the hearing, take place in private and give directions about the people who may be present;
(b) give directions prohibiting or restricting the publication of evidence given at the hearing, whether in public or private, or of the matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing;
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to the application of evidence given at the hearing, or of a matter contained in a document lodged with the tribunal or received in evidence by the tribunal for the hearing.
(3)The tribunal may make an order under subsection (2) on application by a party or on its own initiative.
(4)– [ penalty provision.]
(5)For this section, the right to a public hearing is outweighed by competing interests if the tribunal is satisfied that the application, or part of the application, should be get kept private --
(a) to protect morals, public order or national security in a democratic society; or
(b) because the interests of the private lives of the parties require the privacy; or
(c) to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.”
Previous Authorities.
The question of whether proceedings should be held partly or wholly in private has been the subject of consideration in the number of authorities referred to in the hearing by the parties. As a general principle, proceedings of courts should take place in open court: Scott and Scott (1913) AC 417. This is reflected in the general principle of the conduct of matters before the tribunal set out in section 38 of the ACAT Act.
This principle was considered at length by the full court of the Federal Court of Australia in a matter of Johnston and Cameron [2002] FCAFC 251. In that case, a union official sought an order restricting publicity of evidence to be given in a case, on the basis that publication was likely to cause embarrassment to himself and his family. In that case, Justices Branson, Tamberlin and Finkelstein reviewed a number of authorities on the principle of when it was appropriate to make an order restricting the publication of evidence. Having considered all of the factors relevant to that case, they determined that an order should not be made.
The decision in Johnston and Cameron referred to the decision of Australian Broadcasting Commission and Parish [1980] FCA 33. Justice Branson in Johnston and Cameron quoted with approval the following extract from the judgement of the chief justice of the Federal Court:
“ Open justice is the underlying assumption of section 50, not the criterion it prescribes. The section refers to preventing “prejudice to the administration of justice”. This is not a reference to the need to preserve open justice. It is, as I have already suggested, a reference to another public interest, that is, the public interest that the court should endeavour to achieve effectively the object for which it was appointed: to do justice between the parties.”
The decision in Johnston and Cameron was considered and approved in the full court decision of Herald and Weekly Times Ltd and Gregory Williams [2003] FCAFC 217.
The tribunal has also considered the reasons of Senior Member Anforth of this tribunal in a matter of Commissioner for Social Housing in the ACT and Pye [2009] ACAT 48, where the authorities on this and other matters were reviewed.
Basis for the application.
The applicant is one of a number of tenants of the respondent, living in a housing complex in the Territory. The housing units are close together, and constitute a community of elderly people. The statements filed indicate that a number of them are unwell and have medical conditions which may be exacerbated by stress.
It was stressed by the respondent's counsel, and is a matter that the tribunal can reasonably take account of, that people living in such circumstances are very reluctant to give evidence against their neighbours in cases which might result in eviction, because of a fear (whether real or imagined) of retribution against them in some form for having done so.
The alleged conduct of the appellant which has led to this hearing may be summarised as a repeated failure by the appellant to prevent significant numbers of other people living in her premises on an ad hoc basis, the encouragement or tolerance of a number of associates and/or relatives to be present in or around her unit and to conduct themselves in socially unacceptable ways such as drinking in public, shouting, fighting, engaging in sexual relations and riding a motorcycle through the complex. The respondent contends that the appellant could and should have prevented this conduct, as the conduct amounts to a breach of the conditions of the lease. At this stage, and as the appeal is to be conducted as a new hearing, I express no views about the accuracy of these allegations.
The substance of the respondent's argument for an order restricting the identity of witnesses and the evidence is that the other residents of the housing complex are so concerned about the prospect of retribution either from the appellant or from her associates and/or family that they are not prepared to give evidence to this tribunal unless their identities are suppressed from the respondent. It should be noted that the order does not seek to restrict the witnesses from the obligation of giving evidence before the tribunal or being subject to cross examination by the counsel for the appellant. However, the respondent has advised the tribunal that if the order is not granted, the respondent’s witnesses will not give evidence.
The appellant has filed an affidavit denying in general terms the claims which would constitute a breach of the lease. If the respondent’s witnesses did not give evidence, this would be the only evidence before the tribunal.
Issues for consideration
In determining the application, I must weigh up the effect of either agreeing or not agreeing to the application not only on the parties themselves, but also whether the object of the tribunal of resolving disputes will be achieved. As noted above, and as expressed in the policy of the ACAT Act set out in section 38, the hearings of the tribunal should generally be in public. This would mean that the appellant and any of her friends and associates could attend at the tribunal hearing, could identify the witnesses and be aware of their evidence. It is this prospect which gives rise to the application.
It may be taken that the respondent, as the public authority responsible for housing of people in the territory, does not make this application lightly. Further, the respondent has an obligation both under the terms of the leases granted to the other residents of the complex and as a matter of public policy to ensure that the interests of all of the residents of the complex are taken into account in deciding whether one particular resident has breached the terms of the lease and her continuing occupation is causing unreasonable distress or pressure on the other residents.
Balanced against this is a serious issue of the eviction of an elderly lady from her public housing residence.
The provisions of section 39 of the ACAT Act indicate that notwithstanding the general principle in relation to hearings as set out above, there are circumstances where it is appropriate that an order is made.
Application of the law
The eviction of an elderly woman from her home is a serious matter. It should only be undertaken as a last resort, where all other attempts at voluntarily finding alternative accommodation that may be more suitable, or achieving a resolution of the differences by way of negotiation and commitment to change the behaviour, have been unsuccessful. The seriousness of the consequences for the appellant is such that I must give primary consideration to this factor. It is necessary for the respondent to show that in the circumstances of this case, publicity would "otherwise prejudice the interests of justice." (See section 39(5)(c) ACAT Act.)
While the interests of the appellant are serious and should be given primary consideration, they are not the only interests to be considered. The evidence filed with the tribunal indicates that there have been long-running difficulties in this housing complex, with frequent attendance by police to attempt to identify and restrain the people alleged to be engaged in antisocial conduct. The statements filed with the tribunal indicate that there are a significant number of elderly people who are in fear of people associated with the appellant, and this quiet enjoyment of their own premises has been affected by the conduct complained off. They also have a right to have their interests considered in the balancing process that is required in any application under section 39.
The other interests that I have taken into account are that it is appropriate for this dispute and the issues underlying it to be resolved one way or the other. If the respondent does not give a response to the appeal because of fears by witnesses preventing them from giving evidence, the underlying issues will not be resolved and the unsatisfactory situation may continue. It is not in the interests of justice for there to be a legitimate dispute, affecting not just the appellant but a number of other people in the immediate vicinity, which cannot be dealt with because of a concern of intimidation preventing the giving of evidence to the tribunal.
Having carefully considered the material which has been filed, it is clear that there will be a basic dispute of evidence between the appellant and witnesses for the respondent, as to whether or not the conduct alleged has taken place. This conflict of evidence can best be resolved by a hearing, in which witnesses for both sides can be subject to cross examination and their allegations fully tested. Nothing in the application by the respondent under section 39 would prevent this taking place in relation to the witnesses called by the respondent. Counsel for the appellant would still be entitled to cross-examine them on the statements that they have filed with the tribunal.
I am therefore satisfied that the right to a public hearing is outweighed by the need to ensure that the matter proceeds. I am satisfied that privacy is strictly necessary, in the special circumstances of the application, because publicity would otherwise prejudice the interests of justice.
In the circumstances, I have determined that orders 1, 2 and 3 in the application of 3 February 2010 and filed in the tribunal, should be granted.
Order number 4 seeks a hearing of the matter away from the tribunal's usual place of business. Counsel for the respondent argued that this would give best protection to those witnesses, who would otherwise have to attend at the tribunal's offices and might therefore be seen by the appellant or other people associated with her, either entering or leaving the building or at the public parts of the tribunal's hearing rooms.
As a matter of principle, hearings of the tribunal should be held in its own rooms unless there is some very substantial reason not to do so. A witness may be in hospital and unable to attend, or maybe in some other restricted circumstances. However, in this case I am satisfied that appropriate arrangements can be made with the registry of the tribunal for the witnesses to enter the tribunal's present offices and remain in a restricted area, coming into the hearing room itself without the need to go through or remain in the public areas. When the matter is listed for hearing, suitable arrangements will be made with the registry and the respondent concerning the arrival and departure of these witnesses, to protect their identity.
…………………………….
Mr C.G. Chenoweth
Acting Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AA 09/35
APPLICANT: JOYCE MARY LUCAS
RESPONDENT: COMMISSIONER FOR SOCIAL HOUSING IN THE AUSTRALIAN CAPITAL TERRITORY
COUNSEL APPEARING: APPLICANT: Emerson-Elliott
RESPONDENT: Walker
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: MR C.G. CHENOWETH
DATE/S OF HEARING: 4 February 2010 PLACE: CANBERRA
DATE/S OF DECISION: 1 March 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
2
0