PESI & COMMISSIONER for SOCIAL HOUSING in the ACT (Residential Tenancies)
[2012] ACAT 61
•3 September 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PESI & COMMISSIONER FOR SOCIAL HOUSING IN THE ACT (Residential Tenancies) [2012] ACAT 61
AA 12/23
AA 12/31
RT 11/924
Catchwords: RESIDENTIAL TENANCIES – appeals from Tribunal decisions - application for extension of time to lodge appeal from ex parte orders – appeal hearing: hearing as a new application or review of all or part of the original hearing.
List of legislation: ACT Civil and Administrative Tribunal Act 2008
ss.6, 7, 44, 56, 79 & 82
Residential Tenancies Act 1997 (ACT) s.49
List of Regulations: ACT Civil and Administrative Tribunal Procedure Rules 2009
(No. 2)
Rules 14, 21 & 22
List of cases: ACT Human Rights Commission v Raytheon Australia Pty Ltd [2009] ACTSC 55
Allesch v Maunz [2000] HCA 40
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223
Australian Coal & Shale Employees Federation v Commonwealth [1953] 94 CLR 621
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] 203 CLR 194
Culley v Australian Securities and Investments Commission [2008] FCA 1784,Dix & anor v Crimes Compensation Tribunal [1993] 1 VR 297
Gallo v Dawson [1990] 93 ALR 13Girdler & Radoll and Bird
(Residential Tenancies)
[2011] ACAT 5House v King (1936) 55 CLR 499
Hua-Aus Pty Ltd v Commissioner of Taxation [2009] FCA 74Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176
Kendling v Kendling [2008] FamCAFC 47Magain and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 195
Newby v Moodie (1988) 83 ALR 523
Singh v Minister for Immigration and Ethnic Affairs
[1996] FCA 101The Medical Practitioner and the ACT Medical Board (Occupational Discipline) [2010] ACAT 63
Thornthwaite v Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 11Zhang & Yuan v Koh (Civil Disputes) [2010] ACAT 6
Tribunal: Ms E. Symons, Presidential Member
Date of Orders: 3 September 2012
Date of Reasons for Decision: 3 September 2012
IN THE ACT CIVIL & )
ADMINISTRATIVE TRIBUNAL ) FILE NUMBER
AA 12/23
AA 12/31
RT 11/924
| WILLIAM PESI |
| Appellant/Tenant |
| THE COMMISSIONER FOR SOCIAL HOUSING IN THE ACT |
| Respondent/Lessor |
Tribunal : Ms E. Symons, Presidential Member
Date of order: 3 September 2012
ORDER
In appeal matter AA 12/23, the appellant is granted leave to appeal the decision of 20 February 2012 pursuant to Rule 14(1) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No. 2).
Pursuant to section 82(b) of the ACT Civil and Administrative Tribunal Act 2008 ,appeal matter AA 12/23 be heard as a review of all of the original decision of 20 February 2012 with the provision that any new evidence provided is limited to the objective circumstances surrounding the decision at the time it was made.
Pursuant to section 82(b) of the ACT Civil and Administrative Tribunal Act 2008, appeal matter AA 12/31 be heard as a review of all of the original decision of 24 May 2012.
……………………………..
Ms E. Symons
Presidential Member
ACT Civil & Administrative Tribunal
REASONS FOR DECISION
Background
The appellant, Mr Pesi, is a tenant of the Commissioner for Social Housing, the respondent. On 6 December 2011, the Tribunal commenced hearing an application by the Commissioner for an order under section 49 of the Residential Tenancies Act 1997 (RT Act) in relation the appellant’s tenancy. That is the provision whereby the Tribunal may, after non-payment of rent by a tenant, make an unconditional or a conditional termination and possession order in relation to the tenancy.
The appellant was present at the hearing on 6 December 2011. At the conclusion of the hearing, the Tribunal adjourned the matter part-heard to
10 am on 20 February 2012, and made interim orders requiring the appellant to, among other things, pay a newly assessed rent of $116.40 per fortnight plus rental arrears of $30 per fortnight.
In accordance with the usual procedure, the orders of 6 December 2011 were engrossed by the Tribunal and sent by ordinary post to both the Commissioner and the appellant. The Commissioner received a copy; the appellant says that he did not receive his copy.
When the matter was called on 20 February 2012 there was no appearance by or on behalf of the appellant. The Tribunal proceeded to determine the matter in his absence, and made an unconditional termination and possession order.
On 23 March 2012, the respondent requested a warrant of eviction from the Tribunal as the appellant had not vacated the premises in accordance with the order of 20 February 2012. The warrant was granted and served on the appellant on that date.
On 28 March 2012, the appellant filed an application seeking orders to set aside the unconditional termination and possession order of 20 February 2012, and to stay execution of the warrant. The respondent says it received notice of this application on 4 April 2012.
The parties attended a directions hearing on 9 May 2012. The respondent says, as the appellant was then unrepresented, it indicated to him that an appeal may be a more appropriate avenue and, given the short length of time that had expired, it would not oppose an application for leave to appeal out of time. The respondent says it, again, indicated its position to the appellant when he was represented on 9 May 2012. The appellant decided to proceed with the application under section 56(c)(i) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
On 24 May 2012, the Tribunal made orders dismissing the appellant’s application to set aside the unconditional termination and possession order made in his absence on 20 February 2012.
On 21 June 2012, the appellant lodged an appeal from the decision made on
24 May 2012 pursuant to section 79 of the ACAT Act. The Tribunal allocated file number AA12/23 for this appeal.
On 26 June 2012, the appellant lodged an appeal from the decision made on 20 February 2012 pursuant to section 79 of the ACAT Act and an application for leave to appeal out of time pursuant to Rule 22 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No. 2) (“the Rules). The Tribunal included this appeal and application in file number AA12/23.
On 16 July 2012, at a directions hearing, the Tribunal made the following orders in relation to each appeal:
i.Appellant in appeal lodged on 26 June 2012 (from decision 20 February 2012) and in application for leave pursuant to Rule 22, file and serve all material intended to be relied upon in application for leave and in relation to section 82 of the ACAT Act by close of business 31 July 2012.
ii.Respondent file and serve all material in reply by close of business 14 August 2012.
iii.Appellant file and serve all material in response to Respondent’s material by 21 August 2012.
iv.Decision on leave application and section 82 of the ACAT Act is reserved to 3 September 2012, with decision to be published.
v.Appeal lodged 21 June 2012 from decision dated 24 May 2012 is to be allocated a separate ACT Civil and Administrative Tribunal file number and is to be listed for hearing on 11 September 2012 at 10.00 am for one day.
The Tribunal subsequently allocated file number AA12/31 for the appeal lodged on 21 June 2012. The appellant and the respondent have filed detailed submissions which the Tribunal has taken into consideration.
Leave to Appeal Out of Time
The Law
A party to an application may appeal a decision in relation to that application within the Tribunal pursuant to Part 8 of the ACAT Act.
The Rules set out the time requirements for filing a notice of appeal in the Tribunal. Rule 14(1) states:
A notice of appeal to the Tribunal must be filed in the Tribunal not
later than 28 days after the day the decision is made, or any further
time the Tribunal allows.
Rule 22 applies if a person wants to appeal from a decision of the Tribunal out of time. Relevantly this Rule states:
22(1) This rule applies if a person wants to appeal from a decision of the
Tribunal out of time.
(2) The person must apply to the Tribunal for leave to appeal.
(3) The application for leave to appeal must be accompanied by—
(a) a written statement showing—
(i) the nature of the case; and
(ii) the questions involved; and
(iii) the reasons why leave should be given; and(b) the draft notice of appeal.
(4) If the applicant wants to present the applicant’s case for leave in
writing, the application must state that the applicant wants to do so.
The appellant’s position
The appellant submits that the Tribunal has a discretion to exercise in deciding whether to hear an appeal lodged after 28 days from the date of the decision and has referred the Tribunal to a number of cases where the exercise of this discretion was considered.
In Girdler & Radoll and Bird (Residential Tenancies) [2011] ACAT 5, the Tribunal stated at paragraph 10 that “[t]he Applicant bears the onus of demonstrating to the Tribunal the reasons why leave to appeal out of time should be granted. There must be credible reasons for the delay.”
The exercise of a discretion to hear an appeal out of time has been considered in Hua-Aus Pty Ltd v Commissioner of Taxation [2009] FCA 74 (“Hua-Aus”), which was recently applied in Magain and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 195. The court in Hua-Aus, paraphrasing the judgement in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 (“Hunter Valley Developments”), listed the following as relevant criteria:
(1) Special circumstances need not be shown but the court will not grant the
application unless positively satisfied that it is proper to do so. It is a pre-
condition to the exercise of discretion in his favour that the applicant for
extension show an ‘acceptable explanation of the delay’ and that it is ‘fair
and equitable in the circumstances’ to extend time.(2) A distinction is to be made between the case of a person who, by non-curial
means, has continued to make the decision-maker aware that he contests the
finality of the decision and a case where the decision-maker was allowed to
believe the matter was finally concluded.(3) Any prejudice to the respondent occasioned by the delay is a material factor
militating against the grant of an extension.(4) The mere absence of prejudice is not enough to justify the grant of an
extension.(5) The merits of the substantial application are properly to be taken into account
in considering whether an extension of time should be granted.
The respondent’s position
The respondent opposes the application for leave to appeal out of time against the decision of Presidential Member Stefaniak submitting that, applying the principles in Hunter Valley Developments, a grant of an extension of time to appeal is not warranted in this case.
While the respondent accepts that the decision in Hunter Valley Developments as relevant authority for the factors the Tribunal should consider when deciding whether to grant leave out of time, the respondent also submits that these factors are not conditions precedent in the exercise of the discretion (per Dix & anor v Crimes Compensation Tribunal [1993] 1 VR 297 at [299-300]) but are simply relevant considerations.
The respondent also cited the following case law:
· Kendling v Kendling [2008] FamCAFC 47 at [17] (an application to extend time to appeal), and Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 in relation to the discretion to extend time being given for the purpose of enabling a court (or Tribunal) doing justice between the parties; and
· Gallo v Dawson [1990] 93 ALR 13, 479, in which the High Court dealt with the principles which apply in an application to extend time to file a notice of appeal:
The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257 at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant..... It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
Consideration
The Tribunal will consider each of the criteria in Hunter Valley Developments.
Does the appellant have an acceptable explanation of the delay?
The delay between the date of the decision in question, 20 February 2012 and the appellant’s filing his appeal on 26 June 2012 is 127 days. He had 28 days in which to file his appeal, namely 19 March 2012. Thus, his delay appears to be about 99 days.
In that period of 99 days, the appellant claims he contacted the Tribunal after he had received a warrant for eviction on 23 March 2012 (Friday), and he acted upon the recommendation of the Tribunal’s registry staff and submitted an application on 28 March 2012 (Wednesday) to set aside the ex parte orders made on 20 February 2012. This application was submitted 37 days after the decision and, without allowing time for the decision to reach the appellant by post, some 9 days after the time for lodging an appeal expired.
The appellant’s solicitor submits that the respondent was on notice on 28 March 2012 that he was contesting the finality of the orders. The respondent states that it received notice of this application on 4 April 2012. The appellant was subsequently represented by the Welfare Rights and Legal Centre (“Welfare Rights”) at the Registrar’s Motions List on 9 May 2012 and at the hearing, on 24 May 2012, of his application to set aside the orders made on 20 February 2012.
The respondent submits that two opportunities were given to the appellant, one in April 2012, prior to his being represented by Welfare Rights, and also on 9 May 2012, when he was represented, to lodge an appeal, with the respondent not opposing an application for leave to appeal out of time, rather than him proceeding with the application pursuant to section 56(c)(i) of the ACAT Act. The appellant decided to proceed with his application pursuant to section 56(c)(i) of the ACAT Act. The respondent submits that, in essence, it was not until that application was unsuccessful that he decided to pursue this appeal, a course of action that was previously open to him in April 2012 and May 2012.
The respondent also submits that the delay in appealing the decision of 20 February 2012 was caused by the appellant’s calculated decision to pursue an alternative course of action and those circumstances do not warrant a grant of leave to appeal out of time (per Newby v Moodie (1988) 83 ALR 523(“Newby”)). The appellant disputes the relevance of this decision and the implicit suggestion that he was forum shopping and this is what caused the delay. Unlike Newby, the appellant commenced the original proceedings while unrepresented and it would seem, without any reasonable understanding that such an action might be raised to preclude him from lodging his appeal. The appellant, unlike in Newby, has not withdrawn his original application.
The appellant’s solicitor obtained the audio of the hearing on 20 February 2012 and formed the view that there were significant errors in that hearing and that it was appropriate to proceed with an appeal of that decision. They had already lodged an appeal against the Tribunal’s decision of 24 May 2012.
Having considered the evidence, the Tribunal is satisfied that while the actual delay in the appellant lodging his appeal is some 99 days, the Tribunal is also satisfied that he took reasonable steps, upon becoming aware of the decision on Friday 23 March 2012, to contact the Registry of the Tribunal and to lodge an application to set aside the orders the following Wednesday, 28 March 2012, some nine days after the appeal period had expired. The Tribunal is not satisfied from the matters before it that the appellant engaged in a calculated decision to forum shop and to delay the determination of this matter.
The Tribunal is satisfied that Mr Pesi has an acceptable explanation of the delay.
What action did the appellant take to notify the decision maker that he was contesting the finality of the decision made on 20 February 2012?
The Tribunal has already referred above (in paragraph 24) to the action that the appellant took to notify the Tribunal and the respondent that he was contesting the finality of the decision. The respondent received notice of this application on 4 April 2012.
Any prejudice to the respondent occasioned by the delay.
The appellant submits that:
· the respondent has been on notice since 28 March 2012 that the decision of 20 February 2012 was being contested;
· there cannot be said to be any real detriment to the respondent in the appeal proceeding given that the respondent has not received the benefit of the decision, and would not go on to receive that benefit if the Tribunal should not exercise its discretion in the appellant’s favour as he is proceeding with an appeal of the decision of 24 May 2012; and
· the respondent’s position in having to defend the appeal at this point in time is no different than if the appeal had been made within 28 days of 20 February 2012.
The respondent submits:
· it is entitled to rely on the finality of the decision of 20 February 2012, which was only stayed to allow an application under section 56(c)(i) to be considered; and
· the respondent should not be put to further expense and delay in dealing with an appeal on a substantive decision to terminate the appellant’s tenancy when it has reasonably assumed that the appellant did not intend to challenge the merits of the original decision; and
· the appellant still owes a significant debt to the respondent arising out of the rent in arrears, the resolution of which should not be further delayed by the current proceedings.
In reply, the appellant submits that:
· the respondent’s assumption that an appeal would not be pursued when it gave the appellant an opportunity to proceed with an appeal, instead of an application to set aside the termination and possession orders on both 11 April 2012 and 9 May 2012, was not reasonable. The respondent’s first offer was made to the appellant, an unrepresented public housing tenant, and he was probably not in a position to comprehend the significance of such an offer. Further, the respondent’s offer in May 2012 was made in the context that the Tribunal was functus and did not have the power to set aside the orders as the appellant had sought; and
· the respondent’s assumption cannot be said to have caused any real detriment to the respondent as it has yet to receive the benefit of the decision. Welfare Rights stated its intention on 24 May 2012 to lodge an appeal against Member Daniel’s decision; that appeal is being heard concurrently with this application for leave and it cannot be said that the respondent will be able to enjoy those benefits any sooner if leave to hear the appeal is not granted.
The Tribunal concurs with the appellant’s submissions and is satisfied that the respondent will not prejudiced by granting the appellant an extension of time.
Merits of the appeal
In Culley v Australian Securities and Investments Commission [2008] FCA 1784, Jessup J observed at paragraphs 5 and 6:
“.....I consider that the court should be slow to reject an application for an extension of time under s 44(2A) of the AAT Act, where otherwise the principles in Hunter are appropriately satisfied, for no reason other than that the appeal, if prosecuted, would be unlikely – even very unlikely – to succeed.”
“While it will be apparent that I do not consider that an application for an extension of time is an occasion for any more than the most cursory examination of the merits of the proposed proceeding, nonetheless I recognise that, if such an examination does reveal the proceeding as being conspicuously devoid of merit, the application might well be rejected upon the ground that the prosecution of it would, in effect, be pointless.”
The question to be asked is whether the appellant’s grounds of the appeal disclose an arguable case or are the grounds relied on conspicuously devoid of merit.
The appellant alleges that the Presidential Member based his decision upon a factual error – the non payment of rent – when the appellant had previously given evidence to the Presidential Member on 6 December 2011 explaining why he had not been able to pay the rent, which the Presiding member had then accepted by stating “....it sounds as if there’s a logical explanation as to why this has happened.”
When, on 20 February 2012, the Presidential Member reviewed the appellant’s rental payment record between 7 March 2011 and 15 November 2011, the transcript shows that there was an exchange between the Presidential Member and the respondent’s representative where both said that the appellant could have paid something and, without any reference to the appellant’s evidence on 6 December 2011 in relation to the same rental period which the Presidential Member had accepted, the Presidential Member relied on the appellant’s non payment of rent in that rental period in the decision to terminate his tenancy.
It appears that there was also evidence before the Presidential Member on
20 February 2012 that the appellant had complied with the terms of the interim orders which he had made on 6 December 2011 in that he had been paying rental payments from November 2011 to 18 February 2012.
The appellant was an unrepresented party facing eviction at the time of the decision made on 20 February 2012. He failed to attend the hearing. He had otherwise complied with directions made on 6 December 2011 in relation to the payment of his ongoing rent and he had met with the respondent in relation to his rental rebate.
The appellant’s solicitor submitted, firstly, that the Tribunal’s discretion under section 44 of the ACAT Act must be exercised in accordance with section 7(b) of the ACAT Act - the Tribunal must observe natural justice and procedural fairness. Secondly, this did not happen on 20 February 2012 despite the fact that there would not have been any detriment to the respondent’s interests in a further adjournment; no adjournment was considered and, apparently, no attempt was made to contact the appellant.
The respondent submits that the appellant’s case on appeal does not have a strong prospect of success; no error of fact resulted from the Presidential Member’s failure to avert to previous evidence given by the appellant at the hearing on 6 December 2012; the granting of an application under section 49 of the RT Act is a discretionary decision; and the decision was reasonably open to the Presidential Member on the evidence before him.
In relation to the exercise of the discretion in section 44 of the ACAT Act and the objects in section 6 and the principles in section 7 of that Act, the respondent submits that procedural fairness and natural justice require that parties to an application be provided with a reasonable opportunity to present their case, not that a party be forced to use that opportunity; and the appellant knew of the adjourned hearing date and his failure to use this opportunity does not constitute a breach of natural justice or procedural fairness. The respondent further submitted that section 44 is permissive; it does not require the Tribunal to consider whether each of the options in subsection 44(2) of the ACAT Act should be exercised and referred to Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 101 as persuasive authority for a finding that ‘although a failure to consider whether to exercise a power may be unwise in certain circumstances, it is not a failure to observe a procedure required by the ACAT Act.’
While the appellant does not dispute that the Tribunal is entitled to accept or reject evidence as it thinks appropriate, the appellant submits that the Tribunal strayed into a clear case of unreasonableness as identified in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223 (“Wednesbury”) in that the decision is unreasonable, that no reasonable authority could have ever come to it and the courts can interfere to correct the unreasonableness. The appellant reiterates, in submissions in reply, that it is not open to the Tribunal to take a fact into evidence, make a finding of fact based on that evidence, which the Tribunal did on 6 December 2012, and then, on 20 February 2012, make a subsequent decision because of a contrary assertion that is not based on any further evidence.
Mindful of the question posed in paragraph 37 above and having considered all of the above matters together with a cursory consideration of the grounds of appeal, the Tribunal is persuaded that the applicant has an arguable case that he was not afforded natural justice and procedural fairness in the exercise of the discretion in section 44 of the ACAT Act.
The Tribunal is also persuaded that the applicant has an arguable case that the order terminating the tenancy on 20 February 2012 was based on an erroneous conclusion and was, therefore, wrongly made. For abundant clarity, the Tribunal is unable to be satisfied, on the information before it, that the grounds relied on by the applicant are conspicuously devoid of merit.
Is it ‘fair and equitable in the circumstances’ to extend time?
Having considered all of the submissions and for the reasons set out above, the Tribunal determines it is just and equitable in the circumstances that the application for leave out of time should be granted.
The conduct of appeal AA12/23 and appeal AA 12/31
Each party raised, as a preliminary issue for determination, what procedure the appeal Tribunal should take. Each party has lodged detailed submissions, which have been of considerable assistance to the Tribunal.
The Law
Section 82 of the ACAT Act states:
82 Handling appeals
An appeal Tribunal may, as the Tribunal considers appropriate, deal with an appeal—
(a) as a new application; or
(b) as a review of all or part of the original decision on the application by the Tribunal.
In each appeal before the Tribunal, it must consider whether the appeal will proceed under subsection 82(a) or subsection 82(b).
Appeal 12/23
The appellant’s submissions
The appellant’s solicitor submitted that the Tribunal should proceed with a hearing de novo or as a new application for this appeal, indeed both appeals, as:
· the discretion in section 82 is a plenary one that allows the Tribunal to adopt the best approach to the circumstances of each individual case; and
· the objectives and principles set out in sections 6 and 7 of the ACAT Act grant the Tribunal significant leeway to deal with matters as expeditiously and flexibly as is appropriate, and an approach which is consistent with natural justice will often require a current consideration of the parties’ position; and
· when an appeal is made against a decision made in a party’s absence, and fatal errors of fact are made as a result, the appropriate way to proceed is with a hearing de novo.
The basis for this submission is expressed as ‘where a decision-maker has exercised a discretion in making a decision and that decision is overturned upon appeal, the presiding member is put into the position of re-exercising that discretion. ..... The requirements of natural justice, and of simple practicality, are such that the Tribunal should inform itself of the relevant facts that exist at the time at which the discretion is exercised.’
The appellant also submits, if the Tribunal determines not to proceed with either appeal as a new application, it is significant that a clear distinction between an appeal in the strict sense and a rehearing is not explicitly reflected in the wording of section 82. Given the Tribunal’s broad powers in relation to receipt of new evidence, the power granted under section 82(b), the appellant submits, can only be described as allowing appeals by way of rehearing. If this course is adopted, the appellant accepts that an error in the original decision must be demonstrated before the Tribunal will be in a position to substitute its own judgment. In doing so the appellant submits the Tribunal should substitute a decision that is based upon the present circumstances of the parties and the appellant should be able to bring further evidence of his present ability to sustain his tenancy and address his arrears.
The respondent’s submissions
The Respondent submits that this appeal, indeed both appeals, be heard as reviews of the original decisions, with no new evidence being admitted. The respondent referred the Tribunal to The Medical Practitioner and the ACT Medical Board (Occupational Discipline) [2010] ACAT 63 in which the Tribunal referred to Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] 203 CLR 194 (“Coal and Allied Operations”). In Coal and Allied Operations the High Court considered three different types of appeal – (a) appeal in the strict sense, (b) appeal by way of rehearing and
(c) appeal by way of a hearing de novo. The nature of the appeal in a given case was said to depend on the terms of the legislation conferring the appeal right, the extent of discretion in the decision making power and the capacity of the appellate body to receive new evidence.
The respondent submits that the correct approach is to determine the nature of the appeal based on the factors set out in Coal and Allied Operations. As the appeal right conferred by the ACAT Act is in relation to “a question of fact or law”, this necessarily implies that an application must ordinarily identify an error of fact or law to be corrected on appeal.
The present appeals relate to the exercise of discretionary powers under the RT Act and the ACAT Act. The respondent refers to Australian Coal & Shale Employees Federation v Commonwealth [1953] 94 CLR 621 at 627 and submits that where an appellate jurisdiction is exercised in respect of decisions involving discretionary judgment there is a strong presumption in favour of the correctness of the decision appealed from, and that decision should, therefore, be affirmed unless clearly wrong.
The respondent and the appellant accept that the established principles in House v King (1936) 55 CLR 499 apply when determining an appeal against an exercise of a discretion, in particular at page 505:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in the exercise of that discretion. The type of error which would ground an appeal include if the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts or if does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”
The respondent submits, in such circumstances, an appeal by way of rehearing may hear new evidence, provided it goes to the objective circumstances surrounding the decision at the time it was made.
The respondent opposes the appeal from a termination and possession order proceeding routinely or automatically by way of a hearing de novo as, to do so, could be tantamount to the initial application and subsequent termination and possession order being treated by the subject of that order as “a show cause notice.” The respondent refers the Tribunal to two decisions when considering whether to hear an appeal de novo. The first decision is ACT Human Rights Commission v Raytheon Australia Pty Ltd [2009] ACTSC 55 in which Master Harper stated in relation to the Administrative Appeals Tribunal:
“A decision of the Tribunal is not intended to be open to appeal generally, as is the case, for example, with a judgment of this Court. It must be accepted that there are sound reasons of public policy for this limitation, notwithstanding that some who fail in the Tribunal will have a sense of grievance about it.”
The second decision is Thornthwaite v Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 11(“Thornthwaite”) where Presidential Member Stefaniak commented that a relevant concern is whether the circumstances have so completely changed from the time of the original decision that it would be a denial of natural justice, or common sense, to not take those changed circumstances into account. Such circumstances were described as an ‘exception’ to the general rule that no new evidence may be adduced during an appeal by way of review.
The respondent submitted that the appellant has not adverted to further evidence that could have been submitted at the time of the original decision about his ability to pay rental arrears and rent as it becomes payable. Therefore, the respondent submits if the appeal is accepted out of time, it should only proceed as a review of the exercise of the discretion in section 49 of the RT Act based on the evidence that was before the Member at the time; that is, it should proceed as a review of the original decision to correct an alleged error of fact or law.
Finally the respondent submits that it should not be put to further disadvantage in the form of cost and delay by a decision to hear the appeal as a new application and having to respond to fresh evidence.
The appellant’s submissions in reply
The appellant, in submissions in reply lodged on 27 August 2012, refers to the plenary nature of the power under section 82 of the ACAT Act being further confirmed by section 21 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (the Rules) which sets out the Tribunal’s general powers, namely
21 Appeals to Tribunal—general powers
For an appeal to the Tribunal, the Tribunal—
(a)has all the powers and duties of the Tribunal that made the order
appealed from; and
(b) may draw inferences of fact; and
(c) may receive further evidence about questions of fact, either
orally in a hearing, by written statement or in another way; and
(d) may make an order confirming, amending or setting aside the
order of the Tribunal appealed from; and
(e) may make any other order it considers appropriate.….
The appellant submits that these sections, together with section 7, (see paragraph 52 above) grant the Tribunal a broad discretion that must be exercised in reference to the circumstances of each individual case. Presidential Member Stefaniak in Thornthwaite succinctly states that the ACAT Act does give a fair amount of flexibility to the Tribunal. At paragraphs 33 and 34 of that decision he states:
“It is tidier, I would think, if there is likely to be any new evidence, that it be treated as a new application albeit with 90 percent of the evidence just being accepted from the Tribunal below. That enables us a prompt speedy process.
If it is not envisaged that there would be any new evidence, I would regard this matter as a review of all or part of the original decision so that the appeal is not treated as a new application. The only issue of concern is whether the circumstances have so completely changed from the time of the original decision that it would be a denial of natural justice or, indeed, commonsense, to not take those changed circumstances into consideration.”
The appellant referred to the Tribunal making use of this broad discretion in Zhang & Yuan v Koh (Civil Disputes) [2010] ACAT 6 (“Zhang”) as support for the Tribunal determining the hearing of the present appeals proceeding as new applications. In that particular case the Tribunal referred to various issues including the difficulty of determining individual appeal issues, the grounds of appeal, the lengthy submissions in response, the quantity and variety of material on the original file going both to the issues in the case and also accusing each other of lying, bad faith and falsification of evidence and determined that the appropriate course, in the interests of a proper hearing and the determination of the issues between the parties, was to deal with the appeal pursuant to subsection 82(a), as a new application.
Consideration and Conclusion
The parties in the present case are both represented. The grounds of the appeal are concisely set out. While it is true that they are opposed by the respondent, the Tribunal cannot be satisfied that there is any difficulty in determining the basis of either or both of the appellant’s appeals, such as would persuade it to follow the determination in Zhang.
Having considered sections 7 and 82 of the ACAT Act and section 21 of the Rules and for the reasons set out above the Tribunal determines that it will proceed with the hearing of appeal 12/23 pursuant to subsection 82(b) of the ACAT Act - as a review of the original decision.
The Tribunal will allow new evidence at the hearing provided it is limited to the objective circumstances surrounding the decision at the time it was made, 20 February 2012.
Appeal 12/31
The appellant’s submissions
The appellant submits that it is appropriate for this appeal to be heard as a new application.
The appellant’s grounds for appealing the Tribunal decision on 24 May 2012 are that the Tribunal incorrectly exercised the discretion under section 56(c)(i) which states:
56 Other actions by Tribunal
The Tribunal may, by order—
........
(c) amend or set aside a Tribunal order if—
(i) the order was made after hearing an application in the absence of
a party; or
The basis for this submission is:
a. In applying the test in Allesch v Maunz [2000] HCA 40 the Tribunal failed to take due account of circumstances of the case, particularly the vulnerable status of the appellant as a public housing tenant;
b. Allesch v Maunz clearly articulates that the reasonableness of the applicant’s excuse for failing to attend a hearing is assessed relative to the potential detriment that may be suffered by either party if the decision in question is, or is not, set aside;
c. The standard of reasonableness to be applied to the appellant’s explanation of his absence should be considered in the light of the serious consequences that will flow from his eviction;
d. Given the appellant’s continued compliance with the 6 December 2012 orders in relation to ongoing rental payments, it cannot be said that there is any significant detriment to the interests of the Commissioner that would justify the application of a more stringent standard; and
e. The test set out in Allesch v Maunz is not exhaustive of the factors relevant to the exercise of the discretion under section 56(c)(i). The Tribunal failed to take into account the nature of the jurisdiction and the resulting requirements of natural justice and procedural fairness in exercising its discretion.
While, in the Application for Appeal the appellant states “If necessary the tenant may seek to put further evidence to the Tribunal that existed at the time the decision was made” and “The tenant may bring further evidence about the circumstances surrounding his failure to attend the hearing set for 20 February 2012” the appellant also states that they have no further evidence to bring in relation to AA12/31 in submissions in reply.
In the appellant’s submissions in reply to the respondent’s submissions the appellant seeks that the Tribunal “re-exercise that discretion (in section 56(c)(i)) and set aside the termination and possession order made on 20 February.” In ‘Orders Sought’ the appellant “seeks that AA12/31 be heard as a rehearing.”
The respondent’s submissions
The respondent submits that this appeal should proceed as a review of the original decision and the respondent should not be put to further disadvantage in the form of cost and delay by a decision to hear the appeal as a new application and to respond to fresh evidence.
The respondent asserts that the appellant does not appear to contend that his circumstances have changed since the original decision; or that there is now evidence available that could have been submitted at the time of the original decision. The respondent also submits that the appellant’s contended grounds of appeal disclose no error in the decision of the Member.
The basis for these submissions is set out in detail in the written submissions and appears, primarily, to go to the merit of the appeal.
The appellant, in submissions lodged on 27 August 2012, has responded to the respondent’s various submissions, including those relating to the merit of the appeal which the Tribunal does not propose to deal with at this stage. It is more appropriate that the Tribunal give proper consideration to the submissions on merit at the hearing.
Consideration
Section 82 of the ACAT Act provides for appeals to be dealt with either as a new application (subsection (a)) or as a review of all or part of the original decision (subsection (b)).
In the submissions, the appellant has variously asked the Tribunal to conduct this appeal as a ‘new application’ and as ‘a rehearing’. The use of the word ‘rehearing’ is troubling as it is not referred to in section 82. The Tribunal notes that the appellant states in paragraph 18 of submissions received 27 August 2012 that if the Tribunal elects not to proceed with either appeal as a new application then the appeals should proceed as rehearings as opposed to appeals in the strict sense.
The respondent asked the Tribunal to hear this appeal, and appeal 12/23, as ‘reviews of the original decisions.’ The respondent refers to the fact that the appellant was both present and represented when his application under section 56(c)(i) of the ACAT Act was heard and he had the opportunity of providing evidence and making submissions. His contention is that the Member erred in exercising a discretion. He does not have further evidence to bring in relation to this appeal.
The Tribunal concurs with the respondent that, for the reasons set out above, this appeal should be conducted as a review of all of the original decision made on 24 May 2012 and not a new application.
The appellant asks the Tribunal to determine that, in the absence of an explicit use of the word “rehearing” in section 82, the power granted under section 82(b) can only be described as allowing appeals by way of rehearing. The Tribunal does not propose to use words not specifically included in section 82 when determining this preliminary issue. Having said that, the Tribunal notes that section 21 of the Rules grants the Tribunal the power to substitute its own judgment in place of the original decision.
Conclusion
For the reasons set out above the Tribunal will make the following orders:
1.In appeal matter AA 12/23, the appellant is granted leave to appeal the decision of 20 February 2012 pursuant to Rule 14(1) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No. 2).
2.Pursuant to section 82(b) of the ACT Civil and Administrative Tribunal Act 2008, appeal matter AA 12/23 be heard as a review of all of the original decision of 20 February 2012 with the provision that any new evidence provided is limited to the objective circumstances surrounding the decision at the time it was made.
3.Pursuant to section 82(b) of the ACT Civil and Administrative Tribunal Act 2008, appeal matter AA 12/31 be heard as a review of all of the original decision of 24 May 2012.
………………………………..
Ms E Symons
Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AA 12/31 & AA 12
APPLICANT: WILLIAM PESI
RESPONDENT: COMMISSIONER FOR SOCIAL HOUSING
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT: Welfare Rights & Legal Centre
RESPONDENT: ACT Government Solicitor
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER: Ms E Symons, Presidential Member
DATE/S OF HEARING: 16 July 2012 PLACE: CANBERRA
DATE/S OF DECISION: 3 Sept 2012 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
4
13
1