Sonia Jones v Commissioner for Housing - [2003] ACTSC 52

SONIA JONES v COMMISSIONER FOR HOUSING
FOR THE AUSTRALIAN CAPITAL TERRITORY
[2003] ACTSC 52 (30 June 2003)

LEASES AND TENANCIES – appeal from Residential Tenancies Tribunal – appeal limited to question of law – no error of law.

Residential Tenancies Act 1997, s 126

Supreme Court Act 1933, s 20

Tenancy Tribunal Act 1994, s 58

Discrimination Act 1991, s 108D

Kelly v Apps (2000) 98 FCR 101

Rose v Snape [2000] ACTSC 115

FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd [2000] ACTSC 82

FAI Properties Pty Ltd v Apostolopoulos [2002] ACTSC 58

Harrison v Commissioner for Housing [2003] ACTSC 22

Commissioner for Housing v Pamela Key [2003] ACTSC 44

Australian Capital Territory Community Law Reform Committee Report No 8, Private Tenancy Law, 1994

ON APPEAL FROM THE RESIDENTIAL TENANCIES TRIBUNAL

No SCA 7 of 2000
No SCA 64 of 2002

Judge: Connolly J
Supreme Court of the ACT
Date: 30 June 2003

IN THE SUPREME COURT OF THE  )
  )  No SCA 7 of 2000
AUSTRALIAN CAPITAL TERRITORY  )  No SCA 64 of 2002

ON APPEAL FROM THE RESIDENTIAL TENANCIES TRIBUNAL

BETWEEN:SONIA JONES
Appellant

AND:COMMISSIONER FOR HOUSING
FOR THE AUSTRALIAN
CAPITAL TERRITORY
Respondent

ORDER

Judge:  Connolly J
Date:  30 June 2003
Place:  Canberra

THE COURT ORDERS THAT:

In matter No SCA 7 of 2000, the appeal be dismissed.

In matter No SCA 64 of 2002, the appeal be dismissed.

The parties have liberty to apply on costs.

These are two appeals from decisions of the Residential Tenancies Tribunal arising from disputes between Ms Jones and the Commissioner for Housing. The first appeal (SCA 7 of 2000) is an appeal against a decision of the Residential Tenancies Tribunal of 13 March 2000 not to grant compensation to Ms Jones. Ms Jones had made application to the Tribunal on 15 February 2000 for compensation she claimed in respect of expenses she had incurred due, she says, to the poor state of the premises at 39 Owen Crescent, Lyneham which she was then leasing from the respondent. The delay in getting this matter on for hearing is in no way Ms Jones’ fault. She lodged an appeal on 14 March 2000, and this was appropriately stamped in the Supreme Court Registry, but for some unknown reason the papers became misplaced in the system and were not brought to the respondent’s attention. Ms Jones made an application in April 2002 to extend time to appeal against the decision, and in the hearing of that application made reference to her original appeal. A search was conducted, and the original appeal was located.

The second appeal (SCA 64 of 2002) is an appeal against a decision of the Residential Tenancies Tribunal of 2 October 2002 denying Ms Jones a stay of eviction and confirming an eviction order in respect of premises situated at 9A Coree Place, Palmerston. The two matters were heard together, and it is appropriate that I deal with both matters in these reasons.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] ACTSC 52
Decision Date

CaseChat Overview and Summary

These are two appeals from decisions of the Residential Tenancies Tribunal arising from disputes between Ms Jones and the Commissioner for Housing. The first appeal (SCA 7 of 2000) is an appeal against a decision of the Residential Tenancies Tribunal of 13 March 2000 not to grant compensation to Ms Jones. Ms Jones had made application to the Tribunal on 15 February 2000 for compensation she claimed in respect of expenses she had incurred due, she says, to the poor state of the premises at 39 Owen Crescent, Lyneham which she was then leasing from the respondent. The delay in getting this matter on for hearing is in no way Ms Jones’ fault. Ms Jones made an application in April 2002 to extend time to appeal against the decision, and in the hearing of that application made reference to her original appeal. A search was conducted, and the original appeal was located. The second appeal (SCA 64 of 2002) is an appeal against a decision of the Residential Tenancies Tribunal of 2 October 2002 denying Ms Jones a stay of eviction and confirming an eviction order in respect of premises situated at 9A Coree Place, Palmerston. The two matters were heard together, and it is appropriate that I deal with both matters in these reasons.

The court found that the legislative intent was that appeals from the Residential Tenancies Tribunal to this Court are to be limited to appeals on a point of law, and that a general merits review is not available. The court held that the legislative intent that the Supreme Court should be limited to reviewing decisions of the Residential Tenancies Tribunal to reviews on a point of law must be given effect. The court found that the Tribunal's conclusion was open to it on the evidence, and disclosed no error of law. The court further held that the Tribunal exercises a broad discretion, and in the past has allowed Ms Jones to continue to live in these premises even though breaches have been found. In the decision subject to this appeal the Tribunal has determined that it should no longer extend this leniency, and has granted possession to the Commissioner for Housing. In so doing it noted that the relationship between the parties was “one of hostility on the part of the Respondent/Tenant”, and that “the patience of ACT Housing staff in dealing with this particular client should be noted”. The court found that no error of law appears in the decision of the Tribunal not to allow in its discretion further leniency in a case where the evidence established a pattern of repeated failure to make timely rental payments.

The court ordered that: 1. In matter No SCA 7 of 2000, the appeal be dismissed. 2. In matter No SCA 64 of 2002, the appeal be dismissed. 3. The parties have liberty to apply on costs.

Orders