Tenant RT11421 v Commissioner for Social Housing (Appeal) - [2023] ACAT 48

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

TENANT RT11421 v COMMISSIONER FOR SOCIAL HOUSING (Appeal) [2023] ACAT 48

AA 20/2022 (RT 114/2021)

Catchwords: APPEAL – residential tenancies – termination and possession order – claims of procedural fairness, errors of fact, and discretionary errors as the grounds of appeal – whether the tribunal undue weight to the history of the matter when declining to adjourn proceedings – whether human rights are considered – appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 9, 37, 39, 56, 82
Human Rights Act 2004 ss 12, 40, 40A
Legislation Act 2001 ss 138, 139, 140, 141, 142
Residential Tenancies Act 1997 ss 40, 42B, 49, 49A, 49B, 49C
Residential Tenancies Amendment Act 2018 s 49B

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2020 r 63

Cases cited:Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School [2014] ACTSC 326
Campbell v Blackshaw & Evans [2017] ACAT 64
Campbell v Blackshaw & Evans [2017] ACAT 95
Commissioner for Social Housing v Alan Carter (A pseudonym) [2018] ACAT 16
Commissioner for Social Housing v Cook [2020] ACAT 36
Commissioner for Social Housing vMoffatt [2015] ACTSC 4
Commissioner for Social Housing v Tenant AA202154 & Ors [2022] ACAT 57
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
GP v Mackenzie and Ors [2018] ACAT 96
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
House v The King (1936) 55 CLR 499
Kalil v Bray (1977) 1 NSWLR 256
Kioa v West [1985] HCA 81
Minister for Immigration and Citizenship v Li [2013] HCA 18
Pye v Pye [2022] ACAT 91
Sali v SPC Ltd (1993) 67 ALJR 841
Shrestha v Migration Review Tribunal [2015] FCAFC 87
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Tenant v the Commissioner [2016] ACAT 49
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
Walls v Coutts [2019] ACAT 107
Wicks v Hurst Meyers Charity Ltd [2020] ACAT 64

List of
Texts/Papers cited Explanatory Memorandum to the Residential Tenancies Amendment Bill 2018

Tribunal:Presidential Member H Robinson

Date of Orders: 16 November 2022
Date of Reasons for Decision: 28 August 2023

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 20/2022

BETWEEN:

TENANT RT11421
Appellant

AND:

COMMISSIONER FOR SOCIAL HOUSING
Respondent

APPEAL TRIBUNAL: Presidential Member H Robinson

DATE:16 November 2022

ORDER

The Tribunal orders that:

The appeal is dismissed and the orders of the Original Tribunal of 15 September 2022 are confirmed.
Pursuant to section 82(2)(e) at the ACT Civil and Administrative Tribunal Act 2008, Order 1 is stayed until 30 November 2022.
Pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008, there is to be no publication of the appellant’s name and the appellant is to be known as Tenant RT11421.
......................Signed.....................

Presidential Member H Robinson

REASONS FOR DECISION

This is an appeal against a decision of the Tribunal[1] (the Original Tribunal) of 15 September 2022 to make a termination and possession order (TPO) for breach of a payment order made under section 42B of the Residential Tenancies Act 1997 (RT Act). I delivered my decision in this matter on 16 November 2022 and advised the parties that I would publish my reasons. These are those reasons.

Background

[1] In these “reasons for decision”, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the members who heard the application and/or appeal.

The tenant appellant (the tenant or appellant) is the sole lessee of a property (the property) owned by the respondent. She came to Australia as a refugee. Her background includes exposure to traumatic events. Her main source of income is Centrelink payments.
Also resident in the property and noted on the lease are the appellant’s two adult children and one school-aged grandchild. Both children are currently in receipt of Centrelink payments. The grandchild suffers from a serious and life-limiting illness. Medical evidence before this Appeal Tribunal (but not the Original Tribunal) establishes that that the grandchild needs to, amongst other things, be accommodated at a constant temperature.
The tenancy commenced on 2 January 2018. The rent payable was $920 a week. As a public housing tenant, the appellant was sometimes entitled to a rebate, but at other times, the family income was such that they were charged market rent. As at the date of the hearing of the original application, the rebated rent was $249.85 per week.
On 21 January 2020, the tenant was served with a notice to remedy for rent arrears, and on 24 March 2021, the tenant was served with a notice to vacate. As at this date, the tenant was $10,390.47 in arrears. Due to the COVID-19 moratorium, the lessor did not pursue termination and possession proceedings at that time.
On 22 October 2020, the lessor served the tenant with a further notice to remedy, and on 19 November 2020, the respondent served a notice to vacate. At this date, the account was in arrears $13,480.47.
On 10 February 2021, the lessor applied for a termination and possession order under section 49 of the RT Act (the T&P application).
The T&P application was listed for hearing on 4 March 2021. The hearing was adjourned to 25 March 2021. On 25 March 2021, another differently constituted tribunal adjourned the matter a second time to 6 May 2021, noting on the order that “the purpose of the adjournment is to allow the tenant to obtain further legal and financial advice.” When the matter returned to the tribunal on 6 May 2021, it was adjourned by consent to 1 July 2021 by the third differently constituted tribunal. On 1 July 2021, the fourth tribunal adjourned it to 29 July 2021. On 29 July 2021, the first tribunal adjourned it again to 26 August 2021, apparently due to there being some rebate issues that needed to be sorted. On 26 August 2021, the second tribunal decided the matter and made a payment order under section 49A (2) of the RT Act (the payment order).
The payment order provided:
1.       The tenant is to pay to the lessor the sum of $527.80 for arrears of rent, such payment to be in fortnightly instalments of $20.30 beginning on 30 August 2021.
2.     If an instalment payment is not made in accordance with order 1, the whole balance is due immediately.
3.     The tenant is to pay future rent as it becomes payable under the tenancy agreement, less any rebate granted by the Commissioner for Social Housing, the next payment of rent being due on or before Monday 30 August 2021 and fortnightly thereafter.
4. If the tenant fails to comply with orders 1 or 2, the lessor may apply for a termination and possession order under section 49B of the Residential Tenancies Act 1997.
5.     Orders 1, 2 and 3 expire at 5:00 pm on Wednesday 25 August 2022.
It is this payment order that is the subject of this appeal.
On 23 August 2022, the respondent lessor lodged the present application, being an application for termination and possession following a failure to comply with a payment order (the payment order application).

The payment order application

The payment order application was listed for a directions hearing on 1 September 2022. The hearing was then adjourned, by consent, for two weeks to 15 September 2022 to enable the appellant to prepare.
The payment order application was again listed before a differently constituted tribunal (the Original Tribunal) on 15 September 2022 and was finally determined on that day (the final hearing). On that occasion, the respondent lessor was represented by an advocate, Ms Lee, and the tenant by Ms Walker, a lawyer with Canberra Community Law (CCL).
The lessor relied on the tenant’s non-payment of rent and non-compliance with the payment order. The tenant did not deny the defaults, but instead sought to put them in context. In this regard, CCL submitted that:
…leaving aside the earlier history of the tenancy, if we’re just looking at the rent ledger from the 12 months the period of the payment order, I suppose my submission is that what it shows is not that [the tenant] was sort of wilfully not paying her rent. It is more that because of her mental health she has been losing track of her obligations and because she was paying by – manually, using a rent card at the post office, if you look at the transaction record every so often she just misses a week and then starts paying fortnightly and what she said to me is she has had trouble to keep track of her obligations.[2]
[2] Transcript of proceedings, 15 September 2022, page 6, lines 10-18
CCL submitted that the tenant had put in place a BPay arrangement and had commenced treatment for her “significant trauma”. This treatment included seeing her GP in March 2021 and seeking referrals. The tenant had, CCL submitted, sought counselling earlier, but it had taken until September 2022 to get an appointment with a counsellor.
During the hearing, the Original Tribunal noted that the proceedings had been “on foot in one form or another now for 19 months”, that the tenant had been back before the tribunal several times, that she had been represented “at various times” by CCL,[3] and that on several previous occasions, adjournments had been granted to allow the tenant to work out a budget. Despite this, “…all that seems to have happened is that despite that she has fallen further and further into arrears.”[4]
[3] Transcript of proceedings, 15 September 2022, page 6, lines 37-39
[4] Transcript of proceedings, 15 September 2022, page 7, lines 25-26
CCL acknowledged that history, but submitted in response that:
What will change in the future is that she will actually be able to access the mental health support that she clearly needs and that – it seems apparent to me that the missed payments are a symptom of her overall mental ill health.”[5]
[5] Transcript of proceedings, 15 September 2022, page 8, lines 23-26
The Original Tribunal noted that there was no evidence to support the submission that defaults were due to the tenant’s mental health.[6] CCL, then, sought an adjournment of the proceedings to obtain that evidence:
If the tribunal is not minded to make a new payment order today, then what we would seek is a further adjournment so that we would have the opportunity to send [the tenant] for a psychological assessment and we could produce a report to provide further evidence of the link between the missed payments and her psychological state and it would also give her an opportunity to meet with a counsellor and begin receiving treatment and potentially have a referral, if necessary, to a psychiatrist is that was what she wanted.[7]
[6] Transcript of proceedings, 15 September 2022, page 8, lines 28-29
[7] Transcript of proceedings, 15 September 2022, page 8, lines 31-39
CCL also suggested that would obtain “witness statements from her children to demonstrate their ability to contribute to the rent as well.”[8]
[8] Transcript of proceedings, 15 September 2022, page 9, lines 11-12
In summary, CCL sought a further extension of two weeks to gather new evidence, including:
(a)a psychological report on how her psychological state affected her ability to comply with the payment order; and
(b)further evidence of her children's ability to contribute to the payments under the payment order (the further evidence).
For its part, the lessor opposed the adjournment, noting the amount of the arrears. The lessor questioned the accuracy of the suggested wait times for counselling, and the budget. The lessor contended that it was unlikely that more reports and analyses would “increase [the tenant’s] financial capacity” or show that she was reasonably likely to make payments are required.[9]
[9] Transcript of proceedings, 15 September 2022, page 11, lines 30-32
The Original Tribunal declined the application for an adjournment, the Senior Member observing that:
Well, I do not need persuasion that [the tenant] has a traumatic past and may be suffering from PTSD and that that affects her, if you like, ability to cope and deal with things. But I am looking at a tenancy which in the last four years has resulted in arrears increasing from a not insubstantial $5,670 to $13,000 and, yes, we are not just talking about the failure to miss four payments. The failure to miss four payments simply brings the matter before the tribunal. … That gives the tribunal jurisdiction.
The issue now that I am looking at is the whole history of the matter.[10]
[10] Transcript of proceedings, 15 September 2022, page 9, lines 14-24
At this point,[11] CCL pressed the argument that the hearing was the “second” occasion the matter was before the tribunal in relation to “this particular application.” Nonetheless, the Original Tribunal then proceeded to decide the matter and to make a termination and possession order evicting the tenant.

The Original Tribunal’s reasons

[11] Transcript of proceedings, 15 September 2022, page 10

As this matter was listed in the busy termination and possession list,[12] reasons were given orally and were necessarily brief.
[12] The termination and possession list is a busy ‘running’ list typically with at least a matter an hour. Proceedings are often informal, and decisions are usually given orally.
The Original Tribunal was satisfied that the tenant had failed to make payments in accordance with the payment order on 28 June 2022, 18 July 2022, 1 August 2022 and 15 August 2022, and those failures were within the 60 days prior to the application of 23 August 2022.
The Original Tribunal observed that, as the payment order expired on 26 August 2022 (a few days after the application was made), it would not be appropriate to confirm or set aside the payment. Accordingly, the issue that arose “is whether in lieu of making a termination and possession order [the original tribunal] should make another payment order.”[13]
[13] Transcript of proceedings, 15 September 2022, page 12, lines 29-31
The Original Tribunal reviewed the appellant’s payment history “since these proceedings were commenced in February 2021” and concluded that “the short point is that as at 10 February 2021 when these proceedings were commenced the tenant was $11,231.47 in arrears and as at today the arrears stand at $12,960.22.”[14]
[14] Transcript of proceedings, 15 September 2022, pages 12-13
The Original Tribunal acknowledged that the appellant had put in place a BPay arrangement,[15] and if complied with those payments would cover the rent and $21 a fortnight in arears.[16]^.The senior member then noted that the Care Financial budget that the tenant submitted to the tribunal the tenant would have a surplus of $28.77 a fortnight.[17] Her adult children were contributing to household and living expenses at $350 a week, and that this meant the tenant was “bearing a disproportionate share of the costs of maintaining the household and the others who live there.”[18] On that material, the Original Tribunal was not confident that the appellant could meet the rent or even make a payment of $520 a fortnight going forward.[19]
[15] Transcript of proceedings, 15 September 2022, page 13, line 7
[16] Transcript of proceedings, 15 September 2022, page 13, line 10
[17] Transcript of proceedings, 15 September 2022, page 13, line 14
[18] Transcript of proceedings, 15 September 2022, page 13, lines 20-22
[19] Transcript of proceedings, 15 September 2022, page 13, lines 25-26
The Original Tribunal noted that:
What is strikingly absent from the material relied upon by the tenant is any detailed explanation of the reasons for the prior defaults … and why those arrears have continued to climb against the background of relatively frequent appearances in the tribunal in circumstances where it could not have been lost on her that she was at serious risk of being evicted for failure to pay rent.”[20]
[20] Transcript of proceedings, 15 September 2022, page 13, lines 28-34
The Original Tribunal noted that the evidence relied upon by the tenant focused principally on her personal circumstances, which the Original Tribunal “had regard to”.[21] These circumstances included that the tenant was a “disadvantaged person” and that her circumstances “made life difficult for her”.[22] However, the Original Tribunal also noted that there was no evidence why the children had been unable to help. The Original Tribunal concluded that “fundamentally” CCL’s “valid attempt to attribute the whole of the [tenant]’s payment history to the traumas that she has suffered in the past” was “not sustainable on the evidence.”[23]
[21] Transcript of proceedings, 15 September 2022, page 14, lines 36-37
[22] Transcript of proceedings, 15 September 2022, page 14, lines 38-40
[23] Transcript of proceedings 15 September 2022, page 13, lines 43-46
The Original Tribunal was satisfied that it was not appropriate to make a further payment order and terminated the tenancy.

The appeal – relevant legislation

Section 49A of the RT Act, under which the payment order was made, provides as follows:
49A   Failure to pay rent—payment order
(1)     This section applies if a lessor applies to the ACAT for a termination and possession order under section 49 (2).
(2)     Instead of making a termination and possession order, the ACAT may make an order (a payment order) requiring the tenant to pay 1 or both of the following:
(a)the rent, or a stated part of the rent, that has become payable;
(b)future rent as it becomes payable.
(3)     The ACAT must not make a payment order unless satisfied—
(a)the tenant is reasonably likely to make the payments required under the order; and
(b)if the payment order does not include a requirement to pay rent, or a stated part of rent, that has become payable as mentioned in subsection (2) (a)—
(i)the lessor has made more than 2 applications for a termination and possession order under section 49 (2) in the 12‑month period immediately before the day the ACAT makes the order; and
(ii)it is in the interests of justice to do so.
(4)     If the ACAT makes a payment order for part of the rent that has become payable, the ACAT may also make an order under section 83 (1) (c) for payment of the remaining part.
(5)     A payment order—
(a)expires on the date stated in the order (which must not be more than 1 year after the day the order is made); and
(b)must state that if the tenant fails to comply with the payment order, the lessor may apply for a termination and possession order under section 49B.
(6)     On application to the ACAT, an order under this section may be varied if—
(a)both parties agree to the variation; and
(b)the variation does not postpone the expiry date of the order; and
(c)the ACAT considers it just and appropriate to vary the order.
Section 49B of the RT Act deals with failure to comply with a payment order as follows:
49B   Failure to comply with payment order
(1)     This section applies if—
(a)the tenant has failed to comply with a payment order in the last 60 days; and
(b)the order has not expired; and
(c)the tenant continues to live at the premises.
(2)     The lessor may apply to the registrar for a termination and possession order.
(3)     On receiving an application for a termination and possession order, the registrar must—
(a)list the application for hearing before the ACAT not earlier than 1 week after the day the notice under paragraph (b) is given to the tenant; and
(b)give notice to the tenant stating—
(i)that an application for a termination and possession order has been made; and
(ii)the time when, and the place where, the application is to be heard; and
(iii)that the tenant should seek legal advice about the application if the tenant wants to continue to live at the premises.
(4)     If the lessor does not apply to the ACAT under subsection (2), the payment order, residential tenancy agreement and any debt under the residential tenancy agreement is not affected.

Section 82 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), which deals with the conduct of appeals, provides that:
82     Appeal tribunal—general powers
(1)     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.
(2)     An appeal 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, if leave is granted, 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, setting aside or replacing the order of the tribunal appealed from; and
(e)may make any other order it considers appropriate.

Nature of the appeal and fresh evidence

CCL, on behalf of the tenant, initially sought that the appeal be heard as a de novo hearing pursuant to section 82(1)(a) of the ACAT Act, noting that the grounds of appeal included claims of procedural unfairness, claims of errors of fact giving rise to procedural unfairness, and discretionary errors. I was satisfied that the appeal should be dealt with as a review of the original decision pursuant to section 82(1)(b) of the ACAT Act, with the additional step of allowing fresh evidence that had been acquired by the appellant between the original hearing and the appeal.
In terms of the law that applies, it is well accepted that a decision whether to adjourn a proceeding is a discretionary decision. This means that in order to succeed on appeal, the applicant would need to establish an error of the kind identified in House v The King (1936) 55 CLR 499 (House v The King), being that the appellant identify either a specific error, such as acting on a wrong principle, making a mistake as to the facts, relying on irrelevant considerations or giving inappropriate weight to such considerations, or that the decision is so unreasonable or unjust as to give rise to an inference of error.
That appellant’s fresh evidence admitted on appeal consists of two letters from Dr Anderson of Companion House (a non-government, community-based organisation that works with adults and children who have sought safety in Australia from persecution, torture, and war related trauma):
(a)the first letter dated 20 September 2022 states that the tenant’s grandchild has sickle cell anaemia and epilepsy and provides some information on those conditions; and
(b)a further letter dated 29 September 2022 sets out the consequences an eviction would have for the grandchild and attaches information on sickle cell anaemia.
As the tenant was permitted to file fresh evidence, I gave the respondent lessor leave to file fresh material in reply. The respondent’s fresh evidence was a statutory declaration from Ms Louise Griffiths, a public servant in the respondent’s organisation, stating that:
Catholic Care have agreed to take on the headlease for the tenant and [the tenant] agreed to these in principle on the day if the eviction hearing order remained in place.

Grounds of appeal 1: Alleged errors of fact

In her application for appeal, the appellant argued for six alleged errors of fact, numbered as per below:
The Tribunal erred in fact in failing to give due consideration to the available evidence of:
1. the Appellant’s payments of rent and arrears made between the first hearing on 1 September 2022 and the second hearing on 15 September 2022
2. the payments the Appellant made of a greater amount than the amount she was required to pay under the payment order
3. submissions made and evidence given about the link between the Appellant’s psychological condition and her failure to meet her obligations under the payment order (page 8, lines 1-5, line 15 and lines 28-29; page 10, lines 24-32; page 11, lines 4-5).
4. submissions made and evidence given about the Appellant’s desire to access treatment for her psychological condition and the efforts she had made to access these services (page 7, lines 35-40).
5. evidence given about the Appellant setting up a scheduled BPay payment so that her rent and arrears payments would occur automatically (page 3, lines 14-17), and
6. the circumstances which gave rise to the Appellant’s failure to comply with the payment order; the Tribunal instead placed disproportionate weight on the amount of time that had passed since the Commissioner’s initial application for a termination and possession order (page 6, lines 33-45; page 8, lines 1-5; page 9, lines 16-21), how the Appellant had fallen into arrears prior to the payment order being made (page 5, lines 45-47; page 6, lines 1-4) and whether the tenant was reasonably likely to be able to pay the entire amount of the rental arrears (page 9, lines 23-24)
As such, the Tribunal made errors of fact, those being jurisdictional errors.
As can be seen, the appellant argues “jurisdictional error”. A “jurisdictional error” is an error that goes to the tribunal’s jurisdiction, or capacity, to make the decision.
A tribunal that fails to consider relevant considerations or to give proper weight to evidence will have committed an error.[24] However, to fall into “jurisdictional error”, requires a higher level of gravity. As was observed by the majority of the High Court (Kiefel CJ, Gagelar and Keane J) in Hossain v Minister for Immigration and Border Protection & Anor [2018] HCA 34:[25]
Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a "nullity", in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all". To that extent, in traditional parlance, the decision is "invalid" or "void"…
…it is an expression not simply of the existence of an error but of the gravity of that error.
[24] See Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] per Heydon JA, as his Honour then was (with whom Sheller JA and Studdert AJA agreed); Maclean v Brylewski [2022] NSWCA 217.
[25] Hossain v Minister for Immigration and Border Protection & Anor [2018] HCA 34 at [24]-[25]
Whether an error is “jurisdictional” is determined by reference to the terms of the statute under which the decision was made.
The first ground alleged is that the Original Tribunal failed to give due consideration to “the Appellant’s payments of rent and arrears made between the first hearing on 1 September 2022 and the second hearing on 15 September 2022.” This refers to the tenant’s payment of a fortnight’s rent between the first return date and the original hearing, pursuant to orders made by the tribunal after the first hearing date. The lessor conceded the payment had been made.[26] In considering the matter, the Original Tribunal observed in its reasons that the appellant had set up a “schedule B’ payment of $550 a fortnight to automate future payments.[27] However, the Original Tribunal weighed this against CCL’s concession[28] that the arrears had increased through the period of the payment order by $2000. There was not a failure to consider the payments made.
[26] Transcript of proceedings, 15 September 2022, page 2, line 47
[27] Transcript of proceedings, 15 September 2022, page 3, line 16
[28] Transcript of proceedings, 15 September 2022, page 7, lines 42-43
In relation to ground two – being that “the payments the Appellant made of a greater amount than the amount she was required to pay under the payment order” – the tenant argued that she had voluntary agreed increase in payments from $520 to $550 on 22 August 2022.[29] Although the Original Tribunal did not expressly reference this in his reasons, the senior member was aware the tenant paid $550 in the fortnight preceding the hearing, and this was clearly factored into his consideration of the budget presented and the tenant’s capacity to pay. While it is not clear that the Senior Member was aware that the additional $30 payment was voluntarily agreed, I am not satisfied any substantial error has been established in relation to this point.
[29] Transcript of proceedings, 15 September 2022, page 8, lines 5-6
The third alleged error relied upon is the Original Tribunal’s alleged failure to consider “submissions made and evidence given about the link between the Appellant’s psychological condition and her failure to meet her obligations under the payment order”.[30] There was no medical evidence of these conditions before the Original Tribunal (the Companion House evidence not being before the Original Tribunal at this time). Nonetheless, even in the absence of such evidence, the Senior Member was prepared to accept CCL’s submissions from the bar table[31] as best they could, observing that:[32]
Well, I do not need persuasion that [the tenant] has had a traumatic past and may be suffering from PTSD and that affects her, if you like, ability to cope and deal with things.
[30] Transcript of proceedings, 15 September 2022, page 8, lines 1-5, 15, and 28-29; page 10, lines 24‑32; and page 11, lines 4-5
[31] Transcript of proceedings, 15 September 2022, page 8, line 15
[32] Transcript of proceedings, 15 September 2022, page 9, line 14
The Original Tribunal gave the appellant the benefit of the doubt about her medical conditions. It accepted she may be suffering from PTSD that affects her ability to manage her affairs and considered this. This is consistent with the limited evidence now before this Appeal Tribunal. The member took this into account when making his decision. No error is established.
The relation to the fourth ground – the Original Tribunal’s consideration of “the Appellant’s desire to access treatment for her psychological condition and the efforts she had made to access these services” – the appellant alleged that the Original Tribunal failed to consider submissions made and evidence given about the appellant’s desire to access treatment for her psychological condition and the efforts she had made to access these services. In support of this contention, she cited page 7, lines 35-40 of the transcript. There is nothing at that citation that evidences the appellant’s desire to access treatment for her psychological condition or the effort made. No evidence was led at the original hearing on this point. No error is established.
In relation to the fifth ground – the “evidence given about the Appellant setting up a scheduled BPay payment so that her rent and arrears payments would occur automatically” – the Original Tribunal’s reasons expressly refer to a deficit of information on this point. There seems to have been little before the tribunal beyond the submissions from the appellant’s lawyer discussed above. As stated above, the Original Tribunal had already taken note of some of the appellant’s personal circumstances as a reason for her failure to meet her payment obligations, and the automatic payment did not speak to ongoing capacity to pay rent as and when it fell due. Again, no error is established.
In relation to the sixth ground, the appellant alleged that the Original Tribunal placed disproportionate weight on the amount of time that had passed since the Commissioner’s initial application for a termination and possession order,[33] how the appellant had fallen into arrears prior to the payment order being made[34] and whether the tenant was reasonably likely to be able to pay the entire amount of the rental arrears (rather than only the amount payable under any further payment order).[35] The earlier of these two contentions fall into the scope of another alleged error – that in relation to the characterisation of these proceedings as a ‘single proceeding’, and I have considered the ramifications of that below. Otherwise, it is apparent that the Original Tribunal was concerned about both the tenant’s the ability to pay the arrears and the ability to make payments under any future payment order. Where there are outstanding rental arrears, any orders to pay arrears must also be satisfied to maintain the tenancy. There was no error on the Original Tribunal’s part in considering this.
[33] Transcript of proceedings, 25 October 2022, page 4, lines 33-45; page 8, lines 1-5; and page 9, lines 16-21
[34] Transcript of proceedings, 25 October 2022, page 5, lines 45-47; and page 6, lines 1-4
[35] Transcript of proceedings, 15 September 2022, page 9, lines 23-24
I am not satisfied that the Original Tribunal failed to consider, or failed to adequately consider, any of the matters identified by respondent as errors of fact. Certainly, there is no error of such gravity that it amounts to a jurisdictional error.

Ground of appeal 2: alleged error of law

The tribunal erred in law or erred in the exercise of discretion by failing to adjourn the matter

The appellant argued that the Original Tribunal made two material errors of law by:
(a)unreasonably refusing to grant a second adjournment in circumstances which prevented the appellant from properly presenting her case thereby denying her natural justice (the breach of natural justice ground); and
(b)failing to have regard to whether a second adjournment would cause the Commissioner to suffer substantial injustice (the error of principle ground).
As both grounds relate the Original Tribunal’s refusal to grant the appellant an adjournment at the final hearing on 15 September 2022, it is appropriate to commence by considering why the adjournment was so important to the appellant, and the consequences that flowed from the Original Tribunal’s refusal to grant one.
The termination and possession application that was before the Original Tribunal was brought under section 49B of the RT Act. This section provides that a lessor may apply for a termination and possession order where a tenant fails to comply with a payment order previously made under section 49 of the RT Act (which deals with a failure to pay rent as and when it falls due).
There was no dispute during the Original Hearing that a payment order had been made under section 49 and that the tenant had failed to comply with it.
The section 49B criteria having been met, the Original Tribunal turned its mind to section 49C, which sets out the options available in the circumstances, being:
(a)Make a termination and possession (T&P) order;[36] or
(b)Refuse to make a T&P order and do one of the following:
(i)      confirm the payment order;[37]
(ii)     make another payment order;[38] or
(iii)   set aside the payment order.[39]
[36] Section 49C(1)(a) of the RT Act
[37] Section 49C(3) of the RT Act
[38] Section 49C(3)(b) of the RT Act
[39] Section 49C(3)(c) of the RT Act
The payment order had expired by the hearing, and therefore it not be confirmed or set aside.[40]
[40] A payment order expires on the date stated on the order, which must not be more than one year after the date it is made: section 49A(5)(a)
In order to make another payment order, the Original Tribunal needed to be reasonably satisfied that the tenant was likely to make the payments required under the order.[41] Could the Original Tribunal have been so satisfied? There was some evidence before it that the appellant had taken steps to address the conduct that led to the defaults. She had made a payment for $550 between the first hearing on 1 September and the second hearing on 15 September in accordance with the orders made by the Tribunal.[42] She had scheduled BPay payments. She had progressed arrangements for counselling. Cumulatively, these are evidence of a willingness to make future payments. Nonetheless, the Original Tribunal, having regard to the entire history of the tenancy, including the very tight budget presented to the tribunal. The Senior Member did not consider the single payment during the adjournment period and the establishment of a BPay payment to be compelling evidence that the appellant was likely to pay. I cannot see anything unreasonable or outside of the discretion available to the Original Tribunal in reaching the conclusion that it was not reasonably likely that the appellant would pay a further payment order were one made. It is more challenging to see how the Original Tribunal could have reached a different decision. The making of another payment order was unlikely.
[41] Section 49A(3)(a) of the RT Act
[42] Transcript of proceedings, 15 September 2022, page 2, line 45, to page 3, line 1
However, section 49C was not the sole source of the Original Tribunal’s power to deal with the matter. It remained open to the Original Tribunal at the original hearing to decline to make a final order under section 49C, and to instead make an interim order under section 56 of the ACAT Act adjourning the matter for a period of time.
As noted above, the decision whether to adjourn a matter is a discretionary discretion. However, legislation and case law establish a framework for the exercise of that discretion. Section 63 of the ACAT Procedure Rules (the Rules) provides that the tribunal may adjourn a hearing at any time or date. ACAT Practice Note Number 2 of 2020 sets out the matters that must be considered by the tribunal in considering a request for an adjournment. These are:
(a)section 6 (the objects of the Act) and section 7 (the principles applying to the Act) of the ACAT Act;
(b)the reason for the adjournment;
(c)any disadvantage the requesting party or the public might suffer if the adjournment is not granted;
(d)the attitude of each party to the adjournment;
(e)any prejudice to each other party, or where relevant, to the public if the adjournment is granted;
(f)the length of the adjournment; and
(g)and any other relevant matter.
The objects of the ACAT Act, set out in section 6, relevantly include ensuring that access to the tribunal is simple and inexpensive for all people who need to deal with the tribunal and that applications to the tribunal are resolved as quickly as is consistent with achieving justice. The principles in section 7 of the ACAT Act provide that in exercising its functions, the tribunal must seek to ensure the procedures of the tribunal are as simple, quick, inexpensive, and informal as is consistent with achieving justice and are implemented in a way that facilitates the resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate. The tribunal also has an obligation when making procedural orders to observe natural justice and procedural fairness. The effect of these considerations is that while the tribunal has a broad discretion to adjourn matters, there are matters that a tribunal member must consider making that decision.
With that in mind, I turn to the first of the specific alleged errors of law.

The breach of natural justice ground

A tribunal’s unreasonable failure to grant an adjournment to allow a party to properly present their case amounts to a failure to provide procedural fairness.[43] The question for the Appeal Tribunal is whether the Original Tribunal’s decision unreasonably deprived the appellant of the ability to present her case.
[43] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Campbell v Blackshaw & Evans [2017] ACAT 95 at [78]

The appellant argued that the unreasonableness arose because the Original Tribunal characterised the breach of payment order proceedings as but the latest step in a process that commenced with the original termination and possession application in February 2021,[44] rather than as a new proceeding:
…by characterising the proceedings as having commenced in February 2021, the original tribunal appears to have assumed that the appellant had the benefit of ongoing legal representation throughout that entire period, and this is certainly the assumption made by the respondent's representative in her submissions … which the original tribunal appears to have accepted.[45]
[44] E.g.: “Earlier during the hearings, I have recounted the payment history relating to this tenancy. The various occasions since these proceedings were commenced in February 2021 when the matter has come before the tribunal … short point is that at 10 February 2021 when these proceedings were commenced the tenant was $11,231.47 in arrears” and “What is strikingly absent from the material relied upon by the tenant is any detailed explanation for the reasons for prior defaults, including the circumstances by which the arrears reached the amount of $11,231.47 when these proceedings were commenced.”
[45] Transcript of proceedings, 25 October 2022, page 11, lines 30-35
The appellant argued instead that the payment order should have been considered as a final order, made to conclude the termination and possession proceedings, such that the current process is a new, separate proceedings, and not a continuation of the previous application for a termination and possession order under section 49.
This mischaracterisation, the appellant submitted, fundamentally affected the balancing of different considerations when deciding whether to grant the adjournment request. It resulted in the Original Tribunal gave too much weight to the time that has passed, particularly when considered against the prejudice to the respondent.
The lessor submitted in response that the Original Tribunal correctly characterised the process as a continuing one. The lessor submitted that in considering the time allowed to the appellant, it was appropriate to consider the entire history of the proceeding, including the original application and the interceding events. It noted that both the original and the current application were considered on the one tribunal file, the payment order application was brought by way of an interim application on that file. Further, and in any case, having regard to the total time, the appellant had a reasonable opportunity to prepare and present her case and, through non engagement, failed to avail herself of it.
Should the present application for breach of a payment order be considered a new application?
In considering who is correct, the starting point is the words of the relevant provisions of the RT Act, as interpreted in their legislative context[46] assisted by the Legislation Act 2001. The Appeal Tribunal must prefer the interpretation that would best achieve the purpose of the relevant Act to any other interpretation.[47] In working out the meaning of an Act the provisions of the Act must be read in the context of the Act as a whole.[48]
[46] See e.g. SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [14] and [37]–[39]
[47] Legislation Act 2001 section 139
[48] Legislation Act 2001 sections 138, 140
On a general level, an “order” made by the Tribunal may take one of two forms – a final order that concludes the proceedings, or an “interim order” that is (usually) made before a proceeding is finalised.[49] There is a great deal of law in the Tribunal and higher courts on the difference between interim and final orders,[50] but for present purposes it is useful to adopt the observations of a differently constituted Appeal Tribunal in GP v Mackenzie & Ors [2018] ACAT 96 that:[51]
Murrell CJ’s statement (see [49] above) quoting from the High Court decision in Carr v Finance Corporation of Australia Ltd - “whether a judgment is an interlocutory judgment or a final judgment depends upon the legal rather than the practical effect of the judgment” is highly persuasive. It is necessary to look at the legal effect rather than the practical effect of Senior Member Meagher SC’s decisions. The question is whether the consequence of the order or orders, as made on 21 June 2018 and 25 July 2018 finally determine the rights of the parties in a principal cause of action.
[49] See ACAT Act, section 53, interim orders.
[50] E.g.: Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at [248]; Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School [2014] ACTSC 326; Walls v Coutts [2019] ACAT 107 at [27]; and Wicks v Hurst Meyers Charity Ltd [2020] ACAT 64 at [18] – [46]
[51] GP v Mackenzie & Ors [2018] ACAT 96 at [64]
In that case, the Appeal Tribunal concluded that decisions about a suppression order:
… did not finally determine the parties’ rights in the principal causes of action, namely the defamation claims [and] are interlocutory decisions[52]
[52] At [68]
Section 49 of the RT Act permits a lessor to bring an application for termination of a residential tenancy agreement when certain conditions are met, including that the tenant has failed to pay rent, has been served a notice to vacate, and has failed to vacate the premises.[53] When such an application is made, the tribunal may do one of several things, including making a T&P order[54] (which it may suspend for a period of up to three weeks in certain circumstances),[55] refusing to make a T&P order,[56] or making a payment order.[57]
[53] Section 49(1) of the RT Act
[54] Section 49(3)(a) of the RT Act
[55] Section 49(4) of the RT Act
[56] Section 49(3)(c) of the RT Act
[57] Section 49(3)(b) of the RT
The legal effect of the making of a T&P order or dismissing a proceeding is that the application is concluded. A payment order is “instead of” a termination and possession order[58] and concludes the proceedings in a similar way.
[58] Section 49A(2) of the RT Act
Section 49B then provides that, if a tenant has failed to comply with a payment order in the last 60 days, the order has not expired and the tenant continues to live at the premises, then “the lessor may apply to the registrar for a termination and possession order”.[59] On receiving the application, the registrar must “list the application for hearing before the ACAT” in accordance with section 49B(2). The orders the tribunal can make under section 49C after hearing from the parties are discussed above.
[59] Section 49B(2) of the RT Act
One difference between section 49 and 49B is the mechanism by which the application is made – under section 49 the applicant applies to the ACAT, while under section 49B, the application is made to the registrar. It is not apparent whether this was intended to be a distinction of substance or process. The registrar is broadly responsible for the general administration and management of the tribunal, including communication with parties, but does exercise some quasi‑judicial powers. Applications to the tribunal are usually made “to the tribunal”, rather than the registrar,[60] with the registrar required to give written notice of the hearing to the parties.[61] It may be that the requirement in section 49B to “apply to the registrar” rather than to the tribunal is intended to indicate that such an application is intended to be a relisting rather than a new matter. This would suggest one continuing process. However, I have not had the benefit of legal submissions on this point and therefore cannot take that issue further.
[60] Section 9 of the ACAT Act
[61] Section 37 of ACAT Act
In working out the meaning of an Act, the Appeal Tribunal may also have regard to material not forming part of the Act.[62] I have had regard to the legislative history of the payment order provisions.
[62] Legislation Act 2001 sections 141, 142
Payment orders were introduced by way of the Residential Tenancies Amendment Act 2018. The Explanatory Memorandum to the Residential Tenancies Amendment Bill 2018 provides that one purpose of the amendments was to “replace the conditional termination and possession order (CTPO) provisions with a new concept of a payment order”:
New section 49B – Failure to comply with a payment order
This clause adds new section 49B which sets out what happens when a tenant fails to comply with a payment order. Where a tenant fails to comply with a payment order the lessor has a 60 day timeframe to apply to the ACAT for a termination and possession order resulting from the first breach of the lease. This timeframe provides an opportunity for the lessor and tenant to negotiate a resolution to the failed payment, rather than automatically terminating the tenancy agreement. However, the lessor does not have to negotiate a resolution and is entitled to make an application for termination and possession as soon as the order is first breached. Once a lessor has made an application, the Registrar is required to notify the tenant details of the application and subsequent proceedings. The hearing date must be at least 1 week after notice is given to allow the tenant time to prepare and seek legal advice if needed.
In circumstances where the lessor does not apply to the ACAT within the 60 day period, the payment order, residential tenancy agreement and any debt accumulated under the residential tenancy agreement will not be affected by the compliance breach. This removes the self-executing nature of termination and possession orders and responds to the concerns raised by the ACT Supreme Court in Commissioner for Social Housing v Moffatt (2015) ACTSC 4. This section clearly outlines the implications of compliance breaches which reduces complexities for tenants engaging with the residential tenancies scheme. (emphasis added)
As was observed by the Attorney-General in the Presentation Speech:
The bill responds to these concerns by removing the self-executing CTPO provisions and establishing an alternative process for managing rental arrears. This is achieved by introducing the concept of a payment order. This process is very similar to the CTPO process with the exception that after a person fails to comply with a tribunal-ordered payment plan the landlord must go back to the ACAT before taking steps to evict the person. This provides an important safeguard for vulnerable people and clarifies the situation legally so that both landlords and tenants can proceed with certainty (emphasis added).
The CTPO was also an alternative to making a termination and possession order, but in operation it was more akin to a suspended T&P order than a separate order. The provision provided that:
49 Failure to pay rent
…
(3) Subsection (4) applies if—
(a)the tenant is, in the ACAT’s opinion, reasonably likely to pay the rent that has become payable as well as pay future rent as it becomes payable; and
(b)the tenant agrees to pay the rent that has become payable, and undertakes to pay future rent as it becomes payable, as required by the ACAT.
(4) Instead of making a termination and possession order under subsection (1), the ACAT may order (conditional termination and possession order) that if the tenant fails to pay the rent that has become payable, or future rent as it becomes payable, as required by the ACAT—
(a)the tenancy terminates at a stated hour on the day after the day when any rent becomes payable and is not paid; and
(b)the lessor becomes entitled to possession of the premises and all rent payable is payable immediately.
Under a CTPO, a lease would terminate as soon as the tenant missed an ordered payment, even by as little as a couple of dollars. The “concerns raised” in the case of Commissioner for Social Housing vMoffatt [2015] ACTSC 4, referenced in the Explanatory Memorandum, where that a breach of a CTPO sometimes resulted in a breach that went unnoticed or unactioned, creating a complicated legal situation. Also, the lease could be ended automatically for a minor breach late in the order process with the potential for injustice. The payment order provisions addressed these concerns by “provid[ing] that there is no self‑executing component of the new payment order provisions so that a breached order will not automatically end a tenancy” and ensuring that the tribunal would have supervisory jurisdiction over any eviction resulting from the breach.
Prior to the amendments, the tribunal’s practice with CTPOs had been to hear any application for breach on the same file that the CTPO was made on – invariably the original file under which the T&P order was sought. This is because when a tenant breached a CTPO, the tribunal had only two options: either the tenant was applying for the termination to be set aside and the lease reinstated, or the lessor was applying but for a warrant for eviction after breach of the CPTO. In either case, the application could readily be considered part of the same matter. This practice of maintaining a single file was continued when payment orders were introduced in 2018.
The respondent submitted that the continued practice of a single file was indicative of a single matter. This does not follow. The tribunal’s administrative practice cannot change the legal nature of any application under section 49B, and indeed to largely irrelevant to it.
Although it is not entirely clear, it would appear, having regard to the terms of section 49, that making of a payment order under section 49(3) is a final order that concludes an application for a TPO. A different section, section 49B, then provides a separate cause of action, arising from breach of that payment order with the possible outcome also being a termination and possession order. This contrasts to the process in relation to a CTPO where the application was not to make another termination and possession order on a different ground, but to issue a warrant (or re-establish the tenancy).
Accordingly, I will accept, for the purposes of the appeal (noting I have not had the benefit of legal submissions on the role of the registrar) that a failure to comply with a payment order under section 49B(2) is likely a new application, brought for breach of a payment order. It is not a continuation of the proceedings relating to the application under section 49(2) of the RT Act (being the initial application for a termination and possession order). Accepting this would mean that on 10 February 2021, the Commissioner made an application with respect to the tenant’s tenancy under section 49(2) of the RT Act. On 26 August 2021, the tribunal made a final order in that proceeding. Around a year later, on 23 August 2022 following breaches of the payment order, the Commissioner applied for a new termination and possession order under section 49B(2) of the RT Act and in doing so, the Commissioner commenced fresh proceedings in the tribunal (notwithstanding that the tribunal managed the matters under the same file number). If this is correct, then to characterise this application as a step in a continuous proceeding that commenced in February 2021, as the Original Tribunal did, was an error.
However, I do not need to decide this finally, because I do not think that the characterisation of the application (and proceedings) as interim or new makes any significant difference to the outcome in this case. This is because, on appeal, the test is not whether any error of law has been made, but whether a material error has been made. The Appeal Tribunal should not interfere with a decision unless the error is a material one that affected the outcome of the proceedings.[63] I am not satisfied that the error, if there was one, was in this case a material one, or that it ‘fundamentally’ distorted the decision reached by the Original Tribunal.
[63] Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [39]
As set out above, a payment order is only made after an application is made for a termination and possession order. It is not just an alternative ground of termination (similar to, say, an application for termination without cause under section 47), and nor is it merely a way to circumvent to the notice process usually required under section 49.[64] It is a cause action available only after previous proceedings before the tribunal, during which the tribunal has positively found the tenant has failed to pay past rent failure to pay rent and made an order requiring that they do so.
[64] As suggested by the appellant
As the Attorney-General’s speech makes clear, the payment order process was a replacement for the CTPO, but one whose proceedings would be “very similar”, but would require scrutiny and a positive decision by the tribunal, rather than being self‑executing. A payment order, like a conditional termination and possession order, is an opportunity for a tenant to demonstrate that, despite a failure to pay rent in the past, the tenancy is sustainable into the future, without the complexity and uncertainly of the tenancy having been automatically terminated. But it also provides an alternative path to termination of the tenancy where the tenancy proves unsustainable.
Hence, while payment orders are likely final orders in the sense that they complete the original termination and possession proceedings, this does not mean that the tenant returns before the tribunal for breach of a payment order with a blank slate requires or permits the tribunal exclude all consideration of the matters that passed before. As with CTPO, the history of the tenancy is clearly relevant to the consideration of both the substantive and procedural aspects of the proceedings. To require otherwise would be to undermine the purpose of a payment order, as an alternative to the making of a TPO where the tribunal is satisfied that the tenant can pay and should be given an opportunity to do so.
If any error of law was made, it made no material difference to the outcome, given that what the Original Tribunal had regard to was, essentially, the history of the tenancy and how the matter came to be back before the tribunal, and there was no error in considering those things in the context of the history of the tenancy as a whole, which is precisely what the Original Tribunal did.
Consequently, I am not satisfied that the Original Tribunal’s approach in considering the previous proceedings was in error.
As to the others considerations, CCL raised two concerns arising from the consideration of the two proceedings as a single process.
First, the appellant argued that the Original Tribunal made erroneous assumptions about the tenant’s access to assistance prior to the hearing. I do not accept this. The Original Tribunal opined that the applicant had legal representation on the previous occasion, and hence, that the appellant would have been informed of the consequences of breaching the payment order when this matter was previously before the tribunal.
Secondly, CCL submitted, the Original Tribunal assumed that the applicant had access to resources after being notified of these applications, while in fact CCL and Care Financial (Care) only became involved again after the Commissioner lodged the breach application. The appellant’s solicitor further contended that, due to the appellant’s medical conditions, it was unrealistic and unfair for the tribunal to expect the appellant to have begun preparing her case prior to being notified of the respondent's application on 23 August 2022, and hence, unrealistic to expect the appellant, as at the date of the original hearing, to have the kind of evidence needed to support an adjournment, let alone to respond to the substantive claim.
I accept that Care and CCL only became involved with the tenant again after the commencement of this process. However, the tenant had not been without options or advice. She was aware that she was required to pay rent as and when it fell due. She saw Care during the previous proceedings and developed a budget to assist her to meet that obligation. She must have known for some time that she was struggling to make the payments.

To her credit, it appears that the tenant did seek counselling in early 2021. Very unfortunately, she had difficulty obtaining a referral to public services who provide it. If indeed the tenant made every effort during that period to obtain counselling and mental health assistance, such a delay is an extraordinary indictment of service availability, but counselling was not the only option. The appellant’s personal circumstances and history may well have made dealing with outside agencies more difficult (indeed, the counselling was intended to address that) but it nonetheless open to her seek the assistance of Care again, or indeed of Companion House, or a GP, all of whom she had engaged with before, prior to being served with the notice of listing in these proceedings.
In any case, the tenant did seek assistance from Care prior to the final hearing, and Care assisted her to develop a budget that was relied upon at that hearing. The difficulty identified by the Original Tribunal was that the budget was not convincing, given the thin margins provided for in it. I agree with the Original Tribunal’s observations in this regard.
I am not satisfied that the tribunal erred in its conclusions in relation to these matters.

Was the appellant denied natural justice?

The next question if whether the appellant was denied a real opportunity to present her case.
The starting point is that the tribunal has an obligation to give parties a fair opportunity to prepare and present their case. This may require that proceeding be adjourned where a party has not had that opportunity. There is no fixed content to the duty to afford procedural fairness. As Mason J stated in Kioa v West [1985] HCA 81, “the expression “procedural fairness” … conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.”[65] In the context of a hearing, this includes a reasonable opportunity for a party to present relevant evidence.[66] However, justice is not denied if a party does not take that opportunity or is underprepared for reasons that were within their control.[67] When considering whether a party has had a reasonable opportunity to present their case, the entirety of the circumstances, including that party’s conduct and circumstances, and the history of the matter to date.
[65] Kioa v West [1985] HCA 81
[66] See Shrestha v Migration Review Tribunal [2015] FCAFC 87
[67] See Pye v Pye [2022] ACAT 91
The appellant referred the Tribunal to the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li). In Li, the High Court upheld found that the Migration Review Tribunal (MRT) refusal to grant an adjournment to an applicant was unreasonable. Ms Li had sought an adjournment of immigration review proceedings to allow the completion of a skills assessment. The MRT refused the application, observing that the MRT “consider[ed] that the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further.” On review, the High Court found that there had been a reasonable expectation that the assessment would be in her favour, and an expectation that it would be completed in a reasonable time (and indeed the report, which was completed prior to the appeal hearing, was in her favour) and no other party was impacted that the MRT’s reasons “lack an evident and intelligible justification” and were therefore unreasonable. Li is binding on this Tribunal and presents a compelling argument for an adjournment in a case where the parties are awaiting relevant evidence and where no injustice arises to any party.
Drawing upon Li, the appellant submitted that the effect of the Original Tribunal’s refusal to grant an adjournment was that the appellant was unable to present her case in the time, where there was no compelling reason why the adjournment should not be granted, and hence it amounted to a breach of procedural fairness.
The respondent relied upon the tribunal case of Campbell v Blackshaw & Evans [2017] ACAT 95 (Campbell), a case in which Li was distinguished by the appeal tribunal when considering a refusal by the tribunal to adjourn a hearing in a matter with some similarities to the present case, in that the applicant sought an adjournment to obtain further evidence. The Tribunal in Campbell[68] distinguished the circumstances on the grounds that:
(a)The Li proceedings were for administrative review of an immigration matter, while the Campbell proceedings were “a fence matter [where] there was an opposing party, final orders had been made some two years earlier, and the respondents … would have been prejudiced by the delay.”
(b)There was every likelihood Ms Li’s skills assessment would be provided and that it would be favourable, and the ultimate evidence demonstrated that this did in fact occur, where that was not the case in relation to the quote in issue in Campbell.
(c)In Li, the decision of the MRT “was not informed by any consideration other than the “asserted sufficiency of the opportunities provided to [Ms Li] to put her case” and there was no consideration of the merits of the case, while by contrast, in Campbell, “the decision not to adjourn the fence matter was informed by multiple competing considerations.”
(d)Both the nature of the proceedings and the impact of the lack of the adjournment in Li were very serious, while by contrast, the fence matter sounded in the amount of under $500 in relation to construction of the fence, and the removal of one tree.
[68] Campbell at [79]
This question is whether the Original Tribunal had an obligation to allow an adjournment for the appellant to obtain medical evidence as to the reason for past non-payment and establish a pattern of compliance to give credibility to that Care budget.
There are similarities between this case and Li which suggest an adjournment may have been appropriate.
However, in Li, the evidence was being finalised based on a past assessment. The appellant did not point to any binding authority that would require the tribunal to allow a party time to create further evidence through future conduct.
The appellant did point to previous decisions of this tribunal where a tenant was granted an adjournment to allow them time to demonstrate changed circumstances and future compliance. An example relied upon by the appellant on appeal was Commissioner for Social Housing v Alan Carter (A pseudonym) [2018] ACAT 16 (Carter).
In Carter, the Commissioner sought a termination and possession order for unpaid rent under section 49 of the RT Act. Mr Carter was granted an adjournment of just over a month to engage with Canberra Community Law, apply for a rebate and develop a financial plan. At the second hearing, the respondent's solicitor made submissions about, amongst other things, the respondent's mental illness. Although the tenant gave oral evidence, there was no credible expert or other evidence of either the existence of the condition or the consequences of it before the tribunal. Nonetheless, the tribunal adjourned the matter for a second time to allow the tenant to produce that further medical evidence, as well as demonstrate he and his daughter could pay rent.
Again, there are some similarities between Mr Carter’s circumstances and those of the respondent in the present circumstances. In other ways, however, there are material differences. Mr Carter had resided at the property for 17 years, and for the vast majority of that time he had paid rent “more or less regularly”, with sporadic incidences of mental illness, and the more serious events that predated the application. The present tenant’s payment history, on the other hand, is comparatively brief, and characterised by consistent non-payment and a very large debt accrued during that time. There is no evidence of compliance to which the current circumstances can be compared.
Carter demonstrates that there may be cases where a tribunal would consider it appropriate to adjourn the proceedings to allow a tenant to demonstrate a capacity to comply with a future order, and I agree with the appellant that the Original Tribunal had the discretion to do so in a case where there was a reasonable prospect that change would be demonstrated. However, I am not satisfied that he had an obligation to do so.
Ultimately, the facts of this case lie somewhere between Li and Campbell. On the positive, there was explanation from the appellant as to her why the evidence was not available, and there was some prospect that the evidence would make a difference, but the adjournment would still have been an exercise in speculation as to what could change by the time of the appeal. In Carter, the medical situation was not contested, and Li it was possible to reasonably anticipate what the report would say and the consequences for the application. The anticipated evidence in this case is more speculative.
Given the history of the tenancy, the limited contemporary evidence, the speculative nature of the future evidence, and the lack of evidence addressing the tribunal’s concerns about financial capacity, I am satisfied that neither procedural fairness nor the interests of justice required that the tribunal grant such an opportunity in this case. While other members may have made a different decision, I am not satisfied that the decision was no unreasonable or unjust as to be outside of the discretion available to the Original Tribunal. No material error arises.

The error of principle ground

The next ground is that the Original Tribunal erred by failing to properly consider, or giving insufficient weight to, the lack of prejudice to the Commissioner.
Pursuant to rule 7 of the ACAT Rules, one of the matters the tribunal must consider before granting an adjournment is the prejudice to each party, and, where relevant, to the public. Another is the disadvantage that the requesting party, or the public, may suffer if the adjournment were not granted.
The appellant submitted that when considering the request for the adjournment, the Original Tribunal failed to weigh the disadvantage and prejudice to the appellant against the prejudice to the respondent. In particular, the appellant says, there was a lack of prejudice to the Commissioner arising from the adjournment. In the alternative, the appellant argues that given that the Original Tribunal had determined that it could not be satisfied that it could make a new payment order on the evidence before it, refusing to grant an alternative would prejudice the appellant’s ability to seek an alternative order as there would be no evidence sufficient to justify it:
Nowhere in the respondent's submissions was the possible prejudice to the commissioner addressed and our submission is that had the original tribunal turned its mind, as it was obliged to, to the prejudice to the commissioner of granting adjournment the tribunal would have found that there was no prejudice to the commissioner and therefore that the adjournment should have been granted.[69]
[69] Transcript of proceedings, 25 October 2022, page 6, lines 39-43
The appellant submits that because of these two things (the single payment, and the BPay arrangement), had the Original Tribunal turned its mind to the possible prejudice caused to the Commissioner of granting an adjournment, it would have been satisfied that there was no prejudice to the Commissioner in allowing the tenant further time to obtain evidence to support her case.
For its part, the respondent submitted that the Original Tribunal did consider the prejudice to it, implicitly if not explicitly.
This being a matter in the T&P list, the Original Tribunal’s reasons were necessarily brief and oral. This is not a criticism, but a reflection on the nature of the matters before the Original Tribunal and the limited time available to him. The Original Tribunal’s reasons must be viewed in this light as observed in Campbell in relation to reasons:
It is not the role of the Appeal Tribunal to pore over written or transcribed oral reasons searching for possible inadequacies but rather to consider whether, taken as a whole, the reasons disclose that the Tribunal fell into error. A Tribunal at first instance should not feel obliged to slavishly record every detail of the evidence given by every witness, or to set out fine nuances or points of distinction, in order to demonstrate to a hypothetical Appeal Tribunal or Court that due consideration and weight has been given. The primary audience for reasons remains the parties, and reasons which set out the necessary elements in a manner proportionate to the context of the matter will ordinarily be sufficient.[70]
[70] [2017] ACAT 64 at [60]
A review of the transcript of the original hearing suggests that the Original Tribunal did not explicitly refer, in summing up, the issue of financial or other prejudice to the Commissioner should an adjournment be granted. However, it would be farcical to suggest that the Original Tribunal did not, in any way, consider prejudice to the respondent, or lack thereof. Such consideration is implicit in the Original Tribunal’s reasons.
The Commissioner is entitled to collect rent for properties that it manages. The Commissioner suffered financial disadvantage in the past and would continue to do so were the appellant not to continue to pay rent. That the tenant was over $12,000 in rent arrears was a fact of these proceedings, a fact acknowledged by the tribunal. A debt of this size, when viewed against the duration of the tenancy, is indicative of an inability to pay rent as and when it falls due over a significant period, which deprives the respondent of rent that it is owed. That pattern of missed payments was continuing. Evidence before the Original Tribunal showed that the appellant had missed four payments during the period of the payment order and on one further occasion, 6 October 2021, paid $20 less than she was ordered to pay. In such circumstances, where there is a pattern of long term, unaddressed rent default, to suggest that there was no prejudice, or no possibility of any further prejudice, to the respondent is simply not correct. I do not accept that there was no prejudice to the respondent, or that prejudice was not considered.
That being said, the usual way to deal with potential prejudice is to ameliorate it, rather than eliminate it. An order adjourning the hearing and permitting a lessor to have the matter relisted during the adjournment period if a payment is missed, is a not uncommon means of balancing rights, and such an order was made on the first return date of this matter. However, I do not think the failure to make another such order amounts to an error. This is a discretionary decision. The Original Tribunal had a legitimate basis to exercise that discretion the way it did.
In summary, I do not accept that the absence of prejudice or disadvantage to a party is, of itself, a reason why an adjournment should be granted. Prejudice, or relative prejudice to a party, is an important consideration, but it is not the only one as the majority of the High Court observed in Sali v SPC Ltd (1993) 67 ALJR 841.[71] In any case, further delay would have occasioned prejudice to the Commissioner in this case.

Would the adjournment have made a difference?

[71] Sali v SPC Ltd (1993) 67 ALJR 841 at [843]-[844]

The final question is whether the granting of an adjournment would or could have made a difference to the outcome – that is, had the tenant obtained the evidence, could it have made a difference to the ultimate decision?
As I understand the appellant’s argument, it is that the Original Tribunal should have granted her a further adjournment to gather evidence capable of satisfying the tribunal that she could pay the rent as and when it fell due in the future. In particular, the psychologist report could have explained her failure to pay and set out the steps taken to address those reasons, while evidence from her children could establish that they would assist with payments in the future, and time would have demonstrated capacity and willingness to pay.
My concerns about the speculative nature of this evidence are set out above. The Original Tribunal was being asked to anticipate what a report may say, and what third parties may agree to do. Whether to adjourn proceeding in such circumstances is an exercise of discretion not readily amenable to review.
However, even assuming that the evidence was obtained, I am not convinced it ultimately would have made a difference. Given that the children had been in the house since the commencement of the tenancy, additional evidence that they, now that their mother (and hence, themselves) was again facing eviction, would make contributions was unlikely to be persuasive. There was, in any case, no reason why that evidence could not have been obtained in the two-week adjournment period already provided.
The psychological report is a more difficult question. However, the Original Tribunal had already accepted, without the need for formal evidence, that the appellant had suffered significant trauma. It is not clear what more the report could add to this.
The appellant’s lawyer suggested the report could go to why, over the past several years, she had been unable to make consistent and regular payment, and that it would also address what she could do to change that behaviour.
Maybe, but that it far from certain. On the submissions put by the tenant, there appeared to be an assumption that the psychologist will confirm that the tenant’s failure to pay rent over the past four years is a consequence of underlying trauma, or PTSD, that has made it difficult for her to deal with personal matters or interact with authorities. That is just that – an assumption. The circumstances are very different to those in Li where “there was a proper basis for expecting a favourable outcome ... that was borne out by the event”.[72] In this case, there was much less certainty as to what the report would say. It had still, at as the time of the appeal, not been commenced.
[72] Li at [21]
It is also not clear whether the report would even have been of assistance. In Li, the skills assessment went to a determinative issue. In this case, given the tenant’s lengthy history of non-compliance, it is unlikely that a psychologist’s report itself, even if it set out treatment and care options, would be a basis to positively conclude that the tenant could meet a payment order. It was intended to set out only steps to be taken to address the defaults. At best, the report could have persuaded the tribunal to further adjourn the matter without making a final order, to allow the tenant time to deal with the barriers to payment identified in the report. The question arises: for how long? The tribunal is expected to be quick and efficient; when does adjourning proceedings for lengthy periods to ensure a change of circumstances of run afoul of these requirements? When do amendments begin to undermine the purpose of making payment orders? How do these kinds of lengthy adjournments sit with the objectives of the tribunal?
Nonetheless, despite these questions and some reservations, I am prepared to accept for the purpose of these reasons that the additional evidence may have made a difference, in the sense that it may have convinced the tribunal to allow the applicant a further period of time to establish a pattern of behaviour. Such a decision is within the discretion that would have been available to the Original Tribunal, had a report justifying it been before him. However, there is a significant difference between supposing that these matters may have made a difference and concluding that the Original Tribunal erred in not allowing those possibilities.
I note again that, to make this out as a ground of appeal, the appellant needed to establish either a material error of law, or a discretionary error in the sense of House v The King. I am not satisfied it has done so.

The question for the Original Tribunal was whether it should adjourn the proceedings to enable the appellant to construct a case. The proposed case was to be built upon evidence that was speculative in nature and, even in theory, did not address the Original Tribunal’s serious concern of her capacity to pay. The discretion was a discretionary one. I see no error in the Original Tribunal declining to grant a further adjournment based on speculation of this kind.

The fresh evidence – hardship – could it have reasonably changed the outcome?

No evidence was put before the Original Tribunal about the circumstances of the grandchild. The Appeal Tribunal has accepted fresh evidence on this point, and I have given it due consideration.
The evidence in the report from Companion House is indeed concerning. I accept that the evidence, if placed before the Original Tribunal, may have influenced the Original Tribunal’s exercise of discretion in relation to an adjournment. That is one reason why I let it in as fresh evidence on appeal. However, the question is not whether that information may have influenced the Original Tribunal, but whether, had that information been before the Original Tribunal, a decision to evict would have been an unreasonable one.
The fresh evidence would have been persuasive, and it is certainly foreseeable that it could have made a difference to the Original Tribunal’s views. However, it is but one factor. The evidence does not go to whether the child, and the child’s mother, had other options, perhaps a lease of their own. More fundamentally, it does not address the Original Tribunal’s fundamental concern about the appellant’s capacity to pay rent as and when it fell due, or to make the payments required any a payment order. It is unlikely to change the final outcome.
If any case, I must also consider the statutory declaration from ACT Housing.
The statutory declaration is not, on its face, a very helpful document. It leaves much unsaid and only makes sense in the context of additional submissions from the bar table by the ACT Housing advocate. Some of those submissions encouraged the tribunal to draw upon its own knowledge and experience of the respondent’s operational conduct.
However, as the tribunal has observed in relation to Commissioner for Social Housing v Tenant AA202154 & Ors [2022] ACAT 57:
40. Section 26 of the ACAT Act provides that the tribunal may inform itself in any way it considers is appropriate in the circumstances of the case. This means that the tribunal may have regard to the documents filed by the parties, communications to the tribunal by the parties, and evidence and submissions provided by the parties. Where an order is made for applications to be heard jointly, information provided on one application may be considered for another. In addition, the tribunal has its own knowledge and experience of practices in the real estate sector, (whether private or social housing) and of the usual conduct of matters in the tribunal. This latter category of information might be referred to as the tribunal ‘taking notice’ of certain facts or practices or applying its own specialist expertise.
41.However, the tribunal is not unrestrained in the use that may be made of this vast array of information. The tribunal must use the information available to it in accordance with law. For example, the tribunal must observe natural justice by apprising a party of information that it intends to rely upon in its decision-making that is not already apparent to the party. When reaching conclusions of fact the tribunal must consider only information of reliability and reasonable substance; give ‘appropriate’ weight to each piece of information and draw only those inferences that are rationally available.
[citation omitted]
The tribunal is a specialist tribunal, with some knowledge of how ACT Housing operates in practice, including the role of community organisations and social housing, and it would be unrealistic to expect the tribunal to ignore that knowledge.[73]
[73] Kalil v Bray (1977) 1 NSWLR 256 at [261]
I have taken note of my existing knowledge that ACT Housing can and does enter into sublease and similar arrangements with other social and community housing entities who may use different models when providing accommodation. The arrangements that have been put in place between ACT Housing and Catholic Care are clear enough on their face, when viewed against ACT Housing’s purpose and the history of this matter. ACT Housing is proposing that the head lease be transferred from ACT Housing to Catholic Care, who will presumably manage the property. The tenant and her family will be offered an option that, while not ideal, will allow them to remain in the property under an arrangement with Catholic Care, and therefore receive some protection from homelessness.
Continuing default of the rent would likely result in the termination of a community lease later, but it may also be that a different form community support will assist the tenant, and perhaps her family, to meet ongoing obligations. The current arrangements are not working.
Moreover, while there are chronic and concerning housing shortages, a government house is not the only form of emergency accommodation available. The child and his mother may well have been eligible for some other form of emergency housing.
I do not discount the trauma that may be associated with eviction. However, I cannot assume that the mother and child, or any person in the house, will inevitably be evicted into homelessness if the order stands. Nor can this be the only concern, even if true.

The tribunal erred in law by failing to have regard to the appellants, her children’s, or her grandchild’s rights to “protection”

The appellant argued that the Original Tribunal did not give proper consideration to her human rights, as required by the Human Rights Act 2004 (HR Act).
The Tribunal has set out its approach to considering issues arising under the HR Act in applications for termination of tenancy on several occasions. In Commissioner for Social Housing v Cook [2020] ACAT 36 (Cook), the approach was summarised as follows:
(a) A tenant is entitled to raise human rights issues in response to an application for termination and possession.
(b) Human rights issues are relevant matters to be considered by the Tribunal in the exercise of any discretion.
(c) If a respondent raises and relies on section 40C(2)(b) of the HR Act, then the ACAT may consider whether there has been a contravention of section 40B of the HR Act.
(d) In deciding whether there is a contravention of section 40B of the HR Act, ACAT must also consider whether the human right is subject to any reasonable limit, pursuant to section 28 of the HR Act.
(e) If ACAT arrived at the conclusion that there had been a contravention of section 40B of the HR Act, that contravention must be addressed within the context of ACAT's existing powers and processes. That is, it would be appropriate for ACAT to consider any contravention when exercising discretion whether to make a termination and possession order pursuant to the RT Act.
(f) Where a respondent raises and relies on section 40C(2)(b) of the HR Act, then the onus of proof is with that respondent. It is not for the applicant to establish on each occasion that a termination and possession order is sought, that they have acted in compliance with the requirements of the HR Act.[74]
[74] Cook at [23]
The HR Act applies to a territory authority[75] and any other entity performing a function of a public nature, which expressly includes the provision of public housing.[76] There is no doubt it applied to the respondent.
[75] Section 40(1) of the HR Act
[76] Sections 40A and 40A(3)(vi) of the HR Act
The rights that were engaged in this case was that in section 12(a) of the HR Act, “[t]he right not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily.”
The tenant's human rights were not expressly raised in the original hearing, and nor did the Original Tribunal expressly consider them. However, the effect of any termination on the client and family were considered. As per the tribunal in Cook, I am satisfied that the Original Tribunal did in practice consider the engagement of the human rights of the tenant and her family to privacy and to family. The Original Tribunal considered whether the proposed termination of their tenancy was lawful (as in, in compliant with the RT Act) and also whether it was for a proper reason, rather than being arbitrary. I am also satisfied that, in substance, the Original Tribunal considered proportionality and whether the breach justified an adjournment and termination, even if not addressing those principles expressly.[77]
[77] See Tenant v the Commissioner [2016] ACAT 49
In considering this appeal, I expressly turned my mind to the human rights issues, particularly in light of the fresh evidence that was not before the Original Tribunal.
There is no evidence before the Tribunal to indicate that the decision by the Commissioner to serve the termination notice, or to commence this application, was “arbitrary” in the sense that the Commissioner failed to apply internal policies or acted inconsistently with due process, or contrary to any legal process, or in breach of the residential tenancy agreement.[78] A decision made contrary to the HR Act may be incompatible with a human right and therefore unlawful even were made pursuant to a contract. However, a human right may be subject to reasonable limits, and in the case of public housing,[79] that limitation is a willingness and an ability to pay an agreed rent, as required by the legislative scheme. In the tenant’s case, it was also subject to the requirement to make payments as ordered under a payment order.
[78] Cook at [28]
[79] Which the legislature has asserted should be on similar terms to private residential tenancies
As the Original Tribunal observed, it is not immediately clear what the tribunal can or should do when presented with a family so seriously in debt and with a poor payment history. I agree with the respondent that it is not consistent with the RT Act for the tribunal to allow a tenancy that is financially unsustainable to continue indefinitely, and not unlawful to terminate a tenancy where this requirement cannot be met. On the limited evidence before this Appeal Tribunal, ACT Housing was acting reasonably and proportionately to implement an alternative to the current housing model, and that is a reasonably proportional approach consistent with the tenant’s human rights. I am not satisfied, even having regard to that fresh evidence, that the Original Tribunal erred.

A final issue

The effect of section 49C(3)(a) of the RT Act is that if the tribunal makes a termination and possession order under that section the tribunal must direct the registrar to issue a warrant. This means that when my order dismissing this appeal takes effect, the Original Tribunal’s direction to the registrar will stand, and the registrar has no discretion to do anything else but issue it. Once such a warrant is issued, the police officer executing the warrant[80] need only give the appellant two days’ notice of the proposed eviction. Neither the respondent nor the Tribunal have the discretion to delay an eviction once this legal process has been set in train.
[80] This is under section 40(1)(b) of the Residential Tenancies Act
An immediate warrant is not what either party wants.
For this reason, in addition to dismissing the appeal, the Appeal Tribunal will make an order suspending the decision in this matter for a period of two weeks, with the stay on eviction maintained during that period. At the conclusion of the period, the registrar will have no choice but to issue the warrant, but that will provide the respondent with time to contact the Australian Federal Police should execution of that warrant no longer be needed.

Confidentiality

Due to the nature of this matter and the medical evidence disclosed in relation to the grandchild, it is appropriate to make a non-publication order under section 39 of the ACAT Act to protect the grandchild’s personal information.

Conclusion

The Original Tribunal had before it an application for termination and possession orders following several breaches of a payment order. The fact that the breaches occurred was not in contest. That the tenant’s past trauma and mental health impacted her ability to pay rent in a timely manner was also not in issue. The tenant had taken some preliminary steps to arrange counselling to address her illness, but prior to this proceeding, this had not progressed beyond waiting for an appointment. She had not kept to a budget developed by Care, nor, prior to the commencement of these proceedings, had she sought further assistance from them. The tenant made a single payment between the first return date for this application and the final hearing, but I agree with the Original Tribunal that they were not a reasonable basis upon which the tribunal could conclude that the tenant would be reasonably likely to pay another payment order. Accordingly, the only decision for the Original Tribunal was whether it should decide the matter on the material available or grant an adjournment for the appellant to obtain further evidence and/or to establish a pattern of payment to support an application for another payment order.
Whether to grant an adjournment is a discretionary decision. The decision in House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as when a judge acts on a wrong principle or takes irrelevant matters into consider. This can be a high bar for an appellant to meet.
This matter is not an easy one. The tenant is vulnerable, her grandson even more so. However, the grounds for termination of the tenancy are clearly made out. The tribunal was under no obligation to adjourn the proceedings to allow the appellant to build a case when the question before the tribunal was whether she could reasonably be expected to pay. Even were an adjournment granted, it is unlikely that the anticipated psychological evidence would have addressed the fundamental underlying problems – the tenant’s unreliable history, her tenuous budget, and the unlikelihood that she would be able to pay a further instalment order (let alone the outstanding debt). The tribunal is not required to adjourn proceedings to give a party an opportunity to build a case.
The question before the Appeal Tribunal is not whether it would have approached the matter in the same way as the Original Tribunal, but rather whether the Original Tribunal was in error. No material errors are made out.

………………………………..

Presidential Member H Robinson

Date of hearing:	25 October 2022
Solicitor for the Appellant:	Ms J Walker, Canberra Community Law
Representative for the Respondent:	Mr S De Silva, ACT Government Solicitor