Tong v Tong

Case [2021] ACAT 8

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

TONG v TONG (Appeal) [2021] ACAT 8

AA 4/2020 (RT 4/2020)

Catchwords:               APPEAL – residential tenancies – application for removal to Supreme Court – section 83 of the ACT Civil and Administrative Tribunal 2008 – whether there is a serious issue to be tried – balance of convenience – obligation to observe procedural fairness – where removal to the Supreme Court avoids the fragmentation of legal issues and ensures consistency on findings of fact – removal to the Supreme Court granted – interim application – stay of termination and possession orders

Legislation cited:        ACT Civil and Administrative Tribunal Act2008 ss 7, 53, 83, 87

Family Provision Act 1969
Residential Tenancies Act 1997 s 6A

Cases cited:ABC v Lenah Game Meats Pty Ltd [2001] HCA 63

American Cyanamid Co v Ethicon [1975] AC 396
Coutts v Walls [2019] ACAT 66
In the Matter of Toby [2020] ACAT 90
Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207

Negri v Secretary, Department of SocialServices [2016] FCA 879
Nicholas John Holdings Pty Ltd v ANZ Banking Group [1992] VR 715
Singh v Registrar of Firearms [2015] ACTSC 186

Tribunal:  Acting Presidential Member Prof. P Spender
  Member E Trickett

Date of Orders:  28 October 2020

Date of Reasons for Decision:         4 February 2021

AUSTRALIAN CAPITAL TERRITORY             )

CIVIL & ADMINISTRATIVE TRIBUNAL        )         AA 4/2020 (RT 4/2020)

BETWEEN:

SU QIN ZHU TONG

Appellant

AND:

LE NGOC TONG

Respondent

APPEAL TRIBUNAL:      Acting Presidential Member Prof. P Spender

Member E Trickett

DATE:28 October 2020

ORDER

The Tribunal orders that:

  1. Pursuant to section 53 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), paragraphs 1, 2 and 3 of the orders made on 11 March 2020 are stayed until 1 March 2021.

  2. The matter is removed to the Supreme Court pursuant to section 83(2) of the ACAT Act.

  3. The application made by the respondent on 19 October 2020 to adduce fresh evidence on the appeal is adjourned for consideration by the Supreme Court.

…………Signed……………..

Presidential Member Prof. P Spender

For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

  1. By way of application in this appeal, the applicant sought orders pursuant to sections 53 and 83 of the ACT Civil and Administrative Tribunal Act2008 (the ACAT Act). The Appeal Tribunal made orders on 28 October 2020 and the Tribunal delivered brief oral reasons on that date. Further to a request for written reasons made by the applicant’s solicitors, the Appeal Tribunal prepared more comprehensive reasons that are set out below.

  2. When preparing these written reasons for decision, the Tribunal has kept in mind that it is “permitted to elaborate on its oral reasons and improve their expression, so long as the substance of the reasons [is] not altered, and the reasoning remained consistent.”[1]

Reasons for Decision

[1] In the Matter of Toby [2020] ACAT 90 at [5], citing Negri v Secretary, Department of…

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Tong v Tong [2021] ACAT 8
Case
[2021] ACAT 8
Decision Date

CaseChat Overview and Summary

The matter of Tong v Tong arose in the Australian Capital Territory Civil and Administrative Tribunal, where the primary dispute involved a residential tenancy. The respondent, who was the tenant, applied for the removal of the matter to the Supreme Court under section 83 of the ACT Civil and Administrative Tribunal Act 2008. The application sought the removal on the grounds that there was a serious issue to be tried, and that it was in the interests of justice to avoid the fragmentation of legal issues and ensure consistency in findings of fact.

The legal issues before the Tribunal included whether there was a serious issue to be tried, whether the balance of convenience favoured removal to the Supreme Court, and whether the Tribunal had an obligation to observe procedural fairness in this context. The Tribunal had to determine if the removal of the case would avoid the fragmentation of legal issues and ensure consistency in findings of fact, while also considering the balance of convenience and procedural fairness.

In its reasoning, the Tribunal found that there was indeed a serious issue to be tried, and that the balance of convenience favoured the removal of the matter to the Supreme Court. It held that the removal would avoid the fragmentation of legal issues and ensure consistency on findings of fact. The Tribunal also noted that it had an obligation to observe procedural fairness, which was satisfied by allowing the respondent an opportunity to present their case in the Supreme Court. The application for removal was therefore granted, and the matter was removed to the Supreme Court. Additionally, the interim application for a stay of the termination and possession orders was also granted, with the stay to remain in effect until 1 March 2021. The application to adduce fresh evidence was adjourned for consideration by the Supreme Court.

Orders

Orders of the court

The Tribunal orders that:

1. Pursuant to section 53 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), paragraphs 1, 2 and 3 of the orders made on 11 March 2020 are stayed until 1 March 2021.

2. The matter is removed to the Supreme Court pursuant to section 83(2) of the ACAT Act.

3. The application made by the respondent on 19 October 2020 to adduce fresh evidence on the appeal is adjourned for consideration by the Supreme Court.

…………Signed……………..

Presidential Member Prof. P Spender

For and on behalf of the Tribunal

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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