Noble v Centacare [2003] ACTSC 37 (16 May 2003)

Last Updated: 20 May 2003

JOHN NOBLE v CENTACARE [2003] ACTSC 37 (16 May 2003)

LEASES AND TENANCIES - resident of hostel for people in need of assistance - whether party to "residential tenancy agreement" for purposes of the Residential Tenancies Act 1997 (ACT) -whether boarder or lodger.

Residential Tenancies Act 1997 (ACT), ss 3, 5, 7, 10, 120, 121

Acts Interpretation Act 1901 (Cth), s 33

Legislation Act 2001 (ACT), s 6(1), s 180

Supreme Court Act 1933, s 20

Australian Capital Territory (Self-Government) Act 1988, s 48A

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117

Torrissi v Oliver [1951] VLR 380

Noblett and Mansfield v Manley [1952] SASR 155

Street v Mountford [1985] 2 All ER 289

Lewis v Bell [1985] 1 NSWLR 731

Bruton v London and Quadrant Housing Trust [1999] UKHL 26; [2000] 1 AC 406

Radaich v Smith & Anor [1959] HCA 45; (1959) 101 CLR 209

Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101

Commissioner for Housing v Ganas, [2003] ACTSC 34 (16 May 2003)

Aslan v Murphy [1989] EWCA Civ 2; [1990] 1 WLR 766

Sam Agresta v Francesco Agresta & Anor [2002] VSCA 23

Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR

De Domenico v Marshall [1999] FCA 1305; (1999) 94 FCR 97

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR

Fry v McGufficke (unreported) [1998] SCACT 20 (18 March 1998)

APPEAL FROM THE RESIDENTIAL TENANCIES TRIBUNAL

No SCA 65 of 2002

Judge: Crispin J

Supreme Court of the ACT

Date: 16 May 2003

IN THE SUPREME COURT OF THE )

) No. SCA 65 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JOHN NOBLE

Appellant

AND: CENTACARE

Respondent

ORDER

Judge: Crispin J

Date: 16 May 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.1. This is an appeal against a decision of the Residential Tenancies Tribunal refusing to hear a claim for compensation for wrongful eviction from a room at Ainslie Village said to have been the subject of a residential tenancy agreement.

2. For the sake of consistency with the Tribunal's judgment and the pleadings, I will continue to refer to "the respondent" in the singular, though "Centacare" is apparently not a body corporate but a business name employed by the Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn.

3. The claim was based upon the contention that, following a dispute with the respondent about complaints concerning his conduct, the appellant had been given a choice of retaining occupancy of his present room in Ainslie Village, but with a constant risk of eviction on 24 hours notice if further complaints about him were received, or moving to another room in the village without a separate bathroom. He had elected to move to the other room, but claimed that the ultimatum with which he had been presented amounted to a wrongful eviction from the room he had formerly occupied. He sought the sum of $1,000 in compensation.

4. The Tribunal found that the appellant had been a boarder or lodger rather than a tenant of the room he had formerly occupied and that, in those circumstances, section 5(d) of the Residential Tenancies Act 1997 (ACT) ("the Act") effectively excluded jurisdiction to entertain the claim.

5. The Tribunal found that the arrangement between the parties constituted a residential tenancies agreement as defined in s 3 of the Act which is in the following terms:

residential tenancy agreement means an agreement under which a person grants to another person (the tenant) for value a right of occupation of premises for use as a residence by the tenant (whether with or without other persons) -

(a) whether the agreement is expressed or implied; or

(b) whether the agreement is in writing, is oral or is partly in writing and partly oral; or

(c) whether the right of occupation is exclusive or not;

and includes such an agreement where the right of occupation is granted together with the right to use facilities, furniture or goods.

6. As Mr Thawley, who initially appeared for the appellant pointed out, this definition involved a significant departure from the common law principle that a tenancy agreement necessarily conferred a right of exclusive occupation.

7. However, section 5 provides that the Act does not apply in relation to a residential tenancy agreement if, inter alia, the tenant is a boarder or lodger. Hence, if the Tribunal was correct in regarding the appellant as falling within this description then it was equally correct in concluding that the Tribunal had no jurisdiction to entertain the proceedings.

8. In support of this conclusion, the Tribunal not only delivered extemporaneous reasons on 9 September 2002 but produced, three days later, a written statement of reasons. The notice of appeal and the submissions of counsel were initially directed to the written statement of reasons. The matter had been transferred to my list on short notice and I had not had time to read the appeal book prior to the hearing. Furthermore, in addressing the issues counsel for the parties were clearly conscious of the time constraints imposed by the imminent resumption of a part heard case which had been temporarily interrupted, and it was only after I had initially reserved judgment that I became aware of the fact that the written statement of reasons was not merely an edited version of the reasons previously given but was expressed quite differently. I then had the matter re-listed for directions as to the further conduct of the appeal, granted the appellant liberty to apply for leave to amend the notice of appeal to encompass an appeal against the earlier judgment and granted both parties liberty to file and serve further written submissions. An application for leave to amend the notice of appeal was subsequently made and granted and further written submissions were received from counsel for both parties.

9. The amended notice of appeal not only challenges the oral judgment delivered on 9 September 2002 but includes a further ground alleging that, in delivering the written judgment on 12 September 2002, the Tribunal was not entitled to make findings of fact or adopt reasons different from those made and adopted on 9 September 2002.

10. The suggestion that the Tribunal became functus officio upon orally delivering reasons for judgment was contested by Mr Toy, who appeared for the respondent. He pointed out that, in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117, Gleeson CJ had said, at par 8, that circumstances may arise in which a rigid approach to the principle of functus officio was inconsistent with good administration and fairness. The decisive question was whether the statute under which the decision maker had been acting manifested an intention to permit or prohibit reconsideration of the circumstances that had arisen. In the same case, Gaudron and Gummow JJ, with whom McHugh J agreed, suggested that unless a contrary intention could be discerned from the statute in question, s 33 of the Acts Interpretation Act 1901 (Cth) displaces the common law principle. Mr Toy pointed out that s 180 of the Legislation Act 2001 (ACT) expressly provides that a power given by a law to make a decision includes the power to reverse or change the decision and that s 6(1) provides that such a non-determinative provision may be displaced only "expressly or by a contrary intention." However, both the High Court's decision and the statutory provisions to which Mr Toy referred are concerned with power to reverse or change decisions rather than authority to deliver further reasons for decisions that have already been made.

11. Mr Toy also pointed out that s 120 of the Residential Tenancies Act 1997 (ACT) provides that, if no procedure is prescribed by the Act in relation to a particular matter in a hearing, the Tribunal may determine its own procedure and s 121 enjoins the Tribunal to proceed with as little formality and technicality as the requirements of that or any other Act and a proper consideration of the matter permit.

12. Nonetheless, the parties are entitled to expect a single coherent statement of reasons and, in my opinion, if a subsequent statement were to be issued containing substantially different reasons for the decision, they would have to be disregarded on appeal.

13. Such a principle does not, of course, prevent the Tribunal from subsequently issuing an edited version of the reasons already given to ensure that they are expressed with sufficient clarity. In the present case, the Tribunal's oral judgment concluded with the statement that the Tribunal was "happy to get that supplied as a written decision" and neither Mr Toy nor Ms Hopkins, who later appeared for the appellant, submitted that any variation between the oral and written reasons were of any real significance. Accordingly, whilst the written judgment is somewhat differently expressed, I think it should be treated as an edited version of the judgment given three days earlier.

14. The remaining grounds of appeal must be considered in the context of the limited evidence available to the Tribunal. It was common ground that the appellant commenced occupancy of room 8 in block or "house" N of premises known as "Ainslie Village" ("room 8") on 10 May 2001. He apparently did not sign a lease or any other document purporting to define the nature of his right of occupancy. There was contradictory evidence as to whether he signed an agreement to abide by the village rules which, inter alia, imposed certain restrictions on occupant's entitlement to have overnight guests but the Tribunal accepted that there had been an agreement which was partly oral and partly in writing, with the village rules comprising the written portion.

15. Whilst this finding was not challenged on appeal, there was little direct evidence as to the terms of the contract thereby formed. It appears that the appellant had previously occupied another room, described as "M19", but had been given a notice to the effect that room 8 in block "N" had become available and that, if he would like to move into it, he should contact a "Support Worker". However, what then ensued seems to have been left largely as a matter for speculation. The appellant gave evidence that he had not signed anything or had any agreement with the respondent endorsed by the Tribunal but said nothing about what may have occurred between him and the support worker or about the terms of any conversation that may have constituted the oral portion of the occupancy agreement.

16. A document purporting to be a copy of the village rules said to have constituted the written portion of the agreement was annexed to the application but, whilst the document bears the date "14.03.2002", it does not contain passages, attributed to the village rules in letters from the respondent dated 2, 12 and 17 April 2002, providing for "an immediate eviction, a 24 hour eviction, a site ban for a period of time, a `show cause' ...or a warning." The letters in question were also annexed to the application and there was no suggestion, either in the proceedings before the Tribunal or on appeal, that the village rules then prevailing had not contained the passages attributed to them. Nor was there any other evidence as to the currency, accuracy or completeness of the rules reflected in the other document. Hence, it is uncertain whether the whole of the written portion of the agreement can be adequately gleaned from this document.

17. The village rules set out in the document also provided for "house rules" to be made by "the lessor/manager" at the request of a majority of the residents living in "that house." The village rules also provided that failure to comply with house rules "constitutes a breach". In fact, whilst a document entitled "Draft - Rules N house - for Discussion" was annexed to the application, the appellant gave evidence that such rules were not initiated whilst he was a resident of the "house", which was presumably block "N". However, the provisions in the village rules relating to house rules suggest that any contract into which the village rules had been incorporated must have envisaged that the occupant's rights could be affected by any such rules and that a failure to comply with them could be regarded as a breach of contract.

18. Given this paucity of evidence concerning the terms of the agreement, counsel for both parties sought to rely upon evidence as to what actually happened when the appellant commenced occupancy of room 8.

19. The appellant said that he was initially provided with some meal tickets and commenced making fortnightly payments, which he referred to as "rent" and the respondent referred to as "tariff". He also made some additional payments for the provision of electricity and other services though it is not clear from the evidence how these payments were calculated.

20. There was a common key to each block and each resident had a key to his or her own rooms. The respondent also retained keys for all rooms in the village. The block contained a communal room and the respondent cleaned it and removed rubbish from it. The respondent provided other support services to residents including the mediation of disputes between residents and arrangements for "house meetings" to discuss situations that affected the village community. The available services also included emergency intervention such as contacting police, ambulance services or providing other assistance to residents. However, the services did not extend to the provision of meals and the respondent did not provide the appellant with linen or cooking equipment.

21. The Tribunal referred to evidence that residents of Ainslie Village had a range of needs and that they were offered a range of services, with some residents being subject to a far greater degree of control than would be expected in a tenancy relationship. The appellant and others in his particular block apparently needed little assistance and the Tribunal observed that, if each resident were to be considered in isolation, it might be possible to conclude that some were tenants and some were not. It found, however, that this would give rise to a ridiculous situation of a kind "not contemplated by the legislature at the time of enactment". It also cited various opinions contained in a report of the Community Law Reform Committee including, apparently, an opinion that residents of Ainslie Village could be described as boarders and lodgers. Having regard to "the rights" of the management to enter rooms, restrictions on the conduct of residents, especially in relation to visitors, and the "community" nature of the Village, the Tribunal concluded that the appellant had been a boarder or lodger. Hence, as mentioned earlier, it ruled that s 5(d) of the Residential Tenancies Act 1997 ("the Act") effectively excluded jurisdiction to entertain the claim.

22. In his written submissions Mr Thawley advanced the proposition that, once there is a residential tenancy agreement, s 7 of the Act provides that the agreement must contain the prescribed terms found in schedule 1 to the Act and that inconsistent terms cannot be adopted by the parties without express approval of the Tribunal under the endorsement provisions in s 10. Hence, unless the parties had obtained such an endorsement, the agreement was necessarily subject to the jurisdiction of the Tribunal. During his oral submissions he resiled from this proposition, conceding, in my view rightly, that the provision in s 5, excluding from the application of the Act residential tenancy agreements in which the tenant was a boarder or lodger, operated independently of the provision in s 7.

23. He submitted, however, that the Tribunal had erred in the construction of the term "boarder or lodger" and in the application of that construction to the facts proven in evidence. Neither of the terms "boarder" or "lodger" are defined. He argued that the legislature had plainly intended to adopt the common law meaning of these words and that the test was essentially whether the occupant had the right to exclusive possession of the premises. In considering this issue it was appropriate to take into a number of factors such as the apparent intention of the parties, the appearance of the relationship between them, the degree of control which the landlord retains over the premises, the nature and extent of any continuing right of entry and the nature and extent of any services provided to the occupant.

24. Mr Toy argued that since the terms of s 5 provide that an occupancy arrangement not involving a right to exclusive possession may constitute a residential tenancy agreement as defined, the presence or absence of such a right may no longer be used as a criterion for determining whether the relationship in question is one of landlord to boarder or lodger. I am unable to accept this submission. As mentioned earlier, the Act does not contain any definition of these terms and, perhaps paradoxically, the provision in s 5, that the Act has no application to residential tenancy agreements where the tenant is a boarder or lodger, would appear to exclude any possibility that an issue as to whether a person fell within that description could be determined by reference to its provisions. In any event, I am satisfied that the terms were intended to bear their ordinary meaning.

25. The common law is replete with cases concerning the circumstances in which an occupier will be held to be a boarder or lodger and I will mention but a few of the judicial pronouncements on this question.

26. In Torrissi v Oliver [1951] VLR 380 at 385, Coppel AJ said:

I doubt whether any guiding principle can be discovered from the cases more specific than this: that a tenancy of a room or rooms in a dwelling house will be shown to exist where the occupier has not only the sole right to occupy the room or rooms but has the right to exclude the landlord therefrom. This is sometimes expressed by saying that if the landlord retains control of the rooms in question the occupier is a lodger and not a tenant.

27. In Noblett and Mansfield v Manley [1952] SASR 155 at 158 Mayo J expressed the concept in somewhat different terms, explaining that:

The primary and usual meaning of "lodger", as so defined, is "one who resides as an inmate in another person's house, paying a certain sum periodically for the accommodation", or "one who occupies an hired room in another person's house" . . . A "boarder" is "one who . . . has his food, or food and lodging, at the house of another for compensation, one who lives in a boarding house, or with a family as one of its members, at a fixed rate; one who has food at another's table or meals and lodgings in his house for pay, or compensation of any kind.

In ordinary circumstances with both lodger and boarder legal possession remains in the person who provides room or rooms, or meals. He retains possession and control over rooms and means of ingress and egress, but grants license to guests who pay, or give consideration for the privilege.

28. In the subsequent case of Street v Mountford [1985] 2 All ER 289 at 293, Lord Templeton said that:

An occupier of residential accommodation at a rent for a term is either a lodger or a tenant. The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. A lodger is entitled to live in the premises but cannot call the place his own . . .

If on the other hand residential accommodation is granted for a term at a rent with exclusive possession, the landlord providing neither attendance nor services, the grant is a tenancy; any express reservation to the landlord of limited rights to enter and view the state of the premises and to repair and maintain the premises only serves to emphasise the fact that the grantee is entitled to exclusive possession and is a tenant.

29. In Lewis v Bell [1985] 1 NSWLR 731 at 735, Mahoney JA added the concise explanation that:

In deciding . . . whether what has been granted is the right to exclusive possession, the Court, in the process of construction, has in practice looked inter alia to two things: the nature of the rights which, in terms, have been granted; and the intention of the parties.

30. In Bruton v London and Quadrant Housing Trust [1999] UKHL 26; [2000] 1 AC 406 the House of Lords considered a somewhat unusual case in which a housing trust had been granted a licence by a local authority to use a number of properties for the provision of temporary accommodation for homeless persons. The trust undertook to ensure that no occupier was given security of tenure without the Authority's consent. Mr Bruton had signed an agreement with the trust for the occupation of a flat in one of the properties on a "weekly licence". Lord Hoffman with whom the majority of the House of Lords agreed, said at 414:

(Counsel for the trust) submitted that there were "special circumstances" in this case which enabled one to construe the agreement as a licence despite the presence of all the characteristics identified in Street v Mountford [1985] UKHL 4; [1985] AC 809. These circumstances were that the trust was a responsible landlord performing socially valuable functions, it had agreed with the Council not to grant tenancies, Mr Bruton had agreed that he was not to have a tenancy and the Trust had no estate out of which it could grant one.

In my opinion, none of these circumstances can make an agreement to grant exclusive possession something other than a tenancy . . .

31. Whilst his Lordship did not refer to the High Court's decision in Radaich v Smith & Anor [1959] HCA 45; (1959) 101 CLR 209, this approach seems to have reflected the principles acknowledged in the judgment of Windeyer J:

Whether when one man is allowed to enter upon the land of another pursuant to a contract he does so as licensee or as tenant must, it has been said, "be in the last resort a question of intention" ...But intention to do what? - Not to give the transaction one label rather than another. - Not to escape the legal consequences of one relationship by professing that it is another. Whether the transaction creates a lease or a licence depends upon intention, only in the sense that it depends upon the nature of the right which the parties intend the person entering upon the land shall have in relation to the land.

32. Despite the striking paucity of evidence as to the terms of the agreement between the parties, Mr Thawley submitted that it clearly conferred upon the appellant a right to the exclusive occupancy of room 8. He maintained that it was clear from the respondent's evidence that the appellant's "only right" to enter his room had been to carry out six monthly inspections. In fact, the appellant did not make an explicit assertion to that effect though he did say that save for certain emergency situations no-one could get access to the room without his permission. Mr Thawley also relied upon evidence by the appellant to the effect that whilst the respondent retained a key to the room staff entered it only to make an inspection at six monthly intervals and they did so only after sending a letter two weeks in advance requesting permission to do so. These assertions were neither challenged in cross-examination nor rebutted by evidence adduced on behalf of the respondent, though the statement of particulars provided on the appellant's behalf asserted that the inspections had occurred every three months. Furthermore, the appellant said in evidence that, "they're a landlord, I'm a tenant". The Tribunal made no express finding accepting the appellant's evidence in this respect but I am prepared to assume that it reflected the appellant's perception of the legal effect of the agreement.

33. Mr Thawley also attacked a number of subsidiary findings, submitting that the Tribunal had erred in concluding that:

* the management's right to enter rooms extended beyond the control exercised by an ordinary landlord;

* the "term" restricting visitors indicated that the appellant was a boarder or lodger;

* many residents were subject to far greater control than would be expected in a normal landlord and tenant relationship;

* the nature of the appellant's tenure should not be considered individually but be reference to an assumption that it would be "ridiculous" to conclude that some residents were tenants and others were not.

34. On the other hand, Mr Toy submitted that all of these points should be considered in the context of evidence from Mr Champion, who was the general manager of Ainslie Village, that the village was an ACT Housing facility, operated by the respondent for "crisis, sort of short-term assistance sort of support". Staff supported the residents and the buildings 24 hours per day. Most people had a "screen interview" to enable arrangements to be made for the provision of support. The nature of that support depended upon the level of the person's capability or disability and ranged "from counselling to drug and alcohol hook up to mental health assistance, and very much around, really, supporting the client situation. People were generally grouped together so that their support needs were roughly similar, with some blocks within the village having a more intense level of service than others. He agreed that one would "need to look at the exact house where someone's living in, to work out what their actual arrangement is". It appears that Block "N" was a stable "house" requiring little support but Mr Toy argued that, viewed overall, the provision of accommodation in accordance with arrangements described by Mr Champion should not be construed as giving rise to a leasehold interest and that those so accommodated were obviously boarders or lodgers.

35. In considering any challenge to the Tribunal's findings it is important to bear in mind that the Tribunal was not bound by the rules of evidence and was entitled to inform itself in such manner as it thought appropriate: see s121 of the Act.

36. Furthermore, whilst aware of the decision of the Full Court of the Federal Court of Australia in Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101, during the course of his oral submissions Mr Thawley made it clear that the appeal was brought only under s 126 of the Act and accepted that it was incumbent upon the appellant to establish that the decision was vitiated by an error or errors of law and that it could not be founded upon any perceived error of fact. In further written submissions dated 27 March 2003 he departed from this approach, submitting that the Court also had jurisdiction under s 20 of the Supreme Court Act 1933 and citing the decision of the Full Court of the Federal Court of Australia in Kelly v Apps (supra). However, neither he nor Ms Hopkins, who subsequently appeared for the appellant, further addressed this issue and, for the reasons given in Commissioner for Housing v Ganas [2003] ACTSC 34 (16 May 2003), I am of the opinion that the general jurisdiction provided by s 20 of the Supreme Court Act and s 48A of the Australian Capital Territory (Self-Government) Act 1988 cannot be invoked unless an appellant can demonstrate that it is necessary for the administration of justice.

37. Hence, the decisive question is whether the appellant has been able to demonstrate that the Tribunal's decision was vitiated by error of law. It is not always easy to distinguish issues of law from issues of fact, especially when an ultimate conclusion is based upon a combination of facts and circumstances. In the present case, the finding that the agreement did not provide for exclusive possession, even if ultimately a conclusion of law, appears to have been reached, not by the construction of contractual terms clearly established by the evidence, but by inferences drawn, at least in part, from facts such as the nature of the "village community" and the subsequent course of dealings between the parties. Findings of fact may themselves be attended by errors of law, as when there is no evidence to support them, but it may also be difficult to establish errors of that nature in the context of the Tribunal's broad power to inform itself in any manner it considers appropriate.

38. In my opinion, it was entirely appropriate for the Tribunal to take into account the nature of Ainslie Village, the purposes it was intended to serve and the manner in which it was administered. It is true, as Mr Thawley pointed out, that a charitable intention on the part of the landlord will not prevent a tenancy from arising from an agreement providing for the exclusive occupancy of residential premises. In the present case, however, where there was little direct evidence as to the terms of the agreement, the Tribunal was substantially dependent on inferences drawn from circumstances capable of casting light on the likely intention of the parties. Its unchallenged finding that the village rules formed part of the agreement is significant, if only because those rules provide evidence of a standard approach in relation to occupancy agreements and actually advert to "the boarding agreement". This provision not only suggests that there was a common agreement for all residents but that it provided for residents to occupy their rooms as boarders rather than tenants.

39. That is what one might have expected in relation to an undertaking of this nature. Whilst, as Mr Champion explained, some residents required more care and attention than others, it was not an institution like some retirement villages in which there was an apparent line of demarcation between substantially self-sufficient tenants of self contained units and residents of attached nursing homes substantially dependent upon the care of others. Furthermore, whilst people were allocated to different blocks by reference to the extent of their need for support, the Tribunal was entitled to take into account the fact that the village was generally intended to provide "crisis" support for people in need. Whilst there were long term residents, it would have been unrealistic for the Tribunal to have assumed that needs generally remained constant and that the allocation of residents to different blocks on the basis of the level of care required would not need to be reconsidered as the physical or psychological condition of some improved and others deteriorated. In this context, it was, in my opinion, open to the Tribunal to draw an inference that the management would not have intended to create a situation in which some residents were tenants and others were not.

40. In view of this conclusion, issues relating to the provision of services, rights of entry, restrictions on visitors and control of behaviour must be considered, not only by reference to their particular application to the appellant, but in the context of arrangements affecting the general body of residents.

41. As the Tribunal observed, the range of services provided to some residents clearly extended well beyond that attributable to a landlord and tenant relationship. Indeed the facility was apparently maintained for the express purpose of meeting the particular needs of disadvantaged people.

42. In considering whether the agreement provided for exclusive possession, the decisive question was not whether employees of the respondent frequently entered the appellant's room or even whether they sought his permission to do so but, rather, whether the agreement between the parties was such that he would have been entitled to deny them entry save for inspections of that nature. Whilst it is true that the appellant gave evidence that no-one could get access to his room other than for emergencies without his permission, it is by no means clear that this proposition was based upon a perceived absence of legal entitlement rather than simple courtesy and, perhaps, the fact that he had not at that time displayed any need for support or assistance of a kind that would have required a more assertive or invasive approach. It is difficult to imagine that any responsible body providing residential accommodation and care for people suffering from problems relating to alcohol or drug abuse or the state of their mental health would agree to terms preventing entry to provide meals, prescribed medication or emergency assistance. In my opinion the evidence certainly did not compel the Tribunal to infer the existence of such terms.

43. Similarly, it is not the retention of keys that is important but the purpose of any term providing for their retention. As Lord Donaldson MR said in Aslan v Murphy [1989] EWCA Civ 2; [1990] 1 WLR 766 at 773:

A landlord may well need a key in order that he may be able to enter quickly in the event of emergency: fire, burst pipes or whatever. He may need a key to enable him or those authorised by him to read meters or do repairs which are his responsibility. None of these underlying reasons would of themselves indicate that the true bargain between the parties was such that the occupier was in law a lodger. On the other hand, if the true bargain is that the owner will provide genuine services which can only be provided by having keys such as frequent cleaning, daily bed making, the provision of fresh linen at regular intervals and the like, there are materials from which it is possible to infer that the occupier is a lodger rather than a tenant. But the inference arises not from the provision of the keys but from the reason why those provisions were provided.

44. In the case of Ainslie Village, the Tribunal would have been entitled to infer that keys were retained as part of an overall policy intended to ensure that staff could gain entry for the provision of services such as cleaning and the provision of meals and other assistance.

45. The degree of control exercised over residents seems to have exceeded that normally imposed by a tenancy agreement and to have been attributable to the special needs of residents of the village and, perhaps, to the need to protect others from conduct attributable to the conditions from some of the residents suffered. It is also significant that the restrictions were imposed by village rules. Those rules presumably changed from time to time and, as mentioned earlier, correspondence before the Tribunal suggested that that a failure to comply with them might result in immediate eviction, a 24 hour eviction, a site ban for a period of time, a "show cause" where the resident was asked to meet with management to explain why he should not be asked to leave or a warning. Even if no house rules applied to residents in the block containing the appellant's room, the provisions in the village rules relating to such rules effectively incorporated into the agreement between the parties terms that would have enabled the conduct of residents to be further controlled by rules imposed by other residents.

46. Despite Mr Thawley's carefully reasoned argument, I am satisfied that the Tribunal was entitled to conclude that the appellant had been a boarder rather than a tenant of Ainslie Village.

47. In the alternative, Mr Thawley submitted that the Tribunal had made an error of law in failing to provide sufficient reasons. He cited the decision of the Victorian Court of Appeal in Sam Agresta v Francesco Agresta & Anor [2002] VSCA 23 in which Buchanan JA (with whose judgment Callaway and Chernov JJA agreed) succinctly stated the following principles:

Want of reasons may amount to an error of law where the absence of reasons would frustrate a right of appeal. That will occur if the appellate court is unable to ascertain the reasoning upon which the decision is based. Whether reasons are inadequate in this sense will depend upon the circumstances of the case. (citations omitted)

48. Whilst there may be scope for debate about whether the nature and extent of the reasons that must be supplied by tribunals, there can be no doubt that these broad principles apply, at least when there is a right of appeal: see, for example Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 per Woodward J at 507; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 per Wilcox J at 481; and De Domenico v Marshall [1999] FCA 1305; (1999) 94 FCR 97 per Madgwick J at 117.

49. The question that usually arises on appeal is not whether reasons were necessary but whether those provided were sufficient to comply with these principles. Whilst a tribunal must reveal the grounds which have led it to particular conclusions on the principal issues in the case, it is not necessary for it to detail every factor it has found to be relevant or irrelevant: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per Mahoney J at 270; and Fry v McGufficke (unreported) [1998] SCACT 20 (18 March 1998) at par 14. Furthermore, in considering whether the these principles have been infringed an appellate court must be conscious of the fact that reasons can only be as precise as the nature of the evidence will permit.

50. In the present case, the real difficulty that arises on appeal is the same as that which arose in the proceedings before the Tribunal: namely, the paucity of evidence as to the terms of the agreement between the parties. The reasons provided by the Tribunal may not include findings as to the precise terms of the agreement but that is obviously because the evidence did not reveal them and the Tribunal was left to the best it could on the limited evidentiary basis with which it was presented.

51. I am not satisfied than any appealable error has been demonstrated. The appeal must be dismissed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 16 May 2003

Counsel for the appellant: T M Thawley and T Hopkins

Solicitor for the appellant: Welfare Rights & Legal Centre

Counsel for the respondent: P Toy

Solicitor for the respondent: Deacons

Dates of hearing: 5 March 2003, 28 April 2003

Date of judgment: 16 May 2003