Jones v Commissioner for Housing for the ACT [2003] ACTSC 52 (30 June 2003)

Last Updated: 2 July 2003

SONIA JONES v COMMISSIONER FOR HOUSING

FOR THE AUSTRALIAN CAPITAL TERRITORY

[2003] ACTSC 52 (30 June 2003)

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

Residential Tenancies Act 1997, s 126

Supreme Court Act 1933, s 20

Tenancy Tribunal Act 1994, s 58

Discrimination Act 1991, s 108D

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

Rose v Snape [2000] ACTSC 115

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

FAI Properties Pty Ltd v Apostolopoulos [2002] ACTSC 58

Harrison v Commissioner for Housing [2003] ACTSC 22

Commissioner for Housing v Pamela Key [2003] ACTSC 44

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

ON APPEAL FROM THE RESIDENTIAL TENANCIES TRIBUNAL

No SCA 7 of 2000

No SCA 64 of 2002

Judge: Connolly J

Supreme Court of the ACT

Date: 30 June 2003

IN THE SUPREME COURT OF THE )

) No SCA 7 of 2000

AUSTRALIAN CAPITAL TERRITORY ) No SCA 64 of 2002

ON APPEAL FROM THE RESIDENTIAL TENANCIES TRIBUNAL

BETWEEN: SONIA JONES

Appellant

AND: COMMISSIONER FOR HOUSING

FOR THE AUSTRALIAN

CAPITAL TERRITORY

Respondent

ORDER

Judge: Connolly J

Date: 30 June 2003

Place: Canberra

THE COURT ORDERS THAT:

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

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

3. The parties have liberty to apply on costs.

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

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

Jurisdiction of this Court to deal with an appeal from the Residential Tenancies Tribunal

3. Section 126(1) of the Residential Tenancies Act 1997 (the Residential Tenancies Act) provides that:

a party to a tribunal hearing may appeal to the Supreme Court on a question of law from a decision of the tribunal in that hearing.

4. The plain meaning of this section is that appeals from the Tribunal to this Court are limited to appeals on a point of law, and that a general merits review is not available. The limitation of appeals to points of law and procedural fairness (which is itself a point of law) was recommended in the Australian Capital Territory Community Law Reform Committee Report No 8, Private Tenancy Law, 1994, which was the basis of the legislation, and this is reflected in the explanatory memorandum.

5. It seems clear to me that the legislative intent here is that appeals from the Residential Tenancies Tribunal to this Court are to be limited to appeals on a point of law, as is common practice throughout Australia. The scheme of the Act is that a general review right is created in an administrative tribunal, and the decision of that tribunal can be reviewed as to the law but not the merits by the Supreme Court.

6. This would normally be the end of the matter, but the question in the Australian Capital Territory has become complicated by the remarks of Wilcox J in the ex tempore reasons in Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101, where it was suggested that the grant to this Court of "all original and appellate jurisdiction that is necessary to administer justice in the Territory" in s 20 of the Supreme Court Act 1933 could be taken to "ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory", and so to confer a broader appeal right than that created by a specific and limited statutory right of appeal.

7. The potential scope of this doctrine has been noted with concern by members of this Court. In Rose v Snape [2000] ACTSC 115, Higgins J, as he then was, said at [47]-[48]:

It now seems that, if Kelly v Apps is to be given full sway, the ACT legislature will be powerless to limit appeals to this Court if this Court is persuaded that an appeal is necessary to do justice.

Is leave no longer necessary for Small Claims appeals? May appeals from the Administrative Appeals Tribunal be brought on the merits? Should this Court now regard itself as having jurisdiction to try summary offences? If so, by Judge alone or by Jury?

8. These questions may require reconsideration of the Kelly v Apps doctrine by a Full Court in the future, but I note that a provision equivalent to s 126 of the Residential Tenancies Act limiting appeals from the tribunal dealing with commercial tenancies to points of law (s 58, Tenancy Tribunal Act 1994) has been given effect by Crispin J in FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd [2000] ACTSC 82, and by Spender J in FAI Properties Pty Ltd v Apostolopoulos [2002] ACTSC 58. In Harrison v Commissioner for Housing [2003] ACTSC 22, I applied this reasoning to hold that an appeal from the Discrimination Tribunal to this Court is limited, as is stated in s 108D of the Discrimination Act 1991, to an appeal on a point of law.

9. Section 126 of the Residential Tenancies Act, on its face, limits appeals from the Tribunal to this Court to appeals on a point of law, and it seems to me that the clear legislative intention that the Supreme Court should be limited to reviewing decisions of the Residential Tenancies Tribunal to reviews on a point of law must be given effect. I therefore turn to the question of whether an error of law is shown in either decision.

The decision not to grant compensation - (SCA 7 of 2000)

10. Ms Jones made application to the Tribunal on 15 February 2000 for compensation from the respondent. The application states (AB 7) that the ground for the application was:

For maintenance that needed to be done from time of my sign up and compensation for things I had to buy and doctor (sic) bills due to bee stings, falling down stairs, more regular visits to the doctors for flare ups due to maintenance issues. Photos will be provided on the day.

11. The application came on for hearing before the Tribunal on 13 March 2000. Ms Jones made a submission in these proceedings that she was disadvantaged because her lawyer was not present on that day and she was required to proceed. I note however that the transcript clearly records that the President of the Tribunal at the opening of the hearing observed that Ms Jones had previously had legal representation, and asked whether she wished to proceed without her lawyer. She said, "No. I'll just go ahead" (AB 36).

12. It is apparent from the transcript of the hearing and from the hearing of the appeal that Ms Jones has had significant disagreements with the Commissioner for Housing about the standard of maintenance of the premises. She objected to the premises in the first place as being unsuitable for her needs, and indeed she was eventually re-allocated to more suitable premises. She had from time to time stopped paying rent for the premises, an action which she described as going on a rent strike. On one occasion she refused to admit a senior officer from the Housing Trust onto the premises to inspect the claimed need for repairs.

13. The Tribunal did not issue a formal set of reasons for its decision to deny Ms Jones compensation. A full transcript of the proceedings is available, and is reproduced in the Appeal Book from pages 35-86. It is apparent that towards the end of the proceedings Ms Jones became frustrated and walked out of the proceedings (AB 82). This was just after the President had made the point that she was not satisfied that the respondent had breached their obligation to provide premises that were fit for habitation.

14. It is apparent to me from the transcript that the Tribunal correctly identified that the obligation on the respondent was that laid down in cl 54 of the Prescribed Terms for a residential tenancy agreement, which clauses are set out as a schedule to the Act. Clause 54 provides:

54 (1) The lessor shall provide the premises, including furniture, fittings and appliances (unless excluded in writing in the tenancy agreement):

fit for habitation, and

in a reasonable state of repair; and

in a reasonable state of cleanliness; and

in a reasonably secure condition.

15. It is apparent from the transcript (AB 77-78) that the President applied the appropriate test in saying :

Well, I start from the premise that ACT Housing has certain duties to all of its tenants and they are primarily as set out in clause 54 of the prescribed terms and although I accept that there were many items of maintenance that Ms Jones required to have, I do not have any evidence that what was provided was other than in a reasonable state of repair and cleanliness and a secure condition. The issue of whether or not the premises was suitable for Ms Jones' particular needs is another issue.

16. It seems to me that the Tribunal here applied the correct test, and came to a conclusion that was open to it on the evidence, that there was no breach of the lease, and thus no basis for compensation. While Ms Jones claimed to be entitled to a substantial amount due to increased security measures that she had fitted, the obligation of a landlord is to provide reasonable security, which the Tribunal found had been done by way of ordinary locking doors. The standard prescribed terms themselves make it clear at cl 54(2) that a tenant may fit additional locks or security items at their expense. While Ms Jones claimed that she felt a need for additional security due to an apprehended violence order against a former partner, the Tribunal found that this did not mean that the landlord was obliged to fit at public expense additional security measures. This finding, it seems to me, was open and discloses no error of law.

17. The President had before her evidence by way of condition reports. She made the observation (AB 55) that:

ACT Housing is not obliged to provide you with a perfect set of premises. They are obliged to provide you with something that is in a reasonable state of repair, reasonable state of cleanliness, reasonably secure and fit for habitation ...

18. At the hearing Ms Jones sought to submit photographs which she said in this appeal were wrongly excluded from consideration by the Tribunal. It is clear at AB 56-57 that these were before the Tribunal, but the President remarked that they were dated February 2000, and Ms Jones said they were taken when the tenancy commenced in October 1999, but had only recently been developed. It is apparent from the transcript (AB 57) that the President accepted these photographs, but said "Even looking at them, though they don't - how do you say that they support your case?". I do not consider that there was any legal error by failing to take this into account.

19. The Tribunal found that there was no breach of the landlord's obligation to provide premises fit for habitation such as would justify any order for compensation. In its formal orders the Tribunal noted that the Commissioner for Housing made an undertaking to effect certain repairs as set out in a work order of 6 March 2000. It also noted that Ms Jones had failed to pay her rent under the residential tenancy agreement.

20. It seems to me that the Tribunal's conclusion was open to it on the evidence, and disclosed no error of law. Moreover, although not dealt with by the Tribunal in its oral reasons, and possibly because the applicant had walked out of the hearing as the President had begun to announce her reasons, the respondent's submissions to the Tribunal made the point that the Tribunal does not have a general jurisdiction to award compensation in the nature of damages for non-economic loss. To the extent that the applicant had sought such compensation (as for her claim that she fell down stairs), such a matter would have to be dealt with in the ordinary way as a claim for damages for personal injuries, and not as an application for compensation in the Residential Tenancies Tribunal.

21. No error of law appears in the reasoning of the Tribunal, and the appeal must therefore be dismissed.

The eviction decision - (SCA 64 of 2002)

22. Ms Jones appeals against the decision of the Tribunal of 1 October 2002 to deny the applicant a stay of eviction other than for 21 days to enable her to vacate premises leased from the Commissioner for Housing at 9A Coree Place, Palmerston. The Tribunal issued an amended statement of its reasons on 11 October 2002 and these are reproduced in the Appeal Book at pages 4-10.

23. The applicant moved into the premises in March 2000. The Tribunal made the finding that by June 2000 the rent was in arrears, and that between June 2000 and April 2001 when the matter first came before the Tribunal there were three instances of failure to adhere to rental arrears payment agreements.

24. The matter first came before the Tribunal on 24 April 2001, when consent orders were made that Ms Jones pay the arrears in her rent in the amount of $332.69 at the rate of $20 per fortnight, and that if the terms of this agreement were not complied with, the Commissioner for Housing would obtain vacant possession of the premises, and that if Ms Jones failed to comply with the repayments, the Commissioner for Housing could obtain a warrant for eviction.

25. Despite this agreement, Ms Jones again fell into arrears and a warrant was obtained. On 5 March 2002 a further order was made by the Tribunal staying that warrant subject to Ms Jones paying her normal rent and arrears.

26. Despite this order, Ms Jones once again fell into arrears. The Tribunal made a further order on 30 July 2002 that recorded that Ms Jones had breached the earlier order, and stayed the eviction subject to her making three payments of $180 by the end of August 2002 to address outstanding arrears. The first two payments were made, but not the last, which was only received on 12 September 2002.

27. In his reasons, Mr Hynde, Member, said (AB 8):

The Respondent/Tenant had established a pattern of irregular rental payments.

ACT Housing had demonstrated appropriate leniency with the Respondent/Tenant by making a series of arrangements to allow the Respondent/Tenant to pay off the arrears. Several of these were not followed.

Following breaches of arrears payment arrangements by the Respondent/Tenant, ACT Housing lodged appropriate Applications before the Tribunal on four occasions. On each occasion the Tribunal found the breaches proven and issued appropriate Orders.

On three occasions the Respondent/Tenant failed to follow the Orders of the Tribunal. On the last occasion the Tribunal was unable to find in favour of the Respondent/ Tenant by granting a further Stay of the Warrant for Eviction although the illness of the Respondent/Tenant was found to justify an extension of time to vacate the premises.

Whilst the arrears were not all that significant ($85.51 at the date of hearing on 1 October) there was a breach of the Order of 30 July 2002 where despite conflicting evidence as to the times which Respondent/Tenant had contacted ACT Housing over the issue, it is clear that the Respondent/Tenant never received any form of approval from either ACT Housing (or the Tribunal) to delay the payment of $180 due on 29 August 2002 but seemed to adopt the attitude that if she told ACT Housing that payments were to be late (in this case for personal reasons) that was all that was required. As such she took the risk of being brought before the Tribunal to answer a further breach and this is precisely what occurred.

28. There is an obligation on every tenant to pay the rent on time. This is contained in cl 26(1) of the prescribed conditions. It is clear on the evidence before the Tribunal, and not disputed by Ms Jones, that she has not complied with this requirement. Any landlord, including a public housing authority, is entitled to insist on its right to timely payment. A landlord cannot simply evict a tenant for a minor breach, however, and the Tribunal is able to exercise a degree of discretion in relation to breaches, although in exercising its discretion it is of course bound by the legislation (Commissioner for Housing v Pamela Key [2003] ACTSC 44, per Crispin J).

29. This has clearly occurred in this case. The Tribunal has made repeated findings (that cannot, it seems to me, be challenged and are well established on the evidence) that Ms Jones has failed to pay rent on time. In the hearing of this appeal Ms Jones conceded that when she was in dispute with the Commissioner for Housing on maintenance issues she would go on "rent strike". The Tribunal has on repeated occasions stayed the order for eviction on condition that she pay rent in a timely manner and address the arrears. These orders have themselves been repeatedly breached. The Tribunal noted in its decision of 11 October 2002 that when the matter had previously been before the Tribunal "over the strongest objections from ACT Housing's legal representative the Tribunal once again stayed the Warrant for Eviction and by Order of 30 July 2002 the Tribunal directed the Respondent/Tenant to make three fortnightly payments" (AB 9).

30. It seems to me that no error of law appears in the decision of the Tribunal not to allow in its discretion further leniency in a case where the evidence established a pattern of repeated failure to make timely rental payments.

31. The Tribunal exercises a broad discretion, and in the past has allowed Ms Jones to continue to live in these premises even though breaches have been found. In the decision subject to this appeal the Tribunal has determined that it should no longer extend this leniency, and has granted possession to the Commissioner for Housing. In so doing it noted that the relationship between the parties was "one of hostility on the part of the Respondent/Tenant", and that "the patience of ACT Housing staff in dealing with this particular client should be noted".

32. Where the Tribunal has exercised a discretion to excuse past failure to pay rent in a timely manner, and the tenant continues to fail to comply with the agreement and Tribunal orders in relation to payments, it seems to me that a public housing authority is entitled to come back to the Tribunal and make the submission that no more leniency should be extended.

33. At the hearing before the Tribunal Ms Jones first explained her failure to make the last payment of $180 of the arrears pursuant to the July 2002 order because "there had been a death in the family" and "I was going to the funeral" (AB 114). She later said in the same hearing, that the reason she did not make the payment was "a friend of mine in Queensland thought she was losing a baby, and I went up to her instead of going down to the funeral" (AB 116). Mr Ward, an officer of ACT Housing gave evidence (AB 121-122) that he rang Ms Jones when he noted that the last payment had not been made, and "she advised me that she was actually away on holidays to get away from everything". In a case where there is an admitted breach, the Tribunal thus had conflicting evidence from Ms Jones as to her reasons for non-payment, being firstly that she had to go to a funeral, and then that she had to assist a friend in Queensland, and Mr Ward's evidence that she had said that she was on holidays. In her submissions to the President, Ms Jones appeared again to use death in the family as the reason for non-payment (AB 126). The Tribunal's decision not to extend further leniency in these circumstances does not, it seems to me, show any error of law.

34. In his submissions to the Tribunal, Mr Egan for the Commissioner made the point, which it seems to me was appropriate, that the Housing Trust has a long waiting list of people who need public housing, and who would be prepared to pay the rent, and that in these circumstances to allow a person with a consistent history of not paying and late in paying rent would be unfair to the broader community. This was a question going to the exercise of the discretion by the Tribunal. Mr Clarke, appearing for Ms Jones before the Tribunal, made submissions going to Ms Jones' personal circumstances, and saying that the breach had been rectified in that the arrears had later been paid. It seems to me that he said all that could be said in Ms Jones' favour, going to the exercise of the discretion to further stay the warrant of eviction.

35. I can find no error of law in relation to the Tribunal's decision not to further stay the warrant for eviction, and accordingly the appeal must be dismissed.

36. I therefore order that:

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

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

3. The parties have liberty to apply on costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 30 June 2003

Counsel for the appellant: Ms Jones in person

Counsel for the respondent: Mr P Walker

Solicitor for the respondent: ACT Government Solicitor

Date of hearing: 5 June 2003

Date of judgment: 30 June 2003