Dickson & Anor v Martin [2005] ACTSC 6 (2 February 2005)

Last Updated: 11 May 2005

PAUL DAVID DICKSON and DEBRA KAY DICKSON v JULIE MARTIN [2005] ACTSC 6 (2 February 2005)

LANDLORD AND TENANT - dispute between parties to a residential tenancy agreement -jurisdiction of Residential Tenancies Tribunal to hear and decide application where amount claimed exceeds the jurisdictional limit on the amount of money it may order to be paid.

ADMINISTRATIVE LAW - rules of natural justice - informality of tribunal procedures - factual dispute - no requirement for cross-examination.

Residential Tenancies Act 1997 (ACT) s 115(2), s 115(3), s 121

No. SCA 4 of 2004

Judge: Whitlam J

Supreme Court of the ACT

Date: 2 February 2005

IN THE SUPREME COURT OF THE )

) No. SCA 4 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PAUL DAVID DICKSON AND DEBRA KAY DICKSON

Appellants

AND: JULIE MARTIN

Respondent

ORDER

Judge: Whitlam J

Date: 2 February 2005

Place: Sydney (Heard at Canberra)

THE COURT ORDERS THAT:

1. the appeal be dismissed with costs.

1. This is an appeal from a decision of the Residential Tenancies Tribunal ("the Tribunal").

2. The appellants are the former lessors and the respondent is the former tenant of residential premises at 18 Cutlack Street in Evatt. The tenancy agreement between the parties was terminated on 1 April 2002.

3. On 28 November 2003 the respondent made application to the Tribunal seeking orders that the bond be released to her and that the appellants reimburse the "rent for the full period of loss of amenities" and pay her "for cleaning services". Particulars provided in support of the application explained the claim for payment as involving reimbursement of "rent payments of $200 per week, for the period 11 February 2002 to 15 March 2002 for loss of amenity due to the presence of raw sewage internal and external to the property" and payment at a rate of $35 per hour for two and a half hours work in cleaning the sewage spill. The respondent attached copies of relevant correspondence, including an abatement notice issued to the first named appellant under the Public Health Act 1997 in respect of the insanitary condition of the premises.

4. The appellants counter-claimed by making an application to the Tribunal on

8 December 2003. They sought orders that the bond be paid to them and that the respondent pay them the sum of $7,568 for expenses incurred "to return the premises to a suitable condition for new tenants" and for loss of rent and the sum of $6,051 for work yet to be done to repair damage to the premises. Copies of receipts and quotes were attached. On the basis that the premises were untenanted for a period of five weeks, loss of rent was claimed for such period at the rate of $250 per week eventually paid by the new tenant. The appellants also blamed the respondent for the sewerage problem, and the cost of the drainage work required to fix that problem was included in the figure of $7,568. The "overall" total amount claimed was $13,619.

5. The Tribunal heard the applications together on 9 December 2003. The respondent and each of the appellants appeared. Neither side was represented. The respondent apparently decided, during the hearing, not to pursue her claim for payment by the appellants. At the conclusion of the hearing, the Tribunal ordered that the bond be released by paying $330 to the appellants and the balance to the respondent. The appellants' application was otherwise refused.

6. This appeal was instituted on 19 January 2004. The Tribunal provided a written statement of reasons for its decision on 4 May 2004: Martin v Dickson

[2004] ACTRTT 6. The notice of appeal was subsequently amended by leave. The judgment now sought includes orders that the decision of the Tribunal be set aside and that the "matter be reheard in a competent court". At the hearing of the appeal some grounds of appeal were abandoned. The remaining grounds are stated as follows:

"1. The Tribunal had no jurisdiction to hear the claim, or in the alternative no jurisdiction to hear the counter claim, as the amount of the counter claim exceeded $10,000.00.

...

3. The Tribunal failed to apply s 29 of the Residential Tenancies Tribunal Act in relation to the use of condition reports as evidence in the proceedings.

4. The Tribunal failed to consider whether it should take evidence on oath pursuant to s 97 of the Act in order to resolve the factual disputes before it.

5. The Tribunal failed to comply with the rules of natural justice by not allowing cross examination to resolve the factual disputes before it."

7. The first ground rests on s 115(2) of the Residential Tenancies Act 1997 ("the Act"). Section 115 provides:

"(1) Subject to this section and the Self-Government Act, section 48A, the tribunal has exclusive jurisdiction to hear and decide any matter that may be the subject of an application to it under this Act or the prescribed terms.

(2) The tribunal does not have jurisdiction to make an order for the payment of an amount, or for work of a value, exceeding $10,000.

(3) A claim for payment of an amount, or for work of a value, exceeding $10,000 may be made in a court competent to hear and determine claims based on contract for the amount claimed.

(4) Where a claim referred to in subsection (3) may be made:

(a) the claimant may also make any other claim related to the relevant tenancy dispute; and

(b) the court in which proceedings are brought may exercise the powers of the tribunal under this Act."

8. Counsel for the appellants submits that the effect of s 115(2), when considered with

s 115(3), is that the Tribunal has no jurisdiction to hear a matter where the claim exceeds $10,000 unless the party making that claim waives the excess. I reject this submission. It involves a quite unnecessary gloss on the plain words of s 115(2). Counsel for the respondent submits, correctly, that s 115(2) does not deprive the Tribunal of jurisdiction to hear a matter where the amount claimed is more than $10,000. He instanced the quite different language used in legislation, such as s 5(1) of the Magistrates Court (Civil Jurisdiction) Act 1982, where jurisdiction depends on `the amount claimed'. Section 115(3) is a facultative provision. The fact that the appellants did not avail themselves of it to pursue their claim against the respondent in a court is a matter for them. (Counsel for the appellants concedes that, in determining this appeal, the Court cannot make an order such as that sought in the notice of appeal which would require his clients to bring court proceedings.) No question of waiver arises where an application is made under the Act. Section 115(2) simply operates to limit the amount of any order for payment. In this case it had no application because the Tribunal decided, on the merits, not to make any order for payment against the respondent.

9. Grounds 4 and 5 were next addressed by counsel for the appellants. Section 97 of the Act empowers the Tribunal to take evidence on oath or affirmation. The rules of natural justice are mentioned in s 121 of the Act, which provides:

"(1) In the performance of a function, the tribunal shall have regard to the rules of natural justice.

(2) Subject to subsection (1), the tribunal -

(a) shall proceed with as little formality and technicality and with as much expedition as the requirements of this or any other Act and a proper consideration of the matter permit; and

(b) is not bound by rules of evidence but may inform itself of any matter in any manner that it considers appropriate."

10. The condition of the premises when the respondent took possession and the condition when she left were matters in hot contest at the hearing on 9 December 2003. My attention was directed to passages in the transcript where the Tribunal questioned the parties on these topics, and I accept that there was a conflict in their evidence. Counsel for the appellants submits that the only fair way to resolve this conflict was to take evidence on oath or affirmation from each of the parties and to permit

cross-examination. The failure to do so in this case meant, he says, that "the ability to work out the facts and do justice was fatally compromised".

11. Counsel for the appellants did not contend that the rules of natural justice required cross-examination in all cases, but here, he said, the circumstances required it. I do not agree. The transcript shows that the Tribunal gave each party an opportunity to say whatever he or she wanted. Neither side expressed the desire to put a question, or to have the Tribunal put a question, to the other side. Natural justice is another name for procedural fairness. Tribunal hearings are dealt with in Div 6.4 (ss 88-101) of the Act. Section 98(1) requires the Tribunal actively to assist parties to present their case, and here it appears to have done so. Section 121(2) is, of course, expressed to be subject to s 121(1), but its terms suggest that a formal procedure, such as cross-examination, will rarely be used. Were one party to a tribunal hearing permitted to cross-examine a witness on an issue and another party to the hearing not so permitted, the rules of natural justice may well be breached. However, a failure to observe those rules is not established by trawling through the evidence and other material before the Tribunal and criticising its fact-finding. It is irrelevant that competent cross-examination of the parties may have assisted the fact-finding process. Nor is the Tribunal obliged to consider whether evidence should be given on oath.

12. The remaining ground (ground 3) is concerned with the so-called "condition reports". The Tribunal referred to this subject in the following passages of its reasons:

"8. The bond and the condition report were lodged with the Office of Rental Bonds by the lessor on 2 July 1999. The tenant had signed the Condition Report on 6 June 1999. The Condition Report lists a number of faults with the property that were present when the tenant took possession of the property.

9. In the final days of the tenancy the tenant requested that she complete the cleaning on 2 April that was one day after the termination date. This arrangement was made with Mrs Dickson. Mr Dickson arrived at the premises and requested that Ms Martin leave the premises. The cleaning was incomplete and no final inspection took place.

10. In support of lessor' [sic] statement that the premises were not left in a clean and tidy condition the lessor submitted statement signed but undated by the Justice of the Peace Bob Bugden on the condition of the premises in modified form of the Condition Report (Attachment A). An invoice `End of Lease' for an amount of $330 dated 8 April 2002 from Enviroclean was submitted (Attachment G).

...

16 In making this order the Tribunal took into account sections 29, 31, 33 and 35 of the Residential Tenancies Act 1997, noting the late lodgement of both the bond and the Condition Report; the discrepancy in the report and the failure for a final Inspection to be arranged by either party but acceptance of the Report signed by Bob Bugden JP that the premises were not left in a clean condition. The Tribunal was not convinced of the claims for other repairs as this does not seem to have delayed the re-letting of the property. The Condition Report signed by both parties at the beginning of the tenancy by Ms Martin indicated that the property was not in good condition in some parts ..."

13. Section 29(1) of the Act requires a lessor to give the tenant a condition report "not later than the day after the tenant takes possession of the premises". This requirement is repeated in clause 21(1) of the terms which are set out in Sch 1 to the Act and which every residential tenancy agreement is taken to contain. It is common ground that such a report was not given to the respondent by the appellants within the time stipulated. Section 30 of the Act provides that, where s 29(1) has been complied with, a statement in such a report is evidence of the state of repair or general condition of the premises "as at the day on which the tenant was given the report". However,

s 30(3) provides:

"Where section 29(1) has not been complied with, evidence by the tenant as to the state of repair or general condition of the premises and of any goods leased with the premises is evidence of that state of repair or general condition as at the day on which the tenant took possession of the premises."

14. The reasons of the Tribunal reproduced at [12] above show, clearly enough, that the Tribunal has had regard to the "evidence by the tenant" in accordance with

s 30(3), notwithstanding that that particular statutory provision is not mentioned. (The reference to s 33 and s 35 of the Act is, it must be said, puzzling since the Tribunal was not dealing with an application made under s 32 of the Act, with which those provisions are concerned.) This ground of appeal is spurious. In reality, the appellants are seeking to use statements in the condition report signed by the respondent in order to cavil with the Tribunal's findings of fact. Such a course is not permitted on an appeal to this Court under s 126(1) of the Act.

15. The appeal will be dismissed with costs.

I certify that the fifteen (15) preceding paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Date: 2 February 2005

Counsel for the appellants: CM Erskine

Instructing solicitors: National Business Lawyers

Counsel for the respondent: DJC Mossop

Instructing solicitors: Porters

Date of hearing: 9 September 2004

Date of judgment: 2 February 2005