Brooks v Commissioner for Housing for the ACT [2008] ACTSC 22 (29 February 2008)

Last Updated: 7 May 2008

BROOKS v COMMISSIONER FOR HOUSING FOR THE ACT

[2008] ACTSC 22 (29 February 2008)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE RESIDENTIAL TENANCIES TRIBUNAL OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 99 of 2007

Judge: Higgins CJ

Supreme Court of the ACT

Date: 29 February 2008

IN THE SUPREME COURT OF THE )

) No. SCA 99 of 2007

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE RESIDENTIAL TENANCIES TRIBUNAL OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: TERENCE ARTHUR BROOKS

Appellant

AND: COMMISSIONER FOR HOUSING FOR THE ACT

Respondent

ORDER

Judge: Higgins CJ

Date: 29 February 2008

Place: Canberra

THE COURT ORDERS THAT:

1. Leave to appeal be granted.

2. The appeal be upheld.

3. The matter be remitted to the Residential Tenancies Tribunal for re-determination according to law.

1. This is an application for leave to appeal and, on the concessions made by Mr Whybrow, that application must be granted and the matter remitted to the Residential Tenancies Tribunal ("the Tribunal") for further consideration according to law. Apart from that, there were a number of issues Mr Brooks raises and some of them, of course, are quite appropriate matters for him to raise. There was an issue before the Tribunal about relocation and there was an issue about what disability it was that Mr Brooks had that might be relevant to that relocation. That issue did not seem to be resolved at all, mainly because Mr Brooks felt that they should not know what his disability was and was not prepared to specify it.

2. The conditions at Kanangra Court he complains of, and certainly as far as what he called the hullabaloo and disruptive behaviour, are matters that he could quite legitimately complain of. There was also an issue about electricity which again is an issue about which he could legitimately complain.

3. There seems to have been an issue about the presence or otherwise of asbestos. That seems to be an unresolved issue, save to this extent, that it seems Housing did say that there was a certificate to suggest there was no asbestos, but I think it was not able then to be produced and perhaps it would be a good idea to produce it.

4. However, none of those matters, as is the advice Mr Brooks has had from the Welfare Rights and Legal Centre, justifies a rent strike. In fact, that is a process which is harmful only to the tenant undertaking it. Member Anforth made an order, or purportedly made an order, that Mr Brooks pay the rent as and when it falls due plus $26.60 per fortnight by way of arrears. The latter part of the order Mr Brooks indicated he would not comply with. It was because of that that the order under s 49(3) of the Residential Tenancies Act 1997 (ACT) could not be made, as Member Anforth purported to make it.

5. In looking through the transcript I can see nothing there that would be in denial of any opportunity for Mr Brooks to offer any relevant evidence. Most of his contentions were irrelevant. It seems to me the presiding Member acted with restraint and compassion. It is plain that Mr Brooks suffers from a serious disorder of personality which interferes with his capacity to function reasonably with other people. The reasons otherwise accurately reflect the facts as they were put before the Tribunal but, as I have indicated, in any event, because of the error made, the matter must go back to the Tribunal for re-determination according to law. On that occasion Mr Brooks will be able, if he wishes to do so, to apply for rebate of rent or abatement of rent, by reason of the unsatisfactory conditions of which he complains.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 29 February 2008

Counsel for the plaintiff: Self represented

Solicitor for the plaintiff: Self represented

Counsel for the defendant: Mr S Whybrow

Solicitor for the defendant: ACT Government Solicitor

Date of hearing: 29 February 2008

Date of judgment: 29 February 2008