ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v BLACK (Residential Tenancies) [2017] ACAT 20

RT 967/2016

Catchwords: RESIDENTIAL TENANCIES – practice and procedure – application to set aside an ex-parte unconditional termination and possession order – whether the respondent had a reasonable excuse for non-attendance at an tribunal hearing – whether the respondent has an arguable case

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 44, 56

Cases cited: Allesch v Maunz (2000) 203 CLR 172 Commissioner For Social Housing v Hutchings & Gottschalk- Krutsky [2016] ACAT 88Commissioner for Social Housing v Bradnam [2016] ACAT 143Pesi v Commissioner for Social Housing in the ACT [2012] ACAT 77Thornthwaite v Commissioner for Social Housing [2012] ACAT 11

Tribunal: Senior Member H Robinson

Date of Orders: 10 February 2017Date of Reasons for Decision: 27 March 2017

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 967/2016

BETWEEN:

COMMISSIONER FOR SOCIAL HOUSING Applicant/Lessor

AND:

MS BLACKRespondent/Tenant

TRIBUNAL: Senior Member H Robinson

DATE: 10 February 2017

ORDER

The Tribunal orders that:

1. The Termination and Possession order of 1 December 2016 is set aside.

2. The matter is listed for hearing on Thursday 9 March 2017 at 10:00am.

……………Signed………..Senior Member H Robinson

REASONS FOR DECISION

1. By way of this application, the respondent seeks to set aside an unconditional

termination and possession order (T&P Order) made by this Tribunal on

1 December 2016. This application was heard 9 February 2017 and oral reasons

delivered 10 February 2017. This is an edited version of those reasons. In light

of the personal information disclosed in this proceeding, the names of the

respondent and her mother have been changed in these published reasons to

Ms Black and Ms Anne Black respectively.

Legal Framework

2. Section 44 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act)

expressly provides that if a party fails to appear either personally or by a

representative, the tribunal may proceed to hear the matter in that party’s

absence.

3. The tribunal’s power to set aside a decision made in the absence of one party is

found in section 56(c)(i) of the ACAT Act, which provides that the tribunal

may:

amend or set aside a tribunal order if—

(i) the order was made after hearing an application in the absence of a party; or

...

4. The ACAT Act does not set out any criteria for the exercise of power under

section 56, which allows the Tribunal a broad discretion. However, significant

case law within the Tribunal has set out a series of considerations that guide the

exercise of the discretion.

5. The starting point for any consideration should be the principles in section 7 of the

ACAT Act. These relevantly provide that:

7 In exercising its functions under this Act, the tribunal must—(a) ensure the procedures of the tribunal are as simple, quick,

inexpensive and informal as is consistent with achieving justice; and (b) observe natural justice and procedural fairness.

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6. The concepts of natural justice and procedural fairness encompass the right to a

fair hearing. A fair hearing requires, amongst other things, that a person whose

interests are affected by a decision must ordinarily be given a right to be heard.

7. However, as was recognised by the High Court is Allesch v Maunz (2000) 203

CLR 172 the right to be heard does not always require that a person actually be

heard.

8. As his Honour Justice Kirby observed at [38]:

... Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

9. This is a practical provision. Proceedings should not be delayed indefinitely, or a

party denied justice, because the other party is unwilling to participate in the

proceedings.

10. However, there are occasions when a party who has failed to appear has a

reasonable reason for not doing so, or where the result in some way amounts to

an unjustifiable injustice. Section 56(c)(i) operates to give the Tribunal a

discretion to set aside ex-parte decisions where leaving them in place would

amount to a ‘miscarriage of justice’.

11. In Thornthwaite v Commissioner for Social Housing [2012] ACAT 11 the test to

be applied was set out follows:

The first test is, is there a good reason why the applicant did not turn up at the original hearing? And secondly, if that is the case, is there then a reasonable case? Does the applicant actually have a reasonable case which indicates the matter should be set aside and the case be heard?

12. This is a two-pronged test, and both limbs are needed to succeed.1 Additionally,

there may be other factors that may be relevant in a given case.2

1 Commissioner For Social Housing v Hutchings & Gottschalk- Krutsky [2016] ACAT 88

2 Pesi v Commissioner for Social Housing in the ACT [2012] ACAT 77

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The Dual Test

13. The T&P order was made at the second hearing of the matter, on 1 December

2016. The reason why the respondent was not at the second hearing on

1 December 2016, when the orders were made, is not seriously in dispute,

although it requires some brief background.

14. The matter first came before the Tribunal on 24 November 2016. On that occasion

Ms Black did not appear, and I made orders that the listing notice be served by

SMS and email. Her evidence is that she did not receive either message, as she

has no working phone and no internet access. Given her financial

circumstances, I accept her evidence that she did not have a phone or internet

access. Accordingly I accept that Ms Black had a good reason for non-

attendance on 1 December 2016.

15. However, in considering whether I should set aside the decision, I do not believe it

appropriate to limit my consideration to what happened at that final hearing.

The decision to make a T&P order was part of a process, a process set out under

the Residential Tenancies Act 1997, which begins with the notice to remedy,

continues through tribunal proceedings, and culminates in the making of final

orders.

16. If the respondent has missed only one step in this process – for example, just the 1

December 2016 hearing – having otherwise participated in the proceedings, then

the question of reasonable excuse would be a straightforward consideration.

However, the respondent has failed to engage in this process at all. The

reasonableness of her excuse must encompass the entire pattern of her conduct

throughout these proceedings and the steps that precede it.

17. So, does the respondent have a reasonable excuse?

18. One of the difficulties I had with this matter is that the respondent’s evidence

before me was incomplete and unhelpful. This is no criticism of her

representatives, Canberra Community Law, who I understand accepted

instructions from Ms Black only on the morning of this proceeding. However, it

is a reflection on Ms Black. The final hearing of this set aside application was

the third occasion the application was before the Tribunal, and on both previous

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occasions Ms Black was clearly advised (by myself on one occasion, and the

Registrar on another) as to what kind of evidence she would need. It was

frustrating that she made so little attempt to comply with those instructions.

19. The problems with her evidence were twofold. First, Ms Black was vague as to

timeframes and sequence. This is particularly frustrating given that I requested a

timeline at the hearing on 19 January 2017, and the Registrar again asked for a

timeline at the hearing on 9 February 2017. I accept that her vagueness and

inconsistencies in her evidence may be because of her medical condition, but it

may also be a deliberate attempt at evasion. I have given her the benefit of the

doubt and accepted the former explanation.

20. This leads to the second issue. I had little in the way of medical evidence. The

letter from Dr Hamilton, dated 2 February 2017, simply stated that the

respondent has a depressive condition and that Dr Hamilton anticipates that she

will be unable to work for the next three to six months. It says nothing about her

condition over the past six months or the proceedings before the Tribunal. The

letter from Directions indicates that Ms Black accessed the service for drug

issues in the past in 2013, when she attended ‘several’ counselling sessions, and

that she was ‘intending’ to re-engage, but it did not give any detail as to her

current condition. There is no medical evidence justifying the claimed current

drug addiction or the ‘nervous breakdown’, or setting out how these affect her

capacity. Ms Black gave some passing evidence about a period during which

she was in Calvary Hospital, but gave no dates or details or discharge

information and no records were produced. On balance, I accept the evidence of

Ms Black as to her experience of a medical condition, as far as it goes, but it

does not go very far.

21. Fortunately for the respondent, her mother, Ms Anne Black, was able to articulate

something of a timeframe and context. I accept Ms Anne Black’s evidence, and

it adds support to some aspects of the respondent’s evidence.

22. I accept that some years ago, Ms Black had very serious drug and health issues. I

accept that she got those issues under control, and was relatively stable for some

time.

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23. During the period from 2014 through to mid-2016, Ms Black was consistently in

arrears with her rent. The arrears were not great in total, but were not

insubstantial having regard to her weekly rent, after rebate, of only $64. Still,

she tended to bring the arrears down regularly. She actually brought the account

back in credit in May 2016, albeit only for a brief period.

24. Sometime early in 2016, Ms Black’s personal circumstances began to spiral out of

control. In March, she attempted to wean herself off methodone. Her daughter

was removed by child services and placed with her mother, and she lost the

stability that her caring responsibilities had enforced on her. In perhaps June

2016 she started using drugs again. She then had a nervous breakdown, and fell

out of contact with her support networks. She also re-commenced employment

in a brothel, and then started to reside there on at least a part time basis. She

returned to her house less and less. In June or July her child support payments

were cut off, and her former partner took her daughter from the country.

25. Ms Black’s evidence was that around this time she was too mentally ill to organise

the payment of rent. She was in and out of her accommodation and regularly

staying elsewhere. She was, on her evidence, not functioning.

26. I asked Mr Black if she received the notice to remedy or the notice to vacate

issued by Housing when she fell into arrears. She said that she did not. She said

that her mail reception was irregular, and that it was often stolen by the children

in her apartment block. She was still, she said, waiting for a new key card, and

she believed that letter had been stolen too. She also said that she was not at

home much, so her mail tended to pile up.

27. One of the most common excuses offered by parties in these kinds of proceedings

is that they did not get relevant documents because “my mail is being stolen”. I

have no doubt that mail does go awry, whether because it is stolen, left

unattended and disposed of, or simply delivered into the wrong slot on a bank of

mailboxes. However, I do not accept the ‘my mail is being stolen’ as a

legitimate reason for not attending to the payment of rent. First, if Ms Black

knew that her mail was being stolen, then the appropriate thing to do would be

to report this to Housing and request that a lock be placed on her mailbox.

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Secondly, even if she had not actually read her mail, she must have known that

her rent was in arrears. She must have known action would be taken for arrears.

28. I also do not accept that the respondent’s failure to get her mail compromises the

issue of service. The documents, I am satisfied for the purpose of these

proceedings, were appropriately served in accordance with the requirements of

the Residential Tenancies Act 1997.

29. What I do accept, however, is that at this time notices were served, Ms Black was

unwell, that she was barely at her premises, and that even if she did receive the

correspondence, she likely did not read it. Perhaps, due to her illness, she could

not focus on her rent debt, or did not have the capacity to do anything about it. I

accept that, to the extent that Ms Black was ignoring or avoiding her problems

with the rent, this was tied up with her deteriorating mental state. Her

circumstances are similar to those of the respondent in Commissioner for Social

Housing v Bradnam [2016] ACAT 143. In both cases, the actions of the

respondents were not reasonable by the standards of a reasonable person, but

they were believable having regard to the unique and difficult circumstances

that the respondents were experiencing, and were explainable when viewed in

that context.

30. The above circumstances are not necessarily an excuse for not paying rent, but

rather are an explanation for the respondent’s failure to take action in response

to the mounting rental arrears and the notices threatening legal action. The

above circumstances are therefore relevant to consideration as to whether to set

aside the T&P Order.

31. In any case, the respondent’s life continued to spiral out of control, and her

mother’s evidence was that by October she was, in summary, “at rock’s

bottom”.

32. By this time, the Commissioner had tried numerous times to contact Ms Black,

including through her mother, to no success. It appears that the house became

something of a mess, and the Commissioner sought access orders, but withdrew

the application. The Commissioner then lodged, quite appropriately, an

application for a termination and possession order on 20 October 2016.

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33. The matter was listed for hearing on Thursday 24 November 2016 (first hearing).

34. The listing notice for the first hearing was mailed to Ms Black’s address by the

registry. The mail was not returned. I take the application to have been validly

served. I appreciate that Ms Black says that she did not receive the listing

notice. I have no reason to doubt this evidence, but also refer to my comments

above.

35. Housing attended Ms Black’s premises on 9 November 2016 and left a calling

card. Again, Ms Black did not respond. She acknowledges that she received the

card, but it is apparent that she did not take any real steps to follow up.

Is this reasonable?

36. As I said above, in considering this matter, I must take Ms Black’s evidence on

face value, and draw my own conclusions from it. The case would be much

more straightforward if I had a timeline and more medical evidence, but

unfortunately I do not. As is often the case with matters before the Tribunal, I

must simply make the best decision I can on the available evidence.

37. If I accept the evidence of Ms Black, and most particularly her mother, I must

accept that Ms Black has been suffering from a serious mental health condition

and had problems with substance abuse and that her actions were informed by

the combined effect of those things. Further, if I accept that evidence, then I

must consider that her actions, when viewed in the global circumstance of her

conditions, provide some excuse for non-attendance.

38. The alternative interpretation is that Ms Black simply failed, through ignorance,

carelessness or stubbornness, to pay the rent or to take care of her personal

affairs for an extended period of time. It must be noted that Mr Black’s

comment to the housing officer who attended her property in January that she

should “pay some rent” provides some basis for this conclusion. Still, on

balance, I accept that the prior explanation is the more likely, although I note

that this is a borderline decision.

39. Accordingly, I am satisfied that the respondent has a reasonable excuse for non

attendance at the first and second hearings.

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40. The next issue is: would the respondent’s attendance have made a difference?

41. The respondent is very significantly in debt – she owed over 30 weeks in rent at

the time of the first hearing, and over 36 weeks as at the date of this decision.

She has been consistently in debt for a long time, albeit for varying amounts.

She has been in credit on her account only once, briefly, in the last few years. It

may be legitimately argued that she shows something of a blasé attitude toward

the payment of rent as and when it falls due, although she does try to catch up

when she falls seriously behind.

42. In such circumstances, it is highly unlikely that the application for a termination

and possession order would have been dismissed.

43. Rather, the issue for the Tribunal, had it heard the matter on the second occasion,

would have whether the Senior Member could have made a conditional order

rather than an unconditional order, or perhaps dealt with the matter in a manner

that did not involve making final orders.

44. Ms Black’s representative, Ms Nursoo, pointed to a number of matters that could

be taken into account had Ms Black been in attendance. I accept the following

as being relevant:

(a) Ms Black provided an explanation for her failure to pay rent – being the

medical issues and drug addiction.

(b) She provided some, albeit perhaps minimal, evidence that she may be

bringing those issues back under control, including some evidence that

she had engaged with Directions.

(c) She gave evidence that the last time she fell substantial arrears in the past,

she paid it back.

(d) She was working on sorting out her payments with Centrelink and would

be able to make repayments once she had that in order.

45. Even having regard to the above, it is unlikely that the Senior Member hearing

this matter on 1 December 2016 would have, even had Ms Black been in

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attendance, been able to make a conditional T&P order. However, in

considering whether her attendance would have made a difference, I consider it

appropriate to consider not just whether it would have made a difference to the

final orders that could be made on the day, but whether it would have steered

the proceedings in a different direction and resulted in a different outcome

overall.

46. At the hearing on 1 December, the Senior Member had other discretions open to

her, including a brief adjournment to allow Ms Black to sought out her affairs

with Centrelink, or to seek further information. I am not suggesting that she

would have taken that option, but she could have done so. I note also that

Registrar Soper adjourned the set aside hearing on 31 January 2017 to allow

similar evidence to be gathered, prior to the matter being listed before me.

47. The requirement that the respondent have an arguable case does not require that I

be satisfied that her presence would actually have made a difference – an

interim application is not a full hearing on the merits, and I need only be

satisfied that the grounds are at least arguable. I am satisfied that this test is met,

albeit barely, in this case.

48. Accordingly, I am satisfied that the respondent had an arguable case and that her

attendance may have made a difference. I do not put it any higher than that.

Other considerations

49. This leaves me with my final consideration – that of the relative prejudice to the

parties.

50. I note that the entitlement of the Tribunal to consider matters beyond simply the

‘dual test’ was acknowledged in both Pesi3 and in Gottschalk-Krutsky4.

Consideration of these additional factors is consistent with the broad discretion

in section 56(c)(i).

51. The prejudice to Ms Black of being denied a set aside is very grave. She will lose

her entitlement to a Government house, which provides some degree of stability

3 Pesi v Commissioner for Social Housing in the ACT [2012] ACAT 774 Commissioner For Social Housing v Hutchings & Gottschalk- Krutsky

[2016] ACAT 88

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and certainty in her chaotic life. She will lose that house in circumstances where

she has not had a full hearing.

52. It is possible to overstate this prejudice. It is often said that the Commissioner is

the housing provider of last resort – and while correct, this is not always the

whole story. Eviction from a government house does not invariably mean

homelessness. There are charities and refuges that may be options, as well as

other arrangements, including family, boarding and hostels and even share

house arrangements. Some tenants may return to social or government housing.

But even if eviction does leave some tenants homeless, questions may be raised

as to whether the Tribunal is or should be the appropriate body to regulate that.

There are hundreds of people waiting for government housing. The

Commissioner has a social objective of managing that limited resource. While

any exercise of discretion must involve a consideration of the tenant’s personal

circumstances5, latitude must also be given to Housing to manage its housing

resource as it considers appropriate, having regard to its social objectives, and

its weighing of the relative needs to all beneficiaries, not just the person before

the Tribunal.

53. Nonetheless, what I am considering today is not a final decision about a T&P

order, but rather whether a social housing tenant should be given an opportunity

– a final opportunity – to state her case as to why she should not be evicted. The

prejudice to the tenant is significant. The prejudice to the Commissioner, by

contrast, is fairly limited. Yes, it is administratively inconvenient for the

Commissioner to have to come back on another occasions. It is inconvenient for

the tribunal as well. It is a waste of public resources. In jurisdictions where costs

may be more readily awarded, such wastages can be addressed through costs

orders, but that option it not readily available to the Tribunal, and it would be

unlikely to be particularly effective in this case, where the respondent has little

in the way of assets in any case.

54. However, unlike, for example, the neighbours who were witnesses in Gottschalk-

Krutsky, no parties other than the Commissioner are directly affected. As its

5 See Williams v Commissioner for Social Housing (Appeal) [2016] ACAT 93 at 42

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highest, there is indirect prejudice to others on the social housing waiting list,

but that prejudice is difficult to properly assess, particularly given the uncertain

outcome of any substantive hearing of the T&P application. In any case, all

social housing tenants have an interest in ensuring Tribunal proceedings are

procedurally fair.

55. This matter has already gone on for some time – not, I note, through any fault of

the Commissioner. Administrative and tribunal processes do take time. But I do

not think it is unreasonable, having regard to the weighing exercise that I set the

current decision aside and set the matter down for another T&P hearing next

week. At most, the delay, if the T&P order is again granted after a hearing, is a

delay of a few weeks.

56. Consequently, although I do so with some reluctance, I am satisfied that in this

case, it is appropriate to set aside the decision of 1 December 2016.

57. Accordingly, I order that:

1. The termination and possession order made 1 December 2016 is set aside.

2. The matter is relisted for hearing on 16 February 2017.

………………………………..Senior Member H Robinson

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HEARING DETAILS

FILE NUMBER: RT 967/2016

PARTIES, APPLICANT: Commissioner for Social Housing

PARTIES, RESPONDENT: Ms Black

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT Canberra Community Law

TRIBUNAL MEMBERS: Senior Member H Robinson

DATES OF HEARING: 10 February 2016

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