ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MOONEY-PURSELL v COMMISSIONER FOR SOCIAL HOUSING (Appeal) [2016] ACAT 151

AA 37/2016 (RT 525/2016)

Catchwords: APPEAL – residential tenancies – termination and possession order – uninhabitable premises - whether the original tribunal concluded that it had no discretion to suspend order – procedural fairness - whether tenant had notice of witnesses – whether the fact that witnesses were in the hearing room at the same time and spoke to each other during evidence contravenes procedural fairness obligation – evidence of one witness did not influence the other – no practical injustice or unfairness

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 79, 82Emergencies Act 2004 s 106Residential Tenancies Act 1997 ss 47, 63, 86

Subordinate Legislation: ACT Civil and Administrative Tribunal Procedure Rules 2009

(No 2) r 21

Cases cited: Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11 Legal Practitioner v Council of the Law Society [2015] ACTSC 316 Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 Re Minister for Immigration and Multicultural Affairs: Ex Parte Lam [2003] HCA 6 The Tenant v Commissioner for Social Housing [2016] ACAT 49

Appeal Tribunal: President L Crebbin Senior Member A Anforth

Date of Orders: 20 December 2016Date of Reasons for Decision: 20 December 2016

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 37/2016

(RT 525/2016)

BETWEEN:

KEVIN MOONEY-PURSELLAppellant

AND:

COMMISSIONER FOR SOCIAL HOUSINGRespondent

APPEAL TRIBUNAL: President L CrebbinSenior Member A Anforth

DATE: 20 December 2016

ORDER

The Tribunal orders that:

1. The application for appeal be dismissed and the orders of the original

tribunal confirmed.

………………………………..President L Crebbin

delivered for and on behalf of the Appeal Tribunal

REASONS FOR DECISION

1. The appellant is a tenant of the Commissioner for Social Housing in the ACT

(‘the Commissioner’) and has been so at least since 9 June 2005. The leased

premises are a two storey townhouse with an attached unsecured carport in a

block of similar townhouses. The townhouse’s carport adjoins the carport of the

neighbouring townhouse.

2. On 1 June 2016 the Commissioner lodged an application with the tribunal

seeking termination of the residential tenancy agreement and possession of the

premises on the ground that the premises were unfit for habitation (the original

application).

3. After a hearing an order was made on 30 June 2016 terminating the agreement

and requiring the tenant to vacate the premises before 4pm on that day. The

order was expressed to have effect as a warrant for eviction (the original

decision). The original tribunal gave brief oral reasons for the decision.

4. An application for appeal was filed the next day and an order was sought staying

the original decision. The application for a stay was dismissed at a hearing on 6

July 2016, but the respondent Commissioner gave an undertaking that the

premises would not be re-let until the appeal was determined.

5. The appeal was heard on 10 August 2016. The appeal was dealt with as a review

of the original decision in accordance with section 82(b) of the ACT Civil and

Administrative Tribunal Act (2008) (the ‘ACAT Act’). Initially, three grounds

of appeal were identified but only two were pressed at the hearing. In summary,

the grounds of appeal were that a discretion available to the original tribunal

under section 47 of the Residential Tenancies Act 1997 (the ‘RT Act’) was

misapplied and the discretion’s application impermissibly narrowed, and that

procedural fairness had not been observed by the original tribunal.

Appeals within the ACAT – Principles of Law

6. Section 79 of the ACAT Act provides that a decision may be appealed within the

tribunal on a question of fact or law. This is interpreted to mean an error or

mistake of fact or law.1

1 Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11 at [41], Legal Practitioner v Council of the Law Society [2015] ACTSC 316 at

2

7. Rule 21 of the ACAT Procedure Rules 2009 (No 2) says that the appeal tribunal

has all the powers of the tribunal that made the order appealed from, and can

make an order confirming, amending or setting aside the order of the original

tribunal. Not every mistake requires a decision to be set aside. Mistakes that are

minor or not material; that is, make no difference to the outcome, should not

lead to a decision of an original tribunal being disturbed.2

8. Some decisions are made following the exercise of discretion. Discretionary

decisions should not be set aside only because the appeal tribunal has a different

view about the outcome, the appeal tribunal must be satisfied that the original

tribunal made some material error or mistake when the discretion was

exercised.3

9. These powers were most recently considered by the Supreme Court in Giusida

Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275. The court

described the powers as wide and generous, requiring a proper review of the

decision appealed from.

10. In this case the appeal tribunal conducted its review by considering the

documents before the original tribunal, reviewing the transcript of a directions

hearing held on 23 June 2016, reviewing the transcript and the audio recording

of the hearing on 30 June 2016 and considering the oral and written submissions

of the parties’ representatives for the appeal hearing.

The events leading to the original application

11. The facts set out in the paragraphs up to and including 23 below are apparent

from a review of the documents before the original tribunal and are not

contested.

12. The Commissioner’s officers attended the premises on 14 April 2016 and found

the premises to be cluttered with different objects. Photographs were taken and

an inspection report prepared. These were annexed to the original application as

attachments B and C. The photographs showed a large amount of boxes, books,

[64] to [84]2 Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC

275 at [39]3 See the authorities cited in The Tenant v Commissioner for Social

Housing [2016] ACAT 49 at [9] – [16]

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furniture and assorted items in the house, the rear yard and carport. Items

covered the floor in more than one room, were stacked high in many areas and

completely filled one room so that it could not be entered. Items covered

benchtops and other visible surfaces.

13. On 28 April 2016 the Commissioner served the tenant with a notice to remedy

(attachment D), relying on standard term 63 of the residential tenancy

agreement which relevantly provides:

63. During the tenancy, the tenant must –…(c) take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the tenancy and the normal incidents of living.

14. The notice required the removal of the clutter from the house and yard and the

repair of various items of damage to the walls and doors within 14 days.

15. Before the 14 day period expired, on 3 May 2016, ACT Fire and Rescue

attended the premises and issued the Commissioner with a ‘Direction to

Remove Flammable Materials from Premises’ (the ‘Direction’) under section

106 of the Emergencies Act 2004 (ACT) (Attachment E).

16. The Direction required the Commissioner, before 3 June 2016, to:

(1) remove all excess combustible material from interior and exterior of unit.

(2) Allow for unobstructed access through unit. Exit path minimum 1 x meter.

(3) Clear areas adjacent to the heaters and cooktop.

17. In addition to the direction, ACT Fire and Rescue provided the Commissioner

with an incident report relating to their attendance at a fire in the carport

attached to the premises and the carport of the adjacent premises on

7 November 2015. The report states that the fire started in “a large amount of

furnishings/rubbish etc stored under and around the carport” of the premises.

Both carports were destroyed by the fire.

18. Section 106 of the Emergencies Act 2004 relevantly provides:

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106 Direction to remove flammable material from premises(1) If an inspector believes, on reasonable grounds, that flammable material

is kept on particular premises in a way that may cause, directly or indirectly, a danger to life or property if there is a fire, the inspector may direct the owner of the premises to take stated action to remove the danger.

(2) In deciding whether to give the direction, the inspector must consider the following:(a) the amount and kind of flammable material at the premises;(b) climatic conditions affecting the premises and nearby

area;(c) the nature, location and use of the premises and nearby premises;(d) the possible effect of any fire at the premises and nearby premises;(e) the availability of firefighting facilities;(f) the action the inspector believes, on reasonable grounds, is

necessary to remove the danger;(g) the period within which the inspector believes it is necessary for the

action to be taken.Note 1 Premises includes any land, structure or vehicle and any part of an area of

land, a structure or vehicle (see dict).

Note 2 At premises includes in or on the premises (see dict).(3) The inspector may also consider any other relevant matter.(4) The direction must be in writing and must state—

(a) the action the owner must take to remove the danger; and(b) the period (not shorter than 14 days after the day the direction

is given to the owner) within which the action must be taken; and

(c) that, if the owner fails to comply with the direction, the inspector may arrange for the removal of the danger at the owner’s expense; and

(d) if the direction requires material to be burnt—that the burning must be done in accordance with this Act and the Environment Protection Act 1997.

19. On 4 May 2016 the Commissioner served the tenant with another notice. This

one, a notice to vacate the premises. A covering letter attached to the notice

said that the property had been deemed to be uninhabitable. The notice was

poorly prepared. It used a standard template and said that the Commissioner

would apply to the tribunal for a termination and possession order if the tenant

did not vacate the premises before 19 May 2016. In brackets under these words

appeared the following “(see section 49)”. References to section 47 and section

64 of the RT Act had been struck through. Section 49 is the provision about

termination of tenancies for rent default - it had no relevance here.

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20. In the section of the template that says “THE GROUNDS for the giving of this

notice are:” a paragraph had been added which referred to clause 86(a) of the

standard residential tenancy terms and the ability to terminate a tenancy on the

grounds that the premises are not fit for habitation. Standard term 86(a)

relevantly provides:

The lessor or the tenant may, by written notice, terminate the tenancy on a date specified in the notice on the following grounds:(a) The premises are not fit for habitation.

....

21. The tenant informed the Commissioner’s officers that he intended to challenge

the termination and would not be voluntarily moving until his challenge was

resolved.

22. On 12 May 2016 the tenant was given a copy of the direction from ACT Fire and

Rescue. He was also told that alternative housing had been identified for him

pending the resolution of his challenge to the termination.

23. On 19 May 2016 the Commissioner’s officers attended the premises and took

further photos, which are appended to the original application as Attachment H.

The tenant did not vacate the premises.

The original application and first hearing

24. The original application, filed on 1 June 2016, said that the order was sought

under section 47 and in the alternative under section 48 of the RT Act which

relevantly provide:

47 No breach of standard residential tenancy terms(1) On application by a lessor, the ACAT may make a termination and

possession order if satisfied that—(a) a ground for termination exists under the standard residential

tenancy terms (other than for a breach of the standard residential tenancy terms); and

(b) the lessor has served a termination notice on the tenant based on that ground; and

(c) the tenant has not vacated the premises as required by the termination notice.

(2) If—(a) the ACAT makes an order under subsection (1); and(b) the ACAT is satisfied that—

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(i) were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and

(ii) that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period;

the ACAT may suspend the operation of the termination and possession order for a specified period of no more than 3 weeks.

48 Certain breaches of standard residential tenancy terms(1) On application by a lessor, the ACAT may make a termination and

possession order if—(a) satisfied that—

(i) the tenant has breached the standard residential tenancy terms (other than by failing to pay rent that has become payable); and

(ii) the lessor has served a termination notice on the tenant based on the breach; and

(iii) the tenant did not vacate the premises in accordance with the notice; and

(iv) the breach of the standard residential tenancy terms was not in accordance with a term of the residential tenancy agreement endorsed by the ACAT; and

(v) the breach justifies the termination of the tenancy; or(b) the ACAT—

(i) has made an order under section 83 (b); and (ii) is satisfied that the tenant has breached that order; and

(iii) is satisfied that the breach justifies the termination of the tenancy.

(2) The ACAT may, if satisfied that it is appropriate and just to do so in relation to an application mentioned in subsection (1)—(a) refuse to make a termination and possession order if—

(i) the tenant has remedied the relevant breach; or(ii) the tenant undertakes to remedy the breach within a reasonable

specified period and is reasonably likely to do so; or(b) make a termination and possession order but suspend it for a period

of no more than 3 weeks if satisfied that—(i) were the order not suspended for a specified period of no more

than 3 weeks the tenant would suffer significant hardship; and(ii) that hardship would be greater than the hardship that would be

suffered by the lessor if the order were suspended for the specified period.

25. The original application was served on the tenant together with a listing notice

indicating that it was listed for hearing on 23 June 2016. As well as the

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photographs and notices referred to above, the application had other attachments

including the Direction issued by ACT Fire and Rescue.

26. On 23 June 2016 Mr Safi-Westendorf appeared for the Commissioner and the

tenant appeared with Ms O’Rourke of the Supportive Tenancy Service. The

application was listed before Senior Member Robinson.

27. This was not the hearing at which the original decision was made. Although it

was listed as a hearing it did not proceed in that way and is more accurately

described as a directions hearing. Some things occurred that affected the later

hearing and so it is referred to here to assist the review of the original decision.

28. The Commissioner’s representative opened by withdrawing the application for

an order under section 48 of the RT Act so that a termination order was sought

only on the basis that the premises were uninhabitable.

29. He said that the Commisioner had serious concerns about the state of the

property. Mr Mooney-Pursell interrupted saying, “A lot of that’s been remedied

since it first appeared”, and later, “…at this stage over half of it has been

remedied.” Again, when the Commissioner’s representative said “…my concern

is because of the amount of goods that are in the property if there was

something to happen, if a fire were to start, the property would have no chance.”

Mr Mooney-Pursell interrupted saying, “It would have – it would have less –

you’re possibly quite right that the amount that was in it when it was viewed is a

lot less now.”

30. Mr Mooney-Pursell said that he had been working on the property.

Ms O’Rourke said that she had been to the property and that it looked quite

different from the photographs. She said that she couldn’t see anything above

shoulder height and that most of “it was from the waist to the knee down of the

items within the lower ground floor”4. Mr Safi-Westendorf re-iterated that the

Commissioner’s view was that the property was uinhabitable and that “there are

very serious concerns for the welfare of Mr Mooney-Pursell”.

31. Mr Mooney-Pursell handed up a letter he had prepared addressed ‘To whom it

may concern’. The letter said that he commenced the tenancy in 2003 not 2005.

4 Transcript of Proceedings 23 June 2015 page 5

8

He described problems with his neighbours and disputes with the

Commissioner. He described physical disabilities, attempts to declutter his

house, poor relations with his current housing officer and the fire in his carport.

32. Senior Member Robinson said that she was concerned about Mr Mooney-

Pursell’s health and safety and that of others living in the block. The member

said, “The concern is we have evidence from the fire brigade that there is a

genuine risk.”

33. There were then a number of exchanges about the state of the property.

Mr Mooney-Pursell responded to the member’s comment about the evidence

from the fire brigade as follows:

But they haven’t been back since. They came once and requested that we do what they requested and that has been done but they haven’t returned to see whether it’s been done.5

34. At this point, the Commissioner’s representative left the room to ask a lawyer

from Canberra Community Law, who was on the tribunal’s premises although

not engaged with this matter, to come into the room. It is apparent that she did

so and remained in the room for the balance of the hearing although not

representing the tenant.

35. The member decided not to make a decision as urged by the Commissioner but

gave a brief adjournment so that further evidence could be obtained about the

significant changes Mr Mooney-Pursell said had been made, and his compliance

with the fire brigade’s direction.6

36. After the member confirmed that there would be an adjournment for a week,

Ms O’Rourke raised the prospect that the fire brigade should attend the

premises:

MS O'ROURKE: And so who would be responsible for organising the fire brigade to come by and check that it does comply?...MR MOONEY-PURSELL: Whenever they’re - you know - whenever it’s convenient.

MS O'ROURKE: Well, I just don’t know who’s responsible for that.5 Transcript of Proceedings 23 June page 76 Transcript of Proceedings 23 June page 10

9

...MS O'ROURKE: If you comply they’re the ones who need to say whether you’ve complied....SENIOR MEMBER: ...If it goes to hearing we’ll need the fire brigade here to say whether it’s still a hazard or not but, Mr Safi-Westendorf, can you contact the fire brigade - - -

MR SAFI-WESTENDORF: I can.

HER HONOUR: - - - and see whether they can come out and inspect the property.7

37. After further discussion the member made it clear that the tribunal needed more

evidence, that Mr Mooney-Pursell was entitled to have an opportunity to

provide evidence for a hearing, and that she would adjourn for a week to allow

that to happen. The lawyer from Canberra Community Law indicated that a

colleague would be present at the next hearing.

The hearing

38. The application was re-listed on 30 June 2016 before a different member. A

different representative, Mr Phillipson, appeared for the Commissioner and a

different solicitor, Ms Chaudhri from Canberra Community Law, appeared for

the tenant. The only people present who had been at the earlier hearing were

Mr Mooney-Pursell and Ms O’Rourke.

39. Mr Phillipson confirmed that the application was for a termination and

possession order pursuant to section 47 of the RT Act on the basis that the

premises were uninhabitable.

40. He tendered an email dated 29 June 2016 from an ACT Fire and Rescue Station

Officer known as ‘Ian’ to a Housing Manager. The email was about an

inspection at the premises on 28 June 2016. He also tendered a bundle of

photographs taken on 28 June 2016 during the inspection.

41. He sought the suppression of the names of the officers who authored the email

and who were waiting outside the hearing room. The Tribunal asked that these

witnesses be brought into the Tribunal so the member could “look at the

7 Transcript of Proceedings 23 June pages 10-11

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documents and listen to them at the same time.”8 The officers were

subsequently identified as ‘Neil’ and Ian, the author of the email.

42. Mr Phillipson read the email from ACT Fire and Rescue onto the record. The

email set out what was observed on 28 June 2016. Neil was one of the officers

who inspected the premises on 3 May 2016. The email recorded that Neil

observed that “the density of clutter had improved from the previous

inspection.”

43. Commander Shaw was the other officer who attended on 3 May 2016 – he

signed the Direction. In the email Ian wrote:

...there appears to be a improvement of the level of hoarding from the brief that I received from Commander Shaw. The density and potential fire load of material stored under the carport remains a risk that requires treatment...In summary ACTF&R have formed the view the hoarding level within house still constitutes a fire risk.

44. There ensued a free flowing dialogue between the tenant, Ms O’Rourke,

Mr Phillipson and the Tribunal to which there was no objection. Photographs

taken by Ms O’Rourke on 24 June 2016 were tendered. Then “Ian” was sworn,

examined and cross examined. While he was giving evidence he also responded

to comments by Mr Mooney-Pursell. After noting his observations on the state

of the premises on 28 June 2016, Ian said:

(a) “its become very carbonaceous and so its very flammable; and so the fuel

load is higher...”9;

(b) “what I observed the other day the fire was well – the loading of that

house is probably three or four times what you’d see in a normal house, so

I’d say we’ve got a dangerous situation”;10

(c) “I think there’s a big risk for people living in that property and it’s a big

risk for our firefighters”;11

8 Transcript of Proccedings 30 June 2016 page 3, line 409 Transcript of proceedings 30 June 2016 page 10, line 810 Transcript of proceedings 30 June 2016 page 10, line 1711 Transcript of proceedings 30 June 2016 page 10, line 20

11

(d) “the level of clutter and the speed with which a fire would spread would

make it dangerous to send fire fighters into the premises if a fire broke

out”;12 and

(e) “because of the fuel load that’s quite dangerous situation.”13

45. The Tribunal summarised Ian’s evidence “what your saying is that the premises

are not safe” to which Ian replied “they are not safe.”14

46. A second officer from ACT Fire and Rescue, known as Neil, was then sworn,

examined and cross examined. He was in the hearing room while Ian gave

evidence.

47. Neil was present during the inspections on 3 May 2016 and 28 June 2016. He

responded to questions about his observations on 3 May and on 28 June:

(a) As at 3 May “there was extremely high fuel loads internal to the building

and very poor access within the building”;15

(b) As at 28 June “the volume of flammable material inside the building has

improved from the original inspection but is still at a high to extreme

level”;16

(c) The tenant informed him about the use of the small electric heater from

which Neil concluded that it was used “right in the fuel load.”17

48. At the conclusion of the evidence the Tribunal summarised the issues for

determination. The Tribunal understood at that time that the application for

possession was brought under section 48 based on the tenant’s breach of

standard term 63. The Tribunal found the Commissioner’s case based on

standard term 63 had been made out and that the urgency of the situation

required a decision to be made that day.18

12 Transcript of proceedings 30 June 2016 page 11, line 6 and page 17, line 2

13 Transcript of proceedings 30 June 2016 page 17 line 1614 Transcript of proceedings 30 June 2016 page 12, line 20 15 Transcript of proceedings 30 June 2016, page 20, line 116 Transcript of proceedings 30 June 2016 page 21, line 20 17 Transcript of proceedings 30 June 2016 page 23, line 2718 Transcript of proceedings 30 June 2016 page 25, line 30

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49. Ms Chaudhri then drew the Tribunal’s attention to the fact that the

Commissioner had abandoned section 48 and was relying only on the

uninhabitability grounds of standard term 86 (a) and section 47.19

50. Ms Chaudhri then submitted that section 47 only applies to breaches that are not

caused by the tenant. In the present case the tenant had caused the problem and

so section 47 was not open to the Commissioner. The submission also

contended that standard term 86(c) only applied to uninhabitability not caused

by the tenant. The Commissioner could and should have relied upon standard

term 63 and section 48 but because that was not the case, the Tribunal had no

power to make the termination order and hence should dismiss that

application.20

51. The Tribunal did not accept that standard term 86 concerned itself with the cause

of the uninhabitability at all and said it did not matter who or what caused it.21

52. Ms Chaudhri sought an adjournment to permit further de-cluttering by the

tenant. The Tribunal refused the adjournment and noted the following reasons:

(a) The tenant has had since April 2016 to fix the problem.

(b) The tenant’s safety and wellbeing were under threat.

(c) The Commissioner had a right to seek to protect the property.

53. The Tribunal concluded with the finding:

…the evidence from those fire officers that the premises are so over-cluttered that there is a significant risk of a fire. If there is a fire [there is] a more than significant risk of death, either to the tenants or to the fire officers. That is a really serious risk that I cannot just ignore it and say ‘oh lets adjourn again and see if the tenant can fix things’.22

54. The tenant’s representative made a detailed submission seeking that the hearing

be further adjourned. The Tribunal responded, inter alia:

(a) “I’ve had the evidence from the fire officers that the premises are

unsafe…”23

19 Transcript of proceedings 30 June 2016 page 26, line 2020 Transcript of proceedings 30 June 2016 page 26 line 4221 Transcript of proceedings 30 June 2016 page 27, line 4522 Transcript of proceedings 30 June 2016 page 29, line 1623 Transcript of proceedings 30 June 2016 page 32, line 41

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(b) “...the risk to the tenants is too great despite the fact that there may have

been an improvement.”24

(c) That there is a real and significant risk to the tenant and other occupants.25

(d) “so taking all that into account…the premises are not safe to live in…”26

(e) “…not because I want to punish the tenant, not because I think he’s done

anything wrong but because of the risk to life and limb and the premises is

too great. And the bottom line, it’s uninhabitable and is uninhabitable

because it’s not safe.”27

55. Ms Chaudhri asked if she could raise the possibility of a suspension of the order.

The Tribunal responded:

No it’s not safe. It would be totally inappropriate to say “I have decided that these premises are so unsafe you shouldn’t live there”. And then they’re able to live there for another – up to three weeks.28

56. The Tribunal ordered that the residential tenancy agreement be terminated on

that day and that the tenant give immediate possession. A warrant for possession

was issued in support of those orders.

The Grounds for Appeal

57. The tenant lodged an application for appeal on 1 July 2016. The grounds

identified questions of law - no questions of fact were said to arise from the

decision.

58. The first ground of appeal contended that the Tribunal erred in applying section

47 to terminate the tenancy because that section only applied where there was

no breach of the standard residential tenancy terms. Here, the tenant admitted

that the state of the premises was caused by him and in effect, that he was in

breach of standard term 63. Section 48 was the relevant source of power to

terminate but that had been abandoned by the Commissioner.

24 Transcript of proceedings 30 June 2016 page 33, line 11 25 Transcript of proceedings 30 June 2016 page 33, line 2426 Transcript of proceedings 30 June 2016 page 33 line 2527 Transcript of proceedings 30 June 2016 page 33, line 4528 Transcript of proceedings 30 June 2016 page 33, line 32

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59. The second ground contended that the Tribunal had incorrectly considered itself

to be deprived of the discretion under section 47(2) to suspend its order for up to

three weeks.

60. The third ground alleged various procedural errors:

(a) The tenant was not given notice of the Commissioner’s intention to call

the officers from ACT Fire and Rescue which deprived the tenant of the

opportunity to prepare cross examination. Further, the officer’s had given

what was in effect expert evidence without their qualification to do so

being established.

(b) The officer Neil was present in the Tribunal and heard the evidence from

Ian, before Neil gave evidence.

(c) The two officers conferred with each other in the course of their

respective evidence.

First Ground of Appeal

61. At the hearing Ms Bartlett for the tenant confirmed that the first of the appeal

grounds was not pressed. It is therefore not dealt with.

Second Ground of Appeal

62. The tenant’s representative submitted that the original tribunal wrongly found

that it could not suspend a termination and possession order if premises were

uninhabitable. The contention was that the member’s response to the request

that the order be suspended, set out in paragraph 55 above, showed that the

member incorrectly thought that the discretion provided by section 47(2) of the

RT Act was not available in a class of matters to which the present matter

belonged, as opposed to deciding on the facts of this particular case not to

suspend the operation of the order.

63. The Commissioner submitted that the member had not found that she could not

exercise the discretion available under section 47(2), but rather she had

considered the discretion and rejected the contention that it should be exercised

in favour of the tenant on the facts, because the risk was too great. It is a

question of interpretation.

Consideration of Ground

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64. A reading of the whole of this part of the transcript does not support this ground

of appeal. Senior Member Lennard’s response does not indicate that she thought

that the discretion in section 47(2) was not available, or that she did not consider

it and exercise it, but rather than she was satisfied that the discretion to suspend

the order for up to three weeks should not be exercised in the tenant’s favour.

65. It is true that she did not ask the tenant’s representative to make submissions

about how the discretion should be exercised. That does not mean that she did

not think that the discretion was available. The hearing was held in the context

of a busy rolling list of residential tenancy hearings; the presiding member, the

Commissioner’s advocate and the tenant’s solicitor are each regularly involved

in such hearings – it is understandable that representatives are not invited to

provide a detailed exposition of the law and make submissions about its

interpretation and application in each case. Also, the transcript indicates that the

tenant was repeatedly interjecting and had been for several minutes as the

member was attempting to respond initially to his representative’s submission

that the hearing should be further adjourned, and then as she was attempting to

give her decision and as she was responding to the request for the order to be

suspended. The impression gained from reading the transcript is that she was

conscious of the need to keep control of the hearing and to conclude it.

66. It is clear that the Senior Member formed the view that the urgency of the

situation warranted immediate termination and that any suspension of the

termination date would introduce unacceptable dangers. That she turned her

mind to the exercise of balancing hardship as required by section 47(2)(b) is

apparent in the exchange that followed the passage set out in paragraph 55

above and the whole of the transcript should be considered.

Ms Chaudhri: Senior Member, may I just raise with the tribunal the possibility of suspending that order for a period?

Senior Member: No. It’s not safe. It would be totally inappropriate to say, “I have decided that these premises are so unsafe you shouldn’t live there.” And then they’re able to live there for another - up to three weeks.

Ms Chaudhri: Even in that condition there is significant hardship - - -

Mr Mooney-Pursell: Your information on the state of it bases - - -

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Ms Chaudhri: - - - it would cause the tenant to vacate.

Senior Member: I understand that but I think that being caught in a fire would be even more of a significant hardship. So I’ve made this - not because I want to punish the tenant, not because I think he’s done anything wrong but because of the risk to life and limb and premises is too great. And that’s the bottom line. It’s uninhabitable and it’s uninhabitable because it’s not safe.

Mr Mooney-Pursell: Is there not an argument to take - - -

Senior Member: Sir, I really have to move on. Thank you.

Mr Mooney-Pursell: There must be an argument to say that if you’re the (indistinct) is - - -

Senior Member: Sir, I’m going to ask you to leave the room now. We’re done with that matter and I really do need to move on.

67. This ground of appeal is not made out.

Third Ground of Appeal

68. The first procedural difficulty identified was that the tenant did not have notice

of the Commissioner’s intention to call the officers from ACT Fire and Rescue

as witnesses, nor the opportunity to prepare cross-examination, and that those

officers gave what was in effect expert evidence without their qualification to

do so being established. This could be a denial of procedural fairness

constituting an error of law that would justify the decision being set aside if it

resulted in some practical injustice to the tenant.29

69. We accept that parties should usually have notice of witnesses who are to give

evidence, as well as of the evidence that they are to give. In this case we are

satisfied that the tenant did have that notice, although we accept that the

representative who appeared for him on the day may not have. The excerpts

from the hearing held on 23 June 2016 set out at paragraphs 31 to 36 above

show that it was the tenant who raised the need for ACT Fire and Rescue

officers to inspect the premises again. An adjournment was given at the tenant’s

request to give an opportunity for photographs to be taken and evidence

obtained to support his assertion that he had complied with the Direction. The

29 Re Minister for Immigration and Multicultural Affairs: Ex Parte Lam [2003] HCA 6 at [37] –[38]

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Commissioner was not seeking to call further witnesses and opposed the

adjournment.

70. Ms O’Rourke, supporting the tenant, re-iterated that the fire brigade could say

whether the Direction had been complied with and she asked how the inspection

was to be arranged, leading the presiding member to request that the

Commissioner’s representative try to arrange it. The officers were not in truth

the Commissioner’s witnesses. The Commissioner arranged their inspection and

attendance at the hearing at the request of the tribunal, on the basis of the

tenant’s remarks about the change to the state of the premises since the

Direction was issued on 3 May 2016. A lawyer from Canberra Community

Law was in the hearing but not representing the tenant.

71. The evidence of officer Ian was that the tenant was present when the premises

were inspected two days before the hearing and we accept that the officers

spoke to the tenant about what they had seen and what they concluded. In these

circumstances we are satisfied that the tenant was on notice that fire brigade

officers were going to attend the hearing and that he knew, in general terms, the

evidence they would give.

72. The Appeal Tribunal does not agree with the characterisation of the officers

from ACT Fire and Rescue as ‘expert witnesses’. Their evidence was about

their observations and their consequent assessment of the level of fire risk at the

premises, and the extent to which things had changed since the Direction was

issued.

73. The tenant was aware of, and had been served with the Direction from ACT Fire

and Rescue in May 2016. The tenant was aware that officers from ACT Fire and

Rescue had attended his premises and the purpose of those visits. The tenant

was aware that the Commissioner’s case was predominantly based on the

issuing of the Direction by ACT Fire and Rescue. It was open to the tenant to

have commissioned his own report if he wished to challenge the conclusions

about the fire risk on the premises at any time. He did not do so and indeed, the

transcript shows that he conceded that the Direction was “perfectly

reasonable”.30

30 Transcript of Proceedings 30 June 2016, page 15, line 27

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74. The tenant’s representative for the appeal said it was not likely that the tenant

would have obtained an expert report because of the cost of doing so. In the end,

the unfairness to the tenant was said to reside in the absence of a proper

opportunity to cross examine the officers and establish their expertise.

75. The appeal tribunal notes that Ian testified to 30 years of experience in “the job”.

No questions were asked of him, or of Neil, about qualifications, experience or

specific duties. Both witnesses gave their evidence on affirmation and the audio

recording of the hearing indicates that both described themselves as being

employed by, or working for, ACT Fire and Rescue.

76. The Commissioner’s representative handed the tribunal a document setting out

Ian’s qualifications. The tenant’s representative was not shown the document.

The member told the Commissioner’s representative that she did not need to

have further information about qualifications. The qualifications should have

been given to the tenant’s representative and read on to the record.

77. The tenant’s representative cross examined both witnesses and did not ask them

about their qualifications or experience, although she could have done so. She

focussed her questions on seeking clarification of the evidence about what each

had observed and what had been discussed with the tenant

78. There was no factual contest about the amount of clutter in the premises. The

Senior Member had the benefit of photographs taken on 19 May 2016, by

Ms O’Rourke on 24 June 2016 and on behalf of the Commissioner on 28 June

2016. They were also available to this Tribunal. The photographs speak for

themselves.

79. The involvement of ACT Fire and Rescue was an historical fact, including the

attendance and report on the previous fire in the tenant’s carport. The view of

ACT Fire and Rescue that the clutter in the house represented such a substantial

fire risk that a Direction should be issued was a matter of public record. The

oral evidence of the officers at the hearing did not, in truth, go beyond

establishing that while there had been an improvement and a reduction in the

fuel load since 3 May 2016, it was still “much higher than normal” and the fire

risk remained.

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80. One of the officers was present on both 3 May when the Direction was issued

and on 28 June. The other had been briefed by the Commander who had issued

the Direction on 3 May. It would certainly have been helpful for the witnesses

to clarify whether either held an appointment as an inspector under section 99 of

the Emergencies Act 2004, but knowing that is unlikely to have changed any

aspect of their evidence or the findings made by the original tribunal on the

basis of their evidence.

81. Ms Bartlett suggested that an independent expert called by the tenant might

testify that the clutter was not much of a fire risk. It is possible that such

evidence might have been found, but in the Tribunal’s view it is not likely that

such evidence would have been forthcoming. In any event Ms Bartlett said that

the cost considerations would have precluded retaining their own expert.

82. In relation to this aspect of the third ground of appeal we are satisfied that the

tenant was aware that ACT Fire and Rescue officers were going to be called to

give evidence at the adjourned hearing. We are not satisfied that their evidence

should be characterised as expert evidence. To the extent to which their

qualifications, experience and expertise were not established before the tribunal,

we are not satisfied that the tenant was denied a fair hearing as a result, or that

there was in practice, some unfairness or injustice to him.

83. The two other procedural fairness concerns raised in the application for appeal

are about the way in which evidence was given by the officers. Neil was present

when Ian gave evidence before giving evidence himself and the officers spoke

to each other when evidence was being given.

84. We accept that this is not ideal and should be avoided. The Commissioner’s

representative averted to the problem when asking questions of Neil about the

email of 29 June 201631, but Neil indicated that he was familiar with the email

in any event because he had been copied into the original email when it was

sent.

31 Transcript of Proceedings 30 June 2016, page 21, line 9

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85. A departure from the usual procedure for giving evidence does not by itself

amount to a denial of procedural fairness. Again, it is necessary to consider

what happened in practice and whether actual unfairness or injustice resulted.

86. One concern is that Neil’s evidence may have been affected by what he heard

from Ian. A review of the transcript shows that Neil’s evidence was brief. It was

confined to evidence about what he observed at the premises on 3 May and on

28 June 2016 and about conversation with the tenant. It is clear that his evidence

was based on his own observations.

87. Ms Bartlett was not able to point to any part of Neil’s evidence that was affected

by his having heard Ian’s evidence, or that was not consistent with the Direction

issued on 3 May when Neil was present at the premises.

88. Somewhat unusually, when Ian finished giving evidence the audio recording

suggests that there was some discussion between he and Neil which led to Ian

asking a question of the tenant. The tenant’s response seems to have been

picked up Ms O’Rourke who then asked the tenant questions leading to the

tenant saying that he thought the Direction was perfectly reasonable.

89. The member asked Ian a follow up question about his observations on 28 June in

relation to the part of the Direction that required flammable material to be

removed from areas adjacent to heaters and cook tops. He replied that he didn’t

pay attention to it and then asked Neil if he had seen it. This is one of the risks

in less formal hearings when witnesses are present at the same time – evidence

can descend into general conversation between people present in the hearing.

90. Neil answered the question. Again, this is not ideal but it is clear that the

evidence of one had no influence on the other. Ian could not answer the question

and said so. He did not attempt an answer, or rely on Neil to assist him with an

answer. He simply passed the question to Neil. There was not, in fact, any

conferring between them about what answer should be given.

91. We agree that evidence should not have been given in this way, but the fact that

it was does not of itself establish that the principles of procedural fairness were

neglected to such an extent that an error of law occurred. A review of the

transcript and of the audio recording of the hearing establishes that neither

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witness was influenced by the other, nor conferred with the other as to the

evidence they gave.

92. The third ground of appeal is also not made out.

Conclusion

93. Even though the way in which evidence was given was not ideal, we are satisfied

that there is no question of fact or of law arising from the decision of the

original tribunal that should lead to the decision being set aside. Looking more

widely than the matters raised in the grounds of appeal, we observe that the

photographic evidence provided both for the tenant and the Commissioner, and

the evidence of the fire officers, is compelling and supports the original

tribunal’s conclusion that the premises posed a serious fire risk. The tenant was

understandably upset that he and his son would have to move out. The

termination of a long standing tenancy agreement is a serious matter, not to be

ordered lightly. Having reviewed the evidence and submissions before the

original tribunal and the decision made, we are satisfied that the decision was

correct and that it should be confirmed.

………………………………..President L Crebbin

delivered for and on behalf of the Appeal Tribunal

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HEARING DETAILS

FILE NUMBER: AA 37/2016

PARTIES, APPELLANT: Kevin Mooney-Purcell

PARTIES, RESPONDENT: Commissioner for Social Housing

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPELLANT Canberra Community Law

SOLICITORS FOR RESPONDENT N/A

TRIBUNAL MEMBERS: President L Crebbin, Senior Member A Anforth

DATES OF HEARING: 10 August 2016

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