The court examined whether the relocation notice could have interfered with tenants' rights
The Federal Court allowed a case challenging a now-reversed social housing relocation decision to proceed on limited grounds, permitting claims that the relocation notice interfered with tenants' rights and may constitute unconscionable conduct.
The dispute involved a decision by the ACT’s Commissioner for Social Housing to relocate residents from public housing properties. Although the relocation decision was later reversed and no forced relocations occurred, the court examined the viability of new legal claims brought forward by a resident representing affected tenants.
The original case argued that the relocation decision was unlawful because it contravened multiple legislative and regulatory provisions, including the Human Rights Act 2004 (ACT) and the Public Sector Management Act 1994 (ACT). The resident also claimed that the relocation notice constituted a breach of lease agreements between tenants and the Commissioner. Both the resident and the territory later accepted that the case, as originally framed, was no longer viable. However, the resident sought to amend the pleadings, arguing that the revised claims had reasonable prospects of success.
The proposed new claims alleged that the relocation notice breached the commissioner’s obligation under the leases not to interfere with tenants' peaceful enjoyment of their homes. They also argued that the relocation decision and notice constituted unconscionable conduct under s. 21 of the Australian Consumer Law. The territory opposed the amendments and sought summary dismissal of the case, asserting that the proposed claims lacked a reasonable chance of success.
The Federal Court considered whether the relocation notice could amount to an interference with tenants’ reasonable peace, comfort, or privacy under an express term of the standard residential tenancy agreements. It rejected arguments that additional implied terms should be recognised, concluding that the express term comprehensively covered the subject matter. The court also found that it was at least arguable that the relocation notice itself could constitute interference, meaning this issue required further consideration rather than dismissal at an early stage.
On the unconscionable conduct claim, the court examined whether the commissioner’s actions fell within the scope of the Australian Consumer Law, which applies to government entities only when they are engaged in commercial activities. The court determined that the issue of whether the commissioner was carrying on a business required a full examination of the evidence and could not be dismissed outright.
The court allowed the resident to proceed with the breach of contract claim but limited it to the express term preventing interference with tenants’ peace. The implied terms based on common law and human rights principles were disallowed. The unconscionable conduct claim was also permitted to proceed, as the question of whether the commissioner was acting in a commercial capacity was found to be arguable. The territory’s request for summary dismissal was denied.
The ruling allowed the case to move forward on narrower legal grounds but did not determine the ultimate outcome. The decision clarified how tenancy protections and consumer law apply in the context of public housing. The next phase of the litigation will focus on whether the relocation notice constituted interference with tenants' rights and whether the commissioner’s actions fell within the scope of consumer protection laws.
