In Episode 4 we dealt with the ACAT’s new civil jurisdictional limit whilst Episode 5 covered the inability to deal with a vindictive/tactical counterclaim. The ACAT’s legislative hamstringing does not stop there however and in episode 6 we face the difficulty of enforcing an order of ACAT once you are able to obtain one in your favour.
The enforcement process is notoriously difficult and cumbersome in any event. I often have conversations with clients that go something like “But I have a court order in my favour, why can’t we just get paid now?”, “It’s not that simple”. Some forms of orders are much simpler than others. A money order from the Supreme Court is much easier to enforce than say an order to vacate premises made by ACAT.
In a recent case, the ACAT determined that a man was not entitled to continue living in his deceased ex-wife’s house and duly made an order for his eviction. The Trustee for his wife’s estate attempted to execute the orders and could not directly enforce orders of the ACAT. So he registered the order in the Magistrates Court in an attempt to have the order enforced through those court processes. This is the normal course of enforcing ACAT orders as the Magistrates Court holds coercive powers that ACAT does not. The Magistrates Court could for example order an employer to re-direct wages or to seize bank accounts. Unfortunately, they and the ACAT, don’t have the power to make orders relating to the possession of real property (a house), and the Trustee was required to have his application transferred to the Supreme Court.
Finally, after a delay of many months, the Trustee was able to obtain a valid order to enforce the ACAT judgment. This was probably small consolation for someone who thought their legal struggle was finalised a long time before.
The judgment sums it up nicely:
13. Section 22 of the ACAT Act gives the ACAT, in relation to civil dispute applications, “the same jurisdiction and powers as the Magistrates Court has under the Magistrates Court Act 1930, Pt 4.2 (Civil jurisdiction).” That jurisdiction is described in s 257 of that Act as jurisdiction to hear and decide “any personal action at law”, though, of course, with a monetary limit – $10 000 in the ACAT: s 18 of the ACAT Act; $250 000 in the Magistrates Court: s 257 of the Magistrates Court Act
34. Unfortunately, however, the Magistrates Court has, as noted above (at ), no jurisdiction to make an order for the recovery of possession of land. See r 2440 of the Court Procedures Rules 2006 (ACT). Any such enforcement must to be undertaken in the Supreme Court.
37. It is not clear whether the Registrar was relying on the dispensing powers under r 6 of the Court Procedures Rules or relying on the provisions of r 6461 which permit informal service to be accepted as service for the purpose of Pt 6.8.
38. Because there was some doubt as to whether the order of the ACAT was directly enforceable by this Court, the Supreme Court Registrar also directed Mr Kaney to issue an Originating Application seeking an order for delivery of possession of the Property. No doubt the order of the ACAT would have been strong evidence in support of such an application.
To show the gaps in the implementation of the ACAT, I had to recently bring it to the attention of the Justice Directorate that the Supreme Court didn’t even have a specific filing fee for the filing of orders for enforcement. We would have had to pay the full fee for commencing new proceedings (~$3000); a situation now rectified.
As a creature of statute, the ACAT was always going to have trouble with dealing with certain jurisdictions and enforcing certain orders. For example, practitioners will regularly blush at attempting to convince a Magistrate that they may hold the inherent powers of the Supreme Court when the Magistrates Court legislation is found to be lacking. But given that the ACAT enabling legislation was specifically crafted to give ACAT exclusive jurisdiction over residential tenancy disputes, one would think that it would be prudent to give them the power to actually make enforceable eviction orders.
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