Baker v NSW Land and Housing Corporation

NCAT Appeal Panel|2016-08-02|Before: Dr J

Solicitors: South West Sydney Tenants Advice and Advisory Service (Appellant) Department of Family and Community Services, Legal Services (Respondent) File Number(s): AP 16/26802 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 23 May 2016 Before: C Marzilli General Member File Number(s): SH 16/10591

REASONS FOR DECISION

On 7 March 2012 the NSW Land and Housing Corporation (the landlord) entered into a social housing tenancy agreement with Hassan Baker (the tenant). The agreement stated that the term of the tenancy was a weekly tenancy.
On 16 October 2015 Family & Community Services wrote to the tenant stating that it had previously written to the tenant about the excess materials at the property and that it had asked the tenant to remove all whitegoods, bikes, temporary structure from carport, tarpaulin, sheetings and all other unapproved materials from the property. The letter stated that it was believed that the tenant had not taken these actions because of photographs taken on 15 October, which were attached to the letter. The tenant was requested to remove all materials from the property by no later than 30 October 2015 and advised that failure to comply with the letter (which was described as a final warning) would result with the tenant being issued a notice of termination.

Some of the evidence

Part of the evidence before the Tribunal comprised a large number of photographs of the grounds of the premises, being the front and back yard and the sides. The landlord tendered 128 of those photographs. They had been taken on 11 different days between 15 October 2015 and 20 May 2016. Those photographs were referred to in paragraph 12c of the Tribunal's reasons for decision.
The landlord also tendered a client service visit record. This document appears to be a standard form of document which comprises a series of questions on page 1 and provides for notes to be made on page 2. The document appears to be a computer generated document with directions "Please select" after each question. The document shows that it related to a client service visit or inspection which took place on 5 November 2015. It gave the tenant's name and the address of the premises. The document was apparently completed by a Ms Booler who was apparently a housing officer. It was Ms Booler who signed the notice of termination as a delegate of Housing NSW. Two of the questions and answers on the first page were as follows: Is the tenant's property care satisfactory?: No Hoarding Poor property care internally and externally. Has the tenant identified any other tenancy issues, such as, problems with neighbours? : No.
Part of the notes which had been typed onto the second page of the document were as follows: This inspection was conducted as a follow up to a 14 day property care letter issued to Mr Baker on 16 October 2015. He was required to have removed all the whitegoods, household furniture and other goods which are being hoarded in the carport and front yard from the premises. Photos taken today's date confirm that Mr Hassan has not removed the goods as requested. I spoke to Mr Hassan about the household goods on his property and he stated that it was just his 'hobby' to buy items and do them up. I asked Mr Baker how he could afford to buy all the goods and tools on the property when he is only in receipt of a disability pension and he stated that he picks them up 'cheap'. I asked Mr Baker if he was running a business from the premises without Housing's permission but he denied this. I also asked if Centrelink was aware of his 'hobby' and he stated that it was none of Centrelink's business. Mr Baker would not allow me access to the dwelling but from the front door I could clearly see the lounge area. There were cords and tools in the lounge room and when I first knocked Mr Baker was using a blow torch on an item while sitting on the lounge. I advised Mr Baker that a Notice of Termination would now be issued. I have referred this client back to the TL as I do not believe this case warrants Specialist intervention. Mr Baker does not present as mentally ill or unwell nor does he appear to have cognitive impairment of any kind. Mr Baker would not meet the criteria for assistance for any support services which I know of and is clearly able to make informed decisions and choices for himself. I believe he has chosen not to comply with his tenancy agreement. Mr Baker owns land in his own name, and has at least two vehicles and a boat. He is able to run his 'hobby'/business which includes buying and selling, repairs and painting. There are a number of items and goods which have come onto the property since Housing requested Mr Baker to remove the goods from his yard; for example, the stack of 10 or more wooden pallets on the front fence line of the property. These items would have to have been bought and /or transported to the property by Mr Baker. The issues here are that the tenant may be illegally running a business from the property and his failure to remove the hoarded goods from the front yard as requested. Both of these matters are breaches of the tenant's residential tenancy agreement and could be dealt with by a request for information to the fraud unit and NCAT action commencing with a Notice of Termination. I recommend that this referral be closed and the matter referred back to the CSO and SCSO for the appropriate legal response to Mr Baker's failure to comply with his tenancy agreement, including, issuing a Notice of Termination for breaches to: 14.1 and 42.2 and 43.1.1 and 43.1.3 and 43.2.
The tenant tendered evidence which included: 1. Statutory declarations by the tenant, Kerri-Anne Simpson, Leanne Midson and Nuku Faletau; 2. Photographs taken on 28 January 2016 of various areas inside the premises and photographs taken on 17 March and 26 April 2016 of the outside of the premises; 3. A Family & Community Services document described as "Dealing with Hoarding and Squalor", apparently prepared for a NSW Community Housing Conference held on 6 May 2015; 4. A document apparently produced by Catholic Community Services NSW/ACT for a National Hoarding & Squalor Conference 2014 and described as "Pathways to Dealing Effectively with Hoarding & Squalor in Australia"; 5. A Housing Pathways - Tenancy Policy Supplement last amended 31 March 2016 and published by NSW Family & Community Services; and 6. A Hoarding & Squalor document comprising 3 pages.
The tenant attended the hearing before the Tribunal Member but was not required for cross-examination. In his statutory declaration made 15 April 2016, the tenant stated that he had brought goods into his yard for two reasons. The primary reason was to recycle the goods and give them a new home with friends, family and neighbours. Doing this was a strategy he used to help him control his anxiety and mental health issues. The second reason was to recycle the metals to try to earn a little extra money to help with expenses. He stated that he earned on average less than $100 per month from recycling metals. He said that he puts the scrap metal aside until late in the year then scraps it to earn money to go towards expenses and Christmas gifts for his children. He had inquired at Centrelink as to the limit he was allowed to earn before his pension was affected. He earns nowhere near that amount each year. The activity was not a business; it was a mental health strategy for coping. Since Housing NSW had asked him to remove the goods from his yards, he had asked a friend in his spare time to help him clean everything out, as he has back problems and cannot lift heavy goods. He stated that he believed he was making good progress and intended to keep going until the job was done.
The statutory declaration of Nuku Faletau was signed on 15 April 2016. He stated that he had known and been friends with the tenant for over 10 years and that he often helps him at his home with heavy lifting of the goods in the tenant's yards as he has back issues and cannot lift things himself. Mr Faletau usually came around most days of the week and spends 4 or 5 hours helping the tenant. His goal in helping was to help the tenant get rid of all of the goods from his yards. He said that the inside of the tenant's house was usually in neat and clean order. Since he had begun helping the tenant remove all of the goods, the yards where he stores the goods he fixes, have started to look better and have less clutter. He and the tenant were working almost every day towards removing all of the goods in his yards.
The statutory declaration of Kerri-Anne Simpson was dated 15 April 2016 and it recorded that she had moved into her current residence in mid-2015. Her address is No 7 in the street in which the tenant lived. The tenant lived at No 8 in that street. In the statutory declaration Ms Simpson stated that the tenant had been a great support to her and a good neighbour. The tenant had given her a number of items of household furniture, various tools and toys that he had collected and refurbished. She visits the tenant regularly and has never seen any evidence of any pests on his property. Usually his house is quite neat and tidy inside. She had noticed a big improvement in the neatness of his yards and a noticeable decrease in the volume of goods he has in the yards. On many occasions she has witnessed the tenant being ridiculed by his neighbour, the woman living at No 5 in the street.
In her oral evidence to the Tribunal, Ms Simpson stated that when she first moved into the street, the tenant noticed her moving in and asked if she was in need of any furniture or whitegoods or anything for the house. She thanked him for the offer but she had everything she needed. Over time he has helped her out with quite a few things that she has needed. She stated that before the fire the property was 100% better than when she first moved in to the street. She has been inside the house which was beautiful. The tenant was expecting a new child and he had gone through and done all of the inside of the house and made it nice and fresh for the new baby. She characterised the tenant as a good neighbour. He takes care of the other neighbours and makes sure they have stuff if they need it. He is a good person and he has a good heart.
The statutory declaration of Leanne Midson was dated 15 April 2015. In that statutory declaration Ms Midson said that she lived in the street before the tenant moved into the street and had found him to be a friendly, helpful neighbour. She has noticed improvement in the cleanliness of the yards since November 2015.

The Tribunal Member's reasons

In par 12 of his reasons, the Tribunal Member set out his summary of the evidence tendered by the landlord. That summary included in par 12c, reference to 128 photographs of the premises which show the condition of the premises over a period from 15 October 2015 to 20 May 2016. The photographs show that the condition of the premises varied, but on the whole they show a build-up of household and commercial goods and rubbish in the yards (or some of the yards) and breach of terms 14, 42 and 43 of the residential tenancy agreement.
In par 12 the Tribunal Member said: "On the basis of the evidence tendered by the Applicant being: (and par 12 summarised the evidence) the Tribunal finds: … j. the grounds set out in the Notice have been established, the evidence set out in paragraph 12 (c) above, comprehensively demonstrates that since at least 15 October 2015, the Respondent has persistently been in breach of clauses 14.1, 42.2, 43.1.1, 43.1.3 and 43.3 of the Agreement as required by paragraph 87 (4) (a) of the Act; and k. the Respondent (Tenant) has not vacated the premises: paragraph 87 (4) (c) of the Act.
The Tribunal Member then made the following findings in pars 13 - 14: 13. Nothing is put as to the tenant's circumstances which provide a reasonable explanation for the breach of the agreement. The Respondent: a. asserted, but did not demonstrate any medical condition through a documented diagnosis by an appropriately qualified and experienced person of a medical condition that showed the Respondent was unable to control his actions or unable to remove items from the Premises; being in receipt of a disability support pension is not proof of a medical condition; b. that not all of the grounds of the Premises were in breach of the clauses of the Agreement last-mentioned; an improvement does not remedy the breach, however the evidence set out at the last bullet point at paragraph 12 (c) makes it patent that the breach had not been remedied notwithstanding the Respondent's photographs of 29 April 2016 (exhibit R8); c. asserted that the inside of the Premises were orderly, however that does not mean that the condition of the external parts of the Premises is thereby waived; d. asserted that the Respondent is of good character and a good neighbour (exhibits R1, R4) of the Respondent (sic), however that does not demonstrate that the breach should be waived; and, e. asserted that the Respondent (sic) was under an obligation to cause the Respondent to be assisted by others prior to issuing a termination notice, however no legal authority was put forward supporting such an assertion. Accordingly the tribunal is satisfied that (sic) the circumstances of the case, the breach is sufficient to justify termination of the Agreement: paragraph 87 (4) (b) of the Act. 14. From at least 16 October the Respondent has been on notice of his breach of the agreement. That breach has not been remedied during the seven months since that time: section 154E of the Act.
The evidence set out at the last bullet point at par 12c comprised 19 photographs of the premises taken on 20 May 2016.
It is clear from what is stated in pars 12j, 13b and 14 of the Tribunal Member's reasons for decision, that the Tribunal Member was of the view that the fact that the breaches had persisted since at least 15 October 2015, was an important fact in the case.
It is clear from what is stated in pars 12 j and k and in the last sentence of par 13 of his reasons, that the Tribunal Member was well aware of s 87(4)(b) of the Act and that if he were to make a termination order he would have to be satisfied of the matters stated in s 87(4) and in particular the matters stated in par (b) of that subsection (that the breach is sufficient to justify termination).

Notice of appeal

On 7 June 2016 the tenant lodged with the Tribunal a notice of appeal. The notice of appeal contained the following four grounds alleging errors of law and one ground seeking leave to appeal which alleged that the decision was not fair and equitable. These grounds are considered below.

First ground of appeal

The first ground of appeal was failure to provide proper reasons. It was said that the Tribunal Member had not addressed s 87(5) of the Act in determining whether the breaches were sufficient to justify termination of the agreement. It was also said that par 12j of the reasons addressed s 87(4)(a) and (c) of the Act but was silent on whether the breaches justified the step of termination. It was said that all three elements of s 87(4) had to be fulfilled before a termination order could be made.
It was said that the Member simply noted that the tenant had asserted certain aspects of his evidence and measured them individually against the breach as to whether each individual item was enough to waive the breach. It was said that at no stage were the circumstances as a whole taken into consideration.
It was also said that the Member had not shown the test applied to show that the seriousness of the breach met the threshold of the serious step of termination.

Second ground of appeal

The second ground of appeal was that the Tribunal Member considered the wrong issues or question. It was said that when considering s 87(5) of the Act, the Member looked at the subsection by way of whether the breach had been remedied in full by the tenant. It was said that the function of s 87(5) was to determine whether the circumstances of the matter warranted a termination. It was said that the burden was on the landlord to show that the breach was serious enough to warrant a termination.
It was said that the Member considered s 154E rather than s 152 of the Act and applied legislation which was not appropriate as the recent amendments to the Act were not retrospective. It was said that the termination notice had issued in November 2015 before the amendments took effect.

Third ground of appeal

The third ground of appeal was that the Tribunal Member did not take into account a relevant consideration. It was said that the Member had not taken into account statutory declarations by two neighbours, one of whom was examined as a witness at the hearing. It was said that the Member had not taken into account the statements provided by the neighbours as to the impact of the tenant's breach on neighbours. It was said that the impact of the tenant's breach on his neighbours was not addressed at all.
It was said that the Member noted that the tenant had taken action toward remedying the breach but then appears to have dismissed these actions as the entire breach had not been remedied.
This ground of appeal also included the following detail: The member did not consider the landlords (sic) actions, or lack there of, in relation to the breach, other than to terminate. The landlord has a mental health accord that lays out steps for clients of a complex nature. The signs of hoarding noted by the specialist CSO, under Housing NSW policy, should have led to steps including the engaging of other services to help the tenant to deal with his hoarding. Housing NSW has developed hoarding policy and recognizes that hoarding has been recognized as a mental illness in the DSM-5. The tenant put evidence of this and Housing NSW"s policy steps forward. This specialist CSO, as well as the senior CSO noted hoarding behaviour by the tenant and instead of following policy, chose to discriminate against this particular tenant by refusing to provide appropriate links to appropriate services as per policy. This was brought to the members (sic) notice when taking into consideration the discretion under s152 of the Act and when asserting the circumstances of the matter under s87(5) of the Act. It was not taken into consideration for either section.

Fourth ground of appeal

The fourth ground of appeal was procedural fairness. It was said that the Tribunal Member used s 154E of the Act when addressing the additional matters to be considered if the agreement was a social housing tenancy agreement. As the termination notice relied upon a breach dated 6 November 2015, it was said that the correct section was s 152 of the Act and that the amendments made by s 154E were not retroactive.
It was also said that under the amendments the Tribunal Member did not need to consider the seriousness of the breach; that this altered the effect of the application of s 152 substantially and resulted in a substantial miscarriage of justice.

Leave to appeal

An appeal may be made "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds" (Civil and Administrative Tribunal Act 2013 ("NCAT Act"), s 80(2)(b)). When the appeal is from a decision of the Consumer and Commercial Division, the Appeal Panel may only grant leave under s 80(2)(b) of the NCAT Act if satisfied that the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) (NCAT Act, Sch 4, cl 12(1)).
The tenant contended that the appeal raised errors of law (as set out above) but also sought leave to appeal alleging a substantial miscarriage of justice based upon the decision not being fair and equitable.
The notice of appeal set out the following five paragraphs which indicated the basis of the application for leave to appeal. The decision is not assessed under the correct legislation. The member has not taken into account that the tenant was, even by the landlord's account, displaying symptoms of hoarding and hoarding behaviour. The member did not take into consideration in his decision that the landlord's own policy sets out actions for CSO's to follow when a tenant displays hoarding behaviour, and that termination should be a last resort. The member did not take into consideration that the tenant was discriminated against by the CSO and denied access to services partnered to Housing NSW that provide hoarding specific help. The circumstances of the mater (sic) were not considered as a whole and the member applied the incorrect legislation to the matter removing an important consideration, the seriousness of the breach. The burden of proof for termination was applied to the tenant to prove he should not be terminated rather than the landlord showing that the breach warranted the serious step of termination. Had the member taken these considerations into account, and the appropriate legislation been applied, then a vastly different outcome was likely to have occurred. In this instance a substantial miscarriage of justice has occurred.

First ground of appeal

We do not agree that the matters relied upon by the tenant in support of this ground of appeal and which are summarised in pars 24 - 26 above, show that the Tribunal Member failed to provide proper reasons. Section 87(5) merely lists five matters that the Tribunal may consider when it is considering the circumstances of the case. The subsection makes it plain that the Tribunal has a discretion whether to consider any of those five matters. We do not agree with the submission that s 87(5) specifies the factors that may be taken into account when determining whether the breach of the tenant was sufficiently serious to justify termination of the agreement. Section 87(5) makes it plain by the words "but is not limited to considering" that the five matters are not the only matters which the Tribunal is to take into account.
The tenant made a submission that at no point in the Tribunal's reasons are the circumstances as a whole taken into consideration to determine whether the breach is serious enough to justify the act of termination, as required in s 87(4)(b). In our view the Tribunal Member did consider all of the relevant circumstances as a whole and how they impacted upon the decision which he had to make concerning termination. We are of the view that the Tribunal Member's reasons should be viewed as stating that the relevant circumstances of the case for the purpose of s 87(4)(b) are stated in pars 2j, 13 and 14 of the reasons. The Tribunal Member listed all of the relevant circumstances in those pars and then drew the conclusion in the last sentence of par 13 that in the circumstances of the case, which he had just detailed, he was satisfied that the breach was sufficient to justify termination of the agreement. In par 14 the Tribunal Member expressed in different terms, but to the same effect, the finding of persistent breach which the Member had made in par 12j.
The Appeal Panel is of the view that it should be concluded that the Tribunal Member's reasons for making the finding that in the circumstances of the case, the breaches were sufficient to justify termination of the agreement, were expressed by him as follows: the persistence of the breaches (par 12j), for a period from at least 15 October 2015 (par 12j and par 14); no reasonable explanation for the breaches had been provided by the tenant (par 13); from at least 16 October 2015 the tenant had been on notice of the breaches (par 14); and the breaches had not been remedied during the 7 months since that time (par 14).
In submissions in reply the tenant submitted that the Tribunal failed to give adequate reasons as to why the tenant's breach of the tenancy agreement was sufficient to justify the termination of the tenancy. We reject that submission for the reasons stated in pars 37 and 38 above.
For the above reasons we are of the view that the first ground of appeal should be dismissed.

Second ground of appeal

In the tenant's submissions in support of the second ground of appeal, it was said that the Tribunal had not specifically addressed s 87(5) in making its decision to terminate the agreement. It was submitted that at no point in its reasons were the circumstances as a whole taken into consideration, to determine whether the breach was serious enough to justify the act of termination. It was further submitted that the Tribunal should have given the reason why certain subsections, including s 87(5)(a) and (b) were not considered by the Tribunal in coming to its conclusions in circumstances where there was evidence addressing those pars.
The Tribunal Member did give consideration to the nature of the breach (s 87(5)(a)). He made a finding that the breach was persistent. The Tribunal Member made a finding that it was patent that the breach had not been remedied (s 87(5)(c)). The tenant's submissions have not brought to the attention of the Appeal Panel any evidence of previous breaches by the tenant (s 87(5)(b)).
We do not accept that the Tribunal Member was obliged to say anything further about the matters set out in s 87(5).
So far as concerns the other submissions which we have referred to above in support of ground 2, we are of the view that what we have said in relation to the first ground of appeal covers those matters and that those submissions made by the tenant on the second ground of appeal do not cause us to alter the views we have expressed in relation to the first ground of appeal.
It was submitted by the tenant that the Tribunal considered s 154E of the Act at par 14 of the reasons. Paragraph 14 is set out in par 19 above and reference is there made to s 154E. The landlord submitted that the Tribunal Member had "miscited s 145E" (sic). We take it that the landlord intended to refer to s 154E and not s 145E. However the landlord made no further submission as to why this was a misciting. The tenant's submissions proceed on the basis that the Tribunal Member's reference to s 154E was intentional but no submission was made as to what part of s 154E the Tribunal Member must have been referring to. It appears that the Tribunal Member had in mind that the facts referred to in par 14 were relevant to the "history of the current tenancy", referred to in s154E(1)(d). We note the similar wording in s152(1)(e). We come back to ss 152 and 154E later in these reasons.
It was also submitted on behalf of the tenant that at no point in the Tribunal's reasons was consideration given to s 152 of the Act. This submission is dealt with below.

Third ground of appeal

In submissions in reply the tenant raised another argument. It was submitted that the Tribunal Member considered whether or not a breach had been remedied by the tenant, or if the surrounding circumstances excused the breach. It was said that that was not the test under s87 (4) (b) and that the question that the Tribunal should have asked was whether the breach was sufficient to justify termination, not whether the breach had been fully remedied or could be excused.
We do not agree with those submissions. Although the Tribunal Member spoke of the breach as not having been remedied (par 1(b) of his reasons) and not waived (pars 13c and 13d), the conclusion to be drawn is that the Tribunal Member was indicating by those words that the persistent breaches were such that none of the matters relied upon by the tenant and referred to in par 13, altered the fact that the breaches were persistent and extended from at least 15 October 2015. For the reasons set out above, we are of the view that the Tribunal did consider whether the breaches were, in the circumstances of the case, sufficient to justify termination of the agreement.
On 22 October 2015 the Residential Tenancies and Housing Legislation Amendment (Public Housing - Antisocial Behaviour) Act 2015 was assented to. It amended the Act. One of the amendments was to omit s 152. Another was to omit s 154 and to insert ss 154A - 154G. The amending Act was to commence on a day or days to be appointed by proclamation. The commencement date was proclaimed to be 18 December 2015.
Prior to the amendment, s 152 of the Act had been as follows: 1. In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: 1. any serious adverse effects the tenancy has had on neighbouring residents or other persons, 2. whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, 3. the landlord's responsibility to its other tenants, 4. whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, 5. the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. 1. This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act.
Section 154E is as follows: 1. In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following: 1. the effect the tenancy has had on neighbouring residents or other persons, 2. the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, 3. the landlord's responsibility to its other tenants, 4. the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord, 5. whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal. 1. This section does not limit any other matter that may be considered by the Tribunal under this Act.
A question thus arises as to whether, these proceedings having commenced in the Tribunal on 14 December 2015, the Tribunal Member was obliged to have regard to the provisions in s 152 or s 154E.
As we see it the purpose of each of those sections was or is to require the Tribunal to take account of five additional circumstances (being those set out in subsection (1) of each section) when considering whether to make a termination order for a social housing tenancy agreement.
So far as s 152 is concerned, there was evidence which was relevant to the matters referred to in s 152(1)(a), (b) and (e). There was no evidence relevant to the matters referred to in s 152(1)(c) or (d).
So far as s 154E is concerned, there was evidence which was relevant to the matters referred to in s 154E(1)(a), (b) and (d). There was no evidence relevant to the matters referred to in s 154E(1)(c) or (e).
With both sections the evidence was such that, apart from evidence on the history of the tenancy, it could not have adversely affected the tenant's prospects of succeeding in the proceedings.
The tenant submitted that s 152 was the relevant section for the Tribunal to take into account. It is implicit in the landlord's submissions that it submits that s 152 is the relevant section.
Because of the conclusion we have reached in par 57, we are of the view that it is unnecessary for us to make a determination as to whether the Tribunal was required to have regard to s 152 or s 154E.
A submission was made on behalf of the tenant that the Tribunal Member gave no consideration to s 152(1) in his reasons. That is true but it does not mean that he did not give consideration to similar matters which appear in s 154E(1). For the purposes of this appeal, if the Tribunal Member had regard to the matters in s 154E on which evidence was given, then he also had regard to the similar matters in s 152 on which evidence was given. It is a mistake to conclude from the failure to refer to all the relevant subsections in s154E(1), that the Tribunal Member did not take into account all of those relevant subsections (Steed v Minister for Immigration (1981) 37 ALR 620 at 621/30 - 35). During the hearing before the Tribunal, the Member asked whether there had been any issues raised by neighbours of the premises and said that he had asked that question specifically because one of the things that can be taken into consideration is the effect that the breach has on neighbours (T26/37 - T27/8). The Appeal Panel is satisfied that the Tribunal Member had regard to the matters in ss 152 and 154E on which evidence was given.
It was submitted by the tenant that the Tribunal did not take into account a relevant consideration namely that it did not at any point in its reasons, consider the effect of the tenant's actions on his neighbours, and whether that impacted upon the Tribunal's determination whether or not to make the termination order. It was submitted that the Tribunal fell into error by failing to consider the matters listed under s 152 of the Act, which must be taken into account when relevant, when deciding whether to terminate a social housing tenancy agreement.
The landlord responded to these submissions by drawing attention to the fact that two of the neighbours had given evidence, both of whom were supportive - one saying that he was a good neighbour and the other saying that he was a friendly helpful neighbour. The landlord drew attention to the fact that during the hearing the Tribunal Member stated that "one of the things that can be taken into account is the effect that the breach has on neighbours" and the transcript records that the Member noted that there was no direct evidence from neighbours from the landlord. Attention was also drawn to par 13d of the reasons where reference was made to the evidence that the tenant was a good neighbour. It was submitted by the landlord that it would be a mistake to conclude simply from the fact that the Tribunal had not specifically referred to s 152(1)(a) of the Act that the effect of the tenancy on neighbouring residents had escaped the Tribunal's attention. The authorities support the proposition that it is not necessary for a decision-maker to refer to "every piece of evidence and every contention" made by a party: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46], 75 ALD 630 at 641 per French, Sackville and Hely JJ; Reece v Webber [2011] FCAFC 33 at [67]; 192 FCR 254, Jacobson, Flick and Reeves JJ at 277; Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157, Dowsett, Flick and Griffiths JJ at [47]. For the above reasons, we are of the view that the tenant's submissions recorded in pars 60 and 61 above, provide no basis for allowing the appeal.
The tenant was represented at the Tribunal hearing by Ms Kennedy who was working as an advocate with the South West Sydney Tenants Advice and Advocacy Service. She made a number of submissions which included submissions which are relevant to the third ground of appeal. It was submitted that the tenant was hoarding things (T15/9) but the hoarding was restricted to the outside of the property (T16/17 - 18); the Catholic Community Services Hoarding and Squalor document listed six criteria which were the DSM-5 criteria for hoarding (the reverse of the page marked page 53); the tenant fell within this criteria (T19 - 31 - T20/38); the tenant was a high complex need person (T21/6 - 7); with such a person as the tenant, the landlord had a process where generally those persons are encouraged to get other services involved and that tenancy termination should be the last resort (T21/2 - 14and pages numbered 43 - 49 of the Dealing with Hoarding and Squalor document); there had been no attempt to link the tenant with any support services (T21/22 - 23); and instead of terminating in the first instance, the landlord should have abided by its own policies in an attempt to rectify the situation (T22/44 - T23/1).
The tenant made another submission on this ground of appeal which was to the effect that the fact that the tenant had demonstrated the criteria of one who may have a mental disorder such as hoarding, meant that the landlord should have classified the tenant as a high complex needs client. It was submitted that the policy of the landlord regarding hoarding was that termination of the tenancy should be a last resort and that no other action had been taken by the landlord to remedy the breach other than to serve the tenant with a final warning letter dated 16 October 2015 and a termination notice. It was submitted that the Tribunal failed to consider in its reasons the failure of the landlord to abide by its own policy that termination was to be a last resort. It was submitted that there was an obligation on the landlord to take some action on the basis of its own policy and that the failure of the Tribunal to consider that lack of action was a failure to take into account a relevant consideration.
Those submissions in pars 63 and 64 above are based on the premise that the evidence established that the tenant had a mental illness of hoarding (T22/16 - 24 and the page on the back of the page numbered 53 in the Dealing with Hoarding and Squalor document). The Tribunal Member was not prepared to make that finding (par 13a of his reasons). In our view he was quite entitled to come to that conclusion. There was no expert evidence that the tenant was suffering from the mental illness of hoarding. The statements made in the notes prepared by Ms Booler show that she was of the view that the tenant did not present as mentally ill. The statutory declaration of the tenant might be seen as supporting the proposition that he did not suffer from a mental illness of hoarding. His statement that he had brought goods into his yard for two reasons, one of which was a strategy he uses to help him control his anxiety and his mental health issues, does not appear to support a conclusion that he suffers from the mental illness of hoarding. It appears to us that the evidence on this question was such that the Tribunal Member was quite justified, in the absence of any medical or other expert evidence, to not be satisfied that the tenant was suffering from a mental illness of hoarding.
We do not agree with the submission made by the tenant which is recorded in par 30 above. If a termination order was to be made one of the matters of which the Tribunal had to be satisfied was that in the circumstances of the case the breach was sufficient to justify the termination of the agreement.
In his reasons the Tribunal Member referred to the fact that there had been an improvement (which we take him to mean an improvement in how much household and commercial goods and rubbish was in the yards). But the exhibited photographs and in particular the photographs taken on 20 May 2016 showed the steps taken towards remedying the breach left a lot to be desired so far as cleaning up the yards was concerned. In our view the Tribunal Member took into account the steps taken by the tenant to remedy the breach but made the point that that remedial work had not brought about any significant change - which was shown by the photographs taken on 20 May 2016.

Fourth ground of appeal

The tenant submitted that the Tribunal was incorrect in applying s 154E rather than s 152 of the Act. It was also submitted that even if s 154E was the correct section to apply the Tribunal only made a formulaic reference to it in par 14 of the reasons.
The tenant based this submission concerning the formulaic reference on the statement in Director General Department of Finance & Services v Porter [2014] NSWCATAP 6 at [28], where the Appeal Panel said: "The Tribunal will not have given adequate attention to a relevant consideration where its process is merely a formulaic reference." That statement was itself based upon a statement made by Basten JA in Azariel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49]: "Judicial review is concerned only with the legality of the administrative decision, in the sense of whether or not the decision-maker has exceeded the legal boundaries of his or her powers. Those boundaries are defined, in part, by reference to the consideration of matters which are legally impermissible and the failure to consider matters to which the law requires that consideration be given. The requirement of consideration is not satisfied by formalistic reference."
The Appeal Panel is of the view that in par 14 of his reasons, the Tribunal Member was recording two relevant facts: the period during which the tenant had been on notice of his breach of the agreement and that the breach had not been remedied during that period. Those facts were part of the history of the tenancy which was a matter the Tribunal was required to have regard when considering whether to make a termination order. His statement of "section 154E of the Act" was a reference to the source of this legal requirement. We do not see that what is stated in par 14 is a formalistic or formulaic reference.

Leave to appeal

The tenant submitted that he had suffered a substantial miscarriage of justice. This was because, he said, the decision of the Tribunal regarding termination of his tenancy was not fair and equitable and he was deprived of a chance that was fairly open of achieving a better outcome than occurred, due to: 1. The Tribunal's failure to take into account the mental illness of the tenant. 2. The Tribunal's failure to consider the landlord's policy that should have been followed when dealing with a person such as the tenant, who has a mental illness and was thereby a high complex needs client. 3. The Tribunal's failure to consider the landlord's lack of action to assist the tenant other than seek termination of the Agreement, in contravention of its own policy. 4. The Tribunal's incorrect interpretation of the test required under s 87(4)(b) of the Act. 5. The Tribunal's failure to consider any of the matters listed in s 152(1) of the Act, which the Tribunal must have regard to when relevant if determining whether to terminate a social housing Agreement. 6. The Tribunal making its decision under the incorrect legislation, that is, under s 154E of the Act rather than s 152. 7. The Tribunal's failure to take into account the effect of the tenant's actions on his neighbours.
It was submitted that due to the Tribunal's decision to terminate the agreement, the tenant had been made homeless. It was submitted that had the Tribunal taken into account all the relevant evidence and applied the correct tests under the legislation, the tenant had a fairly open chance to dismiss the landlord's application to terminate the agreement. It was said that had that occurred the tenant would be living in suitable accommodation. The tenant sought that the Appeal Panel exercise its discretion to grant leave to appeal under s 80(2)(b) of the Act. It was submitted that the Tribunal's decision was something more than arguably wrong due to the matters stated in par 71 above resulting in an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which was central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand. It was submitted that, as a result, the Appeal Panel should exercise its discretion and grant leave to the appellant to appeal the decision made by the Tribunal on 23 May 2016.
None of the matters referred to in par 71 above, either alone or in combination with one or more of those matters, supports a finding: (a) that the decision of the Tribunal was not fair and equitable; (b) that the tenant suffered, or may have suffered, a substantial miscarriage of justice; or (c) that the tenant was deprived of a chance, that was fairly open, of achieving a better outcome than occurred. Each of the seven matters listed in par 71 has been dealt with by the Appeal Panel, negatively so far as the tenant's submissions are concerned. The Appeal Panel therefore rejects the submissions recorded in par 71 above.
The Appeal Panel is of the view that for reasons stated above, none of the submissions and statements in par 72 provide bases for allowing the appeal.

The Appeal Panel makes the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2016

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cases Cited (6)