Bell v NSW Land and Housing Corporation

Background

1. These proceedings relate to a social housing tenancy agreement between the appellant tenant and the respondent landlord in respect of a residential unit in Waterloo, New South Wales. For convenience we shall refer to the appellant, Ms Bell, as "the tenant", and to the respondent, NSW Land and Housing Corporation, as "the landlord".
2. On 11 May 2021 the landlord lodged an application in the Consumer and Commercial Division of the Tribunal seeking an order for termination of the tenancy under section 91 of the RT Act. The application stated: PARTICULARS: On the 17th March 2021: NSW Police executed a search warrant at your unit during which Police recovered 105 grams of methym-amphetamine, 10 grams of Cannabis. 26 Buprenorphine strips and 18.73 grams of Burpenorphine tablets. The respondent has been charged with the possession of cannabis, her father has been charged in relation to the possession/supply of 105.53 grams of methyl-amphetamine being greater than a traffickable quantity and possession of $4100 thought to be proceeds of crime and her mother has also been charged with the possession of cannabis.
3. On 16 July 2021 the matter came before the Tribunal for a final hearing which was conducted by telephone. The tenant did not attend the hearing. In its reasons for decision the Tribunal said: 5. The tenant did not cooperate with the hearing process. She did not appear at formal hearing. She did not provide any documents for consideration to counter the extensive evidence of illegal use by her and person(s) for whom she was vicariously liable under section 51.
4. The Tribunal heard the matter ex parte and made an order for termination of the tenancy, for possession of the premises to be given to the landlord on the date of termination, and for the order for possession to be suspended until 6 August 2021. We will refer to that decision as the "Termination Decision".
5. On 4 August 2021 the tenant, who by that time was being represented by Eastern Area Tenant's Service, lodged an application to set aside the Termination Decision under clause 9 of the NCAT Regulation.
6. On 25 August 2021 the Tribunal dismissed the set aside application. We shall refer to that decision as the "Set Aside Decision". It is that decision which is the subject of this appeal.
7. We will now provide a brief overview of each decision and the applicable statutory framework.

Statutory Framework relevant to the Termination Decision

1. The application for termination of the tenancy was made under section 91 of the RT Act.
2. Section 91 provides: Use of premises for illegal purposes (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted - (a) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or (b) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination. (2) In considering whether to make a termination order on the ground specified in subsection (1)(b), the Tribunal may consider (but is not limited to considering) the following - (a) the nature of the unlawful use, (b) any previous unlawful uses, (c) the previous history of the tenancy. (3) The termination order may specify that the order for possession takes effect immediately. (4) A landlord may make an application under this section without giving the tenant a termination notice. (5) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.
3. Although neither the application, nor the Termination Decision, specified whether the application was made under s 91(1)(a), s 91(1)(b), or both, we have taken it that the Termination Decision was made on the basis of s 91(1)(a) only. This is because Order 1 made by the Tribunal in the Termination Decision states: The Residential Tenancy Agreement is terminated in accordance with … s 91(a) of the Residential Tenancies Act 2010 as the tenant/occupant has intentionally or recklessly caused or permitted the use of the premises for manufacture, sale, cultivation or supply of prohibited drugs.
4. As there is no s 91(a) in the RT Act, we have inferred that the reference to "s 91(a)" in the order is intended to be a reference to s 91(1)(a). There is no suggestion in the Tribunal orders or in the decision that the termination order was made under s 91(1)(b).
5. In private tenancies, the Tribunal has a discretion as to whether to terminate a tenancy agreement under s 91(1)(a): Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28. However, section 154D modifies that position in respect of social housing tenancy agreements: Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 at [30] (which was upheld by the NSW Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231).
6. Relevantly, section 154D (1)(b) provides that the Tribunal must make a termination order on application of the landlord where the Tribunal is satisfied of the matters in section 91(1)(a).
7. The mandatory making of a termination order under section 154D is subject to the exceptions in s 154D (3). These relevantly include the exception in s 154D (3)(b) which provides that the requirement for mandatory termination does not apply if the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered by a child, a person in whose favour an apprehended violence order could be made, or a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977, who is occupying or jointly occupying the social housing premises.
8. Section 154E is also relevant to decisions involving termination of social housing tenancies. It sets out a number of other considerations the Tribunal must have regard to when considering whether to terminate a social housing tenancy agreement.
9. In Orr v NSW Land and Housing Corporation the Appeal Panel helpfully summarised (at [36]) the three stage process involved in considering an application for termination under section 91(1)(a): 1. Determining whether the elements of s 91(1)(a) are made out. 2. If the elements of s 91(1)(a) are made out, determining whether s 154D(3) applies so as to give the Tribunal a discretion as to whether to terminate the tenancy agreement. 3. If s 154D(3) applies, exercising the discretion in relation to termination having regard to the factors listed in s 154E(1) and to any other factors relevant to the exercise of the discretion.

The Termination Decision

1. Having considered the Tribunal's written reasons and the conclusions it reached, we take it that the Tribunal relevantly made the following findings of fact in the Termination Decision: 1. The tenancy was relatively short as it had been on foot only since July 2020 and the tenant had not rented with the landlord prior to this tenancy. 2. A large number of persons attended the premises by passing a concierge and using a stairwell to go down to the tenant's apartment. 3. It is more probable than not that these persons were engaged in drug dealing. 4. During a search warrant which was executed by police in November 2020 the tenant's mother admitted to police that she and the tenant's father stayed in a bedroom at the premises. 5. The large number of stolen goods recovered by police during that search warrant were goods that were more probably than not bartered for drugs. 6. A second search warrant was executed in early 2021. 7. The tenant's parents were present during the execution of that search warrant. During the execution of the search warrant the tenant's father made admissions about drugs found in a container. A cash sum of $4100 was found in a wallet. 8. The tenant's father was charged with deemed supply in respect of 105.6 grams of methamphetamine which were found "divided in 34 deals". This is 35 times the trafficable quantity and half the commercial quantity of methamphetamine as stipulated in the schedule to the Drug Misuse and Trafficking Act 1985 (NSW). Methamphetamine is a prohibited drug for the purposes of that Act. 9. It is more probable than not that the tenant's father was selling the drugs either to friends or to other users. The drug dealing was occurring at the premises. 10. The tenant and her mother were charged with possession of cannabis. 11. The tenant was aware of, and permitted: 1. the father's use of drugs at the premises; 2. the presence of drugs at the premises in a quantity sufficient to constitute "deemed supply"; 3. the attendance of frequent visitors at the premises; and 4. the presence and barter of stolen goods at the premises. 1. The illegal use was ongoing for most of the tenancy. 2. The tenant has not entered into any performance order to give the landlord assurance it is able to meet its obligations to others.
2. For reasons which are not apparent to us, the Tribunal made no reference to section 154D which, in circumstances such as these where there was no evidence before the Tribunal as to the tenant's circumstances, mandated the Tribunal to make a termination order.
3. Instead, the Tribunal proceeded to consider the termination application as though it had a discretion as to whether to terminate the tenancy. This is evident because the Tribunal referred to the factors in s 91(2) and s 154E, set out its findings and deliberations in relation to those factors, and then proceeded to make orders for termination of the tenancy.
4. We have inferred from the terminology used in the Tribunal's order, and particularly from the reference to "the tenant/occupant" in the order, that the order was made on two bases under section 91(1)(a): 1. that the tenant herself had intentionally or recklessly caused or permitted the use of the premises for the manufacture, sale, cultivation or supply of prohibited drugs; and 2. that an occupant of the premises (ie the tenant's father) had intentionally or recklessly caused or permitted the use of the premises for the same illegal purpose.

Statutory Framework Relevant to the Set Aside Decision

1. Clause 9 of the NCAT Regulation provides in part: (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. … (3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made.
2. As the Appeal Panel explained in Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 [at 64-65], the process for determining a set aside decision is as follows: 1. Before the Tribunal's power to set aside a decision that determines proceedings arises, the Tribunal must be satisfied that: 1. The decision was made in the absence of a party; and 2. That absence resulted in the party's absence not being adequately put to the Tribunal. 1. If those two requirements are satisfied, the Tribunal then has a discretion as to whether to set aside or vary the decision.

The Set Aside Decision

1. In her application to set aside the Termination Decision the tenant contended that the orders for termination and possession should be set aside under clause 9 for the following reasons: 1. The tenant was absent when the Tribunal made the decision because: she had no phone at this time and therefore could not participate in the proceedings. The tenant's sole source of income is from Centrelink and as a result she could not afford to replace her phone at the time. The tenant's lack of phone also meant she could not engage with other aspects of the proceedings or engage with services that were supporting her. 1. Had the tenant not been absent she would have "explained her personal circumstances and provided evidence and arguments to show that the termination of her tenancy would cause undue hardship (as per section 154D(3)) …[including] that":  The tenant lives with a disability in the form of her mental health experiences, namely depression and anxiety  The tenant has a history of homelessness … termination of her social housing tenancy would place her at significant risk of re-entering homelessness. This would place the tenant at a high risk of retraumatisation…  Homelessness would cause particular hardship to the tenant due to her mental health and disability (depression and anxiety) 1. If the tenant had been present she could also have disputed the landlord's position that her father was occupying the premises. The application relevantly said "This is relevant as it was his conduct that grounded DCJ's termination application. The tenant could have explained that her father was merely visiting overnight". 2. The tenant could also have explained that she was not aware that her father had the prohibited substances with him. 3. If the tenant had been at the hearing she could also have addressed the factors set out in section 154E of the RT Act.
2. The tenant also sought an extension of the time period in which to lodge the set aside application. The seven day period elapsed on 23 July 2021 and the set aside application was lodged on 4 August 2021, ie twelve days late.
3. The application was supported by a statutory declaration of the tenant which confirmed the veracity of the matters stated in the application and attached various documents.
4. On 6 August 2021 the Tribunal made procedural directions to allow the landlord an opportunity to make submissions in reply to the set aside application. No submissions or documents were submitted by the landlord in accordance with those directions.
5. On 25 August 2021 the Tribunal considered the set aside application on the papers. It made an order extending the time for making the application but otherwise dismissing the application. The Tribunal concluded that "although the orders were made in the absence of the tenant, the Tribunal is not satisfied that her absence resulted in her case not being adequately put to the Tribunal".

Scope and nature of internal appeals

1. The Set Aside Decision is an "internally appealable decision" as defined in s 32 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
2. Internal appeals from internally appealable decisions other than interlocutory decisions (including ancillary decisions) may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: NCAT Act s 80(2).
3. An appeal against a set aside decision made under clause 9 of the NCAT Regulation is an ancillary decision and therefore, in so far as the grounds of appeal raise questions of law, leave to appeal is not required: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 [at 40].
4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
5. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

Submissions and evidence

1. In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal lodged on 26 August 2021 with attached documents; 2. The Reply to Appeal lodged by the landlord on 9 September 2021 with attached documents; 3. The tenant's written submissions; 4. The landlord's written submissions; 5. The application for termination lodged by the landlord on 11 May 2021; 6. The Termination Decision; 7. The application for set aside lodged by the tenant on 4 August 2021; 8. The procedural directions made in the set aside proceedings; 9. The Set Aside Decision; 10. The procedural directions made at call over; and 11. The oral submissions made by the parties' representatives during the appeal hearing.

Grounds of Appeal

1. The grounds of appeal are: 1. The Tribunal erred in finding that the tenant is 'not within the class of persons identified in s 154D(3)(b)' of the RT Act; 2. The Tribunal made an error of law in that the finding that the tenant was not within a class of persons identified in s 154D(3)(b) was unreasonable; 3. The Tribunal failed to take into account a relevant consideration, being the evidence provided by the tenant that she suffers from a disability with the meaning of the Anti-Discrimination Act 1977 (NSW); 4. The Tribunal failed to take into account a relevant consideration, being the tenant's statement in the set aside application that she was not aware of the presence of drugs; 5. The decision of the Tribunal was against the weight of evidence; and 6. The decision of the Tribunal was not fair and equitable.

Grounds 1 - 3 Did the Tribunal err in finding that the tenant is not within the class of persons identified in s 154D(3)(b) of the RT Act?

1. Grounds 1 - 3 relate to the Tribunal's conclusion that the tenant is not within a class of persons identified in section 154D(3)(b).
2. The Tribunal said the following in this connection: First, the tenant made submissions as to undue hardship within section 154D(3) of the Act. For this to be available, the landlord's application and the tenant's circumstances have to fall within one or other of the paragraphs in section 154D(3). The difficulty for the tenant is that she is not within the class of persons identified in section 154D(3)(b), and neither section 154D(3)(a) nor section 154D(3)(c) applies to a landlord's application falling, as this did, under section 154D(1)(b).
3. Before considering the parties' submissions we will address a point of confusion. Grounds 1 to 3, as well as the submissions made by the tenant in relation to the set aside application, address whether or not the tenant is within the class of persons identified in s 154D(3)(b) of the RT Act. Specifically, the tenant submits she is a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977 and would be likely to suffer undue hardship as a consequence of termination of the tenancy. She says that the mandatory requirement for termination is therefore displaced by section 154D(3).
4. The difficulty is that the mandatory requirement for termination under s 154D(1) was not considered at all by the Tribunal when making the Termination Decision. The Tribunal, having found liability under s 91(1)(a), proceeded to weigh up various factors relevant to the exercise of its discretion, without having regard to the fact that termination was mandatory under s 154D(1) (unless displaced under one of the exceptions in section 154D(3)).
5. When questioned about this anomaly during the hearing of the Appeal, the tenant's representative clarified that evidence as to whether the tenant was within a class of persons caught by s 154D(3) was relevant not only to determining whether the requirement for mandatory termination under s 154D(1) was displaced, but was also relevant to the exercise of the Tribunal's discretion in determining whether to terminate the tenancy.
6. The appellant's submissions in relation to grounds 1-3 can be summarised as follows: 1. One of the classes of persons referred to in s 154D(3)(b) is a person for whom a termination order is likely to cause undue hardship and who is suffering from a disability within the meaning of the Anti-Discrimination Act (NSW) 1977. 2. The set aside application stated that had the tenant been present at the hearing she could have drawn attention to her circumstances relevant to undue hardship, including that "she lives with a disability in the form of her mental health experiences, namely depression and anxiety". 3. Attached to the set aside application was a mental health plan prepared by the tenant's general practitioner "showing that she has been diagnosed with 'depression', 'anxiety' and 'panic attacks'". 4. Depression and anxiety are "disabilities" within the meaning of the Anti-Discrimination Act (NSW) 1977. 5. The Tribunal erred when it concluded that the tenant was not within a class of persons identified in section 154(3)(b) because: 1. It incorrectly concluded that depression and anxiety are not disabilities within the meaning of the Anti-Discrimination Act; 2. The Tribunal's conclusion that the tenant was not within a class of persons identified in section 154(3)(b) was so unreasonable that no reasonable decision maker could make it; and 3. The Tribunal failed to take account of a relevant consideration because it failed to take account of the evidence provided with the set aside application.
7. The respondent's submissions in response can be summarised as follows: 1. The mental health care plan which the tenant relied upon was created one month after the termination application was lodged and cannot be taken as evidence of a diagnosis of disability at the time of the illegal activity; and 2. The evidence relied upon by the appellant, being notes made on a mental health care plan, was too weak to be treated as evidence of a diagnosis.

Consideration: Grounds 1 to 3

1. One of the bases for concluding that the tenant's absence did not result in her case not being adequately put to the Tribunal was the Tribunal's conclusion that s 154D(3) does not apply because the tenant "was not within the class of persons identified in s 154D(3)". In one respect, whether s 154D(3) applies in this case is moot given that the Tribunal in the Termination Decision did not follow the requirement for mandatory termination under section 154D(1).
2. However, had the Tribunal followed this requirement as it was required to do, evidence that the tenant was within a class of persons identified in s 154D(3) would certainly have been relevant. Moreover, if the gateway to a discretionary consideration of the termination application had been opened by virtue of s 154D(3), any evidence of hardship would have remained relevant to the exercise of the Tribunal's discretion as to whether or not to terminate the tenancy: NSW Land and Housing Corporation v Orr [at 81].
3. The difficulty here is that in the Set Aside Decision the Tribunal has concluded that the tenant did not fall within the class of persons identified in s 154D(3) without providing an explanation, and without referring to the evidence which the tenant said she would have relied upon had she been present at the hearing. This included, relevantly, the tenant's explanation (supported by her statutory declaration) of her personal circumstances including that she "lives with a disability in the form of her mental health experiences, namely depression and anxiety", as well as a one page document entitled "GP Mental Health Treatment Plan" which is dated 27 April 2021 and bears the letterhead "Waterloo Medical Centre" (the Waterloo Document). The Waterloo Document states as follows under the heading "Problem/Diagnosis": Number 1: Depression, exacerbation Number 2: Homelessness, afraid of getting evicted Number 3: Stress, Anxiety, Panic Attacks
4. The Waterloo Document also contains a table which lists nine different medications alongside columns headed "Strength", "Dosage" and "Reason". Further data is included in the table alongside these headings concerning medications.
5. Whilst this evidence, if before the Tribunal in the termination proceedings might, as the respondent says, have arguably been weak and of limited evidentiary weight, nonetheless, it is clearly evidence which would have supported the tenant's assertion that she suffers from depression and anxiety.
6. Section 4 of the Anti-Discrimination Act 1977 (NSW) relevantly defines "disability" to include a 'disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour'.
7. Diagnoses of depression and anxiety have been found to constitute "disabilities" sufficient to place a tenant within the class of persons identified in s 154D(3) of the RT Act: Hall v NSW Land & Housing Corporation [2018] NSWCATAP 257 and Rowland v NSW Land and Housing Corporation [2020] NSWCATAP 139.
8. Moreover, the Tribunal has not addressed the tenant's submission that had she been present at the hearing, she would have presented evidence to establish that termination of her tenancy would cause her undue hardship. In this regard the tenant's application (which is supported by her statutory declaration) contains submissions regarding her disability, her experience of homelessness, the risk that termination of her tenancy would place her at "significant risk" of re-entering homelessness, and the potential effect this would have on her.
9. The Tribunal has concluded that the tenant was not covered by s 154D(3) without referring to this evidence or submissions. The failure by the Tribunal to refer to this evidence, or explain why its conclusion was reached despite this evidence, suggests to us that the Tribunal has overlooked the evidence. Our view is supported by the fact that no evidence or submissions were provided by the respondent to contradict the tenant's submissions in this regard.
10. The tenant's evidence and submissions as to disability and undue hardship were relevant to considering whether the requirement for mandatory termination was displaced by s 154D(3). If so, they were also relevant factors for the Tribunal to consider when exercising its discretion as to whether or not to terminate the tenancy. Consequently, it was necessary for the Tribunal to have regard to, and engage with, these submissions in order to assess whether the tenant's absence resulted in her case not being adequately put to the Tribunal. By overlooking these matters, the Tribunal has, in our opinion made an error of law because it has failed to take account of a relevant consideration: Prendergast v Western Murray Irrigations Ltd [2014] NSWCATAP 69 [at 13(5)]; Oppidan Homes Pty Ltd v Baldwin and Granofsky [2016] NSWCATAP 109 at [32]-[33]; Rowland v NSW Land and Housing Corporation [2020] NSWCATAP 139 at [41].
11. We disagree with the landlord's submission that the medical evidence relied upon by the tenant could not have been relevant because it post-dated the illegal activity. When determining whether s 154D(3) applies, it is evidence as to disability and hardship at the time of the hearing of the termination proceedings, rather than at the time of the illegal conduct, which is relevant: Hall v NSW Land & Housing Corporation [2018] NSWCATAP 257 at [21]. Moreover, if the gateway to the exercise of discretion is opened as a result of s 154D(3), evidence as to disability and hardship at the time of termination will also be relevant to the exercise of the Tribunal's discretion.
12. It appears that the tenant had an opportunity to file and serve the Waterloo Document but did not do so prior to the hearing on 16 July 2021. Nevertheless, had the tenant been present at that hearing, she could have given oral evidence and referred to the Waterloo Document.
13. For these reasons we are satisfied that the Tribunal erred by failing to consider a relevant consideration, namely evidence in relation to disability and hardship which the tenant says she would have relied upon had she been present at the hearing. This is an error of law.

Ground 4 - Did the Tribunal err in failing to take into account of the tenant's statement that she was not aware of the presence of drugs?

1. The essence of the appellant's submission is that the Tribunal failed to take into account a relevant consideration, being whether the tenant could have put the case that she had not intentionally or recklessly permitted the illegal use as she was not aware her father had prohibited substances with him.
2. The respondent's submission in this regard can be summarised as follows: 1. The evidence submitted by the tenant regarding her father's occupancy of other premises was historical evidence which was not relevant to whether the father was an occupant of the tenanted premises at the time of the illegal use. 2. Even if the tenant had given evidence that she was not aware of the presence of drugs at the premises, actual knowledge is not relevant because a tenant's vicarious responsibility under section 54 of the RT Act is not governed by a tenant's actual knowledge.

Consideration: Ground 4

1. The relevant statements of the Tribunal in the Set Aside Decision are as follows: 7. Secondly, the tenant contended that she could have asserted that her father was not an occupant. Whilst this may be so, the order was founded on two separate liabilities, a liability in the tenant as set out above and a liability in the tenant founded on, among other things, her father's occupancy. Evidence challenging the second is not evidence challenging the first.
2. We understand the Tribunal to be saying that: 1. the termination order under section 91(1)(a) was based on the Tribunal's dual findings that both the tenant herself, and an occupant (her father), had intentionally or recklessly caused or permitted the use of the premises for the prohibited purpose; and 2. whilst evidence the father was not an occupant may well have challenged the second finding, it would not have challenged the first finding, being that the tenant herself had intentionally or recklessly caused or permitted the prohibited behaviour.
3. The difficulty with this conclusion is that the Tribunal has not referred to the second part of the tenant's submission, which is that - had she been present at the hearing - she would have given evidence that she had no knowledge of her father's possession of the drugs.
4. As the Appeal Panel said in Cure v Bridge Housing Ltd [2014] NSWCATAP 80 when interpreting the meaning of "intentionally or recklessly" in the context of s 90 of the RT Act (which allows the Tribunal to terminate a tenancy where the tenant, or any person occupying the residential premises, has intentionally or recklessly caused or permitted serious damage to the premises or injury to certain persons): 46 The language of "intentionally or recklessly" brings to mind the element of mens rea in the field of criminal law. What constitutes grounds for termination under s 90(1) may well constitute a criminal offence. For example, in NSW it is an offence to intentionally or recklessly damage property belonging to another: s 195(1) of the Crimes Act 1900 (NSW). 47 In the field of criminal law, a person intends the commission of a crime where that person's aim or purpose is to bring about its constituent elements: Halsbury's Laws of Australia at [130-80]. 48 Also in that field, a person is said to be reckless where that person acts with knowledge that a consequence is a probable (or in some cases possible) result of his or her actions: Halsbury's Laws of Australia at [130-85]. 49 These aspects of criminal law also support our construction of the section.
5. Whether a person has "intentionally or recklessly" committed the offending conduct can be inferred from the whole of the evidence: Cure v Bridge Housing Limited at [50]. In this regard, the tenant's evidence of knowledge of the presence of drugs, together with evidence of the father's occupancy, would, had she been present, have been part of that evidence, and therefore would have been relevant to determining whether the tenant herself had intentionally or recklessly caused or permitted the prohibited use of the premises.
6. The respondent argues that evidence of the tenant's actual knowledge would not have been relevant because under s 54 of the RT Act the tenant is vicariously responsible for her father's actions and liability is not governed by actual knowledge.
7. Section 54 is in the following terms: 54 Liability of tenant or co-tenant for actions of others (1) A tenant is vicariously responsible to the landlord for any act or omission by any other person who is lawfully on the residential premises (other than a person who has a right of entry without the tenant's consent) that would have been a breach of the residential tenancy agreement if it had been an act or omission by the tenant. (1A) Subsection (1) does not apply to a tenant who is the victim of a domestic violence offence, or an exempted co-tenant, if the relevant act or omission constitutes or resulted in damage to the residential premises and occurred during the commission of the domestic violence offence. (1B) In this section, an exempted co-tenant means a tenant under the same residential tenancy agreement as the tenant referred to subsection (1A) who is not a relevant domestic violence offender (within the meaning of Division 3A of Part 5) nominated in a document referred to in section 105C (2) and annexed to a domestic violence termination notice (within the meaning of section 105B) for the residential tenancy agreement. (2) This section is a term of every residential tenancy agreement.
8. The respondent relies on the decision of the Appeal Panel in Carr v NSW Land and Housing Corporation [2019] NSWCATAP 144 [at 44], saying that determination of a tenant's vicarious responsibility under s 54 is not governed by a tenant's actual knowledge of the presence of drugs at the premises and therefore evidence of her knowledge would have been irrelevant in any case. However, the decision in Carr is distinguishable from the present case. Carr involved an application for termination made under s 87 of the RT Act. Section 87 empowers the Tribunal to make a termination order if, inter alia, it is satisfied that the tenant has breached the residential tenancy agreement.
9. In Carr the landlord alleged that the tenant had breached a provision of the residential tenancy agreement which provided that the tenant agrees "not to use the residential premises, or cause or permit the premises to be used, for any illegal purpose." The landlord had issued a termination notice to the tenant and sought termination under section 87 of the RT Act. It did not seek termination under s 91.
10. As the Appeal Panel pointed out in that decision (at [32]), reliance on a breach of a provision of the residential tenancy agreement allowed it in turn to rely on the provisions of s 54.
11. In this instance the landlord did not seek termination on the ground of breach but rather it sought termination under s 91. The Appeal Panel said in Carr at [35]: We appreciate that the provisions of section 91(1)(a) as they apply to the factual circumstances of these proceedings create a substantial area of overlap with a consideration of whether the appellant was in breach of the residential tenancy agreement. Nevertheless, we understand section 91(1)(a) to create a separate and independent basis for the termination of a residential tenancy agreement which may operate concurrently with a right to seek termination based upon a breach of a provision of the agreement itself. That section 91(1)(a) has a different role to play in the scheme of the RT Act is supported by the fact that in contrast to termination for breach under s 87, which requires at least 14 days notice of the termination date and precludes an application to the Tribunal until after the termination date, a termination notice under s 91 may specify that the order for possession takes effect immediately, and an application for a termination order may be made to the Tribunal without giving the tenant a termination notice.
12. We would add to this that s 91, unlike s 87, invokes a mandatory requirement for termination of social housing tenancies unless an exception applies. Further, to the extent that the Tribunal does have a discretion under s 91 as to whether to terminate the tenancy, the non-exhaustive list of matters set out in s 91(2) which may be taken into account by the Tribunal when exercising its discretion, is different to the non-exhaustive list set out in s 87(5) for terminations based on breach. As such, the matters considered by the Tribunal when exercising the discretion under s 87 may, in a particular case, be different to the matters considered under s 91.
13. Whilst the tenant in this case may well be vicariously liable to the landlord for actions of her father in so much as they amount to a breach of the tenancy agreement, the application to the Tribunal in this case, and the Termination Decision, were founded on s 91. Section 91 creates a separate and independent basis for termination not predicated on a breach of the residential tenancy agreement.
14. For these reasons the fact that a tenant may be vicariously liable under section 54 for a breach of the residential tenancy agreement is not relevant to determination of liability under s 91.
15. Moreover, even if the tenant had been found to have intentionally or recklessly caused or permitted the illegal conduct, evidence of her knowledge would have been relevant to the exercise of the discretion (if the requirement for mandatory termination was displaced by section 154D(3)(b)).
16. We are of the view that the Tribunal overlooked the tenant's submission and evidence regarding her knowledge of the presence of drugs. This is apparent because the Tribunal has not referred to the tenant's statement regarding this issue. It has only referred to the tenant's evidence and submission regarding the father's occupancy. Also, there was no evidence or submission from the landlord on this (or any other) issue relevant to the set aside application.
17. As this evidence was relevant to deciding whether the tenant had intentionally or recklessly caused or permitted the prohibited use of the premises, it was necessary for the Tribunal to have regard to, and engage with, the tenant's submissions in relation to this issue in order to assess whether the tenant's absence resulted in her case not being adequately put to the Tribunal. By overlooking this material we have concluded that the Tribunal erred by failing to take account of a relevant consideration. This is an error of law.
18. As a result of our conclusion that the Tribunal made errors of law, it is appropriate to allow the appeal and to set aside the Tribunal's decision of 25 August 2021 under s 81(1)(a) and (c) of the NCAT Act.
19. It is unnecessary for the Appeal Panel to consider the other grounds of appeal raised by the tenant.

Disposal of the Appeal

1. The next question to determine is whether the matter should be remitted to the Tribunal for consideration of the set aside application, or whether we should substitute the Tribunal's decision with our own decision.
2. Section 81(1)(d) allows the Appeal Panel to quash or set aside the Tribunal's decision and to substitute another decision for it.
3. Under section 81(2) the Appeal Panel may exercise all the functions that are conferred or imposed by the Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
4. We are mindful that under s 36(1) of the NCAT Act the Tribunal's guiding principle is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". Remitting the set aside application to the Tribunal would involve considerable further delays for the parties. In addition, if the set aside application is successful, an additional hearing will be needed to determine the substantive termination application. Furthermore, the documents which were before the Tribunal when considering the set aside application (which was considered on the papers) have been provided to us.
5. At the hearing of the appeal we discussed with the parties the possibility of the Appeal Panel substituting its own decision for the decision of the Tribunal if the appeal was allowed. Both parties confirmed that they were content for the Appeal Panel to proceed on this basis.
6. Taking these matters into account, we are of the view that it is in accordance with the Tribunal's guiding principle to substitute our own decision on the basis of the documents which were before the Tribunal in the set aside application.
7. We will now consider the set aside application.

Was the decision made in the absence of the tenant?

1. It is not in dispute that the Termination Decision was made in the absence of the tenant and therefore the first requirement of cl 9(1)(b) is satisfied.

Did the tenant's absence result in her case not being adequately put to the Tribunal?

1. The fact that the tenant was absent from the hearing at which the Termination Decision was made meant that the tenant did not put before the Tribunal any oral evidence or submissions in defence of the termination application. She had not previously provided any written submissions or other documentation to the Tribunal. Consequently, the Tribunal had no material or submissions from the tenant when it made the Termination Decision.
2. The tenant has provided information concerning the case she would have put to the Tribunal if she had not been absent from the hearing. These are discussed in some detail above. In short, she would have presented evidence which the tenant says would have established: 1. that she has a disability within the meaning of the Anti-Discrimination Act 1977 (NSW); 2. that termination of the tenancy would cause her undue hardship; 3. that her father was not an occupant at the time of the alleged illegal conduct; and 4. that she had no knowledge that her father had drugs at the premises.
3. Whilst the Appeal Panel is not in a position to assess the merits of the tenant's contentions in relation to these matters, nonetheless the tenant's materials indicate that there is a case the tenant wishes to make concerning: 1. liability under s 91(1)(a); 2. whether the requirement for mandatory termination is displaced; and 3. if the requirement for mandatory termination is displaced, matters relevant to the exercise of the Tribunal's discretion.
4. The tenant's case in relation to these matters was not put to the Tribunal when it made the Termination Decision and we do not consider the tenant's arguments to be so deficient as to conclude that the tenant has no case at all.
5. Accordingly, we are satisfied that the tenant's case has not been adequately put to the Tribunal within the meaning of cl 9(1)(b).
6. We are also satisfied for the purposes of cl 9(1)(b) that the tenant's absence resulted in her case not being adequately put to the Tribunal because, had she been present at the hearing, she could have made oral submissions, provided oral evidence, and sought to rely upon the Waterloo Document and the other documents attached to the set aside application. As she was absent the tenant was unable to do any of these things.
7. We are therefore satisfied that the tenant's absence resulted in her case not being adequately put to the Tribunal.

Exercise of the Discretion to Set Aside

1. The Appeal Panel in Hammond v Ozzy's Cheapest Cars Pty Ltd said at [80]: 80. In summary, when exercising the discretion conferred by cl 9(1)(b), the Tribunal should direct its attention to whether there would be a real likelihood of injustice if the decision was allowed to stand. Relevant considerations will generally include: (1) Why the party was absent and whether the absent party had a reasonable opportunity to be heard or otherwise have its submissions considered in the proceedings; and (2) Whether the absent party has an arguable defence or an arguable case that a different decision could have been reached. 81. Setting aside a decision will naturally involve a degree of prejudice to the party which was initially successful. As part of the exercise of the discretion, the Tribunal should also consider how that prejudice can be cured or reduced, for example by the framing of any set aside order or by the imposition of suitable conditions on that order. Conditional orders can be made in the Tribunal under s 58 of the Act.

Why the tenant was absent

1. The tenant says that she had no telephone at the time of the hearing and, as her sole source of income is Centrelink, she could not afford to replace her telephone. She says her lack of a telephone precluded her from attending the hearing which was conducted by telephone. She also says that as a result of barriers to in-person engagement resulting from the COVID-19 pandemic, her lack of a telephone also precluded her from participating in other aspects of the proceedings and from engaging with the services that were supporting her.
2. We accept that the tenant had no telephone at the time of the hearing and that this would have caused a significant barrier to attending the hearing. We also acknowledge that, due to the restrictions on face to face contact during the COVID-19 pandemic, the tenant's lack of access to a telephone would have appreciably hampered her ability to engage with support services prior to the hearing, and to comply with the Tribunal's procedural directions.
3. For these reasons we accept the tenant's explanation for her absence from the hearing.

Reasonable opportunity to be heard

1. The law requires that a party be given a reasonable opportunity to be heard or otherwise have its submissions considered. The reasonableness standard requires all relevant circumstances to be considered: Hammond v Ozzy's Cheapest Cars Pty Ltd at [88].
2. There is no suggestion that the tenant was unaware of the termination proceedings or that she had not received notice of the hearing on 16 July 2021. Therefore on one view it could be said that she had been given a reasonable opportunity to be heard but did not take up that opportunity.
3. However, we do not think that is the case in these circumstances. We accept the tenant's uncontested evidence that she did not have a telephone and was unable to dial into the proceedings. We also accept that her lack of a telephone made it difficult to access support services, particularly due to the limitations on face to face contact arising out of the COVID-19 pandemic. We think it is more likely than not that her lack of a telephone and difficulty accessing support services made it difficult for the tenant to comply with the Tribunal's procedural directions. For these reasons we do not think that, in the circumstances of this case, the tenant has had a reasonable opportunity to be heard or to have her submissions considered.

Arguable defence or arguable case for a different decision

1. We have already considered above in some detail the case that the tenant might have made had she had a reasonable opportunity to be heard. This includes presenting evidence regarding the tenant's knowledge of the presence of drugs, and evidence regarding the father's occupancy. Such evidence would have been relevant to establishing liability under s 91(1)(a). In addition, the tenant could have presented evidence relevant to deciding whether the requirement for mandatory termination was displaced because termination of the tenancy would be likely to result in undue hardship to a person with a disability within the meaning of the Anti-Discrimination Act 1977. Such evidence would also have been relevant to the exercise of the Tribunal's decision as to whether or not to terminate the tenancy.
2. It is not for the Appeal Panel in deciding the set aside application to determine the strength or reliability of such evidence. Rather, the question to be decided is whether the tenant had an arguable defence or an arguable case that a different decision could have been reached. We are satisfied that she did.

Other matters relevant to the exercise of the discretion

1. We accept that if the set aside order is made, there will be prejudice to the landlord. Its time and money spent on preparing for and attending the hearing on 16 July 2021 will have been effectively thrown away. In addition, it will lose the benefit of the enforceable decision made by the Tribunal in its favour.
2. However, we also accept the tenant's evidence that her father is currently incarcerated and that, since it his conduct that underlies the termination application, the risk of conduct at the premises in violation of s 91(1)(a) is currently low.
3. By contrast, the potential disadvantage to the tenant if the termination order was allowed to stand without giving the tenant an opportunity to be heard or have her submissions considered would be severe. She would lose her home and potentially face homelessness.
4. In addition, the set aside application attaches evidence relating to support services which the tenant is currently accessing to address her mental health and drug addiction issues. Loss of the tenant's home would be likely to hinder her ability to access these services.
5. For these reasons, in light of all the circumstances, the Appeal Panel is satisfied that there is a real likelihood of injustice if the original decision is allowed to stand and the tenant is not given an opportunity to be heard in relation to the termination application or otherwise have her submissions considered.

Timing

1. Finally we turn to the question of timing.
2. The set aside application was lodged on 4 August 2021 which was twelve days after the seven day time limit imposed by cl 9(3) of the NCAT Regulation. Therefore it is also necessary to consider whether to extend time for lodgement of the set aside application under s 41 of the NCAT Act.
3. The Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSW CATAP 22 at [22] said the following in relation to an extension of time in which to bring an appeal: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]-[59].
4. In Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 the Appeal Panel said at [24]: Factor 2 has no relevance here, but otherwise there is no reason to suggest that similar considerations do not apply with respect to the Tribunal's consideration of extending time and therefore dispensing with or relaxing the requirement that an applicant must bring a timely application.
5. Therefore, the factors listed in Jackson also apply in the present case when deciding whether to extend time for lodgement of a set aside application.
6. The matters discussed above in relation to the merits of the set aside application overlap considerably with the matters which are relevant to deciding whether to extend time. In short: 1. We accept that the reason for the delay in lodging the set aside application is the same as the reason for the tenant's failure to attend the hearing of the termination application, or to participate in the termination proceedings. Namely, the tenant did not have a telephone and, in the context of the restrictions on face to face contact imposed as a result of COVID-19 pandemic, was unable to engage with the support services necessary to assist her with the set aside application. 2. A delay of twelve days is long given the requirement under cl 9 of the NCAT Regulation to lodge an application under that regulation within seven days after the day the decision was made. However, the reason for the delay relates to the tenant's personal circumstances earlier described. 3. The risk of prejudice to the landlord if time is not extended is low. 4. The tenant has, for the reasons expressed above, a fairly arguable case.
7. Notwithstanding the length of the delay we are of the view that it is appropriate in this case to extend time for lodgement of the set aside application.

Conclusion

1. For these reasons our conclusions are that: 1. The tenant's appeal should be allowed. 2. The decision of the Tribunal on 25 August 2021 in which the Tribunal dismissed the application to set aside the Termination Decision should be set aside. 3. The Appeal Panel should substitute its own decision for the decision of the Tribunal in the set aside application. 4. Time for lodgement of the set aside application should be extended. 5. The Termination Decision should be set aside. 6. The termination application is to be reconsidered by the Tribunal (differently constituted), with leave for the parties to adduce such further evidence as the Tribunal thinks fit.

Orders

1. The orders of the Appeal Panel are as follows: 1. The appeal is allowed. 2. The order made by the Tribunal on 25 August 2021 in SH21/33546 is set aside. 3. Time for lodgement of the application for set aside in SH 21/33546 is extended to 4 August 2021. 4. The orders of the Tribunal made on 16 July 2021 in SH21/13030 are set aside. 5. SH21/13030 is to be reconsidered by the Tribunal, differently constituted, with leave for the parties to adduce such further evidence as the Tribunal thinks fit.

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: 22 December 2021