Brennan v Consumer, Trader & Tenancy Tribunal & Anor

Supreme Court of NSW|2010-10-25|Before: Hoeben J

CITATION : Brennan v Consumer, Trader & Tenancy Tribunal & Anor [2010] NSWSC 1240 This decision has been amended. Please see the end of the judgment for a list of the amendments.

The decision by the Tribunal on 19 November 2009 in Tribunal proceedings No SH09/22453 is quashed. DECISION : Proceedings No SH09/22453 in the Tribunal are returned to the Tribunal to be determined according to law. The Corporation is to pay the plaintiff's costs of these Supreme Court proceedings.

CATCHWORDS : ADMINISTRATIVE LAW - judicial review - procedural fairness - Consumer, Trader and Tenancy Tribunal - proceedings heard in absence of party - party not notified of hearing date - whether lack of procedural fairness - error of law on face of the record - no evidence to support findings of Tribunal - jurisdictional error.

Consumer Trader and Tenancy Tribunal Act, 2001 LEGISLATION CITED : Residential Tenancies Act 1987 Supreme Court Act 1970

Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143, (2003) 131 FCR 28 CASES CITED : Italiano v Carbone [2005] NSWCA 177 Kirk v Industrial Relations Commission of NSW [2010] HCA 1, (2010) 84 ALJR 154 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32

Melissa Alison Brennan - Plaintiff PARTIES : Consumer, Trader & Tenancy Tribunal - First Defendant NSW Land & Housing Corporation - Second Defendant

Mr D Tynan - Plaintiff COUNSEL : Submitting Appearance - First Defendant Ms V McWilliam - Second Defendant

Mr Peter Baker - Plaintiff SOLICITORS : IV Knight, Crown Solicitor - First Defendant Mr M Callen - Second Defendant

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2010/00157974 - Melissa Alison BRENNAN v CONSUMER, TRADER and TENANCY TRIBUNAL & Anor

JUDGMENT 1 HIS HONOUR: Nature of proceedings The plaintiff moves by way of Amended Summons seeking a declaration and an order that the decision of the Consumer, Trader and Tenancy Tribunal (the Tribunal) of 19 November 2009 is void and should be quashed and an order requiring the Tribunal to redetermine the application before it according to law. 2 The grounds of review are as follows:

The first defendant erred by denying the plaintiff procedural fairness in that it failed to conduct the hearing and made the purported decision on 19 November 2009 in circumstances where the plaintiff had not received notice of the listing date of the hearing.

The first defendant erred by denying the plaintiff procedural fairness in that it failed to adjourn the hearing on 19 November 2009 in circumstances where the plaintiff was not present or represented.

The first defendant erred by taking into account the following irrelevant considerations: (a) A number of alleged "illegal activities" which had not been the subject of any criminal conviction; and (b) The hypothetical effect of the "illegal activity" said to have been a breach of the residential tenancy agreement, namely the possession of drugs by a visitor to the premises, on neighbouring residents.

The first defendant erred by failing to take into account the following relevant considerations: (a) Whether or not the breach of the residential tenancy agreement was "serious" within the meaning of ss 64(4)(b) and 64(6) of the Residential Tenancies Act 1987; (b) Whether or not the breach of the residential tenancy agreement would subject or continue to subject neighbouring residents or any other persons or property to "unreasonable risk" within the meaning of s 64(4)(b) of the Residential Tenancies Act 1987; and (c) Whether or not the breach was ongoing or had been remedied;

The first defendant erred by making a decision that was unreasonable and/or illogical and/or irrational. 3 The application to this Court was made pursuant to s69 of the Supreme Court Act 1970. That section relevantly provides: "69(1) Where formerly:

(a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or

(b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act:

(e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and

(f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.

(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

(5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision." 4 The Tribunal entered a submitting appearance and did not play any active part in the proceedings. The second defendant, NSW Land and Housing Corporation, (the Corporation) opposed the orders sought. 5 The Court was advised that an appeal had been brought in the District Court pursuant to s67 of the Consumer Trader and Tenancy Tribunal Act, 2001 (the Act). That appeal had been heard by Hughes DCJ and had been dismissed by him. It was not clear on what basis his Honour had dismissed the appeal. The Court was also told that an appeal had been brought from that decision. It was not clear on what basis such an appeal had been brought or whether this was a reference to an application to the Court of Appeal under s 69 of the Supreme Court Act in respect of the District Court hearing. No papers were before the Court in relation to either the District Court proceedings or any appeal from those proceedings. 6 The plaintiff sought the intervention of this Court in the exercise of its supervisory role over inferior tribunals on the basis that there had been a denial of procedural fairness and error of law on the face of the record. In the circumstances, there being no material before the Court relating to the District Court hearing or any appeal therefrom, I determined to hear the matter.

Factual background 7 The evidence before the Court comprised an affidavit from the plaintiff sworn 6 August 2010 which had exhibited to it the evidence which was before the Tribunal on 19 November 2009. The court also had the Tribunal's reasons delivered on that day, together with copies of correspondence passing between the Tribunal and the plaintiff. The plaintiff gave evidence and was cross-examined. In the course of the hearing, two documents were placed before the Court (exhibit A and exhibit 1). There was no objection to any of that material. 8 The plaintiff was born in 1980. She is a single mother of four children aged 9, 8, 5 and 8 months. The youngest child was born in February 2010. The plaintiff has resided in the premises at Macquarie Fields as a tenant since September 2002. She pays rent to the Corporation which owns the premises. The premises compromise a freestanding three bedroom house. There are other houses in the street owned by the Corporation. 9 Mr Colquhoun is the father of the children. He does not live at the premises and did not live at them at the time when the search warrant was executed. He lives at his mother's house but does from time to time stay overnight in the premises and visits the children regularly. At the time of swearing her affidavit, the plaintiff said that she and Mr Colquhoun did not have an ongoing relationship. 10 It was common ground that leaving aside the matters the subject of the application before the Tribunal, the plaintiff had not breached any terms of her lease with the Corporation since she commenced residing in the premises. 11 On 31 July 2008 police attended the premises and conducted a search pursuant to a search warrant. The plaintiff and Mr Colquhoun, together with three of the children, were present. Mr Colquhoun had arrived at the premises that morning. 12 As a result of the execution of the search warrant, 99.3 grams of cannabis was found in a black bag on the dining room table, together with 4 grams of a white powder, which was subsequently found to be cocaine. A bag containing 4.4 grams of a white powder was found in the kitchen. This substance was later identified as methamphetamine. The black bag was found to contain small and large resealable plastic bags. There was a set of electronic scales on the dining room table. The police found two DVD cameras, a digital video camera and some money, all of which were believed to have been stolen. A small quantity of vegetable matter (subsequently identified as marijuana) was found in a bowl on top of the fridge. 13 Subsequently Mr Colquhoun pleaded guilty to being in possession of drugs. The plaintiff was not charged with nor was she convicted any drug-related offences. She was, however, charged with goods in custody offences to which she subsequently pleaded guilty. She was placed on a two year good behaviour bond. These matters appear to have been finalised in early 2010. 14 On 9 September 2008 the Corporation served a Notice of Termination on the plaintiff. The notice asserted that the plaintiff had breached clause 7 of the residential tenancy agreement which provided: "7.1 The tenant agrees: (a) Not to use the residential premises, or cause or permit the premises to be used for any illegal purpose."

The particulars provided were: "The tenant has used or caused or permitted the premises to be used for the possession, and/or storage and/or packaging and/or supply of a prohibited drug." 15 On 14 October 2008 the plaintiff received by mail an application brought by the Corporation to terminate her lease of the premises. The application was returnable before the Tribunal on 30 October 2008. The plaintiff attended the Tribunal on 30 October 2008 and the matter was adjourned to 18 December 2008. 16 On 18 December 2008 the plaintiff attended the Tribunal. She was advised that the hearing of the Corporation's application would be adjourned to a date to be fixed by the registrar. The plaintiff was subsequently advised by mail that the matter had been fixed for hearing on 9 February 2009. On that date the plaintiff attended the Tribunal when she was advised that the matter would be adjourned to a date to be fixed by the registrar. Order 3 was as follows: "3. The matter will be listed on the next occasion for hearing but the applicant notes the possibility of a further adjournment if the criminal proceedings against the respondent have not been completed." 17 By letter dated 16 February 2009 the plaintiff was advised that the matter had been fixed for hearing before the Tribunal on 30 March 2009. 18 The plaintiff did not attend the Tribunal on that date and the matter proceeded in her absence. On 1 April 2009 she received a letter from the Tribunal advising that her lease had been terminated by the Tribunal in her absence. 19 At the time she swore her affidavit, the plaintiff said: "I did not attend on that date. I cannot recall now the reasons I did not appear but it may have been because I thought that the case against me could not be heard until my criminal charges were finalised." (Para 23) 20 In her application for a rehearing, which was dated 21 April 2009, the plaintiff included as one of her reasons for seeking a rehearing the following: "Not notified of court date. Was told it would be back at CTTT when court was finalised."

When she was cross-examined on this issue at the hearing before me, it was clear that the plaintiff had no independent recollection of why she had not attended the Tribunal on 30 March 2009. 21 On 13 May 2009 the plaintiff was advised by the Tribunal that her application for a rehearing had been granted. She was then advised by letter that the proceedings had been listed for rehearing in the Tribunal on 11 June 2009. 22 On 11 June 2009 the plaintiff attended before the Tribunal when the matter was adjourned to a date to be fixed by the registrar. The plaintiff was advised by letter that the matter had been fixed for rehearing on 3 August 2009. On that date the plaintiff attended the Tribunal and requested an adjournment so that she could be legally represented. The plaintiff was advised by letter that the matter had been listed for rehearing on 19 October 2009. Because the plaintiff was already scheduled to appear before the Campbelltown Local Court in relation to the goods in custody charges on that day, she arranged for Mr Clark, the barrister who was appearing on her behalf in those matters, to send a letter to the Tribunal advising it of that fact. In response to that letter, the Tribunal agreed to adjourn the matter. 23 By letter dated 22 October 2009 the Tribunal purported to advise the plaintiff that the matter had been fixed for hearing on 19 November 2009. The plaintiff says she did not receive that letter. By letter dated 23 October 2009 the Tribunal purported to serve on the plaintiff a summons requiring the attendance of Senior Constable Jenkins at the Tribunal on 19 November 2009 (Senior Constable Jenkins was the officer in charge of the investigation which followed the execution of the search warrant). The plaintiff said that she did not receive that letter. 24 On about 20 or 21 November 2009 the plaintiff received a letter from the Tribunal advising that the matter had been determined in her absence, her tenancy of the premises had been terminated and possession had been granted to the Corporation. Upon receipt of that letter the plaintiff contacted Mr Clark who advised that she contact the Tribunal. The plaintiff telephoned the Tribunal and spoke to a person whom she was unable to identify. That person advised her to lodge an application for a rehearing. 25 Exhibit A, which was received from the Tribunal at the conclusion of the hearing, comprises an application for rehearing, which is dated 24 November 2009 and is signed by the plaintiff. Accompanying it is a facsimile transmission form from Mr Clark's chambers which indicates that the application for rehearing was faxed to the Tribunal on 3 December 2009. It was received by the Tribunal on either 3 or 4 December 2009. The complaint consistently made in that document is that the plaintiff did not receive any letter advising her of the hearing date on 19 November 2009. 26 In answer to a typed question on the form: "What decision do you think the CTTT should have made, given the evidence/documents presented at the original hearing?"

The plaintiff responded: "A letter stating the date would be nice or a phone call." 27 On about 15 December 2009 the plaintiff was advised that her application for a rehearing had not been granted.

Consideration 28 A factual issue arose as to whether the plaintiff received the letter from the Tribunal dated 22 October 2009 advising her that her matter had been fixed for hearing on Thursday 19 November 2009 at 1.15pm at the Liverpool hearing rooms. 29 I am less concerned about the letter from the Tribunal of 23 October 2009 which had attached to it the summons directed to Senior Constable Jenkins. Even if that document had been received by the plaintiff, it would have required careful reading as a result of which the plaintiff would have had to conclude that although she had not received formal notification that her matter was fixed for hearing before the Tribunal, it was in fact so fixed. Having seen and heard the plaintiff give her evidence she lacks the sophistication to have understood the implications of the summons addressed to Senior Constable Jenkins, even if she had received that document. 30 Accordingly, the real issue is did she receive the notification from the Tribunal of 22 October 2009 advising her of the hearing date and therefore did she understand that the matter was fixed for hearing on 19 November 2009. It is necessary and appropriate for the Court to determine this issue (Italiano v Carbone [2005] NSWCA 177 at [82]). 31 The plaintiff gave evidence in unequivocal terms that she did not receive the letter of 22 October 2009 from the Tribunal which advised that the matter was to be heard on 19 November 2009. She was vigorously cross-examined to the effect that that evidence, both in her affidavit and orally, was not true. I found the plaintiff's responses to be appropriate and realistic. She said that she well understood that her home was at risk in these proceedings and that if she did not attend the Tribunal she would lose it. It is difficult to see what motivation the plaintiff would have had for not attending. The plaintiff would have known from what occurred after her non-attendance on 30 March 2009 that an eviction order would be made in her absence. 32 As previously indicated, I found the plaintiff to be a woman of little sophistication. She clearly had a poor memory for dates. Her understanding of the court system, both civil and criminal, was elementary. Nevertheless, I am satisfied that she did understand the importance of attending court when a matter involving her was listed. This is particularly so when it affected the house where she and her children were living. 33 I found the plaintiff to be an honest witness, who was doing her best to tell the truth, although it was clear on occasions that she did not understand some of the questions that were put to her and that her memory for detail and dates was not particularly good. 34 Apart from the favourable impression which the plaintiff created, there are other matters which lead me to conclude that she was telling the truth when she said that she did not receive the letter from the Tribunal of 22 October 2009. A matter which impressed me was the plaintiff's willingness to make admissions against interest. She could have said that there were occasions when she did not receive mail or mail went astray. Her evidence was not to that effect. On the contrary, she said that until this occasion she believed she had received all the letters sent to her by the Tribunal and by other persons. 35 Apart from the non-appearance on 30 March 2009, it is clear from the records of the Tribunal and from the plaintiff's affidavit that she attended the Tribunal on five occasions between 30 October 2008 and 3 August 2009. The only reason she did not attend on 19 October 2009 was that she was required to attend the Local Court at Campbelltown on that same date. Nevertheless, she arranged for a letter to be sent to the Tribunal by the barrister representing her in those criminal proceedings explaining her inability to appear. Against that background, her failure to appear on 19 November 2009 appears quite inconsistent with her previous conduct. 36 In making that observation I am aware that the plaintiff did not attend when the matter was fixed for hearing on 30 March 2009. The plaintiff now cannot remember why it was that she did not attend. Looking at the surrounding documentation, it may well have been a misunderstanding on her part in that she did not think that the proceedings in the Tribunal would be heard until her criminal matters were finalised. That is consistent with the records of the Tribunal and the notation on her affidavit of 21 April 2009 supporting her application for rehearing that "I was told it would be back at CTTT when court was finalised". 37 As indicated above, having had the experience of the Tribunal already dealing with her matter in her absence, it can be seen that the plaintiff was very careful after March 2009 to make sure that she either attended the Tribunal on all hearing dates or explained to the Tribunal why she could not so attend. 38 The other matter which strengthens my conclusion that the plaintiff is telling the truth on this issue, is the content of exhibit A, her application for rehearing dated 24 November 2009. That was a document apparently prepared within two or three days of her being notified that the matter had proceeded before the Tribunal in her absence. In it she sets out repeatedly and somewhat stridently, her complaint that she was not notified about the hearing date. This is precisely the reaction one would expect from a person who is telling the truth on that issue. 39 Counsel for the Corporation pointed to the fact that the plaintiff had not complied with the orders of the Tribunal of 3 August 2009 that she provide full details no later than 10 August 2009 of her legal representative and that by 17 August 2009 she provide a copy of all documents upon which she intended to rely. It was implicit in counsel for the Corporation's submissions that this was indicative of a cavalier attitude by the plaintiff towards orders of the Tribunal. 40 I do not interpret the plaintiff's failure to comply with those orders in that way. It is clear from Mr Clark's letter of 15 October 2009 and from the facsimile of 3 December 2009 sent from his chambers (exhibit A) that he was from time to time providing advice to the plaintiff in relation to her matter before the Tribunal even though he had only specifically been retained to act on her behalf in the criminal charges in the Local Court. I accept the plaintiff when she says that she was not sure from time to time as to the extent to which Mr Clark was prepared to act on her behalf in relation to the Tribunal matter. Clearly her lack of money was an issue. 41 When she was cross-examined as to why she had not complied with those orders she said that she had told the registrar Mr Clark's identity and details and that she thought that this was a sufficient compliance with the order. Insofar as documents are concerned, I am also prepared to infer that the plaintiff was relying on or hoping that Mr Clark would provide her with some advice or guidance on that issue. 42 I find that the plaintiff did not receive the letter from the Tribunal dated 22 October 2009 and was unaware that the Tribunal matter affecting her home was fixed for hearing on 19 November 2009. 43 From the Tribunal's point of view, it complied as best it could with the procedures for notification prescribed by the Act. It is clear that a letter was sent on 22 October 2009 addressed to the plaintiff at her residential address advising her of the hearing date (s 25 and 78(1)(a)(ii) of the Act). Moreover, clause 50 of the Consumer Trader and Tenancy Tribunal Regulations 2009 (the Regulations) deems a person in the position of the plaintiff to have received a notice at the end of the fourth working day after the date on which the document was posted. 44 The fact that the Tribunal followed the procedures prescribed by the Act does not end the matter. The reality was that the plaintiff was not notified of the hearing date and therefore did not have an opportunity of adducing evidence and making submissions. 45 The situation is somewhat analogous to that confronted by the Federal Court in Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143, (2003) 131 FCR 28. There the Administrative Appeals Tribunal proceeded to hear a matter in the absence of a party because it was unaware that the party had not received written notification of the hearing date. The majority (Grey ACJ and North J) having examined the authorities concluded: "8 Given the state of authorities, this Court should accept the principle that a denial of procedural fairness is an error of law and that, therefore, an appeal from a decision of the Tribunal on the ground of such a denial raises a question of law. For this purpose, it is undesirable to attempt to distinguish between a denial of procedural fairness resulting from a cause of action chosen by the Tribunal in conducting the case before it and a denial that is unintended and results from an error of fact made by the Tribunal." 46 It follows that the plaintiff has been denied procedural fairness in relation to this matter despite the fact that this occurred through inadvertence, not as a result of any error or fault on the part of the Tribunal. 47 Basten JA (although in dissent) articulated the test for procedural unfairness in Italiano v Carbone as follows: "85 A claim based on procedural unfairness, in these circumstances, must demonstrate that the confusion in the mind of the Claimant was such that he cannot be said to have foregone a reasonable opportunity to make an application for an adjournment, or that the circumstances were otherwise such that the Tribunal itself had an obligation to consider offering an adjournment."

The plaintiff clearly satisfies that test. 48 As Italiano v Carbone demonstrates, the supervisory power of this Court can be exercised to intervene where procedural unfairness occurs in proceedings before an inferior Tribunal. The question remains, however, whether the Court should intervene. In other words would the attendance of the plaintiff have made any difference to the outcome? 49 Insofar as the finding by the Tribunal that there had been a breach of s 23 of the Residential Tenancies Act 1987, ie that the tenant had permitted the premises to be used for an illegal purpose, I doubt whether the testimony of the plaintiff would have made any real difference. The evidence from the electronically recorded police interview (ERISP), together with the nature and location of the drugs found, would have made it almost impossible for the plaintiff to have avoided a finding of breach of the section against her. 50 The proof of breach, however, was but one of the matters which the Corporation had to establish. Section 64(2)(b) of the Residential Tenancies Act provides: "(2) The Tribunal, on application by a landlord under this section, is to make an order terminating the agreement if it is satisfied: … (b) In the case of a notice given by a landlord on the ground referred to in section 57 relating to a breach of the agreement: (i) That the landlord has established the ground, and (ii) That the breach, in the circumstances of the case is such as to justify termination of the agreement …" 51 Section 64(4) of that Act further provides: "(4) Without limiting the obligations of the Tribunal under subsection (2) (b) or (c), in considering the circumstances of a case concerning social housing premises under that provision, the Tribunal, in addition to having regard to the circumstances of the tenant and other circumstances of the case, is to have regard to such of the following matters as may be relevant:

(a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the residential tenancy agreement was a serious one (and, in particular, whether it was one to which subsection (6) applies), 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, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including, if the tenant is a tenant under a public housing tenancy agreement, any prior tenancy of the tenant arising under any such agreement." 52 The evidence of the plaintiff may well have been decisive on such questions as "the circumstances of the tenant" given that on the hearing date she was over six months pregnant. Similarly, her evidence would also have been important on the other matters specifically referred to in s64(4) of the Residential Tenancies Act. 53 In those circumstances I am persuaded that, procedural unfairness having occurred, this Court ought intervene to set aside the findings of the Tribunal so as to allow to the plaintiff the opportunity to attend the hearing and give evidence on those issues. 54 For completeness, I should deal with the second basis for this Court intervening, i.e. error on the face of the record, that error being of a jurisdictional kind. The error relied upon was a failure to take into account relevant considerations and taking into account irrelevant considerations. As the argument progressed, however, the basis of the plaintiff's complaint was that the Tribunal had made findings pursuant to s64 of the Residential Tenancies Act for which there was no evidence before it. 55 The High Court in Kirk v Industrial Relations Commission of NSW [2010] HCA 1, (2010) 84 ALJR 154 identified how errors of law could arise on the face of the record and how those errors of law were jurisdictional errors on the facts of that case. The question of lack of evidence and its consequences in relation to decisions of the Tribunal was considered by French CJ in Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 where his Honour said: "15 The Tribunal may, subject to the CTTT Act determine its own procedure. It is not bound by the rules of evidence and may inquire into, and inform itself on, any matter in such manner as it thinks fit, subject to the rules of procedural fairness. That freedom is enjoyed by many administrative tribunals. The term "rules of evidence" does not lay out with precision its metes and bounds. Nor does it exclude the discretionary application of such rules. But the authority of the Tribunal to "inform itself on any matter in such manner as it thinks fit" indicates that it is able to act upon information whether or not it is embodied in evidence which would be admissible in a court of law. 16 There are qualifications upon the Tribunal's procedural freedom. One, which is explicit, is the requirement to observe procedural fairness. The Tribunal's modus operandi must also serve its function, which, in this case, was to hear and determine a building claim. That function implies a rational process of decision-making according to law. A decision based on no information at all, or based on findings of fact which are not open on information before the Tribunal, is not compatible with a rational process. 17 The exercise of the Tribunal's freedom from the rules of evidence should be subject to the cautionary observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott that those rules "represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth". It is a method not to be set aside in favour of methods of inquiry which necessarily advantage one party and disadvantage another. On the other hand, that caution is not a mandate for allowing the rules of evidence, excluded by statute, to "creep back through a domestic procedural rule"." 56 The Tribunal's findings which are challenged on this basis relate to the application of s 64 of the Residential Tenancies Act. In that regard the Tribunal said: "42 In relation to the specific social housing considerations in s 64(4), Mr Jungwirth stated that there was no direct evidence of the effects on neighbouring residents and other persons. However, it was clear that the premises had been used, perhaps for some time, for the purpose of storing and packaging of prohibited drugs, and this has the potential for very serious social consequences. The landlord as a large social housing provider has responsibilities for all of its other tenants, and the location of the tenant's premises in a large housing estate, makes this particularly significant. The tenant's premises are in a large housing estate consisting entirely of Department of Housing properties. There are a large number of other tenants of the landlord who could be significantly affected by the illegal activities occurring in her premises. …

44 The storage and use of any prohibited drug on residential premises has at least the potential to cause anti-social behaviour in the local area, and is therefore a serious matter. The Tribunal has found that the tenant was aware of the use of her premises for this purpose and did nothing to prevent it. There is little history of illegal use or other breaches before or since July 2008 but the items found at the time of the search suggest that the premises had been used in this way for some time. 45 There is very little in the personal circumstances of the tenant or her family which the Tribunal can weigh up against the objective seriousness of the breach. She is a young woman, apparently with limited income, supporting three young children. Other than the usual upheaval associated with a move, there was nothing to suggest that the tenant would be unable to relocate to suitable accommodation in the same locality as she currently resides if the order was made to terminate her tenancy." 57 I accept that it was open to the Tribunal to characterise the breach of lease by the plaintiff as serious, this being a normative assessment on which minds might differ. That having been said, one would have thought a relevant consideration was the "permissive" nature of the offence and that there was no evidence that the plaintiff was herself in any way engaged in the possession or storage of drugs on the premises. 58 There was, however, no evidence before the Tribunal nor any material from which an inference could be drawn that the conduct of the plaintiff "had the potential for very serious social consequences" and that "there are a large number of other tenants of the landlord who could be significantly affected by the illegal activities occurring in her premises". 59 In particular, there was no evidence of any drugs being in the premises other than on this specific occasion. There was no evidence of how the comparatively small quantity of drugs found in the premises, in the possession of someone other than the plaintiff, could affect persons outside the premises who were tenants of the Corporation. There was no evidence to substantiate this finding by the Tribunal. It was at most speculation. Similarly, there was no evidence, direct or indirect, from which an inference could be drawn that the premises had been used for the storage of drugs for some time. 60 In relation to the direct effect on the plaintiff and her children of being evicted from the premises, there was no evidence before the Tribunal that the plaintiff would be able "to relocate to suitable accommodation at the same locality as she currently resides if the order was made to terminate her tenancy". It could not be said that this conclusion was open to the Tribunal or that it was arrived at by "a rational process of decision making according to law" as French CJ referred to in Kostas. 61 I have concluded that the plaintiff has made out her complaint that there were errors of law on the face of the record in relation to the findings made by the Tribunal on which it relied in reaching its conclusions as to the application of s 64(2) and 64(4). These errors of law arose because there was no evidence to substantiate the conclusions to which I have referred so that those conclusions could not have been arrived at by a rational process of decision making. 62 These errors appeared in the Tribunal's reasons and were thus errors of law on the face of the record. They were also jurisdictional errors which would attract an order in the nature of certiorari in that the Tribunal only had power to make the orders which it did provided it was satisfied as to the matters which it had to consider under s 64(2) and 64(4).

Conclusion 63 In the circumstances of this case the plaintiff has established a denial of procedural fairness in that she was not notified of the Tribunal hearing date on 19 November 2009. She has established error of a jurisdictional kind on the face of the record in that the findings made by the Tribunal, on which it based its application of s 64, were not open to it. 64 In those circumstances I make the following orders:

(1) The decision by the Tribunal on 19 November 2009 in Tribunal proceedings No SH09/22453 is quashed.

(2) Proceedings No SH09/22453 in the Tribunal are returned to the Tribunal to be determined according to law.

(3) The Corporation is to pay the plaintiff's costs of these Supreme Court proceedings.

06/12/2010 - Omitted one of the legal representatives on the coversheet. - Paragraph(s) 1

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.

At a glance

Court

Decision date

Before

Source

Judgment (39 paragraphs)

Parties

Cases Cited (6)

Cited By (6)