Bull v NSW Land and Housing Corporation

Do the challenges to the decision raise questions of law and, if so, was an error made?

The appellant submitted that because the rules of evidence do not apply, in determining the application the Tribunal was not applying a standard of proof of the balance of probabilities such as would apply in civil proceedings in court. The reason for this was not explained however appeared to derive from the comment of Button J in Bronze Wing. Consequently, the appellant submitted that the principles in Briginshaw needed to be considered as part of the process in determining whether or not the decision made by the Tribunal was reasonable. If the Tribunal's decision was not reasonable in the sense referred to in Li then a challenge on this basis raised a question of law.
As to the decision in Azzopardi, the appellant relies on the comments of Basten JA in D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [231] and says that a patent error that is sufficiently clear may constitute a failure to exercise a jurisdiction and therefore constitute an error of law.
The starting point to the consideration of this ground of appeal is whether or not in residential tenancy proceedings either party has cast upon them a legal burden to prove the case.
Implicit in the appellant's submission is that the provisions of s 38 of the NCAT Act, which provided the rules of evidence do not apply, thereby remove a legal burden upon a claimant to prove its claim.
In our opinion this submission should be rejected.
Section 38 provides: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal 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 natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
This section has repeatedly been interpreted as not displacing the Tribunal's obligation to determine cases according to law: see eg Black v NSW Land and Housing Corporation [2014] NSWCATAP 113 at [29]. Ordinarily, this means that in adversarial proceedings where one party asks for the grant of a remedy and thereby seeks to impose an obligation on another party, there is an adjudication of facts and an application of the law to the facts as found, and the party in whose favour orders are sought carries a legal burden of proof, although the evidentiary burden may shift from time to time depending on the evidence received: see eg Purkess v Crittenden [1965] HCA 34 at par 4; (1965) CLR 164.
The obligation or onus arises at law and has long recognised by the courts. The reason why it arises has been explained in a number of cases. In Imperial Smelting Corporation Limited v. Joseph Constantine Steamship Line Limited [1940] 1 K.B. 812 Atkinson J (as he then was) said at 827: As a general rule a party seeking to recover compensation for damage must make out that the party against whom he complains was in the wrong. To quote Lord Wensleydale in Morgan v. Sim (1), "he must show that the loss is to be attributed to the negligence of the opposite party. If at the end he leaves the case in even scales and does not satisfy the Court that it was occasioned by the negligence or default of the other party, he cannot succeed." Bowen L.J. laid down some helpful rules relating to the onus of proof in Abrath v. North Eastern Ry. Co. (2): "Whenever litigation exists, somebody must go on with it; the plaintiff is the first to begin; if he does nothing, he fails; if he makes a prima facie case, and nothing is done to answer it, the defendant fails. The test, therefore, as to the burden of proof or onus of proof, whichever term is used, is simply this: to ask oneself which party will be successful if no evidence is given, or if no more evidence is given than has been given at a particular point of the case, for it is obvious that as the controversy involved in the litigation travels on, the parties from moment to moment may reach points at which the onus of proof shifts, and at which the tribunal will have to say that if the case stops there, it must be decided in a particular manner. The test being such as I have stated, it is not a burden that goes on for ever resting on the shoulders of the person upon whom it is first cast. As soon as he brings evidence which, until it is answered, rebuts the evidence against which he is contending, then the balance descends on the other side, and the burden rolls over until again there is evidence which once more turns the scale. That being so, the question of onus of proof is only a rule for deciding on whom the obligation of going further, if he wishes to, rests. It is not a rule to enable the jury to decide on the value of conflicting evidence. So soon as a conflict of evidence arises, it ceases to be a question of onus of proof."
His Honour's decision was appealed to the Court of Appeal and subsequently to the House of Lords. In his speech in Joseph Constantine Steamship Line Limited v Imperial Smelting Corporation Limited [1942] A.C. 154, Lord Maugham said at 174: For the reasons above stated I have come to the conclusion, with all respect to the Court of Appeal, that their view is incorrect and ought not to prevail. Agreeing with the learned trial judge, I think the burden of proof in any particular case depends on the circumstances under which the claim arises. In general the rule which applies is "Ei qui affirmat non ei qui negat incumbit probatio." It is an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons.
That is "the proof lies upon him who affirms, not upon him who denies".
It follows that where a person or other legal entity is given a right to apply to a court or tribunal for the grant of a remedy against another party and the court or tribunal is empowered to make an award upon being satisfied of any prescribed factual or legal criteria, then absent provisions in the legislation to the contrary, the party who is the moving party seeking a remedy against another party carries an onus at common law to prove the facts being asserted in the application.
The question is whether the fact that the rules of evidence do not apply otherwise removes the common-law burden of proof.
This issue was considered by Foster J in Kilpatrick v Gresser and Rustin (unreported, 13 May 1987), BC8701375. In that case His Honour was considering an earlier manifestation of the Tribunal, namely the Residential Tenancies Tribunal, and the Act under which it was constituted, the Residential Tenancies Tribunal Act, 1986 (RTT Act). In doing so, the court was dealing with a dispute concerning an application pursuant to s 52 of the RTT Act for a declaration that a rent increase was excessive. Relevantly subs 52(1), (2) and (4) provided: (1) A tenant may apply to the Tribunal for an order declaring that a rent increase is excessive not later than 30 days - (a) after being given notice of the rent increase; or (b) after being given notice of a rent increase payable under a proposed residential tenancy agreement for residential premises already occupied by the tenant. (2) A tenant may, at any time, apply to the Tribunal for an order declaring that the rent payable under a residential tenancy agreement or a proposed residential tenancy agreement for residential premises already occupied by the tenant is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the premises, whether or not they are provided under the agreement or a separate contract, agreement or arrangement or were provided under a previous contract, agreement or arrangement. (4) Where the Tribunal determines under this section that a rent increase or rent is excessive, the Tribunal may make an order declaring that the rent increase or rent is excessive and may - (a) in the case of a rent increase - order that from a day specified by the Tribunal, not being earlier than the day from which the increased rent was payable, the rent shall not exceed an amount specified by the Tribunal; or (b) in the case of rent - order that from a day specified by the Tribunal, not being earlier than the date of the tenant's application to the Tribunal, the rent shall not exceed an amount specified by the Tribunal, and may make such other orders as it thinks fit.
The procedure the Residential Tenancy Tribunal was required to adopt and the requirements in relation to the provision of evidence were dealt with in s 25(4) of the RTT Act, which was in the following terms: (4) In any proceedings before it, the Tribunal- (a) is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit; and (b) shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
The Court held at BC9701375 page 9: Although it is clear that it is the intention of the legislature that the proceedings be conducted in an informal manner before the Tribunal, it is equally clear that the proceedings must be conducted according to law. S(ection) 25 has been referred to in argument. It provides in (4) that the Tribunal is not bound by the rules of evidence and may inform itself of another matter in such manner as it thinks fit and that it will usually act according to equity …. without regard to technicalities or legal forms. The effect of that particular section was indeed considered by the learned chairperson on the first page of the addendum to the Tribunal's judgement. I do not think it necessary to set out in these reasons what was there said. It has not been suggested in argument that the approach that the Tribunal considered it should adopt, having regard to the wording of s25, was incorrectly stated. I am satisfied that it is firmly based in principle and that the decision quoted, namely ex parte Herman Re Mathieson & Ors (1961) 78 WN 6 governs the situation as is suggested in the addendum. Making due allowance for informalities or procedure I consider that the Tribunal must reach its decision upon the basis that the moving party bears the general onus of proof. If at the end of the day, the Tribunal does not have before it the material from which, having applied its mind in accordance with the dictates of s52 (3), he can find in favour of the assertion that the rent is excessive, then clearly it must dismiss the application.
In our view there is no relevant difference in the provisions of s 38 of the NCAT Act and those being considered in Kilpatrick. Similarly, the RT Act allows the Tribunal to make orders on application of a landlord or tenant. In the present case the Tribunal may make orders under s 92(1)(a) "on application of the landlord if it is satisfied the tenant … has seriously or persistently threatened or abused … any employee … of the landlord".
It follows that in residential tenancy proceedings in the Tribunal, usually there is a legal burden upon the party seeking relief to prove its case which is not removed merely because the rules of evidence do not apply. Further, where the dispute involves civil proceedings, as is the present case, this is the ordinary standard of proof, namely the balance of probabilities: see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [2]; 67 ALJR 170.
While the decision in Bronze Wing suggests to the contrary, that decision is easily explained. In those proceedings, Button J was considering an appeal in respect of administrative review proceedings following a decision to cancel a licence and a security clearance issued pursuant to the Explosives Act, 2003. His Honour was dealing with an appeal on a question of law brought pursuant to s 83 of the NCAT Act for which leave of the Court was required. The decision under appeal to the Court was a decision of the Appeal Panel of the Tribunal, the original decision of the Tribunal at first instance being an application brought by way of "a review pursuant to the Administrative Decisions Review Act, 1997": Bronze Wing at [62].
Such a review is undertaken under s 63 of the Administrative Decisions Review Act, 1997 (ADR Act): That section provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
While there may be a weighing of the evidence and submissions presented to the Tribunal, the Tribunal is making the administrative decision which it considers is the correct and preferable decision. In doing so, the Tribunal "may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision". It is not, in such cases, adjudicating on whether an applicant should be granted a remedy, nor is it imposing a penalty. It is simply re-determining an administrative decision.
As Button J said at [61]-[63]: 61 But in the proceedings at first instance, and before the Appeal Panel, neither Bronze Wing nor Mr Boyle was accused of any offence. Far from being a criminal prosecution, the proceedings were a review of a decision made by WorkCover, pursuant to s 21 of the Explosives Act, to cancel a security clearance and a licence as a result of being in breach of the licence and security clearance conditions. Separately, WorkCover submitted that they were not fit and proper persons to hold the relevant licences or security clearances. As I have said, the first contention was not made out before the single member, and is not part of the appeal. 62 Furthermore, the decision of the single member was a review pursuant to the Administrative Decisions Review Act 1997 (NSW), and not an appeal. As a consequence, neither party bore an onus of proof at first instance; certainly, WorkCover did not bear an onus of proving the elements of any criminal allegation beyond reasonable doubt against either appellant. 63 As well as that, the proceedings did not culminate in a conviction or acquittal of any kind.
In short, in administrative review proceedings, neither party is asserting a right over the other or seeking to impose a penalty on one party to which any evidentiary burden attaches at common law, nor does the legislation applicable to the review process otherwise impose such an obligation. As the Appeal Panel said in Nakad v Commissioner of Police NSW Police Force [2014] NSWCATAP 10 at [34]: 34 …, there is no onus of proof, as that term is generally understood, in merits review cases: Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 424-425; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [40]. The Tribunal must decide what the correct and preferable decision is having regard to any relevant factual material…
That does not mean that rules of procedural fairness to not apply to administrative review proceedings: see eg Bronze Wing at [64]-[65]. However, that is an irrelevant consideration in resolving the present appeal.
For completeness, it should be noted that, notwithstanding the decision in Bronze Wing, the application of the Briginshaw principle to administrative review proceedings or the application of a standard referred to as "comfortable satisfaction" remains somewhat unclear where the Tribunal is required to determine the "correct and preferable decision": see eg CFJ v Office of the Children's Guardian [2016] NSWSC 1625 at [80]. However, again it is not necessary to resolve that issue in this appeal.
Having determined that there is an onus of proof, the next issue to consider is whether the particular errors asserted are properly to be categorised as errors of law. The appellant points to various decisions involving matters of procedural fairness and whether administrative decisions were reasonably made. Those cases also raise issues concerning the ability to review decisions involving a determination of jurisdiction and whether or not there exists a jurisdictional fact necessary to found that jurisdiction. On the other hand, the respondent points to the decision in Azzopardi and says that the principles therein apply, that is no question of law arises in the present appeal.
An explanation of the interaction of these various bases for challenge to decisions and whether or not a question of law arises was concisely set out in the decisions of Beech-Jones J in Insurance Australia Limited v O'Shannessy [2015] NSWSC 1047. At [57]-[59] 57 A review of the authorities reveals that supervisory courts apply one of three standards of review to facts found by inferior courts and tribunals depending on the jurisdiction exercised by both. 58 The first is applicable to facts the objective determination of which was a matter upon which the inferior court or tribunal's jurisdiction depended (Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 at [36] to [38] per Spigelman CJ). If the facts are of that character then this Court can determine them (Timbarra id). With inferior courts there is a strong presumption against construing legislation as making "the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist" because of the inconvenience that the former would occasion (Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 at p 391 per Dixon J). A similar approach has been adopted with administrative decisions (QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [27] to [29] per Basten JA). 59 The second standard is applicable where the facts being challenged form part of the determination of a state of satisfaction or an opinion upon which the exercise of power or jurisdiction of the inferior court or tribunal depended. The state of satisfaction or opinion is a "jurisdictional fact" (Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [57] per French CJ). If the power is so conditioned then facts found in the course of forming that opinion or satisfaction can be reviewed on a wider basis than merely enquiring as to whether there was some evidence to support them (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 ("Eshetu") at [138]ff per Gummow J). I discuss the scope of review further below, but it suffices to state that the opinion or state of satisfaction can be reviewed if "the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration, Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (per Gummow and Hayne JJ; "SGLB"); Eshetu at [145] per Gummow J; Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [34] and [37] per McHugh and Gummow JJ; "S20"). If this is demonstrated then relief under s 69 for jurisdictional error can be granted. 60 The third standard is applicable if the challenged facts do not constitute part of the formation of such an opinion or satisfaction. Depending on the basis for judicial review such findings can only be challenged if there was no evidence to support them (Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at p 355-356 per Mason CJ ("Bond"); Eshetu at [138] per Gummow J; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [59] per Gaudron J; "Enfield"). In Bond Mason CJ stated (at p 356): "Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place." 61 Similarly in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Glass JA explained that a finding of fact for which there was some evidence to support it revealed no error of law even though it was made by "ignor[ing] the probative force of the evidence which is all one way" or could be described as "perverse" or one which "no reasonable person could have made" (at pp 155 to 156). In L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] Basten JA noted that one consequence of this approach was that "where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a 'no evidence' ground of review".
In the present case, there is no dispute that the Tribunal had jurisdiction to determine the application for termination under s 92 of the RTA. There is no challenge to a finding concerning a jurisdictional fact raised in the appeal. While the Tribunal was required to determine the application for termination according to law and having regard to the onus of proof and standard of proof to which we have referred, the error asserted is not a pre-condition to the exercise of jurisdiction. In circumstances where the challenge is not one based on "no evidence" or miscarriage of discretion, but rather on whether or not the Tribunal was correct in evaluating the evidence and making necessary findings of fact, the position set out in Azzopardi as confirmed by Mason CJ in Bond applies to the present appeal. That is the error asserted, even if established, does not raise a question of law. Therefore leave to appeal is required.

Was the decision against the weight of evidence, should leave to appeal be granted and if so, should the appeal be allowed?

The Appeal Panel may only grant leave to appeal a decision of the Consumer and Commercial Division if it is satisfied that the appellant may have suffered a substantial miscarriage of justice: see Sch 4 cl 12 of NCAT Act. In doing so, cl 12 requires the appellant to demonstrate the decision of the Tribunal was against the weight of evidence. What is necessary for the grant of leave was considered in Collins.
In relation to what constitutes a substantial miscarriage of justice the Appeal Panel in Collins said at [68] - [71]: 68 Clause 12 does not require that the Appeal Panel must be satisfied that the appellant has actually suffered a substantial miscarriage of justice. All that is required is that the appellant "may" have suffered such a miscarriage. 69 The use of the expression "substantial miscarriage of justice" recalls the wording of the proviso to s (6)(1) of the Criminal Appeal Act 1912 (NSW) which is in the following terms: provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. 70 What constitutes a "substantial miscarriage of justice" in the context of s 6(1) was explained by the High Court in Mraz v The Queen (1955) 93 CLR 493 at 514: It [the proviso] ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried. (underlining added) 71 From this passage, it can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred.
As to the expression "against the weight of evidence", the Appeal Panel in Collins said at [77]-[79]: 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55].
As was made clear by the High Court in Neat (supra) at [2], in assessing the evidence, "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove". That is, the principles in Briginshaw apply. As Dixon J said in Briginshaw at 362: … reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the facts or facts proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters "reasonable satisfaction" should not be produced by any exact proofs, indefinite testimony or indirect inferences. Everyone must feel that, when for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on material of a kind that would not satisfy any sound and prudent judgement if the question was whether some act had been done involving grave moral delinquency.
The starting point in determining whether or not leave to appeal should be granted is a review of the decision of the Tribunal at first instance. The Tribunal, in accepting the evidence all Ms Garriock, made the following findings: 1. After Ms Garriock left the residential premises, the appellant left his unit and yelled "Where are you, you f...... bitch? I'm gonna get ya". Ms Garriock hid and the appellant continued to move around the ground floor saying "Where are you, you f….. bitch? I'm gonna kill you. I'll find you." Decision [8]. 2. Ms Garriock felt extremely anxious, was scared for her safety, rang 000 and sought Police assistance. Thereafter, the appellant returned to the residential premises. Ms Garriock then left the building but had to pass by a sliding door to the residential premises. As she did, the appellant emerged and said "Get back here you f…… bitch" after which she ran to her car and then drove to the Police Station. Decision [9]. 3. When making the 000 call Ms Garriock said of the appellant that he was "totally full of ice". This opinion was based on her observations of the appellant and her previous work experience with drug users. She rated her fear "on a scale of 1 to 10" to which "she replied "10 or 11"". Decision [10]. 4. Ms Garriock was traumatised by the event, has not returned to work since 5 May 2016, has had medical treatment and counselling and holds the belief she cannot discharge her duties in Junee in the future. Decision [11]. 5. The Tribunal was faced with two quite different accounts of the events on 5 May which could not be reconciled. Decision [20]. 6. The Tribunal found Ms Garriock's evidence cogent and with the exception of the questions of whether or not she had knocked on the door of the unit and how the respondent and his friends were seated, this evidence was not challenged. Her account of what happened when the appellant left his apartment is supported by her actions in dialling 000 and that it is not likely she would have hid and taken the action she did if the appellant had simply left the apartment and said "Lady, where are you? I want to talk to you. I want to speak to you". Decision [21]. 7. It was improbable Ms Garriock had the intention of trying to terminate the appellant's residential tenancy agreement, having worked with the appellant to obtain the tenancy which had commenced about 3 weeks earlier. Further, it was unlikely that an unnamed person had provided information to Ms Garriock that the appellant was "violent and a drug addict" which caused her to concoct her version of events for the purpose of terminating the tenancy. Lastly, this version of events was not put to Ms Garriock and was nothing more than speculation. Decision [22]. 8. While the appellant's evidence was supported by evidence from Mssrs Hill and McGill, the totality of evidence led the Tribunal to conclude Ms Garriock's account of what occurred was more probable. Decision [23].
Consequently, the Tribunal accepted that serious threats had been made which constituted conduct enabling the Tribunal to make an order for termination pursuant to s 92 of the RT Act. Decision [24]-[25]. Further, while the conduct of Ms Garriock in threatening the appellant's tenancy may have meant that "to some extent (Ms Garriock) was the author of her own misfortune", the Tribunal concluded the appellant's behaviour in was out of all proportion to what had occurred. Decision [27].
Having considered the requirements of s 154E of the RT Act, and its discretion, the Tribunal determined that the residential tenancy should be terminated. In doing so, the Tribunal "placed no weight on the allegation of drug use". Decision [29]-[31].
The appellant criticises the Tribunal's process of reasoning on the following bases: 1. there was otherwise no findings in relation to credit; 2. the only justification for the Tribunal preferring Ms Garriock's account was her evidence that she dialled 000, a process of reasoning that was equivalent to "lifting oneself up by your own bootstraps"; 3. there was evidence from Ms Garriock that bad language had been used when she initially entered the premises and that the use of such language was a common occurrence about which she was not concerned, and these facts made her evidence that she subsequently felt anxious improbable; 4. there was no serious cross-examination of the appellant and his witnesses concerning the events which occurred including the language used; 5. there was evidence that the appellant was perplexed by the subsequent arrival of police at the residential premises: Transcript T14 line 4, and, in any event, there was no obligation on the appellant to explain the motives of the respondent; 6. there was a failure to reach the required state of reasonable satisfaction having regard to the principles in Briginshaw and the decision in that sense should be considered unreasonable; 7. illogicality is demonstrated by a consideration of [21] of the decision in that the Tribunal relied upon the fact Ms Garriock called 000 as a reason for rejecting the appellant's innocuous version of the conversation after the appellant left the residential premises to the effect that the appellant was asking to speak with Ms Garriock but was not otherwise threatening her. 8. There was no weighing of the competing account of what happened provided by the appellant and his witnesses.
A resolution of these issues requires a review of the evidence to which the appellant refers and the reasons for decision. In reviewing the reasons it is important to bear in mind: 1. the requirement to give reasons in s 62 of the NCAT Act; and 2. the extent of the obligations to give reasons is variable having regard to the particular case and the reasons should "not be construed minutely with an eye keenly attuned to the perception of error": see Couratos t/a Surf City Motors v Willis [2016] NSWCATAP 249, particularly at [55]-[56].
The conduct of the appellant relied upon by the Tribunal as establishing the circumstances of a serious threat to Ms Garriock occurred outside the residential premises. The appellant and Ms Garriock gave evidence about what occurred outside the premises.
Prior to this, there was an exchange between the appellant and Ms Garriock in the residential premises. Mssrs Hill and McGill as well as the appellant and Ms Garriock gave oral evidence about these events. However neither Mr Hill nor Mr McGill gave evidence about what happened outside the premises: see T15 line 41- T18 line 6.
Written statements from these witnesses (the appellant and Mssrs Hill and McGill), if any, were not provided on appeal. Only Ms Garriock provided written evidence (exhibit B).
The only evidence concerning what occurred inside the premises from Mssrs Hill and McGill related to Ms Garriock knocking on the door and requiring the music to be turned down. Each of these witnesses said she came to the door, said to turn the music down and then left. Neither gave evidence as to the exact language used or whether threats to terminate the tenancy were made by Ms Garriock.
The appellant gave slightly different evidence. He said he was having a few beers and listening to music when Ms Garriock walked into the premises (T13 line 23). At T13 line 35 and following the appellant said: Mr Bull Yes-I noticed the curtains. All three of us were in the house. Next minute the curtains come up like this and a lady walked in, said something. I couldn't quite hear what she said. So I turned around and turned the music down. When I turned back, the lady was gone. I walked outside and yelled out, "Lady, hey, where are you? I'd like to talk to you. I want to speak to you, lady." Member Just a second. So what were you calling out? "Lady, where are you?" Or something? Mr Bull Yes. "Lady, where are you. I want to talk to you. I want to speak to you. Where are you? and I couldn't find where she went. I couldn't find her. I walked in the stairwell and yelled out again, "Where are you lady? I want to talk to you." I couldn't find her. So I went back into the flat. We probably stayed there a little bit, and then left and went up to my friend's place. Left there and went to Tommy's place. Then eight days later I've been charged, now I am here.
The appellant was then asked about Ms Garriock's statement (exhibit B) and at T 14 line 20-26 the following exchange occurred: Ms Hadden Mr Bull, you read the statement from Ms Garriock- that the police took from Ms Garriock. At any stage did you threaten her life or try to intimidate her in any way? Mr Bull No. I was a bit sort of shocked when I noticed the curtain (indistinct) lady put her head in. I said, "Who might you be?" And that when she yelled something at me like, "Turn the stereo down". That basically what went on. When I turned back, she was gone. So I went out to find out who she was.
In cross-examination, the appellant said at T 15 lines 8-25: Mr Marquez You just said that when Ms Garriock first pulled up the curtain and basically told you to turn the music down, that you identify her? Mr Bull No, I didn't. I don't think I've seen or met that lady. I met with-what's her name? Ms … Mr Marquez Garriock, Tasha? Mr Bull Garriock once. Yes, Tasha. I met her once over when I signed the paperwork. She apparently got phone calls from some bloke in the flat telling her that I'm antisocial, I'm an alcoholic, a drug addict. I'm violent. I'm this. I'm that. Mr Marquez So what you're saying is that even though you only signed the lease two weeks before this incident occurred? Mr Bull Roughly. Mr Marquez that you didn't identify her? Mr Bull No, that's why I walked outside and yelled out, "Lady, where are you?" like I told you. Mr Marquez Was the music loud? Mr Bull It might have been, yes, but I have been around and spoken to the other blokes in the flat. I told them that if anything that I do that upset you or whatever, please let me know, and they said, "Yes, not a problem". I'm trying to do the right thing….
On the other hand, Ms Garriock's evidence, both written and oral, was that: 1. she attended the premises due to loud music, told the appellant to turn the music down and was told to "f… off". (T6 line6); 2. she had only just helped establish the tenancy for the appellant which commenced a few weeks before. (exhibit A and T6 line 10-11); 3. she had threatened to terminate the tenancy if the music was not turned down: (T9 line 4); 4. she did not feel threatened or concerned by the language used within the residential premises when she demanded the music be turned down, although she did not feel comfortable and her "heart was pumping". (T9 lines 13-26): 5. she thought the appellant was on "ice" but did not see any drug paraphernalia: (T8 line 32-33); 6. she left the premises and heard the appellant leave the premises and call out using threatening language. These actions caused her to hide, call 000 and subsequently attend the Police Station and provide a statement: (exhibit B and T5 line 15 and following).
Clearly the evidence from each witness about what occurred outside the residential premises was in conflict. There was also some conflict about what happened prior to this time when Mr Garriock first came to the residential premises.
The appellant says that, in resolving the dispute, the Tribunal made no findings of credit. In our view, this is not correct. It is implicit from the decision that the appellant's evidence about what occurred outside the residential premises was rejected.
The appellant says the only evidence the Tribunal identified to justify its preference of Ms Garriock's evidence was that she called 000, a reasoning process the appellant says was circular and inappropriate. However, this submission ignores the other findings of the Tribunal, namely she hid and was very scared.
The mere fact the Tribunal accepted Ms Garriock's version of these events although not corroborated does not mean that its process of reasoning is circular. In our view, this proposition should not be accepted. If this submission is correct then evidence of what occurred that provided a logical sequence of events and an explanation for what happened could never be relied upon in making a decision, at least in respect of that part of the sequence occurring after the contravening conduct, unless those subsequent events were otherwise corroborated.
The submission also ignores the Tribunal's finding that there was no "Machiavellian plan" and no reason why Ms Garriock would make up a story and seek to terminate the residential tenancy agreement with the appellant which she had only just completed and which had commenced a few weeks earlier. In this regard the Tribunal did not accept that some unnamed third person had told Ms Garriock that the appellant was "violent and a drug addict", the Tribunal concluding the appellant was speculating about a motive for why Ms Garriock was trying to terminate the tenancy where there was no direct evidence of this fact or evidence from which an inference could be drawn.
Further, and in any event, there were other reasons why the Tribunal's conclusion was available on the evidence.
Firstly, on the appellant's evidence, he left the premises to speak to a person whom he did not recognise, who had entered the residential premises and had said something which he had not heard that caused him to turn down the music. This was despite the evidence from the appellant's other witnesses that the music was not loud, a fact which the appellant did not agree. Having turned down the music and seen that the person was no longer in the residential premises, he left to seek her out and called out to her (on his version) in innocuous terms. His reason for following her and wanting to speak to her remains unexplained, other than the fact she had walked in unannounced and said something he didn't hear. His evidence was that he called out "I want to talk to you" on repeated occasions, not "what did you say" or "what do you want", an odd statement when he did not apparently recognise her or know who she was, what she had said or why she was there.
On the other hand, the Tribunal accepted Ms Garriock's evidence that she had threatened to terminate the tenancy due to the loud music, a matter which would explain why the appellant left the premises to go after Ms Garriock.
Secondly, the appellant appears to have relied on that part of the evidence from Ms Garriock that bad language was used whilst she was in the premises when she was told to "f… off", that it was somewhat normal in the social housing environment in which Ms Garriock was operating and Ms Garriock did not feel threatened at this point in time, to support a submission that her evidence of the subsequent events outside the residential premises was improbable.
This submission seems at odds with the evidence from the appellant that bad language was not used. It is an attempt to extract from Ms Garriock's evidence, which the Tribunal described as "cogent", only those parts that support the appellant's case, while otherwise seeking to reject her evidence as unreliable. Further, if Ms Garriock's evidence on this issue was accepted, it provides a basis to reject the innocuous version of events given by the appellant and his witnesses about what happened inside the premises.
In any event, the Tribunal dealt with this fact in its decision at [27] where it said: One might consider that to some extent Ms Garriock was the author of her own misfortune by threatening the (appellant's) tenancy, however, the respondent's behaviour is totally out of all proportion to that and, indeed, one could expect that the situation called for a conciliatory rather than an antagonistic response by Mr Bull.
Rather than demonstrating an incorrect approach to evaluating the evidence and making the required decision, this analysis shows a careful consideration of the whole of the evidence from Ms Garriock, some of which could not be regarded as reflective of reasonable conduct.
As to the language used in the premises as asserted by the appellant and his witnesses and the failure to cross examine, this issue does not appear to have been raised at the hearing. Further, in so far as the proposition is based on the principle in Browne v Dunn (1893) 6 R 67, that principle appears to have no relevance to the present case.
In Southern Area Health Service v Brown [2003] NSWCA 369, Sheller JA, with whom Hodgson and McColl JJA agreed, said at [102]-[103]: 102 There are several leading cases about the need to cross-examine a witness if the opposing party wishes to put a submission that the witness' evidence should not be accepted. First among these cases is Browne v Dunn (1893) 6 R 67 which has given its name to what is regarded as an important rule of practice explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1 at 16. At 23 Hunt J said: "In many cases, of course, counsel for the party calling the witness in question will be alert to the relevance of the other material in the case to be relied upon for the challenge to the truth of the evidence given by his witness or to the credit of that witness, and in those circumstances counsel will be able to give his witness the opportunity to deal with that other material in his own evidence in chief. But sometimes quite properly he may not be aware either of the other material or of its relevance; or for quite legitimate tactical reasons he may prefer his opponent to be the first to raise the matter, and then deal with it in re-examination or (if allowed) in his case in reply. But at some stage during the course of the evidence, the witness must be given a proper opportunity to deal with the material to be relied upon for the challenge. If he has not been given that opportunity during the course of his own evidence, the situation may in some cases be remedied by his recall. Sometimes, particularly in jury trials, a party's failure to give such an opportunity to his opponent at the proper time may in justice require a ruling that a challenge to the evidence of the witness cannot be permitted or, if such a challenge has been made without warning, either the discharge of the jury or an appropriately strong direction to the jury in order to redress the unfairness which results. The various courses open in such a trial and the remedies upon appeal are discussed by the New South Wales Court of Appeal in Seymour v Australian Broadcasting Commission (Court of Appeal, 3 June 1977, unreported)." 103 As stated by Hunt J, a comprehensive discussion of the rule in Browne v Dunn is found in the decision of this Court in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 in the judgment of Glass JA, with whom Reynolds JA agreed, at 224-225 and in the judgment of Mahoney JA at 235-237. In R v Birks (1990) 19 NSWLR 677 Gleeson CJ said at 689-690: "The consequences of a failure to observe the rule in Browne v Dunn will vary depending upon the circumstances of the case, but they will usually be related to the central object of the rule, which is to secure fairness. In a judgment of Mahoney JA in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, his Honour said (at 236-237): 'This kind of problem may arise at different times in the litigation. It may arise during the trial. Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness's evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination. Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case. In other cases, the problem may arise only on appeal. This, in my opinion, is what happened in Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362. The appellant had argued successfully before the Court of Appeal that the amount awarded to her by the jury was so small that it was out of proportion to her injuries. The respondent defendant had apparently argued before the High Court that the amount awarded would not have been out of proportion if the jury had concluded that the plaintiff, uninjured, would not have continued to work as she had sworn that she proposed to do. Gibbs J (at 370-371) pointed out that the plaintiff had not been cross-examined upon her evidence in that regard and that therefore it would not have been open to the jury to reject that part of her case. It would have been 'unreasonable' for them to have taken a contrary view, and his Honour concluded that it was not open to the respondent to support its case upon the basis that it had.' The above passage indicates the variety of circumstances in which a failure to observe the rule can manifest itself, and the ways in which a significant unfairness may be avoided."
As made clear by the above decisions, the issue is one of fairness and whether a party can make a submission as to the effect of certain evidence and/or the credit of a witness where that witness has not had a chance to respond.
In the present case, the appellant, as a respondent to the application, was afforded a chance to provide evidence in reply to Ms Garriock's evidence about what occurred both in the residential premises and outside the residential premises. That evidence was provided and, in part, was in conflict with Ms Garriock's evidence. The failure to put to the appellant and his witnesses that their version of events was wrong was not necessary. As to the issue of credit, each of the witnesses gave their respective version of events and it was open to the Tribunal to evaluate that various accounts to determine which version was more probable. No submissions were otherwise made to the Tribunal about which it could be said as a matter of fairness that a witness was not afforded a chance to provide relevant evidence in response.
As to the appellant's evidence that he was perplexed when the Police arrived, some eight days after the incident, this is part of the chain of events which could be considered by the Tribunal in reaching its decision. However, again the appellant made no specific submission about this evidence at the original hearing and the failure in its decision to deal with every aspect of what each witness said is not, of itself, demonstrative of error by the Tribunal. In this regard in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, Meagher JA said at 443-4: … the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of a set of evidence should be referred to. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported). Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well. Whilst it is desirable to address these elements in giving reasons for decision, it is the purpose for which the reasons serve which issue primary importance in determining the content of the reasons. That purpose must be weighed against other considerations. It has been noted in this Court that the content required of a statement of reasons is to be measured against the burden that the provision of reasons imposes on the judicial system: Sinak v Tess (Court of Appeal, 15 March 1995, unreported).
In the present case, the critical events were what occurred outside the premises. The evidence on this aspect was dealt with by the Tribunal. The fact that evidence from the appellant of events occurring days after the relevant incident was not expressly dealt with does not show any relevant error.
Lastly, the appellant refers to Briginshaw and says that the nature of the claim in the present case was an allegation the appellant had committed an assault. This proposition is to misstate what the Tribunal was required to decide under s 92(1)(a) of the RT Act.
The Tribunal was required to determine whether the appellant seriously threatened or abused Ms Garriock. The meaning of the word serious was considered by the Tribunal in Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128 at [28] and following. The Tribunal was not required to make a finding that Ms Garriock had been assaulted or that a criminal offence had been committed. That is not to suggest that the principles in Briginshaw do not apply having regard to the nature of the alleged conduct, the significance of a positive finding and the consequences that flow in relation to the residential tenancy agreement. However, the context in which that decision was to be made was in determining whether a residential tenancy agreement should be terminated because, on the balance of probabilities, the appellant seriously threatened or abused Ms Garriock, an employee of the respondent.
In this regard, if Ms Garriock's version of events was accepted, it could not be suggested that the conduct of trying to find Ms Garriock and saying the words which Ms Garriock attributes to the appellant, even if occurring on a single occasion, did not amount to a serious threat. The appellant did not submit otherwise at the original hearing.
The question is whether the Tribunal was entitled to make the findings it did based on the evidence before it.
As Dixon J said in Briginshaw, "reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved". He then said at p362 "'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect inferences".
The conclusions of the Tribunal were not based on inference. They were based on direct evidence given by one party that conflicted with that of another and the Tribunal was entitled to decide which version to accept. The evidence was necessary to prove the fact of the threat, its serious nature and the consequences upon Ms Garriock, both immediate and long term. The reasons for accepting the evidence of Ms Garriock were explained.
The fact that there was a different version or versions of events from other witnesses concerning aspects of what occurred on 5 May 2016 does not mean the Tribunal was in error in making its decision or failed to have a degree of satisfaction required by reason of the principles in Briginshaw. As set out above, a review of the reasons given and a consideration of other evidence does not lead to such a conclusion.
Further, in circumstances where leave to appeal is required, this is not a case where "the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach": Collins (supra).
Accordingly, leave to appeal should be refused and the appeal dismissed.

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