Burrows v Aboriginal Housing Office

Background

1. The relevant background facts are set out in the Tribunal's decision. They were as follows: 7. The applicant entered into a residential tenancy agreement with the respondent in respect of premises in the Tweed Heads area of NSW ("the premises") on 29 February 2016. Initially the applicant lived there with her two children. On 30 May 2018, the applicant allowed a distant relative, who suffers from severe mental illness, and was at that time homeless, to live at the premises with her and her children. 8. Shortly after commencing to live at the premises, two neighbours, who are also tenants of the respondent, verbally abused the applicant. There was, in the applicant's words 'a lot of abuse' until 1 May 2018, when, according to the applicant, two male neighbours went to the applicant's front door, verbally abused her, and threatened to kill her. The applicant rang the Police. The two males remained at the front door abusing and threatening the applicant. The Officer who answered the call asked the applicant to put her phone on loud speaker, and then asked the males to repeat what they had said, whereupon one of them repeated he was going to kill the applicant. On advice from the Officer, the applicant closed her front door. Police arrived shortly afterwards at the house where the two males lived, and spoke with persons there. A NSW COPS report confirms this incident, and also says Police were unable to take any further action, because they could not identify who it was who abused and threatened the applicant. 9. The following day the applicant submitted a 'Serious Incident Diary'. A copy of the first page of that document, which contains a description of the incident, is annexed to the applicant's statutory declaration. 10. Further Serious Incident Diaries reporting anti-social behaviour by the same neighbouring tenants, were submitted on 11 August 2018, 14 July 2019, 24 November 2019, and 20 December 2019, 8 January 2020, 26 January 2020, and 11 March 2020. 11. The respondent did not challenge the evidence of the applicant, that she submitted each of them personally at the respondent's Tweed Heads office. Furthermore, it was in the applicant's interests to submit the Diaries, as they tend to support her application to be transferred to different premises. The applicant's evidence on this issue is accepted. As the applicant's representative stated in written submissions, the applicant also informed the respondent of the anti-social behaviour on 15 other occasions, and that evidence is also accepted. 12. It is unclear from the evidence how many of the Serious Incident Diaries came to the attention of Ms Pond, or the two Client Services (sic) who managed the applicant's tenancy before Ms Pond. The respondent conceded some went astray, or were not recorded in its digital filing process, and the first to come to Ms Pond's attention was one submitted in August 2019. In my view, not a lot turns on this, because as is found below, there were many discussions between the applicant and the respondent's officers about the anti-social behaviour, after the applicant reported the incident that occurred on 1 May 2018. 13. The effects on the applicant of the anti-social behaviour are not in dispute. These include not using the front or back yards of the house, because the applicant and her family do not feel safe there; keeping the blinds drawn in the living room; and emotional distress caused to her and her family. 14. On 5 June 2018, the applicant submitted a request to the respondent to be transferred to other premises, on the grounds of the anti-social behaviour she was experiencing, and overcrowding. I infer the overcrowding is due to the applicant taking in her relative, as there are three bedrooms in the premises, which is insufficient for all four occupants to have a bedroom. 15. On 24 October 2018, the applicant's transfer application was approved, however it was not given priority status, which meant it would be many years until the transfer could be effected. The applicant then attempted to elevate the status of her transfer application. On 28 November 2019, the applicant requested a first tier review of the decision not to give her transfer application the status of "priority''. That review was successful, and on 20 February 2020, the application was given "priority" status. 16 On 22 May 2020 the respondent issued a "first strike notice" as provided in the Act, to an offending neighbour. Other than two subsequent complaints (the evidence is unclear about who made these complaints), which were found to be unsubstantiated, there have been no further incidents of antisocial behaviour by the neighbours who are also tenants of the respondent. There has however been one incident, in June 2020, but the person involved is not a neighbour who is a tenant of the respondent."
2. There was no doubt, and no issue before the Tribunal, that neighbours of the appellant, who were also tenants of the respondent, interfered with the reasonable peace, comfort or privacy of the appellant in using her premises rented from the respondent.
3. The issue before the Tribunal was whether the respondent took all reasonable steps to ensure that those neighbours did not interfere with the appellant's quiet enjoyment of her premises.
4. The obligation to take reasonable steps to prevent that affect arises from s 50(3) of the Residential Tenancies Act 2010 (NSW) (the "RTA"). That sub-section says: (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises.
5. In deciding that factual question the Tribunal had evidence provided to it from both parties.
6. From the appellant the Tribunal had before it a statutory declaration by her together with some documentary attachments. The Tribunal summarised and analysed the contents of that declaration and its attachments at [19]-[22] of its reasons.
7. The appellant also gave oral evidence and was cross-examined.
8. She was also granted leave to submit further documentary evidence after the conclusion of the hearing, and she did so.
9. The relevant parts of the appellant's oral and subsequent documentary evidence were summarised and analysed by the Tribunal at [24]-[26] of its reasons.
10. On behalf of the respondent, two Client Service Officers of the respondent gave evidence by way of statutory declaration and at least one of them gave oral evidence.
11. The relevant parts of the respondent's oral and documentary evidence were summarised and analysed by the Tribunal at [23] and [27]-[32] of its reasons.
12. After consideration of that evidence the Tribunal decided that the appellant had failed to prove that the respondent was in breach of s 50(3) of the RTA. The Tribunal said: "33. Having considered all of the evidence, and based on the analysis above, I am comfortably satisfied the applicant did ask the respondent not to take action against her neighbours until 9 January 2020. There was then a period of about 5 weeks whilst Ms Pond waited to ensure the applicant was comfortable with her decision for action to be taken, because of the fear of retaliation previously expressed by the applicant. Given the apprehension for her safety conveyed by the applicant to the respondent, that was a reasonable thing to do. In the meantime, on 7 February 2020, the respondent interviewed one of the allegedly anti-social neighbours (the subject of a complaint by another tenant of the respondent's) in a way that did not reveal the applicant's identity, as the applicant's evidence was not necessary or relevant to that complaint. 34. The respondent then initiated the processes available to it in relation to antisocial behaviour, and in May 2020, issued a "first strike notice", which is a reasonable type of action to take. 35. As the respondent submits, it is for the applicant to prove the respondent breached its obligation under section 50 (3) of the Act, to take all reasonable steps to ensure that its neighbouring tenants do not interfere with the reasonable peace comfort or privacy of the applicant, in using the premises she leases from the respondent. The applicant has not done so. Furthermore, I find that the respondent has taken all such reasonable steps to comply with that obligation."

The Appeal

1. The appellant is not legally trained and appeared unrepresented on the hearing of this appeal.
2. She complained that in the hearing before the Tribunal she had "plenty of evidence" of her complaints about the neighbours, that the respondent had "no evidence whatsoever" and that, contrary to the Tribunal's finding at [33] of its reasons (set out at [14] above), she did ask the respondent to take action against her neighbours before 9 January 2020.
3. Having examined the materials ourselves to determine whether the Tribunal made an error not identified by the appellant, and translating her submissions into possible grounds of appeal, the appellant appeals on the basis that: 1. There was no evidence that the respondent took all reasonable steps to ensure that the respondent's other neighbouring tenants did not interfere with the reasonable peace, comfort or privacy of the appellant in using the premises. 2. The decision was against the weight of evidence in that the weight of evidence was all one way, namely that the respondent did not take all reasonable steps to ensure that the respondent's other neighbouring tenants did not interfere with the reasonable peace, comfort or privacy of the appellant in using the premises. 3. The Tribunal erred in finding that the appellant did not ask the respondent to take action against her neighbours until 9 January 2020.
4. The first ground raises a question of law and does not require leave to appeal. The second and third grounds do not raise errors of law and require leave to appeal. Although the latter two grounds require leave to appeal we have, in the circumstances of this case and the appellant's undeniably difficult circumstances, decided those grounds as if leave were granted.

Decision

1. All three grounds may be considered together.
2. The Tribunal noted that the appellant gave evidence that she did not report the anti-social behaviour of the neighbouring tenants until May 2018.
3. The Tribunal noted that nowhere in the appellant's statutory declaration was there evidence of any request by her to the respondent for the respondent to take action.
4. The Tribunal noted that in the many emails between the appellant and herself which were attached to her statutory declaration (a subset of the 150 emails the appellant said she had sent to the respondent) there was never an enquiry by the appellant about what action was being taken by the respondent against the neighbouring tenants.
5. Rather, the appellant's communications with the respondent were for another purpose. At [21] of its reasons the Tribunal said: "It is apparent from reading those emails that the primary, if not exclusive, purpose of submitting the Serious Incident Diaries, was to support her application to be transferred to housing in larger premises away from the neighbouring tenants engaging in anti-social behaviour, not for action to be taken against those persons."
6. The Tribunal said that the evidence (in its totality) revealed that despite submitting many Serious Incident Diaries reporting further instances of anti-social behaviour, the appellant never enquired about the progress of the action she says she assumed the respondent was taking against neighbours.
7. The Tribunal reasoned that it was highly implausible that someone in the appellant's position would not once ask, in any of the 150 emails, or numerous telephone conversations she had with her Client Service Officers, what action was being taken, or how the action was proceeding, if in fact she wanted action to be taken, or was expecting it to be taken.
8. The Tribunal referred to an email from a Client Service Officer, Ms Pond, to the appellant dated 8 January 2020. In that email the Client Service Officer: "… advised the (appellant that) another person in the (appellant's) street had made a complaint about the same neighbours the (appellant) had complained about. Ms Pond then advises the (appellant) that before Ms Pond takes action against those neighbours, she wants to ensure the applicant is O.K. with her doing so. The (appellant's) response, in an extract from an email which appears at page 31 of the (appellant's) documents, reads "I've been thinking go ahead with what you have to do with .... St" (address omitted). Ms Pond then responds by email 'Thank you so much. Finally we can take action on these people!!'" (Emphasis added by the Tribunal)
9. The Tribunal reasoned that that exchange was entirely consistent with the respondent's position, that the appellant had asked it not to action her own complaints before that date. Hence the emphasis given to the text of the email "Finally we can take action …".
10. The Tribunal accepted Ms Pond's evidence that thereafter the respondent immediately began to take action in relation to the neighbouring tenants.
11. The Tribunal found the appellant's oral evidence to be, at least in part, unsatisfactory. The Tribunal said that some of her answers in cross-examination contradicted her evidence in chief.
12. The Tribunal closely examined the respondent's actions and why it did not take action earlier than 9 January 2020. It accepted the respondent's explanation that it could not unilaterally take action against the neighbours in the absence of the appellant's cooperation and consent. The Tribunal said at [29] that the explanation was that: "…the requirements of natural justice, mean it is necessary to give sufficient particulars to the allegedly offending neighbours to enable them to know what it is they are alleged to have done. That necessarily requires information to be provided which will likely identify the (appellant). Furthermore, if the (appellant) is not prepared to provide written information about the anti-social behaviour, there is insufficient evidence to sustain such a complaint. All of the actions the respondent can potentially take, require the co-operation of the (appellant) who is complaining about their neighbour, which the (appellant) was also able to do, but did not want to. While there is provision in the Act for the respondent to put before the Tribunal in support of an application for termination of the neighbours tenancy, or a specific performance order, a "Neighbourhood Impact Statement" (in which the identity of neighbouring residents providing evidence is not to be revealed - section 154F refers), it is still necessary to obtain evidence from at least some complainant(s) that can be used in an application, before the Tribunal can consider the Neighbourhood Impact Statement."
13. The Tribunal found that that evidence was uncontradicted, was inherently plausible and was inherently logical.
14. The Tribunal noted Ms Pond's evidence that the respondent had failed to keep or lost some relevant records regarding the appellant's complaints, a matter the appellant made much reference to in this appeal.
15. But as the Tribunal accepted the appellant's evidence of complaints made, and in the absence of any suggestion, not least by the appellant, that those missing records contained evidence of one or more requests by her to the respondent to take action at an earlier point in time than 9 January 2020, those missing records are not relevant to this appeal nor to the Tribunal's decision.
16. As we have endeavoured to explain, and contrary to the appellant's submissions that there was no evidence, there was indeed evidence before the Tribunal that the respondent took all reasonable steps to ensure that the respondent's other neighbouring tenants did not interfere with the reasonable peace, comfort or privacy of the appellant in using her premises. Therefore the "no evidence" ground of appeal must fail.
17. It is also apparent that the weight of evidence was, contrary to the appellant's submissions that it favoured her case, actually in favour of the respondent's case and the Tribunal's conclusion that the respondent had taken reasonable steps. Therefore ground 2 must fail.
18. In relation to ground 3, namely the submission that the Tribunal was wrong in finding that the appellant had not asked for action to be taken until 9 January 2020, this ground must also fail.
19. The Tribunal reached that factual conclusion by the orthodox application of the principles set out in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] wherein the plurality said that judges and tribunal members should, when making findings of fact: "… limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical."
20. This is what the Tribunal did.
21. In deciding whether or not the respondent took reasonable steps the Tribunal brought to bear a range of matters which bore upon that finding: the relatively contemporaneous documents, the recollections of the witnesses and the apparent logic of events.
22. Insofar as the credibility of witnesses impacted on that finding, the Tribunal accepted the respondent's witnesses and thought at least some of the appellant's evidence was unsatisfactory and contradictory.
23. As the central finding of the Tribunal is partly demeanour based, it is immune from appeal unless the appellant can show that the Tribunal failed to use or has palpably misused its advantage, or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable - see McHugh J in Fox v Percy at [48].
24. Even if the finding was not demeanour based, we can see no error in the Tribunal's reasoning process in reaching its finding on the ultimate fact, its findings of primary fact and the inferences the Tribunal found from established primary facts.
25. Therefore, in our opinion the appellant has failed to show any error in the Tribunal's finding that she did not ask the respondent to take action against her neighbours until 9 January 2020. Therefore, the third ground of appeal must fail.
26. We should mention for completeness that the appellant also sought a reduction in rent pursuant to s 44(1)(b) of the RTA which provides that the Tribunal may, on the application of a tenant, make an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal "by the landlord" of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount.
27. That section only applies to things done by the landlord, it does not extend (as against the respondent) to actions done by third parties such as the neighbouring tenants in this case - Eliezer v Residential Tribunal (2001) 53 NSWLR 657; [2001] NSWSC 1092; Pan v Malveholm [2021] NSWCATAP 101. Therefore, this part of the case was doomed to fail.

Orders

1. We make the following order: 1. Appeal dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2021