CEO Housing v Janine Coonan [2010] NTMC 30

NSW Land & Housing Corporation v Bullman [2006] NSWSC 733 - applied

NSW Land & Housing Corporation v Adams [2004] NSWCTTT 80 - applied

1. The CEO Housing is the landlord of 15 Wanderee Court Batchelor, Ms Coonan is the tenant. On the 3rd of January 2010 an altercation occurred between Ms Coonan and her neighbour Mr Price late at night. Ms Coonan attended Mr Price's property, next door, and verbally abused him about an issue she had with him regarding damage to her car from falling trees from his property. Ms Coonan was very drunk and was acting in a terrible manner. During this altercation Price restrained Coonan on the ground and this was filmed by Price's son Griffith. Out of that altercation both Price and his son Griffith claim to have sustained minor injuries to themselves and damage to their prescription glasses.

2. In the lead up to this incident there had been a dispute between Mr Price and Ms Coonan about repairs to her car and fence arising out of trees or parts of trees falling from Mr Price's property onto her car. There were requests for payment to fix the vehicle and those payments had not been forthcoming over 12 months. There is a dispute about how those payments have not come to be made, however that is of little relevance. The dispute caused frustration in Ms Coonan and that frustration fuelled by alcohol turned into anger and culminated in this incident. The question for this Court is whether Ms Coonan's actions bring her within the operation of s 97(2) of the Residential Tenancies Act and put her at jeopardy of being immediately evicted from the premises.

3. Section 97(2) of the Residential Tenancies Act ( NT) gives the Court power to terminate a tenancy and make an order for immediate possession if:

" the tenant or a person while on the premises with the consent of the tenant, has, intentionally or recklessly, caused or permitted or is likely to cause or permit:

4. There is no dispute that Mr Price and his son were people in the vicinity of the premises.

5. What is in issue is whether Ms Coonan intentionally or recklessly caused personal injury to Mr Price and or his son.

6. The Court heard evidence from Mr Price and his son, Griffin, Mr Bryce and Ms Coonan. The evidence in chief of both Mr Bryce and Ms Coonan was substantially set out in their affidavits filed in Court and exhibited. The Court also viewed video footage of the incident filmed by Griffin Price.

7. The burden of proof is on the applicant to prove on the balance of probabilities those conditions set out in s 97(2) of the Residential Tenancies Act (NT).

a. What is personal injury in the context of this Act and did Mr Price and / or his son suffer a personal injury?

b. Did Ms Coonan intentionally or recklessly cause personal injury to either Mr Price or his son?

c. If I am satisfied that personal injury was caused by Ms Coonan to Mr Price or his son, does that invoke a discretion to terminate the tenancy?

d. If there is a discretion, do the circumstances of the present case warrant an exercise of that discretion against Ms Coonan?

What is personal injury? The term "personal injury" is not defined in the Act. I was referred to the definitions in other pieces of legislation, however that did not assist when there is no reference to those other pieces of legislation in the Residential Tenancies Act (NT).

Section 62B of the Interpretation Act requires the Court to consider the object or purpose of the Act and to prefer a construction which promotes that purpose. The objectives of the Residential Tenancies Act is set out in s 3 of that Act as :

"(a) to fairly balance the rights and duties of tenants and landlords;

(b) to improve the understanding of landlords, tenants and agents of their rights and obligations in relation to residential tenancies;

(c) to ensure that landlords and tenants are provided with suitable mechanisms for enforcing their rights under tenancy agreements and this Act;

(d) to ensure that tenants are provided with safe and habitable premises under tenancy agreements and enjoy appropriate security of tenure; and

(e) to facilitate landlords receiving a fair rent in return for providing safe and habitable accommodation to tenants."

In that context what is the purpose of s 97(2)? Part of the balancing of rights and duties of tenants and landlords are balancing those matters in the context of the termination of tenancies. In the enactment of s 97(2) of the Act, the legislature was clearly providing the landlord with the right to apply for the termination of a tenancy where the tenant's actions have caused or is likely to cause personal injury to someone in the vicinity of the tenanted premises. The inference is that legislature intended to protect the landlord's right to expect proper behaviour from its tenants, including not causing injury to neighbours.

The consequences for the tenant under s 97(2) are serious, they could be required to immediately vacate the premises. It could be argued that as the consequences of the operation are so serious, then the Court should read into the expression "personal injury" a degree of seriousness however there reference to "serious" damage in s 97(2)(a) when referring to damage to property indicates if the legislature intended the section to operate only when there has been "serious" personal injury it would have included that word before the phrase.

At this point it should be noted that there are no recorded decisions which consider the application of s 97(2) however as there are similar provisions in all other jurisdictions (Residential Tenancies Act 1997(ACT) s 51; Residential Tenancies Act (NSW) s 68; Residential Tenancies Act 1994 (Qld) s 169; Residential Tenancies Act 1995 (SA) s 87 (2) ; Residential Tenancy Act 1997 (Tas) ; Residential Tenancies Act (Vic) ss 243 -245 and Residential Tenancies Act 1987(WA) s 73), and I have gained some assistance from decisions regarding those like provisions particularly from the decisions of the NSW tenancy tribunal and the Court of Appeal in that state.

It is clear "personal injury" includes physical injury to a person's body. It is also clear that "personal injury" includes psychiatric injury (see Crook v Consumer, Trader & Tenancy (NSW) [2003] NSWCA 370; (2003) 59 NSWLR 300).

Relying on the Oxford Dictionary, the CEO submits that personal injury could at its widest definition include damage to person and clothing (see pages 686 and 1001 of Oxford Dictionary (new edition)). I agree if the Court took the widest possible definition it is arguable "personal injury" can include damage to clothing (which could also include glasses). However given the serious consequences of s 97(2), then I cannot accept that it was the intention of the legislature that a person could be required to immediately vacate their residence because of damage to a person's clothes. I find that "personal injury" in the context of s 97(2) does not include damage to a person's clothes.

The evidence of Mr Price is that he suffered sore shoulders and an abrasion on his wrist arising out of the altercation with Ms Coonan. Griffin Price says he was "scratched" on the shoulder when Ms Coonan lunged for the camera and attempted to grab it from him. Both Mr Price and his son claim their glasses were damaged on that night.

Ms Coonan denies hitting Mr Price and claims she did not grab for the camera and therefore did not scratch Griffin's shoulder. She accepted Griffin's glasses came off his face during the altercation.

There was no need for either Mr Price or his son to attend a medical clinic or doctors for their injuries however there are photos of the abrasion of Mr Price's wrist taken by Mr Bryce, investigator from NT Housing.

The video footage of the incident does not show the initial assault as claimed by Mr Price. It shows Ms Coonan on the ground on her back being held by Mr Price, Ms Coonan abusing and screaming at Mr Price to let her up and regarding the fixing of her windscreen. Mr Price is heard and seen to be holding Ms Coonan down and advising her that she would be released if she stopped hitting him. Ms Coonan denies hitting Mr Price. The video is then of continued verbal abuse from Ms Coonan and requests by Mr Price for her to leave. Ms Coonan then moves away still shouting abuse and then Mr Price talks to the camera about what he says has happened. Ms Coonan then returns into vision, the camera is clearly knocked sideways and then there is further screaming and carrying on from Ms Coonan. After that Mr Price is seen to be looking up a telephone book and making some further commentary.

The video footage corroborates the fact that Ms Coonan was clearly in an high emotional state and drunk. After viewing the footage Ms Coonan made the appropriate concessions that she may have confused the order of events as the footage clearly did not describe the events as she had in her affidavit.

The footage also shows Ms Coonan approaching the camera quickly with her hand up and then the camera no longer filming properly in what suggests the camera had been moved quickly to the side and downwards consistent with what Griffin says happened.

Ms Coonan is adamant she did not grab for the camera but admits she was heavily intoxicated on the night. It is more than likely her memory of what happened was affected by that intoxication. While I warn myself that the evidence of Griffin as a 15 year old boy must be viewed with caution, his evidence and the video footage do corroborate what Mr Price says had happened. It is clear that Mr Price was upset enough to ring the police and neither he nor Griffin were shaken in cross-examination that Ms Coonan had grabbed for the camera and in the process scratched Griffin and knocked his glasses off. I can be satisfied on the balance of probabilities that Ms Coonan did grab for the camera and connected with Griffin's shoulder and glasses in the process. I am also satisfied that Griffin's glasses were damaged in the process. I cannot however be satisfied that Griffin suffered any physical injury arising out of that altercation. He states he was "scratched" by Ms Coonan but conceded there was no broken skin.

In relation to the assault upon Mr Price I am faced with an oath on oath situation where the credibility and reliability of Mr Price and Ms Coonan has to be assessed. There is no video footage of Ms Coonan hitting on the shoulders and head Mr Price in the open handed manner he says she did, Ms Coonan denies the allegation and Mr Price was not shaken in cross-examination. The fact that Ms Coonan was clearly very angry and out of control and Mr Price calm throughout the altercation until the very end supports a finding that it is more than likely the assault occurred as described by Mr Price. Mr Price clearly felt it was necessary to restrain Ms Coonan for a reason and his explanation is that she had just attacked him. He did not make out the attack to be with any force but felt Ms Coonan would escalate in her behaviour if not restrained. Of course Ms Coonan can be heard to be saying "I'm not hitting you" in answer to Mr Price's "will you stop hitting me" that statement is made when Ms Coonan was aware of the camera and can only be admitted as evidence that she made the self serving statement not the truth of that statement. No weight can be placed on that statement.

Ms Coonan also made statements against her interest in her interview with Mr Bryce. After being given a caution normally associated with an interview regarding criminal charges and a caution, Ms Coonan says she is familiar with she participated in an interview which was recorded by Mr Bryce. A passage of that interview is recorded by Mr Bryce as:

Sh sd "No I don't think so. Mainly at Tom, not the son"

I sd "I understand you abused Tom at his front door and then threw punches at him"

Sh Sd "Can't remember. I remember him throwing me on the ground"

Even though she confirmed she did sign a copy of the transcript of the interview, Ms Coonan claims that Mr Bryce is mistaken in his record of her answers. She says her first reply was " No I don't think so my anger was mainly directed at Tom not the son". Even if Mr Bryce was mistaken in that record, the reply Ms Coonan says she made could still be taken as an admission to the punches although not as unambiguously.

Ms Coonan explains her responses as confused in that interview because her memory of events were hazy and she felt intimidated by Mr Bryce. The interview took place 11 days after the incident. Ms Coonan would have the Court accept that her recollection is better presently than at the time of the interview. That contention defies logic there is no suggestion that she was under the influence of any drug or alcohol on the day of interview, she was not tired or unwell and she had been given a caution that her responses would be recorded and could be used in a Court of law. Her suggestion that she thought she was being interviewed because NT Housing were finally hearing her side of the tree issue is unbelievable.

Ms Coonan was clearly embarrassed about her behaviour on that night but still angry with Mr Price about the windscreen of her car. Mr Price was clearly still angry about the incident and showed himself in the witness box to be a person easily angered when challenged and quite bullish in his responses in cross-examination. He was most indignant when it was suggested he could have just walked away from Ms Coonan and gone inside.

Of note however is Mr Price did not lose his temper with Ms Coonan at all on the footage until right at the very end when he tells her to leave his "fucken property".

Taking into account all of the evidence and even though it is clear Mr Price can be a difficult person and is prone to overdramatise matters when upset I find his evidence of the incident to be reliable and I am satisfied on the balance of probabilities that Ms Coonan did physically assault Mr Price in the manner described.

The next question to ask is did Mr Price suffer any personal injury. In his evidence he particularised his injuries as abrasions to the wrist sustained when falling to the ground with Ms Coonan, soreness in the temple and shoulders. He also claims his reading glasses were broken in the altercation.

Attached to Mr Bryce's affidavit is a statement apparently prepared by Mr Price claiming psychological and emotional effects of the assault. Attached to Mr Bryce's affidavit I must give that statement little weight particularly as Mr Price did not adopt that statement as a description of his injuries nor did he mention those "injuries" in his oral evidence. Mr Price did indicate he was frightened on that night because of threats made by Ms Coonan, however did not say he had lasting psychological problems. It is well established that a person must prove more than simple distress at the time of the complained incident to prove "injury". The soreness and abrasions in my view fall within the term "personal injury", however given the serious consequences of the operation of s 97(2), it is not my view that damage to clothing of a person should be included in the term "personal injury".

I am satisfied that Mr Price suffered a personal injury arising out of the altercation with Ms Coonan being soreness and abrasions to his wrist.

Did Ms Coonan intentionally or recklessly cause the personal injury or is she likely to cause personal injury to Mr Price or his son? Given my findings that Ms Coonan did assault Mr Price, I am satisfied that she recklessly caused the personal injury to Mr Price. I am satisfied she did not go to Mr Price's house to hurt him, however she was drunk and angry and by going to confront Mr Price. she was reckless as to what she might do with that anger. She lost her temper and hit Mr Price and by doing so she was reckless as to what injury she might cause him.

In addition to the actual physical harm, Mr Price and his son Griffin also claim Ms Coonan made threats to damage his property and to get others (15 mile mob) to come and rape Griffin. On the video footage Ms Coonan can clearly be heard to be stating Mr Price's windscreen would be smashed when he woke up in the morning and also that she would get the "15 mile mob to come down" however it is not possible to hear the balance of that sentence. Those words were spoken in a soft volume in contrast to the balance of her "conversation" with Mr Price which was loud and abusive. I am satisfied that the threat was made by Ms Coonan.

The question is whether that threat is enough to establish that Ms Coonan is likely to cause further personal injury to Mr Price and his son. These threats were made at the beginning of the altercation, while Ms Coonan was being held to the ground and just after she was released from the ground by Mr Price. Mr Price and his son claimed they were so fearful of Ms Coonan and her threats that they slept with weapons nearby that night and left Batchelor the next morning for a period of time.

There can be no doubt that Ms Coonan caused Mr Price and his son some anxiety that night. However that is not the question to be answered. The question to be answered is whether those threats showed that Ms Coonan was likely to cause further personal injury to Mr Price and his son.

The words were spoken by a drunk and highly emotional person, she was frustrated about the damage to her car and remains frustrated about the damage to her car. There is no evidence that she has any connections with the "15 mile mob" or who they might be or that they were people who would carry out the threat made. Since Mr Price and his son have returned to the property in Batchelor there have been no further incidents.

Given those circumstances I cannot be satisfied that Ms Coonan is likely to carry through on those threats made.

Does the finding that Ms Coonan recklessly caused the personal injury to Mr Price invoke a discretion to terminate the tenancy or once those matters are made out is it incumbent upon the Court to terminate the tenancy and make an order for immediate possession? While I was not referred to any authorities that considered this point in relation to s 97(2) or any of its equivalent sections, I was assisted by the reasoning of the full Court of the New South Wales Supreme Court in Scicluna v New South Wales Lands and Housing Corporation [2008] NSWCA 277. Their Honours discussed the issue of discretion when considering the application of s 64 of the Residential Tenancies Act (NSW). That section sets up a process by which a landlord could make an application to the Tribunal for a termination of tenancy. The subsection under consideration required the tribunal to be satisfied the landlord had established the ground for a notice of termination and that the circumstances justify the termination of the tenancy agreement. The words empowering the Tribunal in that section are:

"The Tribunal, upon application by a landlord …. is to make an order terminating the agreement if it is satisfied …"

Their Honours found that the powers in that case were not discretionary and therefore once the criteria were satisfied then there it was required to make the order. I respectfully agree with their honours in their reasoning the phrase "is to make an order" clearly shows a legislative intent that the court must make the order if it is satisfied as to the criteria.

In s 68 of the Residential Tenancies Act (NSW), the equivalent to s 97(2) of the Northern Territory Act, the legislature chose to use the phrase "the Tribunal may". The use of the permissive word "may" instead of "is to" in the same Act and the same part of that Act is an indication of a different intent of the legislature. Further given the more serious consequences of the operation of s 68, immediate termination and order for possession, and the broadness of the terms personal injury and recklessly it is clear that the legislature intended the Court to have a discretion whether to make the orders permitted under that section.

While there is no equivalent of s 64 of the Residential Tenancies Act (NSW) in the Residential Tenancies Act (NT) the reasoning still applies to s 97(2) and the word "may" creates a discretion in the Court whether to make the order for termination and possession.

In NSW Land & Housing Corporation v Bullman [2006] NSWSC 733 his Honour Associate Justice Harrison describes the criteria under s 68 of the Residential Tenancies Act (NSW) as a gateway provision:

"Firstly there is a gateway provision to be decided. That is the Tribunal has to be satisfied that the tenant has …intentionally or recklessly caused …..injury to one of the persons listed in section 68(1)(b)…..If the gateway provision is satisfied, the Tribunal the exercises its discretion whether the tenancy agreement should be terminated."

I respectfully adopt Justice Harrison's analysis of the operation of s 68 and apply it to s 97 of the Northern Territory Act.

If there is a discretion do the circumstances of the present case warrant an exercise of that discretion against Coonan? Having found there is a discretion, I must now consider whether that discretion should be exercised in favour of the applicant.

I again refer to Justice Harrison in NSW Land & Housing Corporation v Bullman [2006] NSWSC 733 who found:

"A s 68 order is contemplated in serious situations where immediate possession is warranted"

His Honour adopted the reasoning of the Tribunal in NSW Land & Housing Corporation v Adams [2004] NSWCTTT 80 in which the Tribunal said:

"Immediate termination indicates behaviour involved is of a serious nature and hence requires an urgent response"

I agree with the Tribunal and his Honour. The effect of an order for immediate termination and possession of a premises means the tenant is required to leave that premises immediately without any time to arrange relocation. The tenant could have young children and limited means which may mean the order causes the whole family to be put in a homeless state. The discretion to terminate under s 97(2) must be exercised judicially.

In the present case Ms Coonan is a single mother of seven children all under the age of 16 years. She works in Batchelor, a remote location, and requires accommodation in Batchelor to continue in that employment, her children attend school in the area. If the tenancy is terminated she will not be eligible to apply for public housing for two years and after that two years the waiting list for an appropriate house could be up to two years (as it presently is).

Both Mr Price and his son have now returned to the neighbouring property and there has been no further trouble between them and Ms Coonan. Prior to this incident there had been no trouble. Ms Coonan has applied to the CEO to be moved from the subject address.

It is clear from the evidence that Ms Coonan's behaviour on that night was an aberration. It was the culmination of 12 months of frustration at which she saw as Mr Price's failure to make good his promise to pay to fix her windscreen. Her behaviour was clearly unacceptable and created some anxiety in Mr Price and his son that night so much so that they left their house for a period of time. The degree of personal injury and how they were sustained is also a relevant consideration, in this case the injuries were minor and they were sustained in a situation which could have been avoided by Mr Price had he stayed inside his house and immediately called the police. If this behaviour was continuing or if there was a real likelihood of it continuing then an order terminating the tenancy and for immediate possession might have been justified however that is not the case.

In all the circumstances, it is my view the actions of Ms Coonan do not justify an exercise of the discretion in favour of the CEO.

I note that the CEO did make the submission that the fact the injuries sustained by Mr Price were minor should not persuade the Court not to make the order and I agree. If it were only the degree of injury relied upon to tip the scales against the CEO that would be unworkable. The Court would have to decide in each case what degree of injury is serious enough to warrant an immediate termination. However the seriousness of the injury is only one circumstance which should be considered and in my view the more serious the injury the more likely an order would be made depending on the circumstances.

In conclusion - Ms Coonan's actions on that night were unacceptable and reprehensible, she has caused minor personal injury to Mr Price and by that action has enlivened the discretion under s 97(2) of the Residential Tenancies Act. Nonetheless considering all the circumstances I am not satisfied the discretion should be exercised in the applicant's favour and I dismiss the CEO's application.