(b) to the extent that the tribunal might have implicitly determined such question, it was wrong in law and that it applied the wrong test as to the meaning of the word ' permit ' in s 22(1)(b) of the Act.
3 The tribunal produced an admirably detailed and reasoned decision which acknowledged that the Department was in an invidious position but nonetheless held that its failure to issue proceedings to compel the tenant to comply with the terms of the agreement was erroneous and ordered compensation.
4 The facts, which cannot be in dispute in this Court, are to the effect that there was a breach of the tenants right to the quiet enjoyment and the right to reasonable peace, comfort and privacy. It was consequentially suggested that the failure of the Department, as landlord, to remedy this situation meant there was a breach of the tenancy and that compensation was therefore payable.
5 The tribunal held that there was good reason to think that if there were 'concurrent proceedings' in the tribunal, the behaviour of the adjoining tenant would have been modified.
6 The proceedings in this Court arise under s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), which allows an appeal to the Supreme Court against a decision with respect to a 'matter of law'.
7 This is obviously a restrictive provision for any review of the tribunal's decision and I am bound by the decision of the New South Wales Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 as to what is a question of law, as opposed to a question of fact.
8 In Azzopardi, it was stated by Glass JA, with whom Samuels JA agreed (Kirby P dissenting), that an illogical, perverse or completely unreasonable finding of fact was nevertheless within the power of a decision maker to make and could not amount to an error of law. There was no suggestion from either counsel that this did not remain the law of this State and it has been subsequently applied by the Court of Appeal: Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247; Bowen-James v Delegate of the Director-General of the Department of Health (1992) 27 NSWLR 457; Bruce v Cole (1998) 45 NSWLR 163 (though Azzopardi seems to have been questioned in the Federal Court: C A Ford Pty Limited (t/as Caford Castors) v Comptroller-General of Customs (1993) 123 ALR 623 at 626-627 per Davies J).
9 However, as was noted by Mason JA, as he then was, in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557:
…where a tribunal at first instance fully and comprehensively states all the facts requisite for the decision, and poses for decision the question whether those facts fall within the meaning of a statutory provision, the question may, in general, be regarded as a question of law. But it sometimes happens that a tribunal at first instance states a number of facts, without making findings on all the issues of fact relevant to the final decision in the case. The decision may then depend on an unexpressed finding of fact, with the consequence that where an appeal lies from the decision on a question of law only, it is not possible to conclude that the error asserted by the appellant is one of law.
10 This reasoning was affirmed by Mahoney JA in Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 265.
11 In Hope v Bathurst City Council (1980) 144 CLR 1 at 7 Mason J, as he then was (and with whom Gibbs and Stephen JJ, Murphy J and Aiken J agreed), said:
Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law.
12 In that case Mason J was prepared to find an error of law in the approach of the trial judge, and the Court of Appeal, in the construction of the word 'business', for dismissing the claim and appeal upon the basis that the meaning of an ordinary English word was a question of fact.
13 In Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450 Gleeson CJ said:
Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law…However, not all questions involving mixed questions of law and fact are, or need to be susceptible to one correct answer only. Not infrequently, informed or experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138:
[I]f the facts inferred…from the evidence…are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law.
14 It seems that, where all material facts have been found, the question as to whether the case comes within a statutory enactment, properly construed, is a question of law rather than fact: see also Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97.
15 However, it is unclear on the current state of authority, if the tribunal failed to expressly define for itself the meaning of the word 'permit', whether this amounts to an error of law or fact and whether such an error, if committed, can be corrected by a court of review.
16 The tribunal was required to determine whether the incidents involving the harassment and intimidation of the second respondent and his wife by their neighbours was a breach of the quiet enjoyment they were statutorily entitled to have preserved. In reaching that decision it was necessary for the tribunal to take into consideration whether the Department was responsible for these acts, either directly (in the sense that it might 'interfere' or 'cause' interference) or indirectly (in the sense that it did 'permit' interference).
17 This secondary consideration would involve the tribunal in an analysis of whether, on the facts presented to it, it was open to find that a breach occurred and whether this breach occurred with the permission of the Department. Since both considerations involve the application of facts found to a legal standard (that is, 'permission' pursuant to the Act) any mistakes made by the tribunal in this respect may arguably amount to an error of law. Nevertheless, the Court is limited in how it can approach this appeal since the findings of fact made by the tribunal, including the meaning of an ordinary English word like 'permit', are immune from review: Azzopardi; see also Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126.
18 The applicant's case before the tribunal was that the Department failed to take adequate steps, particularly under 'good neighbour' policy guidelines published by the Department, to restrain the actions of the neighbouring tenants.