1. The landlord gave the tenant a breach of duty notice under section 208 of the Residential Tenancies Act 1997 alleging a breach of section 60 (1) and was entitled to do so.

1. The tenant must remedy the breach as specified:

The tenant must refrain from causing a nuisance and in particular must not abuse or insult or threaten occupiers of neighbouring premises. The tenant must refrain from causing a nuisance in the manner set out in this order for the duration of the tenancy agreement.

Warning to tenant under Section 212(4): If the order is not complied with you may be given a notice to vacate the rented premises.

1. IF lives at unit 10 in a block of 22 units. He has lived there since 24 February 2000.

2. On 24 June 2008 the Director of Housing, IF's landlord, served a notice of breach under section 208 of the Residential Tenancies Act 1997. This notice stated that IF was in breach of his duty under section 60 (1) of the Act. This section of the Act is set out below,[2] and it states that a tenant must not cause nuisance.

3. The notice of breach set out the following details:

"on or about the 2nd June 2008 at approximately 3.55pm you verbally abused an occupier of a neighbouring premises with obscene language. On or about the 27th may 2008 at approximately 3.45 pm you approached an verbally abused an occupier of a neighbouring premises in a threatening manner using obscene language, furthermore you could be heard loudly shouting & threatening an occupier of a neighbouring premises until approximately 6.10pm. On or about the 24th May 2008 at approximately 6.35pm you verbally abused an occupier of a neighbouring premises with obscene language. On or about 22 May 2008 at approximately 10.17pm you engaged in nuisance behaviour by repeatedly banging on a neighbouring property's front door".

1. The notice of breach required the tenant to "remedy the breach within 14 days after receiving this notice by ceasing such activities forthwith and to take action to avoid their reoccurrence at anytime in the future...". The notice stated that the tenant must not commit a similar breach again, and that if the tenant did not comply with the notice the landlord may apply to the Tribunal for a compensation or compliance order.

2. On 28 July 2008 the landlord applied to the Tribunal under section 209 [2] of the Act for a compliance order under section 212 [3]. The application stated that: "a compliance order is being sought, it has been reported that the tenant is still disturbing neighbouring occupiers despite being service a Breach of Duty Notice on the 24/6/2008 registered post number RD28904880, on the 24/7/2008 the tenant engaged in anti social behaviour by shouting abusive remarks to neighbouring occupiers at approximately 6.20pm till 7.30pm and then again at 8.30pm until approximately 10.00pm."

1. The proceeding was part heard, briefly, at Melbourne on 7 August 2008, and adjourned as the parties wished to make submissions. A further hearing took place on 8 October 2008. Ms Wiles, Housing Officer, appeared on behalf of the Director of Housing, and Ms Naryan of Tenants Union Victoria appeared on behalf of IF.

7. Ms Naryan for IF made submissions on IF's behalf that the application for a compliance order should be dismissed. The submission set out the following reasons.

1. IF disputed the substance of the Notice of Breach itself, that is he did not agree that he behaved in a way that caused a nuisance to neighbours;

2. Even if he had caused a nuisance to neighbours such that the Notice of Breach was correct, he had complied with the Notice because he did not commit any breach within 14 days of receiving the notice;

1. Under section 38 of the Charter of Human Rights and Responsibilities Act 2006 the landlord, the Director of Housing, was obliged to act in a way that is compatible with human rights, and it failed to do so when it served the notice of breach and applied to VCAT for a compliance order;

1. The Tribunal, in interpreting sections 208 and 209 of the Residential Tenancies Act 1997 should do so having regard to the Charter.

1. Ms Wiles, for the landlord, submitted that the wording of sections 208 and 209 is clear. Section 208 requires the person giving the notice to state that the person in breach must not commit a similar breach again. Compliance with a notice means that the breach is remedied within 14 days and a similar breach is not committed again. Ms Wiles submitted that there is no time limit on the requirement to refrain from committing a similar breach. Her submission was that it would be impermissible to read any time limit into section 208(d), given the clear language used.

2. Ms Wiles noted that the VCAT online system did not allow an applicant to apply for a compliance order unless the breach notice was at least 14 days old, suggesting that the requirement to comply goes beyond the 14 day period.

3. Ms Wiles said that the nuisance behaviour had not stopped or become less frequent; it was still ongoing and was very distressing and frightening to the neighbours. She said that many breach notices had been issued to IF during the course of this tenancy. She noted that IF had been transferred from his previous tenancy because of similar behaviour towards neighbours, and that a condition of his transfer was that he receive support from ARBIAS, the advocacy and support service for people with an alcohol related acquired brain injury. At the earlier hearing on 7 August 2008 Ms Wiles noted that extensive supports were available to IF.

Evidence given at the hearing about the alleged breaches

1. Mr LS lives next door to IF. He is also a tenant of the Director of Housing. He said that IF has a problem with alcohol. He described a pattern of contact with IF that had gone on since IF moved in. He said that he and his wife and ten year old son are very afraid of IF. He described some incidents that had occurred, including incidents involving serious physical and verbal abuse by IF, stalking, and threats of harm to LS' wife and child. [4]
2. LS said he had never verbally or physically abused IF, or caused any damage to his property, or harmed him in any way. He agreed that he did squirt the hose over the fence at IF, and call the police, on the day IF exposed himself to his son.

13. LS said he thinks that the police are tired of coming around because there is nothing they can do. He said he did not know why the police did not charge IF. He said that he had not taken legal action himself, for example to obtain an intervention order, because taking IF to court would not work and he just wanted to be left alone.

1. LS said that his family has been severely affected by IF's behaviour. He has experienced depression as a result. His wife is always very anxious about the threats and the stalking behaviour, and his son panics. LS and his wife do not let their son go out into the back yard at home for fear that IF will hurt him. They lock the back door when their son is at home. They were willing to undertake mediation but IF would not agree.

2. LS said that when IF has not been drinking he is a nice person.

3. Ms LM lived three units away from IF, but only about ten steps away because of the L shaped configuration of the block of units. She said that IF is very abusive when he is drunk, particularly to LS and his wife and child. If LS or his family are outside in their back yard IF goes out and yells abuse over the fence. He threatens to kill LS, or to have him killed. Ms LM gave evidence for LS in the intervention order hearing at the Magistrates Court, and afterwards IF came banging on her door. She took out an intervention order against him, but still is too scared to leave her house to visit her friend next door if IF has been drinking. Ms LM said that she is in fear for her life. She has asked the Director of Housing for a transfer. Her medication has been increased because of the stress caused by IF's behaviour, and she is having trouble sleeping. She said that after the last hearing, on 7 August 2008, IF was extremely abusive and threatening to LS while they were still in the Tribunal building.
4. IF, in response, said that LS is abusive to him, and that he has to call the police and the ambulance. He said that LS squirts him with the hose, and locks him out of his house. IF does not know how LS does this, but he has had to call a locksmith four times. IF said he's not home that much anyway. He is usually at the TAB then comes home and has a quiet evening at home most nights. IF said that he wants to be able to choose his neighbours. IF said he had some initial contact with ARBIAS when he moved house last time, but did not think he needed their services and so had not followed up the contact.

5. IF's friend, SW, said that LS is abusive to him and to IF, although he was unable to describe incidents in any detail. He said that he had never witnessed IF yelling at people at night. He agreed that with his hearing impairment he may not hear noise at night over the sound of his television set.

Written evidence from Darren Schwartz, HomeGround Services

1. Mr Schwartz, Outreach Support Worker with HomeGround Services (Social Housing Advocacy and Support Program) provided Mr LS, his client, with a letter to be submitted to the Tribunal. I accepted this letter as evidence to be taken into account, although it carries less weight than sworn oral evidence, as it was not possible for Mr Schwartz to be cross examined as to the contents of the letter. The letter noted that HomeGround Services had provided support to LS in his dispute with the tenant IF, and his attempts to have the matter dealt with by the Office of Housing. The letter stated in part that " ...Mr S has consistently demonstrated a friendly, co-operative and rational demeanour. He has also exhibited great patience with both the OOH and his neighbour despite the fact that the alleged nuisance behaviour has occurred over a 7 year period and has significantly impacted on him and his family". Mr Schwartz further noted that after the VCAT hearing on 7 August 2008, at which he was present "... Mr S was threatened by his neighbour in the court room several times. Mr S did not respond to the threats and remained calm and polite at all times."

2. In order to decide whether or not to make a compliance order, I need to ask the following questions:

• Is the notice valid; does it contain all the relevant particulars set out in section 208?
  • Did the conduct complained of occur?
  • Does the conduct complained of breach a duty provision of the Act?
  • Has the tenant (IF) failed to comply with the notice?

I will address each of these questions in turn, and, in answering the last one, will address the submissions made on behalf of the tenant.

Is the notice valid; does it contain all the relevant particulars set out in section 208?

21. To be a valid notice, the breach of duty notice must contain all the particulars set out in section 208(2). I find that it does contain all relevant particulars. It specifies the breach, gives details of the loss or damage caused by the breach, requires the tenant to remedy the breach, states that the tenant must not commit a similar breach again, and states that if the notice is not complied with an application may be made to the Tribunal for a compliance order. It is in writing, it is addressed to the tenant, and is signed by the agent of the landlord, to whom the duty is owed.

1. I am satisfied on the balance of probabilities that the conduct complained of did occur. LS was a calm, clear and compelling witness. He was able to recall specific incidents, including the incidents described in the notice of breach and the application for a compliance order. His evidence was supported by that of Ms M, who was not in the hearing room when LS gave evidence and did not hear what he said. Ms M, for reasons she explained, could not recall exact dates, but she remembered sufficient detail about the incidents described that they were recognisable as those described by LS and in the notice and application. LS' evidence was further supported by the letter from Darren Schwartz, which described LS as friendly, co-operative, rational and patient.

23. IF was not clear in the giving of his evidence. He could not remember much of the incidents described, and was very unclear and vague in making his counter allegations against LS. SW gave evidence in support of IF, but he was also very unclear in his recollections, and agreed that his serious hearing impairment limited his awareness of what took place around the block of units.

Does the conduct complained of breach a duty provision of the Act?

1. The conduct complained is a breach of sections 60 (1) and 60(2) of the Act. These are duty provisions of the Act. This notice of breach is based on section 60(1) only.

Has the tenant (IF) failed to comply with the notice?

25. This is the question that raised the most detailed and complex issues at the hearing, and I have considered it carefully. I find that IF did fail to comply with the notice, and I set out my reasons in the context of the last three of the four submissions raised by the tenant's representative.

IF did not commit any breach within 14 days of receiving the notice; was he therefore in breach, or not?

26 On behalf of IF, his representative, Ms Naryan, submitted that IF had not committed any breach of the notice. The notice was served on IF on 24 June 2008. The first recorded breach of that notice was 24 July 2008. (It is noted that there have been many subsequent breaches, according to the evidence.) Ms Naryan argued that the breach had to occur within 14 days to represent a breach of that notice, and that any subsequent breach could give rise to a new notice of breach, but not an application for a compliance order.

27. As set out above at paragraph 4, the notice of breach required IF to "remedy the breach within 14 days after receiving this notice by ceasing such activities forthwith and to take action to avoid the reoccurrence in the future." This is in accordance with section 208, which states that the notice must require the person to remedy the breach within 14 days, and must state that the person must not commit a similar breach again. The question raised by Ms Naryan was this: is it a breach of the notice if the tenant commits a similar breach, though not within 14 days. I find that in this case it is.

1. I make this finding taking into account the Tribunal's obligation to interpret legislation in light of the Charter for Human Rights and Responsibilities Act 2006, (the Charter), and I set out below at paragraphs 32 to 47 the process by which I have taken the Charter into account.

2. These provisions in the Residential Tenancies Act 1997 are intended to provide a mechanism by which parties to a residential tenancies agreement can be required to comply with the Act_._ There are clear duties set out in sections 59 to 71 of the Act, and sections 208 and 209 set out a means for ensuring that they are capable of being enforced. If a tenant or landlord fails to act in accordance with his or her duties, the sections provide a means by which action can be taken by the person to whom the duty is owed. Sometimes the breach of duty is a single incident or action, such as a tenant installing a fixture without the landlord's consent, or a landlord failing to provide locks for the doors. Then section 208 requires compliance within 14 days. This involves a relatively straightforward application of the provisions. The person who has breached the duty has 14 days to remedy the situation. To extrapolate from the examples above, the tenant must remove the fixture, or the landlord must provide the lock - within 14 days. A compliance order could not be sought until the 14 days had passed. It is only if the action has not been taken when the fourteenth day has come and gone that there can be said to have been a breach of the notice. If the breach has been remedied by the end of the fourteenth day, then the problem is solved.

3. It is more difficult when the remedy requires the person to not do something, or to stop doing something. Section 208 does, however, envisage that some breaches of duty may not be single incidents. Section 208 (2) (d) requires that the notice specify that the person must not commit a similar breach again. When a tenant is, for example, repeatedly causing a nuisance, or a landlord is, for example, repeatedly failing to take all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises, it must be possible for effective action to be taken requiring compliance with the Act. What is being asked of parties to tenancy agreements by sections 208 and 209 is nothing beyond the ordinary provisions of the Act. In a case such as this, I do not consider that it is a reasonable interpretation of the section to say that a breach of the notice is only a breach if it occurs within the first 14 days. This would mean that the tenant causing the nuisance, or the landlord interfering with the tenant's quiet enjoyment, could begin again do so every 15 days, leaving no effective way for the other party to take action to exercise their rights. Indeed it could be said that there is no breach if the nuisance behaviour occurs within the first 14 days after the notice of breach is received, but only after this grace period has passed.

4. There will be circumstances where a subsequent breach is not sufficiently similar to that described in the notice, or so much time has passed, that the person breaching could not be expected to consider him or herself still bound by the notice of breach. I do not consider this situation to fall into that category. The notice of breach given to Mr IF clearly warned him that he should not abuse or threaten his neighbours, and he did so again within 4 weeks, maintaining a long and distressing pattern of behaviour.

32. Since 1 January 2008 this Tribunal, and other Victorian courts and tribunals, must consider the Charter of Human Rights and Responsibilities Act 2006 (the Charter) when interpreting legislation.

1. Section 32 (1) of the Charter provides that:

32 (1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

1. Section 32 therefore requires that a human rights consistent interpretation be adopted when it is possible to do so, having regard to the language and purpose of the relevant statutory provision.

2. The statutory provisions at issue are sections 208 and 209 of the Act. As discussed above, I have concluded that these sections mean that IF's nuisance behaviour, engaged in four weeks after the service of the notice of breach, constitutes a breach of the notice, and that an application for a compliance order can be heard. I have come to this conclusion having undertaken an analysis for the purposes of section 32 of the Charter, and having asked the following questions.

1. The tenant has a right that is engaged with, or intruded upon, by the issuing of a notice to vacate under section 208 and the making of an application under section 209 of the Act. The right is set out in section 13 of the Charter, which states in part that:

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; ...

IF has this right, and it is affected by this proceeding. A compliance order simply requires IF to comply with the Act. If, however, IF breaches the compliance order, then he faces the risk that an order for possession may be sought, and that it may be granted. This is a potential interference with his privacy and his home, and a potentially serious one in the context of the current acute housing shortage.

37. The other people whose rights under section 13 of the Charter are affected are the tenants of neighbouring premises, specifically LS and his family. They have a right to privacy. The intrusion on this right for them is more than minor. Serious breaches of this right were described, including threats of injury and death, and incidents of actual harm and injury. They were not complaints of noise, for example, music turned up too loud or raised voices - the kinds of interferences with privacy that all of us who live in densely populated cities often have to accommodate. They were serious and targeted intrusions upon privacy, with potentially serious consequences. According to their advocate, these tenants have lived with this serious intrusion of privacy for seven years, patiently and repeatedly asking their landlord to intervene. In addition the child of LS has a right under section 17 of the Charter. Section 17 gives him the right "without discrimination, to such protection as is in his or her best interest, and is needed by him or her by reason of being a child." LS gave evidence that IF exposed himself to the child when he was in his back yard playing, and that on at least one recent occasion IF said to the child that "your dad is f...ing dead meat - we are going to get him killed." The child is also subject to the generalised threats and insults that are passed over the fence by IF. LS gave evidence that his son was frightened, and experienced a regular sense of panic. His parents experience depression and anxiety as a result of the interactions with IF, which - according to the evidence - affect the family's capacity to function well. These are serious intrusions on the rights this child has under section 17.

1. These rights pull against each other in this case.

1. Having determined that a right or rights are engaged, section 7 of the Charter then requires that I ask whether a limit or intrusion on the right is justified. It states in part that:

(1)A human right my be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society...taking into account all relevant factors including -

(b)the importance of the purpose of the limitation; and

(d)the relationship between the limitation and its purpose; and

(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

1. The first question raised by section 7 is this: is the limit or intrusion on the right justified, or in other words, is the limit or intrusion sought in order to achieve a legitimate purpose? This means I needed to consider the purpose of sections 208 and 209 of the Act. As discussed above they give a person to whom a duty is owed under the Act a remedy when that duty is breached. The purpose of the sections, in the context of the facts of this case, is to require IF to refrain from causing a nuisance to his neighbours.

2. On the face of it, sections 208 and 209 represent a reasonable limitation on the tenant's rights. The landlord also has duties under the Act. One of them is to provide quiet enjoyment to its tenants. This duty is set out in section 67 of the Act. In this case, the person experiencing the detrimental effects of the tenant's nuisance behaviour is also a tenant of the landlord, to whom the landlord owes this specific duty. There may be serious consequences for the landlord if it fails to fulfil this duty. [5]

42. The next question raised by section 7 of the Charter is this: were there any less restrictive means reasonably available to achieve the purpose? This requires an assessment of proportionality. I accept the evidence of the landlord that extensive supports have been offered to IF. I accept the evidence of LS and Mr Schwartz of HomeGround that LS has been as patient and willing to mediate as any person could reasonably be expected to be. I accept the evidence of LS and LM that the breaches by IF have been extremely distressing, frightening and disruptive, and that they have had profound consequences for IF's neighbours. In making these findings, I note the evidence that IF does not behave in breach of the Act when he has not been drinking, that LS reports IF to be a nice person when he has not been drinking, and that IF was able to refrain from breaching the Act for at least 14 days.

I note that the orders sought, and made, do not affect the tenant's right to remain in the property; he is not evicted by the orders. The orders made simply require IF to comply with the Residential Tenancies Act 1997. For clarity and certainty, particularly for IF, the order made requires that IF refrain from the nuisance behaviour for the duration of the tenancy. IF does face the possibility of an application for possession of the property being made by the landlord if he breaches the order, but it is possible that there would be options available to the landlord other than seeking possession. IF may simply comply, or he may now accept services and support. Transfers of tenancy may be achievable. These are decisions for the landlord, who may be assisted by consultation with all the tenants and their advocates. I am well aware that these are difficult decisions; that the challenges faced by IF and his landlord are complex and not easily resolved.

I note, also, that if the orders were breached and an application for possession made, a further careful process of reflection and decision making under sections 248 and 332 of the Residential Tenancies Act would take place at the Tribunal. [6]

I agree that there may be a different interpretation of the operation of section 208 in the light of different facts, and in particular if a person caused a nuisance in a way that was not manifestly similar to the nuisance described in the notice, or if the repeat of the nuisance took place a very long time after the notice of breach was served.

In this case, I find that the breach committed on 24 July 2008 was the same as, or strikingly similar to, the previous breaches. I find that the period of time that has passed is not so long as to make it unfair or unlikely that the tenant would be aware that he was breaching the notice.

In making the finding I have made at paragraph 27, that IF has failed to comply with the notice of breach, I have made this careful assessment of proportionality and find that there was no less restrictive interpretation of sections 208 and 209 available or appropriate in these circumstances.

Is the outcome affected by the landlord's obligations, if any, under the Charter of Human Rights and Responsibilities Act 2007 (the Charter)?

1. The tenant has made extensive and interesting submissions about the landlord's obligations under the Charter. Essentially the tenant has submitted that the landlord is a "public authority" under section 4 of the Charter, and is therefore required by section 38 to act compatibly with the Charter. It must do so, submitted the tenant, when exercising its powers under the Housing Act 1983 with respect to the acquisition, disposal, development and management of land. In managing this tenancy, including making the decisions to serve a notice of breach and to apply for a compliance order, the landlord exercised these powers. According to the tenant, it did not do so in a way that was compatible with the Charter.

2. I agree that the Director of Housing is a public authority as defined in section 4 of the Charter. This is clearly the case; the Director of Housing is a public official, and the Office of Housing (a unit of the Department of Human Services) is an entity established by a statutory provision that has functions of a public nature. Section 38 of the Charter states that "it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right."

50. After careful reflection, I do not consider that I have the jurisdiction to go behind the application made by the landlord, and review whether or not the landlord acted in a Charter compatible way in reaching the decision to make the application. In relation to this proceeding, in this jurisdiction, I can only make decisions about the provisions of the Residential Tenancies Act 1997 and the Victorian Civil and Administrative Tribunal Act 1998. The Residential Tenancies Act 1997 is very detailed. It provides jurisdiction for a wide range of decisions about residential tenancies, boarding house residencies, and caravan park residencies. It makes no distinction between private and public tenancies. It does not provide for the review of decisions made under the Housing Act 1983 by the Director of Housing. [7] Any challenge to the decisions of the Director of Housing made under the Housing Act would need, I think, to be brought in a different jurisdiction. The conduct of government bodies in the exercise of their decision making power is reviewable under the Administrative Law Act 1978. I note the decision of Sabet v. Medical Practitioners Board of Victoria[8], in which Her Honour Justice Hollingworth stated that "The Charter was not intended to create new causes of action against public authorities, additional to those already available outside the Charter - which, in this case, are available to Dr Sabet under the ALA. Rather, s39 of the Charter provides that if a person otherwise has a right to seek relief or remedy on the basis that a public authority's decision was unlawful, then the person may seek that same relief or remedy on the ground that the act or decision was unlawful because of the Charter."[9]

1. I have reached the conclusion that I do not have the jurisdiction to, in effect, review an administrative decision made by a government body. It may be that this analysis is wrong, and that if the decision to apply to the Tribunal were not Charter compliant then it would be fundamentally unlawful. In any event, in this case, the agent for the Director of Housing gave considerable evidence at these hearings about the process of the decision it made to serve the notice of breach and to apply for a compliance order. The nuisance behaviour of IF had been occurring for several years. Many other steps had been taken to attempt to resolve the problem caused to IF's neighbours, who were also the landlord's tenants. These included, according to the evidence, the offering of support services to IF. LS had also sought a mediated resolution. IF had been transferred previously from another property because of similar behaviour which presented similar problems for neighbours. The landlord described itself as being well aware of its obligation to provide quiet enjoyment to its other tenants, and noted that it had taken this obligation into account. The landlord was well aware of the impact of the situation on LS and his family, and of the right of LS and his family to privacy. The concerns of LS had been repeatedly reported to the landlord, and documented. Of all the legal options that might have been available to the landlord under the Residential Tenancies Act 1997, including possibly an application for possession for danger or an application for possession for successive breaches, the course of action adopted was the least restrictive of IF's rights. These are the kinds of considerations that would need to be taken into account by a public authority in the making of a Charter compliant decision. Specifically, these are the matters a public authority would need to consider in an assessment of the section 7 factors in relation to the rights engaged in the decision making process.

2. For all the above reasons, I make the order set out at page 1.

[1] The above orders are the result of the original order dated 3 November 2008 and a correcting order made on 18 November 2008.

[2]. 1. "S60(1) A tenant must not use the rented premises or permit their use in any manner that causes a nuisance."

[2] "S209 If a breach of duty notice is not complied with, the person who gave it may apply to the Tribunal for a compensation order or a compliance order."

[3] "S212 (1) In the case of an application under section 209, if the Tribunal is satisfied that the person was entitled to give the notice and that it was not complied with it may make any or all of the following orders-

(a) the person in breach must remedy the breach as specified in the order;

(b) the person in breach must pay compensation as specified in the order;

(c) the person must refrain from committing a similar breach...."

1. [4] The incidents described at the hearing by LS included once when IF threw a log of wood over the fence and hit LS' wife on the head. LS said that he bought his son a small swimming pool but had to put it away and not allow him to use it. He described an occasion when IF exposed himself to the child. LS called the police, but when they came IF was in his underwear and so drunk that the police said they couldn't do anything. LS said that every time his wife leaves for her work IF stalks her, walking behind her and calling her "bitch." Once IF said to LS' son "your dad is f...ing dead meat - we are going to get him killed." There have been many threats of death. LS said that IF calls LS a "f...ing Columbian" and yells out that he is going to have LS killed. After the first hearing of this case, on 7 August 2008, LS had to call the police because IF was yelling out that he was going to have LS killed. LS said that IF yells abuse and threats over the fence, and so they have to stay inside and keep the back door locked.. Sometimes IF's friend SW sits out the front with IF and also yells out abuse at L. LS said that last night - the night before this hearing - a neighbour died and IF, who had been drinking, was yelling out that "the f...ing Columbian killed her."

[5] I note that the Supreme Court of New South Wales in Department of Housing v Consumer, Trader and Tenancy Tribunal and Anor (2003) NSWSC 150 (31 March 2003) affirmed a decision of the Consumer Trader and Tenancy Tribunal about an equivalent provision in the NSW Act. That decision ordered the Department of Housing to pay compensation to a tenant for whom it had failed to provide quiet enjoyment in similar circumstances.

[6] In particular I note that under s 332 Tribunal must not make a possession order if it is satisfied that

the failure to comply with an order of the Tribunal was trivial or has been remedied as far as possible; and there will not be any further breach of the duty; and that the breach is not a reoccurrence of a previous breach of duty.

[7] The only reference to the Housing Act occurs at section 80, which relates to a declaration that a property is unfit for human habitation.