Ferguson v Mission Australia - [2024] NSWCATAP 183 - NSWCATAP 2024 case summary — Zoe

NSWNSWCATAP

Ferguson v Mission Australia

[2024] NSWCATAP 183

NCAT Appeal Panel|2024-09-04

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2024-09-04

Catchwords

(1936) 55 CLR 499 Italiano v Carbone & Ors [2005] NSWCA 177 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
(2002) 209 CLR 597 Re Minister for Immigration and Multicultural Affairs
Ex parte Lam [2003] HCA 6
(2003) 214 CLR 1 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Stead v State Government Insurance Commission [1986] HCA 54

Source

Original judgment source is linked above.

Catchwords

(1936) 55 CLR 499 Italiano v Carbone & Ors [2005] NSWCA 177 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11(2002) 209 CLR 597 Re Minister for Immigration and Multicultural AffairsEx parte Lam [2003] HCA 6(2003) 214 CLR 1 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Stead v State Government Insurance Commission [1986] HCA 54(1986) 161 CLR 141 Sullivan v Department of Transport [1978] FCA 48

Judgment (25 paragraphs)

[1]

REASONS FOR DECISION

This is an internal appeal made under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), from a decision of the Consumer and Commercial Division of the Tribunal.
The dispute concerns a residential tenancy agreement between Mission Australia (which is the respondent to the appeal), and Ms Ferguson (who is the appellant in the appeal). For convenience, in these reasons we will refer to the appellant as "the tenant", and to the respondent as "the landlord".
On 20 June 2024 the Tribunal made orders under s 87 of the Residential Tenancies Act 2010 (NSW) (the RT Act) terminating the parties' residential tenancy agreement on the ground that the tenant had breached the agreement.
The tenant now appeals against that decision and seeks orders setting aside the Tribunal's decision and remitting the matter to the Tribunal, differently constituted, for rehearing.

[3]

Background and Tribunal proceedings

The relevant background to the appeal is as follows.
On 20 March 2000 the parties entered a residential tenancy agreement (the tenancy agreement) in respect of premises in Coffs Harbour, New South Wales (the premises).
The tenant is a 58 year-old Aboriginal woman. The landlord is a social housing provider.
On 27 September 2023 the landlord served a notice of termination on the tenant (the termination notice) on the ground of breach of the tenancy agreement. The termination notice relevantly stated: You have breached your Residential Tenancy Agreement which states: 7.1 Not to use the residential premises, or cause or permit the premises to be used, for any illegal purpose; and 7.2 Not to cause or permit a nuisance; 7.3 Not to interfere, or cause or permit interference with, the reasonable peace, comfort or privacy of neighbours; 12.1 Keep the premises reasonably clean; and 12.3 Not to intentionally or negligently cause or permit any damage to the premises; and 29.1 The tenant agrees to give the landlord written notice within 28 days of any change of household members or the number of persons residing n the premises for longer than 28 days; … 36 The tenant shall not light a fire to burn household or garden refuse or any other matter or for any like purpose at any time.
The date for termination specified in the termination notice was 13 October 2023.
On 18 October 2023 the landlord commenced proceedings in the Tribunal seeking an order under s 187(1)(b) of the RT Act requiring action in performance of the tenancy agreement, and an order under s 87 of the RT Act for termination of the tenancy agreement on the ground that the tenant had breached the agreement.
On 15 November 2023, in the absence of the tenant, the Tribunal made the following orders: 1. The tenant must comply with the terms of residential tenancy agreement by not to cause or permit a nuisance or interfere or cause any interference with the reasonable peace, comfort or privacy of any neighbour of the tenant. 2. The tenant must comply with the terms of the residential tenancy agreement by keeping the residential premises in a reasonable state of cleanliness both inside and out. 3. The tenant must comply with the terms of the residential tenancy agreement by not permitting additional occupants to reside on the premises without the landlord's consent. 4. If the orders are not complied with by the tenant then at any time before 15 May 2024, the landlord may request the re-listing of this application to determine whether tenancy should be terminated.
On 22 December 2023 the landlord requested that the matter be re-listed for a further hearing.
On 10 January 2024 the matter came before the Tribunal in a group list hearing. The Tribunal adjourned the hearing because the tenant did not attend the hearing.
On 24 January 2024 the matter was again listed in a group list hearing. The parties had settlement discussions but were unable to resolve the dispute and the matter was again adjourned.
On 15 May 2024 the matter came before the Tribunal for a final hearing. The tenant was represented by Mr Webb from the Northern NSW Aboriginal Tenants Advice and Advocacy Service. The landlord was represented by Ms Kinchela who is a housing officer employed by the landlord.
The evidence relied upon by the landlord in the first instance proceedings included: 1. A document prepared by the landlord setting out a chronology of events; 2. Copies of the termination notice and the residential tenancy agreement; 3. Copies of various letters from the landlord to the tenant; 4. A document entitled "Summary of Incidents" prepared by the landlord which listed 37 alleged incidents involving the premises between 3 August 2023 and 5 February 2024. 5. A photograph of the exterior of the premises; 6. Oral evidence provided by Ms Kinchela; and 7. Oral evidence provided by a neighbour, Mr Glen Simpson.
The landlord also relied on four documents typed on the letterhead of the landlord containing information stated to have been provided by four unidentified persons described as "neighbour 1", "neighbour 2", "neighbour 3" and "neighbour 4". The parties and the Tribunal referred to those documents as "witness statements". However, they are more accurately described as records of interview. Each record of interview contains a list of questions, followed by a record of the neighbour's response. The records of interview record that the date of interview for neighbours 1, 2 and 3 was 22 December 2023, and that the date of interview for neighbour 4 was 3 January 2024. At the hearing it became apparent that Mr Simpson was "neighbour 4".
The evidence relied on by the tenant in the first instance proceedings was oral evidence provided by the tenant and by Mr Webb, and a letter from Many Rivers Family Violence Protection Service dated 21 February 2024.
On 20 June 2024 the Tribunal published its reasons for decision and made orders for immediate termination of the tenancy and possession of the premises, and for the order for possession to be suspended until 21 July 2024.
On 17 July 2024 the Appeal Panel made an order suspending the operation of the order for possession until the earlier of further order of the Tribunal or finalisation of the appeal.

[4]

The Tribunal decision

The Tribunal provided detailed and thorough reasons for decision (the reasons).
In the reasons the Tribunal states that it is satisfied that the termination notice was validly served in accordance with ss 82, 87 and 223 of the RT Act. The reasons go on to say at [23] - [24]: The Tribunal finds that the breach is established. The Tribunal is satisfied on the evidence before it that the allegations concerning the tenant and or her occupants conduct have been proven by the landlord. The Tribunal is satisfied that there have been many incidents involving unauthorised persons occupying the premises causing a nuisance and interfering with the reasonable peace and comfort of the neighbours. The incidents have been continuous and ongoing since August 2023 until the most recent incident in May 2024. The sworn evidence of the landlord and Mr Simpson support a finding that the persons residing at the premises have breached section 51(1)(c) (e) and (2) of the RT Act, specifically: (a) the Tribunal is satisfied that there have been multiple and continuous incidents since 3 August 2024 [sic] until the week before the hearing, when numerous neighbours have contacted the landlord complaining about abusive behaviour from persons residing at the premises. The neighbours have also contacted the NSW Police on several occasions. (b) The Tribunal is satisfied based on the inspection of the landlord on 24 August 2023 and 28 September 2023 and 20 October 2023 as to the condition of the property (c) The Tribunal is satisfied that there was sufficient evidence before it on 15 November 2023 to grant to the landlord a specific performance order. The Tribunal finds despite the specific performance order being issued to the 15 November 2023, complaints from the neighbours continued. The tenant failed to engage with the landlord or support services to try to rectify the breaches. The tenant has only recently made contact with support services.
The reasons proceed to make 18 findings of fact about the conduct of the tenant and her occupants during the period after the specific performance order was made by the Tribunal on 15 November 2023. The reasons then refer to s 54 of the RT Act which renders a tenant vicariously responsible to the landlord for any act or omission by any other person who is lawfully on the residential premises. The reasons state at [28]: The Tribunal is satisfied that it is the tenant's daughter who is an occupant in the property, together with other persons who are invited onto the property by the tenant's daughter that have caused the breaches raised in this matter.
The reasons then refer to s 87(5) of the RT Act which requires the Tribunal to consider if the breach by the tenant is, in the circumstances, sufficient to justify termination of the residential tenancy agreement and say: Having regard to s 87(5) of the RT Act the Tribunal is required to consider if the breach by the tenant is, in the circumstances sufficient to justify termination of the residential tenancy agreement. The Tribunal finds that the breaches are sufficient to justify termination of the agreement because they have involved: (1) Interference with the reasonable peace and comfort of four of the neighbours. The yelling, swearing and abusive behaviour has occurred on many occasions, often at all hours of the night and day. (2) The conduct in question has resulted in the NSW Police being called to the property on five occasions since the Specific Performance Order was granted in November 2023. (3) The Tribunal is satisfied that the breach is significant having regard to the number of complaints that have been made by different neighbours and the NSW Police having to attend the property. (4) The Tribunal is not aware of any previous breaches, but finds that the breach was established in November 2023. Whilst it can be argued that the matrix of breaches on their own do does not justify termination, taken as a whole, considering the number of complaints and the continuing and ongoing nature of the complaints, the Tribunal is satisfied that the breach has been made out, the Tribunal finds that in the circumstances a termination order is justified.
The reasons also address each of the factors in s 154E of the RT Act, which the Tribunal is mandated to consider when deciding whether to make a termination order for social housing tenants. The reasons then say (at [35]): Taking into account the factors in s 154E of the RT Act the Tribunal finds that the circumstances of the case justify termination of the tenancy agreement.
The reasons conclude by referring to the tenant's evidence regarding her circumstances and the steps she has taken to address the breaches, stating at [37] - [40]: In making the above finding, the Tribunal has considered the evidence that the tenant has been referred to Many Rivers Family Violence Prevention Legal Service for case management. The service has completed an intake for the tenant who identified issues with her adult children as a source of stress and worry. Ms Lucas from the Service has advised that they are assessing what supports can be put in place for the tenant to safely maintain her tenancy and comply with Tribunal orders. This letter was written on 21 February 2024; however, little evidence has been provided by the tenant as to what support services are now in place to ensure that her children's behaviour is no longer a risk to her tenancy. The tenant's issues with her adult children must be assessed against her obligations under the residential tenancy agreement and the landlord's rights and obligations under the RT Act. The tenant's submissions refer to the risk of the tenant becoming homeless if the tenancy is terminated. Little evidence has been provided to support the statement that the tenant is at risk of homelessness if the tenancy is terminated. Other than stating that the tenant is on Centrelink payments, there is no documentary evidence in respect of her financial circumstances and her affordability relating to the private rental market in Coffs Harbour or alternative housing options. Without any detailed evidence of both the tenant's financial affairs and all other possible housing options for proper consideration the Tribunal simply could not be satisfied what alternative accommodation the tenant could or could not potentially afford or whether she is or is not susceptible to becoming homeless. The Tribunal accepts that the tenant has been in social housing and in this property since 2020 [sic]. The Tribunal accepts that stable accommodation for the tenant is important but there is nothing that identifies that her stable accommodation has be in her current premises or location. Again, any hardship or inconvenient that the tenant may experience in finding alternate accommodation must be assessed against her obligations under the residential tenancy agreement and the landlord's rights and obligations under the RT Act.

[8]

Relevant principles

The Tribunal has a duty to conduct its hearings in a procedurally fair manner and to take such measures that are reasonably practical to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s 38(2) and s38(5)(c) of the NCAT Act).
Procedural fairness requires that both parties have a reasonable opportunity to present their case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40]; Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343.
What is 'a reasonable opportunity to be heard' will vary from case to case. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
Basten JA addressed the same issue in Italiano v Carbone & Ors [2005] NSWCA 177 at [88]: An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]: "A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37].
A failure to provide procedural fairness ordinarily means that there has been an erroneous decision which should, under s 81 of the NCAT Act, be set aside or quashed, with the appeal allowed, save in rare circumstances, such as where the breach would have made no difference to the outcome of the case: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at [28]; Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [40]-[44].

[9]

Consideration

The transcript of the hearing records that part-way through the hearing (at [19:31]), Ms Kinchela informed the Tribunal member that a neighbour of the tenant, Mr Glen Simpson, was available to give oral evidence. Mr Simpson subsequently gave oral evidence in chief, under affirmation (from [33:55]). This involved the Tribunal member asking, and Mr Simpson answering, a series of questions. The transcript reveals that on two occasions after Mr Simpson had completed his evidence in chief (at [42:57] and [44:14]) the Tribunal member gave Mr Webb an opportunity to ask Mr Simpson questions. However, in both instances Mr Webb declined to do so.
At [46:49], after Mr Simpson had been dismissed by the Tribunal member and Ms Kinchela's case in chief had closed, the following exchange occurred between the Tribunal member and Mr Webb: Tribunal member: Mr Webb what do want to say in response? Mr Webb: Ah in response I know the witness has made some comments. But a lot of the serious stuff in it goes to Section 154E. It happened before the SPO was made. Umm you know last year, and it has been dealt with in that SPO … we don't believe that the breach or any breaches justify termination. In fact, it makes it hard for us to defend it anyway the anonymous complaints as well. Like I said I haven't had time. I've only just been made aware today of Mr Simpson providing evidence. Which made it difficult to even talk to Ms Ferguson about some of the allegations that were made. See they were all similar even though the four anonymous complaints. But it was pretty difficult to defend on the day being caught by surprise.
The Tribunal member then gave Mr Webb an opportunity to explain why he was caught by surprise, and pointed out that he knew in advance of the hearing about the content of Mr Simpson's record of interview. However, Mr Webb did not provide a direct response to the Tribunal member's question or to the point she made about the record of interview. The hearing continued and Mr Webb made no further remark about Mr Simpson's evidence.
We are not satisfied that the fact that the landlord did not notify the tenant prior to the hearing that Mr Simpson would be giving oral evidence at the hearing resulted in a denial of procedural fairness or in any practical injustice. Although the tenant did not know Mr Simpson's identity until the hearing, she and her representative were aware of the substance of Mr Simpson's evidence in advance of the hearing because the landlord had previously furnished her with copies of the four anonymous records of interview, including that of Mr Simpson. Whilst we agree that Mr Simpson's oral evidence went beyond the information contained in his record of interview, it did not do so in any material way. The evidence provided by Mr Simpson at the hearing elaborated on and clarified the information in his record of interview, but did not include substantive new information.
In any event, it was open to the tenant's representative to ask the Tribunal member for time to take instructions and prepare for cross-examination of Mr Simpson. He did not do so. Indeed, the Tribunal specifically gave Mr Webb an opportunity to make submissions in this regard when she asked him why he was "caught by surprise" by Mr Simpson's evidence. Mr Webb did not respond to this query in any constructive way.
Moreover, Mr Webb has not explained how the outcome might have been different had he had prior notice of Mr Simpson's attendance at the hearing. He has not addressed how the lack of notice deprived the tenant of the opportunity to adequately prepare for Mr Simpson's evidence or to cross-examine him effectively. For example, he has not made submissions as to what aspects of Mr Simpson's oral evidence he would have sought to challenge in cross-examination, what additional evidence the tenant would have sought to rely upon to counter Mr Simpson's oral evidence, or why the lack of notice prevented him from asking those questions or relying on that evidence.
The submission that the tenant was denied procedural fairness because limited information was provided about Mr Simpson's address or background information, is not persuasive. It was implicit from Mr Simpson's evidence that he was a neighbour residing in the same street as the tenant. It is not apparent how the lack of more precise information about Mr Simpson's home address resulted in procedural unfairness to the tenant.
Similarly, if the tenant's representative wished to challenge Mr Simpson's evidence about the identity of the persons living at the property or about the tenant's absences from the property, it was open to him to cross-examine him about these matters, or to make submissions about them. The fact that Mr Simpson gave evidence which the tenant considered to be vague or ambiguous does not give rise to a denial to afford procedural fairness.
We would add that the circumstances in Williams are distinguishable from the present case. In that matter the Court found the Tribunal below had not adequately explained to the unrepresented tenant the procedure for, or the purpose or importance of, cross-examination. The Court held at [67] that it could not fairly be concluded that the circumstances in which the tenant waived her right to cross-examination ensured that she received procedural fairness. Here by contrast the tenant was not unrepresented. She was represented by a tenancy advocate and there is no suggestion that Mr Webb's decision to waive the right to cross-examine Mr Simpson was made in circumstances where he was unaware of the procedure for, or the importance or purpose of, cross-examination.
Turning now to the submission regarding the alleged affray in October 2023, it is not apparent to us how the fact that evidence about this incident was given by Mr Simpson gives rise to any practical injustice or procedural unfairness. As we have said, it was open to Mr Webb to cross-examine Mr Simpson about his evidence, including about this matter. He elected not to do so. In any event, the Tribunal's reasons do not contain any findings about this incident. Specifically, the findings made by the Tribunal regarding breaches which occurred after the specific performance order was issued in November 2023 (at [25] of the reasons] do not include any findings about the alleged affray in October 2023. In the circumstances, we are not persuaded that Mr Simpson's evidence about the alleged October affray gave rise to a failure to afford procedural fairness, or indeed to any other error.

[11]

Leave to appeal - weight of evidence

The tenant seeks leave to appeal on the basis that she may have suffered a substantial miscarriage of justice because the decision was against the weight of evidence. Her submissions in relation to this issue can be summarised as follows: 1. The reasons make numerous references to police attendances at the property. However, the Tribunal did not consider the lack of police evidence supporting these assertions and therefore the Tribunal did not have sufficient evidence to support its finding at [25(p)] that "NSW Police attended the property on 5 December 2023, 5 January 2024, 8 January 2024 and April 2024". 2. The landlord only provided a single photograph of the exterior of the premises to support its assertions regarding the condition of the property. However, there was no photographic evidence to substantiate the landlord's clams regarding unregistered vehicles, vermin or other alleged property care issues and this lack of visual evidence undermines the credibility of the landlord's allegations. 3. Mr Simpson's record of interview was unsubstantiated by photographs, reports or any other documentary evidence and his evidence regarding his medical conditions and personal wellbeing was not corroborated by medical evidence. 4. The written statements provided by neighbours were anonymous.
The tenant says the Tribunal should also have given more weight to her evidence regarding potential homelessness. The tenant's submissions state "[t]he tenant has been in social housing for over two decades, and she qualifies for and receives social security payments, so it follows that if she were to lose her home, particularly during the cost of living crisis, homelessness would be a probable consequence of a termination order". The tenant's submissions include excerpts from the "Bugmy Bar Book" and state that the Tribunal should have had regard to the chapter on homelessness contained in that publication.
The tenant also submits that the Tribunal did not give sufficient weight to the tenant's evidence about her personal circumstances, and that, taking account of those circumstances, the Tribunal should have decided that the circumstances of the case did not justify termination of the tenancy agreement for the purposes of s 87(6) of the RT Act. The tenant says the Tribunal should have given more weight to the evidence that the tenant had lived in the premises for over 24 years, that she had only started receiving allegations about the tenancy in the last 12 months, and that she is taking active steps to seek support from Many Rivers Family Violence Prevention Legal Service.

[17]

Evidence regarding risk of homelessness

At [38] of the reasons the Tribunal addresses the tenant's submission that there is a risk of the tenant becoming homeless if the tenancy is terminated. The reasons: 1. refer to the fact that little evidence had been provided to support this assertion; 2. say that other than evidence that the tenant is receiving Centrelink payments, there is no documentary evidence in respect of her financial circumstances; 3. point out that there was no evidence before the Tribunal as to the affordability of the private rental market in Coffs Harbour, or alternative housing options in the area; 4. conclude: "[w]ithout any detailed evidence of both the tenant's financial affairs and all other possible housing options for proper consideration the Tribunal simply could not be satisfied what alternative accommodation the tenant could or could not potentially afford or whether she is or is not susceptible to homeless."
Reading the reasons as a whole, it is apparent that the Tribunal also took account of the fact that the tenant is an Aboriginal woman, that the premises are social housing accommodation, and that the tenant has a history of disadvantage.
The tenant has not identified any evidence which was before the Tribunal which went specifically to the issue of potential homelessness. The matters to which the tenant says the Tribunal should have given more weight (that is, the fact that she receives social security payments and has resided at the premises for 20 years) did not directly inform the Tribunal of the tenant's personal or financial situation or her housing prospects. We are satisfied that the Tribunal gave appropriate weight to those matters.
There was no evidence before the Tribunal about the "cost of living crisis" or how it might impact the tenant's ability to secure future housing.
With regard to the chapter on homelessness in the "Bugmy Bar Book", this publication was not before the Tribunal at the hearing and the Tribunal was not bound to consider it. The tenant has sought leave to rely on that document in the appeal and for reasons explained later in these reasons we have refused that request.
In circumstances where there was no specific evidence before the Tribunal about the tenant's financial situation or about the alternative housing options in the area, we cannot be satisfied that the Tribunal's conclusion regarding the susceptibility of the tenant to homeless was not reasonably open to it on the available evidence.

[21]

Consideration

The relevant principles were recently enunciated by the Appeal Panel in The Owners-Strata Plan No 53865 v JPG Investments Pty Ltd [2024] NSWCATAP 12 as follows: 167. An appellant does not have an unfettered right to adduce fresh evidence about events that have occurred subsequent to the hearing. As the Appeal Panel stated in Chapman v McLaughlin [2016] NSWCATAP 212 at [37]: ... The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.' 168. The ability to adduce fresh evidence arises in the context of the Tribunal's powers to grant leave to appeal under cl. 12 of sch 4 of the NCAT Act. In that statutory context, the Tribunal must be satisfied that the appellant suffered a "substantial miscarriage of justice" in the sense there was a "significant possibility" or "a chance that was fairly open" that a different and more favourable result would have occurred if the fresh evidence of Mr Clee had been before the Tribunal at first instance (Collins v Urban at [76]-[79]). 169. Further, the "concept of substantial miscarriage of justice refers to the failure in the way a matter was conducted or decided that which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred" (Collins v Urban at [71]). The concept focuses upon the manner in which the hearing was conducted or decided, not fresh events that have occurred since the date of the Tribunal hearing. 170. The purported new evidence must not only be "significant," but it must also be evidence that was unavailable at the date of the hearing in the sense that "no person could reasonably have obtained the evidence" (Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]).
Applying those principles, we are not satisfied that we should grant the tenant leave to appeal on the basis of the new evidence regarding the tenant's daughter.
Firstly, the evidence relates to events which occurred after the hearing on 15 May 2024 (namely, the daughter and her partner vacating the premises). That evidence could not have been before the Tribunal at the hearing because the events had not yet occurred. Accordingly, it cannot be said that the evidence is significant new evidence, nor that there was a "significant possibility" or "chance that was fairly open" that a different and more favourable result would have occurred had that evidence been before the Tribunal at the hearing.
Secondly, the hearing occurred on 15 May 2024. The decision was reserved and was published on 20 June 2024. If the tenant sought to adduce fresh evidence about events occurring subsequent to the hearing, she could have made an application to be granted leave to re-open her case. She did not do so.
The tenant says that the decision of the Appeal Panel in Claydon v NSW Land and Housing Corporation [2015] NSWCATAP 192 (Claydon) supports the proposition that evidence of matters which occurred after the hearing can be "significant new evidence" forming the basis for granting leave to appeal. That case involved termination of a social housing tenancy under s 91 of the RT Act in circumstances where the appellant tenant had been charged with multiple charges involving supply of prohibited drugs. At a hearing on 2 February 2015 the Tribunal made orders terminating the tenancy. The following month the drug supply charges against the appellant were withdrawn by the DPP, and the appellant entered a guilty plea for the lesser offences of "possess prohibited drugs".
The Appeal Panel granted leave to appeal on the basis that significant new evidence (being evidence of the decision by the DPP to withdraw the more serious offences) had arisen since the hearing.
In our view the circumstances in Claydon are distinguishable from the present. There, the new evidence, although it came into existence after the hearing, directly related to the circumstances which existed at the time of the hearing (ie the offences for which the tenant had been charged). The effect of the new evidence was that the tenant was not guilty of the more significant offences which formed the basis of the termination application. Therefore, the new evidence would likely have had an impact on the outcome of the Tribunal proceedings. Here, the new evidence could not have resulted in a different outcome because it related to circumstances (ie the tenant's daughter vacating the premises) which did not exist at the time of the hearing.
For these reasons we are not satisfied that the proposed new evidence from the tenant and her daughter form a basis to grant leave to appeal under cl. 12 of sch. 4 of the NCAT Act.

[22]

Leave to rely on Bugmy Bar Book

As mentioned earlier in these reasons, the tenant has sought leave to rely in the appeal on a chapter contained in the "Bugmy Bar Book" entitled "Homelessness" (the Bugmy homelessness chapter).
The Bugmy homelessness chapter contains information about homelessness, including the causes and impacts of homelessness. It also provides information about homelessness in indigenous communities, including that Aboriginal and Torres Strait Islander peoples are ten times more likely to experience homelessness than non-indigenous people.
The tenant has not explained the legal basis for her request to rely on this document in the appeal.
In appeals from decisions of the Consumer and Commercial Division of the Tribunal, the ability to adduce fresh evidence generally arises in the context of the Tribunal's powers to grant leave to appeal under cl. 12 of sch 4 of the NCAT Act. In that statutory context, applying the principles articulated above, we are not satisfied that the Bugmy homelessness chapter is significant new evidence that was not reasonably available at the time of the hearing. The document, which is dated January 2020, long predates the hearing. No explanation has been provided by the tenant as to why she did not seek to tender that document at the hearing. Moreover, having reviewed the document, we are not satisfied that it would have furthered the tenant's case. Whilst the document contains useful information, it is generic in nature. It would not have assisted the Tribunal to assess the tenant's particular circumstances. As we have explained earlier in these reasons, in the absence of specific information about the tenant's financial situation and alternative housing options available to her in the area, the Tribunal found it could not be satisfied that the tenant was at risk of homelessness. We are not persuaded that, had the Bugmy homelessness chapter been before the Tribunal, the result might have been different.
For these reasons we are not satisfied that the Bugmy homelessness chapter is significant new evidence which was not reasonably available at the hearing, nor that there was a "significant possibility" or "a chance that was fairly open" that a different and more favourable result would have occurred if the document had been before the Tribunal at first instance. We are therefore not persuaded that the Bugmy homelessness chapter forms a basis to grant leave to appeal under cl. 12 of sch. 4 of the NCAT Act.
We are also not satisfied that there is any other basis for allowing the tenant to rely on the Bugmy homelessness chapter in this appeal, The Appeal Panel discussed the principles relevant to the receipt of new evidence in appeals in Yuen v Thom [2016] NSWCATAP 243 at [14]-[22]. We respectfully adopt that analysis.
One basis on which to admit new evidence is by reason of the operation of ss 80(3) and 81 of the NCAT Act, in circumstances where the Appeal Panel considers that the grounds for the appeal warrant a new hearing. This is not such a case.
In limited other circumstances the Appeal Panel has discretion to receive new evidence on appeal (which is not by way of a new hearing). However, the tenant has not established any basis for the Appeal Panel exercising that discretion in her favour. She has not explained how the receipt of the Bugmy homelessness chapter is necessary to prove the allegation of procedural fairness, nor how it is necessary to establish a basis for granting leave to appeal. Moreover, as discussed above, the evidence was available at the time of the hearing, no explanation has been provided as to why it was not relied on at that time, and it is unlikely that the evidence would have produced a different result at the Tribunal.
For these reasons the request to rely on the Bugmy homelessness chapter in the appeal is rejected.

Ferguson v Mission Australia

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