Forrest v NSW Land and Housing Corporation

NCAT Appeal Panel|2016-06-10

Solicitors: N Kennedy (appellant) File Number(s): AP 16/20470 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 14 April 2016 Before: M Eftimiou, General Member File Number(s): SH 15/02841

Some non-controversial background facts

The appellant, Timothy Forrest, was a tenant from the respondent, NSW Land and Housing Corporation of premises in a suburb of Sydney, under a residential tenancy agreement, the provisions of which are regulated by the Residential Tenancies Act, 2010 ("the Act"). By application filed 20 January 2015, the respondent sought an order, inter alia, under section 91 of the Act that the residential tenancy agreement be terminated.
The application alleged that during a search of the garage forming part of the residential premises, police had located a clandestine laboratory which had been established for the purposes of manufacturing methamphetamine. The police located: A small gas burner and a number of other containers consistent with the manufacture of methyl amphetamine such as hydrochloric acid, costing soda, methylated spirits and acetone. Police alleged that these items were used in the manufacture of methyl amphetamine and extraction of pseudoephedrine by the occupiers of the property. The application also alleged that the appellant had made admissions to the police that he was aware that another person who was an occupant of the premises was in possession of a large amount of glassware as well as instructions for cooking methyl amphetamine.

The Decision under appeal

At the commencement of the hearing, the advocate representing the appellant informed the Tribunal that the Act had been amended subsequent to the filing of the application by the Residential Tenancies and Housing Legislation Amendment (Public Housing - Antisocial Behaviour) Act, 2015 (number 34) which received assent on 22 October 2015. The amendment inserts additional provisions into the Act dealing with the exercise of discretion to make an order under section 91, and mandates the consideration of a number of matters in determining whether to terminate a social housing tenancy agreement. (It would appear that the residential tenancy agreement the subject of these proceedings is a social housing tenancy agreement, but nothing turns on this).
The tenancy service representative of the appellant said that if the amending Act applied, she would wish to have the proceedings adjourned so that the appellant could obtain further evidence. The Member proceeded to deal with the matter by hearing the competing submissions from the parties as to the applicable legislation, and requiring the parties to adduce such evidence as they wished applicable to both sets of legislation. In her reasons for decision, the Member determined, correctly in our opinion, that the amended legislation did not apply. Accordingly, the appellant had had an adequate and appropriate opportunity to adduce whatever evidence he wished to put before the Tribunal. We shall return to this matter later in these reasons for decision.
We note for completeness, that there is no indication in the amending legislation that it has retrospective effect. Therefore, by reason of the provisions of section 30 of the Interpretation Act, the amendment would not apply to proceedings already instituted. On appeal before us, both parties submitted that this was the appropriate result.
In her reasons for decision, the Member discussed the evidence which had been led in the proceedings, and then found that the provisions of section 91 (1)(a) had been satisfied. Having so determined, the Member then considered a number of matters by reference to sections 152 and 87 of the Act in exercising her discretion to conclude that the tenancy agreement should be terminated by the making of a termination order.
In dealing with these appeal proceedings, we shall consider a number of discrete issues.

Were the provisions of section 91(1)(a) satisfied?

In order to deal with this matter, it is first necessary to refer, in summary form, to the evidence given in the proceedings before the Member.
The appellant swore a statutory declaration on 17 February 2016. He said that he had lived at the property in question with his wife and three daughters since November 2013. Towards the end of September 2014, a person whom he named as "Rob", and whom we now know is Rob Weald, came to stay at the premises. The appellant had met him some years previously, he was homeless at the time and he "opened my home to help a friend out." He said that Rob stayed: ..in a separate area in the garage with his own keys. No one could get into the area where he stayed because Rob changed the keys to that part of the garage when he moved in. My daughters never went into Rob's area. The appellant then said that a couple of weeks before Christmas 2014, he walked past Rob's room, noticed that the door was open and looked inside. He said he saw "tube-like equipment on a table", picked it up, asked Rob what he was doing and then threw the equipment at him. He said that he suspected "something unusual" was happening so he asked Rob to leave and gave him until two weeks after Christmas to get out. The appellant did not want to ask Rob to leave earlier because the appellant's father was staying with the family at the time and he did not want to create an incident whilst his father was there.
In the statutory declaration, the appellant said that he had served for 20 years in the Army and completed 12 tours. He was suffering from post-traumatic stress disorder and had been undergoing psychotherapy for three years.
A report of a clinical psychologist, Mr Raymond Hudd, dated 18 February 2016 confirmed that the appellant was suffering from post-traumatic stress disorder and that he was suffering from a range of symptoms including impaired thought processes. He also thought that the appellant might be suffering from Borderline Personality Disorder which pointed to some instability and impulsivity in his behaviour. He said that: In many cases when the person suffering from this combination of disorders is confronted by or subjected to stressful, intimidating or threatening situations they are more likely than not to either become aggressive or completely shut down. It is also often seen as a combination of both of these presentations. Mr Hudd said that the relationship between the appellant and Rob was complex because he was endeavouring to assist a fellow returned serviceman both as an act of friendship and out of a perceived sense of duty.
Police evidence is to the effect that at about 8 am on 6 January 2015, a search warrant was executed at the premises. The police located laboratory equipment in part of the garage area in which Rob lived. The police arrested Rob and took him to Campbelltown Police Station. Shortly after, the appellant was taken to the same police station and interviewed.
The Member was provided with a volume of documentary material provided by New South Wales police relating to charges brought against both Rob and the appellant. The appellant has indicated that he will vehemently defend police charges brought against him which will allege that he was engaged in the manufacture of a prohibited drug at the premises. The appellant is entitled to the presumption of innocence, and it is uncontroversial that no inferences adverse to the appellant may be drawn from the mere fact that he is facing police charges. Included within this documentary material are statements given to the investigating police officers by the appellant and his wife as well as statements made by several police officers concerning their involvement in the investigation of the manufacture of prohibited drugs in the garage in which Rob was living. The Police Facts Sheet created for the purpose of the proceedings brought against the appellant was also provided to the Member. Both the appellant and his wife, together with a police officer gave evidence in the proceedings before the Member.
Significantly, there was included within the documentary evidence provided by New South Wales Police an expert certificate of Dr Daniel Richard Coghlan, a forensic chemist employed by NSW Health Forensic and Analytical Science Service. Dr Coghlan had access to documentary material provided by several police officers involved in the investigations, records of exhibits provided by property seized from the garage, and chemical analysis of samples of certain substances found within the exhibits. Having regard to a number of the items found in the garage including a glass flask, empty bottles, a portable gas cooker, and the results of swabs of these items as well as a paper containing instructions how to manufacture methyl amphetamine, Dr Coghlan concluded that pseudoephedrine and methylamphetamine had been manufactured in the garage premises.
The Member found that the provisions of section 91(1)(a) had been satisfied in that a person, although not a tenant, was jointly occupying the residential premises, namely the garage, and that he had intentionally or recklessly caused or permitted the premises to be used for the purposes of the manufacture of a prohibited drug. In reaching this conclusion, the Member relied principally on the fact that both the appellant and his wife conceded under cross-examination that, at the time that they were giving evidence, they realised and were aware that Rob was using the premises for the purpose of the manufacture of prohibited drugs. However, an examination of the cross-examination reveals that the question that was being put to each of the witnesses was based on what they understood that police officers were asserting to them, and not by reference to anything which they personally knew. The Member also relied upon the fact that Rob had indicated that he was pleading guilty to a charge relating to an offence under the Drug Misuse and Trafficking Act. The appellant, through his counsel, asserts that there was no evidence of the precise charge levelled against Rob by the police so that the fact that he was pleading guilty to a charge was not necessarily indicative that he had conceded that he was using the premises for the purpose of the manufacture of a prohibited drug. The reasoning adopted by the Member was challenged accordingly.
There is some validity in the appellant's challenge to the reasoning of the Member in this regard. However, in our opinion, it is not necessary that we deal with the reasoning process of the Member because, by all accounts, the evidence of Dr Coghlan is more than sufficient to establish that the garage, occupied by Rob, which was part of the residential premises, was being used for the purpose of the manufacture of prohibited drugs. Indeed, counsel for the appellant did not contend that the ultimate finding was incorrect. Accordingly, it would be futile to overturn the decision of the Member concerning this discrete matter in circumstances where there was adequate evidence to justify the ultimate finding that the provisions of section 91(1)(a) had been satisfied. For completeness we note that the Member would have been entitled to so find on the Briginshaw standard.

The factors taken into account in the exercise of discretion to make a termination order

The legislature has taken a differential approach in dealing with the provisions of subsections (1)(a) and (b) of section 91. It is clear from the provisions of subsection (2), which apply only to the circumstances found in section 91(1)(b), that a discretion is created as to whether a termination order is to be made. No such provisions apply in the case of section 91(1)(a) and it might be thought on a prima facie basis, that no discretion was given as to whether a termination order would be made in such case. The necessity to examine the manner in which this section operates has been relieved by reason of the decision of the New South Wales Court of Appeal in Cain v NSW Land and Housing Corporation [2014] NSWCA 28. The Court (Basten, Gleeson and Leeming JJA) held, after construing the section in the context in which it appeared in the Act, and after taking into account relevant provisions of the Interpretation Act that section 91(1)(a) permitted the Tribunal to exercise a discretion in determining whether a termination order should be made.
The judgment of Basten JA (with whom the other members of the Court agreed) discussed some of the matters which could be taken into account in determining whether to exercise the discretion allowed under the section. Those proceedings involved an appeal from a decision of the District Court of NSW which, in turn, had overturned a decision of the Tribunal made under section 91(1)(a). At first instance the Tribunal had determined to have regard to the provisions of section 152 of the Act which has since been repealed, but was in the following terms at the time of those proceedings, and it was in the same terms as applied at the time that these proceedings were considered by the Member: 152 Termination by Tribunal of social housing tenancy agreements for breach (1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. (2) This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act.
Basten JA said, at [31]: It is not necessary to determine whether s 152 operated in the present case: it is expressed to impose an obligation on the Tribunal when considering whether to terminate "a social housing tenancy agreement", "on the ground of a breach by the tenant". The Housing Corporation is a "social housing provider" and the tenancy agreement in the present case was, therefore, a "social housing tenancy agreement", as defined in s 136. However, it is at least arguable that s 152 only applies where the landlord relies upon the conduct of the tenant as constituting a breach of the agreement (under, for example, s 87) as opposed to an application under s 91, which relies on conduct falling within the scope of that section which would be, but is not specified as, a breach of a tenancy agreement. The reason it is not necessary to determine the question is twofold. First, although the Tribunal recorded an agreement between the parties that the tenant "has breached the residential tenancy agreement" and that both advocates had referred to s 152, it is not clear that the Tribunal purported to apply the provisions of s 152. Secondly, if the Tribunal did apply s 152, there is no complaint that it failed to have regard to the mandatory considerations set out in sub-s (1) and, as sub-s (2) makes clear, the section imposes no constraint on the factors at which the Tribunal may look.
In discussing those matters which his Honour upheld as being arguably relevant to the exercise of the discretion, he referred firstly to the personal history in the circumstances of the tenant including any relevant medical history, and secondly, to the impact that any order for possession might have on the tenant including, in the circumstances of those proceedings, difficulties in undertaking certain rehabilitation processes. Apart from these matters, it is clear that s152 was confined to proceedings based on a breach of the lease, but they do not ipso facto apply to proceedings brought under s91, as was the case in these proceedings.

Did the discretion miscarry?

In order to determine whether the purported exercise of discretion by the Member miscarried, as asserted by the appellant, it is necessary to have regard to the reasons for decision.
In the course of concluding that the provisions of section 91(1)(a) had been satisfied, the Member said that "The Tribunal finds that the breach is established." It is clear that the Member was fixated on the fact that she was dealing with a breach of the residential tenancy agreement because, the Member, citing the reference to Cain, said at [51]: In determining whether the breach is, in the circumstances of the case sufficient to justify termination of the agreement, the Tribunal has considered the factors set out in section 152 and 87 of the Act.
We note, consistent with the observations of Basten JA extracted above, that the provisions of section 152 are appropriate when determining whether to terminate a residential tenancy agreement consequent upon a breach. The application filed in these proceedings with which the Member was dealing with, was one based on the application of section 91(1)(a), and not based on a breach. Accordingly, in our view, it was inappropriate for the Member to purport to determine the proceedings before her on the basis of a breach and the exercise of a discretion having regard to the provisions of section 152. It may be, coincidentally, that some of the matters that are referred to in section 152 are relevant to be taken into account in determining whether to exercise the discretion contained within section 91(1)(a), but it may nonetheless be appropriate to take into account other additional matters. In confining herself to those matters set out in section 152, the exercise of discretion by the Member miscarried.
There are additional matters which also point to a miscarriage of the exercise of discretion by the Member. The Member noted evidence given in the proceedings that the premises the subject of the residential tenancy were "surrounded by other social housing properties and is located in an area of privately owned home (sic)". The Member noted also that the properties were occupied by single parents with a number of children of young age and that there was a childcare centre within 200 metres of the property. The Member concluded: The Tribunal is satisfied that the use of the premises for the manufacture of a prohibited drug has serious adverse effects on neighbouring residents. There are a number of social housing tenants within close proximity to the premises. The Tribunal is satisfied that there are a large number of children and young people who live within close proximity to the premises. The Tribunal is satisfied that there is a childcare centre within close proximity to the premises.
The appellant complained that there was no basis upon which the Member could so conclude. We agree. The fact is that, on the evidence, the operation undertaken by Rob was of a clandestine nature. There is simply no evidence that anyone, of whatever character, ever entered or left the garage premises other than Rob, the appellant and his family and the police officers when executing the search warrant and arresting Rob and the appellant. The factual circumstances would have been different if Rob were, for example, conducting a brothel in the garage and unsavoury characters were seen entering and leaving the premises on a regular basis. No such circumstances apply in these proceedings. In the evidence, there was a reference by a police officer, who would appear to have no scientific qualifications, to the fact that some of the chemicals used in the process of manufacture of methamphetamine were volatile, but there is no assessment of the nature and extent of any particular danger posed by the operation.
There is also no consideration by the Member of the nature of the effect on any of the persons described nor of any causal relationship between the existence of the clandestine operation and such effect.
The necessity to have some evidentiary basis for the making of a finding of fact was highlighted by Beazley JA (as Her Honour then was) in the NSW Court of Appeal in Strinic v Singh [2009] NSWCA 15 (Ipp and Basten JJA agreeing). At [60]-[65] Her Honour said: The fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge) has been emphasised by the courts in a variety of different circumstances. In Saunders v Adderley [1998] UKPC 29; [1999] 1 WLR 884, Sir John Balcombe, in delivering the judgment of the majority of the Privy Council, stated, at 889: "It is, of course, an error of law for a judge to make a finding of fact which there is no evidence to support, unless the matter is one of which the judge is entitled to take judicial notice." See also Holland v Jones [1917] HCA 26; (1917) 23 CLR 149; ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199; Coombes v RTA [2006] NSWCA 229; Ohlstein bht Ohlstein v E & T Lloyd t/as Otford Farm Trail Rides [2006] NSWCA 226. In Ohlstein, Ipp JA observed, at [155], that the risk to a young child in undertaking a guided horse ride and a child's ability to undertake the ride: "... should not be determined by a personal judicial opinion, based on common knowledge and experience, that differs from the opinions expressed by the experts ... ." The trial judge in this case had previously been a judge in the Compensation Court, which was judicially recognised as a court of specialist jurisdiction. At [5], his Honour referred to his thirteen years' judicial experience, during the majority of which he "was involved solely in personal injury litigation". His Honour added: "Since my statutory translation to the District Court some three and a half years ago I have spent approximately one-third of my time still being involved in personal injury litigation." Having regard to his Honour's experience in a specialist court, it is useful to have regard to the principles governing judicial fact-finding, as they affect not only the extent to which the judicial officer can use such knowledge, but also the manner in which litigation is conducted in a particular court or tribunal. Those principles are discussed above. Their application to the present circumstances is the matter in point. Even if a particular judge sitting in a court of general jurisdiction is experienced in adjudicating medical cases, that experience does not replace the requirement to base findings on the evidence. A court cannot assume that its knowledge of any particular matter is correct, even if the individual judge has a great deal of experience dealing with, for example, medical issues, as was the case here. In Saunders v Adderley [1998] UKPC 29; [1999] 1 WLR 884 it was said that such a process involved an error of law. Underlying that error is a fundamental breach of procedural fairness. A party is not afforded procedural fairness where a trial judge makes findings of fact based upon that judge's own purported knowledge or understanding of matters that do not form part of the evidence. I have put that proposition in blunt terms, because it is the underlying fundamental principle upon which courts must act. Procedural fairness does, however, take its colour and hue from the particular circumstances at hand. Thus, a specialist tribunal will have greater leeway in applying its specialist knowledge, either because the constituting statute so provides, or because the parties are taken to understand its practices. Such tribunals are often the sole and final determiners of fact. Likewise, a trial judge would be entitled to advise the parties that he understood certain medical evidence to have a particular meaning, even if that meaning was not stated in the evidence. If all parties agreed that the judge's understanding on that matter was correct, then, the matter being transparent and not in dispute, there would be no breach of procedural fairness in the trial judge's acting on that understanding.
There was no relevant factual basis for the conclusion expressed by the Member in these proceedings, in the sense referred to in Strinic, as will be seen from the following discussion.
An illustration of the necessity to identify an appropriate factual basis upon which to found a conclusion is also provided by the decision of Hoeben J (as His Honour then was), in Brennan v Consumer, Trader and Tenancy Tribunal [2010] NSWSC 1240. Those proceedings concerned an application by a landlord to terminate a tenancy based on a breach of the tenancy agreement, alleging that the tenant had used or caused or permitted the premises to be used for the possession and/or storage and/or packaging and/or supply of a prohibited drug. The Tribunal was required to take into account certain discretionary matters, similar to but not identical to those contained in section 152 of the Act. It was asserted on behalf of the tenant in those proceedings that the Tribunal had concluded that a number of other tenants of the landlord could be significantly affected by the illegal activities which occurred in the premises. It is instructive for the purpose of these proceedings to examine the reasoning of Hoeben J in determining that the conclusions reached by the Tribunal in those proceedings were without foundation and constituted errors of law on the face of the record. Accordingly, we set out the following extract of His Honour's judgment because it provides a compelling example of the approach that should have been adopted by the Member in these proceedings by particular reference to the jurisdiction and powers of a statutory tribunal: 54 For completeness, I should deal with the second basis for this Court intervening, i.e. error on the face of the record, that error being of a jurisdictional kind. The error relied upon was a failure to take into account relevant considerations and taking into account irrelevant considerations. As the argument progressed, however, the basis of the plaintiff's complaint was that the Tribunal had made findings pursuant to s64 of the Residential Tenancies Act for which there was no evidence before it. 55 The High Court in Kirk v Industrial Relations Commission of NSW [2010] HCA 1, (2010) 84 ALJR 154 identified how errors of law could arise on the face of the record and how those errors of law were jurisdictional errors on the facts of that case. The question of lack of evidence and its consequences in relation to decisions of the Tribunal was considered by French CJ in Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 where his Honour said: "15 The Tribunal may, subject to the CTTT Act, determine its own procedure. It is not bound by the rules of evidence and may inquire into, and inform itself on, any matter in such manner as it thinks fit, subject to the rules of procedural fairness. That freedom is enjoyed by many administrative tribunals. The term "rules of evidence" does not lay out with precision its metes and bounds. Nor does it exclude the discretionary application of such rules. But the authority of the Tribunal to "inform itself on any matter in such manner as it thinks fit" indicates that it is able to act upon information whether or not it is embodied in evidence which would be admissible in a court of law. 16 There are qualifications upon the Tribunal's procedural freedom. One, which is explicit, is the requirement to observe procedural fairness. The Tribunal's modus operandi must also serve its function, which, in this case, was to hear and determine a building claim. That function implies a rational process of decision-making according to law. A decision based on no information at all, or based on findings of fact which are not open on information before the Tribunal, is not compatible with a rational process. 17 The exercise of the Tribunal's freedom from the rules of evidence should be subject to the cautionary observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott that those rules "represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth". It is a method not to be set aside in favour of methods of inquiry which necessarily advantage one party and disadvantage another. On the other hand, that caution is not a mandate for allowing the rules of evidence, excluded by statute, to "creep back through a domestic procedural rule"." 56 The Tribunal's findings which are challenged on this basis relate to the application of s 64 of the Residential Tenancies Act. In that regard the Tribunal said: "42 In relation to the specific social housing considerations in s 64(4), Mr Jungwirth stated that there was no direct evidence of the effects on neighbouring residents and other persons. However, it was clear that the premises had been used, perhaps for some time, for the purpose of storing and packaging of prohibited drugs, and this has the potential for very serious social consequences. The landlord as a large social housing provider has responsibilities for all of its other tenants, and the location of the tenant's premises in a large housing estate, makes this particularly significant. The tenant's premises are in a large housing estate consisting entirely of Department of Housing properties. There are a large number of other tenants of the landlord who could be significantly affected by the illegal activities occurring in her premises. ... 44 The storage and use of any prohibited drug on residential premises has at least the potential to cause anti-social behaviour in the local area, and is therefore a serious matter. The Tribunal has found that the tenant was aware of the use of her premises for this purpose and did nothing to prevent it. There is little history of illegal use or other breaches before or since July 2008 but the items found at the time of the search suggest that the premises had been used in this way for some time. 45 There is very little in the personal circumstances of the tenant or her family which the Tribunal can weigh up against the objective seriousness of the breach. She is a young woman, apparently with limited income, supporting three young children. Other than the usual upheaval associated with a move, there was nothing to suggest that the tenant would be unable to relocate to suitable accommodation in the same locality as she currently resides if the order was made to terminate her tenancy." 57 I accept that it was open to the Tribunal to characterise the breach of lease by the plaintiff as serious, this being a normative assessment on which minds might differ. That having been said, one would have thought a relevant consideration was the "permissive" nature of the offence and that there was no evidence that the plaintiff was herself in any way engaged in the possession or storage of drugs on the premises. 58 There was, however, no evidence before the Tribunal nor any material from which an inference could be drawn that the conduct of the plaintiff "had the potential for very serious social consequences" and that "there are a large number of other tenants of the landlord who could be significantly affected by the illegal activities occurring in her premises". 59 In particular, there was no evidence of any drugs being in the premises other than on this specific occasion. There was no evidence of how the comparatively small quantity of drugs found in the premises, in the possession of someone other than the plaintiff, could affect persons outside the premises who were tenants of the Corporation. There was no evidence to substantiate this finding by the Tribunal. It was at most speculation. Similarly, there was no evidence, direct or indirect, from which an inference could be drawn that the premises had been used for the storage of drugs for some time. 60 In relation to the direct effect on the plaintiff and her children of being evicted from the premises, there was no evidence before the Tribunal that the plaintiff would be able "to relocate to suitable accommodation at the same locality as she currently resides if the order was made to terminate her tenancy". It could not be said that this conclusion was open to the Tribunal or that it was arrived at by "a rational process of decision making according to law" as French CJ referred to in Kostas. 61 I have concluded that the plaintiff has made out her complaint that there were errors of law on the face of the record in relation to the findings made by the Tribunal on which it relied in reaching its conclusions as to the application of s 64(2) and 64(4). These errors of law arose because there was no evidence to substantiate the conclusions to which I have referred so that those conclusions could not have been arrived at by a rational process of decision making. 62 These errors appeared in the Tribunal's reasons and were thus errors of law on the face of the record. They were also jurisdictional errors which would attract an order in the nature of certiorari in that the Tribunal only had power to make the orders which it did provided it was satisfied as to the matters which it had to consider under s 64(2) and 64(4). Conclusion 63 In the circumstances of this case the plaintiff has established a denial of procedural fairness in that she was not notified of the Tribunal hearing date on 19 November 2009. She has established error of a jurisdictional kind on the face of the record in that the findings made by the Tribunal, on which it based its application of s 64, were not open to it.
It follows that the same approach must be taken to the reasons of the Member in these proceedings. It is hopefully not necessary to repeat the clear and concise exposition of the application of the relevant principles as set out in Brennan to the reasoning process of the Member in these proceedings where the factual circumstances bear a striking similarity. Suffice to say that the reasoning in Strinic and Brennan support the conclusions which we have already expressed.

Other matters in the exercise of discretion

We now continue to deal with other matters referred to by the Member in the exercise of her discretion. The Member next considered: Whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject or continue to subject, neighbouring residents or any person or property to unreasonable risk.
In her reasons, the Member concluded that the use of the premises for the manufacture of a prohibited drug was "a serious breach of the agreement." The Member then referred to the evidentiary material and the fact that the appellant was aware that Rob was "up to no good" and had told him to leave. The Member was satisfied that the appellant knew that "something unusual was happening" a few weeks before Christmas although there was no evidence of precisely what it was that he was said to have known. Furthermore, the appellant had continued to allow Rob to remain in the premises until sometime in the New Year. The Member found "that the respondent's inaction in not immediately removing the occupier from the premises when he suspected something unusual was happening poses an unreasonable risk to neighbouring residents."
This finding suffers from the same defects that we have previously identified. There is no discussion about whether the fact that the appellant allowed this person to remain in the premises even though he knew that something unusual was happening constituted a breach of the tenancy. There was no factual basis upon which any unreasonable risk to neighbouring residents could be identified either as to the nature of that risk or any causal nexus with the inaction of the appellant. Overarching all of this is the fact that the Member was persisting in examining the matter by reference to a breach of the residential tenancy, rather than by reference to the statutory basis upon which the proceedings came before her, namely a consideration of section 91(1)(a) of the Act.
The Member then considered whether the respondent had a responsibility to other tenants in the same street and surrounding areas if the tenancy were allowed to continue. The Member concluded: The Tribunal is satisfied that the (respondent) must take all reasonable steps to ensure that the landlord's tenant does not interfere with the reasonable peace comfort or privacy of other tenants in using their premises. Again, there can be no basis for such a finding, and its relevance must be doubted.
The Member then considered a number of matters favourable to the appellant including the fact that there was nothing adverse known regarding his prior history concerning this tenancy or any other social housing tenancy. The Member also referred to the personal circumstances of the appellant and his family including a medical condition from which he suffered.
In determining to terminate the tenancy, purportedly pursuant to section 91 of the Act, the Member said that: The Tribunal finds on balance that the seriousness of the breach, the tenant's failure to take immediate action to evict the occupier once he was aware that there was something unusual occurring, and the effect that the breach may have on neighbouring tenants and other persons, justify termination of the tenancy. For reasons which we have set out above, such a determination cannot be sustained and must be set aside.

Conclusion and orders

For all of the reasons which we have given, we must conclude that the Member misunderstood the basis upon which she was asked to deal with the proceedings, the several conclusions to which we have referred had no or insufficient factual basis, her conclusions were not based on any consideration of any relevant causal nexus, and overall the exercise of discretion miscarried. It follows that the appeal must be allowed.
Both parties asked that if the appeal were allowed on the basis as determined by us, that we should remit the matter for hearing before the Tribunal constituted by a different member. There was reference by counsel for the appellant to the desire to call fresh evidence if the matter was remitted. In circumstances where the parties were required to have filed all evidence upon which they wished to rely prior to the hearing, it may not be appropriate to allow fresh evidence to be adduced on any rehearing. This is especially so where the advocate then representing the appellant had submitted that the amending Act did not apply and that the right to adduce fresh evidence was reserved if this submission was rejected. As the matter is to be remitted, the discretion whether to permit fresh evidence to be adduced should be left to the member hearing the matter.
These appeal proceedings were allocated a half day hearing, and by the time we had dealt with submissions concerning the status of the amending legislation, the nature of the proceedings before the member, and whether the exercise of discretion had miscarried, there was insufficient time left for us receive and consider submissions about whether we could conveniently determine the proceedings and whether the appellant should be given leave to adduce fresh evidence. In these circumstances, we agree to remit the proceedings for further hearing before another member, but this should be confined to the exercise of discretion consequent upon the finding which we have upheld that section 91(1)(a) applies by reason of the conduct of "Rob" in the garage portion of the residential premises. As we have said, the discretion whether to permit fresh evidence to be adduced should be left to the member hearing the matter.
The question of costs was not argued before us, and we shall reserve costs, and grant liberty to apply.
Accordingly, we make the following orders: 1. Appeal allowed in part. 2. A finding that section 91(1)(a) of the Act applies by reason of the conduct of "Rob" in the garage portion of the residential premises upheld on different basis 3. Decision under appeal is set aside 4. The exercise of discretion under sec 91(1)(a) of the Residential Tenancies Act, 2010 is to be reconsidered by the Tribunal differently constituted with or without further evidence as the Tribunal may consider. 5. Costs reserved with liberty to apply, which must be exercised within one month of this date.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2016

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (12)

Cited By (1)