Residential tenancy - termination of tenancy - intentionally or recklessly cause or permit personal injury - personal injury includes psychological harm - sexual conduct amounting to psychological harm

Residential tenancy - termination of tenancy - intentionally or recklessly cause or permit personal injury - recklessness - appreciation of likely or probably consequences of an act - context of professional relationship - circumstances of act such that no misapprehension of consequences could exist

Residential tenancy - termination of tenancy - vacant possession - personal circumstances of tenant - inability to afford equivalent housing - deterioration of physical and mental health - personal circumstances unfortunate but not unusual - hardship does not authorise a continuing or serious breach of contract

Residential tenancy - vacant possession - role of public housing authority - obligation to implement alternative steps to eviction - no requirement to tolerate unlawful conduct against employees or neighbours

Residential tenancy - termination of tenancy - risk of future harm - previous conviction of similar conduct - evidence of previous conviction permissible in determining risk of future event

Practice and procedure - evidence - burden of proof for serious allegations - sexual conduct - requisite level of satisfaction - comfortable satisfaction

South Australian Civil and Administrative Tribunal Act 2013 s 70

Residential Tenancies Act 1995 s 87, s 93, s 113

South Australian Housing Trust Act 1995 s 5

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Squire & Squire v South Australian Housing Trust [2015] SADC 2

Ms Ananda Tsoundarou and Ms Alison Randle, Housing Legal Clinic for the applicant

1. Mr Goji commenced a five year fixed term tenancy on 2 December 2017 at unit 11, 62 Margaret Avenue, West Croydon. The landlord is the South Australian Housing Trust (SAHT). An SAHT employee, Emily, attended at the premises on 13 July 2018. There was an interaction between Mr Goji and Emily. As a result of that interaction, SAHT applied to the Tribunal on 24 July 2018 for an order terminating the tenancy and that vacant possession be given to the SAHT. The basis of that application was that, in the interaction with Emily, Mr Goji had intentionally or recklessly caused or permitted personal injury to Emily who was an officer of the SAHT, the landlord.
2. After a contested hearing, the Tribunal granted the application. On 24 August 2018, the Tribunal ordered that termination and possession would occur on 21 September 2018. Immediate possession was not granted so that Mr Goji would have an opportunity to find alternative accommodation.
3. Mr Goji sought an internal review of the decision. He did not vacate the premises. He applied for the orders to be stayed pending the outcome of the internal review and I, on 25 September 2018, ordered that the order for vacant possession be stayed pending the hearing of the internal review. Orally at the hearing, I extended that stay until the determination of the internal review.

1. The application is made under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act).
2. Section 70 of the SACAT act provides that:
   • (a) On an internal review the Tribunal must examine the original decision of the Tribunal on the basis of the evidence or material before the Tribunal at that time but the Tribunal may allow further evidence or material to be presented to it;
   • (b) The Tribunal must make the correct or preferable decision having regard to the original decision;
   • (c) When dealing with an application for internal review the Tribunal may:
     1. Affirm the decision under review;
     2. Vary the decision under review;
     3. Set aside the decision under review and:
        • - Substitute a new decision; or
        • - Refer the matter back to the Tribunal as originally constituted in accordance with directions or recommendations;
     4. Make interim, ancillary or consequential orders.
3. Both parties were represented with the permission of the Tribunal under s 113 of the Residential Tenancies Act (the RT Act). Mr Goji was assisted by an interpreter in the Russian language.

1. The issues on review were:
   • - Whether the factual findings were correct;
   • - Whether the Tribunal should admit fresh evidence;
   • - Whether the facts enliven the operation of s 87(2) (to terminate and grant possession) and in particular;
     • Whether the conduct was intentional or reckless
     • Whether the consequences amounted to personal injury
   • - Whether the Tribunal ought to have exercised its discretion to make the orders and in particular;
     • Whether its role as a public housing provider is such as to militate against the order
     • Whether Mr Goji's personal circumstances militated against the order.

1. The factual findings made by the Tribunal were:[1]
   • - That Mr Goji made many inappropriate personal comments to Emily during the interaction;
   • - That some of the comments might be explained by cultural differences or attempts at kindness;
   • - That the comments that he made about her breasts could not be explained by cultural differences or attempts at kindness;
   • - That Mr Goji put his hand on Emily's leg above the knee and it was not merely an attempt to be friendly;
   • - That Mr Goji's overtures were sexual and he was aware of that;
   • - That he acted with disregard to her feelings about his actions;
   • - That Mr Goji repeatedly asked Emily to stay ;
   • - That during the interaction, Mr Goji twice in 15 minutes became angry and that Emily became frightened as a result;
   • - That Mr Goji hugged and kissed her as she was trying to leave;
   • - That Emily suffered significant psychological harm as a result of the interaction with Mr Goji on 13 July 2018.

1. Mr Goji was permitted to give additional evidence. He did so in two ways. There were factual assertions made in the submissions filed by his representatives, Welfare Rights Centre (SA) Inc., dated 15 October 2018, and he was called as a witness to recount the relevant events. The Tribunal also agreed to receive a letter from Mr Goji's general practitioner dated 22 September 2018, describing Mr Goji's health and current medications.
2. SAHT also submitted further evidence as follows:
   • - An antecedent report and an apprehension report regarding a different incident some years earlier;
   • - A statement of an SAHT employee, Julia Mangan;
   • - A document entitled "Housing Trust SA Risk Management Report";
   • - A statement of an SAHT employee, Anne King.

Decision on review regarding the events of 13 July 2018

1. The written submission on behalf of Mr Goji asked that, because of the seriousness of the allegations and their consequences for Mr Goji if accepted, the Tribunal should not accept Emily's version of events without corroboration. Perhaps another way of putting this is that I should acknowledge the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and demand a level of satisfaction as to the truth of the allegations that is closer towards the criminal standard than the lowest end of the spectrum of satisfaction that describes the 'balance of probabilities'. I accept that the allegations and consequences are grave. Mr Goji stands to lose his tenancy. However, the Tribunal also has the requisite level of comfortable satisfaction to be confident that Emily's version of events, so far as it differs from Mr Goji's, is correct in all material respects. Whilst there was no third party eye-witness (as there often is not in cases concerning allegations of sexual conduct), there was corroborating evidence in Emily's conduct immediately after the incident and consistently since then.
2. It is also significant that evidence submitted by Mr Goji concerning his health status, in support of his argument that eviction would have a particularly deleterious effect upon on him, might also shed light on the disparity between the witnesses' evidence in a way that does not assist Mr Goji. The medical evidence indicates that he suffers from short-term memory loss. His evidence at the first hearing was that after Emily's visit, and notwithstanding that it had ended with Emily's odd sudden departure on his version of events, he forgot about it.[2] This evidence only undermines Mr Goji's submission that he is to be believed over Emily.

Do the findings provide grounds for termination of the tenancy under section 87?

(2) The Tribunal may, on application by a landlord, terminate a residential tenancy and make an order for immediate possession of the premises if the tenant or a person permitted on the premises with the consent of the tenant has, intentionally or recklessly, caused or permitted, or is likely to cause or permit -

(a) serious damage to the premises; or

(b) personal injury to -

(i) the landlord or the landlord's agent; or

(ii) a person in the vicinity of the premises.

A number of legal issues arise for determination before it can be concluded that the facts as found support a termination of the tenancy. Some were canvassed in the original decision and others were raised on review. They are:

- Whether the harm caused to Emily is a personal injury;

- Whether the harm was caused recklessly;

- Whether the evidence supports a likelihood of Mr Goji causing harm in the future (not previously raised);

- What the SAHT's role as public housing provider has on the decision to terminate and grant vacant possession (not previously dealt with in detail);

- Whether Mr Goji's personal circumstances lead to the conclusion that the tenancy ought not to be terminated.

Psychological harm - whether a personal injury?

1. Originally, the basis of the Trust's application for vacant possession was that Mr Goji had caused a personal injury to the Trust's employee. On review, the Trust argued that the evidence also supported a further ground of eviction, namely that Mr Goji was likely to cause personal injury to a Trust employee or a person in the vicinity of the premises, in the future.
2. Both of these grounds require the Tribunal to find that psychological harm is a form of personal injury. Mr Goji sought to argue that the relevant provisions could have expressly referred to psychological harm but did not and that the Tribunal should construe the provision so as to confine it to physical injury.
3. The preferable construction does not confine the term "personal injury" in this way. The Macquarie Dictionary defines 'personal injury' as

Adjective

1. of or relating to a particular person; individual; private: a personal matter.

2. relating to, directed to, or aimed at, a particular person: a personal favour.

a. relating to the physical presence or involvement of a person: a personal appearance at the concert; a personal interest in the shop.

b. relating to what serves the advantage of a particular person: personal gain.

4. referring or directed to a particular person in a disparaging or offensive sense or manner: personal remarks.

5. done, affected, held, etc., in person: a personal conference; personal service.

6. relating to or characteristic of a person or self-conscious being.

7. of the nature of an individual rational being: a personal God.

8. relating to the person, body, or bodily aspect: personal cleanliness.

9. Grammar

a. denoting grammatical person. For example, in Latin portō `I carry', portās `you carry', portat `he, she or it carries', -ō, -ās and -at are said to be personal endings.

b. denoting a class of pronouns classified as referring to the speaker, the one addressed, and anyone or anything else.

10. Law denoting or relating to estate or property consisting of moveable chattels, money, securities and choses in action (distinguished from real). [3]

When given its ordinary meaning, there is no reason to distinguish between the physical and the psychological. There is nothing to be taken from the objects of the South Australian Housing Trust Act 1995 (the SAHT Act) that would indicate that a narrower approach is to be preferred. [4] Both types of harm are capable of being confirmed by an expert third party. The Trust has the same work health and safety obligations to its staff in relation to both their physical and psychological well-being.

1. Having found that psychological harm can constitute a personal injury for the purposes of s 87 of the SAHT Act, there still remains a question of whether such harm was proven. In the original hearing, SAHT advanced no professional evidence about the harm to Emily. Acting Deputy President Johns nevertheless concluded that there was sufficient evidence from Emily herself to form the view that an injury had been suffered. Whilst this was open to the Member, it is unusual to be able to form a view about a psychological injury without the evidence of a doctor or psychologist. Some forms of harm will not amount to an injury. A passing embarrassment, or a short shock, may not constitute an injury. In this case, the symptoms were described with sufficient detail and had a sufficiently lasting effect to satisfy Acting Deputy President Johns that they amounted to an injury. Such a conclusion was not foregone and it is surprising that SAHT was willing to make its application, which entailed the giving of evidence by their employee in circumstances that caused a deal of further angst, and entailed such grave potential consequences for their tenant, Mr Goji, without preparing its case to address this point.
2. The issue was properly the subject of criticism in Mr Goji's submissions. However the deficiency in the original case was addressed by the SAHT's provision of fresh evidence on review in the form of the undated medical report received by the Tribunal on 15 October 2018 which addressed this evidential weakness. There was some suggestion from Mr Goji that the cause of any injury might not have been any actions on his part but some underlying, undisclosed issue in Emily's life. There is no evidence to support that. Emily's evidence was that Mr Goji's actions were the cause of her distress, and the evidence of Ms Mangan supports a dramatic change in her behaviour and attitude to work immediately following the incident and thereafter. I am satisfied that Emily suffered a personal injury and that it was caused by Mr Goji's actions on 13 July 2018.

1. The harm must have been intentionally or recklessly caused. The evidence did not support a finding that Mr Goji intended to harm Emily. The Macquarie Dictionary defines "reckless" as "utterly careless of the consequences of action, without caution".[5] In a legal context, the term 'reckless' is sometimes defined by the use of words around it (particularly words relating to probability) but for present purposes describes a mental state in which knowledge is not present but an appreciation of the likely or probable consequences of an act is present.
2. Having found that Emily's evidence that he made comments to Emily about her beauty and her breasts, that he touched her intentionally on the leg above the knee whilst making statements about her looks, that he hugged and kissed her, and that he positioned himself such that it was difficult for her to leave the house, in circumstances in which:
   • - The relationship was a professional one;
   • - The two were barely acquainted;
   • - Emily gave no indication that she sought or consented to those actions;
   • - Emily gave indications that she wished only to conduct the professional task that she had attended his house to undertake;
   • - She told him she had to leave the house;

SAHT submitted that the evidence of Mr Goji's antecedents provided further support for the view that Mr Goji could not be under any misapprehension about the likely reaction to his conduct. Relevant from his antecedent report is a conviction, in 2013, for the offence of indecent assault. The apprehension report was provided to the Tribunal describing the offence. Mr Goji did not seek to contradict it. In short, Mr Goji was alleged to have indecently assaulted a woman who was a stranger to him in the street. He first asked the woman some questions and then "pinned" her to the trunk of a tree. He touched her breasts a number of times. He kissed her on both cheeks. The victim stated that he smelt of alcohol and was 'rambling and praising God'. She extricated herself from his grasp and went home, describing feelings of discomfort and fear. When he was later arrested and detained in the police cells, he stepped toward a female police officer. She told him to step back, and he told her not to touch him and then "raised his left arm and pressed his left index finger firmly into her right breast causing discomfort and embarrassment." He was convicted of these offences and a period of imprisonment for 9 months, suspended on a good behaviour bond of $500 with supervision conditions, was imposed.[6]

1. I conclude that Mr Goji was reckless as to the reasonable likelihood that his interaction with Emily on 13 July 2018 would cause fear, discomfort, anger and embarrassment to her.

1. In the original hearing the Trust relied upon the ground of the harm that had been caused to Emily, as a basis for seeking an order terminating the tenancy. On review, it sought to argue that it was open to the Tribunal to find that the termination should also be granted because of the risk posed by Mr Goji that he would cause harm in the future.
2. Whilst the review was brought by Mr Goji, the nature of the review hearing is such that it is open to the Tribunal to find that a different or additional ground for the respondent's original application is substantiated. The Tribunal must determine the matter on the substantial merits of the case. Whether a respondent is permitted to argue different or additional grounds will be determined by whether the applicant for review is sufficiently on notice of the different or additional grounds, and whether the respondent ought to be permitted to present them bearing in mind the desirability of finality, the costs associated with bringing an application for review (and conversely the undesirability of respondents avoiding such costs where they anticipate a review by the applicant) and the diligence of the respondent in the conduct of the matter at first instance.
3. In this case, the additional ground does not materially alter the basis of the application and was foreshadowed in the applicant's submissions. It would have been preferable for it to have been foreshadowed earlier but there is no suggestion that the respondent deliberately withheld this argument from the applicant.
4. The Trust's argument was that the evidence, including the fresh evidence of the antecedents, provide a basis for a finding that Mr Goji presents a risk of causing harm to others that, of itself, warrants a termination of the tenancy.
5. The Tribunal's receipt of the antecedents for this purpose was not challenged. The Trust submitted that Mr Goji's previous conviction relating to an unwanted sexual advance on a young woman unknown to him, and conviction for assault for deliberately poking a female police officer in the breast, can be used by the Tribunal in its consideration of whether Mr Goji is likely to cause personal injury to a person in the future.
6. In criminal cases, where the trier of fact is asked to decide whether, beyond reasonable doubt, an event occurred, reliance on proven similar events in the past is impermissible. However past events are an acceptable source of evidence of a risk of a similar future event. I consider that the evidence of Mr Goji's antecedents supports the view that he presents a risk of causing harm in the context of his tenancy, such as to a neighbour or to an SAHT employee. Further, given Mr Goji's denial of some of the important elements of the conduct, I cannot conclude that he thinks differently about such conduct.

1. Welfare Rights Inc. submitted that the Tribunal needed to be satisfied that the behaviour that occurred warrants immediate eviction. It stated:

Many public housing tenants have criminal records, including some with serious criminal offences. For these tenants, there is often little other choice available to them.

Whilst the Parliament has conferred SAHT with function including to assist people to secure an maintain affordable and appropriate housing by acting as a landlord of public housing in the State: s 5(1)(a). But it is also the case that the SAHT is entitled to terminate tenancies on grounds that operate on both it and private landlords. Parliament did not create a wholly different regime for the standard of conduct of a tenant in public housing. In particular, there is no indication that Parliament requires the SAHT to tolerate behaviour by its tenants that amounts to unlawful conduct against its employees or neighbours. The fact that, as Welfare Rights Association submits, many of the tenants may have criminal convictions, may suffer disadvantage, and even mental illness, does not authorise actions such as those which Mr Goji has been found to have undertaken.

1. However, it might be expected of the SAHT that its policies and operations enable it to reduce the likelihood, or the consequences, of such behaviour by its tenants. The Tribunal accepts, therefore, that the SAHT has some obligation to investigate and implement alternatives to eviction. The statements of the District Court in Squire & Squire v South Australian Housing Trust[7] with respect to s 87(2) of the RT Act remain apt:

Sufficient consideration ... [must be given to] ... less draconian step[s] ... [as provided for by] other alternatives under the Act.

1. Mr Goji's representatives suggested that by making arrangements for two males to attend his house if the SAHT needed to attend, it would not be overly burdensome for SAHT. The SAHT maintained that, whilst it could and would adopt measures to protect its employees from Mr Goji's conduct in the short term until the matter could be resolved, to be required to do so in the longer term creates a burden that the Parliament did not intend SAHT to carry. The Tribunal accepts this submission. In so doing, it is important to recognise the distinction between the SAHT's obligations to assist disabled tenants and it obligations to tolerate tenants' intentional or reckless conduct causing harm. The two are quite different. Although Mr Goji has some difficult personal circumstances that require the SAHT to consider alternatives to eviction (for example, if he were to have a disability that led to unsafe hoarding of goods, or physical disabilities that made it difficult for him to comply with his obligations to maintain the property to a reasonable standard), such circumstances do not oblige the SAHT to tolerate unlawful conduct causing harm to its staff or to third parties.
2. That is not to say that the SAHT can be cavalier about the protection of its staff. In this matter the Tribunal was troubled by the lack of a policy or procedure that would have meant that Emily did not visit Mr Goji's house alone when there was no particular reason that he could not have come into the office. Nor did it appear that there was any independent risk assessment of the likelihood of the event that occurred.

1. The parties' submissions on this issue diverged. Mr Goji tendered a medical letter which stated that his physical and mental health is stable and opined that a contributing factor to that was his current housing situation. Conversely, the letter goes on to say, loss of accommodation "will cause deterioration in his physical and mental health" and an increase in alcohol consumption and worsening of his depression. The conditions listed in the report (though not all stated to be currently symptomatic) are fatty liver, ischaemic heart disease, depression, Korsakoff's psychosis, alcohol dependence, mental impairment and short term memory loss.
2. It was submitted and not disputed that Mr Goji would not be able to afford the equivalent housing that he currently has, if his tenancy is terminated, in the private rental market. It was suggested that he would only be able to afford a boarding house or hostel.
3. The Crown Solicitor on behalf of the SAHT conceded that Mr Goji's personal circumstances are a relevant factor in the decision by the SAHT to seek eviction, bearing in mind its obligations as a public housing provider, and by the Tribunal in determining whether an order for termination and a grant of vacant possession are appropriate.[8] The SAHT's position is that Mr Goji's personal circumstances are not unusual or particularly difficult in the context of the cohort of persons meeting the eligibility criteria for public housing. Apart from his medical conditions, and the isolation that may flow from not being able to converse with neighbours and other community members in his first language, the Tribunal was not asked to take into account any other factors. It is undesirable and unfortunate that the Tribunal is faced with the making of an order that seems likely to have the effect of worsening the prospects and living conditions when they already face disadvantage. The Residential Tenancies Act clearly recognises that hardship is a relevant factor in eviction but it does not - however dire the circumstances - authorise a continuing or serious breach of the contractual relationship. [9] For SAHT tenants, the allowances made for tenants tend to be greater, and the expectation of the SAHT that it will consider the alternatives is justified by its statutory role. In this case, Mr Goji has not established that his personal circumstances are so extraordinary as to warrant treatment that is different from the other tenants seeking public housing.

1. In all the circumstances I have decided that there are no grounds to set aside or vary the original Order and so I will dismiss the application. As I indicated at the hearing, I will hear the parties on the issue of the appropriate date for vacant possession to be granted. The Registry will contact the parties to determine the most efficient way for this to occur.

1. The application is dismissed and the decision under review is affirmed.
2. The stay of the order for vacant possession is extended until a date to be fixed by the Tribunal upon hearing the parties.

[1] South Australian Housing Trust v Goji (Unreported, SACAT, Johns A/DP, 24 August 2018) [22].

[2] Transcript of Proceedings, South Australian Housing Trust v Goji (SACAT, 2018/SH007945, Johns A/DP, 24 August 2018), 19.

[3] Susan Butler (ed), Macquarie Dictionary (online ed, at 1 November 2018) 'Personal injury'.

[4] South Australian Housing Trust Act 1995 (SA) s 5.

[5] Susan Butler (ed), Macquarie Dictionary (online ed, at 1 November 2018) 'Reckless'.

[7] [2015] SADC 2 (16 January 2015).

[8] South Australian Housing Trust, 'Respondent's Written Submission', Submission in Goji v South Australian Housing Trust, 2018/SIR000299, 16 October 2018, [48].

[9] Residential Tenancies Act 1995 (SA) s 93(4)(a).