Griffen v Gunida Gunya Aboriginal Corporation

NCAT Appeal Panel|2018-11-14

Solicitors: Legal Aid NSW (Appellant) M. Wasile (an employee)(Respondent) File Number(s): AP 18/38306 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 17 August 2018 Before: P Harris, General Member File Number(s): SH 18/25931

Summary

This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) dated 17 August 2018 (the Decision).
The Tribunal terminated a residential tenancy agreement between the parties on 31 August 2018 and ordered the appellant Ms Louise Griffen (hereafter called the Tenant) to give possession of the residential premises to the respondent, the Landlord Gunida Gunya Aboriginal Corporation (hereafter the Landlord) on that date.
The Tenant has appealed from the Decision on a variety of grounds.
For the following reasons we have decided to remit the matter to a differently constituted Tribunal.

Extension of time

The Tenant lodged her appeal on 4 September 2018. She claimed to have received the Decision on 17 August 2018. The Tenant's appeal was therefore lodged two days outside the period specified by rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). The Tenant sought an extension of time within which to appeal. Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) permits such an extension of time. The Landlord did not oppose the extension of time. As the delay is short and an extension is not opposed, it is appropriate to grant an extension of time, and we do so.

Principles

The Tenant's rights of appeal are limited by s 80(2)(b) of the NCAT Act which provides that an appeal against a decision other than an interlocutory decision of the Tribunal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

Appeal as of right

The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to the following as constituting errors of law: 1. (1) whether there has been a failure to provide proper reasons; 2. (2) whether the Tribunal identified the wrong issue or asked the wrong question; 3. (3) whether a wrong principle of law has been applied; 4. (4) whether there was a failure to afford procedural fairness; 5. (5) whether the Tribunal failed to take into account a relevant (mandatory) consideration; 6. (6) whether the Tribunal took into account an irrelevant consideration; 7. (7) whether there was no evidence to support a finding of fact; and 8. (8) whether the decision was so unreasonable that no reasonable decision-maker would have made it.

Appeal with leave

One ground of appeal required leave but as we have found an error of law, it is not necessary to consider the question of leave to appeal.

Notice of Appeal

By Amended Notice of Appeal dated 12 October 2018 the Tenant raises seven grounds of appeal. As the appellant succeeds on one of those grounds, we need only refer to that ground in these reasons. That ground broadly relates to the adequacy of reasons which is squarely raised in appeal ground (5) as follows: "the Tribunal erred in law in failing to set out adequate reasons for the Decision".

The proceedings in the Tribunal

In 2016, the Landlord and the Tenant entered into a residential tenancy agreement for a property situated in Gunnedah. It was not disputed that the agreement was a "social housing tenancy agreement" for the purposes of the RT Act. Apart from the Tenant, the other occupants were six of the Tenant's children. At the time of the hearing, the Tenant's mother also occupied the property.
Following a routine inspection by the Landlord in June 2018, the Landlord made an application to the Tribunal seeking a termination of the agreement and possession of the property. The ground for seeking the termination order was "serious damage to the residential premises" pursuant to s 90(1)(a) of the RT Act, which is in the following relevant terms: (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted: (a) serious damage to the residential premises or …
The matter was heard by the Tribunal at Gunnedah on 17 August 2018. The Tenant was represented by a tenancy advocacy service. The Tenant did not give evidence at the hearing nor did she provide any other direct evidence such as a statement or affidavit.
The Tribunal was satisfied of the matters in s 90(1)(a) that there was serious damage to the premises. Indeed, it was not contested by the Tenant. The evidence appeared to be overwhelming.
All of the Tribunal evidence was documentary, there was no evidence taken from any witnesses. The Tribunal hearing was brief, the whole transcript is contained in less than 6 pages.
The Tribunal ordered a termination of the tenancy on 31 August 2018 (that is post-dated to two weeks after the hearing) and ordered possession be given to the Landlord on the date of termination, together with other orders not presently relevant.
The Decision reasons at [11] record that the Tenant's evidence focussed upon the social support network organisations and planning then being mobilised to support the Tenant. This evidence appeared to be relevant to the discretion in s. 90(1) to make the termination order. However, the Tribunal was satisfied that the circumstances were sufficient to justify a termination of the agreement (refer Decision [14]) and that finding is not challenged on appeal.
As the Tribunal correctly points out, this case involved a social housing tenancy. Therefore, s 154D of the RT Act needed to be considered.
Section 154D relevantly provides as follows (underlining added): 154D TRIBUNAL REQUIRED TO MAKE TERMINATION ORDER IN CERTAIN CIRCUMSTANCES (1) Subject to subsection (3), the Tribunal must make a termination order on the application of a Landlord under a social housing tenancy agreement if: (a) [not relevant] (b) an application for the order is made under section 91 and the Tribunal is satisfied of the matters set out in section 91 (1) (a), or (c) [not relevant] (2) [not relevant] (3) However: (a) [not relevant] and (b) subsections (1) and (2) do not apply if the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered by a child, a person in whose favour an apprehended violence order could be made or a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977 who is occupying or jointly occupying the social housing premises, and (c) subsection (2) does not apply if the Tenant satisfies the Tribunal that there are other exceptional circumstances that justify the order not being made.
The Member states at [17] that he had considered s 154D. At par [19] he sets out the terms of s 154D(3), and notes that the Court of Appeal described s 154 as an "imperative obligation" in Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317. The Member concludes at [20] that: While I consider per 154D(3)(b) that hardship for a child may result from a termination order, I do not consider that to be beyond what any child would suffer in such circumstances and does not in this case constitute undue hardship.
At [21] the Member then states that he does not consider there are other exceptional circumstances as provided for in s 154D(3)(c).
This section has been considered recently in a number of cases including Orr v New South Wales Land & Housing Corporation [2018] NSWCATAP 237 and Hall v New South Wales Land & Housing Corporation [2018] NSWCATAP 257.
In Orr, the Appeal Panel considered the context and purpose of the provision and referred to the proper approach to statutory construction articulated by the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]. The Appeal Panel concluded: 53 The purpose of 154D(3) is to mitigate the harsh consequences of s 154D(1) for defined categories of people who occupy social housing premises in circumstances where an order for termination would otherwise be mandatory regardless of the degree of fault of the social housing Tenant. For s 154D(3) to be engaged, the Tribunal must be satisfied that termination of the agreement is likely to cause undue hardship to a person who falls into one of the specified categories and who is occupying the premises. That person may or may not be the Tenant. Each of these categories involves a person who may be regarded as less capable than others of dealing with the hardships that may ordinarily arise from the termination of a social housing tenancy. Section 154D(3) therefore requires specific consideration of the impact of termination of the social housing tenancy agreement on a child, a victim of domestic violence or a person with a disability.

The appeal and the submissions of the parties

The appellant submitted that the reasons were inadequate relating to undue hardship on a child. There were six children in occupation but the reasoning only disclosed a reference by comparison to what "any child" would suffer.
The respondent argued that the reasons were adequate. It said the reasoning of the Tribunal is apparent and satisfies the relevant test when account is taken of the matters referred to in [11] and [16] and when read as a whole.

The obligation to give reasons

Section 62(3) of the NCAT provides reasons must be given including

the findings on material questions of fact, referring to the evidence or other material on which those findings were based: s 62(3)(a);
the Tribunal's understanding of the applicable law: s 62(3)(b);
the reasoning processes that lead the Tribunal to the conclusions it made: s 62(3)(c).

A failure to provide reasons or adequate reasons is an error of law. However, the nature and extent of the reasons required are variable, depending on the circumstances of the particular case: Mifsud v Campbell (1990) 21 NSWLR 725 at 728; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Collins v Urban [2014] NSWCATAP 17 at [57]; DAG Aviation Pty Ltd v Kirk [2017] NSWCATAP 41 at [28].
A decision maker is obliged "to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues" Soulemzis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per Kirby P at 259.
The duty to give reasons is confined to the "essential ground or grounds upon which the decision rests" Segal v Waverley Council (2005) 64 NSWLR 177 at 201.
A "failure to refer to some of the evidence" is not necessarily fatal, but "for a judge to ignore evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge" may be an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 (per Samuels JA at 728).
A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: Waterways Authority; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing).

Were the reasons adequate?

In our view, the Member's reasons on this matter are inadequate in regard to the application of the statutory test of whether "the termination order would be likely to result in undue hardship being suffered by a child".
It does appear from the transcript and the documentary evidence before the Tribunal, that the Tribunal did not receive any assistance from the parties by way of submissions as to the application of s154D(3). The evidence did not directly address the issue of hardship. The documentary evidence was admitted without objection and no witnesses gave live evidence. The Tribunal asked for submissions. The Transcript shows the submissions appear to deal with the discretion available in s 90 (1) of the RT Act. The Transcript at p4 line 25 records the Member stating the competing issues for determination, as follows: "My concern, of course, on one hand is that there are a large number of children, to make them potentially homeless is a difficult thing. On the other hand, the condition of the premises I think is essentially the same as displayed in the June photographs, which gives some cause for concern as to the safety of the premises."
This is clearly referring to the discretionary matters whether to make the order in s 90(1). There were no submissions recorded from the parties concerning s154D(3) nor did the Tribunal raise the issue during submissions. It appears the first time the application of this section was considered was after the hearing concluded.
The Tribunal accepted that s 154D(3) was engaged because it was considering a termination of a social housing tenancy and that hardship for a child may result from the proposed order (see [20]). In turn, that meant the Tribunal was required to determine if that hardship was "undue".
First, the use by the Tribunal of the word "may" (at [20]) in that "… hardship for a child may result from a termination order…" might suggest that the Tribunal did not find or was not satisfied that the termination order would be likely to result in hardship being suffered by a child. However, the Tribunal went on to consider whether such hardship was undue and we think in that circumstance, the use of "may" in this context was just an inaccuracy as the Tribunal appears to be satisfied that at least some hardship to a child would be likely.
Next, the only reasoning in relation to whether that hardship was "undue" in this case was the that it was not considered to be "beyond what any child would suffer in such circumstances".
The problem is that the evidence, such as it is, does not appear to support the reasoning used by the Tribunal. The Landlord relied upon material referred to in [11] and [16] to argue the Tribunal took account of the evidence from social services in making its finding about "undue hardship". For completeness, we set out those paragraphs [italics added] [11] The respondent's [ie. the Tenant's] bundle of documents did not contest the status of the premises at the date of the application, but focussed instead on social support network organisations and planning being mobilised presently to support the respondent. [16] The respondent argued that termination and possession should not be ordered, as steps were being taken to provide support and domestic/ homemaker education to the respondent and her children. In this respect the respondent relied on correspondence and support plans from FACS and the Winanga-Li Aboriginal Child & Family Centre.
We do not agree with the Landlord's submission. These paragraphs, when combined with [20] do not cure the problem as they do not shed any light on the process of reasoning in the fact finding for application of the statutory test in s 154D(3).
The evidence available to the Tribunal showed that the social services support plans included a "Family Action Plan for Change" indicating that assistance was to be provided to the Tenant to ensure regular routines in the home to foster regular attendance of the children at school, arrival at school on time, properly dressed and with their lunch, positive communication with Gunnedah Public School and Gunnedah High School, that the children receive proper and timely medical care, that routines be developed to support the individual behavioural needs of all six of the children, the Tenant was to be helped to develop skills in budgeting and to keep her home safe, clean and free from further damage and ensure the children have adequate food, clothing, and shelter.
The evidence from the social welfare organisations was to the effect that the Tenant was struggling to provide basic welfare to the children including medical care, food, clothing and school attendance. The photos of the disorganised state of the premises and the damage to the premises is also consistent with this view.
There was enough evidence to prove that there were six children who would be affected by the termination order - their ages are not stated but some (or at least one) of whom was primary school age and some (or at least one) high school age. There was also enough evidence to prove or infer that there the Tenant was less capable of than others in dealing with welfare issues.
This evidence is undisputed as there was no other relevant evidence.
The inference that follows from the evidence, we think, is that termination of the tenancy will probably have a greater impact on the affected children when compared to other families. The opposing inference that the affected children would be less affected than others is probably not available as there was no evidence to support it. The inference that the affected children would be no more affected than others may be available, but we think that in the circumstances, some explanation of why would be required.
Whether the evidence and inferences of the impact on the affected children on a termination of the tenancy satisfied the Tribunal that the hardship fits the statutory descriptor of "undue" is the issue to be decided. We make no comment on what that decision should be. However, the comparison with "any child" when the evidence supported a different inference, does not appear to us to be an adequate statement of the reasoning process because it is unclear why that view was formed.
It is not a case where the Member overlooked the evidence by the social service organisations as it is referred to in [11] and [16]. Although the error is possibly a failure to evaluate all of the evidence bearing upon the relevant issue of fact (Waterways Authority at [133]), we prefer to characterise the error as a failure to explain why the finding was made in the face of such evidence.
From the reasons given, the analysis appears to be more theoretical than factual. While this may also constitute an error in the application of a statutory test, we prefer to characterise it as a failure to give reasons since the reasoning leading to the application of the test is unclear.
It is not appropriate for the Appeal Panel to substitute its own decision on such a discretionary factual matter and the matter must be returned for re-hearing by a differently constituted Tribunal.

Order 1. (1) Appeal allowed. 2. (2) Matter to be returned for re-hearing by a differently constituted Tribunal in accordance with these reasons.

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: 28 November 2018

Residential Tenancies Act 2013(NSW)

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