Higgins v NSW Land and Housing Corporation

Background and the Decision of the Tribunal

1. There was one shed on the Property at the commencement of the tenancy, and the tenant erected a second shed during the tenancy. The fire occurred in the backyard and one of the sheds of the Property. As a result of the fire, one shed collapsed completely, and the second shed was also destroyed.
2. The tenant gave evidence and was questioned by the Tribunal. As recorded by the Tribunal in its Decision, the tenant initially denied that he had done any electrical work on the Property, however, presented with evidence by the Tribunal, the tenant admitted that he had installed a double power point under the house. The tenant also confirmed that he was not a qualified electrician. Questioned further, the tenant agreed that he had removed lock out tags (which we understand were installed after the fire), saying that the landlord did not act quickly enough.
3. The tenant denied that he had ever used the double power point which he had installed under the house. The Tribunal did not accept this evidence, noting that the tenant's evidence was inconsistent and that there was a power plug photographed next to the power point under the house.
4. The Tribunal found that the tenant used the power points which he had installed under the house and connected a cord from these power points to the 'shed/s'. The Tribunal noted that the power points were not installed by a qualified electrician, which the tenant admitted.
5. There was some red cabling under the house referred to in the BG Enterprises Report tendered by the landlord. The tenant denied he had installed this cabling or wiring. The Tribunal could not reach any conclusive finding regarding this wider wiring under the house.
6. The tenant gave evidence that he only ever used an extension cord from his bedroom window to the original shed on the Property. The Tribunal had concerns with this evidence. The Tribunal noted that the shed installed by the tenant was the shed that was most affected by the fire, suggesting a source of power went to the shed.
7. Given the Tribunal's earlier statement about an extension cord being used by the tenant and the finding that the tenant 'both installed and used power points under the house and connected to the shed/s', the Tribunal must have been making a finding that the tenant both installed the double power point under the house and connected power from that 'source to the shed/s' by an extension cord and, in particular, the shed erected by the tenant.
8. The Tribunal also referred to the tenant's evidence that an unknown third party may have been responsible for the fire. The Tribunal regarded such evidence as too vague and insubstantial to provide a basis for concluding that a third party was responsible for the fire.
9. Apart from the evidence of the tenant, the Tribunal referred to the BG Enterprises Report dated May 2021. The Tribunal stated that its finding as to the tenant being the cause of the fire was based on the tenant's own oral evidence that he had installed a double power point under the house and that he was not a qualified electrician, as well as the report from BG Enterprises. In particular, the Tribunal referred to the following: ● Visual inspection found illegal wiring connected to the power circuits under the building, and illegally and dangerously wired cabling to a non-approved shed on the property and to lights and modified power outlets under the house (pg 13); and ● Tenant attempted own wiring to lights and power, tenant damaging power outlets off walls and light switches removed by tenant as he didn't want architraves anymore (pg 13); and ● Illegal shed with illegal power (shed burnt down but debris still onsite, power to shed removed on a reactive work order) (pg 14, point 11).

Nature and scope of internal appeals

1. This is an internal appeal from a Decision from the Consumer and Commercial Division.
2. To succeed in an appeal, the Appellant must demonstrate either an error on a question of law, which may be argued as of right; or that permission (that is, 'leave') to appeal should be granted to bring the appeal: see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
3. The Appeal Panel has a discretion whether to grant leave under s 80(2) of the NCAT Act.
4. In the case of an application for leave to appeal from a decision from the Consumer and Commercial Division, under cl 12(1) of Schedule 4 of the NCAT Act, the Appeal Panel's discretion to grant leave is only enlivened if the Panel is satisfied that: The appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
5. The principal guidelines for the grant of leave to appeal are well established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17, (Collins v Urban). They are the same principles applied by the courts, see, for example, Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 at [28].
6. These principles were summarised in Collins v Urban at [84] as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

The Notice of Appeal

1. The Appellant raises three grounds of appeal as follows: 1. Ground 1: there was no evidence to support the Tribunal's finding that the tenant caused the fire; 2. Ground 2: the Tribunal's finding that the tenant caused the fire was unreasonable and/or illogical; and 3. Ground 3: the tenant has suffered a miscarriage of justice because the Tribunal's decision was against the weight of evidence.
2. We accept that the ground usually described as a 'no evidence ground' raises a question of law: see Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 [90] - [91] (Hayne, Heydon, Crennan and Kiefel JJ) and at 402 [33] by French CJ; Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(7)].
3. We also accept that a ground of 'unreasonableness' raises a question of law: see Prendergast v Western Murray Irrigation Ltd at [13(8)].
4. Further, a decision which is reasoned illogically, or which lacks an evident and intelligent justification, is unreasonable in a legal sense: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 366 [72], 367 [76] (Hayne, Kiefel and Bell JJ).
5. The tenant accepted that ground 3 requires leave to appeal.

Consideration

1. Mr N Bhagwat, Solicitor, appeared for the tenant and Mr P Broad, Solicitor, appeared for the landlord. We are indebted to the legal representatives for their helpful submissions and the efficient manner in which they conducted their oral presentation to the Panel.
2. The parties, rightly, concentrated on the contents of the report from BG Enterprises.
3. First, Mr Bhagwat submitted that there was insufficient evidence as to the qualifications of the author of the BG Enterprises Report to justify it being received as expert evidence. The Report was headed 'Electrical Inspection Findings' and authored by Luke Gunton, 'Electrical Manager, Lic.213572c'.
4. The Report was received by the Tribunal below without objection as to the qualifications of the author. Mr Broad submitted that the reference to Mr Gunton being an Electrical Manager, plus the reference to the licence number would allow the inference to be drawn that Mr Gunton was a qualified electrician and could speak as to the matters referred to in the Report and the conclusion as to illegal wiring.
5. We accept Mr Broad's submission in this regard that an inference can be drawn as to the qualification of Mr Gunton as a licensed electrician. In any event, we do not think the tenant can raise this point for the first time on appeal when it was not raised below and could have been dealt with by further evidence as to the qualifications of Mr Gunton at the time: see Suttor v Gundowda Pty Ltd [1950] HCA 35 at [9] and Coulton v Holcombe (1986) 162 CLR 1 at 7.
6. Finally, we note that the receipt of the BG Enterprises Report was not the subject of a ground of appeal and was not sought to be added as a ground at the hearing.
7. Next, attention was paid to a statement in the BG Enterprises Report that 'visual inspection found illegal wiring connected to the power circuits under the building' and 'illegally and dangerously wired cabling to a non-approved shed on the property and to lights and modified power outlets under the house'.
8. Mr Bhagwat submitted that the 'illegally and dangerously wired cabling' was most likely a reference to a red cable photographed in the BG Enterprises Report underneath the house which the tenant claimed was not installed by him. In this regard, we note the Tribunal could reach no conclusive finding regarding whether the tenant had installed 'the wider wiring under the house'.
9. Mr Broad, quite fairly and correctly, accepted that the Tribunal came to no conclusion about the tenant's role with respect to the wiring which the BG Enterprises Report referred to as 'illegally and dangerously wired cabling to a non-approved shed on the property'.
10. Accordingly, all that can be taken, relevantly, from the BG Enterprises Report is the fact that the tenant installed a double power point and some wiring under the house, that the tenant is not a qualified electrician, and such wiring was 'illegal'. The BG Enterprises Report did not describe this wiring as 'dangerous', let alone as a fire hazard. We regard this of particular significance.
11. Next, Mr Bhagwat focused on the following sentence in the BG Enterprises Report which reads as follows: A Fire pit was located between the shed and the House, and this appears to be the likely culprit for the fire damage as heat from the fire although not direct would given time have heated up to cause the surrounding material to ignite causing this damage.
12. Mr Bhagwat submitted that this was evidence of the 'likely culprit' or cause of the fire which should have been accepted by the Tribunal. Further, in any event, the sentence as to the fire pit being the likely culprit significantly detracted from any assumption that the Report was concluding that the illegal wiring was the likely cause of the fire. The statement in the Report that the fire pit was the likely cause suggests that the author of the Report did not regard the illegal wiring as causative of the fire.
13. Mr Broad submitted that it was not part of the tenant's case before the Tribunal that the fire pit was a likely cause. The tenant gave evidence that the fire pit had not been used at any relevant time such that it could have been a potential cause of the fire.
14. Otherwise, Mr Broad accepted that it was the statement in the report that there was 'illegal wiring connected to the power circuits under the building' which was the entirety of the expert's evidence in support of the finding of the Tribunal that the tenant was responsible for causing the fire.
15. In our view, this is a wholly insufficient basis for a conclusion that the tenant was the cause of the fire. In our opinion, there is no logical connection between the wiring being 'illegal' and being a likely or potential source of the fire.
16. The two, without more of an explanation from an expert, do not constitute a basis for a finding that the illegal wiring was a cause of the fire. The existence of illegal wiring, without more, does not constitute evidence of a fire hazard or a potential source of fire to the shed.
17. In other words, without further evidence of an expert nature or otherwise, the fact that there exists under the house illegal wiring (assuming it to have been connected at the relevant time to the shed) does not permit a finding to be made that this was the likely cause of the fire in question.
18. Further, and in addition, the statement by the expert that the cause of the fire was the fire pit, fortifies and reinforces our view. The statement that the fire pit was the likely cause suggests that the expert was not expressing an opinion that the illegal wiring was a likely or potential cause of the fire.
19. In the result, in our view, there was simply no evidence before the Tribunal as to what caused the fire. The Tribunal's conclusion that the tenant caused the fire was nothing more than mere conjecture: see Australian Information Commissioner v Facebook [2020] FCA 1307 at [38]; Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262 at [87], [91] per Spigelman CJ.
20. Further, in our view, on the evidence before the Tribunal, the conclusion that the wiring in question was the likely cause of the fire was an unreasonable finding and illogical.
21. If we are wrong about this conclusion, we would uphold the appeal based on ground 3 and grant leave to appeal.
22. For the reasons we have already given, there is a significant possibility that the tenant would have achieved a more favourable result if the Tribunal had not made findings that had no basis in the evidence or was against the weight of the evidence.
23. Further, we are satisfied that the Decision will likely cause significant prejudice and financial hardship to the tenant, who is on a pension, such that it would be unjust to allow the Tribunal's findings to stand.
24. For the above reasons, we are also satisfied that we should exercise our discretion to grant leave to appeal on the basis that the errors made by the Tribunal go beyond what is merely arguable and that there was a clear error in the Tribunal's fact-finding process.
25. For completeness, we note that Mr Bhagwat submitted that the finding of the Tribunal that the tenant had connected an extension cord to the shed was erroneous and had no basis in the evidence. The tenant was consistent in his denial in this regard and, according to Mr Bhagwat, a failure to believe the tenant's denial does not form a basis for a positive finding that such a cord was installed between the illegal wiring and the shed.
26. For the reasons we have given above in deciding to uphold the appeal, we do not need to come to any conclusion on this submission. Even on the assumption that the tenant connected an extension cord to the shed from the wiring he had installed, we are satisfied there was no proper basis for the finding that this was the likely cause of the fire.
27. Mr Bhagwat submitted the standard in Briginshaw v Briginshaw (1938) 60 CLR 336 should apply given the grave consequences for the tenant: citing Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at 311 [63]; Shaw v Wolf (1998) 83 FCR 113 at 123-5; Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 at [60].
28. In particular, Mr Bhagwat referred to the remarks of the Appeal Panel in Jackson at [60] that there was merit in the submission that a finding of recklessness against a social housing tenant attracted the operation of the Briginshaw principle given its possible consequences for the tenancy. It was submitted that a finding that the tenant, in substance, breached either s 51(1)(d) or s 66(1) of the Residential Tenancies Act 2010 (NSW) (RT Act) would be ground for termination of his tenancy under s 87 of the RT Act. It was pointed out that this will have grave consequences for the tenant who has lived at his current address for 10 years as would the order to pay $12,242, given the tenant is a recipient of the Disability Support Pension.
29. Mr Broad submitted that there is no legal principle that an administrative tribunal is bound to apply the standard in Briginshaw v Briginshaw to fact finding where potential findings are grave or serious, where the rules of evidence do not apply. Nevertheless, Mr Broad accepted that it is not impermissible for an administrative tribunal such as NCAT to rely on the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW): citing Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, at [126]-[127]; Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35]; Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176, [2013] VSCA 305 at [29]-[40]; Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540, [2014] VSCA 322 at [22]-[30]; Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555, [2014] FCAFC 93 at [98]-[122] and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.
30. Mr Broad finally submitted that the potential of the adverse findings to cause the Appellant financial hardship and the termination of his tenancy is insufficient to attract the principle in Briginshaw supplemented by s 140 of the Evidence Act.
31. Like the Appeal Panel in Jackson, we think there is merit in the submission that the finding that the tenant caused the fire should attract the operation of the Briginshaw principle supplemented by s 140 of the Evidence Act given its likely consequences for the tenant. We do not feel, however, it is necessary for us to express a concluded view as to whether or not the standard in Briginshaw v Briginshaw supplemented by s 140 of the Evidence Act should apply. We have come to the view that the Decision cannot stand even if the conduct in question and the consequences for the Appellant did not call for the Tribunal below to adopt the Briginshaw approach.
32. In conclusion, we will allow the appeal, and to the extent necessary, grant leave to appeal on ground 3.

Orders

1. The orders of the Tribunal will be: 1. Leave to appeal is granted. 2. Appeal is allowed. 3. Set aside the orders of the Tribunal in SH 21/36517 made on 8 March 2022 and in lieu thereof order that the Respondent's application be dismissed.

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: 15 June 2022