Jackson v NSW Land and Housing Corporation

NCAT Appeal Panel|2015-10-27

Solicitors: F McMullin, Legal Aid NSW (appellant) D Ford Advocate/Investigator Legal Services Branch Housing NSW (respondent) File Number(s): AP 15/40793 Decision under appeal Court or tribunal: Civil and Administrative Tribunal (NSW) Jurisdiction: Consumer and Commercial Division Citation: [2015] NSWCAT Date of Decision: 30 July 2015 Before: M Gilson, General Member File Number(s): SH 15/18118

Background

On or around 27 May 2005, the parties entered into a residential tenancy agreement: the appellant is the tenant and the respondent is the landlord. The landlord is a social housing provider under the Residential Tenancies Act 2010 (NSW) (the RT Act). By way of an application lodged on 23 April 2015, the landlord sought an order for termination and possession of the residential premises under s 90 of the RT Act. Section 90 of the RT Act provides a mechanism whereby the landlord may apply for a termination order where, relevantly to this case, there has been injury to an employee of the landlord, intentionally or recklessly caused or permitted to be caused by the tenant. In this case the injury occurred to the landlord's employee, Ms Greenaway, when she was injured by the tenant's dog in the front yard of the premises.
The parties are agreed that Ms Greenaway was in fact injured and that the injury was caused by the tenant's dog. The dispute centred on whether the application was out of time and whether s 90 of the RT Act applied in the circumstances.

Circumstances surrounding the injury

There is generally no dispute about the circumstances of the injury. On 22 October 2014, Ms Greenaway, an employee of the landlord attended the residential premises. She intended to deliver a letter to the property and was instructed to put the letter in the letterbox. On arriving at the property she noticed that the front door was open and she determined to enter the front yard with the intention of delivering the letter personally. As she approached the front door she was attacked by the tenant's dog, notwithstanding that the dog was tied to a rope at the time. The dog has since been destroyed.
There is a dispute as to the length of the rope and as to what happened after the dog attacked Ms Greenaway and in particular whether the tenant assisted her. There is also a dispute as to Ms Greenaway's purpose in entering the front yard and whether it was to inspect the property or simply to deliver the letter. It is not necessary to resolve these disputes for the purposes of determining the appeal.

Grounds of appeal

The notice of appeal relied on the following grounds articulated in a document styled "Further Amended Grounds of Appeal". First, it is contended that the Tribunal erred in its construction of s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) or in the exercise of its discretion under that section to extend time. Further, the Tribunal failed to afford natural justice in determining whether to exercise its discretion to extend time.
Second, with respect to s 90 of the RT Act, it is contended that the Tribunal erred in finding that s 90 was enlivened in circumstances where the injury to the landlord's employee occurred on the residential premises and not on neighbouring property. Third, it is contended that the Tribunal erred in its construction of s 90 of the RT Act and asked itself the wrong question in determining whether the tenant had been reckless in causing or permitting the injury. It is contended that the Tribunal asked itself the wrong question by asking whether the tenant was aware of "problems with the dog" and whether the tenant had placed the warning sign in an appropriate location and also it was contended that the Tribunal failed to take into consideration that the dog was restrained by a rope. Further, the tenant contends that the Tribunal erred by taking into consideration events after the attack specified in the application lodged on 23 April 2015. Finally, it is contended that the Tribunal erred in the exercise of its discretion to make a termination order under s 90 of the RT Act.

Questions of law

Section 80 of the NCAT Act provides that leave to appeal is of right on a question of law and by leave on any other grounds, unless the decision is an interlocutory decision, in which case leave is required.
The contentions with respect to the construction of s 90 of the RT Act raise questions of law. In Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42, the Appeal Panel identified at [22]-[23] that questions of statutory construction raise questions of law. Also, whether the Tribunal misdirected itself with respect to the statutory test is also a question of law: Seven Network Ltd v Australian Competition and Consumer Commission (2007) 164 FCR 127. Further, whether a decision-maker had regard to irrelevant considerations in making the decision is also a question of law: Craig v South Australia [1995] HCA 58 at [14]; (1995) 184 CLR 163; Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24.
With respect to exercising the discretion under s 90 of the RT Act, the tenant confined himself to the grounds set out at 505-506 of House v R (1936) 55 CLR 499, which raise questions of law. Those circumstances were summarised recently by the Court of Appeal in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [14] by Beazley P, Emmett JA and Tobias AJA. The court held that any attack on a discretionary decision must fail unless it can be demonstrated that the decision maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
With respect to the grounds concerning an extension of time, the tenant accepts that the decision was an interlocutory decision and seeks leave to appeal if necessary. The appellant contends that a question of law is raised and the circumstances warrant leave to appeal on the basis that the decision was not fair and equitable. Further, the appellant contends that, in any event, the extension of time decision has become part of the final decision and leave to appeal is not required as the substantive appeal raises questions of law.
The landlord on the other hand contends that the application for an extension of time is an interlocutory decision and the warrant for granting leave to appeal has not been made out.
An ancillary decision is defined in s 4 of the NCAT Act as a decision that is not an interlocutory decision that is preliminary to or consequential upon a decision determining proceedings, including a decision concerning whether the Tribunal has jurisdiction to deal with the matter. Ordinarily, one might expect a decision extending time to file an application to be an ancillary decision, but the expression interlocutory decision is defined in s 4 of the NCAT Act to include an extension of time for any matter, including the lodgement of an application. Accordingly, the extension of time decision was an interlocutory decision when made. An appeal from an interlocutory decision requires leave from the Appeal Panel (s 80(2)(a) of the NCAT Act) and an appeal from the Consumer and Commercial Division requires the conditions in Schedule 4, Part 6, cl 12 of the NCAT Act to be satisfied. This provision was the subject of consideration by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. In the case of an order terminating a tenancy under the RT Act and where a warrant for possession has been executed, an appeal may only be made on a question of law and leave is not possible: cl 12(2) of Sch 4 of the NCAT Act. We were not informed that a warrant for possession was executed, so this provision does not apply.
The grounds concerned with the extension of time, raise questions of law concerned with the construction of s 41 of the NCAT Act and whether the appellant was accorded natural justice. We are satisfied that this would warrant the granting of leave, but in any event, the extension of time decision has become part of the final decision determining the rights of the parties and is subject to appeal as part the final decision which, for the reasons referred to above, raise questions of law and leave is not required.
The appellant also sought leave to expand the appeal to the merits. However, the grounds of appeal raise questions of law and once the jurisdiction of the Appeal Panel is engaged, s 80(3) of the NCAT Act gives the Appeal Panel broad powers including the ability to deal with the appeal by way of a re-hearing. Once questions of law have been identified, at least so far as those questions are concerned, leave to extend to the merits is not necessary.

Extension of time application at first instance

At the hearing, the tenant's representative identified that the landlord had brought the application out of time. Regrettably, the tenant's representative erroneously indicated that the time limit was to be found in clause 22 of Schedule 3 of the Civil and Administrative Tribunal Regulations 2013 ('NCAT Regulations'). Schedule 3 of the NCAT Regulations contained the NCAT Interim Rules 2014 until new Rules were made by the Rules committee (see clause 11 of the NCAT Regulations as made). Clause 22 of the Civil and Administrative Tribunal Rules 2014 (NSW) ('NCAT Rules') refers to rejecting documents and does not refer to time limits. Thereafter, there was some discussion regarding where the time limit provision might be located.
At that time, the Tribunal held that there was no time limit, but out of abundant caution, held that even if a time limit applied, there was discretion under the NCAT Act to extend time. The transcript records that the Tribunal did so "because the reason this has ultimately been brought on is because of the subsequent events which have taken place due to the previous delay".
The RT Act does not specify a time period in which an application under s 90 of the RT Act is to be made. However, the NCAT Rules, in effect, provide at clause 23(3)(b), that where enabling legislation does not provide a time limit, the application to the Tribunal is to be made within 28 days from the day on which the landlord became entitled under the enabling legislation to make the application. In this case, the landlord relied on the dog bite on 22 October 2014 as the matter entitling the landlord to relief under s 90 of the RT Act. The application to the Tribunal was not filed until 23 April 2015, some six months later. No explanation for the delay was provided, however, there was evidence before the Tribunal to indicate that there were a number of subsequent incidents.
In the Written Reasons the Tribunal identified that the time limit could be found in rule 23(3)(b) of the NCAT Rules and accepted that there was merit to the contention that the application was lodged outside the 28 day rule referred to therein. Nevertheless, the Tribunal reiterated the position under the Oral Reasons and said at [16] "I stated that in the circumstances of this matter, I will of my own motion, grant an extension of time to 23 April 2015, in which to lodge the application" (emphasis added). The reference to the circumstances, must be a reference to the circumstances referred to in the Oral Reasons, there being a number of incidents occurring after the initial attack on 22 October 2014.

Consideration - extension of time

The tenant contends that whilst the Tribunal has power pursuant to s 41 of the NCAT Act to extend time it must exercise its discretion to avoid injustice flowing from strict compliance with the rules. In exercising its discretion, the tenant contends that the Tribunal's discretion miscarried as it moved on its own motion without considering any reasons for the lateness of the application or whether the interests of justice would be served by extending time and further that this occurred in circumstances where neither party was afforded an opportunity to address the Tribunal properly on the question.
On the other hand, the landlord contends that the explanation for the delay is to be found in the evidence that there were subsequent incidents relating to the dog. The landlord contends that it was open for the Tribunal to infer that the delay was as a result of the subsequent incidents and in the circumstances this was a sufficient explanation. The evidence as to subsequent incidents included a letter from the Coffs Harbour City Council, responding to a request from the landlord's solicitor, after filing the application, seeking assistance in relation to "clarifying and detailing chronologically" the subsequent incidents. The Council's response records incidents between 2 September 2014 and 2 February 2015, the last mentioned being notified to the Council on 13 February 2015.
It is unfortunate that the relevant section prescribing the time limit had not been identified at the time the Tribunal was considering the extension of time application. The way that the extension of time issue unfolded before the Tribunal was that the tenant's representative identified that the landlord required an extension of time and whilst the landlord's representative pointed to the evidence regarding the subsequent incidents, no evidence was led as to the reason for the delay, or how the incidents affected the delay; and neither party addressed the Tribunal on the broader circumstances that might be relevant to an extension of time application such as prejudice to the tenant.
The Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSW CATAP 22 at [22] said the following in relation to an extension of time in which to bring an appeal: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]-[59].
Factor 2 has no relevance here, but otherwise there is no reason to suggest that similar considerations do not apply with respect to the Tribunal's consideration of extending time and therefore dispensing with or relaxing the requirement that an applicant must bring a timely application.
Whilst there was evidence of subsequent events, those subsequent events are not capable of fully explaining the delay. The last mentioned event occurred on 2 February, albeit the complaint was not received by the Council until 13 February 2015. It is also unclear when the respondent learned of these matters. The application was not filed until 23 April 2015, hence even if one accepted the respondent's submission that it is open to infer that the reason for the delay is to be found in the subsequent incidents, this does not explain the delay between 13 February 2015 and the 23 April 2015. At its highest, there is no explanation for the delay in filling the application more than 28 days after the last recorded incident.
The Appeal Panel is satisfied that the Tribunal erred in granting the extension of its own motion and without evidence of an explanation for the delay in filing the application. Whether this is regarded as a failure to consider the reason for the delay or to ascribe undue weight to the subsequent incidents, the decision is unreasonable, in the sense discussed in Minister for Immigration v Li (2013) 249 CLR 332 at [72] and [75]; or unjust as referred to in House v R (1936) 55 CLR 499 at 505.
For the reason that at the time the matter was before the Tribunal, the parties were unaware of the relevant provision of the rules and did not have an opportunity to properly address the Tribunal in relation to whether or not an extension of time application ought to be acceded to, it is appropriate that the matter be remitted for reconsideration of the extension of time issue, with leave to the parties to adduce fresh evidence.

The section 90 application at first instance

At first instance, the Tribunal summarised the landlord's argument to be that the tenant had recklessly permitted injury to the landlord's employee. There was no real dispute that the dog had bitten the landlord's employee. The question at first instance was whether or not the tenant had recklessly allowed that to occur.
The Tribunal held that on the tenant's evidence there was a sign stating "beware of dog" and the sign was affixed to the front door. The Tribunal held that that was inappropriate. The sign ought to have been affixed at the fence. Further, the existence of the sign suggested that the tenant knew that the dog was dangerous. The Tribunal also had regard to the fact that a month before the incident occurred Council had cautioned the tenant with respect to issues regarding a dog. On this basis, the Tribunal held that the tenant recklessly permitted injury to the landlord's employee (at [18], [19] and [20] of the Written Reasons). Thereafter, the Tribunal noted that it had discretion as to whether or not an order should be made terminating the residential tenancy agreement. In applying the discretion the Tribunal set out the following considerations at [21], [22], [23], [24] of the Written Reasons: 21 The Tribunal has discretion as to whether an order should be made terminating the residential tenancy agreement. In applying this discretion, I have given consideration to: The tenant took no steps to have the dog registered, micro chipped or desexed. The tenant has given little regard to the Council's caution of 2 September 2014. The tenant did not comply with a written undertaking he gave to the landlord on 3 November 2014. Three subsequent complaints have been received by Council, regarding attacks by the dog. Whether the incident of 22 October 2014 could have been avoided if the landlord's employee had not entered onto the property. The delay in the landlord bringing the application. The tenancy has been on foot since 27 May 2005. The financial penalties imposed on the tenant by the Council. The dog has been destroyed. 22 In the circumstances before· me, I hold ·that· the injury to the· landlord's employee was serious. Although on notice, the tenant had taken few, if any steps, before the incident of 22 October 2014, to address the situation with the dog. From the time of the incident, until the dog was seized by the Council, ·the tenant took no steps, and I believe he had no intention of taking any steps, to register, microchip or desex the dog. 23 Mr Jackson has not shown any acceptance of responsibility for the severe incident. He has not demonstrated any genuine remorse or compassion for the incident, Ms Greenaway, or others involved in attacks by the dog. Mr Jackson appears to have contempt for Ms Greenaway, and the others. 24 Although the dog has been destroyed, in view of my findings and conclusions in this matter, I determine that an order terminating the residential tenancy agreement should be made.

The s 90 construction argument

The tenant contended that s 90(1)(b) of the RT Act only applies to injuries sustained by an employee of the landlord when the injury occurs on neighbouring property and it is contended that because the attack occurred in the front yard of the residential premises, s 90 has no application. Section 90 relevantly states as follows: 90 Serious damage or injury by tenant or other occupant (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: … (b) injury to the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent, or an occupier or person on neighbouring property or premises used in common with the tenant. [emphasis added] … (5) In this section: neighbouring property means: (a) property adjoining or adjacent to the residential premises, or (b) property owned by the landlord in the general locality of the residential premises.
In effect, the tenant contends that the location qualifier which occurs at the end of paragraph (b) relates to every person referred to earlier in that paragraph: i.e., the landlord, the landlord's agent, a relevant employee or contractor, an occupier and a person. Put another way, the tenant contends that for s 90 to apply, injury to one of the persons mentioned in the paragraph must occur on neighbouring property or premises used in common with the tenant.
On the other hand, the landlord contends that the location qualifier only relates to the last mentioned person, or to an occupier and the last mentioned person: i.e., a person on neighbouring property or premises used in common with the tenant. Both parties referred the Appeal Panel to NSW Land and Housing Corporation v Lesniewski [2015] NSWCATAP 185 ('Lesniewski'). There the Appeal Panel held that the proper construction of s 90(1)(b) was to the effect that the injury caused to an occupier must have occurred on neighbouring property or premises used in common with the tenant. There the Appeal Panel said at [85]: 85 Accordingly, in our view, the purpose of subs 90, including subs 90(1)(b) of the RT Act is to address a serious or fundamental breach by the tenant (or a person occupying or jointly occupying the residential premises of the tenant) of the residential tenancy agreement. Its purpose is not protective as asserted by the appellant. And on this basis, we find that the literal construction of the location qualifier in subs 90(1)(b) applying to "an occupier" and a "person" is consistent with the purpose of that section and the other provisions in that Part of the RT Act. It is also consistent with the objects of the Act.
In that case, the Appeal Panel traced the various remedies and rights as between the tenant and landlord, recognised in the RT Act and identified that s 90 is part of a special regime with respect to social housing. Its purpose is to regulate the rights and obligations between social housing landlords and tenants and in particular to provide an immediate ground for termination. The right to immediately terminate includes the right to do so where the tenant's conduct adversely impacts on neighbouring property and persons residing on neighbouring property. The Appeal Panel noted that the enlivening factors identified in s 90 represented a fundamental breach of the residential tenancy agreement between the parties that warranted immediate action and possible termination by the Tribunal.
Without deciding the issue, the Appeal Panel considered whether the location qualifier at the end of s 90(1)(b) ought to apply to the other persons mentioned in that paragraph and said at [86]: 86 We would be inclined to give a similar construction to the subsection in so far as it relates to the other prescribed persons. However, we make no conclusive findings in this regard other than to say it is difficult to accept, given the language and purpose of the RT Act, that it was intended that the subsection applied regardless of where the injury was inflicted on the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent. Nor do the authorities support such a wide construction: see NSW Land & Housing Corporation v Christodoulo [2013] NSWDC 81, at [72]. As we have noted, a landlord's rights of entry to the residential premises the subject of the residential tenancy agreement are limited.
We pause to note that paragraph [72] of NSW Land & Housing Corporation v Christodoulo [2013] NSWDC 81, Levy SC, DCJ said as follows: There is no room for doubt that the injured employee was injured on the footpath outside of the premises. In that sense, she was a person on "neighbouring property" within the meaning of s 90(1)(b) of the RT Act. Similarly, and within the meaning of s 90(1) of the RT Act. She was an employee of the plaintiff as was conceded at CTTT transcript T4.6 andT10.18 - T10.21, who was seriously injured in the attack by the dog, a fact that was "undisputed " and accepted by the CTTT at paragraphs [6] and [20] of the CTTT reasons.
Levy SC, DCJ appears to have considered that s 90 was satisfied on 2 separate fronts: both that she was a person on neighbouring property and that she was the landlord's employee.
Before us, the appellant adopted the construction of s 90(1)(b) given by the Appeal Panel in Lesniewski, for the reasons articulated by the Appeal Panel in that case. In particular, it was submitted that generally the rights between landlord and tenant are as recognised in the RT Act and only with respect to neighbouring property or property used in common with the tenant was s 90 enlivened.
The respondent urged us not to follow Lesniewski and pressed the submission that s 90 was protective in nature and therefore ought to be given a construction that aided that purpose. It was said that the relationship between social housing landlord and social housing tenant can be precarious and that the landlord is entitled to protection and wide ranging protection wherever the two parties might meet.
We accept what the Appeal Panel said in Lesniewski about the purpose of s 90 at [80], [81], [82]: 80 In our view, having regard to the language, purpose and structure of the RT Act, the mischief to which subs 90(1)(b) is addressed is not protective in the sense contended for by the appellant; namely the protection of the prescribed persons from injury by the tenant. We accept this might be seen as a related effect of the subsection, but not its purpose. 81 As we have noted, the purpose of the RT Act is to regulate the rights and obligations of landlords and tenants in regard to a "residential tenancy agreement" concerning "residential premises". In accordance with this purpose the Act prescribes the standard terms of every residential tenancy agreement falling within that Act. These standard terms covering the same subject matters that are traditionally contained in tenancy agreements under contract law. The Act also contains provisions, which are traditionally grounds on which a tenancy agreement is terminated by operation of law or by way of agreement. These include where the term of the agreement has come to an end, a repudiation of the agreement by one party and accepted by the other party, or a breach of a term of the agreement by the landlord or the tenant (e.g. a failure by the tenant to pay rent and the tenant using the residential premises for an illegal purpose). 82 In our view, s 90 falls into the same category in that its purpose is to provide an immediate ground for termination arising from a fundamental breach of the terms of a residential tenancy agreement in so far as it relates to the tenant's obligations in regard to the use of the residential premises the subject of the agreement. Such use as we have noted includes conduct that adversely impacts on neighbouring property and persons residing on or lawfully on neighbouring property.
Nevertheless, accepting this is the purpose of s 90(1)(b) does not answer the question addressed to this Appeal Panel: whether the location qualifier applies to all the persons identified in paragraph (b). The relevant intention of the statutory language is that manifested 'by the legislation': Wik Peoples v Queensland (1996) 187 CLR 1 per Gummow J at [379] and Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [31]. Construction of the statute must start with the text, "…the language which has actually been employed in the text of the legislation is the surest guide to legislative intention": Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]. Perhaps of most relevance to the task before us is that the Tribunal must strive to give effect to every word in the statutory provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
Having regard to the text, the first task is to establish whether the expression "occupier or person" is to be read together, in much the same way as the expression "employee or contractor" is to be read. The position of the commas suggests that it is a composite phrase, but it is the legal and not the grammatical construction that we are concerned with: Project Blue Sky at [78].
The Appeal Panel in Lesniewski appears to have proceeded on the basis that the words "occupier" and "person" are to be read together. First, the Appeal Panel had regard to the literal interpretation, including punctuation (at [47]) and secondly, the Appeal Panel construed "occupier" as a person having the right to occupy the neighbouring property or property used in common with the tenant but did not conclude it referred to an occupier of the residential premises (at [92]). If "occupier or person" is read together, then it would automatically follow that the location qualifier must apply, at least, to occupiers; occupiers being part of the compendious expression "occupier or person". Whilst the Appeal Panel in Lesniewski did not find it determinative that "or an occupier or person" was a single phrase, we consider that there are sound grounds for doing so.
For the reason that the Appeal Panel in Lesniewski construed the expression "occupier or person" consistently with it being a single phrase, the ratio in Lesniewski is not inconsistent with the respondent's contention that the location qualifier does not apply to the other persons mentioned in s 90(1)(b) (other than with respect to occupiers of neighbouring property or of premises used in common with the tenant). However, the Appeal Panel in Lesniewski at [86] expressed the view that the location qualifier applied to the other persons. Lesniewski therefore supports the appellant's case.
The question for this Appeal Panel is whether the location qualifier applies more broadly, to the other specified persons. As mentioned, a conclusion that the location qualifier does not apply to landlords, a landlord's agent, employee or contractor of a landlord but applies to occupiers and applies to persons is not contradictory to the ratio in Lesniewski (albeit it is inconsistent with the obiter comments at [86]), because "occupier or person" is read as a composite phrase.
Section 90(1)(b) is cumbersome. Setting it out in full, the construction that the appellant urges upon us is that the location qualifier applies to each person in the paragraph. It would apply to each of the persons listed below if that injury occurred on neighbouring property or premises used in common with the tenant : 1. Injury to the landlord; 2. Injury to the landlord's agent; 3. Injury to an employee or contractor of the landlord or the landlord's agent; or 4. Injury to an occupier or person.
It is significant that the formulation in paragraph (d) does not make sense without the location qualifier. Further, each of a landlord, a landlord's agent, a landlord's employee and an occupier are persons. If all of these persons are subject to the location qualifier then there would have been no need to separately identify the various persons.
In order to give meaningful work to do to all the words, the location qualifier would refer only to the "occupier or person". Why it was necessary to refer to both an occupier and a person was submitted by the respondent before the Appeal Panel in Lesniewski to be explained by the need to guard against the possibility of the general not including the particular (at [30]). However, this explanation would not suffice if it was sought to be applied to each of the identified persons in paragraph (b).
The respondent before us reiterated the submissions made as an appellant in Lesniewski. These included that paragraph (h) of Division 2 of Part 5 of the Explanatory Notes to the Residential Tenancies Bill 2010 (which replaced s 68 of the Residential Tenancies Act 1987 with the s 90 of the RT Act) provided that the grounds on which a landlord may apply to a Tribunal for a termination order have been extended to apply to "serious damage or injury caused by other occupants and to circumstances where serious damage or injury is caused to neighbouring property or injury is caused to employees or contractors of the landlord or landlord's agent."
Section 68(1) of the repealed Act was in the following terms: (1) The Tribunal may, on application by a landlord under a residential tenancy agreement, make an order terminating the agreement if it is satisfied that the tenant has intentionally or recklessly caused or permitted, or is likely intentionally or recklessly to cause or permit (a) Serious damage to the residential premises, or (b) Injury to the landlord, the landlord's agent or any person in occupation of or permitted on adjoining or adjacent premises.
It is apparent from the language in the now repealed paragraph 68(1)(b), that the location qualifier applied solely to "any person" in occupation of or permitted on adjoining or adjacent premises. Grammatically, the location qualifier could not have extended to a landlord or landlord's agent. The Explanatory Notes do not suggest that s 90 of the RT Act was to extend the location qualifier and thus truncate the operation of s 90 as compared to the repealed s 68. The Explanatory Notes suggest that the circumstances in which a landlord could terminate a residential tenancy were to be augmented, not truncated. Nevertheless, it is the legislation itself that is to be construed, no matter how clear the extrinsic materials may be: Saeed at [31] and [32].
We concur with the articulation by the Appeal Panel in Lesniewski of the purpose of s 90 of the RT Act and concur that the literal construction is consistent with the purpose of the section and the objects of the RT Act. We also concur with the Appeal Panel's comments that it is difficult to accept it was intended that the sub-section apply regardless of where the injury was inflicted (we return to this below). Nevertheless, for the reason that all the words in the provision are given work to do when the location qualifier is restricted to an "occupier or person", that protection of the landlord and related persons is an effect of the section (at Lesniewski at [80]) and that this is consistent with the historical context, we are satisfied that the location qualifier does not apply to the landlord's employee.
For the reason that it is difficult to accept that the section was intended to apply regardless of where the injury was inflicted, if the injury had no connection to the relationship of tenant and landlord (which might be evidenced by the event occurring outside the neighbourhood) there may be an argument that s 90 of the RT Act does not apply where the injury is not inflicted upon the landlord per se or the landlord vis a vis his office or his position as landlord. Alternatively, that may be a factor that goes to the exercise of the discretion: i.e., a termination order would not be made if the injury had nothing to do with the relationship of tenant and landlord. These matters do not arise for consideration in this case because here there is no dispute that Ms Greenaway was injured in performing her duties as the landlord's employee.
This aspect of the appellant's grounds therefore fails. The location qualifier in s 90(1)(b) does not apply to a landlord's employees. We respectfully decline to follow the obiter comments of the Appeal Panel in Lesniewski at [86].

Consideration - Recklessness

In relation to recklessness, the tenant submitted that the Tribunal misapplied the test and that in order to determine whether the tenant had been reckless it was necessary to make a finding that he was aware that Ms Greenway's injury was a probable consequence of his actions.
The tenant submitted that it is apparent from the factors that the Tribunal took into account that the wrong question was asked. It was necessary for the Tribunal to determine that the tenant acted with knowledge that a consequence or a probable consequence of his actions was that somebody visiting the property would be injured notwithstanding the precautions taken by the tenant. In answering this, it was not sufficient to ask did the owner know that there were "problems" with the dog (at [18] of the Written Reasons). It was necessary to ask did the tenant know that the dog posed a danger if tied up in the yard. It was contended that the Tribunal failed to take into account the fact that the dog was restrained by a rope, that the "beware of the dog" sign might not be indicative of a person's knowledge that the dog was dangerous and that the complaint levied by the Council on an earlier occasion concerned a dog roaming on the street and not one constrained in its own yard.
The tenant also lightly pressed the submission that the landlord's employee, Ms Greenaway, was not merely delivering a letter. It was suggested that she was carrying out an inspection that she was not entitled to carry out and that it therefore couldn't be reckless for the tenant to have failed to appreciate that she would carry out an inspection. Put another way, it was suggested that the tenant couldn't be reckless with respect to injury to Ms Greenaway when he couldn't have anticipated she would be on the premises carrying out an inspection. This submission was lightly pressed for the reason that it was accepted by the appellant's Counsel that it would have been lawful for Ms Greenaway to be on the premises to simply deliver the letter. That being the case, it must be accepted that the tenant ought to have anticipated a visit from his landlord even if simply to receive a letter and the fact that the landlord wasn't entitled to send someone for an inspection without notice does not assist the tenant's argument in this regard.
The authorities provide that a person is considered to have acted recklessly "where that person acts with knowledge that a consequence is probable (or in some cases possible) result of his or her actions": Cure v Bridge Housing Limited 2014 NSWCATAP 80 at [48]. A fair reading of the Tribunal's reasoning discloses that the Tribunal was concerned with whether the tenant knew the dog was a problem and not whether he knew it could cause injury while restrained. There was no evidence that prior to 22 October 2014, the tenant was aware that the dog would cause injury.
The tenant also contends that the Tribunal erred by having regard to the other attacks or the incidents subsequent to the attack on 22 October 2014. At [20] of the Written Reasons the Tribunal refers to having regard to "all the evidence" to conclude that the tenant acted recklessly. If the Tribunal, in fact, had regard to the subsequent incidents that would have disclosed appealable error. Incidents occurring after the date of the attack on Ms Greenaway would be incapable of informing the Tribunal whether, before the relevant date, the tenant was aware that the dog posed a threat even though it was restrained. From the the Oral Reasons, however, it is apparent that the Tribunal did not take such matters into account as to whether or not there was recklessness and only took such matters into account on the exercise of the discretion, which is considered below. In the Oral Reasons the Tribunal appears to have been satisfied that the tenant was reckless on the basis that he had been advised by Council that there were problems with this dog and that he had erected a sign on the front door (a sign the Tribunal held was poorly placed).
Further, the tenant contended that to be satisfied of recklessness, given the serious nature of the allegations, the test in Briginshaw v Briginshaw (1938) 60 CLR 336 ought to have been applied. The tenant cites in support Sara McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98 at 65 and NSW Land and Housing Corporation v Markham (Social Housing) [2009] NSWCTTT 651 at 19. It was highlighted that the Tribunal does not refer to the Briginshaw standard and this, it was submitted, suggests that regard was not had to it: Woodside v Director General, Department of Community Services [2000] NSWADTAP 8 at [78]-[80].
There is merit to the tenant's submission that the allegation that the injury caused to Ms Greenaway by the tenant's dog was caused by the tenant's recklessness requires consideration of the factors referred to in Briginshaw. The consequence of a determination of recklessness could result in termination of the tenant's tenancy agreement of more than ten years standing and so the Tribunal needed to be sufficiently satisfied that Mr Jackson was reckless as to whether his actions could lead to the attack. Moreover, the Appeal Panel is satisfied that the Tribunal misdirected itself as to the statutory question. The question was not whether the tenant knew the dog was dangerous or was reckless as to that fact, but whether the tenant acted with knowledge that a visitor to the premises could be attacked by the dog, in the circumstances. The circumstances included that prior to the incident on 22 October, the evidence indicates that the sole complaint was in regards to a dog roaming the street (there was no evidence that it was in fact the same dog). At the time of the incident which grounded the application, the dog was restrained by a rope to the front porch, the door to the premises was open and there was a visible sign on the door to beware of the dog.
The Tribunal accordingly erred by asking the wrong question.

Consideration - Discretion

With respect to the discretion in s 90, it is unfettered save that the Tribunal must have regard to the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 at 40 and 55-56. We have earlier outlined our agreement with the Appeal Panel in Lesniewski that the purpose of the power is to provide a remedy to address serious or fundamental breaches by a tenant, but the existence of the discretion recognises that even where there has been such a fundamental breach and injury has occurred to a landlord or landlord's agent resulting from reckless or intentional conduct by the tenant, it may still be in the interests of justice not to make the termination order.
When one looks at the reasons that the Tribunal took into account when exercising the discretion to order the termination of the tenancy, all of the factors in favour of terminating the tenancy relate back to the tenant's conduct with respect to his dog, yet the dog had since been destroyed. Further, here the tenancy has been on foot since 2005 and in circumstances where there has been substantial unexplained delay by the landlord in bringing the application, the appellant's contention that the Tribunal's exercise of discretion miscarried, has merit.
Where the Tribunal gives undue weight to a consideration, this is a form of unreasonableness in decision making: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 41-42; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [72] and [75]; House v R at 505. (We note the close analogy between review of administrative decision making and appellate review of a judicial discretion).
Further, it is apparent that the Tribunal placed weight on the fact that the tenant had taken few, if any, steps before the incident of 22 October 2014 to address the situation with the dog even though he had been cautioned by Council with respect to the dog. As noted above, the evidence with respect to that was a letter from the Coffs Harbour City Council in answer to an email from the landlord's representatives asking for assistance in clarifying and detailing chronologically the circumstances which prompted the Council to ultimately declare the dog dangerous. Point 1 notes that on 2 September 2014 a complaint was received regarding an aggressive dog roaming Dunn Place, Coffs Harbour. It further notes that the tenant was cautioned regarding the incident. There is no evidence as to the nature of the incident, what the dog was doing and further, given that at the time of the incident the dog was on a rope, it appears to the Appeal Panel that the tenant had in fact taken the Council's warning to heart. The dog was not roaming the street (assuming it was the same dog) and was now tethered.
For the reason that the Appeal Panel has determined that it is necessary to remit the matter for reconsideration (as to which see below) with respect to the extension of time application and with respect to recklessness and further that it has been determined that the parties should have leave to adduce additional evidence, it is not necessary for the Appeal Panel to determine whether, in fact, the Tribunal erred in exercising the discretion (assuming s 90 is otherwise satisfied).

Conclusion

The Appeal Panel is satisfied that the Tribunal erred as stated above.
At the hearing of the appeal, the Appeal Panel invited submissions from the parties as to whether, assuming error was detected in the Tribunal's reasons, the matter should be remitted for reconsideration. Both parties accepted that this would be a sensible course as they considered it would be appropriate for further evidence to be adduced.
The matter is to be remitted to a differently constituted Tribunal to be determined in accordance with these Reasons, with leave for the parties to adduce further evidence.

Orders

The orders are as follows: 1. The appeal is allowed; 2. The decision of the Tribunal at first instance is set aside; 3. The matter is remitted to a differently constituted Tribunal to be determined in accordance with these Reasons, with leave for the parties to adduce further evidence.

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 December 2015

Residential Tenancies Act 1987(NSW)s 68

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