respondent. In AP 20/24268, time was extended to 3 June 2020, leave to appeal was granted to the extent required, and the appeal was dismissed. In AP 20/27372, time was extended to 18 June 2020, leave to...
Key principles
Giving a notice under s 142 of the Residential Tenancies Act 2010 (NSW) extends the existing social housing tenancy agreement; it does not create a separate, new tenancy...
The rights to extend a social housing tenancy under s 142 and to pursue a termination order under s 91 are not inconsistent rights. Exercising the extension power does not,...
Waiver requires an unequivocal communication that the relevant right is being abandoned. The s 142 notice did not refer to the Tribunal proceedings, and the landlord continued to...
Section 91 does not require the alleged unlawful use to have occurred during the extended term. The alleged October 2018 conduct could therefore be relied upon in the pending...
Issues before the court
Did the landlord waive its right to pursue termination under s 91 by extending the tenancy under s 142 after commencing proceedings?
Did the s 142 notice create a new tenancy agreement, making the alleged October 2018 conduct unavailable to support termination?
Plain English Summary
The landlord's decision to extend the social housing tenancy did not itself abandon its already-filed application to end that tenancy. The extension continued the same agreement for a new fixed period, and the statute did not say that earlier alleged unlawful use could not be considered. The termination claim was still unresolved, however, and the tenant's criminal case created a risk that evidence given in the Tribunal could affect his criminal defence. The Tribunal's stay remained in place because the landlord did not establish sufficient grounds for an appeal.
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Should the tenant's appeal against the preliminary determination of the waiver issue be allowed?
Should leave be granted to appeal the stay of the Tribunal proceedings pending the criminal proceedings?
The decision concerns two interlocutory appeals about a social housing tenancy between Clint Law and the NSW Land and Housing Corporation (the Landlord). The underlying Tribunal case sought an order terminating the tenancy because the Landlord alleged that the premises had been used for an unlawful purpose. Separately, the Tenant faced criminal proceedings concerning possession of child abuse material. He denied the criminal charge. The Appeal Panel decided both appeals on 30 October 2020.
The tenancy began on 13 February 2012 under a two-year written fixed term agreement. After that term expired, it became periodic and was later made subject to further fixed terms. On 24 October 2018, the Tenant was charged with possession of child abuse material under s 91H(2) of the Crimes Act 1900 (NSW). The Landlord commenced Tribunal proceedings on 23 May 2019, seeking termination under s 91 of the Residential Tenancies Act 2010 (NSW) (RTA). Its application referred to the police search of the premises and the charge.
The criminal trial began in October 2019 but did not conclude. The Tribunal proceedings were adjourned, including because of the concern that requiring the Tenant to give evidence before the criminal trial was resolved might prejudice him. On 5 February 2020, while the termination application remained pending, the Landlord issued a written notice under s 142 of the RTA. The notice declared that the tenancy agreement was subject to a further fixed term beginning 3 February 2020 and ending 30 January 2022.
The Tenant argued that giving this notice meant the Landlord had waived its right to pursue termination, or that the notice had created a new agreement to which the earlier alleged conduct could not relate. The Tribunal rejected his preliminary application to dismiss the termination claim. He appealed that decision in AP 20/24268.
A differently constituted Tribunal later stayed the termination proceedings pending the outcome of the criminal case. The Landlord appealed that decision in AP 20/27372. The Appeal Panel extended the filing time for both appeals. It granted the Tenant leave to appeal, but dismissed his appeal on its merits. It refused the Landlord leave to appeal the stay and dismissed that appeal. Accordingly, the Tribunal proceedings remained stayed pending the criminal case, while the preliminary question about whether the termination right had been lost was resolved against the Tenant.
Why the court decided this way
The Panel first considered whether the Landlord's s 142 notice was inconsistent with its ongoing s 91 claim. It concluded that the two statutory rights could operate at the same time. A s 91 application asks the Tribunal to make a termination order. It is not a landlord's unilateral contractual right to end the tenancy. A s 142 notice, by contrast, declares the fixed term of an eligible social housing tenancy. The Panel reasoned that extending the tenancy did not prevent the Landlord from asking the Tribunal to terminate it, and a successful application could bring it to an end earlier than the end date specified in the notice ([Consideration of loss of termination right, 7]).
The Panel also examined different senses of waiver. It rejected waiver by election because the relevant rights were not alternatives: the right to extend the fixed term and the right to pursue a termination order were not inconsistent. It did not accept a separate, general rule against “approbation and reprobation” as a sufficient basis for waiver, referring to the categories discussed in Agricultural and Rural Finance Pty Ltd v Gardiner ([Consideration of loss of termination right, 2, 7]). It found no waiver within the Tribunal process because the Landlord continued to advance its claim. Nor was there a statement abandoning the proceedings. The notice itself said nothing about them ([Consideration of loss of termination right, 8, 10]).
The Panel also noted that the Tenant did not advance an estoppel case or identify detrimental reliance ([Consideration of loss of termination right, 6]). Its decisive concern was the absence of an unequivocal communication from the Landlord that it had abandoned its s 91 claim ([Consideration of loss of termination right, 4]).
On the separate “new agreement” argument, the Panel interpreted s 142 as continuing the existing agreement for the further fixed term. The statutory language refers to the landlord declaring that “the agreement” is subject to a further fixed term. The Panel characterised the effect as a statutory, non-consensual variation of the existing agreement, not the creation of a new tenancy ([Consideration of loss of a termination right-alleged new tenancy agreement from s142 notice, 4–5]). It considered that s 91 did not require the alleged unlawful use to have occurred during the extended term. The alleged October 2018 conduct therefore remained capable of grounding the application, although the underlying facts and the statutory requirements still had to be determined ([same section, 6–7]).
The Landlord's appeal about the stay failed at the leave stage. The Panel accepted that the Tenant faced a real dilemma. The Landlord's proposed case had changed from an allegation concerning possession to an allegation that the Tenant permitted or facilitated use of the premises for an unlawful purpose. Further evidence from the Tenant in the Tribunal might assist the prosecution through inconsistencies or further admissions. But saying nothing might prejudice his defence of the Tribunal claim ([Consideration of stay appeal, 9, 12–16]).
The Panel also found that protective steps, including a certificate under s 128 of the Evidence Act 1995 (NSW) and non-publication or closed-court orders, did not provide an assured solution. It considered the relationship between those protections, the open-court principle and the risks described in Commissioner of the Australian Federal Police v Zhao ([Consideration of stay appeal, 18–21]). The Landlord had not demonstrated specific prejudice from the delay, while the criminal case was already well advanced. The Panel concluded that the stay decision was not attended by sufficient doubt and that substantial injustice had not been shown.
Before and after state of the law
The judgment applies the statutory provisions to the particular relationship between a social housing extension notice and a pending termination application. Before this decision, the parties disputed whether a s 142 notice might amount to an election to continue the tenancy and thereby abandon a s 91 claim, or whether the notice created a new agreement that could not be terminated for earlier conduct. The Panel rejected both propositions on the facts and statutory language before it.
The decision's central clarification is that the s 142 notice did not extinguish the existing agreement. It extended that agreement for the stated period. The Panel described the extension as a statutory, non-consensual variation. It also concluded that pursuing an application under s 91 was compatible with making that extension. This does not mean that a termination order was inevitable. The Panel emphasised that the Landlord still had to establish the relevant unlawful use and satisfy the statutory requirements, including that the use was “sufficient to justify the termination” under s 91(1)(b).
The Panel relied on the distinction between a contractual right to terminate and a statutory process in which the Tribunal, not the Landlord, makes the termination order. It also noted that s 91 does not expressly require the unlawful use to occur during the current fixed term. Its reasoning is therefore tied to the statutory text and the nature of the application, rather than to a general rule that all past conduct can always justify termination.
On stays, the judgment did not create a categorical rule that civil proceedings must be paused whenever criminal proceedings concern related facts. It considered the risks in this case: the change in the Landlord's case, the possible evidentiary overlap, the Tenant's ongoing criminal trial and the limited assurance offered by protective orders. It treated those matters as supporting the Tribunal's discretionary stay on the record before it.
Key passages with plain-English translation
The Panel said that the rights to seek termination and extend the fixed term “are not alternative or inconsistent rights” ([Consideration of loss of termination right, 7]). In plain English, the Landlord could extend the tenancy and still ask the Tribunal to end it under s 91. The extension was not, by itself, a choice to abandon the termination claim.
On abandonment, the Panel said there was “no statement by the Landlord about abandoning its proceedings in the Tribunal” ([same section, 10]). The notice did not mention the pending case, and the Landlord continued to pursue it. The Panel's reasoning stresses the importance of clear communication when a party says a claim has been abandoned.
The Panel described the effect of s 142 as “a statutory, non--consensual variation of the existing tenancy agreement” ([Consideration of loss of a termination right-alleged new tenancy agreement from s142 notice, 4]). In ordinary terms, the statute changed the term of the existing agreement without requiring a new agreement to be made.
It also said that s 91 contains nothing suggesting the unlawful use must have occurred during the extended term ([same section, 6]). This did not determine whether the alleged conduct occurred or whether it justified termination. It meant only that the date of the alleged conduct did not, on that basis alone, prevent the Landlord relying on it.
On the stay, the Panel considered that what the Tenant might say in the Tribunal could assist the prosecution through inconsistencies or further admissions ([Consideration of stay appeal, 13]). The practical concern was not limited to whether evidence could formally be used against him. The Panel recognised that knowledge of evidence given in a civil proceeding could itself affect the conduct of a criminal defence.
What fact patterns trigger this precedent
The decision is most directly relevant where a social housing landlord has issued a notice under s 142 of the RTA while a s 91 termination application is already pending. It addresses arguments that the extension notice either created a new agreement or communicated that the landlord had given up its existing termination claim.
Its reasoning is particularly dependent on the statutory wording and the surrounding conduct. The notice here expressly identified itself as a s 142 notice and specified a further fixed term. It said nothing about the Tribunal case. The Landlord's conduct in that case continued to indicate that it was pursuing its claim. The Panel also noted that the Tenant had not pleaded estoppel or identified detrimental reliance. A different factual record, including an express statement abandoning proceedings or conduct indicating an unequivocal election, was not decided.
The timing point applies where the alleged unlawful use predates a s 142 extension. The Panel held that the extension did not create a new agreement and that s 91 did not require the alleged use to occur within the extended term. The result does not establish that every historical event will justify termination. The facts, the statutory threshold and the other relevant considerations remain matters for the Tribunal.
The stay reasoning is relevant where a civil or Tribunal proceeding overlaps with an unresolved criminal case and evidence in the civil proceeding may affect the criminal defence. It is especially connected to a case in which the civil claim changes in a way that may call for further evidence from a party who is part-way through a criminal trial. The Panel's decision does not establish an automatic stay rule. It evaluated the particular risks and competing prejudice in the case before it.
How later courts have treated it
The supplied judgment contains no decisions made after 30 October 2020 and therefore does not establish how later courts or tribunals treated this precedent. It would be unsupported to describe later application, approval or distinction on the basis of this source alone.
The judgment itself discusses earlier authorities. It adopts the interlocutory leave approach identified in Champion Homes Pty Ltd v Guirgis and Di Liristi v Matautia Developments Pty Ltd, and refers to Collins v Urban for relevant considerations in granting leave. It applies the categories of waiver discussed in Agricultural and Rural Finance Pty Ltd v Gardiner and refers to Commonwealth v Verwayen in considering waiver within litigation.
For the stay issue, the Panel considered James v NSW Land and Housing Corporation, Zhao, and Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission. It distinguished Stocks v John's (No 2), including because the applicant for a stay there had already been convicted and the civil plaintiff faced significant prejudice from delay. It also distinguished Health Care Complaints Commission v Coleman because the overlap between the remaining criminal and disciplinary issues was more limited. These are the Panel's treatment of prior authorities, not evidence of later treatment of the present decision.
Still-open questions
The Panel expressly left open whether conduct occurring before a genuinely new tenancy agreement could support a s 91 application. It did not need to decide that question because it found that the s 142 notice had not created a new agreement ([Consideration of loss of a termination right-alleged new tenancy agreement from s142 notice, 3]).
The decision also does not determine whether the Tenant engaged in unlawful conduct. The criminal charge was denied, and the alleged conduct had not been proved in the Tribunal. The Panel specifically rejected the Landlord's submission that the evidence already identified established a breach of s 91(1)(b). It noted that the Landlord had not provided clear, updated particulars of the alleged unlawful conduct or precisely identified the alleged offence ([Consideration of stay appeal, 14–16]).
Nor did the Panel decide whether the Tribunal would ultimately make a termination order. Section 91 calls for consideration of whether the unlawful use was sufficient to justify termination, and the judgment also notes other mandatory considerations under s 154E, including the effect of the tenancy on neighbouring residents. Those matters were for the unresolved termination proceedings.
Finally, the Panel did not decide what protective orders would be appropriate in a different case. It found that, on these facts, such measures did not provide an assured answer to the risk of prejudice. The extent to which a stay is required will depend on the overlap between proceedings, the evidence likely to be given, the stage of the criminal case, the adequacy of protective measures and the actual prejudice to each party. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Catchwords
255 CLR 46
Commonwealth v Verwayen [1990] HCA 39
Judgment (22 paragraphs)
[1]
Counsel:
R Mansted (Appellant)
[2]
Solicitors:
HIV/AIDS Legal Centre (Appellant)
Department of Communities and Justice, Legal (Respondent)
[3]
Counsel:
R Mansted (Respondent)
[4]
Solicitors:
Department of Communities and Justice, Legal (Appellant)
HIV/AIDS Legal Centre (Respondet)
File Number(s): AP 20/24268; AP 20/27372
Publication restriction: Nil
Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal
Jurisdiction: Consumer and Commercial Division
Citation: N/A
Before: D Ash, General Member (5 May 2020) and S. Thode, Senior Member (19 May 2020)
File Number(s): SH 19/24093
[5]
Overview
These are two appeals from decisions by different Tribunal members in relation to a residential social tenancy agreement between NSW Land and Housing Corporation (the Landlord), the landlord of social housing premises in Sydney, and Mr Law (the Tenant), the tenant of those premises. Both appeals were heard by us in the same telephone hearing.
In the first appeal (AP 20/24268) Mr Law appeals from the decision of the Tribunal (General Member Ash) to refuse his application to dismiss the Landlord's proceedings for a termination order on the basis of an alleged loss of the right to pursue a termination order due to a step taken on behalf of the Landlord after it had commenced termination proceedings, as explained in more detail below. That application for dismissal led to a separate determination by the Tribunal about the loss of the termination right point in advance of a final determination in the termination proceedings. The Tribunal concluded that the right to apply for a termination order based upon alleged unlawful conduct by the Tenant concerning certain child abuse material had not been lost.
The issue the subject of the second appeal (AP 20/27372) only arises in the event that we do not uphold the Tenant's appeal about loss of the termination right. This is because the second appeal is concerned with the Tribunal's order (Senior Member Thode) that the termination proceedings be stayed pending the determination of criminal proceedings brought against the Tenant in relation to the child abuse material. In this second appeal, the Landlord appeals against the making of that stay order.
For the reasons set out below, we do not uphold the Tenant's appeal concerning loss of the termination right and we do not uphold the Landlord's appeal concerning the stay order. Accordingly, the outcome of these appeals is that the termination proceedings remain to be determined in the usual way once the criminal proceedings against the Tenant have been determined, although the issue concerning loss of the termination right has, in our view, been finally determined against the Tenant.
[6]
Facts and procedural steps
It is convenient to set out in one place the salient facts and procedural steps in the Tribunal concerning both appeals even though not all of these facts and matters are relevant to each appeal.
The Landlord was established under the Housing Act 2001 (NSW).
The Tenant's occupancy of the residential premises commenced on 13 February 2012 under a written, two year, fixed term tenancy agreement dated 7 February 2012. Upon the expiry of that term, the tenancy became a periodic tenancy and then by various notices from the Landlord became subject to fixed term tenancies for periods specified in the notices (see [6] of the Tenant's written submissions to the Tribunal at first instance dated 20 April 2020).
On 24 October 2018, the Tenant was charged with possession of child abuse material in contravention of s 91H (2) of the Crimes Act 1900. This criminal charge followed the arrest and interview of Mr Nash Bell on 13 October 2018 and the subsequent execution of a search warrant at the residential premises on 23 October 2018. According to the material presented to the Tribunal in these proceedings, the child abuse material was found in the possession of Mr Bell who told the police it belonged to the Tenant. During the execution of the search warrant at the residential premises the police discovered text messages on the Tenant's mobile phone which are said by the prosecution to support the allegation that the child abuse material did belong to the Tenant.
The Tenant has at all times denied the charge.
Subsequently, on 23 May 2019, the Landlord commenced proceedings in the Tribunal for an order terminating the residential tenancy agreement pursuant to s 91 (1) of the Residential Tenancies Act 2010 (NSW) (the RTA) on the basis that the Tenant had intentionally or recklessly caused or permitted the use of the residential premises for an unlawful purpose.
The reasons for termination set out in the Landlord's application to the Tribunal were not precise. They stated:
The applicant landlord makes application seeking an order of termination and possession pursuant to a breach by the respondent tenant of s 91 of the RTA 2010. PARTICULARS: On the 23 October 2018, NSW Police executed a search warrant at the subject premises and recovered electronic storage devices, DVDs, CDs and mobile phones, 18 items in total. On the 24 October 2018, the respondent tenant was charged with possession of child abuse material.
[7]
Relevant provisions of the Residential Tenancies Act
At this point, it is convenient to set out the pertinent provisions of the RTA.
The Landlord sought an order terminating the tenancy agreement pursuant to s 91 of the RTA. A residential tenancy agreement only terminates in the circumstances set out in the RTA, including if the Tribunal makes such an order under the Act: s 81 (1) and (3). Section 87 of the RTA deals with termination by the Tribunal following a termination notice from the landlord on the ground of breach. Section 91 provides:
91 Use of premises for illegal purposes
(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) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination.
(2) In considering whether to make a termination order on the ground specified in subsection (1)(b), the Tribunal may consider (but is not limited to considering) the following -
(a) the nature of the unlawful use,
(b) any previous unlawful uses,
(c) the previous history of the tenancy.
…...
(4) A landlord may make an application under this section without giving the tenant a termination notice.
(5) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.
Three points are worth noting at this time. First, the provision is quite distinct from a contractual right to terminate- it is not based upon breach by the Tenant and it is the Tribunal, not the Landlord, which is empowered to bring the tenancy to an end. Second, the relevant unlawful use of the residential premises is not expressed as having to occur at any particular time-for example, it is not prescribed that the relevant use of the residential premises must occur during the period of the current term of the tenancy agreement. Third, whilst perhaps unnecessary, it is expressly stated that a termination order may be made which takes effect before the end of the fixed term of a fixed term residential tenancy agreement. Hence, the statute expressly permitted a termination under s 91 to occur before the end of a fixed term, including where that may have occurred as a consequence of a s142 notice.
[8]
The appeal right
As with the second appeal, this is an appeal from an interlocutory decision, albeit of a different nature to that involved in the second appeal. As such, leave to appeal is required: s 80 (2) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
The Appeal Panel has adopted the following approach to the question whether leave to appeal from an interlocutory decision will be granted (see Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35] and Di Liristi v Matautia Developments Pty Ltd [2020] NSWCATAP 166 at [25]):
1. It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal;
2. However, the requirement for leave is a filter restricting access to the appeal process;
3. Leave should only be granted where there are substantial reasons to allow an appellate review;
4. Circumstances justifying leave may be an error of principle resulting in substantial injustice;
5. There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights;
6. Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal;
7. In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing;
8. Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case;
9. Lastly, subject to the above, the matters set out in Collins v Urban [2014] NSWCATAP 17 at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave. Those matters were outlined in respect of an application for leave to appeal under s 80 (2) (b) of the NCAT Act. Those matters include (but are not limited to) that ordinarily it is appropriate to grant leave only in matters that involve issues of principle or questions of public importance or 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.
[9]
The Tribunal's decision on the loss of the termination right point
In its decision concerning the alleged loss of the termination right, the Tribunal addressed three contentions as follows.
First, it rejected an argument that the current fixed term tenancy agreement could not be terminated for a breach in 2018 of what was said to be a prior tenancy agreement. It reasoned that s 91 of the RTA was not directed at breach of a particular term of a residential tenancy agreement but on conduct by the tenant for which the Tribunal could terminate upon the application of the Landlord in circumstances where that conduct occurred prior to the extension of the fixed term pursuant to s142 of the RTA. The Tribunal said (at 23g):
An argument that an act of extension of a tenancy creates an act of extinction of a right accrued under it prior to the extension would need clear statutory endorsement. There is none.
Second, it rejected an argument that the notice dated 5 February 2020 was an "election" by the Landlord not to enforce any right to terminate for past conduct. It reasoned that this contention was premised on the basis that the statutory rights of the Landlord were inconsistent and concluded that there was no inconsistency. The Tribunal said (at 25e):
There is no inconsistency. In 2019, the landlord applied to the Tribunal for an order terminating an agreement. In 2020, prior to the Tribunal hearing and determining the application, the landlord extended the agreement. The act of extension did not affect any extant right and did not affect an extant right and did not absolve either party of any extant obligation. Indeed, the act of extension probably confirms their existence, but that is not necessary to decide stop the short point is that there is nothing inconsistent.
Whilst the Tenant in his written submissions to the Tribunal had submitted that the Landlord had "waived or elected" not to enforce its right to terminate for past conduct by issuing the s142 notice dated 5 February 2020, the Tenant set out passages from the decision of the High Court in Sargent v ASL Developments Ltd (1974) 131 CLR 634 which addressed only the doctrine of election between inconsistent legal rights.
Third, the Tribunal rejected an argument that s142 (5) of the RTA precluded the Landlord from terminating. This argument was not pursued on the appeal.
[10]
Grounds of appeal
Two grounds of appeal were set out in the amended Notice of Appeal lodged on 4 August 2020 as follows:
1. The Tribunal erred at law in finding that "an argument that an act of extension of a tenancy creates an act of extinction of a right accrued under it prior to the extension would need clear statutory endorsement." The tenant had submitted that the agreement that the landlord is seeking to terminate no longer exists as the term of the new agreement commenced well after the act that accrued the right to apply for a termination. The Tribunal erred in rejecting this argument.
2. The Tribunal erred at law in finding that there was no inconsistency of rights in circumstances where the Landlord is applying for a termination of an agreement with a tenant at the same time issuing a notice under s 142 of the Act extending that same agreement.
For substantially the same reasons, leave to appeal on the merits was sought in the Notice of Appeal in the event that the arguments did not raise a question of law.
[11]
Tenant's appeal submissions on loss of termination right
In written submissions, Ms Mansted, who appeared for the Tenant, submitted:
1. By exercising its rights under s142 of the RTA, the Landlord elected to give notice of a fresh term, effectively creating a legally separate residential tenancy agreement from the former fixed term. Section 91 of the RTA was directed at a breach associated with a particular residential tenancy agreement, which in this case had come to an end and any breach of that agreement was not available for the purpose of seeking to terminate the new agreement that had been created.
2. In exercising its power under s 142 the landlord had waived its right under s 91 to contend that the residential tenancy agreement should be terminated by the Tribunal. Choosing to exercise the s142 right, with knowledge of a right to terminate the tenancy agreement for other reasons under the RTA, was inconsistent with reliance on s 91. The Landlord could have simply done nothing and the fixed term tenancy would have become a periodic tenancy but instead it took a positive step, affirming the tenancy and specifying when it intended the tenancy to end. If the Landlord wished to keep on foot its right to terminate pursuant to s 91, despite specifying what it now considered was to be the end date of the tenancy (being a date in 2022), the landlord would be expected to have reserved its rights when exercising the power in s142 (2), but it did not do this. Instead, the Landlord has been "blowing hot and cold", contrary to what was said to be a principle of contractual dealings (a principle which should be applied to the construction of the RTA due to its quasi-contractual nature) that a party should not be allowed to approbate and reprobate.
3. In support of (2), reference was made to the decisions in Express Newspapers plc v News (UK) Ltd (1990) 1 WLR 1320 at 1329-1330 per Brown-Wilkinson VC and Champtaloup v Thomas [1976] 2 NSWLR 264 at 269 per Glass JA. In the latter passage Glass JA, in dealing with the question whether an affirmation of the contract had occurred said:
The question must then be answered whether the party able to rescind and has communicated to the other party an unequivocal election to affirm, i.e. to renounce its right to rescind.
1. In the absence of any explanation from the Landlord, as was the case here, there was no reason why the statute would permit the Landlord to exercise its power to declare a new fixed term, while at the same time seeking to terminate the tenancy.
2. The second ground of appeal was based upon principles of waiver. As such it was not necessary for the Tenant to demonstrate reliance or detriment.
[12]
Landlord's appeal submissions on loss of termination right
Mr Fester, who appeared for the Landlord, said he relied upon its written submissions. These were short and included:
1. The reasoning of the Tribunal was correct.
2. It was clear from the terms of s142 that a notice under that section did not create a new lease.
3. The Landlord denied that by exercising its rights under s142 it had waived its rights to pursue termination under s 91. The RTA did not specifically prevent both rights being exercised at the same time and the legislation did not require a selection process or impose any restrictions upon the exercise of such rights.
4. Furthermore, as to waiver, it was submitted that the Landlord, being the largest supplier of social housing in NSW, providing in excess of 120,000 properties for this purpose, has these properties managed by the Department of Communities and Justice. (This submission, perhaps, hints at asserting a case of administrative oversight in issuing the s142 notice, but falls short of doing so. Certainly, there was no evidence tendered to this effect).
5. The Landlord had taken proceedings before the s142 notice was issued and the Tenant was not given any indication that the issuing of the s142 notice would bring the Tribunal proceedings to an end. There was no conduct on behalf of the Landlord that would have left the Tenant under any such illusion. There had been nothing to stop the Tenant seeking clarification from the Landlord and the fact that the Landlord continued the proceedings made it quite clear that it was not waiving its rights.
[13]
Further submissions on loss of termination right
In further written submissions, which we invited from the parties after the hearing of the appeal, the solicitor for the Tenant, Mr Parwani, referred us to a number of cases, including the decision of the High Court in Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394, particularly, to passages in the judgements of Dawson and Toohey JJ concerning waiver. He also made reference to s117 (1) of the RTA, which provides that demand for, or acceptance of, rent does not operate as a waiver of any rights of the landlord with respect to the breach of a tenancy agreement. It was submitted that case law, when read in conjunction with the RTA, displayed no reason why a waiver of a statutory right could not be available in the context of a residential tenancy.
[14]
Consideration of the loss of termination right issue-waiver
In our opinion, the Tenant has failed to establish that the Landlord waived its right to pursue termination under s 91 of the RTA. We agree with the Tribunal's conclusion that there was no waiver in the sense of an election between inconsistent rights.
Nor do we accept that there was a waiver in any different sense, as advanced by the Landlord on appeal. In this regard, we do not accept that waiver can be established by the application of some general doctrine or rule against approbation and reprobation separate from the various kinds of waiver referred to in the judgement of Gummow, Hayne and Kiefel JJ in Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 at [51]-[93] and see also at [46].
Even if there was such a general rule, we do not accept that it operated in the circumstances of this case to prevent the Landlord from pursuing its case for termination.
These conclusions are, ultimately, founded upon our view that the Tenant has failed to establish that there was an unequivocal communication by the Landlord that it was abandoning an entitlement to pursue its case under s 91 of the RTA.
We now explain our reasons for these conclusions.
In the first place, we note that no case of estoppel was put forward by the Tenant-no detrimental reliance was identified.
As to the notion of waiver by election (see at [56]-[58] of Gardiner), the rights in issue in this case, namely, the right to pursue an order for termination under s 91 and the right to extend the term of the lease under s142 are not alternative or inconsistent rights, as are, for example, a right to rescind a contract compared with a right to continue a contract and sue for damages. The right to extend the term of the tenancy can be exercised whilst, at the same time, the claim for a termination order is pursued. If the claim is successful it will bring the tenancy to an end at a different time (presumably, earlier) than termination through expiry of the term. If the claim is unsuccessful because, for example, the Landlord fails to persuade the Tribunal that the Tenant behaved in the manner described in s 91 or because of discretionary factors against termination, then the Landlord has specified that the tenancy shall continue for the new term (subject, of course, to any new matters that might justify proceedings for termination).
[15]
Consideration of loss of a termination right-alleged new tenancy agreement from s142 notice
The second basis upon which the Tenant contended the Landlord could no longer proceed to seek termination under s 91, was based, in our opinion, upon the incorrect premise that giving the s142 notice gave rise to a separate, new tenancy agreement between the parties. As we understood the argument, it followed that the effect of the s142 notice was that the existing tenancy agreement came to an end when it's fixed term expired and the parties entered into a new tenancy agreement which commenced immediately after the end of the previous agreement.
Based on that contention, it was said that conduct of the nature described in s 91, which occurred before a new tenancy agreement, was not available for the purpose of an application to terminate under s 91.
It is unnecessary for us to express any final view about this latter contention because, as we have already indicated, in our opinion, no separate, new tenancy agreement was created as a result of the s142 notice. However, we do note that s 91 is not concerned with termination for breach, nor does it expressly refer to a time when a relevant unlawful use of the residential premises is required to have occurred in order to found the making of a termination order.
In our opinion, the tenancy agreement existing at the time when the s142 notice was given continued to operate for an extended period as specified in the notice. In substance, there was a statutory, non--consensual variation of the existing tenancy agreement.
It seems to us that this conclusion follows from the language of s142, particularly, where it describes the notice in s142 (2) as one by which the landlord declares that "the agreement is subject to a fixed term of the tenancy…" [Our emphasis]. It is clear that "the agreement" is a reference to the existing fixed term agreement between the parties, as referred to in s142 (1).
There is nothing in the language of s 91 which suggests that the unlawful use must have occurred during the period of the extended term. We did not understand the Tenant to contend otherwise.
In these circumstances, in our opinion, the alleged unlawful conduct by the Tenant, said to have occurred in October 2018, is available to ground the making of a termination order under s 91 of the RTA, in the sense we have addressed in these reasons.
[16]
The Tribunal's stay order
On 19 May 2020, a differently constituted Tribunal ordered:
1. The proceedings are stayed pending the outcome of the related criminal proceedings.
2. The respondent shall advise the applicant of the outcome in the criminal proceedings within two days of those proceedings being finalised.
The Tribunal has power to order a stay under s 29 (2) (a) of the NCAT Act: see the definition of "interlocutory decision" in s4 (1) (a).
[17]
The Tribunal's reasons
The Tribunal's reasons for this decision can be summarised as follows:
1. Case authorities, in particular, James v NSW Land and Housing Corporation [2020] NSWCATAP 64, Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; 255 CLR 46, and Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153, established that a stay of a civil proceeding due to related criminal charges will be ordered where the interests of justice required such an order. A stay will not be ordered merely because related charges have been brought and criminal proceedings are pending. It must be apparent that the applicant for a stay is at risk of prejudice in the conduct of the defence in the criminal trial. The competing prejudices to each party from refusing or making the order must be weighed.
2. On the face of what was set out in the Landlord's application to the Tribunal there was a clear commonality of issues between the criminal and Tribunal proceedings because the criminal charge was that the Tenant had possession of child abuse material in October 2018 and the particulars in the Tribunal application made reference to this charge.
3. Despite the particulars in the Landlord's application to the Tribunal, the case which the Landlord now proposed to make against the Tenant in the Tribunal proceedings, for which it was that day given leave to amend, was not that the Tenant was in possession of child abuse material but that he permitted the residential premises to be used for an unlawful purpose, namely for child abuse material to be watched by another person. In view of this change, the Tenant should be given an opportunity to file further evidence in the Tribunal proceedings but the Tribunal had been informed that it was it was highly unlikely the Tenant would be advised to agree to making any further statement in the Tribunal proceedings whilst he was under cross-examination, as he was, in the criminal proceedings.
4. There was no guarantee that a certificate given under s128 of the Evidence Act 1995 (NSW) or the making of non-publication orders under s 64 of the NCAT Act in the Tribunal proceedings would sufficiently protect the Tenant.
5. The facts of this application and the advanced progress of the criminal proceedings favoured a stay. As to the latter, the Tribunal noted that the criminal proceedings were listed on 21 September 2020 for mention only with a view to setting a new hearing date for the part heard trial.
6. The Tribunal proceedings will be delayed, in any event, because of the foreshadowed amendment to the particulars. Furthermore, the Landlord has extended the term of the tenancy by giving the s142 notice and no evidence of actual prejudice to the applicant had been tendered on the stay application. Having regard to these matters, the Landlord was not prejudiced by a stay pending the outcome of the criminal proceedings.
[18]
The requirement for leave to appeal and the need for an extension of time
The Landlord needs leave to appeal against the stay order under s 80 (2) (a) of the NCAT Act because the decision to stay the proceedings was an interlocutory decision.
The Landlord also needs an extension of time in which to bring the appeal. The appeal was lodged 16 days after the 14 day period for lodging an appeal in residential tenancy matters expired: Rule 25 (4) (b) of the Civil and Administrative Tribunal Rules 2014. This is a, relatively, short delay in commencing the appeal. The Landlord explained that the reasons for the delay was delay in obtaining instructions and advice caused by the Covid 19 pandemic. In these circumstances, having regard also to our opinion that the leave to appeal application, and the appeal itself, are not entirely lacking in merit, we are prepared to grant the necessary extension of time in which to lodge the appeal.
The approach to the grant of leave to appeal from an interlocutory decision is set out earlier in our reasons at paragraph 36.
Whilst the Landlord's written submissions, incorrectly, stated that cl 12 of Schedule 4 of the NCAT Act was applicable to the question of leave, its submissions also referred to relevant aspects from Collins v Urban and put forward express or implicit contentions that leave should be granted because the decision was attended by sufficient doubt and a substantial injustice has resulted, that there was a plain error by the Tribunal in relation to central aspects of the decision and the appeal raised issues of principle and questions of public importance concerning the application of s 128 of the Evidence Act and s 64 of the NCAT Act, as well as concerning the nature of the prejudice suffered by the Landlord when a stay is granted.
[19]
Consideration
In our opinion, the Landlord has not established that there are substantial reasons to allow appellate review. It seems to us that the Tribunal applied to the particular circumstances of the present case the established principles and that no question of public importance arises. Also, whilst the Tribunal's reasons did not refer to some relevant matters, we are not satisfied that the decision itself was attended by sufficient doubt or that a substantial injustice has resulted.
We now explain these reasons in more detail.
Nearly all of the Landlord's submissions were contained in written submissions from Mr O'Connor of Counsel dated 5 August 2020 (Mr Fester represented the Landlord at the hearing of the appeal). The written submissions included submissions in support of seven grounds of appeal. (We treat these seven grounds as the full version of the prospective grounds of appeal, rather than those set out in the Notice of Appeal).
At the forefront of the Landlord's written submissions was a contention that the present case was clearly distinguishable from the decisions in James and Zhao because the Tenant had already telegraphed his likely defence to the criminal proceedings in his record of interview with the police and in the written statement of 28 November 2019 in the Tribunal proceedings. As we pointed out at the hearing of the appeal, the matter went further than this because the Tenant has already given his oral evidence in chief in the criminal proceedings - his cross-examination had not been completed. We should note here that neither party sought to rely upon the oral evidence that has already been given by the Tenant in the criminal proceedings and we have not been provided with any information about such evidence.
The Landlord, correctly, noted that these were not matters that were referred to by the Tribunal. Indeed, at one point in the reasons the Tribunal said that it accepted a submission by the Tenant that he could not realistically defend the termination proceedings without telegraphing his likely defence.
The Landlord submitted that in these circumstances there was no real risk of prejudice to the Tenant in the conduct of his defence of the criminal trial. It was submitted that if the Tenant chose to give evidence in the Tribunal proceedings seeking to challenge or undermine the admissions which he had already made then such evidence would not involve telegraphing any defence of the criminal proceedings because the evidence would not concern the critical fact in issue in the criminal proceedings, as against the Tribunal proceedings, which was whether the Tenant was in possession of the child abuse material at the relevant time.
[20]
Orders in Appeal 20/24268
For the above reasons, the following orders are made in AP 20/24268:
1. Extend the time for lodging the appeal to 3 June 2020.
2. Grant leave to appeal to the extent that such leave is required.
3. The appeal is dismissed.
[21]
Orders in Appeal 20/27372
For the above reasons, the following orders are made in AP 20/27372:
1. The time for lodging the appeal is extended to 18 June 2020.
2. Leave to appeal is refused.
3. The appeal is dismissed.
[22]
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: 30 October 2020
In AP 20/24268, time was extended to 3 June 2020, leave to appeal was granted to the extent required, and the appeal was dismissed. In AP 20/27372, time was extended to 18 June 2020, leave to appeal was refused, and the appeal was dismissed; the stay remained in place.
The Tribunal proceedings progressed without any application being made by the Tenant for a stay of the proceedings pending the determination of the criminal charge. However, adjournments of the Tribunal proceedings were sought and obtained, in part, on the basis that the hearing should occur after the criminal proceedings had been determined.
On 1 August 2019, the Tribunal made procedural directions for the filing and service of evidence. On 2 September 2019, the Landlord lodged the documents it intended to rely upon in support of the termination application, and the Tribunal extended the time for the Tenant to file and serve documents. A date of 2 October 2019 was set down for the hearing but was vacated by consent because the Tenant indicated that his criminal proceedings were due to be finalised at around about that time. A new hearing date of 12 December 2019 was set down.
The Tenant's criminal trial commenced on 24 October 2019 was adjourned part heard to 14 and 15 January 2020. The Tenant pleaded not guilty.
On 2 December 2019, the Tenant filed and served the documents he intended to rely upon to oppose the termination order. This included a signed statement from him dated 28 November 2019 in which he gave evidence as to why he denied he had used the premises for an unlawful purpose and why he was not guilty of the criminal charge.
The hearing date of 12 December 2019 for the termination proceedings was adjourned to a date to be fixed on the basis that the criminal proceedings were to continue in January 2020 the Tribunal accepted that the Tenant's case may be prejudiced if he were to give evidence at the hearing on 12 December 2019 and because the delay was not great.
At the beginning of January 2020, a new date for the hearing of the Tribunal proceedings was set for 10 February 2020.
The criminal trial did not conclude during the January dates. Various adjournments of the criminal proceedings occurred due to the Covid 19 situation and for other reasons. The criminal proceedings were listed for mention only on 21 September 2020. A new hearing date is expected to take place in November 2020.
At the request of the Tenant, on 5 February 2020 the hearing date of 10 February 2020 for the Tribunal proceedings was adjourned due to the Tenant's medical condition.
Central to the Tenant's claim that the termination right has been lost, by a written notice, dated 5 February 2020, the Landlord, through Family & Community Services, gave the Tenant notice, pursuant to s142 of the RTA, declaring that the tenancy agreement was subject to a fixed term expiring on 30 January 2022.
This document made it clear that it was a s142 notice and stated:
FACS Housing acting for the NSW Land & Housing Corporation has reviewed your eligibility to remain in public housing and by this notice is extending your lease for a further fixed term.
The New South Wales Land and Housing Corporation pursuant to this notice under section 142 of the Residential Tenancies Act 2010 declares your fixed term for your residential tenancy agreement at….. Is subject to a further fixed term of two years commencing on 3 February 2020 and ending on 30 January 2022.
The document made no reference to the termination proceedings before the Tribunal or to the events that had given rise to those proceedings.
By a Notice of Hearing dated 6 February 2020, a new date of 7 April 2020 was set for the hearing of the Tribunal proceedings. However, by letter from the Tenant's legal representative, dated 6 April 2020, the Tenant sought dismissal of the termination proceedings on the basis that the Landlord had waived its right to seek termination by giving the s142 notice. In the alternative, the Tenant sought an adjournment of the hearing on 7 April 2020 because of the undetermined criminal proceedings.
In relation to this application for dismissal, the Tribunal made orders on 7 April 2020 to the effect that the Tenant's waiver point should be determined, on the papers, as a preliminary point. Directions were made for the provision of written submissions.
On 5 May 2020, the Tribunal dismissed what it described as the Tenant's application for "summary disposal" of the Landlord's claim in the termination proceedings and adjourned those proceedings to a date to be fixed.
At a directions hearing in the termination proceedings on 8 May 2020 the Tribunal drew the parties attention to the decision of the Appeal Panel in James v NSW Land and Housing Corporation [2020] NSWCATAP 64 and made directions for the parties to file submissions as to whether the proceeding should be listed for final hearing or stayed pending the outcome of the criminal proceedings. This led to the Tenant's application for a stay and the Tribunal's decision of 19 May 2020 in which a stay was ordered.
In the circumstances of this case, there were additional mandatory considerations to be considered by the Tribunal before it could make a termination order, including the effect that the tenancy had on neighbouring residents: see s154E of the RTA.
Section 142 of the RTA provides:
142 Extension of social housing tenancies
(1) This section applies to a social housing tenancy agreement that is a fixed term agreement under which the landlord is the New South Wales Land and Housing Corporation or the Aboriginal Housing Office.
(2) The landlord may, if the fixed term has ended, by written notice given to the tenant declare that the agreement is subject to a fixed term of the tenancy specified in the notice from the date specified in the notice.
(3) At the end of any such further fixed term -
(a) any term of the agreement that provides for the continuation of the agreement applies, or
(b) section 18 applies.
(4) A declaration may be made under this section in relation to an agreement on more than one occasion.
(5) A tenancy that is subject to a further fixed term under this section may be terminated in accordance with this Act by the tenant (but not by the landlord) as if the social housing tenancy agreement were a periodic agreement.
The RTA contains various provisions concerning a fixed term tenancy, in addition to s142. A fixed term agreement is defined as a residential tenancy agreement for a tenancy for a fixed term: s3 (1). A fixed term agreement that continues after the day on which the fixed term ends continues to apply as if the term of the agreement was replaced by a periodic agreement and on the same terms as immediately before the end of the fixed term: s 18. Before the end of the fixed term of a fixed term agreement, a landlord may give a termination notice that is to take effect on or after the end of the fixed term: s 84 (1). Such a termination notice must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given: s 84 (2). The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with s 84: s 84 (3).
A landlord may at any time give a termination notice for a periodic agreement but must specify a termination date that is not earlier than 90 days after the day on which the notice is given: s 85 (1) and (2). The Tribunal must, on application by a landlord, make a termination order if it is satisfied a termination notice was given in accordance with s 85.
In view of these provisions, instead of giving a s142 notice, the Landlord could have allowed the tenancy to have continued as a periodic tenancy after the end of the latest fixed term. In such an event, it could have achieved a termination of the tenancy by an order of the Tribunal, which the Tribunal was required to make, following a 90 day termination notice.
As we see it, the Tribunal's decision on the Tenant's dismissal application was a decision on a question that was the subject of separate determination in advance of a hearing that was otherwise on the merits. If the Tenant's contention had been upheld the whole of the Landlord's claim would have been dismissed. In addition, the complication of related criminal and civil proceedings would have gone away. These are powerful reasons in favour of the grant of leave to appeal. The Landlord did not oppose the grant of leave to appeal-no doubt it did not do so in recognition of these matters.
In addition, the appeal itself raises an argument, which is not without merit, concerning the application of the principle of waiver. We favour the grant of leave to appeal in this appeal because it is in the interests of both parties and the efficient disposition of Tribunal proceedings that the decision, if wrong, be corrected at this point of the proceedings rather than require the litigation to continue until all the matters in issue have been determined. Furthermore, we consider that the decision is attended by sufficient doubt to warrant a grant of leave to appeal.
The Tenant also needs a short extension of time in which to lodge the appeal. This is because the Notice of Appeal was lodged 15 days later than the 14 day time limit in which to appeal in residential matters: Rule 25 (4) (b) of the Civil and Administrative Tribunal Rules 2014 (NSW). We are prepared to grant the necessary extension of time in view of the merits of the application for leave to appeal and the, relatively, short extension that is required.
In oral submissions, Ms Mansted elaborated upon these submissions and indicated that the waiver ground was the stronger ground of appeal.
As to the preferred waiver ground, Ms Mansted submitted that it was a distinction without a difference that the Landlord's right was not to terminate or rescind by its own action but rather was limited to making application to the Tribunal. She also submitted that there was an unequivocal communication from the landlord in giving the s142 notice, as required for waiver, namely that it intended that the tenancy agreement continue until the new date that was specified. She also submitted that if the Landlord had put on an affidavit along the lines that the s142 notice was given because someone "just pushed a button", without being told that the termination proceedings were on foot, then there may have been a serious factual question whether that step would amount to a waiver of the termination right. However, no such evidence had been presented by the Landlord. It should not be assumed that the s142 notice was given because of an administrative oversight.
As to the first ground of appeal, Ms Mansted submitted that the definition of a residential tenancy agreement in s 13 of the RTA supported the argument that a new tenancy agreement was created by the s142 notice because it meant there was a new grant of a right of occupation. She also submitted that the first ground of appeal would be consistent with a statutory purpose favouring security of tenure so that a tenant's past conduct under a former tenancy agreement did not return to haunt the tenant.
As to the notion of waiver of a right within the adjudicative process (as per Gaudron and Toohey JJ in Verwayen: see at [60] and [89] in Gardiner], there was no communication from the Landlord at all in the litigation in the Tribunal about not proceeding with its claim. On the contrary, as appears from the procedural steps, to which we have already referred, everything pointed to the Landlord proceeding towards a hearing of the claim. We do not see how any considerations of fair dealing in the adjudicative process could require a conclusion here that the Landlord be seen as having abandoned its claim, particularly, through a communication outside the litigation process, which said nothing about the termination proceedings, and in a context in which parties to litigation normally communicate squarely about withdrawing a claim, if that is what is intended.
As to waiver by forbearance (see at [68]-[87] of Gardiner), we note that this might operate in relation to forbearance of a contractual right (and only temporarily) where the considerations arise from contractual dealings between the parties, including, although not limited to, a question whether there has been a variation of a contract. That is not the setting for the current issue which concerns an alleged loss of a right to continue proceedings in the Tribunal. We do not see how a waiver by forbearance is capable of applying in the current circumstances.
As to waiver by abandonment or renunciation of a right (see at [88]-[93] of Gardiner), the short answer is that there was no statement by the Landlord about abandoning its proceedings in the Tribunal. As we have already said, the s142 notice said nothing about the termination proceedings.
For these reasons, the appeal in AP 20/24268 should be dismissed.
The Landlord went so far as to submit that the decision of the Tribunal was wrong because the admissions made by the Tenant in the police record of interview were sufficient to prove the case of relevant unlawful use of the residential premises by the Tenant, as prescribed in s 91 (1) (b). It was also submitted that if the Tenant gave the same evidence in the Tribunal proceedings this could not amount to self-incrimination because he would be saying nothing more than what he had already told the police. In this regard, the Landlord relied upon the decision in Stocks v John's (No 2) [2019] VSC 854 in which the court, in refusing a stay, expressed the view that the admissions that had already been made to the police were sufficient to make out a case in negligence in the civil action.
In support of these submissions the Landlord pointed to the detail of the Tenant's response to an allegation that a USB containing child abuse material was his property, during an interview with the police on 24 October 2018, including statements to the effect that he had assisted a Mr Nash Bell to play the child pornography on the television at the residential premises.
However, it seems to us that a key factor in the Tribunal's decision was that if the Tribunal proceedings were not stayed the Tenant would be faced with the dilemma whether to present further evidence in the Tribunal proceedings, particularly about the changed case by the Landlord which disavowed an allegation of possession of child abuse material at the residential premises, which might assist the prosecution case (through inconsistency or further admissions), or remain silent about the new case to the potential prejudice of its defence of the Tribunal proceedings.
As we interpret the reasons, this was the substance of the first matter referred to by the Tribunal when it came to deal with the new case for termination (the reference to a concern about telegraphing the likely defence in the criminal proceedings was an earlier reference in the reasons). In addition to this particular dilemma arising from the new case, the Tribunal then proceeded to rely on two other matters to justify a stay, namely inadequate protection from protective orders (a s128 certificate and s 64 orders) and an absence of prejudice to the Landlord.
As we expand upon below, we do not see that the requirements for the grant of leave to appeal from this interlocutory decision are satisfied in respect of the decision that was supported in this manner.
It does not seem to us that the dilemma for the Tenant, which the Tribunal alluded to, can be dismissed as fanciful or otherwise lacking in substance.
As far as we can tell, it will be necessary for the prosecution in the criminal proceedings to challenge the credibility of the Tenant's exculpatory explanation to the charge of possession based upon his account about assisting another person to watch child abuse material belonging to that other person. Anything that the Tenant now says about this subject in the Tribunal proceedings, whether in chief or in cross-examination, carries a risk of assisting the prosecution through inconsistencies or further admissions. One can understand that the Tenant may well be advised to say nothing more on the subject in the Tribunal proceedings, albeit to the potential prejudice of the defence of those proceedings.
Furthermore, the risk of prejudice in the criminal proceedings is heightened by the lack of clarity in the case to be made by the Landlord in these proceedings. In this regard, it is notable that, although a case of possession by the Tenant has been disavowed and leave to amend granted, the Landlord has not yet provided any new particulars of the Tenant's alleged unlawful conduct, including details of the offence that is said to have been contravened. The Landlord's written submissions refer to two kinds of conduct-either causing or permitting the child abuse material to be watched at the premises or allowing the child abuse material to be harboured at the premises (at [14])-but do not specify the alleged offence. At the hearing of the appeal, Mr Fester indicated that the criminal contravention was said to be one of aiding and abetting but this was not precisely expressed.
This is not a satisfactory basis upon which to conclude that admissions already made by the Tenant are sufficient to establish an unlawful use of the residential premises, as prescribed by s 91 (1) of the RTA, let alone that such evidence should lead to the making of an order of termination under that section.
We also bear in mind that s 91 of the RTA invites a factual enquiry which goes beyond the question whether a relevant unlawful use has occurred and extends to the question whether such use was "sufficient to justify the termination" (s 91 (1) (b)) and also invites the Tribunal to consider "the nature of the unlawful use" (s 91 (2) (a)). These aspects also increase the prospect that more information relevant to the criminal proceedings might emerge from further evidence from the Tenant in the Tribunal proceedings.
This is one reason to distinguish the present case from that in Stocks case (a case which the Tribunal at first instance was not referred to). Another obvious point of distinction is that in Stocks the applicant for a stay had already been convicted of the criminal charges (she was seeking leave to appeal from the conviction) and the plaintiff in the civil proceedings would suffer significant prejudice from a stay of his civil action.
The Landlord submitted that the Tribunal had erred in rejecting the argument that orders under s 64 of the NCAT Act and a certificate under s128 of the Evidence Act would adequately protect the Tenant. It submitted that the Tribunal should have followed the approach in Health Care Complaints Commission v Coleman [2020] NSWCATOD 47 to the taking of these steps.
However, the present situation is quite distinct from that in Coleman's case. At the time of the stay application in Coleman the medical practitioner had already been acquitted of all charges that arose from allegations which overlapped with those made by complainants in the medical disciplinary proceedings in the Tribunal (many other complaints were the subject of the criminal proceedings). There remained the prospect that some of the allegations made by another complainant in the disciplinary proceedings would be part of a second indictment against the medical practitioner. The medical practitioner presented various arguments in support of a stay, including that evidence he might give in the disciplinary proceedings was likely to be relevant to aspects of his medical practice which would also be relevant to the remaining criminal proceedings. Given the limited and indirect connection between the Tribunal proceedings and the remaining criminal proceedings, as well as the public interest in the disposition of the disciplinary proceedings, the Tribunal refused the stay application.
In doing so, the Tribunal relied (at [60]), in part, upon the ability to make protective orders, including the issue of a certificate pursuant to s128 of the Evidence Act, closing the court and non-publication orders: see s 49 (2) and s 64 of the NCAT Act. However, the taking of such steps in the circumstances in Coleman, so as to permit the continuation of the disciplinary proceedings, which, for the most part, dealt with complaints that were no longer the subject of any criminal proceedings is readily distinguishable from the present circumstances.
We also bear in mind the following matters concerning the prospect of making of protective orders:
1. In Zhao, the High Court said in relation to the making of a closed court order in that case (at [44]):
The Commissioner suggests that protective orders could be made, which might maintain the confidentiality of evidence, and that evidence could be given in closed court. In the latter regard, the open court principle, to which the law adheres, now finds expression in s 28 of the Open Courts Act 2013 (Vic). The rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances. Closing the court so that the Commissioner might progress forfeiture proceedings and receive the second respondent's evidence does not qualify as a proper reason for departing from the principle. [Our emphasis]
1. Unlike in Coleman, any closed court order requested of the Tribunal in this case would appear to be needed for most, if not all, of the hearing. If, consistently with the decision in Zhao, the Tribunal refused to make such an order then it is not difficult to foresee that information about the Tenant's evidence in the Tribunal proceedings would come to be known by the prosecution in the criminal proceedings.
2. Knowledge by the prosecution of evidence given by the Tenant in the civil proceedings can be prejudicial to the defence of criminal proceedings even if the evidence cannot be used against the Tenant in the civil proceedings: see Zhao at [46].
3. A s128 certificate is not applicable to evidence in chief-a matter that both parties accepted at the hearing of the appeal.
For these reasons, in our opinion, the Tribunal's view that the availability of protective orders did not provide an assured solution to the problem was correct, albeit that the Tribunal is open to criticism for a lack of reasons about this view.
Finally, the Landlord took issue with the Tribunal's conclusion that the Landlord was not prejudiced by the grant of a stay.
The Tribunal's conclusion about prejudice to the Landlord was in the context of the Landlord's submission that the relevant unlawful use of the premises was established by admissions from the Tenant and that the prejudice was analogous to that found in NSW Land and Housing Corporation v Raglione [2015] NSWCAP 75.
However, a relevant unlawful use is yet to be proved in the Tribunal and if proved has features that are different from the features of risk of harm to others that were identified by the Appeal Panel in Raglione: see, particularly, at [49]-[51] and [74]-[78].
In this context, it seems to us that the Tribunal was pointing to the absence of any specific prejudice to the Landlord resulting from further delay in the determination of the Landlord's allegations and claim for termination (such as disturbance or harm to neighbours). In our opinion, the Tribunal was correct in doing so. It was a view that derives support from delay that has already occurred in the Tribunal proceedings, including delay by the Landlord in the specification of its case against the Tenant (a delay which we note has continued).
We do not interpret the Tribunal as having disregarded the important consideration that the determination of the Landlord's proceedings should not be unduly delayed.
On the appeal, it was submitted that in circumstances where it was open to the Tribunal to make a mandatory termination order based on the established breach of s 91 (1) (b) of the RTA [our emphasis], the prejudice to the Landlord in ordering the stay was that if the tenancy is ultimately terminated the applicant is unable to offer the premises to a suitable person in need of social housing until the matter is heard and determined. The statutory role of the Landlord with respect to the provision of social housing was relied upon. The, previously, claimed analogy with Raglione's was not relied upon.
However, as we have already mentioned, we do not accept that the Landlord has established a breach by the Tenant of s 91 (1) (b) and, in any event, important questions remain in respect of the making of a termination order.
Clearly, the delay being experienced in concluding the criminal proceedings, due to the Covid 19 situation, is longer than was anticipated when the Landlord, originally, agreed to an adjournment of the hearing of the Tribunal proceedings in view of the pending criminal trial. As Mr Fester pointed out at the hearing of the appeal, although the criminal trial is expected to resume in the near future, it remains uncertain when the criminal trial will be finalised. Nevertheless, as the Tribunal said, the progress of the criminal proceedings are well advanced.
In view of all these matters, we do not think that the Tribunal's decision is attended by sufficient doubt or that the Landlord has suffered a substantial injustice by reason of the decision or that the Landlord has shown that leave to appeal should be granted for any other reason.
At the hearing of the appeal, Ms Mansted submitted that there were complications for the Tenant in the conduct of his defence of the Tribunal proceedings resulting from fact that he was, presently, under cross-examination in the criminal proceedings and that this alone, or in combination with matters we have already referred to, justified the grant of a stay in the interests of justice. We note that this was not an aspect of the Tenant's argument before the Tribunal at first instance and no evidence concerning the specific complications was presented by the Tenant before the Tribunal or on appeal. Clearly, the Tenant's criminal lawyers cannot confer with the Tenant whilst he is under cross-examination except in certain circumstances. However, we understand that he is assisted by a different lawyer in the Tribunal proceedings. In any event, it is unnecessary for us to say anything more about this in view of the decision we have already arrived at concerning the continuation of the stay.