Lindsay v NSW Land and Housing Corporation

Some factual background

1. The appellant has been a tenant of social housing providers for 14 years. He entered into a Residential Tenancy Agreement with the respondent on 22 July 2011. The appellant has been diagnosed as suffering from bi polar disorder and suffers from anxiety and depression for which he is prescribed medication. It is apparent from the material before the Tribunal that there had been some difficulties managing the tenancy.
2. It was not in dispute that on 15 May 2015 the appellant attended the Penrith office of the respondent and advised that his keys had been stolen. He raised issues about the security of his belongings. He met with two employees of the respondent, Mr Leary-Smith and Mr Jobson. Interviews with those employees were recorded on CCTV. That footage was before the Tribunal.
3. The Tribunal made various findings about what occurred on 15 May 2015. There appears to be no doubt that at that time the appellant was in a heightened state of anxiety and used strong and abusive language to the respondent's employees.
4. The proceedings were commenced because of the 15 May incident and the respondent sought to terminate the tenancy and get possession of the premises.

The RT Act Provisions

1. The landlord sought termination of the tenancy pursuant to s 92 of the RTA. That section provides: (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: (a) seriously or persistently threatened or abused the landlord, the landlord's agent or any employee or contractor of the landlord or landlord's agent, or caused or permitted any such threats, abuse or conduct, or (b) intentionally engaged, or intentionally caused or permitted another person to engage, in conduct in relation to any such person that would be reasonably likely to cause the person to be intimidated or harassed (whether or not any abusive language or threat has been directed towards the person). (2) The termination order may specify that the order for possession takes effect immediately. (3) A landlord may make an application under this section without giving the tenant a termination notice. (4) 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.

The Findings of the Tribunal

1. The matter came before the Tribunal for final hearing on 7 October 2015. In the reasons for decision the Member correctly identified the issues for determination as follows: (a) Did the tenant breach s 92(1)(a) by seriously or persistently threatening or abusing Mr Leary Smith and Mr Jobson? (b) Did the tenant breach section 92(1)(b) in that he has intentionally engaged, in conduct in relation to any such person that would be reasonably likely to cause the person to be intimidated or harassed (whether or not any abusive language or threat has been directed towards the person). (c) If so, should the Tribunal exercise its discretion to terminate the tenancy agreement? (d) If the Tribunal does not terminate the tenancy agreement, should any other orders be made?
2. It is clear from the use of the word "or" in the section that before the Tribunal moves to exercise its discretion to terminate a residential tenancy under s 92 of the RT Act, it must be satisfied that the evidence establishes that the matters in either s 92(1)(a) or s 92(1)(b) are satisfied. It is not entirely clear, but appears that the Member may have proceeded on the basis that both ss 92(1)(a) and (b) needed to be satisfied before determining whether to exercise the discretion to terminate.
3. In any case, the Member ultimately found that the appellant had seriously threatened the employees of the respondent and also that he had intentionally engaged in conduct reasonably likely to intimidate or harass employees or agents of the respondent. That is, the Tribunal found that both s 92(1)(a) and (b) were satisfied.
4. The Tribunal relevantly found that when the appellant attended the office of the respondent on 15 May he made statement to Mr Jobson in the presence of Mr Leary-Smith including "you're a cunt, I'm going to burn your fucking house down, I'm going to put a bolt in your head. You're corrupt….You're a bikie, me and my boys are coming to burn your house down" and that he would "…burn the whole complex down". The Tribunal found that when making these statements, the appellant was standing and speaking very loudly.
5. The Tribunal made those findings preferring the evidence of Mr Leary-Smith and Mr Jobson to that of the appellant. The Tribunal noted that at the time of the incident, the appellant had not been taking his medication and had not slept for some time.
6. The Tribunal found that the appellant's conduct on 15 May could objectively be characterised as threatening or abusive. The Tribunal was satisfied that the terminology and actions of the appellant on that day were intended to be aggressive and abusive.
7. The Tribunal found that the words used by the appellant could reasonably be regarded as being threatening. The Tribunal thus found that the appellant threatened both Mr Leary-Smith and Mr Jobson.
8. The Tribunal correctly noted that threats and abuse on their own are not enough to satisfy s 92(1)(a) of the RT Act, but that the threats or abuse must be serious or persistent. The Tribunal referred to evidence of a consent order made in the CTTT in 2012 whereby the appellant had acknowledged a breach of his residential tenancy agreement and agreed not to threaten, harass or abuse the landlord or its agents, However, as the order was made by consent such that there had been no findings that the appellant had breached s 92 of the RT Act, and as the application was based solely on the 15 May incident, the Tribunal did not consider the conduct of the appellant was "persistent". There is no challenge to this finding.
9. In considering whether the conduct of the appellant was "serious", the Tribunal applied the Concise Oxford Dictionary definition of "serious". It was found that the conduct of the appellant on 15 May, amounting to death threats and abuse, and which resulted in an application for an apprehended violence order (AVO) was serious. Thus, the Tribunal held that s 92(1)(a) had been satisfied. We will return to the Tribunal's reasoning on this issue below.
10. The Tribunal then considered s 92(1)(b) and found that at the time of the incident the appellant had ceased to take his medication. The Tribunal found that by failing to take his medication, the appellant demonstrated a reckless indifference to the consequences and this was a relevant factor in determining whether the conduct of the appellant was intentional. It held that it was. Thus the Tribunal found that s 92(1)(b) had been engaged.
11. Appropriately, the Tribunal then dealt with various factors it considered relevant to the exercise of its discretion whether to terminate the tenancy or not. It found the following factors relevant to the exercise of its discretion:
12. The Tribunal, in its reasons took account of the following matters in exercising the discretion to terminate: 1. That the tenant seriously abused and threatened Mr Leary Smith and Mr Jobson and that they had each applied for an apprehended violence order. (para 34) 2. That the threats made to Mr Jobson to "burn your fucking house down" and to "put a bolt in your head" were reasonably likely to him to be intimidated or harassed and that the fear was continuing (para 35) 3. That the tenant's medical conditions were serious and could lead to aggressive behaviour if the tenant was feeling stressed and that he could be difficult for employees and contractors of the landlord to deal with (para 36) 4. There had been a previous s 92 application to the Tribunal in relation to the tenancy and the tenancy had at times required active management. (para 37) 5. Given the history of the tenancy there would be a possible need for future intervention and that in conjunction with the other factors put forward by the landlord was "a significant factor warranting termination of the tenancy agreement." (para 38) 6. The eviction from the premises would have extremely adverse consequences for the tenant's psychological health. (para 39) 7. The tenancy had been a lengthy one and the tenant would have difficulty finding alternative premises given his limited income. (para 40) 8. The threats made to Mr Jobson were of a personal nature, knowing where he lived, who he socialised with and his intention to burn the place down were indicative that at least part of the abuse was pre meditated and not impulsive. (para 41) 9. The Member accepted on the evidence of the tenant's mother that he had a long history of anger management issues and that his failure to take prescribed medication which assists with his anxieties exposed other people to behaviour such as that which occurred on 15 May 2015. (para 41) 10. That Mr Lindsay did not appear to take responsibility for the impact of his behaviour on other persons or take active steps to lessen the chance of there being a recurrence. (para 41) 11. The landlord has an obligation under Section 50(3) of the Act to ensure that the landlord's tenants do not interfere with the reasonable peace, comfort or privacy of other tenants and given the evidence as to the circumstances that preceded this incident on 15 May 2015 the Tribunal was not satisfied that the quiet enjoyment of the other tenants could be secured unless the respondent's tenancy was terminated. (para 42)
13. In the exercise of its discretion, the Tribunal terminated the tenancy.

The Appeal

1. The appeal is made on following grounds: 1. There was an error of law in making the orders in that the Tribunal applied the wrong test in relation to whether the conduct of the appellant was "serious"; 2. The Tribunal wrongly applied the test of recklessness to conclude that the appellant's conduct was intentional and did not consider the tenants state of mind at the time. 3. Ground three which was raised in the initial application to appeal was not pressed 4. The Tribunal erred in law by making a decision which was against the weight of evidence and took into consideration incorrect matters which have caused an error in the exercise of the discretion.
2. An internal appeal may be made as of right on any question of law or with the leave of the Appeal Panel, on any other grounds pursuant to s 80(2)(b) of the Act.
3. In relation to appeals from the Consumer and Commercial Division, leave to appeal on grounds other than a question of law can only be granted in the limited circumstances set out in cl 12 of Sch 4 to the Act: (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. In our opinion, in raising the proper construction and application of s 92(1) of the RT Act, and the manner in which it was applied by the tribunal, the appeal raises questions of law: see the useful discussion of this area in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69.
5. As such, no leave is required for grounds 1 and 2. It may be that leave is required for ground 4, on the basis that the decision was against the weight of evidence, but for the reasons that follow, we do not need to deal with this question.

Ground 1 - The test in relation to "seriously" was not correctly applied

1. The first ground of appeal is that in determining the whether s 92(1)(a) of the RT Act had been satisfied, the Tribunal applied the wrong test relating to whether the tenant had "seriously" threatened or abused the employees.
2. As we have observed above, the Tribunal found that the threats were made out, however, they could not be regarded as being persistent within the meaning of s 92(1)(a) of the RTA. The Tribunal did find they were serious. In that regard the Member stated the following: 23 In relation to whether the tenant seriously threatened or abused the landlord's agent "serious" is relevantly defined in the Concise Oxford Dictionary as "thoughtful, earnest, sober, sedate, responsible, not frivolous or reckless or given to trifling". In my objective view, there was nothing thoughtful, earnest, sober, sedate, responsible, frivolous or trifling about the tenant's conduct on 15 May 2015. I am satisfied that the tenant's threats could be reasonably considered to be serious. 24 In the course of their employment, client services officers such as Mr Jobson and Mr Leary Smith have to deal with difficult and/or disturbed tenants on a regular basis and they should be relatively robust in dealing with the behaviour of such tenants. However, this does not mean that it acceptable for them to be subjected to death threats or to be otherwise seriously threatened or abused. It is not acceptable that an employee of the landlord should feel so threatened by the conduct of the tenant that an application for an apprehended violence order be taken out as was the case here. 25 The landlord has established that the tenant seriously threatened and abused Mr Jobson on 15 May 2015. The criteria of s 92(1)(a) have therefore been established.
3. The appellant made submissions that the finding that "there was nothing thoughtful, earnest, sober, sedate, responsible, frivolous or trifling about the tenant's conduct on 15 May 2015" did not mean that the appellant's conduct was 'serious' within the meaning of s 92(1)(a). They appellant made submissions that the different meanings cannot all be applicable to the definition of serious and to define something by stating what it is not, is contrary to the legislative intention.
4. The appellant provided to the Appeal Panel an extract from the Shorter Oxford English Dictionary (2002). It submitted that a more appropriate definition in this case would have been: Dealing with or concerning grave or factual matters; (of drama, actors, etc.) not jocular or comic; (of music, literature, etc.) not intended to simply amuse, please, please or entertain (freq. Opp. light or popular)
5. The respondent submitted that while the Tribunal may have poorly expressed the test, that is not an error of law and it was clear from the reasons that the Member was satisfied that the appellants abuse was sufficiently concerning to be serious so as to satisfy s 92(1)(a).
6. In NSW Land and Housing Corporation v Stephen Kline [2014] NSWCATCD 210 the Tribunal also considered the definition of 'seriously'" In relation to whether the tenant seriously threatened or abused Mr Routley, "serious" is relevantly defined in the Shorter Oxford Dictionary as "having, involving, expressing or arising from earnest purpose or thought; of grave or solemn disposition or intention; not light or superficial ….. not jesting, trifling or playful; in earnest". In my view, there was nothing light, superficial, jesting, trifling or playful about the tenant's conduct on 7 April 2014. I am satisfied that the tenant's threat was serious. I also consider that calling a person a "cunt" in the context of such an incident constitutes serious abuse.
7. The term 'serious' is also found in other statutes including the Crimes Act 1900 (NSW). In Geoffrey William Vines v Australian Securities and Investment Commission [2007] NSWCA 126, Ipp JA considered the definition of serious as it applies in s1317EA of the Corporations Law. His Honour said: 226 In my opinion, no assistance as to the meaning of "serious " (in the phrase "the contravention is a serious one" in s 1317EA(5)) can be found from other statutes dealing with different subject matter. In particular, in my opinion, no assistance can be obtained from statutes dealing with employees. The relevant declarations of contravention concern the conduct of the appellant as "an officer of the corporation" in the discharge of his or her duties as such, and not the duties of an employee. In my view, the term "serious " in s 1317EA(5) bears its ordinary meaning in the English language and it would be inappropriate to elaborate on that. The idea of a "serious " offence is well known, and a " serious " contravention, as far as the epithet is concerned, is no different.
8. We find that the Member was correct in determining that the test for whether the breach is 'serious' is an objective one to be decided on the facts before the Tribunal. However, there is a difficulty with the manner in which the Tribunal approached the consideration of whether the conduct of the appellant was such that he "seriously" threatened or abused the respondent's employees. In our opinion, the approach taken by the Tribunal is a matter which goes beyond just poor expression. To simply substitute the word serious with "thoughtful, earnest, sober, sedate, responsible, not frivolous or reckless or given to trifling" for "serious" as the Tribunal did in in this case is incorrect. Whether the conduct of the appellant was such that it "seriously" threatened or intimidated the employees should be assessed by objectively considering that conduct and applying the ordinary understood notion of "serious". If resort is to be had to dictionary definitions to help to understand that meaning, then the Appeal Panel agrees with the appellant's submissions that 'grave' and 'concerning' are more appropriate to the definition of seriously in the context of the legislation.
9. In this case, the Tribunal wrongly and somewhat confusingly defined the word 'serious'. However, when looked at as a whole, and based upon the unchallenged findings of the Tribunal as to the events of the 15 of May 2015, we are of the opinion that the conduct of the appellant can objectively be regarded as seriously threatening or abusive. The appellant made death threats to the employees of the respondent. There can hardly be a more serious threat. The appellant used very strong and abusive language towards those employees in a loud and aggressive manner. The Tribunal found that those employees felt at the time, and afterwards, threatened and intimidated. Objectively, that finding was open.
10. Accordingly, although the Appeal Panel finds an error in the manner in which the Tribunal approached this question, we do not think the facts can do anything other than establish that s 92(1)(a) of the RT Act have been satisfied. We would therefore not uphold ground 1.

Ground 2: The Tribunal applied the tests of recklessness to conclude that the conduct was intentional and did not consider the tenants state of mind at the time.

1. Section 92(1)(b) of the RT Act requires the tenant to have intentionally engaged in conduct that would be reasonably likely to cause the person to be intimidated or harassed. Again on this point the Tribunal used a dictionary meaning of intention as a guide: 26 In considering whether the elements of section 92 (1)(b) have been established the Tribunal was mindful of the meaning of the term intentional in the Concise Oxford Dictionary where it is defined as 'done on purpose.' 27 In assessing whether this was intentional conduct the Tribunal accepts the incident occurred during a period when Mr Lindsay had ceased to take his medication. On his own evidence he had not taken his medication for three days. He had taken himself off medication so he could in his words 'stay awake.' In his statement dated 10 August 2015 Mr Lindsay referred to being medicated to manage the symptoms of his diagnosed medical conditions. By choosing to not take medication Mr Lindsay demonstrated a reckless indifference to the consequences of that decision. In hindsight Mr Lindsay did not see the events of 15 May 2015 as being as a result of his failure to take his medication. In evidence he said he could not help who he was. Rather he saw the catalyst for his outburst as being the failure of the applicants to change the locks at his property. The Tribunal accepts the decision of Mr Lindsay to cease taking his medication was a relevant factor when determining whether his actions could be found to be intentional. 28 The landlord has established that the tenant intentionally engaged, in conduct in relation to Mr Jobson and Mr Leary Smith that would be reasonably likely to cause them to be intimidated or harassed. The criteria of s 92(1) (b) have therefore been established.
2. Further on in the decision, when assessing whether the Tribunal should exercise the discretion to terminate, the Member stated the following: 41 A factor that does not weigh in the tenant's favour in the exercise of the discretion is that the threats made of a personal nature to Mr Jobson as to his knowing where he lived, who he socialised with and his intention to burn the place down are indicative of at least part of this abuse being pre meditated and not impulsive.
3. We have significant misgivings about the Tribunal's findings on this issue. The finding in relation to intent is at least to a significant degree based on Mr Lindsay taking himself off his medication. While it could perhaps be inferred that Mr Lindsay intentionally took himself off the medication, the Tribunal had no evidence before it, for example from a medical professional, whereby it could safely conclude that the failure of the appellant to take his medication thereby had an impact on his state of mind so as to make his conduct intentional for the purposes of s 92(1)(b). Indeed, it may be thought that if he is required to take medication to manage his bi polar disorder, anxiety and depression, a failure to take that medication could have had the result that his actions were not intentional. However, we make no such finding as there is no medical evidence before us.
4. The Tribunal's only basis for finding that the conduct of the appellant was intentional is because of his failure to take his medication and his reckless indifference to the consequences of that decision. For the reasons above, we do not think it was open to the Tribunal to make the finding it did based on this reasoning. There is no analysis of the evidence leading to a finding that he intended the actual conduct which was the subject matter of the breach, that is conduct which 'would be reasonably likely to cause the person to be intimidated or harassed.' The fact that he may have been recklessly indifferent to the consequences of taking himself off his medication, does not without proper and cogent evidence, support a finding that he engaged in intentional conduct.
5. The Appeal Panel in Cure v Bridge Housing Ltd [2014] NSWCATAP 80 dealt with s 90 of the RT Act which has a similar requirement of intention. In the reasons the Appeal Panel set out the test for intention in that context (paras 43-51): 43 In accordance with the ordinary meaning of "intentionally", in order to "intentionally" cause serious damage, a person must determine mentally upon that result or such result must be that person's aim or purpose. Such intention will not be present if causing serious damage was unforeseen. 44 This is not to say that the Tenant's evidence that he carried out the works in order to improve the properties, if accepted, was a complete answer to the claim of "intentionally" causing serious damage. Clearly, it was not a complete answer to any claim of recklessly causing serious damage. 45 If, despite such purpose of improvement, the Tenant was aware that his actions would cause serious damage to the premises, for example, to the retaining walls, but he determined to proceed and such serious damage resulted, then, in our view, he would have "intentionally" caused such damage. 46 The language of "intentionally or recklessly" brings to mind the element of mens rea in the field of criminal law. What constitutes grounds for termination under s 90(1) may well constitute a criminal offence. For example, in NSW it is an offence to intentionally or recklessly damage property belonging to another: s 195(1) of the Crimes Act 1900 (NSW). 47 In the field of criminal law, a person intends the commission of a crime where that person's aim or purpose is to bring about its constituent elements: Halsbury's Laws of Australia at [130-80]. 48 Also in that field, a person is said to be reckless where that person acts with knowledge that a consequence is a probable (or in some cases possible) result of his or her actions: Halsbury's Laws of Australia at [130-85]. 49 These aspects of criminal law also support our construction of the section. 50 As we pointed out earlier, intentionally or recklessly causing damage can be inferred from the whole of the evidence but this is not how the Tribunal at first instance approached the matter. 51 Accordingly, in our view the decision below was based upon a misconstruction of s 90(1) of the RTA.
6. In that case, the Appeal Panel remitted the matter for re hearing. In the remitted matter Bridge Housing Limited v Jules Cure [2015] NSWCATCD 39 the Tribunal stated in relation to the similar use of the words intentionally in s 90 of the RTA: As the Appeal Panel pointed out, the intention must relate to the damage (that is, the result of the works), not to the works which resulted in the damage. (I note that although I am bound to apply that interpretation in any case, I am in agreement with it. In that case, in order to find that the tenant intentionally caused the serious damage I am required to find that he determined to cause the serious damage: that was the result he intended. At first glance the facts in this case do not appear to support such a finding. There is no allegation by the landlord that the tenant went through some mental process in deciding to perform certain works so as to cause serious damage. I could not make such a finding on the evidence in this case.
7. We find that similarly, the Tribunal Member in this case was required to find that the tenant had intentionally engaged in conduct that would be reasonably likely to cause the person to be intimidated or harassed. While the Tribunal found that Mr Lindsay's decision to stop taking his medication was relevant to whether his actions could be found to be intentional, (which finding we do not think was open) the Tribunal has also fallen short of making the finding that his actions were indeed intentional. The finding later in the decision that "at least part of the abuse was "pre-meditated and not impulsive" was in relation determining the issue of whether to exercise the discretion to terminate although it may be relevant to the issue of intention. However, in our opinion no proper basis is given for the finding that it was "pre-meditated". A transcript of the proceedings has been provided to the Appeal Panel. When asked in cross examination as to why he attended the offices, Mr Lindsay stated: That's wrong. I came to the department to get them to change my locks as part of the lease, which they should have done, which now they have never - it should have been done within a four hour period and three days later had not been done. They should have changed my locks and nothing would have happened. The locks were not changed until about nine days later.
8. That evidence is not consistent with a finding that Mr Lindsay intended to threaten the employees or had attended the offices with some pre-meditation to do so.
9. For the reasons above, the Appeal Panel finds an error of law established on this ground.
10. The appellant has therefore failed in respect of ground 1 but succeeded in relation to ground 2. Because it is only necessary to establish that the matters in either s 92(1)(a) or (b) have been satisfied before the Tribunal moves to consider the discretion to terminate, it is therefore necessary to consider ground 4 which deals with that discretion.

Ground 4 - The Tribunal took into consideration a factor which led to an error in the exercise of the discretion.

1. The appellant seeks leave to appeal on the basis that the exercise of the discretion was against the weight of evidence. We have set out at [21] above, the factors the Tribunal considered in the exercise of its discretion to terminate the tenancy.
2. The Member ultimately came to the following conclusion: 43 Overall, I am satisfied that in the circumstances of this case, the weight of the discretionary factors is slightly in the applicant's favour. I am not satisfied the particular circumstances of the tenant outweigh the potential difficulties for the landlord. While the staff of the landlord have to manage difficult tenancies as part of their work it is not acceptable for them to be fearful of their personal safely in their workplace. I have therefore determined to terminate the tenancy agreement.
3. As was said in Xenos v St George Community Housing [2015] NSWCATAP 273: 33 Before an Appeal Panel can interfere with an exercise of a discretion by a Tribunal member, it must appear that some error has been made in exercising the discretion. Thus it is only if the Tribunal member has acted upon a wrong principle; allowed extraneous or irrelevant matters to guide or affect him or her; has mistaken the facts; or has not taken into account some material consideration, that the Appeal Panel may possibly interfere (House v The King [1936] HCA 40 (1936) 55 CLR 499 at 504 - 505). The Appeal Panel would also have to consider whether the exercise of the discretion involved a question of law (see s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (the Act) and for matters in the Consumer and Commercial Division whether the appellant may have suffered a miscarriage of justice for the reasons set out in clause (2), Part 6, Schedule 4 of the Act.
4. The appellant highlights what he submits are three errors in relation to factors which the Tribunal weighed up in the exercise of the discretion.
5. The first error relates to the finding in paragraph 34 that both Mr Leary-Smith and Mr Jobson had each applied for an apprehended violence order. The appellant submits that the evidence before the Tribunal at hearing only supported a finding that an AVO was sought and obtained by Mr Jobson. The appellant provided the documents that were relied on at hearing by both parties. The respondent also provided a transcript of the hearing. The statement relied on by the respondent for Mr Leary-Smith at hearing was the statement he had given to police. That contains no reference to him having applied for an AVO. Further, at no point in the transcript does Mr Leary-Smith state he had applied for an AVO. There is a copy of a provisional order for an AVO made in relation to Mr Jobson and it is clear that Mr Jobson had applied for an AVO. However there is nothing to support a finding that Mr Leary Smith had applied for an AVO.
6. The second error the appellant identified relates to the finding in paragraph 41 in which the Member specifically found: Further I accept on the evidence of the tenant's mother that he has a long history of anger management issues and his failure to take prescribed medication which assists with his anxieties exposes other persons to behaviour such as that which occurred on 15 May 2015.
7. The appellant submitted that the evidence that was before the Tribunal from the appellant's mother did not support the finding made.
8. The transcript of hearing reveals that the appellant's mother, Mrs Richardson, had not provided a statement prior to the hearing, but was allowed to give oral evidence in relation to the history of her son's medical condition. (T 44:9-11).
9. Mrs Robinson was cross-examined about her son's emotional state and anger. The parts relevant to anger during cross examination are reproduced below from the transcript starting at pg 47:10 CROSS- EXAMINATION BY MR GARDINER : MR GARDINER: Q. Just a few. Mrs Richardson, you've known for a long time, have you, that your son has an anger management problem, that is, Todd, the son that's here today? A. He has an emotional problem. Q . Emotional problem. When did you first know that he's had his emotional problem? A. When he was about 15. Q. And how old is he now? A. 37. Q. 37? MR GROSART: 36. A. 36, I'm sorry. MR GARDINER: Q. Okay. So for 21 years, you've known that he' s had the emotional problem , that' s fair to say? A. Yes. Q . And is it fair to say that that emotional problem manifests itself - and by that I mean shows itself, do you understand, shows itself by him being unable to control himself sometimes? Is that fair? A. When he's under stress (indistinct). Q . So the answer is yes? A . Yes. Q. You've seen that, I gather, because you know him pretty well? A. Yes. Q . You would have seen him, for example, being angry in and around, say family get- togethers , is that fair? MR GROSART: Objection as to relevance. MEMBER: I think you need to rephrase that as to on what occasions has she seen it. MR GARDINER: Q . You've seen him get angry before? A . With me, yes. Q. With you. You would say, though, that in any event you've got a good relationship with him, he' s your son; is that fair? A . Yes. Q. In what circumstances has he got angry with you? MR GROSART: I object. It is not part of the applicant's case that my client may have been angry with his mother. MEMBER: Yes. I will allow that because it does go to what are the circumstances that lead to, so I will allow that question. …. M R GARDINER: Q. How was he angry with you? A. Children are angry with parents all the time, you know. If he's upset about things or-- Q . Well , you 've said -- A. - - he wasn't coping with things. My answers, I'm tired. Q . Sure. Do you recall, given your earlier answer today, that you were aware that he had an emotional problem for some 21 years, or since he was 15? A . Yes. Q . Do you remember how that first came to your knowledge? How did you first learn that he had this emotional problem? A. We had a big argument. Q. Right. A. Over a very minor thing. Q. And do you recall today what it was? A. No. Q. But it was a big argument, and was anyone hurt in the argument? A. No. …. MR GARDINER: Q .Does it surprise you that Todd is in proceedings where the subject matter is discussing Todd's reaction to other people around him? … THE WITNESS: If he wasn't listened to - if he was approaching some situation when he wasn't listened to or acknowledged, I believe he would. M R GARDINER: Q. He would overreact? A . I wouldn't say over react, but I would say he would find (indistinct). - Q . He would get angry? A . Well, if you'd call it angry. Q . And you would understand, wouldn't you, that when some people get angry , that scares other people? Do you agree? A. If you knew, yes. Anyone in that situation trying to (indistinct).
10. The cross-examination continued, but it is clear from the entire transcript that at no point did Mrs Robinson state that her son had a long history of anger management issues. At its highest, she said he had a long history of 'emotional issues.' She concedes that she had seen him get angry with her. She disagreed that she had seen him overreact in the past. Based on its reading of the transcript, the Appeal Panel finds that Mrs Robinson statements do not support the finding that her son had a long history of anger management issues.
11. The third error alleged by the appellant relates to the finding that the Tribunal was not satisfied that the quiet enjoyment of the landlords neighbouring tenancy could be secured. The appellant submitted that the Member did not take to take into consideration two documents in favour of the tenant. The first was a petition signed by neighbours in support of Mr Lindsay in January 2013 and the second was a statutory declaration dated 22 February 2011 in support of Mr Lindsay trimming the trees. However, the documents are over two years old.
12. The appellant also submits that the Member took into consideration the respondent's relationship with one of the authors of the statutory declaration, Glenda Hawthorne. During cross-examination Mr Lindsay was asked about Ms Hawthorne and why his relationship with her had deteriorated. Mr Lindsay explained that she and other neighbours had accused him of informing the nursing home where Ms Hawthorne's partner had been staying that she was violent towards her partner. The Member made no findings in relation to Mrs Hawthorne or Mr Lindsay's neighbours. The Member also did not refer to either of the petition or the statutory declaration of Ms Hawthorne. The Member found only that Given the evidence as to the circumstances that preceded this incident on 15 May 2015 the Tribunal is not satisfied that the quiet enjoyment of the other tenants can be secured unless the respondent's tenancy is terminated.
13. The finding made by the Tribunal on this topic was open to it and we do not find an error on this point as alleged by the appellant.
14. The appellant made submissions that the errors in the findings (of which we accept two) have caused the Tribunals discretion to miscarry. The appellant contends that in circumstances where the Tribunal found that the discretionary factors were only "slightly' in the tenants favour, the errors, if found, must have led to an error in the exercise of the discretion and the decision has been made against the weight of evidence.
15. The respondent submitted that the totality of the findings establish that the tenant's credibility was lacking. The Member had seen video evidence of the meeting with the employees, had heard Mr Jobson's evidence in relation to the abuse and that the decision was well reasoned and clear as to its foundation.
16. As we have observed above, to interfere with an exercise of discretion, it must appear that in exercising the discretion the Tribunal must have acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect it, mistaken the facts, or not taken into account some material consideration. (House v The King [1936] HCA 40 (1936) 55 CLR 499 at 504 - 505).
17. The Appeal Panel is of the view that in weighing up the discretionary factors, the Tribunal fell into error in relation to the finding that Mr Leary-Smith had applied for an AVO and also that Mr Lindsay's mother had given evidence that he had a long history of anger management. Additionally, some of the factors taken into account in the exercise of the discretion that we have set out at [21] above, relate to the findings made by the Tribunal on the appellant's state of mind and the impact on him of his prescribed medication and his failure to take that medication. We have found that there is no basis on the evidence for the Tribunal to have made those findings. As such, we are of the view that the Tribunal's discretion miscarried.
18. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel summarised the circumstances in which a decision has been made against the weight of evidence and may have resulted in a substantial miscarriage of justice. At para 77: The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55].
19. In this case, we are satisfied that given the two errors in the findings in relation to the discretionary factors and the statement by the Tribunal that it only found "slightly" in favour of the landlord, there was a significant possibility, that had those findings not been made, the discretion would have weighed in favour of the tenant.
20. We are also satisfied that a substantial miscarriage of justice has occurred and grant leave for the appellant to appeal under s 80 (2) (b) of the Act in respect to ground 4.

Orders

1. For the reasons above, we have concluded that the appeal should be allowed. Even though the appellant failed on ground 1, he has succeeded on grounds 2 and 4. We have found that the discretion of the Tribunal miscarried. The result is that the matter should be remitted to the Tribunal to be determined according to law. We are conscious of and have had regard to the considerations described in Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [137]-[139] and the recent observations of the Appeal Panel in Chi Building Pty Ltd v Wedgewood [2016] NSWCATAP 64 at [59]-[62] relating to remittal of matters to a differently constituted Tribunal. However, in this case, as there have been findings of credit adverse to the appellant, and having regard to the significance of the orders made by the Tribunal, we think the appropriate course is to remit the matter to a differently constituted tribunal.
2. Accordingly, the orders we make are: 1. The appeal is allowed. 2. The orders made on 12 November 2015 are set aside. 3. The proceedings are remitted to the Consumer and Commercial Division for rehearing by a differently constituted Tribunal.

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: 16 June 2016