By application filed on 20 January 2015 the applicant sought orders for termination and possession of the residential tenancy premises pursuant to section 91 of the Residential Tenancies Act (the Act).
The matter first came before the Tribunal on 2 March 2015 and was adjourned to enable the applicant to request a summons for production of documents. On 23 April 2015 the matter was adjourned for hearing and procedural directions made for the exchange of evidence.
On 25 June 2015 an application was made by the respondent seeking orders pursuant to s 55(1)(b) of the Civil and Administration Tribunal Act that the matter be dismissed because it is subjudice, alternatively that it be adjourned pursuant to s 51 until a date after which the proceedings would no longer be subjudice.
On 16 July 2015 the Tribunal made the following orders:
1. The determination of this matter is stayed pending finalisation of criminal proceeding in relation to Mr Forrest (H56791826).
The matter next came before the Tribunal on 14 September 2015. The parties advised the Tribunal that the criminal committal proceedings were set down for determination in February 2016. The parties were given an opportunity to make written submissions to the Tribunal to determine whether the stay should be lifted.
On 16 October 2015 the Tribunal made the following order:
1. The stay made by the Tribunal on 16 July 2015 is lifted.
On 3 November 2015 a notice of hearing was sent to the parties advising them that the hearing of the matter was scheduled for 22 February 2016.
On 16 December 2015 the Tribunal was advised that the tenant who had previously been legally represented by a private solicitor and then by Legal Aid was now represented by South West Sydney Tenant's Advocacy Service. The tenant advocate sought an extension of time to comply with the procedural directions that had been made by the Tribunal on 16 October 2015.
On 31 December 2015 the timetable that was made by the Tribunal on 16 October 2015 was amended and the respondent was given until 29 January 2016 to file and serve documents.
On 28 January 2016 the tenant advocate wrote to the Tribunal seeking additional time to file and serve. The tenant advocate also sought an adjournment of the formal hearing due to the unavailability of the respondent's legal representative.
The matter came before the Tribunal on 1 February 2016 as a directions hearing to determine the adjournment request; to determine whether the matter was ready to proceed to hearing on 22 February 2016 and to hear the parties on the question of whether the time for the respondent to comply with procedural directions should be extended.
On 1 February 2015 the Tribunal made orders refusing the adjournment request of the respondent and written reasons were given for the refusal. The procedural directions made by the Tribunal were again varied and the respondent was directed to file and serve all documents by 17 February 2016. The parties were advised that the hearing scheduled for 22 February 2016 would proceed.
At the hearing of the matter on 22 February 2016, Mr Gardener of Counsel appeared on behalf of the applicant. Ms Olaig from South West Sydney Tenancy Services appeared for the respondent.
14 Ms Olaig indicated at the commencement of the hearing that she wished to make submissions to the Tribunal as to the correct legislation which was to apply in this matter. Mr Olaig indicated that if the Tribunal were to find that the Residential Tenancies and Housing Legislation Amendment (Public Housing Anti-Social Behaviour) Act 2015 (the Amending Act) was the relevant legislation that an application would be made to adjourn the proceedings, to enable the respondent to obtain further evidence.
15 The Tribunal indicated to Ms Olaig that it had no difficulty in hearing submissions as to whether or not the Amending Act was retrospective in its application, however, the respondent needed to present the case addressing all the relevant issues. The Tribunal reminded the respondent that the application on 1 February 2016 to adjourn the proceedings had been refused, and no additional evidence was provided to support a further adjournment request. The Tribunal was not prepared to adjourn the matter to enable the respondent to obtain additional evidence as the respondent had been given a reasonable time to comply with procedural directions and no further reasonable explanation had been provided for the adjournment request.
16 The applicant advised the Tribunal that it had not been served with the respondent's documents. The respondent advised the Tribunal that the documents had been sent by express post to the applicant and the Tribunal on 18 February 2016. The date for filing and serving had been determined by the Tribunal to be 17 February 2016. The applicant had not received the documents.
17 The matter was briefly adjourned to allow the applicant to consider the respondent's documents.
18 Mr Gardner argued that the Tribunal should not accept the respondent's evidence as it had not been filed and served in time. However, the applicant conceded that the proceedings do concern the determination of an important matter and the applicant being a Model Litigant would not object to the documents being submitted, however, the applicant would need time to consider the evidence and prepare for the hearing of the matter and that the applicant would be prejudiced if the matter proceeded on the day.
19 The Tribunal again briefly adjourned the proceedings to allow the applicant further time to consider the evidence of the respondent.
20 On resuming the proceedings, there was much discussion between the parties as to whether the matter should be adjourned to firstly enable the applicant to consider the respondent's evidence and secondly for the respondent to put on additional evidence.
21 The applicant then indicated to the Tribunal that it would not object to an adjournment being granted but that the applicant was ready to proceed to hearing.
22 The respondent advised that the respondent's criminal matters were next before the Courts on 12 September 2016 and again requested that the matter be adjourned until after this date. The Tribunal advised the respondent that the issue of the stay of the proceedings until after the criminal proceedings had been determined by the Tribunal in October 2015.
23 The Tribunal determined that the matter should proceed to hearing to give effect to the guiding principle of the Tribunal, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Tribunal determined that the respondent had been given reasonable time and opportunities to obtain all relevant evidence and no reasonable explanation had been provided for a failure to do so.
[2]
JURISDICTION
There is no dispute that there is a residential tenancy agreement between the parties. This agreement was entered into on 5 November 2012.
On 20 January 2015 the applicant lodged an application with the Tribunal pursuant to s 91 of the Act seeking an order terminating the residential tenancy agreement between the parties.
The respondent has been charged with a number of indictable offences pursuant to the Drug Misuse and Trafficking Act 1985 (NSW). The respondent has pleaded not guilty to these charges and the charges are listed for trail in the District Court sometime in September 2016.
The Tribunal determines that it has jurisdiction to hear and determine the matter pursuant to section 91 of the Act.
[3]
APPLICANT'S EVIDENCE
The applicant sought to rely on the NSW Police Brief of Evidence and the sworn evidence of Constable Archibald. Constable Archibald provided a statement on 21 January 2015 which sets out his sworn evidence.
The respondent has been charged with a number of criminal offences. The respondent has been charged with (a) Manufacture prohibited drug under the Drug Misuse and Trafficking Act 1985 and (b) Possess instruction for manufacture etc of prohibited drug (Drug Misuse and Trafficking Act).
[4]
RESPONDENT'S EVIDENCE
The respondent denies that he has used or caused or permitted the premises to be used for any illegal purpose or any unlawful purpose. The respondent denies that he has manufactured a prohibited drug and the respondent denies that he has had in his possession instructions for manufacture of prohibited drug supplied any prohibited drug from the premises. The respondent stated that he has pleaded not guilty to both charges.
The respondent provided a statutory declaration and provided sworn evidence to the Tribunal. In summary the respondent stated as follows:
The respondent lives at the premises with his family: his wife Therese Forrest and daughters Stephanie Forrest (19 years old), Madeleine Forrest (10 years old) and Charlotte Forrest (8 years old).
Towards the end of September 2014 his friend Rob (Weald) came to stay with the respondent. Rob had been homeless and the respondent opened his home to help a friend out.
Rob stayed in a separate area in the garage with his own keys.
Around Christmas 2014 the respondent asked Rob to move out of the premises.
The respondent had no knowledge of what Rob was doing.
The respondent was not involved at all with Rob's manufacture of drugs. The first time the respondent became aware of this was when the police raided the house.
The respondent had a hay fever and bought some hay fever tablets. There were only 10 tablets in a box and the first chemist he went to didn't let him buy 2 box. So he went to another chemist to buy the second box. This is why there were two separate purchases at separate chemists.
As soon as the respondent suspected that he (Rob) was up to no good the respondent told Rob to leave.
The respondent walked past Rob's room a couple of weeks before Christmas time 2014, and the door was ajar. The applicant stuck his head in the door and that is when he saw tube like equipment on a table. The respondent picked it up and asked Rob what he was doing. The respondent threw the equipment at Rob who ducked and it landed on his bed. The respondent suspected something unusual was happening so he asked Rob to leave and gave him 2 weeks to leave. The respondent did not want to make a scene over Christmas, because the respondent's father was visiting.
The respondent has served 20 years in the army and completed 12 tours.
The respondent has post-traumatic stress disorder and has been seeing a psyche therapist for 3 years. The respondent was stable before the incident and has experienced occasional nightmares. The respondent's PTSD has worsened after all this.
The respondent has three daughters. The eldest is Stephanie who is 19, had a gun stuck in her face when the police raided the home. She is not dealing well with anything since them. Madeleine who is 10 has severe anxiety and often has severe anxiety attacks. She is currently being assessed for ADHD. She does not deal well with change, so routine and stability are very important to her. She is terrified of having to change schools or having to face any changes at all. Madeleine often asks the respondent when he has appointments as marked on the family calendar and if he is coming home after those appointments. The youngest is Charlotte who is 8 years old.
Everything the respondent needs is in the neighbourhood. The family use public transport. The two younger children attend Rosemeadow Primary School and the property is 400 metres from the school. The family General practitioner of 20 years, Dr Ibrahim is also based in Campbelltown.
The respondent has never had any problems with HNSW. They have been tenants with Housing for about 19 years. When the family were transferred in 2012 to the current property, their relocation officer said this is reward for being good tenants.
The respondent's wife Theresa Forrest also gave evidence denying any knowledge of the charges.
The respondent sought to rely on two additional documents at the hearing:
1. A letter from Mr Rob Weald dated 24 January 2015 where Mr Weald accepts full responsibility for the manufacture of the drugs.
2. A letter dated 18 February 2016 from Dr Raymund Hudd, the respondent Psychologist.
[5]
The Residential Tenancies and Housing Legislation Amendment (Public Housing Anti Social Behaviour) Act 2015(the Amending Act)
The respondent has made oral submissions that the amendments made to the Residential Tenancies Act in the Amending Act are not retrospective and should not be applied in this matter.
The applicant has submitted that the Amending Act is retrospective as this is what the legislature intended. However, if the applicant is wrong on this point on any view of section 152 of the Act, the tenancy should be terminated.
The Amending Act is an Act that was proclaimed on 18 December 2015 to amend the Residential Tenancies Act 2010 (RTA) and the Housing Act 2001 and to facilitate the termination of public housing tenancies for antisocial behaviour and for other purposes.
Relevantly, the Amending Act amends Part 7, Division 5, and Subdivision 2 of the Act. Particularly, the Amending Act repeals section 152 of the Act and inserts Subdivisions 4 and 5 in Division 5 of Part 7 of the Act.
The Amending Act inserts ss.154DD and E into the Act, which, require the Tribunal to make termination orders in certain circumstances and prescribe the Tribunal's exercise of discretion to make a termination order.
This would mean that if the Tribunal were to find that the Amending Act applied retrospectively, the Tribunal's discretion to not terminate a tenancy once a breach is established would be limited to the factors set out in Section 154D(3).
[6]
Which Act applies to these proceedings?
There is no express provision in Schedule 1 of the Amending Act to the effect that the provisions of the Amending Act are to apply retrospectively.
Section 30 of the Interpretation Act 1987 (NSW) codifies the presumption found at common law that legislative amendments operate prospectively in the absence of a clear statement to the contrary in the Amending Act.
In Maxwell v Murphy (1975) 96 CLR 261 Dixon J said (at 267):
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainly, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
If the Tribunal were to find that the Amending Act applied retrospectively this would affect the Tribunal's discretion. The right to exercise discretion is not merely procedural but substantive, so as to attract the common law principles that an amending Act would have no application retrospectively.
The application before the Tribunal was filed prior to the commencement of the Amending Act. The Tribunal finds that section 30 of the Interpretation Act operates to exclude the application of the Amending Act to matters that have been commenced in the Tribunal prior to the Act being proclaimed.
The Tribunal finds that there is no express provision in Schedule 1 of the Amending Act to the effect that the provisions of the Amending Act are to apply retrospectively. The Second Reading speech does not disclose an intention of Parliament for amendments to apply retrospectively. Further there is no express provision in the transitional or savings provisions of the Act (Schedule 2) or in the Residential Tenancies Regulation 2010 (NSW) for retrospective application of the amendments.
The Amending Act would only apply to applications filed with the Tribunal after 18 December 2015 or to matters where the cause of action complained of occurred after 18 December 2015.
For completeness if the Tribunal is wrong in relation to this matter, the Tribunal has also made findings in relation to the Amending Legislation.
[7]
Consideration and Determination
The tenant has been charged with two offences of Supply Prohibited Drug under the Drug Misuse and Trafficking Act 1985. Section 91 of the Act relevantly provides that it does not need to be the tenant who has used the premises for an illegal purpose, it can be any person who although not a tenant is occupying or jointly occupying the residential premises and who has intentionally or recklessly caused or permitted the use of the premises for the purpose of manufacture of any prohibited drug. The respondent concedes that Mr Weald who was jointly occupying the residential premises was using the premises for the manufacture of a prohibited drug. The respondent gave evidence at the hearing that he now knows that Mr Weald was using the premises to manufacture drugs. The respondent tendered a letter written from Mr Weald from prison where he states that he is pleading "Guilty" to all of the charges.
There can be no dispute that an occupier of the premises, being Mr Weald, has been charged with offences under the Drug Misuse and Trafficking Act and that he is pleading guilty to those charges. The respondent and Mrs Forrest have both given evidence that they are now aware that Mr Weald was manufacturing drugs in the garage of the premises whilst he was occupying those premises.
The Tribunal finds that the breach is established. Section 91 provides that the Tribunal may terminate a tenancy whether it is the tenant or a person who is occupying the premises who has used the premises for the manufacture or a prohibited drug. There is no qualifier in the section that requires the tenant to have been aware that the occupier was using the premises to manufacture drugs. As stated elsewhere the respondent has given evidence that he is now aware and he accepts that his occupier (Mr Weald) was using the residential premises for the purpose of the manufacturing of prohibited drugs.
[8]
Section 152 and section 87 of the Act prior to the amendments
In determining whether the breach is, in the circumstances of the case sufficient to justify termination of the agreement, the Tribunal has considered the factors set out in section 152 and 87 of the Act (Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28 (26 February 2014)).
[9]
Any serious adverse effects the tenancy has had on neighbouring residents or other persons?
The Tribunal is satisfied that an occupier of the premises, Mr Weald and the tenant have been charged with two matters of manufacture of a prohibited drugs and that this is a serious matter. Evidence has been given by the applicant in the form of a Statement from Telea Toscano a client service officer, that the residential premises is surrounded by other social housing properties and is located in an area of privately owned home. The property is situated on Lysander Avenue Rosemeadow which is accessible by Copperfield Drive Rosemeadow. The property is situated in Lysander Avenue between the two entrances of Theseus Circuit. Theseus Circuit consists of three properties managed by the applicant. The rest of the properties on Lysander Avenue are privately owned. In relation to the properties that are managed by housing the three properties range from between 140 and 210 metres proximity to the respondent's premises. The properties are occupied by single parents with numerous children ranging in age from 10 to 22 years of age. There is a child care centre which is within 200 metres of the property.
The Tribunal is satisfied that the use of the premises for the manufacture of a prohibited drug has serious adverse effects on neighbouring residents. There are a number of social housing tenants within close proximity to the premises. The Tribunal is satisfied that there are a large number of children and young people who live within close proximity to the premises. The Tribunal is satisfied that there is a child care centre within close proximity to the premises.
[10]
Whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject or continue to subject, neighbouring residents or any person or property to unreasonable risk?
The Tribunal is satisfied that the use of the premises for the manufacture of a prohibited drug is a serious breach of the agreement. The respondent denies any knowledge of the use of the premises for the manufacture of drugs. The Tribunal has considered the evidence of the respondent contained in his statutory declaration dated 17 February 2016 and the sworn evidence he has given to the Tribunal. The respondent has stated that he had no knowledge of what the occupier (Rob) was doing. He further states that as soon as he suspected that he (Rob) was "up to no good" he told Rob to leave. The respondent states that he walked past Rob's room a couple of weeks before Christmas and he stuck his head in the door where he saw "Tube like equipment" on a table. The respondent states that he threw the objects at Rob and suspected something unusual was happening so he asked Rob to leave and gave him 2 weeks after Christmas to get out because Rob said "do you want to make a scene with your dad here?" The Tribunal is satisfied that the respondent knew a few weeks before Christmas that "something unusual was happening". The respondent does not state what he actually thought was happening. The respondent states that he told Rob to leave. The Tribunal finds that Rob did not leave until he was arrested by Police on 6 January 2015. It is clear that the respondent continued to allow the occupier to remain in the premises from a couple of weeks before Christmas until 6 January 2015 when the occupier was arrested by Police. The Tribunal finds that the respondent's inaction in not immediately removing the occupier from the premises when he suspected something unusual was happening poses an unreasonable risk to neighbouring residents.
[11]
The landlord's responsibility to its other tenants?
The Tribunal is satisfied that the applicant has a responsibility to its other tenants in the same street and surrounding areas if the tenancy is allowed to continue. The Tribunal is satisfied that the applicant must take all reasonable steps to ensure that the landlord's tenant does not interfere with the reasonable peace comfort or privacy of other tenants in using their premises.
[12]
Whether the tenant, wilfully or otherwise is or has been in breach of an order of the Tribunal?
There is no evidence that the respondent has been in breach of an order of the Tribunal.
[13]
The history of the tenancy concerned, including any prior tenancy of the tenant arsing under a social housing tenancy agreement?
There is nothing adverse known to the Tribunal regarding the prior history of this tenancy or any other social housing tenancy.
In making the decision the Tribunal has found that the breach is significant. The respondent has been charged with two criminal offences that relate to use of the premises for an illegal purpose. In particular the respondent has been charged with the manufacture of a prohibited drug from the premises and possessing instructions for the manufacture of a prohibited drug. The Tribunal accepts that the respondent is pleading not guilty to the charges. However, the respondent has accepted that an occupier of the premises who the respondent invited into the premises was using the premises to manufacture a prohibited drug. The respondent gave evidence that he did not know until the police attended the premises on 6 January 2015 as to the activities of the occupier. However, the respondent has given evidence that he suspected that the occupier was "up to no good" and took no steps to immediately evict the occupier from the premises when the suspicion arose.
The Tribunal is satisfied that the respondent has resided in the premises since 2013 and that he has been a social housing tenant for about 19 years and has never had any previous problems. The respondent gave evidence that although he lives with Mrs T Forrest they are living separate under the same roof. They have three children. The two younger children attend Rosemeadow Primary School and the property is 400 metres from the school. The respondent suffers from a range of serious medical conditions. The respondent's medical practitioner of 20 years is based in Campbelltown. A report from Raymond Hudd dated 18 February 2016 advises that the respondent is suffering from Posttraumatic Stress Disorder. Mr Hudd states that the relationship between the respondent and Mr Weald "was more a sense of duty than anything else".
Evidence was provided by the respondent of a general search in Domain.com of properties available in the Sydney region for rent under $300.00 a week (this is the rent amount that the respondent currently pays). Only seven properties were identified. It is not clear from the evidence if any of those properties are in the same locality as the current property of the respondent.
The applicant has provided evidence that the respondent's total household income has been assessed as having a private rental affordability of approximately $573.25 per week. The Commonwealth Rental Assistance eligibility guidelines indicate that the respondent and Mrs Forrest would be eligible to receive up to $151.76 per fortnight to contribute towards private rental charges. Rental affordability would increase to $649.15 per week with this assistance. A search carried out by the applicant on Domain.com indicated 101 private rental properties available in the Campbelltown and surrounding areas with a weekly rental charge of $650.00 or less per week. A further search was conducted of the wider Sydney area which revealed a total of 3373 properties with a weekly rental charge of less than $650.00 per week which would meet the respondent's needs.
In the Tribunal's view the seriousness of the breach outweighs the respondent's otherwise good record as a tenant and his personal circumstances. The Tribunal accepts the respondent is suffering from Post-Traumatic Stress Disorder. However, the seriousness of the breach and the possible adverse risk that the respondent's behaviour poses to the neighbouring community outweigh the respondent's medical condition.
The Tribunal is satisfied that the respondent has failed to take immediate action to evict an occupier from his premises who he has suspected was "up to no good". The respondent now knows that the occupier was using the premises to manufacture a prohibited drug. The Tribunal is satisfied that the use of premises to manufacture a prohibited drug whether it was being done by the tenant or an occupier of the premises may have serious adverse effects on neighbouring residents or other persons.
The Tribunal is satisfied that Mr Rob Weads is a person who although not a tenant is jointly occupying the residential premises and he has intentionally or recklessly caused or permitted the use of the residential premises for the purpose of the manufacture of a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985.
The Tribunal finds on balance that the seriousness of the breach, the tenant's failure to take immediate action to evict the occupier once he was aware that there was something unusual occurring, and the effect that the breach may have on neighbouring tenants and other persons, justify termination of the tenancy.
The tenancy agreement is terminated pursuant to section 91 of the Act. The date for termination and possession is 12 May 2016. The tenant is to pay a daily occupation fee calculated at 1/7th of her weekly subsidised rent from 13 May 2016 until the date that possession is given to the landlord.
[14]
If the Tribunal is wrong in relation to the relevant legislation, the Tribunal has considered the application of the Amending Act.
Under s 154D(1) of the Act the Tribunal must, subject to s 154D(3) terminate a social housing tenancy agreement if satisfied there is use of the premises for the manufacture, sale, cultivation or supply of a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985.
The discretion to the Tribunal not to terminate (s 154D(3)) may be exercised if the Tribunal is satisfied termination would result in undue hardship being suffered by a child, a person in whose favour an apprehended violence order could be made or a person suffering from a disability within the meaning of the Anti Discrimination Act 1977.
If the Tribunal terminates a social housing agreement, s 154G provides that the order for possession must have effect within 28 days of the order for termination unless the Tribunal is satisfied that there are exceptional circumstances justifying a later day for the order for possession to take effect or a longer period for suspension of such order.
The respondent has provided little evidence as the discretionary matters raised by section 154D(1). The respondent has provided a letter from the respondent's treating Psychologist setting out that the respondent suffers from a Medical Condition. The Psychologist report does not address any of the matters, s 154 D (3).
The respondent indicated at the commencement of the hearing that he would be requesting an adjournment if the Tribunal found that the new legislation applied to the proceedings. The Tribunal refused the adjournment request as no reasonable explanation was provided as to why the evidence was not already filed and served in accordance with the previous procedural directions made by the Tribunal. The Tribunal had indicated to the respondent on 1 February 2016 that the hearing would not be adjourned on the next occasion unless evidence was able to be provided that the respondent's criminal matters were scheduled to be heard on the same day as the Tribunal hearing. No reasonable explanation was provided as to why any evidence sought to be relied upon by the respondent was not available at the time of the hearing.
The Tribunal is aware from the respondent's evidence that he has three children who reside with him at the premises. Stephanie who is 19 years of age, Madeleine who is 10 years old and Charlotte who is 8 years old. Although not submitted the Tribunal accepts that any move from the residential premises may cause hardship to the three children. The Tribunal accepts that they go to school close by to where they live. However, there is no evidence before the Tribunal that the termination of the tenancy would result in undue hardship to the children.
There is no evidence before the Tribunal that the termination of the tenancy would result in undue hardship being suffered to a person in whose favour an apprehended violence order should be made.
There is no evidence that the termination order would be likely to result in undue hardship being suffered by a person suffering from a disability within the meaning of the Anti Discrimination Act 1977 who is occupying or jointly occupying the social housing premises.
The Tribunal finds that the provisions of Section 154D(3) have not been satisfied.
The Tribunal in accordance with section 154D(1) must make a termination order as the Tribunal is satisfied that the matters set out in section 91(a) are satisfied.
M Eftimiou
General Member
Civil and Administrative Tribunal of New South Wales
14 April 2016
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: 23 June 2016