NSW Land and Housing Corporation v McCallum

The appeal

1. On 22 October 2020, Land and Housing lodged a Notice of Appeal against the decision. It sought orders setting aside the orders of the Tribunal; that the residential tenancy agreement be terminated with immediate effect and that on the date of the orders Mr McCallum be required to give up possession of the premises immediately. The Notice of Appeal also stated the following four grounds of appeal ("the Grounds"): 1. that the Tribunal had erred in law by applying the wrong test or asking the wrong question under s 154D(3)(c) of the RTA in finding that there were "exceptional circumstances" within the meaning of that provision; 2. that the finding that there were "exceptional circumstances" under that provision was not fair and equitable; 3. that the Tribunal had erred in law by applying the wrong test or asking the wrong question under s 154G of the RTA in finding that there were "exceptional circumstances" within the meaning of that provision; 4. that the finding that there were "exceptional circumstances" under s 154G of the RTA was not fair and equitable.

Issues on appeal and our decision

1. It therefore fell to us to decide: 1. whether we should allow the appeal because there had been an error of law by the Tribunal below in deciding that "exceptional circumstances" existed for the purposes of s 154D(3)(c) of the RTA, that decision having the effect that the Tribunal was not then obliged to make a termination order for the tenancy by operation of sub-ss (1)-(2) of s 154D of that Act; 2. whether we should allow the appeal because there had been an error of law by the Tribunal in deciding, on an alternate basis, that "exceptional circumstances" existed for the purposes of s 154G(1) of the RTA; that decision having the effect that the Tribunal could specify a day later than 28 days after the making of the order for possession as the date on which that order would take effect; 3. whether we should grant leave to appeal because either of those decisions by the Tribunal as to "exceptional circumstances" was not fair and equitable; 4. whether we should grant such leave because either of those decisions was against the weight of the evidence; and 5. whether there was any other ground upon which we should grant leave to appeal.
2. For convenience of reference, extracts of the relevant provisions of the RTA are set out in the Appendix to these Reasons.
3. We decided that: 1. no error of law had been established; 2. neither of the Tribunal's decisions referred to in 13-(2) above concerning the existence of "exceptional circumstances" was not fair and equitable and that neither of them was against the weight of the evidence; and 3. there was no other ground upon which we could properly grant leave to appeal.
4. It followed that leave to appeal should be refused and that the appeal dismissed. We ordered accordingly.
5. These are our reasons for those decisions.

The Law: the scope and nature of NCAT internal appeals

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"), s 80(2).
2. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong."
3. Where the appeal is from a decision made in the Consumer and Commercial Division (other than in respect of interlocutory decisions), there is a further qualification to the possible grant of leave in that we may only go on to consider grant of leave in the broader sense if we are first satisfied that the elements of cl 12(1) of Sch 4 of the NCAT Act are made out, in that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. We adopt the remarks of the Appeal Panel in Collins v Urban at [76], where it said that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: "... [t]here was a 'significant possibility' or a 'chance which was fairly open' that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."

Land and Housing's case

1. Land and Housing's case on appeal was set out in an annexure to its Notice of Appeal, received by the Registry on 22 October 2020 and was supplemented by its written outline of submissions received on 2 December 2020 and oral submissions on its behalf by Mr Fester at the appeal hearing.
2. The submissions of Land and Housing on each Ground of appeal, as we understood them, were as follows.

Error of law by application of wrong test under s 154D(3)(c) (Ground 1) and under s 154G (Ground 3)

1. Ground 1 was based on the interpretation and application of s 154D(3)(c) of the RTA. Initially, it appeared from the Notice of Appeal that this ground was based on a contention that the Tribunal had applied a wrong test or asked a wrong a question and on that basis had found that there were "exceptional circumstances" and that any decision to terminate the lease was not mandatory but discretionary.
2. Land and Housing's written outline of submissions and subsequent oral submissions clarified that assertion. It was contended that there had been an error of law by reason of the Tribunal's failure to make a determination on the meaning of the phrase "exceptional circumstances".
3. It was conceded that, as the Member had recorded in his reasons for decision at [16], he had not been referred to any authority on the meaning of "exceptional circumstances" in the context of s 154D(3)(c) of the RTA or which otherwise limited or constrained his findings as to the existence of such circumstances. However, Land and Housing's submissions relied on the decision in Carr v NSW Land and Housing Corporation [2019] NSWCATAP 144 ("Carr") where the Appeal Panel had considered the meaning of "exceptional circumstances" in relation to s 154G(2) of the RTA and, having acknowledged that there was little authority as to that meaning, had continued: "[55] The decisions to which the parties referred, including Parslow v NSW Land and Housing Corporation [2018] NSWSC 1909 and Ritson v Leighton [2015] NSWCA 62 do provide some guidance in different contexts. In the latter decision Ward JA referred to authority which establishes that 'exceptional circumstances' are those which while not unique or unprecedented or very rare, are those which are out of the ordinary course or unusual."
4. For convenience, we shall refer to the Ritson v Leighton decision as "Ritson".
5. In Ritson, the Court of Appeal was considering the slightly different phrase "special circumstances," as that related to its application to Court rules (UCPR, r 51.50) governing the provision of security for costs of an appeal. The Court referred to the case of Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 ("Yacoub").
6. In Yacoub, Campbell JA (with whom Tobias JA and Handley JA agreed) considered the meaning of "exceptional circumstances" in the context of the services of expert reports: UCPR, r 31.18.
7. Campbell JA had elicited various principles from the authorities and concluded, at [25]-[26], that exceptional circumstances are those that are "out of the ordinary course or unusual, or special, or uncommon; that they need not be unique or unprecedented or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered".
8. Campbell JA went on to say that exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency, but also by reference to qualitative factors, and can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Campbell JA also noted that in determining whether there are exceptional circumstances, the rationale of the particular statutory revision must be taken into account.
9. On that basis, the case for Land and Housing was that the appropriate test of "exceptional circumstances" which should have been accepted and applied by the Tribunal is circumstances which, while not unique or unprecedented or very rare are those which are out of the ordinary course or unusual.
10. Grounds 1 and 3, put simply, rested on the contention that that the Member below, having failed to apply any technical meaning, or at the least a meaning which was established at law, to the phrase "exceptional circumstances" in ss 154D(3)(c) and 154G of the RTA respectively, had fallen into legal error.

The finding of "exceptional circumstances" under s 154D(3)(c) (Ground 2) and s 154G (Ground 4) was not fair and equitable and was against the weight of the evidence

1. At the appeal hearing, Land and Housing confirmed that Grounds 2 and 4 were that Tribunal's decision was "not fair and equitable" and "against the weight of the evidence" as those terms are used in cl 12 of Sch 4 of the NCAT Act. Land and Housing's Notice of Appeal and written submissions clarified its case in this regard. The Tribunal below had set out the circumstances which in its view had amounted to exceptional circumstances at [12] to [15] of its reasons for decision. They were: 1. the fact that Mr McCallum's criminal history record indicated no offences between 1999 and the offence arising from the incident on 5 May 2020, which led to a conviction in August 2020 for common assault, contrary to s 61 of the Crimes Act (but a conviction was not recorded on entry into a 12-month good behaviour bond) ; 2. there had been no other "behaviour incidents" during the tenancy for over five years; 3. rent had been paid on time during the tenancy; 4. medical records indicated that Mr McCallum had "some form of behavioural condition" and was on medication to control it; 5. Mr McCallum experienced manifestations of that behavioural condition in the form of sleep disturbance; 6. the fact that the 12-month good behaviour bond itself provides a form of protection against any future anti-social behaviour given the consequences of any breach of it; and 7. the fact that the incident appeared to be an isolated one, by contrast with any assertion of chronic violence towards neighbours.

Mr McCallum's position

1. Although Mr McCallum participated unrepresented in the appeal hearing and made no substantive oral submissions, it was clear from our discussion with him that he opposed the appeal and supported the decision below.

Issues for determination

1. It followed from the parties' respective positions that the real issues for determination us can be summarised conveniently as follows:

Error of Law 1. whether we should allow the appeal because there had been an error of law by the Tribunal below in deciding that "exceptional circumstances" existed for the purposes of s 154D(3)(c) of the RTA; 2. whether we should allow the appeal because there had been an error of law by the Tribunal in deciding that "exceptional circumstances" also existed for the purposes of s 154G(1) of the RTA;

Grant of leave to appeal 1. whether we should grant leave to appeal because either of those decisions by the Tribunal as to "exceptional circumstances" was not fair and equitable or was against the weight of the evidence".

Error of Law: "exceptional circumstances"

1. As noted at [20] and [21] above, Land and Housing's case is, in essence, that: 1. the test of "exceptional circumstances" which should have been accepted and applied by the Tribunal below is circumstances which, while not unique or unprecedented or very rare, are those which are out of the ordinary course or unusual; and 2. the Member below, having failed to apply any technical meaning, or at the least a meaning which was established at law, to that phrase in ss 154D(3)(c) and 154G of the RTA respectively, had fallen into legal error.
2. In Collector of Customs v Agfa-Gavaert Ltd (1996) 186 CLR 389, the High Court approved five propositions as to the distinction between issues of law and fact in a statutory context. The principles had been identified earlier by the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 ("Pozzolanic").
3. The first four propositions were as follows: 1. the question whether a word or phrase in a statute is to be given its ordinary meaning or some technical meaning is a question of law; 2. the ordinary meaning of the word or its non-legal technical meeting is a question of fact; 3. the meaning of a technical legal term is a question of law; and 4. the effect or construction of a term whose meaning or interpretation is established is a question of law.
4. But it is the final "general proposition" recognised in Pozzolanic which is particularly relevant here. The Court expressed it in the following terms: "The question whether the facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law… (However) when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question whether they do or not is one of fact." [Citations omitted]
5. In formulating that general proposition, the Court relied on the decision of the High Court in Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1 at [8], ("Hope"), in which Mason J had cited with approval the following observations of Kitto J in New South Wales Associated Blue Metal Quarries Ltd v Commissioner of Taxation [1956] HCA 20; 94 CLR 509 at [512] ("Blue Metal Quarries"): "The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the (quarry operations) fall within the ordinary meaning of the words as so determined; and that is a question of law… (However) If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion and that is a question of fact."
6. In Hope, the Court referred to the decision of the English Court of Appeal in Brutus v Cozens [1973] AC 854, where the question was whether particular behaviour by the appellant was "insulting" and Court held that, as it was not unreasonable to hold his behaviour was insulting, the question was one of fact.

Conclusion as to error of law

1. We have concluded that: 1. Each of the provisions of the RTA relevant to this appeal, namely ss 154D(3)(c) and 154G, use the words "exceptional circumstances" according to the ordinary meaning of that phrase. The phrase was not itself defined in that Act and is not, as such, otherwise a technical phrase which, in a legal context or otherwise, invariably has a single fixed meaning. 2. The explanation of the phrase given, for example, in Yacoub clarifies how the words should be construed in a given context but does not displace that ordinary meaning. We add that, on the question of whether the fourth proposition from Pozzolanic might be seen as applicable, we do not consider that the proper construction of "exceptional circumstances" is sufficiently "established" in the particular context of the RTA to attract that proposition. As Campbell JA noted in Yacoub, in determining whether there are "exceptional circumstances" the rationale of the particular statutory provision must be taken into account as must the facts of the individual case (referring to AWA v Independent News Auckland [1996] 2 NZ LR 184 at [186]). 3. Any failure by the Tribunal to expose what it understood the phrase to mean does not mean that the Tribunal failed to apply that ordinary meaning and thereby erred on a question of law. That is particularly so in the absence of any evidence that the meaning of the phrase was placed in contention in the proceedings below; and 4. it was reasonably open to the Member below to hold that the facts of the case, specifically the seven factors and circumstances which he described (which we have repeated at [34] above), at least when viewed collectively (which is how the Member seems to have regarded them) fell within the phrase " exceptional circumstances".
2. By application of the final proposition in Pozzolanic, cited at [40] above, it must follow that the question of whether the facts fully found fell within those statutory provisions was one of fact and not one of law.
3. We would reach the same conclusion on the basis of Kitto J's analysis in Blue Metal Quarries, which was cited with approval by Mason J (as he then was) in Hope, because: 1. in both of the relevant statutory provisions, the words "exceptional circumstances" are used in accordance with their ordinary meaning and not in any technical legal manner; 2. the relevant facts presented to the Tribunal below reasonably admitted of different conclusions as to whether they constituted "exceptional circumstances"; 3. the Tribunal's determination as to which was the correct conclusion was therefore a question of fact, not of law.
4. If we had concluded that the Member's decision in this respect did constitute a question of law, we think that the Tribunal should have determined whether "exceptional circumstances" applied by reference to the meaning of the phrase given in Carr and Yacoub; namely, whether there were circumstances which, while not unique or unprecedented or very rare, were out of the ordinary course or unusual and not regularly, routinely or normally encountered.
5. That being so, we would still have affirmed the decision of the Tribunal below, for these reasons: 1. The Member had made clear findings of fact on which he based his finding that "exceptional circumstances" existed (which we have summarised at [34] above). 2. In our view, those findings were open to him on the evidence. 3. We are satisfied that those facts constituted circumstances which, while not unique, unprecedented or very rare, were out of the ordinary course or unusual and (at least when considered in combination) were not circumstances that are regularly, routinely or normally encountered. 4. In short, we are satisfied that the facts as found by the Senior Member below met the test for "exceptional circumstances" proposed by Campbell JA in Yacoub, as discussed at [29]-[30] above. It would follow that they were exceptional circumstances, that the Member's decision in this regard was correct, and that no prejudice had been suffered by the appellant.

Leave to appeal: "not fair and equitable"

1. The Notice of Appeal and the Grounds provided only brief particulars of the assertion that the Tribunal's relevant findings were not fair and equitable. The case put to us was that the findings lacked fairness and equity because the evidence did not in fact amount to exceptional circumstances. Land and Housing's written submissions on this Ground indicated, at [10], that the circumstances asserted as "exceptional" (that is, the seven circumstances which we have set out at [34] above) were in fact not out of the ordinary course or unusual, even if taken collectively.
2. At the hearing of the appeal Land and Housing made no further submissions on this issue other than to rely on its oral submissions as to whether there had been an error of law.
3. We decided to refuse leave to appeal on this ground, because: 1. as noted above, at [44], the relevant facts presented to the Tribunal below reasonably admitted of different conclusions as to whether they constituted "exceptional circumstances"; 2. the Member had not been referred to any authority as to the meaning of that phrase or which otherwise limited or constrained his finding (Reasons at [16]); and 3. there is nothing before us and there was nothing put by Land and Housing to indicate that the Member's analysis of the meaning of the term within the relevant legislation, and the conclusion drawn, was anything but fair.

Leave to appeal: "contrary to the weight of the evidence"

1. Land and Housing's submissions in relation to the assertion that the Tribunal's decision was against the weight of the evidence were similar to we have noted at [36] and [37] above.
2. We decided to refuse leave to appeal on this ground because: 1. as noted above, the relevant facts presented to the Tribunal below reasonably admitted of different conclusions as to whether they constituted "exceptional circumstances"; and 2. the Member made findings of fact as to the seven facts or circumstances which he took into account in reaching his conclusion (being those outlined in his reasons for decision at [12] to [15] and summarised at [22]. There appears to have been adequate evidence to justify his conclusions as to each of those seven facts or circumstances and they remain uncontroversial in the appeal. 3. the Member appears also to have taken account of Land and Housing's evidence and in particular the evidence of the circumstances leading to the charge of common assault and Mr McCallum's conviction and his "Criminal History-Bail Report". There is no indication that the Member failed to give consideration or appropriate weight to any of the other documentary evidence, copies of which were made available to us. 4. at the hearing of the appeal Land and Housing made no further submissions on this ground other than to rely on his oral submissions as to whether there had been an error of law.

ORDERS

1. It followed that the application for leave to appeal would be refused and the appeal dismissed. We ordered accordingly.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

Schedule 4 12 Limitations on Internal Appeals Against Division Decisions (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). … (2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if-- (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010 , or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order.

Residential Tenancies Act 2010 (NSW) 154D Tribunal required to make termination order in certain circumstances (1) Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord under a social housing tenancy agreement if-- (a) an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90(1)(b) and the injury constitutes grievous bodily harm within the meaning of the Crimes Act 1900, or (b) an application for the order is made under section 91 and the Tribunal is satisfied of the matters set out in section 91(1)(a), or (c) an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used for the purposes of-- (i) storing a firearm for which a licence or permit is not held under the Firearms Act 1996, or (ii) a show cause offence within the meaning of the Bail Act 2013, and the tenant or other person has been charged with an offence relating to those circumstances (whether or not the person is or has been found guilty of the offence). (2) Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord if-- (a) an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90(1) (and subsection (1) of this section does not apply), or (b) an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used-- (i) as a brothel within the meaning of the Environmental Planning and Assessment Act 1979, or (ii) for the purposes of an offence against section 91H (Production, dissemination or possession of child abuse material) of the Crimes Act 1900, or (iii) for the purposes of an offence against section 154G (Facilitating organised car or boat rebirthing activities) of the Crimes Act 1900, or (c) an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used for any other unlawful purpose and that the use is sufficient to justify the termination. (3) However-- (a) subsection (1)(a) does not apply if the application for the termination order is based on an act of a person who although not a tenant is occupying or jointly occupying the residential premises and not on an act of the tenant, and (b) subsections (1) and (2) do not apply if the Tribunal is satisfied that the termination order would be likely to 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 who is occupying or jointly occupying the social housing premises, and (c) subsection (2) does not apply if the tenant satisfies the Tribunal that there are other exceptional circumstances that justify the order not being made. (4) For the purposes of the application of section 91(1)(b) to social housing premises under this section-- (a) the reference to residential premises in section 91(1)(b) is to be taken to be a reference to the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others), and (b) if the Tribunal is satisfied that an offence of a kind referred to in subsection (1)(c) or (2)(b) has been committed by a person on the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others), the Tribunal must assume that-- (i) the premises or property has been used for an unlawful purpose, and (ii) the use is sufficient to justify termination of the agreement. (5) If the Tribunal does not make a termination order as a consequence of subsection (3), the Tribunal must provide written reasons for the decision. 154G Order for possession (1) If an order is made for termination of a social housing tenancy agreement, the order for possession must not specify a day that the order for possession is to take effect that is later than 28 days after the day on which the termination order is made unless the Tribunal is satisfied that there are exceptional circumstances justifying a later day. (2) The order for possession cannot be suspended for a period that would result in it taking effect later than 28 days after the day on which the termination order was made unless the Tribunal is satisfied that there are exceptional circumstances justifying a longer period of suspension. 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 March 2021