NSW Land & Housing Corp v Bullman

Supreme Court of NSW|2006-05-11|Before: Insurance Services P, Mr J, Harrison J

The applicant elected to proceed with the Application despite acknowledging the above factors and agreeing that there had been no further incidents at the premises. In addition, the respondent had given an undertaking that there would be no other incidents in the future." 17 The Tribunal Member similarly recorded what occurred at the directions of 2 May 2005 in her subsequent written reasons for decision. According to Mr Ford, at this directions hearing Member Thane requested the landlord's representative [Mr Ford] to go and explain to his supervisor Mr Carnegie that Mrs Bullman had offered to admit there was an incident and was prepared to give an undertaking that it would not occur again. Mr Ford did as he had been requested. He was instructed by Mr Carnegie not to accept Ms Bullman's offer. The Tribunal Member then requested that Mr Carnegie appeared before the Tribunal. There was a short discussion. According to Mr Ford, at one point the Tribunal Member stated, "I should order costs against the Department. This matter is wasting the Tribunal's and my time."

The Tribunal Member's decision 18 The proceedings were heard over two days, namely 15 September and 17 October 2005 before Tribunal Member Thane. There is no transcript of these days of the hearing available. The parties have relied upon affidavit evidence as to what occurred. The account given primarily by Mr Ford does not mention all that occurred. There are gaps. 19 Both parties eventually filed written material, which was before with the Tribunal Member at the hearing. On the first day of the hearing, statements were relied upon. Stephen Du Bois, Rebecca Francis, Natalie Barnes and Rebecca Prothero gave evidence for NSW Housing. The videotape of the incident was played. Ms Bullman commenced to present her case. Julie Foreman and Tracey Cairns gave evidence. After their evidence concluded the matter was adjourned part heard to 17 October 2005. 20 On 17 October 2005 Ms Lyn Bullman was cross examined by Mr Ford. Donna Bullman was then called to give evidence. While this evidence was being given, Mr Datt who appeared for Ms Bullman objected to a question. According to Mr Ford the following exchange took place: "MEMBER THANE: Mr Gatt, I will not allow the objection. Mr Gatt you should look for another job. You are not really suited to your current position. MR DATT: My name if 'Datt' not 'Gatt' and you have been calling me Mr Gatt during the course of the hearing. I am the co-ordinator of the Macarthur Legal Centre and I am experienced in these tenancy matters. I intend lodging a complaint concerning your behaviour. You have been badgering me throughout the hearing. I am going to have a drink of water and I will leave the Tribunal room and come back. 21 Mr Ford then observed Mr Datt leave the Tribunal room. The Tribunal member then said "Well it looks like we are having an adjournment". There was an adjournment. When the Tribunal Member returned, she apologised to Mr Datt. The Tribunal Member stated that she did not mean what she had said earlier and that she had become frustrated with the proceedings. She also apologised for mistakenly calling him Mr "Gatt". Mr Datt was the tenant's advocate for Ms Bullman. As was said in R v Doogan; Ex parte Lucas-Smith & Others [2005] ACTSC 74 at [154] the odd intemperate or ill-considered remark made by a judicial officer will not, of itself, provide any ground for intervention on the ground of apprehended bias. 22 Prior to the adjournment, Ms Bullman was in the process of being cross examined. On resumption the Tribunal Member stated, "I am dismissing the matter on a technicality being that there was no injury proven, therefore the matter is dismissed". 23 On 17 October 2005 the Tribunal Member decided in favour of the tenant on the basis that the NSW Housing failed to pass through the gateway provision. The Tribunal Member ordered that the application was dismissed because the landlord has failed to satisfy s 68(1)(b) of the RTA and in particular had failed to prove that the tenant had caused or permitted "injury to the landlord, the landlord's agent or any person in occupation of or permitted on adjoining or adjacent premises".

24 In her written reasons dated 7 November 2005 the Tribunal Member summarised each witnesses' evidence and her observations as to what was shown on the video. The Tribunal Member decided that even if the landlord had satisfied the gateway provision, the Tribunal would have been unlikely to terminate the tenancy because: "there was no evidence that there had been previous incidents of this nature, in fact there had been no incidents since November 2004 and the other parties involved no longer lived in the street.

It is also noted that the respondent was genuinely remorseful for what had occurred and had given an undertaking that it would not occur again. She said that she now had a good relationship with all her neighbours and wanted to continue to live in the home that she had lived in for nearly 30 years." 25 It is my view that there is no error in the Tribunal Member's decision in relation to the second limb, namely, the discretionary decision as to whether the tenancy should be terminated effective immediately.

Procedural fairness 26 In Kioa v West (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a Tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing so as to give it a reasonable opportunity to meet that case and to advance its own. 27 In relation to procedural fairness, Mason J stated in Kioa at 584-585 that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures, which are appropriate and adapted to the circumstances of the particular case. Whether there is a denial of procedural fairness depends on the circumstances in each case. 28 In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 the High Court discussed the manner in which procedural fairness cases are approached by the courts, and Chief Justice Gleeson said (at [37]): "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 29 The plaintiff referred to Vanmeld Pty Limited v Fairfield City Council & Anor [1999] NSWCA 6 where Spigelman CJ at [50] and stated that the obligation to afford procedural fairness is a doctrine of the common law which attaches to the exercise of public power, subject to any statutory modification of the common law in that regard. 30 Section 28 of the Act reads:

(1) The Tribunal may, subject to this Act, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand: (a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings. (5) The Tribunal: (a) is to act as expeditiously as is practicable, and

(b) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case of a hearing - may require the presentation of the respective cases of the parties in proceedings to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

… (i) may dismiss any proceedings if it considers the proceedings to be frivolous or vexatious or for any other reason that appears to it sufficient, …" 31 Section 35 reads: "35 Opportunity for parties to present case

The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:

(a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and

(b) to make submissions in relation to the issues in the proceedings." 32 Section 35 provides that the CTTT must ensure that each party is given "a reasonable opportunity" to present its case [my emphasis added]. There are provisions which allow the CTTT a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness - see Italiano v Carbone at [105] and [106]. 33 It appears from the written reasons that the Tribunal Member accepted the evidence of Ms Bullman where she admitted that she (Ms Bullman) did pull Ms Francis's hair and slapped her and denied that she punched Ms Francis in the face, chest or anywhere else. The Tribunal Member stated that Ms Bullman's version of events was supported by the video. The Tribunal Member also accepted Mr Du Bois evidence that he suffered "a sore chest for a couple of days" but stated that there was no report produced in relation to those injuries. A finding was made that there was no evidence to suggest that Ms Bullman was in any way responsible for her son's actions. 34 Both parties referred to Crook v CTTT [2003] NSWCA 370. In Crook the Court considered what constituted an "injury" under s 68 in circumstances where there has been a threatened assault but not physical contact. The Court at [31] adopted a broad interpretation of the word injury and held that it extended to recognisable psychiatric illness. There was no evidence in Crook that the threats were met by the victims "with anything other than considerable courage, calmness and dignity" and "no medical evidence was brought to identify any injury that any of the victims suffered or were likely to suffer": [39]. 35 The Tribunal Member referred to Crook and stated that the Tribunal must be able to conclude on the balance of probabilities that there was some harm or damage as a result of the respondent's action and that slapping and pulling of hair may or may not cause harm or damage. The Tribunal Member found that as no medical evidence was produced by NSW Housing she was unable to determine whether the pulling of hair and slapping by Ms Bullman caused Ms Francis to suffer an injury. 36 NSW Housing submitted that the Tribunal in terminating the proceedings during cross examination of one of the tenant's witnesses (Donna Bullman) and making orders without inviting submissions from the plaintiff's representative did so in breach of ss 25 and 35 of the Act. NSW Housing submitted that it did not have an opportunity to make submissions. Those submissions it could have made were firstly, that the actions of Ms Bullman's partner and son should have been considered as they were acting for a common purpose; and secondly, as to the meaning of "injury". 37 NSW Housing submitted that the Tribunal was in error in finding "no injury proven" on at least three bases, firstly, slapping and pulling hair does constitute harm and is therefore an injury; secondly, slapping and pulling hair does constitute a likelihood of injury occurring in the future; and thirdly, the tenant as one of a number of person who attacked Rebecca Francis liable for the assault and all that resulted including any injury. At the hearing of this appeal, NSW Housing sought to expand its appeal points to include an extra one namely that as Ms Bullman and her son Shane were involved in a common purpose and a joint enterprise that she should be held responsible for her son's actions. 38 While s 35 states that the Tribunal must ensure that each party is given a reasonable opportunity to call and give evidence, present its case and make submissions in relation to the issues in the proceedings; s 28(5)(c) empowers the Tribunal Member to dismiss proceedings if it considers the proceedings to be frivolous or vexatious or for any other reason that appears to it sufficient [my emphasis added]. The Tribunal Member exercised the power given under s 28(5)(c). This meant that the parties did not have the opportunity to make submissions prior to the Tribunal Member determining that there was "no injury proven". 39 It is my view that while the Tribunal Member was entitled to dismiss proceedings, she could not do so without complying with the mandatory provisions of s 35. The proceedings should not have be dismissed without giving each of the parties a reasonable opportunity to make submissions in relation to issues in the proceedings. It was my view that the parties were not given any opportunity to address the issues in dispute such as the credibility of the witnesses, and the meaning of injury. This, in my view, constituted procedural unfairness or a denial of natural justice. The appeal is upheld. Hence it is not necessary to ventilate the further ground of appeal. 40 In Stead v State Government Insurance Commission (1986) 161 CLR 141 the High Court held at 145 that where the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially where the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference - see also Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 at [6] and [64]. 41 If both parties had been given the opportunity to make submissions, can it be said that it would have made no difference? At best, the making of submissions could have led to the Tribunal Member making a finding that the plaintiff intentionally caused injury to a person or persons on adjacent premises. However, the Tribunal Member then went on to say that even if she were wrong in the "threshold decision" the Tribunal would have been extremely unlikely to terminate the tenancy. The reasons for this decision were that there were no previous incidents of this nature, there had been no other incidents since November 2004 and Ms Francis and Mr Du Bois no longer lived in the street. The Tribunal Member characterised the incident of 21 November 2004 as a dispute between two neighbours and the video of the incident showed an out and out brawl where it was difficult to ascertain who did what to whom. Further reasons of the Tribunal Member on this issue included that Ms Bullman had lived in that home for nearly 30 years, was genuinely remorseful and had given an undertaking that it would not occur again. Even if it has been established that the plaintiff had intentionally caused an injury or injuries to the De Bois/Francis household the evidence was overwhelmingly in support of Ms Bullman on the issue as to whether or not the tenancy should have been terminated. 42 The final issues to be determined are firstly, whether the decision should be quashed; and secondly, whether relief should be granted. The Tribunal Member dismissed the application. It is my view that this decision can still stand. If I am wrong and the decision should be set aside it is my view that no further relief should be afforded. The reason is that there is no utility in quashing the decision. The evidence overwhelmingly supports the Tribunal Member's decision on the discretionary issue. Further, over 18 months has elapsed since the incident occurred on 21 November 2004. Section 68 is only intended to be implemented in serious circumstances where immediate termination and possession is warranted. This is not the case here. There should be no order made to terminate Ms Bullman's tenancy. 43 Costs are discretionary. Each party has been partly successful and partly unsuccessful. In these circumstances it is my view that each party should pay its/their own costs.

(2) Each party is to pay its/their own costs. **********

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.

Consumer, Trader and Tenancy Act 2001(NSW)

Residential Tenancies Act 1987(NSW)

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

CITATION : NSW Land & Housing Corp v Bullman [2006] NSWSC 733

Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456 Crook v CTTT [2003] NSWCA 370 Greenslade, Jason Luke, Greenslade, Jason, and Greenslade, Hazel v Cawood, Craig Aaron [1996] NSWRT 134 Italiano v Carbone & Ors [2005] NSWCA 177 Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312 Kioa v West (1985) 159 CLR 550 CASES CITED : Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 NSW Land and Housing Corporation v Adams [2004] NSWCTTT 80 R v Doogan; Ex parte Lucas-Smith & Orthers [2005] ACTSC 74 Re Refugee Review Tribunal; Ex parte Aala (200) 204 CLR 82 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 Stead v State Government Insurance Commission (1986) 161 CLR 141 Vanmeld Pty Limited v Fairfield City Council & Anor [1999] NSWCA 6

The appeal and relief sought 3 Section 65(3) of the Act provides that relief can be granted by way of a judgment or order in the nature of prohibition, mandamus, certiorari, declaratory judgment or an injunction if in relation to the hearing or determination of the matter, a party had been denied procedural fairness or the Tribunal had no jurisdiction to make the order. The court is empowered to grant relief in the nature of certiorari, pursuant to s 65(1)(a) of the Act. Relief of that kind is discretionary. Relief may be refused where there has been delay on the part of the applicant or it can be said that the applicant has waived or acquiesced in the validity of the decision: see generally, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [57]-[58] (Gaudron and Gummow JJ, Gleeson CJ agreeing); SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 at [80] (McHugh J); and Italiano v Carbone & Ors [2005] NSWCA 177). 4 Section 67 of the Act allows for an appeal to be made to this court on a question with respect to a matter of law. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. The onus lies on the plaintiff to demonstrate that there has been an error with respect to a matter of law. 5 The width of s 67 was discussed in Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456. Hodgson JA (with whom Beazley and Tobias JJA agreed) stated succinctly [at para 33]: "… in my opinion, to establish an error of law by the Senior Member, it was necessary to show that he applied a wrong principle of law. That could be shown either from what he said, or because the ultimate result, associated with the facts that he expressly or impliedly found, indicates that he must have applied the wrong principle of law." 6 See also Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312 at paragraphs [39], [40], [41], [47] and [59]. 7 Section 67(3) of the Act provides that, after deciding the question of the subject of an appeal, the court may affirm the decision of the Tribunal, or it may make an order in relation to the proceedings in which the question arose as it, in its opinion, should have been made by the Tribunal, or it may remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal.

(3) In the case of a tenancy of social housing premises, a reference in subsection 1(a) to the residential premises is taken to include a reference to any property adjoining or adjacent to the premises (including any property available for use by the tenant in common with others)." 13 Firstly, there is a gateway provision to be decided. That is, the Tribunal has to be satisfied that the tenant has intentionally or recklessly caused or permitted, or is likely or intentionally or recklessly to cause or permit serious damage or injury to one of the persons listed in s 68(1)(b). Serious damage to residential premises was not relevant here. If the gateway provision is satisfied, the Tribunal then exercises its discretion as to whether the tenancy agreement should be terminated. No period of notice is required to be given to the tenant. The possession granted is immediate. 14 A s 68 order is contemplated in serious situations where immediate termination and possession is warranted - see Greenslade, Jason Luke, Greenslade, Jason, and Greenslade, Hazel v Cawood, Craig Aaron [1996] NSWRT 134. In NSW Land and Housing Corporation v Adams [2004] NSWCTTT 80 the Tribunal said, "Immediate termination indicates that the behaviour involved is of a serious nature and hence requires an urgent response". 15 A number of directions hearings prior to the hearing taking place. It is the directions hearing which occurred on 2 May 2005 that is relevant.

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