Roberts v NSW Land and Housing Corporation

Variation of orders

1. On 25 September 2018 by consent the Appeal Panel made an order staying the operation of "order 4 made on 14 August 2018" until further order. Order 4 referred only to the occupation fee.
2. During the appeal hearing we raised with the parties that there appeared to have been an inadvertent error in the stay order because the parties had indicated that they had been operating on the basis that all the orders made on 14 August 2018 were effectively stayed until further order. The tenant was still in possession and was not paying the occupation fee. We also raised with the parties that the $50 per day occupation fee seemed disproportionate to a daily rate pro-rated from the likely social housing rental for the premises, which was the usual basis for calculation of an occupation fee.
3. The parties did not dispute the foregoing propositions and said the current rental figure was $300-$330 per fortnight and no higher than $350 per fortnight.. Taking a midpoint in the range of $320, this equated to a daily occupation fee of $22.86.
4. The Appeal Panel, under ss 63 and 81 of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA), has the power to correct inadvertent errors in its own and the primary orders and to make an appropriate order to correct what was common ground was a matter requiring leave because it was founded on inadequate facts or erroneous facts, in this case the amount of the daily occupation fee.
5. Accordingly, at the conclusion of the appeal hearing on 28 November 2018, we made orders with immediate operation to the following effect: varying the amount in order 4 made on 14 August 2018 from $50 per day to $22.86 per day; varying the orders made on 25 September 2018 to stay until further order the operation of all orders made on 14 August 2018 (strictly order 5 concerning relisting may not have been required to be stayed but was included for completeness). We otherwise reserved our decision.

Grounds of appeal

1. The Notice of Appeal was lodged within time on 31 August 2018 on the basis that the primary decision was said to have been received on 20 August 2018. There was no challenge to when it was received or that the appeal was lodged out of time. The tenant's means of receipt was post to the premises.
2. The Notice of Appeal was handwritten and signed by the tenant. In the section for what orders were challenged on appeal, the tenant wrote "Will be homeless, thoughts of suicide, Department of House Penrith office and magistrate broke the Anti-Discrimination Act". Among the attached documents referred to later in the notice, and discussed below, was an extract from the definitions in the Anti-Discrimination Act 1977 (NSW) s 4(1) (ADA) including the definition of "disability".
3. The tenant had ticked "no" in the box on the Notice of Appeal asking if he was seeking leave to appeal but then ticked "yes" in the next box in a later place on the form where the same question was asked. There were no grounds specified in the boxes in relation to leave to appeal.
4. Having regard to the approach taken in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 in a situation where there was no legal representation, and having listened to the oral argument on the appeal hearing and reviewed the written material, we have sought to distil the grounds of appeal and deal with those items. We set them out here and then deal with each of them in turn below without repeating them.
5. The grounds of appeal that we have distilled were, in summary, as follows: (1) The tenant raised a potential question of law that the operation of the provisions of the RTA in relation to him that were relied upon in the landlord's application and form of relief claimed, and in the decision and orders of the primary member in accord with that application and those claims, contravened the provisions of the ADA. The tenant said that he had raised this before the primary member but there was no transcript provided by the tenant in accord with directions made on 25 September 2018 and the primary member did not record or deal with this issue. (2) The tenant sought leave, to the extent leave was required, to raise an issue of fact that did not challenge the findings or orders of the primary member except for the period of stay ordered, which should have been longer until he obtained a proper opportunity to look for alternative accommodation with a landlord other than the respondent. (3) The tenant did not otherwise seek leave to challenge the primary member's findings of fact but complained about the landlord's conduct as a justification for his conduct towards the landlord and its representatives, so we have treated that as in effect an application for leave to challenge findings about his conduct. (4) The tenant sought leave, to the extent leave was required, to adduce further evidence in support of his application to extend the stay of possession.

Applicable legal principles on appeals

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
2. Clause 12 of Schedule 4 to CATA states: 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).
3. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
4. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel stated at [71], [74]-[75], [78]-[79] and [84] as follows in respect of grants of leave to appeal: 71 [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred… 74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there 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. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 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]. … 78 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. 79 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 then, 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] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. … 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
5. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37] -[39]: 37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'
6. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.
7. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179; see also Kostas v HIA Insurance Services PL (2010) 241 CLR 390 at [91] and, in respect of having regard to a mandatory consideration, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41; in the Tribunal, see Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 2016 at [183]-[184]; Johnson v Lukeman [2016] NSWCATAP 272 at [8].
8. These categories are not exhaustive of errors of law. A failure to afford procedural fairness has already been mentioned. Since the Tribunal is under a statutory duty in CATA s 62 to provide reasons (Collins v Urban, above, at [43]-[64]), a failure to provide adequate reasons more generally raises a question of law: see, eg, Pollard v RRR Corporation PL [2009] NSWCA 110 at [56]; Qushair v Raffoul [2009] NSWCA 329 at [52] and following paragraphs.
9. CATA s 81 provides that, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. The section sets out a list of available orders which is not exhaustive. That list includes, in combination if appropriate: allowing the appeal, setting aside the primary decision and remitting the whole or any part of the case to the primary level of the Tribunal for reconsideration, either with or without further evidence and in accord with the Appeal Panel's directions, varying the primary decision, or quashing or setting aside the primary decision and substituting another decision.

No error of law

1. The appellant tenant may, if the position was established by proper expert evidence, come within para (e) of the definition of "disability" in ADA s 4(1): "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour". ADA s 4A may assist the appellant if one of the reasons for the action by the respondent - taking proceedings to exclude the appellant from his rental accommodation - consists of unlawful discrimination. The respondent is not a Public Service agency as defined in ADA s 4(1), which refers to the definition of that term in the Government Sector Employment Act 2013 (NSW). However, the relevant ADA provisions apply to persons generally, which includes the respondent as a statutory corporation as we understand its status. There was no submission that the ADA did not apply at all to the respondent.
2. The appellant did not take any further which provision of the ADA provided him with a route to establish discrimination and how the Tribunal could provide in these proceedings relief within that route. The respondent did not provide detailed submissions given the absence of identified material to which to respond. We have undertaken our own examination of the ADA provisions.
3. ADA Part 4A deals with discrimination on the ground of disability. Doing the best we can to discern a potential route within Part 4A, the potentially available definition is indirect discrimination defined in s 49B(1)(b). The nature of what would need to be made out for the appellant to come within this definition in this particular instance would be along the following lines of proof: (a) the respondent required the appellant to comply with a condition of the residential tenancy agreement that permitted access to the premises to persons authorised by the respondent to undertake inspections and work; (b) the respondent had previously required the appellant to comply with a condition of the residential tenancy agreement that the appellant should not cause or permit a nuisance and should not interfere with or disturb the reasonable peace and comfort of neighbours; (c) the respondent required compliance by notices and taking action under RTA provisions for non-compliance, being specific performance orders and, ultimately, termination of the tenancy; (d) a substantially higher proportion of people who do not have the disability of mental illness producing anti-social behaviour are able to comply with such conditions in the tenancy agreement and are therefore not likely to be in the position of being subject to an application for non-compliance with such provisions; (e) the requirement of compliance with such conditions is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not comply or is not able to comply.
4. ADA s 49N relevantly provides that it is unlawful for a person to discriminate against a person on the ground of disability, relevantly: (1)(b) in the terms on which the person is offered accommodation; (2)(b) by evicting the person; (2)(c) by subjecting the person to any other detriment. There do not seem to be any relevant special services or facilities the provision of which would impose unjustifiable hardship (within the meaning in s 49C) on the respondent to provide such services or facilities: s 49N(4). Section 49C provides that, in determining what constitutes unjustifiable hardship for the purposes of Part 4A, all relevant circumstances of the particular case are to be taken into account, including: (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; (b) the effect of the disability of a person concerned; (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
5. General exceptions are contained in ADA Part 6. ADA s 54(1)(c) excepts activity necessary for compliance with an order of the Tribunal. However, the focus of the present examination is the conduct of the respondent in initiating proceedings that lead to the order of the Tribunal.
6. Here the potentially relevant conditions of the current residential tenancy agreement dated 22 June 2007 are, for access, clause 8.4 and 8.5 (with the required notice which was here given) and for interference and nuisance, clause 7.2 and 7.3 and additional terms clause 14. Clause 8.4 and 8.5 is a provision reflective of the requirements of RTA ss 55(2) and 56 which are made mandatory terms of every residential tenancy agreement. Clause 7.2 and 7.3 is a provision reflective of the requirements of RTA ss 51(1)(b) and (c) which are made mandatory terms of every residential tenancy agreement. In other words, they operate by statutory force independent of their inclusion as provisions in the tenancy agreement.
7. The appellant bears the onus of proving that he qualifies within the definition of "disability" in ADA s 4(1) and, if so, that the requirements of s 49D(1)(b) (or any other available route he identifies) are satisfied.
8. So far as we are aware, the appellant provided no evidence at the primary hearing.
9. Before us, the appellant sought to rely upon medical reports and other material. None of it met the test we have set out above for further evidence to justify its use on appeal to support a grant of leave to revisit (if it was raised before the primary member) the effect if any of ADA provisions on the respondent's actions in bringing these proceedings on the grounds set out in the application. To the extent it consisted of medical reports dated after the primary hearing there was no opinion in those reports that was not reasonably available to be given before the primary hearing.
10. Even if we had allowed that material to be considered on appeal, it does not discharge the appellant's onus of proof. The medical statements are not specific enough to demonstrate the precise nature of the mental disorders and the precise effect of the disorders on the appellant's behaviour. There was no material that established the disproportionate impact of the respondent's requirements in the tenancy agreement and activity in enforcing those requirements on the appellant compared with a substantially higher proportion of people without the established disability and its established effects.
11. Even if those matters had been established, there was no evidence from the appellant to establish that the respondent's requirements and activity to enforce them were not reasonable having regard to the circumstances of the case. For the substance of the tenancy agreement requirements the appellant was required by statute to comply in any event. There was strong evidence at the primary hearing from the respondent, on the basis of which the primary member made his findings and orders. The evidence demonstrated that it was reasonable for the respondent to impose the requirements in the tenancy agreement about behaviour and access and to seek their enforcement, in earlier years by specific performance order and in this application by termination of the tenancy. The circumstances of the case making that reasonable were that there was totally unacceptable behaviour of the tenant towards the respondent's employees and contractors seeking to do their job and a history of specific performance orders concerning anti-social behaviour that had produced no change in behaviour.
12. Accordingly, the appellant has not established the basis for an error of law on grounds of unlawful conduct of the respondent under the ADA. If the primary member did not mention the matter in his reasons and it was put before him in a form that required its consideration, on which we have no indication that it was, any error of law in that lack of consideration was theoretical and would not have changed the outcome. In order for the issue to be considered, it would need to be supported before the primary member by appropriate evidence to establish its ingredients, and it wasn't.
13. In light of the foregoing, we do not need to consider how the specific routes to relief for discrimination set out in ADA Part 9 impact upon the raising of alleged unlawful discrimination in other proceedings. ADA ss 93 et seq provide a referral role for the Tribunal for complaints lodged with the President of the Anti-Discrimination Board. One form of relief that the Tribunal can give if a complaint is upheld is to "make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of [the ADA or regulations thereunder]". Whether or not this route to relief excludes the alleged unlawful conduct being raised in other proceedings as an ingredient in the relief sought or resisted in those proceedings is for determination on another occasion, with the assistance of full argument.

No basis for grant of leave to appeal on questions of fact

1. The findings made by the primary member dealt with the matters to be considered in RTA s 154E before termination of a social housing tenancy agreement, in addition to the matters in RTA s 92. In our view the primary member's findings dealt with the matters appropriately and without relevant error that would justify a grant of leave. The appellant's submissions did not substantively challenge that conclusion as we have earlier recorded.
2. We are not clear as to the degree to which the appellant sought a longer period of stay of adverse orders before the primary member. There was no mention in the primary reasons rejecting a longer period of stay than the 3 weeks' stay granted. There accordingly appears to be no basis for granting leave to appeal against that length of stay.
3. Before us the appellant near the end of his lengthy address said that he really wanted time to leave and find a new place to live. He said that he had been trying to find alternative private accommodation. He was supported by a letter from an established housing and homelessness support service, who corroborated his efforts to find alternative accommodation and suggested he be considered for referral (if he had not been under previous specific performance orders) for tailored mental health and housing assistance.
4. The appellant asked for a further stay of the primary orders until 29 January 2019.
5. The respondent's counsel said he had no instructions to oppose a further stay but said that the usual price of a stay was to pay the occupation fee and that there had been no payment of that fee over the existing stay which in effect was more than 3 months.
6. RTA s 114 empowers the Tribunal to suspend the operation of an order for possession if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the landlord and tenant by the suspension. The Tribunal may impose an obligation on the tenant to pay an occupation fee for the period of suspension.
7. In our view the balance of relative hardship favours the extension of the stay over the Christmas period and to the end of January 2019 as sought by the tenant before us. The tenant has corroborative support for his efforts to find alternative accommodation. He wants this last shot at avoiding homelessness. We also support the suggestion by the housing and homeless service for investigation of specialised intervention.
8. The landlord has agreed to a stay of payment of the occupation fee order as recently as 25 September 2018 for the purposes of the appeal. In the circumstances of a relatively short extension of the stay over Christmas following determination of the appeal, we think it appropriate to continue the status quo in its entirety. This will not affect the tenant's liability to pay the back money in the occupation fee when the stay ends. With that in mind the tenant is on notice to make what provision he can to meet that obligation when the stay is lifted.

Outcome of substantive appeal

1. The appeal accordingly fails on its substantive grounds. We set out our orders below.

Costs of appeal

1. Rule 38A of the Civil and Administrative Tribunal 2013 (NSW) (Rules) applies the same costs rules as applied in the Division when there is a departure under the Division rules (such as under Rule 38) from CATA s 60.
2. The amount claimed or in dispute in the proceedings did not exceed $30,000 so as to invoke CATA Rule 38. Accordingly, Rule 38A has no work to do and CATA s 60 applies to costs of the appeal. CATA s 60(3) requires special circumstances to be established for an award of costs and sets out examples of what may constitute special circumstances. Nothing before us indicated special circumstances. There was no application for costs by the respondent and the appellant was self-represented

Orders

1. The orders we accordingly make are as follows: 1. Leave to Appeal is refused. 2. The Appeal is dismissed. 3. Continue the stay, granted on 25 September 2018 and varied on 28 November 2018, of orders made on 14 August 2018 and varied on 28 November 2018, such stay to end on 29 January 2019.

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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: 11 December 2018