Rowland v NSW Land and Housing Corporation

Overview

1. Ms Rowland (the Tenant) appeals against orders made in February this year terminating her tenancy (the Tenancy Agreement) with the respondent (the Landlord). An order for her to give up possession of the premises has been stayed pending the outcome of this appeal.
2. The only matter arising on the appeal is whether the Tribunal at first instance erred in concluding that the Tenant had not established that she and Danielle suffered from a disability within the meaning of a relevant termination provision in the Residential Tenancies Act 2010 (NSW) (RTA). Significantly, if such a disability had been established then the Tribunal was required to exercise a statutory discretion whether or not to terminate rather than being compelled to order termination in the events that had occurred.
3. There were a variety of ways in which the Tenant put a case on appeal of error by the Tribunal. Whatever success the Tenant achieved on the appeal the outcome that was sought by the Tenant was for the proceedings to be remitted to the Tribunal at first instance for redetermination. It was not suggested that the Appeal Panel should itself decide that there was a relevant disability and then proceed to exercise the discretion whether or not to terminate the tenancy. In this regard, whilst one of the grounds upon which the decision about disability was challenged was that it was legally unreasonable, it was not contended that a finding of disability was the only reasonable conclusion available on the evidence.
4. For the reasons set out below, we have decided that there were material errors of law made by the Tribunal or that, in any event, aspects of the fact finding by the Tribunal miscarried. As a consequence, we have decided to grant of leave to appeal (should that be necessary) and to allow the appeal. In arriving at this decision, it has not been necessary for the Appeal Panel to address all of the Tenant's contentions.

Background

1. At the time of the decision the subject of this appeal, the Tenant had been the tenant of social housing premises in Macquarie Fields, Sydney for nearly 18 years. She has been a social housing tenant for about 30 years. She has two daughters, Nicole, who is 32 years old and Danielle, who is 29 years old. Danielle has been living at the premises for some considerable time. Nicole was staying at the premises at the time of the police raid on 23 January 2019 which led to these proceedings.
2. Section 154D(3)(b) of the RTA provides for an exception to the compulsory termination of a social housing tenancy prescribed by ss154D (1) and (2). It states: (b) subsections [154D] (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,
3. This reference to a "disability" is to the definition in s4 of the Anti-Discrimination Act 1977 (NSW) (the ADA) which is in terms: Disability means - (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
4. On the appeal, it was uncontroversial that if the exception in s154D (3) (b) of the RTA was not applicable then the Tribunal had to terminate the tenancy agreement. This was because there was no challenge to the Tribunal's conclusions that the circumstances (arising from the presence of an unlicensed firearm and other items at the rental premises) set out in s154D (1) (c) and s154D (2) (c) had been established. Those sections, relevantly, state: 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 - ….. (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, …… 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 - ….. (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.
5. It was the conduct of Mr Kandakji, not any conduct by the Tenant, that was found by the Tribunal to have satisfied the elements of s154D (1) (c) concerning a firearm discovered at the premises in the course of the police raid and the elements of s154D (2) (c) concerning the firearm, some ammunition and "knuckle dusters". Mr Kandakji was in a relationship with Nicole, one of the Tenant's daughters. These items were found by the police in her bedroom. Both Nicole and Mr Kandakji were at the premises when they were found. There was no finding by the Tribunal that the Tenant was aware that these items were at the premises. It was part of the Tenant's case before the Tribunal that she had no knowledge of them.
6. These discoveries on the police raid led to the Landlord's application for termination of the tenancy pursuant to s 91 of the RTA. That section, relevantly, provides: 91 Use of premises for illegal purposes (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted - ….. (b) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination. (2) In considering whether to make a termination order on the ground specified in subsection (1)(b), the Tribunal may consider (but is not limited to considering) the following - (a) the nature of the unlawful use, (b) any previous unlawful uses, (c) the previous history of the tenancy. …..
7. Section 154D (4) of the RTA specified that for the purpose of the application of s 91 (1) (b), if the Tribunal was satisfied that an offence of the kind referred to in s154D (1) (c) had been committed on social housing premises, then the Tribunal must assume that the premises had been used for an unlawful purpose and that the use was sufficient to justify termination of the tenancy agreement. The Tribunal found that it was Mr Kandakji who had committed the relevant offence.
8. If the Tribunal was not required to make a termination order under s154D (1) or (2) because the exception in s154D (3) (b) was applicable then section 154E applied to the exercise of the discretion to terminate. That section, relevantly, provides: 154E Exercise of discretion to make termination order (1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following - (a) the effect the tenancy has had on neighbouring residents or other persons, (b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, (c) the landlord's responsibility to its other tenants, (d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord, (e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal.

The Tenant's case concerning disability

1. Correctly, in our opinion, the Tribunal found that the Tenant bore the persuasive onus of establishing that the disability exception in s154D(3)(b) applied. There was no contest about this on the appeal.
2. At the hearing at first instance, the Tenant was represented by Ms Rao from the South West Sydney Tenancy Advocacy Service. She contended that both Danielle and the Tenant had disabilities within the meaning of s154D (3) (b). It was said that Danielle had a disability which fell within sub- section (a) of the definition of disability in s4 of the ADA because of deteriorating eyesight associated with retinal eye neuropathy consequential upon her diabetes. It was said that the Tenant had a disability that fell within sub- section (e) of that section because of her ongoing mental health issues. As to this, it was contended that the Tenant's mental health issues amounted to a "disorder" that affected her "emotions" within the meaning of that sub - section (T51, line 28).
3. The evidence presented to the Tribunal concerning Danielle's eyesight consisted of: 1. a copy of a single page patient "Full Summary As at 18/11/2019" in respect of Danielle, including references under the heading "Past Medical History" to Type I diabetes and to "Retinopathy-diabetic haemorrhages and highly active neo-vascularisation". These references were contained in what appeared as a division between "Active" and "Inactive" with the reference to Type I diabetes beside "Active" and the above reference to retinopathy beside "Inactive" under which there was an entry of "Date 2019". The word "Date" also appeared under "Active" but no date was there specified. 2. A Statutory Declaration from the Tenant which included reference to Danielle suffering from various conditions, including retinal eye neuropathy. 3. Sworn oral evidence from the Tenant that Danielle was losing her eyesight for which she was receiving treatment, including laser treatment, that Danielle was supposed to be having treatment for her eyes at 9 am that day but because the Tenant was needed to take her to and from that treatment, which led to her eye being bandaged, she had delayed that treatment until 2 pm that day, and that if this treatment did not work Danielle was going to need surgery on her eyes (T 34). The Tenant also said that she was picking up paperwork that day from Danielle's eye surgeon because "they" wanted her to be on disability because of her eyes and that Danielle had bleeding in the back of her eyes (T 37).
4. The Tenant was not cross-examined about this evidence concerning Danielle's eye condition. No other evidence was presented about it by either the Tenant or the Landlord. No issue was raised by the Landlord concerning the source, genuineness or accuracy of the patient summary as a true medical record concerning Danielle as at 18 November 2019. (The Tenant had been directed to lodge the documents that she relied upon by 21 November 2019, which would appear to explain the date on the patient summary).
5. The unchallenged oral evidence from the Tenant was to the effect that Danielle's eye condition was a current condition which was, currently, affecting her eyesight. This evidence, in conjunction with unchallenged evidence referred to below concerning the Tenant's mental health, make it apparent that the references to "Active" and "Inactive" in the patient's summary could not reasonably be interpreted as evidence that Danielle was not, currently, experiencing any material problem with her eyes. No such submission was made by the Landlord at the hearing at first instance or on appeal.
6. The evidence presented to the Tribunal concerning the Tenant's mental health consisted of: 1. A copy of a single page patient "Full Summary As at 18/11/2019" in respect of the Tenant in exactly the same style as the above document in respect of Danielle. Under the heading "Past Medical History", references were made to migraine and depression. The reference to migraine appeared beside "Active", for which no date was specified. The reference to "Depression" appeared beside "Inactive", for which a date of 2019 was specified. As with the patient summary for Danielle, references also appeared under the heading of "Current Medications" but no evidence was presented to the Tribunal, or submissions made, about the significance of any of these medications. (We note that on the appeal the Tenant sought to rely upon new evidence which included reference to one of the medications referred to in the patient summary. We deal with the attempt to rely upon such evidence later in these reasons). 2. A medical certificate, dated 13 November 2019, signed by Dr Atia Khanom, MBBS, FRACP. This stated: This is to certify that Ms Julie V Rowland is suffering from anxiety/depression for last 2 years. She saw psychologist last year few times and today having mental health plan to start counselling again. 1. We interpret this certificate as conveying a diagnosis for the Tenant of a mental health condition with mixed features of anxiety and depression. 2. Sworn oral evidence from the Tenant in which she referred on, at least, two occasions to her "own" current "health issues" (T 36 & 38) but without saying, or being asked, anything more, about this. She did refer in her oral evidence to her mother' s recent death (T 35) and to her worry about her accommodation and about what she was going to do if she was evicted (T 38).
7. In cross-examination, no questions were asked of the Tenant about her health. No other evidence about her health was presented by either the Tenant or by the Landlord. No issue was raised by the Landlord concerning the genuineness or accuracy of the patient summary as a true medical record concerning the Tenant as at 18 November 2019.

The Tribunal's decision

1. In carefully explained reasons the Tribunal addressed the various issues arising in relation to the grounds for termination before coming to the exception concerning disability. On appeal, there was no challenge to any of the Tribunal's findings other than in relation to this exception.
2. The Landlord's submissions to the Tribunal at first instance about the disability issue were brief (T 55). It was submitted that there was no expert report to satisfy the Tribunal of a disability. As to the Tenant's condition, it was submitted that the Tenant might suffer from anxiety but there was nothing going further than that so as to find that the anxiety was interfering with thought processes. A general submission was made that there was very little evidence in respect of any type of medical condition and that if the Tenant and Danielle, in truth, had a disability it would be expected that they would be in receipt of a disability allowance rather than the Newstart support that they were, in fact, receiving. In the Landlord's written submissions it was put that the Tribunal ought to find that the Tenant was not as person suffering a disability given the circumstances that she received a Newstart allowance and was not in receipt of a disability support pension (at [32]).
3. The Tribunal's reasons for not upholding the claim of disability in respect of both Danielle and the Tenant went beyond these arguments by the Landlord.
4. As to the Tenant's condition, the Tribunal concluded that the Tenant's evidence as a whole was at a very low level and it was not satisfied on the balance of probabilities that the Tenant suffered from a relevant disability.
5. A number of matters were relied upon in arriving at this conclusion. First, the Tribunal said that Tenant had not adduced any expert evidence to explain her condition or how it constituted a relevant disability.
6. Next, in relation to the patient summary, it was said that the summary identified two conditions - "inactive" depression in 2019 and "active" migraine for which no date was provided, and the summary did not provide any detailed evidence to identify the extent to which the Tenant suffered from the illnesses or conditions described, including, for example, whether they were mild or severe. The Tribunal then said that the patient summary was not verified by any medical practice as being a true and correct extract from their records, it did not identify the medical practice that the summary came from, the document was only one page in length and it was not clear whether it was complete.
7. Next, in relation to the medical certificate from Dr Khanom, the Tribunal said that it expressed only a simple conclusion and a short statement as to what had been, or was being, done but did not provide any historical observations of the Tenant's condition over time, did not provide any basis on which the conclusion set out on the letter could be assessed on Makita principles (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705) and it did not assert that the condition described in the letter was a disability, or the extent to which it disabled her against the criteria set out in the relevant definition.
8. The Tribunal reasoned that it was not clear on the evidence how either a migraine or anxiety/depression fell within any of the limbs of "disability" and that, for example, the evidence did not establish that any of those conditions affected a person's thought processes, perception of reality, emotions or judgement. It was said that, regrettably, the Tenant had simply sought to "assert" that she had the condition without demonstrating "its effect on her functions, learning capacity or thought processes (etc)."
9. Finally, the Tribunal said that it was noteworthy that the Tenant's evidence indicated that she was receiving a Newstart social security allowance but there was no mention of a disability pension. The Tribunal considered that this was not consistent with her "assertion" that she suffered from a relevant disability.
10. As to Danielle, the Tribunal accepted that a partial loss of a person's eyesight would constitute a disability within the meaning of sub- section (a) of the definition in s4 of the ADA if proved to the civil standard: at [129].
11. However, the Tribunal considered that the "low level assertion" that Danielle had a particular eye condition without demonstrating its effect on her "functions, learning capacity or thought processes (etc.)…" did not establish on the balance of probabilities that her condition amounted to a relevant disability: at [131].
12. With respect to this conclusion, the Tribunal, first, made reference to what it considered the Tenant had "asserted", namely that Danielle had deteriorating eyesight: at [128].
13. Next, the Tribunal said that the only document relied upon concerning Danielle's condition was her patient summary dated 18 November 2019.
14. Finally, the Tribunal pointed to the absence of any expert evidence to explain Danielle's condition or how it constituted a relevant disability.

Grounds of appeal

1. There came to be five grounds of appeal, namely: 1. The Tribunal erred in applying the test for "disability" under the ADA in respect of Danielle's condition because it had imported an additional requirement into the test for disability in sub - paragraph (a) of s4 that was not found in the terms of the statute. 2. The Tribunal erred in law in making a finding the appellant was not a person suffering from a "disability" within the meaning of the ADA because the decision was unreasonable as a matter of law. 3. The Tribunal erred in law by denying the Tenant procedural fairness by not inviting submissions and further evidence from the Tenant on the statutory test where an adverse finding was made. 4. The Tribunal's decisions about disability were not fair and equitable and/or were against the weight of the evidence, having regard to the totality of the evidence in favour of Danielle's and the Tenant's cases, that such evidence was unchallenged, and having regard also to aspects of the Tribunal's approach to fact finding and the tests to be applied in respect of these issues . 5. Leave to appeal against the order made concerning suspension of the order for possession should be granted on the basis of the current public health situation in respect of COVID-19 and that it should be ordered that possession should be suspended until 28 days after the Public Health (COVID-19 Self Isolation) Order 2020 was revoked, with liberty to apply to extend the suspension of the order for possession.

The limited appeal right

1. Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal (as this is), the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..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. As to the discretion to grant leave, the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84] said that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.

Danielle

1. We deal, firstly, with the finding about disability concerning Danielle. This accords with the order of the Tenant's submissions on appeal. Ms Epstein, who appeared for the Tenant, began her oral submissions by taking the Appeal Panel to the documentary and oral evidence that had been presented to the Tribunal at first instance concerning Danielle's eyesight disability, including the sworn oral evidence, to which we have referred above, about Danielle "losing her eyesight" and the treatment she had been receiving.
2. The Tribunal dealt with the eyesight disability issue on the basis that it was founded upon an "assertion" by the Tenant. No reference was made to the sworn oral evidence from the Tenant about this, which evidence was capable of being founded upon the Tenant's observation and first-hand experiences with Danielle, as well as knowledge of her medical diagnosis. It was unchallenged evidence. It was more than a mere assertion. It provided evidence as to the effect of the Tenant's diagnosed eye condition.
3. The absence of any reference to this oral evidence and the Tribunal's conclusion that the effect of an eye condition on Danielle's functions had not been demonstrated (at [131]) suggests that the evidence was overlooked by the Tribunal. In further support of this conclusion, we note that when dealing with some of the other issues the Tribunal did refer to parts of the Tenant's evidence, whether it be in her Statutory Declaration or her oral evidence (at [88], [91], [94], [99] and [100]). On these occasions, the Tribunal made some reference to the quality of such evidence and indicated whether the evidence was accepted or not accepted.
4. Mr Fester, who appeared for the Landlord, submitted that it could not be concluded that the Tribunal had overlooked the Tenant's oral evidence. He referred, generally, to the accepted position that not all relevant evidence must be expressly referred to in a decision. He submitted that the reference to what the Tenant "asserted" about "deteriorating eyesight" (at [128]) indicated that the Tribunal had taken the oral evidence into account. In her submissions, Ms Epstein linked this reference to what had been put in argument, as referred to earlier in the reasons (at [120]), and was not a reference to the Tenant's evidence. We think this is correct, particularly, when regard is had to the reference to Danielle's "deteriorating eyesight" in Ms Rao's submissions to the Tribunal (at T 43, line 10).
5. By overlooking this evidence from the Tenant, the Tribunal, in our opinion, erred in law because it failed to take account of a relevant consideration: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] (5); Oppidan Homes Pty Ltd v Baldwin and Granofsky [2016] NSWCATAP 109 at [32]-[33].
6. Even if it be the case that the Tribunal did not overlook this oral evidence, as we think it did, in our opinion, the Tribunal erred by treating it as assertion and not as unchallenged evidence of some real weight, particularly, given the absence of any general credit finding against the Tenant or any other reason for rejecting this evidence.
7. Adding to the weight of the evidence, in our opinion, was the patient summary with its reference to a diagnosed eye condition. It would seem likely that the Tribunal's earlier criticism of the like document concerning the Tenant (no verification, no identification of medical practice, incompleteness) meant that the Tribunal attached little, if any, weight to this document. As we outline below, when dealing with the issue concerning the Tenant's disability, we consider the Tribunal erred in criticising the patient summary for these reasons.
8. There were weaknesses in the evidentiary support for a conclusion that Danielle suffered from a relevant disability. The evidence was lacking in detail and expert explanation. (One way the latter might have been dealt with in a case of this nature was to consider taking evidence from Danielle's treating doctor by telephone).
9. However, on the totality of the evidence (summarised earlier in these reasons), in our opinion, it was, at least, reasonably open to the Tribunal to conclude that Danielle was, currently, suffering from a "partial loss" of a "bodily… function…", namely a loss of eyesight, within the meaning of (a) of s 4 of the ADA. Both the Tenant's oral evidence and her Statutory Declaration made it clear that her eye condition was a current one. This was sufficient material to overcome any pointer to the contrary that one interpretation of "inactive" in the patient summary might give rise to. However, as we have indicated, this was not the process of reasoning that the Tribunal undertook.
10. For the above reasons, even if we were wrong and the Tribunal did not overlook the oral evidence about Danielle's eyesight, we think that the Tribunal's fact finding concerning the issue whether Danielle suffered from a relevant disability miscarried to such an extent that the decision that the Tribunal had no discretion whether to terminate the tenancy was not fair and equitable within the meaning of cl 12 of Schedule 4 of the NCAT Act.
11. We do not accept that the Tribunal applied the wrong test of disability in its assessment concerning Danielle's condition. The Tenant's submission was based upon the following aspect of the Tribunal's reasons (at [131]): As with the tenant's own position, the low level assertion that Danielle has a particular eye condition without demonstrating its effect on her functions, learning capacity or thought processes (etc.) does not establish on the balance of probabilities that her can dish and asserted amounted to a disability within the meaning of the Anti-Discrimination Act. [Our emphasis]
12. It was submitted by the Tenant that this passage showed that the Tribunal had, wrongly, imposed additional requirements for there to be a "disability" over and above the test set out in (a) of s 4 of the ADA.
13. As Mr Fester submitted, on our reading of the Tribunal's reasons as a whole, we think the Tribunal, clearly, did have in mind the different, alternative, criteria for a relevant disability set out in s4 of the ADA. It set out the definition, correctly, in its reasons: at [38]. It paraphrased the three criteria that were, potentially, applicable to the Tenant, shortly before it turned to deal with Danielle's situation: at [125].
14. In dealing with Danielle's situation, the Tribunal, correctly, addressed the relevant parts of sub- paragraph (a) namely, the application of "bodily… function" and "partial loss": at [129].
15. In this context, it seems to us that the Tribunal's reference to effect on her functions, learning capacity or thought processes (etc.) was a short form reference to the alternative criteria in subparagraphs (a), (d) and (e) of s4 of the ADA, which the Tribunal had just been addressing when dealing with the Tenant's condition: at [125].
16. Even though it appeared from Ms Rao's submissions that the case for Danielle's disability was that she fell within the definition in sub- paragraph (a) (which explains why the Tribunal turned, first, to the application of this definition), it seems to us that the Tribunal was simply being comprehensive by addressing all three criteria in the above passage relied upon ([131]). We do not think that this led the Tribunal into any error concerning the need to interpret and apply the distinct criteria set out in sub- paragraph (a) of s 4 of the ADA.

The Tenant

1. As to the issue whether the Tenant suffered from a relevant disability, the Tenant submitted that the Tribunal erred by taking into account three irrelevant factors, or by giving excessive weight to three factors of no importance.
2. It was submitted that this meant that the decision was affected by an error of law on the basis that the decision was manifestly unreasonable, as to which the decisions in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [72] and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [41] were relied upon. Alternatively, if not an error of law, it was submitted that for like reasons the decision was not fair and equitable.
3. As we explain below, in our opinion, the three factors were irrelevant to the making of a determination whether the Tenant suffered from a relevant disability. We consider that the Tribunal made an error of law in taking account of these irrelevant matters: Prendergast at [13] (6).
4. Even if we were wrong in concluding that this was an error of law, we consider that the taking account of these matters meant that the Tribunal's fact finding concerning the issue whether the Tenant suffered from a relevant disability miscarried to such an extent that the decision that the Tribunal had no discretion whether to terminate the tenancy was not fair and equitable within the meaning of cl 12 of Schedule 4 of the NCAT Act.
5. The three factors relied upon by the Tenant were: 1. The Tenant's patient summary was not verified by any medical practice as being a true and correct extract from their records: at [122]. 2. The medical certificate from Dr Khanom expressed only a simple conclusion, did not provide any historical observations of the Tenant's condition over time and did not provide any basis on which the conclusion could be assessed on the Makita principles: at [124]. 3. The Tenant was not in receipt of a disability pension: at [126].
6. In our opinion, the Tenant was correct in her submission that the factors in (1) and (3) were irrelevant. The position is not as clear-cut with the factor in (2) although, on balance, we agree with the Tenant's position about this. In any event, as will be seen, we think it is sufficient for the Tenant to succeed on this aspect of the appeal for her to establish that factors (1) and (3) were irrelevant.
7. On its face, the plain inference from the patient summary document was that it was a medical record concerning the Tenant from a medical practice treating the Tenant. No point was ever taken by the Landlord concerning the source, genuineness or accuracy of the Tenant's patient summary. It was important, objective evidence to be taken account of in arriving at a determination in respect of the claim of a disability.
8. The Tribunal, also, should not have taken any account of the factor in (3). No material was put before the Tribunal concerning the criteria for a disability pension in order to identify any relevant comparison with that set out in s 4 of the ADA. Also, the subject was not raised with the Tenant in cross-examination, thereby, potentially, providing the Tenant with an opportunity to explain any relevant connection with her current claim of a disability.
9. On appeal, the Landlord did not suggest that the factor in (3) was a relevant factor. Rather, it submitted that it was not part of, or was merely peripheral, to the reasons for finding there was no disability. It submitted that the Tribunal had regard to it merely to reinforce a conclusion already reached and that if it was an error of law to take some account of this factor it was not a material error: Bladen v Mifsud [2020] NSWCATAP 79 at [53].
10. We do not think the reasoning can be separated or categorised in this manner. We have already referred to the prominence that this factor was given in the Landlord submissions at first instance. The Tribunal's reasons refer to the factor as "noteworthy" and as being not consistent with the Tenant's "assertion" that she suffered from a relevant disability ([126]). This analysis precedes the overall conclusion that the Tribunal was not satisfied that there was a disability ([127]).
11. As to the factor in (2), the Tenant submitted that it was irrelevant because the rules of evidence do not apply in the Tribunal (s 38 (2)) and because of provisions in the NCAT Act concerning the Tribunal resolving the real issues with as little formality as possible and without regard to technicalities or legal form (ss 3 (c) and 38 (4)).
12. The Tribunal's remarks about the Makita principles in relation to the medical certificate were not concerned with the admissibility of the medical certificate but with the weight to be given to its contents. The Tribunal had to weigh the material that was placed before it and the absence of an expressed basis for an opinion is, conventionally, seen as a significant factor in assessing the weight to be given to the opinion.
13. However, in the particular circumstances of this case, the Tribunal had before it a poorly resourced and unsophisticated litigant, expert documentary material (both the medical certificate and the patient summary) supporting a current diagnosis of anxiety/depression, an applicant who gave sworn, oral evidence which included general reference to her mental health issues, and an opponent to the application that took no point about Makita principles in relation to the medical certificate.
14. In these circumstances, we think the Tribunal should have inferred that the diagnosis had been properly arrived at given that there appeared to be no real issue that it had not been.
15. From the starting point that the Tenant did, currently, suffer from anxiety/ depression, in our opinion, because of the width of the definition in sub- paragraph (e) of s 4 of the ADA, it was reasonably open to the Tribunal to find that the Tenant's mental health condition did fall within the terms of sub- paragraph (e). In this regard, we note that the "disorder" that falls within that sub- paragraph is one that merely "affects" a person's "emotions". Although the Tribunal criticised the evidence for not identifying whether the disorder was mild or severe (at [122]), on our interpretation such an analysis was not required.

Substantial injustice and discretion on leave to appeal

1. We have concluded that there were material errors of law affecting the decision about disability and, hence, about the decision that there was no discretion to be exercised concerning the making of termination order.
2. We have also concluded that, if the errors were not errors of law, they, nevertheless, meant that the decision about termination was not a fair and equitable decision for the purpose of a decision whether or not to grant leave to appeal.
3. As to the grant of leave to appeal, we are also satisfied that the Tenant may have suffered a substantial injustice because of these errors. There was a significant possibility or chance, which was fairly open, that the Tenant would have achieved a favourable result under a consideration by the Tribunal of a termination of the tenancy pursuant to s 91 (1) of the RTA had the Tribunal found that either or both of the Tenant and Danielle suffered from a relevant disability: see Collins v Urban at [76]. The Landlord did not contend otherwise.
4. We consider that the fact- finding errors by the Tribunal were of a nature that was likely to produce an unfair result for the Tenant such that it is in the interests of justice that the decision be reviewed: see Collins v Urban at [84] (e), referred to above.

Outcome

1. The questions whether the Tenant and/or Danielle suffered from a relevant disability for the purposes of s154D (3) (b) will need to be re-determined by a differently constituted Tribunal at first instance.
2. If it is determined that either or both of the Tenant and Danielle suffered from such a disability then the Tribunal will need to proceed to determine whether or not the residential tenancy should be terminated pursuant to s 91 (1) of the RTA on the basis that the conditions set out in s 91 (1) (b) have been satisfied, and having regard to all the relevant circumstances, including, but not limited to, the factors that it must take into account in accordance with s154E. In this regard, the only issue to be decided is whether the discretion in s 91 (1) should be exercised for or against the making of a termination order in circumstances where the conditions for the exercise of such discretion have been satisfied.
3. Most of the Tribunal's findings of fact were unchallenged on this appeal and some of these, for example, those concerning the nature of the unlawful use are likely to be of some relevance to the exercise of the discretion. It will be open to the Tribunal to utilise any of these findings that it can permissibly take account of in the exercise of this discretion.
4. If it is determined that neither the Tenant nor Danielle suffered from such a disability then the Tribunal must proceed to make a termination order and determine any question that may arise about suspension of an order for possession. This is because there has been no challenge on the appeal to the conclusion of the Tribunal that the conditions for the making of a termination order set out in s154D (1) and (2) have been satisfied, save for the applicability of the exception in s154D (3) (b).
5. The assessments of disability, undue hardship and other factors that must, or may, be taken account of in relation to the issue of termination depend, in part, at least, upon the circumstances existing at the time of the new hearing that we have ordered. For this reason, the parties should be given the opportunity to adduce further evidence about the issues that remain to be determined.

Other matters raised on the appeal

1. In view of these reasons, it is unnecessary for us to address a number of other issues raised by the Tenant on the appeal, including contentions about procedural unfairness, the application of the principle of legally unreasonable to the Tribunal's decision in this case, suspension of the order for possession in view of the COVID situation and the receipt and consideration of new evidence on the appeal.

Orders

1. For the above reasons, we make the following orders: 1. Leave to appeal is granted to the extent that is necessary. 2. The appeal is allowed. 3. Set aside Orders 1, 3, 4, 5, and 6 made by the Tribunal on 18 February 2020. 4. Remit part of the case to a differently constituted Tribunal at first instance for re-determination of the question whether a termination order in respect of the Tenancy Agreement (referred to in the reasons for decision) is to be made pursuant to s 91 (1) of the Residential Tenancies Act 2010 (NSW) (the Act) on the basis that: 1. the circumstances under which the Tribunal must make a termination order because of the effect of s154D (1) and s154D (2) have been established for the reasons set out in the Tribunal's decision dated 18 February 2020, except for the question whether the exception in s154D (3) (b) of the Act is applicable having regard only to the answers to the questions referred to in (b) and (c) below which the Tribunal must re-determine. 2. Whether one or both of the Tenant and Danielle (as identified in the reasons for decision) are persons suffering from a disability within the meaning of the Anti-Discrimination Act 1977 (NSW). 3. If the answer to (b) is yes in relation to one or both of the Tenant and Danielle, whether the Tribunal is satisfied that the termination order otherwise to be made because of the effect of s154D (1) or (2) of the Act would be likely to result in undue hardship to such person(s). 4. If the exception in s154D (3) (b) of the Act is applicable because of the answers to (b) and (c) above, the Tribunal is to determine whether a termination order in respect of the Tenancy Agreement should be made pursuant to s 91 (1) of the Act on the basis that all conditions in s 91 (1) (b) of that Act for the making of a termination order have been established and the only issue to be determined is whether the Tribunal should make such a termination order in the circumstances, including, but not limited to, any relevant circumstances that are contained in findings of the Tribunal set out in its reasons for decision dated 18 February 2020. 5. If the Tribunal decides that a termination order is to be made then the Tribunal is to also determine any questions that may arise as to whether any order for possession takes effect immediately and whether any such order is to be suspended for any period of time. 1. The parties are to be permitted to adduce further evidence concerning the questions referred to in Order 4 above.

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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: 16 July 2020