Scicluna v New South Wales Land and Housing Corporation & Anor [2007] NSWSC 385 | Case summary

JUDGMENT 1 HIS HONOUR: The plaintiff and the first defendant were parties to a Residential Tenancy Agreement (the agreement). The subject premises (the premises) were known as 8 Campbell Hill Road, Guildford. The plaintiff and his partner (Alison Trounter) occupied the premises. In early 2006, the plaintiff also allowed other persons (Ronald Keough and Jennifer Calthorte) to live in the premises. 2 On 21 March 2006, the police executed a search warrant at the premises and discovered certain items (including quantities of prohibited drugs). They came upon evidence of serious criminal activity. Charges were laid. 3 On 29 May 2006, the first defendant made application to the Consumer Trader and Tenancy Tribunal (the Tribunal) seeking an order terminating the agreement. The application was founded on alleged breach of a term imported into the agreement by reason of s23 of the Residential Tenancies Act 1987 (NSW) (the Act). The section imports, inter alia, a term that the tenant shall not use the residential premises, or cause or permit the premises to be used for any illegal purpose. The illegal use was said to be the manufacture and sale of drugs. 4 The parties were given notice of hearing. The notice exhorted them to bring witnesses. 5 A contested hearing took place before a member of the Tribunal (Janet Farey). The plaintiff suffers from a disability (blindness). He appeared in person. He did not seek to have legal representation. Mr Spackman appeared for the first defendant. The Court is informed that he was not legally qualified. 6 The first defendant adduced evidence (inter alia, from Detective Skinner and documentation). The plaintiff was present during the hearing (with his carer Ms Pizzulo). He gave oral evidence. The effect of his evidence is that he did not know what was going on. The carer was briefly questioned. She said that she did not see anything. 7 The Member proceeded to find a breach of the implied term (a breach that involved the manufacture and sale of a substantial quantity of dangerous illegal drugs). She reached that result by preferring the evidence adduced by the first defendant (she regarded the plaintiff's case as defying credibility) and on the balance of probabilities. 8 On 12 September 2006, the Member made an order for termination. Possession was to be given up on 26 September 2006. 9 The making of orders was preceded by the delivery of ex-tempore reasons. Subsequently, written Reasons for Decision (written reasons) were given following a request from the Legal Aid Commission. These written reasons were prepared from notes and recollection. Although the hearing had been sound recorded, the Member prepared the reasons without having the advantage of reviewing the transcript. 10 The plaintiff brings a challenge to this Court against the decisions of the Tribunal. He seeks, inter alia, to have the decision of the Tribunal set aside. The Summons asserts twelve appeal grounds. Although the challenge has been brought out of time, this point is not taken by the first defendant. 11 The Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the CTTT Act) provides two avenues of challenge. One is pursuant to s65, where there is lack of jurisdiction or denial of procedural fairness. The other is by way of appeal pursuant to s67 and is available where the Tribunal decides a question with respect to a matter of law. It is a challenge of narrow ambit and is not synonymous with error in point of law. 12 The hearing in this Court took place on 20 April 2007. Both parties were legally represented. 13 The plaintiff has mounted what might be described as a near exhaustive list of appellate arguments. Fortunately, the burden of dealing with them was somewhat reduced by reason of them being regarded as falling within distinct categories. 14 The plaintiff relied on lengthy and detailed written submissions. These were supported by about two hours of oral submissions. The first defendant has also made written submissions, which were also supplemented by oral argument.

15 Certain of the issues agitated in this case were considered in Middlebrook v NSW Land & Housing Corporation & Anor [2005] NSWSC 673. This was also an appeal that arose from a decision of Member Farey. These issues may be regarded as falling within what was referred to as the Middlebrook category. The issues arise out of the provisions of s64 of the Act. The plaintiff also relies on provisions contained in s65 thereof. The provisions are as follows:- "64 Application to Tribunal by landlord for termination and order for possession (1)… (2) The Tribunal, on application by a landlord under this section, is to make an order terminating the agreement if it is satisfied: (a) in the case of a notice given by a landlord on a ground referred to in section 56 or 61 - that the landlord has established the ground, or (b) in the case of a notice given by a landlord on the ground referred to in section 57, relating to a breach of the agreement: (i) that the landlord has established the ground, and (ii) that the breach, in the circumstances of the case, is such as to justify termination of the agreement, or (c) in any other case (except in the case of a notice given by a landlord on a ground referred to in section 63B, 63F or 63I): (i) that the tenant has seriously or persistently breached the agreement, or (ii) that, having considered the circumstances of the case, it is appropriate to do so. (2A) The Tribunal, on application under this section by a landlord under a social housing tenancy agreement, is to make an order terminating the agreement ( the existing agreement ) if it is satisfied: (a) in the case of a notice given on a ground referred to in section 63B - that the landlord has determined, as the result of an assessment carried out under section 63C, that the tenant is not eligible to reside in the class of social housing premises to which the agreement applies, or (b) in the case of a notice given on a ground referred to in section 63F: (i) that the landlord has offered to enter into a new social housing tenancy agreement with the tenant in respect of alternative premises to the premises the subject of the existing agreement, and (ii) that alternative premises (which may or may not be the same as the alternative premises in connection with which the notice was given) are available for occupation by the tenant. (2B) In deciding whether or not to make an order under subsection (2A) (a), the Tribunal is not to review the eligibility of the tenant to reside in the class of social housing premises to which the agreement applies. (2C) In deciding whether or not to make an order under subsection (2A) (b), the Tribunal is not to review the landlord's reasons for making the offer concerned. (2D) The Tribunal is, on application by the New South Wales Land and Housing Corporation on a ground referred to in section 63I, to make an order terminating the agreement if: (a) in the case of the ground referred to in section 63I (1) (a): (i) the Corporation has requested, in accordance with section 35A, that the tenant enter into an acceptable behaviour agreement, and (ii) the Tribunal is satisfied that the tenant has failed or refused to do so, or (b) in the case of the ground referred to in section 63I (1) (b): (i) the Tribunal is satisfied that the tenant has entered into an acceptable behaviour agreement, and (ii) the tenant has failed to satisfy the Tribunal that the tenant has not seriously or persistently breached the terms of that agreement. (3) Except as provided by section 66, the Tribunal shall not make an order terminating a residential tenancy agreement under this section unless it is satisfied that notice of termination was given and that it was given in accordance with this Part. (3A) The Tribunal is not to make an order terminating a social housing tenancy agreement on the ground referred to in section 63B or 63F unless it is satisfied that: (a) except as provided by section 66, any notice required to be given under section 63D or 63G before giving notice of termination was given and that it was given in accordance with that section, and (b) any review required to be carried out under section 63D or 63G was carried out and that it was carried out in accordance with that section. (4) Without limiting the obligations of the Tribunal under subsection (2) (b) or (c), in considering the circumstances of a case concerning social housing premises under that provision, the Tribunal, in addition to having regard to the circumstances of the tenant and other circumstances of the case, is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the residential tenancy agreement was a serious one (and, in particular, whether it was one to which subsection (6) applies), and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned. 65 Suspension or refusal of orders for termination (1) The Tribunal may suspend the operation of an order for possession of residential premises (other than premises which are part of the landlord's principal place of residence) for a specified period 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 the tenant by the suspension. (1A) The Tribunal may, as a condition of the suspension of the operation of an order for possession, require the tenant to pay to the landlord an occupation fee specified by the Tribunal for the period for which the order for possession is suspended. (2) Notwithstanding section 64, the Tribunal may refuse to make an order terminating an agreement and an order for possession under that section if it is satisfied: (a) that the landlord was wholly or partly motivated to give notice of termination by the fact that: (i) the tenant had applied or proposed to apply to the Tribunal for an order, (ii) the tenant had complained to a governmental authority or had taken some other action to secure or enforce his or her rights as a tenant, or (iii) an order of the Tribunal was in force in relation to the landlord and the tenant, (b) that in the case of a notice given by the landlord on the ground of a breach of the residential tenancy agreement by the tenant - the tenant has remedied the breach, or (c) that in the case of a notice given by the landlord on the ground that the landlord has entered into a contract for the sale of the residential premises - the sale is not proceeding." 16 In this case, it is not suggested that subs (3) of s64 has application. Also, it is not suggested that the Tribunal failed to be satisfied that the landlord had established the ground (breach of agreement). 17 I have carefully read both the ex-tempore reasons and the subsequent written reasons. This reading has led me to the view that the Tribunal has failed to make requisite findings in respect of other matters. It has failed to make a finding as required by s64(2)(b)(ii). It has failed to do what was required by s64(2)(c). Accordingly, grounds falling within the Middlebrook category have been made out. 18 In these circumstances, it is inevitable that the plaintiff is entitled to relief pursuant to s67. Such relief entitles the plaintiff to have the decisions set aside but only for the purposes of dealing with the matters that have not been addressed by the Tribunal. 19 In these circumstances, it is unnecessary to dwell on submissions made in respect of s65 of the Act. However, I observe that what was said in relation to subs (1) is no longer pressed. Further, I observe that what is expressed in subs (2) is not mandatory and that no application was made by the plaintiff to the Tribunal to address the matters set forth therein. 20 A challenge was also made to the finding of breach made by the Tribunal. It was said that there was error in the construction of "permit". The alleged error was said to be that the Tribunal Member erred in taking the view that she only had to satisfy herself that the plaintiff was aware of the manufacture of the illicit substances on the premises. The plaintiff argues that more than just awareness must be shown. 21 In my view, this submission is doomed to failure for a number of reasons. For present purposes, I have put to one side the question of whether or not the parties elected to fight on the issue of awareness alone. 22 If what is contended by the plaintiff is the proper construction of the word, I consider that the Tribunal Member effectively dealt with that matter. 23 In the written reasons, the Tribunal Member observed as follows:- "I make the finding that the Respondent was, at all times aware of the illegal activities taking place on the premises and that he failed to take any steps to put an end to the said activities." 24 In any event, there was abundant evidence before the Tribunal to satisfy both elements (if that had to be done). In my view, a finding of breach on both elements was reasonably open on the evidence. 25 The first defendant also draws the attention of the Court to the provisions of ss23(2) and 30 of the Act. What flows from these provisions was not the subject of full argument. However, these provisions may well provide a further answer to the challenge made by the plaintiff. 26 A challenge was also mounted concerning the onus of proof applied by the tribunal Member. She correctly applied the civil onus (on the balance of probabilities). It was argued that because proof of the first defendant's case involved criminal conduct, what was said in Briginshaw v Briginshaw (1938) 60 CLR 336 had application. As would follow from what has been earlier said, whether or not that be the case, the Tribunal Member had before her evidence that would satisfy such an approach. 27 It also follows from what has been earlier said, that I reject any submission that there was no evidence to support the findings made by the Tribunal Member. I should also add that I am not persuaded that such a challenge falls within the narrow ambit provided by s67 of the CTTT Act. 28 Argument was also propounded to the effect that there had been error in the exercise of discretion pursuant to s64. In the light of what has been said in respect of the Middlebrook category, questions of exercise of discretion do not arise. However, I should also add my reservation as to whether or not any such error falls within the narrow ambit of s67 of the CTTT Act. 29 There remains the allegations of denial of procedural fairness. Leaving aside statutory considerations, this concept is regarded as being a flexible one. The Court looks to the circumstances of the particular case before it and decides whether or not there has been the requisite standard of fairness. One consideration is whether or not a party has been given a reasonable opportunity to present his or her case. 30 In the present case, the plaintiff looks to certain statutory provisions (ss28(4), 35 and 36(6)) of the CTTT Act. Alleged breaches of these provisions are said to found denial of procedural fairness. In my view, ss 28 and 36 were not intended to serve such a function. 31 Section 28(4) is a provision that forms part of the section that deals with the general procedure to be followed by the Tribunal. The statute is silent as to the consequences of non-performance thereof. The provision requires the Tribunal to take such measures as are reasonably practicable to ensure that parties understand what is specified therein. Paragraphs 36 and 37 of the written submissions relied on by the plaintiff set forth certain matters in respect of which it said that there were breaches of this provision. As a general comment, I observe that what is set forth in those paragraphs seems to me to fall within the realm of the unrealistic (as opposed to reasonably practicable). Further, I do not consider that the alleged matters fall within the scope of the provision (it is a provision concerned to ensure understanding by parties of the nature of the proceedings before the Tribunal and its procedures). In any event, in the circumstances of this case, I am not persuaded that the matters give rise to a denial of procedural fairness. 32 Section 35 is a provision that expresses that the Tribunal must ensure that each party is given a reasonable opportunity in respect of the presentation of evidence and submissions. I have carefully read the transcript. In the circumstances of this particular case, I am not satisfied that the plaintiff did not have a reasonable opportunity to present his case. 33 Section 36 deals with representation of parties. The general rule is that a party is not entitled to be represented by any person except as provided in the section. The section enables a party to make application to the Tribunal for permission to be represented by a person. Section 36(6) creates a special category and has application when the requirements of the provision are met. It has application where there is a "special class of person" (as defined therein), an opinion is formed by the Tribunal and consent is forthcoming from that person. 34 In the present case, leaving other matters aside, there was a lack of evidence to demonstrate that the plaintiff fell within the requisite special class. The Member made express reference to the lack of material concerning incapacity of the plaintiff. No consent was forthcoming from the plaintiff. Indeed, no application for representation was made by the plaintiff to the Tribunal. Accordingly, the situation did not arise for a forming of an opinion by the Tribunal. 35 In the circumstances of this particular case, I am not satisfied that the plaintiff was denied procedural fairness. 36 Accordingly, I am not satisfied that the finding of breach of the agreement made by the Tribunal should be disturbed. However, I set aside the decisions of the Tribunal so that other matters can be dealt with according to law. I remit the proceedings back to the Tribunal for that limited purpose. 37 There is dispute as to what order for costs should be made in this appeal. In the particular circumstances of this case, I consider that justice is best served if the costs of the appeal follow the event before the Tribunal. 38 The exhibits may be returned. **********

Scicluna v New South Wales Land and Housing Corporation & Anor

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