Scicluna v NSW Land and Housing Corporation

(1) Grant leave to appeal. (2) Appeal upheld with costs. DECISION: (3) Set aside the orders of Harrison AsJ made 20 June 2008. (4) Order respondent to pay costs of the appellant of the proceedings determined by Harrison AsJ. (5) Set aside the orders of the Tribunal made 21 December 2007. (6) Remit the matter to the Tribunal to be reheard and decided in accordance with law.

CATCHWORDS: APPEALS - Right to appeal from decision of Consumer, Trader and Tenancy Tribunal - whether Tribunal has decided question with respect to a matter of law - role of s 75A of the Supreme Court Act 1970 (NSW) in respect of an appeal on a question of law - whether scope and operation of s 75A limited or excluded by s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) - whether s 67 permits Court of Appeal to determine present case or remit matter to Tribunal - whether Court of Appeal can make orders about constitution of Tribunal -Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ss 11, 67 - Supreme court Act 1970 (NSW) s 75A - CONSUMER, TRADER AND TENANCY TRIBUNAL - Nature of power conferred on Tribunal to make order terminating residential tenancy agreement - statutory criteria needed to be satisfied to engage power - matters which Tribunal can consider in addressing statutory criteria - circumstances of tenant and other circumstances of case - Residential Tenancies Act 1987 (NSW) s 64 - RESIDENTIAL TENANCIES - Order of Tribunal terminating residential tenancy agreement - whether tenant breached agreement by permitting premises to be used for manufacture and sale of illegal drugs - where tenant blind - where tenant occupies social housing premises - Residential Tenancies Act 1987 (NSW) ss 23, 57, 64 - STATUTORY INTERPRETATION - whether scope and operation of s 75A of the Supreme Court Act 1970 (NSW) limited or excluded by s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) - "has effect subject to any Act" - Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) s 67 - Supreme court Act 1970 (NSW) s 75A - WORDS AND PHRASES - "appeal" - "effect subject to any act" - "matter of law"

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) Administrative Decisions Tribunal Act 1997 (NSW) s 119 Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) s 11, s 67 LEGISLATION CITED: Corporations Act 2001 (Cth) s 1321 Land and Environment Court Act 1979 (NSW) s 57 Residential Tenancies Act 1987 s 23, s 53, s 57, s 64 Supreme Court Act 1970 (NSW) s 75A Taxation Administration Act 1996 (NSW) s 101

Affinity Health Limited v Chief Commissioner of State Revenue [2005] NSWSC 663 Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244; 133 FCR 290 Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150 B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; 76 ALD 321; 38 AAR 55 Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; 155 LGERA 52 Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Costa v Public Trustee of New South Wales [2008] NSWCA 223 Golden Harvest (Aust) Pty Ltd v Paing Pty Ltd [2004] NSWCA 85 Grygiel v Baine [2005] NSWCA 218 Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 248 ALR 456 Re Jay-O-Bees Pty Ltd (in liq); Rosseau Pty Ltd (in liq) v Jay-O-Bees Pty Ltd (in liq) [2004] NSWSC 818; 50 ACSR 565 Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 Loudoun-Shand v Jadasi Investments Pty Ltd [2007] NSWCA 316; 13 BPR 24,855 CASES CITED: Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78; 51 NSWLR 673 Middlebrook v NSW Land & Housing Corporation [2005] NSWSC 673 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 NSW Land & Housing Corporation v Scicluna (Tenancy) [2007] NSWCTTT 759 Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 Residential Tenancies Act 1987 (NSW) s 64(2) Roads and Traffic Authority v Swain (1997) 41 NSWLR 452 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Victoria) [2001] HCA 49; 207 CLR 72 Scicluna v NSW Land and Housing Corporation [2007] NSWSC 385 Scicluna v NSW Land and Housing Corp [2008] NSWSC 607 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 156 LGERA 150 TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) [1988] FCA 119; 19 ATR 1067; 82 ALR 175

John SCICLUNA (Applicant/Appellant) PARTIES: NEW SOUTH WALES LAND AND HOUSING CORPORATION (First Opponent/First Respondent) CONSUMER, TRADER AND TENANCY TRIBUNAL (Second Opponent/Second Respondent)

COUNSEL: J NEEDHAM SC/ N EASTMAN (Applicant/Appellant) C JACKSON (Opponents/Respondents)

SOLICITORS: Legal Aid Commission of NSW (Applicant/Appellant) NSW Land and Housing Corporation (First Opponent/First Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT MEDIUM NEUTRAL CITATION: Scicluna v NSW Land and Housing Corp [2008] NSWSC 607

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40238/08 SC 30014/08

HODGSON JA BASTEN JA CAMPBELL JA

29 OCTOBER 2008 John SCICLUNA v NEW SOUTH WALES LAND AND HOUSING CORPORATION Judgment 1 HODGSON JA: I agree with Campbell JA, and with pars [2]-[19] and [35]-[38] of the judgment of Basten JA. I agree that the appropriate order in this case is that the matter be remitted to the Tribunal, but express no concluded view as to the extent of this Court's power to deal with the matter in any other way. 2 BASTEN JA: The applicant, Mr Scicluna, seeks leave to appeal from a judgment in the Common Law Division with respect to an order of the Consumer, Trader and Tenancy Tribunal ("the Tribunal") terminating a residential tenancy agreement by which he leased premises provided by the respondent: Scicluna v NSW Land and Housing Corp [2008] NSWSC 607. The legal, factual and procedural circumstances relevant to this application have been fully set out by Campbell JA. I agree with the orders his Honour proposes.

Nature of appeal 3 A right to appeal is conferred on a dissatisfied party to proceedings before the Tribunal, to the extent that the Tribunal "decides a question with respect to a matter of law": Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act"), s 67(1). Authority in this Court has consistently held that it is not necessary for the matter of law to be separately identified by the Tribunal and expressly addressed as such: it is sufficient that the decision of the Tribunal requires the identification and determination of a question with respect to a relevant matter of law and that error is alleged with respect to that aspect of the decision: see, in addition to the authorities referred to at [42] below, Grygiel v Baine [2005] NSWCA 218 at [29]. Nevertheless, where the Tribunal does not expressly identify and address such a question, it must be identified by the applicant for the purposes of the appeal. The Court received limited assistance in that respect. 4 Similar concerns have long been ventilated in the Federal Court in relation to appeals under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). In TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) [1988] FCA 119; 19 ATR 1067 at 1070; 82 ALR 175 at 178, Gummow J said that "[t]he existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself…". That view has been repeated by the Full Court: see, eg, Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; 76 ALD 321; 38 AAR 55 at [11], [16] (Branson and Stone JJ); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244; 133 FCR 290 at [42]-[47] (Branson J) and [107] (Jacobson and Bennett JJ); Hussain v Minister for Foreign Affairs [2008] FCAFC 128;248 ALR 456, at [29]-[35] (Weinberg, Bennett and Edmonds JJ). Unlike the Federal Court, there is no rule in this Court requiring that the notice of appeal expressly identify the relevant questions of law: cf Federal Court Rules, Order 53, r 3(2). Nevertheless, given the terms of the CTTT Act, an appellant who fails to take that step is at peril. 5 The questions which the Tribunal needed to identify and address included the following:

(a) what was the nature of the power conferred on the Tribunal?

(b) what statutory criteria needed to be satisfied in order to engage the power?

(c) what matters could and must the Tribunal consider in addressing the statutory criteria? 6 The answer to the first question was that the power conferred on the Tribunal was to make an order terminating a residential tenancy agreement if it were satisfied as to the statutory criteria: it was not a discretionary power but a matter of statutory obligation, once an evaluative opinion had been formed. 7 This is the second time that a decision of the Tribunal as presently constituted, in relation to the applicant, has been in the Common Law Division. On the first occasion it was dealt with by Malpass AsJ, who referred in the course of his reasoning to his earlier decision in Middlebrook v NSW Land & Housing Corporation [2005] NSWSC 673: see Scicluna v NSW Land and Housing Corporation [2007] NSWSC 385 at [15] and [17] . In Middlebrook his Honour identified the Tribunal's power under s 64(2) of the Residential Tenancies Act 1987 (NSW) as one by which "the Tribunal is prohibited from making an order terminating the agreement … unless it is satisfied that the notice of termination was given and that it was given in accordance with Pt 5": at [32], also cited by Harrison AsJ in the present case: [2008] NSWSC 607 at [18]. This restatement of s 64(2) is apt to mislead: the section is not formulated in terms of a prohibition, but an obligation. Were it formulated as a prohibition, the power might yet have been discretionary. While the precondition to exercise the power might be described as discretionary, the power, once engaged, is not. 8 If the Tribunal member had revisited Middlebrook, she might have been misled by the passage set out above. However, there was no reference to Middlebrook in her reasons of 21 December 2007: NSW Land & Housing Corporation v Scicluna (Tenancy) [2007] NSWCTTT 759. Although the first question identified above was not expressly addressed, after reaching a state of satisfaction as to the relevant considerations, she concluded, "I cannot but order that the tenancy agreement is terminated …". This language, if it stood alone, would be consistent with an understanding that the Tribunal was exercising an obligatory power. However, as will be noted below, it did not stand alone. 9 The answer to the second question required reference to the following elements:

(a) identify the basis on which the notice was given by the landlord;

(b) in the case of a notice under s 57, identify the ground relied upon;

(c) consider whether the landlord has established the ground;

(d) if satisfied that the landlord has established the ground, consider whether the breach, in the circumstances of the case, is such as to justify termination of the agreement, and

(e) if so satisfied, make an order terminating the agreement. 10 Each of these steps is derived from the terms of s 64(2)(b), which is the relevant provision with respect to a notice given under s 57 for breach of the agreement, which was the basis of the notice given in the present case. Section 64(2)(c) was not a relevant provision. In identifying the statutory criteria the Tribunal correctly referred to s 64(2)(b)(ii), but incorrectly added a reference to s 64(2)(c). It seems likely that the Tribunal did so because, in the earlier decision in relation to this applicant, Malpass AsJ also erroneously noted that the Tribunal had "failed to do what was required by s 64(2)(c)": at [17]. 11 It is unlikely that this error was material: the requirements of the first limb of par (c) were more demanding than the first limb of (b), in that the Tribunal had to be satisfied that there had been serious or persistent breach of the agreement, and not merely a breach. The requirements to consider "the circumstances of the case" in the second limb of each paragraph were in materially similar terms. 12 The answer to the third question is that the Tribunal must have regard to:

(b) whether the breach was serious and whether the behaviour or likely behaviour of the tenant would subject or continue to subject neighbours or other persons or property to unreasonable risk in the event of failure to terminate;

(c) any serious adverse effects "the tenancy" has had on neighbours or other persons;

(d) the landlord's responsibility to its other tenants;

(e) whether there has been breach of an order of the Tribunal, and

(f) the history of the tenancy. 13 Each of these considerations might have been mandatory considerations as a matter of implication from the terms of s 64(2); that conclusion is made explicit by s 64(4) in relation to "social housing premises", which include those provided by the New South Wales Land and Housing Corporation (the respondent). Further in relation to social housing premises, the Tribunal should take into account the fact that an order for possession should be made to take effect immediately in the case of a breach of the agreement involving the use of the premises for the manufacture or sale of a prohibited drug, unless the Tribunal considers such an order would be unjust: s 64(6). This provision indicates the degree of seriousness attached by the legislature to such behaviour.

The Tribunal's reasons 14 As the Full Court of the Federal Court said, in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ), albeit in a case concerned with judicial review, "[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". This language was repeated with approval by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ). 15 Bearing this approach in mind, it is reasonably clear that the Tribunal gave consideration to the nature and seriousness of the offence. After concluding that the applicant had permitted the premises to be used for the manufacture or sale of a prohibited drug, the Tribunal continued: "I find that the [applicant] allowed another person or persons to occupy the premises and that at all times he was 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. I find that the [applicant] consented to the manufacture and sale of illicit substances by that other person or persons. The breach is not one of the cultivation or possession of a small amount of marijuana for personal use, which may not be sufficient to bring the agreement to an end. This breach involves the manufacture and sale of a quantity of dangerous illegal drugs. In my view this is precisely the sort of activity contemplated by s 23 [of the Residential Tenancies Act ]." 16 The Tribunal's reasoning in this respect was to the same effect as that contained in her earlier decision of 17 October 2006: NSW Land and Housing Corporation v Scicluna (Tenancy) [2006] NSWCTTT 605. However, that decision had been set aside by Malpass AsJ because of a failure to take account of what were, somewhat elliptically, referred to as "other matters": see [2007] NSWSC 385 at [17] and [36]. In an apparent response to that finding, immediately following the passage set out above, the Tribunal continued in the terms set out by Campbell JA at [55]. 17 The structure of that reasoning is troubling in four respects. First, it appears to reach a conclusion that the tenancy agreement must be terminated before considering the other circumstances which should have been taken into account in determining that question. Secondly, there is reference to the decision of this Court in Roads and Traffic Authority v Swain (1997) 41 NSWLR 452, as requiring that the Tribunal take into account "any special circumstances" relating to the tenant, language which is not found in that judgment. Thirdly, these circumstances were, the Tribunal considered, to be taken into account in the exercise of a discretion "to set aside the termination", the Tribunal having otherwise terminated the tenancy. Fourthly, the Tribunal member first ordered that vacant possession be given on 26 September 2006, a date which not only predated the current decision by some 15 months, but actually predated the earlier decision in which the date was first contained. She then purported to "amend" the date for vacant possession. 18 The last concern might be treated as trivial, except that it demonstrates a lack of clarity as to the exercise being undertaken. In relation to the second concern, the reference to "special circumstances" is curious because, although it appears in the context of reference to Swain, as Campbell JA notes, it is not the language of the section considered in Swain, nor was it language adopted by the Court in that connection. It may be that the Tribunal used that phrase merely to identify circumstances particular to the applicant. On the other hand, the only circumstance which was treated as capable of being special was the applicant's blindness. It would therefore appear that the Tribunal had identified the relevant circumstances in a way which was too restrictive to be in accordance with the language of s 64(2)(b) and (4). 19 The first and third concerns raised by this passage are more troubling. By a process of reasoning which is not articulated, the Tribunal appears to have come to the conclusion that the other circumstances were to be taken into account in the exercise of a discretion to set aside a decision which had already been made. Perhaps what was intended was a construction of the section which required the Tribunal to consider first whether the nature of the breach of the agreement was in itself sufficient to warrant an order terminating the agreement and then, if so satisfied, to consider discretionary considerations which might lead it not to terminate the agreement. However, even that beneficial reading demonstrates legal error because, like the language of "special circumstances", it imposes on the tenant the obligation to justify the dismissal of the proceedings without an order terminating the agreement. That is not consistent with the language of s 64(2), which requires the Tribunal to make an order terminating the agreement if satisfied that the breach, in the circumstances of the case, is such as to justify termination. In substance, this means that the Tribunal erroneously answered the first question identified above, as to the nature of its power. That reasoning preceded, and must be taken to have infected and perhaps given rise to, the final conclusion that a termination order was compelled.

Consequences of legal error 20 The next question is whether the erroneous answer, constructively identified by reference to a question of law, requires that the matter be remitted to the Tribunal for further consideration and determination according to law. In the course of submissions, it was contended that such an order was not necessary and that the power existed in this Court under s 75A of the Supreme Court Act 1970 (NSW) to consider the material before the Tribunal and reach its own conclusion as to the appropriate order. 21 That submission raises a large question as to the role of s 75A in respect of an appeal on a question of law. Section 75A has a number of inter-related functions. Where it operates, it defines the appeal as one "by way of rehearing": s 75A(5). Consistent with the general connotations of that classification, the Court has power to receive further evidence, but, except in respect of evidence concerning matters occurring after the hearing, it can only do so on special grounds: s 75A(7)-(9). With respect to its powers on a rehearing, the section further provides: "(6) The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning: (a) amendment, (b) the drawing of inferences and the making of findings of fact, and (c) the assessment of damages and other money sums. … (10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires" 22 Section 75A, however, is not a section of general application. It does not apply to appeals from jury trials: s 75A(2). Otherwise, the section "has effect subject to any Act": s 75A(4). That express limitation raises the question whether the scope and operation of s 75A is limited or excluded by the terms of s 67 of the CTTT Act. 23 Where an appeal is limited to a decision on a question of law, the powers required on a rehearing are inappropriate. Accordingly, a right of appeal limited by the terms of s 67, would seem to displace the operation of s 75A: see Loudoun-Shand v Jadasi Investments Pty Ltd [2007] NSWCA 316; 13 BPR 24,855 at [50], in relation to s 73 of the Local Courts Act 1982 (NSW). Nevertheless, two questions remain: first, is the displacement complete, or can s 75A be displaced in part? Secondly, even if the displacement is complete, can a power for this Court to substitute its own findings be located in s 67 itself? 24 With respect to the first question, it is necessary to start from the proposition that a statutory conferral of judicial power should not be read down by reference to implied limitations: see Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421 and see Costa v Public Trustee of New South Wales [2008] NSWCA 223 at [57]. Nevertheless, that approach does not permit the Court to ignore the express subjugation of s 75A to any other statutory provision. Nor should the Court arrogate to itself a power to make findings of fact and draw inferences, if those functions have, in a particular context, been expressly vested in a tribunal, subject only to correction for jurisdictional error (s 65) and an erroneous decision on a question with respect to a matter of law (s 67). If the CTTT Act does not itself permit this Court to make findings of fact and draw inferences, then it follows that such powers in s 75A, together with consequential powers to hear further evidence and to make appropriate orders, are inapplicable. The appropriate conclusion is that, pursuant to s 75A(4), that section has no operation or effect. 25 That is not to say that there may not be circumstances in which the Court can make orders which the Tribunal should have made. If, for example, the Tribunal has addressed all relevant matters and made findings favouring a particular order, but has declined to make the order because it erroneously thought its power was discretionary, or because it took into account the absence of an additional factor, which was legally not relevant, then this Court might either direct the Tribunal to make the appropriate order, or make it itself: see, in relation to judicial review proceedings, Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 579 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) and 598-600 (Kirby J); Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at [41]-[42] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) and [82] (Kirby J agreeing), reinstating the order made by French J directing the outcome in the Refugee Review Tribunal. Nevertheless, the relevant preconditions are not met in the present case. 26 In Guo, more extensive reasons were provided in the judgment of Kirby J for treating the approach of a court exercising powers of judicial review as limited to correcting legal error. At 598-599, his Honour stated: "Had legal error of the kind found been established, the proper course would have been to remit the proceedings for redetermination by the Tribunal consistently with the Federal Court's elucidation of the law. The provision of a declaration such as the Full Court felt entitled to make was, at the least, not appropriate. The powers of the Federal Court are expressed in very broad terms in the Administrative Decisions (Judicial Review) Act (s 16). It would be undesirable to give the broad mandate there stated a narrow construction. However, it is important to distinguish the procedure of judicial review from that of an appeal where, typically, a court enjoys larger powers. … Whereas on appeal a court will often enjoy the power and responsibility of substituting its decision for that under appeal, judicial review is designed, fundamentally, to uphold the lawfulness, fairness and reasonableness (rationality) of the process under review. It is thus ordinarily an adjunct to, and not a substitution for, the decision of the relevant administrator. This is why, as Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [[1986] HCA 40; 162 CLR 24 at 40]: 'It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.' No course would be more likely to undermine the legitimacy and acceptability of judicial review than a usurpation by the courts, where this is not warranted, of the ultimate functions committed by law to the decision-maker." 27 The reference in those remarks to an appeal where, typically, a court enjoys larger powers, may be understood as referring to an appeal by way of rehearing, or even an appeal in the strict sense, but not an appeal limited to a question of law. Where such an "appeal" can be brought from an administrative tribunal, it may be said that "the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review": see Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Victoria) [2001] HCA 49; 207 CLR 72 at [15] (Gaudron, Gummow, Hayne and Callinan JJ) in relation to an appeal limited to a question of law, provided by the Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(1). Thus, although each statutory provision should properly be understood in its own context, as the joint judgment in Roy Morgan recognised, there is a degree of similarity between such a limited "appeal" from an administrative tribunal and judicial review. 28 There is an issue as to whether the restricted approach is consistent with dicta in this Court in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 156 LGERA 150. That case involved a question as to whether, having found error on the part of the Land and Environment Court in making an order with respect to costs, this Court could dispose of the matter by making the order it thought appropriate. The comments were obiter for present purposes, because, as Spigelman CJ noted, "no question of making any findings of fact arises": at [89] and [104] (Mason P, Beazley, Giles and Ipp JJA agreeing). The limited nature of the Court's conclusion (expressly addressed by Giles JA at [150]-[152]) was also noted in B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [71]-[72] (Allsop P, Giles JA agreeing). In particular the President noted that the statements of the Chief Justice in Thaina Town with respect to the operation of s 75A were not part of his Honour's reasoning: at [73]. The Chief Justice noted in Thaina Town that the operation of s 75A was invoked by counsel for the appellants in both appeals and apparently not challenged: at [94]. Nevertheless, significantly for the argument set out above, after referring to the plenitude of power conferred on the Court generally by s 23 of the Supreme Court Act, his Honour continued at [97]: "Nor can the words 'subject to any Act' be found to be satisfied save by clear statutory provision to that effect." 29 As was noted in Thaina Town itself a different approach had been adopted in Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78; 51 NSWLR 673, though without reference to s 75A of the Supreme Court Act. Other cases in which a different view had been taken prior to Thaina Town and by express reference to s 75A(4), included Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [7]-[8] (Bryson JA, Santow JA agreeing) in relation to s 67 of the CTTT Act; Golden Harvest (Aust) Pty Ltd v Paing Pty Ltd [2004] NSWCA 85 at [57] (Bryson JA, Beazley and Ipp JJA agreeing) in relation to s 119 of the Administrative Decisions Tribunal Act 1997 (NSW); Affinity Health Limited v Chief Commissioner of State Revenue [2005] NSWSC 663 at [54] (Gzell J), in relation to s 101 of the Taxation Administration Act 1996 (NSW) Re Jay-O-Bees Pty Ltd (in liq); Rosseau Pty Ltd (in liq) v Jay-O-Bees Pty Ltd (in liq) [2004] NSWSC 818; 50 ACSR 565, at [46]-[49] (Campbell J) in relation to s 1321 of the Corporations Act 2001 (Cth). 30 Since Thaina Town, the application of s 75A has been addressed in Loudoun-Shand (above at [23]) and in B & L Linings at [75] (Allsop P) and [144]-[150]. 31 However, the making of a discretionary order, based on facts which have been fully found, may not in any event be inconsistent with the power conferred by s 57 of the Land and Environment Court Act 1979 (NSW) discussed in Thaina Town. That gives rise immediately to the second question noted above, namely whether s 67 of the CTTT Act would permit this Court to determine the present case for itself. 32 The answer to the second question depends upon the construction of s 67(3): "(3) After deciding the question the subject of such an appeal, the Supreme Court may, unless it affirms the decision of the Tribunal on the question: (a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or (b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal." 33 On the authority of Thaina Town, this provision would permit the Supreme Court to make an appropriate order in the exercise of a discretionary power, and would also permit the Court to make an order in the circumstances referred to above at [25], where the preconditions to the exercise of the power had been satisfied and only one result is open. Nevertheless, the language is not consistent with a power in the Supreme Court to make findings of fact, draw inferences or otherwise take steps which would be appropriate on an appeal by way of rehearing. It is at least implicit in the terms of par (b) that any rehearing will be conducted by the Tribunal itself. That conclusion is also consistent with the apparent purpose of s 65 of the CTTT Act, which is to limit the relief which might have been available in the nature of prerogative relief, declaratory judgments or orders and injunctions, to circumstances of jurisdictional error or denial of procedural fairness. 34 On the basis that the Tribunal member misconstrued the statutory conferral of jurisdiction, the result was a failure to consider all the relevant considerations, make appropriate findings of fact and draw the necessary inferences. In those circumstances, it is not open to this Court to reach its own conclusion with respect to the proper order to be made under the Residential Tenancies Act. It follows that the matter must be remitted to the Tribunal for reconsideration.

Constitution of Tribunal on remitter 35 In terms of the appropriate orders, if the Court were persuaded to remit the matter, the parties joined in inviting this Court to require that it be heard by a differently constituted Tribunal. No order in those terms should be made. 36 The power to constitute the Tribunal for the purpose of particular proceedings is vested in the Chairperson: CTTT Act, s 11(2). This was not a case of judicial review where the Court had power to give directions to the Tribunal: cf Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 at [60]-[62] (Gummow and Hayne JJ). Unless it is necessary, as a matter of law, that the Tribunal will need to be reconstituted, it would be at least inappropriate for this Court to direct the Chairperson as to the manner in which he or she should exercise the statutory power. The power conferred by s 67(3), where the Court does not affirm the decision of the Tribunal, is to make such order in relation to the proceedings as should have been made by the Tribunal, that is, in respect of the substantive issue before it, or to remit the decision on the question "to the Tribunal" and order a rehearing "by the Tribunal". 37 It may be inappropriate for the same member to constitute the Tribunal because it may appear that she has formed a firm view as to the proper outcome of the proceedings without considering all relevant matters in an appropriate way, and has made findings as to the truthfulness of the applicant: see Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256 at 269. The general approach adopted in this Court, assuming a relevant power, may be perceived in the discussion in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 at [12]-[14] (Mason P), [142] (Ipp JA), and by me at [235]-[239]; and Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; 155 LGERA 52 at [70]-[84] (Tobias JA, Bell J agreeing). In the latter case, the power of this Court to give an appropriate direction was not in dispute. 38 In the present case, no relevant power has been identified, permitting such an order. The fact that the parties are in agreement that such an order should be made does not assist. No such order is shown to be necessary. 39 CAMPBELL JA: This is the concurrent hearing of an application for leave to appeal, and appeal, from a judgment of Harrison AsJ: Scicluna v NSW Land and Housing Corporation [2008] NSWSC 607. It raises a question concerning the construction of section 64 Residential Tenancies Act 1987 ("RT Act"). 40 The proceedings before Harrison AsJ were themselves an appeal under section 67(1) Consumer, Trader and Tenancy Tribunal Act 2001 ("CTTT Act") from a decision of the Consumer, Trader and Tenancy Tribunal. 41 Section 67 provides, so far as is relevant: "(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision. … (3) After deciding the question the subject of such an appeal, the Supreme Court may, unless it affirms the decision of the Tribunal on the question: (a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or (b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal." 42 The limited nature of an appeal under section 67 is discussed in Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150 at [15]-[33]. The right of appeal extends to a situation where a matter of law had to be decided in order to dispose of the proceedings, whether or not it was expressly referred to in the decision: Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [47]; Bahadori at [18]. In the present case the correct construction of section 64 was such a matter of law, which the Tribunal had to come to a view on to be able to perform its task.

The Proceedings in the Tribunal 43 Mr John Scicluna is a blind pensioner. He occupies a three-bedroom house at Guildford on the terms of a residential tenancy agreement that he entered in 2001 with the NSW Land and Housing Corporation. That house is "social housing premises" within the meaning of the RT Act. 44 Under the provisions of section 23(1)(a) RT Act, it was a term of Mr Scicluna's residential tenancy agreement that he: "… shall not use the residential premises, or cause or permit the premises to be used, for any illegal purpose." 45 Section 23(2) RT Act provides: "23 Use of premises by tenant … (2) The tenant under a residential tenancy agreement entered into in respect of social housing premises is taken to have breached a term of the agreement if the tenant, or any person who, although not a tenant, is occupying (or jointly occupying) the residential premises with the consent of the tenant: … (b) uses any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture or sale of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 ." 46 Section 53 RT Act contains an exhaustive list of the circumstances in which a residential tenancy agreement terminates. The only one that is relevant in the circumstances of the present case is: "(a) if the landlord or the tenant gives notice of termination under this Part and: (i) the tenant delivers up vacant possession of the residential premises on or after the day specified in the notice, or (ii) the Tribunal makes an order under section 64 (which relates to applications to the Tribunal by the landlord for termination) terminating the agreement" 47 Section 64(1) RT Act enables a landlord who has given a Notice of Termination of a residential tenancy agreement under Part 5 of that Act to apply to the Tribunal for an order terminating the agreement and an order for possession of the premises if the tenant fails to deliver up vacant possession of the residential premises on the day specified. There was no dispute that the Corporation had given such a notice, and that Mr Scicluna had not delivered up vacant possession of the premises. 48 The Notice of Termination that the Corporation gave was one under section 57 RT Act, in that it was given on the ground that Mr Scicluna had breached a term of the agreement. Section 57 occurs in Part 5 of the Act. The breach relied on was a breach of the term implied by section 23. 49 Section 64(2) RT Act provides: "(2) The Tribunal, on application by a landlord under this section, is to make an order terminating the agreement if it is satisfied: … (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, …" … (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, including, if the tenant is a tenant under a public housing tenancy agreement, any prior tenancy of the tenant arising under any such agreement. (5) If the Tribunal makes an order terminating a residential tenancy agreement under this section, it must make a further order for possession of the residential premises, specifying the day on which the order takes effect. (6) If the residential premises concerned are social housing premises, an order for possession made under this section is to be expressed to take effect immediately if, in the case of a breach of the agreement, the breach: (a) involves the use of the premises, or any property adjoining or adjacent to the premises (including any property available for use by the tenant in common with others), for the purposes of the manufacture or sale of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 , or (b) subjects persons or property to unreasonable risk, unless the Tribunal considers that it would be unjust to do so." 50 The Corporation's application for an order terminating the tenancy was made on 29 May 2006. It came before a member of the Tribunal, Ms Janet Farey. On 12 September 2006 she made an order for termination, requiring possession to be given up on 26 September 2006. She found that there had been a breach of the term implied by section 23 RT Act, in that Mr Scicluna had consented to the premises being used for the manufacture and sale of "a quantity of dangerous illegal drugs". 51 Mr Scicluna appealed against that decision to the Supreme Court. That appeal was determined by Malpass AsJ on 24 April 2007: Scicluna v NSW Land and Housing Corporation [2007] NSWSC 385. He found that the Tribunal had failed to make a finding of the type required by section 64(2)(b)(ii), and it also "failed to do what was required by s 64(2)(c)" (at [17]). I mention that this reference to section 64(2)(c) is mistaken, as section 64(2)(c) does not apply when a landlord relies on a notice given under section 57. However Malpass AsJ's finding concerning failure to comply with section 64(2)(c) does not affect the outcome of this appeal. 52 Malpass AsJ found that there was abundant evidence before the Tribunal to establish that Mr Scicluna was aware of the illegal activities taking place on the premises, and that he failed to take any steps to put an end to the activities. Malpass AsJ rejected a submission that the proceedings in the Tribunal were vitiated by a lack of procedural fairness. However, because of the failures of the Tribunal that he found, he set aside the decisions of the Tribunal, and remitted the proceedings back to the Tribunal so that they could be dealt with according to law. 53 The proceedings were heard in the Tribunal for a second time by Ms Farey on 4 September 2007. She reserved her decision, delivering it on 21 December 2007. Again she found that Mr Scicluna had consented to the manufacture and sale of a quantity of dangerous illegal drugs at the premises, and had thereby breached section 23. 54 The reasoning of Ms Farey included reference to the fact that Mr Scicluna was blind, and stated: "The Respondent gave evidence of the importance in his life of his present carer, Ms Kennerly, her children and his daughter. He says that presently living on the premises are the Respondent and his daughter. The Respondent submits that he requires a three bedroom house to be able to accommodate those persons upon whom he relies upon from time to time to provide him with the physical care which he requires and with social companionship. The Respondent gave evidence as to the affordability of satisfactory accommodation in the private residential market. He stated that a three bedroom house was essential because his daughter was living with him and that his carer and/or her children stayed over-night on some occasions. However, he said that a three bedroom house at commercial rates of rent was beyond his means. Ms Jones told the Tribunal that three bedroom accommodation for the Respondent would be appropriate for him. She stated that persons with the Respondent's disability rely on extra space so as to move around the home without bumping into anything. Having the extra bedrooms meant that his goods and chattels could be spread around throughout the whole premises and could be more easily distinguished and located. Ms Jones also noted that the Respondent was able to move independently around the inside of his home." 55 Ms Farey's reasons for judgment concluded with the following passages: "I am satisfied that the landlord has established the ground of the breach and that the ground is a breach of the residential tenancy agreement, (s.64(2)(b)(ii)) and that in the circumstances justifies the termination of the agreement. (s.64(2)(c)). No substantiation for the assertions that the Respondent should be accommodated in a three bedroom house was put before the Tribunal, nor was it stated why the Respondent could not be accommodated in smaller surroundings. I regard this evidence as incomplete and unsatisfactory. Despite Ms Jones' evidence, I am satisfied on the evidence that the Respondent can be satisfactorily accommodated in other than three bedroom accommodation. In RTA v Swain it was found that the landlord, having terminated the tenancy, failed to take into account the tenants' various special circumstances. I am also required in this case to take into account any special circumstances relating to the Tenant. The Respondent made submissions regarding his special circumstances and I have considered these submissions carefully. The Respondent's blindness could form part of a submission of special circumstances. However, weighing up all of the circumstances as they relate to Respondent, I am not able to find special circumstances such as to entitle me to exercise my discretion to set aside the termination within the meaning of this section. I cannot but order that the tenancy agreement is terminated and that vacant possession be given to the Landlord on 26 September 2006. I hereby amend the date upon which vacant possession is to be given to 15 January 2008."

Harrison AsJ's Decision 56 Mr Scicluna appealed to the Supreme Court again, against that decision of Ms Farey. Harrison AsJ on 20 June 2008 dismissed the appeal, and affirmed the decision of Ms Farey, though the date of termination was varied to 18 July 2008. It is from that decision that Mr Scicluna brings the present appeal. 57 Harrison AsJ took the view that Ms Farey's reference to "special circumstances" occurred after Ms Farey's decision to terminate the tenancy, and did not infect the earlier part of her decision where she exercised her discretion in accordance with section 64(2)(b)(ii).

Decision 58 I do not agree. Explaining why involves a consideration of the judgment of this Court in Roads and Traffic Authority v Swain (1997) 41 NSWLR 452. 59 Swain involved an application by the RTA to terminate a residential tenancy, under provisions of the RT Act that differ somewhat from those involved in the present case. At the time, section 64(2) provided: "The Tribunal shall … make an order terminating the agreement if it is satisfied: (a) In the case of a notice given by the landlord on a ground referred to in section 56, 57 or 61: (i) that the landlord has established the ground, and (ii) if the ground is a breach of the residential tenancy agreement, that the breach, in the circumstances of the case, is such as to justify termination of the agreement, … or (c) that, having considered the circumstances of the case, it is appropriate to do so." 60 Section 69 at that time (as now) enabled a landlord to apply for termination of a tenancy agreement where the landlord would "in the special circumstances of the case, suffer undue hardship if the agreement were not terminated." In Swain the landlord did not assert that the tenant had breached any provision of the tenancy agreement. Instead, it relied on section 58 RT Act, a provision entitling a landlord to give a Notice of Termination without specifying any ground for the termination. When that was the ground on which the landlord sought an order terminating the agreement it was only under section 64(2)(c) that the Tribunal had power, in the circumstances of that case, to make an order terminating the tenancy. 61 Meagher JA (with whom Priestley and Cole JJA agreed) said at 455-456: "The Tribunal is empowered to make the orders sought by the landlord if it is satisfied of certain things, being those things referred to in s64(2). Those things are the factual issues surrounding the particular case. Section 64(2)(a) does not apply if the application to the Tribunal is based on a s58 notice. Section 64(2)(c) applies both to a s58 notice and to a notice based on one of the enumerated grounds in Pt5 of the Act. Section 64(2)(c) requires the Tribunal to consider "the circumstances of the case". The Tribunal can refuse to make an order for termination (even where that order is sought on the basis of a s58 notice) in the very limited circumstances provided for in s65(2) and the Tribunal can postpone the order for termination pursuant to s65(1). The question then becomes what the words "circumstances of the case" mean. They are clear enough; they require regard to be had to the particular case before the Tribunal. If they were intended to be limited to matters of form and time, then s64(3) merely repeats what is said by s64(2)(c). It is difficult to see why the words do not mean what they say. I think it can be fairly stated that the Act is intended to balance the rights of landlords and tenants. The argument urged against accepting Rolfe J's interpretation of s64(2) is that it could be unduly harsh on the landlord. That argument fails as hardship to the landlord is something which the Tribunal must consider as part of the "circumstances of the case". But further, the matter is specifically addressed in s69, which does not seem to have been raised at any stage of the history of the case. That section enables the Tribunal to terminate a tenancy, even in the absence of a breach, simply to avoid hardship to the landlord. Section 69 can, in this way, be seen as the landlord's counterpart to s64(2)(c). If Rolfe J's interpretation were not upheld, then a landlord could plead hardship to obtain an early termination, but the tenant, in circumstances where no breach had occurred could not plead hardship to avoid eviction; the tenant could only rely on s65(1) to postpone eviction or rely on the limited grounds of refusal to make an order which are provided for in s65(2) and which do not include hardship to the tenant." 62 Under the legislation as it now stands, section 64(1) sets out conditions precedent which must be satisfied before a landlord has the standing to apply to the Tribunal for an order terminating a residential tenancy agreement and an order for possession of the premises. Section 64(2)(b) is the only paragraph within section 64(2) which applies in the present case. It requires the Tribunal, first, to consider whether the landlord has established the ground referred to in section 57. The Tribunal must then consider whether the breach, in the circumstances of the case, is such as to justify termination of the agreement. The "circumstances of the case" encompass all aspects of the particular case that is before the Tribunal. In the course of considering the circumstances of the case, where social housing premises are in question, the Tribunal is directed by section 64(4) to have regard to "the circumstances of the tenant and other circumstances of the case", and also to such of the other specific matters listed in section 64(4)(a)-(e) as may be relevant. 63 If the Tribunal is satisfied that the landlord has established the ground, and is also satisfied that the breach, in the circumstances of the case, is such as to justify termination of the agreement, then the Tribunal is required to make an order terminating the agreement. In accordance with section 53, it is only when the Tribunal makes that order that the tenancy terminates. 64 In my view, the reasoning of the Tribunal shows that it has misapprehended the legal tests that it is required to apply. First, it is wrong to say that the Tribunal has a "discretion to set aside the termination" if it finds special circumstances (or indeed, in any circumstances). There is no termination of the tenancy at all until the Tribunal makes an order terminating the agreement. While the landlord might give a Notice of Termination, that the tenant fails to comply with, those circumstances do not of themselves terminate the agreement. All they do, in accordance with section 64(1), is give the landlord the right to apply to the Tribunal for an order terminating the agreement. The Tribunal does not have any "discretion to set aside a termination", when it is applying section 64(2). 65 Second, the circumstances that the Tribunal is required to take into account, in carrying out its task under section 64(2)(b), do not need to be "special circumstances". While the language of section 69 included the expression "special circumstances", and Meagher JA made reference to section 69, the reasons of Meagher JA in Swain nowhere actually mentioned the expression "special circumstances". What was found, in RTA v Swain, was that the Tribunal had not taken into account all of the "circumstances of the case". 66 Third, I have earlier quoted the portion of Ms Farey's reasons where she said: "I am satisfied that the landlord has established the ground of the breach and that the ground is a breach of the residential tenancy agreement, (s.64(2)(b)(ii)) and that in the circumstances justifies the termination of the agreement. (s.64(2)(c))." 67 The references to parts of section 64 that she there gives are incorrect. It is section 64(2)(b)(i) that refers to being satisfied that the landlord has established the ground asserted to be a breach of the tenancy agreement, while it is section 64(2)(b)(ii) that refers to the Tribunal being satisfied that the breach in the circumstances of the case is such as to justify termination of the agreement. 68 In my view, the Tribunal has not applied the correct legal test. That shows that it has made an error with respect to a matter of law. A misapprehension of the correct legal test to apply is the sort of error that is likely to materially affect the decision that the Tribunal has come to. 69 The statement of the correct test is a matter of importance, concerning which it is appropriate to grant leave to appeal. In any event, the granting of leave is not opposed. 70 My conclusions that the Tribunal has not applied the correct legal test and that the error is one likely to materially affect the decision of the Tribunal have the effect that the appeal should be upheld. That then gives rise to a question of what further orders, if any, should be made under section 67(3) CTTT Act. 71 It is not at all clear from the Tribunal's reasoning that it has given consideration to whether the circumstances of the case are such as to justify termination of the agreement. While the Tribunal has said that the proved breach "in the circumstances justifies the termination of the agreement" it was only after making that statement that the Tribunal went on to consider whether there were "special circumstances". That it proceeded in this manner raises a suspicion that the matters stated to be "special circumstances" may not have already been taken into account. 72 As well, there were various circumstances canvassed in evidence or argument before the Tribunal, that are not mentioned in the Tribunal's reasons. The circumstances canvassed included questions concerning the seriousness of the breach, the deliberateness of the breach, the fact that the police had not seen fit to lay charges, a submission about the unlikelihood of repetition of the breach, evidence concerning the income, expenses, and other financial circumstances of Mr Scicluna, the unlikelihood of his being rehoused in public housing if his tenancy was terminated, the cost of alternative accommodation on the open market, medical problems that Mr Scicluna had in addition to his blindness, and some assertions about his connections with the local area. I accept that it is not necessary for every circumstance taken into account by a body such as the Tribunal to be expressly mentioned in its reasons, and also do not suggest that reasonable minds could come to only one conclusion about whether the tenancy should be terminated, taking into account all the circumstances of the case. In the circumstances, it seems to me that the preferable course is to remit the matter to the Tribunal for rehearing. 73 The parties have agreed that in the event that the matter is remitted to the Tribunal, it would be appropriate for it to be decided by a different member of the Tribunal. I agree that it would be clearer that justice was seen to be being done if the matter was dealt with by a different member of the Tribunal.

(3) Set aside the orders of Harrison AsJ made 20 June 2008.

(4) Order respondent to pay costs of the appellant of the proceedings determined by Harrison AsJ.

(5) Set aside the orders of the Tribunal made 21 December 2007.

(6) Remit the matter to the Tribunal to be reheard and decided in accordance with law. **********

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