1. This application relates to a residential tenancy agreement under the Residential Tenancies Act 1995 (the Act).
2. This is an application by the landlord for the tenancy to be terminated under section 87(2) of the Act.

1. The Tribunal conducted a hearing on 30 September 2016. Ms Pearce sought an adjournment at that hearing and I declined to grant the adjournment for the reasons outlined in directions I made on that day.
2. After taking evidence from the officers and witnesses of the South Australian Housing Trust (the Trust) and also from Mr Wait, I adjourned the matter to enable Mr Wait an opportunity to contact his psychologist (who was away at the date of the original hearing) so that a report or verbal evidence could be obtained from her.
3. At the first hearing Ms Pearce submitted a letter dated 27 September 2016 from Mr Wait's general practitioner. After the first hearing Ms Pearce provided the following documents to the Tribunal:-
   • Two reports from Mr Wait's psychologist Rebecca Zuh dated 12 October 2016 and 3 November 2016 respectively;
   • A letter dated 2 August 2016 from Mr Wait's Partners in Recovery support facilitator to his general practitioner;
   • A letter from Mr Wait dated 4 November 2016;
   • A letter dated 3 November 2016 from Drug ARM Australasia;
   • A submission dated 20 October 2016 from Housing SA.
4. After the first hearing the Trust made a written submission to the Tribunal.
5. This decision is made taking into account all of the evidence and submissions given by the parties, the documentary evidence provided to the Tribunal, the evidence of the witnesses at the hearings and the submissions of the advocates.

The evidence and submissions of the Trust officers and witnesses

1. The basis of the Trust's application is an incident which occurred at the Trust's Noarlunga office on 9 August 2016. On that day Mr Wait arrived at the office with an axe. He struck the counter in the office with the axe on two occasions.
2. Mr Wierenga showed CCTV footage of the incident. The footage shows Mr Wait striking the counter with the axe and walking around the waiting area of the office in an apparently agitated state and shouting on at least two occasions "you fucking arseholes".
3. The footage also shows that on that day there were two Trust staff at the counter at about the time of Mr Wait's arrival at the Trust offices. When he arrived they disappeared into the back of the office screaming and clearly frightened of Mr Wait.
4. Ms Cushway is the operations manager at the Noarlunga Trust office. She gave evidence that:
   • The Noarlunga Trust office is merely a tenanted section of an ordinary commercial building shared with other commercial tenants;
   • The section of the building occupied by the Trust has no special security arrangements;
   • On the day and time in question there were two staff whose job was to work at the counter and deal with customer enquiries;
   • There was one staff member actually working on the counter at the time and she fell to the ground crying with fright;
   • The staff at the back of the offices were under the impression that Mr Wait had a gun because of the loud noise that occurred when he struck the counter with the axe;
   • Once she was aware of the disturbance she called the police but it took 30 - 40 minutes for them to secure the area;
   • In the meantime the Trust staff were hiding from Mr Wait in the back of the office in a meeting room;
   • The incident has had a significant impact on the staff in the office on that day:-
     • the Trust has offered counselling to all of the staff in the office;
     • one staff member was unable to return to work for 1.5 weeks;
     • another staff member is unable to talk about the incident;
     • another staff member is frightened to embark on ordinary day to day outings such as the supermarket in case she bumps into Mr Wait.
5. Mr Wierenga acknowledged that the incident appears to have been at least partially attributable to Mr Wait's frustrations in dealing with the Maintenance department of the Trust in relation to 2 broken windows at his property, but Mr Wierenga submitted that Mr Wait's response was disproportionate to this issue.
6. Mr Wierenga submitted that the incident which occurred on 9 August 2016 is extremely serious and it has had a significant impact on the Trust staff. He also submitted that the Trust could not be certain that Mr Wait would continue to engage with supports and take his medication.
7. Mr Wierenga submitted that as a consequence of the incident, it is simply not practical for the Trust to continue as Mr Wait's landlord. He submitted that if the tenancy continues, staff in the Noarlunga office will be frightened of another similar incident and he said visits to the property would be difficult to arrange.

The evidence and submissions of Mr Wait, his advocates and his witnesses

1. Mr Wait did not dispute the events which occurred on 9 August 2016 at the Noarlunga Trust office as captured by the CCTV footage. In essence, Mr Wait said that he lost his temper as a result of a number of difficulties in his personal life and because of a continuing dispute with the Trust about two broken windows at his house.
2. Mr Wait referred to his medical conditions. He said that he is now taking medication and is engaging with appropriate supports to manage those conditions. He said that his mobility is now significantly impaired and he uses a gopher.
3. At the second hearing Mr Wait endorsed the comments in his letter of apology and said that he never intended to hurt anyone when he attended at the Noarlunga office of the Trust and he had not appreciated the possible impact of his actions on the staff in that office.
4. Mr Wait's general practitioner provided a report and gave evidence to the Tribunal. She said that Mr Wait suffers from a number of medical and health conditions:-
   • depression and anxiety;
   • an aortic aneurism;
   • chronic pain, osteoarthritis and insomnia;
   • alcohol dependency;
   • limited mobility due to claudication from his stenotic femoral artery.
5. At the first hearing she gave evidence that Mr Wait now has regular appointments at her clinic, is taking his depression medication and has reduced his alcohol intake to reasonable levels.
6. Ms Pearce referred to Mr Wait's long, unblemished record as a Trust tenant. She said that he was deeply remorseful of the incident. She said that a number of very unfortunate events had come to a head for Mr Wait immediately before the incident and this acted as a trigger for the incident. Those events were: Mr Wait's own medical conditions, his sister's aneurism and his partner's aneurism (which meant that she was unable to have life saving surgery and therefore her life expectancy had been severely impacted). Ms Pearce referred to Mr Wait's frustration with the Trust's maintenance department in his attempts to try to establish that he was not responsible for the broken windows.
7. Ms Pearce provided documentary evidence to the Tribunal to establish that Mr Wait attempted to commit suicide after the first hearing.
8. Ms Pearce referred to reports provided by Rebeccah Zuh (a clinical psychologist). Ms Zuh commenced treating Mr Wait in February 2014 for depression and states that in the last two years Mr Wait has been in a state of severe clinical depression and anxiety.
9. Ms Zuh states that at the time of the incident Mr Wait's symptoms of panic attacks and panic disorder were elevated and she considers that Mr Wait suffered from a breakdown at the time. She considers the incident was not premeditated on his part. Ms Zuh referred to various contributing factors being:-
   • his inability to resolve his dispute with the Trust concerning the broken windows;
   • his DUI offences meaning that he was unable to drive;
   • his long term partner (of 30 years) had suffered a kidney failure and was undergoing dialysis - she has now been diagnosed with an aneurism which means she is no longer eligible for a transplant;
   • he has various physical problems which add to the complexity if his situation.
10. In her second report to the Tribunal, Mr Wait's psychologist said that his treatment regime had improved in the following respects:-
    • he is using patches to assist in the management of his pain;
    • he is attending regular cognitive therapy sessions with her and supportive counselling;
    • he has been referred to a psychiatrist;
    • he has increased support through Partners in Recovery and Drug ARM Australasia.
11. Ms Bice of Partners in Recovery gave evidence at the second hearing that she is in constant contact with Mr Wait and facilitates the various services with which he has engaged. She said that she will be advocating for him to receive regular support from mental health services.
12. In addition Ms Bice and Ms Pearce submitted that the criminal charges against Mr Wait are likely to be dealt with in December and he has applied to participate in the Court Treatment programme. If he is successful then he will be compelled to comply with a treatment programme which is regularly monitored by a magistrate.

Issue 1: is there sufficient evidence to terminate the tenancy under section 87(2) of the Act?

1. Mr Wait did not damage his own property on 9 August 2016 but he did cause damage to the counter in the Noarlunga office of the Trust.
2. Section 87(2) of the Act relevantly states that the Tribunal may terminate a tenancy where:-

...the tenant or a person permitted on the premises with the consent of the tenant has, intentionally or recklessly, caused or permitted, or is likely to cause or permit -

1. The phrase "personal injury" is not defined in the Act. Although Mr Wait did not cause a physical injury to any of the Trust staff on the date of the incident, it is clear that a number of the staff in the Noarlunga office on that date have suffered significant psychological harm as a result of the incident. I consider that this is sufficient to bring the matter within the scope of section 87(2) of the Act.
2. In any event, due to the violent nature of the incident and the damage that was caused to the Trust premises at the Noarlunga office, I consider that there is a real possibility of a further incident in the future and therefore section 87(2) could apply on the basis that if the tenancy were to continue, it is likely that there would be damage to the premises or injury to an employee of the landlord (or someone in the vicinity of the premises).
3. For these reasons, I am satisfied that the occurrence of the incident on 9 August 2016 means that the Tribunal may terminate the tenancy under section 87(2) of the Act.

Issue 2: in all the circumstances, should Mr Wait's tenancy be terminated?

1. In summary, Mr Wait and his advocates have said that the incident was a "one-off" which occurred due to a particular set of circumstances which culminated in Mr Wait momentarily losing control and embarking on a course of conduct which was not pre-meditated and which was out of character. They say that Mr Wait is now extremely remorseful and has commenced a treatment regime which means this type of incident will not occur again.
2. On the other hand, the Trust claims that the incident on 9 August 2016 was so serious, and the impact on Trust staff has been so far-reaching, that the tenancy must be terminated. Mr Wierenga also submits that the future management of a tenancy with Mr Wait is not possible from a practical perspective.
3. I have taken into account all of the evidence and I have decided to terminate the tenancy for a number of reasons.
4. The first reason is the seriousness of the incident on 9 August 2016.
5. I accept that Mr Wait suffers from a number of medical conditions and that he suffered a number of personal difficulties in the time leading up to the incident. I also accept that it can be extremely frustrating to deal with a bureaucratic organisation such as the Trust. However, Mr Wait's actions were out of all proportion to what would be regarded as an appropriate response by most people.
6. However, I cannot accept that these circumstances excuse Mr Wait's conduct on 9 August 2016. His actions were extremely violent and can only have been designed to threaten, intimidate and frighten Trust staff.
7. I cannot accept that Mr Wait's actions on 9 August 2016 were not premeditated. He took a large axe from his home. He drove to the Noarlunga office of the Trust. He went into the office and struck the counter with the axe. He was yelling obscenities and roaming around the waiting area. He struck the counter with the axe on a second occasion.
8. I consider that Mr Wait's own actions have been a contributing factor to his current situation. I note that in the report from his medical practitioner, she states that he has a condition of alcohol dependence and he has been non-compliant with medication for his mental health condition in the past. He has also been charged with driving under the influence of alcohol.
9. Secondly, the impact of Mr Wait's actions on Trust staff has been significant. Some staff are reconsidering their employment with the Trust as a result of the incident. Others are unable to perform simple daily tasks such as supermarket shopping without being anxious of a chance encounter with Mr Wait.
10. Finally, I accept Mr Wierenga's submission that it would place an unreasonable burden on the Trust to require them to continue to manage this tenancy. I do not accept the suggestion that there could be a person appointed to liaise between the Trust and Mr Wait. A landlord needs to have direct interaction with a tenant. I accept that staff in the Noarlunga office would be anxious of another possible incident and that managing visits to the property for inspections and maintenance work would be difficult.
11. I accept that Mr Wait's mental health is extremely fragile and that he has recently attempted to commit suicide. I also accept that for many years Mr Wait has had an unblemished record as a tenant. Nevertheless, I consider that Mr Wait must take responsibility for his actions.
12. At the hearing the Trust agreed to a vacate date of Tuesday 6 December 2016. I will make an order accordingly.