St George Community Housing Limited v Dali

Legislation

1. The landlord brings the claim under s 90(1)(a) of the Act: 90 Serious damage or injury by tenant or other occupant (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 - (a) serious damage to the residential premises or any neighbouring property (including any property available for use by the tenant in common with others), or (b)….
2. Sections 154D sets out the circumstances in which the Tribunal must make an order for termination 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 - (a) an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90(1)(b) and the injury constitutes grievous bodily harm within the meaning of the Crimes Act 1900, or … (2) Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord if - (a) an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90(1) (and subsection (1) of this section does not apply), or … (3) However - … (b) subsections (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, and (c) subsection (2) does not apply if the tenant satisfies the Tribunal that there are other exceptional circumstances that justify the order not being made.
3. Section 154E sets out matters the Tribunal is to have regard when considering whether to make a termination order of a social housing tenancy, it is not an exhaustive list 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. (2) This section does not limit any other matter that may be considered by the Tribunal under this Act.

Section 90(1)(a) Recklessly or Intentionally

1. The landlord submits the tenant has failed to put expert evidence concerning his state of mind at the time of the incident. There is no medical support for the proposition that at the time the fires were lit the applicant did not have the capacity to act "recklessly or intentionally". The landlord relies on the appeal panel decision in Vidler v Compass Housing Services Co NSWCATAP 284, where the tenant in that case coincidentally also lit a fire within the premises. [88] Whilst the evidence we do have suggests quite a disturbance to Ms Vidler's state of mind at the time she lit the fire, we are not experts in the field and would not find, based on that evidence alone, that she did not have the capacity to form the specific intention to cause the damage, or did not have the capacity to be reckless (in the relevant sense). [89] If s 90(1)(a) should be construed narrowly, then the evidence is sufficient to find, as the Tribunal impliedly did, that Ms Vidler acted voluntarily in the relevant sense and so s 90(1)(a) was engaged. [90] If s 90(1)(a) should be construed more widely, then Compass had made out a prima facie case of intention or recklessness, and Ms Vidler failed to satisfy the shifting evidential onus to prove, on the balance of probabilities, that she did not have the requisite subjective intention. [91] If we were required to decide the proper construction of s 90(1)(a) we would have preferred the narrower construction. We would have done so because, assuming a person did not have the relevant subjective state of mind required by the wider construction, and taking into account the context and purpose of the RTA at the first stage, the narrow construction would allow for consideration of the person's mental state when the Tribunal would be considering whether to exercise its discretion to terminate a tenancy. If the wider construction was the correct construction, s 90(1)(a) would not apply and a landlord would have no immediate recourse to terminate a tenancy to protect their property and, in relation to social housing tenancies, act to protect neighbouring social housing tenants.
2. The landlord submits that in the present case, as in Vidler, there is insufficient evidence before the Tribunal as to the tenant's state of mind at the time of lighting the fires to establish that he either did or did not, have the capacity to understand the nature or quality of his actions and s 90(1)(a) should be construed narrowly. This is important due to the nature of the tenant's actions. A fire in an apartment block could result with loss of life of the tenant and the landlord's other tenants to whom the landlord holds a responsibility. The landlord also has a right to protect its asset. For these reasons the Tribunal should find s 91(1)(a) is engaged.

Serious Damage

1. The damage to the premises was extensive and serious. There was smoke and water damage throughout the one-bedroom apartment. The total cost of the repair is $9,557.63. The repairs included the washing of the walls and ceilings, painting and bleed sealing, repairs to broken windows and replacement of damage flyscreens.

Section 154D(3)(b) & (c) Undue Hardship

1. It was not contested that the applicant does suffer a disability within the meaning of the Anti-Discrimination Act 1977.
2. The applicant contends that in the circumstances of this case where the tenant lit fires in multiple rooms and caused serious damage, undue hardship would not be suffered within the meaning of S 154D(3)(b). The respondent relies on NSW Land & Housing Corporation v Orr [2019] NSWCA 231 at [32] where the Court of Appeal accepted that "…'undue hardship' for the purpose of s 154D(3)(b) means hardship that is excessive in the circumstances".
3. If a tenant lights multiple fires within the residential premises, the possible or likely consequence of that action is the tenancy may be terminated and the tenant may have to find alternative accommodation. This is a consequence that the tenant could expect, it could not be considered exceptional or excessive having regard to the nature of the breach.
4. The tenant bears the onus to demonstrate that in accordance with s154D(3)(c) there are "other exceptional circumstances" to justify an order for termination not being made by the Tribunal. The tenant would have to show something akin to "exceptional" hardship. The termination of a tenancy in the circumstances of the breach in this case could not be considered an "exceptional" consequence.
5. And for these reasons the Tribunal should find there is no undue hardship or exceptional circumstances and must make the order sought in the application in accordance with s 154D(2).

Section 154E

1. Under s 154E of the Act the Tribunal has a discretion and must not exercise that discretion without having regard to the considerations in the section. The landlord's position is that the Tribunal's discretion in relation to a termination order should not be exercised in the tenant's favour in this case.
2. It is not contested by the tenant, and it is confirmed by NSW Fire and Rescue the fire was deliberately lit, clearly endangering the safety of the neighbouring tenants in the other nineteen other apartments in the complex.
3. The order sought in the application are to minimise or eliminate the risk of endangerment to the other residents in accordance with the landlord's obligations under the Act. An appropriate response to ensure the preservation of the neighbour's safety is for the tenancy to be terminated.
4. The twenty apartments are attached dwellings and a fire could easily spread to neighbouring premises putting the safety and wellbeing of the respondent and the neighbouring tenants at serious risk. There is also a risk of potential significant property damage in the future, not just confined to the tenant's premises but the entire asset.
5. The landlord has an obligation under s 50(3) of the Act to take all reasonable steps to ensure a tenant does not interfere with the peace, comfort and privacy of the landlord's neighbouring tenants.
6. The landlord submits the tenant breached his contractual obligations not to engage in an act that caused a disturbance to the neighbouring tenants. If the Tribunal were to exercise its discretion in favour of the tenant this would jeopardise landlord 's ability to comply with its statutory obligations in the future.

Section 90(1)(a) Serious Damage

1. The tribunal must determine whether there has been serious damage as an essential element of the section. Serious damage is not defined in the Act, therefore it has its ordinary meaning. The tenant relies on NSW Land and Housing Corporation v Lee (2009) at [13] where the Tribunal found there was extensive damage to the premises which rendered them ''uninhabitable".
2. In the present case the premises were not extensively damaged and nor were they rendered uninhabitable.
3. The tenant relies on the report from NSW Fire and Rescue, which found the fires "were confined to the objects of origin", books, magazines, newspapers and writing paper. The tenant submits there were no other civilians including neighbours affected. (I note this is not correct, all the walls and ceilings were badly smoke damaged. NSW Fire and Rescue reported a neighbour attended and rendered assistance to the tenant. The neighbour broke the sliding door and then used a garden hose on the fire within the premises until such time as Fire and Rescue arrived.)
4. The landlord has not put before the Tribunal the costs of repair, but rather an estimate only and this would also go the question of seriousness of the damage.
5. The NSW Fire and Rescue reported up to 25% of the premises were smoke damaged and up 10% only sustained fire damage.
6. There is no evidence of any damage to neighbouring properties.
7. It is the applicant's submission the "serious damage" condition is not satisfied, as required under s 90(1)(a)

Section 90(1)(a) Recklessly or Intentionally

1. Recklessly or intentionally are not defined in the Act. And therefore the ordinary meaning of those words ought be applied. The respondent relies on the definition of "reckless" in the Macquarie Dictionary (Rev Ed. 1981): 1. Utterly careless of the consequences of action; without caution; 2. Characterised by or proceeding from such carelessness
2. The respondent relies on the test in in R v Lawrence [1981]1 All ER 974 per Lord Halisham: Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting recklessly if, before the doing the act, he either fails to give any thought to the possibility of there being any such a risk or, having recognised that there was such risk, he nevertheless goes on to do it.
3. This test requires some proof of conscious awareness of a particular result or circumstance. To be aware of the risk is to be conscious of it, and in the absence of consciousness of the risk, would be something more akin to negligence at most.
4. Intentional means pre-mediated: Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128 at [45]. This requires proof that the respondent had determined on a particular result or that result was his purpose or aim.
5. The onus of proving intentional damage rests with the landlord: Westpac General Insurance v Cooper [2006] ACTSC 91 at [14].
6. As a result of his psychosis the respondent did not have the requisite capacity to have acted intentionally or recklessly.
7. The tenant relies on the report dated 14.12.22 from the psychiatrist Dr Andrew Jackson, Registrar of the Manning Unit at Concord Centre for Mental Health. The tenant was an inpatient for almost three months from the 07 November 2022 to discharge on the 27 January 2023.
8. Dr Jackson reports the tenant had numerous past psychiatric presentations under different pseudonyms. The doctor had difficulty obtaining a clear history. He relied on the tenant's account that he had spent a total of four years as an inpatient across various hospitals since age twelve. In 2021 a referral to a community health service raised concerns of psychotic symptoms. At the time of this most recent admission the respondent was undergoing gender transition therapy.
9. Inter alia Dr Jackson states the following in his report: PRESENTATION Mr Dali presented to concord ED on 07/11/22, brought in by police after reporting lighting fires inside his house. On assessment he explained having communications with the spiritual world who told him that the government is after him, trying to get the secret/magic in order to control him and the world, and he had received a command from God, who reportedly told him to light the fires. He describes having gone to each room and lighting a fire by using paper and a lighter. … PROGRESS … Early in his admission Mr Dali demonstrated bizarre behaviours, describes persecutory and grandiose delusions, demonstrating passivity of movement and openly responding to auditory hallucinations. His mental state has gradually improved during admission, becoming more appropriate in behaviour. He denies any ongoing psychotic symptoms. … Provisional diagnosis is schizophreniform disorder.
10. The doctor recommended his future management plan include a Community Treatment Order (CTO).
11. Dr Jackson concludes that if the respondent were without a fixed address it would be far less likely that his community mental health case management or the CTO would be considered feasible.
12. Having regard to the history taken at the time of his admission the respondent did not have the requisite mental state to form the required intention to cause or permit the damage. The respondent says that from the history taken by Dr Jackson the Tribunal could safely conclude that he did not act with conscious awareness or knowledge that damage was possible or probable. That he was not able to consider the possibility of risk of damage. His conduct was not pre-meditated and he lacked the requisite intention.
13. In Faull v Commissioner for Social Housing for the ACT [2013] ACTSC 121, per Refshauge J: The issue here is whether…Mr Faull intentionally or recklessly caused or permitted the outcomes …That involves a consideration of not just whether the actions of Mr Faull were voluntary but whether he intended or had foresight that his actions would bring about those consequences…It depended not merely on the voluntariness of Mr Faull's actions, but also his state of mind as to the specific outcomes at the time.
14. In the present case, at the time the tenant lit the fires he was responding to hallucinatory commands from voices in the spirit world, including the voice of God. And as per Vidler at [83] …the word intent may mean different things. It may simply mean voluntary…or or it may include the need for understanding the nature and quality of the act.
15. The medical evidence is sufficient to establish that at the time of the act the tenant did not understand the nature or quality of his acts. There is evidence that he was in a psychotic state which is more than suffering from "…quite a disturbance" (Vidler at [88]). The respondent was incapable of forming a specific intention to cause damage either intentionally or recklessly.
16. For these reasons the tribunal cannot be satisfied that the conditions in s 90(1)(a) are established and the application should be dismissed.

Section 154D(3)(b) Undue Hardship

1. The tenant submits that if the tribunal were to decline to exercise its discretion in favour of him it would result in undue hardship. The tenant relies on the appeal panel decision in Orr v NSW Land & Housing Corporation [2018] NSWCATP 237 at [53]: The purpose of 154D(3) is to mitigate the harsh consequences of s 154D(1) for defined categories of people who occupy social housing premises in circumstances where an order for termination would otherwise be mandatory regardless of the degree of fault of the social housing tenant. For s 154D(3) to be engaged, the Tribunal must be satisfied that termination of the agreement is likely to cause undue hardship to a person who falls into one of the specified categories and who is occupying the premises. That person may or may not be the tenant. Each of these categories involves a person who may be regarded as less capable than others of dealing with the hardships that may ordinarily arise from the termination of a social housing tenancy. Section 154D(3) therefore requires specific consideration of the impact of termination of the social housing tenancy agreement on a child, a victim of domestic violence or a person with a disability.
2. The result of a termination order in this case would likely to result in the tenant becoming homeless. He is 35 years of age, transgender, single, living alone with multiple complex disabilities. His financial position is precarious, he has no family support and would likely lose contact with his current community support system. He currently receives a Centrelink Disability Support pension. He does not have the financial resources to move into the private rental market.
3. The applicant relies on the report dated 22 December 2022 from the GP Dr Yan who states: He has complex medical and psychiatric history including autism spectrum disorder, OCD, PTSD, dissociative disorder, anorexia nervosa, substance abuse, and previous suicidal ideations…He is socially isolated and estranged from his family and requires regular assistance from his NDIS support worker and case manager to attend his various appointments…I believe his mental health will be significantly impacted for the worse if he were to become homeless…
4. The tenant has put before the Tribunal reports from Dr Jason from the Concord Centre for Mental Health, Ms Taylor disability support worker, Ms Ayhan NDIS support co-ordinator and Mr Kim Manning Unit social worker, they are ad idem in so far as they all refer to the risk of marked deterioration to the tenant's health if he were to face homelessness. They all stress the importance of a stable accommodation to ensure his recovery and access to his ongoing support.
5. In accordance with housing policy the tenant would be classified as an "ineligible tenant" for the alleged "extreme" breach and would be precluded from accessing social and community housing. If the tenancy were terminated there is a possibility the tenant would be more exposed to unforeseen risks as a result of the deterioration in his mental health. All of these factors individually and in combination would be undue hardship to the tenant in the event the tenancy were terminated. These adverse repercussions that would flow from termination go well beyond temporary inconvenience.

Section 154D(3)(c) Exceptional Circumstances

1. As per Yacoub v Pilkington (Australia)Pty Ltd [2007] NSWCA 290 at [25] to [26], exceptional circumstances are those that are "out of the ordinary course or unusual, or special or uncommon; that they need not be unique or unprecedented or very rare…"
2. The tenant submits there are exceptional circumstances that ought be considered by the tribunal: 1. The tenant has no criminal history; 2. There is no history of other behavioural incidents during the five year tenancy; 3. No history of chronic or anti-social behaviour; 4. He has never previously served with notices of termination for breaches of his agreement; 5. Significant medical evidence of a history of medical disability that makes him a vulnerable member of the community; 6. Consistently met his rental obligations; 7. The current cost of living would severely impact his ability to source accommodation in the private rental market.
3. In summary the tenant has a consistent and longstanding history where he has demonstrated good behaviour as a tenant, has paid his rent promptly, the nature of his disability and medical history, the isolation and extreme rarity of the incident and the risk of homelessness are all factors that amount to exceptional circumstances and should persuade the tribunal to exercise its discretion in his favour.

Section 154 E

1. The tenant submits the discretion should be exercised in his favour. There is no longstanding or ongoing negative effect on the neighbours.
2. The tenant has insight into his health issues and has engaged with all the services available to him since his admission in the Manning Unit in November 2022. As at the date of the hearing he was compliant with the CTO.
3. The tenant has never been a subject of any order from the Tribunal for behavioural or financial breaches of his tenancy.
4. The chance of a future incident if the tenancy is not terminated is remote. The likelihood that neighbouring residents will suffer serious adverse effects in the future if the tenancy is not terminated is very unlikely.

Decision

1. The tenant submits the application should be dismissed on the grounds that due to his mental condition at the time of the lighting of the fires he did not have the requisite "intent".
2. The landlord submitted the tenant failed to put expert evidence concerning the tenant's state of mind at the time of the incident. I am not satisfied that this is correct.
3. The tenant's mental state at the relevant time is obviously a matter for expert opinion. This is the landlord's application, and it carries the legal onus of establishing its case and the statutory condition. In my opinion it has failed to discharge the onus. It would have been well open to the landlord to obtain a psychiatric opinion, had it so chosen, based on the clinical records from the Concord Hospital Manning Unit.
4. The only psychiatric evidence before the Tribunal is from Dr Jackson, the Registrar of the Manning Unit and the admitting psychiatrist. In my view this evidence does not support the landlord's submissions. I find the expert evidence contradicts the landlord's submissions.
5. The report from Dr Jackson describes a classic presentation of an acute psychosis. Given what the doctor says about the auditory command hallucinations, it would be difficult to be satisfied that the tenant's actions were even voluntary in the sense of being a product of his own free will. Rather, he was compelled to act and light the fires by the force of the delusional influence of a "higher being", at least according to his delusional belief system at that time.
6. From his description of his symptoms to Dr Jackson it appears that his volition was unseated to such an extent he was not able to turn his mind to the consequences of his actions. In these circumstances it cannot be said he intended to damage the premises by fire, even if that was natural consequence of his actions.
7. One is always concerned, especially with a person caught in the grip of a major psychiatric illness, that there is a risk he could act in the same way again and the consequences could be dire. However, I am bound to assiduously apply the intent of the statute according to its text, context and purpose.
8. On the evidence before me I am not satisfied that the applicant has established the necessary statutory condition to obtain the order it seeks. And in the circumstances I am bound to dismiss the application.
9. While it is not strictly relevant to the central question in these proceedings it is not inapposite for me to observe that since the concerning events of November 2022 the applicant has been receiving treatment and is compliant with the CTO. Thankfully his psychotic symptoms have abated and I am satisfied from the evidence that he enjoys a strong network of community support.
10. For all of the above reasons I find the statutory conditions in s 90(1)(a) are not satisfied and the application is dismissed.

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: 20 November 2023