Vidler v Compass Housing Services Co Ltd

The Legislation

1. The RTA provides, in s 90, that the Tribunal may make an order terminating a tenancy, without service of a termination notice, in a number of circumstances. Relevantly for this case s 90 says: 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 … has intentionally or recklessly caused or permitted - (a) serious damage to the residential premises …
2. In relation to social housing tenancy agreements and the facts of this case, s 154D(2)(a) of the RTA requires the making of a termination order unless s 154D(3)(b) applies. That section applies where a termination order would result in undue hardship to a relevant person. In this case that is Ms Vidler if she suffers from a disability within the meaning of the Anti-Discrimination Act 1977 (NSW).
3. Section 154D says: 154D Tribunal required to make termination order in certain circumstances (1) … (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) … or … (3) However - (a) … (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.
4. "Disability", as referred to in s 154D(3)(b), is defined in s 4 of the Anti-Discrimination Act 1977 (NSW) as follows: disability means - (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
5. The terms "disorder, illness or disease" are not defined in the Anti-Discrimination Act, nor in the Interpretation Act 1987 (NSW).
6. Where it is proved that a termination order would result in undue hardship to a relevant person, the "must" requirement in s 154D(2) (must make a termination order) does not apply, with the result that the "may" requirement in s 90(1) applies (may make a termination order).
7. Section 154E says that in exercising the discretion to make (or not make) a termination order in such circumstances, the Tribunal must have regard to certain matters. Section 154E says: 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.
8. The impact on neighbouring residents is also to be taken into account when considering whether to make a termination order. Section 154F says: 154F Neighbourhood impact statement (1) If the Tribunal finds that a tenant under a social housing tenancy agreement has breached the agreement and the Tribunal is considering whether to make a termination order, the Tribunal is to give the landlord an opportunity to submit a neighbourhood impact statement and is to have regard to any such statement that is submitted. (2) A neighbourhood impact statement - (a) is a summary of statements made by neighbouring residents or other persons relevant to the requirement for the Tribunal to have regard to the effect the tenancy has had on them, and (b) should not identify the neighbouring residents or other persons.

Background

1. Ms Vidler is a 43-year-old indigenous woman who separated from her husband after their relationship broke down in 2019. She has a son of about 11 years of age who resides with his father. She has five other children, none of whom reside with her.
2. After the breakdown of her marriage Ms Vidler became homeless, was not allowed to see her son or previous pets, was involved in court proceedings concerning the custody of her dogs, received a cancer diagnosis and was admitted to hospital for drug-induced psychosis in March 2020.
3. Ms Vidler was homeless for about two years before she obtained her present tenancy from Compass (which commenced on 14 December 2020 and was located at Windale, NSW) through the Together Home Program run by the Jeder Institute. That program was a program providing housing and essential support services to people experiencing long-term homelessness and who experienced significant barriers in accessing and maintaining accommodation.
4. Whilst homeless, Ms Vidler stayed in the Maitland area in temporary accommodation, mainly hotels "all over the place" provided by Linked2Home. She said she slept overnight on the streets for about a month which she found scary. She said she was assaulted and robbed on one occasion. She said she felt physically at risk as a woman sleeping on the street.
5. Prior to the fire Ms Vidler had received ongoing case management from the Jeder Institute focusing on living skills and tenancy, community connection, health and well-being, and engagement with support workers and external providers.
6. On 1 April 2021 at about 11.30 am Ms Vidler set fire to her premises using toilet rolls on her bed.
7. The tenanted premises was part of a complex of eleven units. Ms Vidler's unit was of a full masonry construction, was on the ground floor, had a unit on either side connected by internal walls and roofing. One unit next door to Ms Vidler's also had a unit above it. Smoke entered that unit however no damage was caused.
8. The premises were fitted with a working smoke alarm which alerted neighbours. Some neighbours knocked on Ms Vidler's door to assist her escape the fire, but such was her metal state that she locked the door and would not allow entry.
9. The fire was contained to her bedroom, but there was water and smoke damage occasioned throughout the premises. The damage was extensive, and although the cost of repairs was not quantified at the time of the hearing, the estimate was in the thousands of dollars and possibly as much as $20,000.
10. Police and Fire + Rescue attended. It appears Fire + Rescue had to force entry upon their arrival.
11. Ms Vidler was taken to hospital by ambulance and police and was admitted under the Mental Health Act at the Mental Health Substance Use Unit for assessment and management after setting fire to her accommodation "on background of recent erratic behaviours and substance use."
12. Miss Vidler had visible soot in her nostrils but was cleared of smoke inhalation. She was sent for a mental health assessment. She was guarded with minimal spontaneous speech in her initial assessment but later was observed to be disordered and illogical in her responses. She spoke of paranoid delusions such as believing that her neighbours were breaking into her house and that an islander man had rung her and said he was going to rape her. She gave varying reasons as to why she lit the fire including that she lit the fire to get help for her dog from the RSPCA and to burn an alleged paedophile in the unit above hers. Miss Vidler reported poor sleep and reduced energy but a good mood.
13. The Mater recorded Ms Vidler had impaired insight and judgement. It noted a previous admission for drug induced psychosis in March 2020, a previous diagnosis of depression (she had been on antidepressants in the past which did not help) and a previous suicide attempt by cutting her wrists while she was an adolescent.
14. Ms Vidler provided a history that she was very unhappy in this particular unit as she was surrounded by men and it was located near her ex-husband and son who taunted her. She said she had a present partner, she had six children, but none were in her care. She said her ex-husband and younger son had an AV0 against her following an incident in which in she said she hit her ex-husband after he had hit her son.
15. Ms Vidler provided a history that you had left school after year 10. She said she had good attendance but struggled academically. She went to TAFE and did vet studies. She said she had suffered from sexual abuse during her childhood.
16. She said that she had used ICE on the day of the fire. She had used speed whilst in her 20s and testing at the Mater in proved positive for methamphetamines.
17. The Mater's notes said that collateral history confirmed that Ms Vidler had declined in the last month, becoming paranoid, withdrawing, was more disorganised and she had been discussing her childhood sexual abuse. The notes said that Ms Vidler had a history of factitious behaviours and had rotated between many housing accommodations due to her becoming agitated, distressed and leaving.
18. The Mater's notes said that Ms Vidler had utilised leave with her partner whilst admitted at the Mater, the leave went well, that she was motivated and engaged in finding accommodation for discharge. She requested discharge on 15 April 2021 and was discharged to stay at her partner's house. She was mentally well at that time, had nil psychotic symptoms, reported a good mood, had nil suicidal ideation, thoughts of self-harm or harm to others and was motivated to abstain from substance abuse.
19. The diagnosis was methamphetamine-induced psychosis.
20. Subsequent diagnoses are to the effect that Ms Vidler suffers from depression, bi-polar disorder and complex PTSD.
21. The Mater's notes included the advice that the first 28 days following discharge from a mental health in-patient unit or hospital was recognised as a period of elevated service need and risk. On the evidence Miss Vidler navigated that period successfully.
22. Since the fire on 1 April 2021 Miss Vidler has also accessed support from Baptist Care at Windale and has engaged with Hunter Primary Care since May 2021.
23. Since engaging with Hunter Primary Care, Ms Vidler has voluntarily engaged with that organisation's support coordinator to assist her with accessing and engaging with supports through Ms Vidler's NDIS plan which, in the opinion of Hunter Primary Care's NDIS Support Coordinator, will help her manage her psychosocial disability. It was also that Coordinator's opinion that having access to those supports will allow Miss Fidler to ensure her property is maintained and kept clean and safe, whilst working towards her own personal recovery goals.
24. It was the Coordinator's opinion that having continued access to permanent accommodation was paramount to miss Vidler's success in engaging and maintaining those supports, and she would have great concerns for Miss Vidler's mental and physical health were she to become homeless.
25. The Jetta Institute said that during her admission at the Mater in April 2021 Miss Vidler demonstrated insight into her mental health symptoms, past trauma, and the impact of those factors on her daily life.
26. Ms Vidler had a meeting with the NDIS in June 2021. The Jeder Institute said that in that meeting the Institute would be requesting support for Ms Vidler in relation to mental health occupational therapy, psychology, behavioural support, a daily support worker (providing assistance to maintain her property, access the community, attend medical and mental health appointments, and build Ms Vidler's capacity to manage her daily tasks and mental health symptoms), transport allowance and ongoing support coordination. There was no evidence of the outcome of that meeting.
27. The Jeder Institute opined that maintaining safe and secure housing was essential for Ms Vidler's recovery journey and for her to remain engaged in long-term support services. It opined that the extensive past periods of temporary accommodation had exacerbated Ms Vidler's mental health symptoms and had resulted in barriers to accessing those services. It said that the requested NDIS services would enable Ms Vidler to access regular supports and to have increased support if she became unwell. The Institute said that Ms Vidler had not had access to this level of support during her current tenancy with Compass.
28. Ms Donelly is a social worker employed by the Hunter New England Local Health District in the Mental Health and Substance Use Unit. In a letter dated 15 April 2021 Ms Donelly referred to Ms Vidler's admission to the Mater. She said that on admission Ms Vidler was thought disordered and exhibited signs of psychosis. She said that during this admission the treating team had reviewed Ms Vidler's medication, and, with clinical mental health intervention and treatment, her symptoms had resolved.
29. Ms Donelly said that during her admission Ms Vidler had disclosed developmental trauma and had gained insight on how that trauma had impacted her mental state as an adult.
30. On discharge Miss Vidler's treatment plan was that she would continue taking medication as prescribed. She was referred for ongoing psychology treatment to address her underlying trauma. Ms Donnelly said that Ms Vidler had been well supported by the Jeder Institute.
31. Ms Vidler said that she had been taking her daily medication, had been doing well and was not missing appointments. She said she had to see her doctor every fortnight and get a blood test every 30 days. She said she was currently on a public waitlist for psychological treatment. She said she had an NDIS package for help with mental health and everyday living skills and to connect her with services for outings. She said that if she lost her tenancy and became homeless, she would not be able to continue with her NDIS supports because, she was told, it is a safety issue for the NDIS workers.
32. She said that Catholic Care are just up the road from where she lives. She said they have been supporting her with food, phone calls and toiletries. She said they also have a Centrelink worker who goes there on Mondays and said this helped her a lot.
33. She said that she could not afford to rent privately as she was on Centrelink payments and unable to work. She said that while she was homeless, she had applied for at least 20 private rental properties but was not successful at the time. She thought this was because most landlords wanted double income tenants.
34. She said that if she became homeless, she would not have a chance of being able to get family court orders for her son to reside with her on school holidays or weekends.
35. She said that she does not have any family or friends that she could stay with.
36. She said that her lawyer had explained to her that if she was evicted by Compass, she would likely be given a negative classification under the DCJ Housing policy and would be unable to access social housing if there were Tribunal orders saying that she had breached her tenancy.
37. Evidence was adduced to the effect that Ms Vidler was in an extremely poor financial situation, owed debts to Centrelink, Revenue NSW and Baptist Care. There was evidence that there were very limited affordable rental listings for a single person aged over 21 in receipt of the Disability Support Pension (which described someone such as Ms Vidler).
38. There was evidence of the limited availability of rental properties within a similar price range in Ms Vidler's local area and broader Hunter Region. Ms Vidler's solicitor submitted, and we accept, that if Ms Vidler's tenancy was terminated she would be classified as an ineligible former social housing tenant in accordance with the relevant social housing policy which would preclude her from accessing social housing.
39. Ms Vidler is also being supported by Awabakal, a leading medical provider for indigenous Australians. Ms Morgan, a support coordinator with Awabakal, in a report dated 19 August 2021, said that Awabakal started working with Ms Vidler through her NDIS plan on 16 July 2021. She said that Ms Vidler has in community access every Thursday for five hours with a support worker helping her with shopping, paying bills and going for walks. She said that Mr Vidler was engaging with herself as her support coordinator which included helping her connect with mainstream services in her community as well as her NDIS plan. She said that had been working with her extremely well and they had built up a nice relationship. She said that Ms Vidler had had a few hurdles in the past but was now heading in the right direction. She said that Ms Vidler had been let down by people in the past but she was slowly trusting Awabakal and that her next NDIS plan would give her more support and more assistance to access the community.
40. Compass spoke to available neighbours and tendered a Neighbourhood Impact Statement at the hearing. The neighbours were not identified in accordance with s 154F of the RTA.
41. Participant 1 said that he had serious concerns that the fire was deliberately lit. He was concerned that if another fire was lit in the middle of the night, he and other neighbours might not hear it. He said that he had difficulty sleeping and it would be nice to have someone in Ms Vidler's unit who did not set the unit alight.
42. Participant 2 said that they were frightened and believed Miss Vidler suffered from a lack of mental health assistance. He said that he was nervous about living in his property near Ms Vidler.
43. Participant 3 said that the fire did not concern him, smoke had entered his property, however he was not concerned as he could not see any flames.
44. Participant 4 said that they were concerned at how close the fire was to their unit, said that it had affected their mental health and "just wants out" and said their mental health had been worse since Ms Vidler had moved in.
45. Two other tenants were away from their properties at the time Compass sought their views and were absent from their properties when the fire occurred.

The Tribunal

1. Compass commenced proceedings in the Tribunal against Ms Vidler on 9 April 2021 seeking a termination order under s 90 of the RTA because, Compass alleged, Ms Vidler had intentionally or recklessly caused or permitted serious damage to the premises.
2. The Tribunal did not have all of the evidence we have referred to above, but it is not necessary to separately identify the evidence the Tribunal did have before it because the error made by the Tribunal was in taking into account irrelevant matters when assessing whether s 154D(3)(b) was engaged, and that matter may be judged without precise reference to the evidence before the Tribunal.
3. Suffice to say that the first question for the Tribunal to decide was whether Ms Vidler had intentionally or recklessly caused or permitted serious damage to the premises.
4. The Tribunal found that Ms Vidler had done so. Its reasons were: "The tenant's representative relied on social worker and case manager support letters (T1, T2). I accept that those letters show that within a day of starting the fire the tenant was compulsorily admitted to psychiatric treatment and that she exhibited psychotic symptoms. The tenant's representative argued from that evidence that the tenant had not deliberately or recklessly caused any damage to the premises. I note that the representative specifically and expressly declined to lead evidence from the tenant and I draw the usual conclusion from that that the evidence would not have assisted the tenant. I note that the notion of deliberately or recklessly causing damage does not require the actor (the tenant in this case) to intend to cause damage to the premises. I have no expert or other cogent evidence that the tenant was unaware or what she was doing or did not deliberately start the fire. To the extent that she did not turn her mind to the consequences of the fire effectively means that she proceeded recklessly. It is not in dispute that the fire caused serious damage to the premises. I am satisfied that the tenant deliberately or recklessly caused serious damage to the premises and that the grounds under s 90(1)(a) of the (RTA) have been made out."
5. The Tribunal was satisfied that Ms Vidler was a person suffering a disability within the meaning of the Anti-Discrimination Act, being a mental health condition including some psychotic symptoms. There is no appeal from that finding.
6. The Tribunal was also satisfied that Ms Vidler would suffer hardship if the tenancy was terminated but found that any such hardship would not have been "undue hardship", which is the expression used in s 154D(3)(b).
7. The Tribunal reasoned as follows: "20. I am satisfied that the tenant is a person suffering a disability within the meaning of the Anti-Discrimination Act 1977, being a mental health condition including some psychotic symptoms: T2. 21. I am also satisfied that should I terminate the tenancy the tenant would suffer hardship associated with having her residence withdrawn. I note that the tenant has previously been reported as homeless for an extended period of time. 22. The tenant's representative stressed the fact that the tenant had previously been homeless for some months and that there were currently very low vacancy rates in the Hunter area. I accept that. I also accept that the tenant might suffer great hardship if I terminate the tenancy. The representative also stressed that the tenant was now engaging with support services and that terminating the tenancy might reduce her ability to continue that engagement. I also note that engagement with support services is something which might reduce the probability of a recurrence of the fire episode. However, I have no evidence before me of prior engagements and disengagements with support services and with psychiatric treatment. I have no evidence of what, if anything, led to the fire episode. In this context, I have no basis for any confidence that the tenant will remain engaged with support services or that such engagement will be sufficiently pervasive that a fire incident could not recur. 23. I am not satisfied that any hardship suffered by the tenant would be "undue". While the tenant would suffer hardship, this would be entirely "due" hardship because it would be a hardship necessary to protect the safety of the tenant herself from future harm from a fire or similar and would be necessary to protect neighbours in the same apartment complex from harm caused by the tenant, for example, by setting another fire. I note that a fire could not just damage property but could seriously injure of even kill people. 24. Under these circumstances, s154D(3) does not apply to limit my requirement to terminate the tenancy and I will do so."

Decision

1. On this appeal Ms Vidler's solicitor, Ms Reid, whose submissions are a credit to herself and her office, submitted that the Tribunal erred in that it misapplied the test set out in s 90(1)(a) of the RTA.
2. Ms Reid submitted that on the proper construction of s 90(1)(a), someone whose mental state of mind was that of Ms Vidler's at the time of lighting the fire, could not have intentionally or recklessly done anything. That is, s 90(1)(a) required a certain state of mind and Ms Vidler did not have it because of her mental condition at the time. Ms Reid cited in support the Appeal Panel's decision in Cure v Bridge Housing Ltd [2014] NSWCATAP 80 and the decision of the Supreme Court of the ACT in relation to cognate legislation in Faull v Commissioner for Social Housing for the ACT [2013] ACTSC 121.
3. The Appeal Panel in Cure, at [46], said that the language of "intentionally or recklessly" suggested the element of mens rea in the field of criminal law. It said, at [47], that in the field of criminal law, a person intends the commission of a crime where that person's aim or purpose is to bring about its constituent elements. At [47] it said that, in the criminal law, a person is said to be reckless where that person acts with knowledge that a consequence is a probable (or in some cases possible) result of his or her actions.
4. In Faull, Refshauge J said, at [207], in relation to cognate legislation: "The issue here is whether the RT Tribunal was actually satisfied that Mr Faull intentionally or recklessly caused or permitted the outcomes set out in s 51(c) and (d) of the RT Act. 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 outcomes. This is, as the Court of Appeal said in Crook v Cmr, Tradings and Tenancy Tribunal (NSW) at 311; [39], "a difficult question". 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. In this case, his intoxication was a very relevant factor, not only for voluntariness where the issue was expressly addressed by Mr McCarthy but for whether he was aware of the consequences of his actions at the time he did them in the specific ways set out in the section, and either intended them or proceeded with foresight nevertheless.
5. There is no authority of which we are aware or which our researches have discovered on the proper construction of s 90(1)(a) in this context and what mental element, if any, was required in order for cause of the serious damage to have been intentional or reckless.
6. In the criminal law, a distinction is sometimes drawn between an act which was voluntary, an act which was intentional in the sense of knowledge that it was wrong, and an act in which the accused had the specific intention necessary to establish the crime.
7. In Halsbury's Laws of Australia, online edition, at [130-9680], those distinctions are described as follows (footnotes omitted): "However, there are some mental states which may impair the ability of individuals to act voluntarily or intentionally and understand the nature of their actions. For example, if a person commits a criminal act while in a state of automatism he or she may be excused from criminal responsibility on the basis that the criminal act was unwilled or involuntary. Similarly, if a person suffers from a 'disease of the mind' such that he or she was incapable of knowing that what he or she did was wrong, that person may be found not to be criminally responsible on the ground of insanity. A disease of the mind may also prevent an individual from forming the requisite intention for a particular crime."
8. Some of these issues were the subject of examination in a civil context in Fede v Gray by his tutor New South Wales Trustee and Guardian [2018] NSWCA 316.
9. In that case the respondent bit the appellant police officer whilst in a state of drug-induced psychosis and caused her injury. The appellant sued the respondent for damages relying on the tort of battery (an "intentional" tort, though Basten JA said at [170] that that labelling should be approached with some caution). One question which arose in that case was what state of mind was relevant in relation to that tort, and another question was what was meant by "intent" when used in s 3B(1)(a) of the Civil Liability Act 2002 (NSW) ("CLA"). Section s 3B(1)(a) was relevant in that case because it said that the CLA did not apply to: "… civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death …"
10. Basten JA, with whom Meagher JA agreed, said that it was noteworthy that the word "intent" was used in two senses in that provision: first, it was used with respect to an act, rather than a tort; and secondly, it was used in a sense which invoked an actual or specific subjective intention. There was also a provision of the CLA with concerned mental illness. Basten JA said at [192]: "The other provision is s 52(1), which precludes liability arising from "any conduct of the person carried out in self-defence". The limitation on that immunity is that the conduct to which the person was responding was either "unlawful" or "would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct": s 52(1)(b). This provision assumes that there may be circumstances which may induce a person to act in self-defence where the aggressor's conduct is not unlawful because he or she suffered from a mental illness at that time."
11. When considering the elements of the tort of battery, his Honour held at [198]: "In the context of the present case, the language of intention is satisfied by a conclusion that the general intention to bite was not involuntary. It may have been motivated by the delusion that Mr Gray thought himself in physical danger if he remained in the hospital, and was seeking to escape. That delusion did not, however, render his biting either involuntary or in the nature of an inevitable accident."
12. At [202] his Honour said that the question of intent in s 3B(1)(a) was different. His Honour said: "Once the question of liability is disposed of, the focus upon s 3B(1)(a) gives rise to a different question, namely the defendant's subjective state of mind at the time of the offending, rather than his earlier conduct. The offending conduct was no doubt consistent with a drug-induced psychosis, which, in turn, was consistent with the lack of an intent to cause injury. There was no submission that the language of the statutory provision required an assessment as to the reason for any absence of the requisite specific intent."
13. In that case there was psychiatric evidence, accepted by the primary judge, to the effect that the respondent's biting of the appellant was not a voluntary act given his state of mind, and that the respondent was not able to formulate the specific intention to cause injury which was required to engage s 3B(1)(a) of the CLA. Basten JA said at [204] that there was ample evidence to justify the conclusion that the respondent did not have the capacity to form the specific intention to cause injury.
14. At [206] his Honour concluded: "Because the biting was intentional in the sense of being a voluntary act, the first limb of the provision was satisfied. However, because the judge found that the defendant did not understand the nature or quality of his act, he concluded that the defendant did not "intentionally cause injury to the plaintiff." There being no basis to reject that finding, the second limb of s 3B(1)(a) was not satisfied and the assessment of damages should therefore have been governed by Pt 2 of the Civil Liability Act.:
15. The point of setting out those paragraphs is to demonstrate that the word "intent" may mean different things. It may simply mean voluntary (in the sense used by Basten JA in the first sentence of the quote above) or it may include the need for understanding the nature and quality of the act.
16. Thus, in this case, the first question is whether s 90(1)(a) simply asks whether Ms Vidler intentionally or recklessly caused serious damage to the premises in the sense that she voluntarily caused damage (the narrow construction). Or does s 90(1)(a) require more, and require that Ms Vidler also have understood the nature or quality of her act (the wider construction for which Ms Vidler contends)?
17. The RTA is a very different Act to the CLA, with a very different context, purpose, underlying policies and mischiefs which it seeks to remedy.
18. In relation to statutory construction the Chief Justice recently summarised the position in Keybridge Capital Ltd v WAM Active Ltd [2021] NSWCA 203 as follows: "[75] The principles surrounding the construction of the provisions in question are not in dispute in the present case and were correctly summarised by the primary judge. In Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41, the plurality stated at [47] that the task of statutory construction must begin with a consideration of the text itself, although the meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it seeks to remedy. [76] It has been subsequently emphasised that context in its widest sense should be considered at the first stage of the construction process and not at some later stage. The principles were stated by the plurality in SZTAL v Minister for Immigration & Border Protection (2017) 262 CLR 362; [2017] HCA 34 in the following terms (at [14]): [14]The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
19. We do not need to decide whether s 90(1)(a) should be given the narrower or wider construction. In our view the evidence was insufficient to establish that Ms Vidler did not understand the nature or quality of her actions. In Fede there was expert evidence on the respondent's state of mind at the time he bit the appellant, but there is no such evidence in this case.
20. 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).
21. 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.
22. 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.
23. 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.
24. Therefore, for those reasons we would not interfere with the Tribunal's decision that s 90(1)(a) was engaged in this case.
25. Section 90(1)(a) having been engaged, the Tribunal turned to s 154D(3)(b), found that Ms Vidler was a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977, but found that she would not suffer undue hardship if a termination order was made.
26. The Tribunal made that latter finding partly on the basis that the Tribunal had no basis for any confidence that Ms Vidler would remain engaged with support services or that such engagement would be sufficiently pervasive that a fire incident could not recur. The Tribunal said that hardship caused by a termination order would be a hardship necessary to protect the safety of Ms Vidler herself from future harm from a fire or similar, and would be necessary to protect neighbours in the same apartment complex from harm caused by Ms Vidler possibly lighting another fire.
27. In our view the Tribunal erred in failing to properly apply s 154D(3)(b). The section asks whether Ms Vidler (not anyone else in this case), suffering from a relevant disability, would be likely to suffer undue hardship (meaning hardship that is excessive in the circumstances - NSW Housing v Orr [2018] NSWCATAP 237 at [49]) if a termination order was made.
28. Thus, the focus of s 154D(3)(b) is on the circumstances of the relevant person, in this case being Ms Vidler, and not on the chances of another fire at the premises or dangers to neighbours, although those matters are properly to be taken into consideration in the general discretion whether to terminate a tenancy.
29. That this is so is supported by the authorities. As explained in Bidgood v NSW Land and Housing Corporation [2020] NSWCATAP 101: "29. Where an application under s 91(1)(b) is made in respect of a social housing tenancy agreement and the elements required in s 91(1)(b) are established, s 154D(2)(c) (essentially the same test as that contained in s 91(1)(b) in a social housing context) means that termination of the agreement is, prima facie, mandatory in a case such as this. This is the case unless s 154D(3)(b) applies and such termination would result in undue hardship, or unless s 154D(3)(c) applies and there are other exceptional circumstances that justify the order not being made. 30. The Appeal Panel's decision in Orr v NSW Land and Housing Corporation [2018] NSWCATAP 23 at [33] explains the interrelationship of sections 154D(1) and (3)(b) in the context of an application made under s 91(a), as does the Court of Appeal's decision in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, at [80] to [81] (per Bell P, with Ward JA agreeing) and at [118] to [119] (per McCallum JA). The test to be applied before termination involves a number of steps. In the circumstances of this matter, which is an application under s 91(1)(b) in respect of a social housing tenancy, the Tribunal must determine: 1. whether the elements of s 91(1)(b), and thereby s 154D(2)(c), are made out; 2. if so, whether s 154D(3)(b) is engaged, because a termination order would result in undue hardship to a person with a disability or whether s 154D(3)(c) is engaged, because the Tribunal is satisfied that other exceptional circumstances exist which justify the order not being made; 3. If either s 154D(3)(b) or s 154D(3(c) apply, the Tribunal has a discretion as to whether or not to terminate the tenancy agreement, and must exercise that discretion having regard to the factors listed in s 154E(1) and to any other factors relevant to the exercise of the discretion. 31. There is no argument that the Tribunal properly reached step 2 of this process and decided that the necessity to consider s 154D(3)(b) was engaged. The Tribunal also decided that the tenant had not demonstrated that other exceptional circumstances exist which justify the order not being made, which demonstrates that the Tribunal considered the application of s 154D(3)(c). That finding was unchallenged. 32. This appeal turns on, first, whether the Tribunal fell into error when, in determining whether undue hardship to the tenant would be occasioned by termination of the tenancy agreement, it had regard to irrelevant considerations as to the seriousness of the prior offences and the fault of the appellant. 33. As clearly enunciated in NSW Housing v Orr [2018] NSWCATAP 237, considerations of fault must be excluded from an assessment of "undue hardship" in the context of s 154D(3)(b) of the RT Act, although that does not mean that fault may not be a relevant consideration in the discretionary decision to terminate a tenancy pursuant to s 91 of the Act where that discretion is enlivened. Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1; [2014] NSWCA 28 at [39] (Cain) is authority for that proposition, as well as for the more general proposition that an application for termination under s 91 of the Act involves the exercise of a discretion. This analysis of the Appeal Panel was cited by the Court of Appeal (New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [32]) as correct and is authority that the purpose of s 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."
30. The Tribunal erred in its decision in relation to 154D(3)(b) in three ways.
31. First, whether or not Ms Vidler remained engaged with support services in the future was irrelevant to the question whether she would suffer undue hardship by the making of a termination order.
32. Second, we do not know how terminating the tenancy would provide any protection to Ms Vidler from harming herself with fire, as one would think she would be just as disposed to that possibility outside this tenancy as within it. Quite possibly she would be more exposed given the evidence of the probability of a decline in her mental condition should she be rendered homeless. In any event, s 154D is focused on hardship caused by the termination order, not the risk of fire should she remain in the premises.
33. Third, the risk to neighbours was not relevant to s 154D(3)(b), the focus of the section being on Ms Vidler, albeit the risk to neighbours is relevant to the general discretion to terminate the tenancy.
34. For those reasons the Tribunal erred as matter of law in that it failed to correctly apply s 154D(3)(b) in that it acted on the wrong basis in important respects and so constructively failed to properly exercise its jurisdiction.
35. Having fallen into that error, the Tribunal found that s 154D(3)(b) was not satisfied and that s 154D(2) of the RTA mandated that a termination order be made and the Tribunal did so.

A New Hearing

1. The Tribunal having fallen into the error identified, the Tribunal's orders should be set aside, and the matter re-heard. That re-hearing could be conducted by the Tribunal on a remittal or heard by us per s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW). That sub-section provides that we may decide to deal with an internal appeal by way of a new hearing if we consider that the grounds for the appeal warrant a new hearing, and we may permit such fresh or additional evidence to that received by the Tribunal to be given in the new hearing as we consider appropriate in the circumstances.
2. In our view the better course is to determine the parties' dispute by way of a new hearing before us. All of the evidence before the Tribunal is before us and has been considered. Ms Vidler wishes to tender additional evidence and Compass has no objection to the receipt of that evidence and did not request any author of any report or Ms Vidler (who provided a short statement) to be made available for cross-examination. There is no need to require the parties to prepare for and attend a further hearing in this case.
3. As we said earlier in these reasons, we do not need to decide precisely what "intentionally or recklessly" means in s 90(1)(a).
4. The next question would be whether s 154D(3)(b) applies, and if it did, whether we would exercise our discretion to make a termination order.
5. In our view s 154D(3)(b) is engaged and we should decline to exercise our discretion to make a termination order.
6. The question of disability was not in contest before the Tribunal or before us. In our view the evidence establishes that Ms Vidler presently (and at the time of the fire) suffers (suffered) from a disorder, illness or disease that affects her thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. So much is clear from the notes of the Mater and the diagnoses contained therein, the evidence from Hunter Primary Care, the Jeder Institute, Ms Donnelly and Ms Vidler's treating general practitioner, Dr Jones. Dr Jones provided a GP Mental Health Treatment Plan for Ms Vidler dated 9 July 2021 in which he said that Ms Vidler's "Problem/Diagnosis" was depression, bipolar disorder and drug induced psychosis in that order.
7. In our view the evidence establishes that the making of a termination order would likely result in undue hardship being suffered by Ms Vidler.
8. We have detailed the evidence earlier in these reasons.
9. In short, the evidence is that were this tenancy to be terminated Ms Vidler would probably become homeless. Her ability to access private rental accommodation is slight at best and were this tenancy to be terminated her ability to access social housing would appear to be nil. If she became homeless there was a real possibility of her having to sleep on the streets and running the risk of being assaulted and robbed (which had happened during her previous homelessness).
10. The evidence establishes that were Ms Vidler to become homeless, a significant hardship in itself, her mental and physical health would probably significantly decline.
11. Hunter Primary Care opined that continued access to permanent accommodation was "paramount" to Ms Vidler's successful engagement with her supports, and it held "great concerns" for her mental and physical health were she to become homeless.
12. The Jeder Institute opined that the maintenance of safe and secure housing was "essential" for Ms Vidler's recovery and to remain engaged with long term support services. It said that past extensive periods of temporary accommodation had exacerbated her mental health symptoms.
13. Ms Morgan, from Awabakal, opined that if Ms Vidler's tenancy were terminated her mental health would "spiral out of control" and may lead her back to illicit drugs and to hang out with the wrong people.
14. There is no evidence to the contrary.
15. Section 154D(3)(b) having been engaged, s 154D(2) does not apply and therefore it is not mandatory to make a termination order. However, the discretion to make a termination order remains under s 90 of the RTA.
16. Our choice is between making a termination order with the likely result that Ms Vidler would suffer from significant hardship, or not making a termination order with the unlikely but non-fanciful result of a future fire and the risk of serious consequences for the immediate neighbours.
17. The chances of a future fire being started by Ms Vidler if the tenancy is not terminated is remote. On the evidence she has not been detected lighting fires in her accommodation (here or elsewhere) at any time in the past and has not done so in the five months since 1 April 2021.
18. The fire of 1 April 2021 was occasioned when she was suffering from a drug induced psychosis, something she suffered from in March 2020 but on no other occasion so far as the evidence reveals. The event in March 2020 occurred when Ms Vidler was homeless. Her recorded drug use seems, historically, to be episodic rather than chronic. The evidence is that she is drug-tested regularly as part of her treatment plan and has been keeping her appointments with her supports.
19. It is true that prior to the fire Ms Vidler had received ongoing support from the Jeder Institute and, notwithstanding that support, had taken drugs which led to her drug-induced psychosis. That gives rise to the risk that notwithstanding her present supports the risk of Ms Vidler lapsing remains a non-fanciful risk. However, the level of support now accessible to Ms Vidler exceeds the support she was previously receiving.
20. Ms Vidler has been engaging successfully with her supports since the fire, is motivated to do so, and the evidence is that if she continues to do so the chances of a repeat of the events of 1 April 2021 are very slight.
21. Ms Vidler has no family or friends to live with, is a single person, is disabled and will in all probability become homeless should this tenancy be terminated with likely consequential deterioration in her mental and physical health.
22. On the other hand, should she cause another fire the consequences could be catastrophic for her neighbours. Ms Vidler's unit has a unit on either side connected by internal walls and roofing, and so the risk of fire spreading to those adjoining units is possible should a fire take hold. It is not hyperbole to say that if Ms Vidler lit another fire in her tenancy, particularly if this occurred in the middle of the night, the risk of death or serious injury to nearby neighbours is a non-fanciful possibility. This factor has weighed heavily on our minds.
23. It is also not irrelevant that the 1 April 2021 fire caused extensive damage and caused Compass to incur a substantial repair bill. Compass is a non-government not-for-profit social housing provider which provides tenancy and/or property management for over 6,500 properties in New South Wales, Queensland and New Zealand. In addition, Compass manages the tenancy of 103 Disability Group Homes in New South Wales, delivering high-quality disability respite and accommodation services. The incurring of the repair bill occasioned by Ms Vidler is a significant impost on Compass and its financial ability to service other people in need.
24. Not without considerable hesitation, we have nevertheless come to the view that a termination order should not be made. The chances of Ms Vidler suffering from significant hardship should the tenancy be terminated is probable, and the chances of another fire and risk to neighbours, whilst not a non-fanciful possibility, is, on the evidence, very unlikely.

Orders

1. We make the following orders: 1. Appeal upheld. 2. The decision of the Tribunal is set aside. 3. In lieu thereof the respondent's application to the Tribunal 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: 22 September 2021