Williams v NSW Land and Housing

The proceedings before the Tribunal and its decisions 4The proceedings before the Tribunal were concerned with an application brought by the first defendant to evict Ms Williams. Directions were given in February 2012 as to the filing of evidence. Ms Williams was not able to comply with those directions, because she was obliged to enter a residential alcohol rehabilitation programme, as a condition of bail. 5With assistance from an officer of the Manly Local Court, Ms Williams wrote to the Tribunal, seeking an adjournment of the hearing fixed for April, given her admission into the residential programme. She explained in her written application that she wished to oppose the defendant's application, which she said had arisen from a long term conflict between other tenants and her family, which had resulted in extensive litigation ongoing in the Local Court. The application was opposed by the first defendant and refused by the Tribunal. 6Ms Williams' family sought assistance from a tenants' advocacy service. She was granted day leave from the rehabilitation programme, to attend the hearing. She understood that an advocate would be there to represent her, but the advocate did not attend and Ms Williams appeared unrepresented, in the company of her son, who sought to provide her with some assistance. She made another adjournment application, explaining that she had been unable to serve evidence on the first defendant as she had been directed, because of her participation in the residential rehabilitation programme. 7The application was opposed and refused. Ms Williams was informed that her son could make enquiries as to the advocate's whereabouts and if the advocate turned up, he or she could take over. Ms Williams had prepared some documents for the hearing, but they had not been served. The first defendant did not object to her relying upon them and the hearing proceeded with Ms Williams representing herself. 8It is apparent from the transcript of the proceedings that Ms Williams had significant difficulty, in part as the result of the way in which the Tribunal Member conducted the hearing. The Tribunal Member gave Ms Williams an explanation of the procedures to be followed, before calling on the first defendant to call its witnesses. In the explanation given, no mention was made of Mrs Williams having any right to question or cross-examine any of those witnesses. What was said was: "Now, Ms Williams, just let me explain to you what the procedure is. Have you got something to write with, pen and paper? I'll give you a pen and a paper, and what you do is - and this is going to be hard for you, I anticipate - it's the applicant's case. They go first. You don't interrupt them. MS WILLIAMS: Yes. THE TRIBUNAL MEMBER: You don't snort at them. You don't make derisory comments. You don't huff and puff and blow their house down. You take notes, and when you come across something that you will undoubtedly find offensive, you take a note. But it's very important that you let them have a go. You just let them say their piece, each witness. And then when it's your turn, they will afford you the same courtesy. Nobody will huff and puff and blow when you give your evidence and they will all remain quiet, no matter what you say, because they have a pen and paper and they will take notes and what they find particularly offensive of what you might say, they have the right of reply. MS WILLIAMS: Sure. THE TRIBUNAL MEMBER: So they go first. You say your defence piece. They have a right of reply. But it's very important that everybody in the room understand no matter what is said, I want you to be extremely courteous. Do not make derisory comments, shake your head, raise your eyeballs. Basically we'll get through it a lot quicker if everybody says their piece uninterrupted. Okay, is everybody happy with that? MS O'NEILL: Yes. THE TRIBUNAL MEMBER: Does anybody have any procedural questions? Ms Williams? No? MS WILLIAMS: No." 9After the second of the defendant's witnesses had finished giving his evidence, it appears to have occurred to the Tribunal Member that there had been an oversight. She then told Ms Williams that: "THE TRIBUNAL MEMBER: 'Normally we cross examine. Are there any questions you want to ask Mr Norton? Now, the way that I see this unfolding is this hearing will stop at quarter past. We may or may not finish all of the evidence - it depends. But strictly speaking you're entitled to ask Mr Norton and also Mr Ashton any questions. MS WILLIAMS: No, I won't be asking any questions. THE TRIBUNAL MEMBER: Okay. So the way that you want to proceed is not ask questions now but tell your side of the story later; is that it? MS WILLIAMS: That's right, that's it. THE TRIBUNAL MEMBER: Right, so can we just note that for the record that Ms Williams doesn't wish to cross-examine as such but she will put her case at the end. Yes? Is that a fair way of putting it? Okay, thanks, Ms Williams." 10This was the first time that any mention was made of any right to ask questions. There was no explanation given by the Tribunal as to what cross-examination involved, or what its purpose was, namely to challenge the evidence which the witness had given, as to its truth and/or reliability. Before Ms Williams gave up the right to question the defendant's witnesses, as a matter of elementary fairness, she ought to have been given some explanation of the purpose of cross-examination, albeit in the context of the proceedings before the Tribunal, that explanation could have been given in simple terms. 11In the result, Ms Williams asked no questions of any of the witnesses who the first defendant called. At the end of the day's hearing, the first defendant informed the Tribunal that it had no further witnesses and that it wished to make its submissions, after Ms Williams had put her case. 12The Tribunal Member then informed Ms Williams that the hearing would adjourn to another day, but told her that she would not be permitted to 'now start preparing your case in the sense that you've given your documents. They are going to be the documents you rely on, and then next time, what I'd like you to do is put the other side on notice what witnesses you're going to call.' 13The Tribunal Member said that there would be no need for those who had already given evidence to return on the next occasion, the defendant's case being basically finished. 14Ms Williams was then asked to identify who her witnesses would be. They included her 14 year old daughter, in respect of whom the Tribunal member made very clear her view, which she explained at length, that she ought not to be called, notwithstanding that Ms Williams believed that she had relevant evidence to give, about the matters in issue between the parties. 15The Tribunal Member noted that Ms Williams and her son would give evidence on the next occasion and observed that 'we get to determine' whether her daughter would give evidence, observing that 'it is my preference that she not be put through that'. There was a discussion of what steps needed to be taken for Ms Williams' daughter to prepare a statement. The Tribunal Member finally told Ms Williams that there was no legal impediment to her daughter giving evidence and directions were given as to the service of her witness statements, even though Ms Williams told the Tribunal Member of her difficulties while in rehab. 16The Tribunal Member said that the first defendant would be given a right of reply, because Ms Williams had not complied with the earlier directions as to the filing of evidence. The first defendant then indicated that it would call evidence from one other witness on the next occasion, if she was by then well enough to attend. The hearing concluded with the Tribunal Member urging Ms Williams to pursue assistance from the tenant's advisory service, or a solicitor. 17At the adjourned hearing on 23 May, Ms Williams appeared again without representation, but she had witnesses and a Mr Ewan present. The transcript is not entirely clear, but it does record Ms Williams telling the Tribunal Member that she had no representation and Mr Ewan saying that he was there to advise and assist her 'if I can'. 18Ms Williams then said that she did not wish to proceed without representation. The Tribunal Member initially said that the hearing would be finalised that day. She then said that the first defendant would call its last witness, she would ask it to make submissions and would then hear any adjournment application, which Ms Williams wished to make. 19The first defendant then called evidence from another witness, who Ms Williams also did not cross-examine. The first defendant made its submissions and the Tribunal Member then asked Ms Williams whether she was ready to put her case. She replied 'No I don't want to until I've got representation'. The Tribunal Member then invited her to explain why she needed an adjournment. 20It is apparent from the transcript that the Tribunal member then misunderstood something which Ms Williams was attempting to inform her of, about the outcome of other court proceedings in which she was involved, which ended with her son Mr Hayden interjecting. The exchange was: "THE TRIBUNAL MEMBER: Yes, all right. So what you need to do then, I need to hear from you why you want an adjournment today and then I rule on that. MS WILLIAMS: Yes, because I haven't had proper representation and this isn't exactly the way it is in Court this morning. I can go home. THE TRIBUNAL MEMBER: I'm sorry? Oh, then I'll be deciding it in your absence. So, sorry, if you - are you telling me that we can do this - we can do this with you or without you. What now - - MR EWAN: The hearing in court that was held in Manly Court this morning - - THE TRIBUNAL MEMBER: Yes. MS WILLIAMS: This morning - - THE TRIBUNAL MEMBER: Yes. MS WILLIAMS: -- I can go home. THE TRIBUNAL MEMBER: Right. MS WILLIAMS: All I have to do is just go to the courthouse. THE TRIBUNAL MEMBER: No, madam. No, let's go back to housekeeping. You are here today to meet the allegations under section 87 whether your tenancy should be terminated or not. The matter was adjourned on the last occasion to allow you to get representation, witnesses and any evidence at all that you needed to rely upon. Have you done any of that? MS WILLIAMS: No, not as yet. THE TRIBUNAL MEMBER: Okay. Well, madam, then in that case your adjournment application is refused. MR A HAYDEN: She's being denied procedural fairness in this matter today." 21An exchange ensued between her ex-husband, Mr Hayden and the Tribunal Member, which it is unnecessary to outline. Ms Williams then explained the steps she had taken since the last hearing, with the assistance of people at the rehabilitation facility, to adhere to the directions made on the previous occasion, saying that she had too much on her plate to do all that was required. The first defendant confirmed that a copy of Ms Williams' evidence had been received. The Tribunal Member then proceeded with the hearing, taking the view that Ms Williams had had enough time to prepare. 22Ms Williams gave evidence and she called evidence from her son. Much of that evidence was given in response to questions put to them by the Tribunal member The Tribunal Member also asked certain questions of Mr Ewan and then Ms Williams called Mr Hayden. Before he gave his evidence the Tribunal member addressed him, observing: "THE TRIBUNAL MEMBER: Q. Now, we were in particular - and I read it out again because, as I said to your son, that thresholds are quite low: Not to cause or permit a nuisance and not to interfere or cause or permit interference with the reasonable peace, comfort or privacy of neighbours. I don't think privacy is one of the issues here - well, it's peace and comfort, really, that we're concentrating on. So it's not really necessary to go back to 2010 but we're concentrating on incidents centring around 12 December 2011 which gave rise to this particular notice of termination. So it's actually not relevant the history - I mean, it is but it's not going to determine the issue today what happened two years ago -- Q. -- what happened between December and , say, now. So if you would like to address me on that. A. Absolutely. Well, first of all, I don't reside at the address --" 23Mr Hayden then gave his evidence, almost entirely by way of response to the Tribunal Member's questions and her observations as to the matters of concern to her, which she said at one point was 'drunken behaviour in the common area', which she asked him to address and about which she asked questions. 24Ms Williams interrupted this questioning, to ask Mr Hayden to identify which daughter he was referring to. He concluded by giving further short evidence, without further questioning by the Tribunal Member. Ms Williams then called evidence from her son's girlfriend. Again, that evidence was given by way of answers to the Tribunal Member's questioning. The first defendant was not asked, nor did it seek the opportunity to cross-examine Ms Williams, or any of her witnesses. Nor was Ms Williams called on to make any submissions, as the first defendant had been. Nor was the first defendant given an opportunity to reply or make submissions about the evidence Ms Williams had called. 25When the evidence concluded the Tribunal Member said: "THE TRIBUNAL MEMBER: Ms Williams, do you want to come back and take a seat next to Mr Ewan. Okay, if I might just sum up with what's now happened. You tendered evidence that both the - can I have those back. Do you still need them? And I think that they are a summary document of most of the events that were given on the last occasion and also your rehabilitation report. Now, can I ask this: you were released from Kedesh on 18 May. This incident that was the most recent incident, which date was that, which is the -- MS O'NEILL: That was Saturday night, the 19th. THE TRIBUNAL MEMBER: There wasn't the 18th (indistinct). MS O'NEILL: No, it's earlier, earlier. MS WILLIAMS: I can answer that. MS O'NEILL: It's about -- MS WILLIAMS: The 7th, 7th. THE TRIBUNAL MEMBER: Is that a typo? It says "Dates of treatment": Reasons for referral: enters Kedesh rehabilitation on 27/3 and dates of treatment 27 March to 18 May. MS O'NEILL: What is the date of that document? THE TRIBUNAL MEMBER: This document is dated -- MS O'NEILL: Because I know Ms Williams left a bit early because there was an issue about her smoking and they discharged her from the program. THE TRIBUNAL MEMBER: When do you think you came out? MS O'NEIL: I think it was the 7th. THE TRIBUNAL MEMBER: When were you -- MS WILLIAMS: It as about the 7th. THE TRIBUNAL MEMBER: All right. MS WILLIAMS: 7 May. THE TRIBUNAL MEMBER: All right. So that was the program and then on the 19th things got a bit heated at home." 26The Tribunal Member then immediately gave her decision, observing that she was of the view that a lot of the issues pertaining to AVOs were 'really not relevant'. She observed that she was concerned about behaviour that disturbs the peace and that she had: "... formed the view that you do that and I have formed the view that I would accept the witnesses that gave evidence on the last occasion. I have taken very big note of the fact that three of those witnesses that gave evidence on the last occasion have been - I don't want to use the word "accused", I'm trying to find non - there seems to be a bit of a tit for tat going on but there are also other people who are involved in this who seem to be perfectly innocent who get rolled up in it because of your behaviour and I have in particular in mind the incredibly compelling for me evidence of Ms Kearnes who gave evidence that she comes home and is told by you when you were drunk that she's a low life." 27Ms Williams interrupted at this point and an exchange ensued: "MS WILLIAMS: Oh, yes, that's another thing I'd dispute. I'd never say that to an elderly woman. THE TRIBUNAL MEMBER: Said gave evidence that you say that to her every single time she comes home and she was not one of the - - MS WILLIAMS: That's so untrue. THE TRIBUNAL MEMBER: and she was not one of the people who, you know, apparently throw oranges at your children or -- MS WILLIAMS: No, she doesn't. I never said she did." 28The decision then resumed: "THE TRIBUNAL MEMBER: Right, okay. I'm going to terminate your tenancy today. I'm not satisfied that you have taken the opportunity to present evidence that would convince me otherwise. I think that you have persistently and constantly breached the peace in the area of where you live and that was usually possible caused through alcohol, I don't know, I'm not a psychiatrist and you haven't tendered anything on that matter, other than the Kedesh report but unfortunately the Kedesh report finish on - says that you had rehab and you say "That's now all over, I don't drink anymore" and then there is an incident that breaches the peace on the 20th of this month, So, It's not --" 29This led to further interjections: "MS WILLIAMS: That wasn't caused by drinking. THE TRIBUNAL MEMBER: Okay. MR A HAYDEN: That's an allegation. MR E HAYDEN: It is an allegation and she had to be tested for -- " 30The decision then continued: "THE TRIBUNAL MEMBER: Okay. Madam, I have never heard a claim of this nature where so many people come and give evidence about how the peace is breached, never. It is an extraordinary case to the amount of people who want to come and say "You breach our peace and you do it consistently". We usually just get no witnesses, just a piece of paper from someone saying, you know - but I am persuaded by the weight of the evidence against you by all the people who gave evidence and not just the three who are single there are - there's the persons who - you know, I would find there is a bit of a tit for tat going on. There are others who are not involved in that. I'm flagging that for your - because I think it's fair for you to know where this is heading but I am going to terminate the tenancy. What I need to hear from you and I need to maybe, Mr Ewan, again take a short adjournment but I need to hear from you how long. I have concerns that if you go back there today that you will - I don't want to terminate immediately, I'm thinking two weeks. Even people with much younger children than yours usually don't get longer than that if there's a breach of a residential tenancy agreement. Usually in your situation it's an immediate termination that is sought and I have concerns that if you go back to live there, even for two weeks, that things will escalate horribly for you and for others. So I'm thinking two weeks. Do you want to be heard?" 31Having dealt with these matters, the Tribunal member finally announced that she was going to terminate Ms Williams' tenancy that day, for reasons which she explained. She then heard the parties on the form of the order to be made. 32The Tribunal Member later returned to her reasons, observing that she wished to make it perfectly clear that she was 'distinctly ruling out the evidence of' three witnesses who she identified 'because of the tit for tat allegations', observing that: "I just want you to know that I'm not accepting everything I hear today entirely at face value but the compounded evidence of the seven people we heard from has swayed me in this direction. I have listened to you and I have listened to your family in respect of the allegations that this goes two ways but that actually brings me further to the conclusion that it is actually in the best interests of all parties that this tenancy be terminated" 33The Tribunal Member later gave written reasons for her decision. There she observed that the hearing had been adjourned for six weeks to allow Ms Williams to prepare her case in reply and that she had not complied with orders that she provide the documents she wished to rely on, to the first defendant and the Tribunal. No reference was made to Ms Williams' explanation as to why she had not done so. In relation to the adjournment application pressed by Ms Williams on 23 May, it was observed that 'Having regard to the fact that none of the directions given on the last occasion were complied with, and as no reasonable explanation was given by the respondent explaining her non-compliance, the application for adjournment was refused'. 34The Tribunal Member then referred to the written statements on which Ms Williams had relied, noting that she did not deny various incidents, but that she claimed that she had been provoked by other tenants and that her claim was that she was the victim of others. The Tribunal Member noted the existence of AVO orders, in some of which Ms Williams was named as the victim and others the aggressor and she also noted that various related matters were part-heard in the Local Court. The Tribunal member noted Mr Hayden's evidence that Ms Williams had acted in self defence and that while she had taken this into account, she had not given it much weight. After referring to the supportive evidence given by Ms Williams' son and his girlfriend, the Tribunal Member observed: "I accept the witnesses and in this regard. In coming to my decision I propose to not afford much weight to the evidence of those three witnesses who are in constant conflict with the respondent and who are on opposing sides of various apprehended violent orders which are taken out against the respondent and the respondent's family and base my decision solely on those witnesses who are peripheral to the conflict and in particular the evidence by the nurse and the mother of a young daughter who is affected by the respondent's behaviour." 35The Tribunal member then made a number of factual findings in relation to events of 12 December and noted a report of 7 April from the rehabilitation facility and an incident on 19 April. The Tribunal Member concluded that there had been a breach of the tenancy agreement justifying termination of the tenancy, which had not been remedied. Orders for termination and possession of the property were made. 36Ms Williams later unsuccessfully sought a rehearing of the application, complaining under s 68 of the Consumer, Trader and Tenancy Tribunal Act, that the Tribunal's decision had not been fair and equitable, because she did not have time to prepare for the hearing and could not dispute the witnesses' statements. In refusing that application, it was noted that there had been no change in Ms Williams' circumstances and that bail conditions prevented her from residing at the premises. 37A warrant for the enforcement of the Tribunal's order was then taken out by the defendant. The orders earlier made in these proceedings prevent the first defendant from enforcing that warrant, until further order of the Court.

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Judgment (7 paragraphs)

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Cases Cited (20)

Cited By (12)