Xenos v St George Community Housing

Reasons for decision

1. On 24 February 2015, St George Community Housing lodged with the Tribunal, in the Consumer and Commercial Division, an application seeking a termination order under s 92 of the Residential Tenancies Act 2010 (NSW) (the Act), against Mr Phillip Xenos. The reasons for the order stated in the application were: The tenant Mr Phillip Xenos has intimidated and harassed SGCH staff members by verbally abusing and racially offending. On 23 February 2015, SGCH held an event at its community room. There were seven female staff members assisting this event and during this event, Mr Xenos entered the community room and began making threats of violence against the neighbour from unit 13 in the complex. SGCH staff member advised him to calm down. Mr Xenos then began to make racist comments by saying " I hate all Muslims and we should kill them off" and looked directly at a SGSH staff member who was wearing the Muslim attire. The SGCH member felt offended and threatened by Mr Xenos' remarks. Mr Xenos then started to interrupt SGCH staff member who was making a speech and was advised to wait for all questions after - Mr Xenos responded with a threatening comment by saying " you better watch your tone and be careful or else." After this - the neighbour from unit 13 arrived and Mr Xenos began to walk towards him where SGCH staff member intervened and asked him to stop and leave. SGCH staff member was shaken by the incident and contacted the police immediately who arrived and escorted Mr Xenos away from the premises. SGCH are seeking the Tribunal to grant immediate termination and possession under section 92 of the RTA 2010 for threats and intimidation towards SGCH staff members on several occasions.
2. On 20 April 2015, after a contested hearing, the Tribunal made the following orders: 1. The residential tenancy agreement is terminated in accordance with s 92(1)(a) of the Residential Tenancies Act 2010 as the tenant/occupant has caused or permitted serious or persistent threat or abuse to the landlord/agent/employee/contractor. 2. The residential tenancy agreement is terminated immediately. 3. The order for possession is suspended until 27 April 2015
3. On 24 April 2015, notice of appeal was lodged in the Tribunal on behalf of Mr Xenos. The grounds of appeal attached to the notice of appeal were as follows: 1. The Tribunal failed to take into account relevant considerations, being material that was open on the evidence before the Tribunal, those considerations being: a. The appellant's conduct is directly attributable to his serious medical condition/s. The appellant suffers from neurological impairment, with a history of brain injury and frontal lobe disconnection; b. The appellant's conduct on 23 February 2015 was intrinsically connected to having his life threatened by another tenant of the respondent; c. That the appellant is a social housing tenant and cannot afford housing in the private rental market; d. That terminating the appellant's tenancy will likely render him homeless; e. That the appellant relies on having access to treatment, medication and support services to assist in his treatment which he will not be able to readily access if his tenancy is terminated; and f. The respondent is a specialist social housing provider who houses the most vulnerable people and is best placed to cater for the appellant's housing needs. 2. The Tribunal made findings for which there was no evidence, namely: a. That each incident of alleged abuse/threats was serious. 3. That the Tribunal applied the wrong test in assessing the level of risk to the respondent against contemporary community standards. 4. The Tribunal erred at law in defining incidents that were not trivial as being serious. 5. The Tribunal failed to afford the appellant procedural fairness in disregarding evidence given by the appellant that was uncontested. 6. The Tribunal misapplied the law in taking into account an incident that occurred outside the landlord-tenant relationship.
4. The notice of appeal also included an application for leave to appeal as follows: i. Decision not fair and equitable 1. The Tribunal failed to consider the appellant's serious medical conditions and the significant detriment faced by the appellant should his tenancy be terminated. 2. The appellant is a vulnerable person with complex physical and cognitive health concerns. If the tenancy remains terminated the appellant's health and well-being will deteriorate. 3. The respondent is a social housing provider who is specifically funded to assist the most vulnerable people including people living with [ ] and those with mental illness. The member did not believe that the appellant's conduct could be excused or justified by his medical condition. In fact the appellant's conduct is directly attributable to his medical condition. ii. Decision of the Tribunal against the weight of evidence (The notice of appeal did not provide any details under this heading.)
5. After the hearing of the appeal, the Appeal Panel requested the parties to provide submissions on: 1. should the Appeal Panel consider whether the Tribunal Member fell into error in exercising his discretion; 2. if it should, how should that discretion have been exercised; and 3. should application be made by the appellant to amend the notice of appeal to include a ground to the effect that in exercising his discretion, the Tribunal Member fell into error; 4. if such an application is made, how should the Appeal Panel deal with it.
6. The appellant responded by submitting that the Appeal Panel should consider whether the Tribunal Member fell into error for the reasons outlined in the first ground of appeal and that the Tribunal Member should have exercised his discretion by taking into account the considerations as outlined. The appellant submitted that it was unnecessary to amend the notice of appeal.
7. The respondent responded by answering question (a): "No, we do not agree that the Tribunal Member fell into error in exercising his discretion. We believe the correct decision was made based on the evidence provided at the hearing, included the behaviour demonstrated by the Appellant during the hearing." The respondent answered question (c): "No, we do not believe the application should be amended."
8. The notice of appeal does not expressly state as a ground of appeal that the Tribunal Member made an error in exercising his discretion. The Appeal Panel's obligation is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicality or legal forms (s 38 (3) of the Civil and Administrative Tribunal Act 2013 (NSW)). We are of the view that what is stated in grounds 1d and e and 5, when read with what is stated in par 1 under the entry "Decision not fair and equitable" is sufficient to raise as a ground of appeal that the Tribunal Member made errors in exercising his discretion.

Residential Tenancies Act 2010

1. Section 92 of this Act relevantly provides: (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, … has: (a) seriously or persistently threatened or abused the landlord, the landlord's agent or any employee or contractor of the landlord or landlord's agent, or caused or committed any such threats, abuse or conduct, or (b) …..
2. The application form filed in the Tribunal by St George Community Housing, made it clear that it was seeking a termination order based upon s 92(1)(a) of the Act.
3. In par 17 of the reasons for decision, the Tribunal Member stated that the Tribunal has a discretion to exercise in determining whether or not to terminate the tenancy. That statement has not been disputed by either party.

Evidence before the Tribunal Member

1. The respondent tendered statutory declarations made by Josephine Skove, Diana Fakhreddine, Rowa Omari, Julia McKenzie, Stephanie Sayward and Edward Matchett. Mr Matchett, Ms Fakhreddine and Ms Skove were cross examined.
2. The evidence of the appellant comprised statutory declarations made by the appellant, David Crawford, Patrick Feeney, a letter from Bruce Brew, Professor of Medicine (Neurology) and a letter from Gary Hampton.
3. During the hearing of the appeal, the solicitor for the appellant stated that the appellant was asked two questions by the Tribunal member when he gave his evidence. That was not disputed by the representative of the respondent. None of the other witnesses who made statutory declarations or wrote letters which were tendered on behalf of the appellant, were cross examined. Alexandra Stratigos, the solicitor who represented the appellant before the Tribunal member, signed a statutory declaration for the purpose of the appeal. In that declaration Ms Stratigos set out her recollection of relevant events and evidence at the hearing before the Tribunal member. Her declaration included statements that at the hearing the appellant read his statement into evidence and the respondent did not ask the appellant any questions in cross examination.

Findings of fact made by the Tribunal member

1. In his reasons for decision, the Tribunal member set out what he described as the material facts. We set them out in this paragraph. a. There is a social housing tenancy agreement / residential tenancy agreement between the parties which commenced 2/3/11 for a fixed term of 13 weeks at a weekly rent of $290 ( the Agreement); b. The Agreement is in the standard form and sets out the rights and obligations of the tenant; c. The applicant is a social housing provider as defined in RTA s136 (Definitions); d. There is no acceptable behavior agreement made between the parties for the purposes of RTA s138; e. Mr Xenos does not give his age but in evidence he said that he left school after the School Certificate and learned a trade as a Machinst and Tool Maker for four years and then had 25 years experience. He no longer works; f. Mr Xenos suffers a number of what he describes as "serious and chronic illnesses which affect both my physical and mental health": i. Professor Bruce Brew (Neurology), exhibit 1 p13, is treating Mr Xenos and says that Mr Xenos' conditions require monitoring and a stable environment, and that if he became homeless his physical and mental health would seriously deteriorate; ii. Mr David Crawford, exhibit 1 pp 6 & 7, is a registered nurse involved in treatment of Mr Xenos. He says that Mr Xenos lacks an ability to control his emotions in complex and challenging environments, and his behavior stems from his mental incapacity. However, I was assured by Ms Stratigos his solicitor that Mr Xenos did not lack legal capacity; iii. Mr Hampton, exhibit 1 p14, has been his social worker for two years and assisting him with accessing health care. He describes Mr Xenos' conditions as including neurological impairment, with a history of brain injury and frontal lobe disconnection with his brain health issues having a serious impact on his ability to navigate health care and other services; g. On 3/10/14 Ms Josephine Skove (Property Inspector) and Mr Carl Zadro (Tenancy Manager) were at the locality of Mr Xenos premises when they had a conversation with Mx Xenos: Zadro: Hi Phillip how are you? Xenos: Yeah, why? Zadro: We are attending to conduct a visit and do you mind if we do it now? Xenos: No. Ms Skove says Mr Xenos spoke in an angry tone and the meaning was that he would not agree to a visit. Mr Xenos then spoke to Ms Skove. Xenos: I hate St George Housing. You fuckers put my friend on the street. Zadro: There's no need to swear and you're speaking with a lady. We only asked if we could do a visit. Ms Skove says that Mr Xenos then headed towards Mr Zadro in an aggressive manner gesturing with his hands and said: Xenos: If you want to get in my property you can take me to court. Ms Skove says that Mr Xenos then approached her, invading her personal space and spoke to her in a sarcastic manner: Xenos: I wasn't speaking rude to you, love, was I? Skove: I didn't appreciate your way of speaking to me and yes I am offended. Ms Skove says that Mr Xenos then aggressively approached Mr Zadro. She says that she thought Mr Xenos was going to physically harm Mr Zadro, so she stepped between them saying to Mr Zardo: "Walk away." h. As Mr Xenos was walking to his unit he turned around and shouted to Ms Skove and Mr Zadro: Xenos: What are you looking at? Get out of here And started to walk towards them, but stopped and went inside his unit onto the balcony and shouted at them: Xenos: Fuckers! i. Ms Skove says that as a result of this conduct she was in shock. j. On 17/2/15 Mr Edward Matchett, Income Recovery Office of the applicant attended an NCAT hearing at Liverpool with a colleague to obtain orders were made for termination of Ms White's tenancy (Ms White was a tenant of the applicant and Mr Xenos was her friend and had apparently acted as her advocate at the hearing) for non-payment of rent and a number of incidents took place: i. After the order for termination was made, Mr Xenos shouted at the Tribunal member and was escorted from the NCAT premises by the security guard; ii. Later at Glenfield Railway Station as Mr Matchett exited from the train onto platform 3 with his female colleague he saw Mr Xenos who saw him and began to approach and Mr Xenos said something to Mr Matchett and the following conversation ensued: Matchett: Just go away. Xenos: You want to go cunt? Come on cunt! (which Mr Matchett understood to be an invitation to fight and he took his colleagues arm and started to walk away) Xenos: Fucking maggots. (Mr Xenos followed Mr Matchett and his colleague continuing to shout something at them) iii. A few minutes later Mr Matchett and his colleague went to platform 1 to catch their train, and while they were waiting Mr Xenos saw them (he was still on platform 3) and began shouting something at them across the platforms, including: Xenos: You with the fat gut. Yeh the one with the fat gut. And Mr Xenos started to swear and shout abuse at Mr Machett and his colleague for about 10 minutes until their train arrived; (k) on 23 February 2015 the tenant attended the community room in the common area for a meeting between the applicant's employees Ms Julia McKenzie, Ms Diana Fahreddine (who is of the Muslim faith and wearing a hijab or head covering, somewhat similar to the head covering which used to be worn by Catholic nuns), Ms Stephanie Saward (tenancy manager), and Ms Rowa Omari, and a number of tenants; (l) prior to the meeting at about 9.45am Mr Xenos also spoke directly to Ms Fahreddine (who was wearing a hijab) and said: (i) what are you doing here? (ii) you Muslim shit race, go back to where you belong, this nation is made up for Aussies; (iv) I will show you what the community is made of, not you people trying to rule this nation; (m) during and after the meeting he was involved in incidents during which he said the following words or words to the following effect: (i) I hate all Muslims and we should kill them all; (ii) I am an atheist; (iii) watch your tone and be careful or else; (iv) I am not a dobber. I am Australian and we don't dob; (v) I don't want to talk to you as I don't trust St George Community Housing staff as St George Community Housing evicted Belinda White; (vi) St George Community Housing doesn't know how to treat people with mental health issues and if she (Ms White) kills herself it is St George Community Housing's fault.
2. The Tribunal member then made the following findings: 5 Mr Xenos disputes the facts alleged by the applicant's witnesses and offers a different version in his statutory declaration, exhibit 1, pp 2 - 5: a. he downplays the substance of what he said, eg at [7] I told them something to the effect that "they were not permitted to enter my residence"; b. At [8] & [9] he explains interaction between him and the applicant was to be in the presence of his social worker, who was not there, and he felt ambushed; c. At [10] & [11] he believed the applicant was treating his friend Ms White badly; d. At [26] "my only religion is cricket" said to Ms Fakhreddine; e. At [31] & [32] despite interrupting the meeting he took offence and said "words to the effect "watch your tone"" and he believed he had the right to be heard, which on the evidence was actually exercised as a right to interrupt the order of the meeting;
3. The Tribunal member also made the following findings: he did not accept Mr Xenos' version of the facts or that his conduct could be excused or was justified by his medical condition. The Tribunal member said that he had the benefit of observing Mr Xenos' demeanour during the hearing and formed the impression that he was somewhat spontaneous and any problem controlling his behaviour arose from matters which he could not control. He observed him act in a controlling manner towards his solicitor, insisting that she act as he wished (which she did not). He had an impression that he could be a bully if he was not getting his own way, and that he could become unpredictable and had a difficulty accepting anything that was not going in the way he wanted. However the Tribunal member hastened to add that this observation was based on life experience and not experience or qualification as a psychologist or psychiatrist.

Tribunal findings on legal issues and further findings of fact

1. The Tribunal member found that the proscribed conduct in s 92 of the Act namely threaten, abuse, intimidate and harass, were subjective matters of perception by the person or persons to whom the conduct was directed. The effect on the person to whom the conduct was directed was also to be judged subjectively, within a range for what was acceptable within the standards of the contemporary community which excludes the perception of the most sensitive and timid at one end of the range, and perhaps the unusually robust at the other end. Other factors are the circumstances in which the conduct occurred. The Tribunal member went on to state that such conduct occurs in circumstances which are unusual and outside acceptable contemporary community standards. He held that the facts showed Mr Xenos' conduct and that it was difficult to think of any conclusion other than it involved abuse of the applicant's employees going about their lawful day to day work (see pars 8 - 9 of the reasons for decision).
2. The Tribunal member went on to state that threats and/or abuse on their own were insufficient to establish the criteria of s 92 (1) (a) of the Act. They had to be serious or persistent and either a single serious event or a persistent series of less serious events. In that latter case those events were persistent in the sense that they were continuing over a period of time and although each incident considered in isolation was not serious, when considered together they showed a pattern.
3. In par 12 of the reasons for decision, the Tribunal member stated that persistent meant continuous and constantly repeated. He found that the facts showed that Mr Xenos' conduct occurred every time he came into contact with the applicant's employees. There was no evidence from him which showed instances to the contrary. The Tribunal member was of the opinion that the material conduct could be classed as persistent.
4. In par 13 of the reasons for decision, the Tribunal member found that there was nothing about Mr Xenos' conduct that was not to be taken seriously. None of the incidents could be seen as trivial. The relevant language in the context was serious abuse.
5. In par 14 of the reasons for decision, the Tribunal member stated that in the course of their employment, the applicant's employees deal with social housing tenants on a daily basis, and regularly have to deal with difficult and/or disturbed tenants such as their experience is likely to make them robust. However, the test was not the degree of robustness but whether or not contemporary community standards would regard the material conduct as so serious as to make it unacceptable. The Tribunal member found that the tenant's conduct was serious abuse and was unacceptable.
6. The Tribunal member then made reference to the fact that the Tribunal had a discretion to exercise in determining whether or not to terminate the tenancy.
7. In par 19 of the reasons for decision the Tribunal member stated: The interests of the parties are also to be considered. I am unimpressed by the assertions that Mr Xenos will be prejudiced if the tenancy is terminated. There was no evidence of any financial hardship, which I would have thought would have been in evidence to show that he would not be able to get alternative and suitable accommodation in a remote location which would prevent him from having access to his current support group and treating specialists. There was no evidence of a lack or shortage of suitable accommodation. There was no evidence to suggest anything other than Mr Xenos would have the inconvenience of a disruption to his current residential arrangements.
8. In par 20 of the reasons for decision the Tribunal member stated: "To be balanced against the disruption which Mr Xenos would suffer as a result of termination of the tenancy was the risk to the applicant's employees from Mr Xenos' continuing behaviour or his likely behaviour if the tenancy is not terminated." In his opinion the employees would be subject to unreasonable risk.
9. In par 21 of the reasons for decision, the Tribunal member stated: These matters have a tendency to escalate out of control over time. The abuse and aggression shown by Mr Xenos towards the applicant's employees is unlikely in the future to be diminished, and more likely to continue to escalate with a real risk of spiralling out of control. What is needed is a circuit breaker which interrupts the current situation and breaks the cycle. The circuit breaker requires Mr Xenos to be removed from his current situation by termination of his current tenancy.
10. The Tribunal member concluded that in all the circumstances it was just to make the order sought.

The appellant's oral submissions to the Appeal Panel

1. The solicitor for the appellant made a number of oral submissions to the Appeal Panel which included the following: 1. neither party ran a case that Mr Xenos' conduct occurs every time he comes into contact with the applicant's employees (see par 12 of reasons for decision which is set out in par 20 above). Further, there was no evidence to support that finding; 2. paragraph 9 of the declaration of Mr Crawford went to (contradicted) paragraph 21 of the reasons for decision; 3. homelessness was raised by Mr Xenos and there was a wide variety of evidence concerning the possibility of homelessness. A submission was made to the effect that the manner in which the Tribunal dealt with the evidence of homelessness resulted in a breach of procedural fairness. It was also submitted that the Tribunal member found there was no evidence to prove homelessness and therefore he found that Mr Xenos would not become homeless if an order terminating the tenancy was made. It was submitted that the member had a duty to raise that question with Mr Xenos and his support team and give them the opportunity to deal with it - and the Member failed to do so; 4. par 21 of the reasons for decision disregarded the evidence of Mr Crawford of the prospects of Mr Xenos' health recovering and improving; 5. contrary to the finding in par 19 of the reasons for decision, there was significant evidence that if an order for termination were made, what would be involved would be more than a disruption to Mr Xenos' current residential arrangements (see par 19 of the reasons for decision); 6. the findings of fact in the second and final sentences of par 19 of the reasons for decision were incorrect; and 7. reference was made to the fact that the Tribunal had a discretion to exercise in determining whether or not to terminate the tenancy.
2. Oral submissions were also made on behalf of Mr Xenos taking issue as to what was said on 23 February 2015.

Oral submissions made on behalf of St George Community Housing

1. It was disputed that there was anything other than minor discrepancies between the statutory declarations relied upon by the applicant. It was submitted that Mr Xenos' medical condition was not an excuse for his behaviour to the staff. The onus was upon Mr Xenos to prove that termination would result in homelessness. The safety of the employees was more important than possible homelessness of Mr Xenos. Mr Xenos did not lead any evidence as to what accommodation is available to him.

Appellant's written submissions

1. Detailed written submissions in support of each of the six grounds of appeal were relied upon by the appellant. We have taken all of them into account but will not record them in these reasons. They included the following submissions. The paragraph numbers of the submissions are given: (a) ground of appeal 1 (a) - Paragraph 12. There was un-contradicted evidence available to the Tribunal not only from the Appellant but also by his professional medical support team. Paragraph 13. To the extent that the Tribunal took into account the Appellant's medical condition, it was submitted that it was only taken into account in terms of determining whether the Appellant had committed the alleged conduct, rather than in terms of whether the Tribunal should exercise discretion to terminate the Appellant's tenancy; (b) ground of appeal 2 - Paragraph 35. There was no evidence before the Tribunal that the conduct as described by the Respondent occurs every time the Appellant comes into contact with the Respondent's employees; (c) ground of appeal 3 - Paragraph 39. The Respondent is a specialist community housing provider funded by the New South Wales Government. There is a distinct population of the Respondent's tenants that will have mental health and neurological concerns. As a specialist community housing provider, their contemporary community standard in working with this sub-set of their housing population should be higher than other generalist housing providers or say, the private rental market; (d) ground of appeal 4 - Paragraph 45. There was no evidence put forward to the Tribunal that every time the Appellant comes into contact with the Respondent's employees that he displays similar conduct; (e) ground of appeal 5 - Paragraph 49. The Appellant led evidence from his support network that he would be severely affected if his tenancy was terminated. It was never put to the Appellant, or led in evidence that the Appellant would be able to secure alternative accommodation and his health would not be affected. The Appellant was not afforded procedural evidence (sic) as these claims were not put to the Appellant or led in evidence; (f) ground of appeal 6 - Paragraph 50. The Tribunal took into account the incident of 17 February 2015 which is outside the landlord-tenant relationship. Paragraph 51. The Appellant was acting as advocate for another tenant in regards to her tenancy matter. This incident is outside the Appellant's landlord-tenant relationship because: (i) the interaction was not in relation to the Appellant's tenancy and distinctly separate from his tenancy; (ii) it did not occur in the tenancy premises. Paragraph 52. The landlord-tenant relationship is a formal and concrete relationship. Like any formal relationship it does not have finite limits and boundaries. By way of analogy, it is similar to an employee-employer relationship as both are governed around a principled agreement. For instance, an employer and employee who may see or interact with each other in a social context is different from interactions in the course of employment.

Respondent's written submissions

1. The Respondent provided brief written submissions in response to the application. We have taken all of them into account but will not record all of them in these reasons. The written submissions included the following: 1. while Mr Xenos may find he becomes homeless as a result of his actions, SGCH takes the responsibility of providing a safe working environment for their employees and contractors; 2. SGCH does not agree that their staff or contractors should be put in an unsafe environment; 3. the incidents have been recorded and given as evidence in the NCAT hearing; 4. SGCH believe that what occurred at Glenfield Station occurred in the landlord-tenant relationship as Mr Xenos is a tenant of SGCH and knew he was interacting with SGCH staff at the time of the incident; 5. the possibility of what medical support Mr Xenos may or may not receive if his tenancy is terminated does not outweigh the safety of its employees or contractors; 6. the decision of the Tribunal was not against the weight of evidence; 7. the original Tribunal application should not be dismissed. A dismissal would lead to SGCH staff and contractors being placed at risk in future dealings with Mr Xenos.

Consideration

1. The Appellant raised as matters to be taken into account by the Tribunal member when exercising his discretion, the impact that eviction and homelessness would have upon his health and his wellbeing.
2. In his reasons for decision, the Tribunal member set out the detail of Professor Brew's letter but only included brief extracts from the statutory declaration of Mr Crawford and the letter from Mr Hampton (see par 16 (f) above). The only reference to the evidence of Mr Xenos concerning matters which were required to be taken into account by the Tribunal member when exercising his discretion, is set out in par 24 above.
3. Before an Appeal Panel can interfere with an exercise of a discretion by a Tribunal member, it must appear that some error has been made in exercising the discretion. Thus it is only if the Tribunal member has acted upon a wrong principle; allowed extraneous or irrelevant matters to guide or affect him or her; has mistaken the facts; or has not taken into account some material consideration, that the Appeal Panel may possibly interfere (House v The King [1936] HCA 40 (1936) 55 CLR 499 at 504 - 505). The Appeal Panel would also have to consider whether the exercise of the discretion involved a question of law (see s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (the Act) and for matters in the Consumer and Commercial Division whether the appellant may have suffered a miscarriage of justice for the reasons set out in clause (2), Part 6, Schedule 4 of the Act.
4. The Tribunal member was required to give proper reasons for his decision. Such reasons include making findings on material questions of fact, referring to the evidence on which those findings were based, setting out the Tribunal's understanding of the applicable law and explaining the reasoning process that led the Tribunal to the conclusions it made. In assessing such reasons, however, it is appropriate to bear in mind the High Court's endorsement of the view that in the case of administrative decision makers this assessment is not best approached with an eye keenly attuned to the perception of error (see Director General, Department of Finance & Services v Porter [2004] NSWCATAP 6 at [32]).
5. We are of the view that the following evidence was important evidence which the Tribunal member was required to take into account when exercising the discretion whether to make a termination order: the statutory declaration of Mr Crawford concerning homelessness at pars 7 and 9; the statutory declaration of Mr Xenos concerning homelessness at pars 23, 25 and 26; the statutory declaration of Mr Crawford concerning eviction at pars 7, 12, 13 and 15; the statutory declaration of Mr Xenos concerning eviction at pars 20 and 22 and the letter from Mr Hampton concerning eviction, fourth paragraph.
6. That evidence was as follows: 1. Mr Crawford - homelessness - 7. I am concerned about the possibility that Phillip will be evicted from the current dwelling. In particular I am concerned that homelessness will intensify the decline of Phillip's mental wellbeing as people living with […] are prone to depression anxiety, neurological impairment, and alcohol dependence. This is further compounded by Phillip's profound experiences of social isolation, poverty and access to accommodation. Compounded with homelessness will add instability to Phillip's life and affect his ability to effectively manage and maintain a level of wellness even when they are (sic) afforded access to care and shelter. 9. Of great concern to me and PL NSW is that the possibility of homelessness will result in Phillip being excluded from some of the support services he relies on to administer the care that he needs. I believe that if Phillip is allowed to maintain a fixed domicile and if given a reasonable opportunity, will see him recover some if not all of his abilities to interact at a more rational level. 1. Mr Xenos - homelessness - 23. Homelessness would affect me psychologically as well. I have had a history with anti-depressants which are compounded by […] neurological disorders. 25. I do not believe I would survive if I became homeless. 26. When I was diagnosed with […] I was told that I had […] defining illnesses and I was close to death. I have been working hard to improve my health and follow the directions of my doctors. I am terrified that if I become homeless my health will decline and I will again develop […] and die. 1. Mr Crawford - eviction - see par 38 (a) above. 12. I am extremely concerned that if Phillip were to lose his housing security it would further exacerbate and add to the deterioration of his already considerable health challenges. 13. I believe any threat to Phillip's housing security would be irresponsible at this stage of his illness, effectively adding another level of obstruction to his possibility to recover any degree of improved health, add weight to his stress and anxiety, and in turn result in further isolation and possibly incarceration. 15. I and PL NSW are working actively to broker further support services for Phillip. If he was to lose his current housing this would destroy what is already a fragile support network within which it is envisaged he will gain some, if not the return of all, of his health if given the right care and support. 1. Mr Xenos - eviction - 20. The immediate consequences if I am evicted will be drastic and life threatening. 22. If I evicted (sic) it will be difficult to access the medical services I currently rely upon. It would prove disastrous to my medical and psychological regime. 1. Mr Hampton - There are serious concerns if Phil was to be evicted and the impact would have enormous detrimental effects on his health and well-being. He would be unable to take medications or take care of his activities of daily living, which are essential for his well-being.
7. None of the above evidence was referred to by the Tribunal member. Except for the appellant, none of the above witnesses were cross examined. The appellant was asked two questions by the Tribunal Member. There was also the evidence in the statement by Professor Brew set out in par 4 f i of the reasons for decision (see par 15 (f) (i) above). Apart from recording that evidence of Professor Brew, the Tribunal member said nothing else about it.
8. We are of the view that in exercising his discretion, the Tribunal member was required to take into account the evidence referred to in par 38 above and the evidence of Professor Brew as it was material to how the discretion should be exercised. In failing to do so, we are of the view that the Tribunal member fell into error. As the evidence was not referred to by the Tribunal Member in his reasons for decision, we infer that he overlooked the evidence or failed to give consideration to it (Beale v Government Insurance Office NSW (1997) 48 NSW LR 430 at 443). In doing so, we are of the view that the Tribunal Member fell into error.
9. If the reference to "assertions" in the second sentence of par 19 of the reasons for decision, was meant to be a reference to the evidence given by Mr Xenos, Professor Brew, Mr Crawford and Mr Hampton in relation to homelessness, eviction and the effects that they would have upon the health and wellbeing of Mr Xenos, there is no statement in the reasons for decision directed to that evidence nor why it should not be accepted. In the third and fourth sentences of that par 19 there are statements by the Tribunal member that there was no evidence of any financial hardship and no evidence of a lack or shortage of suitable accommodation. But that does not explain why the evidence of those witnesses should not be taken into account when exercising the discretion whether to make a termination order.
10. We are of the view that the finding in the last sentence of par 19 of the reasons for decision is wrong (see par 24 above). In our view the evidence referred to in par 38FF above contradicts what is set out in that sentence. We are therefore of the view that the Tribunal member has mistaken the facts.
11. For the reasons set out in pars 37 - 42 above, we are of the opinion that the Tribunal member made errors in exercising the discretion.
12. If the failure by the Tribunal Member to refer to the evidence summarised in par 38 above amounts to a failure to give an adequate statement of his reasons, which in our view it is, then that may be an error of law (Beale v Government Insurance Office NSW at page 444).
13. Section 80 (2) (b) of the Act relevantly provides that an internal appeal may be made as of right on any question of law or with the leave of the Appeal Panel, on any other grounds. However in this matter, the Appeal Panel may grant leave against the decision only if the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable or the decision of the Tribunal under appeal was against the weight of evidence (Schedule 4, Part 6 clause 12 (1) of the Act).
14. In our view a decision which: 1. is based upon an exercise of discretion which failed to give consideration to matters of fact which are highly relevant to the exercise of that discretion; 2. terminated the tenancy without giving consideration to those matters; and 3. could have serious consequences for the appellant's health, is not fair and equitable.
15. We are of the view that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable. We therefore grant leave to the appellant to make the appeal under s 80(2)(b) of the Act, on the ground that the Tribunal Member, in exercising his discretion, fell into error, has mistaken the facts and failed to give consideration to matters of fact which are highly relevant to the exercise of that discretion.
16. We have identified above the occasions when the Tribunal Member has fallen into error, has mistaken the facts and failed to give consideration to matters of fact which are highly relevant to the exercise of the discretion. These errors show that the Tribunal Member made errors in exercising his discretion.
17. We are therefore of the view that because of these errors and failure, the appeal must be allowed.
18. As the proceedings will be remitted for rehearing, it is inappropriate for the Appeal Panel to express any views on the other issues raised in the appeal.

Orders

1. The Appeal Panel makes the following orders: 1. The appeal is allowed. 2. The orders made on 20 April 2015 are set aside. 3. The proceedings are remitted to the Consumer and Commercial Division for rehearing by a differently constituted Tribunal. 4. Each party is to pay their costs of the appeal.
2. At the hearing of the appeal, the solicitor for the appellant made an application for an order under s 64 of the Act that the appellant's medical condition not be disclosed in the reasons for decision of the Appeal Panel. The Respondent did not oppose the making of that order. In those circumstances, the Appeal Panel has not stated in these reasons for decision, what is the appellant's medical and it is unnecessary to make an order under s 64.

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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: 17 December 2015