Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nolan v St George Community Housing Limited [2021] NSWCATAP 374 Hearing dates: 7 October 2021 Date of orders: 19 November 2021 Decision date: 19 November 2021 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member J S Currie, Senior Member Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The decision of the Consumer and Commercial Division made on 8 March 2021 is set aside and the following decision substituted for it: the Application is dismissed. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Social housing — Social housing tenancy agreement - Application by landlord for special performance order - Whether tenant had interfered or caused or permitted any interference with neighbour's reasonable peace, comfort or privacy Deficiencies in fact-finding process likely to have produced unfair result - No proper basis for findings as to tenant's culpability for 'causing or permitting interference' - Leave to appeal granted - Appeal allowed - New order substituted Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38(4), 80(2), 81(1), Sch 4 cl 12(1)(c) Residential Tenancies Act 2010 (NSW), ss 51(1), 187(1) Cases Cited: BHP Billiton Ltd v Dunning [2013] NSWCA 421 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 Collins v Urban [2014] NSWCATAP 17 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 Category: Principal judgment Parties: Deidre Ann Nolan (Appellant) St George Community Housing Limited (Respondent) Representation: Appellant (Self Represented) M Gumulia (Acting Team Leader) (Respondent) File Number(s): 2021/00080118 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 08 March 2021 Before: G Ellis SC, Senior Member File Number(s): SH 21/00318 reasons What is this appeal about? 1. This is an appeal against orders made by the Consumer and Commercial Division ("C&C Division") of the Tribunal in a residential tenancy matter. The orders were made under section 187(1)(b) of the Residential Tenancies Act 2010 (NSW) ("the RT Act"). 2. Those orders required the Appellant, Ms Deidre Nolan, as tenant, to comply with the terms of her residential tenancy agreement, so as to avoid interfering, or causing or permitting interference, with the reasonable peace, comfort or privacy of any of her neighbours. In default of that obligation, the landlord and respondent to this appeal, St George Community Housing Limited ("Community Housing") was given the right to renew proceedings in the C&C Division for a specific performance order under section 187(1)(b) of the RT Act. 3. The residential premises in question ("the premises") were in Concord. Concord is one of Sydney's oldest suburbs, having been settled by colonists in the 1790s. There are two theories as to the origin of its name. One school of thought is that it was so named in order to encourage peaceful co-existence between the colony's soldiers and free settlers. The other is that it was named to commemorate a battle: the Battle of Concord, Massachusetts in 1775: one of the opening engagements of the American War of Independence. Be that as it may, the facts of the case demonstrate that, unfortunately, the phrase "peaceful coexistence" cannot be applied to the relationship between Ms Nolan and her immediate neighbours. They lived in anything but concord. The proceedings, the orders and the appeal 1. On 5 January 2021, apparently as the result of complaints from Ms Nolan's neighbours, Community Housing, as landlord, commenced proceedings against Ms Nolan, as tenant, which sought an order under section 187(1)(b) of the RT Act. Relevantly, section 187 provides as follows: 187 Orders that may be made by Tribunal (1) The Tribunal may, on application by a landlord or tenant or any other person under this Act, make one or more of the following orders- (a) …… (b) an order that requires an action in performance of a residential tenancy agreement; … (h) an order directing a…tenant to comply with a requirement of this Act or the regulations, (i) a termination order or an order for the possession of the premises. 1. Community Housing indicated that the basis of its claim was that it had received complaints about Ms Nolan's "unacceptable behaviour which has caused neighbours to feel harassed and intimidated ...". Community Housing did not seek a termination order or an order for possession under paragraph (i) of the sub-section, but rather an order under paragraph (b), commonly known as a "specific performance order". 2. The evidence before the Tribunal indicated that numerous complaints had been made over some time (at least from late 2018 to December 2020) by members of the family ("the neighbours") who occupied the property next to the premises. In particular, the neighbours claimed that Ms Nolan had interfered with their peace, comfort and privacy by her behaviour and in particular by: 1. making numerous calls to emergency services to complain about noise and vibration said to be emanating from the neighbours' air conditioning unit; 2. hosing a common area footpath, so as to create a falls risk for the neighbours, particularly one of them who is of advanced years; 3. playing loud music when the neighbours were attempting to converse; and 4. engaging in verbal abuse. We understand that allegation to include abuse directed to the neighbours and on occasion to other residents. 1. Although those 4 matters were not referred to specifically as "grounds" in the application or before the Tribunal, for convenience of reference we shall refer to them as "the Grounds" and to each of them as a "Ground". 2. Community Housing's application to the Tribunal alleged that Mrs Nolan had breached section 51(1)(c) of the RT Act. Significantly no breach of any paragraph other than (c) was raised in the application or was referred to in the Grounds. Section 51(1) is in the following terms: 51 Use of premises by tenant (1) A tenant must not do any of the following— (a) use the residential premises, or cause or permit the premises to be used, for any illegal purpose, (b) cause or permit a nuisance,(c) interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant, (c) interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant (d) intentionally or negligently cause or permit any damage to the residential premises, (e) cause or permit a number of persons to reside in the residential premises that exceeds any number specified in the residential tenancy agreement. 1. The application recorded Ms Nolan's alleged behaviour as comprising: "1. Regularly calling emergency services about the … neighbours … 2. Sending repeated and ongoing emails to (a) private certifier questioning the compliance of the air conditioner installed at (the neighbours' address). 3. Recording (the) neighbours in their own yards." 1. However at the hearing on 8 March 2021 and in the Member's reasons for decision ("Reasons"), the matters complained of were apparently expanded to comprise those in Grounds 1 to 4 set out at [6] above. It is appropriate for us to consider the 4 Grounds, rather than just the 3 instances of behaviour ("the particulars") related in the application before the Tribunal, because it was the Grounds alone which appear to have been considered by the Tribunal at the hearing and in its Reasons and because, for the most part the Grounds encompass the same general allegations as to Ms Nolan's behaviour as the particulars. 2. At paragraph [32] of the Reasons, the Tribunal indicated that it had accepted the evidence before it as establishing that Ms Nolan had engaged in conduct relevant to Ground 1 being the making of over 75 calls in total to the '000' emergency number, Crime Stoppers, PoliceLink and Burwood Police Station between 1 December 2019 and 16 February 2020 and 125 such calls between 17 February 2019 and 2020, and that: "the improper use of emergency services number cannot be condoned" 1. The Tribunal concluded at paragraph [32] in the following terms: "The Tribunal is satisfied that this conduct alone is sufficient to warrant making the order sought." (See the full extract of these paragraphs of the Reasons at [31] below). 1. On the basis of that finding by the Tribunal and its observations as to the other Grounds (which we have discussed further below), the Tribunal made the orders sought, the effect of which was that: 1. Ms Nolan was required to comply with the terms of her residential tenancy agreement by refraining from interfering, or causing or permitting any interference, with the reasonable peace, comfort or privacy of any neighbour; and 2. if that order was not complied with, then at any time within 12 months of the orders, Community Housing as landlord could seek leave to renew the proceedings. 1. The orders were made on 8 March 2021 and received by Ms Nolan on 9 March 2021. The Registry received Ms Nolan's Notice of Appeal on 22 March 2021 and accordingly the appeal made was within time. The real issues and our decisions 1. It fell to us to decide: 1. whether the Tribunal's fact-finding process which led to its conclusion that Ms Nolan was culpable for interfering or causing or permitting any interference with the reasonable peace, comfort or privacy of her neighbours contrary to section 51(1(c) of the RT Act, was undertaken in such a way that it was likely to produce an unfair result, so that it would be in the interests of justice for it to be reviewed and leave to appeal should be granted; 2. whether the Tribunal had made an error of law; 3. whether we should allow the appeal; 4. what other orders we should make. 1. We decided, respectively, that: 1. the Tribunal's fact-finding process which led to its conclusion that Ms Nolan was culpable under section 51(1)(c) was undertaken in a way which was likely to produce an unfair result, so that it was in the interests of justice for it to be reviewed and leave to appeal should be granted; 2. this issue did not need to be decided; 3. we should allow the appeal; 4. we should set aside the decision of the C&C Division of the Tribunal on 8 March 2021 and substitute the following decision for it: the Application is dismissed. 1. These are our reasons for those decisions. Internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Questions of law 1. As has been noted in Robinson and Lucy's "NCAT Practice and Procedure", 2nd edition 2020, at [NCATA80.30], pp162-163, there is no satisfactory test of universal application to define the concept of an error of law: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 at 394. In that case it was noted that cases in the United Kingdom had recognised the need for a pragmatic approach to the distinction between error of law and error of fact. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law, so as to include whether there had been a failure to provide proper reasons; whether the Tribunal had identified the wrong issue or asked the wrong question; whether a wrong principle of law had been applied; whether there had been a failure to afford procedural fairness; whether the Tribunal had failed to take into account relevant considerations; whether it had taken into account an irrelevant consideration; whether there was no evidence to support a finding of fact; and whether the decision was so unreasonable that no reasonable decision-maker would have made it. Applications for leave to appeal 1. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, which often cite the Appeal Panel's decision in Collins v Urban [2014] NSWCATAP 17 ("Collins v Urban"). They are the same principles applied by the courts. 2. In order to be granted leave to appeal the applicant must demonstrate something more than that the decision was arguably wrong or that there is some bona fide challenge available to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20]; Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]. 3. In Collins v Urban, the Appeal Panel confirmed at [84] that ordinarily, it is appropriate to grant leave only in matters that involve issues of principle; questions of public importance or matters of administration or policy which might have general application; an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; a factual error that was unreasonably arrived at and clearly mistaken or the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result, so that it would be in the interests of justice for it to be reviewed. 4. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the C&C Division are limited to those set out in clause 12(1) of Schedule 4 of the NCAT Act. The Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision under appeal was not fair and equitable; or 2. the decision was against the weight of evidence; or 3. significant new evidence has arisen, being evidence that was not reasonably available when the proceedings under appeal were dealt with. 1. Collins v Urban is also authority for the proposition that a substantial miscarriage of justice should not be found to have occurred unless: [76] … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." 1. As a final hurdle, even if a C&C Division appeal has satisfied the requirements of clause 12(1) of Schedule 4, the Panel must still consider whether or not to exercise its discretion under s 80(2)(b) of the NCAT Act to grant leave to appeal. Documentation and submissions on appeal 1. We considered the following documentation and submissions in determining this appeal: 1. the C&C Division file for the matter, which included all documents filed for the hearing before that Division; 2. the Tribunal's orders dated 8 March 2021 and its reasons for its decision dated 9 March 2021; 3. Ms Nolan's Notice of Appeal and attachments; 4. Ms Nolan's Application for a Stay of the orders; which was granted by orders made on 7 April 2021; 5. further correspondence and documentation submitted by Ms Nolan in support of her appeal; 6. Community Housing's Reply to the appeal and attachments; 7. further correspondence and documentation submitted by Community Housing in response to the appeal; 8. all interlocutory orders made by the Appeal Panel; 9. Ms Nolan's Application to the C&C Division; and 10. oral submissions at the hearing of the appeal by Ms Nolan in person and by Ms M Gumulia as the approved representative of Community Housing. The parties' respective cases on appeal 1. Ms Nolan was unrepresented at the hearing of the appeal. Her case on appeal, in summary, was firstly that the Tribunal had erred at law, although she did not specify or provide particulars of the manner in which she alleged it had done so. In her Notice of Appeal Ms Nolan indicated that she sought leave to appeal on the grounds that: 1. the Tribunal's decision was not fair and equitable; 2. that decision was against the weight of the evidence; and 3. significant new evidence was now available which was not reasonably available at the time of the hearing. 1. Ms Nolan did not identify any new evidence which was now available but which was not reasonably available at the time of the hearing. However we understood from her oral submissions that she relied upon the way in which the Member's reasons for decision had explained her liability under section 187 of the RT Act as indicating that the decision was both unfair and inequitable and against the weight of the evidence. 2. We explained to the parties and in particular to Ms Gumulia in general terms our concerns with the manner in which the Tribunal had expressed its conclusions at paragraphs [31] to [36] of its Reasons and gave her the opportunity to address those matters (our concerns are set out more fully at [31] to [36] below). We understood her to contend that Ms Nolan's actions would have had the effects set out in section 51(1)(c) of the RT Act if they had indirectly caused interference with a neighbour's reasonable peace, comfort or privacy, which (as we understood her contention) the Tribunal had found to be the case. Ms Gumulia was unable to cite any authority in support of that proposition. CONSIDERATION The Tribunal's fact-finding process 1. The passage of the Tribunal's Reasons which is central to its finding that Ms Nolan was culpable for breaches of section 51(1)(c) is at paragraphs [31] to [36]. It is appropriate and useful to reproduce those paragraphs in full: "31. The landlord's evidence includes a document compiled by an Acting Inspector of Police, which the Tribunal considers to be reliable, independent evidence. Within that document, it is noted that "A review found between 1/12/19 and 16/2/20 Nolan called 000, crime stoppers, police link and Burwood Police Station over 75 times. In the 12 months prior to 16/2/20 Nolan had contacted these emergency lines over 125 times. 32. While it may be said that such calls do not involve the tenant directly interfering with the peace, comfort and privacy of the tenant's neighbour, such conduct clearly has that affect [sic] by seeking a [sic] the Police to take action against a neighbour. The landlord's submissions note that the police attended on the neighbour as a result of the tenant's calls. Of course, the improper use of the emergency services number cannot be condoned. The Tribunal is satisfied that this conduct loan is sufficient to warrant making the order sought. 33. Further, despite being provided with a response to her complaint to the Council, the tenant persisted in trying to have her complaint about her neighbour's air-conditioner dealt with by the local council. Such conduct, which was of the same nature as the calls to the Police in that it was trying to cause a problem for that neighbour, is a further example of the tenant seeking to interfere with the peace, comfort and privacy of her neighbour by having her use of an air-condition called into question. 34. Position in relation to the air-conditioner appears to be that, just as the applicant suggests its use interferes with her health, its owner maintains its use is necessary for her health. 35. It is not necessary to take the allegation of hosing the footpath of a neighbour who suffers from polio into consideration but that conduct, if it occurred and if it continues, would become additional evidence against the tenant. 36. There was also an allegation of the tenant playing loud music which does not appear to have been contradicted. The response to the allegations of verbal abuse of the neighbours by the tenant appears to have been to suggest that they were verbally abusing her. Even if that contention is correct, it does not excuse such conduct by either party." 1. At the outset, we confirm that we have made appropriate allowance for the fact that Members hearing matters in the residential tenancy list of the C&C Division of the Tribunal have a heavy caseload and often have restricted time for each hearing. In this case the Reasons appear to have issued the day after the hearing, so the Member can be assumed to have given consideration to the material before him prior to finalising his Reasons. 2. That said, the passage cited above, particularly paragraphs [31] and [32], which appear to contain findings and observations which were fatal to Ms Nolan's case before the Tribunal, in our view, demonstrates that the Tribunal's fact-finding exercise was forensically and analytically defective. That in turn undermines the validity of the conclusions which the Tribunal drew on key issues. The most significant defects in that regard appear to be these: 1. the use of the phrase , in the penultimate sentence of paragraph [32]: "Of course, the improper use of the emergency services number cannot be condoned." (Emphasis added) That suggests a conclusion that all or at least a large number of the calls made to '000', Crime Stoppers, Police Link and Burwood Police (collectively "the emergency services numbers") (a) were improper and (b) (by implication from the remaining paragraphs in this section) that Ms Nolan made them. 1. paragraphs [31] and [32] read together contain a clear implication that Ms Nolan made all the calls reported and that none, or few, of them were genuine and so constituted a waste of time for the emergency services providers. Yet: 1. there was nothing reflected in the Reasons to indicate or justify a finding that on each occasion, the caller was Ms Nolan personally (even though they were recorded by Police as coming from her telephone number, as was indicated in the Police report); 2. the content of particular calls or Police findings as to particular calls was not, so far as we can ascertain, in evidence. So there is at the least an open question as to whether some or indeed many of them might be reasonably regarded as genuine and so not "improper". The proportion of genuine calls to the total would, on any proper analysis, be a necessary factor in any proper determination that the practice of making the calls constituted "improper use" of the emergency services; and, most significantly, there was no evidence as to: 1. how many of the calls actually resulted in a Police visit to the premises, or 2. the extent to which any of the calls (directly or indirectly, including by reason of Police visits to the premises) resulted in any interference with the reasonable peace, comfort or privacy of any neighbour; 1. more generally, there is no explanation as to how the making of numerous calls by someone to the emergency services numbers (as annoying and wasteful of the time and resources of as that possibly may be) can, of itself, amount to that person (directly or indirectly) engaging in interference, or causing or permitting interference, with the reasonable peace, comfort or privacy of any of the person's neighbours, for the purposes of section 51(1) of the RT Act; 2. the main problem with the Reasons, being our only source of explanation as to the way in which the Tribunal reached its conclusions in the absence of a recording or transcript, is the Tribunal's conclusion in the last sentence of paragraph [32] that the conduct, being the making of numerous calls to emergency services numbers: "…alone is sufficient to warrant the making of the order sought." 1. We could not discern, in the absence of a transcript or recording, whether any of the matters above which led to Tribunal's findings was put to Ms Nolan. The documentary material lodged by Ms Nolan for the hearing seems to have included expansive explanations of her diagnosed disabilities and her contentions as to the effect of prolonged noise and vibration on those disabilities and her comfort and health generally. There is no express and clear indication in the Reasons that that evidence had been taken into account; for example, as a partial explanation of the calls to emergency services. 2. For completeness, we record that the Tribunal's conclusions at paragraphs [34] to [37] of the Reasons: 1. reach no discernible conclusion as to Grounds 2 (allegation of hosing the footpath) and 4 (allegations of verbal abuse); 2. make it clear in relation to Ground 3 that the allegation playing of loud music "does not appear to have been contradicted" but it seems unlikely that that was regarded by the Tribunal as justification for a section 187(1)(b) order, in light of the Tribunal's critical conclusion at [32] that the making of calls to emergency services "alone" was sufficient to warrant making the order; and 3. make no finding and reach no conclusion as to nuisance, even though that topic is discussed at paragraph [37] of the Reasons. Paragraph (b) of section 51(1) is directed at a tenant causing or permitting a nuisance. The absence of a specific finding as to nuisance is consistent with the fact that Community Housing's application to the Tribunal relied only on a breach of paragraph (c) of the sub-section, (interference with the reasonable peace, comfort or privacy of any neighbour) and not to paragraph (b). 1. We also record that we were unable to locate any authority in favour of the proposition advanced by Ms Gumulia for Community Housing, to the effect that Ms Nolan's actions would have had the effects set out in section 51(1) (c) of the RT Act if they had indirectly caused interference with a neighbour's reasonable peace, comfort or privacy. Should leave to appeal be granted? 1. In her Notice of Appeal, Ms Nolan indicated that she sought leave to appeal. 2. We found that: 1. the Tribunal's conclusions described at [33] above to be the result of a fact-finding process which was unorthodox and which appears likely to have produced an unfair result; and 2. it would be in the interests of justice for the Tribunal's decision to be reviewed. 1. As noted at [23] above, on the authority of Collins v Urban, it is appropriate for us to grant leave where we have reached such conclusions. 2. For the purposes of clause 12(1) of Schedule 4 of the NCAT Act, we were satisfied that Ms Nolan may have suffered a substantial miscarriage of justice, because the manner in which the Tribunal reached its conclusions as explained at [33] above resulted in a decision which was against the weight of the evidence and in all the circumstances was not fair and equitable. In our view, at minimum there was a significant possibility or a chance which was fairly open that a different and more favourable result would have been achieved for Ms Nolan had the Tribunal adopted a different manner of analysis than that which we have explained above, at [33] and [34] above. 3. For those reasons we decided to exercise our discretion under s 80(2)(b) of the NCAT Act to grant leave to appeal. The appeal should be allowed 1. We concluded that given the significant possibility of a more favourable result if the Tribunal had adopted a different manner of analysis, Ms Nolan's appeal should be allowed. Error of law 1. Leave to appeal having been granted and the appeal allowed, there seemed no necessity to pursue the question of whether there had in addition been an error of law. That was a course of action which was consistent with our obligations under sections 36 and 38(4) respectively of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings and 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. Conclusion and appropriate orders 1. It followed that we should order that leave to appeal be allowed and the appeal itself allowed. 2. It followed from that that the orders of the C&C Division of the Tribunal should be set aside, in exercise of our powers under section 81(1)(c) of the NCAT Act. The Tribunal's orders were in the following terms: "1. The tenant must comply with the terms of her residential tenancy agreement by [sic.] Interfering, or causing or permitting any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant. 2. If these orders are not complied with by the tenant then: at any time within 12 months of these orders the landlord may seek leave to renew these proceedings." 1. Order 2 was sensible, in light of the Tribunal's conclusions. That order gave the landlord, Community Housing, the right to renew the proceedings in the event of any future alleged breaches of section 187 of the RT Act. We could see no prejudice to either party, in the circumstances of the case, in substituting for the existing order an order that the application is dismissed. That would leave unfettered Community Housing's right to bring proceedings for any future alleged breaches by Ms Nolan of section 51(1). It is to be hoped that Community Housing will not need to consider that course of action. ORDERS 1. We make the following orders: 1. Leave to appeal is granted; 2. The appeal is allowed; 3. The decision of the Consumer and Commercial Division made on 8 March 2021 is set aside and the following decision substituted for it: the Application is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2021