Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Forest v Suzanne [2022] NSWCATAP 292 Hearing dates: 14 June 2022 Date of orders: 8 September 2022 Decision date: 08 September 2022 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President G Burton SC, Senior Member Decision: Leave to appeal is refused and the appeal is dismissed Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Quiet enjoyment – shared accommodation – breakdown in relationship between flatmates EVIDENCE – Surveillance Devices Act 2007 – unauthorised recording – admissibility where rules of evidence do not apply – discretion to admit – factors relevant to exercise of discretion. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Surveillance Devices Act 2007 (NSW) Surveillance Devices Act 1998 (WA) Cases Cited: BTK v The Public Guardian [2015] NSWCATAP 89 Collins v Urban [2014] NSWCATAP 17 Corby v Corby [2015] FCCA 1099 Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 Walter Vignoli v Sydney Harbour Casino Pty Ltd & Anor [1999] NSWSC 1227 Texts Cited: Nil Category: Principal judgment Parties: Wendy Forest (Applicant) Emma-Louise Suzanne (Respondent) Representation: Applicant (Self-represented) Respondent (Self-represented) File Number(s): 2022/00060313 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 15 February 2022 Before: S Hanstein, General Member File Number(s): RT 21/41203 REASONS FOR DECISION 1. This appeal relates to proceedings under the Residential Tenancies Act 2010 (NSW) (RT Act). Those proceedings were application RT 21/41203 which concerned a residential tenancy agreement in respect of a property in Balmain. The appellant was the applicant in those proceedings and a tenant of the respondent. The agreement was a subtenancy, the respondent being the tenant under a separate residential tenancy agreement with the landlord. 2. The proceedings were originally commenced on 18 July 2021 being application RT 21/30938 (original application). The original application was dismissed on 14 September 2021 pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) as the appellant failed to appear. 3. The appellant subsequently applied to reinstate the proceedings by application RT 21/39102 (reinstatement application). That application was granted and an order was made on 30 September 2021 reinstating the original application. Consequently, the reinstated proceedings became application RT 21/41203 (reinstated proceedings). 4. In the original application, the appellant sought the following orders: Section 187(1)(a) - An order that restrains any action in breach of a residential tenancy agreement Section 187(1)(d) - An order as to compensation $1000 Section 187(1)(e) - An order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement Section 187(1)(h) - An order directing a landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations Section 11 - An order that an agreement is or is not a residential tenancy agreement under the Act Section 175 - An order regarding the payment of a rental bond Section 73(a) - An order to allow a lock or security device to be changed or removed or added Section 73(b) - An order authorising the tenant to refuse to give the landlord a copy of a key or other opening device or information Section 115 - An order declaring that a termination notice has no effect because it was a retaliatory notice 1. The compensation claimed by the appellant was set out at page PG 4 of the bundle of documents provided to the Tribunal at first instance. Those claims were as follows: Calculation of Monetary Compensation S. 187(1)(d) 10.These monetary calculations are made solely for under the sole jurisdiction of RTA in "cheap, quick & just" NCAT and will not form basis of compensation calculation under common law / other jurisdictions. Respondent has suffered - including but not limited - both direct and indirect economic and non-economic losses due to loss of productivity otherwise that have not been calculated here. 11. Six days deprivation of unfettered use of cooking facilities without cause should see rent paid back at 25% - 230 AUD / 7 days * 0.25 * 6 days = (49.29$) and compensation of (500.00$) as hurt and humiliation. 12. Four days serious deprivation of toilet and/or shower should see rent paid back at 50% - 230 AUD / 7 days * 0.50 * 4 days = (65.71$) and compensation of (2000.00$) as hurt and humiliation in aggravated basis. 13. Respondent physically forcibly breached the door (S.50) of Applicant one time on Saturday 17 July 2021 night (1000.00$) and further attempted to breach it (500.00$) after this time Applicant managed to hold the door closed whilst falling on back the first time. 14. Calculation as to (S.50) breaches of reasonably quiet enjoyment, peace and privacy should include the two false police calls to the police by the Respondent resulting Applicant being victimised solely by trying to enforce legal rights in good faith and where Applicant clearly referred to Respondent that application has been made to NCAT to litigate the matter on which Respondent victimised Applicant. 1. First (1000.00$) on Saturday 17 July 2021 night for aggravated hurt and humiliation and 2. Second (2000.00$) on Sunday 18 July 2021 morning for aggravated hurt and humiliation. 15. Further calculations as to violations of reasonable enjoyment of quiet and peace should include the behaviour otherwise from the four days intimidation campaign where the Respondent waged the intimidation campaign otherwise for each minute the behaviour sustained - Applicant is willing to accept (4000.00$) for hurt and humiliation prior having to litigate in common law / other courts / jurisdictions on the same issues. 16. Further calculations as to violations of reasonable privacy should include evident non-privileged and unauthorised disclosures by Respondent to other persons that have compromised Applicants privacy -- cross examination of witnesses procured by Respondent is required for this what exactly was breached and to what degree. 1. The proceedings were finally heard on 10 November 2021. The decision was reserved. On 15 February 2022 the Tribunal made an award in favour of the respondent appellant in the sum of $115.00 but no order for costs was made (decision). The Tribunal published written reasons for decision (reasons). 2. In making an award or $115 the Tribunal found there had been a breach of the obligation of the landlord to provide quiet enjoyment to the tenant under s 50 of the RT Act. At [13]-[17] the Tribunal found: 13 The applicant claims that the respondent was in breach of the obligations under section 50 of the Act during the period from 17 July 2021 to 22 July 2021. The applicant claim includes that the respondent was intoxicated on 17 July 2021, behaving in an aggressive and intimidating manner including by telling the applicant to leave the premises and by forcibly breaching the door to the applicant's room, and made false complaints to police. The applicant claims to have been denied unfettered use of the shared spaces, including the kitchen and bathroom, on 17 July 2021 and the following days until the respondent temporarily vacated the premises on 22 July 2021. The applicant claims compensation of over $11,000. 14 The respondent provides a different version, claiming that it was the applicant who was aggressive and difficult to live with, and disturbing the respondent's dogs. The respondent confirms she called police, and that she entered the applicant's room on 17 July 2021. 15 On the evidence before me, which I have carefully considered, it is very difficult to ascertain what exactly has happened. Further, trying to ascertain whether a landlord has interfered with the tenant's reasonable peace, comfort and privacy in using the premises is complicated when the parties are also flatmates. There is clearly a breakdown in the relationship between flatmates, but that does not necessarily mean the landlord is in breach of the tenancy agreement. On the balance of probabilities, I am satisfied there was conflict between the parties on 17 July 2021, but it seems to have been contributed to by both parties. 16. Notwithstanding that, in my view, there are two respects in which the respondent was in breach of the obligations under section 50 of the Act: first, by breaching the applicant's door; and, second, by telling the applicant to leave without providing the notice required under the Act for termination of a periodic agreement (that is, 90 days). The respondent states that she entered the applicant's room to see if her dog was there. I am not satisfied that was reasonable, particularly in the context of the dispute taking place, and the applicant was entitled to exclusive use of the room without the respondent entering without permission. This was a breach of section 50. I am also satisfied the respondent told the applicant to leave the premises without giving the required notice. The respondent did not however take steps to remove or force out the applicant from the premises and in fact moved out temporarily herself. I am not satisfied this breach was significant. Taking these matters into account, I am satisfied the applicant should be compensated in the sum of $115, reflecting one half week's rent. I am satisfied that is reasonable compensation, taking into account all of the circumstances, including that, notwithstanding the relationship of landlord and tenant, the parties were also flatmates and the dispute between them needs to be viewed in that context. 17 On the evidence before me I am not satisfied on the balance of probabilities, that any (other) aggressive or intimidating conduct by the respondent on 17 July 2021 amounted to a breach of section 50 of the Act. As set out above, it is difficult to ascertain exactly what has happened and both parties appear to have contributed. I am satisfied it was a dispute between two persons living together. I am not satisfied it amounted to the landlord interfering with, or causing or permitting any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. I am also not satisfied that the respondent prevented the applicant from using the common areas. On the evidence provided, I am satisfied that the respondent allowed access in accordance with the applicant's request and, although the applicant may have felt access was restricted, I am not satisfied the respondent did so. 1. In reaching this conclusion, in circumstances where both parties were living in the same residence and there was evidence of personal conflict between them, the Tribunal rejected the appellant's claim that her quiet enjoyment had been breached by the respondent at times other than 17 July 2021 during the period 17 July 2021 to 22 July 2021. 2. The appellant appeals the decision. Notice of Appeal and the grounds of appeal 1. The appellant filed a Notice of Appeal on 28 February 2022. The appeal was filed in time. 2. Subsequently, the appellant filed an amended Notice of Appeal. The orders sought (incorporating changes) were as follows: 1. Contempt of Tribunal hearing for Respondent failure to provide submissions to Applicant pursuant to the NCAT Act. S 77 Proceedings for contravention of civil penalty provision and pursuant to NCAT Act s 72 Contravention of orders of Tribunal. 2. NCAT to conduct a rehearing with the video evidence if required. 3. NCAT to reconsider the s 187(1)(d) s 50 Residential Tenancies Act damage amount. 4. NCAT to evaluate and explore the issues that were neglected by the member. Including s 64 non-publication Misc application, False police calls, Disadvantage to Applicant. 1. In relation to item 1 of the orders sought, these are applications made in the enforcement jurisdiction of this Tribunal and are not matters which the Appeal Panel can deal with. If these matters are to be pursued, separate applications must be filed. 2. In relation to Item 4, this has been the subject of a separate hearing by the Appeal Panel and is not a matter which was pursued in the hearing before us. 3. In relation to item 2 and the request to conduct a rehearing, we take this to be an application for the Tribunal to conduct a new hearing as might be permitted by s 80(3) of the NCAT Act, rather than proceed by way of an appeal under s 80(2)(b). Insofar as this request is made we decline to proceed in this manner. Parties had an opportunity to provide evidence from the proceedings at first instance and make submissions concerning questions of law and/or matters about which leave to appeal is required. 4. To the extent there is any need to reconsider what has occurred before the Tribunal at first instance, in our view adequate power is given under s 81 of the NCAT Act to deal with the appeal in the present case. 5. The grounds of appeal are identified in item 5B of the amended Notice of Appeal. The grounds are detailed in a five-page attachment. The appellant says all grounds raise questions of law and therefore leave to appeal is not required. However, leave to appeal is sought as necessary on the basis that the decision was not fair and equitable or was against the weight of evidence. Leave is also sought to rely on new evidence described as "video evidence" it being said that the Tribunal "decided unilaterally [to] conduct the hearing by telephone instead of video that was scheduled". 6. The grounds of appeal can be summarised as follows: 1. "A- Video Evidence -NCAT made an error of law" The appellant says she requested a hearing by audio-visual link (AVL). She had provided video evidence as well as a transcript of what was said as recorded in the video. Despite protest from the appellant, the Tribunal proceeded to hear the matter by telephone. The appellant said the video evidence "would have made it clear of the reality and gravity of the situation with the respondent" and that the Tribunal made an error of law in reaching its conclusions at [14]-[16] "due to the member not appropriately explaining what evidence was used to draw the decisions and conclusions". These paragraphs of the reasons concern the findings of the Tribunal about evidence of aggression and conflict between the respondent and appellant and whether these conflicts constituted interference by the respondent of the appellants right to quiet enjoyment of the residential premises. The appellant said the Tribunal failed to evaluate "the evidence at hand which included the written transcripts of videos and it is not clear by the evidence what the member used to determine the orders". 1. "B- NCAT reasons do not disclose the reason – Error of law" This ground of appeal also deals with the findings at [14] and following of the reasons. The appellant says that the Tribunal "solely relied on the emotive statements or other hearsay" and has not disclosed its reasons for concluding that there was a conflict between the parties on 17 July 2021 to which both parties contributed. The appellant said there was "no probable evidence that [she] had contributed to the situation but the [Tribunal] has someway concluded otherwise and does not disclose the reasons appropriately doing so". Reference was also made to a letter which "contains statements effectively limiting [the appellant's] use of the premises". Despite this the Tribunal concluded at [17] that access was not restricted. The appellant says that in providing appropriate reason she has been "denied natural justice or fair due process". In this regard it is not sufficient to the Tribunal "to draw blank conclusions upon hearsay without appropriately weighing the evidence disclosing what evidence is being relied on". Consequently, the appellant says the Tribunal's reasons were inadequate. 1. "C- Tribunal conducted the hearing without opportunity to see respondent response" The appellant says the respondent: persistently but not from the beginning arbitrarily without due process tampering on copies of both the Respondent evidence as well as response statement. Reference was made to earlier directions made in the proceedings, and a request by the Tribunal at the hearing for copies of served documents to be emailed to the Tribunal. The appellant says that it is clear from the respondent's submission that her copies had been tampered with, contrary to the directions made. The appellant says she did not have a chance to review the respondent's response nor the documentary evidence. As to the material provided the appellant says it was not clear to what the respondent was referring and crucial detail was missing from the respondent's evidence. The appellant says the respondent "had resorted to often irrelevant and emotive hearsay statements and fabricated witness statements that was hard to digest". The appellant said the failure to "strike off [the] respondent response" constituted an error of law. 1. "D- the Tribunal failure to evaluate and explore the significance of the change of relations" The appellant said the Tribunal erred in law in failing "to explore the cognitive condition of the respondent". Reference was made to the decision of the Tribunal concerning an appeal from a decision in the Guardianship Division: BTK v The Public Guardian [2015] NSWCATAP 89 (BTK). The appellant said it is not an excuse for the respondent to falsely call the police because the parties were living together and the Tribunal was in error in applying this conclusion in deciding "to not award damages for this act that breached [her] privacy". In this regard the appellant said the respondent "was spreading distressing rumours regarding [the appellant's] suppose that mental health condition without reasonable valid legal cause". The Tribunal erred "by not taking into account of unreliability of the respondent as a witness". 1. "E-the Tribunal failure to evaluate issue at hand- False police calls" The appellant says the Tribunal erred in law in "neglecting or failing to evaluate the significant component of the damage markedly the false police calls by the respondent". The appellant says these calls were malicious and that the Tribunal's decision was "silent about this crucial matter making up a significant cost component is quite of the appellant's claim." In this regard, the appellant said she had asked for aggravated damages. The appellant contends that the respondent "was attempting to take the premises by force immediately using the police – twice – and the penalties under Section 120 of the [RT Act] should have additionally applied". Against this background the Tribunal failed to explain how the amount of $115.00 was calculated. The Tribunal also erred in its interpretation of s 50 of the RT Act which includes privacy as a component. The appellant says this right was breached by false calls to the police. 1. F- Respondent causing disadvantage to [appellant] without consequences The appellant says that the Tribunal erred in law in failing to provide procedural fairness by effectively allowing, without consequences, the respondent to rely on malicious and distressing submissions irrelevant to the matters in issue. The appellant said that the voluminous amount of material provided by the respondent caused confusion or distraction from the real issues. The Tribunal should have dealt with the matter under Sch 4 cl 10 of the NCAT Act (which relates to a party causing disadvantage) or should have explained in its reasons what evidence was relied upon and why.' Under this ground of the appellant also said that she was denied an opportunity to cross-examine witnesses of the respondent who had apparently provided "character references". Finally, the appellant appeared to suggest that the respondent had inappropriately communicated with witnesses concerning the evidence they might give to the Tribunal. 1. "G- Other issues" Under this heading the appellant said: 1. the Tribunal failed to deal with the issue of whether a non-publication order should be made under s 64 of the NCAT Act; 2. the Tribunal "had no legal basis ruling on costs-that should fall under s 60 NCAT Act"; 3. the poor quality of the sound recording brings into question whether the Tribunal heard the parties sufficiently clearly to allow the real issues to be considered. 1. In Reply to Appeal the respondent said: 1. The appellant videoed the respondent without her consent on private property. Insofar as the Tribunal might have regard to this material, it reveals that the applicant was "harassing and intimidating the respondent"; 2. The Tribunal considered all the evidence from the parties and made a decision about that evidence. No error was made. 3. Insofar as accusations are made that the respondent called the police "under false reasons" this is denied by the respondent. Further, the respondent says the Tribunal reached a different conclusion concerning what occurred. Mainly the Tribunal concluded "the respondent did not however take steps to remove or force the applicant from the premises and in fact moved out temporarily herself". 4. As to disadvantage, the respondent asserts it was the applicant causing disadvantage and that the appellant acted inappropriately in making false accusations concerning the respondent being intoxicated and raising that matter with the respondent's previous employer. 1. Otherwise, the respondent details circumstances which she asserts was inappropriate conduct of the applicant concerning the use to which the applicant put information concerning the respondent's mental health. 2. Lastly, the respondent asserted that, if the case is not dismissed, she wished to claim compensation of $61,089.52, details of which were set out in her reply. 3. In relation to this last aspect, namely, the respondent asserting she is entitled to compensation, no cross-application was lodged. Further, and in any event, at least some of the items claimed are not amounts for which this Tribunal could award damages, e.g. for defamation. For these reasons it is unnecessary to deal with this aspect any further. 4. The question of costs will be dealt with separately below. Consideration 1. There is a right of appeal on a question of law. Otherwise leave to appeal is required: s 80(2)(b) NCAT Act. 2. Because these proceedings are an appeal from a decision of the Consumer and Commercial Division of the Tribunal, Sch 4 cl 12(1) of the NCAT Act applies in connection with the grant of leave. The principles applicable to the grant of leave were set out in the decision of the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. 3. The appeal was heard on 14 June 2022 and the decision reserved. Both parties appeared at the hearing of the appeal which was conducted remotely rather than in person. 4. The appellant's initial application sought a money order in excess of $11,000. This included an amount of $4,000 for "hurt and humiliation" referred to in paragraph 15 of the appellant's "Calculation of Monetary Compensation s 187(d)" set out at [5] above. This amount was not pursued on appeal. Rather, at the hearing, and in documents filed in support of the appellant's appeal, the appellant indicated that she was seeking an order from the Appeal Panel to vary the amount of compensation from $115.00 to $7115.00. 5. In the appellant's document entitled Response to Dismissal Application 13 May 2022 at page R-1 the appellant described her monetary claims as follows: 1. At stake is an Appeal from the Commercial and Consumer Division of NCAT headed under the seven headings of appeal (A-G) concerning mainly the awarded and the lack of consideration given on damages emanating from the main events of Saturday 17 and Sunday 18 July – Constructed from s.50 Residential Tenancies Act s.50 breaches via s. 187(1)(d) at para [8] "Orders" on PG3 originally proposed total 11,115.00$ incl. aggravated (Should have expressed exemplary) damages: A. Deprivation of unfettered use of toilet, shower and cooking facilities without cause across six days from 17 July 2021 – paras [11] – [12] – 2615.00$ B. One count of forced together with One later count of attempted breach of the private exclusive door on 17 July 2021 in [13] – 1500.00$ C. Two counts via false police calls and police visits where the Miss Suzanne attempted to take the premises using the police on Saturday 17 night and Sunday 18 July morning – 3000.00$ D. Remaining non-itemised calculation of 4000.00$ that I conceded (39:14) might be "hard" to collect but was outlined as proposal to accept as to not needing to pursue Miss Suzanne separately on these- making the Appeal worth 7115.00$ if the 4000.00$ is taken out 1. In broad terms the appellant says: 1. There was a denial of procedural fairness in that the Tribunal failed to consider video evidence; 2. The reasons of the Tribunal were inadequate; 3. The Tribunal was in error in awarding damages of only $115.00, that the evidence established further breaches of the residential tenancy agreement (including in relation to use of shared facilities) which the Tribunal failed to consider and that in the circumstances aggravated damages should have been awarded. 1. As a preliminary matter the respondent says that the Tribunal should have excluded video evidence which had been recorded illegally and without consent. We take this submission to relate to prohibitions found in the Surveillance Devices Act 2007 (NSW) (SD Act). 2. We shall deal with these matters under the following headings. 1. Admissibility of video evidence; 2. Questions of law- procedural fairness and adequacy of reasons; 3. Assessment of damages. 1. In doing so, we note there is no dispute there was a residential tenancy agreement between the respondent as landlord on a subtenancy and the appellant as tenant. There is also no dispute that pursuant to this agreement the tenant had a right to quiet enjoyment, this right being a term of the residential tenancy agreement imposed by s 50 of the RT Act. 2. Section 50 provides: 50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. Maximum penalty—10 penalty units. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement. 1. As s 50 makes clear, it imposes an obligation on a head tenant who sublets the premises (in this case the respondent) "not to interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant [in this case the appellant] in using the premises". 2. It is a positive obligation on a landlord or head tenant as the case may be. However, it is for the tenant or sub-tenant who has the benefit of the term to prove that a landlord or head tenant has, by their conduct, relevantly interfered. 3. The fact there is shared accommodation, both a head tenant and sub-tenant occupying the residential premises at the same time, does not mean the covenant is diminished in terms of its operation. However, the fact that possession is not exclusive to the sub-tenant and the nature of the sharing arrangement may be relevant in determining what is the "reasonable peace, comfort and privacy" of the tenant in the particular circumstances and what are the "reasonable steps" that the head tenant must take to comply with this term. Admissibility of video evidence 1. There is no dispute that the Tribunal had before it various video evidence as an electronic recording. The Tribunal also had a transcript of various parts of the video recording including a narration of what the video depicted. 2. The respondent says that the Tribunal was in error in considering this material because it was recorded without the respondent's consent. 3. Sections 7 and 8 of the SD Act relevantly provide: 7 Prohibition on installation, use and maintenance of listening devices (1) A person must not knowingly install, use or cause to be used or maintain a listening device— … or (b) to record a private conversation to which the person is a party. Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). (3) Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if— …, or (b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation— (i) is reasonably necessary for the protection of the lawful interests of that principal party, or (ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation. 8 Installation, use and maintenance of optical surveillance devices without consent (1) A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves— (a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or … . Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). 1. The SD Act does not, by its terms, make inadmissible evidence obtained in contravention of these provisions. However, the question remains whether evidence illegally obtained should be admitted in proceedings in the Tribunal. 2. In a court, where the rules of evidence apply, s 138 Evidence Act 1995 (NSW) (Evidence Act) provides 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained— (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. … (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account— (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 1. In the present type of proceedings, the Tribunal "is not bound by the rules of evidence and may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": s 38(2) NCAT Act. There is a discretion which the Tribunal has as to the manner in which its enquiry is conducted. In deciding how to proceed, in our view the starting point is that the Tribunal should not generally accept evidence illegally obtained. Inter alia, to do so may be seen to encourage or condone unlawful conduct. 2. In deciding whether to receive such evidence the Tribunal should consider whether the desirability of its admission outweighs the undesirability of doing so and whether there is unfairness that may arise by its receipt or rejection in the particular circumstances of the case. In this regard the guiding principle in s.36(1) applies. The factors set out in s 138(3) of the Evidence Act may provide guidance as to relevant considerations including as to the nature of the evidence and the purpose for which it is sought to be relied upon. 3. Having said that, in the present case the first issue is whether or not the evidence relied upon was unlawfully obtained. The appellant seeks to rely on both the audio and visual recordings made. 4. As stated in ss 7 and 8, the SD Act deals with recording devices under the category of listening devices and optical surveillance devices. 5. Section 4 defines surveillance device, listening device and optical surveillance device as follows: surveillance device means— (a) a data surveillance device, a listening device, an optical surveillance device or a tracking device, or (b) a device that is a combination of any 2 or more of the devices referred to in paragraph (a), or (c) a device of a kind prescribed by the regulations. listening device means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear. optical surveillance device means any device capable of being used to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment. 1. Thus a mobile telephone or video camera can be a listening device and an optical surveillance device. Section 7 applies to the sound recording contained in the video. 2. The respondent said that she did not consent to the sound recording. The appellant says the recording was made for protection of her legal rights. 3. Section 7(3)(b) permits a principal party to a conversation who consents (in this case the appellant) to record the conversation if it is "reasonably necessary for the protection of the lawful interests of that principal party". 4. The expression "lawful interests" has been considered in various cases including Corby v Corby [2015] FCCA 1099, where the Court said (citations omitted): "Lawful Interests" 19 The authorities in relation to the term "lawful interests" are discussed by the Court of Criminal Appeal in the decision of DW v R. The Court there says that there is some uncertainty in the authorities as to what is sufficient for a lawful interest within the meaning of the section. The Court found no assistance from the explanatory notes. 20 DW v R concerned an appeal from convictions relating to acts of aggravated indecent assault, incitement to aggravated acts of indecency, use of a child for pornographic purposes and possession of child pornography. The matters related to conduct by the appellant in relation to his daughter, aged between 12 and 14 years at the time of the offences. The child victim did not think her mother would believe her if she disclosed what her father was doing and made the recordings on the advice of a friend. She put her phone on record in her pocket and then asked her dad what she had to do. The trial judge had found that the complainant was frightened of her father, who was living with her in their home at the time of the recordings. 21 The Crown argued on appeal that the term "lawful interests" must go at least as far as the interests of the complainant there not to be sexually abused and not to be sexually exploited for pornographic purposes. After considering a number of authorities on the question of what constituted "lawful interests" in section 7(3)(b)(i), the Court of Criminal Appeal upheld the Trial Judge's decision that the interests of the complainant – a child in that case – not to be the victim of the serious criminal offences that were alleged was a "lawful interest" for the purpose of section 7(3) of the Surveillance Devices Act 2007. I refer to a number of the authorities considered by the Court of Criminal Appeal. a. In R v Lee], the Court was satisfied that the "desire of a witness to protect her credibility generally; to support her credibility if she had to give evidence in a court proceeding about the matter; and to protect herself against exposure to being charged with making false allegations against other people about matters of considerable seriousness" did constitute lawful interests for the purpose of the phrase used in the predecessor to section 7(3)(b)(i) of the Surveillance Devices Act 2007. b. In Sepulveda v R [2006] NSWCCA 379, the Court of Criminal Appeal, though not forming a concluded view, suggested the phrase "lawful interest" may not extend as broadly as suggested by Branson J in the case of Violi v Berrivale Orchards Ltd [2000] FCA 791, where her Honour considered it would encompass "legitimate interests" or "interests conforming to law". c. In Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72, the Western Australian Supreme Court referred to the New South Wales Supreme Court decision of Chao v Chao [2008] NSWSC 584, where it was found that a recording made where a serious dispute had erupted, and it was anticipated there would be a dispute as to the different versions of an arrangement, might give rise to a lawful interest. d. In R v Coutts [2013] SADC 50, the South Australian District Court considered a recording of a conversation by the complainant to be for the protection of the lawful interests of that person in circumstances where the accused was charged with numerous counts of sexual assault and assault against his former partner. The complainant alleged that the accused had told her that he had been previously charged with rape based on the complaint of another woman, but it had been his word against hers and that even if it was recorded, it could not be used in court. The recording there was described as a "graphic account of threats, belittlement and sounds of forced sex, while the complainant was crying and in distress and pain." His Honour there identified the complainant's "lawful interests" as being her interest in defending against the extreme levels of harm and danger she faced. 1. In Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 Allanson J, recognising the slightly different legislation in Western Australia in s 5(5) of the Surveillance Devices Act 1998 (WA), said at [15]-[16]: 15 The principal exception which I must consider is that in s 5(3)(d). Mr Perrine was a principal party to the conversation, and consented to the use of the recording device. He committed no offence if that use was reasonably necessary for the protection of his lawful interests. 16 The authorities support the following propositions: 1. The term 'necessary' is capable of a wide range of meanings. There is, in Australia, 'a long history of judicial and legislative use of the term "necessary", not as meaning essential or indispensable but as meaning reasonably appropriate and adapted': Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 [39]; but compare Lithgow City Council v Jackson [2011] HCA 36; (2011) 281 ALR 223 [50] [54]. In the context of s 5, particularly qualified by the word 'reasonably', it should be construed as meaning appropriate, but not essential or unavoidable: Sepulveda v The Queen [2006] NSWCCA 379 [116] [118]. (Section 5 is in similar but not identical terms to the provisions of the New South Wales Act. Despite the differences, the New South Wales authorities are helpful in the understanding of s 5.) 2. The word 'reasonably' imports an objective test: Sepulveda [118]; Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 465 [14]; Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580. 3. Whether the use of the device is reasonably necessary is to be judged on the circumstances that existed at the time of the use: Marsden v Amalgamated Television Services [17] [18], [23]; Amalgamated Television Services Pty Ltd v Marsden [2000] NSWCA 167 [20] [22]; Violi [23]; See v Hardman [2002] NSWSC 234 [17]. 4. The ordinary meaning of 'protection' as shelter, defence or preservation from harm, danger, or evil is apt in the context of s 5: Sepulveda [120]. 5. Lawful interests may be distinguished from 'legal interests'. Section 5(3)(c) does not require a legal interest in the sense of a legal right, duty or liability: Violi [28]. A recording made where a serious dispute has erupted and there will be a dispute as to different versions of an arrangement may give rise to a lawful interest: Chao v Chao [2008] NSWSC 584. Generally, a finding depends on the circumstances of the particular case: Sepulveda [125]. 1. It is clear that the sound recording of events to which we have been referred on 17 July 2021, particularly those events concerning what the Tribunal described in its reasons at [16] as "breaching the [appellant's] door" was done for the reasonable protection of the appellant's legal interests, namely, the right to quiet enjoyment in the use of her room within the residential premises. In this regard the conversation was being recorded in circumstances where the appellant was asserting legal rights under the residential tenancy agreement. Consequently, in our view the recording on the mobile phone as a listening device was not prohibited by s 7(1) by reason of s 7(3)(b) of the SD Act. 2. As to the video recording, prohibition is to the recording on property where entry has occurred without express or implied consent of the owner or occupier of the premises. In the present case, the respondent as occupier and head tenant had consented to the entry onto the premises of the appellant. That consent was provided in the residential tenancy agreement. Therefore, there was no contravention of s 8 of the SD Act insofar as the mobile phone of the appellant's was used as an optical surveillance device. 3. As to the sound recordings made on other days (here we are referring to the electronic recording with filename IMG_0474_h264.MP4) this video, as a sound recording and as a visual record, does not reveal any circumstances which might lead to the view that the recording by a listening device was "reasonably necessary for the protection of lawful interest of the [appellant]". 4. The fact that the parties, or one of them, may be aggressive and rude to the other does not of itself give rise to circumstances to which the exception in s 7(3)(b) of the SD Act applies. In these circumstances, it appears the sound recording was not authorised. 5. We return below to the question whether the video of events other than 17 July 2022 should nonetheless be considered for the purpose of determining these proceedings. Questions of law- procedural fairness and adequacy of reasons 1. The grounds concerning denial of procedural fairness and inadequacy of reasons raise questions of law. 2. The failures to afford procedural fairness were said to arise from the following: 1. The matter was heard by telephone and the Tribunal could not view the video during the hearing. However we note the Tribunal had before it a transcript and narration of what the video depicted, at least on 17 July 2021; 2. Copies of documents had been "tampered" with by the respondent. By this complaint we understand various names and other information was redacted from documents provided by the respondent. Predominantly, these documents appear to relate to "character references" for the respondent on which the respondent sought to rely and personal information of the respondent. 3. Failure to deal with the conduct of the respondent under Sch 4 cl 10 of the NCAT Act on the basis the respondent was causing disadvantage. 4. The Tribunal conducted the hearing in a manner that allowed irrelevant and emotive statements and permitted fabricated evidence. 5. The Tribunal denied the appellant an opportunity to cross-examine witnesses who provided character statements for the respondent. 6. The sound recording of the hearing was of poor quality which "brings into question" whether the Tribunal considered the real issues in dispute. 1. The challenge to the adequacy of reasons included the following: 1. The Tribunal failed to set out the evidence and properly evaluate it. 2. The Tribunal failed to explain how the appellant contributed to the conflict between the parties on 17 July 2021. 3. The Tribunal failed to explore the changes in the relations between the parties and the "cognitive" condition of the respondent. 1. This dispute concerns whether or not there has been a breach or breaches of the residential tenancy agreement. The breaches asserted are of the appellant's right to quiet enjoyment and access to shared areas the subject of the residential tenancy agreement. 2. We have reviewed the transcript and videos submitted by the appellant. We have also reviewed the evidence of the parties recording their personal views concerning the mental state of each other. Much of the evidence and submissions provided by the parties can aptly be described as a diatribe and irrelevant to determination of the real issues in dispute. 3. This material was presented in a manner which made it difficult to navigate and consisted of many claims of personal misconduct or conflict, each party making allegations against the other. 4. As we indicated above, the video evidence (sound and images) of what occurred on 17 July 2021 is relevant to a resolution of whether the respondent landlord breached the appellant's right to quiet enjoyment on that day. 5. It is unclear from the reasons whether the Tribunal actually reviewed the video. In making this statement we note that the Tribunal reserved its decision, the Member indicating that she had "carefully considered" the evidence before her which included the electronic video files. There is no reason to assume that the Tribunal did not review any video evidence that was presented, even if this did not occur at the hearing. In any event, the appellant provided a comprehensive transcript and narrative of what the video depicted in addition to the electronic copy. 6. The Tribunal clearly had regard to the evidence of what occurred on 17 July 2021. The findings of the Tribunal reflect both the content of the video and what was recorded in the transcript concerning the events of 17 July 2021. 7. Whether the Tribunal formed its view from reading the transcript with narration or from viewing the video is of little moment. What is clear from the findings, particularly at [16] of the reasons (set out above), is that the respondent entered the appellant's room without permission. It is also clear that the respondent told the appellant to leave the premises without giving notice as required by the RT Act. It was on this basis that the Tribunal concluded there had been a breach of the residential tenancy agreement and decided to award damages. 8. Consequently, there was no failure to afford procedural fairness in connection with viewing the video and dealing with this evidence. Further, having regard to the statement of Bell P (as he then was) in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, at [65] and following, there is no basis to conclude the reasons were inadequate. Accordingly, these challenges are not made out. 9. We do not consider that the hearing being conducted by telephone in any way gave rise to unfairness. The Tribunal, particularly in circumstances of a pandemic, was entitled to proceed in the manner which it did and, having regard to what we have said above, no relevant injustice arises from this fact. 10. There was no evidence to which we were referred concerning sound quality of the telephone call that might suggest the Tribunal could not hear the parties and did not take into account what they said. 11. As to the conduct of the hearing and the failure to deal with the proceedings under Sch 4 cl 10 of the NCAT Act, the evidence of both parties was replete with personal criticism of the other. That evidence had little or no relevance to the matters to be determined by the Tribunal, other than to support the conclusion of the Tribunal that there was substantial personal conflict between those parties who were living in circumstances that might be described as "flatmates" as well as in a relationship of landlord and tenant. The Tribunal proceeded to deal with the real issues in dispute and, in our view, did so in a manner consistent with the guiding principle found in s 36(1) of the NCAT Act. 12. As to the various redacted evidence and/or cross examination of witnesses concerning character statements, this material was substantially, if not wholly, irrelevant to determining the real issues in dispute. In this regard the witnesses identified by the appellant whom she said she was denied an opportunity to cross-examine include a counsellor, the head landlord (who had not provided a statement) and a hairdresser who had apparently provided a character statement. Any non-compliance with earlier directions or statements made at earlier hearings had no consequence. There was no denial of procedural fairness arising from these matters. 13. As to whether there had been a breach of the appellant's right to quiet enjoyment on days other than 17 July 2022, the Tribunal rejected these claims. It did so in its reasons at [13]-[17] which we have set out above. 14. There was evidence to support the conclusion of the Tribunal that the appellant contributed to the conflict between the parties. 15. In reaching this conclusion, we consider that the video (being electronic file IMG_0474_h264.MP4) should be admitted in evidence. This is because, in the circumstances of this case, its admission outweighs the fact that the recording was un-authorised. The video depicts the appellant continuing to record the respondent returning to the house and re-entering the premises after she had been requested by the respondent to stop recording. This occurred in circumstances where the respondent, at the commencement of the video, said that her two dogs had been kicked by the appellant. Whether or not there was any attack on the dogs, a matter not revealed by the recording which commenced after the alleged event, the respondent then re-entered the house and closed the door. Thereafter, the appellant remained outside the premises filming, including when the respondent later emerged on the balcony on the first floor. Throughout this time the appellant continued to call out to and make various assertions against the respondent while the respondent continued to request the appellant to cease doing so and that she be left alone. In our view, this conduct, whether or not constituting harassment by the appellant, provides strong support for the Tribunal's conclusion that the appellant contributed to the conflict between her and the respondent. 16. It does not support the view there was a breach of quiet enjoyment by the respondent under the residential tenancy agreement on a day other than 17 July 2022. 17. Further, in the context of living together, the mere fact that the parties were in personal conflict does not, of itself, demonstrate a breach of the appellant's right to quiet enjoyment by the respondent. 18. This is the effect of the reasons provided by the Tribunal. 19. Consequently we are not satisfied there was any relevant denial of procedural fairness nor that the reasons were inadequate relation to these findings. Assessment of damages 1. The last matter to consider is the assessment of damages including damages said to arise from deprivation of the unfettered use of the toilet, shower and facilities. 2. This challenge is to the findings of fact concerning breach and assessment of damages, a matter about which leave to appeal is required. 3. As stated in Sch 4 cl 12(1), the appellant must show she may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, against the weight of evidence or there was significant new evidence not reasonably available. 4. Included in the challenge made by the appellant is a claim for aggravated damages. In this regard there is a distinction between aggravated damages and exemplary damages. As noted by Windeyer J in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 149: The formal distinction is, I take it, that aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment - moral retribution or deterrence. 1. Further, as said by the Supreme Court of New South Wales in Walter Vignoli v Sydney Harbour Casino Pty Ltd & Anor [1999] NSWSC 1227: 29 The award of aggravated damages is to compensate the plaintiff for the heightened injury caused by the unjustifiable conduct of the defendant. Cassell & Co Ltd v Broome [1972] A.C. 1027 at 1124. 1. The events for which the Tribunal awarded $115 occurred on one day, namely 17 July 2022. The award, which was calculated by reference to rent, was equivalent to half a week's rent. The award can properly be seen as damages for what occurred on that day being made up of one day's rent (approximately $33 per day) for loss of enjoyment on that day and a component for general and aggravated damages. The award as compensatory damages (including aggravated damages) and not punitive damages is not manifestly unreasonable. 2. We see no error in the assessment and refuse leave to appeal. 3. In relation to the claim that the appellant had been denied access to various facilities, it was not suggested that the residential tenancy agreement granted to the appellant exclusive use of the facilities to the exclusion of the respondent. The shared housing arrangement did not support the view that the appellant had exclusive or unfettered use. We were not pointed to any evidence to support a contrary view. 4. There was evidence of personal conflict, aggression, rudeness and inappropriate exchanges between the parties over the period of time when access was said to be denied. Both parties contributed to the state of affairs. Both parties appear to have telephoned the police to ask for assistance and in doing so made various assertions concerning the other party's conduct. 5. The Tribunal had before it evidence in the form of an email from the respondent sent on 20 July 2021 (PG 20) which was in the following terms: RE: Both Parties Are To Adhere To The Following Conditions: Can I please request that you adhere to the below conditions in order to keep a level of respectfulness and calm at the premises of 4a Montague Street,### Balmain NSW 2041###, and until the NCAT hearing 9th August 2022 at 9:30am. I will also adhere to these conditions: 1. I have provided you with the availability of shared spaces at your request from 11am and 5pm each day (apologies that in my text message at 10:46am today I put 4pm but meant to put 5pm) for an hour each time at your request. If you require further time, I am more than happy to accommodate just please let me know. The bathroom is of course available 24/7. 2. You refrain from any more verbal engagement with me as you are causing a level of anxiety for me that is unacceptable, and this is affecting my physical and mental wellbeing. This includes intimidation, aggression and harassment. All communication is to be either via email or text message. 3. You refrain from recording me as I do not give consent within a private residence, including the courtyard outside, including text messages. 4. You refrain from calling me a bully, an alcoholic, delusional, or any other malicious name or term either verbally or in writing. 5. You do not access my bedroom or office, neither of these rooms are 'shared spaces' and do not have your belongings in them. 6. You do not engage with my dogs at any level or at any time. 7. You refrain from using my work email address that you unlawfully obtained 3:26am on Sunday 18 July 2021, you please use my personal email address which is provided in this email. 8. You are not required to get a lock on your bedroom door or change the locks of the premises as my name and my name alone is on the lease and this is damage to the property. 9. You continue to pay rent accordingly, which you have been, and every second week on a Thursday of $430, with payments continuing from this Thursday for two weeks in advance. 1. The above email supports the view that, in the circumstances of high personal conflict, the respondent was trying to make arrangements to allow both parties reasonable and appropriate access to all relevant facilities. In this regard, the respondent differentiated between facilities such as the kitchen and bathroom and toilet. 2. This evidence supported the conclusion that no breach of the residential tenancy agreement in the manner asserted was established. 3. In circumstances where there were shared facilities, some of which could not be used at the same time, the Tribunal was entitled to consider all of the evidence in determining whether or not there had been: 1. any relevant breach of the obligation concerning quiet enjoyment; or 2. any interference by the respondent with the appellant's use of shared facilities which might be considered as a breach of the residential tenancy agreement causing damage. 1. The Tribunal was entitled to conclude from the evidence provided that the appellant failed to prove there was a relevant breach by the respondent of her obligations in regard to the shared facilities. 2. In our view, the appellant has not demonstrated she may have suffered a substantial miscarriage of justice, nor that the Tribunal made findings that were not fair and equitable or were against the weight of evidence, and we refuse leave to appeal. Costs 1. The appellant challenged the decision on costs of the proceedings at first instance. 2. There is no dispute s 60 of the NCAT Act applied to these proceedings. As such, each party is to pay their own costs unless there are special circumstances: s 60(1)-(2) NCAT Act. Special circumstances means circumstances out of the ordinary but not necessarily extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120. 3. The Tribunal dismissed the claim for costs, finding there were no special circumstances. 4. We agree with this conclusion. There is nothing out of the ordinary about this dispute as that term is used and, in any event, no reason to displace the operation of s 60(1) of the NCAT Act in this case. No submission was made by the appellant to otherwise establish error. 5. As to the costs of the appeal, the appellant has been unsuccessful on all issues. 6. Section 60 applies to costs in these proceedings. Again, any party seeking costs must show there are special circumstances warranting an award for costs. In our view there is nothing out of the ordinary about this appeal that would warrant the making of an order for costs in favour of either party and we decline to do so. Orders 1. Leave to appeal is refused and the appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 Amendments 09 September 2022 - no Amendment 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: 09 September 2022