Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gardiner v NSW Land and Housing Corporation [2024] NSWCATAP 80 Hearing dates: 17 and 19 April 2024 Date of orders: 14 May 2024 Decision date: 14 May 2024 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Goldstein, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. (3) The order of possession is to take effect on 11 June 2024. Catchwords: LEASES AND TENANCIES-social housing tenancy agreement-termination pursuant to s 92 of the Residential Tenancies Act 2010 (NSW)-intimidatory and abusive conduct by the tenant during a conciliation at the Tribunal-competing version of relevant events-landlord's version of events preferred-mitigating circumstances put forward by tenant concerning breaches by landlord -statutory discretion to terminate-mandatory considerations under s 154E-other relevant considerations, including gravity of conduct, absence of contrition and the tenant becoming homeless. APPEAL-various questions of law raised, including legal unreasonableness-grounds of appeal raising questions of law rejected-leave to appeal requirements for appeal from Consumer and Commercial Division of the Tribunal according to clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW)-appellant's reliance upon leave to appeal ground of new evidence not reasonably available at the time of the hearing at first instance-grounds for leave to appeal not upheld. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Cominos v Di Rico [2016] NSWCATAP 5 Collins v Urban [2014] NSWCATAP 17 House v King (1936) 55 CLR 499; [1936] HCA 40 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: Nil Category: Principal judgment Parties: Clinton John Gardiner (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Clinton John Gardiner (Self represented) NSW Land and Housing Corporation (Self represented) File Number(s): 2024/00074897 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 12 February 2024 Before: K Ross, Senior Member File Number(s): 2023/00433453 REASONS FOR DECISION 1. This is an appeal from a decision of the Tribunal in the Consumer and Commercial Division in favour of the respondent, landlord, to terminate a social housing tenancy agreement pursuant to s 92 of the Residential Tenancies Act 2010 NSW (RTA). As a consequence of orders made by the Tribunal and then by Principal Member Suthers on appeal the operation of an order for possession of the premises has been suspended pending the finalisation of the appeal. 2. For the reasons set out below, we have decided that leave to appeal should be refused and the appeal should be dismissed. Section 92 of the RTA 1. Section 92 of the RTA provides: 92 Tribunal may terminate residential tenancy agreement for threat, abuse, intimidation or harassment (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, 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 permitted any such threats, abuse or conduct, or (b) intentionally engaged, or intentionally caused or permitted another person to engage, in conduct in relation to any such person that would be reasonably likely to cause the person to be intimidated or harassed (whether or not any abusive language or threat has been directed towards the person). (2) The termination order may specify that the order for possession takes effect immediately. (3) A landlord may make an application under this section without giving the tenant a termination notice. (4) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement. 1. Section 92 (1) confers a statutory discretionary power on the Tribunal to terminate when satisfied of the conditions referred to. Background 1. On 23 December 2019 the parties made a residential tenancy agreement in respect of social housing premises in the Newcastle region of New South Wales. The agreement was for a fixed term tenancy of 6 months and 2 weeks. 2. At all material times, the premises were managed by the NSW Department of Communities & Justice (DCJ) on behalf of the respondent, which is the owner of the premises. In 2019, the DCJ took over the relevant responsibilities in respect of the premises from what was then the NSW Department of Family and Community Services (FACS). 3. By written notice dated 16 July 2020, sent on behalf of the landlord, the fixed term of the residential tenancy agreement was extended to 13 July 2025 pursuant to s 142 of the RTA. 4. In a letter to the appellant from the Team Leader of the Newcastle Tenancy Team of the DCJ, on behalf of the respondent, dated 23 July 2020, headed "WARNING LETTER", the appellant was informed that he needed to "Cease swearing at and using threatening language towards DCJ Housing staff" following what was said to have been inappropriate behaviour during a telephone conversation on 23 July 2020. The letter set out the alleged threatening language used. 5. In a letter to the appellant from the Team Leader of the Newcastle Tenancy Team of the DCJ, on behalf of the respondent, dated 9 February 2021, headed "WARNING LETTER", the respondent was informed that he needed to "Cease yelling at DCJ Housing staff in an intimidating manner" following what was said to have been inappropriate behaviour during a telephone conversation on 5 February 2021. 6. On 22 October 2021, in proceedings SH 21/40983 brought by the respondent against the appellant, the following orders were made: 1. By consent, the Tenant must comply with the Act-in particular Section 92 by not abusing, threatening, harassing or intimidating the landlord or their agent. 2. If these orders are not complied with by the tenant then: at any time before 22-Nov-2022 the landlord may request the relisting of this application to determine whether the tenancy should be terminated. 1. On 31 October 2023, the appellant commenced proceedings SH 23/48768 against the respondent in which he sought payment in the amount of $65.00 (as money still outstanding from a larger amount ordered to be paid to him in proceedings SH/13425), as well as compensation in the amount of $900, along with orders for the landlord to carry out repairs at the tenancy premises and other orders. In addition to the claim for $65.00, the appellant's application outlined his complaint that his attempts to obtain this money had fallen on deaf ears and that work required on his windows installed on 8 August 2023, namely cement rendering and painting, had still not been carried out despite a number of arrangements for this to occur, he still had no fan in his bathroom, which had had been outstanding for a long time. He also complained about the lack of a response to his many communications about these matters. 2. A hearing in respect of the appellant's proceedings SH 23/48768 was fixed for 16 November 2023. On that occasion the parties were asked to participate in a conciliation hearing in a separate room from the hearing room. 3. What transpired during the conciliation process on that occasion was the subject of the respondent's application to the Tribunal for termination resulting in the decision the subject of this appeal. Present at that conciliation were the appellant, Ms Wyrzuk, an employee of the respondent, and Ms Van Zyl, who was the conciliator. 4. The respondent's application to the Tribunal was lodged on 30 November 2023. The Tribunal proceedings and decision 1. The respondent's application for termination set out the reasons for the orders sought, including those for termination and possession, by providing a description of the incident in the course of the conciliation process on 16 November 2023. 2. In addition to the residential tenancy agreement, the above notice under s 142 of the RTA, the above two warning letters and the order made on 22 October 2021, the written evidence relied upon by the respondent consisted of an incident report from Ms Wyrzuk submitted on 22 November 2023 and an undated incident report containing a description of the incident from an unnamed person who can be readily identified as Ms Van Zyl from the terms of the description and the accepted fact that Ms Van Zyl was the third person at the conciliation in addition to the appellant and Ms Wyrzuk. 3. As will be seen below, these written materials were provided to the appellant on 11 December 2023 (under cover of a letter from the respondent of that date) in advance of the hearing held on 5 February 2024. 4. On 3 January 2024, the appellant provided the written material he relied upon for the purpose of the hearing (85 pages), including his application to the Tribunal in SH 23/48768 and a written statement from him. 5. The appellant's witnesses accounts of the incident on 16 November 2023 were quite different to that provided by Ms Wyrzuk and Ms Van Zyl. 6. The appellant's written statement and the sworn oral evidence he gave at the hearing on 5 February 2024 did not say anything about the conduct the subject of the above warning letters and consent order. The Tribunal's decision 1. The Tribunal issued its decision on 12 February 2024. In its written reasons it referred to the documentary material the parties had relied upon and summarised the accounts that had been given of the incident on 16 November 2023 by Ms Wyrzuk, Ms Van Zyl and the appellant. 2. The Tribunal began with Ms Wyrzuk's account of the incident (at [6]-[11]), including that as she attempted to explain to the appellant that the whole amount had been paid, the appellant started to raise his voice and swear at her. The Tribunal then referred to her account as to how the appellant's behaviour escalated leading to the situation where he prevented them from leaving the conciliation and the Sheriff was called for. 3. The Tribunal (at [12] and [13]) also referred to sworn oral evidence Ms Wyrzuk (given at the hearing) that she had been employed by the respondent for 14 years, had extensive experience and training in dealing with clients, including those with mental health, drug and alcohol issues, she had never experienced anything like this before and she had never before felt at risk in the way she did during the incident. She gave evidence that if the tenancy was not terminated she would not be able to carry out her role which involved attending the appellant's home and attending NCAT, she believed it would be unsafe for other staff members to attend the premises for inspections, an alert had been placed on the appellant's file and staff had been instructed not to have any contact with him, which made management of the tenancy impossible. 4. The Tribunal (at [14] and [15]) referred to the contents of the incident report prepared by the conciliator, Ms Van Zyl, including that the appellant had become aggressive, told her to shut up, placed himself in the doorway when Ms Wyrzuk said she was going to leave and said he would make them listen today, told her we will leave when he tells us we can after she asked him to let her pass and she began to yell for Sheriff, who managed to calm the appellant down. She said she and Ms Wyrzuk were left shaken and teary as a result of the incident. 5. The Tribunal (at [16] and [17]) said that the appellant said he did not threaten, abuse or intimidate anyone, he had not sworn, he went into the conciliation with the intention to take control because the department had lost the right to tell him what to do, the employees of the department did not do their jobs properly, they did not respond to his communications and there had been delays and fixing windows and doing rendering. He said Ms Wyrzuk and Ms Van Zyl were overreacting to everything he said. 6. The Tribunal said (at [18]]) that during the hearing the appellant had denied the version of events presented by the respondent, and that the appellant had said that in his view the termination application was retaliatory because he had taken action against the department. 7. The Tribunal (at [20]-[24]) addressed the competing evidence about the incident, decided that it preferred the evidence of Ms Wyrzuk to that of the appellant, giving reasons for that conclusion, concluded that during the attempt to conciliate the appellant behaved in a manner which was intimidating and threatening and set out the particular conclusions it had reached about what had occurred, namely (at [24]): * He said words to the effect "Shut the fuck up and listen. It's my turn to speak" * He raised his voice and did not desist when asked to calm down, rather telling the conciliator to shut up. * He swore at both Ms Wyrzuk and Ms Van Zyl in a raised voice and said words to the effect "I'll make you listen today". * He stood in the doorway and when Ms Wyrzuk and Ms Van Zyl attempted to leave the room, he moved towards them. * When Ms Van Zyl asked to pass Mr Gardiner, he swore at her and said words to the effect "You can leave when I tell you you can leave". * He re-entered the room and stood in the doorway when Ms Wyrzuk and Ms Van Zyl attempted to close the door. * He said words to the effect "You're not fucken going anywhere". * He said "Piss off" as he left the room after the sheriff had been summonsed (sic). * He stopped his behaviour only once the sheriff intervened. 1. The Tribunal then turned to the question whether it was satisfied that the appellant's conduct fell within the terms of s 92 (1) (a) and (b) (at [25]-[33]). It concluded that it did. As to conduct referred to in s 92 (1) (a), the Tribunal concluded that the appellant had threatened to detain Ms Wyrzuk (and Ms Van Zyl) against their will and that this was a serious threat. It also concluded that the evidence was insufficient to find that the appellant had "persistently" threatened or abused the landlord's employees pointing out that there was no evidence as to the circumstances in which the warning letters (referred to above) had been sent (at [30]). 2. As to the conduct in s 92 (1) (b), the Tribunal concluded that the appellant intentionally engaged in conduct which would be reasonably likely to cause Ms Wyrzuk to be intimidated, namely by standing in the doorway combined with the nature of the statements made and the fact that the appellant was raising his voice and swearing (at [32]). 3. Next, the Tribunal asked itself the question as to how it should exercise the discretion to terminate in s 92 (1) (at [34]). 4. As to this, it turned to the mandatory considerations in s154E, which provides as follows: 154E Exercise of discretion to make termination order (1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following— (a) the effect the tenancy has had on neighbouring residents or other persons, (b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, (c) the landlord's responsibility to its other tenants, (d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord, (e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal. (2) This section does not limit any other matter that may be considered by the Tribunal under this Act. 1. The Tribunal addressed each of the five matters in s154E (at [35]-[37]). It concluded that there was no evidence that the tenancy had an adverse effect on neighbouring tenants (s154E (1) (a)), it was likely Ms Wyrzuk will suffer serious adverse consequences if the tenancy is not terminated (s154E (1) (b), the landlord will be hampered in its ability to manage the tenancies of the appellant and neighbouring tenants because of its obligation to provide its employees with a safe working environment (s154E (1) (c)), the history of the tenancy includes the two warning letters and the consent order made on 22 October 2021 (s 154E (1) (d), and the appellant's behaviour puts him in breach of the consent order (s 154E (1) (e). 2. The Tribunal then turned to consider other potentially relevant considerations, namely: 1. the appellant's wish to remain in the premises and that he expects he will be able to live there quietly now that the windows have been fixed (at [38]) 2. the appellant had said he had done nothing wrong on 16 November 2023, he had not acknowledged that his behaviour intimidated Ms Wyrzuk and he had not offered an apology or any undertaking not to act in the same way in the future (at [38]); 3. the appellant's claim that he had not been paid the money awarded to him by the Tribunal. As to this, the Tribunal concluded that even if the money had not been paid that did not excuse or provide any justification for the appellant's behaviour (at [39]); 4. the appellant's contention that the termination application was retaliatory, which the Tribunal rejected (at [40]). 5. termination in the current property market was a serious step which may leave the appellant homeless (at [41]). 1. The Tribunal then concluded (at [41]): Mr Gardiner did not put any particular matters before the Tribunal in respect of the Tribunal's discretion. I accept the termination of any social housing agreement in the current property market is a serious step which may leave the tenant homeless. However, in the absence of any contrition by Mr Gardiner, the evidence of two prior warning letters and an order of the Tribunal in 2021, and the serious nature of Mr Gardiner's behaviour, I am satisfied that the tenancy should be terminated. 1. The Tribunal addressed the question of an order for possession and the requirement in s154G that there be exceptional circumstances established for the order of possession to take effect later than 28 days after the termination order. The Tribunal said that there was no evidence that there were any exceptional circumstances and ordered that possession be within 28 days as sought by the landlord (at [42]-[43]). Nature of the appeal 1. With respect to this appeal, section 80 (2) (b) of the NCAT Act, relevantly, provides: 80 Making of internal appeals ….. (2) Any internal appeal may be made— …. (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 1. Questions of law include whether the Tribunal has asked itself the wrong question, or failed to take account of relevant, mandatory considerations (including, for example, material evidence given by a party), or taken account of irrelevant considerations, or if the decision was legally unreasonable. 2. As to being legally unreasonable, we consider this question below on the basis of aspects of the judgement of the plurality in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, namely that the legal standard of unreasonableness is not limited to a decision that is so unreasonable that no reasonable person could have arrived at it and that unreasonableness may be applied to a decision which lacks an evident and intelligible justification: see at [68] and [76]. It is not enough that we consider that if we had been in the position of the Tribunal we would have come to a different decision. 3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated (at [84]) that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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. 1. Furthermore, in view of the discretionary nature of the decision the appellant must establish an error of the type described in House v The King (1936) 55 CLR 499; [1936] HCA 40, namely that the Tribunal acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision, or mistook the facts, or did not take into account some material consideration, or arrived at a result that was unreasonable or plainly unjust. Again, it is not enough that we consider we would have arrived at a different result. 2. Consistently with what we have already said, it is an established principle that an appeal does not provide a losing party with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 (Ryan) at [10]. Grounds of Appeal 1. The Notice of Appeal was lodged on 26 February 2024 (within the required 14- day time limit for a residential tenancy appeal). This included an application for leave to appeal on the basis that the decision was not fair and equitable and it was against the weight of evidence. In the Notice of Appeal the appellant did not seek leave to appeal on the basis that significant new evidence was now available that was not reasonably available at the time of the hearing. 2. It is convenient to set out what was stated in the Notice of Appeal to be the Grounds of Appeal: The reason that I have had to engage personally in attending the Respondent's office and NCAT is that they continually ignore any correspondence in regard to maintenance issues or unruly, illegal and disturbing behaviour from some of the other tenants. They don't have the decency or courtesy to acknowledge any communications or return any calls or emails. That makes me feel like they don't think I'm worth the time of day, let alone any assistance in dealing with any issues brought to their attention. I did mention to Senior Member Ross that I have been diagnosed with PTSD, which I don't believe was taken into account. This was sometime after the brutal rape and murder of my mother in Singleton on 26 March 1993 on her way to work. We had been in the US just 12 months prior as I had a scholarship to play basketball there and had a promising career prior to this incident. I lost my dad who I was also very close to in 2010 to cancer. Unfortunately, I can't always control some of the symptoms of PTSD, especially when placed in very frustrating and anxious situations. It has never been my intention to intimidate anyone, I just wanted them to do their job and treat me like a client mattered. I have never received any treatment for PTSD and I'm on a pension because of my symptoms. Some of the symptoms I struggle with include: - It affects my ability to work, perform day-to-day activities or relate to family and friends. I therefore have difficulty communicating with people and I'm very much a loner, and find it hard to articulate what I want to say at times. - Always being on guard for danger. - Trouble sleeping. - Trouble concentrating. - Irritability, angry outbursts or aggressive behaviour on occasion. In regard to the conciliation 16 November 2023, I've not seen any of the incident reports referred to. In regard to the description of the hearing and my behaviour, I completely deny that I swore at any time. As noted, I don't always articulate what I want to say very well. I just wanted "to have my day in court" so to speak, and get all these matters sorted. I did not block the door-I was standing to one side with my arms crossed, and said "well I'm not going anywhere". They then said they were calling the sheriff and that's when I said "piss off" in frustration. I then left the room and walked down the corridor to go to the hearing, and the sheriff ran past me into the conciliation room. The sheriff then walked back down to me at the end of the corridor and asked me what was going on. We chatted and I told him that they wouldn't listen to me in the conciliation I was walking to the hearing room. The sheriff suggested that I go down to the office and talk to them there. So I left and went home. It is noted by Senior Member Ross in point 30, that there was no other evidence to substantiate that there was any previous or consistent conduct by myself that was intimidating or aggressive. Therefore the decision was based purely on the hearing of 16 November 2023 as reported and the Senior Member Ross preferred to believe the events as noted by Ms Wyrzuk and Ms Van Zyl and disregarded my version of events totally. I note that there was no mention of any report by the sheriff as to my conduct. Senior Member Ross is correct in her assumption that if my tenancy is terminated I will be homeless. I have looked tirelessly since receiving the orders and there is nothing I can afford on the pension and occasional casual work. I will therefore be living in my car. With my PTSD I find it very difficult to live in shared accommodation. 1. When asked in the form for the Notice of Appeal concerning the weight of evidence ground for leave to appeal what evidence should the Tribunal have given more weight to and why, the appellant stated: Previous behaviour of FACS in dealing with communications and residential issues. Symptoms of my PTSD that can affect my behaviour at times as noted, and which FACS behaviour towards me and lack of response has aggravated. 1. From the Notice of Appeal and oral submissions in support of the appeal, having regard also to the fact that the appellant was an unrepresented litigant to whom we should approach the grounds of the appeal on the basis set out in Cominos v Di Rico [2016] NSWCATAP 5, we discern the following grounds of appeal: 1. The Tribunal failed to have regard to material evidence from the appellant about his PTSD condition and, thereby, failed to take account of a relevant, mandatory consideration (Ground 1). 2. The Tribunal failed to have regard to material evidence from the appellant, namely his account of the incident on 16 November 2023 and, thereby, failed to take account of a relevant, mandatory consideration (Ground 2). 3. The Tribunal failed to have regard to material evidence from the appellant that showed he was still owed an amount from the money the respondent had previously been ordered to pay him, which explained his frustration at the time of the incident on 16 November 2023 (a matter the appellant placed emphasis upon in his oral submissions on appeal) and, thereby, failed to take account of a relevant, mandatory consideration (Ground 3). 4. There was procedural unfairness because the appellant had not seen the incident reports from Ms Wyrzuk and Ms Van Zyl referred to in the Tribunal's decision (Ground 4). 5. The decision was legally unreasonable (Ground 5). 6. Whether leave to appeal should be granted on the basis that the decision was not fair and equitable or was against the weight of the evidence (Ground 6). 1. Grounds 1 to 5 raise questions of law. In identifying these grounds raising questions of law, we do not accept the respondent's position as set out in its Reply to Appeal and written submissions that leave to appeal is required for all matters raised by the appellant on the basis that they raise aspects of the Tribunal's assessment of the evidence rather than the application of legal principles. 2. An additional ground of appeal arises from evidentiary material lodged by the appellant subsequent to the Notice of Appeal. This ground is whether leave to appeal should be granted on the basis that there is significant new evidence now available that was not reasonably available at the time the hearing: Ground 7. 3. A first bundle of such material was lodged by the appellant on 5 March 2024. As to this bundle, it is only necessary for us to refer to documents that post- date the hearing at first instance because the other documents were, plainly, reasonably available at the time of that hearing. The potentially relevant documents from this bundle are: 1. A letter to the appellant from the Department of Communities & Justice dated 1 March 2024 (marked in the bundle as 01A). 2. An order by the Tribunal in proceedings 2023/00368802 made on 12 February 2024 under which the respondent was ordered to pay the appellant the sum of $540.00 on or before 19 February 2024 as compensation for delay in completing window works from mid -September 2023 to mid - November 2023, along with a customer receipt from Westpac, dated 25 February 2024, for the sum of $540 received from "FACS". 1. A second bundle of such material was lodged by the appellant on 3 April 2024 Again, it is only necessary for us to refer to documents that post-date the hearing at first instance, for the same reason as above. The potentially relevant documents from this bundle are: 1. Letters from the appellant to Ms Wyrzuk and Ms Van Zyl, dated 28 March 2024. 2. Email communications between the appellant and persons on behalf of the respondent sent on 22, 26 and 27 March 2024 concerning pest control issues, as well as copies of tickets, apparently, showing the appellant's attendance at the respondent's offices on 5 and 15 March 2024. 1. We should note that included within this second bundle of material were many documents in the nature of medical records, long pre-dating the hearing at first instance (some dating back to 2009), concerning the appellant's mental health condition. Submissions 1. The appellant did not provide any written submissions in support of his appeal pursuant to the directions for the conduct of the appeal made on 8 March 2024. Amongst the material lodged by him on 2 April 2024 there was included the Grounds of Appeal document provided with his Notice of Appeal, to which we have already referred. At the hearings of the appeal on 17 and 19 April 2024, the appellant, as well as his friend, Ms McKenzie, made oral submissions in support of his appeal. 2. In addition to a Reply to Appeal lodged on 14 March 2024, the respondent provided written submissions in opposition to the appeal lodged on 15 April 2024, along with a bundle of other documents (210 pages in addition to the respondent's submissions), including a transcript of the hearing at first instance. We adjourned the hearing of the appeal on 17 April 2024 (part heard) in order to provide the appellant with a short additional period (until the afternoon of 19 April 2024) in which to consider the respondent's material relied upon in opposition to the appeal. This occurred after it emerged that the appellant had received the respondent's material by email in the afternoon of 15 April 2024 but said he had not received a hard copy of this material, although Ms Fryer, who appeared for the respondent on the appeal, had received a report that the hardcopy had been delivered to the appellant in the morning of the 16 April 2024. At the conclusion of the hearing of the appeal on 17 April 2024, the appellant was provided with a hard copy of this written material from the respondent. 3. Ms Fryer made submissions in opposition to the appeal at the hearing on 19 April 2024. Consideration-Ground 1 1. On appeal we had before us the written material that the parties had presented to the Tribunal at first instance, as well as a transcript of the hearing. Despite the appellant's statement that he had mentioned his PTSD condition to the Tribunal at first instance, it was clear that this was incorrect and that the condition had not been referred to at the hearing. 2. When this matter was discussed with the appellant at the hearing of the appeal, he indicated that he did not like to refer to his PTSD condition, that "FACS" should know about it and that if he had been asked about it by the Tribunal he would have referred to it. 3. However, if this medical condition was regarded by the appellant as a relevant matter in his favour concerning an assessment of the incident on 16 November 2023 or, perhaps, concerning the impact of an order for termination, it was incumbent upon him to present evidence about this to the Tribunal. 4. We can see no basis for any criticism of the process followed by the Tribunal in not obtaining any evidence or information about this medical condition. As to this, the appellant was provided with an ample opportunity to present such case and evidentiary material as he wished to put forward concerning this matter. In addition to the opportunity to present evidence about this before and at the hearing itself, we note from the transcript that before the hearing was completed on 5 February 2024 the Tribunal took a short break saying that it would do so in order to let the parties consider whether there was anything further they needed to tell the Tribunal (page 38, line22). Both parties availed themselves of this opportunity. 5. We reject Ground 1 of the appeal. Consideration-Ground 2 1. We reject Ground 2 of the appeal. 2. The Tribunal referred to the appellant's written statement which contained his account of the incident (at [5(1)] and to the substance of what he said in both the statement and at the hearing itself (at [16]-[19]). The Tribunal then addressed the question as to which version of the events was to be preferred and placed particular reliance on the evidence from both Ms Wyrzuk and Ms Van Zyl that the appellant's behaviour was aggressive and threatening and that he had placed himself between them and the only access out of the room, the appellant's evidence that he was determined to have the landlord's employee listen to him, and the incident report from the conciliator, who was independent of the landlord and had no reason to make a false report (at [20]-[24]). 3. At the hearing of the appeal, the appellant criticised the Tribunal for preferring the respondent's evidence about the incident over his version of the events. In support he pointed to the absence of any evidence from the Sheriff about his conduct, but the Sheriff was not a witness to what had occurred in the conciliation room. We consider that it was reasonably open to the Tribunal to arrive at this conclusion for the reasons it gave. We can discern no error of law by the Tribunal in reaching this conclusion. Consideration-Ground 3 1. Ground 3 also cannot be sustained. The Tribunal referred to the appellant's claim for outstanding money and to Ms Wryzuk's evidence that at the conciliation she went through the ledger and attempted to explain to the appellant that the whole amount had been paid (at [7]). The Tribunal went on to refer to the appellant's application for unpaid money and belief that the employees of the respondent did not do their jobs properly as part of the context in respect of the incident on 16 November 2023 (at [16], [17], and [18]) and concluded that even if the money had not been paid it did not excuse or provide any justification for the appellant's behaviour (at [39]). 2. At the hearing of the appeal the appellant showed us bank account records of Centrelink payments to him on 5 and 7 May 2023 (which the appellant said were normal payments of $799.20 after his rent was deducted) and increased Centrelink payments to him of $1,036.90 on 2 and 14 June 2023 (because a smaller amount of rent had been deducted). As we understood it, the appellant was saying that from this material it could be seen that there was still some $25.00 outstanding from the $500 that should have been paid to him because the increased payments did not amount to the $500 sum he was owed. 3. However, whilst the Tribunal did not refer to these particular bank records, we fail to see how there was any error by the Tribunal in not doing so because the Tribunal reasoned on the basis of an assumption that outstanding money was owed to the appellant, without having to decide whether or not this was in fact the case (at [39]). Consideration-Ground 4 1. Whilst in the Notice of Appeal the appellant stated that he had not seen any of the incident reports, he was less emphatic about this at the hearing of the appeal. At the hearing of the appeal, the appellant, initially, indicated that he thought he had received the report by Ms Wyrzuk but he did not think he had received the report by Ms Van Zyl. 2. The documentary material provided by the respondent on the appeal indicated that the two incident reports referred to above were provided to the appellant amongst the bundle of documents accompanying the respondent's letter to him dated 11 December 2023, which was placed in his letterbox on that date. At a directions hearing in the proceedings at first instance held on 15th December 2023, which the appellant attended, it was noted in the Tribunal's orders that the landlord had already provided its evidence to the appellant and a direction was made for the appellant to provide his documents by 8 January 2024. On appeal, the respondent provided a transcript of the hearing on 15th December 2023, during which the appellant acknowledged he had received the respondent's bundle of documents (transcript, pages 3-4). 3. At the resumed hearing on 19 April 2024, after the appellant had read the documents relied upon by the respondent on the appeal, the appellant sought clarification as to whether the incident report that did not state the name of the maker of the report (unlike the report from Ms Wyrzuk) was the incident report from Ms Van Zyl. A reading of that report makes it clear that this was the report from the conciliator, namely Ms Van Zyl. Thereafter, the appellant did not expressly concede that he had received the incident report from Ms Van Zyl, but he did not state that he continued to consider he had not done so. 4. In these circumstances, we infer that the appellant must have received the incident report from Ms Van Zyl before the hearing at first instance on the basis that it was included in the bundle served on 11 December to 2023, along with, amongst other material, the incident report from Ms Wyrzuk. 5. We reject Ground 4 of the appeal. Consideration-Ground 5 1. At the hearing of the appeal the appellant and his friend Ms McKenzie made submissions to the effect that the decision was unreasonable because it was based, predominantly, on the one incident on 16 November 2023, which occurred during a very short period of time and yet the impact upon the appellant would be severe. 2. Whilst minds might differ about whether termination should be the outcome, we consider that the decision was one that was reasonably open to the Tribunal and it had an evident and intelligible justification. The gravity of the conduct of the appellant during the incident, as found by the Tribunal, was fairly characterised by the Tribunal as of a serious nature and the appellant had shown no contrition such as to encourage a more favourable view towards the appellant so far as the risk of future misbehaviour toward the respondent was concerned. On the contrary, a prominent aspect of the appellant's defence to the application was that he had not behaved in the manner put forward by the respondent. We also consider that the Tribunal was not required to treat the relevant circumstances as confined solely to the incident on 16 November 2023 and the ramifications flowing from that incident. Bearing in mind that the appellant had said nothing in his favour concerning the documentary material about his past conduct, we consider that the Tribunal was entitled to treat as material considerations in support of a termination order the consent order made on 22 October 2021, its conclusion that the appellant's conduct was in breach of that order, as well as the warning letters, albeit (as the Tribunal itself had mentioned), the specific circumstances concerning those letters had not been presented to the Tribunal. 3. So far as prior conduct of the appellant was concerned, in oral submissions on appeal, Ms McKenzie referred us to some evidence given at the hearing by Ms Wyrzuk of an earlier conciliation in another matter between the appellant and Ms Karen Brown of the respondent (at transcript page 28, lines 27-37). It was submitted that this led to some unfairness to the respondent. However, it is sufficient to say that the Tribunal's reasons contained no reference to this earlier event and there is no suggestion that the Tribunal placed any reliance upon it in any way. 4. We reject Ground 5 of the appeal. Consideration-Ground 6 (leave to appeal-contention that decision not fair and equitable and against the weight of the evidence) 1. Having regard to what we have already said about Grounds 1 to 5, we do not consider the decision was not fair and equitable. 2. As to being against the weight of the evidence, it was said in Collins v Urban (at [77] (1)] The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 1. We have set out above the matters that the appellant stated in his Notice of Appeal the Tribunal should have given more weight to, namely the previous behaviour of the respondent in dealing with the appellant and his PTSD condition. However, our reasons already given in respect of Grounds 1 and 3 dispose of these two aspects in so far as the weight of the evidence ground is relied upon. 2. Otherwise, in view of what we have already said above, particularly, in relation to Grounds 2 and 5, we do not consider that this is a matter in which the evidence in its totality preponderates so strongly against the conclusion reached by the Tribunal could be said that the decision was not one that a reasonable Tribunal could reach. Consideration-Ground 7 (leave to appeal on the basis of new evidence) 1. We turn to deal with ground of appeal based upon new evidentiary material referred to above. 2. The letter from the Team Leader of the Newcastle Tenancy Team of the DCJ to the appellant, dated 1 March 2024, was, relevantly, in the following terms: I'm writing to you in follow-up from my letter sent to you on 23 February 2024, about the communication directive. Having spoken with you at length over the course of the past week and having spoken with your advocate, Geoff Capelin from the Hunter Tenants Advice and Advocacy Service, I'm writing to advise you that, this communication directive is no longer current. You are now welcome to speak directly with staff both via phone and in our office at 615 Hunter Street Newcastle West, on the proviso that you continue to treat our staff with courtesy and respect. Staff will implement general risk management procedures as required should they need to visit your property. …. 1. Plainly, the letter was not reasonably available at the time of the hearing on 5 February 2024. It concerns relations between the parties subsequent to the Tribunal's decision. 2. We were not provided with the letter dated 23 February 2024. Nevertheless, we infer that the communication directive referred to in the above letter followed upon the instruction to staff, following the incident on 16 November 2023, not to have any contact with the appellant-an instruction that Ms Wyrzuk referred to in her evidence to the Tribunal (see at [13] of the Tribunal's reasons). 3. At the hearing of the appeal, submissions were made on behalf of the appellant to the effect that the above letter supported the appeal because it showed improved relations between the parties, that the respondent now welcomed contact from the appellant and were no longer (or were less) concerned about aggressive behaviour by the appellant, that it highlighted the nature of the 16 November 2023 incident as an isolated one and that relations between the parties were able to continue on a satisfactory basis. 4. As we understood it, the email communications between the parties later in March 2024 and the tickets showing attendance by the appellant at the respondent's offices (referred to in paragraph 51 (2) above) were relied upon by the appellant to provide further support for this submission. 5. However, it is pertinent to recognise the context of the 1 March 2024 letter (and other dealings relied upon) by reference to the proceedings between the parties because such context indicates the short- term nature of this change in the relations between the parties, so far as the perspective of the respondent is concerned. 6. At the time of the letter dated 1 March 2024, the appellant had lodged his appeal and an application for a stay of the orders for termination and possession pending the outcome of the appeal. The stay application had been fixed for hearing on 8 March 2024. By submissions dated 6 March 2024, the respondent opposed the stay application. On 8 March 2024 Principal Member Suthers ordered that the order of possession was suspended until further order or finalisation of the appeal, whichever was the earlier in time (the appeal was fixed for hearing on 17 April 2024). This order was conditional upon the appellant not threatening, intimidating or harassing the staff of the respondent or interfering with its operations. Thereafter, on 14 March 2024 the respondent lodged its Reply to Appeal in which it supported the orders made by the Tribunal. It continued to pursue that position in the appeal. 7. In these circumstances, we do not consider that the 1 March 2024 letter is "significant" new evidence, as required by cl 12 (1) (c) of Schedule 4 (referred to above), nor do we consider that it establishes that the appellant "may have suffered a substantial miscarriage of justice ", as also required by that provision. 8. The documents concerning the award of $540 to the appellant in respect of the failure by the respondent to repair windows at the premises in the latter half of 2023 (referred to in paragraph 50 (2) above), plainly, were not available at the time of the hearing on 5 February 2024. 9. The documents show that at the time of the incident on 16 November 2023 the appellant was correct in believing that the respondent had not performed their contractual and statutory duties owed to him so far as these windows were concerned. 10. However, these documents do not tend to undermine Tribunal's findings about what occurred during the incident on 16 November 2023 or its conclusion that the appellant's grievance with the respondent did not excuse or justify his serious behaviour on that occasion. Accordingly, we do not consider this material as "significant" new evidence, nor evidence that shows that the appellant may have suffered a substantial miscarriage of justice. 11. Finally, in respect of this ground of appeal, there are the two letters dated 28 March 2024-one to Ms Wyrzuk and one to Ms Van Zyl. The letters are in the same terms and state: I am writing in regard to the recent conciliation. I was surprised and dismayed to read in the report from the hearing that you felt threatened and intimidated by me. That was not my intention, and I would never intentionally act in that manner towards any woman or person. We have not had any previous dealings and you may not be aware of my past history with FACs and the numerous issues that I have tried to have rectified in the 6 years or so that I've been living in the FACs apartments. My behaviour was due to sheer frustration of being previously ignored and disrespected, resulting in having to lodge these issues with NCAT to get any response or resolution to various matters relating to my living conditions. I do sincerely apologise if my behaviour at the conciliation was construed as intimidating or aggressive in any way, or made you feel unsafe or uncomfortable. 1. We do not accept that this new evidence from the appellant was not reasonably available at the time of the hearing on 5 February 2024. At the hearing of the appeal it was said on behalf of the appellant that until he read the Tribunal's decision he was unaware that his behaviour had been construed in the way referred to in the letters and that this was how Ms Wyrzuk and Ms Van Zyl felt about his behaviour. However, the incident reports provided before the hearing at first instance referred to the intimidatory and aggressive behaviour as seen by these two individuals and the expression of contrition and apology in these letters could reasonably to have been provided before at the hearing on 5 February 2024. 2. Furthermore, the expression of contrition and apology in these letters is not accompanied by any acceptance from the appellant that he did behave in the manner as found by the Tribunal. On the appeal, the appellant maintained that his contrasting version of the events was the correct version. 3. In these circumstances, we do not consider that the new evidence contained in these letters was "significant" new evidence, nor do we consider it was evidence that showed that the appellant had suffered a substantial miscarriage of justice. 4. For the above reasons, we reject Ground 7 of the appeal. Orders 1. It follows from the above reasons, that leave to appeal should be refused and the appeal should be dismissed. 2. We consider that the appellant should have a reasonable period of time in which to consider any further appeal rights and, in any event, to make arrangements in respect of his departure from the premises. Consistently with the decision at first instance, which had regard to s 154G of the RTA, we consider that the order for possession that comes into force as a consequence of the finalisation of this appeal should be suspended for 28 days from the day that this decision is issued. Accordingly, we will order that the date that the order for possession is to take effect shall be 11 June 2024. 3. Accordingly, we make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The order of possession is to take effect on 11 June 2024 ********** 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: 14 May 2024