Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shipman v Homes North Community Housing Limited [2024] NSWCATAP 258 Hearing dates: 12 November 2024 Date of orders: 18 December 2024 Decision date: 18 December 2024 Jurisdiction: Appeal Panel Before: E Bishop SC, Senior Member G Burton SC, Senior Member Decision: (1) The appeal is allowed. (2) The orders of the Tribunal in 2023/00448686 are set aside. (3) The matter is remitted to the Consumer and Commercial Division, Civil and Administrative Tribunal (NSW) for hearing in accordance with law. Catchwords: APPEAL — failure to consider mandatory considerations in s 154E — did not apply correct principles in s 91 RESIDENTIAL TENANCY — termination of social housing agreement — unlawful use of premises under s 91 — requirement to be satisfied the use justifies termination under s 91 Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2), cl 12(1) of Sch 4 Residential Tenancies Act 2010 (NSW), ss 81, 91, 154D, 154E, 154G Cases Cited: Collins v Urban [2014] NSWCATAP 17 Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 House v The King (1936) 55 CLR 499; [1936] HCA 40 Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 Pholi v Wearne [2014] NSWCATAP 78 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 BHP Billiton Ltd v Dunning [2013] NSWCA 421 Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59 Gallagher v The Queen (1986) 160 CLR 392 at 399 and 402; [1986] HCA 26 Texts Cited: None Cited Category: Principal judgment Parties: Trinity Shipman (Appellant) Homes North Community Housing Ltd (Respondent) Representation: Legal Aid NSW (Appellant) Homes North Community Housing (Self Represented) File Number(s): 2024/00352265 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 9 September 2024 Before: SB Hennings, General Member File Number(s): 2023/00448686 REASONS FOR DECISION Introduction 1. The Homes North Community Housing Limited ("Homes North") is the landlord of residential premises in Gunnedah ("the premises"). It made an application on 11 December 2023 under s 91(1)(a) of the Residential Tenancies Act 2010 (NSW) ("the Act") that the Tribunal terminate the tenancy of Ms Shipman ("the tenant") in respect of the use of the premises for illegal purposes being the supply of drugs. 2. The tenant is a social housing tenant. 3. The tenant did not file evidence within the time directed by the Tribunal. When the matter was listed for hearing on 9 September 2024, the tenant did not appear at the hearing. The Tribunal made the termination order but suspended the order for possession until 16 September 2024. That order was subsequently stayed on 9 October 2024 pending this appeal. 4. In her notice of appeal dated 23 September 2024, Ms Shipman identified four grounds said to be errors of law not requiring leave to appeal: 1. The Tribunal failed to consider a mandatory relevant consideration pursuant to s 154E of the Act including the tenant's personal circumstances and the history of the tenancy. 2. The Tribunal's exercise of discretion under s 154D miscarried when it determined that termination would not result in undue hardship being suffered by a child – the decision was plainly unreasonable or unjust in circumstances where the tenant is a 23 year old aboriginal woman with diagnosed mental health conditions, single mother, with no history of tenancy breach. 3. The decision was against the weight of evidence to the extent of creating a substantial injustice in the outcome. 4. The Tribunal failed to give adequate reasons for its decision to terminate – the original decision lists no reasons or matters that were considered; a request for a sound recording was made on 17 September 2024 by Legal Aid NSW but no copy was received as at the time of the submission. 1. The tenant also sought leave to appeal under cl 12(1) of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT ACT") on the same bases as the grounds of appeal just set out but with evidence that was said not to be reasonably available at the time of the hearing and which raised a chance that a different more favourable outcome may have been available. The tenant sought leave to rely on that further evidence which comprised a statement of the tenant; a Centrelink income statement; email correspondence between Legal Aid and New England and Western Tenants Advice and Advocacy Service ("NEWTAAS"); a letter from solicitor Kasey Burr of Carr Legal dated 20 September 2024; a letter from Dr Poya dated 21 September 2024 confirming the tenant's medical conditions; a birth certificate for the tenant's daughter and a death certificate for her partner. 2. By her Amended Notice of Appeal dated 15 October 2024, the original Notice of Appeal was said to be "withdrawn and substituted" with the Amended Notice, however, previously in submissions it was stated this would be added as an additional ground of appeal. The additional ground was that there was a denial of procedural fairness and/or natural justice as the tenant was unaware of the hearing date and was unable to meet the case against her. At the hearing we confirmed with the tenant's representative that she was not abandoning the primary grounds of appeal and that the Amended Notice of Appeal in effect incorporated the grounds of appeal originally articulated, but now particularised certain matters said to demonstrate procedural unfairness. That is, the tenant still argued questions of law as articulated in the original Notice of Appeal, but that she better particularised the ground that the tenant was denied procedural fairness and/or natural justice because the Tribunal did not ensure that the tenant had a reasonable opportunity to be heard. 3. We have decided that the appeal should be upheld on a question of law for the reasons that follow. Background 1. The tenant is a 23 year old Aboriginal woman who suffers from depression, anxiety, complex post-traumatic stress disorder and abnormal grieving after the unexpected loss of her partner while she was pregnant. She has a 19 month old daughter in her care full-time and does not have family assistance. 2. The tenant has lived in the premises for approximately 9-10 years and took the tenancy over from a family member about four years ago. 3. By way of background, from December 2021 to November 2023 the police had been conducting an investigation into the supply of prohibited drugs in Gunnedah. As a result of the police investigation a number of people were arrested, including a relative of the tenant who is alleged to be a major street to mid-level supplier of high-quality crystal methyl amphetamine ("crystal meth"). 4. On 29 November 2023, NSW police entered the tenant's premises pursuant to a search warrant. The police seized 37 grams of dried cannabis leaf, $650 cash, mobile telephones and electrical tape from the premises. 5. In late 2023, the tenant was charged with a range of charges including supplying drugs and dealing with proceeds of crime. 6. On 11 December 2023, Homes North lodged an application seeking termination of the tenancy and possession of the premises. 7. On 24 February 2024, the tenant and her advocate representative from the Northern Aboriginal Tenants Advice and Advocacy Services ("NATAAS"), Ms Connors, were present via an audio-visual link at a conciliation. Orders were made for the tenant to provide an application for a stay with evidence and to advise if she was relying on s 154D(3)(b) of the Residential Tenancies Act. Orders were extended for compliance to 22 July 2024. 8. The tenant was advised by Ms Connors that a different advocate would be taking over her tenancy matter. The tenant did not receive any further correspondence and was not advised by her representative that anything else was required of her. 9. On 3 September 2024, the tenant contacted Legal Aid NSW to make enquiries about the tenancy matter. Legal Aid subsequently referred the matter to NEWTAAS for representation at a hearing on 9 September. 10. NEWTAAS had refused to accept the referral and had called NATAAS to confirm representation and transfer of the matter. Hearing in the Tribunal 1. On 9 September 2024, the matter was listed for hearing. When there was no appearance by the tenant or a representative for her, Homes North's representative contacted Ms Connors who indicated that she thought the matter had been listed for the following day and said she would make urgent enquiries. 2. Mr Griffiths from NATAAS subsequently dialled into the hearing and informed the Tribunal that the tenant's paperwork was still being transferred from Legal Aid being the tenant's representative in respect of criminal matters. Mr Griffiths said that he had been informed the matter was listed before the Tribunal on the following date which is why no one had dialled in for the hearing. He informed the Tribunal that the tenant had pleaded not guilty to the criminal charges; that he did not yet have instructions from the tenant for this proceeding including about whether the alleged illegal activities occurred at the tenant's premises or not; and that the matter was transferred by Legal Aid to NEWTAAS who were sending everything to him but that he had been out of the office for a week and had not received it. 3. The transcript records that the Tribunal said to Mr Griffiths: "Member Hennings: I mean it looks like a fairly straightforward case I would have thought, but anyway I don't know, and obviously if it's involved in that drug dealing provisions I must terminate so at this stage there's no hardship or anything in accordance with the legislation being presented or led by the tenant. So I really don't know what other outcome can happen today. If Ms Styles says that the matter should proceed, which you know, I would anticipate at this stage I'm of a view that it should, given all the opportunities for the tenant to engage with the process and at least submit something where nothing at all has been submitted. This matter seems to me to have gone on for a very long time, for what looks like a fairly simple case, so I don't know if there's anything else you can add, Mr Griffith. Otherwise I'll note that you attended and had no instructions. Mr Griffiths: Yep That quick member. Yeh Member Hennings: But anyway, you can discuss that, I guess with NEWTAAS or whoever but year I don't know why they're not here today and if they think that they've got some arguable case or why they haven't submitted any documents if they think they've got some arguable case all those things seem a bit of a mystery at the moment, but anyway. Alright. Well. Mr Griffiths, certainly I guess that's all I can really say to you if you've got no instructions…" 1. No attempt was made to dial in the tenant. 2. The Tribunal noted there was no explanation for why the tenant did not appear or why orders had not been responded to and decided to determine the matter. 3. The transcript records Member Hennings saying to the representative for Homes North, "I'm satisfied on [the uncontested evidence of police records] that you've proven the breach in respect of s 91(1)(a) … I am satisfied the premises have been used for the purposes of sale and supply of prohibited drugs." 4. It is clear on the transcript the Tribunal then considered whether he had any discretion. He stated (at 29:21): "When I then turn to section 154D of the Residential Tenancies Act, so that says the tribunal must make a termination order under a social housing agreement, if the provisions of section 91(1)(a) have been set out under section 154(1)(B). Section 3 gives an alternative if certain provisions apply, but given that the tenant hasn't put in any evidence or made any representatives in respect of either children or Anti-Discrimination Act and Disability Services Act applying then at this stage I've got no reason to accept that the exception to 154D(1)(B) applies and that says I must terminate the tenancy. So that being the case I am satisfied that in these provisions there is no discretion. The Tribunal must terminate the tenancy, given what activities have been going on at the House in accordance with that supply and sale of drugs …" 1. At the time of the hearing before the Tribunal, the charges against the tenant had not yet been certified by the Court and no brief of evidence had yet been provided to her. This is not a fact in dispute between the parties. 2. At the time of the appeal hearing, the charges had still not been certified. Relevant legislation 1. Before we turn to the Reasons for the Decision of the Tribunal it is convenient to set out the relevant legislative provisions in the Act. 2. Section 81 of the Act sets out the circumstances under which a residential tenancy terminates including by order of the Tribunal (s 81(3)). 3. Section 91 of the Act provides: 91 Use of premises for illegal purposes (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 intentionally or recklessly caused or permitted— (a) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or (b) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination. (2) In considering whether to make a termination order on the ground specified in subsection (1)(b), the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the unlawful use, (b) any previous unlawful uses, (c) the previous history of the tenancy. (3) The termination order may specify that the order for possession takes effect immediately. (4) A landlord may make an application under this section without giving the tenant a termination notice. (5) 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. Division 5 of the Act contains additional provisions relating to the termination of social housing tenancy agreements. 2. Of relevance, in Subdiv 4 entitled "Breach of Agreement", s 154D provides: 154D Tribunal required to make termination order in certain circumstances (1) Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord under a social housing tenancy agreement if— (a) an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90(1)(b) and the injury constitutes grievous bodily harm within the meaning of the Crimes Act 1900, or (b) an application for the order is made under section 91 and the Tribunal is satisfied of the matters set out in section 91(1)(a), or (c) an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used for the purposes of— (i) storing a firearm for which a licence or permit is not held under the Firearms Act 1996, or (ii) a show cause offence within the meaning of the Bail Act 2013, and the tenant or other person has been charged with an offence relating to those circumstances (whether or not the person is or has been found guilty of the offence). (2) Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord if— (a) an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90(1) (and subsection (1) of this section does not apply), or (b) an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used— (i) as a brothel within the meaning of the Environmental Planning and Assessment Act 1979, or (ii) for the purposes of an offence against section 91H (Production, dissemination or possession of child abuse material) of the Crimes Act 1900, or (iii) for the purposes of an offence against section 154G (Facilitating organised car or boat rebirthing activities) of the Crimes Act 1900, or (c) an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used for any other unlawful purpose and that the use is sufficient to justify the termination. (3) However— (a) subsection (1)(a) does not apply if the application for the termination order is based on an act of a person who although not a tenant is occupying or jointly occupying the residential premises and not on an act of the tenant, and (b) subsections (1) and (2) do not apply if the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered by a child, a person in whose favour an apprehended violence order could be made or a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977 who is occupying or jointly occupying the social housing premises, and (c) subsection (2) does not apply if the tenant satisfies the Tribunal that there are other exceptional circumstances that justify the order not being made. (4) For the purposes of the application of section 91(1)(b) to social housing premises under this section— (a) the reference to residential premises in section 91(1)(b) is to be taken to be a reference to the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others), and (b) if the Tribunal is satisfied that an offence of a kind referred to in subsection (1)(c) or (2)(b) has been committed by a person on the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others), the Tribunal must assume that— (i) the premises or property has been used for an unlawful purpose, and (ii) the use is sufficient to justify termination of the agreement. (5) If the Tribunal does not make a termination order as a consequence of subsection (3), the Tribunal must provide written reasons for the decision. 1. Section 154E of the Residential Tenancies Act provides: 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. Tribunal's reasons for decision below 1. In the Reasons for Decision, the Tribunal began by setting out the procedural background – that is, the tenant's non-compliance with directions to file evidence and her non-appearance at the hearing. The Tribunal also noted that as the tenant had failed to submit any documents and/or attend, and there were police facts with the alleged illegal use of the premises, it was satisfied the matter was ready and should proceed in the tenant's absence. 2. The Tribunal referred to NSW Police records and expressed the view that it was satisfied, on the basis of those uncontested records, that there was ongoing sale and supply of drugs from the tenant's premises and that the tenant was involved and ultimately charged. 3. The Tribunal went on to record: "Based upon the uncontested evidence obtained and submitted from NSW Police the Tribunal finds that the elements in s 91(1)(a) are made out. The Tribunal finds that the tenant has intentionally caused or permitted the use of the residential premises for the purposes of the sale and supply of a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1984. The breach is proven." 1. The Tribunal then went straight to s 154D to determine whether the mandatory provision applied or whether the Tribunal had a discretion as to whether to terminate the tenancy. 2. The Tribunal cited s 154D(1)(b) as the relevant provision and then considered the question of undue hardship with s 154D(3)(b) as the "gateway to a discretionary consideration of a termination application under s 91". 3. The Tribunal considered there was no evidence that the tenant had a disability but acknowledged there was an infant child residing in the premises. However, the Tribunal was not satisfied, in the absence of evidence, that termination of the tenancy would result in undue hardship to the child within s 154D(3)(b) and consequently considered that there was no discretion. 4. The Tribunal also said it gave consideration to the factors in s 154E but only referred to the fact that the matter had been ongoing since 11 December 2023 (that is, nine months) as being a lengthy period of time. 5. Ultimately, in terminating the tenancy, the Tribunal had regard to the fact that a child resided in the premises and so suspended termination of the tenancy for one week. 6. The transcript was provided to us which reflected the matters identified in the Reasons for Decision. Scope and nature of internal appeals 1. An internal appeal is brought as of right on any question of law, and with permission (or "leave") on any other grounds: NCAT Act, s 80(2)(b). 2. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]-[40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12], [14]; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220. 3. On a question of law appeal, the exercise of a statutory discretion, including under s 91 of the Residential Tenancies Act, can only be overturned in limited circumstances: House v The King (1936) 55 CLR 499 at 505-506; [1936] HCA 40. Those circumstances were summarised by the Court of Appeal in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [14] per Tobias AJA (Beazley P (at [1]) and Emmett JA agreeing (at [6])). The Court held that any attack on a discretionary decision must fail: "…unless it can be demonstrated that the decision maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning." Leave to appeal 1. The circumstances in which the Appeal Panel may grant leave to appeal from a decision made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. 2. The principles governing an application for leave to appeal under the NCAT Act are well established and repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17 (Collins v Urban). The Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 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. In Collins v Urban, the Appeal Panel stated, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: "... there was a 'significant possibility' or a 'chance which was fairly open' that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." 1. Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [31]. 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. Issues of principles; 2. Questions of public importance or matters of administration or policy which might have general application; 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 unreasonable 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. The Grounds of Appeal Ground 1: Did the Tribunal fail to consider mandatory considerations in s 154E? 1. The tenant submitted that the Tribunal failed to apply s 154E and the mandatory considerations specified by Parliament therein to be taken into account. 2. Nowhere in the Reasons for Decision nor the transcript does the Tribunal refer to the factors in s 154E. There is no mention of the matters listed in s 154E that must be taken into account, including any effect of the tenancy on neighbours, whether neighbours may suffer adverse effects if the tenancy is not terminated, the landlord's responsibility to other tenants, the history of the tenant's residence. The only matter referred to (although not in the context of the s 154E considerations) is that the tenant had failed to comply with orders to file evidence. 3. As noted by the tenant's representative on this appeal, the Tribunal had before it information about the tenancy including that the tenant had lived at the premises for nine years without any prior issues. The records of the conciliation would have made it reasonably clear to the Tribunal that the tenant intended to raise s 154E factors. 4. Further and notably, Homes North did not submit an impact statement (under s 154F) about the impact of the tenancy on neighbours which is a mandatory consideration under s 154E. At the hearing of this appeal the Homes North's representative accepted that s 154E factors or a s 154F impact statement were not addressed in the Tribunal below. 5. The factors in s 154E are mandatory such that they were required to be considered by the Tribunal before terminating. In this case there is a complete absence of any mention of these factors or consideration of them. 6. Consequently we are satisfied that the Tribunal failed to take into account the mandatory considerations in s 154E. The appeal succeeds on this ground. 7. During the course of the hearing, we also raised with the parties the construction and application of s 91 undertaken by the Tribunal. It was apparent that the Tribunal made a finding that the tenant had "intentionally or recklessly" caused or permitted the use of the residential premises for the supply of a prohibited drug. This was solely on the basis of the police fact sheet in respect of charges which had not yet been certified and in the absence of any evidence to the contrary. That is, the Tribunal in effect found that Homes North had satisfied its onus of proof by merely tendering the police fact sheet without giving the tenant the opportunity to challenge intentionality or recklessness in circumstances where she might otherwise have applied for a stay of this proceeding until at least the charges had been certified or her criminal proceedings had been determined. Further, as a matter of statutory construction, we also note that for s 91 to be satisfied it required the Tribunal to do more than just make a finding of intentional or reckless unlawful use of premises before considering whether a discretion not to terminate might apply. The Tribunal was also required under s 91(2)(c) to determine whether or not the unlawful use was "sufficient to justify the termination" of the tenancy. 8. The Tribunal proceeded on an incorrect assumption that any unlawful use of premises automatically means termination is required (absent a discretionary factor in s 154D). That is not what the Act provides. Rather, a plain reading of s 91(2)(c) shows a judgment is called for as to whether the unlawful use as found is sufficient to justify termination. The Tribunal in this case did not apply s 91(2)(c) and so failed to perform its statutory task. This was an error and is another reason that this appeal should succeed. Ground 2 and 3: Did the Tribunal's discretion in s 154D miscarry by failing to find that termination would result in hardship to a child or person with a disability and was the decision against the weight of evidence 1. We have combined these grounds as they both have as a foundation a linkage to the fact that as there was evidence (albeit not before the Tribunal) which could have been made available and which the Tribunal ought to have had before it when it made its decision. These grounds also tie into the denial of procedural fairness ground in that the tenant contends that if she had been contacted during the hearing, she would have given this evidence or at the very least asked for an adjournment to put on the evidence. 2. The Tribunal did not have any of the tenant's material before it for the reason that the tenant had not complied with the timetable for filing evidence. Consequently, it was open for the Tribunal in the absence of evidence to not be satisfied that the factors in s 154D were engaged. While there may have been evidence (as has now been provided on this appeal), it had not been presented to the Tribunal in the time limits stipulated. That the Tribunal might have reached a different conclusion if this material had been before it is not really to the point on these grounds. We do not consider the Tribunal erred on these grounds and consequently Grounds 2 and 3 of themselves are not made out. Ground 3: Did the Tribunal fail to give adequate reasons? 1. As originally drafted, this ground of appeal was included for the reason that there was no transcript of the hearing at the time of drafting. However that transcript became available and was provided to us by the tenant for the appeal. 2. As we understood the tenant's submissions at the hearing, she no longer pressed this ground of appeal. In any event, we would not have found that there was a failure to give adequate reasons in the circumstances where the Reasons for Decision quite clearly identify the basis upon which the termination order was made. Indeed the Reasons assisted us to conclude that the Tribunal had made the errors referred to in Ground 1. Ground 4: Whether the tenant was denied procedural fairness or natural justice as she was not given an opportunity to be heard. 1. As noted above, when the tenant did not appear at the hearing, Mr Griffiths was given an opportunity to address the Tribunal. Having heard from Mr Griffiths, and in particular that there was a mix-up with the date of the hearing and that the matter had been transferred to two different agencies and that he did not yet have instructions from the tenant, it was open to the Tribunal to also contact the tenant herself to explain her absence from the hearing. But that did not happen. Instead the Tribunal decided to proceed in her absence in a serious matter where she was at risk of losing her home and in circumstances where the Tribunal was aware she had an infant child to care for. 2. Where a party does not comply with the timetable to file evidence, and then also does not appear at the hearing, to determine the matter in the party's absence would not ordinarily constitute procedural unfairness. But here, contact had been made with a representative who indicated there was a misunderstanding about the hearing date. There was also a record that at the conciliation the tenant had indicated she would raise s 154E factors at the hearing. That should have been enough to alert the Tribunal to the possibility that the tenant was not aware of the hearing on that day. We consider in the particular circumstances of this case, it was unreasonable for the Tribunal to contact Mr Griffiths but not the tenant and to then proceed in her absence in the face of what Mr Griffiths had informed the Tribunal. This was contrary to s 38(5)(c) of the NCAT Act. 3. Homes North submitted that there was no procedural unfairness as the tenant had ample opportunity to file evidence and "be heard". It was also contended that the outcome would not have been any different because of the tenant's non-compliance. We do not agree. 4. The tenant's non-appearance at the hearing in circumstances where she was unaware the hearing was being held that day, meant that the Tribunal did not have the relevant information necessary to determine whether s 91 was satisfied and whether the discretionary considerations in s 154D or s 154E were enlivened. Had the tenant been contacted (as simply as Mr Griffiths was), she could have provided evidence as to her personal circumstances, confirmed that her criminal charges had not yet been finalised and possibly sought an adjournment. 5. Consequently, we are satisfied in the circumstances of this case, that the tenant was denied procedural fairness and this ground of appeal is made out. Leave to Appeal 1. Since we have come to the view that the two broad grounds relied on by the tenant are questions of law, the appellant does not require leave. However, for the same reasons referred to above in respect of Ground 4, we are of the view that the tenant may have suffered a substantial miscarriage of justice because the decision of the Tribunal was not fair and equitable. 2. Where, as in this case, there is a significant possibility that the tenant may have lost a chance of achieving a better outcome than occurred by reason of the denial of procedural fairness, there is a miscarriage of justice: see albeit in the criminal context, Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59 and Gallagher v The Queen (1986) 160 CLR 392 at 399 and 402; [1986] HCA 26. 3. If the Appeal Panel is satisfied that the applicant may have suffered a substantial miscarriage of justice on those grounds, then the Panel may grant leave under s 80(2)(b) of the Act if it considers that it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the Act. 4. As noted above, the relevant principles to be applied when deciding whether to grant leave to appeal as set out in Collins at [84], include that the tenant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there. They also include where a factual error that was unreasonably arrived at and clearly mistaken, or otherwise where the decision was not fair and reasonable. 5. Here there was a denial of procedural fairness in the way in which the proceedings were conducted, especially where the tenant was denied a reasonable opportunity to be heard (in circumstances where a representative had indicated there was a mix-up with the hearing date and she was not called), in breach of s 38(5)(c) of the NCAT Act. We find that, in the circumstances the decision was not fair and equitable within s 12(1)(a). 6. Furthermore, we find that there is material in the tenant's evidence that she wishes to rely on in this appeal which indicates that, had she been accorded procedural fairness and permitted to put before the Tribunal this evidence, the result may have been more favourable to her. In those circumstances, we are satisfied that the appellant might have suffered a substantial miscarriage of justice and we would, if leave had been required, exercise the discretion to grant leave to appeal and allow the appeal. Orders 1. For these reasons we make the following orders: 1. The appeal is allowed. 2. The orders of the Tribunal in 2023/00448686 are set aside. 3. The matter is remitted to the Consumer and Commercial Division, Civil and Administrative Tribunal (NSW) for hearing in accordance with law. ********** 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: 18 December 2024