New South Wales Supreme Court CITATION : Crook v Consumer, Trader & Tenancy Tribunal & Anor [2003] NSWSC 974 HEARING DATE(S) : 16 October 2003 JUDGMENT DATE : 29 October 2003 JURISDICTION: Common Law Division Administrative Law List JUDGMENT OF : Master Malpass DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. Any existing stay is set aside. CATCHWORDS : Termination of tenancy without notice - meaning of "injury" - application of Briginshaw test - threshold requirement and exercise of discretion to make an order. LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001, s 67. Residential Tenancies Act 1987, Pt 5 ss 53 to 79B, Pt 5 Div 3 ss 64 to 70, s 57, s 64, s 68, s 68 (1), ss 68 to 70. CASES CITED : Briginshaw v Briginshaw (1938) 60 CLR 336. David Joseph Crook (Plaintiff) PARTIES : v Consumer, Trader & Tenancy Tribunal of New South Wales (First Defendant) New South Wales Department of Housing (Second Defendant) FILE NUMBER(S) : SC 30003 of 2003 Mr N Poynder (Plaintiff) COUNSEL : N/A (First Defendant) Mr A Jungwirth (Second Defendant) Peter Baker (Plaintiff) SOLICITORS : I V Knight - Crown Solicitor - Submitting Appearance (First Defendant) Michael Callen Solicitor NSW Land & Housing Corporation (Second Defendant) LOWER COURT Consumer, Trader & Tenancy Tribunal JURISDICTION : LOWER COURT RT 02/62455 FILE NUMBER(S) : LOWER COURT A Borsody, Member JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Master Malpass Wednesday 29 October 2003 30003 of 2003 David Joseph Crook v Consumer, Trader & Tenancy Tribunal of New South Wales & Anor JUDGMENT 1 MASTER: The plaintiff appeals from a decision of the Consumer, Trader and Tenancy Tribunal (the Tribunal). A Residential Tenancy Agreement dated 17 May 2000 was made between the plaintiff as tenant and the second defendant as landlord. On 19 December 2002, the Tribunal made an order terminating the tenancy and requiring possession to be given up on 31 January 2003. 2 The plaintiff suffers from psychiatric problems (see inter alia the report and oral evidence provided by Dr Westmore). He has been presented as a disabled public tenant. 3 During a period of many months (from about September 2001 to about July 2002), employees of the second defendant were subjected to the abusive and aggressive conduct of the plaintiff. It appears that he commenced the proceedings in the Tribunal (he made a claim for compensation). This application was later withdrawn. On 15 April 2002 the second defendant made application for termination of the tenancy based on a notice of termination given pursuant to s 57 of the Residential Tenancies Act 1987 (the Act). On 7 May 2002 certain interlocutory orders were made (inter alia in relation to quiet enjoyment). The second defendant's application was later amended and it prosecuted an application for termination pursuant to s 68 of the Act. The order for termination of the tenancy was made pursuant to that provision. 4 The Act represents an attempt to reform the law relating to landlord and tenant. It sought to codify the position. 5 Part 5 of the Act is headed "Termination of residential tenancy agreements". It comprises ss 53 to 79B. Section 57 enables the giving of a notice of termination on the ground of breach of agreement. Division 3 of Pt 5 comprises ss 64 to 70. Division 3 is headed "Termination of residential tenancy agreements by Tribunal". Section 64 enables application to be made to the Tribunal for an order terminating the agreement where a notice of termination has been given. Sections 68 to 70 enable application to be made for such an order whether or not notice of termination has been given. Section 68 is in the following terms:- " 68. Tribunal may terminate residential tenancy agreement where tenant causes serious damage or injury (1) The Tribunal may, on application by a landlord under a residential tenancy agreement, make an order terminating the agreement if it is satisfied that the tenant has intentionally or recklessly caused or permitted, or is likely intentionally or recklessly to cause or permit: (a) serious damage to the residential premises, or (b) injury to the landlord, the landlord's agent or any person in occupation of or permitted on adjoining or adjacent premises. (2) If the Tribunal makes an order terminating a residential tenancy agreement under this section, the Tribunal shall also make an order for possession of the residential premises taking effect immediately. (3) In the case of a tenancy of social housing premises, a reference in subsection (1) (a) to the residential premises is taken to include a reference to any property adjoining or adjacent to the premises (including any property available for use by the tenant in common with others)." 6 Subsection (1) thereof enables the Tribunal to make an order where it is satisfied as to the matters specified therein (including the elements of serious damage to the residential premises or injury to any of the specified persons). 7 The issue in this case is whether or not the plaintiff has caused or is likely to cause injury in the sense that it is used in the section. 8 "Injury" is not defined in the Act. However, the language chosen by Parliament reveals that what must be established is "injury" and not "serious injury". 9 Subsection (1) imposes a threshold requirement which must be satisfied before an order can be made. When that requirement has been satisfied the Tribunal may make an order. It can then look at the nature of the serious damage or injury and decide whether or not to make an order. 10 The appeal is brought pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001. It enables the bringing of an appeal where the Tribunal has decided a question with respect to a matter of law. The proper construction of this provision has not been the subject of argument in this case. 11 The plaintiff bears the onus of satisfying the court that there is requisite error of law which justifies the disturbing of the decision of the Tribunal. 12 The plaintiff has argued that there were four errors of law. In his written outline of submissions, counsel for the plaintiff has identified the issues. Paragraph 2 thereof contains the following:- "………… (a) Whether the term "injury" in s.68(1)(b) of the Act includes psychological injury. (b) If the term "injury" includes psychological injury, whether proof of injury requires proof a (sic) recognisable psychiatric illness or condition. (c) The evidence required to establish satisfaction of the requirements of s.68(1)(b) of the Act. (d) The application of the standard of proof under s.68(1)(b) of the Act in light of the High Court decision in Briginshaw v Briginshaw (1938) 60 CLR 336." 13 The dictionary meaning given to "injury" is a wide one. It includes harm of any kind. It also includes "wrong, harm, insult". 14 In my view, the natural or literal meaning of "injury" is not restricted to physical injury. It extends to mental injury and mental injury is not restricted to recognisable psychiatric illness or condition. Similar usage is found in the context of personal injury litigation. It is not restricted to injury which is compensable by way of damages. 15 Section 68 has to be construed having regard to the purposes of the legislation and in its context. In my view, I am not satisfied that "injury" as it appears in that section should be given other than its natural or literal meaning. 16 The plaintiff has referred to a number of cases involving claims for nervous shock. In my view, those cases do not assist the court in dealing with the present problem. They are cases in which the court was defining one of the elements of a nervous shock claim. 17 Dr Westmore (a psychiatrist who saw the plaintiff on one occasion for medico legal purposes) gave evidence before the Tribunal. Some brief evidence was elicited from him in cross-examination. Save for this, the second defendant did not seek to place before the court any evidence from a medical expert. 18 Whilst the adducing of expert evidence is one way of proving "injury" it is not the only way. It may be provided by the evidence of lay witnesses. A lay witness may give evidence of what has happened to him or her (including evidence as to the effect that certain conduct has had on him or her). 19 In this case, such evidence was given by two employees of the second defendant. In addition, the Tribunal had before it considerable documentary material (statements and telephone messages). The truth of this evidence was not the subject of challenge during the hearing (by way of cross-examination or evidence from the plaintiff). The plaintiff himself did not give evidence. Rather, the plaintiff took the stance of arguing that this evidence did not constitute "injury" in the relevant sense. In addition to this material, the Tribunal Member witnessed an outburst from the plaintiff whilst one of the employees was giving her evidence. The abusive and aggressive outburst was directed both to the witness and the Tribunal Member. 20 The second defendant does not suggest that there was any physical injury suffered. Broadly speaking, the alleged injury fell inter alia into the areas of emotional distress (including anxiety and stress), intimidation and harassment. There was evidence upon which findings to that effect could be founded. There was evidence that it had persisted over many months and that it could be expected to continue into the future. There was evidence that one of the employees feared for her safety. There was evidence from Dr Westmore that the conduct could be expected to cause intimidation and that intimidation can give rise to a range of psychological symptoms (including fear and anxiety). The section can be satisfied by proving either actual injury or potential injury ("is likely—to cause—injury"). In my view, this is not a case in which it can be said that there was no evidence of injury in the relevant sense (be it actual or potential). I do not accept that there can be any error of law on that ground. 21 The Tribunal accepted that it applied and purported to apply the test laid down in Briginshaw v Briginshaw (1938) 60 CLR 336. The complaint made by the plaintiff is that the Tribunal Member did not in fact apply that test. 22 The section has been described as being draconian. It is said to give rise to a serious matter. 23 I am not satisfied that the section should be described as draconian. The question of whether or not this was a case in which the Briginshaw test should be applied was not argued. The parties proceeded on the basis that it had application. For my part, I have doubts as to whether that is the case. However, for present purposes, I shall proceed on the assumption that it does apply. 24 The loss of entitlement under a tenancy agreement may be regarded by the tenant as a matter of some seriousness. In the present case, the plaintiff has a disability. He may find it difficult on the open market getting other accommodation. He would have experienced the same problems if the termination had been made pursuant to s 64. It was open to the second defendant to seek relief pursuant to that provision. 25 Be that as it may, I am not satisfied that the Tribunal Member did not correctly apply the Briginshaw test. This was not a case in which there were "inexact proofs, indefinite testimony, or indirect inferences". The evidence going to the question of "injury" was not challenged. The questions posed for the Tribunal concerned whether or not the evidence satisfied the legislative intention. 26 The Tribunal Member decided to make an order after being satisfied of the threshold requirement. She took into account the inter alia conduct of the plaintiff and the nature of the injury. 27 He has persistently engaged in grossly offensive conduct. He has used vile and filthy language to employees of the landlord who were merely endeavouring to carry out their duties. A landlord's employees should not have to continue to suffer such conduct. The conduct has caused injury and can be expected to continue to do so. There is a potential for physical injury. It is not put that the plaintiff proposes to take steps to bring his conduct to an end. 28 The discretion to make an order is exercised having regard to the particular circumstances of the case before the Tribunal. As I understand the position, the exercise of the discretion itself is not the subject of the plaintiff's attack. If that not be the case, it is my view that there was no error in the exercise of the discretion. Indeed, it seems to me to be an appropriate case in which an order should be made. 29 Accordingly, I am not satisfied that there was any error of law which could justify the disturbing of the decision. Therefore, the appeal must fail. 30 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. Any existing stay is set aside. ********** Last Modified: 10/30/2003 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.