Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Stewart v Yarrawarra Aboriginal Corporation [2015] NSWCATAP 4 Hearing dates: 30 September 2014 Date of orders: 14 January 2015 Decision date: 14 January 2015 Jurisdiction: Appeal Panel Before: P Wass SC, Senior Member G Meadows, Senior Member Decision: (1) The appeal is allowed. (2) Matter is remitted to the Tribunal for hearing Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) –– exercise of discretion – appeal allowed. Category: Principal judgment Parties: Neville John Stewart (Appellant) Yarrawarra Aboriginal Corporation (Respondent) Representation: Counsel : P Batley (Appellant) J Sercombe (Respondent, agent): File Number(s): AP 14/46420 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 19 May 2014 Before: FDL Holles, General Member File Number(s): SH 14/09235 REASONS FOR DECISION 1. The appellant appeals against a decision of the Tribunal Member, terminating his residential lease. For the reasons that follow, the Appeal Panel has allowed his appeal and remitted the matter to the Tribunal Consumer and Commercial Division, Civil and Administrative Tribunal (NSW) for hearing in accordance with law. Introduction 1. The appellant is an Aboriginal man and the tenant of premises at Unit 1, 5 Basswood Court Coffs Harbour ("the Premises"), leased under a residential tenancy agreement with the Yarrawarra Aboriginal Corporation, the respondent in these proceedings ("the Lease"). 2. Basswood Court is a cul de sac. The respondent owns Units 1 and 2. The other units in Basswood Court are believed to be privately owned. The Premises is situated at the end of a driveway that is adjacent to the southern end of Basswood Court. Unit 2 is also located there. The Premises is located nearest to the end of the driveway. 3. The appellant has been residing at the Premises since about 25 May 2012. Termination of the Tenancy 1. Pursuant to clause 15 of the standard terms of the Lease the appellant agreed not to cause or permit a nuisance and not interfere, or cause or permit interference, with the reasonable peace, comfort or privacy of the neighbours and not to cause or permit more people to reside in the Premises than is permitted by the Lease. The Lease permits two people to reside in the Premises at any one time. 2. In about January 2014, John Sercombe personally served a termination notice on the appellant dated 9 January 2014. Mr Sercombe is a real estate agent at Coffs Property Real Estate, the agent for the respondent. Mr Sercombe also appeared for the respondent at the hearing of the appeal and in the matter when it was before the Civil and Administrative Tribunal ("the Tribunal"). 3. The termination notice alleged breach of clauses 15.2 and 15.3 of the Lease by causing and permitting a nuisance and interfering with the reasonable, peace, comfort and privacy of neighbours. No other particulars were provided. Hearing before the Tribunal in Coffs Harbour 1. An application for hearing in the Tribunal was filed on 17 February 2014 and served on the appellant in about February 2014. The reasons for orders seeking termination of the Lease and orders for possession were as follows: Tenant was issued a termination notice for breach of clauses 15.2 and 15.3. Tenant has breached these clauses on several occasions. Notice was issued on 9/1/14 with vacant possession required by 31/1/14. To date tenant has not vacated the property. 1. On 19 May 2014, the appellant attended the Tribunal hearing in respect of the application for termination of the Lease represented by Mr Brett Webb, an advocate employed by the Northern NSW Aboriginal Tenants Advice and Advocacy Service. Michelle Scott (the appellant's girlfriend) and the appellant's father also attended at the hearing. 2. The appellant was sworn in at the commencement of the hearing, to give evidence before the Tribunal. During the course of the hearing, Mr Webb asked the appellant a number of questions. Mr Sercombe asked no questions of him. The appellant submitted before the Appeal Panel that he was sworn in and answered questions in the course of the hearing put to him by the Tribunal Member: [31] appellant's submissions and the appellant's evidence before the Appeal Panel. 3. A transcript of the partially recorded hearing reveals that the Tribunal Member had already read the materials at the outset of the hearing and had formed the preliminary view that there was a considerable amount of material to support the fact that the appellant had not complied with the provisions of the Lease. 4. There was a significant amount of material that was not recorded and therefore not able to be transcribed, including the questions put to Mr Webb (or to the appellant if they were asked), and the evidence of Mr Sercombe and Mrs Tuennecke, who both gave evidence on behalf of the respondent. 5. From the transcript it appears that the Tribunal Member misapprehended the submission put on behalf of the appellant that the appellant may have been victimised given, for example, the differing treatment of tenants with respect to permission to have a dog. When told that the appellant had applied for, but had been refused, permission to have one dog in circumstances where the same landlord had allowed another tenant to have three dogs, the Tribunal Member stated; "But it hasn't been granted that's the problem. In any respect I'm not throwing him out because of the dog… if I do make a decision to terminate it will be made on the basis of the evidence which is before me as to the conduct of the house or the occupants of the house and that's the problem I have….." 6. After reminding Mr Webb of the onus of proof in the matter, the Tribunal Member then invited Mr Webb; "if there is anything else you would like to say, please say it". Mr Webb appeared to be in the middle of his submissions when the Tribunal Member intervened to deliver his decision. The transcript is as follows: Webb He wants to get …. Yeah he's looking to stay there. Member Look I appreciate that and I appreciate why he wants to stay there but unfortunately the ….(unintelligible) the evidence against you in favour of the applicant, the Yarrawarra Aboriginal Corporation, and I intend to make the termination order" 1. A decision in the matter was delivered at the time of the hearing on 19 May 2014. In delivering the decision, the Tribunal Member stated relevantly as follows: In the matter of Yarrawarra Aboriginal Corporation and Neville John Stewart I consider the material before me and I heard affirmed testimony from the agent representing the owner Mrs Tuennecke who is an owner occupier of the property approximate to the place which is the subject of the application to the Tribunal. I've also heard extensive and helpful submission from Mr Web who is the advocate for the Aboriginal Tenancy Advocacy Service in the area and there's been some material also provided by Mr Stewart. Based on the evidence before me and I've taken into account additionally a large number of letters on the file which [are] in the main anonymous because of concerns of the authors [of] the letters have about their safety and I have not given individually those letters particular weight however given the number that there are and the fact that they do not appear to be from the same author and the fact that they relate to similar incidents I'm persuaded on the civil standard that the application by the landlord has been made out that is that an application for termination based on breach of the Residential Tenancy .. Agreement .. and in those circumstances I propose to make an order accordingly. I take into account the provisions of Part 7 of the Residential Tenancy Act which relate to social housing matters and notwithstanding those provisions I am persuaded that the matter is one in which termination is an appropriate order…. The Tribunal's Reasons 1. Written reasons were then provided on 31 July 2014 ("the Reasons") pursuant to a request under s.62 of the Civil and Administrative Tribunal Act 2013 ("NCAT Act"). 2. According to the Reasons, the evidence lead by the respondent consisted of approximately 20 largely anonymous pieces of correspondence from persons stated to be nearby residents to the respondent. One letter was signed by Mrs Susanne Tuennecke. As mentioned, Mrs Tuennecke also gave evidence before the Tribunal. 3. In the Reasons, the anonymous letters are described as follows: 1. The letters are "clearly not written by the same person". 2. They date from late 2013 to the early months of 2014, and include letters written after the commencement of proceedings. 3. Reasonably unique events are described. * It is possible to ascertainn the identity of the author in some cases given the events described. 1. The Tribunal Member stated that the evidential value of the letters must be weighed against the fact that the authors were unwilling to be cross-examined. The Tribunal Member took into account in that consideration the fact that Mr Sercombe had given evidence that the complainants wished to retain their anonymity as they feared retribution from either the respondent or his associates. 2. The Tribunal Member went on to state at [20] of the Reasons; "The letters if accepted, even with the circumstances of their status as unsigned documents, show a clear breach by the respondent or his invitees in their behaviour". 3. The Tribunal Member described Mrs Tuennecke's evidence in the following terms (Reasons [18]-[19]): 18. Mrs Tuennecke gave affirmed testimony, in which she was at pains not to say anything against the respondent, who was present, but still gave evidence of events, which, if accepted, clearly establish the breaches alleged in the notice of termination. 19. Her cross examination by the respondent's advocate was directed essentially to one event, which was of little or no relevant to the establishment of the breaches. 20. …. The uncontracted evidence of Ms Tuennecke was convincing as to the conduct of the invitees to the respondents (sic) residence. 1. The Tribunal Member referred in the Reasons to the respondent's evidence, as follows: 21. The case for the respondent, consisted of a series of letters, handwritten by someone other than the respondent, the circumstances of their creation, that is did the respondent dictate them or were they written from information suppled by him and adopted was not explained…. There were also a series of photographs which, inter alia show a dog of an appearance like a hunting dog living in the subject remises. Letters from the applicant's complainants indicated a dog was on the premises from October 2013. 22. The documents also contained an application by the respondent to be allowed to keep a dog on the premises. Keeping a dog without permission constitutes another breach of the Lease, although it was not specifically pleaded in the application. 24. The respondent was present, and affirmed at the start of the proceedings but did not give evidence. … 26. The respondent did not given evidence, and I presume that his advocate is aware of the rule in Jones v. Dunkel (1959) 101 CLR 298. The decision not to expose his client to cross examination, with the consequent adverse inference that may be drawn was not cured by submissions that the offending behaviour was not that of invitees. The Lease does not distinguish between offending conduct of a tenant or his or her invitees. I did not for the purpose of this matter take those submissions as admissions. 27. It is conjecture as to the effect that evidence from the respondent might have had on the applicant's case. The state of the evidence was a (sic) set out above. 1. Relevantly the Tribunal Member found as follows: 28. Whilst both cases have evidentiary difficulties, I am persuaded on the balance of probabilities that the case for the applicant has been made out. I am not satisfied that the case for the respondent, as presented by the tenancy advocate, offers any coherent challenge to the case for the applicant. 29. In reaching this decision, I have taken into account the provisions relating to social housing tenants contained in Part 7 of the Residential Tenancies Act, especially s 152(1)(a)(b)and (c). 1. Accordingly, on 19 May 2014 the Lease was terminated by order of the Tribunal. An order for possession of the Premises has been stayed until the hearing of this Appeal has been finalised. Notice of Appeal 1. On about 10 June 2014, the appellant lodged an appeal within time pursuant to Rule 25(4)(a) of the NCAT Rules. 2. The appellant challenges the following orders 1. The Lease is terminated in accordance with s87 of the Residential Tenancies Act 2010 ("the Act") as the tenant has breached the Lease. 2. The Lease is terminated immediately and possession is given to the landlord on the date of termination. 3. The order for possession is suspended until 10 June 2014. 4. The tenant shall pay a daily occupation fee at the rate of $23.57 per day from the day after the date of termination, namely 20 May 2014 until the date vacant possession is given to the landlord. 5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 1. The appellant relies, in short, on the following grounds: Questions of Law: 1. The Tribunal Member denied procedural fairness in that a large proportion of the evidence of breaches of the Lease consisted of unsigned letters. The appellant was unable to identify the complainants and consequently the alleged breaches. 2. The Tribunal Member erred in determining that the landlord had satisfied s.87(4) of the Act. 3. The Tribunal member erred by failing to take into account relevant considerations as required by s.87(5) of the Act. Decision was not fair and equitable: 1. A large proportion of the evidence of breaches of the Lease was in the form of unsigned letters. The appellant has suffered a substantial injustice as he was denied procedural fairness in that he was unable to identify the complainants, answer the alleged breaches and test the evidence of the witnesses. 2. The alleged breaches were not sufficient in nature to justify the termination of the tenancy pursuant to s.87 of the Act. The Decision of the Tribunal was against the weight of the evidence: 1. Much of the evidence was in the form of unsigned letters and should not have been given any significant weight in making the decision. 2. The Tribunal Member erred in failing to give sufficient weight to the appellant's evidence shonnwing the breaches did not occur. Evidence which was not available at the Tribunal: 1. The agent behaved in a racially discriminatory manner in seeking to terminate the Lease and the tenancy of other aboriginal tenants who previously occupied the premises. It is an important factor in determining the "circumstances of the case" pursuant to s.87(4)(b) of the Act. 1. In the Notice of Appeal, the appellant was required to indicate in section 12B of the form whether he was seeking leave to appeal. He has stated that he is doing so. 2. The requirement for leave to appeal is dealt with in s 80 of the Act, which relevantly provides: (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance with the leave of the Appeal Panel, and (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. The decision that the appellant is seeking to appeal was a final decision (see the definitions in s 4(1) of the Act). Under s 80(2)(b), the appellant can only appeal as of right from the Tribunal's decision on a question of law. Otherwise, leave to appeal is required under s 80(2)(b). 2. The appellant seeks leave to appeal on the grounds which include grounds that he has suffered a substantive miscarriage of justice because: 1. The decision was not fair and equitable; and 2. The decision was against the weight of the evidence. 1. A foundation of the appeal is, in short, that the Tribunal Member failed to accord procedural fairness to the appellant and failed to give adequate reasons for the decision. Reply to Appeal 1. On about 1 July 2014 Mr Sercombe, on behalf of the respondent, lodged a Reply to Appeal pursuant to Rule 26 of the NCAT Rules, relevantly: 1. Stating that "the tenant and his offensive guests have already proved themselves to live in suburban proximity to other people". 2. Disputing that the letters were unsigned to the real estate agent and stating that their names and signatures were not scanned on copies to the Tribunal "as those are mainly older people who are living in fear of their lives at worst, and violence at least. Two of those people physically came to the hearing which took place on 19 May 2014 and gave their evidence." 3. The termination order was granted on the basis that: 1. The member could see that there are so many people regularly on the premises; 2. There was so much evidence of complaints, that there are 7 or 8 people there almost every night; 3. There is a dog on the premises physically within the villa without the landlord's permission; and 4. We as agents give notice just before, the mattresses and other evidence of all the extra people are removed and replaced on our leaving. We have had this reported on a number of occasions by neighbours. 1. With respect to section 87(5) of the Act, in considering the circumstances of the case, it is noted: 1. The nature of the breach: constant verbal abuse to neighbours, too many people on the premises, dog within the premises; 2. Any previous breaches: this is why the termination was served before; 3. Any steps taken by the tenant to remedy the breach: each time the appellant would say that it would be okay from then, instead the complaints continued and people are still there and so is the dog; 4. Any steps taken by then landlord about the breach: the appellant has been warned many times, came to an agreement that things would be okay and then the same problems occurred and are occurring; 5. The previous history of the tenancy: as above, with the addition that the appellant's previous co-tenant left after a threatening evening where noise and suggested violence took place. 1. The respondent disputes any claim for procedural unfairness and asserts that the appellant was asked if he wished to ask the witnesses any questions. Mr Webb asked a question. The appellant did not. The appellant was given every opportunity to defend himself. The Tribunal Member asked Mr Webb and the appellant several times if they wised to contribute, question or make further statements before he made his decision. 2. The respondent asserts that any reasonable person who has witnessed the problems associated annd described would expect that termination would result. 3. The appellant did not give the Tribunal Member sufficient evidence to convince him the breaches did not occur. 4. The respondent disputes any reliance on discrimination and asserts that the agent has a broad cross-section of tenants and treats them all the same way under the law. 5. The respondent believes that the appellant and many of his "guests" are continuing to conduct themselves in an offensive manner. The Conduct of the Appeal Hearing 1. The hearing by the Appeal Panel took place on 30 September 2014. The parties relied on their submissions already filed. 2. In addition, the following materials were read by the appellant: 1. Affidavit of Laura Jane Smith, annexing transcript of such of the hearing before the Tribunal Member as was recorded; and 2. Paragraphs 1, 2, 14, 15, 16, 17, 18, 19, 20, 21, 23, 25, 28, 29, 32, 33, 34, 35 and 36 of the Affidavit of the appellant dated 9 September 2014, relevantly to the effect that: 1. Due to the fence that runs along the boundary between 5 and 7 Basswood Court, it is not possible to see from the section of the driveway leading up to 5 or from 7, 9, or 11 Basswood Court whether a car is going to Unit 1 or 2; 2. The appellant's neighbour in Unit 2 is not, to his knowledge, Aboriginal. 3. Mrs Tuennecke lives at 7 Basswood Court. Yvonne Schwager lives at 9 Basswood Court. 1. Affidavit of Brett Allan Webb to the effect that the Tribunal Member administered the oath to the appellant at the commencement of the haring and during the course of the hearing he asked the appellant questions which he answered and Mr Sercombe did not ask any questions of the appellant. He also stated that the Tribunal Member did not give any warning to the appellant that he might draw an adverse inference against him for not giving evidence. 2. Paragraphs 8 and 9 of the affidavit of Michelle Scott as to what occurred after the hearing. 1. The following materials were tendered by the respondent: 1. Statement of Mrs Tuennecke, received by the respondent's agent on 24 September 2014; 2. Document entitled "Rebuttal of Stewart" and which annexed a bundles of materials, including complaints before the Tribunal Member (although now with the authors apparent). No objection was taken to the material that was before the Tribunal. Objection was taken to any further material and any fresh complaints that post-date the termination of the appellant. The appellant's Contentions on Appeal 1. In written submissions received by the Appeal Panel on 11 September 2014, the appellant submits in summary as follows: 1. The evidence before the Tribunal Member was insufficient to found breach (as opposed to exercising the discretion to terminate) in all the circumstances, as: 1. Many of the letters were written after the date of termination and, indeed after the commencement of the Tribunal hearing; 2. Many of the letters expressed concern about traffic noise on the common driveway, leaving to 9, 7, and 5 Basswood Court; 3. A number of the documents which were created before the termination of the notice, are irrelevant as they relate to alleged conduct in November and December 2012 and January 2013 (it is submitted that that s.190 of the Act and Clause 22 of the Regulations require termination on the grounds of breach to be brought within 3 months after the applicant becomes aware of the breach) and do not identify the appellant as the cause of the problem; 1. The Tribunal erred in finding that the appellant did not give evidence and improperly drew an adverse inference against him, citing the "rule" in Jones v. Dunkel (1959) 101 CLR 298. The appellant submitted that the appellant was sworn in and answered questions during the course of the hearing. In those circumstances it was unfair for his spoken words not to be treated as evidence: citing Downes v. Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193. 2. The Tribunal failed to accord the appellant procedural fairness, both at common law and as required by s.38 of the NCAT Act. In taking into account the anonymous letters in support of breach of the Lease, the Tribunal was unfair to the appellant because: 1. There was a lack of particulars in the letters requiring a response to generalized allegations; 2. Many of the allegations were outside the limitation period for brining a claim; and 3. Allegations made were also made in respect of conduct after the termination notice had been served, 1. Such that the appellant was denied a reasonable opportunity to know what the relevant allegations against him were and therefore denied a reasonable opportunity to answer the allegations. 2. The Tribunal took into account an irrelevant consideration in respect of the allegation of breach by reason of the appellant keeping a dog on the premises, in that: 1. The breach in the termination notice did not rely on a breach of any prohibition to keep pets without permission; and 2. Clauses 43-45 of the Lease were struck through, and as such there is not term of the Lease which restricted the appellant's right to keep an animal on the premises. As referred to above, the fact of the refusal to give permission to keep an animal was said relevant on the appellant's case in support of an allegation of discrimination against the appellant. 1. The Tribunal Member did not provide adequate reasons, contrary to s.62(3) NCAT Act as the Tribunal Member did not: 1. Articulate what factual findings were made as to breach; 2. Set out the principle as understood by the Tribunal Member with respect to Jones v. Dunkel, which in any event were misapplied in light of the fact that the appellant was sworn in and answered questions during the Tribunal hearing. 3. Set out the relevance and any application of s.152 of the Act. 4. Set out the relevance and application of s. 87 of the Act. 5. Set out any reasoning process, other than to say that the evidence of the respondent was preferred which was expressed at such a level of "vague generality as to provide no assistance in understanding how the Tribunal reached its decision, what factors it considered relevant, and what findings of fact it made in relation to those factors". 6. Distinguish between those matters establishing breach and those matters going to the discretion to terminate the Lease; 7. Disclose any reasoning regarding whether as an exercise of discretion, the Tribunal could, notwithstanding allegations of breach decide not to termination by reason of matters set out in s.87(5) and s.152 of the Act. 8. It was also asserted that the Tribunal Member referred to irrelevant matters at [31] to [26] regarding allegations made as to the appellant's conduct after the hearing was complete. The Respondent's Contentions on Appeal 1. On 30 September 2014, the respondent submitted a statement from Susanne Tuennecke dated 24 September 2014 and a document entitled "Rebuttal of Stewart" dated 19 September 2014. 2. The statement of Mrs Tuennecke was fresh evidence as to the effect of her evidence given before the Tribunal and is to the following effect: 1. Before she was sworn in, she was informed by the Tribunal Member that this meant that she could be cross-examined; 2. The Tribunal Member invited her to tell him "what the complaints in the neighbourhood were", to which she responded: 1. There was an incident on 23 November 2012 regarding the "baseball bat" incident; 2. It got "really unbearable" because of "all their traffic and noise" which came into "their community"; 3. "None of us in the community can cope anymore as cars go in and out like a pigeon hole, day and night"; 4. Ms Tuennecke was then cross-examined by Mr Webb about manoeuvrability of cars in the driveway, safety issues regarding the applicant's children on their bicycles and the fact that a friend of Mrs Tuennecke parked her in the main driveway in front of her garage. 1. The "Rebuttal of Stewart" document relevantly submits as follows: 1. The "comings and goings of large numbers of people and cars" is not consistent with the appellant's wish to remain in the property for the purpose of "child visitations". 2. If the appellant had conducted himself reasonably, his tenancy would not have been terminated; 3. The majority of the material tendered was from Mrs Tuennecke and Debbie Lynwood as they were the most directly affected; 4. The submissions purported to attach: 1. A short video of a child going down the driveway, in support of a submission that there is a chance that children will be run over; 2. Photos from Mrs Tuennecke believed to be of Mr Webb; 3. Various letters of complaint 4. Various notes by JF Sercombe and accompanying paperwork. 1. The Rebuttal of Stewart contains a reply to the affidavit of the appellant. Not all of the appellant's affidavit was read before the Appeal Panel. Relevantly the respondent replied as follows: 1. 14 – the respondent agreed that this was a map showing the lots 2. 18 – the elevated nature of the yards make it clear what cars are going to what of the units and the submission was made that you can see by the pictures that the number of cars surrounding Unit 1 is far and above reasonable, on a regular basis. The photos supplied by both Mrs Tuennecke and the appellant illustrate this; 3. 19 – Unit 2 was let to Debbie Lynwood and her daughter in 2001, at which time she was granted permission to have a dog. 4. 33 – Mr Sercombe recalled that the Tribunal Member asked the appellant directly if he'd like to say or add anything. 5. 36 – after the hearing "the ladies" (presumably a reference to Mrs Tuennecke and Mrs Lynwood) informed Mr Sercombe of their fear of the appellant and his family. This was conveyed to the Tribunal Member who asked for a security person to escort them from the hearing room. 1. The Rebuttal of Stewart contains, in summary, the following further submissions: 1. The Premises is let to the appellant for two people. 2. Reports and complaints have reasonably established that there were approximately 6 people there consistently and that in the evening, cars come and go very frequently and that at times there are 10 to 12 people within the villa. 3. There is a dog on the premises. 4. Several neighbours have been threatened with loud verbal abuse, leaving them to fear violence of the kind, which occurred several years before from (another) tenant in the same villa. This has been going on for "months and months". 5. The appellant's former flatmate left some time ago. 6. There is no application for anyone else to live there with the appellant, let alone a number of children. 7. The "tenant at that back" has also rented from Yarrawarra for some 13 years. She has the support of those living nearby. 8. Those who pay their rent, mind their own business and lead their lives "as anyone does" are supported. Those who do not pay their rent or otherwise breach suffer the consequences if they continue to aggravate others after being repeatedly warned. Finding as to Whether or not Leave is Required 1. Despite the appellant's contention before the Appeal Panel that the Tribunal member made 5 errors of law, for which leave is not required, the appellant has, in any event, made an application for leave to appeal. 2. An appeal in respect of an allegation that the Tribunal Member failed to give adequate reasons, is a question of law, in respect of which leave is not required: Pettit v. Dunkley [1971] 1 NSWLR 376; Papps v Police (2000) 77 SASR 210; Perkins v. County Court of Victoria (2000) 2 VR 246; Byrnes v. Barry (2004) 150 A Crim R 471; Mountford v. Magistrates Court of South Australia (2006) 95 SASR 103. 3. Similarly, a failure to accord procedural fairness is an error of law in respect of which leave is not required. As Deane J said, in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 367: "If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably ... When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision." 4. An error in the application of the rule in Jones v. Dunkel and a misapplication of the Act as well as taking irrelevant matters into account are arguably mixed questions of fact and law. However, for the reasons which follow, the Appeal Tribunal has upheld the appeal on both grounds which are clearly errors of law and, for those reasons, leave is not required. The Question of Procedural Fairness in the Tribunal 1. The appellant submits that he was precluded, by the way in which the evidence was presented and accepted by the Tribunal Member, from addressing the apparent contradictions or inconsistencies in the evidence or to distinguish which evidence went to establishing breach and which evidence was relevant to any exercise of the discretion to terminate, prior to finding against him. Indeed, nowhere in any of the submissions provided by the respondent is there any suggestion rebutting the appellant's claims that he was so precluded, in the sense that it is agreed that at the hearing, that other than in respect Mrs Tuennecke (who gave evidence about one incident and who otherwise have quite generalized evidence, with little particularity as to particular breaches of the Lease), no other complainant witnesses were heard and it is not contended that there was any attempt to distinguish in the evidence, or in the Reasons, as to what issue each piece of evidence was directed to. 2. The only evidence going to directly to breach (in the sense that it specifically identifies a period three months prior to the termination notice and identifies relevant breaches of clause 15 of the Lease) was hearsay evidence in the form of three anonymous complaints, all of which were typewritten. The complaints relate to noisy and offensive visitors to the Premises in the Christmas period of 2013. Contrary to the finding made by the Tribunal Member that the complaints were "clearly" not by the same person, the Appeal Panel finds that the descriptions used in one of these complaints may lead to the conclusion that it is the same author of another complaint, although this was not made clear before the Tribunal Member. The second complaint includes an allegation that the Premises is being used to sell drugs. It is noted that this is not supported by any complaint to police and that it is not a part of the allegation of any breach on the part of the appellant and ought to have been excluded from the Tribunal Member's consideration. Given the way in which the material was presented and the Reasons, given by the Tribunal Member, it is not possible to know to what extent, if any, this evidence prejudiced the appellant's case. The final complaint is anonymous and complains that no fewer than five people are seen in the unit on a more or less regular basis, that they yell and scream and laugh loudly. Complaint is made of cars coming and going day and night, almost every day. The fact that there are more than two people coming regularly to the house is not necessarily a breach of the Lease. It will depend on whether or not they are actually residing in the Premises on a permanent basis, a matter which was not explore before the Tribunal Member. The complainant also makes an unsubstantiated claim that the tenants of the Premises were previously evicted elsewhere for loudness and continuous partying. Again, given the way in which the material was presented before the Tribunal, and the nature of the Reasons, it is not possible to know to what extent that final observation prejudiced the appellant's case. It ought to have been excluded from consideration. 3. The evidence directly supporting breach therefore appears to be hearsay evidence that relates to a limited period during the Christmas period between 20 and 27 December 2013. There are inconsistencies on the face of the complaints themselves particularly as to the dates when the disruptive behaviour was said to have occurred and the extent of it. Although it is asserted that the police were called, there is no suggestion that it resulted in any police action being taken. Given the way the evidence was presented, those accounts, and in particular any inconsistencies, could not be tested by the appellant. 4. There were approximately four documents setting out occurrences of loud noise and disruptive behaviour at the Premises, provided in the form of anonymous and hearsay evidence of complaint in respect of the period 2012 and early 2013. These complaints are not capable of providing evidence of breach supporting the termination. They are also potentially irrelevant as they may relate to a time at the Premises when a different person lived with the appellant and who had, as was known by the respondent, to have caused difficulties for the appellant and had been asked to leave well before the events the subject of complaint were made. The Tribunal Member did not distinguish in his Reasons the relevance of those complaints. Again allegations are made that the police were called and that a formal complaint to police had been made, however, no police records were tendered before the Tribunal. One complainant then "watched the happenings" from his or her security camera (which appears to be pointed towards the Premises). Similarly, footage from the security camera was not tendered before the Tribunal. The complaint describes hearsay evidence with respect to an alleged assault and other complaints from neighbours. The complainant states that "The "Pine Estate" becomes shelter for criminals displaying nothing but aggression, bullying, violence and abuse". One complaint describes an unidentified aboriginal man being in the vicinity, cursing and swearing with two females. However, there is no evidence that these people were known to the appellant or that they were invitees to the Premises. Document [86] describes conduct on 3 January 2013, containing hearsay evidence that a construction worker, Caine Roberts, was threatened by the "young tenant in Unit 1", although no actual description of the culprit is given. This appears to be the incident that Mrs Tuennecke gave evidence about – an incident clearly outside the breach period. There was no evidence before the Tribunal that the police were called to investigate. Concern is voiced that the value of all of the properties have become questionable because "violent people are allowed to reside in the neighbourhood" and that at no time over the past years has any "responsible" tenant been put into the Premises. Reference is made to a meeting with the tenants of Unit 1 in November 2012 which "kept the peace" for a month. Reference is also made to the fact that the complainant would "meticulously keep a journal" of the happenings in Basswood Court and that any incident would be reported without delay. The journal was not tendered before the Tribunal. This complaint makes it clear that the complaining neighbours have to some extent, acted in concert in making their complaints, an important matter which is dealt with below. There is complaint of a separate threat of physical violence in about November 2012. However, again it does not appear that police were called. No serious allegations of the kind were particularized in the termination notice. 5. The majority (about 12) of the hearsay, and mostly anonymous, complaints relate to noisy and offensive conduct after the termination notice was served upon the appellant and arguably therefore could not go to the breach itself, but rather are relevant only to an exercise of discretion (if breach had been proven) as to whether or not the appellant's tenancy ought to have been terminated. In his reasons, the Tribunal Member did not distinguish between these complaints and complaints that are said to have established breach. 6. One complaint is that Mrs Tuennecke reported that a woman, said to be Michelle Scott's "girlfriend", photographed where a friend of a person from 3 Basswood Court had parked on the grass strip lining the carriageway to 5 Basswood. It is noted that the appellant did arrange for the grass to be photographed to provide evidence of the damage the local preschool bus was causing to the grass strip (rather than any cars said to be visiting the Premises). Mrs Tuennecke gave evidence at the hearing and it appears that her evidence was directed to this event, although it is not clear from the evidence presented to the Appeal Panel from her statement or from the transcript. The Tribunal Member did not make clear what affect, if any, this evidence had on his decision to terminate. 7. In some cases, it appears that some complaints relate to the same incident, although there are differences in the accounts given by each of the purported witnesses to the events. Whether or not those differences were material was a matter that could have been examined in cross-examination of the eyewitnesses had they been identified and called before the Tribunal. 8. Some of the complaints are also potentially internally inconsistent. For example an account is given in one document that a car "rolled passed" on the way to the Premises. Further complaint is made that it was "bolting" into the carriageway. Similarly, an allegation was made that the police were called however, no police report was tendered to support the allegations. 9. One complaint appears to suggest that that the presence of the appellant and his family has meant that the owner cannot sell his property. However, no evidence is put forward in support of this conclusion. The complainant, again without foundation, asserts that the appellant is living at the Premises to "prove a point". 10. Complaint is made as to the fact that the appellant's children are "riding and doing wheelies and making the dogs bark." Given the breaches alleged, the fact that children are acting in this way would not ordinarily itself provide evidence of a breach of the Lease. It does not appear that it was the appellant's dog that was barking, but rather that other resident's dogs are making the disturbance. It is difficult to see how this could properly be attributed to the appellant as a breach of his Lease. 11. Furthermore, whilst complaint is made (presumably against the appellant) that a bus also goes up the carriageway, making indentations on the grass verge, this appears to have nothing to do with the appellant. In fact there was evidence before the Tribunal that the appellant complained to the respondent's agent that he had to go over the gutter and up onto the grass to access his property as the owner of 7 Basswood had a large truck blocking access to the driveway and that the preschool bus attending at Unit 2 may have in fact been the source of the damage. No finding is made by the Tribunal Member as to whether or not the complaints against the appellant regarding the driveway deterioration could be sustained in light of the evidence as to its use by the preschool bus. 12. Complaint is made by Deborah Lynwood that the appellant had a security camera on the Premises, apparently pointing in the direction of her house and she did call police to the Premises. However, police took no action and Ms Lynwood regarded them as being "very rude". There was evidence before the Tribunal from the appellant that the appellant informed the respondent's agent in writing on 19 and 21 April 2014 that he was feeling singled out and discriminated against in circumstances of the approaching tribunal hearing and that the cameras had been installed by him for his "own peace of mind" and to provide "evidence" as he felt the complaints were getting out of hand and that the matter was starting to become harassment against him and that more false allegations were being made. The appellant also stated at the time that the neighbours were constantly trying to find anything on him so that his case is jeopardized. The Tribunal Member did not make any factual finding about the relevance of this evidence or about the appellant's contention that he was being victimized. The extent to which the appellant was in fact being victimized was relevant but was not the subject of any finding by the Tribunal Member. 13. There are a number of documents containing complaints that are so general and vague, such that it is not possible to say whether or not they are capable of establishing the breach as alleged. 14. One such anonymous and typewritten complaint concedes that one of the neighbours in fact verbally abused the appellant's son, remonstrating as to the way he was riding his bike. The Tribunal Member made no finding about this allegation of abuse against the appellant's son. There is an allegation of a general lack of adult supervision of the appellant's children whilst they ride their bikes in the private carriageway and purported concern for their safety. 15. It is not clear how this matter can be relevant to any breach of the Lease or going to an exercise of the discretion as to whether or not to terminate the Lease and the Tribunal Member made no finding of fact in respect of this matter. 16. One generalized complaint about "noisy and disgusting" behaviour of the residents at Basswood Court is clearly from someone who does not live in the area and who gives no first hand account of any conduct on behalf of the appellant and/or his invitees. The Tribunal Member made no factual finding in respect of this document and to what extent it was held to be relevant or reliable. 17. Similarly another generalized complaint about "the people living in the Basswood Court area" and which describes "a person from that area", wandering down the street in the middle of the day, extremely drunk and swearing loudly provides no evidence that this was the appellant or one of his invitees to the Premises. Again, it is not clear what finding the Tribunal Member made about this complaint although he appears to have attributed responsibility for all of the complaints to the appellant. 18. One complaint reports that the matter the subject of the complaint is recorded on video surveillance. However, there is no evidence before the Appeal Panel that this video material was put before the Tribunal Member. 19. The way in which Documents [47]-[48] were put before the Tribunal are a matter of some concern with respect to whether or not procedural fairness has been observed. Document [118] appears to indicate that the USB device provided by Mr Webb to Mr Sercombe on 30 April 2014 (to provide to the Tribunal) illustrates the noisy and drunken visitors to Unit 2. However, this is not what is described by Mr Sercombe in his email to the Tribunal Member on 3 May 2014 (and which the Tribunal Member indicated he had read prior to the commencement of the hearing). It is not clear as to whether or not the USB itself was ever put before the Tribunal. The email is in the following terms: We have received more letters from both complaining neighbours and from Brett Webb on behalf of Mr Stewart. We have also received from Mr Webb a flash-drive with quite a few photos + other files? Should the Tribunal not have received a drive as well from Mr Webb, we will be happy to walk it across to the street to OFT Coffs to be placed in the courier to Tamworth for the perusal of the Member? We are particularly thankful to receive this flash-drive as it confirms that the dog is inside the house and that covert pictures are being taken of the neighbours. 1. It is noted that the notice of termination for breach of the Lease dated 9 January 2014 does not allege any breach relating to the presence of dogs at the Premises. There is nothing in the Reasons of the Tribunal Member to indicate to what extent he took this email into account regarding the appellant's allegations of noisy and drunken visitors to Unit 2 however he does appear to have taken the presence of the dog into account. 2. As already referred to, there are a number of documents that make it clear that the complaining neighbours of the appellant were acting in concert and cooperation in respect of the complaints against the appellant. Importantly it is noted that this level of cooperation was evident prior to 1 December 2014 and featured in the making of the complaint regarding conduct commencing on or about 20 December 2013, the foundation of the termination application. Clearly enough, had the evidence been presented directly by neighbourhood witnesses, allegations of collusion could have been raised by the appellant. Given the way in which the evidence was presented, however, the appellant was precluded from putting those matters in a cogent and compelling way. Furthermore, the Tribunal Member does not appear to have taken into account that the documents appear on their face to have been created as a result of the neighbours acting in concert which must, at least potentially, have had an impact on the veracity and reliability of each of the accounts. 3. Reference is made as to whether there had been some kind of a "leak" to the appellant in respect of what was "written by the majority of signatories". There was a suggestion that a previous tenant also "had to go". The complainant states "after all this, our community has become very, very close knit" and that the complaint was a "community effort". 4. In fact it appears that at least some of the complaining neighbours are members of an affiliation known as "Pines Estate Community Coffs Harbour". The membership was not identified before the Tribunal. However, the group met with Mr Sercombe at least once to complain about the tenants in the Premises. Again, it is suggested that the police were called although there is no evidence from the police to support this. Mr Sercombe was invited to keep the group informed so that they can know "what the next steps are in order to restore normality in the community." 5. Document [66] is an undated anonymous letter apparently to the respondent's agent. It shows an effort by the surrounding neighbours, lead by one neighbour, to act in concert and cooperation in their claims against the appellant. It states as follows: I have just been at your office to drop off seven letters of complaint. Now, that everybody has to write for themselves, our numbers have slightly declined due to sheer fear (as you can see, some of us seek desperately help but are scared to sign the letter). Fear of relation (since info was quite obviously leaked to the other side, way before all this Tribunal thing started)… Everybody here is paring that this soon will be over …. I still remember … reporting to John how my 76 year old neighbour lade was almost attached because of the stupid free copy of the Advocate! It took me no less than 5 phone calls to distribution to sort out property number 5's problem…. I have asked John from his experience how long it will take until this is over?.. 1. A number of the documents make it clear that the neighbours and Mr Sercombe were acting in cooperation, where "members of our community came together" regarding the proposed termination of the appellant's Lease. One document says that the "entire neighbourhood has become suspicious" about what was "really going on" at the Premises. However, it is noted that there is no allegation as to any illegal or other conduct taking place at the Premises other than the breaches of clause 15 which are described in the application to terminate the Lease. 2. Furthermore, a number of the complaints appear to be discriminatory in their nature. This complaint was made by the appellant at the hearing before the Tribunal Member as to being a reason why the unfounded complaints were being made. The Tribunal Member made no finding in respect of this evidence. 3. One handwritten anonymous complaint states "[w]e'd love them to leave and be replaced (sic) by people our own age group" in circumstances where, ironically, the appellant and his children are of 2 differing age groups, and where the complainant and his or her mother are also in 2 differing age groups. 4. The motivation in writing these complaints is illustrated by a document in which it is stated, "[d]ue to the many elderly nearby residents whose health is being adversely affected we feel the property would be better suited to older people". 5. Document [80] is particularly informative. It makes it clear that the complaining neighbours, part of the "Pine Estate Neighbourhood", were acting in concert in making their complaints and that there was a discriminatory aspect to the complaints. It states, "as a unity, in anticipation that the source of the following nuisances and disturbances will be removed" and that the appellants are, "ruining the Pine Estate's reputation and its market value", that the residents of the Premises are "mismatches in the neighbourhood" and that "more suitable" tenants ought be found, in line with the aging neighbours. It complains of past and present tenants and the fact that the tenants do not act "in a compatible manner within the community". A request is made that the present tenants be "removed and replaced with a suitable person that matches the age factor and appreciates living in the Pine Estate community". 6. Although the Appeal Panel did not have the benefit of a transcript of all of the hearing before the Tribunal Member, evidence was given in the form of affidavits and statements from both parties as to what occurred at the Tribunal. It is noted that Mrs Tuennecke gave evidence at the Tribunal hearing on behalf of the respondent. However, her only evidence of specific complaints in the neighbourhood related to the incident on 23 November 2012 regarding the "baseball bat" (and was therefore outside the breach period). The remainder of her evidence was so general in its nature as to be of little assistance to the Tribunal member in making findings of fact supporting breach of the Lease. If she had provided any of the written complaints, they did not appear to have been identified in her evidence. Accordingly the limited cross-examination of her on behalf of the appellant was of little consequence to the outcome as it did not elevate her evidence to that of cogent and sufficient evidence to establish breach of the Lease. The appellant's Evidence 1. The appellant alleged before the Tribunal that the neighbours were similarly detrimentally affecting his quiet enjoyment of the Premises. The neighbours responded by accusing the appellant of making unfounded allegations, however a partial admission appears to have been made as to some contentious conduct, as the response, perhaps somewhat ironically in light of the allegations made against the appellant, stated, "[s]he had her family there. I think it's a shame if you can't have a good laugh. That's all it was." 2. The appellant complained about this to the respondent prior to the appellant being on notice of any plans to terminate his Lease. 3. The appellant stated that he had a recording from Ms Scott's phone to support his claim. It is noted that Mr Webb provided to the respondent's agent, Mr Sercombe a "USB device illustrating noisy and drunken visitors of 2/5 Basswood Court" (document [118]). As stated, this does not appear to have been provided to the Tribunal Member or if it was, he does not appear to have taken that evidence into account. 4. The appellant responded to the complaint that he had a security camera directed at the house(s) of the neighbours and the call by neighbours to police. He stated to the respondent's agent at the time of the complaint that he had installed the security camera due to false allegations being made against him and that he did not have the cameras pointed directly at one of the neighbour's houses, and that police had accepted this. 5. The appellant stated that he felt singled out and discriminated against. He stated that given the impending case in the Tribunal, his neighbours were "constantly trying to find anything on me so that my case is jeopardized". The appellant complained of harassment and false allegations, which he said explained his desire to install the security cameras. 6. The appellant complained that one neighbour abused his seven year old son and that all the surrounding neighbours are starting to pick on his children, and they cannot go outside without being abused. 7. Also tendered before the Tribunal (document [110]) was a letter from the appellant to the Kulai Preschool (situated nearby), which had been causing problems to the neighbours in Basswood Court. The bus collecting the children in Unit 2, had apparently lead to complaints about damage to the road and a lawn leading to Unit 2. The appellant asked the bus to stop entering the carriageway to prevent further complaints as the neighbours were blaming the appellant. 8. The appellant also tendered before the Tribunal a reference from Ronal Jeffcoat (document [104]), who resides nearby in Flintwood place, stating that he found the appellant to be a quietly spoken person, honest, and helpful, for example when a fence needed repairs. He stated that the Premises is always clean and tidy and that "from a neighbour's point of view he and his partner are very quiet, you wouldn't even know they are there". He had no hesitation in recommending the appellant as a tenant. No reason was given by the Tribunal Member for rejecting this evidence. 9. In short, the evidence tendered on behalf of the appellant takes issue with who might have been causing the noise on at least one occasion, takes issue with who was causing the damage to the private driveway which had been attributed by the neighbours to the appellant and calls into question the purported disruptive conduct by the appellant generally. None of this evidence appears to have been taken into account by the Tribunal Member in his Reasons. It is noted that the appellant had been sworn in at the Tribunal hearing and that Mr Sercombe, could have challenged the appellant in respect of this material, but did not. Procedural Fairness 1. The duty to accord a person procedural fairness arises because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations": Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598; 97 ALR 177; (1990) 65 ALJR 167; 21 ALD 651. The content of the duty in a particular case depends upon the circumstances of the case and the nature of the power being exercised: Kioa and Ors v West [1985] HCA 81; (1985) 159 CLR 550 at 585 and at 612-615; (1985) 62 ALR 321; (1986) 60 ALJR 113; 9 ALN N28. 2. In Kioa Gibbs CJ stated that "if the rules of natural justice were applicable, the appellants were entitled to a fair opportunity to correct or contradict any relevant material prejudicial to them." Mason J also acknowledged that a fundamental rule of natural justice required that a party "is entitled to know the case sought to be made against him and to be given an opportunity of replying to it", and "if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter". Brennan J similarly observed that "[a] person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters to his interests which the repository of the power proposes to take into account in deciding upon its exercise." 3. Although Kioa was determined in the context of the exercise of ministerial power, a fundamental requirement of procedural fairness is that a party subject to the possibility of an adverse determination to be made on the basis of particular documents or material, should know the case against it, and relevantly in this case, be afforded an opportunity to respond. 4. In Collins v. Urban [2014] NSWCATAP 17, the Appeal Panel comprising of Wright J, President, S Westgarth, Deputy President and M Harrowell, Principal Member, commencing at [40], held in respect of hearings before the Tribunal with respect to matters of procedural fairness, that s 38(5)(c) of the NCAT Act requires that the Tribunal "take such measures as are reasonably practicable ... to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": Collins at [40]. 5. In circumstances: where much of the evidence presented against the appellant was in the form of anonymous hearsay complaint; where the only direct evidence from Mrs Tuennecke went to discretionary matters only and was otherwise lacking in detail or particularity; where there was clear evidence of the complaining neighbours acting in concert to remove the appellant and for reasons which were in part at least indicative of discrimination; where despite being sworn in and present the appellant was not cross examined such that his evidence was not controverted, but nonetheless appears to have been given little regard, the Tribunal has not, in the view of the Appeal Panel, taken appropriate steps to ensure that the appellant had a reasonable opportunity to present his case. 6. In doing so, a substantial miscarriage of justice may have been suffered as the Appeal Panel finds, that there is a "significant possibility or a chance which was fairly open" that the appellant may have achieved a more favourable result in respect of either one or more of his individual claims. He may for example have been able to establish that breach had not been sufficiently proven or that the evidence of complaint ought not be relied on because of the way in which is was gathered by the complainants or that his evidence in response was sufficient to show that breach had not been established or that in the exercise of its discretion the Tribunal ought not terminate the Lease. Failure to Give Proper Reasons 1. Although, in light of the decision of the Appeal Panel in respect of the failure to accord procedural fairness to the appellant, it is not strictly necessary to decide this issue in allowing the appeal, the Appeal Panel also finds that the Tribunal Member failed in his duty to give adequate reasons, notwithstanding that the Tribunal Member gave reasons why he preferred the respondent's evidence and notwithstanding that the Tribunal Member is not obliged to address and reconcile every contradiction or inconsistency in the evidence: citing Soulemezis v. Dudley (Holdings) Pty Limited Pty Ltd (1987) 1 NSWLR. 2. Adequate reasons facilitate a litigant, who may be aggrieved, exercising rights he or she may have to appeal and thus ensures that any appeal right is not rendered nugatory or illusive - Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 and failure to do so promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: see Keith v Gal [2013] NSWCA 339 at [109], citing Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442. 3. Collins v. Urban [2014] NSWCATAP 17 deals with the Tribunal's duty to publish reasons. Commencing at [47] the Appeal Panel set out a number of relevant principles with respect to the Tribunal's duty to give reasons, but more relevantly in this case, what those reasons must include, as follows: 1. Section 62 (3) of the Act provides: (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party; 1. s 62 of the Act does not, define exhaustively when there is a duty to give reasons or the extent of that duty; 2. The findings of fact and legal reasoning of the decision maker at first instance must be discernable within the reasons to facilitate any appeal: Collins at [49], citing Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 (per Moffitt JA, Manning JA agreeing); 3. Any such decision ought include not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision: Collins at [50] citing Pettit and Carlson v King [(1947) 64 WN (NSW) 6] per Jordan CJ in delivering the decision of the Full Court; 4. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Collins at [53] citing Keith v Gal [2013] NSWCA 339 (per Gleeson JA at [109]), Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA. 5. If, however, the parties have the right to request written reasons but do not do so, this basis for generally requiring reasons to be given may be of less significance but it continues to apply: Collins at [53]. 6. Those duties to produce reasons in that form apply not only to Courts but also to other judicial or quasi-judicial tribunals or bodies: Collins at [52] citing for example Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372; and particularly to bodies such as the Tribunal: Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 as cited in Collins at [54]. 7. It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettit v Dunkley [1971] 1 NSWLR 376, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-9 per McHugh JA, Mifsud v Campbell (1991) 21 NSWLR 725, Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings. A trier of fact is not obliged to address, and reconcile, every contradiction or inconsistency in the evidence. The law does 'not require lengthy or elaborate reasons' but it is 'necessary that the essential ground or grounds upon which the decision rests should be articulated': Collins at [54] citing Sydney Supermarkets at [60] and Soulemezis v Dudley (Holdings) Pty Ltd per McHugh JA at 280. 1. In the Appeal Panel's view and as referred to when dealing with the evidence already stated, the Reasons do not include matters in respect of the findings on material questions of fact, referring to the evidence or other material on which those findings were based, the Tribunal's understanding of the applicable law, or alternatively the reasoning processes that lead the Tribunal to the conclusions it made such as to allow the appellant to prosecute his appeal. 2. Accordingly, in the circumstances of this case and taking into account the nature of the jurisdiction being exercised, the particular subject matter of the decision and the fact that giving detailed reasons is not cost free, the Appeal Panel concludes that in a contested home building claim such as this one, the Tribunal Member's duty to record reasons has not been adequately discharged. Failure in Dealing with a Relevant Consideration – Alleged Discrimination 1. For the reasons set out above the Appeal Panel finds, to the extent it is necessary to do so in light of its other findings that the Tribunal Member failed in dealing with the allegations of discrimination. That failure was a material one by reason of the fact, particularly in the circumstances in which the neighbours acted in concert to provide their complaints, that it may have formed a reason for them complaining as they did, rather than by reason of experiencing a breach of their right to quiet enjoyment of their properties. That was a matter in respect of which there was evidence and which the Tribunal Member ought to have dealt with. Irrelevant Consideration – Pets 1. For the reasons set out above the Appeal Panel does not need to make a finding in respect of whether or not the Tribunal Member erred in taking into account, an irrelevant consideration, namely the presence of a dog on the Premises. 2. It is noted however, that the respondent alleged breach of clause 15 only, which did not deal with this issue and there was no suggestion that the fact of mere presence of the dog caused the breaches alleged. 3. It is also noted that the additional term of the Lease with respect to pets is silent, having been struck out. Therefore it is unclear, for example, as to whether or not the dog is prohibited without consent, allowed or allowed subject to fumigation (see clauses 43, 4 and 45 of the Lease respectively). 4. A document entitled "Annexure to Residential Tenancy Agreement" signed by the appellant on 25 May 2012 states that: 19. The Landlord gives permission for tenants to keep nil dog and nil cat on the premises. The animal/s will at all times be kept outside unless with the written permission of the Landlord. The tenant agrees that as an animal is being kept at the premises that a professional flea treatment will be carried out upon vacating the premises. The tenant agrees to compensate the landlord for any damage caused by the pet/s to the premises. 1. With the greatest respect to the drafter of this document, in an attempt no doubt to be all encompassing, the statement is almost unintelligible as to whether or not, no permission has been given by the Landlord to keep pets, whether pets must be kept outside or whether as it is a given that animals are being kept, that remedy must be made to the property on vacating the premises, including a professional flea treatment (which appears to accept that the animals will from time to time be inside the premises) and compensation for any damage. 2. A document entitled "Tips for Tenants" states that no pets are allowed without written consent, but the status of this document is unclear, in circumstances where clauses 43, 44, and 45 are struck out. Accordingly, there is an insufficient evidentiary basis to take that document into account. 3. Neither the Lease, the Annexure to the Lease, nor the Tips for Tenants document is sufficiently clear to ground any breach of the signed Lease with respect to the keeping of a dog inside the Premises, particularly where this was not particularized as a breach of the Lease. 4. Furthermore, even if it were sufficient to establish breach of a term of the Lease, one photograph of a dog in the house on one occasion might not be sufficient to invoke the discretion to terminate the Lease on that ground. That is a matter about which there is not clear finding by the Tribunal Member. 5. Whilst the Reasons do not make it clear to what extent, if any this matter was taken into account, it appears that it was not considered by the Tribunal Member to be completely irrelevant to his consideration. It is the finding of the Appeal Panel that this was an irrelevant to the matter before the tribunal Member, both as to breach and discretion in light of the breaches alleged. 6. However, in light of the finding that the Appeal Panel has made in respect of the other grounds of appeal, the Appeal Panel has declined to come to a final view as to whether it allow the appeal on this ground. The Jones v. Dunkell Issue 1. In light of the decision of the Appeal Panel in respect of the failure to accord procedural fairness to the appellant and the failure to provide adequate reasons, it is not necessary to decide this issue in allowing the appeal. Leave to Appeal 1. As the Appeal Panel has come to the view that the two broad grounds relied on by the appellant are questions of law, then the appellant does not require leave. However, in the event that leave is required, for the reasons referred to above, the Appeal Panel is of the view that the appellant 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 appellant 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] HCA 59; (1955) 93 CLR 493 at 514 and Gallagher v R [1986] HCA 26; (1986) 160 CLR 392 at 399 and 402. 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 whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the Act. 4. By analogy, the relevant principles to be applied when deciding whether to grant leave to appeal has recently been considered in Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10. As set out in Collins at [84], the appellant 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, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45], that it involves questions of public impoLeasence or matters of administration or policy which might have general application; or 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 appellant was denied a reasonable opportunity meet the allegations put against him, in breach of s 38(5)(c) of the Act. The Appeal Panel finds that, in the circumstances the decision was not fair and equitable within s 12(1)(a). 6. Furthermore, the Appeal Panel finds that there is material in the appellant's evidence to indicate that had the appellant been accorded procedural fairness, by allowing him to challenge the respondent's evidence, then this may have led to a more favourable result for him. In those circumstances, the Appeal Panel is satisfied that the appellant might have suffered a substantial miscarriage of justice. 7. In those circumstances, the Appeal Panel would, if leave was required, exercise its discretion to grant leave to appeal and allow the appeal. Orders 1. For these reasons, the Appeal Panel makes the following orders: 1. The appeal is allowed. 2. The matter is remitted to the Tribunal 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 New South Wales Civil and Administrative Tribunal. Registrar ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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 January 2015