Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Smith, Gregory v NSW Housing and Land Corporation [2015] NSWCATAP 255 Hearing dates: 16 October 2015 Date of orders: 30 November 2015 Decision date: 30 November 2015 Jurisdiction: Appeal Panel Before: J Redfern, Principal Member D Goldstein, Senior Member Decision: Appeal dismissed Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – residential tenancy dispute – urgent telephone hearing – procedural fairness – inability to cross examine witnesses – whether Briginshaw standard of proof applies – whether no evidence to support findings of fact Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Cheung v Yang [2013] NSWSC 1694 Collins v Urban [2014] NSWCATAP 17 Raslan v Pan [2015] NSWCATAP 12 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) CLR 1 Sullivan v Civil Aviation Safety Authority [2013] FCAFC 93 Category: Principal judgment Parties: Gregory Smith (Appellant) NSW Housing and Land Corporation (Respondent) Representation: Ms Howley, Illawarra Legal Centre -Tenants Service (Appellant) Mr B Spackman (Respondent) File Number(s): AP 15/54497 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 21 September 2015 Before: C Bradford, Member File Number(s): SH 15/47071 reasons for decision Background 1. Mr Gregory Smith was the tenant of social housing premises in Wollongong. He is the appellant. The landlord, NSW Land and Housing Corporation (NSW Housing), is the respondent. 2. On 11 August 2015, NSW Housing commenced proceedings against Mr Smith in the Consumer and Commercial Division of the Tribunal seeking termination of his tenancy on the basis of a notice of termination issued on 3 July 2015. The notice alleged breach of clause 13 of the residential tenancy agreement by Mr Smith, which relevantly provided that Mr Smith was not to interfere with the "reasonable peace, comfort or privacy of neighbours" or to "cause or permit nuisance." The notice required that Mr Smith give vacant possession of the premises on 26 July 2015. These matters are not in dispute. 3. The application was listed for hearing on 25 August 2015. The proceedings were adjourned to a date to be fixed and Mr Smith was given leave to be represented by a representative of the Illawarra Legal Centre Inc - Tenants Service. Mr Smith was directed to obtain a referral to a psychologist for a full assessment of his mental state and a review of his medication. He was also directed to engage with drug and alcohol services with a view to undertaking residential rehabilitation. Interim orders were made that Mr Smith was to comply with clause 13 of the residential tenancy agreement regarding the use of the premises. Leave was given to NSW Housing to request an urgent hearing if there were any concerns for the safety or well-being of neighbours because of the actions of Mr Smith. 4. On 15 September 2015, after considering an application for an urgent hearing by NSW Housing, the Tribunal notified the parties that the hearing listed for 6 October 2015 was adjourned and the matter was now listed for a telephone hearing on Monday, 21 September 2015 at 9:15 am. The brief reasons recorded "urgent hearing granted." The Tribunal further directed the parties to provide all documentation to be relied on at the telephone hearing to the Tribunal and the other party on or before 18 September 2015. 5. Attached to these directions was a notice dated 15 September 2015 headed as follows: Notice of Directions Hearing Both parties to attend by Telephone 1. NSW Housing filed and served the material on which it sought to rely by 17 September 2015. This material comprised copies of the notice of termination, the residential tenancy agreement, and numerous witness statements. Mr Smith, through the advocacy service, filed and served by 18 September 2015 the documents on which he sought to rely. It was expressly noted that Mr Smith reserved the right to adduce further evidence on the basis Illawarra Tenants Service had "not been given the opportunity to adequately review the applicant's evidence and seek instructions." 2. The hearing proceeded at the designated time on 21 September 2015 and a decision was made on that day. The Tribunal found that there was a breach of the residential tenancy agreement and that Mr Smith had failed to comply with clause 13 of the residential tenancy agreement. The agreement was terminated immediately. The Tribunal made an order that possession was to be given to NSW Housing on termination but the order was suspended until 25 September 2015. 3. Mr Smith lodged an appeal against this decision on 28 September 2015. The appeal was lodged on his behalf by the Illawarra Tenants Service. Mr Smith also sought an urgent stay of the operation of the orders pending the appeal. 4. An interim stay order was made on 1 October 2015 and listed before the Appeal Panel on 7 October 2015 for consideration of whether the stay should continue. The Appeal Panel made directions about the filing and service of submissions and evidence, listed the appeal for urgent hearing, and granted a stay of the order for possession until the appeal on the conditions noted in the order, which included directions that Mr Smith refrain from undertaking certain action and otherwise comply with clause 13 of the residential tenancy agreement. 5. The Appeal Panel dismissed the appeal on the day of the hearing. These are our reasons. Background to the dispute and decision at first instance 1. The originating application was lodged by NSW Housing under the Residential Tenancies Act 2010 (NSW) (the RTA). NSW Housing sought an order under s 187(1)(b) of the RTA that Mr Smith take action in performance of the residential tenancy agreement. NSW Housing also sought a termination order under s 87 of the RTA based on the alleged breach. 2. Section 87 of the RTA provides: Breach of agreement (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach. Note: Section 152 sets out additional matters to be considered if the residential tenancy agreement is a social housing tenancy agreement. 1. There is no dispute Mr Smith's tenancy was pursuant to a social housing tenancy agreement. As such s 152 of the RTA applies. Section 152 provides: Termination by Tribunal of social housing tenancy agreements for breach (1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. (2) This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act. 1. The breach alleged by NSW Housing was that Mr Smith, by his behaviour, had interfered with the reasonable peace, comfort and privacy of his neighbours (clause 13.3) or he had caused or permitted a nuisance (clause 13.2). The notice of termination particularised breaches on 15 June 2015, 30 June 2015, and 1 July 2015. The evidence in support comprised witnesses' statements from neighbours in relation to these incidents. NSW Housing also relied on witnesses statements alleged to evidence disturbances at other times and, more recently, a disturbance which was said to have taken place on 13 September 2015, which led to the application for an urgent hearing. This matter was reported to Police and NSW Housing provided a copy of a police incident report in support of its application for an urgent hearing. 2. The hearing proceeded by telephone and the reasons record that oral evidence was given on behalf of both parties. 3. After summarising the submissions made and recounting some of the evidence presented at the hearing, the Tribunal relevantly found as follows: The material provided by the applicant clearly reveals that there have been problems with the respondent and that neighbours are concerned about their safety. The additional material provided following the last appearance before the Tribunal reveals that there was an incident on 13 September 2105 and several neighbours provided statutory declarations specifically referring to action by the respondent on that date that caused a major disturbance and required the Police to attend. All of the complainants who number 4 specifically identify the respondent as the cause of the disturbance and its impact on their enjoyment of the premises. The abuse being yelled was apparently directed to these people and they definitely thought that to be the case. The representative for the applicant also noted that calls had been received expressing concern. As to steps taken by the respondent since the last hearing I do note that action has been taken however it was not taken until after the last incident on 13 September 2015 has occurred, the respondent did nothing at all in the period between the orders being made on 25 August 2015 and the 14 September 2015 when he saw a doctor for referral. That Doctor, Dr Mc Devitt clearly states in his referral that the respondent is a binge drinker and also using IV ice when he can. This comment flies in the face of what the respondent states in his statement at paragraph 9. It is submitted that the respondent should be given more time to address the issues raised by the applicant in the recent material provided and to participate in the process that affects his housing. It is stated that the respondent should be given more time to test the applicant's evidence and provide further evidence to the Tribunal. This matter has come to a head as a result of a further incident on 13 September [2015] and it is due to the nature of the incidents and the concerns of the residents and the applicant that the Tribunal gave this matter an urgent hearing. The applicant has a responsibility and duty to other residents/neighbours and whilst I sympathise with the respondent's condition and position this is a situation which needs to be dealt with now. There are people concerned about their safety who are being subjected to behaviour that is of a standard that is not acceptable and definitely at variance to what is expected under a residential tenancy agreement. Whilst some of the previous complaints may be said to relate to the behaviour of others, the episode on 13 September 2015 specifically relates to the respondent and whilst the respondent may be faced with housing difficulties the situation has reached the point where the safety of others needs to be considered in light of the continuing complaints and behaviour of the respondent, that safety with respect now is of importance and overrides the respondent's position especially bearing in mind that he did nothing to comply with orders of the Tribunal until after the incident on 13 September occurred. In addition the respondent concedes that when he binge drinks he blacks out and does not remember what he does that is a concern for the safety of the neighbours and reflects on the weight that can be put on this man's evidence as to what has occurred. 1. The Tribunal further found: On the material available the Tribunal is satisfied that a residential tenancy agreement between the parties exists and that a valid termination was given. The respondent has also failed to truly comply with the orders made on 25 August 2015 as no steps were taken to obtain assistance until after this September incident occurred. The applicant has established that the respondent has failed to comply with cl 13 of the residential tenancy agreement. The Tribunal is satisfied that in respect of s 152 of the Residential Tenancies Act that the respondent behaviour does have a serious effects on neighbouring residents as indicated in the declarations and it is considered that to continue to allow the tenancy to exist would expose these people to unreasonable risk bearing in mind what has been said by the respondent. The prior incidents add weight to these concerns and the landlord does have a responsibility to these other tenants/neighbours. Accordingly the tenancy is terminated immediately and the order is suspended until 25 September 2015 as there is a need to act quickly whilst still giving sometime to the respondent to be able to leave and remove his possessions. Grounds of appeal and submissions of the parties 1. The grounds of appeal of Mr Smith, as set out in the Notice of Appeal and submissions, can be summarised as follows: 1. The Tribunal denied Mr Smith procedural fairness by: 1. giving inappropriate weight to the evidence of NSW Housing when it should have applied the Briginshaw standard of proof in respect of the unsworn witnesses' statements; 2. failing to ensure that parties understood the nature of the hearing on 21 September 2015 when the notice sent indicated it was a "Directions Hearing;" and 3. failing to give Mr Smith a reasonable opportunity to be heard and to have his submissions considered. 1. The Tribunal erred in making findings of fact when there was no evidence to support them, namely that Mr Smith had been involved in a serious assault and that he had not taken steps to abide by the undertakings given at the hearing on 25 August 2015 until after the incident on 13 September 2015. 2. In the alternative, Mr Smith seeks leave to appeal on the basis that the decision was not fair and equitable and against the weight of the evidence. The matters relied on by Mr Smith were the same factual matters relied on to support his contentions in respect of Ground (1). Issues for determination in the appeal 1. The Civil and Administrative Tribunal Act 2013 (NSW) (the Act) provides for internal appeals as of right on any question of law, and with leave of the Appeal Panel on any other ground: see s 80(2)(b) of the Act. 2. Grounds (1) and (2) raise questions of law. Mr Smith also sought leave to appeal in the event he did not succeed on establishing these grounds. 3. Clause 12 of Schedule 4 of the Act provides that the Appeal Panel may grant leave only if it is satisfied that the appellant may have suffered a "substantial miscarriage of justice" because the decision was not fair and equitable, against the weight of evidence or because significant new evidence had arisen, which was not reasonably available at the hearing. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. 4. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel of the Tribunal conducted a review of the relevant cases and set out the principles at [84]. In summary, for leave to appeal to be granted, an 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. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application, an injustice which is reasonably clear, a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal went about its fact finding process in such an unorthodox manner that it produced an unfair result. Consideration Procedural Fairness: Ground 1 1. Mr Smith makes three submissions in relation to procedural fairness. 2. The first submission is that the Tribunal did not afford procedural fairness by giving inappropriate weight to unsworn witnesses' statements, a number of which he disputes, when it should have applied the standard of proof established in in Briginshaw v Briginshaw (1938) 60 CLR 336. 3. This may be relevant to the question of whether the decision was fair and equitable or whether it was against the weight of evidence but it is difficult to understand how this submission, as currently particularised, is relevant to procedural fairness. The standard of proof to be applied and how the Tribunal went about the fact finding process in the circumstances of the case may be relevant to the other contentions made by Mr Smith on procedural fairness but it does not, of itself, raise an issue of procedural fairness. The issue is nonetheless relevant to the appeal insofar as it relates to the other procedural fairness grounds alleged and on whether, in the alternative, leave to appeal on the merits should be given because there may have been a substantial miscarriage of justice. 4. In Briginshaw the High Court considered the standard of proof required to establish what was, at that time, the serious allegation of adultery. Latham CJ identified the principle as "the rule of prudence," namely, that any Tribunal should act "with much care and caution" before finding that a serious allegation is established (at 347). Dixon J observed (at 362): The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 1. The Tribunal is not bound by the rules of evidence (s 38(2) of the Act) but it is bound to act judicially and reasonably in the discharge of its obligations and "according to equity, good conscience and the substantial merits of the case" (s 38(4)). 2. The nature of a Tribunal's obligations to apply the Briginshaw standard of proof was considered by Full Court of the Federal Court (Logan, Flick and Perry JJ) in Sullivan v Civil Aviation Safety Authority [2013] FCAFC 93. This case concerned the cancellation of Mr Sullivan's helicopter licence following a crash in the Northern Territory while he was flying. The question for determination was whether Mr Sullivan was a fit and proper person to hold a licence. One of the issues raised on the appeal was whether the Commonwealth Administrative Appeals Tribunal was bound by Briginshaw as a principle of law. Flick and Perry JJ rejected this proposition, although they recognised that the Tribunal "may express greater caution" when evaluating the factual foundation for a decision reached when the particular fact is more centrally critical to the decision (at [120]). Logan J also dismissed the appeal but noted that the Tribunal must "not lightly" reach conclusions in respect of decisions which are attended with grave consequences. While not bound by the rules of evidence, the Administrative Appeals Tribunal must act reasonably (at [15]-[16]). 3. The principles that apply to the Administrative Appeals Tribunal apply equally to this Tribunal. In summary, findings of fact about critical issues must be based on logically probative material. 4. This issue is relevant to the further submissions made by Mr Smith about procedural fairness, which are related. It is therefore convenient to deal with both submissions together. 5. Mr Smith contended it was unfair for the hearing to proceed on 21 September 2015 when it was not clear to him that the matter was being listed for hearing, as opposed to directions, and that he was not given the opportunity to present his case at the hearing day in any event. The hearing was by telephone; it was for about 45 minutes in duration; he was not able to cross examine witnesses; and, he should have been given an adjournment to present further evidence. 6. On the first issue, the notice sent to Mr Smith and those who represented him clearly stated: The matter is now listed for a telephone hearing on 21 September 2015 at 9.15am. 1. It was further stated that the hearing on 6 October had been adjourned because an urgent hearing had been granted and that written confirmation of the hearing date was enclosed. There were directions about evidence and it was noted that failure to provide telephone contact details may result in the matter being determined in the absence of the party. The notice attached, as noted above, wrongly described the hearing as a "directions hearing." 2. While we accept there was potential for confusion caused by the apparent inconsistencies between the two notices, we do not accept that Mr Smith, or those representing him, were in fact under any misapprehension that the matter was listed for hearing on 21 September 2015 for the following reasons: 1. The terms of the first notice were clear and when the notices were read together it would have been obvious to the reader that the second notice was in error; 2. Mr Smith was not self-represented but was being represented by advocates who specialised in tenancy matters. There is no evidence, or reference in the reasons or in the submissions at first instance, to any confusion about the nature of the hearing; 3. The letter from the Illawarra Legal Centre to the Tribunal dated 18 September 2015 filing the evidence on which they would seek to rely also noted that they reserved the right to adduce further evidence in response. This was repeated in the submissions and it is clear from the submissions that Mr Smith's advocates were objecting to the hearing proceeding urgently. There was no evidence of confusion. 1. We therefore reject this ground. 2. The third challenge based on procedural fairness is on our view the most significant issue raised on the appeal. 3. Mr Smith contended that he did not have sufficient opportunity to participate meaningfully in the hearing process. In summary, he contended: 1. He did not have the opportunity to properly prepare and respond to the allegations made against him in the witnesses' statements, given those statements were only served on him a day before he was required to file and serve his evidence; 2. He did not have the opportunity to test the evidence of NSW Housing by cross-examination of its witnesses; 3. While the Tribunal was required to be satisfied that there was a breach of clause 13 of the residential tenancy agreement on the balance of probabilities, it could not be so satisfied, based on the Briginshaw standard, where the evidence was circumstantial and unsupported; 4. This was significant given the serious consequences of the proceedings, which had the potential to affect Mr Smith's social housing and make him homeless; 5. In the circumstances, the Tribunal should have offered him an adjournment for the cross-examination of witnesses and, if necessary, the filing of further evidence. 1. To deal with this ground it is necessary to examine the breaches alleged by NSW Housing, the material provided by the parties at the hearing at first instance and oral evidence given and submissions made at the hearing. 2. The Tribunal has discretion to make a termination order under s 87(4) of the RTA provided it is satisfied there has been a breach of the residential tenancy agreement, a termination notice has been given in accordance with the provisions of the RTA and the breach is, in the circumstances of the case, sufficient to justify termination. Mr Smith disputed that he had breached the residential tenancy agreement and further disputed that, even if there had been a breach, the breach or breaches were sufficient to justify termination. Evidence relating to these matters was therefore critical to determination of the proceedings. 3. NSW Housing alleged breaches of clauses 13.2 or 13.3 on 16 and 30 June 2015 and 1 July 2015. It relied on, and served on Mr Smith, 15 witnesses' statements from named persons, two statutory declarations from witnesses, four statements from persons who were de-identified and an incident statement from New South Wales Police. In submissions made to the Tribunal at first instance, Mr Smith's advocates noted that five of the incidents referred to in the witness statements did not appear to involve Mr Smith but related to other individuals. In submissions made in support of the appeal it was further contended that two of the written statements were duplicates of the same statement, one witness statement was lodged five months after the alleged incident and was of a general nature and there were "inconsistencies on the face of the complaints." 4. The majority of the witness statements were a common form. They were on a document headed "Witness Incident" which provided for the details of the person making the complaint, the details of the person complained about and details of the incident, directing the complainant to answer the following questions: * When did the event take place? * Where were you when the incident occurred? * What were you doing when the incident occurred? * Did anyone else witness the incident? * What did you see? (Be specific. Do not provide details of history, only what you saw) * Where was the alleged offending person? * What was the alleged offending person doing? * How would this affect you? * Were the police called? 1. The document provided for the statement to be signed and dated by the complainant, following a declaration to the following effect To the best of my knowledge, information private provided in this form is correct. I understand there are penalties for giving false or misleading information. 1. There was one witness statement relating to an incident on 15 June 2015 and five statements relating to the incidents on 30 June 2015 and 1 July 2015, although one statement was in duplicate and in one statement the complainant was de-identified. The statements were consistent and were to the effect that neighbours of Mr Smith could hear loud noises coming from Mr Smith's apartment, including someone yelling and swearing for extended periods for more than an hour. Mr Smith was identified by three different witnesses as creating the disturbance on 30 June and 1 July 2015 and in one case, it was alleged Mr Smith used wood to bang on the door of one of the neighbours. A statement was provided by three neighbours to this effect, although the identity of one witness was de-identified. All statements record that the Police were called and attended the scene. 2. There were further statements relating to incidents alleged to have taken place on 23 May 2015 (set out in a statement dated 31 July 2015), 19 July 2015 (the statement was de-identified and not signed), 27 July 2015, 31 July 2015 (supported by one statement in duplicate), March 2015 (dated 31 July 2015) and 13 September 2015 (comprising two statutory declarations dated 14 September 2015 and a NSW Police report of the same date). Some of the incidents appear to relate to people visiting Mr Smith. The most significant is an incident that was reported to have taken place on 13 September 2015. There were two witnesses' statements and a Police incident report dated 14 September 2015. Relevantly, the report noted as follows: Police were again called to location and attended 22:20 in relation to intoxicated persons. At the location was occupant (SMITH), another male (RUSSEL) and a female person (FINDLAY). All persons described as well to [be] seriously affected by alcohol 1. The incident report noted that there was no formal action taken, even though the female person had a cut on her lip, because she was too intoxicated to assist the Police in establishing the cause of her injury. 2. Mr Smith filed a statement dated 18 September 2015. His statement sets out details about his early life and his problems with alcoholism and mental health issues. He stated that he had problems with homeless people, who he had previously befriended, visiting him at the premises against his wishes. These people created a number of the disturbances. Mr Smith agreed that a disturbance occurred on 13 September 2015 and stated this occurred because he had a friend over to his house and they started drinking. In Mr Smith's words "it all went bad" and he stated that, if he had his time over, he "would not have let this happen." Mr Smith did not address any of the other incidents alleged. Relevantly, Mr Smith stated at [11] of his statement, I do not drink every day – I am classed as a binge drinker. I probably drink 4 times a week, on average. When I drink [I] blackout and don't know what I've done. 1. Mr Smith also gave evidence about the extreme hardship he would face if he was evicted and the fact that he was attempting to be admitted into the watershed rehabilitation program. He provided reports from his psychologist (dated 24 August 2015), his treating doctor, Dr McDevitt (dated 14 September 2015), and his social worker (dated 25 August 2015). 2. His case worker stated that Mr Smith was an "active participant in the Initial Transitional Support Program" and that he had problems with homeless people from the nearby park harassing him. She also stated that he was regularly attending fortnightly appointments with a psychologist for support with addressing his mental health, drug, and alcohol dependency. Mr Smith's psychologist reported that he had seen Mr Smith on four occasions between 3 July 2015 and 24 August 2015 but "unfortunately he had not stabilised and was continuing to drink alcohol and remains extremely depressed experiencing frequent suicidal ideation." The psychologist opined it would be "catastrophic" if Mr Smith was evicted. Mr Smith's doctor noted in his referral dated 14 September 2015 to a psychiatrist that Mr Smith was "currently binge drinking" and "also using IV ice." 3. At the hearing before the Appeal Panel, Mr Smith provided new evidence, being a letter from the Watershed, Drug And Alcohol Recovery And Education Centre, dated 2 October 2015 confirming Mr Smith was on a waiting list of six to eight weeks, a letter from Legal Aid, Wollongong, dated 24 September 2015 stating that Mr Smith had appeared at Wollongong Local Court on 16 June 2014 on the charge of "contravene prohibition/restriction in AVO" but the matter was dismissed and a letter from his social worker dated 28 September 2015, which included a statement as follows: During the Tribunal hearing on 25 August 2015 Greg Smith was provided with directions to seek assistance with drug and alcohol dependencies and obtain mental health and medication review. To this date Greg has complied with these directions. Greg has attended his general practitioner and obtained a mental health care plan for a mental health and medication review. Greg has scheduled an appointment with psychiatrist Dr Pai on 12 October 2015. Greg has continued to contact the Watershed Residential Rehabilitation Program. He completed a phone assessment on 17 September 2015. He is currently on the waiting list and is required to contact the Watershed every Monday, Wednesday and Friday to maintain his name on the waiting list. Greg is engaged in ongoing fortnightly appointment with his psychologist Alan Rockford. 1. The question in this case is whether Mr Smith was denied procedural fairness in the circumstances of this case. 2. As noted in Raslan v Pan [2015] NSWCATAP 12 at [28] (citing Re Minister for Immigration and Multicultural Affairs: Ex parte Lam (2003) CLR 1 at [37]) the focus of an enquiry about procedural fairness is on avoiding "practical injustice." For example, in Cheung v Yang [2013] NSWSC 1694 at [58] to [61] Harrison J was not satisfied there was a denial of procedural fairness, first, in the Tribunal directing that there be no cross-examination where there was ultimately no contest about an issue and, secondly, in the Tribunal not giving the appellant the opportunity to call a witness to give evidence when the witness had already given evidence and there was no identified emerging issue warranting further evidence. 3. While we accept Mr Smith was given a short period to respond to the evidence served by NSW Housing, we are of the view that there was no practical injustice for the following reasons: 1. The urgent hearing was listed after evidence presented by NSW Housing about an incident on 13 September 2015 when police were called to the premises. Mr Smith complains that the directions of 15 September 2015 did not make it clear what Mr Smith needed to respond to given the direction was, in effect, for the exchange of evidence. We accept that the direction in the way it was drafted, and having regard to the fact that Mr Smith had not been served with any evidence, had the potential to disadvantage him. However, given NSW Housing complied with the order earlier than as directed, any disadvantage was ameliorated. Mr Smith was represented by Illawarra Legal Service and they were served with the documents relied on by NSW Housing on 17 September 2015, four days before the urgent hearing. 2. Mr Smith filed and served evidence and submissions in response on the following day. The submissions were extensive and Mr Smith filed a statement supported by letters of support from his psychologist and case worker and other documents relevant to Mr Smith's mental health. Relevantly, Illawarra Legal Service reserve the right to rely on further evidence at the hearing. There was no further evidence provided at the hearing although Mr Smith gave oral evidence. He did not refute the evidence in the witness statements, other than the allegation that he had been seen by one of the witnesses taking drugs in the laundry and that he had been involved in a serious assault on a previous neighbour. Mr Smith agreed there was a disturbance on 13 September 2015 but stated that a number of the other disturbances were caused by uninvited homeless people coming to his premises. The witnesses' statements were consistent with this but also contained specific details about disturbances attributed to Mr Smith, being the subject of the alleged breaches. In his statement Mr Smith denied some allegations made but did not deny the incidents attributed to him (as opposed to the actions of others). Nor did he dispute allegations about his abusive and threatening behaviour while intoxicated. 3. Mr Smith complained that he did not have the opportunity to cross-examine these witnesses or to "test" the evidence of NSW Housing. There was no practical injustice: first, Mr Smith did not dispute the majority of this evidence in his statement or submissions, secondly, the Tribunal accepted Mr Smith's explanation that "some of the previous complaints may be said to relate to the behaviour of others" and, thirdly, his advocates made extensive submissions about the relevance and weight of the statements, some of which have been referred to in the Tribunal's reasons for decision. 4. Prior to the hearing on 21 September 2015 Mr Smith provided evidence about the impact termination of the tenancy would have on him, including evidence from his psychologist and doctor. Relevantly, the evidence from his doctor was that Mr Smith was still using intravenous drugs, which was inconsistent with Mr Smith's own evidence in paragraph 9 of his statement. It is apparent that the Tribunal considered this evidence and submissions because it is referred to in the reasons. 5. Mr Smith provided new evidence at the appeal to address some of the issues he disputed. However, this evidence did not advance Mr Smith's case beyond what was argued by his advocates, and apparently accepted by the Tribunal, at first instance. For instance, it is clear from the reasons that Mr Smith asserted charges against him relating to a prior tenancy had been dropped. While the Tribunal referred to the submission made by NSW Housing, the Tribunal made no finding about this. The letter from Legal Aid by Mr Smith as new evidence noted there was a charge for a contravention of an apprehended violence order but it was dismissed. This is not inconsistent with the Tribunal's reasons. Relevantly, the Tribunal did not exercise its discretion on the basis of this assertion. 6. One of the findings disputed by Mr Smith, also referred to in Ground 2, was the Tribunal finding that "no steps were taken to obtain assistance until after this September incident occurred." The evidence about Mr Smith's approach to Watershed Drug and Alcohol Service and his attendance of fortnightly appointments with his psychologist was already before the Tribunal on 21 September 2015. Furthermore, there were extensive submissions about Mr Smith's compliance with the orders made on 25 August 2015 by his advocates. The new evidence provided in the appeal did not advance this position. Whether the finding of the Tribunal on this issue was supported by the evidence is considered below in relation to Ground 2. 1. In summary, while the period for compliance with the directions was short and the hearing was on the telephone, there was evidence that an urgent hearing was warranted; Mr Smith was served with the evidence of NSW Housing a few days prior to the hearing; he was represented; evidence and extensive submissions were filed on his behalf; the Tribunal referred to this evidence and submissions in the reasons and Mr Smith could not point to any new evidence or submissions that would have changed the outcome or that there was a chance which was fairly open that Mr Smith would have achieved a more favourable result. We therefore reject this ground of the appeal. No evidence to support findings – Ground 2 1. Mr Smith contended that the Tribunal made to findings of fact where there was no evidence to support those findings. 2. The first was that the appellant had been involved in serious assaults on previous neighbours. For the reasons set out previously, we reject this contention. The Tribunal referred to a submission made by NSW Housing but did not make such a finding in the reasons. 3. Mr Smith also complained about the statement in the reasons as follows: Now tenants in the complex feared for their safety and were afraid to use common areas. The neighbours were threatened. 1. This was not a finding but a recitation of the submissions made by NSW Housing. 2. The findings made by the Tribunal are set out in the reasons extracted. The material findings of the Tribunal were that there was a residential tenancy agreement between the parties; a valid termination was given; that Mr Smith had failed to comply with clause 13 of the residential tenancy agreement; and, his tenancy had "serious effects on neighbouring residents" which exposed his neighbours to an "unreasonable risk." Mr Smith did not challenge these findings but for completeness, given it is apparent these findings were critical to the exercise of the discretion to terminate Mr Smith's tenancy, we have examined these findings and given consideration as to whether there was evidence to support them. 3. Close examination of the evidence reveals that a number of the statements contain evidence that recounted conduct that was attributed to Mr Smith. It was detailed, corroborated by other witnesses, and was provided as either a statutory declaration or on the basis that the statement was correct. There was evidence from witnesses about their fears. For instance, in a statement dated 17 June 2015, relating to an incident said to have taken place on 15 June 2015, the witness set out the offending conduct attributable to Mr Smith in some detail. It was noted that Mr Smith was shouting obscenities for over an hour. The witness stated as follows: I feel very intimidated, frustrated and angry as I am unable to have my daughter and grandchildren visit me. 1. In a further statement from a witness it is stated that Mr Smith banged on his door with a wooden pole and threatened him. A further statement, relating to the same incident, noted that there was screaming from Mr Smith's unit and that three police cars were called. The statement noted that Mr Smith was shouting in a very drunken abusive way. A further statement, which was de-identified, referred to the same incident and noted as follows: It woke me up causing me stress and becoming very scared. 1. The two statements provided in relation to the incident on 13 September 2015 were consistent. One included the following statement: I was too frightened to open my door and Greg was then banging on the door of unit 3 and yelling 'open the fxxxing door"… Greg's behaviour is having a severe impact on my health and well-being. 1. The second statement included the following: This ongoing and continual threatening behaviour by Greg is affecting my anxiety and stress and stopping my family from visiting me. The other neighbours in the complex now are in fear of Greg and this is having a detrimental effect on the whole complex. 1. This evidence supports the findings of the Tribunal about the impact on neighbours, which is a relevant mandatory consideration in the exercise of discretion as referred to in s 152(a), (b) and (c) of the RTA. 2. The second finding challenged by Mr Smith was the finding that he had "failed to truly comply with the orders made on 25 August 2015 as no steps were taken to obtain assistance until after this September incident occurred." The orders required Mr Smith to obtain a referral to a psychiatrist, engage with drug and alcohol services, and comply with clause 13 of the residential tenancy agreement. 3. We accept that there was evidence available to the Tribunal that some steps may have been taken prior to 13 September 2015 in respect of engaging with drug and alcohol services (because Mr Smith was on a Watershed waitlist). However, the letter from his general practitioner, being a referral to a psychiatrist dated 14 September 2015, is evidence from which it could be inferred that Mr Smith had not taken any steps in relation to the referral until the September incident. 4. The critical finding, being the finding that was relevant to s 152(d) of the RTA, was that Mr Smith had failed to "truly" comply with the orders of the Tribunal. This finding was open to the Tribunal on the evidence. While there was no time specified for compliance with the directions, it was clear Mr Smith had done little since 25 August 2015. There was no evidence in his statement about any steps taken by him, yet there was evidence about other matters. Mr Smith saw his general practitioner the day after the September incident, when he obtained the referral. Further, there is no dispute about that the September incident took place. This was in breach of clause 13 of the residential tenancy agreement, with which Mr Smith had been specifically ordered to comply. 5. We therefore reject this ground of appeal. There was no error of law by the Tribunal in this regard. Leave to appeal – Ground 3 1. Mr Smith contended that leave should be given to appeal on the basis that the decision was not fair and equitable and against the weight of evidence. 2. It was submitted the decision was not fair and equitable because of the Tribunal had denied Mr Smith procedural fairness, particularised in Ground 1, and because the Tribunal had failed to properly distinguish between complaints which established breach and complaints, including the incident on 13 September 2015, which were used to justify termination once breach had been established. 3. Insofar as Mr Smith complains about unfairness and inequity based on the matters referred to in Ground 1, we reject these complaints for the reasons previously outlined. 4. In relation to the claim that the Tribunal failed to distinguish between complaints that established breach and those that justified termination, there is some justification to this contention. However, this does not establish that the decision was not fair and equitable. The Tribunal found there had been a breach of clause 13 of the residential tenancy agreement and that a valid termination notice had been given. There was evidence to support this finding, being the evidence from witnesses about the incidents on 15 and 30 June 2015 and 1 July 2015. The fact there had been a breach and that a termination notice was served on the basis of the breach was not the critical issue in dispute. The key issue was whether the Tribunal should exercise its discretion to terminate the tenancy. This was the focus of Mr Smith's statement and the evidence filed on his behalf. The Tribunal directed its attention to the incident of 13 September 2015 as a relevant consideration in the exercise of the discretion to termination of the tenancy. This is clear from the written reasons. We therefore also reject this complaint. 5. The decision was said to be against the weight of evidence because the witnesses were not able to be cross examined, the Tribunal did not give sufficient weight to Mr Smith's submissions about the inconsistencies and flaws in the reasons and drew a negative inference about Mr Smith's compliance with the orders when there was insufficient evidence about this. We reject these submissions for the reasons previously outlined. The evidence presented by NSW Housing was logically probative. 6. We have set out above the principles stated in Collins v Urban. For leave to appeal to be granted, an 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. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle; questions of public importance or matters of administration or policy which might have general application; an injustice which is reasonably clear; a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal went about its fact finding process in such an unorthodox manner that it produced an unfair result. 7. Mr Smith did not establish any of these matters and we were therefore not satisfied that he should be given leave to appeal on any of these grounds. Conclusion 1. Having regard to the foregoing matters, the Appeal Panel determined to dismiss the appeal. ********** 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: 30 November 2015