Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ohman v NSW Land and Housing Corporation [2016] NSWCATAP 90 Hearing dates: 1 March 2016 Date of orders: 18 April 2016 Decision date: 18 April 2016 Jurisdiction: Appeal Panel Before: Wright J, President D Robertson, Senior Member Decision: 1. The time for filing the appeal is extended to 24 November 2015. 2. Leave to appeal is refused. 3. The Appeal is dismissed. 4. The stay of the orders made by the Tribunal on 9 November 2015 granted on 2 December 2015 and continued on 1 March 2016 is lifted. 5. The orders made on 9 November 2015 in proceedings SH 15/48286 are varied so that the tenant is required to give the landlord possession 14 days from the date of these orders and so that the orders of the Tribunal are as follows: 1. The Residential Tenancy Agreement is terminated in accordance with: ●s 91 (b) of the Residential Tenancies Act 2010 as the tenant/occupant has intentionally or recklessly caused or permitted the use of the premises for any other unlawful purpose. 2. The Residential Tenancy Agreement is terminated on 23-Nov-2015 and possession is to be given to the landlord on the day 14 days after the date of the orders of the Appeal Panel in proceedings AP 15/63187 3. The tenant shall pay the landlord a daily occupation fee at the rate of one seventh of the weekly rent per day from the day after the date of termination, namely 24-Nov-2015 until the date vacant possession is given to the landlord. 4. 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. Catchwords: RESIDENTIAL TENANCY – Social Housing – termination of tenancy – Unlawful use of premises – whether the Tribunal took into account irrelevant considerations WORDS & PHRASES – "serious" – Residential Tenancies Act 2010 (NSW), s 152(1) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 80, Sch 4 cl 12 Residential Tenancies Act 2010 (NSW), ss 91, 152 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Ballantyne v WorkCover Authority of NSW [2007] NSWCA 239 Cain v NSW Land & Housing Corporation (2014) 86 NSWLR 1; [2014] NSWCA 28 Collins v Urban [2014] NSWCATAP 17 House v The King (1936) 55 CLR 499 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 Sara McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98 Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 Category: Principal judgment Parties: John Ohman (Appellant) NSW Land and Housing Corporation (Respondent) Representation: B Connor, Tenants Advocate (Appellant) K Madgwick, Counsel (Respondent) Solicitors: South West Sydney Tenants Service (Appellant) NSW Land and Housing Corporation (Respondent) File Number(s): AP 15/63181 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Date of Decision: 09 November 2015 Before: J Levingston, General Member File Number(s): SH 15/48268 REASONS FOR DECISION 1. The appellant, Mr Ohman, is a tenant of premises in Ambarvale in New South Wales under a residential tenancy agreement with the respondent, the landlord of those premises. Mr Ohman has appealed against a decision made on 9 November 2015 in the Consumer and Commercial Division of the Tribunal terminating, pursuant to s 91 of the Residential Tenancies Act 2010 (NSW) (the RTA), the tenancy agreement and ordering Mr Ohman to give possession to the respondent. 2. It was not in dispute that the agreement was a social housing tenancy agreement within the meaning, and for the purposes, of the RTA. 3. For the reasons set out below, we have decided that the appeal should be dismissed, leave to appeal should be refused and consequential orders should be made. The Decision Below 1. The factual background to the proceedings appears from paragraph 4 of the Tribunal's reasons for decision in which the Tribunal set out its findings which it described as "material facts" as follows: "(a) The tenant has lived in the premises at Ambervale [sic] all his life. He lived there as a child with his parents who are now both deceased and a brother (now living in Canberra) and a sister (now living in London). He has not lived anywhere else; (b) The premises consist of a three bedroom home; (c) Prior to 18/2/11 the tenant had a criminal history evidenced by a Bail Report, exhibit A p49; including supply a prohibited drug with 7 months imprisonment suspended on a bond 25/6/08 and 2 other offences; (d) On 18/2/11 the tenant took over the tenancy of the premises when the parties entered into a residential tenancy agreement for premises and a designated parking space consisting of a garage at Ambervale with a commencing rent of $215 per week and entitling no more than two persons to ordinarily live in the premises which is in the standard form of the RTR Schedule 1 and sets out the rights and obligations of the tenant (the Agreement); (e) On 26/3/13 [this may be the date that Mr Ohman was charged with the offences rather than the date on which he was convicted which appears to have been 11 June 2013] the tenant was convicted and granted a bond in relation to possession of a prohibited drug and prescribed restricted substance, possess goods suspected stolen, and possess unauthorised pistol and entered into a section 9 bond for 12 months; (f) On 20/6/13 the tenant agreed to Tribunal Orders in matter SH 13/29988 made by consent by which he agreed to comply with the Agreement by not using the premises for an illegal purpose. The Tribunal noted that the tenant conceded that he had used the premises for storage of stolen goods and possession of prohibited substances. That Order provided for a relist up to 20/12/13 for a termination order if there was a breach of the Order made 20/6/13; (g) On 2/4/15 Police executed a warrant and found various items on the premises, and a second search warrant on 19/6/15. As a result of the second warrant the tenant was charged with goods in possession and says that these goods were already on the premises during the first search warrant, and he provided a statement of Mr Apotsis, a friend, who says that he gave these goods to the tenant, highlighted in blue in exhibit 1. There is no reason to doubt Mr Apotsis' evidence; (h) The tenant was charged with five criminal offences and bailed to appear at the NSW Local Court on 26/10/15; (i) On 26/10/15 the tenant pleaded guilty to a number of the offences and was convicted in the NSW Local Court under the Crimes Act for goods suspected stolen on premises; possess prohibited drug; and handle explosive/precursor without authorised licence; (j) The tenant is due to return to the Court on 23/11/15 for sentencing; (k) The respondent was born 19/5/87 and is aged 28 years, unemployed and on Centrelink benefits of $261.05 per week ($522.10 per fortnight); he resides in the three bedroom premises alone since his previous partner left some years ago; there are no other occupants and no children; the tenant has no disability; he has no family in the district as his sister lives in London, and his brother in Canberra; (l) The premises have a market rent of $350 per week, and the tenant is paying a subsidised rent of $65.25 per week. There is a substantial waiting list in NSW for social housing and in this area the wait exceeds five years even for a one bedroom apartment in this area: statement of Ms Raffaut exhibit A p938[24]. It is obvious that a three bedroom house would suit an eligible family on the waiting list, and is not required by the tenant who is a single man living alone; (m) Alternative accommodation is available in the private rental market, there being about 176 private rental properties available: statement of Ms Raffaut exhibit A p938[19]. A rent affordability assessment for the tenant done by the applicant's officer Ms Raffaut, exhibit A pp938 at [21] to [22], is that he can rent a one bedroom apartment for $200 per week and is entitled to a Commonwealth rental Assistance of $129.40 per week." 1. The Tribunal went on to record that the tenant had pleaded guilty to the current charges, that the neighbourhood involved a mix of younger families and elderly tenants, that the appellant was the only single man in the immediate area, and that the tenant had expressed remorse and said that he would not repeat his mistake. 2. The Tribunal also recorded the respondent's submissions that there had been a pattern of behaviour which had been repeated three times, and noted that there was evidence that about 20 visits a week had been made by persons to the premises with a suspicion that this was for the purposes of illegal activities. 3. The Tribunal found (at [8] in the reasons for decision) that: "There is a nexus between the tenant's conduct, the premises and the illegal conduct of the tenant, which if broken may give him an opportunity to start afresh. One of the problems with his staying in the premises is that assuming he wishes to change his behaviour, there are others who may put pressure on him to continue with his past unlawful conduct." 1. The Tribunal recorded the respondent's submission that this placed other tenants of the respondent potentially at risk. 2. The Tribunal referred to ss 91 and 152 of the RTA and noted that the respondent (the applicant below) relied upon s 91(1)(b) and did not rely upon any conduct involving prohibited drugs. 3. Section 91 of the RTA provides: 91 Use of premises for illegal purposes (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted: (a) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or (b) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination. (2) In considering whether to make a termination order on the ground specified in subsection (1) (b), the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the unlawful use, (b) any previous unlawful uses, (c) the previous history of the tenancy. (3) The termination order may specify that the order for possession takes effect immediately. (4) A landlord may make an application under this section without giving the tenant a termination notice. (5) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement. 1. Section 152 of the RTA, as in force at the time of the decision under appeal, [1] provided: 152 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 Tribunal noted the factors listed in s 91(2) and addressed each in turn, recording that the nature of the unlawful use involved several criminal offences which were "all a serious matter, and were conceded by the tenant", that Mr Ohman had a history of unlawful use of the premises for storage of goods believed to be stolen and that the 2015 offences were the third time he had come to the attention of the Police. The Tribunal noted that the previous history of the tenancy showed "a history of breaches of RTA s91(2)". It is difficult to understand exactly what this was intended to mean since s 91(2) does not establish a norm of conduct which can be breached but rather provides a non-exhaustive list of considerations to which the Tribunal may have regard when determining whether to terminate a tenancy on the ground specified in s 91(1)(b). The "history of breaches" may be a reference to the facts found in [4(f)] to [4(i)] of the Tribunal's reasons that Mr Ohman agreed to abide by the tenancy agreement and not use the premises for storage of stolen goods by agreeing to the orders made by the Tribunal on 20 June 2013 but breached that agreement by his conduct in 2015 referred to in [4(g)] to [4(i)]. 2. The Tribunal then addressed each of the considerations set out in s 152(1)(a), (b), (c), (d) and (e) of the RTA on the basis that the agreement the subject of the application for termination was a social housing tenancy agreement. The Tribunal below did not expressly consider whether s 152, which applied when "determining whether to terminate a social housing tenancy agreement on the grounds of breach by the tenant" applied in the present case where the application for termination was based on s 91 ("Use of premises for illegal purposes") not on s 87 ("Breach of Agreement"). This question was noted but left unresolved in Cain v NSW Land & Housing Corporation [2014] NSWCA 28; 86 NSWLR 1, at [31]. In relation to s 152, the Tribunal's reasons included the following: "The material facts establish a clear and present and serious and adverse risk to other tenant's [sic] arising from the continuing unlawful conduct of the tenant …. Despite the tenant's expression of remorse and intentions for the future there is nothing which gives comfort to this proposition that he will not repeat his conduct. … [T]he conduct was serious as it involve [sic] continuing unlawful conduct. … [t]he tenant's behaviour in the past was a serious breach of the Agreement. …[T]he behaviour of the tenant affects neighbouring residents as it involves considerable number of persons coming in and out of the area. … There is a previous Tribunal Order …. Despite the tenant's protest that his conduct was merely a mistake, it is more than that as he is in wilful breach of that Order. … [T]he history of the tenancy has in more recent years involved continuing unlawful conduct, which demonstrates as [sic] history of breach of his tenancy obligations" 1. The Tribunal concluded that the tenancy should be terminated and that the order for termination should take effect 14 days from the date of the Tribunal's decision. Accordingly, on 9 November 2015 the Tribunal made the following orders: 1. The Residential Tenancy Agreement is terminated in accordance with:●s 91 (b) of the Residential Tenancies Act 2010 as the tenant/occupant has intentionally or recklessly caused or permitted the use of the premises for any other unlawful purpose. 2. The Residential Tenancy Agreement is terminated on 23-Nov-2015 and possession is to be given to the landlord on the date of termination. 3. The tenant shall pay the landlord a daily occupation fee at the rate of one seventh of the weekly rent per day from the day after the date of termination, namely 24-Nov-2015 until the date vacant possession is given to the landlord. 4. 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 The Appeal 1. On 23 November 2015, Mr Connor, a Tenant Advocate with the South West Sydney Tenants Service sent an email to the Tribunal attaching an authority to act and Mr Ohman's notice of appeal. The hardcopy of the notice of appeal was filed in the Tribunal on 24 November 2015. Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 requires a notice of appeal in residential proceedings such as the present to be lodged within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later). There is presently no facility for lodging notices of appeal online or by email. 2. The period of 14 days from the date of the decision expired on 23 November 2015. Consequently, if Mr Ohman received notice of the decision and was given reasons on 9 November 2015, he was required to lodge his notice of appeal by 23 November 2015. Because he lodged the hardcopy on 24 November 2015, he sought an extension of time to lodge his appeal, explaining that he had been unable to get an appointment with a tenant advocate until 20 November 2015. The respondent took the view that the appeal was lodged within time in its reply to appeal filed on 11 December 2015. The Appeal Panel has power to grant an extension of time in which to file an appeal under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act). In the light of the email notification within the 14 day period, the very short delay which was adequately explained and the effective lack of opposition from the respondent, the Appeal Panel believes that it is in the interests of justice for the time for filing the appeal to be extended to 24 November 2015 and will so order. 3. In this case, Mr Ohman's rights of appeal are as set out in s 80(2)(b) of the Act which provides that an appeal against a decision other than an interlocutory decision of the Tribunal may be made: "As of right on any question of law, or with the leave of the Appeal Panel, on any other ground". 1. The decision appealed against was a final, not an interlocutory decision, and accordingly Mr Ohman may appeal as of right on questions of law. As the Appeal Panel explained in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(3), (6) and (7)] a question of law may arise, for example, where the issue is whether the Tribunal has: 1. taken into account irrelevant (ie prohibited) considerations; 2. made a finding of fact without evidence to support it; 3. applied a wrong principle of law. 1. In respect of other grounds, pursuant to s 80(2)(b) of the Act, the appellant requires leave to appeal. Further, as this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the Act, leave to appeal, if required, can only be granted under s 80(2)(b) in limited circumstances, namely: "if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)." 1. The meaning of "substantial miscarriage of justice" was elucidated in Collins v Urban [2014] NSWCATAP 17 at [71] and [79]: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred." 1. The general principles applicable in determining whether or not leave to appeal should be granted were summarised in Collins v Urban at [84] as follows: 1. (1) In order to be granted leave to appeal, the applicant 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…; 2. (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. (a) issues of principle; 2. (b) questions of public importance or matters of administration or policy which might have general application; or 3. (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. (d) a factual error that was unreasonably arrived at and clearly mistaken; or 5. (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 1. The appellant was not legally represented, although the Appeal Panel appreciated the contribution made by Mr Connor, who appeared by leave as a tenants advocate for Mr Ohman. Having regard to the substance of the appellant's complaints concerning the decision at first instance articulated in his notice of appeal, what was written in the "Additional Grounds of Appeal" document, which at the hearing the Appeal Panel gave leave for the appellant to rely on, and in oral submissions, the Appeal Panel's understanding is that there were four grounds of appeal that could be seen as raising a question of law in respect of which leave to appeal would not be required. In relation to the remaining four grounds of appeal, leave to appeal is required. We have identified the grounds of appeal as grounds A to H, as set out below, for ease of reference. Grounds of Appeal 1. The four grounds that could be seen as raising a question of law are: 1. Ground A: The Tribunal at first instance took into account an irrelevant consideration namely the finding described as a "material fact" set out in paragraph 4(l) of its reasons that a three bedroom house would suit an eligible family on the waiting list and is not required by the tenant who is a single man living alone. (See the paragraphs under the heading "Errors Of Law" on page 1 of the document headed "Attachment to the Notice of Appeal"). 2. Ground B: The finding in paragraph 4(k) of the Tribunal's reasons that the tenant had no disability was made without any evidence to support it. (See the paragraphs under the heading "Decision not Fair and Equitable" on pages 1 and 2 of the Attachment to the Notice of Appeal.) It can be noted in this regard that Mr Ohman contended on the appeal that in fact he did have a mental illness and sought to rely upon a mental health assessment by Dr Zenith Lal dated 21 October 2014 to establish that proposition. 3. Ground C: The Tribunal below found, at [8] of its reasons, that there was a nexus between the Mr Ohman's conduct and the premises which, if broken, might give him an opportunity to start afresh and took this nexus into account in deciding to terminate the tenancy. By doing so, the Tribunal took into account an irrelevant matter. (See numbered par 1 on page 2 of the Application's Submission on Additional Grounds of Appeal under the heading "The Nexus – material fact"). 4. Ground D: That the Tribunal below, in dealing with the consideration of the seriousness of the breach of the agreement in s 152(1)(b) of the RTA, erred because "the Member has referred to regularity, but has applied no scale whatsoever to the unlawful conduct itself". (See numbered pars 2 and 3 on pages 1 and 2 of the Application's Submission on Additional Grounds of Appeal.) This could be seen as raising whether the Tribunal applied a wrong principle of law although the appellant did not expressly so characterise it. 1. Insofar as the appellant sought leave to appeal, the grounds of appeal relied upon each of the alternatives in cl 12(1)(a), (b) and (c) of Sch 4 to the Act in respect of the following grounds: 1. Ground E: The decision was said to be not fair and equitable by reason of the Tribunal's finding that the appellant had no disability when there was no evidence to support that finding. (See the paragraphs under the heading "I) Decision not fair and equitable" on page 3 of the Attachment to the Notice of Appeal). This ground overlaps with ground B. 2. Ground F: The decision was said to be against the weight of the evidence on the basis that Tribunal's finding that the behaviour of the tenant affected neighbouring residents because of the considerable number of persons coming in and out of the area was based on the landlord's evidence that about 20 visits a week had been made to the premises with a suspicion that this was for the purposes of illegal activities and the Tribunal failed to give proper consideration to the statements or letters from "actual neighbours", Debbie Roberts and Kerry Weaver. (See the paragraphs under the heading "ii) Decision of the Tribunal against the weight of the evidence" on pages 3 and 4 of the Attachment to the Notice of Appeal). 3. Ground G: The appellant asserted that there was significant evidence now available that was not reasonably available at the time of the hearing at first instance namely: 1. a mental health assessment from Dr Zenith Lal with a date of referral of 21 October 2014 (which had been attached to the notice of appeal); 2. a report of Mr Ben Neville, registered psychologist, dated 26 February 2016 (which was tendered at the hearing of the appeal); and 3. a letter dated 27 January 2016 from Mrs Samantha Cook, Mr Ohman's sister (which was tendered at the hearing of the Appeal). (See the paragraphs under the heading "iii) Significant new evidence is now available that was not reasonably available at the time of the hearing" on page 4 of the Attachment to the Notice of Appeal.) 1. Ground H: That having regard to how the criminal matter had been concluded on 10 February 2016, the illegal use was at the "least serious end of the criminal spectrum". This was relevant to the consideration under s 91(2)(a) "the nature of the unlawful use" and, as the Appeal Panel understands the submission, should have led to the Tribunal deciding not to terminate. (See numbered par 1 on page 1 of the Application's Submission on Additional Grounds of Appeal.) This could be seen as relying on significant new evidence that was not reasonably available at the time of the hearing, although it was not explicitly characterised in this way by the appellant. Parties' Submissions 1. The appellant's oral and written submissions repeated and, to a certain extent expanded, upon these grounds. Particular submissions made on the appellant's behalf are addressed in more detail below where the Appeal Panel is considering each ground of appeal. 2. The respondent's reply to appeal and oral and written submissions addressed the grounds of appeal as follows: 1. Ground A: The circumstances referred to in paragraph 4(l) of the Tribunal's reasons for decision, that a three bedroom house would suit an eligible family on the waiting list and was not required by the tenant who was a single man living alone, were not matters which the Tribunal, in this case, took into account in reaching its decision but, in any event, would have been matters which the Tribunal was permitted to take into account in considering whether to exercise its discretion to terminate the tenancy pursuant to s 91(1)(b) of the RTA; 2. Grounds B and E: The question whether the appellant did or did not have a disability was not a matter which the Tribunal took into account and in any event there was no evidence before the Tribunal that the appellant was suffering from a disability. The respondent also noted that the Tribunal had explicitly asked the appellant whether he had any disability and the appellant had answered "No" (T18.40-41); and 3. Ground F: One only of the letters from neighbours relied upon by the appellant bore an address on the same street as the premises the subject of the appellant's tenancy and neither of the letters addressed the effect the appellant's unlawful activity was having on the neighbouring residents. 1. In respect of the further grounds of appeal, the respondent filed a written submission pursuant to leave granted by the Appeal Panel and made oral submissions on those matters. In response to the further ground C concerning the "nexus" between the appellant's wrongful conduct and the premises, the respondent submitted that, at [8] of its reasons for decision, the Tribunal was noting: "b. That one of the possible effects of terminating the tenancy for the appellant might be a positive one, that is that he might have better prospects of avoiding further similar wrongful conduct as that wrongful conduct is connected with the premises; and c. That one of the possible effects of not terminating the tenancy is that the appellant, although willing to change, might be encouraged to repeat the wrongful conduct by those people who come and go from the premises and who do so in connection with the wrongful conduct"; 1. The respondent submitted that these propositions were put by the Tribunal to the appellant (at T22.40 to T24.24) and, although not a mandatory consideration, the effect of the termination of the tenancy on the appellant was a permissible consideration. It was not one which the Tribunal was prohibited from taking into account. The respondent referred to Sara McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98 at [78] and argued, by analogy, that the effect on the tenant of breaking the nexus was a permitted consideration. 2. In her oral submissions, Ms Madgwick of counsel, who appeared for the respondent, submitted that the new evidence tendered on the leave to appeal application did not assist the appellant's case and in any event was reasonably available at the time of the first hearing and thus ground G was not made out. As to grounds D and H, the submission was made that there was no requirement for the Tribunal to create a scale of seriousness and locate the appellant's conduct on that scale when considering the matters the might be taken into account under ss 91 or 152 of the RTA. Further, even in the light of the result of the sentencing hearing in February 2016, it could not be said that there was no basis for finding that the conduct was serious. The respondent further referred to the Tribunal's reasons at [12] where it was said that: 'The nature of the unlawful use involves several criminal offences set out in [[4]] above. These are all a serious matter, and were conceded by the tenant." Determination Ground A 1. In respect of ground A, Mr Ohman argued that: 1. by describing its finding at [4(l)] that a three bedroom house would suit an eligible family on the waiting list and was not required by the tenant who was a single man living alone as a "material fact", the Tribunal below was indicating that it took that finding into account in deciding whether to terminate the tenancy under s 91(1)(b) of the RTA; 2. such a finding was an irrelevant consideration for the purposes of considering whether to terminate under s 91(1)(b); 3. by taking into account that irrelevant consideration the Tribunal had erred in law and its decision should be set aside. 1. We would not uphold this ground of appeal for two reasons. First, on a fair reading of the reasons for decision, we do not accept that the description of the findings set out in [4(a)] to [4(m)] as "material facts" indicates that the Tribunal below treated each and every such finding as a consideration which was relevant to deciding whether or not to terminate the tenancy agreement under s 91(1)(b) or s 152 of the RTA. It appears to us that these findings in [4] were no more than a statement of Tribunal's conclusions as to what facts had been established on the evidence before it at the hearing. These findings were not intended to state, or be limited to, only those matters that might be required or permitted to be considered under s 91. 2. This conclusion is supported by a consideration of the structure of the reasons which contain not only the "Facts" as found by the Tribunal in [4] to [8], but also: 1. The "Law" is referred to in [9] to [11] where ss 91 and 152 are identified as the relevant sections of the RTA and the relevant subsections of s 91 are set out; 2. The considerations in s 91(2)(a), (b) and (c) which the Tribunal "may consider but is not limited to considering" are then dealt with under separate headings: "Unlawful use" in [12]; "Previous unlawful use" in [13]; and "Previous history" in [14]. In none of those is the fact that the property is a three bedroom house suitable for a family mentioned; 3. Under the heading "Termination of social housing tenancy agreement" identification that any termination in this case would be of a social housing tenancy agreement and identification of the terms of s 152 of the RTA, in [15] and [16]. This is on the implicit assumption that s 152 was or may have been applicable where a tenancy agreement is sought to be terminated under s 91; 4. The considerations in s 152)(1)(a) to (e) are then dealt with under appropriate headings in [17], [18] – [20], [21], [22] – [23] and [24] respectively. In none of these paragraphs is the property being a three bedroom house mentioned; 5. The conclusion that termination on 14 days' notice is contained in [26] and [27]. 1. Secondly, even if the Tribunal had taken into account in deciding whether to terminate under s 91(1)(b) or s 152 of the RTA the fact that the premises were a three bedroom house that would suit an eligible family on the waiting list and was not required by the tenant who was a single man living alone, in our view this would not constitute taking into account an irrelevant consideration so as to render the decision unlawful and liable to be set aside. 2. The power to terminate under s 91 of the RTA is discretionary as indicated by the use of the words "[t]he Tribunal may … make a termination order if …" in the opening words of that section. Discretionary decisions will generally only be set aside on appeal in the circumstances set out in House v The King (1936) 55 CLR 499 at 505 which include if the decision maker "allows extraneous or irrelevant matters to guide or affect him" or "does not take into account some material consideration". The principle that taking an irrelevant consideration into account or failing to take into account a relevant consideration constitutes an error of law and a ground for setting aside a decision has also been expanded upon in various cases concerning judicial review by superior courts of decisions of inferior courts or tribunals. In Ballantyne v WorkCover Authority of NSW [2007] NSWCA 239 Basten JA examined what are "relevant" and "irrelevant" considerations for these purposes at [113] as follows: "113 In the language of judicial review, "relevant considerations" are mandatory considerations in the sense that any failure to take them into account, in circumstances where they are engaged, will be an error in point of law. A similar principle is reflected in the concept of "irrelevant considerations". These are factors which are extraneous to the proper exercise of the power, so that to take them into account will also reveal legal error. These two categories do not, however, constitute an exclusive description of matters which may be considered. There will, in very many cases, be a category of legitimate factors, consideration of which is neither mandated or precluded. …" 1. Whether considerations are mandatory, precluded or permissible, or "obligatory, or available, or extraneous" (to use the terms adopted by Gleeson CJ in Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at [20]), depends on the proper construction of the relevant statutory provisions, Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40. In the present case, s 91(2) expressly states that: "[i]n considering whether to make a termination order on the ground specified in subsection (1) (b), the Tribunal may consider (but is not limited to considering) the [3 matters listed in s 91(2)(a), (b) and (c)]" (emphasis added). 1. Importantly for present purposes, the words in brackets in s 91(2) expressly provide that the matters which the Tribunal may consider are not limited to the three matters listed in s 91(2)(a), (b) and (c). Thus, in our view any considerations which are logically related to the exercise of the discretion and do not fall outside what is relevant, given the scope and purpose of s 91 in particular and the RTA as a whole, should be seen as permissible or available considerations, which the Tribunal may take into account when exercising the discretion conferred by that section. 2. Section 152 provided: (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. (emphasis added) 1. Similarly to the situation under s 91(2), as a result of express provision in s 152(2), the permissible considerations are not limited to those in s 152(1)(a) to (e) but extend to any considerations which may be considered under any other provision of the RTA. 2. Given the terms of ss 91 and 152 of the RTA, in our view, the finding that the premises were a three bedroom house that would suit an eligible family on the social housing waiting list and was not required by the tenant who was a single man living alone, especially taken together with the findings at [4(m)] as to the availability of other accommodation for the appellant, was not a consideration outside the scope of what could be relevant to the exercise of the discretion whether to make a termination order under s 91(1)(b) so that it must be treated as a prohibited or extraneous consideration, on the proper construction of the RTA. Consequently, even if the Tribunal did take that finding into account in making its termination decision, in our view, that was a permissible consideration and taking it into account involved no error in this case. 3. The appellant also put a submission in support of ground A that the fact that the tenant was in premises with three bedrooms and not smaller premises was a failing of the respondent not the tenant. It was said that the respondent was more than capable of transferring an individual, using its internal policy, from one of their three bedroom premises to a single bedroom premises. Thus, the appellant submitted, considering the unsuitableness of the three bedroom premises for the appellant as a "material fact" was an error of law. 4. The Appeal Panel notes that there are no findings by the Tribunal below concerning the respondent's ability to move or rehouse the appellant nor were we taken to any evidence to support this submission. For these reasons, we would be unwilling to decide the appeal on this basis now put forward on Mr Ohman's behalf. Nonetheless and even accepting for the purpose of the argument that the respondent could have moved Mr Ohman from the premises to smaller accommodation, it does not follow in our view that the consideration of whether the appellant's current premises were suitable for him or more suitable for other potential social housing tenants was a prohibited or extraneous consideration in a case such as the present. Having found that the discretion to terminate under s 91(1)(b) of the RTA was enlivened, the Tribunal was not expressly limited by s 91(2) or, to the extent applicable, by s 152, as to the matters it could take into account in the exercise of that discretion. The specific wording of those sections taken together with the scope and purpose of the RTA, including its role in regulating social housing tenancy agreements, indicate that the effect on the landlord, even when a social housing provider, and the landlord's ability to provide accommodation to other tenants, including those who qualify for social housing, could not be said to be so extraneous to the exercise of the discretion as to prohibit such a consideration being taken into account. This is consistent with the approach of the Appeal Panel in Sara McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98 at [78] where it was held that the impact on a tenant of termination of a social housing tenancy agreement was "a legitimate, available consideration, albeit not an obligatory one". Similarly, it appears to us that the impact on the social housing provider and its ability to make suitable accommodation available to other potential tenants may be a permissible or available consideration, depending on the circumstances of the particular case. Whether or not the respondent could have required Mr Ohman to move from the premises to smaller premises does not render the consideration of the suitability of the premises a prohibited consideration, once the discretion under s 91(1)(b) is enlivened. The Appeal Panel accordingly does not accept the appellant's submission in this regard, even if it were supported by findings or evidence. 5. For these reasons, we reject the appeal based on ground A. Grounds B and E 1. Under grounds B and E, the appellant initially argued that the finding in paragraph 4(k) of the Tribunal's reasons that the tenant had no disability was made without any evidence to support it. In addition, in the notice of appeal it was asserted that "at no time during the proceedings did [the Member] ask the tenant if he had a disability". This was said to make the decision not fair and equitable and to be such that the appellant might have suffered a substantial miscarriage of justice so that leave to appeal should be granted. As noted above, if the finding was in fact made without any supporting evidence it might also constitute an error of law in relation to which leave to appeal was not required. 2. The appellant tendered, at the hearing of the appeal, Dr Lal's mental health assessment of 21 October 2014 which was said to establish that Mr Ohman did have a disability. This is also the subject of ground G. 3. The respondent replied to these grounds B and E by noting that in the Tribunal below, the Member had, contrary to the appellant's submission, specifically asked whether the appellant had a disability and had received the response from Mr Ohman "No, no". 4. In his "Response to Respondent's submissions" which was handed up at the hearing of the appeal, the appellant conceded that at p 18 (ll 40 – 41) of the transcript of the hearing at first instance, he had been asked whether he had a disability to which he said "no". 5. Thus, there was in fact evidence upon which the Tribunal could conclude that Mr Ohman did not have a disability as found in [4(k)] and, consequently, ground B, which was to the effect that the Tribunal erred in law because there was no such evidence, must be rejected. 6. As to the related ground E, the appellant contended originally that the decision was not fair and equitable because there was no evidence to support the finding that Mr Ohman did not have a disability. Having conceded that there was such evidence, the appellant put this ground on a somewhat different basis in his submissions in reply and at the hearing of the appeal. It was submitted: "To be confident that the tenant did not have a mental health issue, the [Tribunal's] question should have been worded differently and/or the answer, should have been probed more fully. The Member has not asked the right question. As such, effectively, he hasn't asked the question and made an assumption, which he has used as a material fact to inform his decision." 1. It was further submitted that the tenant did not have an advocate to represent him and was not capable of representing himself and: "4. …. It is unfortunate, but the tenant was mistaken in his answer. The hearing was inadequate because he did not have someone to help him. … 5. It is not fair and equitable that someone with a disability be evicted on his own mistaken evidence of no disability. 6. The member asked. It is arguably his fault that he got it wrong. But it is not fair and equitable that the process allowed an adverse decision." 1. Although any disability suffered by a tenant is not a consideration referred to in s 91 or s 152 of the RTA, this does not mean that it is not a permissible consideration when deciding whether to terminate a social housing tenancy agreement. In any event, it was a matter which the Tribunal below explored in the evidence and Mr Ohman's own evidence was that he did not have a disability. There was no report from a medical practitioner or a psychologist before the Tribunal at the original hearing nor was there any other material which the appellant drew to our attention that was before the Tribunal below and that would have suggested to the Member that Mr Ohman had a disability. Whilst it is true that the appellant was not represented at the hearing, this is not something unusual in social housing matters in the Consumer and Commercial Division. Indeed, Mr Ohman was not entitled to be represented without the leave of the Tribunal, as a result of the operation of s 45 of the Act. It was not suggested that any such application for leave was made or that the conduct of Mr Ohman would have made it apparent to the Member hearing the matter that Mr Ohman could not properly conduct his case without representation. In all these circumstances, the Appeal Panel is of the view it is not appropriate to characterise the decision as not fair and equitable because the Member below did not probe Mr Ohman's answer more fully or because he was unrepresented at the hearing. 2. It follows that the appellant has not established that he might have suffered a substantial injustice because the decision was not fair and equitable on the basis raised by ground E. Accordingly, the Appeal Panel cannot grant leave to appeal in respect of that ground. 3. We shall deal with the question of whether there was significant new evidence of a disability that was not reasonably available at the original hearing later in relation to ground G. Ground C 1. In relation to ground C, the appellant contended in substance that the Tribunal below erred in law by taking into account an irrelevant consideration, namely its finding at [8] of its reasons that there was a nexus between the Mr Ohman's conduct and the premises which, if broken, might give him an opportunity to start afresh. 2. At [8] the Tribunal below held: "One of the problems with his staying in the premises is that assuming he wishes to change his behaviour, there are others who may put pressure on him to continue with his past unlawful conduct." 1. Then at [18] under the heading "(b) whether any breach of the agreement was a serious one, and whether, give 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" (reflecting the terms of s 152(1)(b) of the RTA), the Tribunal stated: "18. … Having made this finding [that the tenant's past behaviour was a serious breach of the agreement], it is not necessary to consider the likely behaviour of the tenant, but all indications are that the tenant's conduct will continue into the future unless there is a break between the nexus of the conduct and the locality. …" 1. In his Submission on Additional Grounds of Appeal, the appellant did ask some rhetorical questions concerning these findings as follows: How is it that the Member has established this nexus? What proof does he have that the nexus exists? More fundamentally, however, why is he considering that the tenant could move to another premises to break this nexus? 1. In the Appeal Panel's view, there are answers to each of those questions which indicate that there is no substantial basis for challenging the findings or the Tribunal's approach. There is an obvious nexus between the premises and the unlawful conduct when: 1. that conduct included using "the premises for storage of stolen goods" as conceded by Mr Ohman and as found by the Tribunal at [4(f)]; and 2. Mr Ohman "pleaded guilty to a number of offences and was convicted … for goods suspected stolen on premises" as found by the Tribunal at [4(i)]. 1. Further, as the respondent submitted, and the appellant did not dispute, the possible beneficial effect of severing the nexus by giving the appellant a better chance of avoiding further criminal conduct was canvassed during the hearing at first instance at pp 22 (l 40) to 24 (l 24) of the transcript. 2. Finally, it can be seen from the reasons at [18] that the Tribunal was considering breaking the nexus because it was considering how Mr Ohman might be affected, adversely or otherwise, by an order terminating the tenancy. 3. The Appeal Panel rejects the contention that the Tribunal erred in law by taking into account the "nexus" consideration as submitted by the appellant for two reasons. 4. First, the "nexus" consideration raised in substance the issue of what was the effect, adverse or otherwise, that a termination order might have on the appellant. Whilst it must be accepted, given the wording of ss 91 and 152, that this is not a consideration referred to in either of those sections, it does not follow that it was a prohibited consideration. In Sara McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98, the Appeal Panel held at [78] that the impact on a tenant of termination of a social housing tenancy agreement was "a legitimate, available consideration, albeit not an obligatory one". In our view, this conclusion is applicable in the present case. Thus, there was no error of law by the Tribunal below if it did take into account the "nexus" consideration in this matter. 5. Secondly, the terms of [18] of the reasons indicate that this "nexus" consideration was not a necessary part of the Member's reasoning that led to the conclusion that the tenancy agreement should be terminated. Accordingly, even if it were a prohibited consideration, this would have made no difference to the result. The Tribunal would have reached the same conclusion, absent that consideration. Accordingly, the way in which the Tribunal below dealt with this "nexus" consideration in this matter does not provide a ground for upholding the appeal on the basis that the Tribunal took into account a prohibited consideration and, as a consequence, setting aside the decision. 6. For these reasons, the appeal on ground C should be dismissed. Ground D 1. As the Appeal Panel understood the submissions in relation to ground D, the appellant contended that the Tribunal below, in dealing with the consideration of the seriousness of the breach of the agreement in s 152(1)(b) of the RTA, erred in law because the Member failed to identify and apply a scale of unlawfulness to the conduct in question. It was argued that once s 91(1)(b) was engaged because premises had been used for unlawful purposes, s 152(1)(b) required consideration of the seriousness of the breach "in other words, the scale of the unlawful conduct". This required, it was submitted, the Tribunal to identify a scale of seriousness of unlawful conduct and locate the conduct in question on that scale. In this case, it was said the Tribunal below failed to identify any scale of seriousness at all. 2. As has already been noted, it is an open question whether s 152 of the RTA was applicable when termination of a social housing tenancy agreement is sought under s 91 rather than s 87 of the RTA. For the purposes of dealing with this ground of appeal, we shall assume (without deciding) that s 152 was applicable when a termination under s 91 is being sought. The two paragraphs of s 152(1) which referred to the seriousness of effects or breach were (a) and (b) which provided: (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, 1. It can be accepted that "serious" is an ordinary English word and it would be expected that it should be given the same meaning in each of the paragraphs in s 152(1) in which it is used — see Tabcorp Holdings Ltd v Victoria [2016] HCA 4 at [65]. 2. In the Oxford English Dictionary (Online Edition) the most relevant meanings of "serious" appear to be: 3. a. Weighty, grave; important, significant, of great consequence. … b. Of an injury, condition, etc.: significant or worrying; giving cause for anxiety or concern; grave, threatening, or dangerous. … c. Substantial, considerable, or impressive in quantity or extent; great, large, abundant. 1. Similarly, according to the Macquarie Dictionary (Online Edition), "serious" can mean: 5. weighty or important: a serious matter. 6. giving cause for apprehension; critical: a serious illness. 1. These definitions indicate that "serious" in the context of s 152 of the RTA is designed to designate those adverse effects or breaches which are important or significant for the purposes of deciding whether or not to terminate a social housing tenancy agreement. This would exclude trivial or insubstantial effects or breaches. The use of "serious" in this context can also be seen as similar to the use of the word "substantial" in statutes to set a standard for intervention by a Court or tribunal rather than to have any precise denotation. 2. French J (as the Chief Justice then was) made the following comments in Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR 41-752 in relation to the use of the word "substantial" in the phrase "substantial lessening of competition" at [114]: "In my opinion the phrase sets a standard for judicial intervention in respect of the classes of anti competitive conduct to which it applies. It requires, before that intervention can be invoked, that there be a purpose, effect or likely effect of the impugned conduct on competition which is substantial in the sense of meaningful or relevant to the competitive process. There is, of course, a certain circularity in these attempts at exposition. It could be said that a substantial lessening of competition describes a purpose or outcome of conduct which is deserving of the intervention of the Court in the protection of the competitive process according to law. So to say, is to identify the functional character of the statutory standard." 1. This approach of identifying the functional character of words such as "substantial" or "serious", in contexts where they are used to set statutory standards for intervention or action by a Court or tribunal, was endorsed by the High Court in Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at [41] and footnote 67 and by the Full Federal Court in Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193; (2003) 131 FCR 529 at [242]. 2. Applying such a functional approach in the context of the RTA to the use of "serious" in s 152(1)(a) and (b), the Appeal Panel is of the view that "serious adverse effects" and "a serious [breach]" should be taken to be referring to adverse effects or breaches which are meaningful or relevant to whether the tenancy should be terminated. In other words, and noting that there is, as French J observed, a certain circularity in these explanations, the use of "serious" indicates that the effects and breaches must be such that they would reasonably attract the intervention of the Tribunal to terminate the tenancy. 3. It follows from this, in our view, that "serious" in s 152(1)(a) and (b) does not require the Tribunal to establish a scale of seriousness for adverse effects or breaches and then place the effect or breach in question on that scale, as the appellant submitted. Rather, the Tribunal is required to form an evaluative judgment whether the effect or breach is such as would reasonably justify intervention by the Tribunal to terminate the tenancy. For these purposes, trivial or insubstantial breaches would not be sufficient. The purpose and proper construction of the word "serious" in this context are that it is primarily functional rather than denotative of a particular level of seriousness on a scale. 4. For these reasons, we do not accept that the Tribunal erred in not identifying a scale of seriousness of breaches or unlawful conduct and locating the Mr Ohman's conduct in question on that scale. Consequently, the appeal based on ground D should be rejected. Ground F 1. In relation to ground F the appellant contended that the decision was against the weight of the evidence because the Tribunal's finding, at [19], that the behaviour of the tenant affected neighbouring residents as a result of the considerable number of persons coming in and out of the area was based on the landlord's evidence (some of which had been referred to at [8]) and the Tribunal failed to given proper consideration to the statements or letters from "actual neighbours" adduced by the appellant. If the appellant might have suffered a substantial injustice because the decision was against the weight of the evidence, then under cl 12(1)(b) of Sch 4 to the Act, the Appeal Panel would have a discretion whether or not to grant leave to appeal. 2. The Appeal Panel in Collins v Urban [2014] NSWCATAP 17 considered what was involved in a decision that was "against the weight of evidence" and held at [77]: "The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]." 1. The appellant, in its notice of appeal and submissions, effectively acknowledged that the evidence led by the respondent had provided a foundation for the Tribunal's findings at [19] of the reasons for decision, although he did contend that Constable D'Amico's statement that police continue to receive reports from community sources of cars and people coming and going from the premises and only staying for a period of 5 to 10 minutes was hearsay and uncorroborated. The substance of the appellant's complaint was that the Tribunal had not taken into account the material that he had submitted by way of letters from neighbours which answered or counteracted the respondent's evidence. In the notice of appeal the appellant relied, in particular, upon the material from "actual neighbours", Ms Debbie Roberts and Ms Kerry Weaver which was as follows: 1. Ms Roberts did not give her address but did give a mobile telephone number and her an undated letter stated: To whom it may concern. My name is Debbie Roberts. I have been a neighbour and friend of John for fifteen years. I have watched this young man cope with grief and loss, more than any young person should have to. I refer to the loss of his parents. The home in which they shared as a family, is the only home John knows. I know him as a mature, quiet young man. That's not to say he's perfect, no one is, but as a friend and neighbour, he's one anybody would be glad to have. Please show this man some compassion and allow him to remain in his home. Yours sincerely [signed D Roberts] 1. Ms Weaver gave an address in same street as Mr Ohman and her undated letter stated: To whom it may concern, I Kerry Weaver have been a friend and neighbour of John Ohman for over 20 years and during that time I've known him to be reliable caring person. Thank you [signed Kerry Weaver] 1. It is correct that these letters were not referred to in the Tribunal's reasons for decision in relation to the findings at [8] or [19] or, for that matter, elsewhere. Nor does the Appeal Panel have any doubt as to the genuineness of the opinions and views expressed in those letters. 2. The problem for the appellant is, however, that these letters do not specifically contradict or call into question the material referred to at [8] and [19] which was as follows: "8. … There was evidence that about 20 visits a week had been made by persons to the premises, with a suspicion that this was for the purposes of illegal activities. … … 19. … I am satisfied that the behaviour of the tenant affects neighbouring residents as it involves considerable number of persons coming in and out of the area." 1. These letters are more properly characterised as character references and requests to allow Mr Ohman to stay in the premises rather than evidence concerning the activities which occurred at the premises and the effect it might have had on neighbours. It can also be noted that although the evidence to which the Tribunal referred at [8] may well have been hearsay, the Tribunal is not bound by the rules of evidence, it may inform itself on any matter in such manner as it thinks fit and there was no suggestion that the appellant was not afforded procedural fairness in relation to that material (see s 38(2) of the Act). 2. The Tribunal's finding that there was a significant impact on the neighbouring residents was open to it and was not inconsistent with the evidence set out in the letters relied upon by the appellant. 3. In these circumstances and applying the test as to whether a decision was against the weight of evidence referred to above, the Appeal Panel is of the view that the conclusion of the Tribunal below at [19] and the decision more generally could not be said to be against the weight of the evidence within the meaning of cl 12(1)(b) of Sch 4 to the Act. It follows that the Appeal Panel's ability to grant leave to appeal based on this ground F has not been enlivened and the Appeal Panel cannot grant leave to appeal in respect of this ground. Ground G 1. As we understood it, the appellant contended, under ground G, that there was significant evidence now available that was not reasonably available at the time of the hearing at first instance namely: 1. a mental health assessment from Dr Zenith Lal with a date of referral of 21 October 2014 (which had been attached to the notice of appeal); 2. a report of Mr Ben Neville, registered psychologist, dated 26 February 2016 (which was tendered at the hearing of the appeal); and 3. a letter dated 27 January 2016 from Mrs Samantha Cook, Mr Ohman's sister (which was tendered at the hearing of the Appeal). 1. If any of those contentions were correct and, as a result, the appellant might have suffered a substantial miscarriage of justice, within 12(1) of Sch 4 to the Act, the Appeal Panel could, if it so decided, grant leave to appeal in respect of this ground F. If, however, none of those pieces of evidence was "significant new evidence [that] has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)" then, once again, the Appeal Panel's ability to grant leave to appeal would not be enlivened. 2. In order to fall within this paragraph the appellant must be able to point to evidence which: 1. is "significant"; and 2. has arisen and is "new" in the sense that it was not reasonably available at the time the proceedings below were being heard. 1. In this context, the Appeal Panel has held, in Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 at [113], that evidence will be significant in the relevant sense if it can be concluded that had the evidence been before the Tribunal at first instance there was a "significant possibility" that a different, more favourable result would have been achieved by the appellant. See also Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [19]-[24]. 2. As to the Mental Health Assessment of Dr Lal, we are not satisfied that it is "significant" evidence in the relevant sense. It is undated but the "date of referral" is stated to be 21 October 2014. If it is assumed that this was the date on which Dr Lal saw Mr Ohman or Mr Ohman saw Dr Lal soon after this date, the assessment does not deal with the state of Mr Ohman's mental health at the relevant time, which was the date of the hearing before the Tribunal at first instance. This was a year later, in 2015. Further the assessment records that Mr Ohman's past mental health problems were "nil" at that time. All items under the heading "MENTAL STATUS EXAM" are assessed as normal apart from "Sleep: Reduced, erratic" and "Anxiety Symptoms: Mild". There is the answer "No" next to each of "Suicidal ideation. Suicidal intent. Warning signs. Self harm. Harm to others." The "DIAGNOSES AND/OR FORMULATION" are: "1. Polysubstance abuse – Substance abuse disorder - Chronic history of addiction and polysubstance abuse. Strong family history - MOtivated to get back on track 2. Major Depression - Multiple relationship breakdown, limited education/employment in the context of addiction - MOtivated to get back on track" Under the headings "GP MENTAL HEALTH PLAN" and "PROBLEMS/DIAGNOSIS" the following is recorded: "1. Polysubstance abuse – Substance abuse disorder Goal: - Aim to be healthy, fit and drug free Actions/Tasks - Regular GP visits - Psychologist visits - Dissociating from drug-related contacts - Joining gym, staying active, seeking employment 2. Major Depression Goal: - IMprove mood and overall functioning - Stress-coping mechanisms that are constructive Actions/Tasks - Psychologist Finally at the foot of the third page that is a section headed "PATIENT AGREEMENT" where the patient and the general practitioner can sign and which states "I have agreed/my carer has agreed to this mental health plan and I understand the recommendations". It is blank. Further, the space next to the words "Date of Mental Health Review: (Between 1-6 months)" is also blank. 1. We are of the view that even if this mental health assessment had been before the Tribunal at first instance there would not have been a significant possibility of Mr Ohman achieving a more favourable result that was achieved. It did not speak as to his condition at the time of the hearing. There was no indication whether the plan had been accepted or implemented. Indeed, the reference to "Dissociating from drug-related contacts" as part of the proposed Mental Health Plan may well have confirmed the Tribunal in its view that it would be beneficial to Mr Ohman to be forced to move from the premises. 2. Furthermore, and even if we are wrong in our assessment of the significance of the Dr Lal's Mental Health Assessment, we are not satisfied that it was not reasonably available at the time of the hearing before the Tribunal in November 2015. It appears to have been prepared at some time in 2014. It was not suggested that Mr Ohman could only have acquired a copy after that hearing. Accordingly, it does not satisfy the second element of the test in cl 12(1)(c). 3. As to the report of Mr Ben Neville, registered psychologist, dated 26 February 2016. This report deals with Mr Ohman's condition after 23 February 2016 when he commenced treatment with Mr Neville. It does not speak to his condition at the time of the hearing in November 2015 but rather deals with his situation after his sentencing on 10 February 2016 for the various offences in relation to which he had earlier pleaded guilty. We are not satisfied that it is significant in the relevant sense. Moreover, even if it were so significant, we do not accept that such a report was not reasonably available at the time of the original hearing. Nothing in the nature of the report or the circumstances suggests that such a report could only have been obtained after the November 2015 hearing and no explanation has been given to the Appeal Panel that it would not have been reasonably possible to have obtained a psychologist's report on Mr Ohman prior to the hearing at first instance. 4. Finally, as to the letter dated 26 January 2016 from Mr Ohman's sister in the United Kingdom, we accept the sincerity of Mrs Cook and her genuine concern for her brother's welfare. Nonetheless, material of this nature could all have been obtained prior to, and presented at, the hearing in November 2015. From the nature of letter and in the circumstances, we cannot conclude that this was "evidence that was not reasonably available at the time the proceedings under appeal were being dealt with" within cl 12(1)(c) of Sch 4 to the Act. 5. It flows from these findings in relation to each of the mental health assessment, the psychologist's report and Mrs Cook's letter that the Appeal Panel's power to grant leave to appeal in relation to ground F does not arise. Thus, leave to appeal in respect of this ground G cannot be granted. Ground H 1. As the Appeal Panel understood it, ground H involved the contention that the sentence imposed on 10 February 2016 in relation to the offences to which Mr Ohman pleaded guilty in 2015 demonstrated that the nature of the illegal use of the premises was "at the least serious end of the criminal spectrum" and this was evidence that was not reasonably available at the time of the hearing and would, or at least could, have led to Mr Ohman achieving a more favourable outcome. Thus the requirements of cl 12(1)(c) could be submitted to have been satisfied and the Appeal Panel should grant leave to appeal, so the appellant effectively submitted, and set aside the Tribunal's decision. 2. Whilst we accept that this evidence as to the sentence imposed on Mr Ohman was not reasonably available at the time of the hearing, we do not believe that had it been before the Tribunal at first instance it would have produced any different or more favourable result. The sentence, so we were informed in the appellant's written "Submission on Additional Grounds for Appeal", was "an 18 month good behaviour bond, $2,200 hundred [sic] fine and 7 months suspended sentence". We do not consider this trivial or insubstantial. 3. In considering the nature of the unlawful use, as permitted by s 91(2)(a), the Tribunal below held at [12]: "The nature of the unlawful use involves several criminal offences set out in the material facts [paragraphs 4(a) to (m) of the reasons] above. These are all a serious matter, and were conceded by the tenant." 1. In our view, that finding was justified on the basis of offences to which the appellant pleaded guilty and the material that was before the Tribunal at first instance. The sentence imposed confirms rather than contradicts the seriousness of the unlawful uses. 2. Further, to suggest that it is necessary, when considering, for the purposes of s 91(2)(a) of the RTA, the nature of the unlawful use of the premises, to grade the unlawful use in question against the whole spectrum of criminal offences appears to us misguided. For similar reasons to those we have explained above in relation to the use of the word "serious" in s 152(1)(a) and (b) of the RTA, in our view a consideration of the nature of the unlawful use requires the Tribunal to evaluate whether the actual unlawful use in question is such as to attract or justify the intervention of the Tribunal by way of termination, when taken together with the other mandatory and permissible considerations that are relevant in any particular case. In considering the nature of the unlawful use the Tribunal is not required to compare the actual unlawful use with other unlawful uses (whether more or less serious in terms of criminality) for which the premises could have been used. 3. For these reasons we do not accept that the appellant might have suffered a substantial miscarriage of justice in the light of the evidence of the sentence imposed in February 2016. Accordingly, the Appeal Panel cannot grant leave to appeal in respect of this ground H. 4. Even if we are wrong in this conclusion and the Appeal Panel may grant leave, we would not do so as there does not appear to us to have been any issue of principle raised by the appellant under ground H. Nor is there a question of public importance or of policy raised by this aspect of the appeal. We do not believe there is any clear injustice, any factual error that was unreasonably arrived at and which was clearly wrong nor has the Tribunal gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 5. The appeal based on ground H should, therefore, be rejected. Conclusion 1. The Tribunal's decision to terminate the tenancy was one within its discretion, not affected by error and one that the Appeal Panel should not interfere with. 2. The decision of the Tribunal was stayed on 2 December 2015 and that stay was continued at the hearing of the Appeal on 1 March 2016. That stay will be lifted. The Tribunal's original orders provided for the termination of the tenancy to take effect 14 days after the decision. The Appellant should have that period of time to vacate the premises. 3. Therefore the orders of the Appeal Panel are: 1. The time for filing the appeal is extended to 24 November 2015. 2. Leave to appeal is refused. 3. The appeal is dismissed. 4. The stay of the orders made by the Tribunal on 9 November 2015 granted on 2 December 2015 and continued on 1 March 2016 is lifted. 5. The orders made on 9 November 2015 in proceedings SH 15/48286 are varied so that the tenant is required to give the landlord possession 14 days from the date of these orders and so that the orders of the Tribunal are as follows: 1. The Residential Tenancy Agreement is terminated in accordance with:●s 91 (b) of the Residential Tenancies Act 2010 as the tenant/occupant has intentionally or recklessly caused or permitted the use of the premises for any other unlawful purpose. 2. The Residential Tenancy Agreement is terminated on 23-Nov-2015 and possession is to be given to the landlord on the day 14 days after the date of the orders of the Appeal Panel in proceedings AP 15/63187 3. The tenant shall pay the landlord a daily occupation fee at the rate of one seventh of the weekly rent per day from the day after the date of termination, namely 24-Nov-2015 until the date vacant possession is given to the landlord. 4. 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. ... **************************** Endnote 1. Section 152 was removed from the RTA with effect from 18 December 2105 by the Residential Tenancies and Housing Legislation Amendment (Public Housing – Antisocial Behaviour) Act 2015 (NSW). 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 Amendments 18 April 2016 - Corrected file number of first instance decision. Corrected typographical error in paragraph 3 (removed unnecessary word). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2016