Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pusell v NSW Land and Housing Corporation [2016] NSWCATAP 215 Hearing dates: 5 August 2016 Date of orders: 20 September 2016 Decision date: 20 September 2016 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member J Kearney, Senior Member Decision: Conditionally on the appellant complying with the terms of the residential tenancy agreement dated 8 November 1999 between him and the respondent: (1) Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 extend the time for the filing of the Amended Notice of Appeal to 30 March 2016; (2) Grant leave to appeal (3) Appeal allowed (4) Set aside orders 2 and 3 made 11 March 2016 (5) The matter is remitted to the Tribunal differently constituted to be determined according to law. Catchwords: SOCIAL HOUSING: discretionary matters s 154E Residential Tenancies Act; factual errors; discretion miscarried. APPEAL: new evidence. Legislation Cited: Civil and Administrative Tribunal Act, 2013 Residential Tenancies Act, 2010 Cases Cited: House v R (1936) 55 CLR 499 Collins v Urban [2014] NSWCATAP 17 Yong v Antworks [2016] NSWCATAP 14 Gleeson & Anor t/as Ant Building v The Owners Strata Plan No 81893 [2016] NSWCATAP 27 Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 Category: Principal judgment Parties: Darren Royce Pusell (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Counsel: P Gledson (Appellant) J O'Connor (Respondent) Solicitors: P Baker (Appellant) D Ford (Respondent) File Number(s): AP 16/14174 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2015] NSWCATCD Date of Decision: 11 March 2016 Before: Mr M Cohen, Senior Member File Number(s): SH 15/58581 REASONS FOR DECISION Background 1. This is an internal appeal from a decision of the Consumer & Commercial Division of the Tribunal made on 11 March 2016. In those proceedings an order was made pursuant to s.87(4) of the Residential Tenancies Act, 2010 ("the RT Act") terminating the residential tenancy agreement between the appellant and the respondent. An order was also made requiring the appellant to give the respondent vacant possession of the tenanted premises on or before 19th February 2016. The latter order has been stayed on certain conditions pending further order of the Tribunal. 2. The appellant seeks to set aside the termination order on various bases. The respondent resists the setting aside of the termination order. The reasons below 1. The parties entered into a residential tenancy agreement dated 8 November 1999 in respect to premises in Redfern. In the Tribunal below, the respondent sought to terminate that residential tenancy agreement by reason of alleged breaches by the tenant of s.51 of the RT Act. It sought orders pursuant to ss 87 & 187 if the RT Act. 2. There was a substantial bundle of material relied upon by the landlord before the Tribunal below. There was cross-examination by the solicitor for the appellant of the witness called by the landlord, a Mr Nestor Bustos. Mr Bustos is a neighbour of the appellant at the tenanted premises. The tenanted premises are social housing premises. 3. The appellant relied on two affidavits and was cross-examined on their contents. The appellant also relied on a statement made by his mother and she was cross-examined on its contents. 4. The basal facts appear to be that the appellant had been a tenant at the property since 8 November 1999. Mr Bustos entered into a residential tenancy agreement with the landlord in or about August 2014 and became a neighbour of the appellant. It is apparent that the appellant and Mr Bustos do not get on. 5. On 22 November 2014 Mr Bustos made a complaint to the New South Wales police alleging anti-social behaviour against the appellant and obtained a provisional Apprehended Violence Order ("AVO") against the appellant. That provisional order was made final on 16 February 2016. 6. On 20 June 2015 the appellant was charged with assault and breach of the AVO, denied bail on the basis of the seriousness of the charges and remanded to the Cessnock Correctional Centre. He was released on 16 August 2015 on conditional bail. 7. On 22 September 2015, the landlord served the appellant with a Notice of Termination of the residential tenancy agreement by reason of alleged breaches by the appellant of s. 51 of the RT Act. 8. On 2 October 2015 the appellant was found guilty of certain charges in the Local Court. 9. On 26 October 2015 the landlord filed the application for the termination of the residential tenancy agreement in the Tribunal. 10. On 19 November 2015 the appellant was convicted of certain charges and sentenced to be of good behaviour for a period of 18 months and to submit to supervision by the Community Corrections Service and to attend drug and alcohol counselling. 11. The Notice of Termination, dated 22 September 2015, particularised 3 alleged breaches of the residential tenancy agreement. The particulars of the breaches are set out at [12] of the reasons of the Tribunal. One of the alleged breaches was that on 20 June 2015 the appellant assaulted Mr Bustos at a shopping centre at Surry Hills, not at the rented premises. The Tribunal, correctly in our view, rejected the argument that, if such an event occurred, it could constitute a breach of the residential tenancy agreement. There is no challenge to that finding. 12. The other two particulars of breach alleged by the landlord were that: 1. on 20 June 2015 at 6 PM the appellant loudly played music and shouted insults from the veranda of his unit directed at his neighbour Mr Bustos then bashed on the front entrance of the door of Mr Bustos' unit and subsequently attacked him with a broom handle; and 2. on 20 June 2015, at 8:15 PM, the appellant was overheard to yell at Mr Bustos: "You fucking wog cunt, I'll cut your fucking head off." 1. The Tribunal heard evidence from Mr Bustos in respect to the two matters above. He was cross-examined by the solicitor for the appellant. Mr Bustos also kept a log for the purposes of recording interactions with the appellant. That log recorded incidents on 17 November 2015, 29 December 2015, 30 December 2015, 2 January 2016 and 13 January 2016. The Tribunal found at [28] that the events recorded in this log were "proved on the balance of probabilities". 2. On the whole of the evidence before it, including the log and cross-examination of the relevant witnesses, the Tribunal held at [30] that the landlord "… has established a strong prima facie (sic) for the Tribunal to exercise the discretion conferred upon it for the making of orders by s. 87 of the Act." 3. The Tribunal then correctly noted that in social housing matters regard is to be had to the provisions of ss. 154B and 154E of the RT Act. The Tribunal noted that on the evidence before it s.154B was not engaged and was irrelevant. 4. In respect to the matters to be considered under s.154E relevant to the exercise of the discretion to make a termination order the Tribunal found 1. As to s. 154E(1)(a): 1. At [37] that it was clear that the effect on the neighbour (Mr Bustos) had been adverse, although "the evidence is at a very high level of generality and is replete with evidence of personal outrage and antipathy to the [appellant]"; 2. At [38]-[40] that having had the opportunity to observe Mr Bustos in the witness box, the Tribunal was satisfied he was a witness of truth and that he had been left stressed, anxious and fearful for his safety by reason of the interactions he had with the appellant the subject of his evidence. The Tribunal felt it was able to place reliance on Mr Bustos testimony in finding facts on the balance of probabilities; 3. At [43]-[46] the Tribunal referred to psychological evidence advanced by the appellant by way of reports of Dr Luke Heeps dated 5 September 2013 and 18 May 2015. Those reports refer to certain psychological issues affecting the appellant, which in Dr Heep's opinion would improve and change if the appellant reduced his alcohol and drug abuse. The Tribunal found, however, having observed the appellant in the witness box that "the diagnosis advanced by Dr Heep is compelling; and that the Tribunal considers… that the prospects of the [appellant] achieving the outcomes postulated by Dr Heep are apt to be remote." It is unclear how such a conclusion was reached. 4. The Tribunal found at [47] that if there was any contest between the evidence of the appellant and Mr Bustos, the evidence of Mr Bustos was to be preferred "as a proper basis for finding on the balance of probabilities those facts which it is more probable than not arose in this dispute". 5. Accordingly, the Tribunal found that the landlord had satisfied it that the tenancy had had an effect on Mr Bustos relevant to s.154E(1)(a). 1. On the question arising by operation of s.154E(1)(b) as to the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tendency is not terminated, at [49] the Tribunal accepted and relied upon the evidence referred to above in respect of s. 154E(1)(a). Further, at [50] the Tribunal said that: "…the evidence advanced by the [landlord] on this question was of a pattern of ongoing anti-social behaviour exhibited by the [appellant] over a lengthy period of time; and of similar lengthy alcohol and drug abuse, including occasions in the presence of Mr Bustos, the Tribunal finds that the [landlord] also has satisfied this ground." 2. At [51] the Tribunal found that when regard is had to the above-mentioned evidence, the ongoing presence of the [appellant] as a tenant in the premises, on the balance of probabilities, would adversely affect the [landlord's] responsibility to its other tenants within the meaning of s. 154E(1)(c). 3. At [52], with respect to the history of the current tenancy the Tribunal found that "...the evidence advanced by the [landlord] demonstrates that the history of the [appellant's] tenancy is adverse and very troubled" so as to engage s.154E(1)(d). 4. The Tribunal found that there was no evidence to make out any ground that the appellant had been, wilfully or otherwise, in breach of an order of the Tribunal within the meaning of s 154E(1)(e). 1. The Tribunal referred at [54] to the landlord's submissions that certain factors militated in favour of an order for termination of the residential tenancy agreement, such as the fact that the appellant was not married and has no children, that he had immediate family in Dubbo, including his mother who would provide assistance to him, the fact that there was medical treatment available to the appellant if he resided in Dubbo and in all the circumstances a move from Redfern to Dubbo would likely assist and support any recovery of the appellant from drug and alcohol dependence. It is not clear, however, from the balance of Tribunal's reasons that these factors played any relevant part in the exercise of the Tribunal's discretion. 2. Importantly at [55]-[56] the Tribunal regarded the extant AVO against the appellant, which had 18 months to run, as "a powerful factor" to be considered in the exercise of its discretion which "weighs heavily against the [appellant] by reason that he has been convicted of being in breach of it". The Tribunal held that on the evidence before it (without specifying what that evidence was) that the likelihood of a further breach of the subsisting AVO by the appellant, if there was not termination of the residential tenancy agreement, was "profoundly high". 3. In the circumstances of the above considerations, the Tribunal considered that the basis for the making of a termination order as sought by the landlord was established. 4. In relation to the appellant's evidence below, the Tribunal noted the personal antipathy of the appellant towards Mr Bustos. The Tribunal was not persuaded to the level of "comfortable satisfaction" by the appellant's explanation of his abuse of Mr Bustos that it resulted by reason of an assault on him by Mr Bustos. That was so even though the Tribunal noted that Mr Bustos had been charged with malicious damage to the appellant's property but that as the matter had not been determined by the court the Tribunal was unable to arrive at any finding with respect to that matter. The Tribunal rejected the appellant's submission that Mr Bustos was instigating complaint against him for the purposes of intimidating him. 5. In considering whether or not the evidence before it was such as to enable it to be satisfied under s. 87(4) of the RT Act that the breaches of the residential tenancy agreement by the appellant were, in the circumstances of the case, sufficient to justify termination of that agreement, the Tribunal found that it was "comfortably satisfied that each of matters which individually is directed by the Act to consider, or their overall effect, leads to the conclusion that a case for termination of the Agreement has been made out by the [landlord]". Accordingly, the Tribunal exercised its discretion to terminate the residential tenancy agreement. 6. At [69]–[71] the Tribunal considered that, if it were wrong in the above findings, it would have been appropriate to make a specific performance order with respect to the residential tenancy agreement. It noted that the appellant had said that he was prepared to submit to such an order. Terms of the order that the tribunal would have made are set out in [71] of the reasons. The Notice of Appeal 1. The appellant originally filed his notice of appeal on 22 March 2016. An amended notice of appeal was filed on 30 March 2016. The appellant requires an extension of time pursuant to s.41 of the CAT Act to rely on the amended notice of appeal. No objection was made by the respondent to such a course. We formally grant the appellant an extension of time up to 30 March 2016 to file the amended notice of appeal. 2. The appellant challenges the termination order and consequent order that he give vacant possession of the premises to the respondent. The appellant accepts that he requires leave to appeal from the decision and seeks to rely on new evidence. The grounds of appeal set out in the attachment to the amended notice of appeal contain seven grounds. At the hearing of the appeal we were informed that grounds three and four were not pressed. 3. The grounds of appeal, as pressed at the hearing, are as follows: 1. The Member found that Mr Nestor Bustos was a witness of truth (Reasons, paragraph [40]). Mr Bustos' testimony included reference to a log of events containing false descriptions of events (noted below at "decision not fair and equitable"). The Appellant was not forewarned of this log of events and could not prepare evidence in response to those matters. As a result the Appellant was denied procedural fairness in being unable to meet the case before him. 2. Further and in the alternative to ground one, evidence obtained since the date of the hearing indicates that (i) Mr Bustos' evidence was false in material respects, and (ii) Mr Bustos had a motive to be untruthful, having had interim Apprehended Violence Order awarded against him in favour of the Appellant. In light of these matters the Member's findings as to Mr Bustos' testimony cannot be said to be fair and equitable and, in light of this fresh evidence, the Appeal Panel should substitute its own verdict as to Mr Bustos' evidence. 3. … 4. … 5. The Member misdirected himself as to the Appellant's criminal record, and so formed an incorrect view of the Appellant. Contrary to Reasons paragraph [11(5)], the Appellant was charged with four offences arising out of events on 20 June 2015 (one count common assault; two counts breach of AVO; one count stalk/intimidate Nestor Bustos). Contrary to Reasons paragraph [11 (8)], the Appellant was convicted only of stalk/intimidate and one breach of AVO charge. This meant the Member's findings at Reasons paragraphs [26], [30], [50], [52], [55]-[56] (to the extent there was only one conviction for breach of AVO) and [67] were founded on an error of facts. 6. The Member did not give due and proper consideration to all the factors required to be considered under s154E(1) of the Residential Tenancies Act, including as to s154E(1)(b) and (c) the absence of any evidence as to the impact of the Appellant's activities on any neighbour other than Mr Bustos, and as to s154E(1)(d) the lack of any history proceedings between the Appellant and Respondent. The Member's failure to properly consider these issues constitutes an error of law. In the alternative, the Member's decision was so unreasonable that no reasonable Tribunal would have arrived at the same conclusion (Wednesbury unreasonableness). 7. The Appellant had issued a summons, returnable on the hearing date, to NSW police. No production was forthcoming and the Member refuse the Appellant leave to address this lack of production. In so doing the Appellant was denied procedural fairness. 1. For completeness, reference should also be made to that part of the of the attachment to the amended Notice of Appeal which sets out why the appellant asserts that the decision is not fair and equitable and deals with the new evidence sought to be relied on. 2. In respect to the decision not being fair and equitable, reference is again made to the log relied upon by Mr Bustos and that the appellant had no opportunity to adduce evidence contradicting the entries in that log. Further, the appellant criticises the exercise of the discretion by the Tribunal where it failed to consider that the appellant had already taken steps to remedy the breach, namely, ongoing treatment by Dr Heeps. The appellant submitted that the Tribunal failed to have regard to the fact that the appellant had resided at the premises since 1999 without any action being taken against him by the respondent. Finally, although this may not go to the question of whether the decision is fair and equitable, the appellant submits that the Tribunal did not give reasons for refusing the specific performance order as an alternative to the termination order. 3. As to the new evidence, the appellant submits that the new evidence, being the police bailee receipts that showed that the appellant was in Dubbo on one of the days on which Mr Bustos' log recorded him as being involved in an incident, were available but that as he had no notice of the log being used, he could not reasonably have known he would need them. As to the AVO record against Mr Bustos, which the appellant alleges shows Mr Bustos had a motive to complain against him, whilst that was granted after the hearing below, it related to events prior to the hearing. Reply to the Appeal 1. It is not necessary to set out in detail the matters listed in the Reply to the Appeal. In short, the respondent disputes that the Tribunal erred in the manner alleged or at all. It refers to the fact that Mr Bustos was cross-examined on the log entries he produced and no application for an adjournment was sought by the appellant's solicitor at the hearing. It also denies any denial of procedural fairness with respect to the late report of Dr Heeps which was not served until 29 January and had been objected to by the respondent' solicitors. 2. The respondent says that the Tribunal's reasons are not vitiated by the errors said to be identified by the appellant at all, or such that the Appeal Panel would make the orders sought. Leave to Appeal 1. The appellant accepts he requires leave to appeal. The principles applicable in considering whether leave to appeal from a decision of the Consumer and Commercial Division of the Tribunal are well known: Collins v Urban [2014] NSWCATAP 17 at [65]-[84]. We have had regard to them and consider that in this case, the appellant may have suffered a substantial miscarriage of justice such that leave to appeal, in so far as it is required, should be granted. 2. In our opinion, the issue of the possible unfairness to the appellant of the respondent relying on Mr Bustos' log of events, which had not formed part of the material served by the respondent prior to the hearing, and the truth of which forms part of the material relied upon by the Tribunal in the exercise of its discretion to terminate the residential tenancy agreement, enlivens the grant of leave. As we explain in more detail below, the Tribunal placed significant weight upon the credit of Mr Bustos in circumstances where, had the bailee reports been available at the hearing, it would have cast doubt on the veracity of his log and perhaps his credit. There is a significant possibility that this may then have had an impact on the exercise of the discretion by the Tribunal. 3. In these circumstances, we are of the opinion that the decision of the Tribunal may not be fair or equitable, or that the new evidence in the form of the bailee receipts means that appellant may have suffered a substantial miscarriage of justice such that he should be granted leave to appeal. The new evidence 1. As observed above, the appellant seeks to introduce new evidence on the appeal. That new evidence comprises the police bailee receipts that show that the appellant was in Dubbo on the 17th of November 2015 (being a date on which Mr Bustos' log had him at the premises and abusing and threatening him) and the records showing the AVO against Mr Bustos. 2. In order for a party to rely on new evidence on appeal, clause 12 of schedule 4 to the CAT Act provides that the evidence must be significant and not reasonably available at the time the proceedings under appeal were being dealt with. The respondent has referred in its submissions to various authorities of the Appeal Panel that deal with the receipt of fresh evidence (see Respondent's Submissions dated 27/6/16 at [4]-[10]). In particular, the respondent referred to the reasons of the Appeal Panel in Gleeson & Anor t/as Ant Building v The Owners Strata Plan No 81893 [2016] NSWCATAP 27 at [16]. There the Appeal Panel referred to the decision of the High Court in Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632 and the reasons of Dixon J at 640. There his Honour said: "If a trial has been regularly conducted and the party against whom the verdict has passed cannot complain that evidence has been wrongly received or rejected or that there has been a misdirection or that he has not been fully heard or has been taken by surprise or that the result is not warranted by the evidence, the successful party is not to be deprived of the verdict he has obtained except to fulfil an imperative demand of justice. The discovery of fresh evidence makes no such demand upon justice unless it is almost certain that, if the evidence had been available and have been adduced, an opposite result would have been reached and unless no reasonable diligence upon the part of the defeated party would have enabled him to procure the evidence." 1. Importantly, the respondent also refers to the High Court's decision in Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 where at 140 it was said: "As the above quotation makes plain, the general rule formulated by Dixon CJ is directed to the ordinary case were all that is involved is that relevant fresh evidence has come to the notice of the unsuccessful party after the trial. It is not directed to the case where the trial itself has miscarried "through misdirection, missed reception of evidence, wrongful rejection of evidence or other error" or to a case of "surprise, malpractice or fraud". Such cases cannot properly be seen as mere cases of "fresh evidence". 1. In this case, in our opinion, the fact that the log relied upon by Mr Bustos and upon which emphasis was placed by the Tribunal was not produced until the trial has this case fall into one of "surprise". The respondent had served on the appellant prior to the hearing material on which it intended to rely in support of its application to terminate the residential tenancy agreement. Such material included statements from Mr Bustos. The log was not included in the material. 2. The appellant was represented by a solicitor or at the hearing. The first time that the diary was referred to or produced was during the cross-examination of Mr Bustos (at T 67.9 and following). There was some debate between the Tribunal and the legal representatives about the diary and Mr Bustos was asked some questions about it. It appears to have been admitted as Exhibit B after a brief adjournment when the appellant's solicitor spoke to him or his mother (who was also in attendance). The solicitor cross-examined Mr Bustos on the events of 17 November 2015. At T 83.27 he put to Mr Bustos that the appellant was not in his apartment on 17 November. That suggestion was simply denied by Mr Bustos. Mr Bustos maintained that the entry for 17 November was correct. 3. Whilst it can be accepted that the appellant's solicitor must have had instructions to put to Mr Bustos that the diary entry in Exhibit B for 17 November was incorrect, it is unclear if the solicitor, or the appellant, knew of the existence of the police bailee note at the time. That may explain why no objection was taken to the receipt of the diary or why no adjournment was sought. It is an important document as it shows that the diary entry for the 17th of November, where Mr Bustos has the appellant at 405 pm "playing loud music, screamen (sic) ocasinal (sic) come to my door kiak( (sic) and shouting I going to kill yoy (sic) wog cunt", cannot be correct. It must be remembered that the Tribunal referred to the diary entries at [28] and found that on the balance of probabilities the events described in them had in fact occurred and that they amounted to additional breaches by the appellant of the residential tenancy agreement. 4. We were informed that the appellant only contacted the police to obtain the bailee record after the hearing. This, in our opinion, was not unreasonable. After all, it was only at the hearing that the appellant and his solicitor became aware that the diary log existed and that it recorded events (including on the 17th of November) which were not otherwise particularised in the notice of termination. As we have observed the Tribunal relied on the truthfulness of the diary and the occurrence of the events it recorded as part of the exercise of its discretion to terminate the residential tenancy agreement. 5. In our opinion, the evidence should be admitted. It was sprung by surprise on the appellant. Whilst no objection was taken to its receipt into evidence, nor was an adjournment sought, we do not think this changes the position. It is unclear if the appellant himself or his solicitor knew of the existence of the bailee records until he contacted the police after the hearing, or of the significance that the Tribunal would place on the diary. We are of the opinion that there is a significant possibility that the evidence, had it been admitted, would have been relevant to the exercise of the discretion by the Tribunal whether to terminate the residential tenancy agreement. It is therefore in the interests of justice that we receive the evidence. 6. We have formed a contrary view on the other evidence the appellant seeks to introduce. The issue of Mr Bustos being charged with offences committed on the appellant and the application for an AVO were known to the appellant and his solicitor at the time of the hearing. However, they were not put to Mr Bustos as being a motive for him to lie. They could have been. That must have been a forensic choice. The fact that the AVO was subsequently granted would not, therefore, have added anything to this matter and the appellant should not now be able to re-visit it. Consideration and Disposition of the Appeal 1. Before we consider the various grounds of appeal, we bear in mind that in deciding to terminate the residential tenancy agreement, the Tribunal first found that the appellant was in breach of s 51 of the RT Act. It then went on to consider whether it ought to exercise its discretion to terminate that agreement having regard to the matters it was to take into account pursuant to s 154E of the RT Act. 2. In so far as the appeal concerns the exercise of the discretion by the Tribunal, before the appeal can be allowed, it is not enough that we form the view that, if we were exercising the discretion, we would have done so differently. It must appear to us that some error was made in exercising the discretion. It is only if the Tribunal acted on a wrong principle, allowed extraneous matters to guide or effect its discretion, mistook the facts or failed to take into account a relevant consideration that we can review the determination and, if appropriate, exercise the discretion ourselves: House v R (1936) 55 CLR 499. Grounds 1 and 2 1. The appellant distilled these grounds of appeal in his written and oral submissions to two issues arising from Exhibit B. 2. The first relates to the entry made by Mr Bustos for an event he said occurred on 13 January 2016. The event deals with the police going to his door at the premises in respect to a complaint the appellant had made about Mr Bustos kicking his door. This event was also the subject of a written statement from the appellant's mother who was at the premises on 13 January 2016. It is clear that the incident related to the conduct of Mr Bustos, which was the subject of complaint to the police by the appellant, and not to the conduct of the appellant as against Mr Bustos. 3. At the hearing of the appeal Counsel for the respondent accepted that the incident on 13 January 2016 could not form the basis of a finding that the appellant had been in breach of s. 51 of the RT Act. Unfortunately, however, at [28] the Tribunal made a finding that this was one of the matters which indicated that the appellant was in breach of s.51 of the RT Act so as to enliven its discretion as to whether or not to terminate the residential tenancy agreement. 4. In our opinion, there is substance to the complaint of the appellant (as now accepted by the respondent) that whatever happened on 13 January 2016 cannot form the basis of a finding for a breach by the appellant of the residential tenancy agreement. The Tribunal erred in making the finding that it did. It therefore mistook the facts and took into account an irrelevant consideration in the exercise of its discretion. 5. The second matter complained of by the appellant in these grounds relates to the 17 November 2015 incident recorded in Exhibit B. As we have noted above, the Tribunal found that the events recorded in the diary for that date were additional matters founding the finding of a breach of s.51 by the appellant. Once the evidence referred to in the bailee report is taken into account, however, it is clear that as the appellant was recorded as attending police in Dubbo on 17 November 2015, the events recorded in the diary could not have occurred on that day due to the travel times necessarily involved. In cross-examination Mr Bustos was adamant that they did occur on that day. The Tribunal found on the balance of probabilities that they did. Such a finding is erroneous having regard to the undoubted fact that the appellant was not in Sydney on that day. As such, in our opinion, the Tribunal was led into error not having had the benefit of the evidence contained in the bailee report. 6. Additionally, it is not without significance that the appellant was unable to cross-examine Mr Bustos with the benefit of the bailee report. The Tribunal found that Mr Bustos was a witness of truth. Whilst that finding may not have been disturbed even if the appellant had be able to cross examine him using the bailee report, we consider that the prospect that cross examination with the benefit of that document and the inevitable factual finding which would have followed, namely, that the entry for 17 November 2015 was incorrect, indicates that the appellant may have suffered substantial miscarriage of justice. 7. The appellant succeeds on grounds one and two. Ground 5 1. In respect to ground five the appellant submits that it is apparent from the reasons of the Tribunal that it had an incorrect view of the appellant's criminal record. He submits that at [11](5) the Tribunal omits reference to one charge and that [11](8) states that the appellant was convicted of all charges whereas in fact he was only convicted of the charges of stalk and intimidate and breach of the AVO but not assault. Further, at [25] the Tribunal mistakes the penalty imposed on the appellant. 2. The appellant submits that these matters are important because they form part of the findings made by the Tribunal at [50]-[52] relating to the matters to be considered under s.154E(1)(a)-(d) of the RT Act. In those paragraphs the Tribunal found that the evidence advanced by the respondent was of ongoing anti-social behaviour by the appellant over a lengthy period of time which, on the balance of probabilities, would adversely affect the respondent's responsibility to its other tenants and that such evidence demonstrated that the history of the appellant's tenancy was adverse and very troubled. 3. The evidence before the Tribunal with respect to the appellant's criminal history was the fact sheet (Exhibit 3). This document indicates that the Tribunal erred in its recitation of the appellant's criminal charges, convictions and penalties. We accept that the Tribunal therefore erred in taking such matters into account insofar as it concluded that the appellant's previous behaviour (as evidenced by the misstated findings of his criminal charges, convictions and penalties) would have an adverse effect on the respondent's responsibility to its other tenants. 4. Of even more concern, however, are the findings by the Tribunal with respect to the so-called adverse and troubled history of the appellant's tenancy. The only evidence of any trouble between the appellant and any other tenant at the premises since 1999 was that of Mr Bustos. He had only been a tenant at the premises since 2014. Insofar as the Tribunal held that the evidence allowed findings adverse to the appellant on these matters, such findings are against the weight of the evidence and made without foundation. 5. In so far as the Tribunal found that the prospects of the appellant committing further breaches of the AVO granted in favour of Mr Bustos being "profoundly high", there is no reasonable basis on the evidence to have made that finding. 6. The appellant succeeds on ground five. Ground 6 1. This ground deals with similar issues that a ground five. In essence, the appellant complains that the Tribunal incorrectly considered the matters it was required to consider in the exercise of its discretion under s.154E(1). In particular, the appellant repeats his complaints about the errors made by the Tribunal in respect to his previous behaviour having an adverse effect on other tenants at the premises and the history of his tenancy since 1999. 2. We agree, for the reasons above, that insofar as the Tribunal took into account these matters adversely to the appellant in the exercise of its discretion, it took into account matters not substantiated by the evidence and thus erred. There was simply no evidence before the Tribunal by which it could have reasonably concluded that the appellant by reason of his past behaviour (as reflected in the evidence before it) would interfere with other tenants in the future or that his tenancy had been adverse and troubled. The only evidence of any complaint since 1999 was that of Mr Bustos who only moved into the premises in 2014. We do not think that this is sufficient to have formed the basis of the findings that the Tribunal made. 3. The appellant succeeds on ground 6. Ground 7 1. Ground seven dealt with the Tribunal's decision with respect to a summons for production of documents issued by the appellant to the New South Wales police. It is unnecessary to deal with this ground in any detail. That is because at the hearing of the appeal we had formed the view that the Tribunal had erred in the manner in which it dealt with the late production of documents by the New South Wales police and denied the appellant procedural fairness in that regard. We therefore granted the appellant and respondent immediate access to the documents which had been produced. The appellant did not make any application to rely upon any of that material on the appeal. Accordingly, we do not need to say anything further about this ground. The appropriate relief 1. Having formed the view that the Tribunal erred in the manner we have outlined above, the question becomes what relief the appellant is entitled to. The respondent submitted that even if we formed the view that the bailee reports should be admitted or that the Tribunal had erred in the manner alleged by the appellant, there was ample evidence before the Tribunal (and before us) to indicate that the appellant was in breach of s 51 of the RT Act and that the residential tenancy agreement should be terminated. We took this to be a submission that even having regard to any errors which may be identified, the Tribunal's discretion did not miscarry or, alternatively, if it did that we should exercise the discretion afresh and terminate the residential tenancy agreement. 2. We do not agree with the respondent's analysis. In our opinion, for the reasons outlined above, the discretion of the Tribunal did miscarry. It miscarried on several bases. As such, in our opinion, the decision of the Tribunal to terminate the residential tenancy agreement must be set aside. 3. We do not think, however, that we are in an appropriate position to exercise the discretion a fresh. Clearly, the evidence of Mr Bustos, and his credit, are significant matters which may weigh upon the exercise of any discretion to terminate the residential tenancy agreement. We have not had the benefit of seeing him in the witness box and, having regard to the new evidence admitted, cannot therefore assess whether or not his credit would be affected by that material. In any event, we are of the view that the interests of justice would best be served by the parties each being entitled to ventilate their respective positions before a Tribunal which has the benefit of all available evidence and seeing all relevant witnesses. 4. In all the circumstances, we are of the view that the matter should be remitted to the Tribunal differently constituted for rehearing. It is not appropriate to remit the matter to the Tribunal as previously constituted as the member had made adverse credit findings against the appellant and it would thus be in the interests of justice for the matter to be heard by the Tribunal differently constituted: see Yong v Antworks [2016] NSWCATAP 14 at [134]-[139] esp at [137]. 5. On 30 March 2016 the Appeal Panel constituted by the Deputy President stayed the operation of the orders made 11 March 2016 terminating the residential tenancy agreement and granting vacant possession of the premises to the respondent. Such a stay was made until further order of the Tribunal and conditional upon the appellant complying with the terms of the residential tenancy agreement. 6. Whilst we have allowed the appeal and will set aside the orders that were made by the Tribunal, we consider it necessary, having regard to the nature of the allegations made and the evidence that was before the Tribunal which indicated that the appellant had engaged in some recent anti-social conduct at least with respect to Mr Bustos, to make our orders conditional upon the appellant complying with the terms of the residential tenancy agreement entered into with the respondent. 7. The orders we therefore make are that conditionally on the appellant complying with the terms of the residential tenancy agreement dated 8 November 1999 between him and the respondent: 1. Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013, the time for the filing of the amended notice of appeal be extended to 30 March 2016; 2. Grant leave to appeal. 3. The Appeal is allowed. 4. Set aside orders 2 and 3 made 11 March 2016 5. Remit the matter to the Tribunal differently constituted to be determined according to law. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2018