Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hall v NSW Land & Housing Corporation [2018] NSWCATAP 257 Hearing dates: 17 October 2018 Date of orders: 30 October 2018 Decision date: 30 October 2018 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member S Thode, Senior Member Decision: 1. Appeal allowed. 2. The decision of the Tribunal below is set aside. 3. The matter is remitted to the Tribunal (to be differently constituted) for a new hearing on all issues. Catchwords: LEASES AND TENANCIES – social housing tenancy – drug offence – termination order – disability exception – proof – onus of proof – unchallenged evidence – overlooked evidence – inadequacy of reasons Legislation Cited: Anti-Discrimination Act 1977 (NSW), s 4 Residential Tenancies Act 2010 (NSW), ss 91, 154D(3)(b) Drug Misuse and Trafficking Act 1985 (NSW). Cases Cited: Bauskis v Liew [2013] NSWCA 297 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Taupau v HVAC Constructions (Queensland) Pty Ltd and Ors [2012] NSWCA 293 Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 Category: Principal judgment Parties: Janine Hall (appellant) NSW Land & Housing Corporation (respondent) Representation: Counsel: D Woods (appellant) J O'Connor (respondent) Solicitors: Legal Aid NSW (appellant) Department of Family and Community Services (respondent) File Number(s): AP 18/14468 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 8 March 2018 Before: M Rogers, General Member File Number(s): SH 17/46035 REASONS FOR DECISION 1. This is an appeal from a decision of the Tribunal terminating the appellant's social housing tenancy agreement with the respondent. 2. On 7 February 2018 the appellant pleaded guilty to a number of offences one of which fell within the offences referred to in s 91(1)(a) of the Residential Tenancies Act 2010 (NSW) (the "RTA"). 3. Accordingly, in the present case and pursuant to s 154D(1)(b) of the RTA, the Tribunal was required to make a termination order unless satisfied [per s 154D(3)(b) of the RTA] that the making of that order would likely result in undue hardship being suffered by a person suffering from a disability [as defined in the Anti-Discrimination Act 1977 (NSW)] who was occupying the property. 4. There was no dispute the appellant was occupying the property. The appellant claimed that she was suffering from a disability. The Tribunal found that the appellant was not suffering from a disability at the time the order for termination was going to be made. The Tribunal therefore made a termination order on 8 March 2018 as it was required to do so having made the finding of no disability. 5. The appellant appeals from that decision. 6. For the reasons that follow we are of the opinion that the appeal should be upheld. We infer that the Tribunal overlooked or failed to consider evidence critical to the central issue in the case, being that of disability. Overlooking or failing to consider that evidence was an error of law. Justice requires a new hearing. Background 1. In about September 2016 the appellant entered into a social housing tenancy agreement with the respondent. 2. On 7 February 2018 she pleaded guilty to four criminal offences. One of those offences involved the supply of a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 (NSW). 3. That conviction gave rise to a right accruing to the landlord entitling it to apply to the Tribunal to terminate the social housing tenancy under s 91 of the RTA. 4. Section 91(1)(a) of the RTA relevantly provided: 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 ... has intentionally or recklessly caused or permitted: (a) the use of the residential premises ... for the purposes of the ... supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or … 1. Thus, and there was no dispute between the parties that, the drug offence referred to at [8] above led to the conclusion that, per s 91, the tenant appellant had intentionally or recklessly caused or permitted the use of the premises for the supply of a relevant prohibited drug. 2. The respondent landlord therefore exercised its rights arising from s 91(1)(a) and applied for a termination order of the tenancy. 3. On that application the Tribunal was obliged to make that termination order under s 154D(1)(b) of the RTA unless one of several exceptions was established. Relevantly to this case, s 154D provided: 154D Tribunal required to make termination order in certain circumstances (1) Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord under a social housing tenancy agreement if: (a) ... (b) an application for the order is made under section 91 and the Tribunal is satisfied of the matters set out in section 91 (1) (a), or (c)... (2) ... (3) However: (a)... (b) subsections (1) and (2) do not apply if the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered by a ... person suffering from a disability within the meaning of the Anti-Discrimination Act 1977 who is occupying or jointly occupying the social housing premises, ... 1. Before the Tribunal the appellant contended that she suffered from a disability referred to in s 154D(3)(b), undue hardship would likely be suffered by her if the termination order was made and therefore the Tribunal was not obliged to make a termination order. 2. The Anti-Discrimination Act 1977 (NSW) defined "disability" in s 4 as follows: Disability means: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 1. The appellant relied on (e) of that definition. 2. If the appellant established both that she suffered from a relevant disability, and would likely suffer undue hardship, the effect of s 154D(3) was to render inapplicable the mandatory termination order provision being s 154D(1). In those circumstances the Tribunal retained a discretion to have made a termination order under s 91(1)(a) of the RTA taking into account the matters set out in s 154E, but was not obliged to do. 3. The Tribunal below found that the appellant, at the time of the hearing (and thus at the time a termination order would be made) did not suffer from a disability within the meaning of the Anti-Discrimination Act. As that finding had the effect of negating the appellant's defence to the mandatory termination order required to be made under s 154D(1), the Tribunal did not need to, and did not, consider or make any findings as to undue hardship or, assuming both disability and undue hardship were established, whether a termination order would still be made. 4. The appellant appeals from that decision and raised a number of grounds of appeal. As the appellant succeeds on one of those grounds, we need only refer to that ground in these reasons. That ground relates to what is broadly described as adequacy of reasons. The Proceedings Below 1. There was little evidence adduced in the Tribunal below which went to the issue of the appellant's psychological state at the time of, or reasonably proximate to, the hearing before the Tribunal and thus whether she fell within s 4 (e) of the definition of disability in the Anti-Discrimination Act. 2. This may have been the result of a misunderstanding as to the temporal element required to be proved under s 154D(3) of the RTA. The Tribunal's approach was that the appellant needed to establish she was disabled at the date the termination order was otherwise to be made. In written submissions on this appeal the appellant argued that this approach was erroneous, but later, in oral submissions, the appellant accepted (as did the respondent) that the Tribunal's reasoning on this temporal element was correct. We also agree that that was the correct approach. 3. Also in written submissions the appellant contended, in substance, that the onus of proof in relation to the issue of disability lay on the respondent. This contention was not pursed in oral submissions and correctly so. Section 154D(3)(b) operates as a defence to the making of a mandatory termination order and thus the onus of proof falls on the party asserting that that defence applies. As the legal maxim goes, 'she who asserts must prove'. 4. Before the Tribunal the appellant had tendered a medical report from Dr P F Jones dated 23 February 2018, some 13 days prior to the hearing before the Tribunal. 5. Dr Jones' report stated that he had examined and reviewed the appellant on 23 February. He noted the appellant's history of depression and anxiety over a lengthy period. 6. Dr Jones noted that the appellant had "more recently ... been managed with counselling and psychiatric management" (although he did not specify how recent was "more recently"). 7. Dr Jones also noted that the appellant "continues to require assistance with her anxiety and depression." He opined that any forced move from her present tenancy would "reduce considerably her chance of continuing improvement with her mental health." 8. The Tribunal said that it had considered Dr Jones' report and recorded the matters we have set out at [24] above. However, the Tribunal made no reference to those parts of Dr Jones' report which we have set out at [25] and [26] above. 9. When considering the question of disability, the Tribunal said the following: "However, all the evidence that was before me today that I have considered, and I will go through that, suggests that at this point in time, Ms Hall does not meet the definition of disability for the purposes of the act (sic)." 1. The Tribunal then referred to evidence that the appellant worked for the Salvation Army (one day per week as part of her community service order resulting from her drug conviction), that she was enjoying that work and was able to do it. The Tribunal said that it had looked at the evidence (unspecified) that said the appellant had stabilised her condition (the condition was not specified), that the appellant had entered into a de-toxification program for three months, done some "rehab" and attended Narcotics Anonymous twice weekly. The Tribunal noted that the appellant was searching for work and was receiving a Newstart allowance rather than a disability allowance. 2. The Tribunal then said that although all of those factors (sic) were indicative of a very vulnerable person who had had a harsh life and who was striving to escape from past chaos, the "evidence is not such that it supports a finding of disability at this time ..." 3. The Tribunal then made a termination order. Ground of Appeal 1. Although only contained in the appellant's grounds of appeal on a most generous reading, but with the proper and generous consent of the respondent, the appellant appealed, inter alia, on the basis that the Tribunal had failed to give adequate reasons in relation to the finding of no disability. Decision 1. Inadequate reasons can take a number of different forms. In this case it was overlooking or failing to consider critical evidence. How the overlooking of or failing to consider critical evidence is inadequate reasoning and an error of law was explained by McColl JA, with whom Macfarlan JA agreed, in Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260. 2. In that case McColl JA said (citations omitted): "[387] The principles concerning adequacy of reasons are well known. It is apposite, however, to consider how those principles apply in an appeal confined to a grievance in point of law. In that situation, as Macfarlan JA explained in Wilkinson, Soulemezis v Dudley (Holdings) Pty Ltd, is authority for the proposition that where a right of appeal is given only in respect of a question of law … reasons for a finding of fact 'can be treated less elaborately than [those on] an issue involving a question of law or mixed fact and law'. Nevertheless the principle that justice must not only be done but must be seen to be done remains applicable". [388] Thus, in Soulemezis, McHugh JA held that "the failure to explain the basis of the crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done" and is an error of law because the decision-maker "has not properly fulfilled the function which the law calls upon a judicial person to exercise". There will be a failure to give adequate reasons where a decision-maker ignores evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker." 1. We should also note that in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 McColl JA, with whom Ipp JA and Bryson AJA agreed, said the following about the failure of decision-makers to refer to critical evidence: "[62] In Beale (at 443) Meagher JA referred to the requirement that a judge should refer to evidence which is important or critical to the proper determination of the matter as the first of the three fundamental elements of a statement of reasons. While his Honour explained that it was unnecessary to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered, he added that where such evidence was not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it, referring to North Sydney Council v Ligon 302; see also TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 at [150] per Spigelman CJ (Mason P and Grove J agreeing). Meagher JA added that "[w]here conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to." [63] Where, as in the present case, there is documentary material arguably supporting a party's case, that material must be considered in the judge's reasons in a satisfactory way: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 (at [94]) per Kirby J." 1. In this case the existence of Dr Jones' report was expressly referred to by the Tribunal, as was one part of that report (the appellant's history of depression and anxiety). However, what was not expressly referred to was Dr Jones' evidence in that report of more recent counselling and psychiatric management, the appellant's continuing requirement for assistance with anxiety and depression, and that any forced move from her present tenancy would reduce considerably the appellant's chance of continuing improvement with her mental health. 2. That evidence conveyed that, at the time of consultation (a mere 13 days before the hearing), the appellant required assistance with anxiety and depression (the inference being that she suffered from anxiety and depression at that time) and a termination order would reduce her chances of improvement (inferring, again, that she suffered from anxiety and depression at that time). 3. Undoubtedly that evidence was thin and of arguably little weight given the paucity of identified facts relied upon and exposed reasoning process. Nevertheless, it was unequivocal in expressing the opinion that the appellant suffered from anxiety and depression at that time, and it was unchallenged. There was no challenge to Dr Jones' expertise to proffer those opinions, there was no cross-examination of Dr Jones on those opinions and there was no medical evidence tendered to the Tribunal to the contrary. That is not to say that there could or should have been a challenge to Dr Jones' expertise, could and should have been some cross-examination, or could or should have been some contrary evidence (if available). It is simply to state the fact that that evidence of Dr Jones was both unchallenged and uncontroverted. 4. Decision makers ought ordinarily accept the unchallenged evidence of a witness. In Bauskis v Liew [2013] NSWCA 297 Gleeson JA, with whom Beazley P and Barrett JA agreed, said: "[109] As to the primary judge's approach, the present case was one in which both parties failed to cross-examine the other on a relevant issue. The legal principles concerning the significance of failure to cross-examine a witness are collected in Hamod v State of New South Wales at [336]–[340] per Beazley JA. The prima facie position is that a court will accept the unchallenged evidence of a witness. This is on the principle that the party who fails to cross-examine a witness is taken to have accepted that evidence: Seymour v Australian Broadcasting Commission (1997) 19 NSWLR 219 at 236 per Mahoney JA; Knight v Maclean [2002] NSWCA 314 at [34] per Heydon JA (Meagher JA and Young CJ in Eq agreeing); Reid v Kerr (1974) 9 SASR 367 at 375. [110] However, the principle is not absolute and even if evidence is unchallenged, a party may be able to demonstrate that the evidence is inherently illogical or unreliable, or that the evidence is based on an incorrect or incomplete history or upon unproven assumptions. [111] Furthermore, even if unchallenged evidence is not shown to be defective, a court is not bound to accept it if the opposing party calls evidence of a substantial nature which contradicts it." 1. In the earlier case of Taupau v HVAC Constructions (Queensland) Pty Ltd and Ors [2012] NSWCA 293 Beazley P, with whom Basten and Macfarlan JJA agreed, said: "[130] A trial judge is not required to accept evidence merely because it is unchallenged. However, the fact that evidence is unchallenged may provide a cogent reason for its acceptance: see Bulstrode v Trimble [1970] VR 840; Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 19. In Hull v Thompson [2001] NSWCA 359 Rolfe AJA (Sheller JA and Davies AJA agreeing) noted, at [21], that "[p]rima facie if there is no cross-examination of an expert … there is no basis for a Judge not to accept the unchallenged evidence". However, it depends on the evidence in question. As Rolfe AJA stated, at [21]: … there are circumstances in which evidence in a report may be rejected or subject to criticism or doubt. This may occur where, for example, the report is ex facie illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established. However, in the absence of some such matters, there is no rational reason to not accept unchallenged evidence. See also State Rail Authority (NSW) v Brown [2006] NSWCCA 220 ; 66 NSWLR 540; Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 at [121]–[122]." 1. Those passages from Bauskis and Taupau, which are essentially comments on judicial method (per Taupau at [131]) are perhaps not as applicable in the Tribunal given the terms of s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) taken with the fact that most parties before the Tribunal are not legally represented. In relation to s 36 the Court of Appeal (McColl and Simpson JJA, Ball J) said the following in Moloney v Taylor [2016] NSWCA 199 at [30] (citations omitted): "Nevertheless, as is apparent from the provisions of s 36 to which we have referred, a body such as the Tribunal (which expression includes the Appeal Panel) is not expected to conduct its proceedings with the formality of a court of law. Rather, it is required to conduct itself with minimum formality and to reach decisions according to the substantive merits of the case, and not by reference to legal form or technicalities. Further, it is to exercise its powers speedily and economically." 1. Be that as it may, in our opinion Dr Jones' evidence should have been accepted for the reasons set out in the passages we have quoted from Bauskis and Taupau above. On the other hand, if the Tribunal considered the evidence of Dr Jones to be illogical, inherently inconsistent, based on an incomplete or incorrect history, then it was required to say as much and explain why it had come to that conclusion. 2. Thus, there was unchallenged evidence that at the time the termination order would otherwise be made, the appellant suffered from a disorder, illness or disease as referred to in the definition of disability in s 4 of the Anti-Discrimination Act. That evidence, alone or in combination with the appellant's oral evidence as to how her mental processes were affected when suffering depression and anxiety in the past, was critical to the question of whether she was suffering a disability at the time of the hearing before the Tribunal. 3. At the end of the day the Tribunal ignored evidence critical to an issue in the case which was contrary to an assertion of fact made by the respondent and accepted by the Tribunal. Thus, there was a failure to provide adequate reasons. 4. In our opinion those passages from Dr Jones' report which we have identified above were overlooked or not considered notwithstanding the Tribunal's express reference to the report. 5. We infer those critical passages were overlooked or not considered for three reasons. First, they are not expressly mentioned. Second, it would be surprising if they were considered but not referred to in the Tribunal's reasons when it was the only medical evidence on the question of disability at the time of the hearing. Third, it was not mentioned in the Tribunal's reasons after the Tribunal said: "However, all the evidence that was before me today that I have considered, and I will go through that, suggests that at this point in time, Ms Hall does not meet the definition of disability for the purposes of the act (sic)." 1. The evidence of Dr Jones did not suggest the appellant did not meet the definition of disability, and thus the Tribunal could not have accurately said, as it did say, that "all the evidence" suggested this was so unless the passages we have identified had not been overlooked. Further, the evidence expressly mentioned in the Tribunal's reasons after the passage "and I will go through that" did not included any reference to the passages in Dr Jones' report which we have identified. 2. That evidence was critical because it was the only medical evidence of disability existing at the time of the hearing, and it was contrary to the circumstantial evidence relied upon by the Tribunal in making the finding of no disability (referred to at [29] above). 3. As McColl JA said in Pollard at [63], documentary material must be considered in a satisfactory way. In this case it is not clear that those parts of Dr Jones's report we have identified were considered and we infer that they were overlooked and not considered. It conflicted with the evidence relied upon by the Tribunal and therefore the Tribunal was required to explain the basis it preferred that evidence to the evidence given by Dr Jones if that is what the Tribunal did. 4. For those reasons we are of the opinion that the Tribunal erred in law and the appeal must be upheld. 5. As the appellant has succeeded on that ground we need not consider the other grounds of appeal. Orders 1. There was some debate on the appeal what orders we should make if the appellant was successful. 2. As the temporal element required in s 154D(3)(b) is at the time a termination order may be made, and as the Tribunal below did not consider the issue of undue hardship and, assuming disability and undue hardship were established, whether a termination order should still be made, the case requires a rehearing on all issues. Orders 1. We make the following orders: 1. Appeal allowed. 2. The decision of the Tribunal below is set aside. 3. The matter is remitted to the Tribunal (to be differently constituted) for a new hearing on all issues. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2018