Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Aboriginal Housing Office v Blacklock [2019] NSWCATAP 51 Hearing dates: 22 January 2019 Date of orders: 11 March 2019 Decision date: 11 March 2019 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member D A C Robertson, Senior Member Decision: (1) Appeal allowed. (2) Orders (1) to (3) made by the Tribunal on 30 October 2018 are set aside. (3) The application be remitted to the Consumer and Commercial Division of the Tribunal, differently constituted, for hearing according to law. Catchwords: LEASES AND TENANCIES – residential tenancies – social housing – dismissal of application for termination of tenancy – whether Tribunal's reasons for dismissing application were adequate Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 Collins v Urban [2014] NSWCATAP 17 Giro Constructions Pty Ltd v Smith [2015] NSWCATAP 213 Kendray v New South Wales Land & Housing Corporation [2015] NSWCATAP 139 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Moussa Enterprises Pty Ltd v Stanford [2015] NSWCATAP 99 Orr v New South Wales Land & Housing Corporation (No.2) [2018] NSWSC 1909 Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1 Yonan v NSW Land & Housing Corporation [2017] NSWCATAP 37 Category: Principal judgment Parties: Aboriginal Housing Office (Appellant) Margaret Blacklock (Respondent) Representation: T Boyle (Appellant) S McCarthy (Respondent) File Number(s): AP 18/50077 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 8 November 2018 Before: P Harris, Member File Number(s): SH 18/18973 REASONS FOR DECISION Background to the Appeal 1. This is an internal appeal against a decision of the Tribunal in the Consumer and Commercial Division. The appellant (the AHO) is the landlord of the respondent (the tenant) pursuant to a social housing tenancy agreement dated 12 April 2014 in respect of premises at Tamworth. By the decision under appeal the Tribunal: dismissed an application by the AHO for termination of the residential tenancy; made a "specific performance order", that is an order that the tenant comply with the terms of the residential tenancy agreement "by not intentionally or recklessly cause or permit the use of the premises for any unlawful purpose"; and permitted the AHO to request the re-listing of the application if that order was not complied with. 2. It was not in dispute at the initial hearing that on 10 April 2018 Police executed a search warrant at the premises and found an unregistered firearm, a small quantity of drugs and goods believed to have been stolen. 3. An occupant of the premises, Ms Sampson, was subsequently charged with possession of an unregistered firearm, possession of a firearm while not authorised, and failure to safely store a firearm (contrary to ss 36(1), 7A(1) and 39(1)(a) respectively of the Firearms Act 1996 (NSW)). 4. The AHO commenced proceedings in the Tribunal on 26 April 2018 seeking a number of orders pursuant to the Residential Tenancies Act 2010 (NSW) (RTA), including an order for termination of the Residential Tenancy Agreement pursuant to ss 91 and 187(1)(i) of the RTA on the ground that the tenant or an occupier of the premises had intentionally or recklessly caused or permitted the use of the premises for an unlawful purpose. 5. Although the application also relied upon other offences, at the hearing of the application the AHO limited its case to rely only on the offences under the Firearms Act referred to above. 6. Section 187(1)(i) of the RTA confers on the Tribunal jurisdiction to make an order for the termination of a Residential Tenancy Agreement. 7. The Tribunal's power to do so in the circumstances outlined above was governed by ss 91, 154D and 154E of the RTA which relevantly provide: 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. 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: … (c) an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises … to be used for the purposes of: (i) storing a firearm for which a licence or permit is not held under the Firearms Act 1996, or … and the tenant or other person has been charged with an offence relating to those circumstances (whether or not the person is or has been found guilty of the offence). … (3) However: … (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 child, a person in whose favour an apprehended violence order could be made or 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, and … (4) For the purposes of the application of section 91 (1) (b) to social housing premises under this section: … (b) if the Tribunal is satisfied that an offence of a kind referred to in subsection (1) (c) … has been committed by a person on the social housing 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), the Tribunal must assume that: (i) the premises or property has been used for an unlawful purpose, and (ii) the use is sufficient to justify termination of the agreement. (5) If the Tribunal does not make a termination order as a consequence of subsection (3), the Tribunal must provide written reasons for the decision. 154E Exercise of discretion to make termination order (1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following: (a) the effect the tenancy has had on neighbouring residents or other persons, (b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, (c) the landlord's responsibility to its other tenants, (d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord, (e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal. (2) This section does not limit any other matter that may be considered by the Tribunal under this Act. 1. The AHO relied upon s 91(1)(b) and submitted that s 154D(1)(c) required the Tribunal to make a termination order as Ms Sampson, a person occupying the premises, had intentionally or recklessly permitted the premises to be used for the purposes of storing a firearm for which a licence or permit was not held under the Firearms Act and Ms Sampson had been charged with an offence relating to that circumstance. 2. It was not in dispute that the tenant suffers from a disability within the meaning of the Anti-Discrimination Act 1977 (NSW). The tenant asserted that she and children who lived with her would suffer undue hardship within the meaning of s 154D(3)(b) of the RTA if the tenancy were terminated. 3. The tenant submitted that "the use of the premises was not sufficient to justify termination in that, while Ms Sampson had been reckless in relation to the firearm, the firearm was disabled, the offence was at the lower end of the spectrum of firearm offences, and the tenant was unaware of the existence of the firearm". 4. The tenant gave evidence, including evidence that she had been unaware of the existence of the firearm and would not have tolerated it being on the premises if she had known of it. The Member accepted that evidence. 5. The AHO submitted that the provisions of s 154D(3)(b) relating to undue hardship were not applicable in respect of the tenant because she was the tenant and therefore not "occupying or jointly occupying" the premises. The Member, correctly in our view, rejected that submission, noting that the words "person … occupying or jointly occupying the social housing premises" included the tenant under a residential tenancy agreement. 6. The AHO further submitted that the tenant had not established that she, or any child occupying the premises, would be likely to suffer undue hardship in the event the tenancy was terminated. 7. The Member concluded that the tenant would suffer undue hardship if a termination order was made and that the facts of the matter did not warrant the making of a termination order. As the AHO's central ground of appeal is that the Member's reasons were inadequate, it is appropriate to set out the Member's reasoning in full: 25. In relation to sect 91 it is clear that the occupant Ms Sampson used the premises for an unlawful purpose. Sect 154D(b)(ii) then provides that an offence of storing a firearm for which a licence or permit is not held, is sufficient to justify termination. 26. I have considered the matters set out at sect 91(2)(a)-(c) and find that the facts of this matter do not warrant the making of a termination order. 27. Turning then to sect 154D and whether that section mandates a termination order. The applicant argued that the tenant, despite suffering a disability, was not one of the persons referred to in sect 154D(3)(b) and that 154D(3) does not therefore apply, and according[ly] the Tribunal must make a termination order in accordance with the requirements of sect 154D(1)and (2). A tenant is defined in sect 3 of the Act as including "the person who has the right to occupy residential premises under a residential tenancy agreement". This definition brings the respondent under the meaning of "person occupying" in 154D(3)(b), and in turn means that sub sections (1) and (2), which mandate a termination order for a firearm offence, do not apply if it is found that the tenant would be likely to suffer undue hardship. 28. Given the tenant's age at 51 years and disabilities, I find she would suffer undue hardship in that she would likely become homeless as she would be forced outside of the government supported housing services. 29. I therefore exercise my discretion not to order termination. In doing so I have considered the matters set out at sect 154E including the evidence tendered by the applicant as to the history of the tenancy. Findings 30. The occupant, Ms Sampson, has intentionally or recklessly caused or permitted: the use of the residential premises for an unlawful purpose and that the use is sufficient to justify termination. 31. The tenant was unaware of the existence on the premises of the firearm. 32. Having considered the matters set out at sect 91(2)(a)-(c), I find that the facts of this matter do not warrant the making of a termination order. 33. As to section 154D, the tenant suffers from a disability within the meaning of the Anti-Discrimination Act 1977 as referenced in sect 154D(3) and the definition of "Tenant" as being the person entitled to occupy, brings the respondent within the definition of "a person...who is occupying...the premises". 34. The tenant would suffer undue hardship if termination and possession were ordered. Sections 154D(1) and (2), which provide that a termination order must be made in the case of firearm offences making use of social housing premises for storage, therefore do not apply. 35. Nothing in sect 154D, after the application of 154D(3) is confirmed, prevents the Tribunal from exercising a discretion not to order termination. I therefore exercise such discretion and dismiss the application for orders under sect 91, 123 and 187(1)(i). The Scope and Nature of Internal Appeals 1. By virtue of s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel. 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (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. Grounds of Appeal 1. Although AHO's Notice of Appeal identified four grounds of appeal, at the hearing Mr Boyle of counsel, who appeared for the AHO, acknowledged that there was effectively only one ground, that was that the Member failed to provide sufficient or adequate reasons for his decision. 2. A failure to provide adequate reasons is an error of law in respect of which the leave of the Appeal panel is not required: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(1)]. The Parties' submissions 1. The AHO submitted that the Member's decision in respect of the matters set out in s 91(2) of the RTA does not disclose: "how the Tribunal Member has considered the conflicting evidence and submissions as to the characterisation of the nature of the unlawful use, the existence or otherwise of any unlawful uses and, in particular, the previous history of the tenants. Simply saying that those matters have been considered is not enough to discharge the obligation to give reasons". 1. The AHO also submitted that, in relation to "the question of undue hardship and the associated element of homelessness", it is unclear from the reasons "what relevant evidence was considered, what the material findings of fact were and how those critical findings of fact were determined". 2. The tenant submitted, referring to Collins v Urban at [50], that the decision is "more than sufficient to provide the parties with 'everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal'". 3. The tenant also submitted that "the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error", quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272] (which has been cited in relation to decisions of the Tribunal in Kendray v New South Wales Land & Housing Corporation [2015] NSWCATAP 139 at [52] and Giro Constructions Pty Ltd v Smith [2015] NSWCATAP 213 at [36]). 4. The tenant submitted, in particular, that there was ample evidence that the tenant would suffer hardship if the tenancy was terminated. The evidence to which the tenant referred included: * the tenant's own evidence that she, her daughter and her daughter's children would be homeless if the tenancy was terminated; * the tenant's daughter's evidence to the same effect; * a letter from a social worker at the Tamworth Aboriginal Medical Service which refers to the stress arising from fear of homelessness and states "I would be deeply concerned for Margaret's welfare if she were evicted from the property and did not have her daughter caring for her in the same home"; and * a medical report from a doctor at the Tamworth Aboriginal Medical Service also referring to stress arising due to the tenancy matter and fear of homelessness. Consideration 1. In Orr v New South Wales Land & Housing Corporation (No.2) [2018] NSWSC 1909 Adamson J at [66] noted that s 62(3) of the NCAT Act sets out the content of the Tribunal's statutory obligation to give reasons. 2. Section 62(3) provides: (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. 1. Her Honour also stated that s 62(3) "is to be understood in the context of the authorities on the obligation to give reasons". 2. We note in this context that the Member, in applying s 154D(3) of the RTA to avoid making a termination order, was required by s 154D(5) to provide written reasons for his decision to do so. 3. In Moussa Enterprises Pty Ltd v Stanford [2015] NSWCATAP 99 an Appeal Panel set out, by reference to Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, five principles relevant to the adequacy of reasons: (1) The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice. (2) The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. (3) While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties. (4) The reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted. (5) Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. 1. In Orr v NSW Land and Housing at [66], Adamson J added to those principles: "the minimum requirement in the context of a potential appeal: that the appellate body must not be left to speculate from collateral observations as to the basis of a particular finding". 1. We also note the discussion of the requirement to give reasons in Collins v Urban at [43] to [61] and the statement of Basten JA (with whom Beazley JA agreed) in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]: "When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality." 1. In our view, for the reasons that follow, the Member's reasons for determining that the tenant would suffer undue hardship if her tenancy were terminated, and for determining that the circumstances of the case did not warrant termination, were not adequate. Undue Hardship 1. The Member's reasoning for the finding that the tenant would suffer undue hardship is entirely contained within paragraph [28] of the decision (set out at [14] above). The Member did not address the particular evidence relied upon by the tenant or consider the submissions of the AHO concerning evidence which, the AHO submitted, indicated the tenant might not be made homeless, such as the fact that the tenant had disclosed in her own evidence that she does not claim a rental subsidy for the premises. The AHO submitted that that fact would suggest the tenant could find a home on the open market. The Member failed to explain why he nevertheless found that the tenant would become homeless. 2. There is neither exposure of the reasons for resolving a point critical to the contest between the parties, nor any analysis of evidence competing with evidence apparently accepted and no explanation given for rejecting, or discounting, it. 3. We also note that, although the Member determined that termination of the tenancy would likely result in the tenant becoming homeless, and, clearly, becoming homeless would constitute hardship to the tenant, the Member undertook no analysis of the question whether such hardship would constitute "undue hardship" in the circumstances (see Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 at [40] – [54]). Section 154E 1. In considering whether to make a termination order for a social housing tenancy agreement the Tribunal was required to have regard to the five matters set out in s 154E(1). The only reference in the Member's reasons to consideration of those matters was in paragraph [29] which merely stated that the Member had considered the matters set out at s 154E "including the evidence tendered by the applicant as to the history of the tenancy". 2. The evidence before the Member included evidence of a previous application to the Tribunal and consent orders entered into on 10 August 2017 which provided "the tenant must comply with the terms of the residential tenancy agreement by not causing or permitting the premises to be used for any illegal purpose". The previous application had related to alleged offences of storage of stolen goods on the property and sexual assault of a female person on the premises. 3. The Tribunal is not required to enquire into and specifically consider each of the criteria in s 154E(1) but rather only those that have "weight, significance or relevance" (Yonan v NSW Land & Housing Corporation [2017] NSWCATAP 37 at [48]). In the absence of evidence of the effect of the tenancy on neighbouring residents or other persons, it might be accepted that consideration of sub-paragraphs (a) and (b) of s 154E(1) was not necessary in the circumstances of this case. However, consideration of the matters referred to in sub-paragraphs (d) and (e) of s 154E(1) was clearly necessary. 4. The statement that the matters set out at s 154E had been considered "including the evidence tendered by the applicant as to the history of the tenancy" was not sufficient to demonstrate that the Member had given adequate consideration to the evidence before the Tribunal in relation to the history of the tenancy. It was necessary for the Member to identify in broad terms what evidence relevant to those matters had been taken into account and to determine, at the least, whether the evidence established that there had been a breach of the previous orders (ie whether the tenant had "caused or permitted" the premises to be used for any illegal purpose). The Member was further required to provide a reasoned explanation why the Member did not consider the evidence before him concerning the history of the tenancy and compliance with previous orders was sufficient to justify the termination of the tenancy. Section 91(2) 1. Similarly, in considering the matters set out s 91(2), it was not sufficient to state, as the Member did at paragraphs [26] and [32], that he had considered the matters set out at s 91(2) (a)-(c) and found that the facts of the matter did not warrant the making of a termination order. It was necessary for the Member to make clear the basis of his findings in that regard and identify the evidence taken into account in reaching those findings. Conclusion 1. Accordingly we accept the AHO's submission that the Member's reasons are inadequate and that the decision should be set aside. 2. Although the Member dismissed the AHO's application for orders under ss 91, 123 and 187(1) (a), (h) and (i), the Tribunal did make a specific performance order pursuant to s 187(1)(b) requiring the tenant to comply with the terms of the residential tenancy agreement by not intentionally or recklessly causing or permitting the use of the residential premises for any unlawful purpose and permitting the renewal of the application in the event those orders were not complied with. 3. The AHO seeks that all orders made by the Member, including the specific performance order, be set aside and that the matter be re-determined by the Appeal Panel or alternatively that the proceedings be remitted to a differently constituted Tribunal for a new hearing according to law. 4. We must consider therefore whether it is necessary to remit the matter to the Consumer and Commercial Division for determination or whether we should exercise the power conferred by s 81(2) of the NCAT Act to consider the application ourselves and make a decision in substitution for the decision under appeal. 5. We have concluded that we should not attempt to exercise that power as it is clear that doing so would require a further hearing and it would be more efficient that such a hearing be held before a Member of the Tribunal. 6. We further consider that, were the matter to be remitted to the same Member for rehearing, there would be "a reasonable likelihood that [the Member] will be perceived to have pre-judged an issue to be remitted to him" (see Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, at [121(7)]; Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 at [19] - [21]). Accordingly, it is appropriate that, as sought by the AHO, we order that the proceedings be remitted to the Consumer and Commercial Division, differently constituted. 7. In light of the time that has passed since the original decision we consider that the parties should have the opportunity to lead any further evidence they may consider appropriate in relation to the issues: 1. Whether the tenant would suffer undue hardship if the tenancy were terminated; and 2. Whether, if so, the tenancy should nevertheless be terminated. 1. Accordingly we order: 1. Appeal allowed. 2. Orders (1) to (3) made by the Tribunal on 30 October 2018 are set aside. 3. The application be remitted to the Consumer and Commercial Division of the Tribunal, differently constituted, for hearing 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: 11 March 2019