Adjrun v Chief Executive Officer (Housing)
[2022] NTSC 42
•17 June 2022
CITATION: Adjrun v Chief Executive Officer (Housing) [2022] NTSC 42
PARTIES: ADJRUN, June Kathryn
v
CHIEF EXECUTIVE OFFICER (HOUSING)
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2021-03464-SC
DELIVERED: 17 June 2022
HEARING DATE: 11 March 2022
JUDGMENT OF: Grant CJ
CATCHWORDS:
LEASES AND TENANCIES – Residential tenancies — Appeal from Northern Territory Civil and Administrative Tribunal
Whether error of law in making orders for termination and possession – Tribunal conducted review as ‘rehearing’ and applied correct onus and standard of proof – No error of law in the finding that the property presented a fire hazard – Finding that property a fire hazard not determinative of application for termination and possession – No failure to provide adequate reasons in accordance with the statutory scheme – Decision not unreasonable or irrational in Wednesbury sense – Application for leave to appeal allowed – Appeal dismissed.
Northern Territory Civil and Administrative Tribunal Act 2014 (NT) s 10, s 45, s 46 s 52, s 53, s 105 s 141
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, Booth v An Assessor & Anor [2019] NTSC 89, Briginshaw v Briginshaw (1938) 60 CLR 336, Byrne v Legal Services Commissioner [2009] VSC 210, East Melbourne Group v Minister for Planning (2008) 23 VR 605, Haines v Leves (1987) 8 NSWLR 442, Minister for Immigration & Citizenship v Li (2013) 249 CLR 332, Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465, Perkins v County Court of Victoria (2000) 2 VR 246, Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, Public Service Board (NSW) v Osmond (1986) 159 CLR 656, R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644, Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555, Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32, Waterford v Commonwealth (1987) 163 CLR 54, Wilson v Lowery (1993) 4 NTLR 79, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, referred to.
REPRESENTATION:
Counsel:
Applicant:JB Lawrence SC
Respondent: LS Peattie
Solicitors:
Applicant:Piper Ellis Lawyers
Respondent: Hutton McCarthy
Judgment category classification: B
Judgment ID Number: GRA2202
Number of pages: 39
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINAdjrun v Chief Executive Officer (Housing) [2022] NTSC 42
No. 2021-03464-SC
BETWEEN:
JUNE KATHRYN ADJRUN
Applicant
AND:
CHIEF EXECUTIVE OFFICER (HOUSING)
Respondent
CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 17 June 2022)
This is an application for leave to appeal from the review decision of the Northern Territory Civil and Administrative Tribunal (the Tribunal) made on 14 October 2021. That decision confirmed an original decision by the Tribunal made on 24 August 2021 to terminate the applicant’s tenancy of the property at 20 Livistona Road, Karama in the Northern Territory of Australia (the premises).
Under s 141 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT) (NTCAT Act), an appeal to this Court from a decision of the Tribunal is confined to a question of law and requires the leave of this Court.
Proposed grounds of appeal
When the application was first filed on 5 November 2021, the applicant was self-represented. The affidavit which was filed with the application for leave identified three proposed grounds of appeal, viz:
(a)that the Tribunal failed to take into account evidence in relation to the fire risk at the premises and the applicant’s plan to remedy the breaches of the tenancy agreement;
(b)that the Tribunal failed to accept the applicant’s offer, made during the course of the hearing, to permit the fire and public housing authorities to conduct an inspection of the premises; and
(c)that the Tribunal erred by relying on photographs taken prior to 24 August 2021 which did not accurately reflect the state of the premises at the time of the review hearing.
The applicant subsequently secured legal representation, and on 4 March 2022 counsel for the applicant filed Further Amended Proposed Grounds of Appeal. That document abandoned the grounds of appeal identified in the affidavit filed on 5 November 2021, and identified the following grounds of appeal:
(a)The Tribunal erred in law by taking into account an irrelevant consideration, namely the applicant’s legal public housing entitlement in relation to the subject property at 20 Livistona Road, Karama.
(b)The Tribunal erred in law in rejecting the applicant’s submission that, as a Larrakia woman upon whose land the premises was built, the applicant had superior title through her continued sovereignty over, and thereby ownership of, that property.
(c)The Tribunal erred in finding that the premises were a fire hazard.
(d)The Tribunal failed to take into account the fresh evidence relating to the premises being a fire hazard.
(e)The Tribunal failed to take into account the fresh evidence relating to the improvements made to the condition of the premises.
(f)The applicant was denied procedural fairness during the Review Hearing.
(g)The Tribunal erred in not conducting the Hearing as a rehearing.
(h)The Tribunal erred in not applying the applicable onus of proof and standard of proof.
When the application came on for hearing, counsel for the applicant abandoned grounds (a) and (b) above, and did not pursue ground (e). However, as the applicant’s submissions were developed at hearing, it became apparent that the substance of some of those submissions was not directed to or reflected in the subsisting grounds of appeal. With the consent of the respondent, counsel for the applicant was given leave to advance the following further grounds of appeal:
(a)The Tribunal failed to provide adequate reasons for the finding at paragraph [72] of the Reasons for Decision that the property was a fire hazard.
(b)The Tribunal’s decision as a whole was legally unreasonable in the Wednesbury sense.
The parties filed further written submissions in relation to those additional grounds of appeal.
Background and procedural history
The facts and circumstances leading to this appeal are described in the affidavit of Thomas Alexander Hutton made on 17 November 2021, and the documents annexed to that affidavit, which was evidence before the Tribunal during the course of the review proceedings. Briefly stated, the background and procedural history are as follows.
The tenancy commenced on 20 April 2007. On 14 April 2010, the term of the tenancy was extended until 5 September 2010. On the expiry of that term, the applicant occupied the premises on a periodic tenancy until it was terminated by the order of the Tribunal which is the subject of this application for leave to appeal.
On 3 December 2020, officers from the Northern Territory Fire and Rescue Service conducted an inspection of the premises. Those officers took photographs of the premises at the time. Those photographs were subsequently before the Tribunal in its deliberations.
By Notice to Owner dated 7 December 2020, the Fire and Rescue Service advised the public housing authority that the state of the premises constituted a hazard to the occupants and adjoining properties, and required combustible material in the property to be removed and certain repairs to be undertaken. The Notice advised further that a failure to comply on the part of the owner or occupier would constitute an offence under the Fire and Emergency Act 1996 (NT).
On 15 December 2020, the public housing authority wrote to the applicant enclosing a copy of the Notice from the Fire and Rescue Service, referring to a previous discussion with the applicant concerning the state of the premises, and advising that a further inspection would be conducted on 4 January 2021 to check whether the repairs and maintenance the applicant had been required to undertake at the time of the last inspection by the public housing authority had been completed.
The letter annexed a schedule of repairs and maintenance items requiring completion in the yard of the premises and in each of the internal areas in the premises. That schedule included such items as removing rubbish and vehicles from the external area of the premises, and removing dirt and marks from the walls, floors and ceilings of all internal areas in the premises. While there was some overlap in relation to the removal of rubbish, those items were in addition to the matters identified in the Notice from the Fire and Rescue Service.
On 5 January 2021, officers of the public housing authority conducted an inspection of the premises which revealed that the applicant had not taken the remedial measures required. Those officers took photographs of the premises at the time. Those photographs were also subsequently before the Tribunal in its deliberations.
The public housing authority had dealings with the applicant during the course of March 2021 in relation to remedial measures. On 29 March 2021, the applicant failed to attend an inspection by the public housing authority directed to determining progress in undertaking those measures.
On 19 April 2021, the public housing authority issued the applicant with a Notice by Landlord to Tenant to Remedy Breach of Term of Agreement requiring her to maintain the premises in a satisfactory condition and to lawfully dispose of rubbish on the premises. The Notice advised the applicant that she was in breach of cl 20.5 of the residential tenancy agreement, which required her to ensure that the premises were not in an unreasonably dirty condition, to maintain the premises at her own expense in a neat, tidy and clean state, and to remove and lawfully dispose of any rubbish from the premises. The Notice required the applicant to take the following action:
YARD: REMOVE ANY RUBBISH/DEBRIS OR UNWANTED ITEMS, MOW THE LAWN THROUGHOUT THE YARD, REMOVE ANY VINES FROM FENCE, ADDRESS OR REMOVE ANY DERELICT CAR BODIES
DWELLING: (INSIDE) – REMOVE ANY RUBBISH OR UNWANTED ITEMS AND CLEAN THROUGHOUT THE HOUSE (FLOORS, WALLS AND CEILINGS)
The Notice required the applicant to take that action on or before 3 May 2021. As with the schedule of repairs and maintenance previously provided to the applicant, the Notice was not limited to the accumulation of rubbish or fire hazard. On 4 May 2021, officers of the public housing authority conducted an inspection of the premises which revealed that the applicant had not taken the remedial measures required. Those officers took photographs of the premises at the time. Those photographs were also subsequently before the Tribunal in its deliberations.
On 14 May 2021, the public housing authority filed an application in the Tribunal seeking an order for possession on the basis of the applicant’s failure to comply with the Notice to Remedy which had been issued on 19 April 2021. The application sought the following orders:
Pursuant to section 100A [of the Residential Tenancies Act 1999 (NT)], following failure to remedy breach under section 96B, make orders for Termination and Possession in favour of CEO (Housing) for the premises at 20 Livistona Road Karama NT 0812.
The section of the application form titled ‘Grounds for Application’ gave a summary of the history which is set out above, together with the following matters:
[The applicant] has a lengthy history of maintaining the premises in an unreasonably dirty condition, negligently causing damage to the premises causing her to be in breach of section 51 of the Residential Tenancies Act 1999 and the Tenancy Agreement.
[The applicant] has consistently throughout her tenancy been offered assistance through Tenancy Support Programs and has either declined offers of support or not engaged with service providers, resulting in support being withdrawn by respected providers:
· Mission Australia 6 January 2017 – 29 March 2017
· Larrakia Nation 7 September 2018 – 27 February 2019
Again, the application was not limited, or even directed, to the accumulation of rubbish or fire hazard. The public housing authority also filed with that application a record of communications with the applicant between 12 March 1997 and 14 May 2021 in relation to the management of the tenancy. That record disclosed a history of dealings with the applicant dating back to February 2007 in relation to the unsatisfactory state of the premises.
The application for termination and possession was heard by the Tribunal on 1 June 2021. The applicant did not attend at that time, and the Tribunal made an order terminating the tenancy. The applicant subsequently made application to the Local Court to reopen the proceedings. The public housing authority consented to that application. On 21 June 2021, the Tribunal made an order to reopen the proceedings, and adjourned the matter to 19 July 2021.
On 19 July 2021, the Tribunal granted the applicant a four week adjournment by consent to allow her to remedy the defects in the premises.
On 16 August 2021, the Tribunal granted the applicant a further adjournment until 24 August 2021, again by consent, to allow her to remedy the defects in the premises.
On 22 August 2021, the applicant made an application for a third adjournment for a period of two weeks, which was refused.
On 23 August 2021, staff from the public housing authority conducted a further inspection of the premises and took photographs. The report of that inspection covered the external area and each internal area of the premises broken down into the different elements of those areas. Each element was given a status grading of either ‘Satisfactory’, ‘Not clean’, ‘Unreasonably Dirty’, ‘Not functioning’ or ‘Damaged’. Where the grading given was below ‘Satisfactory’, comments were provided in explanation of the grading. Many of the items in both the external and internal areas of the premises were rated either ‘Not clean’, ‘Unreasonably Dirty’ or ‘Damaged’, and those ratings were directed to elements such as the ceilings, walls, floors, doors and windows. The inspection was not limited or directed to fire hazard. The applicant was present during the course of the inspection and signed the inspection report having indicated she did not wish to be sent a copy of the report.
On 24 August 2021, the Tribunal proceeded to hear the application. The questions which presented to the Tribunal in determining the application were whether the public housing authority had given valid notice; whether the applicant was in breach; whether the applicant had failed to remedy the breach within the time specified in the notice; and whether the public housing authority had commenced the application within time. At the conclusion of the hearing the Tribunal ordered that the tenancy was terminated and that the premises be vacated by 14 September 2021. In the course of its Reasons, the Tribunal made reference to the actions required under the Notice to Remedy, found that the property was in no better condition than it was when the inspections were conducted in December 2020 and May 2021, found that the state of the premises remained ‘unacceptable’, and found that the premises constituted a fire hazard and a health risk.
On 30 August 2021, the applicant filed an application for internal review of that decision. Various grounds for the application were identified in Initiating Application. They included that the decision failed to take into account the impact of the orders on the applicant and her family; the decision failed to take into account the impact the pandemic lockdowns and the illness of the applicant’s mother had on the applicant’s ability to remedy the breaches; the decision accorded undue weight to the applicant’s failure to take assistance from Larrakia Nation or to spend funds raised by the community to remedy the breach; and the Tribunal erred in finding that the property was a fire hazard, unsafe and uninhabitable.
On 13 September 2021, the Tribunal listed the matter for a review hearing on 22 September 2021. At that same time, the Tribunal refused to stay the orders which had been made on 24 August 2021 having regard to the public housing authority’s indication that it would not seek to enforce the orders before the application for review had been determined. On 15 September 2021, the applicant filed an application in the Supreme Court for an order staying the orders of the Tribunal. With the consent of the parties, that application was adjourned until the application for review before the Tribunal had been determined.
The Tribunal conducted the review hearing on 22 September 2021. During the course of those proceedings the applicant and a friend with legal qualifications made submissions on her behalf. Although the applicant had previously indicated that she may seek to tender photographs of the premises at the hearing, photographs of the premises were not tendered or otherwise provided.
By decision dated 14 October 2021, the Tribunal affirmed the previous order terminating tenancy and requiring vacant possession. In doing so, the Tribunal noted that the premises had been in an unsatisfactory condition for many years, the public housing authority had offered tenancy support services to the applicant on multiple occasions, and that the applicant had repeatedly declined assistance in that respect.
On 5 November 2021, the applicant filed this application for leave to appeal and applied for a stay of the orders made by the Tribunal. The application for a stay was heard by this Court on 24 November 2021, and subsequently dismissed.
Against that background, it is convenient to deal with the grounds of appeal in the order in which they were addressed by the parties in the course of submissions.
Rehearing and the onus and standard of proof
What the parties described in written submissions as proposed grounds 5 and 6 were that:
(a)The Tribunal erred in not conducting the hearing as a rehearing.
(b)The Tribunal erred in not applying the applicable onus of proof and standard of proof.
Sections 45 and 46 of the NTCAT Act relevantly provide:
45 Rehearing
The Tribunal must review a reviewable decision by way of rehearing.
46 Proceeding for review of reviewable decision
(1) The objective of the Tribunal exercising its review jurisdiction is to produce the correct or preferable decision.
(2) A proceeding in the Tribunal's review jurisdiction will include:
(a)an examination of the evidence or the material before the decision maker; and
(b)a consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for a rehearing.
(3) The reasons for decision provided by the decision maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding in the Tribunal's review jurisdiction.
The applicant accepts that a ‘rehearing’ under those provisions involves examining the evidence of material before the Tribunal in the original proceedings, together with any further evidence or material which may be admitted for the purpose of the rehearing. However, the applicant says that in the conduct of that rehearing the respondent bore the onus of persuading the Tribunal on the balance of probabilities that the making of orders for termination and possession was ‘the correct or preferable decision’. The applicant’s essential contention in this respect is that the Tribunal fell into error by approaching the matter on the basis that the applicant bore the onus of adducing evidence to prove that circumstances had changed since the time of the inspection on 23 August 2021, which was the day prior to the orders made in the original decision. The adjunct to that submission was that because of the serious nature of the consequences that orders for termination and possession would have for the applicant, the Tribunal was required to be satisfied that the facts upon which the orders were properly made were proven by clear and cogent evidence in accordance with Briginshaw v Briginshaw.[1]
There can be no doubt that the Tribunal appreciated the nature of the function it was required to perform in conducting the review. At the outset of the Reasons for Decision, the Tribunal observed, with reference to the relevant statutory provisions:
The NTCAT Act provides that the Tribunal must review the reviewable decision by way of a rehearing with the objective of the Tribunal being to produce the correct or preferable decision upon review.
A proceeding in the Tribunal's review jurisdiction will include an examination of the evidence or the material before the original decision maker and a consideration of any evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for a rehearing.[2]
The applicant’s contention that the Tribunal proceeded other than by way of rehearing, and on the basis that the applicant bore the onus of proof, is based entirely on the following exchange which took place during the course of the review proceedings:
THE CHAIRPERSON: I thought I saw that there had been - what, Ms Adjrun you have to understand is that if you’re asking me to review the decision, I look at the evidence that was before Mr Macrides. If you want to give me fresh evidence, you know, you’ve all got iPhones and every capacity to take photos. If you’re saying things have improved, you should have brought me some photos today saying: this is what it looks like now.
MS ADJRUN: I suppose it’s - - -
THE CHAIRPERSON: We asked you to lodge your submissions in writing, and nothing came, so - - -
MS ADJRUN: Pardon?
THE CHAIRPERSON: There was orders about lodging submissions, I understand, and we didn’t receive any in writing, so we agreed that it will be oral submissions today. But, you know, where is your evidence that anything has changed since 23 August? [3]
That discussion took place immediately following a discussion of the photographs and other materials which were before the Tribunal when it made its original decision on 24 August 2021. It was in that context that the review Tribunal was enquiring whether the applicant was seeking to adduce any evidence which might establish a change in circumstances. The antecedent discussion was consistent with the requirement that the Tribunal examine the evidence and material which had been before the original decision-maker. The enquiry of the applicant was consistent with the requirement that the Tribunal consider any further evidence or material which the parties might properly adduce. It was not a determination or indication that the applicant rather than the respondent bore the onus of establishing a proper factual and legal basis for the making of orders for termination and possession.[4] So much is apparent from the findings made by the Tribunal in the following terms:
I am satisfied as the genuineness of the file notes provided by the landlord that provide a good contemporaneous chronology of the landlord’s representative’s dealings with the tenant over many years.
I am satisfied as to the accuracy of the photographs provided by the landlord.
….
The landlord’s file notes record a litany of the tenant’s excuses over many years to explain missed inspections and her failure to keep the property in good order.
….
I had regard to all the documents that were available to the original decision maker and to the evidence and the submissions put to me by the parties at the review hearing.
….
I am satisfied:
a) that the applicant gave the respondent proper notice in accordance with s 96B and s 154 of the Act and that the breach was not remedied prior to the date specified in the notice and :
b) that the application to NTCAT was made within the 14-day timeframe required under s 96B of the Act.
I am satisfied that I have the discretion under s 100A of the Act to make an order terminating the tenancy and permitting the applicant to take possession.
There was a large volume of documentary evidence to consider including communications between the parties by email and letter, the photographs of the property taken at various times between December 2020 and August 2021, and the notes taken by various housing officers over many years relating to the landlord’s dealings with the tenant and with this tenancy generally.
I am satisfied based on all the evidence that the premises have been in a dirty and cluttered condition for many years and that the landlord has tried on numerous occasions over the years to have the tenant clean up the property. The landlord has offered tenancy support services on multiple occasions as is evidenced from the notes kept by various housing officers, but the tenant has repeatedly declined assistance. On many occasions the tenant has made it difficult or impossible for the landlord to inspect the property or to contact her and that pattern has continued to almost the date of the hearing.
….
The photographs show premises are in a chaotic and squalid condition both internally and externally, cluttered with possessions and rubbish, and unfit for human habitation. The tenant has been given multiple opportunities over many years to clean and clear this property but has failed to do so.[5]
The matters at issue in the rehearing are also relevant to the applicant’s contentions concerning the nature of that process and where the onus of proof lay. The applicant was principally represented at the rehearing by Mr Reynolds, who is a qualified lawyer and who appeared as ‘a support person’ and ‘to present some arguments that go towards [the applicant’s] application’.[6] Many of the submissions made by Mr Reynolds were directed to the assertion that the Tribunal’s original decision was vitiated by failing to take into account relevant considerations and taking into account irrelevant factors, largely concerning questions of hardship.[7]
However, the ultimate thrust of Mr Reynolds’s submissions was that ‘a bit more time [to remedy the defects] is the correct or preferable decision’.[8] The Tribunal correctly took those submissions to mean that there was ‘no dispute with the fact that there is clearly a serious breach of the terms of the lease in terms of the state of the household and the property’.[9] There was ultimately no assertion that the Tribunal had erred in its original decision by finding that by reason of the state of the premises the applicant was in breach of the terms of the lease and had failed to remedy that breach. The contention was that ‘[t]he original decision wasn’t reasonably open to the Tribunal after balancing all the relevant factors that were at play in favour of granting [the applicant] additional time to remedy the breach against those that weighed against granting additional time’.[10]
The order sought by the applicant from the Tribunal on review appears to have been for either an adjournment of the review proceedings, or perhaps the dismissal of the respondent’s application for orders for termination and possession with the requirement that it serve a further Notice to Remedy if the applicant again failed to remedy the breach. Mr Reynolds’s submission in that respect was:
Indeed for these reasons we ask you, Member, today to consider substituting the Tribunal’s 24 August decision with the correct decision to grant Ms Adjrun a small period of additional time to factor in those lost days for her to remedy the breach …[11]
The terms of the application were subsequently reiterated and refined to be that the applicant be allowed until 11 October 2021 to rectify the breaches, and for the Tribunal to then resume the hearing to determine whether orders for termination and possession should be made.[12] However, two matters must be recognised in relation to the terms of that application. First, the applicant had previously been provided with multiple adjournments by consent, yet had failed to take remedial action. Second, the review proceedings were concerned primarily with whether the applicant had failed to remedy the breaches in the period required by the Notice and, in a discretionary sense only, with whether the applicant had failed to remedy the breaches by the time of the rehearing.
Even allowing for the applicant’s assertions that the fire hazard had been remedied, it was not at issue that there were other breaches which had not been remedied which lawfully grounded both the service of the Notice to Remedy pursuant to s 96B of the Residential Tenancies Act 1999 (NT), and orders for termination and possession pursuant to s 100A of that legislation. On that characterisation, the applicant’s case before the review Tribunal was not that the respondent had failed to discharge any legal or evidential burden. The case made by and on behalf of the applicant was that the Tribunal should exercise its discretion to not make orders for termination and possession in response to the failure to remedy the breach as required by the notice. That was not a matter in respect of which the respondent carried any legal or evidential onus of proof.
For those reasons, the applicant’s reference to the principle in Briginshaw has no relevance. Moreover, as the respondent submits, the principle in Briginshaw has no necessary application in tribunals where the rules of evidence do not apply.[13] Even if the principle did have application in this context, it does not alter the standard of proof to anything other than the civil standard. It requires only that a tribunal’s determination of whether the strength and cogency of the evidence is sufficient to establish facts on the balance of probabilities will depend on the nature of what it is sought to prove. The principle has its most obvious application in circumstances where some type of fraud or other improper conduct is alleged, and not every case involves issues of such importance and gravity to attract its application.
Even if it is accepted that the principle had application in these circumstances having regard to the gravity of the consequences flowing from a finding that the applicant was in breach of the terms of the lease, for the reasons already described the applicant accepted that there were breaches sufficient to ground the making of orders pursuant to s 100A of the Residential Tenancies Act. Moreover, the photographic and other documentary evidence which was before the Tribunal on review, together with the applicant’s concession that the property looked worse at the time of the rehearing than at the time the photos were taken, provided cogent evidence of the generally squalid condition of the property, consequential breaches of the terms of the lease and a continuing failure to remedy those breaches. The applicant’s concession in that respect took place following various descriptions by her and Craig Richard of efforts they had been making to pack up her possessions. The exchange in which the concession was made was as follows:
THE CHAIRPERSON: And – it’s up to you whether you – I mean, I’ve seen the photos when it was pretty bad.
MS ADJRUN: Yes.
THE CHAIRPERSON: And it was bad. How did you get into such a mess? How did it all come about that you just got a bit out of control in the house, or very out of control in terms of, you know, things everywhere. It looked like you almost couldn’t use the house, you had made such a mess of it. What was happening? Was it you that made the mess, or was it people visiting? What was going on?
MS ADJRUN: Yes, there’s a lot, there’s a lot, and, yes.
THE CHAIRPERSON: Have you got – are you able to manage those people?
MS ADJRUN: Yes, I can. I would rather not say – I would rather not (inaudible) got like that. But I would say this, that there are no cupboards in that house. There’s no cupboards whatsoever in any of the rooms, and there is – and there has been a case of me having to stack things up and pack them up or whatever. Yes, but I have had people moving things around, and particularly like now, it probably looks even worse than when we started, because me – both me and my son have been putting stuff out into the yard because we were fearful that the Sheriff was coming and to remove all the stuff, when – and it might be an unfounded fear, but that’s the reality of my fear.[14]
That exchange also demonstrated an awareness on the part of the Tribunal that the photographs which had been taken on 23 August 2021 were not necessarily reflective of the condition of the property at the time of the review hearing on 22 September 2021.
For these reasons, the applicant has not demonstrated that the Tribunal made any error on a question of law concerning the nature of the ‘rehearing’ it was required to conduct for the purpose of the review, or in relation to the onus and standard of proof which applied in the proceedings.
The finding that the premises were a fire hazard
What the parties described as proposed grounds 1, 2 and 4 were that:
(a)The Tribunal erred in finding that the premises were a fire hazard.
(b)The Tribunal failed to take into account the fresh evidence relating to the premises being a fire hazard.
(c)The applicant was denied procedural fairness during the Review Hearing.
The principles which govern the circumstances in which findings of fact may be disturbed on an appeal restricted to a question of law may be summarised as follows:[15]
(a)If in evaluating the evidence of witnesses the tribunal below prefers one account to another, that decision is a question of fact and is not reviewable on appeal. Even where the reason given for preferring one witness to another is patently wrong, no appeal will lie.[16]
(b)When making a finding of fact, if there is evidence which would support that finding, there is no error of law. That is so regardless of the tribunal’s reasons for making that finding.[17]
(c)A finding of fact cannot be disturbed on appeal on the basis that it is wrong, perverse, against the evidence or the weight of the evidence, or contrary to the overwhelming weight of evidence.[18]
(d)There will only be an error of law if there is no evidence at all to support a finding of fact which is crucial to the ultimate determination.[19]
In the application of those principles, proposed ground 1 cannot succeed given that there was evidence on which the finding that the premises were a fire hazard could be based. That evidence included the initial report from the Fire and Rescue Service; photographs of the property which had been taken as recently as 23 August 2021; that during the course of the listing and directions hearing conducted by the Tribunal on 13 September 2021 the applicant refused an offer for the Fire and Rescue Service to inspect the premises on that afternoon[20]; and the applicant’s concessions (described above) that the premises were unfit for inspection and the taking of a photographic record at the time of the rehearing[21].
Proposed ground 2 contends that the Tribunal failed to take into account ‘fresh evidence’ relating to the premises being a fire hazard. That evidence was said to be information concerning an inspection conducted by the Fire and Rescue Service on the day before the review hearing, and statements made by Mr Richard during the course of the review hearing.
The information concerning the fresh inspection was first raised in the following exchange:
THE CHAIRPERSON: I understand that it reached a point where there was consideration that your property was a fire hazard and it could - - -
MS ADJRUN: (inaudible) the other day (inaudible) because a part of it was the overgrowth of the trees and stuff. But yeah, they came back yesterday.
THE CHAIRPERSON: How big is the property? Is it just a normal - - -
MS ADJRUN: Normal. And they’s asking about the fire - the smoke alarms, and checked all the doors, and stuff about - what do they call it?
A PERSON UNKNOWN: Clear access or clear - - -
…
THE CHAIRPERSON: But the fire department - do you know about that, Ms Saad?
MS SAAD: We’re aware that the fire department inspected the property yesterday, and that they’ve come back to us saying that they inspected the outside of the property and that there was some improvement from the last inspection, but they weren’t able to actually go inside the premises and see the inside of the house.[22]
At a later point in the proceedings, the respondent’s representative reiterated that although the Fire and Rescue Service had attended at the premises the previous day and advised that there was some improvement to the outside of the premises, they had been unable to inspect the inside of the premises.[23]
So far as Mr Richard’s statements are concerned, at the commencement of proceedings he introduced himself as a ‘human rights observer’. There was no suggestion prior to or at the commencement of the hearing that he was attending in order to give evidence on behalf of the applicant, or that he claimed any particular expertise. It may be noted in this respect that although the Tribunal had made programming orders for the filing and service of submissions, the applicant did not do so and had given no notice in relation to fresh evidence. Mr Richard’s first intercession came early in the review proceedings:
MR RICHARD: Can I speak?
MS ADJRUN: Yes, yes, sorry. We have ‑ ‑ ‑
MR RICHARD: So we’ve been helping June with cleaning up her property and boxing all her possessions up so that she – because she has been feeling a lot of pressure, and it has been weighing down on her. She has been suicidal because of the pressure that has been put on her, and this is really appalling, to be quite honest with you, when I found out about this, but – so what she has done is that we have a skip bin out the front, and we’ve organised a container so that she can put her possessions in, because even if this goes how it should go, and she should be able to stay in the property, she is showing that she is trying to just put her stuff into an orderly fashion, and, you know, and clean up a bit around – inside and outside of the house.[24]
That statement was to the effect that Mr Richard had been assisting the applicant to clean up the property, apparently by helping her to organise and box her possessions and ordering a container in which to store them. Mr Richard’s next statement was in the following terms:
MR RICHARD: Okay, I would like to talk here because I’m actually a fire engineer, right. So I’ve done an inspection on the property myself.
THE CHAIRPERSON: When did you do that, thanks.
MR RICHARD: I did that two days ago, on the 20th.
THE CHAIRPERSON: Okay. So this is just - - -
MR RICHARD: So there is clear access and egress from both exit and entries. Yes, there is some build-up of some materials and stuff like that, but she is working on that. And all the smoke detectors in the house work.[25]
That statement was not to the effect that the property no longer presented a fire hazard, or that the matters advised in the notice from the Fire and Rescue Service dated 7 December 2020 had all been rectified. Those matters included clearing combustible material from the external and internal areas of the premises to allow free access and egress; removing clutter and combustible material from the living areas to ensure that electrical leads powering appliances did not run through combustible material; having the smoke detectors tested in accordance with the governing regulations; and the removal of combustible material from the yard, and particularly cars.
The statement by Mr Richard said nothing about access to and egress from the internal areas of the house, and conceded that there continued to be a ‘build-up’ of materials which the applicant had yet to address. Although Mr Richard’s statements later in the proceedings sought to suggest that the premises were in the process of being ‘cleaned up’, they fell short of establishing either that the matters advised in the Fire and Rescue Service notice had been rectified or that the other breaches identified in the Notice to Remedy had been remedied:
MR REYNOLDS: I certainly have. Our submissions are still that the procedural failings require you to set aside that decision and to make a new decision based on the evidence before you today on the merits. It’s our submission that today the state of the property is substantially different to that - - -
THE CHAIRPERSON: Well, I’ve not been given any fresh - - -
MR REYNOLDS: - - - - and in fact the additional evidence - - -
THE CHAIRPERSON: - - - fresh evidence. I’ve got no photos, nothing to rely on. So, I mean, it was up to the - - -
MR RICHARD: Yes, you have. I just gave you my evidence that I’ve been at the property and I’ve been helping her cleaning it up.
….
THE CHAIRPERSON: There [were] orders about lodging submissions, I understand, and we didn’t receive any in writing, so we agreed that it will be oral submissions today. But, you know, where is your evidence that anything has changed since 23 August?
MR RICHARD: I’ve just given you evidence.
THE CHAIRPERSON: You’ve just said there wasn’t a [fire] hazard, but I want - - -
MR RICHARD: No, I said I’ve checked the property. I know that it has been cleaned up because I’ve just looked at the photos - - -
THE CHAIRPERSON: Mr Richards, I don't think that’s sufficient, given the capacity to take some iPhone photos.
MR RICHARD: - - - sufficient, I’m a personal witness.
THE CHAIRPERSON: Let me make my decisions about how evidence should be presented. Orders were made about written - orders were made - - -
MR RICHARD: - - - I’ve already given you evidence that it has been cleaned up. We’ve had people around there; we’re helping her with the vehicles; we’ve delivered a skip bin; the container is on its way; we’ve had a lot of stuff boxed up and bagged up; I’ve given you evidence that it has been cleaned up.
THE CHAIRPERSON: Okay, I will stop you right there.
Would the department be in a position to go through tomorrow to take photos? Yeah, okay. I mean, you’re saying that should be - - -
MR RICHARD: Member, we would - - -
THE CHAIRPERSON: - - - given some fresh evidence.
MS SAAD: Member, I might also add that on - - -
MR RICHARD: We would request that that would happen after the storage - - - [26]
Moreover, Mr Richard’s expressed reluctance to allow the respondent to record the state of the premises by objective photographic evidence suggested some lack of confidence concerning whether that objective evidence would bear out the statements he had made. That suggestion is consistent with statement made later in the proceedings by Mr Richard, which would appear to concede that the fire hazard issues had been ‘improved’ but not necessarily rectified:
MR RICHARD: The skip bin is for the - - -
MS ADJRUN: The things that - - -
MR RICHARD: - - - dispose of stuff, and the council is coming to pick up the big stuff that she can’t get rid of in the skip bin.
MS ADJRUN: That’s happening on the 4th to the 8th.
MR RICHARD: And the fire brigade did come, and they said there has been a massive clean-up on the outside. I don’t know why they didn’t go inside, because the house has been - - -
MS ADJRUN: Yeah, they didn’t.
MR RICHARD: - - - cleaned out. Everything that - she has taken it from the - and even though they’ve said that it has been much more clear on the outside, she has taken a lot of stuff from the inside and bring it to the outside.
MS ADJRUN: Yeah.
MR RICHARD: So that shows that she has done a lot of work on the property, especially the outside of the property, to improve the fire issue that was initially raised.[27]
The review proceedings before the Tribunal were not conducted with the formal structures of proceedings before a court. That was no doubt due in part to the applicant’s failure to file and serve any written submissions or to provide notice that she intended to call witnesses to give evidence (if indeed that was her intention). However, the manner in which the review proceedings were conducted was consistent with the Tribunal’s statutory objectives to be responsive to the parties and to be flexible in the way in which it conducts its business.[28] The Tribunal is also authorised by statute to determine its own procedures to enable it to act according to the substantial merits of the matter, to inform itself in any way it considers appropriate, and to act with as little formality and technicality as a proper consideration of the matter permits.[29]
It is plain from the transcript of proceedings that the Tribunal engaged with the statements made by Mr Richard, and treated those statements as evidence led in the applicant’s cause. However, as with any evidence, it was subject to an assessment of its reliability and probative value. That the evidence formed part of the Tribunal’s considerations is apparent from the fact that at the conclusion of the evidence and submissions the presiding member stated:
I will consider everything that has been put to me today. It’s a complex matter. I take on board everything that has been put to me by everyone.[30]
In the course of the Reasons for Decision, the Tribunal made specific reference to the ‘additional submissions made at hearing by Mr Richards [sic]’.[31] The Tribunal also stated that it had regard to all the documents that were available to the original decision-maker and to the evidence and the submissions put by the parties at the review hearing.[32] Having regard to those references and the discourse which took place during the review hearing, it cannot be said that the Tribunal failed to take into account the information concerning the inspection conducted by the Fire and Rescue Service on the day before the review hearing, and the statements made by Mr Richard during the course of the review hearing. The most that can be said is that the Tribunal did not accept that Mr Richard’s evidence established that the state of the premises no longer presented a fire hazard, and determined that his evidence had little or nothing to say about the matters identified in the Notice to Remedy. For those same reasons, it cannot be accepted that the applicant was denied procedural fairness in relation to that evidence.
It is also necessary to say something about the materiality of the ‘fresh evidence’ concerning fire hazard. During the hearing of the appeal, counsel for the applicant submitted that the fire hazard issue was the central question on which the question of breach and termination turned. The submission continued that as far as the applicant was concerned, it was the only matter which she had to address in order to comply with the Notice to Remedy, and that it would be a failure of ‘due process’ if other matters could be relied upon by the respondent in order to establish a continuing breach and the right to orders for termination and possession. Given the dealings and documents described above in the background and procedural history, and the submissions made by and on behalf of the applicant during the course of the review hearing, that submission is ill-founded and misconceived.
First, while counsel appearing for the respondent at the review hearing accepted the proposition put by the Tribunal that it was ‘the Fire Service issue’ which had really bought the situation with the property to a head,[33] that statement was made in a context in which there was documentary evidence, which was before the Tribunal and of which the Tribunal was aware, establishing that the premises had been in a dirty and cluttered condition for many years and that the respondent had tried on numerous occasions over the years to have the tenant clean up the property. The statement was not a concession by counsel for the respondent that the breaches asserted were limited to the question of fire hazard, or that the fire hazard was the primary breach asserted.
Second, the letter from the respondent to the applicant dated 15 December 2020, the Notice to Remedy dated 9 April 2021, the grounds of the Application made to the Tribunal on 14 May 2021 and the Report of Inspection dated 23 August 2021 all put the applicant on very clear notice that she was required to undertake stipulated items of repairs and maintenance in the yard of the premises and in each of the internal areas in the premises in addition to (and, in some of those documents, without reference to) the matters identified in the Notice from the Fire and Rescue Service.
Third, while the applicant’s representative at the review hearing submitted that the applicant had focused on remediating the fire risk before the other items of repair and maintenance because ‘in her mind that was the most important first step to do to remedy the breach’,[34] that was in no way an assertion that in the applicant’s understanding that was the only matter which she had to address in order to comply with the Notice to Remedy. So much is apparent from the fact that the applicant’s representative conceded during the course of the review hearing that by reason of the state of the premises the applicant was in breach of the terms of the lease and had failed to remedy that breach, notwithstanding the parallel assertion that the fire hazard had been remedied.
The public housing authority had framed its case on the basis that the relevant breach of the tenancy agreement and the Notice to Remedy related to the applicant’s ‘lengthy history of maintaining the premises in an unreasonably dirty condition’[35] (of which the fire hazard formed only one aspect); the applicant was on notice and well understood the obligations arising under the Notice to Remedy and the grounds on which the housing authority sought orders for termination and possession; and the Tribunal understood the manner in which the public housing authority put its case and disposed of the application accordingly[36].
Adequacy of reasons
The first additional ground of appeal added during the course of the hearing is that the Tribunal failed to provide adequate reasons for the finding at paragraph [72] of the Reasons for Decision that the property was a fire hazard. This ground of appeal must fail for the reasons discussed in the context of proposed grounds 1, 2 and 4 above. That is, the Tribunal clearly took into account the evidence in relation to the fire hazard, including the ‘fresh evidence’ referred to by the applicant, and it is apparent from the determination on that issue in the Reasons for Decision that the Tribunal preferred the objective evidence in respect; and the fire hazard was not the only (or principal) matter which the applicant was required to address in order to comply with the Notice to Remedy.
Even if the issue of materiality was not determinative, there is no free-standing common law duty to give reasons for making a statutory decision.[37] Different considerations arise in relation to the exercise of judicial power by a court. That is because the giving of adequate reasons lies at the heart of the judicial process, there is a common law duty on courts to give adequate reasons, and the standard of reasons required of a court is higher than that required of an administrative tribunal.[38] The duty on a statutory body such as the Tribunal to give reasons for decision is governed by statute, and the assessment of the standard required is an exercise in statutory construction.[39] The statutory requirement is found in s 105(2) of the NTCAT Act, which provides:
The Tribunal must give the decision, the reasons for the decision and any relevant findings of fact in writing to the parties to the proceeding within 28 days after the hearing of a proceeding.
As the respondent submits, the relevant requirements are that the Tribunal give its decision in writing, that it provide reasons for that decision in writing, and that it identify any relevant findings of fact in writing. There is no obligation to give reasons in writing for relevant findings of fact. That is consistent with the principle that, in circumstances where an appeal is limited to a question of law, the purpose of requiring reasons is to permit the appellate court adequate opportunity to see whether the finding does or does not involve error on a question of law.[40] It is unnecessary for that purpose that the reasons extend to determinations of pure findings of fact.[41] The Tribunal’s reasons in this case satisfied that purpose and requirement.
The duty imposed by the statute also did not require the Tribunal to spell out every detail of the process of reasoning to its ultimate finding. The only essentiality is that the reasons expose in broad terms why a point critical to the contest has been resolved in a particular way. In this context, a failure to conduct an examination of each piece of evidence is not a failure to comply with the statutory requirement. That is particularly so in circumstances where the complaint is not that the Tribunal failed to deal in a satisfactory way with objective documentary material in support of the applicant’s case. There may in those circumstances be an elevated need to explain why the evidence has been rejected, but that issue did not arise in the present case. Similarly, there were no credit issues to be determined in this case. The assessment and rejection of Mr Richard’s evidence did not require any unfavourable credit finding. That is because to the extent that the evidence purported to be expert in nature, for the reasons described above it did not in its terms establish that the fire hazard had been rectified.
For these reasons, this proposed ground of appeal must fail.
Unreasonableness
The second additional ground of appeal added during the course of the hearing is that the Tribunal’s decision as a whole was legally unreasonable in the Wednesbury sense. This ground is advanced on the basis that no Tribunal acting rationally could have made the finding it did in relation to the question of fire hazard in disregard of the applicant’s ‘fresh evidence’ and having regard to the photographic evidence.
Unreasonableness in the Wednesbury sense[42] will be made out where there was manifest illogicality in arriving at the decision, in the sense that the findings were illogical or the inferences of fact drawn by the decision-maker were unsupported by probative material or logical grounds.[43] However, the test is a very stringent one and will rarely be satisfied. In order to be unreasonable in this sense the decision must be ‘so unreasonable that no reasonable person could have arrived at it’.[44] The decision cannot be characterised as unreasonable in circumstances where there was evidence on which the relevant findings could be based, and in the course of the review proceedings it was conceded by the applicant’s representative that there were unremedied breaches which would lawfully ground orders for termination and possession pursuant to s 100A of that legislation.
Disposition
Leave to appeal should be granted only if an applicant establishes that there is sufficient doubt about a question or questions of law to justify the grant of leave, and that a substantial injustice would result if the error of law is not corrected. Although the grounds advanced by the applicant are arguable, for the reasons described above no error of law has been established. Accordingly, the application for leave to appeal is allowed and the appeal is dismissed. I will hear the parties in relation to costs if need be.
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[1]Briginshaw v Briginshaw (1938) 60 CLR 336, 360-362 per Dixon J.
[2]Reasons for Decision dated 14 October 2021, [6]-[7].
[3]Transcript of Proceedings, 22 September 2021, p 23.
[4]The respondent was prepared to proceed for the purposes of this appeal on the assumption that it had borne the onus of proof on review, subject to the qualification that there is some doubt attending whether parties to proceedings of this nature before a tribunal carry an 'onus of proof': cf Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220, [61]-[80]; Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555, [115].
[5]Reasons for Decision dated 14 October 2021, [57]-[58], [60], [62], [64]-[67], [69].
[6]Transcript of Proceedings, 22 September 2021, p 3.
[7]As the respondent submitted during the hearing of this appeal, the rehearing process was not one directed to the identification of jurisdictional defect in the original decision.
[8]Transcript of Proceedings, 22 September 2021, p 13.
[9]Transcript of Proceedings, 22 September 2021, p 16.
[10]Transcript of Proceedings, 22 September 2021, p 17.
[11]Transcript of Proceedings, 22 September 2021, p 18.
[12]Transcript of Proceedings, 22 September 2021, p 45.
[13]See Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555, [115]-[116]. The application of the the Briginshaw principle to proceedings before the Administrative Appeals Tribunal was said in that case to be 'inconsistent with the flexibility of procedure deliberately entrusted by the Legislature', and 'a potentially serious encroachment on the statutory limitation on appeal from decisions of the Tribunal to a "question of law"'. The Tribunal in the present case is similarly entrusted with flexibility of procedure (see, for example, Booth v An Assessor & Anor [2019] NTSC 89, [42]-[45]), and there is the same statutory limitation on appeals from decisions of the Tribunal.
[14]Transcript of Proceedings, 22 September 2021, p 6. That concession was repeated by the applicant at pages 33 and 36 of the transcript.
[15]See Wilson v Lowery (1993) 4 NTLR 79, citing Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32.
[16]R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644, 654; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156; Haines v Leves (1987) 8 NSWLR 442, 469-470.
[17]Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465.
[18]Waterford v Commonwealth (1987) 163 CLR 54, 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-6; Haines v Leves (1987) 8 NSWLR 442; Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465.
[19]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-6; Haines v Leves (1987) 8 NSWLR 442.
[20]Transcript of Proceedings, 22 September 2021, p 32.
[21]Transcript of Proceedings, 22 September 2021, pp 6, 33, 36.
[22]Transcript of Proceedings, 22 September 2021, pp 8-9.
[23]Transcript of Proceedings, 22 September 2021, p 32.
[24]Transcript of Proceedings, 22 September 2021, p 4-5.
[25]Transcript of Proceedings, 22 September 2021, p 9.
[26]Transcript of Proceedings, 22 September 2021, p 23-24.
[27]Transcript of Proceedings, 22 September 2021, p 48-49.
[28]NTCAT Act, s 10.
[29]NTCAT Act, ss 52, 53.
[30]Transcript of Proceedings, 22 September 2021, p 49-50.
[31]Reasons for Decision dated 14 October 2021, [38].
[32]Reasons for Decision dated 14 October 2021, [62].
[33]Transcript of Proceedings, 22 September 2021, pp 35-36.
[34]Transcript of Proceedings, 22 September 2021, p 14.
[35]Transcript of Proceedings, 22 September 2021, p 28.
[36]Reasons for Decision dated 14 October 2021, [19], [67]-[71].
[37]Public Service Board (NSW) v Osmond (1986) 159 CLR 656.
[38]See Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [56]; Byrne v Legal Services Commissioner [2009] VSC 210, [12]. .For that reason, the discussion of the standard required of the District Court in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, which is relied upon by the applicant in this ground, does not govern the standard required of a statutory tribunal.
[39]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [43]-[44].
[40]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [54]- [55].
[41]Perkins v County Court of Victoria (2000) 2 VR 246, [64]; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [63].
[42]See, for example, Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, [121]–[127].
[43]East Melbourne Group v Minister for Planning (2008) 23 VR 605, [180]–[184]; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, [145]–[148]; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, [34]–[37], [52]–[60].
[44]Minister for Immigration & Citizenship v Li (2013) 249 CLR 332, [68], [77].
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