NSW Land and Housing Corporation v Panella

[2016] NSWCATCD 41

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NSW Land and Housing Corporation v Panella [2016] NSWCATCD 41

Hearing dates:

9 March 2016

Decision date:

11 May 2016

Jurisdiction:

Consumer and Commercial Division

Before:

K Ross, General Member

Decision:

1  The application for termination is dismissed.

2  The tenant comply with the terms of his tenancy agreement, and in particular must not cause injury to the landlord, the landlord’s agent, an employee or contractor of the landlord or the landlord’s agent, or an occupier or person on neighbouring property or premises used in common with the tenant.

Catchwords:

Termination, injury, conviction

Legislation Cited:

Residential Tenancies Act 2010
Residential Tenancies and Housing Legislation Amendment (Public Housing – Antisocial Behaviour) Act 2015
Interpretation Act 1987

Cases Cited:

Sudath v Health Care Complaints Commission [2012] NSWCA
Nakad v Commissioner of Police NSW Police Force [2014 NSWCATAP 10
Brandusiou v Commissioner of Police NSW Police Force [2011] NSWADTAP 47
Fairfield City Council v Wi [2012] NSWADTAP 39
Barton J in Worrall v Commercial Company of Sydney Limited (1917) 24 CLR

Texts Cited:

Nil

Category:

Principal judgment

Parties:

NSW Land and Housing Corporation (applicant)
Frank Panella (respondent)

Representation:

Darryl Ford, advocate for the applicant
Geoff Capelin, advocate for the respondent

File Number(s):

SH 15/45462

Publication restriction:

Unrestricted

ReasonS FOR DECISION

Application

1. The applicant seeks an order for termination of the tenancy and possession of the premises pursuant to s 90(1)(b) of the Residential Tenancies Act 2010. The tenant opposes the orders sought.

2. The application was filed on 30 July 2015. It relied upon an incident alleged to have taken place on 24 July 2015. It was not disputed that the tenant had been found guilty of assault in the Local Court. However the tenant continued to deny that he had been involved in the incident. The Tribunal heard evidence from the tenant and the alleged victim, and called for submissions as to how the conviction and the evidence should be dealt with.

3. In addition, an issue arose as to the effect on the proceedings of the Residential Tenancies and Housing Legislation Amendment (Public Housing – Antisocial Behaviour) Act 2015, which commenced on 18 December 2015. The applicant argued that the Tribunal was bound to determine the matter based upon the Act as amended whilst the respondent argued that to do so would be to give retrospective operation to the amendments. The respondent argued that the matter should be dealt with in accordance with the Act prior to its amendment. The Tribunal called for submissions in respect of this issue.

Applicant’s evidence and submissions

4. The applicant relied upon evidence from the victim of the assault, and the Police officer who dealt with the criminal charges. In addition the applicant relied upon a statement from an alleged witness to the incident, who did not attend to give evidence even though he had been served with a summons to attend.

5. The victim of the assault gave a somewhat colourful version of the events. He insisted that he had gone to the aid of a woman with black hair, covered in blood. He had told the Police that the person was Amy Judd, but had since determined that it was Nicole Collins. He insisted that the identity of the person did not matter. He said that he had told the Police on the day that it might have been Amy Judd, but the Police officer said that she had written out the statement and it couldn’t be changed. He said that at the time he thought it was her, but now says “it’s 80/20, 80% Nicole” or later “I’m 100% sure now that it was Nicole”. He insisted that the essence of the matter was that it was a woman with black hair with blood on her face, and it didn’t matter whether it was Amy or Nicole.

6. The victim said that he went out to help the woman with black hair, and said to the tenant “you’ve done it this time”. The tenant went into his unit and came out with a golf stick which he swung and hit the victim multiple times. During this incident the victim slipped and was on the ground but he managed to get up and went into his unit and called the Police. He went first to the Police station “because I wanted to get Panella arrested”. About 5 hours after the incident he went to the hospital.

7. The victim said that the witness who had provided a statement “was very obliging” in doing so. He assumed that the witness had lost patience however, having been to Court and the Tribunal previously on a number of occasions.

8. The Police officer gave evidence as to her investigations into the incident. She claimed that the tenant had initially been cooperative but refused her permission to come back to his premises to look for the golf club. She did not think that the matter warranted overtime to obtain a search warrant. She denied the victim’s claim that she had discouraged him from amending his statement and said that it was only recently that he had changed his story as to the identity of the woman with black hair.

How should the Local Court conviction be treated by the Tribunal?

9. The applicant submits that there is no issue estoppel in relation to the conviction, but the Tribunal must determine whether it can look behind the conviction. The applicant cites authorities including Sudath v Health Care Complaints Commission [2012] NSWCA, Nakad v Commissioner of Police NSW Police Force [2014 NSWCATAP 10, Brandusiou v Commissioner of Police NSW Police Force [2011] NSWADTAP 47,and Fairfield City Council v Wi [2012] NSWADTAP 39 as authority for the proposition that:

“21 … where the fact of a conviction is not the trigger for administrative action (that is, where the exercise of a statutory power is not founded on a criminal conviction) then even if the conviction be relevant a challenge may be made to the essential facts on which it was based. In such cases it would be an abuse of process to place evidence before the Tribunal which contradicts or was consistent with the earlier findings and convictions if that evidence was proffered for the purpose of impugning the convictions or the fairness of the criminal trial. If such evidence is admitted it is ultimately a matter for the Tribunal to consider what weight if any is to be given to the evidence in light of the findings made in the criminal proceedings.

22 However in proceedings where a statute makes the fact of a conviction the trigger for administrative action, the Tribunal cannot look behind the conviction and examine the circumstances of the offence. That is where a conviction is the foundation for the exercise of a power no challenge can be made to the fact of the conviction or the essential facts on which it was based.”

10. The applicant submits that in this matter:

“25 The respondent’s conviction for the offence of assault occasioning actual bodily harm is the foundation for the exercise of the Tribunal’s jurisdiction under s 90(1)(b) of the Act to order the termination of the tenancy.”

Application of the amendment of the Act to these proceedings

11. The applicant acknowledges that there is a presumption against the retrospective operation of legislation, but states that the presumption is rebuttable. The applicant cites Barton J in Worrall v Commercial Company of Sydney Limited (1917) 24 CLR that the test is “What did the legislature mean when its words are read after giving due weight to every relevant consideration? The applicant goes on to argue that Parliament intended the alterations to the Act to have immediate effect.

12. In the alternative, the applicant argues that the presumption against retrospective operation of the amendments does not apply as the provision does not modify substantial rights and liabilities between the parties but deals with the pursuit of remedies. The applicant cites Dixon J in Maxwell v Murphy (1957) 96 CLR 261:

“A consideration of the cases generally cited in this connexion has led me to think that the distinction is probably best stated by saying that it is between statutes which create or modify or abolish substantive rights or liabilities on the one hand and statutes which deal with remedies on the other hand. In the former class of case there is a presumption against retrospective operation in the sense explained above. In the latter class of case there is no such presumption: on the contrary the presumption is that the enactment applies in all proceedings commenced after it became law, and it may be right to construe it as applying even in proceedings commenced before it became law.”

13. Further and in the alternative the applicant submits that the application of the amendments to these proceedings would not have retrospective operation because any termination order will take effect in the future.

Respondent’s evidence and submissions

14. The respondent conceded that he had been found guilty of assault by the Local Court but continued to assert that he did not assault the victim as alleged, and that he was not at the unit complex at the time. He explained inconsistencies in his account of where he was as being confused about the days. He remained unshaken in his evidence that he did not assault the victim. He called two witnesses who attested that the tenant was at Mayfield at the time of the alleged assault.

15. The tenant also relied upon evidence from Amy Judd that she was in Port Macquarie at the time of the alleged assault and could not have been the woman with black hair referred to by the alleged victim.

16. The respondent gave evidence that he suffers from a number of illnesses, and is on a limited income. He stated that there is a real risk of homelessness if the tenancy was terminated.

How should the Local Court conviction be treated by the Tribunal?

17. The respondent submits that there is no issue estoppel in relation to the conviction. The respondent submits that the Local Court is not a superior court of record, and the Tribunal is not bound by its decision, but consistent with the Tribunal’s guiding principle must enquire into the facts in issue. The respondent submits that the legislature has not chosen to make the Tribunal’s discretion dependent on a conviction, and the conviction cannot be relevant to the task before the Tribunal.

18. The respondent also submits that if the conviction is admitted as evidence in these proceedings, it does not have the effect of an estoppel, but the person disputing the facts has an evidentiary burden. The conviction should be given little weight and the Tribunal should itself enquire into the facts in order to determine whether the applicant has proven its case.

Application of the amendment of the Act to these proceedings

19. The respondent submits that the Amending Act does affect rights of the tenant accrued before the Act came into effect, and at common law, the presumption against the retrospective operation of the amendments applies. The respondent also submits that s 30 of the Interpretation Act 1987 applies such that the amendment of the Act does not affect any right accrued, or affect any investigation, legal proceeding or remedy in respect of any such right.

20. The respondent submits that the right is the tenant’s right to have a discretion applied by the Tribunal as if the amendments to the Act had not been made.

Decision

Application of the amendment of the Act to these proceedings

21. The Tribunal accepts that the effect of s 30(1)(e) of the Interpretation Act 1987 is that the amendments to the Act which commenced on 18 December 2015 do not apply to the proceedings in this matter, as they had been commenced prior to 18 December 2015. The Tribunal does not accept the applicant’s submission that there is no “right” affected by the amendments, but in any event, notes the qualification in the extract from Maxwell v Murphy (1957) 96 CLR 261:

“it may be right to construe it as applying even in proceedings commenced before it became law.”

22. The Tribunal notes that whether the amendments apply or not, the Tribunal has a discretion as to whether to terminate the tenancy. This is because, even if the amendments apply, s 154D removes the Tribunal’s discretion only in the case of injury constituting grievous bodily harm, which is not the case in this matter.

How should the Local Court conviction be treated by the Tribunal?

23. The Tribunal accepts the applicant’s submission:

“… where the fact of a conviction is not the trigger for administrative action (that is, where the exercise of a statutory power is not founded on a criminal conviction) then even if the conviction be relevant a challenge may be made to the essential facts on which it was based. In such cases it would be an abuse of process to place evidence before the Tribunal which contradicts or was consistent with the earlier findings and convictions if that evidence was proffered for the purpose of impugning the convictions or the fairness of the criminal trial. If such evidence is admitted it is ultimately a matter for the Tribunal to consider what weight if any is to be given to the evidence in light of the findings made in the criminal proceedings.

22 However in proceedings where a statute makes the fact of a conviction the trigger for administrative action, the Tribunal cannot look behind the conviction and examine the circumstances of the offence. That is where a conviction is the foundation for the exercise of a power no challenge can be made to the fact of the conviction or the essential facts on which it was based.”

24. However the Tribunal does not accept that the criminal conviction is the trigger for the exercise of the Tribunal’s jurisdiction in s 90(1)(b). The Tribunal accepts that the evidence which the Tribunal has admitted cannot be admitted for the purpose of impugning the conviction, and the Tribunal must consider what weight is given to that evidence.

25. It follows that the Tribunal accepts that the tenant has been convicted of assault. At the date of the hearing he had not been sentenced and had not lodged an appeal against that conviction. The Tribunal accepts the fact of that conviction and finds that the tenant did indeed assault the victim.

26. However having heard the evidence of the victim the Tribunal was left unimpressed. He gave conflicting accounts of the incident and his evidence in respect of the identity of the alleged woman with black hair was contradictory and misleading. He lied when he said that he had raised concerns about the identity of the woman with the Police officer at the time. This evidence was simply fanciful. He continually justified his evidence by reference to its acceptance by the Local Court magistrate in a way which cast some doubt upon its authenticity. He expressed on a number of occasions his desire to have the tenant removed from the complex, and his evidence was tainted by his apparent loathing of the tenant.

27. It follows that whilst the fact of the conviction is accepted, the Tribunal has some difficulty in accepting the evidence of the victim as to the details of the incident.

28. The supporting witness did not attend the Tribunal and the weight which can be given to his statement in these circumstances is slight. The witness does not say that he heard a female voice, and does not say that he saw a woman with dark hair and blood on her face. However the victim gave evidence that he and the witness had discussed the identity of that person, and those discussions had influenced the victim’s identification of her.

The law

29. The application is brought under s 90 (1) (b) which provides as follows:

90 Serious damage or injury by tenant or other occupant

(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) serious damage to the residential premises or any neighbouring property (including any property available for use by the tenant in common with others), or

(b) injury to the landlord, the landlord’s agent, an employee or contractor of the landlord or the landlord’s agent, or an occupier or person on neighbouring property or premises used in common with the tenant.

(2) The termination order may specify that the order for possession takes effect immediately.

(3) A landlord may make an application under this section without giving the tenant a termination notice.

(4) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.

(5) In this section:

"neighbouring property" means:

(a) property adjoining or adjacent to the residential premises, or

(b) property owned by the landlord in the general locality of the residential premises.

30. There was no dispute that the incident took place on the common property of the unit complex. The victim was an occupier of adjoining premises, and a person on premises used in common with the tenant. The incident resulted in injury to that person. The Tribunal has a discretion to terminate the tenancy in these circumstances.

31. The Tribunal has found that the amendments to the Act do not apply to this application. The factors to be considered are set out in s 152 which provides:

Termination by Tribunal of social housing tenancy agreements for breach

(1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant:

(a) any serious adverse effects the tenancy has had on neighbouring residents or other persons,

(b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk,

(c) the landlord’s responsibility to its other tenants,

(d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal,

(e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement.

(2) This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act.

32. In respect of each of these considerations:

(a) Any serious adverse effects the tenancy has had on neighbouring residents or other persons,

33. The victim asserted that the tenant uses his premises as a shop. He accused the tenant of attracting ice users to the premises. There was no evidence led by the applicant to support this assertion, and bearing in mind the credit issues identified above in respect of the victim’s evidence, the Tribunal can place no weight upon these statements. The applicant did not lead any evidence of complaints or other disturbances caused by the tenant.

34. Accordingly the only evidence before the Tribunal of any adverse effects from the tenancy is the incident itself and its effect on the victim. In this regard the Tribunal notes that the victim appears to have no lasting effects from the incident. He said he was dizzy at the time but did not seek medical attention until 5 hours after the incident. He drove himself to the Police station first, because his priority was to have the tenant arrested. He presented to the hospital and reported that he had been hit on the right forehead and right forearm, and had bruising to those areas. Four days later he presented to a different hospital complaining that in the assault he had been beaten to the head, face and chest. He complained that chest pain had developed the day before.

35. The Tribunal cannot be satisfied that the victim sustained the injury to his chest in the attack. The Tribunal finds that the victim sustained the injury to his forehead and forearm, which appears to have resolved within a few days and was not a serious injury. The victim himself conceded as much, when asked during cross examination if he regarded his injuries as serious: “They could have been. It was mere luck that they weren’t. If I had died he would have gone to gaol and rid the world of him.”

33. The Tribunal is accordingly not satisfied that the incident itself has had a serious adverse effect on neighbours, and there is no other evidence to suggest any other serious adverse effect from the tenancy.

(b) Whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk,

37. Any assault with a golf club by a tenant on a neighbour is a serious breach of the agreement. However there is no evidence of any other like breach and the Tribunal is not satisfied that there is any evidence that a failure to terminate the agreement would subject neighbouring residents or any other persons to unreasonable risk.

(c) The landlord’s responsibility to its other tenants,

38. The Tribunal is satisfied that the applicant has acted appropriately in bringing this application, in terms of its responsibility to other tenants, but the Tribunal is not satisfied that there is an unacceptable risk to neighbouring residents if the tenancy is not terminated.

(d) Whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal,

39. There is no evidence that the tenant has ever been in breach of a Tribunal order.

(e) The history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement.

40. No evidence was presented as to the history of the tenancy or any prior tenancy.

Decision

41. The Tribunal finds that the tenant breached his residential tenancy agreement when he assaulted the victim, causing injury to him. However the Tribunal is not satisfied that the breach is sufficient to justify termination of the tenancy. In coming to this decision the Tribunal accepts the tenant’s evidence that termination of the tenancy would cause him hardship, particularly considering the tenant’s health issues and his limited earning capacity. The Tribunal will order that the tenant comply with the terms of his tenancy agreement, and in particular not cause injury to injury to the landlord, the landlord’s agent, an employee or contractor of the landlord or the landlord’s agent, or an occupier or person on neighbouring property or premises used in common with the tenant.

Orders

1. The application for termination is dismissed.

2. The tenant comply with the terms of his tenancy agreement, and in particular must not cause injury to the landlord, the landlord’s agent, an employee or contractor of the landlord or the landlord’s agent, or an occupier or person on neighbouring property or premises used in common with the tenant.

K Ross

General Member

Civil and Administrative Tribunal of New South Wales

11 May 2016

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

Decision last updated: 06 July 2016