CROOK v CONSUMER, TRADER & TENANCY TRIBUNAL OF NSW & ANOR [2003] NSWCA 370

CROOK v CONSUMER, TRADER & TENANCY TRIBUNAL OF NSW & ANOR [2003] NSWCA 370

The evidence before the Tribunal showed only subjective emotional responses by the landlord's employees, such as feeling threatened, intimidated, distressed, rattled and shaken, and Dr Westmore's evidence did not establish that any victim suffered or was likely to suffer a recognisable psychiatric illness. Because "injury" in s68(1)(b) of the Residential Tenancies Act 1987 is confined to physical injury or recognisable psychiatric illness or condition, it was not open to the Tribunal to conclude that the claimant had caused, or was likely intentionally or recklessly to cause, injury within the meaning of the Act.

Jurisdiction
Australia
Judgment Date
18 December 2003
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Termination of a Residential Tenancy Agreement / Court of Appeal From Orders of Master Malpass Dismissing an Appeal From the Consumer, Trader and Tenancy Tribunal of New South Wales
Outcome
Leave to appeal granted; appeal allowed; Tribunal termination order set aside; landlord's application for termination and vacant possession dismissed; second opponent ordered to pay costs.
Legal Topics
['residential Tenancies Act 1987 S68' 'meaning of Injury' 'psychiatric Injury' 'appeal on Question of Law' 'termination of Residential Tenancy Agreement']
['residential Tenancy Law' 'administrative Law' 'statutory Interpretation'] ['residential Tenancies Act 1987 S68' 'meaning of Injury' 'psychiatric Injury' 'appeal on Question of Law' 'termination of Residential Tenancy Agreement']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Termination of a Residential Tenancy Agreement / Court of Appeal From Orders of Master Malpass Dismissing an Appeal From the Consumer, Trader and Tenancy Tribunal of New South Wales

Legal Issues

  1. 1 ['Whether the term "injury" in s68 of the Residential Tenancies Act 1987 includes mental injury.' 'Whether proof of mental injury under s68 requires proof of a recognisable psychiatric illness or condition.' 'Whether there was sufficient evidence before the Tribunal to establish that the claimant had caused, or was likely intentionally or recklessly to cause, injury within the meaning of s68(1)(b) of the Act.' 'Whether the Tribunal correctly applied the requisite standard of proof in light of Briginshaw v Briginshaw (1938) 60 CLR 336.']

Ratio Decidendi

The evidence before the Tribunal showed only subjective emotional responses by the landlord's employees, such as feeling threatened, intimidated, distressed, rattled and shaken, and Dr Westmore's evidence did not establish that any victim suffered or was likely to suffer a recognisable psychiatric illness. Because "injury" in s68(1)(b) of the Residential Tenancies Act 1987 is confined to physical injury or recognisable psychiatric illness or condition, it was not open to the Tribunal to conclude that the claimant had caused, or was likely intentionally or recklessly to cause, injury within the meaning of the Act.

Court Disposition

Leave to appeal granted; appeal allowed; Tribunal termination order set aside; landlord's application for termination and vacant possession dismissed; second opponent ordered to pay costs.

Orders

  • ['Grant the claimant leave to appeal.' 'Appeal allowed.' 'Set aside the orders of Master Malpass of 29 October 2003 and in lieu thereof order that the appeal be allowed.' "Set aside the order of the Consumer, Trader and Tenancy Tribunal of New South Wales of 19 December 2002 terminating the claimant's residential...