Griffen v Gunida Gunya Aboriginal Corporation [2018] NSWCATAP 284

Griffen v Gunida Gunya Aboriginal Corporation [2018] NSWCATAP 284

The Tribunal's reasons were inadequate because, after accepting that hardship to children was relevant under s 154D(3)(b), it merely concluded that any hardship was not beyond what any child would suffer, without explaining that conclusion in light of undisputed evidence that six children lived at the premises and that social service material showed the tenant was struggling to provide basic welfare, schooling, medical care, food, clothing and shelter. The absence of an adequate reasoning process on the statutory question of undue hardship was an error of law, so the appeal was allowed and the matter remitted for re-hearing by a differently constituted Tribunal.

Jurisdiction
Australia
Judgment Date
28 November 2018
Procedural Posture
Appeal From Residential Tenancy Termination and Possession Orders / Appeal Panel; Matter Remitted for Re Hearing
Outcome
Appeal allowed; matter returned for re-hearing by a differently constituted Tribunal.
Legal Topics
['social Housing Tenancy Termination' 'serious Damage to Residential Premises' 'undue Hardship to Children' 'adequacy of Reasons' 'appeal on Question of Law']
['residential Tenancies' 'administrative Law' 'civil Procedure'] ['social Housing Tenancy Termination' 'serious Damage to Residential Premises' 'undue Hardship to Children' 'adequacy of Reasons' 'appeal on Question of Law']

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Procedural Posture

Appeal From Residential Tenancy Termination and Possession Orders / Appeal Panel; Matter Remitted for Re Hearing

Legal Issues

  1. 1 ['Whether the Tribunal failed to give adequate reasons for finding that a termination order would not cause undue hardship to a child under s 154D(3)(b) of the Residential Tenancies Act 2010 (NSW).' 'Whether the appeal disclosed an error of law justifying intervention by the Appeal Panel.' 'Whether the matter should be remitted rather than decided by the Appeal Panel.']

Ratio Decidendi

The Tribunal's reasons were inadequate because, after accepting that hardship to children was relevant under s 154D(3)(b), it merely concluded that any hardship was not beyond what any child would suffer, without explaining that conclusion in light of undisputed evidence that six children lived at the premises and that social service material showed the tenant was struggling to provide basic welfare, schooling, medical care, food, clothing and shelter. The absence of an adequate reasoning process on the statutory question of undue hardship was an error of law, so the appeal was allowed and the matter remitted for re-hearing by a differently constituted Tribunal.

Court Disposition

Appeal allowed; matter returned for re-hearing by a differently constituted Tribunal.

Orders

  • ['Appeal allowed.' 'Matter to be returned for re-hearing by a differently constituted Tribunal in accordance with these reasons.']