Davis v NSW Land and Housing Corporation

1. [1]

   McCOLL JA: The applicant, Justine Davis, and the respondent, the NSW Land and Housing Corporation (Housing Corporation), were tenant and landlord respectively of residential premises, being a flat located on the third floor of a building in Redfern, pursuant to a Residential Tenancy Agreement (Agreement) for a term of five years dated 19 September 2012. The Agreement stated that not more than one person might ordinarily live in the premises.

2. [2]

   On 25 July 2013 the Housing Corporation made an application to the New South Wales Civil and Administrative Tribunal (Consumer and Commercial Division) (Tribunal) for an order terminating the Agreement pursuant to s 91(1) of the Residential Tenancies Act 2010 (NSW). The Tribunal acceded to that application on 13 October 2014. [1] The applicant’s appeal to the Tribunal’s Appeal Panel was unsuccessful. [2]

3. [3]

   By way of summons filed in the Supreme Court, the applicant sought leave to appeal and to appeal against the Appeal Panel’s decision. Fullerton J upheld the Appeal Panel’s decision in a judgment delivered on 27 July 2016. [3] This is the expedited hearing of the application for leave to appeal and to appeal from her Honour’s decision. Leave to appeal is required because the primary judgment does not involve a matter in issue to or of the value of $100,000 or more. [4]

4. [4]

   The Housing Corporation opposes a grant of leave to appeal. It has also filed a notice of contention, the details of which appear later in these reasons.

5. [5]

   The appeal raises an important question of principle concerning the construction of s 91 of the Residential Tenancies Act. Accordingly, I am of the view that leave to appeal should be granted. However, for the reasons that follow, I would dismiss the appeal with costs.

Factual background

1. [6]

   The primary judge succinctly described the circumstances leading to the termination of the Agreement as follows:

2. [7]

   In addition, in executing the search warrant police officers encountered a locked reinforced steel door with bars positioned closely behind the front door of the premises. The Tribunal described the steel door as “designed to prevent Police from gaining access to the premises”.

3. [8]

   Subsequent to the execution of the search warrant, the appellant’s husband was charged with supplying heroin contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). The appellant was also charged with various criminal offences relating to the supply of heroin.

Legislative framework

1. [9]

   The long title to the Residential Tenancies Act describes it as “[a]n Act with respect to the rights and obligations of landlords and tenants, rents, rental bonds and other matters relating to residential tenancy agreements; and for other purposes.”

2. [10]

   The Residential Tenancies Act applies to residential tenancy agreements in respect of residential premises: s 6. In the Act, “residential premises” are defined to mean “any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence”: s 3(1). [6]

3. [11]

   Part 5 of the Residential Tenancies Act deals with the termination of residential tenancy agreements.

4. [12]

   Division 1 deals with termination of residential tenancy agreements generally.

5. [13]

   A residential tenancy agreement terminates only in the circumstances set out in the Act: s 81(1). A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under the Act: s 81(3).

6. [14]

   A landlord may apply to the Tribunal for a termination order: s 83(2). Where a landlord is seeking to terminate an agreement on the basis that the premises have been used for an illegal purpose, the landlord may make an application to the Tribunal for a termination order without giving the tenant a termination notice: s 91(4). A “termination order” is an order terminating a residential tenancy agreement together with an order for possession of the residential premises: s 80.

7. [15]

   If the Tribunal makes an order terminating a residential tenancy agreement under the Act, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect: s 83(1).

8. [16]

   Division 2, in which s 91 is found, deals with termination by the landlord. Section 91 provides:

9. [17]

   “Supply” is relevantly defined in s 3 of the Drug Misuse and Trafficking Act as follows:

10. [18]

    Reference should also be made to Part 3 of the Residential Tenancies Act dealing with “Rights and obligations of landlords and tenants”. Division 3 of Part 3, in which s 49 – s 54 appear, deals with “Occupation and use of residential premises”.

11. [19]

    A tenant must not use the residential premises, or cause or permit the premises to be used, for any illegal purpose: s 51(1)(a). Nor may a tenant interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant: s 51(1)(c). Section 51 is a term of every residential tenancy agreement (s 51(5)).

12. [20]

    It is a term of every residential tenancy agreement that a tenant must not, without the landlord’s written consent or unless the residential tenancy agreement otherwise permits, install or cause to be installed a fixture or make or cause to be made any renovation, alteration or addition to the residential premises: s 66(1) and s 66(5).

13. [21]

    Division 7 of Part 3 deals with “Security and safety of residential premises”. Pursuant to s 70(2), which appears in this Division, a “landlord or landlord’s agent must give to each tenant named in the residential tenancy agreement a copy of the key or any other opening device or information required to open a lock or security device for the residential premises or common property to which the tenant is entitled to have access.”

14. [22]

    The regulations may prescribe a standard form of residential tenancy agreement: s 15(1). The standard form of residential tenancy agreement is set out in Schedule 1 to the Residential Tenancies Regulation 2010 (NSW). The Housing Corporation appears to have adapted the standard form slightly. Variations are permissible if they do not contravene the Residential Tenancies Act or the regulations or any other Act, and if the terms are not inconsistent with the terms set out in the standard form. [7]

15. [23]

    By cl 15.1 of the standard form agreement the tenant agrees not to use the residential premises, or cause or permit the premises to be used, for any illegal purpose. By cl 27.1 the tenant agrees not to install any fixture or renovate, alter or add to the residential premises without the landlord’s written permission.

16. [24]

    Part 7 of the Residential Tenancies Act deals with social housing tenancy agreements which are residential tenancy agreements where the landlord is a social housing provider. The Housing Corporation is a social housing provider. [8] Neither party suggested any provision of Part 7 bore upon any issue in this case.

Tribunal proceedings

1. [25]

   On 25 July 2013 the Housing Corporation sought a termination order terminating the appellant’s Agreement together with an order for possession of the residential premises. The application identified the reasons for the orders as follows:

2. [26]

   The matter was adjourned on at least two occasions to allow the appellant’s criminal proceedings to be finalised. A stay of the proceedings was granted on 14 November 2013 and lifted on 18 June 2014. The hearing was eventually listed for 7 October 2014.

3. [27]

   The Tribunal Member first described the Housing Corporation’s case as being that the appellant intentionally or recklessly permitted her husband, Mr Trimarchi, to use the residential premises and a level 6 laundry room for the purposes of the sale and supply of a prohibited drug within the meaning of the Drug Misuse and Trafficking Act between March and May 2013. In a later iteration the Tribunal said the Housing Corporation’s contention was that the appellant knowingly or recklessly permitted the use of the premises for the supply or sale of heroin. On appeal, both parties accepted that the first formulation was the basis of the application for the termination order before the Tribunal.

4. [28]

   It was uncontroversial that Mr Trimarchi resided at the premises with the appellant.

5. [29]

   Before the Tribunal, the Housing Corporation tendered the police video of the execution of the search warrant. It became exhibit B. Parts of the video were played during the hearing. In addition, the Housing Corporation’s case included evidence from the police brief of evidence in Mr Trimarchi’s criminal matters. This included evidence that upon receiving a phone call from a customer, Mr Trimarchi would sequester a balloon filled with heroin in his mouth and catch the lift from level 3 (where the residential premises were located) to an unlocked laundry room on level 6, referred to as the “pit stop”. At the pit stop an exchange of heroin would occur. Following the exchange, Mr Trimarchi would return to the appellant’s premises and the customer would exit the building on the ground floor. The Housing Corporation contended before the Tribunal that the residential premises were being used to store the drugs and weigh them, and that Mr Trimarchi placed the heroin in the balloons within the residential premises and stored the proceeds of the drug sales there. It was also part of its case that the installation of the steel door was intended to facilitate the use of the premises for the supply of drugs.

6. [30]

   The Housing Corporation also contended that the level 6 laundry room Mr Trimarchi used adjoined or was adjacent to the premises within the meaning of s 91(1)(a).

7. [31]

   As I have said, in executing the search warrant, police officers encountered a reinforced steel entry door with bars. The video of the execution of the search warrant shows what the Tribunal Member described as “a reinforced steel security door with bars, designed to prevent Police from gaining access to the premises.” A police officer gave evidence before the Tribunal that in her experience “these doors were designed and used by drug traffickers to prevent easy or quick searches by Police in the pursuit of their duties and are designed to prevent drug related home invasions”. The Housing Corporation adduced evidence that permission had not been sought or granted to install “an extra door or locking device”.

8. [32]

   After setting out the parties’ evidence, the Tribunal Member concluded she was reasonably satisfied that a termination order should issue for the following reasons: [10]

9. [33]

   Accordingly on 13 October 2014 the Tribunal Member made the following termination order:

Appeal Panel’s decision

1. [34]

   The appellant appealed to the Appeal Panel of the Civil and Administrative Tribunal against the Tribunal Member’s decision pursuant to s 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Such an appeal, which is classified as an “internal appeal”, [12] lies as of right on any question of law, or with the leave of the Appeal Panel on any other grounds: s 80(2)(b), NCAT Act. The appeal proceeded on the former basis. Leave to enlarge it to other grounds pursuant to s 80(2)(b) was refused. [13]

2. [35]

   The notice of appeal identified what the Appeal Panel said were two grounds of appeal, first, a misconstruction of the factual evidence which was, secondly, unreasonable such as to constitute an error of law. [14] One of the matters relied upon was that “the Tribunal wrongly conflated the use of the premises for unlawful purposes and the use of the laundry on level 6.” [15] The Appeal Panel accepted the Housing Corporation’s characterisation of the appellant’s grounds of appeal as raising the question of law that there was no evidence to warrant particular findings or that particular findings, having regard to the evidence available to support them, were perverse. [16]

3. [36]

   Consistently with her notice of appeal, the appellant’s submissions before the Appeal Panel focused on the evidence before the Tribunal in an attempt to satisfy a “no evidence” ground, which is uncontroversially a question of law. [17] The first contention to which the Appeal Panel referred was that the appellant submitted there was “no evidence that the appellant herself in contrast to Mr Trimarchi used the premises for the sale of illegal drugs or other unlawful purpose [sic, as in original]” and that there was “no evidence as to any conduct within the premises to justify a finding that they were used for an unlawful purpose.” [18]

4. [37]

   The Housing Corporation, in response, relied upon the evidence concerning the steel door, the location of the balloons, mobile phones, scales and cash and the evidence that the appellant showed the police where those articles were kept as well as saying to them “and if I show you where it all is you’ll make my life easier and just go away after youse find it all.” [19]

5. [38]

   The Appeal Panel upheld the Tribunal Member’s decision to issue a termination order. It set out, and adopted for the purposes of s 91(1)(a), an extensive passage from McGuiness v NSW Land and Housing Corporation, [20] a decision of a differently constituted Appeal Panel concerning the meaning of the word “use” for the purposes of s 91(1)(b) of the Residential Tenancies Act. In McGuiness, the Appeal Panel relevantly held:

6. [39]

   The Appeal Panel accepted the appellant’s submission that there was no evidence that the appellant herself was engaged in the supply of heroin. [25] This appears to have been uncontested. It was not a finding the Tribunal Member had made. The Appeal Panel also said that there was no challenge to the appellant’s evidence to the effect that the money found on the premises was obtained lawfully. [26] In this Court, the Housing Corporation submitted that this conclusion was not supported by the way the case was conducted before the Tribunal. I will return to this contention.

7. [40]

   The Appeal Panel held that the Tribunal had erred in law in finding that the laundry on level 6 fell within the definition in s 91(1)(a) of “any property that is available for use by the tenant in common with others” having regard to the words “or any property adjoining or adjacent to the premises”. In the Appeal Panel’s view, in a large building containing a number of storeys, it would do undue violence to the language to interpret “property adjoining or adjacent to the premises” as apt to include a room three storeys above the premises. Accordingly, the Appeal Panel held that it was irrelevant for the Tribunal to consider whether the landing on the 6th floor was available for use by the tenant in common with others. [27]

8. [41]

   The Appeal Panel also accepted the appellant’s submission that the Tribunal erred in law in concluding that there was evidence that the steel door meant the premises were used for the supply of drugs. Rather, the Appeal Panel held that installation of the steel door was equally indicative of the appellant’s desire for self-protection. [28]

9. [42]

   Nevertheless, the Appeal Panel concluded:

10. [43]

    Accordingly, the Appeal Panel dismissed the appeal, but amended the date for the order for possession to take effect to allow sufficient time for the appellant to vacate the premises.

Primary judgment

1. [44]

   By an amended summons filed with leave on 5 April 2016 the appellant sought leave to appeal from the Appeal Panel’s decision pursuant to s 83(1) of the NCAT Act. The appeal required a grant of leave and was an appeal “on a question of law”. [30] The Housing Corporation did not oppose the grant of leave to appeal. [31]

2. [45]

   Mr Ash of counsel, who appeared for the appellant before the primary judge and on appeal, but not in the Tribunal, submitted that the Appeal Panel’s critical finding that the use of the premises by Mr Trimarchi to store various items and pieces of equipment to facilitate the supply of heroin by him to people outside the premises, was a use of the premises for the purposes of the supply of prohibited drugs within the meaning of the Drug Misuse and Trafficking Act was based upon an erroneous construction of s 91(1)(a) of the Residential Tenancies Act. [32]

3. [46]

   He argued that because no prohibited drugs were found within the residential premises, and there was no evidence before the Tribunal or the Appeal Panel that there were traces of drugs on the scales or other items of drug paraphernalia seized under warrant from the premises, there was nothing to support the Appeal Panel being satisfied that it was open to the Tribunal to find the premises were a place where the heroin was offered or received or delivered or kept for the purposes of supply (within the extended definition of “supply”) or that the premises were a place where any of those acts or things were authorised, suffered, permitted or attempted (also within the extended definition). [33]

4. [47]

   Mr Ash submitted that the mere use of the leased premises to store equipment for the weighing and packaging of heroin to be supplied from a venue or venues elsewhere in the apartment building or beyond, did not amount to the use of the leased premises for the purposes of supply within the extended definition. He accepted that it would be otherwise if s 91(1)(a) proscribed the use of the premises “for the purposes of or in connection with the supply of prohibited drugs”. [34] He submitted that the Appeal Panel wrongly interpreted the concept of “the use of the leased premises for the purposes of supply” in s 91(1)(a), to include their use in connection with the supply of drugs from places outside the premises contrary to (or at least not comprehended by) the proscribed use of the premises in the statutory sense. He argued that by so doing, the Appeal Panel impermissibly extended the concept of “use” of premises for the illegal purpose of supplying drugs in s 91(1)(a). [35]

5. [48]

   Mr Ash also submitted that the appellant’s knowledge of her husband’s business as a drug supplier and, by necessary inference from what she said and did in the course of the execution of the search warrant, knowing that her husband used balloons to package the weighed drugs he supplied to drug users, did not allow for the further finding, also implicit in the reasoning of the Appeal Panel (at [17]), that it was open to the Tribunal to find that the drugs that had been or were to be supplied to end users on level 6 (or elsewhere) were in fact weighed and packaged in the leased premises, as distinct from that being the place where that equipment was stored. [36]

6. [49]

   Mr Ash also contended that the Tribunal erred in its alternative finding that the alteration to the leased premises by the installation of the steel door facilitated the premises being used for the supply of prohibited drugs, thereby constituting the use of the premises for an unlawful purpose within the meaning of s 91(1)(b) of the Residential Tenancies Act. By notice of contention, the Housing Corporation contended the Appeal Panel ought not to have disturbed this finding by the Tribunal. [37] The primary judge ultimately did not deal with this issue, having regard to her findings in relation to s 91(1)(a).

7. [50]

   In order to deal with a procedural fairness complaint the appellant advances under her second ground of appeal, it is necessary to refer to an exchange which occurred during submissions before the primary judge. In the course of dealing with the appellant’s central contention, Mr Ash submitted that the highest finding the Tribunal could be understood to have made, was that Mr Trimarchi “stored the paraphernalia commonly associated with the supply and sale of drugs” on residential premises “ … and that the [appellant] was aware of the intended use of these items.” [38] He argued that it was inappropriate for a judicial review process to go beyond inferring facts that must have been necessarily available and that the Appeal Panel could not infer from that finding that the Tribunal Member had found that that “storage” fell within the extended definition of “supply” in the Drug Misuse and Trafficking Act. [39]

8. [51]

   In response, the primary judge made it clear to Mr Ash that he had to deal with the proposition that, in her view, it was open to find, on the Housing Corporation’s contentions, that the Tribunal Member had found Mr Trimarchi was a drug dealer who sold drugs for money, and weighed and packaged them for sale in the unit for distribution at a point of sale three floors up.

9. [52]

   The primary judge dealt with the appellant’s contention in respect of the proper construction of s 91(1)(a) as follows:

Issues on appeal

1. [53]

   The appellant raises two grounds of appeal.

2. [54]

   First, that the primary judge erred in not rejecting a construction of s 91(1)(a) of the Residential Tenancies Act by the Appeal Panel, to the effect that a use of premises can be for an illegal purpose although no illegal act is committed on the premises.

3. [55]

   Secondly, that it was not open to the primary judge “to draw the serious inference” at [28] of her reasons, in that her Honour “failed to apply an appropriate standard and in any event was bound to inform the parties of the possibility of the inference being drawn and did not”.

4. [56]

   The Housing Corporation advanced three issues by its notice of contention.

5. [57]

   First, that the Appeal Panel erred in finding (at [15]) that the laundry on level 6 did not fall within the description in s 91(1)(a) of the Residential Tenancies Act of property “available for use by the tenant in common with others”. The Housing Corporation contended that, on the proper construction of s 91(1)(a), the Appeal Panel, and the primary judge, ought to have found that the common property of the building in which the appellant resided included the laundry on level 6, and that the use of the laundry for the supply of drugs was use of “property adjoining or adjacent to the premises”.

6. [58]

   Secondly, that the primary judge ought to have overturned the Appeal Panel’s finding (at [16]) that it was not open to the Tribunal at first instance to find that the unauthorised installation of a steel door was evidence supporting use of the premises for an unlawful purpose within s 91(1)(a) of the Residential Tenancies Act. The Housing Corporation contended that the primary judge ought to have found that it was open to the Tribunal at first instance to:

   1. (1)

      accept the video footage of the unique nature of the steel door with its double key and vertical bar entry;

   2. (2)

      accept the evidence of Constable Phillips that such doors were associated with preventing the discovery of criminal activity;

   3. (3)

      reject the appellant’s explanation for the installation of the steel door; and

   4. (4)

      draw the inference as to unlawful use.

7. [59]

   Thirdly, the Housing Corporation contended the primary judge ought to have dismissed the proceedings because the finding by the Tribunal that the elements of s 91(1)(b) were satisfied, because the premises were used to hide the proceeds of crime, was not disturbed either by the Appeal Panel or the primary judge.

Appellant’s submissions

1. [60]

   In respect of the appellant’s first ground of appeal, Mr Ash submitted that in order for s 91(1)(a) to be engaged in circumstances where the Appeal Panel had held that the activity which took place in the level 6 laundry did not take place on property “adjoining or adjacent to the premises” within the meaning of s 91(1)(a), it was necessary that the Tribunal find, first, that the residential premises had been used for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act and secondly, that the appellant had intentionally or recklessly caused or permitted that use. [41]

2. [61]

   Mr Ash also submitted that the appeal fell for determination in circumstances where, while there was no issue that Mr Trimarchi was an occupant of the residential premises who supplied a prohibited drug “elsewhere” within the meaning of the Drug Misuse and Trafficking Act, no drugs were found at the residential premises and “no inference that either packaging or weighing” had taken place on or in the residential premises was drawn by either the Tribunal or the Appeal Panel.

3. [62]

   Mr Ash argued that unless the storage per se of the balloons and scales found at the premises was an element of a relevant offence under the Drug Misuse and Trafficking Act, then, without more that storage did not constitute “supply” any more than the storage of cricket gear amounted to playing cricket. Secondly, he contended that the Tribunal and the Appeal Panel erred “in applying a test of nexus between use and illegality”. [42] In his submission, the only issue was whether the premises were used for an unlawful purpose.

4. [63]

   As to the second ground of appeal, Mr Ash took issue with the inference drawn by the primary judge that it was at least implicit in the Appeal Panel’s reasoning that “the finding of the equipment in the leased premises on level 3, and the plaintiff’s statements about it at the execution of the search warrant, was consistent with the premises themselves being the place where the drugs were weighed and packaged before being supplied to customers on level 6 (and elsewhere) despite no drugs being found on that occasion.” [43]

5. [64]

   Mr Ash submitted that this inference was not available, in circumstances where he contended that if either the Tribunal or the Appeal Panel had been satisfied that such an inference was available, neither would have needed to consider the meaning of “use” in s 91(1). This was because, if the primary judge’s conclusion (at [28]) was open, the inferred activity within the premises would have fallen within the extended definition of “supply” in the Drug Misuse and Trafficking Act.

Housing Corporation’s submissions

1. [65]

   Ms McWilliam, who appeared for the Housing Corporation on appeal, and at all earlier hearings, did not contest the appellant’s submission that in order for s 91(1)(a) to apply, it was necessary that the Tribunal find the appellant had used the residential premises for an unlawful purpose.

2. [66]

   However, Ms McWilliam submitted that the appellant’s argument that storage of certain items at the premises (e.g. balloons and scales) did not engage s 91(1)(a) of the Residential Tenancies Act was based on a misconceived analysis of the findings of fact made by the Tribunal, which were accepted as being open both by the Appeal Panel and the primary judge.

3. [67]

   Ms McWilliam argued that the Tribunal’s findings were not only based on one piece of evidence, being the mere storage of drug paraphernalia on the premises. Rather, the totality of the evidence before the Tribunal founded its conclusion that the premises were used to facilitate an unlawful purpose, namely the sale or supply of heroin by Mr Trimarchi. For example, the Tribunal took into account that he had supplied and sold drugs at the “pit stop” on level 6 of the premises, that the drug paraphernalia found at the premises was stored there, and that it was used for the purpose of Mr Trimarchi supplying heroin. The Tribunal also had before it evidence of cash in the amount of $23,970 found on the premises, and also referred to the multiple mobile phones found on the premises. It also accepted the surveillance evidence of drug runs being conducted by Mr Trimarchi from the premises to other locations, and it was satisfied that he provided heroin to persons in small balloons like the ones found at the premises. Accordingly, once the Tribunal’s findings of fact were properly understood as being directed not only to the storage of items at the premises, the appellant’s question of law did not arise.

4. [68]

   Ms McWilliam submitted that the Tribunal accepted the Housing Corporation’s case that the balloons, scales and multiple mobile phones found at the premises were being used at the premises for the purpose of supplying drugs from the premises. In addition, Ms McWilliam submitted that there was no evidence before the Tribunal, and it was not suggested by the appellant, that the packaging of drugs occurred at any place other than the premises.

5. [69]

   Ms McWilliam characterised the appellant’s second ground of appeal as complaining of a denial of procedural fairness, which complaint, she submitted, was without foundation. She submitted that the appellant had argued before the primary judge that the mere use of leased premises to store equipment for the weighing and packaging of heroin to be supplied elsewhere did not amount to use of the premises for the purposes of supply. In such circumstances the primary judge was entitled to express her view that the Appeal Panel’s reasoning was not directed to mere storage but was, at least implicitly, a finding that the premises themselves were the location where the weighing and packaging occurred.

6. [70]

   Ms McWilliam submitted that the Tribunal’s reasons had to be understood first, in the context of its case that the appellant intentionally or recklessly permitted her husband, Mr Trimarchi, to use the residential premises and the level 6 laundry room for the purposes of the sale and supply of a prohibited drug. Relevant too, was the evidence set out earlier, but which bears repetition, that:

7. [71]

   Ms McWilliam drew attention to the fact that before the Tribunal the Housing Corporation’s case was that the residential premises were being used to store the drugs as well as to weigh them there, and that Mr Trimarchi placed the heroin in the balloons within the residential premises and stored the proceeds of the drug sales there.

8. [72]

   Taken in that context, Ms McWilliam submitted that, as the primary judge found, a number of matters were implicit in the Tribunal’s reasons. First, that the Tribunal found that the scales located on the premises were used for weighing the drugs and the balloons for packaging them. [45] When taken with the last sentence of [6] of the Tribunal’s reasons, it was apparent that the Tribunal found the appellant knew the items referred to in [5] were used for the purpose of her husband's supply. Secondly, Ms McWilliam submitted that the last sentence in [8] was an implicit finding as to the packaging of heroin in balloons at the premises. Thirdly, Ms McWilliam submitted that the statement in [10], “even if no heroin was actually found at the premises”, was a finding that that there would have been heroin in the premises at some stage in the course of packaging. Ms McWilliam submitted that that conclusion was reinforced by the Tribunal’s reference to the appellant’s admissions and the fact that on the video recording of the execution of the search warrant, the appellant responded to a question “[w]here does he normally keep [the heroin]?”, by saying, “[w]e used it this morning.”

9. [73]

   Fourthly, Ms McWilliam submitted that the fact the Tribunal found that supply (in the sense of “keeping or having in possession for supply”) was taking place on the premises was implicit in the finding that the appellant was aware the items (balloons, scales) were used for the purposes of her husband's supply of heroin and the rejection (at [6]) of the appellant’s submission that these items were for domestic use, taken, again, with the last sentence of [8] of the Tribunal’s reasons.

10. [74]

    Ms McWilliam submitted that the primary judge had squarely placed Mr Ash on notice in the course of argument that her Honour was of the view that he was misreading the Tribunal’s findings and that it was implicit in that body’s reasons that the residential premises themselves were being used (with the appellant’s knowledge) for “supply” within the extended meaning given to that term in s 3 of the Drug Misuse and Trafficking Act.

11. [75]

    As to the second ground of the notice of contention, Ms McWilliam submitted that the Tribunal’s findings concerning the steel door were open to it on the basis of the evidence the Housing Corporation had adduced. Accordingly, it was not open to the Appeal Panel to find on an appeal confined to a question of law, that there was no evidence to make that finding or that the finding was perverse. She contended that if this Court accepted that the Tribunal’s finding as to the steel door was open, that overcame the basis for the appeal, as the Tribunal found the steel door supported the inference of the use of the premises themselves for the purposes of supply of prohibited drugs and for hiding the proceeds of crime under s 91(1)(b) of the Residential Tenancies Act.

Consideration

1. [76]

   Three points should be noted about an appeal to the Supreme Court “on a question of law” such as that for which s 83(1) of the NCAT Act provides.

2. [77]

   First, on such appeal, the existence of a question of law is not merely a qualifying condition to the right of appeal, but the question of law alone is the subject matter of the appeal. [46] The Supreme Court cannot engage in a “review of the merits” of the decision. [47]

3. [78]

   Secondly, such an appeal is in the nature of a judicial review in which it is necessary to examine for legal error what has been done in the Appeal Panel. [48] That will almost inevitably require consideration of the Tribunal’s findings to determine whether the Appeal Panel’s conclusion on the question of law identified in respect of the Tribunal’s reasons was open.

4. [79]

   Thirdly, on such an appeal, in certain circumstances, a new issue, not raised before the Tribunal, may be raised. [49] In considering whether to permit that course in the exercise of the court’s discretion, the court will take into account Coulton v Holcombe considerations. [50] It will also take into account considerations specific to the limited nature of an appeal from the Tribunal on a question of law, for example that referred to by Gummow J in Federal Commissioner of Taxation v Raptis, [51] “that there is difficulty in finding an ‘error of law’ in the failure in the Tribunal to make a finding first urged in this Court.” [52]

5. [80]

   This is relevant because Mr Ash accepted that the proposition that the Housing Corporation had to establish an unlawful act on the residential premises was not raised by the appellant before either the Tribunal or the Appeal Panel. It was first raised before the primary judge. The Housing Corporation did not object to it being raised before her Honour or in this Court. This is, no doubt, first, because that is how it ran the case before the Tribunal in any event and secondly, because it is tolerably apparent from the Appeal Panel’s reasons that, having held the level 6 premises did not fall within the class of property referred to in s 91(1)(a), it was necessary that it determine whether the residential premises themselves had been used for an unlawful purpose. [53]

6. [81]

   It is convenient to deal first with the appellant’s second ground of appeal, concerning paragraph [28] of the primary judgment. If it is rejected, the statutory construction point raised by the first ground of appeal falls away because the effect of the primary judge’s finding at [28] was that the Tribunal held that the residential premises themselves were being used for an unlawful purpose.

7. [82]

   For the reasons I have given, in order to deal with the appellant’s appeal it was necessary for the primary judge to identify the questions of law the appellant sought to advance and to consider whether those questions of law arose. This meant her Honour had to determine what the Tribunal had decided, which the Appeal Panel had held was open on the evidence. This was essential, because the appellant was contending the Tribunal’s decision turned on finding that there had been use of the premises for illegal purposes because of the sale of the heroin in the level 6 laundry, but that the Tribunal had not concluded that any unlawful activity had occurred within the residential premises themselves.

8. [83]

   The Housing Corporation’s case before her Honour, however, was that the Tribunal had found both the residential premises and the level 6 laundry had been used for unlawful purposes within the meaning of s 91(1)(a). Insofar as the residential premises were concerned, the Housing Corporation relied upon the extended definition of “supply” in s 3(1) of the Drug Misuse and Trafficking Act.

9. [84]

   In order to determine the competing contentions, it was open to the primary judge to look not only at the Tribunal’s express findings, but also to identify any decision implicit in the Tribunal’s findings, that is to say, decisions which were necessary steps in the Tribunal’s reasoning, whether or not made explicit by the Tribunal. [54] This included decisions which were “necessary steps in the Tribunal's reasoning”, [55] or “necessarily implicit in making the finding”, a “necessary step in the Tribunal reaching its conclusion” and which “necessarily depended upon” accepting there was evidence to support a finding. [56] It was this exercise in which the primary judge engaged in paragraph [28] of her reasons.

10. [85]

    In my view the matters to which Ms McWilliam drew the Court’s attention as supporting paragraph [28] of the primary judge’s reasons, [57] amply supported the primary judge’s conclusion that the Tribunal found Mr Trimarchi was weighing and packaging the drugs on the premises.

11. [86]

    Accordingly, it was open to the primary judge to conclude, as her Honour did (in [28]), that the appellant intentionally or recklessly permitted Mr Trimarchi to use the residential premises for the supply of heroin, using the word “supply” in the context of the extended definition in s 3(1) of the Drug Misuse and Trafficking Act as meaning “keeping or having in possession for supply”. It was open to the primary judge to find that it was implicit in the Appeal Panel’s decision and, in turn, the Tribunal’s reasons, that the premises were being used by Mr Trimarchi, to the appellant’s knowledge, for the purposes of weighing and packaging the drugs.

12. [87]

    Mr Ash questioned why, if the Tribunal and Appeal Panel reached that conclusion, each had nevertheless considered the Housing Corporation’s case that the sales of heroin Mr Trimarchi effected in the level 6 laundry also constituted a use of property within the meaning of that term in s 91(1)(a).

13. [88]

    I should first say that I am of the view that the Tribunal clearly considered whether what was taking place in both areas fell foul of s 91(1)(a). It is apparent that the Tribunal considered what was taking place within the residential premises themselves at [5] – [6] and [9] – [11]. The Tribunal also considered Mr Trimarchi’s illegal activities on level 6 (at [7], [12]). Paragraph [12] of the Tribunal’s reasons commenced with the word “furthermore” clearly indicating that the Tribunal was considering the Housing Corporation’s case concerning level 6 in contradistinction to its previous consideration of the residential premises themselves.

14. [89]

    I would infer that the Tribunal Member and the Appeal Panel considered both areas because that was the case the Housing Corporation submitted should be addressed. The extent of the unlawful use is referred to in s 91(2) and, in any event, would be relevant to the exercise of the discretion for which s 91 provides. [58]

15. [90]

    Having regard to the exchange between the primary judge and Mr Ash in the course of submissions, which I have set out earlier, [59] in which her Honour squarely put Mr Ash on notice of the approach she considered was open in resolving the appeal before her, his complaint of denial of procedural fairness in the respect set out in the notice of appeal cannot be sustained.

16. [91]

    Further, during the course of submissions, Mr Ash acknowledged that ground two turned on the substance of the matter, rather than whether there had been a denial of procedural fairness. He was correct to do so. In an appeal confined to a question of law, it is difficult to see what turns on a complaint that its determination was not procedurally fair. [60]

17. [92]

    Two other matters relevant to the Housing Corporation’s case concerning the unlawful use of the residential premises should be addressed.

18. [93]

    First, Mr Ash accepted that it was not open to the Appeal Panel to overturn the Tribunal’s finding in relation to the steel door. This was a proper concession. On an appeal on a question of law, that finding could only be overturned if there was no evidence to support it. [61] As the evidence outlined earlier in these reasons demonstrated, there was a sound evidentiary basis for the Tribunal’s conclusion that “the door was installed as the drug business conducted by the husband brought with it a risk of drug related home invasion” [62] and that “the alteration of the door … formed an integral part of the supply of heroin as carried out by the [appellant’s] husband …”. [63]

19. [94]

    Secondly, the Appeal Panel’s observation that there was no challenge to the appellant’s evidence that the cash in the amount of $23,970 found on the premises was obtained lawfully, [64] was not soundly based. Before the Tribunal, the appellant gave evidence in chief that the cash found on the premises came from relatives of Mr Trimarchi. Ms McWilliam challenged that evidence in cross-examination. In particular, she put to the appellant that she “took the police straight to the money because [she] understood that that money was not lawfully obtained”. The appellant denied that proposition. In final submissions, Ms McWilliam put to the Tribunal Member that the residential premises were being used, among other matters, to house the cash, being the proceeds of drug supply. It is plain that the Appeal Panel’s statement concerning the money found on the premises was simply wrong. As it was not open to the Appeal Panel to make any finding on the merits, assuming that to be what it did in this passage of its reasons, it cannot displace the Tribunal’s finding that the proceeds of crime were stored on the premises. [65]

20. [95]

    Had the Appeal Panel and the primary judge also considered the matter on the basis that the installation of the steel door was, as the Tribunal held, undertaken for the purposes of facilitating the unlawful use of the premises and, too, taken into consideration the Tribunal’s finding that the cash found on the residential premises constituted the proceeds of crime, the conclusion that the Tribunal found that the residential premises themselves (as distinct from level 6) were being used for an unlawful purpose within the meaning of s 91(1)(a) was overwhelming.

21. [96]

    This conclusion is sufficient to dismiss the appeal.

22. [97]

    As I have said, in such circumstances the first ground of appeal concerning the proper construction of s 91 of the Residential Tenancies Act falls away. What follows, accordingly, is not essential to my conclusion concerning the second ground of appeal.

23. [98]

    The proper construction of s 91 is not the subject of any authority in this Court according to the parties and my researches. [66] I would make the following observations concerning its construction.

24. [99]

    The construction of s 91(1)(a) for which the appellant contends is, in my view, consistent with the language and purpose of the provisions of the Residential Tenancies Act. [67]

25. [100]

    The text of s 91(1)(a) supports the proposition that the “use” of the premises or property to which the provision refers must be for an unlawful purpose. This construction follows from the ordinary meaning of the provision, which requires the “use” to be one “for the purposes” of matters which fall within the Drug Misuse and Trafficking Act, suggesting those matters are the focus of the use to which the provision applies. All the verbs referred to after the phrase “for the purposes of” constitute offences under that legislation. [68] This construction is also supported by the use, in s 91(1)(b), of the phrase “for any other unlawful purpose”, indicating that the purpose referred to in s 91(1)(a) must also be an “unlawful” one.

26. [101]

    The heading to s 91, “Use of premises for illegal purposes”, is not part of the Residential Tenancies Act. [69] However that does not preclude the court from having regard to it as relevant context for the purposes of the statutory interpretation exercise. [70] Section 34 of the Interpretation Act permits a court to have regard to extrinsic material, in the circumstances for which s 34(1) provides, in the interpretation of a provision of an Act if that material is capable of assisting in the ascertainment of the meaning of the provision. [71] In my view, the heading supports the interpretation of s 91 for which Mr Ash contended.

27. [102]

    There is also analogical support for Mr Ash’s submission that the “use” of the residential premises referred to in s 91(1)(a) must be for an unlawful purpose, rather than an incidental use in a line of Australian authority in the area of confiscation or forfeiture of property (confiscation cases). These cases consider expressions such as “used in connection with the commission of an offence.” They must be used cautiously having regard to the different language in the statutes the subject of the confiscation cases, in particular the use of relational terms which tend to focus on a link between the use of the property and the relevant offence and might be seen, therefore, to catch a wider range of conduct than that caught by the s 91 language “use … for the purposes of …”. Nevertheless such cases are of some assistance in considering the meaning of “use” in s 91(1)(a).

28. [103]

    Rintel, which the Appeal Panel applied in McGuinness, concerned, relevantly, an application by the Crown for forfeiture of land under s 10 of the Crimes (Confiscation of Profits) Act 1988 (WA) (Confiscation Act).

29. [104]

    Property could be forfeited under the Confiscation Act if it “was used in, or in connection with, the commission of the offence”. [72] The application for forfeiture of land was based upon the ground that the respondent’s house was used in, or in connection with, the commission of the offences of possession of amphetamines with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA), and possession of heroin with intent to sell or supply, contrary to s 6(1)(9) of that Act. Amphetamines were found in the house. Heroin was found in the house concealed in a Polaroid camera. Two sets of scales bearing traces of both heroin and amphetamines were also found in the house. The respondent admitted to police officers that the amphetamines were to be supplied to others at the house. The evidence indicated that the scales were used for the preparation for supply of the drugs by weighing them. [73]

30. [105]

    Malcolm CJ observed that the phrase “‘used in, or in connection with, the commission of an offence’ [connoted] a use of a thing which has a relationship with the commission of the offence.” [74] His Honour held that the use of the house as the place to store, prepare and sell or supply the drugs constituted a use of the house by the respondent for those purposes in the ordinary meaning of the word “used”, namely “to employ for a purpose” and the ordinary meaning of “use” being “utilization or employment for or with some aim or purpose”. [75]

31. [106]

    White v Director of Public Prosecutions (WA) [76] was another case concerning the confiscation of property used for criminal activity. White was convicted of a murder committed by shooting the victim five times within the boundary of a fenced and gated property (the gate being locked at White’s direction) and again outside the premises, after the victim climbed over the gate. French CJ, Crennan and Bell JJ observed that “[o]n the face of it, the mere doing of an act in or on a property in connection with the commission of a confiscation offence, does not necessarily fit comfortably within the concept of use applied to property”, applying the ordinary meaning of the verb “use” as “to ‘[m]ake use of (a thing), esp for a particular end or purpose; utilise, turn to account’.” [77] However, the plurality held that the relationship which the words “in connection with” in s 146(1)(c) of the Criminal Property Confiscation Act 2000 (WA) forged between “act or omission done on the property” and “the commission of a confiscation offence” suggested that, even though it might involve an extension of the verb “use”, the conduct described in s 146(1)(c) could be brought within the meaning “makes criminal use of property” in s 147, without doing violence to the language of the latter section. Both purpose and context favoured that interpretation. [78]

32. [107]

    In Chalmers v R, the Victorian Court of Appeal followed White and Rintel in concluding that the word “used” in the phrase “used in, or in connection with, the commission of the offence” in s 3(1) of the Confiscation Act 1997 (Vic), should be given its ordinary meaning of “employed, or made use of, for a particular end or purpose.” [79] In considering examples of what may constitute “use”, the Court observed that the mere fact that an act is done in, or on, a particular property would ordinarily not suffice to bring that property within the definition, because, as a matter of ordinary language, this could not be characterised as a “use” of the property. Rather, it was only when the property, or some feature or attribute of it, had been turned to advantage by the offender, or enlisted to the offender’s purpose, that it would be possible to say that the property has been “used”. [80]

33. [108]

    Barrett J (as his Honour then was) reached a similar conclusion, without reference to authority, in Tannous v Cipolla Bros Holdings Pty Ltd, observing that “[t]he concept of use or user relates to the purpose for which the premises are employed, as distinct from activities incidental to the pursuit of that that purpose.” [81] Applying that construction, his Honour held that a tenant’s hosing activities did not constitute a breach of the covenants of a lease which provided that the tenant “must not … use the property … for any activity … that is or may become a nuisance or annoyance to the landlord or to the owner or occupier of any neighbouring property.” [82] In his Honour’s view, while cleaning was “no doubt an activity, it [was] not one for which premises are ‘used’”. [83]

34. [109]

    In S Schneiders & Sons Ltd v Abrahams, [84] the English Court of Appeal considered the meaning of “use” in a context analogous to that arising under s 91(1)(a). The appellants (landlords) brought an action to recover possession of premises of which the respondent was tenant, relying on s 4(b) of the Rent and Mortgage Interest Restrictions Act 1923 (UK). That section provided that no judgment for the recovery of possession of any dwelling-house to which the Act applied should be given unless “the tenant … has been convicted of using the premises or allowing the premises to be used for an immoral or illegal purpose.” The respondent had been convicted of receiving at the rented premises property of the landlords (a roll of Italian cloth) well knowing the same to have been stolen. It was not an element of the offence that the receiving should be on any premises. Their receipt on the demised premises was incidental. [85]

35. [110]

    All members of the Court held that in order to fall within s 4(b), it was necessary to find the premises were used in some manner for the purpose of committing the relevant offence. Thus, Bankes LJ held it was “necessary to show that the tenant has taken advantage of his tenancy of the premises and of the opportunity they afford for committing the offence.” [86] Scrutton LJ held it was “enough if there is a conviction of a crime which has been committed on the premises and for the purpose of committing which the premises have been used; but that it is not enough that the tenant has been convicted of a crime with which the premises have nothing to do beyond merely being the scene of its commission.” [87]

36. [111]

    For the reasons given in relation to the second ground of appeal, the construction for which Mr Ash contends does not avail the appellant. It is plain that Mr Trimarchi, to the appellant’s knowledge in the relevant sense, when weighing and packaging the heroin on the residential premises used the premises for the purpose of committing the offence of supplying heroin in the sense to which the authorities I have discussed refer. The presence of the heroin on the premises could not be said to be incidental.

37. [112]

    Having regard to the conclusion in relation to the second ground of appeal, it is unnecessary to consider the notice of contention insofar as it concerned the question whether the level 6 premises fell within the phrase “any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others)” in s 91(1)(a).

Orders

1. [113]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appellant to file the notice of appeal in the form of the draft included in the White Book within 7 days.

   3. (3)

      Appeal dismissed.

   4. (4)

      Appellant to pay the Housing Corporation’s costs of the application for leave to appeal and the appeal.

2. [114]

   MEAGHER AND LEEMING JJA: We have had the advantage of reading McColl JA’s reasons in draft. Leave to appeal was not opposed and should be granted. What follows assumes a familiarity with the nature of the underlying proceedings and the appeal to this Court.

3. [115]

   The first question that arises, as her Honour observes at [91], is the matter of substance underlying ground 2 namely whether the Tribunal’s findings included that Mr Trimarchi, the appellant’s partner, was weighing and packaging the drugs in the leased premises. We agree with McColl JA’s conclusion that such a finding was made and, for the further reasons that she gives, that ground 2 is not made out.

4. [116]

   It follows (see [81] above) that the issues concerning the construction of s 91(1) of the Residential Tenancies Act 2010 (NSW) raised by ground 1 do not arise and that the appeal should be dismissed with costs.

5. [117]

   We prefer not to express any view on these matters of construction which should await determination in a case in which it is necessary to do so.

6. [118]

   We agree with the orders McColl JA proposes.