General Comment with Respect to the Grounds of Appeal
- Appeals from decisions of the Consumer and Commercial Division of the Tribunal are governed by the provisions of s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). In summary, an appeal lies as of right on any question of law or with leave on any other grounds. Clause 12 of Sch 4 provides that an Appeal Panel may grant leave under s 80(2)(b) against a decision made in the Consumer and Commercial Division only if the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because:
1. The decision of the Tribunal under appeal was not fair and equitable, or
2. The decision of the Tribunal under appeal was against the weight of evidence, or
3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
- In this case, the tenant based submissions upon the "not fair and equitable" ground and on the "against the weight of evidence" ground referred to above.
- In a decision of an Appeal Panel in Collins v Urban [2014] NSWCATAP 17 the Appeal Panel drew attention to the fact that even if the Appeal Panel is satisfied that the applicant for leave to appeal may have suffered a substantial miscarriage of justice on one of the grounds identified in cl 12, the Appeal Panel must still consider whether it should exercise its discretion to grant leave. It is not a case where the Appeal Panel must grant leave, but rather a case where the Appeal Panel may grant leave. In Collins v Urban, the Appeal Panel dealt with the principles which govern the granting of leave. They may be summarised as follows:
1. In order to be granted leave, the appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact (par 84);
2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve, issues of principle, questions of public importance or matters of administration or policy that might have general application, or where there is an injustice which is reasonably clear in the sense of going beyond merely what is arguable or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral; and
3. A factual error that was unreasonably arrived at and clearly mistaken or a case where the Tribunal has gone about the fact finding process in such an unorthodox manner or in such a way that was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
- In our view, the Decision does not give rise to any consideration of the kind described above. There are no issues or principle, or matters having general application. There is no injustice which is reasonably clear in the sense of going beyond what is arguable. The other considerations identified above also do not apply in this case.
- Rather, the Decision of the Tribunal may be summarised in these terms:
1. The internet decision was based upon construing the terms of the agreement between the parties. As stated, we can identify no error;
2. The dryer was the subject of compensation and the only issue for dispute was the amount;
3. The issue with respect to the showerheads dispute was whether the landlord had discharged his obligations by leaving new showerheads to be collected. In the circumstances of this matter, the Decision found no reduction or withdrawal or services; and
4. In respect of the claim for the costs of pest treatment, the Decision was based upon a finding of fact namely, that there was insufficient evidence to establish that the infestation of cockroaches was attributable to the landlord.
- As stated above, in our view, the tenant has not established that this is an appropriate case for the granting of leave to appeal.
- Accordingly, the appeal will be dismissed.