This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal (Tribunal) on 13 January 2021.
The appellants, Akram Al Bisher and Nouras Almowoly, were the tenants of premises at Ashcroft under a residential tenancy agreement. The respondent, Mamdough Sabbagh, is the landlord of the premises.
[2]
Tribunal proceedings and decision
The landlord brought an application to the Tribunal against the tenants which was lodged on 22 July 2020. The application sought the payment of an occupation fee for the period from 30 March 2020 to 9 July 2020, an order for the payment of water usage and an order for the payment of $9,960.00 for cleaning, rubbish removal and damages to the premises.
The Tribunal first made directions on 22 July 2020. This included a direction that the tenants give to the landlord and the Tribunal any documents on which they intended to rely within 28 days and to lodge any such documents with the Tribunal within 35 days.
On 2 September 2020, the Tribunal made an order by consent for the tenants to pay the landlord the sum of $5,602.86 for rental arrears from 30 March 2020 to 9 July 2020, which was the date on which the premises were vacated by the tenants. On that occasion the damages claim by the landlord was adjourned to a date to be fixed. The tenants were ordered to file and serve any documents in relation to the landlord's claim for damages by 16 September 2020.
On 9 November 2020, the application was adjourned for hearing on a date to be fixed. A number of further directions were made. The tenants were directed to provide to the landlord and to the Tribunal either in person or by post a copy of all documents on which they intended to rely at the hearing by 7 December 2020. A further direction was made that if the tenants intended to bring a cross application against the landlord, they were required to lodge such an application with the Tribunal and provide it to the landlord by 7 December 2020. Any such cross application was required to specify the orders sought, the reasons for the orders sought including the monetary amount of each claim and to attach copies of all documents relied upon.
Order 9 made by the Tribunal on 9 November 2020 stated that:
"A failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing, unless leave is granted to do so."
The hearing proceeded in the Tribunal on 13 January 2021. The Tribunal ordered the tenants to pay the landlord the sum of $4,005.00. The order states that detailed oral reasons were given by the Tribunal. Neither party requested the Tribunal to provide a written statement of reasons for its decision under s 62(2) of the NCAT Act.
[3]
Grounds of Appeal
The Notice of Appeal was lodged on 27 January 2021. The document was completed in handwriting and is difficult to follow, but the gist of the tenants' complaint as conveyed in the document was that the hearing was not conducted fairly.
This was said to be because the Tribunal refused to permit the tenants during the course of the hearing to email photographs to the Tribunal and the landlord which they had taken when they left the premises and to rely upon those photographs as evidence. In the Notice of Appeal, the tenants emphasised that they considered that this was unfair because the Tribunal allowed the landlord to send an email to the tenants and the Tribunal during the course of the hearing and to rely upon that document.
In the Notice of Appeal, the tenants also sought leave to appeal on the basis of this complaint, contending, as we understood it, that leave to appeal should be granted because the decision of the Tribunal was against the weight of evidence having regard to the photos which the tenants contended were not taken into account at the hearing and because the photos constituted significant new evidence which was now available and which was not reasonably available at the time of the hearing.
[4]
Submissions and evidence
In deciding the appeal, we have had regard to the following:
the Notice of Appeal lodged on 27 January 2021
the Reply to Appeal dated 4 February 2021
an email from the tenants dated 3 February 2021 with copies of various photos attached
an email from the tenants dated 4 February 2021 with a copy of an invoice attached
an email from the tenants dated 5 February 2021 with copies of various photos attached
a folder of submissions and attached documents provided by the tenants which was lodged with Tribunal on 1 March 2021
a bundle of documents provided by the landlord by email on 15 March 2021, a further copy of which was lodged with the Tribunal on 25 March 2020
the oral submissions made by the parties at the hearing of the appeal.
With the submissions and documents lodged by the tenants on 1 March 2021 was a disc containing a sound recording of the hearing before the Tribunal on 13 January 2021. We understand that the hearing before the Tribunal continued for approximately three hours. The tenants did not lodge with the Tribunal a typed copy of any part of the sound recording nor a typed copy of the oral reasons of the Tribunal. This was despite the fact that on 11 February 2021 the Appeal Panel ordered the tenants, if they were relying on what happened at the hearing, to lodge with the Appeal Panel and to give to the landlord by 5 March 2021, among other things, "the sound recording, if what happened at the hearing is being relied on and a typed copy of the relevant parts which must include a typed copy of the oral reasons".
[5]
Consideration
Although the tenants also sought leave to appeal, they are essentially contending that there was a failure by the Tribunal to afford them procedural fairness, in refusing to permit them to rely upon photographs which they sought to email during the course of the hearing. That raises a question of law in respect of which there is an appeal as of right: NCAT Act, s 80.
A contention of procedural unfairness requires a close and careful consideration of what happened at the hearing before the Tribunal. In these circumstances, it is obvious that it is necessary for the Appeal Panel to review, among other things, the reasons for decision of the Tribunal. The Appeal Panel does not have the reasons for decision of the Tribunal because neither party requested the Tribunal to provide written reasons and the tenants did not, as they had been directed to do if they were relying on what happened at the hearing, provide a typed copy of the oral reasons. Nor does the Appeal Panel have a typed copy of any other part of the sound recording, because the tenants did not provide that either.
When Mr Al Bisher was asked why he had not complied with the written directions of the Appeal Panel to provide a typed copy of the relevant parts of the sound recording, he said he had been verbally told by a Registry official that it would be sufficient to provide only the sound recording. Even if such an oral statement was made, it was no basis for the tenants to fail to comply with a written direction from the Appeal Panel without seeking a formal variation of that direction.
The Appeal Panel directed the tenants to provide the Appeal Panel with a typed copy of the relevant parts of the sound recording, including a typed copy of the oral reasons, if what happened at the hearing was being relied upon by them. The reason the Appeal Panel made this direction was to put the responsibility on the tenants, as appellants, to provide a written record of what they contended were the significant statements made during what was a lengthy hearing, and thereby to assist in ensuring that the appeal was conducted efficiently and quickly.
The Appeal Panel cannot fulfil the guiding principle set out in s 36(1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings if it has to review for itself a lengthy sound recording of the hearing at first instance in circumstances where it has directed a party who is relying on what happened at the hearing to prepare a typed copy of the relevant parts and the oral reasons. Section 36(3) of the NCAT Act makes it plain that the parties to proceedings in the Tribunal have a duty to co-operate with the Tribunal and to comply with directions and orders of the Tribunal to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
It is clear from the procedural history of the proceedings in the Tribunal which we have recounted that the tenants had been directed on three occasions prior to the hearing to provide to the Tribunal and to the landlord all of the evidence on which they intended to rely. If the Tribunal did refuse to permit the tenants to email and rely upon photographs during the course of the hearing, we take it that this was because the tenants failed to comply with the directions made for the efficient conduct of the hearing on three separate occasions. Their further failure to comply with the subsequent directions made by the Appeal Panel to provide a typed copy of the relevant parts of the sound recording, including a typed copy of the oral reasons, means that the Appeal Panel is not in a position to determine, having regard to the guiding principle of the NCAT Act, whether there was any procedural unfairness as contended.
In the circumstances, the appeal based on the ground of procedural unfairness must be dismissed.
As noted, the tenants also sought leave to appeal because the decision of the Tribunal was said to be against the weight of evidence because their photos were not taken into account at the hearing. The tenants also claimed that the photographs were significant new evidence not reasonably available at the time of the hearing. As we have decided that the Tribunal did not err in proceeding in the absence of those photographs, we are not satisfied that the Tribunal made a factual error that was unreasonably arrived at or clearly mistaken, or that the Tribunal went about the fact finding process in an unorthodox manner or in such a way that produced an unfair result. Furthermore, the photographs were not evidence that has arisen since the hearing. Therefore, we are not satisfied that the tenants may have suffered a substantial miscarriage of justice in the sense described in cl 12 of Sch 4 of the NCAT Act and would not grant leave: Collins v Urban [2014] NSWCATAP 17 at [84].
[6]
Orders
For these reasons the Tribunal makes the following orders:
1. Leave to appeal refused.
2. Appeal dismissed.
[7]
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
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 April 2021