Bele-Verdy v The North Coast Community Housing Company Ltd

The scope and nature of internal appeals

1. An appeal to the Appeal Panel from a decision of the Tribunal is an internal appeal. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) relevantly provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. Section 4 of the NCAT Act defines an interlocutory decision of the Tribunal as: "a decision made by the Tribunal under legislation concerning any of the following - (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal."
3. Section 4 also defines an ancillary decision of the Tribunal as: "a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including - (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings."
4. The decision to extend time for the issue of a warrant was an interlocutory decision. Accordingly, the appellant would require leave to appeal to the Appeal Panel against the Tribunal's decision to extend time for the issue of a warrant, even on a question of law.
5. The decision that the warrant should issue was dependent upon satisfaction that the order for possession had not been complied with or that a condition of suspension of the order had not been complied with. That decision would constitute an ancillary decision and accordingly the appellant may appeal against that decision as of right on a question of law and with leave on other grounds.
6. An internal appeal to the Appeal Panel does not provide a losing party in the Tribunal at first instance with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
7. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
8. The Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] - [40] provided further guidance in relation to what is a question of law and the categories of questions of law. At [26] - [28] the Appeal Panel stated: "26 … great care must be taken in drafting a notice of appeal to ensure that it is apparent, on its face, that the ground of appeal raises a question of law. If not, leave to appeal is necessary. 27 Where, however, there is a question of law in substance, a court (and, it follows, an Appeal Panel) has discretion (to be exercised judicially and in the interests of justice) to direct its formal notification in an amended notice of appeal: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [60]. In appropriate circumstances, the Appeal Panel may elect to waive the requirement to formally lodge an amended notice of appeal, given its mandate to act "with as little formality as the circumstances of the case permit … without regard to technicalities or legal forms": NCAT Act, s 38(4); Wollondilly at [19]. Where the party is not legally represented, a more generous approach is warranted: Kudrynski at [50]-[51]. This is an aspect of ensuring procedural fairness. 28 When dealing with self‑represented parties, the Appeal Panel has in many instances considered for itself whether a question of law is raised, applying John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [12]: Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94 at [11], FSO v Secretary, Department of Education [2024] NSWCATAP 154 at [34], El‑Mohamad v Lin [2024] NSWCATAP 139 at [31], Johnson v Nachar [2024] NSWCATAP 135 at [14], Batshon v Suttons Motors Homebush Pty Limited [2024] NSWCATAP 114 at [19], Craig v Shallita [2024] NSWCATAP 112 at [16]."
9. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division (other than interlocutory decisions) are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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).
10. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: "… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
11. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
12. In Collins v Urban, the Appeal Panel, at [84], summarised the general principles derived from cases dealing with the grant of leave to appeal in other contexts as follows: "(1) In order to be granted leave to appeal, the applicant 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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."
13. To the extent that the decision challenged on the appeal was an interlocutory decision, an appeal lies only by leave, even where the appeal is brought in respect of a question of law. The principles which apply to leave to appeal an interlocutory decision were considered by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54. The Appeal Panel stated at [34] to [35]: "34 [T]here is no specification in the NCAT Act as to the circumstances in which leave should be granted in respect of interlocutory decisions. Rather, there is a discretion to be exercised and general principles apply to the grant of leave to appeal such decisions. 35 As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave."
14. Paragraph [84] of the Appeal Panel decision in Collins v Urban is set out above, at [24].

Grounds of Appeal

1. The appellant's grounds of appeal, as set out in the Notice of Appeal commence: "9-7-2024 Conciliation & hearing changed to video or telephone conference @12.30 5-7-24 this was unsuitable due to serious medical appts and sorry business unplanned occurring on 1-7-2024 change of 9-7-2024 date required completely"
2. The appellant then set out over two pages a chronology of events which the appellant asserts occurred between 1 July 2024 and 9 July 2024.
3. The substance of the matters raised by the appellant was that the appellant had sought an adjournment of the hearing on 9 July 2024 and had provided medical evidence supporting that application. The appellant asserts that she had received notification from the Tribunal at 9:30 am on 9 July 2024 of a hearing in person on 22 July 2024 at 10:15 am to determine "whether a warrant can issue". The appellant asserted that the hearing on 9 July 2024 at 10:15 am, of which she had received notice on 5 July 2024 had been vacated. It is clear that that had not occurred, as the hearing proceeded, albeit in the absence of the appellant.
4. The appellants' case on the appeal is set out more succinctly in providing details of the grounds upon which the appellant submits that the decision was not fair and equitable: "1 Decision is not fair and equitable… Appellant was not present @ hearing on 9-7-24 Appellant received notice of date change for 22/7/2024 by 9:30 am on 9-7-2024 before 10:15 am 2 Orders made on 9-7-2024 clearly support evidence that notice had been confirmed for change to 22/7/2024 prior to 10:15 am on 9/7/2024 3 Decision was against weight of evidence of case as per all rents paid to 1-8-2024 as per appeal orders 2/2/2024 & evidence filed and noted by registrars 4 Respondent failed to file current payments of over $5900 to NCAT as evidence 5 Respondent failed to comply with NCAT Panel & Housing Act 2010 as per no rental arrears as per Panel orders outlined 2/2/2023 6 Significant new evidence is now available that was not available at time of hearing 1 medical… 2 CPA report 3 DCJ policy contractor agreements 7 Respondent breaches all NRH Health and Safety Act"
5. The appellant did not provide, either in her written documents or at the hearing of the appeal, any explanation of the significance of the items numbered 5, 6(3) and 7.
6. As the Appeal Panel stated in Cominos v Di Rico [2016] NSWCATAP 5, at [13]: "It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.'"
7. Applying that approach in this case, we identify that the appellant raises the following grounds of challenge to the decision of the Tribunal: 1. That the Tribunal failed to accord the appellant procedural fairness by proceeding in her absence, in particular in circumstances where the Tribunal had issued notice of a hearing on 22 July 2024; 2. That the Tribunal failed to adjourn the proceedings despite the appellant providing medical evidence, and despite the appellant being involved in sorry business; 3. That the appellant was up to date with her rental payments.
8. A denial of procedural fairness, if material to the outcome of the proceedings, may raise a question of law. The second and third grounds we have identified do not raise any question of law.

Denial of procedural fairness

1. If the appellant had been misled by the Tribunal's issue of a notice of hearing for 22 July 2024 and believed by reason of the receipt of that notice that the hearing listed for 9 July would not proceed, that may have constituted a denial of procedural fairness to the appellant:
2. The appellant's Notice of Appeal does not explicitly state that the appellant did not attend the hearing on 9 July 2024 (in person or remotely) because she understood the hearing had been vacated, and the appellant did not put before the Appeal Panel any evidence to that effect.
3. Where a party appeals against a decision on the basis of an alleged denial of procedural fairness, the Appeal Panel would usually expect to have evidence (preferably in the form of an affidavit or statutory declaration, but at the very least a signed statement) to establish the circumstances in which the appellant claims to have been denied procedural fairness: See Waters v Waghorn [2016] NSWCATAP 247 at [31].
4. Nevertheless, even assuming in the appellant's favour that she had failed to attend the hearing because she had received the notice of hearing to take place 22 July 2024 and had understood for that reason that the hearing on 9 July 2024 had been vacated, we are not persuaded that any denial of procedural fairness was material.
5. As the Appeal Panel noted in YHY v YHZ [2024] NSWCATAP 117 at [30], with reference to the High Court decisions in Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12: "denial of procedural fairness by a decision-maker gives rise to jurisdictional error if it is 'material'. Materiality in this context refers to a realistic possibility, as distinct from a probability, that the decision could have been different as a matter of reasonable conjecture but for the denial of procedural fairness".
6. The appellant had been required to file any documents on which she relied before the hearing on 9 July 2024. The Tribunal had regard to the material filed by the appellant and concluded that the pre-condition for the issue of a warrant, that is that the order for possession had not been complied with, was satisfied. The fact that the appellant had not complied with the order for possession was not in doubt.
7. The only basis upon which the appellant sought to resist the issue of a warrant was that she disputed that she was in arrears in her rent. The appellant did not direct the Appeal Panel to any document which had been before the Tribunal on 9 July 2024 which established that there was any basis for that proposition.
8. An extension of time for the application for the issue of a warrant was required because the appellant had obtained a stay of the order for possession. In those circumstances an extension of time for the issue of the warrant was clearly justified.
9. The appellant has failed to establish that any failure to accord her procedural fairness was material to the outcome of the hearing on 9 July 2024. It follows that the ground of appeal alleging denial of procedural fairness cannot succeed.

Failure to adjourn

1. The Tribunal considered whether the appellant's medical condition warranted an adjournment of the proceedings and found it did not. We see no error in that conclusion. The evidence before the Tribunal did not suggest that the appellant could not have attended the hearing remotely, that is by telephone or audio-visual link.
2. The appellant had not informed the Tribunal of any sorry business or that she was prevented from appearing at the hearing by reason of sorry business. It cannot be said that the Tribunal was in error in failing to adjourn the hearing on the basis of a matter of which it was not aware.

Rental payments

1. The appellant claimed that the decision was against the weight of evidence because the appellant had paid rent to 1 August 2024.
2. That is a question of fact and the appellant has not shown by reference to material that was before the Tribunal that it is correct. The Tribunal considered the appellant's submission, which referred to payments which the appellant claimed to have made, and noted that those payments had been accounted for by the respondent.
3. In any event, the decision of the Tribunal that rent was in arrears at the date of the order for termination was not open for reconsideration by the Tribunal at the hearing on 9 July 2024.
4. As the Appeal Panel noted when refusing the stay on an ex parte basis on 16 July 2024, the appellant could have avoided execution of the warrant by paying rent up to date before execution.
5. To the extent that the appellant suggested that she had in fact done so, but the respondent had failed to acknowledge that fact, that may be a matter for consideration elsewhere, but it is not a matter that could affect the determination of an appeal against the orders made on 9 July 2024.
6. We are not satisfied that the Decision was either against the weight of evidence or not fair and equitable. Nor are we satisfied that the appellant may have suffered a substantial miscarriage of justice or that the Decision is attended with sufficient doubt to warrant the grant of leave to appeal.

Further evidence

1. The appellant sought to rely upon further material which she said she had only recently obtained from an accountant. The test of whether evidence was reasonably available at the time of the original hearing was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111.
2. At [23] - [25] the Appeal Panel held: "23 … the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. … 24 … something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c). 25 Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence."
3. We do not consider that the material which the appellant now seeks to rely upon would not reasonably have been available if the appellant had sought to obtain the material in advance of the hearing. Accordingly, leave to appeal is refused and the appeal is dismissed.

Orders 1. Leave to appeal is refused. 2. The appeal is dismissed.

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: 17 January 2025