Borland v Henderson

NCAT Appeal Panel|2022-02-24

Background to appeal

The appellants were tenants and the respondent was the landlord of residential premises in Nicholson Street, Balmain, New South Wales.
The parties entered into a written residential tenancy agreement in or about 18 May 2019. The tenants vacated the premises on or about 28 December 2021 thereby terminating the tenancy.
The landlord commenced proceedings on 6 January 2021 seeking an order regarding the payment of a rental bond under section 175 of the Residential Tenancies Act 2010 (the RT Act). The matter was listed for Conciliation and Group List hearing on 2 February 2022. The matter did not resolve in conciliation and the Tribunal noted that the claim by the landlord on the bond was limited to five items totalling $2230. The final hearing was listed for 11 March 2022.
The tenants filed a separate application RT 22/07925 on 22 February 2022 seeking orders for compensation in the amount of $15,000 pursuant to section 187(1)(c) of the RT Act and also sought an order for the bond. The claim for compensation was listed for final hearing with the landlord's claim on 11 March 2022.
The tenants sought leave to be legally represented. Initially this was refused but after a second application was considered the Tribunal granted all parties leave to be legally represented on 7 March 2022.
On 9 March 2022 the landlords filed the evidence in support of their application, including the statutory declaration of Caroline Borland and annexures and the statutory declaration of David van Zeeland and annexures.
At the hearing the landlord represented herself. The tenants were represented by counsel.

The decision of the Tribunal

The matter was listed for final hearing on 11 March 2022. The matter was set down for a 90 minute hearing and was conducted remotely by telephone. Both the landlord's and the tenants' applications were heard together.
In the landlord's claim RT 22/00474 the Rental Bond Services were directed to pay the tenants the whole of the bond.
In the tenants' claim, RT 22/07925, the Tribunal ordered that the tenants' application be dismissed. It also dismissed the tenants' application for costs.
The Tribunal published reasons for its decision, once amended under section 63 of the Civil and Administrative Tribunal Act (NSW) (the CAT Act) to the parties on 18 March 2022. It is not necessary to repeat the critical findings of the Tribunal because the appellants did not appeal any part of the decision.
The tenants have appealed the decision to dismiss their application for compensation.

The Notice of Appeal is filed out of time

The Appeal Panel has had regard to the notice of appeal filed on 11 April 2022. It is noted that the appeal was filed three days out of time. The appellants require an extension of time. In the section entitled 'do you require an extension of time' the tenants explain that they were 'out-of-state for 7 days for work and were unable to seek legal advice during that time'. An extension of time of three days is sought.
The discretionary power to grant an extension of time under s 41 of the CAT Act is unfettered but it must be exercised judicially and having regard, among other things, to s 36 of the Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings".
In Kelly v Szatow [2020] NSWSC 407 at [28]-[32], the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the plaintiff's case and consideration of whether the defendants would be prejudiced by a granting of the application: see also Jackson v Land and Housing Corporation (NSW) [2014] NSWCATAP 22 at [22].
The appellants bear the onus of demonstrating that strict compliance with the timeframe would work an injustice: see Gallo v Dawson (1990) HCA 30; 93 ALR 479.
The respondent was unable to point to any actual or perceived prejudice why the appeal should not be considered. Having regard to the overriding objectives of the CAT Act, that the appellants contend that they were unable to seek legal advice for a short period of time, and that the notice of appeal was filed only three days outside the time period for lodging appeals, we grant an extension of time to appeal.

The notice of appeal

We refer to the notice of appeal filed on 11 April 2022 and annexures. We are informed that the grounds of appeal were prepared by the appellants without assistance of counsel. The critical grounds of appeal are set out at page three of the notice of appeal and in written submissions.
It is convenient to set out the appellants' ground of appeal in full: "1. A hearing on the claim was scheduled by the Tribunal within 15 days of its filing without any directions hearing or conciliation conference. Member - even remarked on this during the start of the hearing inquiring whether a directions hearing it ever been held on why the hearing was scheduled urgently on the back of the landlord's claim against the rental bond. The lack of directions hearing deprived the applicants of procedural fairness as set forth below. 2. A second request for legal representation was made by the applicants with private medical and legal submissions. The submissions included that the applicants were both unwell and felt unsafe and unable to participate in the hearing with the respondent. Medical letters were submitted as well is information about an interim AVO entered by the Local Court. This issue could have been ventilated at a directions hearing and a proposed solution reached. Member Ash commented at the hearing that the lack of attendance prevented an opportunity for the evidence tested and it could not simply be accepted. Furthermore, the unavailability of the applicants to submit additional evidence during the hearing was detrimental to a fair consideration of the claim. For example, the respondent conceded that an oral agreement existed outside of the tenancy agreement that the applicants would be paid one months rent for painting services. The applicant submitted sworn evidence that this amount remains unpaid, however, Member Ash noted the lack of additional evidence such as a ledger. No opportunity was provided to supplant the existing evidence as no directions hearing was held and a timetable set with regard to the evidence. 3. As with 2 above, the applicants' unavailability precluded any evidence from being submitted with regard to the delay for bringing their claim for compensation and seeking leave to bring their claims. 4. The respondent initially advised at the start of the hearing that she had no knowledge of the cross-claim and also incorrectly claimed that her own claimant evidence was not in fact filed by a solicitor when a legal representative was listed on the claimant was responsible for serving evidence upon the applicants. The day prior to the hearing, the respondent sent documents to the applicant with regard to the applicants' claim. There was no opportunity to review or provide instructions to counsel and that evidence should not have been accepted hours before the hearing. Member Ash had not even seen the evidence until the applicant's counsel forwarded it mid- hearing."

Reply to Appeal

In her Reply to Appeal the respondent supported the orders made on 11 March 2022. The respondent stated that there is "no case to answer" and the tenants' application was brought out of time.

Applicable legal principles governing appeals

Section 80 of the CAT Act provides as follows: "(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. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (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. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."
Clause 12 of Schedule 4 to CAT Act states: "An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."
A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as examples of error of law: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]-[79] and [84(2)] as follows: "74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. 84 The general principles derived from these cases can be summarised as follows: … (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."
Even if the appellant establishes that he may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the CAT Act, the Appeal Panel has discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Appeal Panel's consideration of whether or not to exercise that discretion.
In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."

The appellants' submissions

The appellants were represented by counsel. Counsel did not seek to amend the notice of appeal but confirmed during oral submissions that the appeal proceeded on a singular ground of appeal, namely an error of law being a denial of procedural fairness.
The Appeal Panel proceeded on that basis. Counsel's written submissions are contained at pages 1 to 10 of the appellants' bundle. In support of the appellant's ground of appeal counsel stated that the hearing proceeded in an unorthodox fashion because it was listed 17 days after the application was filed without the benefit of a Conciliation or Group List hearing and without a direction for the exchange of evidence. In addition, it was submitted that the Member interrupted counsel seven times and prohibited counsel from speaking on at least two occasions. The result of this, it is submitted, was that counsel was prevented from making an application for an adjournment. It is submitted that the refusal to grant an adjournment constitutes a miscarriage of justice and can constitute a failure to give a party the opportunity of adequately presenting his case and is thus contrary to the rules of natural justice (see written submissions at page 7, Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8].) We note that the Full Federal Court decision relied upon concerned a litigant in person who did not appear at the hearing.
In submissions it is stated that the 'crux' of the appeal is that the appellants' application was scheduled for final hearing only 17 days after it had been filed and that the hearing was "determined in the appellants' absence".

Consideration

The denial of procedural fairness asserted by the appellants falls into the following three categories: 1. The Tribunal listed the hearing 17 days after the application was filed denying the appellants the opportunity to file additional evidence; 2. The appellants were prevented from being "present" at the hearing or from giving instructions to their counsel on limitation issues; 3. The member interrupted counsel thereby preventing counsel from bringing an adjournment application.
In respect of Ground (1) - The appellants say that had the application been listed for a Group List and Conciliation Hearing, they would have expected an order for the exchange of evidence and would have presented additional evidence.
The appellants did not bring an application to adduce fresh evidence on appeal. Following an enquiry from the Appeal Panel what new evidence the appellants want to adduce, other than the two statutory declarations already tendered, it was submitted that no specific instructions had been obtained and that these would be obtained upon the remittal of the application for re-hearing, but that there may be other invoices supporting the claim for painting.
The appellants could provide no explanation as to why invoices for painting, could not have been provided in the lengthy statutory declarations given by each appellant, given it was clear from the original application that the appellants sought to be compensated for painting they performed when they moved into the premises in 2019. Nor was it explained what, if any, new evidence the appellants would have adduced if the hearing would have been adjourned.
The appellants filed and served extensive evidence and were unable to explain, what, if any, additional evidence would be adduced if the matter was remitted. This ground of appeal must be dismissed.
In respect of Ground (2) - there is no evidence before the Appeal Panel that explained why the appellants were "prevented" from being present at the hearing. The appellants were represented by counsel and indeed stated in submissions "We give permission for our counsel Gina Edwards of Ground Floor Wentworth Chambers to make submissions and decision on our behalf at the hearing on 11 March." It is clear that the appellants and their legal counsel were under no misapprehension that their application was listed for final hearing on 11 March 2022. It was submitted that the appellants, in support of their application for legal representation had provided medical evidence to the registry explaining their inability to participate in any hearing. The medical evidence was not tendered on appeal and we are uncertain of the relevance. We are satisfied that there was no denial of procedural fairness by the Tribunal, in circumstances where the appellants elected not to attend a hearing and instead sought and were granted leave to be legally represented pursuant to section 45 of the CAT Act. The failure to seek instructions from the appellants on critical legal issues such as time limitation periods before the hearing cannot amount to a denial of procedural fairness by the Tribunal. At no stage was a request made to adjourn the hearing, even for a few minutes, to enable counsel to seek instructions, if necessary by phone. This ground of appeal must fail.
In respect of Ground (3) - The Tribunal is bound by the rules of procedural fairness: s 38(2) of the CAT Act. Relevantly, the Tribunal must "take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": s 38(5)(c) of the Act. The refusal of a reasonable request for an adjournment may amount to a denial of procedural fairness depending on the circumstances: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611 [40]; [2002] HCA 11; Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; 297 ALR 225.
The guiding principle of the CAT Act and the procedural rules in their application to proceedings in the Tribunal is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36 of the CAT Act. Section 36(4) provides that the practice and procedure of the Tribunal should be "implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings".
As noted in Raslan v Pan [2015] NSWCATAP 12 at [28] (citing Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs: Ex parte Lam (2003) CLR 1 at [37]) the focus of an enquiry about procedural fairness is on avoiding "practical injustice". It is not "an abstract notion". It is therefore relevant to consider whether the alleged breach of procedural fairness would have made any difference to the outcome of the case: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145.
There is no dispute that the appellants were given notice of the hearing and were legally represented by counsel at the hearing. The Tribunal at first instance did not make any determination about an adjournment. No application for adjournment was made, either before the hearing in writing, or by counsel at the hearing. We note that the notice of hearing clearly states that if parties are unable to attend a hearing they may bring an application for an adjournment in writing. No such application was received.
Counsel stated that she was interrupted and formed the view that there was no utility in bringing any application as she had been told to be quiet on two occasions. A question arises as to whether this amounted to a denial of procedural fairness and whether the Tribunal should have adjourned the hearing, when in fact there was no request, on its own motion.
It is apparent from the transcript that no complaint was made by the appellants' counsel that the hearing was proceeding, nor did counsel state that she was unable to adequately represent the appellants' case because they were not present with her. The hearing was conducted remotely by telephone, there was no reason given why the appellants could not have been available to give instructions if needed. The appellants may, with the benefit of hindsight, have wished to be present at the hearing, but all issues that were in dispute, as disclosed in the Reasons for Decision were argued by counsel and addressed by the Tribunal. No complaint is made about the Reasons for Decision and the grounds of appeal do not appeal or impugn any of the findings made.
Accordingly, the Tribunal at first instance cannot be criticised in proceeding with the hearing on 11 March 2022. First, there was no request for an adjournment. Secondly, there was nothing before the Tribunal that would have alerted the Member to the need to adjourn or, nor do we accept that counsel was prevented from making an application for an adjournment.
Lastly we note that the Tribunal found that the application for compensation was brought two years after the relevant time limitation had expired and refused leave to commence proceedings out of time. These critical findings by the Tribunal are not appealed and for that reason alone the appeal must fail.
We note that the submissions, rather than the grounds of appeal, seek an order for leave to appeal. At the commencement of the hearing we asked whether the appellants proceed on the basis of an error of law or whether there are grounds for which leave to appeal is required. It was confirmed by counsel that the only error on which the appeal proceeds is an error of law, namely the denial of procedural fairness. However, for abundant caution and to give finality to the parties we consider whether leave to appeal should be granted. In the absence of any submissions as to the nature of the further evidence being produced if a re-hearing were granted, the Appeal Panel is not persuaded why the outcome of the hearing would be different, or that the appellants have suffered a substantial miscarriage of justice, in the sense that they may have been deprived of a "significant possibility" or a "chance which was fairly open", of achieving a different and more favourable result. Leave to appeal is refused.
In the absence of any other ground of appeal, there is no necessity to make any other order other than to dismiss the Appeal.

Orders

The orders that we accordingly make are as follows: 1. Time to lodge the Notice of Appeal is extended to 11 April 2022. 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: 07 July 2022

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