Boscolo v NSW Land and Housing Corporation

NCAT Appeal Panel|2017-10-20

Introduction

The appellant, Mr Mario Boscolo (tenant), was a tenant pursuant to a social housing tenancy agreement (agreement) with the respondent, NSW Land and Housing Corporation (landlord). The property is located at Marrickville (Premises).
On 13 June 2017, the Tribunal made an order terminating the agreement pursuant to cl 44 of the agreement, because the tenant was not occupying the Premises (June termination order). At that time, the tenant was incarcerated, and remains in a correctional facility at the date of this hearing. In making that order, the Tribunal considered the provisions of s154E of the Residential Tenancies Act, 2010 (RT Act) being the mandatory factors the Tribunal was required to have regard to when terminating a social housing tenancy agreement.
The tenant made various applications to set aside the termination order, those applications being made by his mother, Silvia Boscolo. Ms Boscolo appeared for the tenant in this appeal, having provided a statutory declaration that she was authorised by her son to do so.
It will be necessary to return to the history of the proceedings which is set out below.
Ultimately, those applications were dismissed and, finally, on 14 September 2017 the Tribunal dismissed an application to set aside a decision made to dismiss an earlier set aside application.
The tenant appealed the set aside decision made 14 September 2017 by way of Notice of Appeal that commenced these proceedings. In doing so, the tenant also sought a stay of the June termination order. The orders sought in the Notice of Appeal included that the June termination order be set aside. After commencing this appeal, the tenant sought to appeal the June termination directly.

Notice of Appeal and history of appeal proceedings

The application to terminate the agreement was made by the landlord on 3 February 2017. The proceedings were application number SH 17/05356. In that application, the landlord sought a termination order and an order for payment of an occupation fee on the following basis: 1. The appellant had breached cl 44.2 of the agreement by failing to occupy the residential premises, having been incarcerated on 5 May 2016 and therefore not having occupied the residential premises since that date. 2. The landlord had issued a Notice of Termination on 22 December 2016, requesting the tenant to vacate by 22 January 2017 however possession had not been returned in accordance with the notice.
Thereafter, the following occurred.
On 21 February 2017 an order for termination was made by consent (February termination order). The tenant's mother, Ms Boscolo, appeared on his behalf and consented to the order for termination with vacant possession to be delivered by 20 March 2017. At this time, the order for payment of an occupation fee was also made. In making these orders, the Tribunal noted that the landlord agreed that should the tenant be released from incarceration prior to 20 March 2017 and pay all arrears of rent (or reach a suitable arrangement for payment) then the landlord would not seek to execute the warrant for possession in relation to the tenancy.
The tenant appealed the February termination order. These proceedings were AP 17/14184. By consent, the February termination order was set aside by the Appeal Panel on 2 May 2017. The orders of the Appeal Panel were as follows: By Consent 1. The orders made 21 February 2017 are set aside. 2. Application SH 17/05356 is remitted for rehearing and the following directions are made: a. The applicant (landlord) is to file and serve all documents in support of its claims by 16 May 2017 b. The respondent (tenant) is to file and serve all documents in reply by 30 May 2017. The evidence is to include a statutory declaration from the respondent confirming the authority of any agent appointed to appear on his behalf. c. The matter is to be fixed for final hearing as soon as possible after 30 May 2017. Reasons 3. The Appeal Panel notes that the orders are set aside on the basis the mother of the Appellant, Ms Sylvia Boscolo said she did not in fact have authority to consent to the original termination orders although she presented to the Appeal Panel a letter of authority from the Appellant she received on 9 April 2017 said to be backdated to 1 February 2017
As is evident from the reasons given by the Appeal Panel, the order was set aside because Ms Boscolo had consented to orders in circumstances where she did not have authority to do so from the tenant.
In consequence of the proceedings being remitted by the Appeal Panel, the proceedings were listed for hearing by the Tribunal in the Consumer and Commercial Division on 13 June 2017. At that time the proceedings had number SH 17/20198. As stated above, the Tribunal made the June termination order and gave reasons for decision both orally, and in writing. To the extent oral reasons were given, the parties did not provide a copy of the sound recording nor a transcript of the reasons for the purpose of this application. Rather, both parties had available to them at the hearing of this application the written reasons which were published with the June termination order.
The written reasons for making the June termination order included the following findings: Mr Boscolo was apparently sentenced to a term of imprisonment in about May 2016. Since that time, necessarily, he has not occupied the subject premises. On 2 February 2017 the applicant landlord lodged an application seeking the tenancy be terminated as the tenant had breached the lease by failing to occupy the premises. The lease provides specifically that it is not sufficient merely to continue paying rent but rather, acknowledging that these premises represent social housing it is required that they be occupied by the tenant. … ….. Neither the (tenant) nor his mother has apparently taken any steps to organise either the proper authorisation nor to obtain and provide any evidence. Ms Boscolo's medical certificates relate only to the past 2 or 3 weeks, with no explanation why nothing has been arranged since 3 February 2017. I find that in the interests of justice the matter should proceed today in the absence of the (tenant). The substantive application was very similar to the case of McGeown against the current (landlord) [2015] NSWCA 23 in which it was confirmed that if the social housing lease requires occupancy, not just payment of rent, the Tribunal was correct to terminate the lease. There is no relevant distinction between that case and these proceedings. Further, at the urging of Ms Hook for the (landlord) today, I have considered the provisions of subdivision 4 of Division 5 of Part 7 of the Residential Tenancies Act 2010 in relation to breach and termination of leases in social housing tenancies. I find that in accordance with s54E(1)(b), (c) and (d) (sic) it is appropriate to exercise the discretion to terminate the lease. The landlord submits that relevant considerations are the failure of the tenant to pay rent or to occupy the premises and the premises having been left vacant for about 13 months has caused, or significantly contributed to, the premises being vandalised. Although I have considered all subsections of s54E(1) I am not satisfied there are other relevant issues. On the basis of those considerations and the McGeown, decision, the tenancy is terminated immediately with vacant possession to be granted at the time of termination and the tenant is ordered to pay rental arrears of $4370.08.
What followed were a series of applications by the tenant to set aside the June termination order and an application by the landlord to extend the time for the issue of a warrant for possession by reason of the grant of various stays pending determination of the applications to set aside.
The first application to set aside was application SH17/27422. That application sought to set aside the June termination order. In that application the Tribunal made the following findings and orders: The application is dismissed because: 1. Although the orders made on 13/6/2017 in matter number SH 17/20198 were made in the absence of the applicant the Tribunal is not satisfied that the party's absence and resulted in their case not being adequately put to the Tribunal. Reasons: The Tenant, or his representative did not comply with any directions to file and serve evidence after the matter was remitted by the Appeal Panel. 2. The stay order made in matter number SH 17/20198 on 28/6/2017 is lifted.
The second application to set aside was application SH 17/34539. That application also sought to set aside the June termination order. The second set aside application was dismissed and the interim stay which had previously been made pending determination of that application was lifted by orders made on 8 September 2017. Reasons for this decision were published with the orders dismissing the set aside application on 11 September 2017. At [9]- [13] the Tribunal said: 9. The Tribunal is satisfied that the tenant has had ample opportunity to make submissions in support of the application, by providing submissions and statements in response to the questions in the Tribunal's set aside application. He has provided no further submissions in response to the landlord's submissions, or any further submissions in support of an application to extend the time to make the application. 10. The relevant considerations in that regard are those identified in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22, being the length of the delay, the reasons for delay, the prospects of success, and the extent of prejudice suffered by the respondent. The delay is extensive, being over a month. The Tribunal accepts the landlord's submissions that the reasons for the delay are not convincing: the original proceedings were commenced on February 2017 and the tenant has had several opportunities to provide submissions in support of his case. The prospects of success of the set aside application are poor, as discussed below. Further, the Tribunal accepts the landlord's submissions that any further delay in having the premises made available for public housing, which would be the likely outcome of setting aside the orders, significantly disadvantages the many people on waiting lists for public housing. The Tribunal is not satisfied that an extension of time should be granted. 11 .In any event, even if an extension of time to make the application were granted, the Tribunal is not satisfied that it would be appropriate to set aside the decision. First, while it is not in dispute that the tenant was absent from the hearing on 13 June 2017, the Tribunal is not satisfied that the absence resulted in his case not being adequately put to the Tribunal. His case has always been that he is not residing in the premises, and has not done so since May 2016, because he is incarcerated, and that he is seeking to have the tenancy maintained until his release either in his name or transferred to a family member, initially suggesting his mother and then his de facto partner. However, as acknowledged by the Member in his reasons on 13 June 2017, the social housing tenancy requires occupancy and not just payment of rent: McGeown v NSW Land & Housing Corporation [2015] NSWCA 23. Further, the landlord has submitted that even if an application for succession or tenancy recognition were approved, the tenant would lose any tenancy right and he could not reside there on release from incarceration. The Tribunal is not satisfied that cl 9(1)(b) is satisfied. 12. Secondly, and in the event that that conclusion is incorrect, the Tribunal would not in the exercise of discretion set aside the decision. As discussed in Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65, the central question is whether there is a real likelihood that it would be unjust to let the decision stand, and that would only be likely to result if the tenant has an arguable defence or arguable case that a different decision could have been reached. Relevant considerations are why the tenant was absent, and whether he had a reasonable opportunity to be heard or have his submissions considered, and whether he has an arguable defence or case that a different decision could have been reached. 13. The Tribunal accepts that the tenant was in no position to attend the hearing. However, his mother has been acting on his behalf, responding to the hearings listed for 31 May and 13 June 2017. The hearing of 13 June 2017 was not "spur of the moment", as notice was given on 6 June 2017. Notice of the hearing was clearly received, as the tenant's mother contacted the Tribunal on that day to request that the hearing be vacated. The Tribunal is satisfied that the tenant has had a number of opportunities to have his submissions considered. For the reasons above, the tenant has not established that a different decision could have been reached. Having regard to the circumstances the Tribunal is not satisfied that there is a real likelihood that it would be unjust to let the decision made on 13 June 2017 stand.
A third application to set aside was lodged, being application SH 17/39599. This application sought to set aside the orders made in the second set aside application referred to above. The third set aside application was dismissed by order made on 14 September 2017.
Subsequently, on 27 September 2017, on the application of the landlord, the Tribunal extended the time to issue a warrant for possession pursuant to s 121(2) of the RT Act in respect of the June termination order. The reason for doing so was that the stay orders made by the Tribunal in consequence of the set aside applications referred to above had, effectively, prevented the landlord from enforcing the June termination order within the prescribed time.
The Notice of Appeal to appeal the third set aside application was filed on 29 September 2017, notice of the decision in respect of the third set aside application apparently being received by the Appellant on 19 September 2017.
Included with that Notice of Appeal was an application for stay. Inter alia, this application stated: The appeal will be useless if the order is enforced before the appeal is finished… The order for termination and possession of the premises at … Marrickville was made on 27 September 2017 in the absence of the appellant and without notice to the appellant that the Tribunal intended to make this order thereby denying the appellant procedural fairness and justice. The appellant's case is strong and was never heard by the Tribunal. The appellant has not presented his case to the Tribunal.
As will be apparent from the above extract, the application for stay incorrectly asserted that the order for termination and possession was made on 27 September 2017 rather than 13 June 2017, some 3 ½ months earlier.
Upon receipt of the Notice of Appeal, the appeal was listed for call over and hearing of the application for stay on 10 October 2017. On 29 September 2017 Appeal Panel made the following directions, including granting an interim stay: The execution of the warrant for possession issued in application SH 17/20198 is stayed until 5.00pm on 10 October 2017. 1. The Appeal is listed for callover and hearing of the application for a stay on 10 October 2017 at 11.00 am 2. On or before 6 October 2017 the appellant is to file and serve any evidence and submissions in support of the stay application. 3. On or before 9 October 2017 the Respondent is to file and serve any evidence and submissions in opposition to the stay applications. 4. The evidence and submissions of the appellant must be in the form of a statutory declaration with relevant documents attached and must deal with the following issues: a) Why the Tribunal was in error in terminating the tenancy on 13 June 2017 and any evidence relied upon to support any claims; b) Why the Tribunal was in error in refusing the set aside applications and any evidence relied upon as to why the termination order made 13 June 2017 should be set aside. c) Any other evidence and submissions in support of what orders should finally be made in respect of the termination application and the appeal 5. The appellant must appear in person. 6. In the event the Appellant is unable to, he may apply to be represented by another person provided that the personal has a written authority signed by the Appellant to appear and the person authorised is able to and does in fact attend in person. 7. The proceedings may be dealt with in the Appellant's absence if he fails to appear in person or by a properly authorised representative as provided above.
On 10 October 2017 the appellant did not appear in person. Rather, his mother, Ms Boscolo, again appeared on his behalf, the tenant still being in a correctional facility. On that day, the landlord advised the Tribunal, by its Counsel, that it opposed the stay. During the course of this hearing, the Appeal Panel became concerned that the tenant, as opposed to his mother, did not have notice of the appeal or the application for stay. This concern arose by reason of statements made by the tenant's mother that she had some difficulties in contacting him by telephone because he was incarcerated.
The Appeal Panel also identified that the substance of the application made by the tenant was that the tenant sought to have set aside the June termination order. This would necessitate leave being granted for the amendment of the Notice of Appeal to include such claim and for an order to be made extending the time for the appellant to appeal the June termination order.
Consequently, the Appeal Panel adjourned the hearing of the stay application, extended the interim stay which had previously been made and determined that the Appeal Panel should separately determine the following questions: 1. Should leave be granted to appeal the June termination order; and 2. If so, should the interim stay previously granted by the Appeal Panel be extended.
The Appeal Panel fixed those questions for hearing on 20 October 2017 and made the following directions to facilitate that hearing: 1. The Application for leave to appeal the order terminating the residential tenancy agreement made on 13 June 2017 and the stay application in the appeal is fixed for hearing on 20 October 2017 at 2:15pm. 2. By consent, the stay made on 29 September 2017 is extended until 5:00pm on 20 October 2017. 3. The Appellant may only be represented by his mother on condition that all his evidence and submissions are in writing, signed by him. 4. The Appellant is strongly advised to get legal advice and a legal representative for the hearing on 20 October 2017. 5. A copy of the Notice of Appeal, Reply to Appeal and decisions in respect of the Termination Proceedings and these orders and the orders made 25 September 2017 are to be served on the Appellant by the Respondent on or before 13 October 2017. 6. On or before 17 October 2017 the Appellant is to file and serve any further evidence and submissions in relation to the applications referred to in order 1. 7. On or before 19 October 2017 the respondent is to file and serve any further evidence and submissions in reply.
As provided in order 5 made in those directions, the landlord was directed to serve upon the tenant a copy of the Notice of Appeal and various other documents relating to the applications which the tenant had made.
The proceedings were heard on 20 October 2017. Again the tenant's mother, Ms Boscolo, appeared on his behalf. Mr McMeniman of Counsel appeared for the landlord.
Despite the directions made, the tenant did not file and serve any further evidence and submissions prior to the hearing. Neither did the respondent. However, at the hearing the Appeal Panel asked the parties whether there were any further documents upon which they intended to rely. The Appeal Panel admitted into evidence the following documents: 1. Exhibit A- email from Kevin Camberwell, the Senior Assistant Superintendent at the Correctional Centre where the tenant is incarcerated, dated 11 October 2017. This email was in response to an email from Ms Hook, a solicitor acting for the landlord. The email had attached documents for service as required by the directions made by the Appeal Panel on 10 October 2017. Exhibit A also included a letter from Ms Hook to the tenant care of the Correctional Centre in which he was located listing the documents which had been enclosed. 2. Exhibit B- Statutory declaration of Ms Boscolo made 20 October 2017. 3. Exhibit C- a copy of the submissions made by the landlord to the Tribunal in relation to the second set aside application.
Exhibit A included the following statement from Mr Camberwell: Document served today at 12:00 PM and Mario stated he will call you if any issues.
Accordingly, the Appeal Panel was satisfied that the tenant had notice of the appeal and that the applications were listed for hearing.
In addition to the above documents, during the course of the hearing Ms Boscolo provided information to the Appeal Panel concerning without prejudice discussions between the parties in which they attempted to settle their disputes, the subject of this appeal. The Appeal Panel notes that when the issue of confidentiality was raised, Counsel for the landlord indicated that his client had no objection to the Appeal Panel receiving this information into evidence or to the Appeal Panel having regard to what was said.
Ms Boscolo also accepted that the tenant was still incarcerated and had not paid all rent outstanding under the agreement. However, she said that the tenant had been granted parole, his released date being November 2017. When asked to produce any documents to support this contention, Ms Boscolo was unable to do so.
Finally, Ms Boscolo referred to her statutory declaration, the contents of which will be referred to as necessary below, and said that she had not yet received through the post written submissions from her son. Accordingly she said the proceedings should be adjourned.

Grounds of appeal and submissions

The tenant's submissions made on his behalf by his mother, Ms Boscolo, can be summarised as follows: 1. He was not present at the original hearing when the June termination order was made. 2. While he is presently incarcerated and accepts he has not paid rent, the Tribunal was incorrect to terminate the residential tenancy agreement and he was not afforded a reasonable opportunity to present his case. 3. Ms Boscolo was ill on 13 June 2017 and was unable to attend. The Tribunal was in error in failing to adjourn the hearing on 13 June in these circumstances. 4. If the tenant had been present at the hearing on 13 June 2017 he would have submitted that he required a stable home and a place to live when he was released from prison on parole 5. Parole had been granted on 5 October 2017, the conditions of which required he have a residence. He had advised the Parole Board he would be living at Marrickville. 6. In relation to any explanation for the delay in appealing the June termination order, Ms Boscolo again relied on the fact she had been very ill, said the June termination order was unreasonable and that the Tribunal on that day had been "gung ho" and made the order. In making this submission she agreed that it was incontestable that the rent had not been paid and that her son was in prison and not in occupation of the premises. 7. Ms Boscolo said that there had been settlement negotiations with the landlord to allow the tenant to remain in the premises and have the premises available to him on release from prison. However those negotiations had been unsuccessful because the landlord required all arrears of rent to be paid, something which the tenant could not afford to do. In making this submission, she referred to her statutory declaration and to the fact that the tenant had been provided with assistance from Legal Aid who had spoken to the landlord on his behalf in conducting settlement negotiations. 8. Lastly, Ms Boscolo stated that she had concerns for her son in the event he was released from prison and had nowhere to live and that he is presently mentally unwell and stressed. She submitted that he was a vulnerable person and unstable.
In reply, the landlord made the following submissions: 1. The landlord did not challenge the content of Ms Boscollo's statutory declaration nor statements to the Tribunal to the effect that she had authority to represent her son. 2. The tenant had been provided with adequate opportunities to put on any evidence and submissions in response to the landlord's claim. There had been a repeated failure to comply with directions. There is no reason advanced by the tenant as to why the tenant had failed to comply with the Tribunal's directions. 3. Having regard to the basis upon which the termination order was sought in made, the tenant has poor prospects of success. 4. The time to appeal the June termination order should not be extended because no adequate explanation for the delay has been provided. 5. The landlord has and will continue to suffer prejudice. This prejudice was identified as being the loss of rent from the property, the fact the property is being vandalised because it is unoccupied and the fact that the landlord has other prospective tenants and has need of the premises in order to meet its social housing obligations to others.
In making these submissions, the landlord relied on the reasons for decision in respect of the June termination order and the second application to set aside, extracts of which are set out to above.
As to the position of the tenant, the landlord submitted that the evidence provided in the form of the statutory declaration from Ms Boscolo and the statements made by her at the hearing of this application make clear that the tenant has had access to legal advice, Legal Aid having acted on his behalf at least for the purpose of conducting negotiations. In these circumstances, the evidence shows that the tenant has had an opportunity to obtain legal advice.

Consideration

As is clear from the notice of appeal and the proposed amendment to allow a challenge to the June termination order, the real issue in dispute is whether or not the Tribunal was correct to terminate the agreement. In determining this question, it is also necessary to consider whether the tenant has been denied procedural fairness and/or whether the requirements of s 38 of the Civil and Administrative Tribunal Act 2013 (NCAT) have been met.
In this context, there are two matters to be determined in resolving the present applications and, if these applications are unsuccessful, the appeal. These are: 1. Should the application be adjourned having regard to the fact that the submissions from the tenant to which Ms Boscolo referred had not yet been received by her; and 2. Should leave be granted and time extended to bring an appeal in respect of the June termination order.
On the other hand, having regard to the principles set out by the President of the Tribunal, Wright J, in the Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 at [9], in the event the proceedings are adjourned or in the event that leave is granted and time is extended in which to bring the appeal in respect of the June termination order, a stay should be granted. This is because the appeal would be rendered nugatory without such a stay because the eviction would proceed.

Adjournment application

The first question to be resolved is whether the present hearing should be adjourned on the application of the tenant.
The application for an adjournment is based on the fact that Ms Boscolo asserts her son has provided written submissions which he sent by post to her and which she has not received. Consequently, because her son is in a correctional facility, she says that the Appeal Panel should wait the receipt of these written submissions so as to enable the Appeal Panel to consider the matters raised.
Otherwise, the tenant, through his mother Ms Boscolo, relied on the submissions set out above.
The landlord does not consent to the adjournment. The landlord said that the tenant had been provided with an adequate opportunity to provide evidence and submissions. No reasons have been offered as to why the tenant has not complied with the Tribunal's directions. The tenant has been served with all relevant material by the landlord and the application for leave to appeal should be dealt with by the Appeal Panel.
In oral submissions, the landlord noted that Ms Boscolo has provided a statutory declaration that she has authority to act on behalf of the tenant. The landlord did not challenge this statutory declaration. The landlord submitted that Ms Boscolo is in a position to provide submissions on behalf of the tenant.
The tenant was aware of the directions made by the Appeal Panel and has been served with relevant documents by the landlord. The landlord points to the evidence of Mr Camberwell, the Senior Assistant Superintendent at the correctional Centre at which the tenant is incarcerated, being the email dated 11 October 2017 (part of Exhibit A) and says that the tenant acknowledged "he will call… if any issues".
Further, the landlord said the tenant had been able to obtain the assistance of legal aid, at least for the purpose of conducting negotiations with the landlord concerning maintaining the residential tenancy, the subject of the dispute. The landlord said there was no evidence to suggest the tenant had not had a reasonable opportunity to obtain legal advice about his appeal.
The landlord says there is no reason why the application for leave to appeal should not proceed and that there is no cogent evidence to support an adjournment. The tenant has had a chance to make submissions and the matter should proceed.
In essence, the tenant's submission is that unless an adjournment is granted he will be denied a reasonable opportunity to have his written submissions considered.
In addition, Ms Boscolo suggested her son was unwell, however no appropriate medical evidence was provided to support this submission.
Section 38 (5) of the NCAT Act requires the Tribunal "to 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". That requirement applies to the Appeal Panel.
In Armee v Brealey [2017] NSWCATAP 141, when considering whether the Tribunal was in error in failing to grant an adjournment, the Appeal Panel referred to various decisions of the High Court of Australia and the Court of Appeal of the Supreme Court of New South Wales and said at [121] and following: 121 The Tribunal has the power to adjourn proceedings under s 51 of the Act. The power to adjourn is to be exercised according to the principles set out by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, French CJ, Kiefel, Bell, Gageler and Keane JJ at 321 [51] (see O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [21]). Procedural fairness may be denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequately presenting the person's case: see Grozdanov v N&T Buildings Pty Ltd [2015] NSWCATAP 107 at [51]; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [21]-[22]. 122 The matter of Dubois v R & B Bergin Pty Ltd [2011] NSWCA 309 involved an application to the NSW Court of Appeal for leave to appeal against a refusal of the District Court to grant an adjournment and vacate a hearing. Young JA, with whom Giles JA agreed, in his reasons granting leave to appeal, allowing the appeal and vacating the hearing, stated at [42] that whilst it is seldom that an appellate court will feel justified in reviewing a decision to refuse an adjournment, the court has power to review such an order and in certain circumstances it is its duty to do so. His Honour went on to make the following statements: 43. As the Full Federal Court said in Petrovic at 460, it is not sufficient that the Court of Appeal considers that an adjournment should have been granted, the applicant must show that refusal of the adjournment produced, in the circumstances, an injustice. It must be remembered too, that the decision is a discretionary judgment. 44. "Injustice" is a coloured word with pejorative overtones. What is meant is that the refusal of the adjournment must not set up a situation where there is a likelihood that there cannot be a fair trial unless that factor is outweighed by prejudice to the opposing party. 45. In making the balanced judgment required, a judge must also take into account the public interest that the judicial process must be just, cheap and quick. 46. Again this matter must be considered in a balanced way. Mr Romaniuk relied on what the plurality said in Aon Risk Services Australia v National Australia University [2009] HCA 27; 239 CLR 175, 214 at [102], that the objectives of modern court rules do not require that every application for amendment (and by analogy, adjournment) should be refused just because it wastes costs and causes some delay. Whilst these are significant matters, they are not necessarily overriding considerations. I accept that submission. 123 In Carryer v Kelly (1969) 90 WN (Pt. 1) (NSW) 566 at 569 F - G, a similar statement was made by Asprey JA with whom Holmes JA agreed: "An adjournment which, if refused, would result in a serious injustice to the party applying for it should only be refused if that is the only way that justice can be done to the other party." 124 In Squire v Rogers (1979) 27 ALR 330; 39 FLR 106 (Federal Court) at 337, Deane J made the following statement: The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances: Conroy v Conroy [1917] 17 SR (NSW) 680 at 682. Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular court and may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing. A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal (see, for example, Federal Court of Australia Act 1976 s 27) and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion. 125 In O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22], the Appeal Panel identified the following principles governing applications for an adjournment: (1) "matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should be seen as the exceptional rather than the ordinary course; (3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment."
Similarly, in Mesiha v Murrell [2017] NSWCATAP 1, when considering an appeal against a refusal to extend time to provide evidence, and having referred to the relevant authorities, the Appeal Panel said at [44]: From these cases can be derived the following principles to be applied in determining an application for extension of time in the Tribunal: (1) the just resolution of proceedings remains the paramount consideration; (2) what is a just resolution needs to be understood in the context of the purposes and objectives of the power granted to the Tribunal to resolve disputes and involves a weighing of all relevant matters; (3) speed and efficiency, in the sense of minimum delay and expense are seen as essential to the just resolution of proceedings; (4) a party should be afforded a reasonable opportunity to present its case; (5) there are limits to what is necessary in providing a reasonable opportunity to be heard, which may involve the consideration of delay and cost both to the other party and to the Tribunal; (6) the nature of the case and its importance to the party seeking an extension of time needs to be considered; (7) reasons for failure to comply will generally need to be provided and must be weighed against the effect any delay will have both on the other party and upon the Tribunal; (8) an award of costs may not always be adequate to deal with issues of prejudice, which include wasted time and strain imposed upon litigants; (9) there is no absolute entitlement to an extension of time, even if the consequence of the refusal effectively prevent a party from presenting relevant evidence in support of its case.
As will be evident from the history of these proceedings set out above, the following has occurred: 1. The termination application was filed on 3 February 2017; 2. A termination order was originally made on 21 February 2017, however that order was set aside by the Appeal Panel and the matter remitted for rehearing by consent orders made on 2 May 2017; 3. Directions were made to facilitate the rehearing in the Consumer and Commercial Division. Inter alia, the directions required the tenant to file and serve any relevant evidence; 4. At the rehearing on 13 June 2017 the Tribunal refused an adjournment application by the tenant's mother on the basis that the medical certificates provided by her were insufficient to explain why no material had been provided by the tenant in support of his position; 5. Various set aside applications were made and dismissed, inter alia on the basis that 1. the tenant's mother had been acting on his behalf, 2. that the tenant had had "a number of opportunities to have his submissions considered" (see Tribunal's reasons for decision dated 11 September 2017 at [13]); 3. the tenant had provided no evidence or submissions that would lead the Tribunal to conclude that a different result might be made other than the making of the June termination order. 1. The Appeal Panel made directions to allow the tenant time to provide further submissions in support of his appeal and his application to extend time in which to appeal. Those directions included requiring the landlord to serve relevant documents on the tenant at the correctional facility where he is located. 2. The tenant had acknowledged receipt of the relevant documents and that he would advise the Appeal Panel if he had any issues. 3. The tenant, at least for the purpose of settlement discussions, has had an opportunity to obtain legal advice in respect of these matters.
In circumstances where the tenant: 1. has had an opportunity to obtain independent advice and/or representation at the hearing of his application for leave to appeal out of time; and 2. has, by his mother, been permitted to make further submissions at the hearing of that application, the Appeal Panel is not satisfied that any proper basis for an adjournment exists. In no relevant sense has the tenant been denied an opportunity to present his evidence and submissions in connection with the application for termination or whether time should be extended to appeal the June termination order. While he is incarcerated and has been for some time, this fact is not of itself, a basis for any adjournment.
Further, while there have been settlement discussions which indicate the landlord may be prepared to allow the tenancy to continue if all outstanding rent is paid, the fact remains that no agreement has been reached. Consequently, this fact does not support an adjournment application.
While written submissions may have been posted to the tenant's mother, no suggestion was made that the mother was otherwise unable to make any submissions on behalf of her son. Further, to the extent the tenant wished to make submissions directly, those submissions could and should have been forwarded to the Appeal Panel in accordance with directions 6 made 10 October 2017, notice of which the tenant received when the landlord served them on him on 11 October 2017.
It follows that the application for adjournment should be dismissed.

Application to extend the time to appeal

As stated above, the real issue in dispute is whether or not leave should be granted to appeal the June termination order.
The time to lodge an appeal against the June termination order was 14 days "from the date on which the (tenant) was notified of the decision or given reasons for the decision (whichever is the later)": see r 25(4)(b) of the Civil and Administrative Tribunal Rules, 2014 (NCAT Rules). This is because the proceedings are "residential proceedings" as defined by r 3.
There can be no dispute that the tenant was given notice of the decision or given reasons for decision no later than 28 June 2017, being the date on which an interim stay was granted in the first set aside application lodged with the Tribunal, SH 17/27422: see order 2 made 27 July 2017 by which the Tribunal lifted the stay.
The present Notice of Appeal was lodged on 29 September 2017. That Notice of Appeal did not, by its terms, directly challenge the June termination order, the order which was the subject of the appeal being identified at the order made 14 September 2017. However, the orders sought on appeal included an order to set aside the June termination order. On this basis, and "without regard to technicalities or legal forms" (see s 38(4)), the appeal was nonetheless lodged nearly 3 months after the time to appeal had expired.
The principles applicable to extending time were set out by the Appeal Panel in Jackson V NSW Land and Housing Corporation [2014] NSWCATAP 22. At [18]-[22] the Appeal Panel said: 18 Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 19 An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion." 20 The Courts have identified in numerous cases various factors that should be considered in deciding whether to grant an extension of time in which to appeal. Substantially the same principles have also been applied by the Appeal Panel of the Administrative Decisions Tribunal (ADT), one of the predecessors of the Tribunal, in relation to appeals in the ADT - Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16], Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. These authorities provide useful guidance on the principles that are to be applied by the Appeal Panel in this regard. 21 Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. 22 The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a)The length of the delay; (b)The reason for the delay; (c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d)The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
When considered against the 14 day time limit prescribed in r 25 of the NCAT Rules, the delay in the present case of nearly 3 months is substantial.
The reason for the delay in lodging the appeal remains unexplained. The fact that set aside applications were made does not provide an answer. It might be accepted that a party would first make an application to set aside an order under Reg 9(1)(b) of the Civil and Administrative Tribunal Regulation 2013 (NCAT Regulation) in circumstances where a decision is made in the absence of that party and that party's case has not been adequately put. This is because such an application cannot be made after an internal appeal has been made: see Reg 9(6) of the NCAT Regulation. However, where the first application to set aside has been heard and dismissed, the time taken up in making two further applications to set aside does not, in the present case, provide an adequate explanation for delay.
This matter counts against an extension of time.
The second issue to consider is whether or not the tenant has had an adequate opportunity to be heard or whether the circumstances of the case are such that time should be extended to allow this to occur. Again, a consideration of the history of these proceedings reflects multiple opportunities in which the tenant could have provided relevant evidence and submissions in support of his assertion that the agreement should not be terminated.
In its decision of 13 June 2017, the Tribunal found that "Ms Boscolo's medical certificates relate only to the past 2 or 3 weeks, with no explanation why nothing was arranged since February 2017". This finding was not challenged in this application. Further, the lack of explanation is even more significant in circumstances where the Appeal Panel set aside the February termination order on 2 May 2017 and remitted the matter for rehearing.
Lastly, even if his mother was unwell and unable to attend the hearing on 13 June 2017, no explanation is provided by the tenant about why another person had not been appointed to represent him at the June hearing.
It could not reasonably be suggested that the tenant has been denied procedural fairness or that the Tribunal has failed to comply with the obligations imposed under s (38)(5) of the NCAT Act.
This matter counts against the extension of time.
The third issue to consider is the tenant's prospects of success and whether he has a fairly arguable case.
As is evident from the Tribunal's reasons for making the June termination order, the agreement was terminated on the basis that it was a social housing tenancy agreement within the meaning of the RT Act and that the tenant was not residing at the premises. There was no dispute, nor could there be, about this fact.
In its reasons for making the June termination order, the Tribunal referred to the decision of the Court of Appeal in McGeown v NSW Land and Housing Corporation [2015] NSWCA 23. In that case, having found on the proper construction of the residential tenancy agreement that the tenant would be in breach if she did not personally reside in the residential premises, Sackville AJA, with whom McColl and McFarlan JJA agreed, said at [44]: It is not to the point that the applicant had no choice but to cease personal occupation of the Premises and take up residence elsewhere. The effect of cl 35.2 is that the applicant breached the Lease when she ceased to be in personal occupation of the Premises regardless of the reason for this state of affairs. Nor is it to the point that she wishes to return to the Premises once she completes her sentence. At the time the Notice of Termination was served, eight months had elapsed since the applicant had been on the Premises. Her furniture and personal possessions were presumably there. But to all intents and purposes the Premises were vacant and, if the Corporation did not regain possession, were likely to remain so for another 19 months. The applicant's intention to resume occupation of the Premises when released from custody cannot negate the objective facts. In particular, the circumstances cannot be characterised as involving a mere temporary interruption to the applicant's occupancy of the Premises.
The Tribunal concluded that the present agreement was in the same terms as that of McGeown, that is, the agreement required the tenant to occupy the premises. The tenant has not challenge this finding.
Rather, the tenant says that he requires the premises when he is released from prison and has informed the Parole Board that this will be home.
Having found a relevant breach by the tenant, namely the failure of the tenant to occupy the premises, the Tribunal was required to exercise a discretion as to whether or not to terminate the agreement. In doing so, the Tribunal was required to have regard to s154E of the RT Act.
It is clear from the reasons that the Tribunal considered these matters. As recorded in the extract of the reasons set out above, the Tribunal found the premises had been vacant for 13 months, that the tenant had not paid rent and that the premises were being vandalised. Having made these findings and in circumstances where the tenant was unable to pay rent or resume occupation of the premises at the time, the June termination order was made.
As is evident from the submissions made to the Appeal Panel by the tenant, the rent has not been paid nor has any agreement been reached on this aspect of the dispute. While the tenant may be released on parole shortly, that fact does not of itself justify an extension of time to appeal a decision made in June 2017.
In these circumstances, the Appeal Panel is not satisfied the appellant has a reasonably arguable case. While it is evident that the consequence of any refusal to extend time will lead to the tenant being evicted from the premises, this of itself does not constitute relevant prejudice in this case. No error in exercising the discretion of the type referred to in House v the King [1936] HCA 40; (1936) 55 CLR 499 has been established.
The final matter to deal with is a submission made by the landlord that it would suffer prejudice if time was extended because it required the premises for other social housing tenants. The Appeal Panel rejects this submission. It is clear from the evidence that the landlord had been negotiating to allow the tenant to reoccupy the premises and for the agreement to continue if all outstanding rent was paid. This evidence was provided by the tenant in circumstances where the relevant statements appeared to have been made in without prejudice communications to settle the dispute. However, upon questioning by the Appeal Panel, Counsel, on behalf of the landlord, waived any privilege or confidentiality attaching to such communications and expressly consented to that material being received by the Appeal Panel as evidence in determining this application.
Despite this fact, the Appeal Panel is not satisfied that any relevant discretion of the Tribunal miscarried in making the June termination order. It is clear from what the Tribunal said in exercising its discretion to terminate the residential tenancy agreement that its decision to do so was not based on "the landlord's responsibility to its other tenants", a relevant factor under s154E(1)(c) of the RT Act. That is, the Tribunal did not consider that any obligations the landlord might owe to other tenants favoured the making of a termination order. Having set out the factors which the Tribunal took into account, namely unpaid rent, the premises being left vacant for about 13 months and the premises being vandalised, the Tribunal continued: I have considered all subsections of s 54E (1) (sic). I am not satisfied there are any other relevant issues.
Further, any subsequent negotiations could not have affected the exercise of discretion at the time the June termination order was made.
It follows that the Appeal Panel is not satisfied that the time to appeal the June termination order should be extended.

Orders

The challenge originally made in the Notice of Appeal was the dismissal of the tenant's application to set aside the order dismissing the second set aside application, being the decision made by Principal Member Rosser on 14 September 2017 in application SH 17/39599. The Principal Member did so on the basis that the application was misconceived.
However, having regard to the amendment sought to appeal the June termination order, and the fact the tenant originally sought an order for the June termination order to be set aside (see section 5 of the Notice of Appeal dated 28 September 2017), this challenge has not been pursued.
Consequently, having resolved the adjournment application and the extension of time application against the tenant, the appeal should be dismissed. In addition, the stay in respect of the June termination order should be lifted.
The Appeal Panel makes the following orders: 1. The application to adjourn the hearing of the application to extend the time to appeal the decision of the Tribunal made on 13 June 2017 in application SH 1720198 is dismissed. 2. The application to extend the time to appeal the decision of the Tribunal made on 13 June 2017 in application SH 17/20198 is dismissed. 3. The stay of execution of the warrant for possession issued 28 September 2017 is lifted. 4. The appeal is otherwise 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: 09 November 2017

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Parties

Cases Cited (23)

Cited By (2)