Bowers v Nair

Notice of Appeal

1. The Notice of Appeal states the orders that are the subject of challenge as follows: 1. That only 180 minutes is allowed for joint hearing on 8 January 2021. 2. Refusal to order discovery by the respondents in a fraud case. 3. Refusal to bar Mr Kermani for further attendance on 8 January 2021. 4. Failure to supply CD of 22 October 2020 hearing including conversation after the hearing between Member Sutherland and Mrs Mudra Nair. 5. Failure to supply a copy of NCAT's file. 6. Refusal to issue summonses.
2. There are four grounds of appeal. These grounds were in the following terms: 1. 180 minutes is not long enough for a joint hearing including cross-examination of all the respondents. 2. Discovery is needed in a fraud case. 3. Mr Kermani continually disrupted the hearing on 22 October 2020 despite warnings. 4. I need for CD of 22 October 2020 not just the hearing, as the respondents' representative and the Member had a conversation after the hearing on 22 October 2020.
3. The following orders are sought in the appeal: 1. Order to vacate trial date on 8 January 2021. 2. Order a two-day trial and fixing new two-day trial. 3. Order for CD of 22 October 2020, not just hearing. 4. Order that Mr Kermani be prohibited from further attendance at hearing (s). 5. Order Summonses be issued. 6. Order that Member Sutherland be disqualified.
4. I note that the hearing before the Tribunal on 8 January 2021 has been vacated.
5. The proceedings were listed before the Appeal Panel for call over on 26 November 2020. Directions were made to permit the parties to file and serve evidence and submissions in relation to the appeal. Also, an order was made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) dispensing with a hearing.
6. On 15 December 2020, the appellant filed a bundle of documents in support of his position. This bundle included written submissions in support of the appeal and a transcript from the hearing on 22 October 2020. The appellant sought leave to appeal, a matter to which I will return below. No submissions were received from the respondents.

Consideration

1. This appeal concerns directions made by the Tribunal for the preparation of two applications for hearing. The directions made are interlocutory decisions: see definition of interlocutory decision, s 4 NCAT Act. Leave to appeal is required: s 80(2)(a) of the NCAT Act.
2. The principles applicable to the grant of leave were dealt with by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54. At [35] the Appeal Panel said: 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.
3. The orders sought and the grounds of appeal are in slightly different terms. In this regard, the orders sought include an order for discovery. It is convenient to dealt with the question of whether leave should be granted by reference to each submission which has been made. I will deal with the question of discovery under the submissions made concerning summonses.
4. First, the appellant says that the hearing on 8 January 2021 "needs to be vacated as 180 minutes is not long enough to run a fraud case". As stated above, the hearing on 8 January 2021 was vacated.
5. The appellant says that "the matter should be set down for a two-day hearing" because "fraud cases are complex and take time to run".
6. It is for the Tribunal to determine and not for the parties to dictate how long matters are fixed for hearing. In determining the length of the hearing, the Tribunal is to have regard to its obligations under s 38 of the NCAT Act, particularly its obligation to observe the rules of natural justice (s 38(2)) and its obligations to take such measures as are reasonably practicable to ensure the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s 38(5)(c)).
7. In addition, the Tribunal is bound by the guiding principle found in s 36(1) of the NCAT Act to facilitate the "just, quick and cheap resolution of the real issues in the proceedings". The parties are "under a duty to cooperate with the Tribunal to give effect to the guiding principle" (s 36)(2)).
8. Further, the practice and procedure implemented by the Tribunal must "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": s 36(4).
9. The Tribunal did not make any order concerning the hearing time. Even if it had done so, such an interlocutory order would not bind the Tribunal finally hearing the dispute. Rather, as stated above, the Tribunal's obligation remains to afford parties a reasonable opportunity to be heard and present their case.
10. That is not to say the Tribunal, when conducting a directions hearing, should not give directions to the Registrar as to a reasonable listing time to be allocated for the hearing of the dispute. This is both necessary and proper and consistent with the objects of the NCAT Act including those found in s 3(c) and (d). It is also consistent with the principles of case management expressed by the High Court in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175.
11. In doing so, the Tribunal might also advise the parties of the hearing time to be allocated so the parties can prepare their cases in a manner that will facilitate the completion of the hearing in the allocated time. In this way the competing needs of the parties and other users of the Tribunal's services can be reasonably accommodated having regard to the resources of the Tribunal.
12. There is nothing in the directions which have been made which infringe upon the Tribunal's obligations to afford the parties a reasonable opportunity to be heard. Directions have been made permitting the parties to file and serve evidence prior to the final hearing. The provision of this evidence in an appropriate form by the parties (and in a manner consistent with their duty to cooperate) will permit the Tribunal to give effect to the guiding principle.
13. It follows from the above that this aspect of the appellant's application for leave to appeal should be dismissed.
14. The second submission is to the effect that there was a "extra-judicial conversation" between the first respondent and the Tribunal at the hearing on 22 October 2020. Whether or not this occurred, there is no relevant order to be made by the Appeal Panel arising from the decisions made on 22 October 2020.
15. The appellant seeks access to the original Tribunal file. That is a matter to be dealt with by way of request to the Registrar, not through the present appeal. As to access to any sound recording of the hearing, including any discussions concerning this dispute that may have occurred between the respondent and the Tribunal in the absence of the appellant, again this is a matter to be dealt with by way of request to the Registrar, not by this Appeal Panel in an appeal against interlocutory decisions made by the Tribunal on 22 October 2020.
16. The third submission concerns the permission given by the Tribunal to Mr Tirandez Kermani to attend the hearing on 22 October 2020 that occurred by telephone. Here the appellant complains Mr Kermani "repeatedly interrupted the hearing and the call over of the appeal". The appellant says Mr Kermani "forfeited his right as a member of the public to attend any further hearing(s).
17. In connection with the involvement of Mr Kermani at the hearing on 22 October 2020, the Tribunal said at transcript p 5: Mr Bowers, Mr Bowers, Mr Bowers. Yes, so Mr Kermani, would-the, the representation is by Ms Nair so Mr Tirandez should remain-can remain on the line but as far as providing information to the Tribunal that should be provided by Ms Nair.
18. It is clear from the above that the Tribunal allowed Mr Kermani to listen into the proceedings but not represent a party.
19. By reason of the COVID-19 pandemic, almost all hearings in the Tribunal have been conducted by telephone or audio-visual link. While this limits the ability of members of the public to attend or observe, it is the practice of the Tribunal to permit this to occur even in a telephone hearing (within technological constraints). This is consistent with the principles of open justice and with the requirements of s 49(1) of the NCAT Act This is what occurred in the present case. The Tribunal had not made an order under s 49(2) of the NCAT Act that the hearing be conducted wholly or partly in private. The appellant contends Mr Kermani consistently interrupted the proceedings. The transcript provided by the appellant does not support this allegation.
20. In any event, the hearing about which complaint is made has now passed and any orders made or permissions given by the Tribunal (or for that matter the Appeal Panel at call over) to Mr Kermani no longer have force. Consequently, there is no utility in granting leave to appeal any decision made by the Tribunal on 22 October 2020 in this regard. As to future hearings, the requirements of s 49(1) of the NCAT Act, which reflect the principle of open justice, continue to apply. The manner in which those future hearings are conducted and who is permitted to attend is a matter to be dealt with by the Tribunal at that time.
21. Accordingly, leave to appeal is refused.
22. The fourth submission concerns the issue of summonses. As stated above, the Tribunal gave leave for the appellant to do so: see order 4 set out above.
23. The matter of summonses and what was said by the appellant and the Tribunal is recorded in the transcript at p 21 and following. There, the appellant sought leave to issue summonses and for discovery.
24. The summonses appear to be directed to the appellant's allegation of "fraud". The particulars of the allegation are found in his original application which states: REASONS FOR ASKING FOR THE ORDERS 1. By a residential lease dated 24 July 2019, the landlords rented the leased premises (6 ### Street, North Paramatta) to the tenant. Additional clause 13 was a water meter reading 00111686 and carried with it a misrepresentation that the tenant was liable to pay water usage charges. The Landlords had only just purchased Folio Identifier ### which had 2 street addresses namely 4 and 6 ### Streets, North Parramatta so the Landlords would have known from the solicitor who acted for them on the purchase that there was only one adjustment for water rates on the settlement of the Landlord's purchase and they would have known that no water efficiency devices had been fitted to relevant taps and shower heads. Accordingly the Landlord and the Landlord's agent knew, or were recklessly indifferent as to the misrepresentation that the tenant was liable to pay water usage charges ("the fraudulent misrepresentation"). 2. Induced by and in reliance upon the misrepresentation the tenant entered the lease on 24 July 2019 and paid the various water usage charges bills forwarded to him by the Landlord's agent from 24 July 2019 to date. 3. The tenant discovered the fraud on 26 June 2020 when he called a licenced plumber, Marcelo Grigio, to the leased premises who discovered, with the tenant's assistance by a meter test on 6 ### Street, that the leak which was on 4 ### Street stopped when the meter on 6 ### Street was turned off. 4. On or about 27 June 2019, the Landlord and the Landlord's agent compounded the fraud by their conduct by asking the tenant to run another meter test, but without telling the tenant that the leak on 4 ### Street had been fixed. 5. The Landlord and the Landlord's agent further compounded the fraud by the Landlord's agent's email dated 11 July 2020 telling the tenant that Folio Identifier ### was on 2 separate titles. 6. When the drought broke in January 2020, a major roof leak above the lounge room ceiling became apparent which the Landlord refused to fix. The lounge room ceiling has had mould and had been damp ever since that date. Further, the stench of mould and dampness permeated the house from that date and still does to this day. 7. The tenant claims: (i) Pursuant to common law fraud and conspiracy, s26, s187 RTA, ss18 and s29, 30, s236 ACL, s7 Contracts Review Act, s52 Property and Stock Agents Act, all rent paid under the lease from 24 July 2019 to date and all water usage charges paid in the same period, breach of contract. (ii) Damages for disappointment and distress for breach of quiet enjoyment pursuant to the lease and (iii) Rescission of the lease ab initio at common law and pursuant to ACL and s7 CRA and RTA.
25. The allegation of fraud is somewhat surprising, particularly when made by legal practitioner, which Mr Bowers advised the Tribunal he was at the hearing on 22 October 2020. In this regards, on the material presently provided, there is no information that would support such an allegation.
26. There is also a claim the landlords or their agent engaged in misleading and deceptive conduct. Whether the Tribunal has jurisdiction to determine these issues, which may include an issue as to whether or not the landlords engaged in trade and commerce as that expression is used in s 18 of the Australian Consumer Law (NSW), is a matter that will need to be determined at the final hearing as will the other claims made by the appellant.
27. Be that as it may, the primary issue which the appellant appears to raise in the proceedings at first instance is that he was wrongly charged for water usage under his residential tenancy agreement with landlords. The ability to do so is regulated by s 39 of the Residential Tenancies Act, 2010 (NSW) (RT Act). This section provides: 39 Water usage charges payable by tenant (1) A tenant must pay the water usage charges for the residential premises, but only if - (a) the premises are separately metered or the premises are not connected to a water supply service and water is delivered to the premises by vehicle, and (b) the premises contain water efficiency measures prescribed by the regulations for the purposes of this section, and (c) the charges do not exceed the amount payable by the landlord for water used by the tenant. (2) A tenant is not required to pay the water usage charges unless the landlord gives the tenant a copy of the part of the water supply authority's bill setting out the charges, or other evidence of the cost of water used by the tenant. (3) A landlord must give the tenant not less than 21 days to pay the water usage charges. (4) A tenant is not required to pay the water usage charges if the landlord fails to request payment from the tenant within 3 months of the issue of the bill for those charges by the water supply authority. (5) Subsection (4) does not prevent a landlord from taking action to recover an amount of water usage charges later than 3 months after the issue of a bill for those charges, if the landlord first sought payment of the amount within 3 months after the issue of the bill. (6) A landlord must ensure that the tenant receives the benefit of, or an amount equivalent to, any rebate received by the landlord in respect of any water usage charges payable or paid by the tenant. Note - Tenants under social housing tenancy agreements may be subject to different provisions in relation to the payment of charges for water usage (see Division 3 of Part 7). (7) This section is a term of every residential tenancy agreement.
28. As suggested by the content of the Bowers application, it would seem the subject residential premises are separately metered. However, it appears the appellant is asserting that the water supplied through the meter for the premises rented by him (No 6) in fact also supplies the adjoining property (No 4). He makes this assertion on the basis he says he and his plumber observed water flowing from leaking pipe on No 4 which stopped when the water supply of No 6 was turned off. This is a matter to be determined at the final hearing.
29. The appellant also asserts that a fraud was committed or perpetuated by a request to conduct a further water test in circumstances where the landlords had repaired the pipework on No 4.
30. No doubt the parties will provide relevant evidence, including expert evidence if required. This evidence might include evidence from the parties and their plumbers as well as evidence concerning water metering and charges levied against each of the properties. However, at this stage the allegations of fraud are simply an assertion unfounded by reference to any of the material to which I have been referred.
31. The request in respect of summonses included a request to summons the lawyers for the landlords who acted on their purchase of the property, the subject of the dispute. At transcript p 22.2 the following exchange occurred after the lawyers were identified as a possible persons to be summonses: Applicant: Right, I,I,I appreciate the opportunity to view all the, all the summonses. Member: All right. Applicant: And to amend them and file them again if that's permissible. Member: That might be permissible. I think that's probably the correct procedure. So, today, you don't wish me to issue the summonses? So in relation to that we'll (sic) reconsider the issue of the summonses and then make a further application in relation to the issue of the summonses? Is that right Mr Bowers? Applicant: I will amend the summonses and I will file them at the Registry and seek leave to serve them. Member: Okay. Thank you.
32. It is clear from the above that any summonses previously filed were to be reviewed by the appellant, amended as necessary and resubmitted to the Tribunal. While I have doubt that the summonses proposed to be issued to the lawyers should be permitted, in the absence of seeing the final form of summonses it is not appropriate to make any further comments at this time. Further, this is a matter to be dealt with in the proceedings at first instance, not in this appeal.
33. Suffice to say, no error is disclosed and no basis has been established for the grant of leave to appeal the order permitting the appellant to request the issue further summonses.
34. As to discovery, while it may be possible for the Tribunal to make such an order in an appropriate case, there is absolutely no basis for the making of such an order on the material provided to the Appeal Panel. Such an order is unnecessary, likely to result in the respondents incurring significant costs and will cause delay to the resolution of the claims.
35. Consequently, there is no relevant error in any interlocutory decisions made by the Tribunal and leave to appeal should be refused.
36. The fifth submission concerns an application "for a copy of the Tribunal file". This was not a matter dealt with in any directions or decisions made by the Tribunal on 22 October 2020. Therefore, it is not a matter to be dealt with in this appeal.
37. The sixth submission was as follows: At least since the settlement known as Magna Carta in 1215 it has been a principal of the common law that justice delayed is justice denied. In my respectful submission the service levels of the Tribunal mentioned in 4 and 5 above have been lacking in that regard. My preparation and appearance at the call over on 26 November 2020 and the prosecution of my case generally has been seriously prejudiced by the continuing delays mentioned in 4 and 5 above. As I say justice delayed is justice denied.
38. It is unclear the relevance of this submission in the context of the matters required to be determined in this appeal. As stated in the Notice of Appeal at item 2, the appeal was in connection with decisions made on 22 October 2020. The grounds of appeal related to the time for final hearing, the need for discovery and the alleged interruption by Mr Kermani during the hearing on 22 October 2020.
39. In addition, a ground of appeal was the appellant's "need" for a "CD of 22 October 2020". Presumably there was an application made to the Registrar subsequent to the hearing. Any decision made by the Registrar in connection with this request has not been the subject of an appeal. Further, and in any event, there has been no evidence provided concerning the making of a request or any decision in connection with such a request other than by way of narrative in the submissions.
40. In the absence of any evidence and properly articulated submissions identifying the decision and the errors said to have been made in connection with that decision, there is no basis for the Appeal Panel to grant leave to appeal or intervene in any way.
41. Finally, I note an order was sought that the Member disqualify himself. It is assumed this order is sought for the purpose of future hearings. If so, this is an application to be made at the time of the future hearing in the appropriate way. Otherwise, it was not suggested in submissions that such an application was made on 22 October 2020 let alone that the Member declined to disqualify himself. Either way, no issue arises for determination in this appeal and no relief should be granted in terms of the order sought in the Notice of Appeal.

Directions for future conduct of the proceedings

1. Despite my conclusion leave to appeal should be refused and that the appeal should be dismissed, in light of the fact the hearing of the proceedings at first instance was delayed by reason of this appeal it is appropriate that directions been made to facilitate a final hearing as soon as possible. No doubt, with the cooperation of both parties, this will prevent any possible injustice.
2. I note directions were made in the original Notices of Hearing issued in the original applications on 18 August 2020 and 25 August 2020. These directions required the parties to file and exchange all evidence. It is unclear whether this has occurred although the directions of the Tribunal made 22 October 2020 suggest so (see order 4). Also, it is unclear whether summonses have been issued and returned. I will make directions to facilitate a final hearing to accommodate these matters. I will also require outlines of submissions to be filed before the hearing to assist in crystallising the issues and each parties position.

Orders

1. The Appeal Panel makes the following orders: 1. The application for leave to appeal the interlocutory decisions made 22 October 2020 is dismissed. 2. In respect of the proceedings at first instance, the following directions are made: 1. The applicants in each of applications RT 20/35192 (Bowers application) and RT 20/35629 (Karsai application) are to serve any further evidence on or before 13 March 2020. 2. The respondents in each of the Bowers application and the Karsai application are to file and serve any further evidence in reply on or before 27 March 2020. 3. The applicants in each of applications RT 20/35192 (Bowers application) and RT 20/35629 (Karsai application) are to file any further evidence in response by 2 April 2020. 4. Any summonses to be issued by either party are to be be filed within 5 days and returnable before the Tribunal on 5 March 2020. 5. All evidence from each party's witnesses must be in the form of a written signed statement, affidavit or statutory declaration and all witnesses must be available for cross examination. 6. All evidence provided by the parties, including documents and witness statements provided in accordance with these and earlier directions, must be placed in a folder and indexed and paginated (if this has not already occurred). The folder must include any documents proposed to be used for the purpose of cross-examination. Documents must be provided to the Tribunal in hard copy. 7. Not less than 5 days before the final hearing, each party must file and serve written outline of submissions setting out their contentions as to the claims made, the findings of fact which they will ask the Tribunal to make, and the orders which should be made in consequence thereof. The submission must be limited to 10 pages and must cross-reference relevant evidence. 8. Failure to comply with these directions may result in a party being prevented from relying on material provided late. 9. The proceedings are to be fixed for hearing on a date to be determined by the Registrar after 13 April 2020 for half a day. 10. Nothing in these directions prevents the Tribunal from amending or varying the directions.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2021