[2016] NSWCA 229
Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443
[2012] NSWCA 244
Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175
[2009] HCA 27
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578
[2015] NSWCA 211
Rozenblit v Vainer (2018) 356 ALR 26
Source
Original judgment source is linked above.
Catchwords
[2016] NSWCA 229
Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443[2012] NSWCA 244
Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175[2009] HCA 27
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578[2015] NSWCA 211
Rozenblit v Vainer (2018) 356 ALR 26[2018] HCA 23
UBS AG v Tyne (2018) 360 ALR 184
Judgment (8 paragraphs)
[1]
Background and procedural history
The appellant is the tenant and the respondent is the landlord under a written residential tenancy agreement for a fixed term beginning 7 February 2018 of residential premises in Young, NSW. On 27 August 2018 the tenant applied for relief under s 187 of the Residential Tenancies Act 2010 (NSW) (RTA). The application was dismissed on 2 October 2018 and the tenant appealed.
On 24 January 2019 a Member made a primary decision on five matters remitted by the Appeal Panel on 30 October 2018 for hearing. Those matters were allegations of the following: (1) spongy lounge room floor; (2) laundry window sealed and will not open; (3) defective sewer line; (4) insufficient hot water taps in laundry; (5) roller door in garage detaching from hinges.
The primary member dismissed, in his order 4, the application concerning the sewer, the hot water taps in the laundry and the roller door in the garage.
The primary member made the following orders 1-3 in respect of the alleged sponginess in the lounge room floor and the laundry window:
"1. The Tribunal orders that the respondent Glenville Australia PL is to cause the undertaking of the following work in a proper and workmanlike manner on or before 28 February 2019: a. Inspection of the lounge room, preparation of a report for the landlord on the nature and extent of the sponginess, and a quotation for any reasonably necessary repairs. b. Repair or replacement of the laundry window.
2. For the avoidance of doubt, Order 1(a) is directed to the landlord and not to the relevant tradesperson. The obligation of the landlord is arrange and get in the report and the quote. It is a matter for the landlord upon considering the report and the quote to consider if it must do anything to comply with its statutory duty.
3. For the purpose of Order 1, the tenant is to provide access on reasonable notice to the tradesperson(s) retained by the landlord."
The tenant appealed by notice of appeal lodged 7 February 2019. There was no allegation that the appeal was lodged out of time.
The tenant also lodged on 7 February 2019 an application in the appeal for a stay. The stay was sought, not in respect of the orders made in the primary proceedings, but rather in respect of a termination notice. That notice was said to have been served by "hand delivery" placed in the letterbox of the premises and by email 6 February 2019. It said in its terms that it was effective 8 March 2019 for termination under RTA s 84 on not earlier than 30 days' notice after the later of the day on which the notice was served and the day the term of the tenancy agreement ended. The ground for a stay was that eviction would render the appeal nugatory. The stay was refused on 21 February 2019.
The tenant has lodged a primary application challenging the validity of the alleged notice (in effect, its effectiveness to end the tenancy) and there is a stay application of similar character in those proceedings. The tenant at the date of hearing of the appeal remained in possession of the premises.
On 21 February 2019 leave was granted for the landlord to be represented by its managing agent and directions were made to prepare the appeal for hearing. These required lodgement and service of all evidence provided to the Tribunal below on which it was intended to rely, written submissions in respect of the appeal, and the sound recording of the primary hearing if what happened at the hearing was being relied upon and a typed copy of the relevant parts. The appellant tenant's material was to be lodged and served by 29 March 2019 and the respondent landlord's by 12 April 2019.
A note on the directions issued to the parties in written form said:
"(1) If a party does not lodge with the Tribunal and provide to the other parties documents, sound recordings and submissions as directed above, that party may not be allowed to rely on those documents, sound recordings and submissions at the hearing of the appeal."
The tenant lodged a request for extension of time on 22 March 2019 on the basis of, first, injuries said to have been sustained from falls on 12 March 2019 and some days later, including an injury to her right hand (without specifying the effect on her ability to comply with the directions), and, also, her fresh primary application and foreshadowed other actions including to the Supreme Court. The landlord opposed the extension on the basis that there had been adequate time allowed in the directions to provide the material and the landlord had arranged its staffing around the original directions.
The request for extension of time was refused on 27 March 2019. The reasons for refusal referred to the time allowed in the directions made on 21 February 2019, the opposition of the landlord, the irrelevance of a foreshadowed Supreme Court application and the absence of other sufficient reasons for the request.
In a responsive email on 27 March 2019 the tenant asked for review of the request refusal, citing a torn cartilage in her right wrist so she could not comply with the timetable.
The review request was refused on 29 March 2019. Any further application for extension was required to be supported by a statutory declaration setting out what steps had been taken to comply with the directions made on 21 February 2019 and when. The reasons for refusal were that the tenant sought an extension on medical grounds but no medical report was attached.
The appellant tenant lodged a further request for extension of time, supported by a statutory declaration, on 1 April 2019. The statutory declaration of same date referred to the accidents on 12 and 17 March 2019, in the latter of which the tenant banged her right wrist. The statutory declaration said that the accident resulted in the tearing of the cartilage of the outer right side of her right wrist. She underwent an X-ray on 19 March 2019 when she saw her GP, and an ultrasound on 26 March 2019, when the person conducting the ultrasound gave her the information she reported. She also referred to intermittent computer problems and required an extension to 12 April 2019.
The request was refused on 1 April 2019. The directions stated:
"2. In the event the appellant does not take steps to immediately file and serve her documents and submissions, her appeal may be dismissed at the hearing on 18 April 2019."
The reasons given for refusal were:
"No appropriate medical evidence has been provided. The appellant has leave to be represented by an agent. No information has been provided about what steps, if any, have been taken to comply with the directions made on 21 February 2019."
On 8 April 2019 by email the tenant said that she saw a GP on 27 March 2019, had a further unsatisfactory attendance with a GP, and a hospital visit, on 29 March 2019, and was seeing her long-standing physiotherapist on 11 April 2019 and a new GP.
The landlord's request for a summary dismissal of the appeal was refused on 11 April 2019.
On 11 April 2019 the tenant was advised that an application for oral evidence by her at the appeal would be considered at the appeal hearing.
On 12 April 2019 the tenant emailed the Registrar recording that she had said to registry staff (quoted in verbatim terms)
"that I was quite happy to rely on the paperwork of the Respondent, who has now (although I have not read what was in the letterbox last night yet), that I do not need to supply any paperwork, as it is only duplicating, other then anything that is required to clarify anything discussed".
The tenant also provided a report dated 11 April 2019 from her physiotherapist reporting on the neck and wrist injuries. The report said that the treating practitioner said that she understood "the x-ray had excluded any fracture and ultrasound suggested the presence of a triangular fibrocartilage of the wrist injury". The report recorded swelling about the ulna styroid, no signs of FCU tendinopathy "with some signs consistent with the ultrasound result. Limiting the activity of the right hand and time to heal was recommended to [the tenant]".
The tenant applied for an adjournment at the appeal hearing, in order to put on further material, as we understood the application. Alternatively, the tenant pressed her application to present oral evidence. The appellant at two points in the above procedural history had informally sought to amend her appeal to raise matters not canvassed at the primary hearing, but this was not pressed at the appeal hearing.
The Tribunal file shows the landlord as having lodged submissions and material on 20 February 2019. The landlord said that this material was a timeline with narrative that it had relied upon at the hearing on 24 January 2019. There was material added dealing with events since the hearing.
[2]
Notice of appeal
At the hearing we clarified with the tenant that she challenged the primary decision in two categories. The first was with respect to the orders made concerning the alleged sponginess in the lounge room floor and the laundry window. The second was the dismissal of her other claims. We dealt with those issues in that order.
[3]
Lounge room floor and laundry window orders
The tenant complained that the landlord had not fulfilled the primary orders in the time stated in them. The landlord said that it had been refused proper access to do so and had a delay in obtaining the replacement window. The replacement window was now ready to be installed and the report had identified one area of sponginess. The tenant said other areas were spongy, contrary to the report.
After establishing the above positions, the Panel obtained the agreement of the parties that this aspect of the appeal could be determined by orders which the Appeal Panel made at the hearing, together with reservation of the remaining issues canvassed on appeal and the adjournment application (which we discuss below).
Those orders, now issued to the parties, were to the following effect:
"1. On or before 9 May 2019 the respondent Glenville Australia PL is to arrange for trades to install the new laundry window, and also to repair the lounge room floor, such repair to be in accord with the work recommended in the report provided to the respondent pursuant to Order 1a made on 24 January 2019.
2. Order 1 above is conditional on the appellant Marion Collier providing access to the trades to undertake the work, noting that access cannot be granted on 24 April 2019.
3. Grant leave to either party to renew, before a single Member in the Consumer and Commercial Division, the primary proceedings in respect of any alleged non-compliance with orders 1 and 2 above.
4. Decision otherwise reserved, including appellant's adjournment application."
[4]
Appellant's adjournment and oral evidence applications
The previous exercises of discretion in refusing an adjournment were well within the range provided for in the decisions of the High Court and of the Appeal Panel on the topic, such as Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175, [2009] HCA 27 and most recently by the High Court in Rozenblit v Vainer (2018) 356 ALR 26, [2018] HCA 23 and UBS AG v Tyne (2018) 360 ALR 184, [2018] HCA 45.
The oral application at the hearing carries the matter no further. The tenant still has not identified what efforts she made between directions on 21 February 2019 and her second fall on 12 March 2019 (the relevant one which injured her wrist) to comply with orders, nor the precise degree to which her incapacitation affected her ability throughout the period after either fall to comply with the directions. The tenant's communication to the Tribunal on 12 April 2019 appeared to indicate that she was content to rely upon the material from the primary hearing provided by the landlord. No reason for departing from that position has been indicated.
For the same reasons as those just given, there seems no basis for the tenant's oral evidence application. Additionally, no outline of what the tenant wanted to say, and whether it had been said at the primary hearing, was given.
[5]
Remaining issues on appeal - applicable legal principles
Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) states:
"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."
Clause 12 of Schedule 4 to CATA 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.
A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
These categories are not exhaustive of errors of law that give rise to an appeal as of right. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as specifically included:
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.
[6]
Determination of remaining issues on appeal
At the appeal hearing the tenant did not press the ground of appeal concerning the hot water taps in the laundry. That left in contest the alleged defective sewer line and the alleged detachment of a garage door from its hinges.
Although the notice of appeal did not seek leave to appeal, no matters that gave rise to an error of law relevant to the primary decision were articulated and we could identify no errors of law in the primary decision in the material before us that dealt with the two remaining issues of complaint.
There were some grounds of appeal which were not relevant to the above issues but which, rather, dealt with the alleged notice of termination that is the subject of separate proceedings.
The relevant grounds were expressed in a way that indicated that the tenant said the primary decision on the remaining issues in contest was against the weight of evidence and not fair and equitable, and that she ought to have leave to appeal, and succeed, because those matters were sufficiently egregious and if the matter had properly been assessed, would have resulted in her succeeding on those complaints.
We respectfully disagree with the tenant's contentions. It seems to us that the primary member fully dealt with the evidence before him, assessed the weight of the competing evidence, and came to a reasoned conclusion based on that evidence.
In particular, we draw attention to the primary member's reliance, in respect of the roller door repair, on the invoice from the attending tradesman who reported to the landlord that the problem had been rectified without any indication of a continuing need for repair. There was no other evidence from a tradesperson contradicting that position.
Further, in relation to the sewer pipe the primary member again relied upon the evidence of the attending plumber that the repair was adequate and no ongoing action was required. The tenant disavowed before us that she required the landlord to dig up the driveway to replace the sewer line.
[7]
Conclusion
The appeal is dismissed on the remaining issues which were not the subject of our orders made at the appeal hearing on 18 April 2019.
[8]
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: 03 May 2019
The "no evidence" ground must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error (a form of error of law): AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 at [52]-[56].
A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, by CATA s 38(6)(a) , the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
Legal unreasonableness can be concluded if the Panel comes to the view that no reasonable tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364 [68]). A failure properly to exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li (2013) 249 CLR 332 at 367 [76]). There is an analogy with the principle in House v The King (1936) 55 CLR 499 at 505 that an appellate court may infer that in some way there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust" and legal unreasonableness as a ground of judicial review: Li at 367 [76]. Further, there is some authority to the effect that unreasonableness as a ground of review may apply to factual findings, although this has not been finally resolved: see Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [153]; Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 at [29]; Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [193].
The Appeal Panel has stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent: Prendergast at [12].
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.
The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37] -[39]:
37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act:
'In order to fall within this paragraph the appellant must be able to point to evidence which:
(1) is significant; and
(2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.'
38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]:
'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said:
'23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud.
24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).'
39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown:
'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'
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.
Even if the appellant establishes that he or she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 CATA, the Appeal Panel has a 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 particularly come into play at this point.
In dealing with errors of law and errors of fact, the Panel must be cognisant that the two can intermingle. The Panel must also be alert that, under Australian law, there is a different approach to matters between two situations: on the one hand, where the particular decision has involved evaluation from findings of primary facts and the drawing of inferences therefrom on which reasonable minds may differ but which must be taken as legally correct unless overturned or varied on appeal; on the other hand, where there has been an exercise by the primary decision-maker of a discretion or choice embodied in the statute or law being applied, including on whether relief is to be granted or refused and the form of relief: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [18], [20], [26], [30]-[32], [43]-[45], [48]-[49], [55]-[56], [85]-[87], [127]-[128], [153]-[155].