respondent. Leave to appeal refused; appeal dismissed; stay of the orders made 27 February 2014 lifted (possession and payment orders reinstated).
Key principles
An Appeal Panel should refuse leave under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) where the appellant fails to establish that they 'may have suffered a...
For uncontested residential tenancy matters in the Consumer and Commercial Division, a tribunal member's duty to give reasons can, in appropriate cases and consistent with ss 36...
When an appellant relies on 'new evidence' under cl 12(1)(c) of Schedule 4, the evidence must be something not reasonably available at the first-instance hearing and, assessed...
Issues before the court
Whether the appellants were entitled to leave to appeal a Consumer and Commercial Division decision under s 80(2)(b) of the Act where the appeal...
Whether the Tribunal below was obliged to provide detailed written reasons in an uncontested residential tenancy hearing where the member recorded...
Whether the phone-call history produced by the appellants constituted 'significant new evidence' within cl 12(1)(c).
Plain English Summary
Tenants were terminated for non-payment of rent following an uncontested hearing where the landlord's agent gave evidence and the Member recorded findings in hearing notes. The tenants sought leave to internally appeal under s 80(2)(b) but did not raise any question of law; therefore leave required. Clause 12 Schedule 4 requires showing the appellant 'may have suffered a substantial miscarriage of justice' because the decision was unfair, against the weight of evidence, or there is significant new evidence. The tenants relied on phone logs and asserted contact and willingness to pay. The Appeal Panel found the record disclosed arrears and necessary findings, the phone logs were not fresh or persuasive, and there was no denial of procedural fairness. Leave was refused, the appeal dismissed, and the stay of the original orders lifted.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Whether the appellants were denied procedural fairness because they received notice late and did not attend the hearing.
Collins v Urban [2014] NSWCATAP 17 is an Appeal Panel decision of the New South Wales Civil and Administrative Tribunal (NCAT) delivered on 9 April 2014. The underlying facts are straightforward and typical of residential tenancy disputes. The landlords (Helmut and Dagmar Urban) applied to the Tribunal for termination of a residential tenancy and possession for non-payment of rent. Documents lodged with the Tribunal included a termination notice, tenancy agreement, and tenant ledger. The matter was listed for hearing on 27 February 2014. The landlord's agent attended and gave evidence by affirmation; the tenants did not appear. The Tribunal (consumer and commercial Member) made orders terminating the tenancy effective 3 March 2014, ordered immediate payment of arrears (about $3,248.57) and directed release of the bond to the landlords.
The tenants lodged a Notice of Appeal on 4 March 2014 seeking leave to appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (the Act). The Appeal Panel granted an interim stay to preserve the subject matter pending determination of leave and directed written submissions. The appellants produced a short mobile-call history showing some calls to the agent and argued that they had regularly contacted the agent and were able to repay arrears once new employment commenced. The respondent landlord filed a reply asserting continuing non-payment and no agreed repayment plan.
On 9 April 2014 the Appeal Panel refused leave to appeal, dismissed the appeal, and lifted the stay of the Tribunal's orders (i.e. the termination and possession orders were to take effect). The Panel provided detailed reasons to explain the application of s 80, cl 12 of Schedule 4 of the Act, the test for a 'substantial miscarriage of justice', and the duty to give reasons in high-volume uncontested tenancy cases.
Why the court decided this way
Two linked strands drove the decision.
Statutory threshold for leave to appeal from the Consumer & Commercial Division
The appeal was from a final Division decision and raised no question of law. Under s 80(2)(b) leave was therefore required. Because the decision under appeal was a Consumer and Commercial Division decision, cl 12(1) of Schedule 4 limited the grant of leave to cases where the Appeal Panel is satisfied the appellant "may have suffered a substantial miscarriage of justice" for one of three enumerated reasons: (a) decision not fair and equitable, (b) decision against the weight of evidence, or (c) significant new evidence has arisen that was not reasonably available at trial.
The Panel applied the 'substantial miscarriage of justice' standard as requiring that there be a "significant possibility" (or a "chance which was fairly open") that a different, more favourable result would have been achieved if the relevant circumstance had not occurred or if the fresh evidence had been available (drawing on the approach in Mraz and Gallagher).
Application of that threshold to the facts
The appellants' grounds were essentially factual: they said they had contacted the agent, were willing to enter a repayment plan, and that new employment would enable payment. They produced a short phone-call history.
The Panel found the rent had been unpaid for more than 14 days, the statutory precondition for a non-payment termination notice under s 88, and that the Tribunal below had adequate evidence (tenancy agreement, tenant ledger, termination notice and hearing notes) to make the orders.
The appellants did not show that any repayment plan had been agreed, or that arrears had been paid, nor did they explain why the phone records were not available at the hearing or why they would likely have produced a different outcome. On procedural fairness, the Panel noted the applicants received the notice of hearing and the respondents' agent had also sent text notifications earlier; the appellants' failure to understand the timing of the hearing did not suffice to show denial of a reasonable opportunity to be heard attributable to the Tribunal.
Because the appellants did not show any of the cl 12(1) circumstances would likely have led to a different result, the threshold for leave was not met and the Panel refused leave.
Two important subsidiary legal conclusions supported the decision.
The "duty to give reasons" in uncontested tenancy matters: The Panel accepted there is a general duty for first-instance decision-makers to give reasons sufficient to enable an appeal, but emphasised the duty is not absolute and must be applied pragmatically. In high-volume, uncontested residential tenancy applications it is proportionate to discharge the duty by a suitably drafted hearing-note form that records appearances, the evidence, relevant documents, the statutory elements and the Member's findings. That practical approach balanced transparency with the need for cheap and speedy disposition required by ss 36 and 38 of the Act.
The standard for fresh evidence: The Panel applied the established 'significant possibility' test and concluded the phone-call logs were neither shown to be unavailable at hearing nor of such persuasive force that a different outcome was significantly possible.
Before and after state of the law
Before this decision, principles concerning the duty to give reasons and the approach to leave to appeal were established in the case law the Panel cited (Pettitt v Dunkley, Gallagher, Mraz, Resource Pacific, BHP Billiton, Nakad, and earlier Tribunal decisions). Collins v Urban applies those principles in the specific context of s 80 of the Act and the cl 12 Schedule 4 restriction on internal appeals from Division decisions.
Key shifts / clarifications:
The decision is practical about the form of reasons required in uncontested, low-value tenancy matters: a concise, properly completed hearing-note form can be adequate, rather than detailed written reasons produced routinely absent a s 62 request.
It clarifies how the 'substantial miscarriage of justice' language in cl 12(1) should be interpreted, adopting the appellate criminal authorities' 'significant possibility' formulation, and applies that standard strictly to bar leave where the appellant fails to show a plausible chance of a different outcome.
The decision therefore consolidates an administrative, pragmatic test for sufficiency of reasons in the tenancy context and confirms strict application of the cl 12 threshold for leave to internal appeals.
Key passages with plain-English translation
Statutory leave threshold (quoted passage of cl 12(1) reproduced at the start of the Panel's analysis).
Plain English: For appeals from the Consumer and Commercial Division, the Appeal Panel can only grant leave if it is satisfied the tenant might have lost out because the first decision was unfair, or the result was against the weight of the evidence, or there is genuinely new evidence that could have changed the outcome.
The 'significant possibility' standard (discussion invoking Mraz and Gallagher).
Plain English: To show a 'substantial miscarriage of justice' you must do more than show some chance; you must show a real, significant possibility that the result would have been different if the alleged problem had not occurred or the fresh evidence had been before the Tribunal.
Duty to give reasons in uncontested tenancy matters (practical test).
Plain English: In one-off, uncontested tenancy hearings with small sums at stake, it is acceptable for the Tribunal to record its reasoning using a clear form or hearing notes rather than delivering long written reasons, so long as the record lets an Appeal Panel see the facts found, the documents relied on, and why the Member reached the decision.
Assessment of the phone-call history as fresh evidence.
Plain English: The phone logs showed a few brief calls; they did not show any agreed repayment plan or payments, and there was no reason to think the logs were unavailable at the original hearing; they were therefore not the kind of new, decisive evidence needed to trigger leave.
What fact patterns trigger this precedent
This decision will be most directly relevant where:
An appellant seeks leave to internally appeal a Consumer and Commercial Division decision under s 80(2)(b) on non-legal, factual grounds (e.g., asserted repayment plans, belated evidence of contact, denial of notice).
The original hearing was uncontested or decided on documentary evidence and simple hearing-note records.
The appellant relies on narrowly framed 'new evidence' such as call logs, message records, or other minor records that do not demonstrate payment, an agreement, or a clear procedural failure by the Tribunal.
In those fact patterns Collins v Urban indicates the Appeal Panel will expect appellants to explain precisely what they would have put before the Tribunal and why that material would have made a significant difference.
How later courts have treated it
Within the reasons the Panel itself situates Collins v Urban as one of the early applications of the s 80/ Schedule 4 regime in the tenancy context. The decision relies on established authorities (criminal fresh-evidence cases and Tribunal precedents) to articulate the cl 12 test and the duty to give reasons. The judgment cites a number of appellate and Tribunal authorities in support (for example, Pettitt v Dunkley, Gallagher, Mraz, Resource Pacific, BHP Billiton, Nakad, Sydney Supermarkets), showing the Appeal Panel acted in a line of existing jurisprudence rather than creating novel law.
The decision therefore functions as an early, practical exposition of how cl 12 is to operate in tenancy appeals and supplies an internal-appeal practice precedent for future Appeal Panels when assessing leave and the sufficiency of hearing records. Practitioners should treat the decision as persuasive guidance on procedural expectations for leave applications in tenancy matters within NCAT.
Still-open questions
Borderline adequacy of hearing records. Collins v Urban endorses concise hearing notes in uncontested matters, but it leaves open how detailed those must be in marginally more complex or borderline contested cases. What precise minimum entries are needed on a hearing form to be 'sufficient' for appellate scrutiny in a closer factual case is not exhaustively specified.
Application of the cl 12 threshold in more complex factual disputes or where evidence is disputed and nuanced. The Panel applied a straightforward 'no significant possibility' conclusion on the facts; but where an appellant can point to contemporaneous documentary evidence showing more substantial engagement with the landlord (for example, an email exchange recording an unfinalised repayment plan), courts will need to undertake a finer-grained application of the 'significant possibility' standard.
Interaction between s 62 requests for written reasons and the Panel's pragmatic approach. The judgment emphasises that s 62(2) allows parties to request reasons within 28 days. The practical implication for a tenant who wants fuller reasons to preserve appellate options is clear, but the timing and tactical interplay between requesting reasons, preparing new evidence, and applying for leave could give rise to further procedural disputes in future cases.
Conclusion
Collins v Urban is a practical, precedent-setting Appeal Panel decision about when leave to internally appeal a Consumer and Commercial Division residential tenancy order will be allowed. It confirms a strict application of the cl 12 'substantial miscarriage of justice' test (requiring a significant possibility of a different outcome) and sets out a pragmatic approach to reasons in uncontested, high-volume residential tenancy cases: a suitably completed hearing-note form may suffice to discharge the duty to give reasons, balancing transparency with proportionality.
This is general legal information, not legal advice. I can make mistakes. Before you rely on any part of this analysis, or use any draft documents or arguments drawn from it, get a qualified Australian lawyer to check it.
Catchwords
ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - miscarriage of justice - whether significant possibility of different outcome
Judgment (12 paragraphs)
[1]
Introduction
The appellants are tenants of a property at [XXXX], Sutherland. On 27 February 2014 the Tribunal below made a number of orders including orders, under ss 87, 88 and 187 of the Residential Tenancies Act 2010 (RT Act), terminating the residential tenancy agreement in respect of the property for non-payment of rent and requiring possession to be given to the landlords, the respondents, on 3 March 2014.
The appellants wished to appeal against that decision of the Tribunal and sought leave to do so under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (the Act). On 4 March 2013, in order to preserve the subject matter of any potential appeal, a stay of the orders made on 27 February 2014 was granted.
On 9 April 2014, the Appeal Panel determined that leave to appeal should be refused, the appeal should be dismissed and the stay of the orders made on 27 February 2014 should be lifted. Orders were made accordingly on that day. At that time we indicated that the Appeal Panel would deliver its reasons subsequently. These are the Appeal Panel's reasons for making those orders.
These reasons go into considerably more detail than might ordinarily be expected for an appeal in a residential tenancy matter of this nature. This is because the appeal rights under s 80 of the Act are a novel development in residential tenancy matters and this is one of the first matters in which these appeal rights under s 80 have been sought to be exercised. In these circumstances the Appeal Panel thought it appropriate to explain in detail what occurred in the matter, to indicate how matters of this nature might be dealt with and to set out the applicable principles.
[2]
The Proceedings at First Instance
On 5 February 2014, the landlords, the respondents, lodged a Termination and Possession Application for Non-Payment of Rent form with the Tribunal. The orders sought in the form were for "[t]ermination and possession of the premises on the ground of non-payment of rent", "[p]ayment of rent arrears" and '[t]he rental bond (or part) to be paid to you". In addition, in response to the question "If the tenant pays all rent owing or enters into and fully complies with a repayment plan, will you nevertheless be seeking to terminate the tenancy agreement because the tenant has failed to pay rent?", the respondents ticked the box "No". In response to the question "What are your reasons for requesting the above order/s?" it was stated:
To date rentals arrears are $1901.43 tenants will not answer calls or text to explain their situation or to arrange payment plan. When the tenants say they will come in and pay rent, they fail to do so. Termination noticed was issued on the 20.01.14 and hand delivered on this date. I allowed one day to be deemed 'served'. Termination date 4/2/14.
Attached to the form were:
1. a Termination Notice, stated to have been served on 21 January 2014 by hand delivery, with a date on which vacant possession was required of 4 February 2014;
2. a letter from the landlords' agent to the appellants giving them the option of continuing the tenancy if they contacted the agent to explain their position and paid the rent including all arrears of rent before 4 February 2014; and
3. a "Tenant Balance" which recorded the rent owing as at 4 February 2014 and a "Tenant Ledger" which recorded the rental payments and amounts owing from 26 September 2013 to 29 January 2014.
On 19 February 2014, the matter was listed for hearing on 27 February 2014 at Hurstville. A Notice of Conciliation and Hearing was apparently sent by the Registry to both the appellants, at the address of the property, and to the respondents, at the address of their agent.
The principal sections of the RT Act that are applicable to a claim for termination of a residential tenancy agreement on the basis of non-payment of rent are ss 87 and 88. Termination and other types of orders may also be made under s 187 of the RT Act in cases such as the present. Sections 87 and 88 provide:
87 Breach of agreement
(1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement.
(2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given.
(3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement.
(4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that:
(a) the tenant has breached the residential tenancy agreement, and
(b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and
(c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
(5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following:
(a) the nature of the breach,
(b) any previous breaches,
(c) any steps taken by the tenant to remedy the breach,
(d) any steps taken by the landlord about the breach,
(e) the previous history of the tenancy.
(6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach.
Note. Section 152 sets out additional matters to be considered if the residential tenancy agreement is a social housing tenancy agreement.
88 Termination notices for non-payment of rent
(1) A termination notice given by a landlord on the ground of a breach of the residential tenancy agreement solely arising from failure to pay rent (a non-payment termination notice) has no effect unless the rent has remained unpaid in breach of the agreement for not less than 14 days before the notice is given.
(2) A non-payment termination notice is not ineffective merely because of any failure of the landlord or the landlord's agent to make a prior formal demand for payment of the rent.
(3) A non-payment termination notice must inform the tenant that the tenant is not required to vacate the residential premises if the tenant pays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord, unless the Tribunal makes a termination order on the basis that the tenant has frequently failed to pay rent on time.
(4) Despite any other provision of this Part, a landlord may apply to the Tribunal for a termination order before the termination date specified in a non-payment termination notice. The Tribunal must not consider any such application until after the termination date.
[3]
The Notice of Appeal
The Tribunal has only one form for an internal appeal called a Notice of Appeal. There is no separate form for an application for leave to appeal.
This is because the Tribunal is required to act with as little formality as the circumstances of the case permit and without regard to technicalities or legal forms (s 38(4) of the Act) and the requirement that Tribunal's practice and procedures should be implemented so as to facilitate the resolution of 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) of the Act).
A party seeking to appeal under s 80 of the Act is required in the Notice of Appeal to indicate whether leave to appeal is being asked for. If so, the party is also required in the form to state the bases upon which the Appeal Panel should grant leave. In these circumstances, the party seeking to appeal is called an appellant, even if technically they might be considered to be merely an applicant for leave to appeal.
The appellants lodged a Notice of Appeal on 4 March 2014. The notice stated that the appellants had received the notice of decision on 28 February 2014.
In the notice, the orders sought to be challenged on appeal were stated to be:
The Residential Tenancy Agreement is being terminated.
Did not receive letter of orders till 28th of Feb
The grounds of appeal were identified as follows:
1. The situation was explained to the real estate.
2. Regular contact via phone was made to the real estate.
3. Appealants believe they can pay back amount quickly due to Stephen starting new employment.
The orders that the appellants were asking the Appeal Panel to make if any appeal were successful were stated to be:
The Residential Tenancy Agreement not to be terminated.
Rent to be paid weekly as agreed plus an extra amount with rent that both parties agree on until amount owing is paid off.
Although not expressly stated, from the information in the form it may be inferred that the appellants also sought to appeal against the other orders including the order for possession and the order for the payment of arrears immediately.
The grounds relied upon do not raise any question of law but rather appear to relate to attempts to negotiate "a repayment plan agreed with the landlord" (as referred to in s 88(3) of the RT Act) being an agreement to make a weekly payment in addition to the rent in order to pay off the arrears of rent which were not disputed to be owing. No suggestion is made that such a repayment plan was ever agreed.
[4]
Directions, Submissions and Documents
On 4 March 2014, the Appeal Panel made orders and directions as follows:
1. The orders made by the Tribunal in application RT14/08008 are stayed until further order.
2. a) the appellant is to file and serve submissions and documents (including the question of whether leave should be granted and whether the proceedings should be determined on the papers) on or before 10 March 2014.
b) the respondent is to file and serve submissions and documents (including the question of whether leave should be granted and whether the proceedings should be determined on the papers) on or before 14 March 2014.
c) on or before 18 March 2014 the appellant is to file and serve submissions in reply.
On 10 March 2014, the appellants filed their submissions and documents. The document provided was a schedule of calls from a mobile telephone number to the landlords' agent's telephone number showing that there was 1 call in February 2014 and 6 calls in January but some were only very short, less than a minute. The submissions were as follows:
Due to Stephen Beazley gaining new employment starting on the 12/03/2014 at [XXXX], Mascot the rent in arrears will be able to be paid off over time. The appellants have started moving objects from the property [XXXX] to storage while trying to find a suitable time-frame to be able to find a new, efficient and affordable property to move into and for a third-party (the tribunal) to step in and make suitable and agreeable arrangements for the appellants to make a payment plan for the rent owing to the respondents.
The Appellants have already stated their answer to the question of leave and whether the proceedings should be determined on the papers.
On 13 March 2014, the respondents filed their Reply to Appeal, under Rule 26 of the Civil and Administrative Tribunal Rules 2014. In that reply, the respondents opposed the granting of leave on the basis that "the tenants have paid no rent since 29.01.14 even after seeking appeal." On that same day the respondents' agent provided her written submissions. They were as follows:
In response to appellants, I believe that leave should not be granted. The tenants have not paid any rent since the 29.01.2014. They have made no effort to pay off the arrears, or even make regular rent payments.
They have given no explanation as to why the rent has fallen behind and no efforts to put a payment plan in place to rectify their arrears.
I have made constant attempts to contact the tenants including text, emails and phone calls - (evidence provided) all going unanswered, dating back to when the termination noticed was served (20.01.2014).
The tenants where notified on every occasion of the steps taken, (as demonstrated in the text log). When the initial termination was served, when the tribunal was scheduled - including time and date, and finally the outcome of the hearing.
The tenants did not reply to any of the above and still rent went unpaid.
As for the phone records provided by the tenants these were calls from Stephen notifying the office when he would be in to pay the rent. From the seven calls logged only on two occasions did he actually come into the office to pay rent, the 20.01.2014 and 29.01.0214 all other calls that were made were asking when we were open, our bank details and other time wasting tactics saying he was 'stuck in traffic' etc. We received no other call, or contact since the 07.02.2014.
Upon my application to the tribunal on the 04/02/2014 I did state that if the tenants paid their rent in full they could continue their agreement. Since there has been no contact from the tenants and no effort what so ever to rectify their rental arrears I ask to withdraw that option.
I also believe that since the bond has already been released to the office to assist the rental arrears (payment on ledger dated the 04.03.2014) as part of the verdict of hearing Rt14/08008. The owner has lost that security and wish for the tenants to vacate as soon as possible.
The tenant's agreement is due to expire on the 26.03.2014 I ask that they be out of the unit by that date at the latest. Keeping in mind that this is two months after the termination notice was sent and will be over a month since the tribunal hearing which gave them the vacate date of the 03.03.2014.
[5]
Hearing of Application for Leave to Appeal
Section 50 of the Act governs when an oral hearing is required in the Tribunal. Section 50 provides, in part:
(1) A hearing is required for proceedings in the Tribunal except:
(a) in proceedings for the granting of leave for an external or internal appeal,
...
(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
Accordingly, the Appeal Panel is not required to conduct an oral hearing in relation to this application for leave to appeal and may rely upon submissions and documents that are before the Tribunal.
Notwithstanding the provisions found in s 50, it must be borne in mind that the Tribunal, whether at first instance or sitting as the Appeal Panel, must under s 38(5)(c) "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".
Accordingly, it will generally only be appropriate for the Tribunal, including the Appeal Panel, to proceed to hear and determine matters of this type on the papers if it is satisfied that the parties have had a reasonable opportunity to be heard or otherwise have their submissions considered.
Having regard to the nature of the proceedings, being an application for leave to appeal, and the fact that the parties had had the opportunity to put their cases before the Appeal Panel in the Notice of Appeal and Reply to Appeal as well as in the submissions and documents which they were directed to file on 4 March 2014, the Panel was satisfied that its obligation under s 38(5)(c) had been discharged in this case. Consequently, it was appropriate for the Appeal Panel to determine the matter on the papers, as permitted by s 50(1)(a) of the Act. Adopting this course was also appropriate in a case such as the present because it saved the parties from incurring the costs of attending an oral hearing, when the subject matter of the substantive claims was not such as would justify the incurring of any additional delay, cost or expense.
[6]
Reasons at First Instance
Although it was not a matter relied upon or raised by the parties, the Appeal Panel believes it is appropriate and may be of assistance to make some observations on the duty to give or prepare reasons for decisions in the light of the approach taken in the present case.
The Tribunal below decided the matter and made orders on 27 February 2014. At that time, it appears no reasons for decision were delivered apart from the notation to the effect that the rent from 2 January 2014 to 27 February 2014 which was owing amounted to $3,248.57. From the orders made, the Hearing Notes and the other material referred to above, it is possible to discern what determinations were made by the Member as to the amount of rent unpaid, whether the residential tenancy agreement had been breached and whether an order for termination and possession should be made.
Neither the appellants nor the respondents apparently requested the Tribunal at first instance to provide a written statement of reasons for its decision notwithstanding that such a course was available under s 62(2) of the Act. Since the appellants did not request reasons, it is not surprising that failure to give reasons was not relied upon as a ground of appeal.
Section 62 provides:
(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.
(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.
(3) A written statement of reasons for the purposes of this section must set out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal's understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
(4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.
Section 62 establishes a regime under which the Tribunal is not under an express statutory obligation to provide reasons for a decision unless a party makes a request for reasons under s 62(2) but the Tribunal may and in many cases does prepare and give reasons for decision, whether oral or written, without a request to do so from the parties, consistently with s 62(4).
[7]
Leave to Appeal from Decisions of the Consumer and Commercial Division
The Panel now turns to the question of whether the appellant should be granted leave to appeal in this matter where the decision appealed from was made by the Consumer and Commercial Division of the Tribunal.
In the case of an application for leave to appeal from a decision of the Consumer and Commercial Division, under cl 12(1) of Schedule 4 of the Act, the Appeal Panel's discretion to grant leave is only enlivened if the Panel is satisfied that:
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).
This clause appears to be based on the provisions of s 68(2) in the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) which permitted that tribunal to grant a rehearing if the applicant may have suffered a substantial injustice because of one or more the bases listed in that subsection were made out. Those bases were in substance the same as the 3 bases identified in cl 12. The significant difference between cl 12 and s 68 is that cl 12(1) requires that the appellant may have suffered "a substantial miscarriage of justice" rather than "a substantial injustice" as appeared in s 68(2).
Clause 12 does not require that the Appeal Panel must be satisfied that the appellant has actually suffered a substantial miscarriage of justice. All that is required is that the appellant "may" have suffered such a miscarriage.
The use of the expression "substantial miscarriage of justice" recalls the wording of the proviso to s (6)(1) of the Criminal Appeal Act 1912 (NSW) which is in the following terms:
provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
What constitutes a "substantial miscarriage of justice" in the context of s 6(1) was explained by the High Court in Mraz v The Queen (1955) 93 CLR 493 at 514:
It [the proviso] ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice.Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried.
(underlining added)
[8]
Leave to Appeal - General Principles on the Grant of Leave
If the Appeal Panel is satisfied that the applicant for leave to appeal from a decision of the Consumer and Commercial may have suffered a substantial miscarriage of justice on one of the grounds identified in cl 12(1)(a), (b) or (c), then the Panel "may" grant leave under s 80(2)(b) of the Act.
Thus, even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12 of Schedule 4 to the Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
The principles which govern the granting of leave to appeal by the Appeal Panel under s 80(2)(b) should generally be consistent with those which are applied by Courts when considering the question of leave to appeal. These have recently been summarised by the Court of Appeal in BHP Billiton Ltd v Dunning [2013] NSWCA 421. In addition, the Supreme Court has considered the principles which apply when granting leave to appeal to the Court from a decision of the Guardianship Tribunal in a number of cases including SAB v SEM [2013] NSWSC 253. The Guardianship Tribunal has now been absorbed into the Tribunal as the Guardianship Division. As there are alternate rights of appeal from decisions of the Guardianship Division to the Supreme Court or the Appeal Panel (see cll 12 to 14 of Schedule 6 to the Act) both by leave in the case of interlocutory decisions or on grounds other than a question of law, the same principles should apply in deciding whether to grant leave to appeal to the Court or to the Appeal Panel.
Further, the Appeal Panel has addressed the relevant principles to be applied when deciding whether to grant leave to extend an appeal to the merits of the decision (under s 113(2) of Administrative Decisions Tribunal Act 1997 (NSW)) in Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10. These principles may be applied by analogy when considering whether to grant leave to appeal under s 80(2)(b) of the Act.
The general principles derived from these cases can be summarised as follows:
1. In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
1. issues of principle;
2. questions of public importance or matters of administration or policy which might have general application; or
3. 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;
4. a factual error that was unreasonably arrived at and clearly mistaken; or
5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,
BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
1. In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
[9]
Leave to Appeal - Consideration
As noted above, the grounds of appeal relied upon were:
1. The situation was explained to the real estate.
2. Regular contact via phone was made to the real estate.
3. Appealants believe they can pay back amount quickly due to Stephen starting new employment.
These grounds did not raise any error of fact or law by the Tribunal below. Implicitly they acknowledged that there was an amount that was required to be paid back, namely, the rent which had been unpaid for more than 14 days, which was the basis for termination of the residential tenancy agreement. This was confirmed by the appellants' submission in support of the leave application filed on 10 March 2014 where it was stated that due to one of the appellants gaining new employment the rent in arrears would be able to be paid off over time. The appellants were apparently in the process of moving out and what they wanted the Tribunal to do was to impose a rent repayment agreement on the landlord/respondents for them. In the submissions it was stated:
The appellants have started moving objects from the property [XXX] to storage while trying to find a suitable time-frame to be able to find a new, efficient and affordable property to move into and for a third-party (the tribunal) to step in and make suitable and agreeable arrangements for the appellants to make a payment plan for the rent owing to the respondents.
As the appellants' appeal was not on a question of law, leave to appeal was required under s 80(2)(b) and as the decision under appeal was a decision of the Consumer and Commercial Division, the additional requirements of cl 12 of Schedule 4 to the Act were also required to be satisfied.
In their submissions in the Notice of Appeal on the question of whether the cl 12 additional requirements for leave had been satisfied, the appellants submitted:
The decision made was not fair and equitable due to details given in original form being false. Reg. Contact was made with explanation of situation.
Appealants were willing to arrange a payment plan but never received an attempt to do so. Real estate mentioned one but never made a plan or contract so one could be put in place.
This appears to be a reference to the statement in the Termination and Possession Application for Non-Payment of Rent form that "tenants will not answer calls or text to explain their situation or to arrange payment plan". Whether or not the appellants did answer calls or explain their situation, it was not in dispute that their rent was in arrears and had been so for more than 14 days or that no repayment plan that might have averted the respondents' application was ever entered into. Further, there was no suggestion that the Tribunal had made an error in relation to whether the appellants had made contact and explained their situation. The complaint was rather that the respondents' agent had given false details to the Tribunal. Finally, the information supplied by the appellants and the respondents indicated that while there was some contact between the appellants and the respondents' agent, no repayment agreement was reached, no arrears of rent were paid and no other relevant matter occurred. Accordingly, there was no basis to conclude that the decision was not fair and reasonable on this basis. Nor did the material submitted indicate that as a consequence of the allegedly false details being given the appellants were deprived of a significant chance of a more favourable outcome than occurred. The rent was unpaid for more than 14 days and the appellants did not point to any basis for not making the termination order.
[10]
Conclusion and Orders
As a consequence, the Appeal Panel decided it should dismiss the application for leave to appeal. To the extent that an appeal had been instituted by the filing of a Notice to Appeal in this matter, such an appeal should be dismissed. In these circumstances, it was also appropriate to lift the stay of the orders made on 27 February 2014 by the Tribunal below.
Accordingly, the Tribunal made the following orders:
1. Leave to appeal is refused.
2. The Appeal is dismissed;
3. The stay of the orders made on 27 February 2014 is lifted.
[11]
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
[12]
Amendments
25 February 2016 - Coversheet - hyperlinks removed from 'Cases Cited'
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: 25 February 2016
Parties
Applicant/Plaintiff:
Collins
Respondent/Defendant:
Urban
Legislation Cited (7)
Administrative Decisions Tribunal Act 1997(NSW)
Consumer, Trader and Tenancy Tribunal Act 2011(NSW)
Criminal Appeals Act 1912(NSW)
Consumer, Trader and Tenancy Tribunal Act 2001(NSW)
Leave to appeal refused; appeal dismissed; stay of the orders made 27 February 2014 lifted (possession and payment orders reinstated).
The file reveals that at the hearing on 27 February 2014, the respondents' agent appeared and gave evidence by affirmation. There was no appearance by the appellants. In accordance with the usual procedure adopted in residential tenancy matters in the Consumer and Commercial Division of the Tribunal the respondents' agent gave part of her evidence by way of completing part of a form headed "Hearing Notes" which are described on the form as "Tribunal Record". On the front page of the Hearing Notes were the agent's details, details of the tenancy agreement and rental bond, information concerning the "Non-payment Termination Notice" and information concerning the "Current Situation" which indicated that the premises were not vacant, the rent had been paid until 1 January 2014, the arrears claimed were $3,247.00, the last date of payment of rent was 29 January 2014, the rent was 55 days in arrears and was accruing at a daily rate of $58.57. In addition, a copy of the written tenancy agreement was before the Tribunal as well as an updated Tenant Balance and Tenant Ledger indicating that no further payment of rent had been made since 4 February 2014 when the application was lodged. It appears from ticks on the Hearing Notes that the Member may have questioned the agent to confirm aspects of the information provided in the Hearing Notes.
On the back of the form headed "Hearing Notes" in a section marked "Tribunal use only" the Member who conducted the hearing circled various options thereby in effect recording that there was no appearance for the tenant or respondent and finding that the premises were residential, the hearing notice had been served, the agreement was a regulated agreement and was written, the application had been received within time and the notice to vacate was valid. By ticking various boxes, it was also effectively found that the premises were residential premises, the termination and vacant possession date was not earlier than 14 days after the day on which notice was given, the grounds were that rent was unpaid for not less than 14 days before notice was given and the notice was in writing. In addition, findings were made as follows:
3 adults
Employed
No children
Substantial arrears
The Appeal Panel had before it the Termination and Possession Application for Non-Payment of Rent form, the documents provided with the form, the other documentation presented by the agent at the hearing and the Hearing Notes, including the part prepared by the respondents' agent and the part completed by the Member.
The form of orders issued included the following: "Reasons: - rent from 2 January 2014 to 27 February 2014 $3,248.57 - including $90.00 paid on account".
All of this material indicates that the relevant requirements under ss 87 and 88 of the RT Act were the subject of uncontested evidence, were considered by the Tribunal and were found to have been satisfied.
The Tribunal made orders on 27 February 2014 in the following form:
1. The Residential Tenancy Agreement is terminated in accordance with:
- s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement.
- failure to pay rent in accordance with agreement.
2. The Residential Tenancy Agreement is terminated on 3 March 2014 and possession is to be given to the landlord on the date of termination.
3. The tenant shall pay the landlord a daily occupation fee at the rate of $58.57 per day from the day after the date of termination, namely 4 March 2014 until the date vacant possession is given to the landlord.
4. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.
5. The landlord's agent is to advise the tenant in writing by the delivery of a letter to the premises by 6:00pm on 27 February 2014 of the orders made today.
6. The tenant, Brianna Collins & Stephen Beazley, [xxx] Glencoe Street SUTHERLAND NSW 2232 Australia, is to pay the landlord, Helmut Urban & Dagmar Urban, c/- L H Hooker PO Box [xxx] SUTHERLAND NSW 2232 Australia, the sum of $3,248.57 immediately.
Reasons:
. rent from 2 January 2014 to 27 February 2014 $3,248.57
. including $90.00 paid on account
7. The Rental Bond Services is directed to pay the landlord, Helmut Urban & Dagmar Urban, c/- L J Hooker PO Box [xxx] SUTHERLAND NSW 2232 Australia, the whole bond plus interest of Rental Bond [xx-xx]. Any amount received is to be credited against the money order.
As noted above, the appellants were required in their form to indicate whether they were seeking leave to appeal. The requirement for leave to appeal is dealt with in s 80 of the Act which governs internal appeals from decisions of a Division of the Tribunal to the Appeal Panel. Section 80 relevantly provides:
(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.
Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1).
(2) Any internal appeal may be made:
(a) in the case of an interlocutory decision of the Tribunal at first instance-with the leave of the Appeal Panel, and
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance-as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
...
The decision from which the appellants were seeking to appeal was a final decision not an interlocutory or ancillary decision (see the definitions in s 4(1) of the Act). Under s 80(2)(b), the appellants could only appeal as of right from this decision on a question of law. Otherwise, leave to appeal was required under s 80(2)(b).
As we stated above, the appellants' grounds of appeal do not raise any questions of law. In these circumstances the Appellants in their Notice of Appeal correctly indicated that they were asking for leave to appeal.
Furthermore, the decision appealed from was made in the Consumer and Commercial Division of the Tribunal. When considering an application for leave to appeal from a decision of the Consumer and Commercial Division to the Appeal Panel, the Panel is required to be satisfied of the matters set out in cl 12 of Schedule 4 to the Act before leave can be granted. That clause provides:
12 Limitations on internal appeals against Division decisions
(1) 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).
The expression "Division decision" in cl12(1) is defined in cl 1 of Schedule 4 and includes a decision of the Consumer and Commercial Division when it is exercising functions under the RT Act by virtue of the definitions of "the Division" and "Division function" in cl 1 and the provisions of cl 3(1) of Schedule 4.
It is for these reasons that the Notice of Appeal form also requires an appellant to indicate whether the decision appealed from is a decision of the Consumer and Commercial Division. If so and the appellant is seeking leave, the appellant is then required to address in the form the criteria which the Appeal Panel must consider under cl 12 of Schedule 4. In this regard, the appellants stated under the heading "i. the decision was not fair and equitable":
The decision made was not fair and equitable due to details given in original form being false. Reg. Contact was made with explanation of situation.
Appealants were willing to arrange a payment plan but never received an attempt to do so. Real estate mentioned one but never made a plan or contract so one could be put in place.
Under the heading "ii. Decision of the Tribunal was against the weight of the evidence" and the subheading "What evidence did you give at the hearing? What documents did you show the Tribunal" the appellants stated:
None, we did not receive a letter of consillation & notice until late the previous evening and did not realise the proceedings were to take place the following morning
Under the heading "iii. Evidence is now available that was not reasonably available at the time of hearing" and the subheading "What evidence/documents do you now seek to produce to the Tribunal?", it was stated:
Evidence of contact via phone-phone call history.
No information was given as to when the appellants first became aware of that evidence or why it was not available at the time of the hearing.
The respondents also provided an updated Tenant Balance and Tenant Ledger indicating that no further payments had been made up to 13 March 2014.
It does not appear that the appellants filed any submissions in reply. Further the appellant did not seek to rely upon a transcript of the proceedings before the Tribunal.
A provision such as s 62 of the Act does not, however, define exhaustively when there is a duty to give reasons or the extent of that duty.
One reason why reasons are generally required, notwithstanding a provision such as s 62, is that if reasons for decision are neither sought nor prepared and an appeal or application for leave to appeal is lodged, the findings of fact and legal reasoning of the decision maker at first instance would not be available to the appellate body by way of written reasons. In many instances not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right because the appellate body does not have a statement of the findings of fact, the relevant law and explanation of how the law was applied to the facts as found, by the decision maker at first instance.
It was held in Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 (per Moffitt JA, Manning JA agreeing) that:
The force of the authorities, which in various ways say that the judge or magistrate at first instance in particular cases ought to have given reasons, is that, as part of his judicial duty and apart from any express requirement of any statute, he ought to have given reasons for the decision in question. I think there is duty upon a judge or magistrate, at least at first instance, in an appropriate case and in appropriate circumstances to give reasons for decision such as will facilitate a litigant, who may be aggrieved, exercising rights he may have to appeal. In Carlson v King [(1947) 64 WN (NSW) 6] Jordan CJ in delivering the decision of the Full Court said: "It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. [...]" The judgment otherwise makes it clear that this statement is directed to the general judicial duty of a judge of a court from which an appeal lies, whether or not a provision such as s. 144(3) [which in effect required a judge upon request to provide reasons] exists or not.
It can be observed that Jordon CJ in the passage quoted contemplates that the relevant duty may be discharged not only by giving oral or written reasons for a decision but also by preparing a suitable record of the evidence, law and reasoning so that an appellate body is properly informed if it is required to consider the matter on appeal.
The duty in relation to reasons endorsed in Pettit has been held to apply not only to Courts but also to other judicial or quasi-judicial tribunals or bodies - see for example Campbelltown City Council v Vegan (2006) 67 NSWLR 372.
The other basis upon which it has been held that reasons are generally required to be given was recently reiterated by the Court of Appeal in Keith v Gal[2013] NSWCA 339 (per Gleeson JA at [109]) as being that failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice, citing Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA. If, however, the parties have the right to request written reasons but do not do so, this basis for generally requiring reasons to be given may be of less significance but it continues to apply. Further, in proceedings that are uncontested by the respondent, this consideration may also carry less weight.
In relation to one of the principal predecessors of the present Tribunal, the Appeal Panel of the Administrative Decisions Tribunal (ADT) held that the principles identified above applied to that Tribunal. In Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 the Appeal Panel of the ADT said at [56] - [60]:
56 The Tribunal is obliged to give adequate reasons. Appeal Panels of the Tribunal have routinely accepted the principles enunciated in the line of cases that includeSoulemezis v Dudley (1987) 10 NSWLR 247, Mifsud v Campbell (1991) 21 NSWLR 725 and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. The Tribunal is a deliberative body engaged in the exercise of a judicial function when hearing and determining applications, giving reasons for decision and making final orders. See recently, Campbelltown City Council v Vegan (2006) 67 NSWLR 372, esp at [109] ff per Basten JA. The Commonwealth authorities relating to Commonwealth tribunals are to similar effect. See, for example, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366; Dornan v Riordan(1990) 24 FCR 564 at 568; Edwards v Guidice (1999) 169 ALR 89 at [10], [43].
57 In our view, s 89(5) of the ADT Act, to which counsel for the appellant gave emphasis, does no more than confirm the law as it would in any event have applied to the Tribunal.
58 Section 89(5) states that the Tribunal must in reasons published under s 89 set out:
'(a) the findings on material questions of fact, referring to the evidence or other material on which these findings are based,
(b) the Tribunal's understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.'
59 (In that regard we note that strictly interpreted s 89 is not applicable to this case. Section 89 is concerned with the circumstance where the Tribunal does not publish written reasons at the time it makes its final orders.)
60 A trier of fact is not obliged to address, and reconcile, every contradiction or inconsistency in the evidence. The law does 'not require lengthy or elaborate reasons' but it is 'necessary that the essential ground or grounds upon which the decision rests should be articulated': Soulemezis v Dudley (Holdings) Pty Ltd per McHugh JA at 280.
Section 89 of the Administrative Decisions Tribunal Act 1997 was in similar terms to s 62 of the Act, although there was no equivalent of s 62(4).
The Appeal Panel accepts that these principles should also be applied in relation to decisions in proceedings before the Consumer and Commercial Division of the Tribunal, which are judicial in nature. An appeal lies from the Consumer and Commercial Division to the Appeal Panel as of right from a final or ancillary decision on a question of law and by leave on other grounds or from interlocutory decisions. As a result, there is generally a duty on Members sitting in the Consumer and Commercial Division to give oral or written reasons for their decisions or, at least in uncontested proceedings, "to make... a note of everything necessary to enable the case to be laid properly and sufficiently before the [Appeal Panel] if there should be an appeal", to quote the words of Sir Frederick Jordan in Carlson v King (1947) 64 WN (NSW) 6.
A number of propositions can be derived from the authorities concerning the nature and extent of the duty to give of reasons as follows:
1. notwithstanding that there have been many cases (some of which are collected in De Iacovo v Lacanale (1957) VR 553, at pp 558-559) in which it has been held that it is the duty of a judge, magistrate or other relevant decision maker to state reasons, that does not mean that a decision maker must give his or her reasons in every case. There is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Whilst it is no doubt right to describe the requirement to give reasons as "an incident of the judicial process", it is subject to the qualification that it is a normal but not a universal incident - Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 per Gibbs CJ;
2. the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J;
3. the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] per Basten JA;
4. not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] per Basten JA.
In the Consumer and Commercial Division, and particularly in relation to uncontested residential tenancy matters, detailed reasons for decision are often not given, unless a s 62(2) request is made. This is, at least in part, a consequence of the volume of applications and the time available. It is not unusual for the Tribunal to be required to deal with 45,000 to 50,000 residential tenancy applications in a year. For example, in the period from 1 July 2012 to 30 June 2013, 49,396 residential tenancy applications were lodged in the Consumer, Trader and Tenancy Tribunal, the predecessor of the Consumer and Commercial Division of the Tribunal. In most cases, these applications are listed for conciliation and hearing within 21 to 28 days of lodgment. Most are disposed of at this first hearing in a group list of matters in which each application is allocated between 7 and 20 minutes of hearing time (depending on the nature of the application). This time allocation has been found to be workable because most applications are not contested.
To require the Tribunal in uncontested residential tenancy matters, absent a request under s 62(2), to give detailed reasons setting out specific findings of fact and the evidence supporting those findings, the applicable law and the reasoning processes leading to the conclusions reached by the Tribunal would involve time, effort and expense that could often be disproportionate to the nature and extent of the subject matter of a claim for termination of a tenancy for non-payment of rent or a similar claim arising under the RT Act. It would be likely to have the consequence that fewer residential tenancy matters could be listed for hearing on any one day and hearings would therefore be delayed unless funds were available to the Tribunal to pay more Members to sit and additional hearing rooms could be found and paid for. The most likely outcome would be generalised delay in resolution of residential tenancy matters. Furthermore and in any event, the average cost to the Tribunal of conducting residential tenancy hearings would be increased for the Tribunal, if not for the parties. In a significant number of residential tenancy proceedings the outstanding rent or other amount in issue might be anticipated to be less than the cost to the Tribunal of conducting the proceedings.
The obligation of the Tribunal is to resolve proceedings in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings as required by s 36(4) of the Act.
The Tribunal is also required to facilitate the resolution of the real issue between residential landlords and tenants justly, quickly and cheaply, under s 36(1) and (2)(a) of the Act. Landlords' and tenants' disputes concerning residential tenancies in many cases require resolution within weeks rather than months or years as might occur in other judicial bodies in relation to other types of matters.
In these circumstances and taking into account the nature of the jurisdiction being exercised, the particular subject matter of the decision in many residential tenancy disputes and the fact that giving detailed reasons is not cost free, the Appeal Panel concludes that in uncontested residential tenancy matters involving relatively small amounts of unpaid rent or other similarly small claims, while Members are required to prepare or record reasons for their decision that duty may be discharged by utilising a suitably drafted form to record (whether by written statements, circling options or ticking responses or a combination of methods):
1. the appearances for the parties;
2. the evidence given by the witness or witnesses and the resolution of any conflicts in the evidence;
3. the relevant details of the residential tenancy agreement, notice of termination and other documents provided to the Tribunal;
4. the elements of any relevant cause of action and whether the Member is satisfied that each element has been made out;
5. the elements of any relevant defence raised and whether the Members is satisfied that it has or has not been made out; and
6. any other relevant matter which would be necessary to allow the Appeal Panel to hear and determine any appeal on a question of law or, if leave were granted, on other grounds.
Such an approach is consistent with the position articulated by Sir Frederick Jordan in Carlson v King, taking into account in an appropriate manner the nature of uncontested residential tenancy proceedings, the requirements of ss 36 and 38 of the Act and the matters raised by Basten JA in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] and [48].
The views expressed in the previous paragraphs should not be taken as precluding or discouraging the giving of oral reasons in uncontested tenancy matters at the time orders are made. This is the preferable course if time and circumstances permit. Moreover, if a request for a written statement of reasons for a decision is made under s 62(2) of the Act, it goes without saying that the Member is required to provide such a statement complying with s 62(3) within the 28 day period specified by the statute.
From this passage, it can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred.
A similar understanding of a miscarriage of justice is evident in cases which relate to an application for a new trial based upon fresh evidence becoming available. In Gallagher v R (1986) 160 CLR 392, Gibbs CJ considered what degree of likelihood was required that a different, more favourable result would have been achieved in order for there to have been a miscarriage of justice. The Chief Justice rejected the approach that the "bare possibility" of such a result was sufficient as well as finding that it was too severe to require that a different result was "likely" or "would probably" have been achieved. Gibbs CJ, at 399, agreed with the view expressed by Mason and Deane JJ in that case (at 402):
the ultimate question for decision by an appellate court when considering an application for a new trial on the ground of fresh evidence in the relevant sense, is, as the remarks of Rich and Dixon JJ. in Craig indicate, whether there has been a miscarriage of justice at the trial. The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial.
(underlining added)
Notwithstanding his agreement with Mason and Deane JJ, Gibbs CJ went on to warn against too stringent a reliance upon particular words, in the following terms, at 399:
However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.
This indicates that there will be a substantial miscarriage of justice where the fresh evidence was such that there was a "significant possibility" that a different, more favourable result would have been achieved if the evidence had been before the Court. There does not appear to be any difference of consequence between a "significant possibility" and a "chance which was fairly open" (to use the expression adopted in Mraz) of achieving a more favourable result.
The conclusion and the reasoning in Gallagher are directly applicable to cl 12(1)(c) which relates to a substantial miscarriage of justice because significant new evidence has arisen, being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. There is no reason of principle why it would not be appropriate to adopt the same approach in relation to the other aspects of cl 12(1).
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.
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].
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.
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, 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] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55].
As to whether the decision was against the weight of the evidence for the purposes of cl 12(1)(b), the appellants raised in the Notice of Appeal the allegation that they did not attend the hearing and provide evidence to the Tribunal because they did not receive the notice of listing until late the evening before the hearing and "did not realise the proceedings were to take place the following morning". This does not go to whether the decision was against the weight of the evidence. Nonetheless, it does appear to raise a question of whether there was some denial of procedural fairness in the way in which the proceedings were conducted, especially if the appellants were denied a reasonable opportunity to be heard or otherwise have their submissions considered, in breach of s 38(5)(c) of the Act. This might mean that the decision was not fair and equitable within s 12(1)(a).
When the allegation is examined, however, it appears that the appellants do not deny receiving the written notice of the hearing before the hearing. The complaint is that they received it only the evening before and they did not realise that the hearing was to take place the next morning. Neither the Tribunal nor the respondents can be said to be responsible for the appellants' failure to realise when the hearing was to take place. The notice of hearing was explicit that the hearing will take place on 27 February 2014 at Hurstville and at the time stated in the notice. No explanation was offered by the appellants as to why they failed to realise this. Further, there was material from the respondents' agent indicating that the agent had kept the appellants informed by text message of developments in the proceedings, including a message sent on 20 February 2014, 7 days before the hearing date, as follows: "Please be advised that tribunal is scheduled for 27th February at 9.15 am. Please let me know if you will be attending and if you will be paying any rent before then. Notification should be in your mail today."
Taking these matters into account, the Appeal Panel was not satisfied that the decision was not fair and equitable. Further, in the absence of any material to indicate what the appellants could have put before the Tribunal on 27 February 2014 (or at any other time) which would have led to a more favourable result for them, the Appeal Panel was not satisfied that the appellants might have suffered a substantial miscarriage of justice because they did not attend the hearing.
Finally in relation to cl 12(1)(c), the appellants stated in their Notice of Appeal that the evidence that was now available that was not reasonably available at the time of hearing was "Evidence of contact via phone-phone call history." This apparently referred to the print out of a history of calls from one of the appellants' telephones to the respondents' agent's telephone number. This only showed that that there was 1 call on 7 February 2014 and 6 calls in January and some were only very short, less than a minute. There was no allegation that this material was not available at the date of the hearing. For this reason, the Panel was not satisfied that there was any fresh evidence that fell within c 12(1)(c). Furthermore, there was no material put forward by the appellants to establish any reason to conclude that the original orders were erroneous or inappropriate. It does not appear to the Appeal Panel that the evidence referred to by the appellants would have had any significant impact upon the outcome of the proceedings at first instance. The appellants did not establish that they were deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result. In relation to this evidence of "contact via phone", therefore, the Appeal Panel was not satisfied that the appellants might have suffered a substantial miscarriage of justice because this was new evidence that was not reasonably available at the time the proceedings under appeal were being dealt with.
In the light of the conclusion that the Appeal Panel was not satisfied that the appellants might have suffered a substantial miscarriage of justice on one of the 3 grounds specified in cl 12(1) of Schedule 4 to the Act, the Panel's discretion to grant leave to appeal was not enlivened. Accordingly, it was not necessary to consider whether leave should be granted.