Conway v Brady

The Appeal

1. The landlord's Notice of Appeal was filed with the Tribunal on 26 May 2017.
2. The Appeal Panel identified that the appellant is raising the following grounds of Appeal: 1. That the Tribunal failed to afford the appellant procedural fairness because it did not allow the appellant an adjournment and denied the appellant the opportunity to provide evidence at the hearing. 2. The decision was against the weight of evidence
3. This is an appeal pursuant to s80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The appeal was lodged in time, namely 14 days after the date of the decision. There is a right of appeal on a question of law and otherwise with leave. Leave may be granted to appeal from a decision of the Consumer and Commercial Division, in accordance with cl12 of Schedule 4 of the NCAT Act. The first ground raises an error of law. The appellant will need leave to appeal in relation to the second ground.
4. The appellant was represented by her husband, a solicitor, Mr Farshad Amirbeaggi. The appellant has never appeared in the Appeal proceedings or in the initial proceedings before the Tribunal. Mr Amirbeaggi did not disclose to the Appeal Panel at the outset that the appellant was his wife. It only became apparent when Mr Amirbeaggi was asked directly by the Appeal Panel part way through the Appeal hearing. The tenants appeared in person.

Procedural Fairness

1. The tenants' application had initially been listed for final hearing before the Tribunal at 2.15pm on 1 May 2017. At the request of the tenant, the Tribunal granted an adjournment of the hearing and the parties were advised on the morning of 1 May 2017 that the matter had been adjourned. Mr Amirbeaggi made submissions on behalf of the landlord that the adjournment had resulted in the landlord vacating her plans on the hearing.
2. The matter was then relisted for final hearing at 1.45pm on 25 May 2017. The notice of hearing is dated 11 May 2017. Mr Amirbeaggi made submissions that the date was allocated without any reference to the landlord or her legal representatives or witnesses. Mr Amirbeaiggi also made submissions that it would have been reasonable for the landlord to expect that the listing on 25 May 2017 was for allocation of dates for final hearing and not for final hearing of the matter.
3. Mr Amirbeaggi also submitted that on about 24 May 2017, the tenants served a folder of evidence at his office. The transcript and reasons for the decision reveal that the tenants stated, and the Tribunal found, that the documents had been hand delivered by the tenants to the appellant's legal representative on 19 May 2017. Mr Amirbeaggi conceded it may have been the earlier date. Mr Amirbeaggi submitted that regardless of when the documents were served, reliance on them by the tenants was prejudicial to the landlord because she was not given the opportunity to receive them, consider them, or respond to them. Mr Amirbeaggi submitted that the appellant resides 110 kilometres west of Sydney and that the late evidence served had not been provided to her or seen by her when the proceedings came before the Tribunal on 25 May 2017. He also submitted that due to usual office procedures his office had not had the opportunity to forward or discuss the documents with the landlord, his wife.
4. Mr Amirbeaggi submitted that there was no distinction in the notices about the type of hearing, that is, whether the matter was listed for directions or final hearing. He believed that ordinarily dates for final hearing are allocated with parties present so they may provide unavailable dates. He also submitted that a party to proceedings is entitled to know the reason for the listing and provide available dates for hearing for their legal representatives and witnesses. Further, that the late service of documentation by the tenants denied the landlord the opportunity to consider, take a position and respond to the documentation.
5. The landlord's legal representative, Mr Saleam, made a request for adjournment at the hearing of the tenants' application. Mr Amirbeaggi submitted that the Tribunal Member's decision to refuse the request for adjournment amounted to a denial of procedural fairness because the late service of evidence by the tenant and lack of disclosure that the matter was listed for final hearing were compelling reasons to adjourn the matter.

Consideration

1. In the case of John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel identified a series of grounds that might give rise to an error of law. One ground is where there has been a failure to afford procedural fairness (para [13]).
2. The Appeal Panel is not persuaded that the failure to adjourn the proceedings has amounted to a procedural unfairness. Section 38 of the NCAT Act refers to the procedures of the Tribunal. The Tribunal is bound by the rules of procedural fairness s 38(2). The Tribunal must "take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings" s 38(5)(c). Inadequate notice of the hearing and the refusal of a reasonable request for an adjournment may amount to a denial of procedural fairness depending on the circumstances: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611 [40]; [2002] HCA 11; Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; 297 ALR 225.
3. It became apparent at the Appeal hearing that the appellant had not filed the hearing notices and directions which had been issued to the parties by the Tribunal. Given the grounds of appeal raised by the appellant, the Appeal Panel formed the view that it was necessary to inform ourselves about the contents of the directions and notices which had been provided to the parties in the matter. With the agreement of the parties, the Appeal Panel obtained the directions and notices which were sent to the parties and provided copies to the parties at the Appeal hearing so they could make any necessary submissions.
4. It is helpful to recount the detail of the initial directions that were made in the matter on 15 March 2017: 1. By Determination of member, on 15 March 2017 the hearing was adjourned to a date to be fixed by the Registrar. 2. The respondent's name ADRIANA VERDINO, is amended to Vashti Conway. 3. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the respondent intends to rely at the hearing by 29-Mar-2017. 4. The applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 12-Apr-2017. IMPORTANT NOTE: For the purpose of these directions "document" means: - Witness statements / statutory declarations or affidavits - Expert reports - Photographs - Accounts or receipts - Quotations - Any other document to be relied upon And all documents must be legible and in colour (if the original is in colour). 5. The documents provided by each party must be placed in a folder, each page must be numbered to provide easy identification by all concerned at the hearing. Folders provided to the Tribunal and to the other party(ies) must be identical and in the same order. The folder(s) should be marked with the name of the party and include: - an index - a chronology of significant events - all documents required by these directions And all documents must be legible and in colour (if the original is in colour). 6. If a party requires an extension of time to comply with these directions, an application should be made in writing to the Registrar no later than the day prior to the date of submission of documents to the Tribunal. 7. A failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing, unless leave is granted to do so. 8. All evidence from a party's witness(es) in support of that party(ies) must be in the form of a statement, statutory declaration, affidavit or expert report as appropriate. 9. Leave is granted to the landlord to be legally represented at this hearing only. If the landlord seeks legal representation at the hearing of the Application an application must be made by 29 March 2017. A separate written notice of the new hearing date will be sent to you in the near future.
5. Pursuant to s 45 of the NCAT Act, a party has the carriage of their own case and is not entitled to be represented without leave of the Tribunal. The directions made by the Tribunal on 15 March 2017 were addressed to the landlord care of her legal representative. Direction 9 provided for an application for leave for legal representation.
6. In the reasons for decision the Tribunal referred to the landlord's failure to explain why that direction had not been complied with. Mr Amirbeaggi conceded that he was not aware of the landlord making any application to be legally represented by that date and his firm had not made such an application.
7. The directions of 15 March 2017 also provided for the exchange of documents. As is the ordinary procedure in bond disputes, the directions provided the opportunity for the landlord to provide her documents first so that the tenant could be on notice as to the reason why the landlord was seeking the bond and could reply accordingly.
8. The landlord's documents were due on 29 March 2017. The Tribunal's reasons for decision recognise that the landlord's documents were not provided by the landlord until 28 April 2017. That is almost a month after they were due. The Tribunal also noted that the landlord had not sought an extension of time. There appears before us no explanation as to why the landlord's documents were late or a request for an extension of time in accordance with the directions. The Tribunal noted in its reasons that the tenants "filed their material late" because the landlord "had filed her material a month late and had not sought an extension of time to do so." It is also noted that direction 6 of the direction made on 15 March 2017 required that a party who seeks an extension of time to comply make an application to the Registrar prior to the date for submission of documents to the Tribunal.
9. It should also be noted that the initial notice provided to the parties on 27 February 2017 is headed: Notice of Conciliation and Hearing (Group List)
10. The back of the notice contains information about conciliation and hearing, including that if the conciliation is unsuccessful the matter will proceed to hearing.
11. The notice sent to the parties on 11 May 2017 is headed: Notice of Hearing
12. The back of the notice also contains information about the hearing process and on the back of the notice in the opening paragraph it states: This matter has been listed for hearing for a specific time and length. At this hearing the issues in dispute will be determined and a decision made.
13. The Appeal Panel rejects Mr Amirbeaggi's submission that the notices were unclear about the type of hearing they would be attending or that the landlord had any grounds to believe that the matter listed on 25 May 2017 was listed for further directions to provide available dates for hearing for her legal representatives and witnesses. There is simply nothing to indicate on the hearing notice that this would be a further directions hearing to ascertain the availabilities of the parties or legal representatives. The landlord had not applied for legal representation in accordance with the Tribunal directions. In the absence of such an application, there was no basis for the landlord to assume that she would be granted leave for legal representation or that the Tribunal would consider the availability of her legal representatives. Further, a reading of the transcript of the hearing does not reveal such confusion. In his request for adjournment at the hearing before the Tribunal, Mr Saleam, the legal representative, did not indicate to the Member that the parties were under some mistaken belief that the matter was not listed for final hearing. The adjournment request was made on the grounds that the landlord lived in Wentworth Falls and she had received the tenant's documents late. There is nothing before the Appeal Panel to support the submission that the landlord herself had misunderstood that the matter had been listed for final hearing. The notices themselves are clear that the matter was listed for hearing.
14. The guiding principle of the NCAT Act and the procedural rules in their application to proceedings in the Tribunal is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36(1). The practice and procedure of the Tribunal should be implemented 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).
15. Section 38 (4) of the NCAT Act requires that: the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms
16. How a Tribunal achieves that may differ from case to case, but it is essential that the parties are on notice by the time the matter comes for final hearing of the nature of the proceedings. The Tribunal must turn its mind to whether the parties have been given the opportunity to provide all relevant material so as to enable it to determine all of the relevant facts in issue. Ideally that would have already been provided for in any previous directions hearings.
17. The Appeal Panel accepts that there was a short turn around (5-6 days, as the Tribunal Member had found) between the time when the landlord received the tenants' response and the final hearing. The documents were served by the tenants at the landlord's nominated address, which was care of her legal representative. They were documents in response to the landlord's claim on the bond and as was noted in the reasons for decision, the landlord had not, prior to the hearing, "sought leave to file evidence in reply."
18. The Appeal Panel notes Mr Amirbeaggi's explanation that due to the office procedures of the law firm, the tenants' documents had not been sent to his wife once they were received. However, there was no appropriate explanation as to why an application for adjournment was not made immediately by the firm itself when it clearly had carriage of the matter. It is also noted by the Tribunal in its reasons for decision that the landlord had sought an adjournment because she lived in Wentworth Falls, however the landlord has never explained why she did not seek leave to be represented or sought an adjournment prior to the hearing.
19. The principles in relation to adjournment have been helpfully set out in Armee v Brealey [2017] NSWCATAP 141 from para [121]. 121. The Tribunal has the power to adjourn proceedings under s 51 of the NCAY act. The power to adjourn is to be exercised according to the principles set out by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, French CJ, Kiefel, Bell, Gageler and Keane JJ at 321 [51] (see O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [21]). Procedural fairness may be denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequately presenting the person's case: see Grozdanov v N&T Buildings Pty Ltd [2015] NSWCATAP 107 at [51]; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [21]-[22]. …. The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances: Conroy v Conroy [1917] 17 SR (NSW) 680 at 682. Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular court and may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing. A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal (see, for example, Federal Court of Australia Act 1976 s 27) and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion.
20. There was no evidence before the Tribunal or Appeal Panel from the landlord herself explaining why she could not attend or any evidence supporting the submission that she could not travel from Wentworth Falls. There has been no explanation by her as to why she did not comply with the Tribunal directions to seek leave for legal representation or to provide her documents within the time required by the Tribunal. Further, there has been no explanation as to why she did not make an application for adjournment prior to the hearing. The tenants attended the hearing, ready and prepared to proceed with the case. The tenants had made the application for return of their bond and the tenants were entitled to a resolution of the matter. The Tribunal took into consideration the landlord's claim on the bond based on the documents she provided, which included her affidavit dated 27 April 2017 and allowed her legal representative to make submissions in that regard. The reasons for decision reveal that the affidavit was considered in the Tribunal coming to its decision. The affidavit, which was also before the Appeal Panel, detailed the reasons for making the claim on the bond and each area of the property that was affected by damage and required rectification, repair or cleaning. It included quotes and invoices for repair and rectification costs. Mr Saleam was granted leave to represent the landlord at the hearing and his submissions together with the landlord's supporting evidence were considered by the Senior Member. The landlord has not demonstrated to the Appeal Panel that a serious injustice has resulted from the exercise of the discretion not to adjourn the matter.
21. Accordingly the Appeal Panel finds that there is not error of law and the appeal against the dismissal of the adjournment application should not be allowed.

Against the Weight of Evidence

1. Where an appeal is against a decision of the Consumer and Commercial Division, cl 12 to Schedule 4 of the NCAT Act limits the circumstances in which an Appeal Panel may grant leave to appeal to cases where the appellant may have suffered a "substantial miscarriage of justice": 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).
2. Mr Amirbeaggi submitted that the Tribunal failed to adequately consider the landlord's claim and that the decision was against the weight of evidence. In her affidavit, the landlord referred to repair and cleaning costs of $4,034.22, and loss of rental of $6,000.00. That amount exceeded the bond amount. The Tribunal only considered the landlord's claim up to the amount of the bond. The tenants' application was for a claim for the rental bond. This was not an application by the landlord. The Tribunal did not err in this respect as it dealt with the application before it. The tenants' application was clear and the landlord was on notice of it.
3. Mr Amirbeaggi also submitted that the tenants' evidence was lacking and that the Tribunal should not have given weight to it. The tenants were at the hearing in person and had also provided a folder of documents with five pages of submissions, records and photographs.
4. It is clear from the transcript that the Tribunal Member asked questions of the legal representative in relation to the landlord's evidence. The reasons for decision reveal that the Senior Member dealt with each one of the landlord's claims on the bond and considered the evidence she had provided.
5. The contention that the decision was against the weight of evidence is further weakened by the lack of supporting evidence for the reasons given as to why the landlord herself did not attend the hearing.
6. The Appeal Panel having considered the transcript and reasons for decision is not satisfied that the central findings of fact or the ultimate decision made by the Tribunal were against the weight of documentary evidence before the Tribunal. It is a matter of speculation whether, if the landlord herself had been there, the same decision would have been reached. In all the circumstances the decision cannot be against the weight of evidence.
7. The Appeal Panel is not persuaded that the decision was against the weight of evidence and leave for the landlord to appeal the decision is refused.

Orders 1. Leave to appeal is refused. 2. Appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 23 February 2018