These reasons relate to an application to set aside a decision of the Tribunal sitting as the Appeal Panel.
On 31 January 2019 appeal AP 19/00165 (Appeal) was dismissed pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act, 2013 as the Appeal was withdrawn. Upon dismissal of the Appeal, the Tribunal ordered that each party was to pay their own costs. The Tribunal also noted the appellant intended to lodge an application in the Administrative and Equal Opportunity Division Seeking Review of a Decision made under the Impounding Act, 1993 (NSW) (Impounding Act).
For the reasons that follow, the application to set aside should be dismissed.
[2]
History of the Appeal proceedings
The Appeal related to a decision made in Consumer and Commercial Division proceedings COM 18/40564 and COM 18/47802 under the Agricultural Tenancies Act, 1990 (NSW) (Original Proceedings) made 20 November 2018. In the Appeal, the applicants in the present set aside application (Mr and Mrs Coomber) were the appellants. The respondent to the set aside application, Ms Butler, was the respondent to the appeal.
The Original Proceedings concerned an agricultural tenancy agreement in which the applicants were the tenants and the respondent was the landlord of a farm where the applicants were carrying on a cattle grazing business. Application COM 18/40564 was an application by the respondent seeking various orders including an order for possession of the farm, the subject of the agricultural tenancy agreement, following termination for non-payment of rent. Application COM 18/47802 was an application by the applicants seeking orders to permit them to remain in possession of the farm.
In general terms, the decision in the Original Proceedings involved:
1. dismissal of the applicants' application which was "to enable [them] to conduct the business activities on [a farm] in accordance with the Working Farm Lease of 11 September 2015". The Original Proceedings were brought in circumstances where the respondent had, apparently, re-taken possession of the farm the subject of the agricultural tenancy agreement; and
2. an order for possession made in favour of the respondent in consequence of the applicants failing to pay rent as required by the agricultural tenancy agreement.
The Appeal was initially listed for call over and hearing of a stay application on 22 January 2019. This was in consequence of directions made 4 January 2019 which provided for the parties to file and serve evidence and submissions in support of the stay application which the applicants made as part of the Appeal. Inter-alia, the applicants sought a stay of the order for possession made 20 November 2018 in the Original Proceedings.
At the call over on 22 January 2019, directions were made for the hearing of the Appeal which was fixed for hearing on 18 March 2019. In relation to the application for stay, the following orders were made:
1. The respondent [Butler] is to give access to inspect and count the appellants' [Coomber] cattle on 30 January 2019.
2. Liberty to apply.
3. The stay is otherwise dismissed as it is not pursued.
Subsequently, by email dated 25 January 2019 sent at 2:23 pm, the applicants wrote to the Tribunal advising they wished to withdraw the appeal. That communication included various statements concerning the alleged conduct of the respondent and her lawyer and the reasons for withdrawal.
Later that day, the applicants sent a second email at 3:47 pm concerning the impounding of their cattle and asking for "any assistance that NCAT can provide", apparently seeking to exercise liberty to apply as provided in the orders made 22 January 2019. Then, at 4:22 pm on that day, the applicants sent a third email to the Tribunal concerning "impounding of some or all of [the applicants'] cattle" and sought to "immediately reinstate [the Appeal]".
Consequently, the Tribunal determined that the appeal should be listed for an urgent directions hearing on 31 January 2019. The following orders were made:
1. The appeal is listed for directions on 31 January 2019 at 2:00 pm to consider:
Whether the appeal should be dismissed because it is withdrawn;
What, if any other orders should be made.
2. On or before 5:00 pm on 30 January 2000 19th the parties are to file and exchange a list of the orders sought supported by Short submissions (not more than 5 pages) about why such orders should be made.
3. The orders previously made on 22 January 2019 remain in place.
4. Notice of the orders may be given by email.
5. Submissions in compliance with order 2 maybe filed by email.
It was in these circumstances that the Appeal was listed before the Tribunal on 31 January 2019 and the order for dismissal was made.
[3]
Application to set aside
The application to set aside is dated 19 March 2019 and was filed on that date.
The application to set aside was made under s 53(4) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act). The applicants say in the Addendum attached to the application to set aside that the application "is being made as the Hearing on [31 January 2019] and all matters leading up to it, were not handled, in the opinion of the Applicants, in accordance with procedural rules and earlier Directions/Orders given by the Tribunal and the Respondent was given considerable unfair advantage thereby".
The applicants also say:
1. they were "extremely stressed by the unrealistic time limits provided to them at the earlier Hearing on 22 January 2019".
2. There was no possibility they could meet the earlier directions because they were self-represented and unable to obtain any legal assistance;
3. the hearing of the Original Proceedings, to which the appeal related was too short and did not allow them "an appropriate and fair" hearing;
4. the applicants were required to attend the hearing on 31 January 2019 in person whereas the respondent was given leave to attend by telephone.
5. The applicants did not receive a copy of the respondent's submissions prior to the hearing on 31 January 2019. The applicants raised issues concerning the short time they had to consider the respondent's submission, the length of the material provided by the respondent and the manner in which the Member constituting the Appeal Panel on 31 January 2009 conducted that hearing.
6. Consequently, the applicant sought to "reopen the appeal in a fair and timely manner" or "make a fresh appeal for a complete retrial of the whole matter" (referring to the Original Proceedings).
Attached to the material provided in support of the application was a chronology outlining various litigation in the Tribunal and in various courts in which the applicants had been involved with the respondent concerning the agricultural tenancy and related matters.
Otherwise, the parties have filed and served written submissions and evidence in support of their respective positions.
[4]
History of set aside application and directions made
It is appropriate to set out a brief history of what has occurred in connection with the set aside application.
Upon receipt of the application to set aside, the following directions were made by the Appeal Panel on 5 April 2019:
1. A copy of the application to set aside the orders made 31 January 2019 in appeal AP 19/00165 is to be served on the respondent by the Registrar with a copy of these orders.
2. On or before 26/04/2019 the appellants are to file and serve any further evidence and submissions in support of the application, such evidence to include the sound recording of the hearing on 31 January 2019 and a typed copy of what was said.
3. On or before 6/05/2019 the respondent is to file and serve submissions in reply.
4. On or before 13/05/2019 (sic) is to file submissions in reply.
5. Submissions must include whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013 dispensing with a hearing.
Following further communication from the parties, including a delay the applicants had experience in obtaining the sound recording, on 20 May 2019 the following further directions were made:
1. The application to set aside the orders made 31 January 2019 (Application) is listed for directions on 30 May 2019 at 9:30 AM.
2. The applicants are to file and serve any further submissions and evidence in relation to the Application on or before 4:00 PM on 29 May 2019.
At the hearing on 30 May 2019 the Appeal Panel made further directions, including extending the time for the applicants to provide any further submissions in support of their application to set aside. The directions were as follows:
1. The time for the appellants to provide any further submissions in support of the application to set aside (Application) the order made 31 January 2019 in appeal AP 9/00165 is extended to 21 June 2019.
2. The respondent is to provide any submissions in reply by 28 June 2019.
3. The applicants are to provide any submissions in response by 5 July 2019.
4. By consent a hearing of the application is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013.
5. Time to provide submissions will not be further extended except in exceptional circumstances.
Reasons: Reasons given.
It was in these circumstances the application to set aside is to be determined on the papers.
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Consideration
As stated above, the application of to set aside was made under s 53(4) of the NCAT Act. Relevantly, subs 53(3) and (4) provide:
53 Amendments and irregularities
…
(3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise.
(4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.
Under s 53(4) of the NCAT Act, the Tribunal has power to set aside a decision for an "irregularity" which, by s 53(3) of the NCAT Act, includes a failure to comply with the NCAT Act or procedural rules. Section 38(2) of the NCAT Act includes a procedural obligation to observe "the rules of natural justice".
Section 53(4) may permit the Tribunal to set aside a decision if there has been a failure to comply with its obligations to afford natural justice which may constitute an irregularity: see Atkinson v Crowley [2011] NSWCA 194, per Basten JA at [13] where His Honour considered s 32(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) which was in the same terms as s 53 of the NCAT Act.
The substance of the applicants' claim is that they were denied an opportunity to be heard at the hearing on 31 January 2019 or that there was some other procedural irregularity concerning what happened on 31 January 2019.
Despite directions of the Appeal Panel, the applicants did not provide a transcript of the hearing on 31 January 2019. However, the sound recording was provided and the Tribunal has reviewed what was said, the hearing on 31 January 2019 lasting for in excess of an hour and a quarter.
It is clear from a review of the sound recording that the applicants were given every opportunity to make whatever application they wished, whether to continue with the appeal, renew an application to stay the orders made in the Original Proceedings pending hearing of the appeal, seek access to the impounded cattle then located at the Moree saleyards and/or have them returned to the farm, seek access to the farm to search for missing cattle on (said to have been stolen) or withdraw the proceedings. The applicants also raised the issue of making a separate application to the Tribunal in the Administrative and Equal Opportunity Division under the Impounding Act. Submissions were permitted by the Tribunal on all matters raised by the applicants.
In relation to these various application, the Tribunal indicated:
1. It would not grant a stay of the order for possession unless an undertaking as to damages was given (the farm being the subject of a contract for sale by the respondent and the purchaser being in early occupation pending settlement);
2. It would not make an interim order for return of the cattle to the farm, the cattle having been impounded and delivered to the Moree saleyards and, apparently, then under the control of the Moree Shire Council.
3. It would not make an order to permit a search of the farm for missing/stolen cattle, the matter apparently being pursued through the police and the respondent having said there no cattle belonging to the applicants remaining on the farm.
It is also clear the applicants' application in the Appeal for a compulsory mediation of the Appeal by the Tribunal was not going to be granted.
After lengthy discussions, the final position adopted by the applicants was that they asked for the appeal to be withdrawn and asked for the Appeal to be dismissed. They did so in circumstances where the Tribunal made clear that they were under no obligation to withdraw the appeal and that, if not withdrawn, the appeal would be heard on 18 March 2019 as previously directed.
It was in these circumstances that an order was made dismissing the appeal under s 55(1)(a) of the NCAT Act.
In my opinion, there is no basis to conclude that the applicants were denied natural justice. They were provided with an opportunity to be heard and made all the submissions they wished to make during the course of a lengthy directions hearing. Further, having listened to the sound recording, there is no basis to conclude the Member constituting the Appeal Panel on 31 January 2019 acted in any inappropriate way or was biased.
Ultimately, the appeal was dismissed because the applicants decided to withdraw their appeal and advised the Tribunal that was what they wanted to do. Consequently, the appeal was dismissed with each party to pay their own costs.
It follows there are no relevant circumstances justifying the Appeal Panel setting aside the order made on 31 January 2019 pursuant to s 53(4) of the NCAT Act and the application should be dismissed.
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Orders
The Appeal Panel makes the following order:
1. The application is dismissed.
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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.
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: 31 July 2019
Parties
Applicant/Plaintiff:
Coomber
Respondent/Defendant:
Butler
Legislation Cited (1)
Consumer, Trader and Tenancy Tribunal Act 2001(NSW)