Corcoran v Far

Judgment

1. THE COURT: This is an application for leave to appeal from orders made in the Common Law Division on 25 September 2019.
2. On 20 November 2018 the primary judge (McCallum J) heard a summons seeking leave to appeal from the Appeal Panel of the Civil and Administrative Tribunal. Pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) such appeals are confined to questions of law and require leave. The primary judge dismissed that summons and made no orders as to costs (Corcoran v Far [2019] NSWSC 1284).
3. On 23 October 2019 the applicant filed a notice of intention to appeal. On 31 December 2019 he filed a summons seeking leave to appeal.
4. The application arises out of a tenancy dispute between the applicant and the respondent in 2016.
5. The respondent was the tenant of a two level, three-bedroom unit. The applicant responded to an advertisement on Gumtree to occupy one of the bedrooms as a subtenant on terms of "4 weeks deposit and 2 weeks rent" at $290 per week. The applicant moved into one of the bedrooms on 24 March 2016. The applicant asserted that he was promised exclusive use of the bathroom which was on the same level as his bedroom. The respondent denied ever making such a promise as the bathroom was in a state of disrepair. The respondent contended that the shower was dangerous to use as it was not waterproof and water might come into contact with electrical wires. On 17 May 2016 the respondent purported to give the applicant two weeks' notice to quit as the applicant insisted on using the bathroom over the respondent's protestations (Judgment [4]-[6]).
6. On 25 May 2016 the respondent lodged an application with the Civil and Administrative Tribunal seeking a termination of the tenancy pursuant to s 90 of the Residential Tenancies Act 2010 (NSW). The Tribunal at a hearing on 30 May 2016 raised the issue of jurisdiction on its own motion as no written residential tenancy agreement was in place. After the conclusion of the hearing the respondent contended that the applicant agreed to move out and later recanted. The respondent changed the locks on the evening of 30 May 2016 citing safety concerns and that he had given the applicant two weeks' notice (Judgment [7]-[8]).
7. On 7 June 2016 the Tribunal dismissed the respondent's application for a termination order (Judgment [12]).
8. On 9 June 2016 the applicant lodged an application with the Tribunal seeking repayment of his bond ($1,160) and compensation under a variety of heads (Corcoran v Far [2017] NSWCATCD 40 at [12]). The Tribunal was satisfied that the changing of the locks on 30 May 2016 amounted to an eviction without valid notice as the purported notice given by the respondent on 17 May 2016 did not comply with s 85 of the Residential Tenancies Act. This was said to enliven a discretion to award damages for breach of quiet enjoyment pursuant to s 187(1)(d). The applicant claimed damages of $17,589 "or higher". However the Tribunal declined to exercise that discretion. Ultimately the claim was dismissed save for the Tribunal finding that the applicant was entitled to the return of his bond (Corcoran v Far [2017] NSWCATCD 40 at [89]).
9. An appeal to the Appeal Panel (Corcoran v Far [2018] NSWCATAP 13) by the applicant was allowed on the basis that the Tribunal failed to determine what loss was suffered by the applicant through the respondent's wrongful repudiation of the tenancy agreement. The Appeal Panel awarded the applicant damages in the sum of $615.
10. An appeal lay to the Supreme Court only on a question of law and only by leave (Civil and Administrative Tribunal Act, s 83). Before the primary judge the applicant alleged a raft of errors, many of which did not raise a question of law (Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]). The primary judge after a careful judgment in which her Honour considered the merits of the grounds of appeal raised by the applicant's written and oral submissions, refused leave to appeal.
11. Leave to appeal is required pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW) as there is no matter at issue amounting to or of the value of $100,000 nor does the claim relate to any property or civil right amounting to the requisite value. It was suggested by the applicant in his written submissions that as the appeal concerned a tenancy dispute in relation to a "three bedroom unit in central Sydney" (WB13) leave to appeal would not be required pursuant to s 101(2)(r)(ii). The value of the property is irrelevant to the question of leave as the relevant rights in question do not concern the entirety or even a part of that property (Horseshoe Pastoral Co Pty Ltd v Rixon [2018] NSWCA 121 at [3]).
12. It is generally only appropriate to grant leave to appeal in cases that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable. These principles are well established: Carolan v AMF Bowling Pty Limited [1995] NSWCA 69; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Collier v Lancer (No. 2) [2013] NSWCA 186; Lukaszewicz v Polish Club Ltd [2020] NSWCA 99. They were applied by the primary judge in refusing leave (Judgment [24]).
13. The proposed appeal would raise no issue of principle or question of public importance arises. Nor do any of the challenges to the primary judge's reasons rise even to the level of being merely arguable.
14. In his draft notice of appeal the applicant identifies three categories of alleged error. The first is whether the discretion of the primary judge miscarried in refusing leave to appeal by her Honour "misevaluating the merits of the case sought to be put". There can be no doubt that the primary judge understood and addressed the case put to her.
15. The second concerns the construction of the phrase "intent to cause injury or death" in s 3B(1)(a) of the Civil Liability Act 2002 (NSW) as it relates to the applicant's claim before the Tribunal for compensation for non-economic loss for psychiatric injury.
16. The final challenge relates to whether the Tribunal's findings of fact were legally unreasonable or the Tribunal constructively failed to exercise its jurisdiction by relying on "untruthful testimony and written statements".
17. In his written submissions the applicant contends that the construction of s 3B(1)(a) advanced by the Appeal Panel was wrong, that there was no evidence to support certain key findings that led the Tribunal to reject his claim under s 3B(1)(a), and that the findings were legally unreasonable in the circumstances.
18. Before the Tribunal the applicant asserted that the Civil Liability Act did not apply to preclude his claim for non-economic loss as the actions by the respondent were done with intent to cause injury or death. He conceded he did not meet the statutory threshold in s 16 (15 per cent of the most extreme case) to obtain such relief otherwise. This argument was rejected by the Tribunal which found "... the evidence in this case does not support a finding that the respondent acted with deliberate intent, or even recklessly, to cause injury to the applicant" (at [82]). This was upheld by the primary judge as the way the argument was put before her Honour did not admit of a question of law, rather it was a challenge to the factual findings regarding intent (Judgment [77]).
19. The applicant submitted that s 3B(1)(a) did not apply because his claim for damages was not based on an allegation of negligence, but of assault. It is unnecessary to consider the accuracy of the submission (but cf. Dean v Phung [2012] NSWCA 223 at [10] per Basten JA; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [132] per Leeming JA Croucher v Cachia [2016] NSWCA 132 at [33] per Leeming JA). The Tribunal's findings (at [55]) negated the allegation of assault or the use of unnecessary or unreasonable force.
20. Contrary to the applicant's submission there was evidence to support the Tribunal's findings. As the applicant recognised in his own submissions (WB9) the factual questions required resolution of "a clash between two witness accounts" where independent material was scarce. After hearing from the applicant and the respondent the Tribunal preferred the account given by the respondent. Such a determination raised no question of law. The primary judge was clearly correct in holding that on an appeal on a question of law pursuant to s 83 of the Civil and Administrative Tribunal Act it would be impermissible to engage in a re-exercise of the fact finding process and the making of credit findings.
21. The applicant submitted that the evidence of the respondent could not be accepted, or there was some manifest unreasonableness in accepting his evidence due to alleged "false statements" and a "motive to lie" (WB10). As the primary judge said (at [49]-[50]): "[49] … Mr Corcoran submits that, on the strength of an analysis of Mr Far's credibility, it can be concluded that he has told a number of lies and accordingly that it would be appropriate for this Court to put his evidence to one side altogether. On that approach, so the submission went, there would remain no evidence to support the finding rejecting the four-month term. [50] The submission invites the Court to take a wrong approach. It is a transparent attack upon the merits of the Tribunal's findings of fact. No error is demonstrated in the Appeal Panel's approach to the ground challenging those findings."
22. The other proposed grounds of appeal do not provide a reason for thinking that the primary judge's conclusion is even arguably incorrect. The claim involved no question of principle, the compensation claimed was minor, and turned on disputed questions of fact. It did not deserve the careful attention paid to it by the primary judge, except that her Honour was inundated by materials that she had to consider. It does not deserve the further attention of this Court.
23. On 19 May 2020 the respondent requested a hearing on his entitlement to indemnity costs relating to the case before the primary judge. The respondent appeared for himself below. The registrar advised him of the need for the filing of a cross-summons if this point were to be agitated. No cross-summons has been filed, seeking leave to challenge the primary judge's decision to make no order as to costs. The use of court resources in relation to appeals as to costs alone must be scrutinised closely to determine whether such a use of resources is in the public interest (Huang v Attapallil & Ors [2017] NSWCA 181). There is no need to say anything further as no cross-summons has been filed.
24. For the forgoing reasons the summons seeking leave to appeal ought to be dismissed. Costs follow the event. The respondent foreshadowed seeking an order for indemnity costs of the application for leave to appeal. As he represented himself, did not file written submissions, and appeared by telephone, it is not apparent what practical difference there would be between an order for costs on the indemnity basis and an order on the ordinary basis. If such an application is to be made it should be by way of notice of motion filed within 14 days supported by an affidavit in accordance with the rules.
25. The order of the Court is: 1. The summons for leave to appeal is dismissed with costs. 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: 13 July 2020