HIS HONOUR: On 8 June of this year the Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCAT Tribunal) refused the plaintiff an extension of time in which to appeal a decision of the Tribunal at first instance and subsequently dismissed the plaintiff's appeal. The decision sought to be appealed to the Appeal Panel of the Tribunal was a decision of the Tribunal of 28 January 2022. On that date, the Tribunal made orders including an order terminating the residential tenancy agreement (the agreement) between the plaintiff who was the tenant and the defendant who was the landlord.
By summons filed in this Court dated 28 June 2022 the plaintiff seeks leave to appeal the decision of the Appeal Panel of 8 June and seeks, amongst other orders, that the decision of the Appeal Panel be set aside and the matter be remitted to the Appeal Panel, differently constituted, to be determined according to law.
On 27 July 2022, the parties forwarded to the Court consent orders which in essence agreed to the primary relief sought by the plaintiff in her summons. The parties were advised that despite their agreement and the filing of consent orders, it would be necessary for the matter to be heard given that what is sought is an order in the nature of certiorari quashing the decision of the Tribunal based on error of law, for which the making of consent orders in chambers was not appropriate. For the reasons given by Davies J in Ingham Enterprises Pty Ltd v Belokoski [2018] NSWSC 1233 it is necessary that this Court consider, for itself, the merits of the appeal: see also Bellman v Peters [2020] VSCA 143. While accepting the need to find error, the parties remain in agreement as to the orders that should be made. The plaintiff seeks and the defendant does not argue against the making of orders that would have the effect of setting aside the decision of the Appeal Panel and remitting the matter to the Appeal Panel, differently constituted, to be decided according to law. The parties have made clear before me this morning that that order is to be understood as requiring the Appeal Panel to reconsider the matter afresh. Certainly, in my view, that is the appropriate course in the event that the decision at first instance is in error.
Given the position of the parties this judgment can be relatively brief. It is, however, necessary to say something as to the background of the proceedings. The plaintiff is a social housing tenant residing at the property the subject of the agreement. She is a 34 year old single woman diagnosed with anxiety, depression and post-traumatic stress disorder. The property is managed by the defendant.
The plaintiff entered into the agreement with the defendant on 8 January 2020. On 6 October 2021, the plaintiff received a notice of termination of the agreement. The reason specified for that termination was that the defendant had received information that the plaintiff and at least three other unauthorised occupants had tested positive for COVID-19 and were not abiding by Public Health Orders in that they were coming and going from the property whilst required to self-isolate. The notice listed several clauses of the agreement that were said to have been consequently breached. The notice of termination listed the termination date as 20 October 2021.
Following this, the defendant on 11 November 2021 applied to the Tribunal for an order terminating the agreement. The matter was initially listed for conciliation and what is, I understand, called a Group Hearing on 2 December 2021. The plaintiff was not legally represented at this stage or throughout the proceedings at first instance before the Tribunal; that is prior to the Appeal Panel stage of the proceedings below. It should be noted in this context that leave is required for a person in the position of the plaintiff to be legally represented before the Tribunal and it might also be noted that as a public housing tenant it might be inferred that she lacked the means to obtain private representation.
The plaintiff did not attend the Tribunal on 2 December 2021. The defendant was aware of the particular circumstances relating to the plaintiff's non-attendance. That was that a close friend of the plaintiff had died by suicide in the plaintiff's residence on the preceding day, 1 December 2021. The defendant responsibly informed the Tribunal of this circumstance and the matter was adjourned to 28 January 2022 for final hearing. On 28 January 2022, the plaintiff again did not attend. This was, however, as a result of circumstances beyond her control. She was on that date taken into custody by police and was ultimately not released from that custody until 3 February 2022.
The Tribunal proceeded to final hearing in the plaintiff's absence after taking evidence and hearing submissions from an officer of the defendant. The Tribunal made orders including an order terminating the agreement.
After her release from custody on 9 February, the plaintiff applied to the Tribunal for the decision of 28 January 2022 to be set aside, as a result of her absence. On 25 February 2022 the set aside application was dismissed by the Tribunal. The plaintiff contacted Legal Aid on 16 March 2022 with a view to obtaining legal assistance. The plaintiff's solicitor in these proceedings on 24 March 2022 contacted the defendant seeking relevant documents in order to assist the plaintiff in her appeal against the decision of the Tribunal. I am told there was some delay in obtaining the relevant documents. Ultimately a notice of appeal seeking to appeal to the Appeal Panel from the Tribunal's decision at first instance was not filed until 7 April 2022.
The matter was ultimately listed for hearing before the Appeal Panel on 8 June 2022. In the interim, orders staying the termination of the agreement pending the outcome of the appeal were made. On 8 June 2022, the Appeal Panel heard the matter and in ex tempore reasons, given by the senior member which were agreed with by the other member of the Appeal Panel, refused to grant to the plaintiff an extension of time in which to appeal and the appeal was consequently dismissed.
On 28 June 2022, a summons was filed in this Court seeking leave to appeal against the decision of the Appeal Panel and a stay in relation to the plaintiff's eviction was obtained.
Having regard to the position of the parties, it is not necessary to consider all grounds of appeal. If error of law is established in relation to any one of the grounds put forward in the plaintiff's summons, that will be sufficient to justify the orders agreed to.
The plaintiff points out that in refusing the extension of time the Tribunal was engaged in the exercise of a discretion and error of law can be established in relation to that exercise on the basis set out in the High Court's decision of House v The King (1936) 55 CLR 499; [1936] HCA 40. The Appeal Panel, with respect, correctly took the view that the merits of the plaintiff's proposed appeal were relevant to the application for an extension of time. The Appeal Panel then addressed each of the grounds.
While my preliminary view is that there is substance in a number of the plaintiff's grounds of appeal to this Court and, in particular, with respect to the procedural fairness complaint, having regard to the position of the parties, I do not propose to say anything further about the various grounds with the exception of ground six of this appeal. In relation to ground six the defendant concedes that the ground is made out. Ground six of the appeal before this Court is that the Appeal Panel erred in failing to consider the plaintiff's argument that the breach was not sufficient to justify termination of the residential tenancy agreement.
One of the grounds before the Appeal Panel was that the decision of the Tribunal was not a fair and equitable decision and has resulted in a miscarriage of justice. The written submissions that were before the Appeal Panel on behalf of the plaintiff provided additional detail with respect to this argument. Reliance was placed on s 87 of the Residential Tenancies Act 2010 (NSW). It was submitted that in accordance with that provision, the Tribunal may only terminate a tenancy if "the breach is, in the circumstances of the case, sufficient to justify termination of the agreement".
It is accepted that while the plaintiff before the Appeal Panel did not address this aspect of the argument in oral submissions she maintained reliance on what had been put in the written submissions. The plaintiff was given to understand at the hearing that the Appeal Panel had read her written submissions and inferentially was given to understand that they would be taken into account. However, in giving reasons dismissing the appeal, the senior member dealt with this particular complaint in terms that reflected the wording of the ground in the notice of appeal but did not refer to or deal with the plaintiff's submissions with respect to s 87 of the Residential Tenancies Act. That is, the Appeal Panel did not address the question of whether the breaches of the lease were, in the circumstances of the case, sufficient to justify termination of the agreement.
That leads to a potential inference that the Appeal Panel failed to have regard to a relevant matter. At the very least, in my view, it reflects a failure to give adequate reasons, that is, reasons addressing the particular argument raised by the plaintiff. Either conclusion is sufficient to establish an error of law; either an error of law in failing to give reasons or an error of law in failing to have regard to a relevant consideration in the exercise of the discretion engaged in determining the application for an extension of time. That being the case, I am satisfied that a relevant error has been established and that it is, therefore, appropriate to make the orders agreed to by the parties.
I make the following orders:
1. The decision of the New South Wales Civil and Administrative Tribunal Appeal Panel made under Appeal Panel file number 2022/00100078 (NCAT Appeal Panel Proceeding) on 8 June 2022 is set aside.
2. The NCAT Appeal Panel Proceeding is remitted to the NCAT Appeal Panel, differently constituted, to be decided according to law.
3. The Order for possession of the residential premises at X/X XXXXXXXXXX XXXXXXXX, XXXXXXXXXX made by NCAT under NCAT file number SH21/46288 on 28 January 2022 is stayed pending the redetermination of the NCAT Appeal Panel Proceeding pursuant to Order 2 above.
4. Each party is to bear their own costs of this proceeding.
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Decision last updated: 09 August 2022
Parties
Applicant/Plaintiff:
Coster
Respondent/Defendant:
Compass Housing Services Co Ltd t/as Home in Place