Croghan v Rees

Background

1. The tenant remained in occupation after the end of the twelve-month term. He continued to pay rent. Upon the appellant selling the Premises, the tenant vacated.
2. The appellant conceded in the hearing below that it was in breach of the agreement and some form of compensation should be awarded to the tenant.
3. The tenant filed his claim for compensation in the Commercial and Consumer Division of the Tribunal on 4 May 2021. He claimed an amount of $37,190. A list of the damaged items and their approximate replacement cost was included. Photographs of at least 95% the damaged items were also provided to the Tribunal. In reply, the appellant said he would pay for the dry-cleaning costs of the tenant's clothes and bedding which had been damaged by mould. The appellant also agreed to retain the services of 'The Mould Doctor' to clean, amongst other things, the tenant's furniture. The claim for cleaning by the Mould Doctor was rejected as no guarantee could be provided to ensure the mould would not return after a twelve-month period. The Tribunal made an order in favour of the tenant for the appellant to pay the sum of $15,000.
4. A separate claim by the tenant for compensation for non-economic loss being personal injury and economic loss was also raised, but later withdrawn.
5. Neither party requested written reasons for the decision under review. A copy of the sound recording was filed as part of the appellant's evidence.

Scope and nature of internal appeals

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), s 80(2).
2. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong."
3. Where the appeal is from a decision made in the Consumer and Commercial Division (other than in respect of interlocutory decisions), there is a further qualification to the possible grant of leave in that we may only go on to consider a grant of leave in the broader sense if we are first satisfied that the elements of cl 12(1) of Sch 4 of the NCAT Act are made out, in that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. We agree with the Appeal Panel in Collins where it said, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: ... [T]here 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."
5. We may decide to conduct a new hearing if we are satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17].

The Grounds of Appeal

1. The Notice of Appeal raised six grounds, as follows: 1. The Tribunal failed to swear in witnesses/parties at the commencement of the hearing. (This ground was withdrawn during the appeal). 2. The Tribunal mentioned that the appellant's supporting evidence was not reviewed, and this should have been heavily relied upon as crucial evidence in the consideration of the compensation claim. This documentation included a detailed timeline of the events in support of the appellant. (This ground of appeal was refined to be included in grounds 3 and 6). 3. There was a lack of fair evidence to substantiate the goods being claimed by the applicant. 4. There was a lack of consideration for depreciation of goods claimed. 5. No evidence was supplied by the tenant to support mitigation of loss. (This ground was withdrawn during the hearing of the appeal). 6. The decision and orders did not correspond with the weight of the evidence provided by the respondent.
2. As the appellant is unrepresented, a broad interpretation of the grounds of appeal should be allowed unless it unreasonably prejudices the respondent: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, there is a proper limit to this process, in that it is not the role of the Appeal Panel to draft grounds of appeal for the appellant(s) not raised, and then resolve them (ZNX v ZNY [2020] NSWCATAP 41, citing SZTOG v Minister for Immigration and Border Protection [2018] FCA 112), unless the issues go to the jurisdiction of the Tribunal or are otherwise necessarily considered to resolve the appeal.
3. The requirement to assist an unrepresented litigant is not unfettered. In Bauskis v Liew [2013] NSWCA 297 at [67]- [70] the Court of Appeal said in setting out principles apposite to the Tribunal in matters where neither party is legally represented, as follows (citations omitted): "First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties.... Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just... Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant... Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant..."
4. Grounds 1 and 5 in paragraph [15] above were not pressed. It is sufficient, in our view, to note that a thorough review of the Notice of Appeal and the material filed by the appellant with it take the allegation(s) of error by the Tribunal no further than the grounds as drafted in paragraph [19] below.
5. After identifying the real issues in dispute and with the assistance of the Appeal Panel, Ms Denning agreed that the appellant's true grounds of appeal were as follows: 1. The Tribunal's decision in calculating damages was against the weight of evidence; and 2. The Tribunal when calculating damages failed to adequately consider and apply depreciation.
6. Whilst we may decide to conduct a new hearing, the parties did not ask us to do so and we were not satisfied that the grounds of appeal warranted it.
7. There is no requirement for us to consider any time limitation as the appeal was commenced within time.
8. Before coming to the issues raised in the appeal it is appropriate to make reference to sections of the Civil and Administrative Tribunal Act (the NCAT Act) which we regard as particularly relevant: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this 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. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the 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. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note. Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) 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. (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
9. We asked Ms Denning whether the appellant had requested written reasons for the decision under s 62(2) of the NCAT Act. Ms Denning confirmed no written reasons had been requested.
10. A copy of the sound recording was filed in the appeal by the appellant. Despite the orders made in this appeal on 20 August 2021, neither a transcript of the sound recording, nor typed parts of the sound recording were provided by either party in the appeal.
11. The appellant did not file any of the evidence of the tenant in the hearing below. Any submission in the appeal that the Tribunal erred in the weight it gave to particular evidence must fail in circumstances where not all of the evidence was before us to consider.

The Grounds of Appeal - our consideration

1. There is no dispute the appellant was in breach of the agreement. Therefore, the grounds of appeal relate only to damages.

First ground

1. The first ground raised in the appeal is an allegation that the Tribunal's finding as to damages for compensation was against the weight of evidence.
2. In Collins, the Appeal Panel at [77] stated the following: "As to the particular grounds in clause 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: …. (2) the decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe the ground upon which a jury verdict can be set aside) when 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 Ltd v Stein Heurte SA [2013] NSWSC 266 at [153]."
3. The task of the Senior Member in determining the proceedings before her was to evaluate the evidence given and produced by the parties. Where that evidence was inconsistent, she had to decide what of that evidence was safe and appropriate to rely upon. In essence, the dispute between the parties revolved around whether the tenant had sufficiently evidenced his loss. To carry out her task, the Senior Member analysed the evidence and determined that she preferred the documentation advanced on behalf of the tenant. We detect no error in this approach.
4. The Member had before her a list of the items that the tenant claimed was damaged because of mould. The appellant does not dispute the tenant's goods were so affected by mould.
5. The sound recording reveals the appellant was invited by the Member to make submissions about the tenant's claim. The appellant opposed the tenant's claim for damage to his clothes ($5,000) and bedding ($2,000) on the basis that those items could all be dry cleaned and replacement was not necessary. The Member rejected that argument, noting, even if the amount of $7,000 is deducted from the claim, approximately $30,000 remains. When factoring in depreciation, estimated to be at 50%, the Member quantified the tenant's loss at $15,000.
6. The Member asked the tenant how he quantified the approximate replacement value of the items contained in his list. He said he had searched the internet for replacement values, or, like for like replacements. The tenant tendered, he says, photographs for 95% of the damaged goods. In the hearing below, the appellant did not object to, or make submissions contrary to the proposed order of $15,000 for the goods when asked by the Member for submissions to be made. In the appeal Ms Denning said: "I thought the Member had already made up her mind. There was no use". There is nothing in the material before the Appeal Panel which suggests any pre-judgment by the Member.
7. We asked Ms Denning to demonstrate the Member's error in establishing that the decision was "against the weight of evidence". The appellant contends that one photograph showing the items the tenant discarded was before the Member but it had not been served on the appellant and should not have been allowed by the Member. Ms Denning agreed that no application was made for an adjournment during the hearing when it was revealed the appellant had not seen the photograph. The photograph itself was not before us. Given no written reasons for the decision were requested, it is difficult to see what weight was given by the Member in determining damages with regard to this photograph (putting aside any procedural fairness issue which was not raised by the appellant in the hearing below). In the context of a finding 'against the weight of evidence', we find no error is established about the use of this photograph.
8. As indicated above, we do not have the benefit of either written reasons for the decision or a transcript of the hearing under review. We also do not have an entire copy of all the evidence filed by the tenant in the hearing. The only evidence we have before us in determining the appeal, is, the appellant's material filed in the Tribunal and a copy of the sound recording.
9. In the absence of written reasons for the decision and a complete copy of the tenant's material filed in the Tribunal, including photographs and other material, we find the appellant has not demonstrated the Member was in error.
10. After listening to the sound recording, it was reasonable in our view for the Member to have accepted the tenant's claim based upon the material before her. The appellant has not established that the Tribunal erred at all, in finding in favour of the tenant.
11. It is evident from the sound recording there was evidence before the Tribunal about the tenant's damaged goods. The appellant did not dispute the adjusted calculation of damages when invited to do so by the Member, apart from the matters in paragraph [31]. The Tribunal relied upon the tenant's evidence to reach the conclusion and the finding that it did. In coming to its determination, the Tribunal was following its own procedure (s. 38 NCAT Act), it was entitled to do so and was not in error. The ground of appeal fails.

Second ground

1. The second ground of appeal might be interpreted in a number of ways.
2. First, there was no consideration given to depreciation, that is, the tribunal did not give consideration to depreciation at all. While this interpretation is open on the Notice of Appeal, we did not understand Ms Denning to be putting it that way. However, if we are not correct the following is apposite.
3. A material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]- [25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); DVE18 v Minister for Home Affairs [2020] FCAFC 83; (2020) 276 FCR 401 at [34]. Further, as was noted in Goncalves v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves [2020] NSWCATAP 9 at [28]: A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, by s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
4. If the Tribunal failed to consider depreciation, that would be an error of law. However, it is clear from the sound recording and Ms Denning's submissions that the Tribunal did consider depreciation. There is no error of law in this regard.
5. Second, the ground of appeal may be interpreted as there was no evidence to support the finding of depreciation, which if proved would also be an error of law. Without written reasons for the decision, it is impossible for us to identify any error. However, what we can discern from the sound recording is that the Member took into consideration depreciation and applied a 50% discount. We find no error in this approach that would reveal the decision was "manifestly unreasonable" or so unreasonable that no reasonable decision-maker would make it.
6. Third, the ground of appeal may be interpreted as a contention that a finding made by the Tribunal that 50% depreciation was appropriate was against the weight of evidence. This is a ground which if proved requires leave to appeal.
7. As noted above, for a decision of the Tribunal to be against the weight of evidence the evidence in its totality must preponderate so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: see Collins at [77].
8. To make an assessment whether a conclusion reached by the Tribunal is one that a reasonable Tribunal member could not reach because the evidence in its totality preponderates so strongly against that conclusion, it is necessary to consider the totality of the evidence that was before the Tribunal. However, the Appeal Panel does not have before it the totality of the evidence that was before the Tribunal and in particular does not have in full the documents provided by the tenant to the Tribunal.
9. The appellant contends that there was no evidence before the Member as to the age of the goods claimed by the Tenant. In effect, the appellant says the Member arbitrarily applied a 50% discount without evidence to support that finding. Without the ability to examine the evidence which was before the Tribunal, we are unable to find that the Member erred in deciding that a 50% discount for depreciation was against the weight of evidence.
10. For the above reasons the Appeal Panel is not satisfied that the appellant may have suffered a substantial miscarriage of justice because the Decision was against the weight of evidence. It follows that the discretion to grant leave to appeal has not been enlivened.

No viable grounds

1. In short, there are no properly arguable grounds to find that the Tribunal erred on any question of law. On that basis, the appellant requires leave to appeal.
2. In respect of the first ground, we find the appellant has not demonstrated that the decision of the Tribunal under appeal was not fair and equitable; or was against the weight of evidence. The appellant cannot demonstrate a substantial miscarriage of justice as required by cl 12(1) of Sch 4 of the NCAT Act to obtain leave.
3. In respect of the second ground, there is similarly no error of law nor any proper basis for a grant of leave. No error has been identified.
4. It follows that leave must be refused and the appeal dismissed.

Costs of the appeal

1. No application was made for costs of the appeal.

Orders

1. Our Orders are as follows: 1. Leave to appeal is refused; 2. The appeal is dismissed.

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: 26 October 2021