This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) against an interlocutory direction made in the Consumer and Commercial Division of the Tribunal on 1 May 2020 (the Decision).
The parties to the appeal entered into a residential tenancy agreement on 1 August 2019 in respect of residential premises at Gymea Bay, NSW (the residential premises).
An application dated 9 April 2020 was filed with the Tribunal by Matautia Developments Pty Ltd (the respondent) against Mr Di Liristi (the appellant) for termination and possession pursuant to ss 87, 90 and 91 of the Residential Tenancies Act 2010 (NSW) (the RT Act). More specifically, the respondent alleged that the appellant has intentionally or recklessly caused or permitted to be caused serious damage to the residential premises by polluting the premises. Liverpool Council issued the respondent with a "Clean Up Notice" pursuant to Section 91 of the Protection of the Environment Operations Act 1997 which relates to an incident arising from the placement and spreading of fill material at the residential premises which the Council believes to be the introduction of potentially contaminated material.
The Tribunal issued a Notice of Hearing by telephone for 1 May 2020. At the first return date the matter was listed for 60 minutes. The matter was not finalised. The Member made standard directions for the future conduct of the hearing (the Directions). The Directions are set out in full as follows:
On 01 May 2020 the following orders were made:
1. By Determination of member, on 01 May 2020 the hearing was adjourned to a date to be fixed by the Registrar.
2. The respondent's name Antonio Di Listri is amended to Antonio Di Liristri (sic).
3. By consent, 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 08 May 2020.
4. By consent, 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 9 June 2020.
5. By consent, the applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents in reply (see note below), on which the applicant intends to rely at the hearing by 23 June 2020.
IMPORTANT NOTE
For the purpose of these directions 'document' means:
- Witness statements/statutory declarations or affidavits
- Expert reports
- Photographs
- Any other document to be relied upon
and all documents must be legible and in colour (if the original is in colour).
5. 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 folders 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. 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.
7. 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.
8. Leave is granted to both parties to be legally represented.
9. The parties' legal representatives shall advise the Divisional Registrar and other party in writing by no later than 5:00 PM on 09-Jun-2020 of the representative's name, office, address for service, telephone and facsimile number.
A separate written notice of the new hearing date will be sent to you in the near future.
C Steer, Tribunal Member
01/05/20
The appellant filed a notice of appeal on 19 May 2020 seeking to appeal Directions, 1, 4 and 8 set out above.
For the reasons set out below, we have decided to dismiss the appeal.
[2]
Application for Recusal
Before commencement of the hearing the appellant brought a preliminary application seeking an order that Senior Member Dubler SC recuse himself from the appeal panel as he occupies rooms on the same floor of chambers as Ms Avery-Williams, counsel for the respondent. It was submitted that as the two barristers occupy rooms in the same chambers, Senior Member Dubler SC could not bring an impartial mind to the proceedings. It was further submitted that the appellant is at a disadvantage as he is not a lawyer and as Senior Member Dubler SC and counsel for the respondent are both barristers they would likely agree with one another and it would be unlikely for the appellant to persuade Senior Member Dubler SC of the merits of the appeal. The application was brought that Senior Member Dubler SC recuse himself on the basis of apprehended bias.
We heard the application and after a short adjournment informed the appellant that the application was refused and that reasons for the refusal would be published with the written reasons for decision. These are those reasons.
The High Court of Australia has given guidance on how to determine whether apprehended bias is established in various decisions. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6] the Court said:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a tribunal be independent and impartial.
The Court went on, at [19] as follows:
Judges have a duty to exercise the judicial functions when the jurisdiction is regularly invoked and they are assigned to cases in accordance with practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose the judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then the objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
In R v The Commonwealth Conciliation and Arbitration Commission and Ors; ex parte the Angliss Group (1969) 122 CLR 546 the High Court considered an application for a writ of prohibition against the Commission on the grounds of apprehended bias and a breach of the principles of natural justice. The Court said, at pages 553-554:
[The] requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.
We are satisfied that the mere fact that Senior Member Dubler SC and counsel for the respondent are members of the same floor of barristers cannot give the fair-minded lay observer reasonable apprehension that Senior Member Dubler SC, and therefore the Appeal Panel, might not bring an impartial mind to the appeal.
We refused the application that Senior Member Dubler SC recuse himself.
[3]
Submissions and evidence
In deciding the appeal, we have had regard to the following:
The Notice of Appeal filed and served on 19 May 2020, attaching evidence, transcript and written submissions filed on 22 June 2020.
The Reply to Appeal filed and served on 01 June 2020 and the affidavit of Christopher Habra affirmed 1 June 2020.
The respondent's submissions filed on 19 June 2020 and the affidavit of Christopher Habra affirmed on 19 June 2020 attaching evidence and a partial transcript.
[4]
Notice of Appeal and Extension of time
The Notice of Appeal should have been lodged by 15 May 2020, in accordance with the 14 day time period specified in r 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules). The Notice of Appeal was lodged on 19 May 2020, 4 days out of time.
It was submitted by the appellant that the Tribunal sent the Directions of 1 May 2020 to the wrong email address and that the appellant did not receive the notice of order until 19 May 2020 and that therefore his appeal is filed within the time permitted by the Rules and an extension of time is not required. For the following reasons we reject this contention. Firstly, the directions notice was emailed to an address nominated by the appellant as per his correspondence to the Tribunal of 29 April 2020 in support of an adjournment application; second, the respondent received correspondence by email on 1 May 2020 immediately after the hearing, and the file indicates that at the same time an email was sent to the appellant's email address; third, no correspondence was sent to either party by the Registry on or about 19 May 2020.
We are satisfied that the appellant was present at the hearing on 1 May 2020 and that a notice of the Directions was sent to him at his nominated email address. The appeal was filed more than 14 days after the Directions, being the subject of this appeal, were published to the appellant.
We will therefore have to decide whether time should be extended pursuant to s41 of the NCAT Act. We may extend time in accordance with s 41 of the Act. Principles relevant to the exercise of that discretion are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. Some of the factors to consider in an application for extension of time include the length of the delay, the reason for the delay, the appellant's prospects of success and the extent of any prejudice to the respondent. The respondent objected to the late filing of the appeal, however, other than a short submission there was no evidence of prejudice before the Appeal Panel. As the delay is a mere four days, we extend time for the filing of the Notice of Appeal to 19 May 2020.
[5]
The Grounds of Appeal and the Appellant's submissions
[6]
Ground One
The first ground of appeal alleges that the Directions constitute a "Denial of Natural Justice" and a "Denial of Procedural Fairness" (see annexure A of the Notice of Appeal). The appellant's main contention is that the Tribunal fell into error when it granted both parties leave to be legally represented. As best we can, we have summarised the appellant's arguments by having regard to his oral and written submissions. Rather than paraphrasing, we have repeated parts of the appellant's submissions verbatim:
1. NCAT is designed for people to represent themselves at a hearing. This provides an affordable, accessible and efficient means of resolving disputes.
2. The general rule is that legal representation of parties is not permitted in NCAT except by leave. Section 45 (1) provides that a party has the carriage of the party's own case and is not entitled to be represented by any person unless the Tribunal grant leave.
3. At no stage throughout the hearing on 1 May 2020 did Member Steer encourage parties to represent themselves.
4. During the telephone hearing the Member contacted not only a solicitor, but also insisted contacting counsel for the applicant (respondent to this appeal); discussed the case with both the solicitor and counsel for the applicant; allowed evidence to be given by counsel for the applicant; asked counsel for the applicant what orders are sought; all without any prior application for legal representation by the applicant.
5. Leave for legal representation was not sought by either a party to the proceeding or by counsel before the directions hearing.
6. Because the applicant's director was not present at the hearing, counsel held no instructions to appear, or to apply for legal representation.
7. The presence of lawyers complicates a reasonably simple issue.
8. The mere fact that the same parties are engaged in a dispute in the Supreme Court does not give rise to complex questions of fact or law and legal representation should have been refused.
9. There is no substance in the submission that the respondent's exposure to possible penalties under the Environmental Protection Act gives rise to legal complexities.
10. The issues are not complicated by the current moratorium on termination of residential tenancy agreements and therefore legal representation is not warranted.
11. The appellant was denied procedural fairness when he objected to counsel being present at the hearing, but the member responded to him with the words "I'm not going to deal with that just now" and deferred the ruling in respect of legal representation to the end of the Directions hearing.
[7]
Ground Two
The appellant appeals against Directions (1) and (4). We understand this ground of appeal to be essentially the same for each Direction. The appellant submits that the crucial evidence he requires to defend the application cannot be collated by 26 June 2020, being the date he was directed to file and serve his evidence. The appellant sought an extension of time and the extension was granted on 11 June 2020. The appellant was directed to file and serve his evidence by 3 July 2020. The appellant was asked, in light of the extension of time, whether he wished to withdraw these grounds of appeal, he indicated he wished to press ahead. As best we can we summarise his ground of appeal as follow:
1. crucial evidence needs to be recovered from a hard drive and this task should be completed by 12 June 2020 (see submissions page 11 of 47).
2. The appellant has issued four "Application(s) for summons to be issued" seeking documents and evidence for the preparation of his defence.
In the absence of documentation retrieved from a hard drive, and the documents which may be produced under summons, the appellant submits he is not in a position to defend the proceedings.
[8]
Ground One
This is an appeal from an interlocutory decision of the Tribunal concerning the grant of leave pursuant to s 45 of the NCAT Act for the applicant to be represented by an Australian legal practitioner. Consequently, leave to appeal is required: s 82(2)(a) of the NCAT Act. In our opinion, the issue for determination in this appeal is whether the Tribunal erred, as contended by the appellant, in the exercise of its discretion to grant legal representation.
Although the appeal relates to proceedings in the Consumer and Commercial Division, cl 12 of Sch 4 does not apply to the determination of the grant of leave for legal representation. That clause only applies to appeals from decisions of the Division under s 82(2)(b), not being interlocutory or ancillary decisions.
The principles for the grant of leave to appeal an interlocutory decision were considered by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35] the Appeal Panel said:
As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following:
(1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39;
(2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ;
(3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564;
(4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative;
(5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323;
(6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6;
(7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec);
(8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9;
(9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave.
Leave to appeal is opposed by the respondent. In our view and for the reasons that follow, leave should not be granted.
[9]
Relevant principles regarding representation
Section 45 of the NCAT Act provides as follows:
45 REPRESENTATION OF PARTIES
(1) A party to proceedings in the Tribunal--
(a) has the carriage of the party's own case and is not entitled to be represented by any person, and
(b) may be represented by another person only if the Tribunal grants leave--
(i) for that person to represent the party, or
(ii) in the case of representation by an Australian legal practitioner--for a particular or any Australian legal practitioner to represent the party.
(2) However, a party to an internal appeal (or in an application for leave to make an internal appeal) may be represented by a person without requiring the leave of an Appeal Panel if the party was entitled to be represented by such a person without the leave of Tribunal in the proceedings in which the decision under appeal was made.
Note : A Division Schedule for a Division of the Tribunal may, in some cases, allow certain kinds of persons to represent parties in proceedings allocated to that Division without requiring the leave of the Tribunal.
(3) The Tribunal may at its discretion--
(a) grant or refuse leave under subsection (1)(b), and
(b) revoke any leave that it has granted.
…
The section does not define the circumstances when leave may be granted. Rather, there is a general discretion to grant or refuse leave and/or to revoke leave if it has been granted. Some assistance in determining what matters are relevant in deciding whether or not leave should be granted is to be found in Div 2 of the Rules.
A party seeking leave must demonstrate that there are circumstances which justify the grant of leave and the Tribunal must be satisfied that it is appropriate to do so. In connection with an application to be represented by an Australian legal practitioner the Tribunal is exercising a discretion about whether or not to grant leave.
In the exercise of her discretion we find the Tribunal considered the appropriate factors in weighing up whether a legal representation should be granted. The Tribunal considered the complexity of the issues raised for determination, including the related proceedings in the Supreme Court; the capacity of the respondent seeking leave to be represented to understand and effectively participate in the proceedings in a manner which allows the respondent a reasonable opportunity to be heard. In particular, the Member considered the submission that the respondent had retained lawyers in the related proceedings and that it would likely be cost effective to have lawyers traverse both sets of proceedings; and whether it is appropriate in all the circumstances to give leave to an Australian legal practitioner.
In the present case, we are satisfied the Member considered relevant factors and, in the exercise of her discretion, correctly came to a conclusion that was open to her on the facts of the case. We are satisfied that the proceedings before the Member were appropriate proceedings of sufficient complexity in which the parties should be given leave to be legally represented, in accordance with s45.
The appellant states that he was denied procedural fairness because the application for leave was not determined until the end of the Directions hearing. Denial of procedural fairness constitutes an error of law.
However, contrary to the appellant's submissions, both parties made submissions, and after hearing from the appellant at length (see TP page 24 L-31) the Member concluded and ruled in favour of legal representation. There is, in our view, no consequence whether the grant for leave was determined at the beginning or the end of the Directions hearing, given the appellant was afforded an opportunity to be heard on the issue. We are not of the view that an error of law has been established and find there is no merit in this ground of appeal.
[10]
Ground two
The appellant appeals against the timetable set for the exchange of evidence.
The following standard directions were made by the Member:
1. By Determination of Member on 1 May 2020 the hearing was adjourned to a dated to be fixed by the Registrar.
…
4. By consent, 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 9 June 2020.
The order for the exchange of documents was made by consent. The appellant is concerned that the timetable would not allow him sufficient time to obtain documents and restore lost information from his hard drive for a hearing set for 8 July 2020. As it transpires, application RT 20/16607 was withdrawn by consent of the parties on 16 July 2020 and there is little utility in determining this ground of appeal.
The order appealed against is a procedural direction made by consent of the parties. A consent order may be set aside if the agreement underlying it is void or voidable for reasons such as illegality, misrepresentation or non-disclosure of a material fact. The appellant has provided no reasonable argument why a consent order of the type made should be upset on appeal and we find no error established and dismiss this ground of appeal also.
[11]
CONCLUSION
For the above reasons, the Appeal must be dismissed.
[12]
ORDERS
The Orders of the Appeal Panel are as follows:
1. Time for filing the notice of appeal is extended to 19 May 2020.
2. Appeal dismissed.
[13]
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: 07 August 2020