Dokas v Gallagher

JUDGMENT

1. THE COURT: On 26 July 2024, the applicants filed a summons seeking leave to appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The effect of that provision is that a party to an Appeal Panel decision may appeal to the Supreme Court on a question of law, but only with leave granted by the Court. The summons relates to a decision dated 28 June 2024 by an Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT) (see Dokas v Gallagher [2024] NSWCATAP 129) ("AP Decision"). In brief, the Appeal Panel dismissed the applicants' appeal against an earlier NCAT decision dated 27 March 2024 by General Member Hung.
2. In addition to seeking leave to appeal under s 83(1) of the CAT Act, the summons seeks relief in the form of certiorari for error of law on the face of the record "of proceedings in the NCAT" (see also the draft notice of appeal dated 26 July 2024 where it is stated that the applicants seek an order under s 69(1)(3) [sic] of the Supreme Court Act 1970 (NSW) (SC Act)).
3. The proceedings relate to a dispute arising under a residential tenancy agreement dated 22 July 2022, pursuant to which the applicants leased a property from the respondent. On 4 January 2024, the landlord (who is the respondent) issued a notice of termination for non-payment of rent. On 18 January 2024, the landlord commenced proceedings in NCAT seeking orders for termination and possession based on rent arrears. On 19 February 2024, the applicants commenced separate proceedings in NCAT seeking orders under s 187 of the Residential Tenancies Act 2010 (NSW) (RT Act). That application was subsequently withdrawn, as is recorded in an order dated 27 March 2024 by NCAT. Significantly, the order is expressly stated to have been by consent.
4. As mentioned, the applicants commenced the present proceedings in the Court of Appeal. They ought not to have done so because none of the provisions in s 48 of the SC Act which assign matters to this Court apply. The proceedings ought to have been commenced in the Common Law Division of the Supreme Court. But s 51(2)(a) and (d) of the SC Act have the effect that, despite this irregularity, the proceedings are to be regarded as having been "well commenced" and may be continued and disposed of in this Court (see Gorczynski v W & FT Osmo Pty Ltd [2019] NSWCA 80 at [10]-[12]).
5. It is appropriate to mention another procedural irregularity. The landlord's written submissions refer to Gregory Quilkey as being the second respondent in the proceedings. Mr Quilkey is the real estate agent who acted for the landlord in his dealings with the applicants. Mr Quilkey is not a party in the present proceedings, nor was he a party before either NCAT or the Appeal Panel.

The evidence and some background matters

1. The summons is supported by a lengthy affidavit filed on 26 July 2024 by the first applicant, Tobias Dokas. The applicants also rely on written submissions dated 18 September 2024 and served on that day. The submissions total 44 pages plus a lengthy annexure. We have taken into account the affidavit and the applicants' oral and written submissions.
2. The landlord relied upon an outline of written submissions filed on 12 September 2024 and his affidavit filed on 23 August 2024. The affidavit contains a summary of the history of the proceedings and describes some events post the AP Decision. They include that the applicants no longer reside at the premises as they were evicted on 13 August 2024, some of their belongings remain to be collected from the premises, rental arrears have not been paid in accordance with the Appeal Panel's orders and major demolition works are scheduled to commence soon, including the removal of the kitchen and bathroom. These matters may be relevant to the utility of the present proceedings.
3. The landlord's application in NCAT, as outlined at [3] above, was heard and determined by General Member Hung. He made various orders on 27 March 2024, including an order under s 87 of the RT Act terminating the residential tenancy agreement immediately on the basis that the applicants had breached the agreement by failing to pay rent or charges. An order was made under s 114(2) of the RT Act, which suspended the order for possession until 24 April 2024. Orders were also made relating to occupation fees, including an order that the tenants pay the landlord the sum of $2,399.79 immediately.
4. As noted above, the applicants appealed to the Appeal Panel. We shall now summarise the Appeal Panel's reasons for dismissing the appeal.

The AP Decision summarised

1. Under s 80(2)(b) of the CAT Act, the appeal to the Appeal Panel was as of right in relation to a decision on a question of law, but leave to appeal was otherwise required. Furthermore, leave could only be granted from a decision of the Consumer and Commercial Division of NCAT if the applicants established to the Appeal Panel's satisfaction that they may have suffered a substantial miscarriage of justice because the NCAT decision was not fair and equitable or was against the weight of evidence, or there was significant new evidence that was not reasonably available at the time of the original hearing (Sch 4, cl 12(1) of the CAT Act).
2. It is well to highlight some relevant features of the applicants' notice of appeal to the Appeal Panel. Part 5B of that document specified the following grounds of appeal: ERRORS OF LAW: In summary, the member made an error of law: 1) By misapplying the law to the facts that the Member found by persuading us to withdraw our application; 2) By relying on a written submission of allegations made by the managing agent in relation to the rent increase despite the evidence having no probative value; 3) By failing to provide procedural fairness; 4) By interpreting the Acts (referred to in our cross-application) incorrectly, and by failing to take into account the factors stipulated by the statute; 5) By failing to take into account relevant (i.e., mandatory) considerations; 6) By identifying the wrong issue and asking the wrong question; 7) By taking into account an irrelevant consideration; 8) Because a wrong principle of law had been applied; 9) Because there was a failure to afford procedural fairness; 10) By failing to provide proper reasons justifying his orders; 11) By failing to give an adequate explanation of its reasoning process; 12) Because the power in Section 44(4)(5) was not engaged (and because there was no evidence to support a finding that the rent was reasonable / excessive); 13) Because the decision was so unreasonable that no reasonable decision-maker would make it; 14) By ignoring the fact that the Australian Consumer Law (the ACL) which is legislated in Schedule 2 of the Competition and Consumer Act 2010 (Cth), along with the National Construction Code (NCC) 2022, Civil Liability Act 2002 (NSW), Corporations Act 2001 (NSW), and the Crimes Act 1900 (NSW) applied in assessing whether or not the rent increase / rent payable were excessive.
3. Part 5C of the document identified the orders sought from the Appeal Panel. They included an order that the Appeal Panel transfer the proceedings to the Local Court because NCAT's jurisdictional limit of $15,000 was exceeded (noting that the applicants sought to be compensated for the rent they had paid on the basis that the premises were uninhabitable).
4. In the notice of appeal to the Appeal Panel, the applicants also stated that they sought leave to appeal (this necessarily related to matters other than a question of law in respect of which there was a right to appeal without having to obtain leave). In Part 6B of the notice of appeal, the applicants explained at some length why they considered that: 1. General Member Hung's decision was not fair and equitable; 2. the decision was against the weight of evidence; and 3. "significant new evidence" was now available that was not reasonably available at the time of the hearing.
5. The Appeal Panel summarised the applicants' contentions in support of their application for leave to appeal. It noted at [19] that, in support of their contention that the NCAT decision was not fair and equitable, the applicants claimed, among other things, that their "counterclaims" had been dismissed by the General Member "as a tactic to abdicate himself of his duty [and that] we were stripped of our legal avenues to establish a defence to the landlord's application".
6. At [20], the Appeal Panel noted that, in support of their claim that the General Member's decision was against the weight of evidence, the applicants referred to various evidence, including copies of photographs showing what the applicants described as "the dilapidated state of the residential premises".
7. As to the new evidence, the Appeal Panel noted at [21] that the applicants relied on an updated building report prepared by Mr Elie Farah of Effective Building and Consultancy. The Appeal Panel explained at [22] that it would not accept this new evidence as it was evidence that was reasonably available at the original hearing.
8. At [30], the Appeal Panel identified five issues which the parties had agreed were the real issues in the dispute, namely: (1) The notice of termination dated 4 January 2024 which formed the basis of the landlord's application, was retaliatory within the meaning of s 115 of the RT Act and the proceedings should have been dismissed; … (2) The notice increasing the rent, being the notice given on 2 June 2023, was invalid; … (3) The rent was excessive because of the state of the premises and the rent should have been reduced. In this regard s 44 of the RT Act permitted the Tribunal to reduce rent and the Tribunal should have made such an order; (4) The property was uninhabitable; and (5) The landlord had no entitlement to increase the rent because, on 31 July 2022, the parties had entered a residential tenancy agreement for 24 months and rent could not be increased during this period.
9. In the proceedings before us, the applicants did not dispute that these were the five primary issues which were agreed by the parties in the Appeal Panel proceedings. The agreed issues significantly narrowed the matters in dispute when compared with the notice of appeal set out at [11] above.
10. The appeal to the Appeal Panel was lodged by the applicants out of time. In considering whether or not to extend time the Appeal Panel addressed each of the agreed issues (albeit in a different order to those stated at [17] above).
11. As to the first issue, which was whether the rent increase notice given on 2 June 2023 was invalid, the Appeal Panel gave detailed reasons at [68] to [79] as to why the notice was not invalid. The Appeal Panel found at [75] that the requirement to give notice under s 41 of the RT Act was satisfied by the correspondence dated 2 June 2023. That correspondence specified the amount of the increased rent and the day from which it was payable. Further, at least 60 days were given before the increased rent became payable and an offer to renew the lease for a further 26 weeks was provided. The Appeal Panel also concluded at [79] that NCAT was correct in finding as also valid a subsequent notice dated 14 September 2023, in which the landlord advised the applicants that the price increase was reduced by $10 per week, as this was permitted under s 41(6) of the RT Act.
12. The second issue related to NCAT's decision concerning whether the rent was excessive and should have been reduced because of the state of the premises. Under s 44(1)(a) of the RT Act, NCAT may order that a rent increase is excessive and cap the amount of rent payable. Under s 44(1)(b), NCAT is empowered to order that the rent payable is excessive having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the premises, and impose a cap on the rent payable.
13. NCAT found that the applicants could not rely upon s 44(1)(a) of the RT Act because their application was well out of time and NCAT declined in its discretion to extend time. The Appeal Panel concluded at [85] that there was no basis to interfere with that decision.
14. As to the applicants' complaint that NCAT failed to deal with their application under s 44(1)(b) of the RT Act, the Appeal Panel stated at [89] that NCAT's decision appeared to be limited to s 44(1)(a). It added that, if this was the case, this would amount to a failure to exercise jurisdiction concerning the applicants' reliance on s 44(1)(b). The Appeal Panel further added at [95] that whether there has been a failure to exercise jurisdiction may raise a question of law, referring to this Court's decision in Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [6]-[7] per Basten JA and at [308] per Macfarlan JA.
15. The Appeal Panel explained, however, that in the absence of the full transcript of the NCAT hearing, it was unclear whether NCAT had been asked to determine any rent reduction claim under s 44(1)(b) of the RT Act, noting that the applicants had withdrawn their application (see at [3] above).
16. In any event, the Appeal Panel stated at [100] that it was not satisfied that the evidence established an entitlement to any rent reduction because of a reduction or withdrawal of facilities etc. The reasoning in support of that conclusion is at [101] to [118], which may be summarised as follows:

• as to the applicants' reliance on non-compliance with the National Construction Code 2022, no evidence had been provided to NCAT at first instance which established the applicants' claim and the Appeal Panel rejected the proposed new evidence;
• there was insufficient evidence to establish that the premises were dilapidated or uninhabitable when the rent was increased in 2023 and, indeed, it was evident from an email dated 5 June 2023 sent by the first applicant to the landlord's agent that at that time the applicants considered the premises to be suitable;
• while it appeared that there was an increasing list of issues raised by the applicants concerning the state of the premises after that email was sent, photographic evidence taken around 30 August 2023 did not show the property to be dilapidated or uninhabitable, even though its use was reduced;
• invoices in relation to works done throughout the tenancy supported a conclusion that repairs were carried out by the landlord when notified by the applicants;
• photographic evidence provided by the applicants showed flooding and decking requiring repairs and maintenance, but this was in circumstances where the flooding was caused by a blocked drain and the decking was being repaired and replaced as necessary; and
• there was no report or opinion from a qualified person or otherwise to show a state of dilapidation or uninhabitability.

1. As to the third issue, as to whether the premises were uninhabitable, the Appeal Panel repeated its reasons (as summarised immediately above) for not accepting the applicants' contention that the premises were uninhabitable.
2. As to the fourth issue, which was whether the rent increase was invalid because the parties had entered into an agreement for a 24 month term, the Appeal Panel explained at [124] to [127] why the applicants' contentions were not accepted. In brief, the Appeal Panel pointed to various documents which contradicted the claim that there was a 24 month tenancy agreement.
3. As to the fifth issue, whether the landlord's notice of termination dated 4 January 2024 was retaliatory (see s 115 of the RT Act), the Appeal Panel explained at [130] to [138] why it rejected the applicants' claim. It found that the landlord's agent sought to meet and address the applicants' concern and that the landlord was entitled to terminate the tenancy where the applicants had failed to pay all the rent due over an extended period of time.
4. Having addressed each of the five agreed issues, the Appeal Panel concluded at [141] that time should be extended to lodge the appeal in circumstances where there was some evidence to indicate that the applicants may not have received actual notice of NCAT's decision and reasons until 10 April 2024.
5. At [142], the Appeal Panel stated that the only error which may raise a question of law was the potential error of NCAT in failing to exercise jurisdiction in connection with the claim for rent reduction under s 44(1)(b) of the RT Act.
6. The Appeal Panel found that it was unable to determine this question of law because the applicants had not provided a complete transcript of the NCAT hearing. Nevertheless, adopting a benevolent view, the Appeal Panel stated at [143] that it would grant the applicants leave to appeal on this question.
7. Having granted leave on the question whether NCAT erred in failing to make an order under s 44(1)(b) of the RT Act, the Appeal Panel explained why it did not accept that the applicants were entitled to any rent reduction because of a reduction or withdrawal of facilities etc, repeating the reasoning for that conclusion which is summarised at [25] above.
8. The Appeal Panel then turned its attention to the other four issues which the Appeal Panel considered did not raise a question of law and for which leave to appeal had to be obtained. Leave to appeal in respect of these four issues was refused for reasons which are set out at [148]: As to the other Issues, having regard to our reasons above, we are not satisfied the tenant may have suffered a substantial miscarriage of justice in respect of these matters. As explained in relation to each of the other Issues, the conclusions reached by the Tribunal were open to it on the evidence and, on these issues, it could not be said the decision was against the weight of evidence. Nor could it be said the decision was not fair and equitable: see Collins at [77]. In circumstances where the tenants have wrongly failed to pay all the rent over a significant period of time, it could not be said they have been deprived of a significant possibility or a chance that was fairly open of achieving a different and more favourable result: Collins at [79]. Finally, we are not satisfied that the decision of the Tribunal was unreasonably arrived at or clearly mistaken or that there is otherwise an injustice which is reasonably clear: Collins at [84].

(a) General principles concerning leave to appeal

1. It is well settled that leave to appeal will only be granted where the proposed appeal raises an issue of principle, a question of public importance, or seeks to address a reasonably clear injustice arising from a misapprehension which goes beyond something that is merely arguable (see, for example, Islam v Australian Real Estate Relations Pty Ltd [2023] NSWCA 131 at [27] per Ward P and Griffiths AJA; Mohareb v Office of the Director of Public Prosecutions NSW [2024] NSWCA 93 at [17] per Ward P and Payne JA and the cases cited therein; and Shapkin v The University of Sydney [2024] NSWCA 156 at [39] per Meagher JA and Griffiths AJA).
2. Where the proposed appeal is confined to a question of law, it is also important to bear in mind this important limitation in applying those general principles.
3. Before addressing the summons filed on 26 July 2024, it should be noted that the applicants filed a notice of motion on 16 August 2024 in which they sought a stay of "all orders" made by the Appeal Panel on 28 June 2024 pending the hearing of their summons. That motion was heard and determined by Basten AJA on 2 September 2024 (see Dokas v Gallagher [2024] NSWCA 223). For reasons given by his Honour, only order 4 made by the Appeal Panel was relevant. Basten AJA noted that the writ of possession had been duly issued and the applicants had been removed from the premises by the sheriff on 13 August 2024. Accordingly, order 4 had been executed. It necessarily followed, as Basten AJA found, that there was "nothing to stay". Accordingly, the applicants' notice of motion dated 16 August 2024 was dismissed, with costs.
4. As noted above, the summons seeking leave to appeal was filed in this Court on 26 July 2024. The respondent did not claim that the applicants required an extension of time.
5. We turn now to address the applicants' summons. It is not an easy document to understand. Part of the difficulty arises from the fact that the applicants state that the "Appeals [sic] Panel committed many of the same errors of fact, law and jurisdiction as the original presiding Member appealed against at the Appeals Unit of NCAT, hence the current grounds (e.g. errors of fact, law and jurisdiction) for our external appeal are mostly similar/the same original grounds that were relied upon for our internal appeal at NCAT, which were succinctly described in the Notice of Appeal (see Annexure 5) form lodged with the Tribunal". Reference is then made to the notice of appeal form lodged with the Appeal Panel. It appears that that is the document which is summarised at [11] to [13] above. As noted above, these grounds were narrowed significantly before the Appeal Panel when the parties acceded to the agreed issues.
6. Further uncertainty is created by the fact that, notwithstanding the applicants' continuing reliance on the notice of appeal filed in the Appeal Panel proceedings, they also filed a 39 page draft notice of appeal in the proceedings in this Court. At page 3 of that document, there is a heading "PRIMARY GROUNDS OF THE INTERNAL APPEAL". This appears to be directed to the appeal from General Member Hung to the Appeal Panel but the paragraphs following that heading refer to the AP Decision. Moreover, much of this material does not specify any question of law, nor clearly state grounds of appeal, but is more in the nature of submissions or assertions (which we have taken into account as such).
7. There are multiple references to "questions of law" in the draft notice of appeal, to which we respond as follows. It is claimed in [4] under the heading "PRIMARY GROUNDS OF THE INTERNAL APPEAL" that "the Appeals [sic] Panel failed to respond to our defences under the legislation quoted on pages 15-16 of Annexure 11, which constitutes questions of fact, law and jurisdiction". It is plain that the Appeal Panel did respond to the applicants' "defences" under the RT Act, as is evident from the summary at [20]-[28] above.
8. At [9] of the draft notice of appeal, it is claimed that the Appeal Panel disregarded and did not properly consider the applicants' primary grounds and questions raised by their notice of appeal and that this raises "questions of fact, law and jurisdiction". We accept that the failure of the Appeal Panel to consider relevant grounds and substantive submissions could give rise to a question of law, but we see no such error here where the Appeal Panel fully considered, determined and gave reasons in respect of the five agreed issues described at [17] above. The applicants have failed to identify any submission of substance which was overlooked by the Appeal Panel.
9. It is claimed at [14] that the Appeal Panel ignored factual statements in a five page email dated 19 June 2024 which the applicants provided to the Appeal Panel, together with a 44 page enclosed summary. The applicants say that this material included claims by them that false and misleading statements had been made by the landlord and his agent. This is said to raise "questions of fact, law and jurisdiction". No question of law is raised by this complaint. Moreover, there is no substance in the complaint. It is clear from the Appeal Panel's reasoning at [34] to [37] that the Appeal Panel was well aware of, and took into account, the applicants' email dated 19 June 2024 and the submissions contained therein.
10. At [15] the applicants claim that a question of law is raised because the Appeal Panel looked only at s 44(1)(a) of the RT Act and failed properly to apply the law under s 44(1)(b). This claim is baseless. As the above summary of the AP Decision demonstrates, the Appeal Panel ultimately addressed both limbs of s 44(1) and no proper question of law has been identified in respect of its reasoning.
11. It is claimed in [23] of the draft notice of appeal that a question of law is raised because the Appeal Panel failed to consider whether or not "we could actually afford the Expert Witness Report interpreting the meaning of 'reasonably available', and our cognitive conditions". No question of law is raised by those claims.
12. It is claimed that a question of law arises because the Appeal Panel asked the wrong question. We acknowledge that asking the wrong question may constitute a question of law in some cases, but none of the particulars set out in [27] of the draft notice of appeal identify the wrong question which the Appeal Panel is alleged to have asked.
13. It is claimed at [29] of the draft notice of appeal that a statement made by the Appeal Panel at [25] and [26] of its reasons raises "questions of fact, which has [sic] resulted in a question of law". These claims appear to rely upon the fact that at [25] of its reasons the Appeal Panel refers to "landlords", rather than "landlord". Plainly this involved a typographical error. It is clear from the balance of the reasons that the Appeal Panel was well aware that there was only one landlord. None of the other particulars provided in support of [29] of the draft notice of appeal constitute a question of law.
14. The draft notice of appeal had several other claims that other aspects of the AP Decision raise "questions of fact, law and jurisdiction". One example is at [38], where it is claimed that such questions are raised by the Appeal Panel's conclusion at [120] where the Appeal Panel stated: "For the reasons stated above, we do not accept the tenants' contention the property was uninhabitable".
15. No question of law has been identified in respect of that conclusion, bearing in mind the detailed reasons provided by the Appeal Panel, which we have summarised above.
16. An allegation of actual bias is levelled at the Appeal Panel in [61] and [62] of the draft notice of appeal. In an appropriate case, this could involve a question of law but there is simply no basis at all for such a serious claim in this matter. Nor is the applicants' claim of apprehended bias, as advanced at [36] of their written submissions, sufficiently arguable as to warrant a grant of leave.
17. In the course of the hearing before us, the first applicant (who also represented his father, the second applicant) claimed that the Appeal Panel had erred by taking into account a bundle of evidence exceeding 600 pages in length which had been tendered by the respondent. There was some confusion surrounding this claim. The applicants were unable to point to the relevant bundle in the evidence before us. It is evident from the Appeal Panel's reasons that there were two bundles containing the respondent's evidence, referred to as RB Bundle A and B respectively (see, for example, [107] and [111] of the reasons). Neither of those Bundles were adduced in evidence before us. Although it may be inferred from the page references in the Appeal Panel's reasons that both bundles exceeded 100 pages, the applicants adduced no evidence to make good their claim that the Appeal Panel took into account the respondent's bundle exceeding 600 pages, which bundle was withdrawn in the proceeding before General Member Hung after the applicants withdrew their cross-application (see at [3] above). We accept the respondent's submission that the applicants have failed to discharge their onus in this regard.
18. Similarly, they have failed to discharge their onus of making good their oral submission to us to the effect that, contrary to the terms of NCAT's order dated 27 March 2024, they did not consent to the withdrawal of their cross-application. In particular, the applicants failed to provide a full copy of the transcript of the hearings before either NCAT or the Appeal Panel.
19. It is claimed that a question of law is raised by the Appeal Panel's failure to consider the probative value of the evidence lodged by the landlord (see at [66]-[70] of the draft notice of appeal). This complaint is directed to the Appeal Panel having preferred the landlord's evidence regarding the condition of the premises, over that of the applicants. No proper question of law is raised.
20. The applicants assert in the draft notice of appeal at [71] that a question of law is raised by the failure of the Registrar and NCAT to allow their summons. This is said to constitute procedural unfairness and raises a question of law. It may be accepted that, in principle, a claim of procedural unfairness may give rise to a question of law, but that is not the case here where the applicants' real complaint is directed to the merits of the disallowance of their summons, not procedural unfairness.
21. A question of law was said to be raised by the Appeal Panel having disregarded the applicants' expert evidence. As noted at [16] above, the applicants sought to rely upon a building report by Mr Farah but this was refused by the Appeal Panel on the basis that the evidence was reasonably available at the original hearing and did not therefore constitute new evidence. No question of law is properly raised.
22. Finally, at the hearing, when the requirement to identify a question of law was raised with the applicants, the first applicant said words to the effect that the relevant question was not what was done wrong, but rather what the Appeal Panel got right. This falls far short of identifying a proper question of law.
23. For completeness, we have concluded that no proper question of law is raised by the applicants in any part of the summons, the draft notice of appeal or their written or oral submissions.
24. Viewed overall, the applicants' documents appear to invite this Court to conduct a review of the merits of the original NCAT decision and/or the AP Decision. This presents two immediate difficulties. First, the Court's appellate jurisdiction under s 83(1) of the CAT Act does not extend to the original NCAT decision. It is confined to the AP Decision.
25. Secondly, that jurisdiction is much narrower than a merits review. For the jurisdiction to be enlivened, the applicants must identify a question of law and also persuade the Court that they should have leave to appeal.
26. The applicants, who are not legally represented, may not have appreciated the differences between a right of appeal from NCAT to the Appeal Panel and the different requirements imposed by s 83(1) concerning an appeal to the Supreme Court (see further below). This may also explain why the summons does not clearly identify one or more questions of law as required by s 83(1).
27. The Court is cognisant of the fact that the applicants are not legally represented and it has taken this matter into account. It must be appreciated, however, that the Court's duty is to ensure a fair trial for all parties and it is not the Court's function to give judicial advice to an unrepresented litigant (Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [309]-[312] and Bauskis v Liew [2013] NSWCA 297 at [66]-[69]).

(b) The significant differences between appeals under ss 80(2)(b) and 83(1) of the CAT Act and the need to identify a question of law in seeking leave to appeal under s 83(1)

1. It is important to note that there are significant differences between internal appeals within NCAT to an Appeal Panel and an appeal from an Appeal Panel to the Supreme Court. Under s 80(2)(b) of the CAT Act, the applicants had a right of appeal from General Member Hung's decision to an Appeal Panel on a question of law, but otherwise required leave to appeal.
2. This is to be contrasted with s 83(1) of the CAT Act, which provides as follows: 83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. …
3. There are two important differences between ss 80(2)(b) and 83(1): 1. The right of appeal to the Supreme Court is confined to "a question of law" and does not extend to any other matter, such as a question of fact. 2. In addition, an appeal on a question of law can only be brought from a decision of the Appeal Panel where the leave of the Supreme Court has been obtained. As noted above, there is no requirement of leave in the case of an appeal to the Appeal Panel on a question of law under s 80(2)(b) of the CAT Act.
4. These and other features of s 83 of the CAT Act were highlighted in Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; (2023) 20 BPR 43,135 at [33] (which, although directed to an appeal under s 83(1) of the CAT Act to the Supreme Court, apply equally where the proceeding has been commenced in the Court of Appeal as is the case here): (1) There is no appeal to this Court from a decision of the Appeal Panel as of right. The applicant must persuade the Court that leave should be granted. (2) An appeal is limited to "an appeal on a question of law". (3) As was recently emphasised in Thomas and Naaz at [32], "it is not sufficient merely to assert that the Tribunal erred in law in order to satisfy the limited conferral of jurisdiction". (To similar effect, see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; (2014) 96 ATR 875 at [6] and [22]; and Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]). Accordingly, it is well-settled that a challenge which is wholly or partly factual cannot be converted into a question of law merely by asserting that a question of law is involved or merely by asserting error itself. (4) What constitutes a question of law is "vexed and context dependent" in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises (see Thomas and Naaz at [52] and Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51). … (7) It is unnecessary to decide for the purposes of this appeal whether a "question of law" encompasses a mixed question of fact and law (see generally, at the federal level, the decisions of the Full Court of the Federal Court in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 and May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2015] FCAFC 93 and contrast the position at the State level, which is reflected in cases such as Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]; and Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 at [45] per Chen J). (8) The existence of a question of law is not merely a qualifying condition to the statutory right of appeal; rather, the question of law alone is the subject matter of the appeal (see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21] per French CJ, Gummow and Bell JJ and Davis v NSW Land and Housing Corporation [2016] NSWCA 325; (2016) 18 BPR 36,459 at [77] per McColl JA, with whom Meagher and Leeming JJA agreed). (9) Whether or not an appeal is on a question of law should be approached as a matter of substance and not merely form. As the Full Court of the Federal Court said in Haritos at [107], if, as a matter of substance, there exists a question of law, the Court has "a procedural discretion, to be exercised judicially and where it is in the interests of justice to do so, to direct its formal identification in an amended notice of appeal even where the question of law has not been identified before the primary judge". It is notable that the Court there viewed this approach as consistent with that of the Court of Criminal Appeal in R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [57]-[69] per Spigelman CJ (with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed). Where an appellant is unrepresented, it may be appropriate to adopt a more generous or benevolent approach in assessing whether the notice of appeal identifies a question of law (see, for example, Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]-[77] per Mortimer J, as approved in Haritos at [104] and see also Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]). (10) A s 83 appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT at first instance (see Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 at [10]).
5. The applicants' summons asserts numerous times that their application for leave to appeal "is brought under a question of fact, law and jurisdiction". It is necessary, however, for the applicants to clearly identify a question of law raised by the AP Decision having regard to principles summarised above.
6. We note that the summons refers to other documents which the applicants say "describe the primary grounds for our external appeal at the Court of Appeal", including the notice of appeal to the Appeal Panel, the applicants' application for a stay lodged with NCAT and a document styled "Notes About Written Submissions of the Respondent and his Representative Titled 'Bundle A' and 'Bundle B'". It is not the Court's task to "undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point" (Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21] and Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [42]). Those observations apply equally to the requirement that an applicant seeking leave to appeal under s 83(1) of the CAT Act must identify a question of law to which the proposed appeal relates.

(c) Concurrent appeal and judicial review proceedings

1. As noted above, the applicants seek both leave to appeal under s 83(1) of the CAT Act, and judicial review of the AP Decision. This enlivens the potential application of s 34(1)(c) of the CAT Act, which provides: 34 Inter-relationship between Tribunal and Supreme Court (1) The Supreme Court may - … (c) refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision.
2. In Fong BHNF Fong v Weller [2024] NSWCA 46, Kirk JA observed at [29] that it was open to a Court to decline to grant relief in judicial review cases where there is an equally effective and convenient remedy which could be pursued. We consider that the statutory discretion under s 34 should be exercised in these proceedings. The applicants have not identified any arguable error of law on the face of the reasons for the AP Decision. The applicants' summons and draft notice of appeal contain numerous alleged errors on the part of the Appeal Panel. On close analysis, however, none of those alleged errors can properly be described as an error of law. Rather, they are errors of fact in respect of which certiorari is not available. We decline under s 34(1)(c) to conduct a judicial review of the AP Decision. Accordingly, that part of the summons which seeks relief in the nature of certiorari should be dismissed.

Conclusion

1. Having regard to the matters described above, we are not satisfied that the applicants have clearly identified any question of law as required by s 83(1) of the CAT Act. Nor are we satisfied that this is an appropriate case to grant leave to appeal. The applicants have not identified any issue of principle or question of public importance. Their multiple complaints are directed to their personal grievances concerning the termination of their tenancy. We do not doubt the sincerity of their sense of grievance, but their grievance is of a personal nature and does not give rise to any question of general importance beyond the inter partes dispute between them and their ex-landlord. Nor are we persuaded that leave should be granted to address a reasonably clear injustice arising from any error on the part of the Appeal Panel which is more than being barely or merely arguable. Finally, there is a very real question concerning the utility of the proceedings, in circumstances where the tenants were evicted more than a month ago.
2. For all these reasons, the summons filed on 26 July 2024 should be dismissed, with costs.

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