Donoghoe v Compass Housing Services [2015] NSWCATAP 97 | Case summary

NCAT Appeal Panel|2014-12-09

Background

Mr Donoghoe's claim for rent reduction arose out of damage to his unit in November 2012 from a water leak in an adjoining property. The damage was so serious that a section of the ceiling of the ground floor of Mr Donoghoe's unit collapsed. Mr Donoghoe was relocated so repairs could be completed. The ceiling and downstairs area was repaired and the downstairs carpet was replaced. Mr Donoghoe returned to the premises on 11 April 2013. The upstairs carpet upstairs was not replaced until December 2013 and Mr Donoghoe claimed rent reduction on the basis that his unit was partly uninhabitable because the carpet was damaged and mouldy.
Mr Donoghoe also claimed that an invoice for $190.19 from a maintenance company dated 27 November 2012, which was forwarded to him for payment by Compass, should not be payable by him. The invoice was said to relate to a call out by the service provider in relation to a complaint made by Mr Donoghoe about his shower screen. The invoice noted the tenant was "not home" at the time of the call. Mr Donoghoe disputed this and asserted he was at home and should not have been charged for the callout.
In his Notice of Appeal, Mr Donoghoe indicated he was seeking leave to appeal but the notice was subsequently amended to strike out the reference to leave, indicating Mr Donoghoe was appealing on a question of law. Mr Donoghoe confirmed this at a telephone directions hearing.
The parties consented to the appeal being decided on the papers but the Appeal Panel listed the matter for a telephone hearing in December 2014 to clarify aspects of Mr Donoghoe's appeal. Both parties consented to the Appeal Panel reviewing the sound recording of the hearing, which was not originally submitted to the Appeal Panel with the appeal papers. The Appeal Panel reviewed the sound recording and thereafter identified a potential error of law which was not raised by Mr Donoghoe in his Notice of Appeal. The parties were invited through the Registrar to make submissions on the issue.

Statutory framework

The legislation relevant to this appeal is the Residential Tenancies Act 2010 (NSW) (the RT Act) and the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).
Mr Donoghoe's claims were made under the RT Act.
Section 43(2) of the RT Act provides that rent payable under a residential tenancy agreement abates if residential premises under the residential tenancy agreement become wholly or partly uninhabitable. Section 45(1) relevantly empowers the Tribunal to make an order determining the amount of rent payable if the rent is abated under s 43(2). The power is discretionary.
The basis for Mr Donoghoe's claim in respect of the invoice for $190.19 is not clear from either Mr Donoghoe's application or from the reasons for decision, but we note that under s 187 of the RT Act, the Tribunal may make a broad range of orders on application by a landlord or tenant and under s 188 has a general order-making power. There was no contest that the Tribunal had jurisdiction to determine Mr Donoghoe's application in respect of the invoice.
Part 4 of the CAT Act deals with practice and procedure in the Tribunal. Section 36 sets out the "guiding principle" for the conduct of proceedings, which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings." The Tribunal must seek to give effect to the guiding principle (s 36(2)). The parties must co-operate with the Tribunal to give effect to the guiding principle and participate in the Tribunal's processes, including complying with directions and orders (s 36(3)). Section 38 sets out the procedure of the Tribunal generally. The Tribunal may determine its own procedure in relation to any matter, is not bound by the rules of evidence and "may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" (refer to s 38(1) and (2)). Section 38(4) provides that 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."
Relevantly, s 38(5) and (6) set out the obligations of the Tribunal in the conduct of proceedings as follows: (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, (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.
Part 6 of the CAT Act deals with appeals to the Tribunal. Section 80(1) of the CAT Act provides that a party may make an internal appeal to the Appeal Panel in respect of decisions made by the Tribunal in proceedings for a "general decision" or an "administrative review decision." A general decision includes a decision made by the Consumer and Commercial Division pursuant to functions allocated to the Division under the legislation enumerated in Schedule 4 of the CAT Act. The Consumer and Commercial Division is empowered to make decisions and exercise functions under the RT Act.
An internal appeal may be made as of right in respect of a final or ancillary decision on any question of law but with the leave of the Appeal Panel on any other grounds (s 80(2)(b) of the CAT Act). Relevantly, cl 12 of Schedule 4 of the CAT Act provides that for the purposes of s 80(2)(b), the Appeal Panel may grant leave to appeal in respect of a decision made by the Consumer and Commercial Division but only if satisfied that the appellant may have suffered a "substantial miscarriage of justice" because the decision was not fair and equitable or against the weight of evidence or significant new evidence is available that was not available at the hearing.
There is no contest the Appeal Panel has jurisdiction to determine this internal appeal. The key issue is whether an error of law was made by the Tribunal below in dismissing Mr Donoghoe's claims for rent abatement and in respect of the invoice for the call out.

Decision at first instance

The Tribunal dealt with Mr Donoghoe's claim for rent reduction in its reasons for decision in the following terms: That the rent be reduced by 50% of the period 11 April 2013 to 20 December 2013: The tenant says that when he returned to the premises, his use of it was compromise because the carpet had not been replaced. He said that the upstairs area in particular was very smelly. He has provided some photographs of the damage caused when the ceiling collapsed. He says that he was without much of his furniture for some time, and much of it has been destroyed. He says that the carpet was mouldy and he has provided photographs. The landlord does not dispute that the carpet downstairs required replacement but disputes that the upstairs area or stair area was affected. The landlord also alleges that the delayed replacing the carpet was contributed to because the tenant was abusive to the carpet layers, who refused to return to the premises to complete the laying of the carpet. The initial delays were caused by difficulties between the head lessor and her insurance company. The head lessor was eventually successful in having the insurer replace all of the carpet in the premises. The tenant has the onus of proof in respect of the claim for rent reduction. Whilst the Tribunal accepts that the carpet required replacement (the head landlord was eventually able to convince her insurer that that was the case) there is insufficient evidence to as to enable the Tribunal to determine the extent to which the tenant's use of the property was affected. The tenant says that he couldn't use the upstairs area but it was apparently the downstairs carpet which was most affected. The majority of the photos show that the damaged areas, but the photos were apparently taken before the repairs to the premises were carried out. The Tribunal notes that whilst the tenant says that he had to stay away from the premises, there is no supporting documentation or other evidence about this. There are no statements from family or friends of the tenant, attesting to the effect of the damage carpet on the use of the premises. As the tenant has the onus of proof, this claim is dismissed.
The question of liability for the call out invoice was dealt with as follows: That the tenant not be required to pay an invoice of $190.19: The invoice is dated 27 November 2012. It states "attend the property - tenant not home". The landlord says that relates to a callout by Mayburys at 9am on 6 November 2012. The landlord has provided a copy of an email received by them from Maybury's and sent it 9:2am. There is no direct evidence from the person who allegedly attended on that morning. However, the landlord's representative says that she attended the premises at 2pm in respect of the collapsed ceiling, and at that time the tenant said the shower screen doors had been sent to his lawyer. The tenant says that he was home at 9am when the repairman called, and the ceiling had already collapsed. For this reason, the repairman declined to attend to inspect or rectify the showerscreen door. He denies telling the repairman door has been sent to his lawyer. This is a case where there are conflicting versions of what happened. The landlord's version is supported by the email from the contractor. The tenant's version is unsupported. The Tribunal is satisfied, on the balance of probabilities, that the landlord is entitled to recover the callout fee. Accordingly the tenant application from order that it is not payable is dismissed.

Grounds of Appeal and submissions of the parties

Mr Donoghoe identified a number of grounds in his Notice of Appeal for why he considered the Tribunal's decision was wrong. He disputed the order made by the Tribunal dismissing his application for rent abatement on the basis that he was self-represented and it was only after the orders were made that the evidence he was required to provide was identified. Mr Donoghoe contended that he could now provide this evidence, being corroborative evidence from friends and family about the condition of the upstairs unit. He submitted that the appeal should be allowed so this evidence could be considered by the Tribunal. He did not meet his onus of proof because he had little or no guidance about the evidence he had to provide and the Tribunal should "do justice" in having the decision made on relevant evidence. Mr Donoghoe submitted: There was a deficiency of evidence that was only highlighted to me after the Tribunal's decision. However, after reading the reasons I can obtain that evidence in the Tribunal should give me an opportunity to put that evidence before the Tribunal because the proper adjudication off (sic) the decision.
The second order was said to be based on an error of law because the Tribunal "incorrectly concluded" that an email from the maintenance service company related to the invoice. Mr Donoghoe submitted that there was inconsistency between the invoice and the email and as there was no corroborating evidence, the Tribunal "did not correctly apportion the onus of proof." The onus for recovery of the invoice should have been with Compass. Compass did not discharge the onus and the Tribunal should therefore have concluded Mr Donoghoe was not liable to pay the invoice.
Compass filed a reply to the appeal, which primarily focused on the second claim made by Mr Donoghoe, but also contended that both parties had been directed to exchange evidence and Mr Donoghoe had not provided evidence to support his claims. Compass further contended that the evidence provided on the day of the hearing showed that Mr Donoghoe "had consistently prevented access to the premises on numerous occasions."
The parties provided written submissions at the direction of the Appeal Panel. These submissions attached the material relied on in the Tribunal below and new evidence sought to be relied on by Mr Donoghoe, being statutory declarations from friends and family about the condition of the unit.
Mr Donoghoe is not legally qualified nor was he represented. The issue of whether complaints about a decision raise questions of law can be complicated and has been the subject of much judicial review and consideration. The Tribunal is mindful that it may be difficult for self-represented appellants, like Mr Donoghoe, to identify and properly articulate a question of law. The Tribunal must give effect to the guiding principle when exercising functions under the CAT Act, reinforced by s 38(4) which provides that the Tribunal is required to act with "as little formality as the circumstances of the case permit" and "without regard to technicalities."
Accordingly, it is appropriate to examine Mr Donoghoe's stated grounds for appeal and identify, where possible, the relevant question of law that may arise, even where the grounds identified are inelegantly or imprecisely expressed (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12] and Khan v Kang [2014] NSWCATAP 48 at [15]).

First ground of appeal: claim for rent reduction

According to Mr Donoghoe's submissions, he did not understand the evidence he was required to adduce to satisfy the Tribunal and discharge his onus of proof on his rent abatement claim. The reasons identified the deficiency in his evidence, which he could now rectify, and it would be in the interests of justice if he was allowed to adduce this evidence. It is implicit Mr Donoghoe seeks a rehearing of his case.
These submissions were confirmed by Mr Donoghoe during telephone directions when he stated he did not seek leave to appeal because it was clear from the Tribunal's reasons that he needed evidence from friends and family, which he had now obtained. Mr Donoghoe further stated that the member had "told" him what he needed to do in the reasons and he should be allowed to do it.
It was apparent Mr Donoghoe did not understand what was meant by a question of law or when a party would need leave to appeal a decision of the Tribunal.
Mr Donoghoe's ground of appeal on his rent abatement claim, as explained by him in his Notice of Appeal and written submissions, does not, of itself, disclose a question of law that would found a right of appeal.
It is not open to a party to seek to re-litigate their claim with the benefit of hindsight and, in particular, the reasons of the Tribunal, to fill evidentiary gaps or legal argument. The right of appeal is limited to questions of law. Leave to appeal may be given in respect of decisions made in the Consumer and Commercial Division but only if the Appeal Panel is satisfied the appellant may have suffered a "substantial miscarriage of justice" on the grounds identified in cl 12(1)(a), (b) or (c) of Schedule 4. As noted in Collins v Urban [2014] NSWCATAP 17 at [81], even if one or more of these grounds is established, the Appeal Panel still has discretion as to whether it will grant leave. The Appeal Panel reviewed the relevant authorities and summarised the general principles that should be applied when exercising the discretion, at [84]. The appellant "must demonstrate something more than that the decision maker is arguably wrong." For instance, leave may be given where "the injustice is reasonably clear" or where the Tribunal had gone about the fact-finding process in such an "unorthodox manner" that would be in the interests of justice for the decision to be reviewed: Collins v Urban at [84], citing BHP v Billiton Ltd v Dunning [2013] NSWCA 421 at [20].
It is clear from the CAT Act and the authorities, including guidance from the Appeal Panel in Collins v Urban, that a party's right to re-open or re-litigate a decision made in the Tribunal at first instance will be narrowly circumscribed. Mr Donoghoe's submission that he should be entitled to present new evidence does not raise an error of law and he therefore cannot seek to re-litigate his claim for rent abatement on this ground, unless he is given leave.
Mr Donoghoe further submitted that he "didn't meet the process requirements the first time as I had little or no guidance on the evidence." It is not clear whether this submission seeks to raise a contention that the decision was thereby not fair and equitable or whether Mr Donoghoe is seeking to argue the Tribunal had an obligation to provide guidance to him as a self-represented litigant.
The first possibility does not raise a question of law but is one of the threshold considerations for leave to appeal under s 80(2)(b). In contrast, the second possibility raises a question of law about whether Mr Donoghoe was afforded procedural fairness in the circumstances of the case and whether the Tribunal failed to comply with s 38(5) and (6).
If Mr Donoghoe is seeking to contend the Tribunal was obliged to provide guidance to him about the evidence it required to be satisfied about his case, we reject such a proposition.
Neither s 38 of the CAT Act nor the rules of procedural fairness compel such an obligation. Parties have the carriage of their own case (s 45 of the CAT Act) and the obligation of the Tribunal is to ensure the parties have a reasonable opportunity to present their case (s 38(5)(c)). While the Tribunal must strive to resolve the real issues in the proceedings (s 36(1)) and may "inquire into and inform itself on any matter in such manner as it thinks fit" (s 38(2)), the proceedings which are the subject of the appeal relate to private rights and are adversarial in nature. It is not the role of the Tribunal in these matters to undertake an inquisitorial approach but rather to facilitate the parties to present their case. This may involve the Tribunal explaining to the parties the nature of the case and the critical issues that require determination (refer to s 38(5)(a)) but does not extend to telling the party what to do to succeed in their case (SZRN v Minister for Immigration and Border Protection and Administrative Appeals Tribunal [2014] FCAFC 129 at [23]).
At the heart of Mr Donoghoe's rent abatement claim was the question of whether his unit had become wholly or partly uninhabitable for the period 11 April 2013 to 20 December 2013, when new carpet was laid upstairs.
Mr Donoghoe gave evidence about this at the hearing below. The hearing was approximately one hour in duration and half the hearing was dedicated to introductions and the rent abatement claim. The balance of the hearing related to Mr Donoghoe's dispute of the call out invoice.
After a short introduction, Mr Donoghoe was invited by the Tribunal to give evidence about his rent abatement claim. Mr Donoghoe said that when he returned to the unit on 11 April 2013, the carpet was mouldy and stank. He used the shower upstairs but did not use the bedroom when he returned because of the smell. He had to sleep downstairs because upstairs was "unusable." He tried to complain but got no reply.
A representative from Compass also gave evidence. She said that she had conducted a routine inspection upstairs and did not detect any mould or smell. There was no evidence about how many inspections she had undertaken in the relevant period. The representative agreed there could have been damage upstairs but not to the extent described by Mr Donoghoe. She further stated that there was a problem with access to the premises, the inference being that this caused a delay in having the carpet replaced. The representative denied Mr Donoghoe had complained.
There was evidence about difficulties in gaining access to the unit during part of the period and copies of email communications between Compass and Mr Donoghoe and photographs of the premises were tendered. The Member noted there was a dispute about the smell in the unit. Both parties gave sworn evidence but neither party was offered the opportunity to cross examine the other in relation to the rent abatement claim.
The difficulty in the case is that it is not apparent, either from the conduct of the hearing or the written statement of reasons, how the critical issues in dispute regarding the rent abatement claim were resolved. There was no finding of fact about whether the upstairs floor of the unit was uninhabitable or about the extent to which Mr Donoghoe was to blame for the delay in installing the new carpet. These issues were raised by both parties in the Tribunal below and were referred to in the reasons but not resolved by findings. The Tribunal merely stated that Mr Donoghoe had not discharged his onus of proof. There was no finding that his evidence was false or unreliable or that it should not be accepted unless it was corroborated. This raises the question of whether there was an error of law by the Tribunal in either failing to give adequate reasons for dismissing the rent abatement claim or failing to exercise the jurisdiction conferred on the Tribunal as invoked by Mr Donoghoe (refer to Khan v Kang at [19]).
Section 62(3) of the CAT Act provides that any written statement of reasons must set out the findings on material questions of fact, referring to the evidence or other material in which those findings were based, the Tribunal's understanding of the applicable law and the reasoning process that led the Tribunal to the conclusion it made.
Mr Donoghoe did not raise an issue about the adequacy of the reasons in his Notice of Appeal but this does not preclude the Appeal Panel from identifying such a deficiency as an appropriate ground of appeal in the circumstances the case. The fact Mr Donoghoe states he did not understand the evidence he needed to adduce given the conclusion he had not discharged his onus of proof demonstrates the inadequacy of the reasons. The reasons have apparently led Mr Donoghoe to the conclusion, wrongly in our view, that he needed to adduce evidence to corroborate his uncontradicted evidence.
Consistent with s 36(2) and s 38(4) of the CAT Act, and, in particular the obligation to act "according to equity, good conscience and the substantial merits of the case," if the Appeal Panel identifies a ground of appeal with merit which has not been formulated by an appellant, the Appeal Panel should nonetheless have regard to that ground provided the parties are afforded procedural fairness [emphasis added]. As observed by Heenan J in S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 at [95] in dealing with a similar provision, "such a legislative formula does not free the tribunal from the obligation to decide the matter before it according to law."
The Registrar was therefore directed to write to the parties inviting submissions, initially from Compass and then if required from Mr Donoghoe, on this issue. Compass provided submissions to the following effect: 1. The reasons of the Tribunal clearly set out why Mr Donoghoe's claim for rent reduction was dismissed. 2. Mr Donoghoe understood the reasons and this was the basis of his appeal in relation to order 1. 3. Mr Donoghoe should have been aware of the information he was required to provide because there were directions made about this by the Tribunal on 10 December 2013. 4. While Mr Donoghoe relies on being self-represented he had access to assistance from the Hunter Tenants Advice and Advocacy Service. 5. It is unclear what further information could have been provided by the Tribunal in the reasons.
The submission referred to in (3) and (4) were previously made by Compass and do not address the issue of the adequacy of reasons. The submissions referred to in (1), (2) and (5), address the issue but do not raise any new matters that were otherwise not apparent from the material filed and the submissions previously made by both parties Accordingly, the Appeal Panel did not consider it was necessary to request that Mr Donoghoe respond to these submissions and proceeded to determine the appeal based on the available evidence and submissions.
There can be no contest that the adequacy of reasons and compliance with s 62 of the CAT Act raises a question of law.
The nature and extent of the obligation under the general law and pursuant to s 62 was discussed by the Appeal Panel (Wright P, Westgarth DP and Harrowell SM) in Collins v Urban at [43] to [64]. Relevantly, the Appeal Panel referred to Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 in which Basten JA observed at [48] that the requirement to give reasons was "not universal in nature" and "is variable in content." His Honour further opined: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.
The critical issue is whether the reasons meet the minimum standard contemplated by Resource Pacific Pty Ltd v Wilkinson and by the Appeal Panel in Collins v Urban or comply with s 62(3) of the CAT Act. In our view, they do not.
The material findings of fact, the evidence on which those findings were based and the reasoning process that led the Tribunal to form a view that Mr Donoghoe had not discharged his onus in respect of his rent reduction claim is not apparent from the reasons. We accept Mr Donoghoe had the onus to establish his unit was, at least, partly uninhabitable for the period he made the claim for rent reduction. What is not apparent is why Mr Donoghoe's evidence, which was not rejected by the Tribunal or directly contradicted by evidence from Compass, was insufficient to discharge the onus.
The evidence from the representative of Compass was to the effect she had not noticed any smell. This was not necessarily inconsistent with Mr Donoghoe's evidence. According to the reasons, there was delay in the landlord obtaining insurance compensation to replace the carpet upstairs. Yet it is not clear how this was relevant to Mr Donoghoe's claim. There is no explanation in the reasons as to why Mr Donoghoe required further evidence to corroborate his claim, particularly when the Tribunal accepted the carpet required replacement and noted, but did not reject, the evidence Mr Donoghoe had to stay away from the premises. The fact that the downstairs carpet was "most affected" or that the majority of the photographs were taken before the repairs to the premises does not contradict Mr Donoghoe's evidence.
One of the issues raised by Compass in the material provided and at the hearing was that Mr Donoghoe prevented access to the property and thereby delayed the necessary repair. This may have justified a finding that rent should not be reduced or should be reduced for a lesser period than that claimed by Mr Donoghoe. However, there was no finding Mr Donoghoe was at fault in delaying the carpet being replaced.
The sound recording of the hearing does not shed light on these issues. There was no testing of the evidence by either party or by the Tribunal and the critical issues for determination on this claim (namely, whether the premises was uninhabitable for the whole or part of the period and, if so, whether the Tribunal should make an order) were only briefly discussed.
The failure of the Tribunal below to give adequate reasons for the decision to reject Mr Donoghoe's claim for rent abatement is an error of law. The failure was significant given the Tribunal did not make findings on the critical issues in dispute. The proceedings were contested and involved the determination of significant legal rights. It was therefore incumbent on the Tribunal to make findings on material questions of fact and provide reasons that disclosed its reasoning process to ensure that any appeal right was not rendered "effectively worthless" (refer to Collins v Urban at [49]).
The importance of adequate reasons is highlighted having regard to the statement in the reasons to the effect that Mr Donoghoe's uncorroborated evidence was insufficient to discharge his onus of proof. Without explanation, such a statement may disclose an error of law because it suggests the Tribunal may have erred by imposing a standard of proof on Mr Donoghoe that was over and above the civil standard. This was not clear from the reasons, nor was it clear to Mr Donoghoe given his grounds of appeal.
Accordingly, the appeal is allowed in respect of first order of the decision made on 7 March 2014 and it is appropriate to set aside this order and remit Mr Donoghoe's claim for rent reduction to the Consumer and Commercial Division for reconsideration.

Second ground of appeal: invoice for $190.19

The second ground contended by Mr Donoghoe does not raise a question of law.
When Mr Donoghoe's grounds for appeal in respect of the second order are closely examined, it is clear he is challenging the decision of the Tribunal to prefer the evidence of Compass about the circumstances leading to the issue of the invoice. The Tribunal did not reverse the onus of proof in so doing. The reasons make it clear that, having considered the conflicting evidence between the parties, the Tribunal accepted the contentions of Compass. In our view, the reasons, while brief, adequately explain the material findings of the Tribunal and why Mr Donoghoe's claim was rejected.
Whether the Tribunal made an error in relation to fact finding is not a question of law, unless there is no evidence on which the finding is based. This is not the case. The Tribunal weighed the evidence and found in favour of Compass. As such, Mr Donoghoe needs leave to appeal from this decision.
Even though Mr Donoghoe changed his mind about seeking leave to appeal, and confirmed this in a telephone directions hearing, we have nonetheless considered his appeal on this basis. In so doing we have taken into account the complexities for a self-litigant in understanding the internal appeal provisions, Mr Donoghoe's obvious confusion and the guiding principles in s 36 and s 38(4) of the CAT Act.
This is not a case where Mr Donoghoe has demonstrated that there was a 'substantial miscarriage of justice' as described in cl 12(1) of Schedule 4. Both parties had the opportunity to present their case on the call out invoice and, in contrast to consideration of the rent abatement claim, there was robust discussion by both parties at the hearing about the evidence. Accordingly, we are not satisfied Mr Donoghoe has established the decision was not fair and equitable (cl 12(1)(a)). The conclusion of the Tribunal was reasonably open on the material and this is not a case where the evidence in its totality preponderates strongly against the conclusion found by the Tribunal at first instance (refer to Collins v Urban at [77]). As such, the decision cannot be said to be 'against the weight of evidence' (cl 12(1)(b)). There is no 'new' evidence that was not otherwise reasonably available at the hearing and therefore the discretion to give leave cannot be enlivened on this basis.
I therefore do not give leave to appeal against the second order made by the Tribunal and would dismiss this ground of appeal.
G MEADOWS, Senior Member: I do not agree with the majority decision. My decision and reasons follow.
Sean Michael Donoghoe rented premises from Compass Housing Services, a social housing provider, pursuant to the Residential Tenancies Act 2010 (RT Act). The premises suffered major water damage as a result of which extensive repairs were required. These repairs included replacing the downstairs carpet in the lounge room and the carpet in an upstairs bedroom.
Mr Donoghoe brought a claim in the Consumer Trader and Tenancy Tribunal seeking: 1. A rent reduction of 50% for a certain period; 2. An order that he should not have to pay what was in effect a "holding fee" while he was not able to reside in the premises as repairs were being undertaken; and 3. An order that he not be required to pay an invoice which was purportedly and in effect a "callout fee" charged by a contractor employed or appointed by the landlord following an attendance at the premises which had to be abandoned as Mr Donoghoe had allegedly removed the doors the subject of the work order.
The Tribunal made the following orders: On 07-Mar-2014 the following orders were made: 1. The application for an order for rent reduction is dismissed because having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established. 2. The application for an order for that the sum of $190.19 is not payable is dismissed because having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established. 3. The landlord is forthwith to credit the tenant's ledger with a credit of $110.00, representing the charge made during the period that the premises were uninhabitable.
Mr Donoghoe appeals against Order 1 and Order 2.

The Process in this Appeal

The "guiding principle" of the Civil and Administrative Tribunal Act 2013 is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 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 (s 36(1) and (4) of the Act).
Given that this appeal was filed on 24 March 2014, it is necessary to explain how the Appeal Panel has attempted to apply the guiding principle.
Question 16B on the Notice of Appeal form (which is how a party applies for an appeal in the Tribunal) invites an Appellant to indicate if they object to the appeal itself being heard on the papers. In this case, Mr Donoghoe indicated "No."
In the Reply to Appeal completed by Compass, in answer to Question 14B (the equivalent of Question 16B in the Notice of Appeal) Compass indicated they did object to the appeal being dealt with on the papers. The explanation given was as follows: "Evidence was provided to NCAT & the applicant. It was the responsibility of the applicant to prove the application made - it is clear that the applicant was unable to do so and is now lodging an appeal."
It would appear Compass did not understand the intention of that question. As Mr Donoghoe pointed out in his Appeal Submissions: "4. The reasons given at Item 14B of the Respondents response to the appeal objecting to an appeal being heard on the papers were stated as, [repeats the above extract]. However, the reasons given did not answer address the question or provide a reason why the appeal should not be dealt with on the papers. In other words, the Respondent didn't provide any reasons at all."
Mr Donoghoe, on the other hand, provided a quite extensive submission as to why the Appeal Panel should dispense with a hearing and decide the appeal on the papers. He stated: Reasons why the Appeal Panel should dispense with a hearing and decide the appeal on the papers 1. At the hearing, Jessica Bentley, who appeared for Compass and who replied to the appeal, regularly interrupted Compass and the Tribunal member. Ms. Bentley also spoke over Compass and the Tribunal member. Ms. Bentley was also shouting and disruptive at the hearing. The Tribunal member had to end the hearing and make a decision based on the papers and what was said thus far at that hearing. A hearing of the appeal on the papers would be appropriate in this situation in order to avoid a repetition of what happened at the hearing. 2. A hearing of the appeal on the papers will facilitate the quick, just, and equitable administration of justice. This is because the questions to be answered on the appeal are of the type that can be adequately dealt with by a hearing on the papers. This will avoid the need for the parties to make an appearance and this saves time and costs. … 5 A hearing will expose the Applicant and Compass to potential confrontation and argument. The Applicant remained calm at the hearing but Compass did not. The Applicant did not think that he was able to put across clearly enough what he needed to say because of the interruptions by Compass. If the appeal was dealt with on the papers then it will be more conducive to giving each party a fair opportunity to make its submissions and to give its evidence.
Section 50 of the CAT Act provides that generally a hearing is required, but provides for a hearing on the papers in certain circumstances: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: … (c) if the Tribunal makes an order under this section dispensing with a hearing, or … (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. …
On 21 July 2014 it was ordered that the matter was to be heard on the papers. The parties had previously provided written submissions in accordance with orders made on 10 April 2014.
It subsequently became apparent to the Appeal Panel that it would be appropriate and necessary to have an oral hearing as well. This arose from the decision of the Appeal Panel that it would be required to listen to the recording of the hearing at first instance. The Appeal Panel considered that procedural fairness required the parties to be notified that the Appeal Panel intended to listen to the recording of the hearing and to provide the parties with an opportunity to make any further submissions if they wished, in that regard. This is the hearing on 9 December 2014, mentioned in the majority decision.
An unfortunate by-product of the above procedure was to considerably extend the time taken to decide the appeal. The Appeal Panel considered it necessary to do so, in balancing the principle of "just" with "quick." This is in compliance with s 38 of the CAT Act: 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. … (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 … (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. There is a certain amount of overlap between some of those provisions, especially s 38(5)(c) and s 50(3)(a) and (b) (extracted above), demonstrating the concern of the Parliament that the importance of those provisions be understood and applied. The Appeal Panel has endeavoured to comply with those provisions.
A further delay was caused, for similar reasons, in relation to the Appeal Panel's raising the issue of adequacy of reasons, again to permit the parties to make any further submissions, as discussed below.
I should note that I agree that the Appeal Panel was required to give the parties the opportunity to make further submissions in relation to both issues just mentioned.
There is a further point in relation to the hearing on 9 December 2014 which should be made in fairness to the respondent and to the Tribunal member. In paragraph 72 above, I set out Mr Donoghoe's submissions in support of his request that the appeal be dealt with on the papers. I refer particularly to Mr Donoghoe's submissions relation to the behaviour of Compass during the hearing at first instance, and to the apparent implication that the behaviour of Compass at the hearing required the member to end the hearing and to make a decision on the papers and what was said "thus far" at the hearing. However, having listened carefully to the recording of the hearing, it is possible to state in certain terms as follows: 1. Compass did not regularly interrupt Mr Donoghoe and the member (at least, not more than the occasional innocuous interruption which is part and parcel of oral hearings in this Tribunal, and which Mr Donoghoe also did); 2. Compass did not "shout" during the hearing, nor was Ms Bentley disruptive; and 3. The Member did not curtail or suddenly or abruptly finish the hearing and in no sense was it obvious the member "had" to finish the hearing. 4. To the contrary, the hearing was characterised by a calm and pleasant procedure generally, including from the parties and particularly from the member.

Order 2: The Invoice Claim

It will be beneficial to deal with the appeal against Order 2 first.
The parties argued this issue vigorously in the original hearing and also in their submissions (with attachments) in the appeal. Out of deference to the parties and for the sake of completeness I consider it is appropriate to deal with this issue in some detail. The member's reasons state: The tenant says that he was home at 9.00am when the repairman called, and the ceiling had already collapsed. For this reason, the repairman declined to attend to inspect or rectify the showerscreen door. He denies telling the repairman that the doors had been sent to his lawyer. This is a case where there are conflicting versions of what happened. The landlord's version is supported by the email from the contractor. The tenant's version is unsupported. The Tribunal is satisfied, on the balance of probabilities, that the landlord is entitled to recover the callout fee. Accordingly the tenant's application for an order that it is not payable is dismissed.
The (mainly) undisputed facts appear to be as follows: 1. On 06 November 2012 (the date the ceiling collapsed in the lounge room of the premises), a visit had been scheduled for a contractor to attend the premises to inspect and repair the shower screen doors. The contractor did attend, Mr Donoghoe was home and the contractor was advised the shower screen doors had already been sent by Mr Donoghoe to Mr Donoghoe's solicitor, Mr Austin Day. (Mr Donoghoe does dispute any claim that he advised the contractor the doors had been sent to his solicitor.) Consequently, nothing could be done by the contractor who left the premises. 2. Later the same morning Ms Bentley attended the premises without prior notice, in response to the emergency of the collapsed ceiling. Mr Donoghoe by that time was not at home. Ms Bentley left a visit slip advising she would contact Mr Donoghoe and arrange a visit for another time. 3. A second visit was arranged by Ms Bentley with Mr Donoghoe, which occurred later that same day. 4. Again on the same day, the contracting company, Maybury Maintenance, sent an email to Compass advising of the wasted visit by their contractor. 5. Later, on 27 November 2012, Compass sent an invoice to Mr Donoghoe, citing "Attend property - tenant not at home" and seeking payment of $190.19.
In "Attachment 'A' " to the Notice of Appeal, Mr Donoghoe set out the nature of this issue in succinct terms as follows: "2. In the reasons of the Tribunal on 10 March 2014 the Tribunal took into account that the invoice stated, "attend property - tenant not home". Then the Tribunal relied on the email of Maybury Maintenance as the principle [sic] reason why it made its decision. However, the words of that email make it quite clear that the tenant was at home. That email said, " … to attend today 6/11 - 9 am, on attendance tenant has advised shower screen doors are no longer there and gave them to his lawyer". That was a clear statement that I was home and so the Tribunal made an error of law by concluding that the email from Maybury Maintenance is connected to the invoice for $190.19 that says, "Attend property - tenant not home". 3. The Tribunal also had two letters from Compass Housing Services that were entitled, "INVOICE FOR CALL OUT FEE - $190.19" and "CARPET BEING LAID IN THE UPSTAIRS SECTION OF 2/76 " " NEW ROAD LAMBTON". Those letters did not have a date on the top of them. However, on the bottom right hand side of the letters were the words, "Inspection Letter - Feb 2011". The Tribunal in its decision gave weight to these letters by considering whether the shower screens were sent to my lawyer or not. However, the error of law is that the Tribunal did not consider that the contents of the both of those letters refer to events on 6 November 2012 and well as 1 October 2013. None of the events of [sic] described in those letters were on or before February 2011. The Tribunal needed to consider if those letters were fabricated to support Compass's version of events."
After discussing the issue of the comment by the Member that "This is a case where there are conflicting versions of what happened" and further that "The landlord's version is supported by the email from the contractor. The tenant's version is unsupported," Mr Donoghoe submits that "… the evidence taken into account by the Tribunal was not that one piece of corroborating evidence that tip the scales." I take that submission to mean that although the Tribunal accepted the email from the contractor as being sufficient to "tip the scales" in favour of Compass's case, the email cannot have that effect because in fact the invoice related to the visit by Ms. Bentley, not by the Maybury Maintenance contractor. I note that Mr Donoghoe's argument is not that the Member was wrong in deciding the case on the basis of corroborating evidence in a situation where there are conflicting versions of what happened, but that the corroborating evidence was not corroborating evidence at all, for reasons to be discussed now.
Mr Donoghoe returns to this issue in his "Appeal Submissions" filed on 1 May 2014. After repeating his original submissions, Mr Donoghoe goes on to submit in relation to Compass's rights and abilities to gain access by using its own set of keys and also provides some history in relation to the keys. These submissions appear to be by way of alternate submissions, in the event it was found that Mr Donoghoe was not in fact at home on the relevant date, 6 November 2012.
Mr Donoghoe then refers to the visit slip completed by Ms Bentley on 6 November 2012 at 10:46 AM, making it clear that at that time Mr Donoghoe was not at home. It is clear (and is not disputed) that Mr Donoghoe contacted Ms Bentley after that time and made arrangements for her to visit him at the premises later that day. As Compass's submissions make clear, they agree that Ms Bentley did attend later that day and spoke to Mr Donoghoe. The submission Mr Donoghoe wishes to make in regard to that visit slip is that the invoice is actually for Ms Bentley's "appointment" [sic: it was clear there was in fact no appointment, but rather a visit without notice because of an emergency] at 10:46 AM. Mr Donoghoe submits: "That invoice was issued by Compass itself and so there is a direct connection between that invoice and Ms. Bentley's attendance without notice. The invoice is also a contemporaneous record of Compass it in no part of the invoice was any reference to a contractor recorded. Mr Donoghoe then makes the submission that in the urgent circumstances on that day (the date the ceiling collapsed in the lounge room) Ms Bentley could in any case have used the landlord's powers to enter without notice in an emergency: "26. However, I submit that instead of doing so Ms. Bentley instead decided to issue me with an invoice stating "attend property - tenant not home". 27. I submit that Compass tried to improperly charge me for an unannounced visit where Compass had every right to enter the property given the extreme urgency of the ceiling collapse."
Dealing first in relation to the notation "Inspection Letter - Feb 2011" on Compass's letters referred to above, it is clear that the notation is in the nature of a template document identification, not a reference to the contents or date of the document. Indeed, this is obvious from the fact that some of the covering letters used by Compass in communicating with the Appeal Panel and in serving submissions contain the same notation and of course there can be no question that the contents of those letters refer to events prior to February 2011.
It is also clear that therefore there is simply no foundation for Mr Donoghoe's submission that Compass has manufactured evidence and I note that Mr Donoghoe does not appear to maintain that claim in this appeal.
Turning to Mr Donoghoe's submission that Tribunal Member was in error in attributing invoice 350093 to the attendance by a contractor from Maybury Maintenance instead of to the first visit of Ms Bentley in the morning of 6 November 2012, that submission must be rejected.
Compass submits in relation to this appeal that the invoice provided the incorrect description code, namely "attendance - tenant not home" rather than some other appropriate code. Compass did provide to the Tribunal a copy of the email from Maybury Maintenance dated 6 November 2012. This email explains the visit of their contractor and why it was wasted, given that the purpose of the visit was to inspect the shower doors which Mr Donoghoe had already removed from the premises.
It was that document which the member found provided support or corroboration for Compass's version of events, and so for dismissing Mr Donoghoe's claim.
For further clarity, I note that at paragraph 7 of Compass's submissions on Order 2 of the NCAT included in the Appeal Submissions of Compass filed on 12 May 2014, Compass refers to "Invoice 3102462". This is an error. The invoice includes the notation: "Invoice to: 3102462", but the "Invoice No." is "350093". There is no issue in this regard.
Although it is striking that Compass submits that "[w]hen work is undertaken by a Compass contractor, the contractor issues an invoice for work to Compass, Compass will then determine what a tenant charge is and issue a Compass invoice for that amount to the tenant," yet the original contractor invoice was not provided in evidence, nevertheless the member was entitled to accept the evidence of the Maybury Maintenance email of 06 November 2012 as corroborating the evidence of Compass.
Furthermore, the member also accepted the evidence of Compass's representative (Ms. Bentley) that she attended the premises in the afternoon and the tenant confirmed the information in relation to the doors having been sent to his lawyer. This finding in relation to the contractor's visit is a finding of fact by the Member, supported by the evidence from Compass and the contractor, and as such, without more, is not to be overturned on appeal.
The majority reasons find no fault with this decision. I agree with the majority decision in relation to this aspect of the appeal. There is a finding of fact by the member supported by evidence the member found corroborates Compass's evidence. Even if I would not necessarily have come to the same conclusion, that is not sufficient reason to uphold the appeal against Order 2.
The appeal in relation to Order 2 should be dismissed.
Before leaving the appeal against Order 2, it will help clarify some of my reasons in relation to the appeal against Order 1, by referring again to Mr Donoghoe's submissions in the appeal against Order 2. In "Attachment 'A' " to the Notice of Appeal, Mr Donoghoe submitted: "4. The Tribunal in its reasons admitted that there was no direct evidence from the person who allegedly attended on that morning. Then the rest of that part of the reasons could be summed up to a he said she said situation because the Tribunal decided that, "This is a case where there are conflicting versions of what happened". So the reasoning there is that where there is a he said she said situation then the party that provides corroborating evidence wins." That extract will illuminate my findings in relation particularly to adequacy of the reasons. At this stage, I note that in the situation where both parties provided evidence, the member found the evidence was conflicting and, implicitly, without more, Mr Donoghoe would not have discharged his onus to prove his case on the balance of probabilities. In such a situation (a "he said she said" situation), corroborating evidence was required. The respondent provided corroborating evidence which was accepted by the member who therefore found against Mr Donoghoe. In my opinion there is an obvious parallel with the appeal against Order 1, accept that neither Mr Donoghoe nor Compass had corroborating evidence, the result being that Mr Donoghoe did not discharge his onus. I turn now to Order 1.

Order 1: The Rent Reduction Claim

Because of the alleged unpleasant odour and mould on the carpet, Mr Donoghoe claimed that the upstairs portion of his premises was uninhabitable. He claimed a rent reduction of 50% for the period between the date he returned to the premises (10 April 2013) and the date the upstairs carpet was replaced (20 December 2013).
The reasonable calculation of the appropriate proportion of rent reduction is often a factor in such claims but not in this one. The issue before the Appeal Panel is whether the Tribunal should have decided there should have been a reduction at all because the premises were uninhabitable or partly uninhabitable. The Tribunal at first instance deciding in the negative, there was no discussion and no order as to the amount of any reduction.
Why did the Tribunal decide against Mr Donoghoe? The reasons state as follows: That the rent be reduced by 50% for the period 11 April 2013 to 20 December 2013: The tenant says that when he returned to the premises, his use of it was compromised because the carpet had not been replaced. He said that the upstairs area in particular was very smelly. He has provided some photographs of the damage caused when the ceiling collapsed. He says that he was without much of his furniture for some time, and much of it has been destroyed. He says that the carpet was mouldy and he has provided photographs. The landlord does not dispute that the carpet downstairs required replacement, but disputes that the upstairs area or stair area was affected. The landlord also alleges that the delay in replacing the carpet was contributed to because the tenant was abusive to the carpet layers, who refused to return to the premises to complete the laying of the carpet. The initial delays were caused by difficulties between the head lessor and her insurance company. The head lessor was eventually successful in having the insurer replace all of the carpet in the premises. The tenant has the onus of proof in respect of the claim for rent reduction. Whilst the Tribunal accepts that the carpet required replacement (the head landlord was eventually able to convince her insurer that that was the case) there is insufficient evidence to enable the Tribunal to determine the extent to which the tenant's use of the property was affected. The tenant says that he couldn't use the upstairs area, but it was apparently the downstairs carpet which was most affected. The majority of the photos show the damaged areas, but the photos were apparently taken before the repairs to the premises were carried out. The Tribunal notes that whilst the tenant says that he had to stay away from the premises, there is no supporting documentation or other evidence about this. There are no statements from family or friends of the tenant, attesting to the effect of the damaged carpet on the use of the premises. As the tenant has the onus of proof, this claim is dismissed. [Emphasis added]
It cannot be the case that the reasons have led Mr Donoghoe to the conclusion that he needed to adduce evidence to corroborate his uncontradicted evidence, because firstly, his evidence was not uncontradicted and secondly, this issue of supporting evidence was discussed in some detail at the hearing and Mr Donoghoe even gave oral examples of the kind of evidence he could have presented.
It is on the basis of providing supporting evidence that Mr Donoghoe brought this appeal: he says "I can get that supporting evidence" and indeed provides that evidence (or some of it) with his appeal application. Mr Donoghoe claims that until he read the decision, he did not know he could call supporting evidence and if he had known, he would have done so. Unfortunately, Mr Donoghoe has clearly not made that claim good.
First, Mr Donoghoe did present evidence in support of his claim, including photographic evidence. There is no reason given, by Mr Donoghoe, why Mr Donoghoe was able to adduce some evidence, but not to adduce other evidence (although the reason becomes clear when considering Mr Donoghoe's submissions to the Appeal Panel, discussed below).
Second, given the discussion during the hearing in relation to supporting evidence, discussed above, it cannot be the case that Mr Donoghoe did not realise until he read the reasons that he could have brought supporting evidence. It was clear during the hearing that the Member noted there was no supporting evidence and he advised the Member during that discussion that he could obtain that evidence, including naming a particular witness and summarising some of the evidence she could provide. He did not seek an opportunity to obtain that evidence at that time.
Third and in my opinion crucially, when the appeal was listed for hearing on 9 December 2014, Mr Donoghoe made some crucial concessions.
Mr Donoghoe, conceding he had received statutory declarations from Compass prior to the hearing, stated that the person helping him prepare his application advised him not to put in "hearsay information." Mr Donoghoe agreed when it was put to him (by the Appeal Panel) that "[y]ou chose not to put on statutory declarations."
That is, Mr Donoghoe knew the respondent was providing evidence in support of its case from third parties, but made a forensic decision not to provide supporting evidence of that kind, although he knew he could obtain such evidence prior to the hearing, and which he referred to during the hearing.
I agree with the majority reasons at [32[ and [33]. His ground of appeal, that he did not understand the evidence he was required to adduce in order to discharge his onus, does not disclose a question of law.
In any case, his claim that he did not understand he could call such evidence is not accurate, as shown above. His own words during the hearing and during the appeal hearing provide that demonstration.
To the extent that Mr Donoghoe was arguing that the Tribunal should have provided guidance to him about the evidence required, the Appeal Panel rejects that argument.
For those reasons, in my opinion the Appeal Panel should formally find Mr Donoghoe has not succeeded in his ground of appeal in relation to his lack of knowledge about what evidence he could have called. That conclusion appears to me to be implicit in the majority's reasons.

Adequacy of Reasons

The majority find the Member's reasons were not adequate on the basis that "[t]he material findings of fact, the evidence on which those findings were based and the reasoning process that led the Tribunal to form a view that Mr Donoghoe had not discharged his onus in respect of his rent reduction claim is not apparent from the reasons" (at [49] and see also at [40]). I respectfully differ from the majority in that respect.
The majority's central finding is, that it is not apparent from the reasons why Mr Donoghoe's evidence, which was not rejected by the Tribunal or directly contradicted by evidence from Compass, was insufficient to discharge the onus. There are two elements in that finding: first, that the Tribunal did not reject, or did not specifically reject, at least, Mr Donoghoe's evidence, and second, that Mr Donoghoe's evidence was not contradicted.
The first element should be considered against the onus which was on Mr Donoghoe. What was that onus? It is simply that Mr Donoghoe had the duty to prove his case on the balance of probabilities. His evidence had to be sufficiently persuasive to overcome the evidence of the other party, even by a scintilla. Where there are two versions of an event or situation, and neither is or can be preferred to the other, then the party with the onus has failed to discharge that onus. It is not necessary for the finder of fact to reject the evidence of that party. Against that background, the Member's finding that Mr Donoghoe failed to discharge his onus is plain. It is even clearer when regard is had to the recording of the hearing. Without rejecting Mr Donoghoe or accepting Compass, the Member was not persuaded that Mr Donoghoe's evidence was sufficient to prove his case. That is in accordance with decided principle.
In Neville v Lam (No 3) [2014] NSWSC 607, Beech-Jones SCJ said: 97. It is trite to observe that Ms Neville bears the onus of proof on the balance of probabilities. While that is an undemanding standard only requiring a "preponderance" of evidence, the Court must nevertheless "feel an actual persuasion" of the relevant fact's occurrence before it is established, and that cannot be reached by a "mere mechanical comparison of probabilities [independent] of any belief in its reality" … 98. In the context of considering whether Ms Neville has met this standard, four points should be noted. 99. First, in some circumstances a Court may find itself unable to choose between competing versions. In such a case, the party upon whom the burden of proof lies will have failed to discharge it (Moukhayber v Camden Timber & Hardware Co Pty Ltd [2002] NSWCA 58 at [25] per Heydon JA; Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955 to 956 per Lord Brandon). [Emphasis added]
In McLennan v Nominal Defendant [2014] NSWCA 332 Emmett JA said: Further, the legal concept of proof of a case on the balance of probabilities must be applied with common sense. Before a trial judge finds that a particular event occurred, he must be satisfied on the evidence that it is more likely than not to have occurred … That is particularly so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden (see Rhesa Shipping Co SA v Edmunds ("The Popi M") [1985] 1 WLR 948 at 955-6). [Emphasis added]
The principle in Rhesa has also been approved by the High Court in Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363; 208 ALR 1; 78 ALJR 1031 per the full court: [60] In general, disbelief in a witness's evidence does not establish the contrary. Similarly, disbelief in the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. In particular cases it may not be possible to reach a conclusion either way49: "[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden." [Footnote 48 not included. Footnote 49 was the reference to Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 per Lord Brandon from which the extracted portion was taken. Emphasis added.]
It is implicit in the Member's finding that she could not choose between the competing versions. In my view this is made explicit having listened to the recording. While discussing this issue with the parties, the Member said: "The problem with smells is that they are incredibly subjective, and you can't bring evidence of them to the Tribunal. … So it's very difficult for the Tribunal to make a decision when I've got evidence from two parties: "I say it was really really smelly obnoxious odour" (or whatever it might be) and the other party says "I didn't see it that way". That is simply a statement that the member was not persuaded by either party's evidence on that point. It demonstrates why the member found that Mr Donoghoe did not discharge his onus of proof.
The Second element in the majority's reasons is: why should Mr Donoghoe have been required to provide supporting documentation if his evidence was not contradicted? The answer to that question is also clear from the recording of the hearing. Mr Donoghoe's evidence was contradicted. Mr Donoghoe gave evidence as stated in the reasons extracted above and Compass replied: "It definitely wasn't uninhabitable, I couldn't smell anything."
Compass's representative also gave evidence of her inspection of the premises, including the upstairs area.
As another example of such contradiction, also mentioned in the majority reasons, at [36] and [37], is the allegation by Mr Donoghoe that he tried to complain about the upstairs being unusable, but got no reply. This was directly contradicted by Compass in the hearing. Indeed, it is striking that Mr Donoghoe does not refer to any evidence in support of such complaints from the date he returned to the premises until the amended application the subject of this appeal. I note that Compass submits that in July 2014 he brought an application in the Tribunal because he had lost television reception, but makes no complaint that his premises are half unusable, either at that time or later, until he amended the subject application.
Therefore, it is quite clear from the reasons and from the discussion in the original hearing extracted above, the Tribunal required some supporting evidence of some kind from Mr Donoghoe, because he was the party with the onus, in order to find his evidence more persuasive. It is not necessary that the evidence of either party be specifically rejected as false or unreliable or that it should not be accepted unless it was corroborated. This is the principle in Rhesa referred to above.
The majority decision states: "[t]he fact that Mr Donoghoe states that he did not understand the evidence he needed to adduce given the conclusion he had not discharged his onus of proof demonstrates the inadequacy of the reasons." [Emphasis added.] In fact, Mr Donoghoe clearly did understand the evidence he needed to adduce, but he elected not to call such evidence. It is not related to any finding by the Member, or understanding (or lack of it) by Mr Donoghoe, that he had to call that evidence because he failed to discharge his onus. That is putting the litigation process back to front. A litigant prepares his case in full knowledge that he has to prove his case on the balance of probabilities and therefore calls all available relevant evidence, or at least so much of it that the litigant is satisfied the case is properly prepared.
It is that fact of Mr Donoghoe's evidence being contradicted which resulted in the Member being "unable to choose between competing versions."
At [49] of the majority decision, it is stated that there was no testing of the evidence by the either party or by the Tribunal. It is not clear whether that is further support for the majority finding that the reasons are inadequate. There is no duty, in my view, that the Tribunal is required to advise or direct the parties how to conduct their cases by suggesting they cross-examine the other party or the other party's witnesses, just as there is no requirement that the Tribunal advise or direct a party as to what evidence that party should seek to adduce. There is no duty of the Tribunal to test the evidence by conducting such a cross-examination on its own behalf.
Even if I am wrong in that regard, in any case it is apparent from listening to the recording that in fact the Member did test the parties' evidence, by referring to the difficulties in accepting subjective evidence and permitting the parties to respond. That is precisely how the issue of further evidence actually arose during the hearing.
The suggestion, at [51] of the majority reasons ("having regard to the statement in the reasons to the effect that Mr Donoghoe's uncorroborated evidence was insufficient to discharge his onus of proof…may disclose an error of law because it suggests the Tribunal may have erred by imposing a standard of proof in Mr Donoghoe that was over and above the civil standard") requires comment.
First, there is no mention in the Member's reasons referring to "uncorroborated evidence" being insufficient to discharge his onus of proof. The Member simply stated that "there is insufficient evidence to enable the Tribunal to determine the extent to which the tenant's use of the property was affected." That is the reason the Tribunal found Mr Donoghoe had not discharged his onus of proof: his evidence was insufficient. As noted above, it was not necessary for the Tribunal to reject his evidence in circumstances where it was contradicted by Compass's evidence.
Secondly, I can find no suggestion in the Member's reasons that a standard over and above the civil standard has been implied or applied. There is no such suggestion, implicit or otherwise. The Member applied the appropriate standard in relation to Order 2, which did depend on corroborating evidence in circumstances where the member was not persuaded by either party, and the majority finds no fault with that finding.
Finally, in regard to the issue of adequacy of reasons, I am not aware of any rule of law or statutory prescription, that it is the role of an appeal panel to propose an appeal be upheld on a ground not only not raised by an Appellant (even allowing for the difficulties there may be of discerning from an Appellant's grounds of appeal just what the grounds really are), but which is specifically and categorically denied by Mr Donoghoe to be a ground of his appeal.
That is what Mr Donoghoe has done in this appeal. At [42] of the majority reasons it is stated: "Mr Donoghoe did not raise an issue about the adequacy of the reasons in his notice of appeal but this does not preclude the Appeal Panel from identifying such a deficiency as an appropriate ground of appeal in the circumstances of the case."
I agree with that statement, particularly in circumstances where an unrepresented Appellant may provide grounds of appeal and submissions lacking clarity. But Mr Donoghoe went beyond "not raising an issue" about the adequacy of reasons. During the appeal hearing on 9 December 2014 he stated in terms there was "no issue" in relation to adequacy of reasons. He insisted his appeal was related to being given the opportunity to adduce additional evidence.
Furthermore, Mr Donoghoe has demonstrated his understanding of the reasons in such a manner that there is no question of the Member having "apparently led Mr Donoghoe to the conclusion, wrongly in our view, that he needed to adduce evidence to corroborate his uncontradicted evidence" [Emphasis added.] as the majority expresses it at [41]. Mr Donoghoe's understanding of the issue, including the onus being on Mr Donoghoe to prove his case on the balance of probabilities where there is in fact conflicting evidence, is clearly demonstrated in his submissions in relation to the appeal against Order 2 as referred to above: "So the reasoning there is that where there is a he said she said situation then the party that provides corroborating evidence wins." [Emphasis added.] It cannot be stated that Mr Donoghoe somehow did not know or did not understand the issue of inadequate reasons: he clearly did so and agreed that the reasons were sufficient for him to understand why the Member made the decision she did.
In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel stated: 12 In circumstances where the Appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to Compass. The issue arises, according to that statement, where an Appellant is not legally represented and so an appeal panel can or should look at the grounds of appeal to determine whether a question of law has been raised. No such question in relation to adequacy of reasons (which is, of course, a question of law) has been raised by Mr Donoghoe. This is not an appeal in which it can be stated: "what Mr Donoghoe is really trying to say, in his unclear Notice of Appeal and/or appeal submissions, is that the reasons are inadequate, he can't understand from the reasons why his application was dismissed". To the contrary, as shown above.
For those reasons, I find that the reasons provided by the Member are not inadequate. I am supported in that conclusion by Mr Donoghoe himself.
Adequacy of reasons is frequently mentioned in superior court decisions and previous decisions of the Appeal Panel of this Tribunal.
The majority decision refers to Collins v Urban [2014] NSWCATAP 17 and Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA.
In my view the principle to be derived from those decisions has been applied by the Member in this instance. As I have set out above, the process of reasoning is clear, the findings of fact said to be missing are in fact not required and the reasons comply with the requirements to demonstrate the reasoning process.
The Appeal Panel in Collins v Urban also made reference to a recent Court of Appeal decision as follows: 53 The other basis upon which it has been held that reasons are generally required to be given was recently reiterated by the Court of Appeal in Keith v Gal [2013] NSWCA 339 (per Gleeson JA at [109]) as being that failure to provide sufficient reasons promotes "a sense of grievance" … To the extent that there is completely missing in this current appeal any "sense of grievance" in relation to the adequacy of the Member's reasons, I suggest that also confirms the reasons are not in fact inadequate.
In Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115; (2005) 218 ALR 733; (2005) 79 ALJR 1366, Kirby J stated: [64] Conclusion: reasons adequate: Upon this basis, it may be accepted (as the primary judge concluded in the Federal Court) that the reasons of the Tribunal were brief. However, that is not necessarily a flaw in the context of such a busy administrative tribunal. Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the "real issue" presented by the contest between the parties. [Footnotes omitted. Emphasis added.]
The majority judgement simply stated: [19] One of the appellant's arguments advanced in the Federal Court was repeated in this Court, that the paucity of reasoning on the part of the Tribunal was so deficient as to constitute error of law. It should be rejected. Sufficient appears from the judgment of the Tribunal to enable the courts below, and this Court to understand, and to deal with the reasoning and decision of the Tribunal
In my opinion, to require the member to have stated in her reasons that "I was not persuaded by Mr Donoghoe's evidence that the premises were uninhabitable," or that "I am unable to choose between Mr Donoghoe's and Ms Bentley's versions" would be an example of "pernicketyness." That is because taken together with the transcript of the hearing, the member's reasoning process is quite plain to me. As Mahoney JA stated in In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271: In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reasons, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion. [Emphasis added]
In Todorovic v Moussa [2001] NSWCA 419 (Beazley JA, Powell JA in agreement, Sperling J in agreement except in relation to some points not relevant) said: Failure to Give Adequate Reasons for Decision 37 The judicial obligation to give reasons is well travelled territory. The reasons need not be elaborate, but "it is necessary that the essential ground or grounds upon which the decision rests should be articulated": Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280. Kirby P further explained the requirements in Palmer v Clarke (1989) 19 NSWLR 158 at 170: "… it is not the obligation of a judge to give a jurisprudential exposition with every judgment. Nor is it the judge's duty to regurgitate evidence or state every step in the reasoning process, however remote that step may be to the ultimate conclusion. It is sufficient that the obligation be discharged by the judge for the purposes for which it is imposed by law. Those purposes were stated clearly in Soulemezis (at 279). …" I note also that McHugh JA's decision in Soulemezis agreed with Mahoney JA.
In this appeal, the "real issue" is whether Mr Donoghoe has proved his case on the balance of probabilities. The reasons make clear, in specific words, that Mr Donoghoe failed to provide sufficient evidence to prove his case. That is the real issue. That is the finding of fact required to ground the decision. As explained above, it was not necessary for the Member to make any further finding of fact in relation to the evidence called by each party. The reasons therefore comply with the standard applied in Roncevich and the other decisions mentioned above. This is particularly so given the nature of the matters determined by the Consumer and Commercial Division and the conditions under which those determinations are made.
I would order that the appeal in relation to Order 1 is dismissed.
Dr J RENWICK, Senior Member: I have had the advantage of reading the reasons of the other members of this Appeal Panel.
I agree with the ultimate conclusions of the Principal Member in relation to both grounds of appeal and the orders she proposes but prefer to express my reasons as follows.
In relation to the First Ground of Appeal, I agree with the Principal Member that the reasons given below for rejecting Mr Donoghoe's evidence exhibit an error of law essentially because they do not explain why his evidence was rejected. A failure to give reasons as required by law amounts to an error of law: Collins v Urban [2014] NSWCATAP 17; Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13].
That being so, the sole remaining question is whether that was a ground of appeal raised by the Appellant, taking a generous view of Mr Donoghue's Notice of Appeal filed and the submissions filed by him in support. It did not do so. The appropriate course to take, in order to provide procedural fairness to the parties and to ensure that there was a properly formulated question of law, that being the subject matter of the appeal (see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 per Leeming JA at [3]) was to have the Registrar write to the parties raising this issue as has now occurred. The response to the Registrar's letter provides no reason to alter my concurrence with the Principal member on this point.
In relation to the Second Ground of Appeal, I adopt the reasoning of the Principal Member.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 22 May 2015

Donoghoe v Compass Housing Services

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