Eishou v NSW Land and Housing Corporation

Scope and nature of internal appeals

1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 20 September 2022. That section provides as follows: (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
2. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law which include whether there has been a failure to provide proper reasons.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in s 12(1) of Sch 4 of the NCAT Act.
4. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
5. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of s 12(1) of Sch 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
6. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of s 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
7. In Collins, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
8. In the NCAT Act, s 41 provides that the Tribunal may grant an extension of time and the relevant considerations as to the exercise of the discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22] and they are as follows: (1) Is there proof that strict compliance with the rules will work an injustice on the applicant? (2) In the context of a pending appeal, the expiration period for the appeal gives a vested right to retain the decision in question with the consequence that the time for appealing should not be extended unless the proposed appeal has prospects of success. (3) It will usually be necessary to consider: (a) the length of the delay, (b) the reason(s) for the delay, (c) the applicant's prospects of success, ie whether there is a fairly arguable case, and (d) the extent of any prejudice suffered by the opponents. (4) If the explanation for the delay is less than satisfactory and/or if the opponent as a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable.

Hearing

1. The documents upon which the parties relied were identified, as follows: 1. the Notice of Appeal, and accompanying documents, 2. the Reply to Appeal and accompanying submissions, 3. the appellant's documents, received on 30 November 2022, 4. the respondent's documents, received on 14 December 2022, and 5. The appellant's documents in reply, received on 15 December 2022.
2. After identifying the documents and ensuring that each party had received a copy of the other party's documents, an opportunity was provided for oral submissions from both parties, following the usual sequence of appellant then respondent then appellant in reply so that each party had an opportunity to speak in support of their case and to respond to the case of the other party.
3. It is convenient to here note that the Notice of Appeal was lodged on 5 October 2022, which could be said to be outside the 14-day period specified in s 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules) as the decision challenged was made on 20 September 2022. When this matter was raised with the respondent's lawyer, he indicated that he did not take the point that the appeal was out of time. Rather than dismiss the appeal on a technicality, as it appears to have been lodged only one day late, we consider it appropriate to grant an extension of time.
4. Further, when the question of whether to remit or reconsider the set aside application in the event the appeal was allowed was raised, both representatives favoured reconsideration rather that the additional time and cost of remitting the set aside application.

Tenant's submissions

1. The Notice of Appeal specified four grounds: (1) a failure to provide proper reasons, (2) failing to take a relevant consideration into account, (3) identifying the wrong issue or applying the wrong principle of law, and (4) making a decision that was so unreasonable that no reasonable decision-maker would make it. Those matters are referred to below as Grounds 1 to 4.
2. In that Notice of Appeal, leave to appeal was also sought in the basis that: (1) the decision was not fair and equitable, (2) was against the weight of the evidence, and (3) significant new evidence is now available that was not reasonably available at the time of the hearing. Those matters will be referred to as Grounds 5 to 7.
3. The written submissions for the tenant may be summarised as follows: 1. An appeal against a set aside decision does not require leave to raise a question of law: Hammond v Ozzy's Cheapest Cars Pty Ltd t/a Ozzy Car Sales [2015] NSWCATAP 65 (Hammond) at [40]. 2. The challenged reasons did not (a) set out the findings on question of fact, (b) reveal an understanding of the applicable law, and (c) disclose the Tribunal's reasoning process, being matters suggested in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 as constituting the minimum requirements for reasons. 3. There was nothing in reasons to indicate any consideration of the matters said in Jackson to be relevant to determining whether to grant an extension of time. 4. The decision was confined to a finding that the landlord had provided "cogent reasons" in support of the set aside application but failed to consider matters such as whether the landlord had an arguable case and the question of prejudice. 5. Since the documents submitted by the tenant contradicted the suggestion that the landlord was not aware of the application prior to receiving the orders and reasons following the 29 July 2022 hearing, the decision made was so unreasonable that no reasonable decision-maker could have reached that decision. 6. It was not fair and equitable to find that the landlord was unaware of the application until after the final hearing when the tenant's documents established awareness of not only the application but also the hearing date. 7. The written reasons for the 29 July 2022 decision and the recording of that hearing, which were not sent to the parties until 4 October 2022, provided additional information relevant to the set aside application.
4. The documents provided in addition to the written submissions included a copy of the "Outline of submission" dated 12 September 2022 that were submitted for the landlord in support of the set aside application, which submission included the following paragraph: The Land and Housing Corporation [was] not aware of the application and hearing. The first knowledge of the agent becoming aware of the [tenant's] application was when the Notice of Outcome was emailed from Mr Eishou's advocate, to the relevant local office in Surry Hills on Monday 1 August, 2022.
5. A copy of the "Tenant's Response to Set Aside Application" and accompanying documents was also provided. The written submissions, at [4]-[11], responded to the claim made in the two sentences quoted in the previous paragraph and attached copies of documents, each sent and received in 2022, which may be summarised as follows: 11 May Ms Turner, a case worker at Neami National sent an email to Ms Pope and Ms Zaarour "@facs.nsw.gov.au" which included the words: "The hearing is on May 25th @ 11.15 & I've attached the details." The attachments were a support letter and the Hearing Notice. 8 June Ms Pope emailed Ms Collins and "T103", both "@facs.nsw.gov.au", attaching a copy of her 3 June submissions and a list of case references under the heading "SH 22/16891 Eishou v NSW Land and Housing Corporation". 30 August Ms Pope emailed Ms Collins and Ms Dowall, noting that the landlord was ordered to pay the tenant compensation by 29 August, and Ms Dowall replied, indicating that a stay had been sought as part of the set aside application. 2 September Ms Pope emailed Mr De-Villiers, "@facs.nsw.gov.au", raising non-compliance with orders. 5 September Mr De-Villiers replied: non-attendance at the hearing was because "the Notice was sent to an Ashfield address (not the local office)".
6. The tenant's documents received on 30 November 2022 included a copy of an internet search which revealed the landlord's head office address to be "PO Box 4009 Ashfield B C NSW 1800".
7. Those documents also included a USB stick, containing a recording of the hearing on 29 July 2022, and a transcript of that recording. It is noted that, (1) at the outset of that hearing the Tribunal member rang the landlord's Ms Dowall who did not answer her phone, and (2) that member suggested Ms Hopley had appeared for the landlord on 25 May 2022.
8. In her oral submissions, Ms Pope dealt briefly with each of what are being referred to as Grounds 1 to 7.
9. As to Ground 1, reference was made to what was said in Antonio v Trotter Automotive Pty Ltd [2019] NSWCATAP 140 at [43]-[44] and to Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [57]-[59]. After referring to the documents provided in opposition to the set aside application, it was submitted that saying there were "cogent reasons" was insufficient, and that no reasons had been provided in relation to the decision to grant the landlord an extension of time for the lodgement of that set aside application.
10. When dealing with Ground 2, it was indicated that the landlord failed to pay the required fee for the set aside application and it was suggested that fee was only paid when Ms Pope drew that matter to the landlord's attention.
11. After dealing with each Grounds 2 to 6, Ms Pope drew the Tribunal's attention to the written reasons, provided on 4 October 2022, which incorrectly referred to her as Ms Hopley (at [8]). The question of whether Ms Hopley attended on 25 May 2022 was also raised.

Landlord's submissions

1. The Reply to Appeal contended that the appellant requires leave to appeal since the decision was ancillary and that no proper basis has been shown for leave to be granted. Further, that there is no express statutory duty to give reasons and that any absence of reasons does not indicate the Tribunal fell into error. The respondent's case was put on the basis that the decision was open on the material submitted.
2. Submissions were also made in opposition to the claims that the decision was not fair and equitable and was against the weight of the evidence. By reference to s 12 of Sch 4 in the NCAT and the decision in Collins, it was suggested that leave should not be granted in relation to those grounds.
3. The landlord's written submissions included a sentence which said: "On 25 May 2022, the parties (and/or) their representatives) attended a conciliation and hearing before the Tribunal". It was contended that the challenged decision was an interlocutory decision, with the meaning of s 4 of the NCAT Act, with the result that leave was required.
4. After referring to what was said by Ward JA (as her Honour then was) in Orr, and in Collins, it was suggested there was no duty to give reasons in this instance. Reference was also made to Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 223 CLR 475 at p504 per Kitto J: What the law requires in the exercise of quasi-judicial function is judicial fairness. That is not a label for a fixed body of rules. What is fair in a given situation depends upon the circumstances.
5. It was suggested that the indication that the application has been considered was sufficient, that there was nothing to suggest a failure to direct attention to the relevant legal principles, that there was no obligation to provide reasons for every interlocutory decision, and that the tenant had not demonstrated that he suffered any "practical injustice". Simply stated, the landlord's case was that the reasons met the minimum acceptable standard. Further, that the decision to extend time did not mean that there had been a failure to consider relevant or mandatory considerations and that the lack of reference to the tenant's submissions did not mean they had not been considered.
6. It was contended there was nothing in the tenant's documents to indicate that Ms Collins and/or T103 were aware of the 29 July 2022 hearing, that Ms Collins did not have carriage of the matter, and that the landlord "has maintained throughout that it was not aware of the hearing on 29 July 2022 until Ms Turner forwarded a copy of the orders to the DCJ tenancy team on 1 August 2022."
7. A submission was also made that the decision to set aside the substantive decision was not outside the range of possible, acceptable outcomes, by reference to Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li).
8. The landlord's case was summarised in the proposition that the reasons of an administrative decision-maker are primarily to inform and not to be scrutinised in an over-zealous manner. The case of Minister for Immigration v Wu Shan Liang [1996] HCA 6 at [31] were cited in support of that contention.
9. In his oral submissions, Mr Lee reminded the Tribunal of some of the principles set out in Orr at [77], namely that reasons (1) should not be read in isolation, (2) should read fairly and as a whole, and (3) should not be read with a fine-toothed comb with a view to identifying error. He also referred to Hammond at [78] and [80], and to Li at [70] which is set out below: As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
10. After referring to Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at p626, it was suggested that it was open to the Tribunal to be satisfied that the landlord had not received the notice of hearing. Reliance was also placed to what was said in Collins at [59]-[64], as to the context of decision-making in residential tenancy matters in the Tribunal, and to Evans v The Queen [2007] HCA 59 at [246]-[247] to the effect that any failure to give reasons would only be relevant if there was a miscarriage of justice which would not arise if the ruling made was correct.
11. It was contended that, in this instance, the 29 July 2022 decision caused significant prejudice to the landlord and that an oversight should not be permitted to result in injustice.

Submissions in reply

1. The written submissions in reply served to provide a copy of an email sent by Ms Turner, at 3.02pm on 25 May 2022, to T103, Ms Zaarour, and Mr Clinch (each @facs.nsw.gov.au). That email was headed "SH 22/16891 - Valter Eishou vs NSW Land and Housing Corporation- T103" and the body of that email said: "Please find attached Notice of Order". A copy of that attachment/order was also provided.
2. When provided with an opportunity to speak in reply, Ms Pope noted that the landlord's case had shifted from suggesting that the landlord was not aware of the application until after the hearing, as suggested in support of the set aside application, to suggesting in this appeal that the landlord had not received notice of the hearing on 29 July 2022.
3. It was noted that documents had been addressed to T103 and sent to T103, being the landlord's Surry Hills office. Further, that even if the landlord had not received the notice of hearing the landlord could and should have inquired as to the date of the hearing, having regard to the documents provided to it by the tenant's representative.

Relevant law

1. The Tribunal's power to set aside a decision are found in s 9(1) of the Civil and Administrative Tribunal Regulation 2013 (the Regulations): In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
2. When s 9(1)(b) is under consideration, three issues require consideration: 1. whether the decision was made in the absence of a party, 2. whether that party's absence resulted in the party's case not being adequately put to the Tribunal, and 3. by reason of the words "the Tribunal may order", whether the Tribunal's discretion should be exercised in favour of setting aside the decision.
3. As to the exercise of that discretion, Hammond at [80] makes it clear that the question is whether there would be a real likelihood of injustice if the decision was allowed to stand and that relevant considerations will generally include (1) why the party was absent, and (2) whether the absent party has an arguable defence or an arguable case that a different decision could have been reached.
4. In the NCAT Act, s 62, which is titled "Tribunal to give notice of decision and provide reasons on request", provides: (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.
5. In this appeal, the focus was on the three requirements of s 62(3).
6. The leading case on the obligation to provide reasons for a decision is Orr in which Bell P (as his Honour then was) set out the relevant principles, at [65]-[77]. So far as is presently relevant, those principles are summarised below: 1. The available time a Tribunal member has for the preparation of reasons is a relevant consideration: [65]. 2. On appeal, the question is whether the minimum acceptable standard has been met: [66]. 3. Transparency is important but parameters of quantity and quality can be considered: [67]. 4. The quality (or detail) of reason may vary, depending on the nature of the question being decided, noting that "even superior courts are not required to give reasons for every interlocutory decision": [68]. 5. The question of the level of detail of the reasons for a discretionary decision needs to bear in mind that there is no appeal from a decision of the Tribunal, without leave, other than on a question of law: [69]. 6. The sheer volume of work undertaken by Tribunals may warrant a "more relaxed standard of review of reasons": [70]. 7. Having regard to those matters, the minimum characteristics that a Tribunal's reasons must possess are: (a) findings on material questions of fact, (b) an understanding of the applicable law, and (c) the reasoning process which led to the decision in question: [71]. 8. Those three matters, set out in s 62(3) of the NCAT Act, provide a useful starting point but "still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed": [72]. 9. A basis explanation of the fundamental reasons which led to the decision is necessary: [73]. 10. Reasons need only go so far as to indicate why the decision was made, to allow an exercise of any right to challenge that decision: [74].
7. House v The King [1936] HCA 40; 55 CLR 499 (House) at p505-506 established that when there is an appeal from the exercise of a statutory discretion, that decision can only be overturned in limited circumstances. In Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 (Hannaford) at [14] those circumstances were summarised as where the decision maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.

Consideration

1. Events relevant to this appeal, all in 2022, may be summarised as follows: 19 Apr Application lodged by tenant 28 Apr Notice issued by Tribunal for 25 May conciliation hearing 11 May Email to landlord's Ms Zaarour, noting hearing day/time 25 May Initial hearing, application amended, directions made 25 May Copy of the orders emailed to the landlord at 3.02pm 7 Jun Notice issued by Tribunal for 29 July contested hearing 8 Jun Email to landlord's Ms Collins, attaching submissions 29 Jul Final hearing, orders made, reasons published 3 Aug The landlord requested written reasons for that decision 12 Aug Set aside application signed and subsequently lodged 29 Aug Due date for payment of money order 30 Aug Tenant's representative followed up non-compliance 1 Sep Registry received set aside application, but no fee 5 Sep Fee for set aside application paid 8 Sep A stay order was made in respect of the money order 20 Sep Set aside application allowed 4 Oct Written reasons provided for orders made on 29 July 5 Oct This appeal was lodged
2. The orders made on 25 May 2022 were, omitting the notes which followed those orders: 1. By determination of member, on 25 May 2022 the hearing was adjourned to a date to be fixed by the Registrar. A separate written notice of the new hearing date will be sent to you in the near future. 2. The application is amended to allege a landlord's breach of RTA s 63 with a claim for money and compensation under s187(1)(c) and (d). DIRECTIONS 3. By 5pm today the applicant is to email a copy of these Orders and Directions to the respondent. 4. By 1/6/22 the respondent is to send an email to the Registry with a copy of the applicant, advising an email address for service of future Notices, and a contact name and direct telephone number (landline or mobile, not a reception … or 1300 number) for the person who will represent the respondent at the hearing. 5. By 8/6/22 the applicant must file with the Tribunal Registry by courier, hand delivery or post and serve on the other party ("file and serve"), a copy of any documents or any further documents (see note below) on which the party intends to rely at the hearing. 6. By 22/6/22 the other party must file (by post) and serve, a copy of any documents or any further documents (see note below), on which the party intends to rely at the hearing.
3. The orders made on 29 July 2022 are quoted below: 1. The landlord, NSW LAND AND HOUSING CORPORATION- T103, PO BOX 4009 ASHFIELD B C NSW 1800 Australia, is to pay the tenant, VALTER EISHOU, … CLOVELLY NSW 2031 Australia, the sum of $12,850.12 on or before 01-Nov-2022… 2. The Tribunal orders that the respondent(s); NSW LAND AND HOUSING CORPORATION- T103 PO BOX 4009 ASHFIELD B C NSW 1800 Australia is to cause the undertaking of the following work in a proper and workmanlike manner on or before 01-Nov-2022…
4. Written reasons for those orders were subsequently prepared and were published on 4 October 2022. Although the heading correctly records the representation, namely Ms Pope for the tenant and no representative for the landlord, there is a reference to Ms Hopley at [8] which should be a reference to Ms Pope. Those reasons, which set out the basis for the work order any money order made on 29 July 2022, have not been challenged by the landlord as this appeal is confined to the tenant's challenge to the 20 September 2022 decision to set aside those orders.
5. The orders and reasons dated 20 September 2022 read as follows: 1. The application to set aside the decision in matter number SH22/16891 has been considered and the following orders are made: The time to make the application to set aside is extended to 12/8/22 Orders 1 to 2 (inclusive) made on 29/7/22 in matter number SH22/16891 are set aside. Reasons: 1. The Tribunal is satisfied that the decision was made in the absence of the Applicant. 2. The Tribunal is satisfied that the party's absence resulted in the party's case not being adequately put to the Tribunal: 3. In the exercise of discretion, the Tribunal is satisfied that it is appropriate to set aside the decision because: the applicant has provided cogent reasons to explain the non-attendance.
6. The most significant feature of the set aside application was that the landlord's written submissions, dated 12 September 2022, included a paragraph, quoted in [19] above, which suggested the landlord was not aware of the tenant's application until 1 August 2022 when it received notice of the orders made on 29 July 2022. That would provide a cogent reason to allow the set aside application.
7. However, that suggestion was plainly incorrect as the documents submitted by the tenant in response to the set aside application clearly show, notably the emails dated 11 May 2022 and 8 June 2022. Further, the set aside application only referred to the money order (not the work order) and, when indicating the case which the landlord wished to put, only referred to the work order (not the money order) with the result that no defence or case was advanced against the order challenged, which was only the money order.
8. We are of the view that it would not be fair and equitable to set aside a decision when the most significant feature advanced in support of the set aside application was not correct.
9. Further, when those contemporaneous emails are weighed against the mere claim made in the landlord's submissions, the set aside decision was against the weight of the evidence.
10. Thirdly, since neither the recording nor the transcript of the 29 July 2022 hearing was available when the set aside application was being allowed on 20 September 2022, that constitutes fresh evidence which reveals that the Tribunal member presiding at the hearing on 29 July 2022 attempted to ring Ms Dowall, being the person who signed the landlord's submissions in support of the set aside application.
11. Being of the view that s 12(1) of Sch 4 of the NCAT Act is satisfied, it is necessary to consider whether leave to appeal should be granted. The decision in relation to the set aside application was obviously based on a factual error that was clearly mistaken, not due to the fault of the member considering the set aside application but because that member was provided with incorrect information. Also, there is a clear injustice when a decision to set aside an order is based on incorrect information provided in support of that application.
12. Accordingly, we are of the view that leave should be granted, and the appeal should be allowed. As a result, it is not necessary to deal with each of the grounds raised by the tenant in this appeal.
13. An alternative line of reasoning which leads to the same result is that the consideration of the set aside application involved an exercise of discretion which should only be overturned if one of the categories established by House and summarised in Hannaford is present.
14. In this instance, we consider there was a material error of fact in that what was suggested to the decision-maker, namely that the landlord did not know of the application until it learned of the orders made at the final hearing, was incorrect. Further, it appears that there was a failure to give sufficient weight to the emails which contradicted that suggestion. Those matters created an unjust result even though the error does not explicitly appear in the reasons provided because the most significant cogent reason for granting the application was clearly the claim that the landlord did not know of the application until after the hearing.
15. Although the outcome of this appeal does not require a decision whether the reasons provided were adequate to determine the outcome of this appeal, it is desirable to deal with the submissions put on that issue as that raises a question of general importance.
16. Just as there are phrases which are individually valid but conflict, such as "too many cooks spoil the broth" and "many hands make light work", so there are judicial pronouncements which are individually valid but conflict. The resolution of that conflict is aided by a consideration of the context.
17. The matters revealed by the case law which suggest the reasons provided in this case were adequate include the fact that even superior courts are not required to give reasons for every interlocutory decision, the volume of work and available time, plus the ability to request written reasons provided by s 62 of the NCAT Act.
18. By reference to the numerous decisions on the question of adequacy of reasons, the matters which suggest the reasons provided in this case were not adequate are the lack of reasons in relation to the extension of time, the reference to there being "cogent reasons" without indicating what those reasons were, the absence of what Orr suggested are the minimum requirements, and the need to enable the exercise of the right to appeal.
19. As to the context of the set aside decision which is challenged in this appeal, the Consumer and Commercial Division of the Tribunal receives and deals with more than 50,000 applications each year: more than 30,000 of those applications relate to residential tenancies and, in addition, more than 10,000 relate to social housing. Every time a respondent does not appear raises the prospect of a set aside application. Plainly, such applications are high volume work, as was the case in Collins.
20. While compliance with the relevant law is an indisputable requirement, an unduly legalistic approach would result in a greatly increased workload for Tribunal members who deal with set aside applications.
21. On the other hand, set aside applications cannot become "tick the box" applications because they involve the exercise of a discretion and that discretion must be exercised judicially.
22. In the Regulations, s 9 operates to impose three necessary considerations. The first, that the decision was made in the absence of the party, will usually be easily established and is rarely in dispute.
23. Secondly, did the absence of a party have the consequence that the case of that party was not adequately put to the Tribunal. Again, that can be a straightforward matter when no documents have been lodged and the absence meant that no oral submissions could be made. However, there may be a case where a party has lodged both documents and submissions in support of the case that would be made if the absence had not occurred, and it is possible that the case of an absent party could be said to have been adequately put to the Tribunal.
24. Once those two tests are met, being the requirements imposed by s 9(1)(b), the third question becomes how the discretion conferred by the inclusion of the word "may" in s 9 should be exercised. The decision in Hammond, at [80], suggests a need to weigh up matters which include (1) why the party was absent, and (2) whether the absent party has an arguable defence or an arguable case that a different decision could have been reached.
25. By way of example, a tenant who undoubtedly has significant arrears of rent may be absent from a hearing, but the result would plainly have been no different had the tenant been present. In such situations it is understandable that a set aside application might be rejected in the exercise of that discretion.
26. When considering an extension of time, the practical effect of Jackson is that either a good explanation for the delay or a clearly arguable case will usually be considered sufficient. In like manner, when considering a set aside application, the practical effect of Hammond is that either a good explanation for the absence or a clearly arguable defence will usually be sufficient.
27. When considering an application for costs, the reality is that some applications can be dealt with quickly and easily while other require significant consideration. Likewise, set aside applications vary greatly: some are straightforward; others require a significant amount of work by the Tribunal member to whom they are allocated and, unlike an application that is listed for hearing, no time is allocated for the required work.
28. When assessing expert evidence, the Tribunal is entitled to expect that reasons for any opinion be provided by that expert: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. Similarly, a party is entitled to expect that that reasons for any decision will be provided by the Tribunal, but within reasonable bounds as it is well-established that courts and Tribunals are not required to provide reasons for every matter raised by a party: see, for example, Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2].
29. It is difficult to have a "one size fits all" approach to set aside applications and all that can be done is make some observations in relation to this case: 1. A brief reason as to why an extension of time was granted is desirable unless the position is very clear. 2. The indication that there are "cogent reasons" suggests there are reasons but does not indicate what are those reasons. 3. A suggestion that the landlord could have asked for written reasons under s 62 of the NCAT Act overlooks the fact that s 62(2) is confined by the inclusion of the words "if a written statement of reasons has not already been provided". 4. What was said to be the minimum standard in Orr mirrored the three requirements of s 62(3) of the NCAT Act. The fact that a party who is given oral reasons has a statutory entitlement to receive written reasons covering those three matters provides support for the view that written reasons should cover those three matters. 5. There is a need for reasons sufficient to explain the decision to the unsuccessful party so that any right of appeal may be exercised which must be considered a fundamental test.
30. Having regard to the circumstances of this case, and to the submissions of the parties, we consider the reasons provided in this case did not meet the minimum standard. However, in reaching that view, we do not intend any criticism of the Tribunal member who considered this set aside application because, having been provided with incorrect information, the set aside application was not as clear cut as it appeared due to the landlord's incorrect suggestion it was not aware of the application until after the orders were made. We note that this ground of appeal, failure to provide adequate reasons, does not require leave.
31. As earlier indicated, when an appeal is allowed, s 81 of the NCAT Act serves to provide what may be termed a choice between remitting and rehearing. Since both parties favour the latter option, and since that will save time and cost for both the parties and the Tribunal, we have taken that course.

Reconsideration

1. The submissions of Mr Lee as to why the decision should be set aside were that the landlord became aware of the 29 July 2022 orders on 1 August 2022, requested reasons for those orders on 3 August 2022, and lodged a set aside application on 12 August 2022. He maintained that the landlord had not received a notice of hearing for that hearing on 29 July 2022, indicating "that's my instructions".
2. It was said that the landlord accepts that the work order was warranted but had no chance to respond to the request for a compensation order. He suggested that documents were not provided to the proper person and that there was a strong case for granting the set aside application.
3. Ms Pope indicated that she relied on her original submissions and noted the need to consider why the landlord was absent and whether it had an arguable case. She reminded the Tribunal of what documents were sent, to whom they were sent, and when they were sent. Reference was made to the attempts made by the Tribunal member on 29 July 2022 to make telephone contact so that there was representation for the landlord on that occasion.
4. She maintained that (1) the set aside application was out of time, (2) there had been no good explanation for the absence, and (3) no defence or case had been put forward by the landlord.
5. Bearing those submissions in mind, there can be no doubt that the decision was made in the absence of the landlord. Likewise, it is not in dispute that the landlord's defence or case was not put to the Tribunal. Accordingly, the outcome of the set aside application depends on the exercise of discretion.
6. What was the explanation for the absence? When the set aside application was made, it was contended that the landlord was unaware of the application until 1 August 2022, after the orders were made on 29 July 2022. However, on appeal the landlord's position was that it did not receive the notice of hearing.
7. The following matters are noted in relation to this issue: 1. The application named the landlord as "NSW Land and Housing Corporation- T103" and gave as the address: "PO Box 4009 ASHFIELD. BC 1800 NSW Australia". 2. A Google search reveals that is the correct mail address for the landlord's head office. 3. It is not disputed that T103 is a reference to the correct office for the subject tenancy, ie the branch office which deals with this tenant and tenancy. 4. The notice of hearing for the initial hearing on 25 May 2022 was sent to that address. 5. The landlord's submission for this appeal said, at [3b]: "On 25 May 2022, the parties (and/or their representatives) attended a conciliation and hearing before the Tribunal. The matter did not resolve and orders were made by the Tribunal on the same day." 6. Those orders included an order that the tenant email a copy of those orders to the landlord by 5pm that day and a copy of the email sent at 3.02pm that day, to T103, Ms Zaarour, and Mr Clinch, was provided. 7. As that order would not have been necessary if the landlord had been represented at the initial hearing on 25 May 2022, the better view appears to be that there was no appearance for the landlord on that occasion and that the landlord's submission, quoted above, is not correct. 8. The orders made on 25 May 2022 included leave to amend to obtain compensation which, by reason of the 3.02pm email, was known to the landlord later than day. 9. The orders made on 25 May 2022 included an order which read: "By 1/6/22 the [landlord] is to send an email to the Registry with a copy to the [tenant], advising of an email address for service of future Notices, and a contact name and direct phone number (landline or mobile, not a reception … or 1300 number) for the person who will represent the respondent at the hearing." 10. There is nothing to suggest the landlord ever complied with that order. 11. On 7 June 2022 the Tribunal issued a notice for the 29 July 2022 final hearing which was address in the same manner as the application. 12. While the landlord claims it did not receive that notice, the tenant's Notice of Appeal was sent to the same address and the landlord responded and (a) that is the correct address for the landlord's head office, (b) the reference T103 served to alert the landlord of the correct branch office, (c) the landlord failed to comply with the order made on 25 May 2022 for it to notify the Tribunal of "an email address for the service of future notices", and (d) the Notice of Appeal, which was sent to the same address, resulted in the landlord being represented. 13. On 8 June 2022, complying with order 5 made on 29 May 2022, the tenant's documents were emailed to the landlord, so it was made aware of the tenant's case.
8. It is sufficient to record a finding that, by reason of those matters, the landlord's explanation for its absence is deficient.
9. What was the defence or case that would have been put to the Tribunal? The landlord was aware of the amendment of the tenant's application on 25 May 2022 to seek not only a work order but also a money order because a copy of the tenant's submissions was sent as an attachment to the 8 June 2022 email sent by Ms Pope to both Ms Collins and T103. Further, the time the landlord lodged the set aside application it was aware that the orders made on 29 July 2022 had included both a work order and a money order.
10. In the set aside application, the landlord specified the money order under the heading "Decision you want set aside or varied". However, under the heading "Describe in summary the case (evidence and arguments) you would have put to the Tribunal if you had not been absent. Use a separate sheet if needed" there was only a reference to the work order which sought additional time to comply with that order. As a result, the set aside application indicated a desire to contest the money order but did not disclose any defence or case in opposition to that money order.
11. An assessment of what defence the landlord could have raised requires at least some understanding of the nature of the tenant's claim. From the application dated 19 April 2022, it appears that: 1. The tenant moved into the property in August 2020. 2. There have been severe water leaks resulting in severe black mould and damage to the tenant's property. 3. The damage to the front door was such that it fell apart and by 19 April 2022 there was no longer a front door. 4. There is a hole in the carpark roof, directly below the floor of the subject property which permitted vermin to enter. 5. The issues have been reported and minor repairs have been carried out, but the causes of the problems have not been addressed. 6. The bathroom had not delivered hot water for a number of months before April 2022. 7. The property floods when it rains, there is severe black mould on the walls and in the carpet, which is sodden, the kitchen and bathroom cupboards were falling away from the wall, the windows do not close properly and there was no front door.
12. From the reasons published on 4 October 2022, it appears that: 1. The work order including waterproofing the bathroom floor, replacing water-damaged kitchen cupboard and vinyl floor tiles plus treating all mould-affected areas, replacing the windows throughout the premises, painting ceiling and walls and replacing the carpet in the bedrooms after the waterproofing has been completed, and repairing the garage ceiling plus treating the garage for vermin and pests. 2. The tenant's evidence included photographs and a supporting statement from the tenant's case worker. 3. The presiding member found that "little, if any, effective maintenance of the premises has been carried out for some considerable time and that the applicant's claims are well-founded." 4. There had been a breach of s 50 of the Residential Tenancies Act 2020 (the RTA) and the tenant was entitled to compensation under s 187 of the RTA. 5. That compensation was assessed by reference to a rent reduction of 70% for 12 months, loss of amenity and economic loss (for damage to personal property).
13. Since both the explanation for the delay is deficient and there is no defence or case against the money order disclosed, we do not consider we should exercise our discretion in favour of the landlord by setting aside either of the orders made on 29 July 2022.
14. For the sake of completeness, we note there was a question of delay in lodging the application to set aside which, although dated and filed on 12 August 2022, cannot be considered to have been lodged because the application fee was not paid until 5 September 2022. As the decision challenged was made on 29 July 2022, s 9(3) of the Regulations, required the application to set aside to be lodged within 7 days, ie or before 5 August 2022. Hence the application to set aside was one calendar month late.
15. Normally, that would require an exercise of discretion by reference to the considerations listed in Jackson, set out above. However, it is not necessary to consider whether to grant an extension of time because, even if that issue is assumed in favour of the landlord, that would not alter the outcome of the set aside application or this appeal.

Orders

1. For these reasons set out above, the orders that will be made are as follows: 1. The time for lodging the Notice of Appeal is extended to 5 October 2022. 2. Leave to appeal is granted. 3. The orders made on 20 September 2022 in matter number SH 22/37220 are set aside. 4. The orders made on 29 July 2022 in matter number SH 22/16891 are confirmed but with the date specified in order 1 and the date specified in order 2 both amended to 31 January 2023.

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: 27 January 2023