El-Saeidy v NSW Land and Housing Corporation

NCAT Appeal Panel|2016-07-22

Solicitors: Legal Services Branch, Housing Services, Department of Family and Community Services for the Respondent File Number(s): AP 15/30291 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 15 April 2015 Before: C Bradford (15 April 2015) C Xuereb (29 April 2015) File Number(s): SH 15/14772 SH 15/30181

reasons for decision

The appellant, Mr Fawzi El-Saeidy, is a social housing tenant and appeals the orders of the Tribunal, in the Consumer and Commercial Division, made on 15 April 2015 concerning an application made by the respondent landlord, NSW Land and Housing Corporation (file no SH 15/14772) (the respondent's application). The orders of the Tribunal in the respondent's application were as follows: "1. The application by the respondent [Mr Fawzi El-Saeidy] to adjourn is refused because: a) the respondent was fully aware of the listing today as a result of correspondence sent to him over a period of time in respect of seeking access to the premises and also an order under s51(2)(a) that he keep the property in a reasonable state of cleanliness and mow the lawns. The respondent wished to call expert evidence on this aspect of his application due to the past history of litigation in respect to asbestos. There was an amount of material available to day on the issue and it was not considered that an adjournment was required and in any event the respondent had had notice of the application and what he had to meet. 2. The Tribunal authorises the landlord/s, NSW LAND AND HOUSING CORPORATION or the landlord's authorised contractor to enter the residential premises at 10:00 AM on 30 April 2015 for the purpose of: - inspecting the residential premises for maintenance, repairs or health and safety. - fitting or inspecting smoke alarms. 3. The tenant is not to obstruct the landlord in carrying out these orders. 4. If the landlord cannot gain access to the residential premises on the date agreed or in accordance with the above order, the landlord or their representative may engage a locksmith to gain entry to the premises and if the locksmith alters the locking device the landlord is to provide a copy of the door opening device to the tenant immediately. 5. The respondent Fawzi El-Saeidy is to mow the lawns of the residential tenancy, such work is to be preformed on or before 30 April 2015.

Notice of Appeal

The appellant's grounds for appeal and the grounds on which he sought leave to appeal were contained in a separate handwritten document provided the day after he lodged his Notice of Appeal. The appellant identified his grounds of appeal were as follows: 1. procedural irregularities 2. procedural unfairness - Tribunal did not give sufficient weight to the evidence he provided by the respondent [appellant in these proceedings] on 15.4.2015 - Tribunal did not allow respondent [appellant in these proceedings] two week adjournment to enable him to put the rest of his evidence which was not available prior to 15.4.2015 3. Actual bias of member made decision of 15.4.2015 4. Error in law 5. Tribunal did not give sufficient weight to additional evidence (was not and could not be presented on 15.4.2015) provided by the respondent (applicant for set aside) in his application for set aside.
In regard to his application for leave to appeal, the appellant said the Tribunal's decision of 15 April 2015 was not fair and equitable and it was against the weight of the evidence. The appellant said he would address these matters further and referred to the submissions he made in his set aside application. A copy of that application and his submissions were contained in the bundle of documents he filed on 23 June 2015. I have dealt with these documents to the extent they are relevant to the matters in issue.
The appellant also said he needed an extension of time.

Reply to Notice of Appeal

The respondent, NSW Housing Corporation, did not file and serve a pro-forma Reply to Notice of Appeal. Nor was an order made in this regard. Instead the respondent relied on its written submissions.

Summary of matters in issue in this appeal

In summary the matters remaining in issue in the appellant's appeal against the orders made by the Tribunal in the respondent's application (SH 15/14772) are: 1. whether the appellant was denied procedural fairness in the Tribunal failing to grant the appellant's application for an adjournment so that he could put the rest of his evidence before the Tribunal; 2. whether the Tribunal Member was biased (i.e. bias); and 3. whether the Tribunal failed to give sufficient weight to the evidence provided by the appellant (respondent in the proceedings below) in making an order that he mow the lawn of the premises (order 5);
In regard to the appellant's set aside application (SH 15/30181), the only issue is whether the Tribunal erred in failing to give sufficient weight to the additional evidence the appellant provided in regard to that application.
Before dealing with these issues it is necessary to briefly set out the jurisdiction of the Appeal Panel.

The jurisdiction of the Appeal Panel

There is no dispute that the decisions of the Tribunal the subject of this appeal are an "internally appealable decision" to the Appeal Panel: see Civil and Administrative Tribunal Act 2013, subs 32 and 80(1). That is, this appeal is an internal appeal.
Subsection 80(2)(b) of Civil and Administrative Tribunal Act 2013 provides that an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

Was the appeal lodged within time?

Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 provides that unless the Tribunal grants an extension of time, an internal appeal against a decision made in residential proceedings is to be made within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later).
Section 41 of the Civil and Administrative Tribunal Act 2013 makes provision for the Tribunal to extend time.
In his Notice of Appeal the appellant said he received notice of the Tribunal's decision of 15 April 2015, in file no SH 15/14772 (the respondent's application), on 29 April 2015. And that he received notice of the Tribunal's decision of 21 April 2015, in file no SH 15/30181 (his set aside application), on 21 April 2015. On the material before the Tribunal, the appellant has clearly unintentionally made a mistake. What he meant to say was that he received notification of the 15 April decision on 21 April and was notified of the set aside decision on the day it was published, namely 29 April 2015. On this basis the appellant's appeal of both decisions were lodged within the prescribed time. The respondent accepted the appellant's appeal was lodged within time if the appellant's statements are accepted. There is no evidence to contradict what the appellant has said. Accordingly, I find his Notice of Appeal was filed within time.

Questions of law

Two of the matters raised by the appellant in his grounds of appeal raise a question of law. These are the ground of a denial of procedural fairness in not granting an adjournment and the ground of bias: see John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)]. In this regard subsection 38(2) of the Civil and Administrative Tribunal Act expressly provides that the Tribunal's procedures are to accord with the rules of natural justice, which are often referred to as the rules of procedural fairness. Subsection 38(5) and (6) of the Civil and Administrative Tribunal Act embody aspects of these rules.
A fundamental aspect of procedural fairness is that a member of the Tribunal must be, and must be seen to be, impartial (i.e. not biased): see Khashashneh v Travel Compensation Fund [2015] NSWCATAP 142 at [15].

Leave to appeal

The Appeal Panel's power to grant leave to appeal from a decision of the Consumer and Commercial Division of the Tribunal is set out in subclause 12(1) of Schedule 4 of the Civil and Administrative Tribunal Act. That subclause gives the Appeal Panel the discretion to grant leave to appeal where it is satisfied the appellant has suffered a "substantial miscarriage of justice" because: (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).
The Appeal Panel, in Collins v Urban [2014] NSWCATAP 17, at [68], noted that cl 12 does not require the Appeal Panel to find that the appellant in fact "suffered a substantial miscarriage of justice." It was only required to find that the appellant "may" have suffered such a miscarriage. However, the Appeal Panel went on to say that there must be a sound basis for granting leave to appeal, namely 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 circumstances in cl 12(1)(a) or (b) not occurred or if the fresh evidence in para (c) had been available: see at [76].
At [77(1)], the Appeal Panel noted: If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].

The Tribunal's decision of 15 April 2015 (SH 15/14772)

The Tribunal's decision of 15 April 2015 related to the respondent's (applicant in the proceedings below) application for an order for access to the residential premises to carry out a routine inspection and for an order that the appellant keep the premises reasonably clean and mow the lawns. The appellant opposed the making of both orders.
The Tribunal gave written reasons for its decision, which were dated the same day as the orders that were made (i.e. 15 April 2016). In its reasons for decision the Tribunal noted that the parties had entered into a residential tenancy agreement, on 7 March 2007, pursuant to the Residential Tenancies Act 2010.
In regard to the orders for access, the Tribunal noted the respondent had sent letters seeking access to the premises on 26 February and 6 March of that year because there had been no inspection for a year. The Tribunal noted, the appellant opposed the order for access because his wife was pregnant and was having some difficulties and had suggested access be granted in June. In the penultimate paragraph of its reasons for decision the Tribunal said: The applicant [respondent in the appeal] has responsibilities under the Act in respect of the condition of the premises and entitled to enter the premises to inspect with regard to safety issues and also general maintenance of the property, such matters are referred to in the provisions of the Residential Tenancies Act such as ss52 and 55. The landlord needs to comply with statutory obligations as well as inspect the property for repairs or work that needs to be carried out. The reason for refusal put forward by the respondent [appellant in the appeal] I do not consider to be of such a nature as to be reasonable. Although I understand his concerns for his wife, an inspection would not impose a burden on her nor would it greatly upset the day to day activities of the household. For those reasons it is considered that the respondent should allow access to the landlord to carry out an inspection. If that is not allowed then the applicant should be able to gain entry by changing the locks.
In regard to the appellant keeping the premises reasonably clean and to mow the lawns, the Tribunal noted the respondent (applicant before the Tribunal below) had received letters from the local Council on 12 and 18 March 2015 that raised an issue about the "overgrown land." The Tribunal noted the respondent had provided photographs of the premises taken on 18 March 2015, which revealed that part of the garden was covered in black plastic and that other areas of grass were overgrown "towards the front of the property and the verge outside the property." The Tribunal made reference to paragraph 28 of the 2014 decision of the NSW Court of Appeal in regard to proceedings commenced in that Court by the appellant: see El-Saeidy v NSW Land & Housing Corporation [2014] NSWCA 172. The Tribunal noted that the Court of Appeal: … [referred] to the conclusion reached by the trial judge after considering the evidence provided in the case by the experts, in which it is stated "I am satisfied that the soil in the yard is safe and does not pose a health risk to Mr El-Saeidy and his family.
The Tribunal also referred to the 11 October 2013 report of Mr De Silva, an Occupational Hygienist, and a letter Mr De Silva had sent to the respondent on the same day concerning the mowing of the lawn. The Tribunal noted the report of Mr De Silva "was not used in the hearing of the Supreme Court."
In respect to this aspect of the respondent's claim the Tribunal said: …[the] applicant [the respondent in this appeal] has obligations and has been asked by the Council to take action in respect of the condition of the property, the respondent [the appellant in this appeal] has been written to concerning this aspect of the matter for some time. The state of the premises as disclosed in the photographs is such that it impacts on the landlord (sic) obligations relating to health and safety. The evidence in the Supreme Court proceedings was such that the trial judge concluded that after considering the whole of the evidence that the soil in the yard was safe. I understand the respondent's position however his view has not been accepted. The landlord also has an obligation to the council to maintain the premises. More importantly the respondent has such an obligation under the lease and he has not done so. The respondent is to carry out the mowing to keep the premises in a reasonably clean condition.

The Tribunal's decision of 29 April 2015 (SH 15/30181)

The Tribunal's decision of 29 April 2015 concerned the appellant's application to have the abovementioned decision of the Tribunal set aside. The Tribunal (differently constituted) also published reasons for decision in regard to this application. Those reasons were as follows: The Tribunal is not satisfied that the order made on 15/4/2015 in matter number SH 15/30181 was made in the absence of the Applicant. The applicant seeks orders setting aside the orders for access and mowing of lawns by 30/4/15 made by the Tribunal on 15/4/15. Sufficient evidence was put forward by NSW Land and Housing Corporation to justify the making of the orders on 15/4/15. The applicant's attendance at the hearing on 15/4/15 enabled him to put any relevant issues before the Tribunal. The applicant had the assistance of an Arabic interpreter on 15/4/15.

Consideration

As I have noted in paragraph 16 above, the appellant identified three grounds of appeal in his Notice of Appeal. The first two grounds (refusal to grant an adjournment and bias) relate to the orders made by the Tribunal (constituted by Tribunal Member Bradford) on 15 April 2015 in regard to the respondent's application. The remaining ground relates to the orders made by the tribunal in both proceedings.

Denial of procedural fairness - refusal to grant an adjournment

In his written submissions the appellant said he was ambushed by documents tendered by the respondent which he had not seen before, including the letters from the Council. He said that despite not having been provided with this material the Tribunal Member refused his application for an adjournment. He said the Tribunal Member also refused his repeated requests to allow him to provide further evidence in relation to his wife's medical issues which he did not have that day and to obtain further expert evidence about the plastic he had put around the yard "to control" the grass as the top soil he said was "contaminated."
Whether to grant or not grant an application for an adjournment of a hearing is a matter falling within the discretion of the Tribunal before whom the application is made.
However, it is accepted that a refusal to adjourn a hearing may, in some circumstances, constitute a failure to give a party the opportunity of adequately presenting his/her case and hence amount to a denial of procedural fairness: see Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 232 per Dean J and Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40].
At the same time the courts have recognised that essential to a just resolution to proceedings it is also necessary to minimize delay and expense: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and Hamod v State of New South Wales [2011] NSWCA 375 at [139]ff. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.
Section 36 of the Civil and Administrative Tribunal Act also contains provisions along these lines: (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
As I have noted, subsection 38(2) of the Civil and Administrative Tribunal Act provides that the Tribunal is subject to the rules of natural justice. Subsection 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." And subsection 38(5)(c) provides that the Tribunal is to take such measures "as are reasonably practicable … to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings."
However, these provisions must be read together with the "guiding principle" to be applied to the Tribunal's practice and procedure generally: see Gallo v Duflou [2014] NSWCATAP 115 at [28]ff and Amad El Ahmad t/as Cars for Everyone v Imelda Reyes [2015] NSWCATAP 50 at [16]ff. These are found in section 36 of the Civil and Administrative Tribunal Act, which relevantly provides: 36 Guiding principle to be applied to practice and procedure (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. … (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceeding.
The question is whether the appellant has established that he was denied procedural fairness when the Tribunal refused his application for a two week adjournment of the hearing that day (i.e. 15 April 2015). In my opinion he has failed to do so.
It is evident from the CD recording of the hearing that the Tribunal made its decision after hearing from the appellant and the grounds on which he was seeking an adjournment. The appellant told the Tribunal he needed a two-week adjournment because his wife was expecting a baby and she needed him because she was in and out of hospital. He also said he needed to obtain evidence to refute what the respondent said about the lawn, which he said he had now covered completely with plastic. In regard to access, the appellant said he did not object to access, but requested that it be postponed until sometime in late June 2015.
The respondent opposed the application on the grounds that the applicant was fully aware of the matters in issue. These were communicated to him in letters from the respondent dated 4, 5 and 29 September 2014 and again on 26 February and 6 and 9 March 2015.
After hearing from the parties the Tribunal found that the applicant had not been ambushed in that he was aware of the matters in issue and refused his adjournment application.
In regard to the letters from the Council, a copy of which was attached to the respondent's submissions, I note they were dated subsequent to the letters the respondent had sent to the appellant. The respondent contends the letters were contained in the information it provided to the appellant prior to the 15 April hearing before the Tribunal below. I note the appellant did not object to the tender of these letters at the hearing, which is consistent with the contentions of the respondent. The letters raised concerns about the overgrown vegetation on the premises that "may pose potential harbourage for vermin." The appellant has not submitted in this appeal that he was denied an opportunity to respond to the letters.
In regard to his wife's medical condition, the appellant acknowledged that he had presented to the Tribunal a medical report dated 21 April 2015, but was denied an opportunity to provide another report, dated 31 March 2015, which he did not have with him at that time. Attached to the appellant's submissions were two medical reports concerning his wife. One is dated 21 April 2014 and the other is dated 31 March 2015. The letter of 21 April requested that the appellant's wife be excused from attending the Tribunal due to an anticipation she may go into labour. The report of 31 March 2015 said the appellant's wife was not fit to attend court until 6 weeks after her anticipated confinement on 12 May 2015. It is difficult to see how the 31 March 2015 report, had it been before the Tribunal on 15 April 2015, would have assisted the appellant in his argument for an adjournment. The Tribunal said it accepted the appellant's evidence about his wife's pregnancy. I note there was no issue about her being required to attend the hearing. What was in issue was the respondent's request for access to the premises to conduct a regular inspection thereof. There was no dispute about the respondent's right to access. I note clause 23.5, 23.6 and 23.7 of the prescribed standard form of lease agreement in schedule 1 of the Residential Tenancies Regulation 2010 make provision for access subject to two days-notice.
In light of the appellant's concession that there was a right to access by the respondent, it is difficult to see how the medical report of 31 March 2015 would have assisted him in his adjournment application. Accordingly, I find the appellant has failed to demonstrate he was denied procedural fairness in not being granted an adjournment to obtain that report.
In regard to the appellant's request to obtain further expert evidence he acknowledged that the report of his expert, Mr De Silva (Occupational Hygienist), dated 11 October 2013, was before the Tribunal at the hearing. Subsequent to the hearing the appellant obtained a further short report from Mr De Silva on 25 April 2015. In that report Mr De Silva said: Thank you for your letter dated 25 April 2015, informing that you have covered up the front and rear yards of your property with 0.2 mmm thick plastic for safety. This action is acceptable and it ensures safety temporarily, as we have previously detected asbestos in loose fibre form and also in bonded form in a number of samples that we have analysed when we collected these samples in order to issue clearance at completion of the removal job.
There has been a long ongoing dispute between the parties in regard to contamination of the soil in the yard of the premises. That dispute the respondent contends was finalized in 2013 with the decision of Harrison AsJ in El-Saeidy v NSW Land & Housing Corporation (No 4) [2013] NSWSC 1554.
The appellant commenced proceedings against the respondent, in the Supreme Court, sometime around 2009. A history of those proceedings is contained in the judgment of Her Honour in El-Saeidy v NSW Land & Housing Corporation (No 4) [2013]. At [2] to [5] Her Honour gave the following summary: 2. After delivering a substantive judgment on 9 August 2011. On 22 September 2011, I ordered that NSW Land & Housing Corporation (Housing) was to carry out the following work on the premises the subject of a residential tenancy agreement between the defendant as lessor and the plaintiff as lessee, as follows: "Remove and replace all the asbestos cement wall linings and all asbestos cement sheets and linings of ceilings in the bathroom, kitchen and laundry; and remove and replace all the asbestos linings on the eaves and in the electricity meter box." 3. During the substantive hearing Mr El-Saeidy sought orders that Housing carry out the following work: (b) Collect and remove all the loose pieces of broken asbestos cement from the front and back yards; (c) Excavate, remove and replace all the topsoil in the front and back yards; ... (e) Further and other work necessary to ensure that the house and front and back yards are decontaminated and can be used and occupied without undue risk of inhalation of asbestos fibres. 4. The Housing agreed to carry out this work outlined in paragraphs (b), (c) and (e) above. Housing also agreed to provide adequate alternative accommodation to the plaintiff pending removal of the asbestos from the premises and garden while the work is carried out and until a clearance certificate has been obtained. 5. Since the substantive judgment was handed down Mr El-Saeidy has sought to relitigate various matters but I have declined to do so as I held that those issues had already been decided: see El-Saeidy v NSW Land & Housing Corporation [2012] NSWSC 876. There remained a disagreement over where Mr El-Saeidy and his family would reside while the asbestos was removed from the premises.
Her Honour explained, at [25] to [28], what orders were sought in the Motions that were before her for hearing that day. In summary, the Motion by the appellant (the plaintiff in those proceedings) sought orders that the respondent (defendant in those proceedings) comply with the orders made on 9 August 2011 to excavate and remove at least 200mm of topsoil from the front and back yard of the premises and replace it with uncontaminated certified new clean virgin top soil. The Motion by the respondent sought an order that the appellant's Motion be dismissed and a declaration that it had complied with the 9 August 2011 orders and the agreement it had made to carry out the work requested by the appellant and to re-locate the appellant and his family while this work was being carried out.
In support of his Motion, at the hearing that day, the appellant sought to tender the 11 October 2013 report of his expert Mr De Silva. This was a further report of Mr De Silva prepared for the purpose of those proceedings. The appellant also sought an adjournment of the hearing. The respondent objected to an adjournment and the tender of Mr De Silva's additional report. Her Honour refused the adjournment application and the tender of Mr De Silva's additional report on the grounds that the appellant had ample time to obtain that report, there was already a report of Mr De Silva before the Court and to allow the 11 October report of Mr De Silva would prejudice the respondent: see at [41] to [45].
In her judgment, at [54] to [71], Harrison AsJ dealt with the evidence of the experts (including that of Mr De Silva in an earlier report) in regard to soil samples taken from the premises. At [71], Her Honour found: 71 My main concern throughout these proceedings has always been the safety of Mr and Mrs El-Saeidy's children in the house and the yard. At best, a large sample size may improve the likelihood of identifying asbestos material greater than 2 mm fraction. With the exception of one sample, all asbestos found in samples taken by Mr De Silva were in bonded form. Under both the old and new guidelines 0.01% is permitted. Bonded asbestos if present is considered safe if left alone. No asbestos was detected in the 10 sample soils taken by Mr Clifton from the areas where Mr De Silva indicated the presence of asbestos. I am satisfied that the soil in the yard is safe and does not pose a health risk to Mr El-Saeidy and his family.
In light of her findings, Harrison AsJ, made an order dismissing the appellant's motion and made the declarations sought by the respondent. The appellant unsuccessfully sought leave to appeal that decision: see El-Saeidy Land & Housing Corporation [2014] NSWCA 172.
Leaving aside the Supreme Court proceedings, there is no dispute the Tribunal had before it the report of Mr De Silva and the 2014 decision of the Court of Appeal. The question is whether the appellant was denied procedural fairness in not being granted an adjournment to obtain additional expert evidence. The evidence he would have obtained, had he been granted the adjournment, is the updated 25 April report of Mr De Silva. The report does no more than reiterate the findings contained in Mr De Silva's earlier report of 11 October 2013 and to state that placing plastic over the ground was appropriate. The placing of the plastic was the appellant's response to the grass being mowed, but he was unable to provide evidence of there being no grass to be mowed.
The appellant's conduct in covering the soil with plastic was not a matter in issue before the Tribunal. The respondent did not seek orders in this regard. Nor did the Tribunal make any orders in regard thereto. However, I note the findings of the Supreme Court, which have not been set aside, and on which the orders were made that the appellant could return to the premises.
Accordingly, I find the appellant has failed to demonstrate he was denied procedural fairness in not being granted an adjournment to obtain this additional report from Mr De Silva.

Bias

The appellant asserts actual bias on the part of the Tribunal Member, Mr Bradford. His submissions also infer there was an apprehension of bias by the Tribunal Member.
In Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125, Drummond J at [42] said the following in regard to actual: bias (a) Actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant. (b) The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation. (c) Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias. Such bias may be subconscious, provided it is real. (d) It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party's position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings. Though relevant to proof of actual bias, displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish such bias, proof of which requires a finding on a question of fact, having regard to all the circumstances of the case (citations omitted).
In Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 at [6] the High Court said the following (citations omitted): 6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide […]. That principle gives effect to the requirement that justice should both be done and be seen to be done […], a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
In Khashashneh v Travel Compensation Fund [2015] NSWCATAP 142 at [15], the Appeal Panel summarised the principles of apprehended bias as follows: 15. It is a fundamental principle of procedural fairness that a member of the Tribunal must be, and must be seen to be, impartial: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 501. The test is an objective one. A Tribunal Member should not hear a case if a fair minded lay observer might reasonably apprehend an impartial judicial mind might not be brought to bear on the resolution of the proceedings: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 the High Court held that the question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality requires two steps. The first is to identify what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. The second requires the articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
The onus is on the appellant to demonstrate that there was actual bias, or apprehended bias by the Tribunal Member: see Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87, per French J (at p 106)
The grounds on which the appellant asserts actual bias by the Tribunal Member is that he was the Supreme Court Registrar who had determined an earlier Notice of Motion in his proceedings before that Court. That Motion was heard on 8 October 2013, nine days prior to the hearing of his substantive Motion before Harrison AsJ. In his Motion before the Registrar the appellant had sought an order to vacate the hearing before Her Honour so that he could obtain further evidence. A copy of the Transcript of that hearing was attached to the appellant's written submissions in this appeal and I note from the above judgment of Her Honour that the Registrar refused to make the orders sought by the appellant.
In his submissions the appellant said he did not realise until after the Tribunal hearing on 15 April 2015, that the Tribunal Member was the same person who had heard and determined his application, in the Supreme Court, on 8 October 2013. I note from the CD recording of the hearing before the Tribunal, the appellant did not at any time ask the Tribunal Member to recuse himself on the grounds of bias, actual or apprehended.
The appellant asserts the Tribunal Member should have recused himself because he had made an adverse finding against him, in the Supreme Court, when hearing and determining his application for an adjournment on 8 October 2013. That is, the Tribunal Member had refused his application for an adjournment to obtain additional evidence. The appellant contended that this refusal by the Tribunal Member, in his role as the Registrar of the Supreme Court, prevented him from being able to tender the 11 October report of Mr De Silva at the hearing before Her Honour, Harrison AsJ. As I have noted, the appellant made a further application for an adjournment and the tender of Mr De Silva's report at the commencement of the hearing before Her Honour on 17 October 2013. These applications were heard afresh on the merits by Her Honour.
It is well established that where a judicial member has previously found against a party this alone will not give rise to an apprehension of bias let alone actual bias.
While I can understand the appellant was dissatisfied with the Tribunal's decision of 15 April 2015, the appellant has not pointed to any comments made, or conduct of the Tribunal Member during the course of the hearing that would give rise to actual or apprehended bias. Nor in my opinion does the CD recording of the hearing before the Tribunal below, or the transcript of the 8 October 2013 hearing give rise to any suggestion of actual or apprehended bias by the Tribunal Member.
The applicant also raised some other matters which he asserted were evidence of bias. These included a failure to mark the report of Mr De Silva as an exhibit and the making of an access order which on the evidence was unnecessary. In my opinion, it is clear from the Tribunal's decision that it had Mr De Silva's report before it. The fact it was not marked as an exhibit does not mean it was not considered. I note the respondent had marked its evidence as Exhibit A and Exhibit B and the Tribunal referred to them in this context and not in the context of having marked them as exhibits. As to the Tribunal making an order that was unnecessary, the evidence is that an order of this nature was sought and the Tribunal was required to deal with it as the appellant had refused to grant access as requested.
Accordingly, I find the appellant has failed to establish this ground of appeal.

Did the Tribunal give sufficient weight to the evidence provided by the appellant?

Was the decision of the Tribunal not fair and equitable?

The appellant contended that the Tribunal in his set aside application and the Tribunal in the respondent's application "did not give much weight" to his evidence. In this regard the appellant relies on submissions which are a reiteration of his submissions in regard to procedural fairness.
In his submission to the Tribunal in regard to his set aside application the appellant also gave the following explanation as to why the Tribunal "did not give much weight" to his evidence: a. The respondent (appellant in these proceedings) attended for conciliation (sic) and the applicant (the respondent in these proceedings) refused it and even refused alternate dispute resolution option. b. Mrs Rita Wilkinson from Campsie tenancy advocacy advised me that if mediation is refused by the Respondent, hearing will be after two weeks. c. Due to the fact 1(b), the Respondent was not prepared for the hearing and all document was with him was intended mainly for the mediation. d. Mr Brett Spackman of the applicant submitted to the tribunal that the applicant did not inspect the premises in the past twelve month which was untrue and misleading as the applicant was inspected the premises on the following days: …
These matters, I note were not raised by the appellant at the time he sought his adjournment application before the Tribunal on 15 April 2015. Nor do they explain why he asserts the findings of the Tribunal were against the evidence that was before it.
In my opinion, the appellant's contention that the findings of the Tribunal in his set aside application was against the evidence he provided in support of that application (including the additional evidence) is a misunderstanding as to the basis on which a set aside application can be made.
The circumstances in which a set aside application can be made is limited to those prescribed in clause 9 of the Civil and Administrative Tribunal Regulation as follows: 9 Additional power to set aside or vary decision determining proceedings (1) 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. …
The respondent did not consent to the appellant making a set aside application under subclause 9(1). Nor was the appellant absent at the hearing on 15 April 2015, when the Tribunal determined the respondent's application. Accordingly, the appellant's set aside application was misconceived and this was reflected the Tribunal's decision and reasons for decision published on 29 April 2015.
For the reasons I have already given, in my view the appellant has failed to establish that the Tribunal's findings in both proceedings was against the weight of the evidence. There is no dispute that in the respondent's application before the Tribunal (file no SH 15/14772) the Tribunal had the power to make the orders it made. In my view, having regard to the material before me, the findings and orders were open to the Tribunal on the evidence before it.
I make a similar finding in regard to the appellant's set aside application (file no SH 15/3018).
On the basis of my findings that the appellant has failed to establish a denial of procedural fairness or bias (actual bias or apprehended bias), I also find that the appellant has failed to establish that the decision of the Tribunal below in file no SH 15/14772 was not fair and equitable.

Conclusions

For the reasons set out above, the appellant has failed to establish that the Tribunal erred in law in that he was denied procedural fairness in the Tribunal refusing to grant him an adjournment of the hearing on 15 April 2015.
I have also found that the appellant has failed to establish: 1. that Tribunal Member Bradford was biased; or 2. that he may have suffered a substantial miscarriage of justice because the decisions the subject of his appeal were not fair and equitable, or against the weight of evidence.
On the basis of these findings the appropriate order is to dismiss the appellants appeal. As a consequence of such orders the stay order I made on 6 May 2015 also lapses.

Orders: 1. The appellant's appeal of the Tribunal's decision in file no SH 15/14772 is dismissed. 2. The appellant's appeal of the Tribunal's decision in file no SH 15/30181 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2016

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Judgment (19 paragraphs)

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Cases Cited (25)