Fabrizio v NSW Land and Housing Corporation

Introduction

This is an application under section 55(2) of the Civil and Administrative Act 2013(NSW) ("the Act") for reinstatement of appeal proceedings that were dismissed under s55(1)(c) by reason of the appellant failing to appear at the call over of the appeal on 6 January 2016.
The background leading up to the application described above may be summarised as follows; 1. On the 27 November 2015 the Tribunal acting in its Consumer and Commercial Division made orders for the residential tenancy agreement between the parties to be terminated on 7 December 2015 with possession to be given to the landlord on that date. The applicant landlord (now the respondent to this appeal) sought an order for termination pursuant to s91(a) of the Residential Tenancies Act 2010(NSW)(RTA) on the basis that the appellant (the tenant) intentionally or recklessly permitted the use of the rented premises for the supply of a prohibited drug. The evidence tendered included evidence of the appellant having been convicted of drug related offences including "supply a prohibited drug". 2. On 22 December 2015 the appellant lodged a notice of appeal as well as an application for a stay of the operation of the original decision pending the appeal. The grounds of the appeal will be described later in these reasons. The appellant acknowledges in the notice of appeal that she was not present at the hearing 27 November 2015. 3. An Appeal Panel of the Tribunal dealt with the application for a stay and published a decision on 23 December 2015. The Appeal Panel decided not to grant the stay on an ex parte basis but rather called for the appeal to be listed for a callover early in the New Year so that the stay application could be dealt with. That order was posted to the parties on or about 23 December 2015. 4. On the same day (23 December 2015) the Tribunal published to the parties a "Notice of Callover and Hearing to Determine Stay on Original Orders" and that notice advised that an Appeal Panel would hear the callover of the appeal and the hearing concerning the application for stay of the original order at 10:00am on 6 January 2016. 5. The appellant did not appear on 6 January 2016 and as a consequence the appeal was dismissed under s55(1)(c). On the same day the Tribunal published to the parties the decision of the Appeal Panel dismissing the appeal. 6. On 14 January 2016 the Tribunal received an email from the appellant seeking to have the appeal reinstated. That resulted in the application for reinstatement being listed and heard on 19 January 2016.

Decision

The decision the subject of the appeal was published on 27 November 2015 and received by the appellant on 28 November 2015. This appears from the notice of appeal filed on 22 December 2015.
Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014(NSW)(the Rules) requires an appeal from a decision in residential proceedings (such as here) to be lodged within 14 days from the day the appellant was notified of the decision or given reasons for the decision (whichever is the later). The Tribunal may extend time under s41 of the Act. In this case the appeal was lodged on 22 December 2015 being eight days after the 14 day deadline (14 December 2015) and the appellant requires the Tribunal to extend the time for lodging the appeal. The appellant did not complete that part of the Notice of Appeal form requiring completion when an extension of time is sought.
The Grounds of Appeal are described in the Notice of Appeal in these terms: Absence Wrong evidence I have witnesses Stress and illness Homelessness
The Notice of Appeal goes on to record the appellant's admission that she uses cannabis and attaches a form of bond published by the Local Court confirming that the appellant had been convicted in October 2015 of offences concerning possession of a prohibited drug and other offence. Another document issued by that court recorded that the appellant had been convicted of "supply/knowingly take part in the supply of prohibited drug". The appellant concedes in the documents attached to the Notice of Appeal that she continues to use cannabis.
In so far as the appellant based her appeal on her absence from the hearing on 27 November 2015 there is no evidence that the outcome of that hearing would have been different had she appeared. In addition although the appellant claimed not to know of the hearing, the reason for her lack of knowledge was, it appears the fact that she had not opened her mail. The decision records that the Tribunal was satisfied that the notice of hearing had been duly served on the appellant. The basis for the decision, namely a breach of s91(a) of the RTA has not been disputed by the appellant. The appellant referred to "wrong evidence" and the fact that she has "witnesses" in the Grounds of Appeal. The "wrong evidence" has not been identified and what the witnesses would say has not been stated.
The appellant also relies on her ill health as a ground of appeal. No medical evidence has been supplied in support. This so despite the fact in the Tribunal's reasons published on 23 December 2015 refusing a stay, the Tribunal referred to the need for the appellant to support her case by providing medical evidence.
In considering whether an extension of time should be granted under s41 of Act, an Appeal Panel of the Tribunal has set out in, the case of Jackson v NSW Land and Housing Corporation the factors is to be considered in the context of proceedings before the Tribunal. These factors include the length of the delay, the reason for the delay and the appellant's prospects of success. Additionally, it is necessary to consider whether strict compliance with the Rules would work an injustice.
In this case the late filing of the appeal, although only eight days, is significant. It is significant because the Rules reflect the policy of the legislature to require appeals in residential proceedings to be brought quickly. Similarly s36 of the Act requires the Tribunal and parties to give effect to the facilitation of cases justly, quickly and cheaply.
In this case the reason for the delay is not persuasive. The appellant new of the decision on 28 November 2015 (and therefore her unwillingness to open mail is not relevant) but did not lodge the appeal within the following two weeks.
Most significantly in this case, in my view the prospects of the appeal being successful (assuming leave were granted for the appeal to be filed out of time) are very poor. The appellant has not identified any question of law (see s80 of the Act) and requires leave under clause 12 schedule 4 of the Act. Those provisions give to the Tribunal discretion as to whether to grant leave if satisfied that the appellant may have suffered a substantial miscarriage of justice, on one or more of the grounds set out in clause 12. Only the first ground ("not fair and equitable") is potentially relevant to this case. Although the appellant apparently has children living with her, that is not the only consideration which may be relevant in considering whether a residential tenancy should be terminated. Section 152 of the RTA require other factors to be considered. The decision under appeal stated that those factors were considered.
Having regard to all the matters referred to in these reasons, I am of the view that the appellant's prospects of a successful appeal are extremely remote and that her prospect of being granted extended time to lodge the appeal are also extremely remote. Accordingly in my view no utility will be served by reinstating the appeal. Indeed the respondent may be prejudiced by being denied the opportunity to recover possession of the premises until the appeal is resolved.
I conclude that the appellant has not provided a reasonable explanation for the failure to appear at the callover on the 6 January 2016 and I therefore refuse to reinstate the appeal. Had I been of the opinion that there was a reasonable explanation for the failure to appear on the 6 January 2016 I would still have refused to reinstate the appeal because I do not see any utility in doing so.
Although the appellant will be required to leave the residential premises if the appeal is not reinstated, I am not satisfied, given the matters referred to in these reasons, that that outcome would result in an injustice occurring.
For these reason the application under s55(2) of the Act 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: 21 January 2016

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