Fabrizio v NSW Land and Housing Corporation

Grounds for Reinstatement

1. S55(2) of the Act provides that the Tribunal may reinstate proceedings that have been dismissed if the Tribunal considers there is a reasonable explanation for the failure to appear. In this case the explanation for the failure to appear was initially described in the above email of 14 January 2016 and was also described orally by the appellant at the hearing on the 19 January 2016. The email of 14 January 2016 may be summarised in these terms: the appellant states that she had no notice of the hearing on 6 January 2016, that due to ill health does not check her letter box and that she has "a phobia" when it comes to opening mail. At the appeal hearing the appellant informed the Tribunal that she wished to stay on at the premises because three of her four children live with her and she will, and they will, be homeless if the termination of the tenancy is executed. The appellant also conceded during the appeal hearing that she had did in fact receive letters from the Tribunal including the letter advising of the hearing on 6 January 2016 but did not open the letters.

Respondents Submissions

1. Counsel for the respondent opposed the application for reinstatement. He submitted that a reasonable explanation for nonattendance had not been given. There was no medical evidence provided as to the appellant's state of ill health which prevented her from checking her letter box and no medical evidence of the phobia which the appellant claimed to suffer with respect to opening mail.
2. The respondent's counsel also submitted that a relevant consideration in deciding whether to reinstate the appeal was to have regard to the prospects of the appeal being successful. He submitted that the prospects for the appeal were very poor and there was no apparent miscarriage of justice in the decision which is the subject of the appeal.
3. In circumstances I ordered a stay on the operation of the order made on 27 November 2015 pending the publication of this decision. I indicated that the decision would be published without delay as the respondent had applied for a warrant for possession on 31 December 2015, although the warrant had not yet issued (so far as the respondent was aware).

Decision

1. 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.
2. 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.
3. The Grounds of Appeal are described in the Notice of Appeal in these terms: Absence Wrong evidence I have witnesses Stress and illness Homelessness
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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