Farkas v BaptistCare Community Housing Limited

1. There are two procedural issues that arise in relation to this appeal.
2. The notice of appeal was lodged by Nev Sagiba on behalf of the appellant and was date stamped as having been received by the Tribunal on 11 August 2025. The notice of appeal is dated 7 August 2025. According to the covering letter from Mr Sagiba, the notice was submitted at Services NSW and multiple copies were expressed posted to the post office box for the Tribunal at Haymarket. Rule 13(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) provides that when a notice is posted, unless the contrary is proved, the time at which the document is taken to be lodged is at the end of the seventh working day after the date on which the notice was posted. Given the date stamp and the fact there is no evidence to the contrary, we find that the notice of appeal was lodged on 11 August 2025.
3. Rule 25(4)(b) relevantly provides that an internal appeal against a decision in residential proceedings, which this is, must be lodged 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). The notice of appeal states the decision was received on 25 July 2025. As such, any internal appeal needed to be lodged by 8 August 2025. The notice of appeal was lodged three days outside the time allowed under r 25(4)(b). In the notice of appeal, the appellant ticked the box indicating that an extension of time was not required to lodge the notice of appeal. In its reply, the respondent also indicates that the appellant does not need an extension of time. For the reasons outlined, this is in error.
4. However, it is apparent that both parties have proceeded on the basis the appeal was lodged within time. The delay was minimal and the parties have already lodged detailed evidence and submissions in relation to the appeal. There is no prejudice and, given the appeal has progressed and can be determined on the papers (for the reasons later outlined), it is appropriate to extend time under s 41 of the NCAT for the appellant to lodge the appeal to 11 August 2026. (see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]) This is also consistent with the guiding principles in s 36 of the NCAT Act "to facilitate the just, quick and cheap resolution of the real issues in the proceedings".
5. On 29 August 2025, the Appeal Panel made directions about the conduct of the appeal. The parties were given a timetable to lodge:

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that a party may appeal the 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.
2. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel considered what constitutes a question of law and formulated a non-exhaustive list of those matters at [13] including whether the Tribunal identified the wrong issue or asked the wrong question, whether a wrong principle of law had been applied, whether there was a failure to afford procedural fairness, whether there was no evidence to support of a finding of fact and whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. This was revisited in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25]-[40] esp at [30]-[32], where the Appeal Panel found that Prendergast was "overly reductive" [31] and identified, together with the authorities there cited at [32], further questions of law such as: whether the Tribunal drew inferences that were not available from the facts found; whether the decision was vitiated by bias, or a reasonable apprehension of bias, raising a procedural fairness question, and whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice or, alternatively, a constructive failure to exercise jurisdiction.
4. Where a party is self-represented and that party's material and submissions raise a question of law in substance, a more generous approach is warranted as an aspect of ensuring procedural fairness, even though the ground has not been raised expressly or with precision: Unique at [27]-[28] and Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13].
5. If a party does not raise a question of law, the party must seek, and be given, leave to appeal from a decision of the Tribunal at first instance.

1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:

1. In summary, an appeal must raise a question of law or be permitted by the Appeal Panel on other grounds with leave to appeal. If there is no question of law, appeals against a decision of the Consumer and Commercial Division must first meet the 'gateway' in 12(1) of Sch 4 of the NCAT Act and, if so, the Appeal Panel must then consider whether to exercise discretion to grant leave having regard to the principles outlined in Collins. Relevantly, an internal appeal is not an opportunity for the losing party to rerun the party's case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]

1. The appellant raises 10 grounds of appeal and seeks to appeal as of right. However, she has not articulated with precision the question of law that she says arises. Given she is a litigant in person, we have reviewed her grounds of appeal to discern whether she raises an error on a question of law. (see Cominos at [13])
2. We have identified three potential questions of law that have been raised.
3. The first is the failure to consider a relevant and material claim which is within the jurisdiction of the Tribunal to consider, resulting in a failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Migration Affairs [2003] HCA 26; Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]- [12] and [413]. Grounds 1, 4, 6, 7, 8 and 9 potentially fall within this category.
4. The second is the denial of procedural fairness which appears to be raised in Grounds 2, 3 and 10. This is a question of law: Prendergast at [13](4))
5. The third is the claim made in Ground 5 that there was no evidence to support the Tribunal finding of an altercation or smoking by the appellant. This is also a question of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 at [91]
6. Each of these grounds are considered below.

(2020) 103 NSWLR 479

(2010) 241 CLR 390