Ghaderi v Western Sydney University

The Tribunal proceedings

1. The proceedings before the Tribunal arose because the Mr Ghaderi was in accommodation provided by the University in 2017. He claims damages from the University in respect of two issues arising from his period in that accommodation. First, he said he was not supplied with appropriate hot water (in two separate periods). Second, he said the University failed to provide an environment free from noise.
2. In its reasons, the Tribunal characterised the question for determination as whether the University, in the supply of accommodation to Mr Ghaderi, breached its guarantee under s. 60 of the Australian Consumer Law (see Pt. 6A of the Fair Trading Act 1987) to render that service with due care and skill, and if so, the appropriate remedy under Pt. 6A of the Fair Trading Act.
3. There was no dispute that the Tribunal had jurisdiction to determine the matter. At an earlier time, the Tribunal had raised the possibility that the matter might fall within the Residential Tenancies Act 2010 (NSW); but the matter was presented and determined by the Tribunal as a consumer claim, rather than as a tenancy matter. There is no appeal ground relating to this issue.
4. The Tribunal found that: 1. The University supplied a service being accommodation for students. 2. That supply had to be rendered with due care and skill. This obligation is not necessarily either more onerous or less onerous than the duty owed by a landlord to a tenant. Rather, it is different. A supply of accommodation to a number of students is not a guarantee that each utility and all facilities provided to each student will function perfectly all of the time. It is, in the current circumstances, an obligation to respond reasonably to a complaint about a part of the supply. 3. Regarding the hot water in the first period, the University had received a complaint from the applicant by early June 2017 and moved promptly to address the complaint. The respondent responded reasonably in relation to the first period. 4. As to the hot water in the second period, the respondent took the view that the appropriate course was to continue to rely on the plumber's report that there was no apparent reason for the low water temperature and that major investigative work would be required to determine the cause, and so decided to offer an alternate room in lieu. That course was reasonable. 5. As to the noise issue, the Tribunal found the University acted appropriately and with due regard to the interests of all affected parties. 6. Accordingly, the Tribunal found that the University did not breach its duty to render the supply with due care and skill and Mr Ghaderi's application was dismissed.

Notice of Appeal

1. The grounds of appeal were not clearly stated in the Notice of Appeal. However, the Notice of Appeal does make it clear that the appellant is seeking leave to appeal on the basis the decision was not fair and equitable or was against the weight of the evidence.
2. There was also an allegation that significant new evidence is available that was not reasonably available at the time of the hearing. As part of this appeal, the appellant sought to issue a summons for the production of records of the University regarding the noise complaint. The application to issue that summons was refused by Principal Member Harrowell on 8 April 2019. In fact, the University produced records it said the appellant had sought. The question as to how the Appeal Panel is to deal with these records on appeal will be dealt with below.

Extension of Time

1. The Tribunal's Reasons for Decision were dated 30 August 2018. In his Notice of Appeal, Mr Ghaderi says he received notice of the decision on 1 September 2018. The appeal was filed on 1 March 2019. Attached to the Notice of Appeal is 171 pages of documents, pages 1 to 46 are the appellant's typed submissions and the balance are documents in support of the appeal including evidence before the Tribunal. In addition, there are a further six (6) pages of material regarding the appellant's request for an extension of time.
2. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) provides for a 28 day period for the filing of an appeal. That period commences from the day on which an appellant is notified of the decision. The Notice of Appeal states the decision was received by Mr Ghaderi on 1 September 2018. To be within time, the appeal should have been filed by 2 October 2018, being the first business day after 29 September 2018. That means the appeal was filed late - nearly five (5) months out of time.
3. The Notice of Appeal identifies that the Appellant seeks an extension of time. The University objects to any extension of time, saying the appellant had plenty of opportunity to comply with the time limits for lodging appeals.
4. The Appeal Panel may extend time - see s. 41 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) which provides: (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. Principles relevant to the exercise of that discretion are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] as follows: 22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].

Discretionary factors

1. Regarding the length of the delay, in our view, the delay is a lengthy one. It is not a matter of a day, a week or even a single month late.
2. As to the reasons for the delay, the appellant relied on the six (6) pages of written material which he said were his written submissions on the extension of time application, including a letter to the Appeal Panel dated 25 February 2019 with a number of attachments. The appellant spoke to this material during the hearing. Before summarising the appellant's arguments, a chronology of events following the Tribunal decision will assist: 1. 23 August 2018 - the Tribunal hearing and orders; 2. 30 August 2018 - the Tribunal provides Reasons for its decision; 3. 1 September 2018 - the appellant receives the Tribunal's Reasons; 4. Shortly thereafter the appellant makes enquiries and forms the view (confirmed during the Appeal Panel hearing) that he believed he has a time limit of seven (7) days to file an appeal; 5. The appellant attends the Tribunal registry and an application to set aside the Tribunal's orders is filed; 6. On 7 September 2018, a Tribunal member dismissed the application to set aside, noting the appropriate remedy is by way of an appeal; 7. On 9 September 2018, the appellant submits a letter to the Tribunal seeking an extension of time to lodge an appeal; 8. On 10 September 2018, the Deputy Divisional Registrar writes to the appellant noting an application to extend time must be made with the appeal application and providing website details and phone numbers for resources to obtain information about an appeal. The letter says the Registry can take no further steps until a completed application is lodged with the applicable fee; 1. On 1 March 2019, the current appeal is filed.
3. The appellant submitted that between 10 September 2018 and 1 March 2019 he was preparing the appeal. He said that he could not afford a lawyer, that he had to do it all himself, that he had no office or computer or printer, and also that he had to attend the public library for this purpose and was restricted in the time he could use the facilities there. He provided details of the time and dates he attended the library from November 2018 onwards for this purpose.
4. The appellant said he has limited skills in the English language and that this slowed down his preparation. He told the Appeal Panel that he knew the appeal should have been submitted in the allocated time (he believed one week but the real period was actually 28 days) but he said the interests of justice would be served if the extension is granted, because of the injustice he suffered from the Tribunal's decision.
5. The respondent submitted that the material provided by the appellant shows the appellant was able to apply to the Tribunal to set aside the decision and that he was aware of the limited time for filing an appeal and in fact was able to write a number of letters to the Registry concerning compliance with orders. The respondent further submitted that the other material filed indicates a fair ability with the English language, and that in the circumstances the explanation provided for the delay in filing an appeal is insufficient.
6. The Appeal Panel asked the appellant why it took so long to file the appeal and he said he was working on the 46 pages of submissions. He made only slow progress because of the limitations on access to a computer and his lack of skill in the English language.
7. The Appeal Panel does not accept that the explanation provided by the appellant adequately explains the five (5) month delay because an appeal could have been filed in time and if there was a delay in providing submissions, it was a matter to be dealt with by appropriate directions.
8. As to prejudice to the respondent if an extension is granted, none has been identified apart from the potential loss of the decision in its favour.
9. As to the appellant's prospects of success, we deal with that in the following section.

Nature of the appeal

1. This is an internal appeal pursuant to s 80 of the NCAT Act. The appeal may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act leave to appeal may only be granted under s 80(2)(b) if the Appeal Panel is satisfied an appellant may have suffered a substantial miscarriage of justice because:

• the decision of the Tribunal under appeal was not fair and equitable, or
• the decision of the Tribunal under appeal was against the weight of evidence, or
• significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarised at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred.
2. Even if an appellant from a decision of the Consumer and Commercial Division satisfies the requirements of cl 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). As was explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
3. Also see Collins v Urban at [84] to similar effect.

Whether there was an error of law

1. The appellant did not raise an error of law in the Notice of Appeal; nor did he agitate an error of law in argument before the Appeal Panel. In circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [11].
2. The 46 pages of submissions by the appellant deal with the Tribunal's decision sentence by sentence providing comments, expressing dissatisfaction with the Tribunal's findings and seeking to re-argue the merits of the decision. These are repetitive and do not identify an error of law. Many are inaccurate. Some are quite inappropriate, for instance, the appellant repeatedly accuses the Tribunal member of telling lies.
3. However, for completeness, there is one argument that might be characterised as an error of law. The appellant says it was unfair that the University was represented by lawyers while he was not. We think the appellant was arguing that this is a denial of procedural fairness and therefore might constitute an error of law.
4. The material provided by the appellant (at page 163 of his bundle) discloses that on 22 May 2018 the Tribunal approved legal representation for both parties. Before doing so, it gave Mr Ghaderi an opportunity to make submissions on the issue (see p. 164). If there be any doubt, Mr Ghaderi challenged this and the University's request for legal representation was confirmed at a later directions hearing on 17 August 2018.
5. The issue was again considered at the Tribunal hearing. The Tribunal's reasons in the decision under appeal state at [3]: 3. At the outset, [Mr Ghaderi] objected to the [University] appearing by counsel. An earlier objection was dealt with by the Tribunal on 17 August 2018. The last sentence of the reasons given on 17 August 2018 was "if it appears to the Tribunal that the grant [of leave to the respondent to be represented by counsel] is resulting in procedural unfairness, the grant may be revoked". There was nothing in the course of the hearing that caused the Tribunal to consider revoking the grant."
6. The appellant did not identify any particular event or events in the course of the hearing which resulted in procedural unfairness and which made the legal representation of one party amount to procedural unfairness. His argument to the Appeal Panel was a general one that the University should not have a lawyer if he did not have a lawyer.
7. Mr Ghaderi was not denied an opportunity for legal representation and the fact that one party had legal representation and the other did not, does not of itself give rise to any procedural unfairness. We cannot discern any error of law in the circumstances.
8. We have not identified any other arguable error of law. Accordingly, in our view, the appellant requires leave to appeal in respect of any other claimed error.

Whether leave to appeal should be granted

1. The appellant's submissions largely seek to re-argue the case in the Tribunal or to complain that the evidence from the University was preferred to his own evidence. Doing the best we can from the appellant's material filed in the appeal, we have identified two main sources of complaint.
2. The first is the appellant's complaints that the decision was against the weight of the evidence or was not fair and equitable. We have read the submissions in detail but cannot identify any significant finding where the Tribunal did not have evidence upon which the decision was founded. The material available shows the Tribunal was entitled to make the findings which it did.
3. The Appeal Panel did not find any error in the fact finding by the Tribunal.
4. The Appeal Panel is satisfied the findings were not against the weight of the evidence, nor were they not fair and equitable, in the context of this claim. The Appeal Panel finds the appellant has not been deprived of a significant possibility or a chance which was fairly open: Collins v Urban at [76] - [79].
5. The second main source of complaint concerns the excessive noise issue.
6. The appellant's material disclosed that the procedure at the University accommodation was that in the event of excessive noise, a complaint was made to a "Residential Assistant" (or "RA") present on site who would investigate and keep a report (or "log entry") of the complaint and event. The appellant said the University did not provide him with copies of all the log entries from the RAs in respect to his complaints of excessive noise. He said seven (7) logs were missing. The appellant said the logs were requested before the Tribunal hearing and if they had been available, the missing ones would have supported his argument that the noise was excessive.
7. The appellant had asked the University for the logs but did not issue a summons for production of the logs before the Tribunal hearing. He did not seek an adjournment of the hearing to obtain them.
8. The appellant sought the issue of a summons for their production finally as part of these Appeal Panel proceedings but his application was refused on the ground that the documents sought were reasonably available prior to the Tribunal hearing - see orders made by Appeal Panel constituted by M Harrowell, Principal Member, 8 April 2019.
9. The appellant says that he should have the opportunity to obtain these missing logs. The Appeal Panel understands the appellant's argument to be that the missing logs are significant new evidence which will result in a different outcome.
10. The Appeal Panel is not satisfied that the additional evidence is evidence that was not reasonably available at the time the proceedings under appeal was being determined. The appellant simply failed to ensure their production prior to the Tribunal hearing.
11. Accordingly, the Appeal Panel finds the appellant has not been deprived of a significant possibility or a chance which was fairly open with respect to the excessive noise issue: Collins v Urban at [76]- [79].
12. In our view, such finding is sufficient to decide that issue. However, as part of its response to the appeal, the University located most of the missing logs and provided copies of them to the Appeal Panel. They were annexed to an affidavit of Stephanie Walsh dated 24 April 2019. The Appeal Panel admitted this affidavit into evidence for the limited purpose of reviewing the appellant's prospects of success in the application to extend time. The Appeal Panel reviewed the logs and agrees with the submission of the University that even if produced, the missing logs would be unlikely to alter the outcome.

Analysis of prospects of success

1. There is no arguable error of law. The Appeal Panel considered the appellant's arguments for leave did not raise sufficient doubt about the factual findings by the Tribunal or the excessive noise issue to satisfy the limitations imposed by cl 12 of Sch 4 of the NCAT Act for the granting of leave to appeal.
2. If the Appeal Panel is wrong on this issue, for completeness it notes that even if the considerations in cl 12 of Sch4 were satisfied it is unlikely that leave pursuant to s 80(2)(b) would be granted because there is no issue of principle involved, no question of public importance, no reasonably clear injustice and there is no clear mistake nor error in the fact finding process: Collins v Urban at [84].
3. For those reasons, the Appeal Panel is not persuaded that the appellant has reasonable prospects of success if leave were granted.

Exercise of discretion whether to extend time

1. There is another discretionary consideration. Of particular note is that even if the appellant had proved his claim, there is uncertainty whether the appellant would be entitled to any remedy such as compensatory damages. The Tribunal said (at [10]) that it was not persuaded, with regard to the hot water issue, that the claimant suffered loss, damage or injury beyond inconvenience. While the Tribunal did not make the same finding with respect to the excessive noise issue, the Appeal Panel considers the same conclusion would probably be reached. Accordingly, there is a real likelihood that a compensatory remedy would be denied on the basis that only inconvenience was experienced, and there was insufficient loss or damage to found an award of compensatory damages.
2. The Appeal Panel noted that although there is no prejudice to the respondent if time is extended, there are a number of countervailing factors identified which suggest time should not be extended - including the long delay, the unsatisfactory explanation for the delay, the lack of reasonable prospects of success, the "vested right" of the respondent in the decision of the Tribunal and the doubt about any eventual remedy.
3. In exercising the discretion in s. 41 of the NCAT Act, the Appeal Panel balanced all these factors and concluded that strict compliance with the Rules will not work an injustice upon the appellant. Accordingly, the application to extend time is refused.

Orders

1. For the above reasons, the Appeal Panel orders: 1. the application to extend time for filing the Notice of Appeal is refused; 2. the appeal is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 04 June 2019