Haggerty v Dooley

Background to appeal

1. The respondent to this appeal and in the primary proceeding was the landlord and the appellant was the tenant of residential premises being a unit in Manly, in Sydney, NSW. There was an initial written residential tenancy agreement dated 16 March 2019. This was succeeded by a further written residential tenancy agreement dated 27 March 2020 for a fixed term from 16 March 2020 to 24 March 2021. Rent under the initial tenancy agreement was $2,607.14 per month with a bond of $2,400; rent under the replacement tenancy agreement was $1,200 per fortnight. The tenant vacated the premises on 9 March 2021.
2. On 18 February 2021 the tenant, then the applicant, filed RT 21/07654 being the proceedings from the decision in which this appeal is brought.
3. The only claim, out of several in the application, pursued by the tenant at the primary hearing was a claim for a rent reduction of $215 per week from 10 July 2020 until vacation under s 44(1)(b) in conjunction with ss 45 and 47 of the Residential Tenancies Act 2010 (NSW) (RTA).
4. There was no litigated issue over whether or not the tenant was an "impacted tenant" under the covid-relief legislation. The tenant said that 10 July 2020 was when she first requested a temporary rent reduction. The tenant's broad claims for relief as specified in her application did not include a claim for payment of an amount of money or for compensation under RTA s 187(1)(c) and (d).
5. The tenant had emailed the managing agent for the landlord on 10 July 2020 requesting installation of screens, peeling paint in the bathroom, leaking pipes underneath the bathroom and the kitchen sink and ceiling leaks. A further email on 5 August 2020 indicated that the kitchen pipe issue had been rectified but that there was still an issue with the shower vent.

Primary decision

1. The tenant's proceedings were dismissed by the Tribunal on 9 June 2021 because they were not filed on or before 10 October 2020. The primary member said that, under RTA s 190 with reg 39(9) of the Residential Tenancies Regulation 2019 (NSW), the rent reduction relief pursued at primary hearing was required to be sought within three months of the applicant tenant becoming aware of the alleged breach.
2. The primary member said that, although the tenant claimed that she had followed up with the managing agent by email in October 2020 and had conversed with the landlord or his son when she saw him around the building, the specific dates and documentary support had not been provided. There were emails in evidence recording the tenant's complaints in February 2021 about jackhammering in the unit above and the continuation of debris falling from the shower vent.
3. The primary member concluded: "On the information before me, the application by the tenant should have been made by 10 October 2020, within three months of the landlord being made aware of the issues. The tenant's application was made some seven months after the issue was first identified in the email to the agent on 10 July 2020, and although the tenant is not without prospects of success, I consider there is significant prejudice to the landlord in having certainty regarding their obligations. I am not satisfied the tenant made repeated requests for the issues to be rectified, or that it is appropriate that the time for making the applica[tion] should be extended. Accordingly the application is dismissed as it is out of time."
4. The reference to refusal of extension of time was to the Tribunal's power to extend time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) in the following terms: "(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."

Extension of time

1. The tenant's notice of appeal was filed on 25 June 2021, which was two days out of time under rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW). We were not told of any objective prejudice arising from that slight delay and extend time for the filing of the appeal to and including 25 June 2021 under CATA s 41.

Grounds of appeal

1. The notice of appeal had been prepared by the appellant tenant without legal assistance. In accordance with the approach outlined in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12] and in Cominos v Di Rico [2016] NSWCATAP 5 at [13], we discern the grounds of appeal, in summary, to be as follows: 1. Error in alleged failure to consider relevant evidence - all the relevant previously-submitted files were said to be provided on appeal. 2. Findings allegedly not fair and equitable causing a substantial miscarriage of justice. 3. Error in finding the rent reduction claim was required to be brought within three months of the landlord becoming aware on 10 July 2020 of certain of the alleged breaches. 4. Error in refusing extension of time to bring the rent reduction claim to the extent (if any) that an extension was required.
2. Under the applicable legal principles governing appeals summarised in the next section of these reasons, grounds 3 and 4 as we have identified them are characterised as alleged errors of law, ground 1 as we have identified it is characterised as an alleged error of law or alleged error of fact and ground 2 is characterised as an alleged error of fact.
3. Neither party referred us to relevant case law on the foregoing matters but the tenant raised the issues and said that she wished in effect to leave the law to us to determine whether her argument was or was not correct.

Applicable legal principles governing appeals

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary 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. Clause 12 of Schedule 4 to CATA states: An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have 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).
3. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
4. A question of law may include, not only an error in ascertaining or characterising the legal principle or statutory provision or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
5. These categories are not exhaustive of errors of law that give rise to an appeal as of right. In Prendergast at [13], the Appeal Panel enunciated the following as specifically included: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
6. The "no evidence" ground must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error (a form of error of law): AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 34;, [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263; [2001] FCA 865 at [52]-[56].
7. A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, by s 38(6)(a) of the CATA, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
8. Legal unreasonableness can be concluded if the Panel comes to the view that no reasonable tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at 364 [68]). A failure properly to exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li at 367 [76]. There is an analogy with the principle in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505 that an appellate court may infer that there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust" and legal unreasonableness as a ground of judicial review: Li at 367 [76]. Further, there is some authority to the effect that unreasonableness as a ground of review may apply to factual findings, although this has not been finally resolved: see Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [153]; Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 at [29]; Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [193].
9. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]-[79] and [84(2)] as follows: "74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was 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 circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 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]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 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 because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), 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 then, 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 - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. … 84 The general principles derived from these cases can be summarised as follows: … (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
10. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37]-[39]: "37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"
11. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."
12. Even if the appellant establishes that he or she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the CATA, the Appeal Panel has a discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Panel's consideration of whether or not to exercise that discretion.
13. In dealing with errors of law and errors of fact, the Panel must be cognisant that the two can intermingle. The Panel must also be alert that, under Australian law, there is a different approach between two situations. The first of these is where the particular decision has involved evaluation from findings of primary facts and the drawing of inferences therefrom on which reasonable minds may differ but which must be accepted as legally correct unless overturned or varied on appeal. The second situation arises where there has been an exercise by the primary decision-maker of a discretion or choice embodied in the statute or law being applied, including as to whether relief is to be granted or refused and the form of relief: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [18], [20], [26], [30]-[32], [43]-[45], [48]-[49], [55]-[56], [85]-[87], [127]-[128], [153]-[155].

Error of law

1. Although not expressly referred to by the parties and in effect left by them up to us (the appellant expressly, the respondent implicitly), there is established case law that a claim for rent reduction under RTA s 44 is distinct from a claim for a money order or compensation under RTA s 187(1)(c) and (d). Even though both may be based on establishing a breach of tenancy agreement, the claim for relief under RTA s 44(3) need not be. All that was necessary was the relevant withdrawal or reduction of services or facilities by the landlord: Shailer v Serisier [2016] NSWCATAP 131 at [22], [29[-[31]; Davies-Evans v MacCulloch [2018] NSWCATAP 253 at [14], [17], [18]; Makowska v St George Community Housing Ltd [2021] NSWSC 287 at [43]-[46], summons for leave to appeal refused [2021] NSWCA 249; Jang v Vlotis [2021] NSWCATCD 89 at [26]-[36]; Hyndes v Maddak PL [2021] NSWCATAP 302 at [27], [43]-[56].
2. It follows that each claim has its distinctive time period in which to bring the claim: Bridgford v Brien [2017] NSWCATAP 54 at [40]. In the case of the claim for rent reduction, that period was filing prior to termination of the tenancy agreement: RTA s 44(3). This is the case even if the claim under RTA ss 45 and/or 47 is for repayment of excessive rent for a period (maximum twelve months) prior to the termination of the tenancy agreement: .
3. There is also case law that, in what can be characterised as an alleged continuing breach of the tenancy agreement, a claim for a money order or compensation is within time if brought within three months of the last of that continuum, and that an extension of time may be justified to pick up within the claim for compensation periods prior to the three months preceding the filing of the claim: Hundt v Kong [2018] NSWCATAP 156 at [27]-[43] and authority cited therein, being NSW Housing Corp v Tanious [2016] NSWCATCD 57, BC 201608161 at [27]-[31] and Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [91]; and Hyndes at [56]. The tenant did not seek such relief in the present proceedings so we do not need to discuss it further.
4. Here the tenant clearly filed her claim for retroactive rent reduction prior to termination of the tenancy. The Tribunal clearly refused her claim on the basis that it was out of time and an extension of time was not justified, without making findings on merits but acknowledging that the tenant was "not without prospects of success". In that basis of refusal the Tribunal clearly applied the time limit in RTA s 190 to the tenant's claim under RTA s 44(3) without considering whether that was appropriate as a matter of law, on case law which was probably not raised with the primary member by either party.
5. Such is an error of law. The appeal must succeed on that ground. It is not necessary to consider the other grounds.

Appropriate relief on the appeal

1. CATA s 80(3) with s 81 provides that, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. The section sets out a list of available orders which is not exhaustive. That list includes allowing the appeal, setting aside the primary decision and, on the one hand, re-determining the matter on the evidence that the parties place before it for that purpose or, on the other hand, remitting the whole or any part of the case to the primary level of the Tribunal for reconsideration, either with or without further evidence and in accord with the Appeal Panel's directions. The Appeal Panel may in dealing with the primary decision exercise all the functions conferred on the Tribunal at first instance.
2. The error of law that we have identified necessitates a re-hearing because no decision on the merits has been made. It is not appropriate that the Appeal Panel itself engage in the primary fact-finding and determination on the merits, as it has not heard full argument on those matters and such an approach would deny the parties the opportunity to seek a review in the Appeal Panel of what would in effect be the primary decision. Such an approach also would deny the parties the opportunity to review the state of the evidence and of the claim generally, hopefully with the benefit of legal advice, and in the process possibly reach a resolution by compromise agreement however difficult that negotiation might be.
3. We therefore conclude that the appeal should be allowed and the entire case remitted to be reconsidered by a member of the Tribunal with the parties having the opportunity, before that further primary hearing, to review what is to be argued and the evidence to be led in that further hearing. The proceedings should be listed for directions in the Consumer and Commercial Division to enable the parties to address the scope and timing of any further evidence.
4. We see no basis at this point for excluding from the further hearing the primary member who made the decision from which this appeal has been brought. The member did not make factual findings including in relation to the credit of witnesses: cp Walker Corporation v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 at [121] (5) and (7). However, if the parties seek to have another member hear the matter afresh that can be raised at the directions hearing.

Costs of appeal

1. Rule 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) applies the same costs rules as applied in the Division when there is a departure under the Division rules (such as under Rule 38) from CATA s 60. Rule 38 does not apply because the claim is under $30,000, so rule 38A has no work to do and CATA s 60 applies to costs of the appeal.
2. There are no special circumstances as required under CATA s 60 to justify an award of any costs of the appeal, if there are any when the parties are self-represented.

Orders

1. The orders we accordingly make are as follows: 1. The time for filing the appeal is extended to 25 June 2021. 2. The appeal is allowed. 3. Remit the proceedings to the Tribunal for re-hearing before any Member.

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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: 17 November 2021