Haines v Tohadze

The Grounds of Appeal

1. The tenant alleged a number of matters which are not relevant to an appeal. For example, he complained of issues with the teleconferencing system but does not allege that those issues prevented the proper hearing of his case.
2. We have attempted to distil grounds of appeal from the tenant's documents which are relevant to an appeal. There are four.
3. The tenant's first ground of appeal was that: "There has been an error in procedure and I did not receive an equitable hearing. I was given 5 business hours of notice of a hearing in which 7 days previously (sic) I was notified of a hearing in January 2021.
4. The tenant's second ground of appeal, advanced for the first time in the tenant's oral submissions on the appeal, was that was that he was "under duress" at the time of the hearing, this duress being caused by his then existing medical condition.
5. The tenant's third ground of appeal was that he said he could "pay the rent daily rate at 1275PW".
6. His fourth ground of appeal was that at the hearing he asked for an adjournment, but that request was ignored.

Ground 1

1. At the hearing of the appeal the tenant said he was only given 15 minutes notice of the hearing at first instance, rather than the 5 business hours referred to in the Notice of Appeal, but the exact period of notice is not determinative of the outcome of this appeal.
2. Whatever the period of notice given, the real question is whether the notice given was insufficient to allow the tenant to properly present his case, whether in terms of evidence or submissions or some other aspect of a properly conducted hearing.
3. In this case it is evident that the tenant provided all the evidence that he desired to tender to the Tribunal. As the Tribunal recorded at [4] of its reasons, the tenant had served the evidence upon which he intended to rely.
4. In terms of submissions, the Tribunal recorded at [15] that the tenant had elected not to put any written submissions before the Tribunal and not to authorise another person to make submissions on his behalf to the Tribunal.
5. What those submissions might have been, or what possible defence they might have asserted in the face of acknowledged unpaid rent is unknown.
6. When we asked the tenant during his oral submissions on this appeal what he would have done differently (in terms of a defence to the landlord's claim) had the Tribunal given him more notice of the hearing, he answered that he did not know. That answer is consistent with the fact that on this appeal the tenant did not put forward any material, whether by way of evidence or submissions, that he said he had been unable to put to the Tribunal at first instance because of the short notice of the hearing.
7. That answer, together with the fact the tenant had led such evidence as he desired, and his election not to put any written submissions and not to authorise another person to make submissions on his behalf to the Tribunal, is fatal to this appeal.
8. That answer, together with the matters to which we have already referred, establishes that although the notice was short, there was no procedural unfairness visited upon the tenant.
9. Further, even assuming there had been some procedural unfairness arising from the short notice of the hearing, the ordinary remedy is an order for a new hearing. But before an order for a new hearing is made an appellant must demonstrate that had there been a properly conducted hearing there was a possibility of a different result to that which had occurred. That is, in this case, was there a real possibility of a different outcome had the tenant been given greater (and sufficient on his case) notice of the hearing?
10. What we have just said was laid down by the High Court in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. At p.145 the High Court said: "Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
11. Having decided that there was no procedural unfairness to the tenant, we need not decide this point. But had we been required to do so we would have found that the tenant had not persuaded us that had he been given more notice of the hearing there would have been a real possibility of any different result.

Ground 2

1. The tenant's second ground of appeal was that he was "under duress" at the time of the hearing, this duress being caused by his then existing medical condition. This is another allegation of procedural unfairness.
2. This ground was not mentioned in the tenant's Notice of Appeal nor any other document lodged with the Tribunal or served on the landlord prior to the hearing of the appeal.
3. On enquiry by us he said he was under no such duress on the appeal, his earlier medical condition having resolved or mostly resolved.
4. This duress, the tenant acknowledged, was not brought to the Tribunal's attention by him. Nor was the medical condition or duress proved on the appeal.
5. The tenant said that he had lodged and served two medical reports from his general practitioner, but such medical reports were not on the Tribunal file, were not attached to his Notice of Appeal (as he said they were) and were not served on the landlord.
6. Nor had the tenant obtained a copy of the sound recording from the hearing before the Tribunal and from which we might have been able to make some assessment of the correctness of his assertion as to duress. For example, we may have been able to hear whether he had answered the Tribunal's questions in a coherent and logical way, or whether the opposite was the case.
7. At the end of the day the tenant's claim that he was under duress at the time of the hearing before the Tribunal is an assertion made for the first time during the hearing of the appeal and is unsupported by any credible, corroborative evidence. Therefore, we do not accept that the appellant has proved that he was under any duress at the hearing before the Tribunal.
8. Nor, had we been required to decide, has the tenant established that there was a real possibility of a different outcome had the tenant not been under any duress.

Ground 3

1. The tenant's third ground of appeal was that he said he could "pay the rent daily rate at 1275PW".
2. This is not an appeal point, although it might potentially be relevant to the length of time the order for possession may be suspended.
3. However, possession was given by the tenant to the landlord on 10 December 2020 and so the ability to pay rent is no longer relevant.

Ground 4

1. The tenant's fourth ground of appeal was that at the hearing he asked for an adjournment, but that request was ignored.
2. A reading of the Tribunal's reasons reveal that the request was not "ignored". Rather, the Tribunal considered the request and refused the application. The Tribunal said: "14. The Tribunal refuses the adjournment request. The Tribunal weighed up the competing interests of the parties. On balance, the Tribunal concluded that the prejudice to the landlord caused by the further delay could not be cured by any other order. Since the consent orders were made on the 27.05.20 the tenant has incurred further arrears in the sum of $10,975. Furthermore, the tenant has not paid the rental bond of $4,000. The landlord is completely exposed for all arrears owed by the tenant, without the safety net of a bond."
3. Therefore, the application for an adjournment was considered and refused, it was not ignored.
4. Insofar as the tenant may be complaining that the refusal of the application was in some way erroneous, no error was identified by him nor is any identifiable by us. The Tribunal considered all apparent relevant matters, did not take any irrelevant matter into consideration, did not give undue weight to any particular matter, did not apply a wrong principle of law and did not make a material error of fact. As the Tribunal's reasons explain its decision, there is no room for the "unreasonable result" ground referred to in House v R (1936) 55 CLR 499 - see Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61; (2019) 99 NSWLR 419 per Bathurst CJ and Leeming JA at [9]-[10].

Conclusion

1. As all of the tenant's grounds of appeal have failed, we must dismiss the appeal.

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: 22 February 2021