The first arguable ground of appeal identified by Campbell J, on the stay application, was that the plaintiff was denied an opportunity to put additional material before the Appeal Panel.
In relation to this matter, Campbell J said the following (stay judgment at [9]):
… the Appeal Panel erred in law in denying Mr Hassan, who appeared for his aunt, the opportunity to put before the Appeal Panel additional material which he had indicated at the call over he wished to rely upon. He says it had been indicated to him that he would be given that opportunity and an adjournment if necessary would be considered. Now it seems to me that in the circumstances - and I will not go through all of the detail in relation to the circumstances as it has been expounded before me - that is arguably a natural justice point in that the plaintiff was not given the opportunity to put all the relevant material before the Appeal Panel and an adjournment was refused.
[2]
The plaintiff's ground of appeal in this Court
The plaintiff's ground of appeal in the amended summons is expressed in these terms (ground 1):
On the 28 February 2023. The tribunal set a short and unjust timetable for making written submissions and submitting evidence. The tribunal and the landlord made undertaking (sic) that the matter would have been adjourned at the request of the tenant. However, on the day of the hearing the tribunal refused to grant the adjournment as discussed during the call over. The tribunal then unfairly dismissed the matters without allowing time for submissions and evidence to be made.
It should be noted that the reference in the above "ground of appeal" to 28 February 2023 is an error: the orders that were made by the Tribunal were made on 8 February 2023, and the hearing of the appeal by the Appeal Panel was on 28 February 2023. Nothing turns on this error.
The plaintiff's written submissions in this Court covered this ground of appeal. These submissions are under the heading: "NCAT internal Appeal" (plaintiff's submissions dated 3 July 2023, p 18).
The key parts of the plaintiff's submissions, which refer to the "short timetable" for the filing of evidence and submissions, are as follows:
I objected and said I would have difficulties making the submissions on time and the tribunal member made orders that if submissions or evidence could not be prepared then he would adjourn the matter.
The principal member also made the defendant give an undertaking that they would not object to an adjournment being given if the 9-day timetable could not be met.
As explained in the written submissions the ground involves two interrelated complaints: first, that a short timetable was set for the hearing of the appeals and, in the course of fixing that timetable, an "undertaking" had been given - in effect that the plaintiff would have, if it was sought, an adjournment of the hearing of the appeal - and, despite that undertaking and the plaintiff seeking an adjournment, the appeal proceedings were not adjourned; secondly, as a consequence of that refusal to adjourn the hearing of the appeal, the plaintiff was denied an opportunity to present evidence in support of the appeal. (I note that the written submissions refer to "submissions", but the ground of appeal refers to evidence and submissions. The argument had as its focus "evidence" and I have approached the matter on that basis).
It is evident that the focus of the plaintiff's complaints is upon three matters of fact: (a) the short timetable - it appears to be argued that that timetable precluded the plaintiff from providing the evidence upon which she relied; (b) the failure to adhere to the undertaking to have the appeal adjourned; and (c) by declining to adjourn the matter, the plaintiff was denied the opportunity to present evidence to the Appeal Panel.
[3]
Some further matters of background
In order to deal with this ground, and "address" the questions of fact within it, it is necessary to set out some of the procedural history.
On 8 February 2023, the Appeal Panel made orders in connection with the preparation of the rent reduction appeal.
A copy of the orders is in evidence (Exhibit 3). Nevertheless, it is presently sufficient to refer to the Appeal Panel reasons at [50]-[51] which identified the key orders:
50. The Appeal Panel made directions for the preparation of the rent reduction appeal on 8 February 2023. The Appeal Panel made a number of orders in relation to the preparation of that appeal including the following:
1. leave was granted to the [plaintiff's] nephew (Mr M Hassan) to represent her on the appeal;
2. the [plaintiff] was to lodge and serve all the evidence given to the Tribunal at first instance on which she intended to rely, and any evidence not provided to the Tribunal at first instance on which she intended to seek leave to rely by 17 February 2023; and
3. the [defendant] was directed to do likewise by 24 February 2023.
51. In making those directions the Appeal Panel sensibly noted that the directions provided less time than usual for compliance and noted that should those directions be unable to be met the rent reduction appeal "may be adjourned and heard separately from" the termination appeal (emphasis ours).
Three matters should be noted. First, order 7 (which is summarised by the Appeal Panel in its reasons at [51]) in fact records that the directions were made "with the consent of the parties" (Exhibit 3). Secondly, from order 2, it will be observed that the Appeal Panel distinguished between (a) evidence that was before the Tribunal; and (b) evidence that was not before the Tribunal and upon which the plaintiff would seek leave of the Appeal Panel to rely upon that further material. Thirdly, the reference in the Appeal Panel's reasons at [51] to the termination appeal, is a reference to the appeal from the termination proceedings decision that had been filed by the plaintiff on 1 November 2022.
In relation to the termination appeal, the defendant pointed out that although the first call over of the rent reduction appeal was held on 8 February 2023, the first directions hearing in relation to the termination appeal was held on 11 November 2022 and both appeals were, at the request (or the agreement) of the plaintiff, consolidated on 8 February 2023 (defendant's reply submissions at [15] - a submission that is consistent with the notation that the directions were made with the consent of the parties). The point made - and one made by the Appeal Panel in refusing to adjourn the hearing of the appeal - is that the plaintiff had always considered that both appeals were required to be heard together because the issues in both proceedings substantially overlap: accordingly it was relevant to consider the fact that on 11 November 2022, the Appeal Panel gave directions which included a direction concerning the lodging of evidence that was in substantially the same terms that was made on 8 February 2023 (Exhibit 2, page 18).
As I have earlier noted (see [23], above), the plaintiff sought an adjournment of the Appeal Panel hearing - initially by letters sent to the Tribunal on 22 and 26 February 2023. The application for an adjournment was dealt with by the Appeal Panel at the commencement of the hearing, and refused (Appeal Panel reasons at [59]):
59. At the commencement of the hearing of the two appeals we heard the [plaintiff's] oral submissions in support of her application for adjournment. We refused the adjournment application for reasons given orally at that time.
The reasons of the Appeal Panel for refusing the adjournment are at pages 17-19 of the transcript (Exhibit 2). I will return to them once I have addressed some of the detail of the plaintiff's argument.
[4]
Consideration
It is necessary to first look at the contentions of the plaintiff.
As to the argument that an "undertaking" was given, it should be noted that in the amended summons, the ground of appeal was that the "tribunal" and the "landlord" had given an "undertaking" (see [79], above), whereas in the written submissions the plaintiff submitted that the tribunal "made" the defendant give an undertaking that it would not object to an adjournment being granted (see [82], above). When before Campbell J, it appears that what is said to have occurred at the call over was different again: Campbell J records that Mr Hassan made submissions that "an adjournment if necessary would be considered".
The defendant does not accept that any undertaking was sought or given. Based upon the record (that is, the orders, what is recorded in the reasons of the Appeal Panel at [50]-[51]) and the transcript of what occurred before the Appeal Panel there is no basis to find that any undertaking of any kind was given. Nor am I able to accept, given this material, that there was any failure to adhere to any stated position.
The Appeal Panel dealt with the matter in a way that is entirely consistent with the notation (recorded in the Appeal Panel's reasons at [51]) and the position as explained to Campbell J - viz., the rent reduction appeal may be adjourned - by considering the adjournment application. The Appeal Panel did not, by the notation made on 8 February 2023, bind itself to granting an adjournment if one was sought by either party. Whether an adjournment was to be granted was, of course, a matter for the consideration of the Appeal Panel in the event that an application was made.
The truncated timetable, and the argument that the plaintiff was denied an opportunity of producing evidence to the Appeal Panel are closely related, and will be dealt with together. This was the argument that the plaintiff - unsuccessfully - advanced before the Appeal Panel as a ground to adjourn the hearing of both appeals. The argument in this Court was a repeat of that argument.
By way of summary, the Appeal Panel's reasons for refusing the adjournment in connection with the "documents" (various grounds were put by the plaintiff some of which were rejected and the ground of appeal only concerns the adjournment application relating to "documents") were as follows: (a) in relation to the suggestion that the plaintiff was only able to provide some, but not all, documents, the Appeal Panel noted that the plaintiff had lodged a bundle of material that was "approximately 570 pages", but those documents formed part of a bigger bundle of documents "in excess of 1000 pages" or a "1500 page bundle" and those additional documents were at all relevant times in the possession of the plaintiff; (b) those documents, being at all relevant times in the possession of the plaintiff, could have been provided in December 2022 when the 570 pages of documents were provided and that is particularly so given the overlapping nature of the two appeals as perceived by the plaintiff and her nephew; (c) there was no "adequate excuse" for holding back the balance of the documents; (d) although justice was an important ingredient in hearing an appeal and in proceedings generally, there was also an obligation for the Tribunal to proceed "quickly and cheaply".
Some context can be given to the "documents" referred to in the above reasons by reference to the reasons of the Appeal Panel at [43]-[45]:
43. Returning to the narrative, and also on 15 December 2022, and in accordance with the Appeal Panel's directions made on 11 November 2022, the [plaintiff] lodged with the Appeal Registry a bundle of documents consisting of 570 pages for the termination appeal.
44. Self-evidently, the bundle of 570 pages was a selection of documents taken from the 1,500 pages of documents the [plaintiff] had available to her. It is clear from the fact that the bundle was hand-paginated that some thought had been given to which documents were to be included in that bundle and indicates that the [plaintiff] did not consider the balance of the 1,500 pages of documents were necessary to her case.
45. We should add that most of the documents in the bundle of 570 pages was not provided by the [plaintiff] to either Tribunal below. It is not appropriate to consider that material for that reason. There was no evidence that any of that material was not reasonably available to the [plaintiff] at the time of the two Tribunal hearings and so is not admissible to found an application for leave to appeal under cl 12(1)(c) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act").
Having set out that background, I return to the plaintiff's ground. In my view, there is no substance to it. That is for the following reasons. First, although the plaintiff argued why an adjournment was sought, the plaintiff did not - at any point - engage with or even refer to the reasons the Appeal Panel in refusing that application. Secondly, the plaintiff has not raised any ground to impugn the decision (aside from the point about breach of the "undertaking" - that I have rejected). Thirdly, the plaintiff did make an extremely limited reference to what occurred in relation to the adjournment application in her written submissions - in the following terms (plaintiff's submissions, p 18):
The members said I should have submitted the evidence in December 2022, however the first call over hearing for the matter was only held on 08 February 2023.
In my respectful view this argument does not respond to the thrust of what the Appeal Panel were raising - put simply, the point they made in the course of refusing the plaintiff's application for an adjournment was the plaintiff had an opportunity to lodge the material and had provided no adequate explanation (viz., "excuse") for not doing so. Fourthly, having reviewed the background and the reasons of the Appeal Panel, the approach taken by them was, in my respectful view, orthodox and in line with principle: there is nothing that emerges to suggest error in either the assessment of whether there was an "opportunity" to present evidence, or the finding that there was. Fifthly, no attempt has been made to demonstrate the materiality of the "documents", nor was an attempt made before the Appeal Panel to do so (Appeal Panel reasons at [41]-[42]. The finding made by the Appeal Panel, which has not been challenged on appeal, was that the plaintiff "has not demonstrated any practical injustice from their absence before the Tribunals" (Appeal Panel reasons at [42]).
In my view the plaintiff has neither suggested, nor demonstrated, error of any kind, less still that there is "question of law". Given these matters, and those referred to [99]-[100], above, I consider that leave should be refused: there is no issue of principle, no question of general public importance nor is there even, in my respectful view, any error going beyond the merely arguable.
[5]
The manner in which the Appeal Panel dealt with the "retaliation" issue: ground 9
[6]
Introduction
The second arguable ground of appeal identified by Campbell J, on the stay application, concerned the manner in which the Appeal Panel dealt with the "retaliation" issue.
In relation to this broad ground, Campbell J said the following (stay judgment at [10]-[11]):
10. The second point that I consider to be arguable is that the Appeal Panel was dismissive of the argument in relation to the termination appeal that the termination was retaliatory. Again, it is not necessary to go through all of the facts and circumstances in relation to the matter but it seems to me there is a possible factual basis for that in terms of the chronology of the commencement of the various competing applications in the Tribunal …
11. I am not here to decide the appeal. I am here to decide the application for a stay but it seems to me the issue was well and truly joined on that point and that if it was dismissed out of hand by the Appeal Panel, and if that can be established at the hearing, that is a matter involving an error of law in the sense of the Appeal Panel's decision-making process having miscarried by reason of it not dealing in an appropriate manner with an argument seriously advanced and worthy of consideration.
[7]
The plaintiff's ground of appeal in this Court
The ground of appeal in the amended summons is in the following terms (ground 9):
The Tribunal made an error of law regarding section 115 Residential Tenancies Act: An order declaring that a termination notice has no effect because it was a retaliatory notice.
The plaintiff's written submissions touched upon this "ground", as follows:
1. The plaintiff argued (page 11):
The eviction and cancellation of subsidy was retaliatory because I was seeking legal action against the landlord for breach of tenancy agreement by the landlord. This dispute with the client service officer arose before the cancellation of the subsidy an initial termination in January 2021.
1. The plaintiff argued (page 13):
retaliatory eviction because: I sought legal recourse against the landlord for the action of the client service officers for breach of quite (sic) enjoyment of property, breach of privacy and repairs, breach of tenancy agreement by the landlord.
1. The plaintiff argued (page 16):
The tribunal failed to deal with complete application specifically in relation to retaliatory termination.
[8]
Discussion and consideration
In my view, the appeal in relation to this ground should be dismissed, for the following reasons.
First, the ground (and the argument) is directed towards the Tribunal's decision, not the decision made by the Appeal Panel. As I have pointed out, above, a ground directed to challenging a decision of the Tribunal is inapt - s 83 confines the appeal to this Court to the decision of the Appeal Panel: Bronze Wing at [10].
Secondly, in my respectful view, the ground, as expressed, fails to conform to the requirements of r 59.4(c) and, importantly, fails to identify a question of law: the appeal to this Court is only by leave, and limited to "an appeal on a question of law": see the statutory provisions and authorities referred to at [38]-[40], above. As the authorities referred to emphasise, the existence of the question of law is not merely a qualifying condition to the right of appeal, but is the subject matter of the appeal itself. Thus, merely asserting - as is the case here - that the relevant decision maker "erred in law" is insufficient to satisfy the limited conferral of jurisdiction: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875 at [6]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. To be clear, no submissions were directed to any question of law in connection with the decision of the Appeal Panel.
Thirdly, it may be accepted that the existence of a question of law should be approached as a matter of substance, and not form, and that it may be appropriate (particularly where a party is self-represented) to adopt an approach of reading the "notice of appeal … as a whole, and read fairly" (Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [104]-[105]) so as to identify the question of law. However, in my view, even approaching the matter in that way, the ground of appeal is no more than an assertion that the Tribunal "erred in law" in not finding that the termination was retaliatory. In my respectful view, that does not involve a question of law, irrespective of how one reads the summons. To the extent this ground was (briefly) touched upon during submissions by the plaintiff, it amounted to no more than a bare statement that the eviction notice was retaliatory or that the conduct of "the person who cancelled her subsidy" was retaliatory in nature.
For these reasons, in my view, no question of law arises. It follows that there would be no utility in granting leave (and leave is refused) - which was, ultimately, the position that was adopted by the defendant not only in relation to this ground, but all others.
For completeness, although the plaintiff did not address the suggested error identified by Campbell J, I will say something further about this.
At the outset, two matters should be emphasised. The first is that the plaintiff's ground of appeal and the accompanying written submissions are directed to, and focuses upon, a different "error" than the issue that was the subject of comment by Campbell J in the stay judgement. To be clear, in that judgment, Campbell J did not identify any error of the kind pressed by the plaintiff; rather, Campbell J identified an arguable error in the way in which the Appeal Panel dealt with the "retaliatory eviction" in its reasons. Secondly, I recognise that, absent the plaintiff advancing submissions directed to this ground, there is a degree of tension in proceeding further to consider it given the authorities in [62]-[63], above. Nevertheless, the defendant (properly) addressed this argument in its written submissions, so I consider it appropriate to address it, albeit briefly.
Having considered the way and manner in which the issue of retaliation was considered and dealt with by the Appeal Panel, in my respectful view, the Appeal Panel was perfectly entitled to deal with the issue in the way they did. It follows that the approach taken by the Appeal Panel was not in error, and no question of law arises. I will (briefly) explain why I considered this to be so in what follows.
[9]
The Appeal Panel's reasons on "retaliation"
Although I have earlier set out some of the key events, it is necessary to return briefly to some matters of background - as well as aspects of the procedural history - to put this issue into focus.
[10]
The (relevant) procedural history before NCAT
On 12 September 2022 the Tribunal dismissed the rent reduction proceedings and determined the termination proceedings in favour of the defendant. Although the rent reduction proceedings were subsequently reinstated, and later determined by, the Tribunal, the termination proceedings were not reinstated.
In relation to the termination proceedings hearing, the plaintiff made a number of attempts to adjourn the hearing in the days leading up to it - in fact, on the morning of the hearing itself, the plaintiff's nephew (Mr Hassan) telephoned the registry of the Tribunal seeking an adjournment: see [13]-[14], above. The adjournment was refused, and neither the plaintiff, nor anyone on her behalf, attended and participated in that hearing.
The Tribunal hearing therefore proceeded in the absence of the plaintiff and the Tribunal Member favourably determined the defendant's application. There was, in the reasons for decision, no mention of - or reference to - the application for termination by the defendant as being retaliatory. It is not difficult to see why that was so: nothing was said in the "application", and the plaintiff did not attend and participate in the hearing to agitate, if she saw fit, that issue. These matters necessarily inform the way that the Appeal Panel approached, and decided, the matter.
The (reinstated) rent reduction proceedings were heard by the Tribunal on 21 November 2022. Pausing momentarily: thus, at the time the rent reduction proceedings were heard by the Tribunal, the tenancy had been terminated and orders have been made giving effect to that determination. It was for this reason that the Tribunal Member noted that as "the tenancy has now been terminated by the Tribunal", any order under s 115 of the Residential Tenancies Act (the section that concerns retaliatory evictions) was "misconceived" (Tribunal reasons at 7).
[11]
The decision of the Appeal Panel
The Appeal Panel dealt with the plaintiff's complaint that the termination notice was retaliatory in the following terms (Appeal Panel reasons at [85]):
The [plaintiff] submitted that the termination notice was retaliatory. No oral or written submissions were advanced to support that submission and it does not appear to have been raised below. We take the view the ground was abandoned. If not abandoned, we see no substance in it.
It is important to note a number of matters in connection with the Appeal Panel's reasons. First, no submissions were made by the plaintiff in this Court directed to demonstrating that the reasons in the extracted passage were erroneous in any way and involved a question of law. Secondly, although Campbell J considered that - admittedly impressionistically - the "termination" argument had been given "short shrift" by the Appeal Panel, once the wider context is considered (being the decisions of the Tribunal, the grounds of appeal raised and the submissions (or lack of submissions) made in support of those grounds), then in my view the Appeal Panel was perfectly entitled to approach, and deal with, the "issue" in the way that it did. Thirdly, it bears some emphasis that the task of the Appeal Panel was less than straightforward (as the Appeal Panel noted in its reasons at [63]): the notice of appeal itself, and the "material" in support of it, were largely unstructured and misdirected, and many of the grounds were not the subject of any written or oral submissions. They were mindful of the legal principles that I have referred to at [62]-[63], above: Appeal Panel reasons at [64]. Nevertheless, given the absence of meaningful submissions, rejection of this ground was well-nigh inevitable. Fourthly, the reasons and conclusions of the Appeal Panel must be viewed in their context: the Appeal Panel was considering whether the plaintiff should be given an extension of time - the notice of appeal was filed out of time - and as part of that (discretionary) consideration the Appeal Panel undertook an assessment of the merits and prospects of what the Appeal Panel could discern was (or was not) being argued by the plaintiff. Given that focus, I also consider that the Appeal Panel was quite entitled to deal with the "issue" in the way that it did.
In my respectful view, given the above matters, there is no substance to any complaint directed to the manner in which this issue was dealt with by the Appeal Panel. This is a further reason why leave to appeal should be refused in connection with this ground.
[12]
The absence of documents in the rent reduction proceedings before the Tribunal: grounds 26, 27 and 53
[13]
Introduction
The third "arguable" ground of appeal identified by Campbell J, on the stay application, was that documents were not available to the Tribunal for their consideration. In relation to that matter, Campbell J observed the following (stay judgment at [12]):
… in relation to the rent reduction proceedings inasmuch documents which had been previously filed in respect of an earlier rent reduction application (which had been dismissed for nonappearance) were not available to [the Tribunal] who considered that matter, as I said. It may be that those documents, had they been available, could have included evidence possibly affecting the assessment of the issues in relation to the rent reduction.
[14]
The plaintiff's grounds of appeal in this Court
The remarks of Campbell J are a reference to grounds 26, 27 and 53 in the plaintiff's amended summons. (In the original summons filed by the plaintiff - which was before Campbell J - ground 26 was ground 35, ground 27 was grounds 33 and 34 and ground 53 was ground 69).
The plaintiff's grounds of appeal in the amended summons are as follows (grounds 26, 27 and 53):
26. Failure of tribunal to manage documents and evidence submitted.
27. The tribunal member did not have all my evidence I submitted to the tribunal. I later discovered that the tribunal incorrectly place all my evidence into off-site storage. The tribunal failed and refused to retrieve the evidence. The matter should not have proceeded to hearing on until the tribunal discover what happened to all my evidence. Concerns were raised on multiple occasions to the member during the hearing that she did not have all my evidence.
…
53. Evidence of the plaintiff was incorrectly placed into off-site storage. The tribunal members did not have a large portion of my evidence in their possession.
The plaintiff's written submissions in this Court were expressed in essentially the same terms as the grounds.
[15]
The plaintiff's grounds of appeal before the Appeal Panel
These grounds, as is perhaps evident from their terms, were advanced before the Appeal Panel as a ground in the rent reduction appeal. Those grounds of appeal were expressed in the following terms:
The tribunal member did not have all my evidence I submitted to the tribunal. I later discovered that the tribunal incorrectly place (sic) all my evidence into off-site storage. The tribunal failed and refused to retrieve the evidence.
The matter should not have proceeded to hearing on the 21 November 22 until the tribunal discover (sic) what happened to all my evidence. Concerns were raised on multiple occasions to the member during the hearing that she did not have all my evidence.
Failure of tribunal to manage documents and evidence submitted.
The Appeal Panel squarely addressed these grounds of appeal (Appeal Panel reasons at [36]-[42]). The Appeal Panel also addressed some other issues relating to "documents", including a building report that was referred to in the course of proceedings and invited by the Tribunal to be tendered as evidence. Although lengthy, it is convenient to also set out, by way of background the manner in which this was dealt with by the Appeal Panel (Appeal Panel reasons at [32]-[42]):
32. During the hearing of the rent reduction proceedings the Member checked with the parties whether she had all of the evidence on which the parties' desired to rely. During that process the following exchange took place between the Member and Mr Hassan:
"MEMBER EFTIMIOU: So, it's one, two, three, four, five, six, seven lots of documents.
MR HASSAN: Okay. [0:41:20]. Okay. Yeah. That sounds about right.
MEMBER EFTIMIOU: So, you say everything contained in those documents is true and correct, and that's your sworn evidence that you seek to rely upon today. Is that correct?
MR HASSAN: Yes. That's right.
MEMBER EFTIMIOU: Any additions or corrections to those documents?
MR HASSAN: No. Just I wanted to - the 18 November documents, is that the adjournment and summons as well in there?
MEMBER EFTIMIOU: Yes. Correct.
MR HASSAN: Yeah."
33. Subsequently, a question arose whether the Tribunal had before it a report headed Jim's Building Inspection Report (a copy was provided on the appeal) which asserted that the premises were in poor condition with safety hazards, major and minor defects. We divert briefly to observe that the presence of safety hazards and major defects strengthen the case for the termination of the residential tenancy agreement due to the potential detrimental effects the hazards and defects may have on the tenant's physical and mental wellbeing.
34. The Tribunal said it did not have a copy of the Jim's Building Inspection Report, and the landlord said it had not been served with a copy. The matter was left on the basis that that report would be emailed to the Tribunal after the hearing. The Tribunal's decision was reserved. No copy of the Jim's Building Inspection Report was emailed to the Tribunal after the hearing.
35. On the appeal Mr Hassan said that at the hearing before the Tribunal on 21 November 2022 he had objected to the Tribunal proceeding with the hearing because the Tribunal did not have all of the documents lodged by the tenant. A fair reading of the transcript of that hearing contradicts that assertion. The only document allegedly lodged by the tenant and which the Tribunal did not have was the Jim's Building Inspection Report. Despite the Tribunal's invitation, the tenant did not subsequently provide that report to the Tribunal. Otherwise, as recorded in the transcript and quoted above, Mr Hassan confirmed the Tribunal had all of the documents on which the tenant relied. The Tribunal reserved its decision, with a written decision being given on 4 January 2023.
36. Meanwhile, on 8 December 2022, and in relation to the rent reduction proceedings, the tenant wrote to the Tribunal asking the Tribunal to retrieve its file in the original rent reduction proceedings.
37. On 15 December 2022, the Tribunal wrote to the tenant and said that the Tribunal's file in the original rent reduction proceedings was now stored offsite and could not be retrieved. The Tribunal advised the tenant that:
"Every case must be considered based on the documents provided for that file. If you wish to rely on any documents for matter RT 22/16245 you may consider lodging them for that file.
The Registry will then refer the additional documents to the Presiding Tribunal Member for consideration."
38. The significance of that correspondence is that the tenant asserted on the appeal that the documents contained in that original file were relevant to the issues in dispute in the termination and rent reduction proceedings but were not provided to the Tribunal Members who heard those proceedings on 12 September 2022 (the termination proceedings) or 21 November 2022 (the rent reduction proceedings).
39. On the appeal the tenant said that this original file contained some 1,500 pages of documents which were relevant to both proceedings and the appeal from the orders both proceedings. The tenant directed our attention to the Tribunal's correspondence set out at [36]-[37] above and asserted that this proved the documents were not available to the Tribunals which heard the termination and rent reduction proceedings.
40. It is significant to note that on the appeal the tenant conceded in oral submissions that she had, and has always had, copies of those 1,500 pages of documents. She was advised by the Tribunal on 15 December 2022 to lodge them again if she wished to rely on them and they would be referred to the Tribunal Member who heard the rent reduction proceedings. She did not do so.
41. Nor did she do so on either appeal. Insofar as she claims on the appeals a denial of procedural fairness by reason of the fact that she did not provide the 1,500 pages of documents to the Tribunals because, she alleged, the Tribunal could not retrieve them, the claim fails for two reasons. First, she was given the opportunity to lodge them with the Tribunal as evidenced by the Tribunal's correspondence of 15 December 2022. Second, she did not provide those documents to us. Procedural fairness is concerned with "practical injustice". That is, the tenant is required to demonstrate that the alleged denial of procedural fairness effected a practical injustice in order for that claim to be actionable. As Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]:
"Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."
42. The absence of the documents on the appeals, and the matters we refer to at [44]-[45] below, means that the tenant has not demonstrated any practical injustice from their absence before the Tribunals (assuming that was the case).
In relation to these grounds, the following matters should be noted. First, the plaintiff's grounds of appeal in this Court are directed towards the Tribunal's decision, not the decision made by the Appeal Panel. As I have pointed out, above, any ground directed to challenging a decision of the Tribunal is inapt - s 83 confines the appeal to this Court to the decision of the Appeal Panel: Bronze Wing at [10]. Secondly, in my respectful view, those parts of the Appeal Panel reasons comprehensively answer the plaintiff's complaint about "missing documents" including the following findings and conclusions: (a) that a "fair reading of the transcript … contradicts" the plaintiff's assertion that he objected to the Tribunal proceeding with the hearing because it did not have "all the documents"; (b) in relation to the "missing documents" generally, the Tribunal wrote to the plaintiff, on 15 December 2022, advising her that if she wished to rely upon further material that she should lodge them - and they would be referred to the Tribunal Member who heard the rent reduction proceedings; and (c) the plaintiff conceded that she always had copies of that material but, notwithstanding this and the invitation conveyed by the letter dated 15 December 2022, she did not lodge them. Thirdly, the plaintiff directed no submissions towards the specific findings of the Appeal Panel and why they were (and the decision more generally was) erroneous and raised a question of law. Fourthly, as I explained in relation to ground 1 (see [100], above), the Appeal Panel found that the plaintiff did not demonstrate that any practical injustice resulted from the absence of "documents": Appeal Panel reasons at [41]-[42].
In my respectful view, given the above matters, there is no substance to any complaint directed to the manner in which this issue was dealt with by the Appeal Panel. Leave to appeal must be refused in connection with this ground.
[16]
Orders
For the above reasons, I make the following orders:
1. Extend the time for the plaintiff to file the amended summons to appeal from the decision of the Appeal Panel dated 15 March 2023.
2. Refuse the plaintiff leave to appeal.
3. Order the plaintiff to pay the defendant's costs of the proceedings in this Court.
4. In the event that any party seeks to vary the costs order, grant liberty to apply with such liberty to be exercised by notice in writing to my Associate by 20 January 2024, 5pm, with a view to directions being made in Chambers and the question(s) being determined on the papers.
5. Direct that the Registrar of the Court send by post a copy of these reasons for judgment to the plaintiff.
[17]
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Decision last updated: 22 December 2023
For completeness, it should be noted that the plaintiff filed in this Court a notice of motion dated 10 May 2023 seeking a stay of a warrant for possession issued by NCAT in respect of the plaintiff's residential premises. The application first came before the Duty Judge on 11 May 2023, who stayed the warrant for possession until the date the motion was heard.
On 19 May 2023, Campbell J heard the plaintiff's notice of motion and stayed the warrant for possession made by NCAT until "the disposition of the appeal on the condition that the plaintiff pay an occupation fee in respect of her continued occupation of the premises in the sum of $250 per week" (order 2), and further his Honour made orders that a pro bono referral be made by the Registrar on behalf of the plaintiff (order 3): Halil v NSW Land and Housing Corporation [2023] NSWSC 553 (the 'stay judgment').
The pro bono referral was unsuccessful, and the plaintiff appeared before me without the benefit of legal assistance. As I have noted, the plaintiff sought, and was granted, leave for her nephew to represent her in the proceedings.
The nature of the appeal: s 83 of the NCAT Act
Section 83 of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act') deals with appeals from the Tribunal to the Court. That section relevantly provides:
83 Appeals against appealable decisions
(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.
(2) …
(3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following -
(a) an order affirming, varying or setting aside the decision of the Tribunal,
(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.
An 'appealable decision' extends to "any decision made by an Appeal Panel in an internal appeal": s 82(1)(a) of the NCAT Act. This section, when read with s 83(1), confines the appeal to the decision of the Appeal Panel: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [10] ('Bronze Wing').
During the course of submissions, the defendant drew attention to Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 at [44]-[45], where I said (relevantly) the following in relation to s 83 of the NCAT Act:
44. Section 83(1) contains two express limitations: the first is the requirement for leave; the second is the existence of a question of law - which is "not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself": TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, 178; [1988] FCA 119.
45. As to the existence of a question of law, some matters are clear. First, a mixed question of fact and law does not fall within the description of "question of law alone" (Attorney General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]), nor is it a question of law: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]. Secondly, it is insufficient to merely assert that the relevant decision-maker "erred in law" so as to satisfy the limited conferral of jurisdiction: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875 at [6] ('Ferella'); Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] ('Schwartz') … Thirdly, a matter that is wholly or partly factual is not converted into legal error (or involve a question of law) merely by using the description "erred in law": "no amount of formulary" will transform something into a legal error if it is not: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, 527; [1990] FCA 689. Fourthly, the grounds of appeal are required to explicitly identify the question of law raised: Ferella at [6] and [22]; Schwartz at [13]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [26]. Finally, although s 83(1) of the NCAT Act confines an appeal to this Court to an appeal "on a question of law", there is no clear test available to define a question of law (Ferella at [4]) - or a test of universal application: Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389, 394; [1996] HCA 36.
The amended summons
As I have earlier pointed out, the amended summons contains 55 appeal grounds. It is apparent that the grounds contained within the summons have been drafted by, or on behalf of, the plaintiff without legal assistance. It is sometimes the case that, with the benefit of written submissions, grounds of appeal that are sub-optimally expressed can be understood or are clarified. However, here the submissions of the plaintiff did not usefully illuminate the grounds contained within the amended summons.
I am mindful of the fact that the appeal has been presented by the plaintiff without the benefit of legal assistance. The essential duty of the Court in cases where there is an unrepresented litigant is to ensure a fair hearing: Hamod v New South Wales [2011] NSWCA 375 at [309] ('Hamod'); Bauskis v Liew [2013] NSWCA 297 at [66] ('Bauskis'). The duty, however, has limits. Relevantly here, two of them should be emphasised. First, "the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved …": Hamod at [310]; Bauskis at [68]. Secondly, it is "not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant": Hamod at [312]; Bauskis at [69].
Given the plaintiff has been represented by her nephew (who is not legally trained) I have endeavoured to fairly and justly identify the nub of what was sought to be argued. Nevertheless, even approaching the matter in this way it must be recognised that there are limits. One of them is that the Court "is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point": Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21]; Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [42]. This is particularly relevant here because, with respect to the plaintiff, much of what was argued could fairly be described in these terms.
In terms of the appeal grounds, they too have significant limitations. In my view, the plaintiff has largely - if not uniformly - failed to identify any question of law by the grounds contained within the amended summons. Usually - if not invariably - the grounds are defective for more than one reason. In what follows, so as to avoid undue repetition, I address each of the grounds of appeal by reference to the principal reason for why I consider each ground to be defective.
The complaint involves a question of fact
There are a number of grounds of appeal that complain about evidence, fact-finding and the manner in which the Tribunal dealt with evidence. Before identifying those grounds, and why no question of law (or error of law) is involved, it is useful to briefly restate a number of relevant well-established principles:
1. A finding that "is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way" is an error of fact, not of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156 ('Azzopardi'). Moreover, "no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another": Azzopardi at 151.
2. Whether "there was no evidence to support a factual finding is a question of law, not of fact"; thus, it is an error of law to make a finding of fact for which there is no evidence: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [90]-[91]; Azzopardi at 149 and 151.
The grounds of the summons that, in my view, raise no more than a question of fact extend to the following grounds of appeal:
1. "Incorrect/invalid tenancy agreement - I dispute the residential tenancy agreement submitted by the landlord; to the tribunal, I submit that the residential tenancy agreement that was submitted to the tribunal by the [defendant], is not the same as the document that I have in my possession" (ground 6).
2. "I dispute the debt and rent ledger. I dispute the amount of arrears alleged. Only a single page of the rent ledger was every (sic) given to me and therefore did not give me the opportunity to look at it or pick out errors" (ground 7).
3. "The termination notices contain errors. Section 111 Residential Tenancies Act: An order declaring that a termination notice was or was not given in accordance with the Act" (ground 8).
4. "False and misleading representation by [the defendant] … The [defendant] made false and misleading representations to the tribunal regarding the cause of the flood of the property …" (ground 24).
5. "NCAT did not consider relevant matter/evidence: sufficient consideration was not given to the evidence I submitted for the termination matter" (ground 25).
6. "The Tribunal did not have any evidence to support its factual finding" (ground 37). (Although, superficially, this might be a step towards a question of law, the ground is fully set out in the quote: there are, thus, no particulars of the factual finding that was unsupported by evidence).
7. "NCAT did not consider relevant matter/evidence. The tribunal erred in failing to consider other relevant circumstances" (ground 39).
8. "The finding of fact has been unreasonably arrived at resulting in unfairness" (ground 43).
9. "NCAT decision contains an error which raises a question of public importance …" (ground 45).
10. "The NCAT finding contains plain and readily apparent errors, so that it would be unjust to allow it to stand" (ground 46).
11. "Many factual errors that were unreasonably arrived at and clearly mistaken" (ground 48).
12. "Decision against the weight of evidence" (ground 50).
13. "The tribunal unfairly and incorrectly accepted the dates and assertions given by the defendant" (ground 51).
14. "the tribunal has failed to consider directly relevant evidence. The tribunal did not give sufficient weight to objective and independent evidence that was provided by the [plaintiff] which ought to have been given weight" (ground 52).
15. "The tribunal gave wight (sic) to unsubstantiated evidence given by the [defendant]. I have provided the tribunal with evidence to show that the [defendant] is unreliable, and their statements cannot be taken as being true" (ground 54).
16. "I have provided the tribunal evidence of Michelle Parkinson making false and misleading representation (sic) to the tribunal in writing and then changing her position …" (ground 55).
The error is directed to the decisions of the Tribunal, not the Appeal Panel
There is a striking similarity - in truth, an overwhelming duplication - between the grounds of appeal contained in the amended summons and the grounds of appeal in the termination and rent reduction appeals (that is, in the grounds of appeal raised before the Appeal Panel).
It is evident, from a consideration of the grounds identified in the summons filed in this Court, and the grounds contained in the notices of appeal from the decisions of the Tribunal to the Appeal Panel, that 54 of the 55 grounds are of that character. That is, the very grounds sought to be pursued in this Court (assuming leave were granted) merely seek to re-agitate the complaints raised in the appeals from the Tribunal to the Appeal Panel.
That this is so demonstrates that many of these grounds are simply inapt: the appeal to this Court is confined, by s 83 of the NCAT Act, to the decision of the Appeal Panel, and not the Tribunal: Bronze Wing at [10]. It also reinforces (to the extent needed) the absence of a ground of appeal on a question of law from the decision of the Appeal Panel.
The grounds which seek to challenge the decision of the Tribunal extend to the following grounds of appeal:
1. "The tribunal did not have jurisdiction to determine the matter and that the sections of the Residential Tenancies Act 2010 have not been satisfied. There was no justification for termination or possession" (ground 5).
2. The tribunal made an error of law regarding section: section 87(4) of the Residential Tenancies Act 2010 …" (ground 10).
3. "The tribunal made an error of law regarding section: section 87(5) (c) of the Residential Tenancies Act 2010…" (ground 11).
4. "The tribunal made an error of law regarding section: section 87(5) (d) of the Residential Tenancies Act 2010 …" (ground 12).
5. "The tribunal made an error of law regarding section: 88 (3) RTA 2010 …" (ground 13).
6. "The tribunal made an error of law regarding section: Section 89 (5) of the Residential Tenancies Act 2010 …" (ground 14).
7. "The [defendant] conducted the matter in a way that unfairly disadvantaged me. The tribunal made an error of law and failed to consider my application and evidence …" (ground 15).
8. "The tribunal made an error of law regarding section: Section 94 of the Residential Tenancies Act 2010 …" (ground 16).
9. "The tribunal made an error of law regarding section: S154E Housing Act 2001 …" (ground 17).
10. "The tribunal unfairly refused to request to issue a summons to obtain documents from the [defendant] which would have supported my claim" (ground 19).
11. "The tribunal considered irrelevant documents that where (sic) not prevalent (sic) to the matter" (ground 23).
12. "NCAT refused to issue a summons on two separate applications" (ground 28).
13. "The tribunal made an error of law regarding mitigation of loss. Tribunal erred in finding that the [plaintiff] had failed to mitigate loss" (ground 29).
14. "The tribunal made an error of law regarding access to property" (ground 30).
15. "Failure to apply relevant legislation. NCAT made an error of law by interpreting the Residential Tenancies Act incorrectly…" (ground 33).
16. "NCAT made an error of law by taking into account irrelevant considerations. Misinterpretation of and error in applying facts and evidence" (ground 35).
17. "NCAT made an error of law by failing to give an adequate explanation of its reasoning process. The Tribunal did not give adequate reasons for the decision" (ground 36).
18. "The tribunal member assisted the [defendant] in making submissions and coached the [defendant] in replying to the [plaintiff]. Issues were raised by the Member at the hearing that were not the subject of any prior submission or evidence put forward by the [defendant]" (ground 40).
19. "The tribunal had failed to make specific findings about critical matters. There was a significant possibility that a different result would have followed if that finding had been made and that a substantial miscarriage mas (sic) occurred" (ground 42).
20. "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" (ground 49).
In relation to the requirement for leave, the relevant principles that govern the question of leave are well established: leave to appeal will ordinarily only be granted "concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what being merely arguable": Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Corcoran v Far [2020] NSWCA 140 at [12].
I have dealt with these grounds in line with the approach discussed in Saberi v Bakhshizadeh [2022] NSWCA 142 at [8] and Edwards v State of New South Wales [2022] NSWCA 187 at [58] (and the cases there cited). Leave to appeal is refused in relation to those grounds. Some grounds of appeal remain, and stand outside what I have covered above. Those grounds - which essentially align to the grounds identified as arguable in the stay judgment delivered by Campbell J - are: grounds 1, 9, 26, 27 and 53. They are covered in the next section of these reasons.