Hull v Gibbs

Extension of time to file the appeal

1. The appellant was informed of the decision of the Tribunal dismissing his application on 2 May 2016. In the case of an internal appeal against a decision made in residential proceedings, a notice of appeal must be lodged within 14 days from the day on which the appellant was notified of the decision (see rule 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules)). The notice of appeal was filed on 7 June 2016 and the appeal was therefore commenced 3 weeks out of time.
2. The appellant requires the leave of the Appeal Panel to maintain the appeal.
3. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel considered the principles which govern the granting of an extension of time. The Appeal Panel stated at [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: (1) 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]; (2) 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].
4. At the hearing of the appeal the appellants tendered no evidence in support of their application for an extension of time. By way of explanation, the appellants' agent indicated from the bar table that after he was informed of the decision he was waiting for instructions from the appellants but one of the appellants suffered from a significant ongoing illness and instructions were delayed. In addition, the appellants submitted that they were unaware of the time limits and pointed out that the Notice of Appeal itself does not indicate the relevant time limits. The agent submitted that the Notice of Order only makes reference to 28 days ( to request written reasons), and that he took this to mean the appellants had 28 days to file an appeal. Having regard to the prospects of success of the appeal and the relatively minor delay in lodging the appeal, and in the absence of any opposition from the respondent, we have decided that leave should be granted to the appellants to proceed with the appeal out of time.
5. Time for filing the appeal is extended to 7 June 2016 in accordance with order 1 above.

The Notice of Appeal

1. In the Notice of Appeal, the appellant sought leave to appeal and the grounds of appeal were set out as follows:
2. The appellants have suffered a substantial miscarriage of justice because: 1. The decision was not fair and equitable; 2. The decision was against the weight of evidence; 3. Significant new evidence is now available that was not reasonably available at the time of the hearing.
3. In respect of the decision not being fair and equitable, the appellant states as follows: The member based his decision on a case of Foote v Halhos CTTT (2002) and the Anforth and Christensen "Residential Tenancies Law and Practice". The member did not give the landlord or the landlord's agent the opportunity to read, consider, discuss or even object to the case being used. The member only gave the opportunity to the tenant's advocate to give her opinion on the case … and asked her if she agreed with the level of compensation. The tenant only asked for a rent reduction in her application and did not seek compensation. The case… has significant differences to the subject case it could not have been used to determine compensation there were other relevant cases that could have been used.
4. In respect of the second ground of appeal, the appellants allege that the decision was against the weight of the evidence. The tribunal should give more weight to the evidence, the statutory declarations and reports from the Plumber, Malcolm Terry (Sapphire Plumbing), Mark Nichols, Carpenter, Brett Osborne, Senior Environmental Health and Building Surveyor Bega Valley Shire Council. Evidence of the tenant not maintaining or mowing the grass.
5. In respect of the appellants' new evidence ground, the appellants now seek to adduce evidence that the tenant is not paying rent and that "Eden Realty has had the property slashed" to allow the septic system to be assessed.
6. The appellants were not legally represented. It is our view that the submissions and the Notice of Appeal raise questions of law and questions for which leave is required. In this regard the principles set out in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 are relevant. Where a party is self-represented, this may involve the Appeal Panel identifying the particular question or questions to be determined and deciding what is a question of law and what questions require leave.
7. In the present case, it would seem to us that the appellant has raised questions of law: 1. whether the Tribunal gave adequate reasons; and 2. whether the Tribunal failed to consider the evidence of the appellants or afforded appropriate weight to the appellants' evidence. 3. whether the tribunal failed to afford the appellants procedural fairness when it considered the authority of Foote v Hall without notice to the appellants.
8. For the reasons that follow we have decided that the Tribunal did not give adequate reasons to explain why it allowed the tenant's claim for compensation. The failure to give adequate reasons constitutes an error of law. As the appeal may be disposed of on that basis, there is no need to consider the grounds which require leave. Respondent's reply to Appeal
9. The respondent did not file a Reply to Appeal but relied on a series of documents opposing the appeal. The appeal documents contained a chronology of events, condition report and lease, office notes, septic and plumbing invoices, newspaper articles covering flooding incidents in the local area in January 2016, letters addressed to the landlord requesting urgent repairs, statutory declarations and letters from the local council concerning flooding in the Eden area. It is the respondent's submission that the inconvenience caused by the failing septic tank resulted in her family not having the use of a second bathroom for a significant amount of time and that therefore the amount of compensation awarded by the member below was justified.

The decision at first instance

1. On 2 May 2016, the Consumer and Commercial Division of the Tribunal heard the matter and orders were made on that day with written reasons for decision published on 2 May 2016. Since this appeal concerns the adequacy of the reasons of the Tribunal below it is appropriate to set out the relevant part of the reasons: The tenant entered into a lease in 2012 for a property with a septic and grey water system. It was a term of the lease that the tenant keep the grass on the property mowed. There was a separate term of the lease that if the tenant failed to keep the property mowed, the landlord could undertake this at the tenant's expense. The tenant failed to regularly mow the lawn. The agent issued a termination notice. The evidence of the plumber Malcolm Terry was inconclusive on this point… Plumber Zac Robin opined that the system was inadequate… The septic and grey water system were brought to the attention of the local council with which issued an order to replace them as non-compliant by 1 July 2016. The grey water system is still unserviceable and the septic, although working, is not compliant. On 11 February 2016 the bathroom floor gave way in the corner, requiring repairs. The tenant gave evidence that she and her children were afraid to use the bathroom for fear that it would collapse entirely. At this time too, the bath was failing to drain due to the grey water systems non-functionality. The tenant was afraid of falling through the door. The owner did not immediately repair the floor… However that is not the point. The tenant pays the rent to a landlord to be absolved of all of these issues and is entitled to have such essential services as plumbing working. The risk is that of the landlord not the tenant. In this case I am satisfied that the landlord did not act with adequate speed to rectify the issues.… (emphasis added). The tenant was inconvenienced for one month in respect of the bathroom and four months in respect of the sewerage system. Using Anforth & Christensen the closest relevant case is Foote v Halhos 2002 which awarded $4765 for loss of the use of a bedroom and sewerage smell for two months. Based on that case I estimate that compensation for the tenant should be set at $4800.
2. The particular reasons provided by the Member on 2 May 2016 did not allow the reasonable person to understand whether the award was made in respect of the claim for loss of amenity pursuant to s 44 or for compensation under s 187 or both.
3. On the hearing of the appeal, neither party seemed able to explain how the sum had been arrived at. The appellants submitted that neither the reference to the textbook nor the case explained the assessment of damages. There seems to us, with respect, to be no logical link between the conclusion of an assessment of compensation in the sum of $4800 and the sentences which preceded the assessment.
4. If the award for compensation was made pursuant to s 187, then the Tribunal failed to address the time limits as set out by clause 22 of the Regulations. A claimant must make an application for compensation within three months of becoming aware of the breach of the residential tenancy agreement by the landlord. In the event that the compensation is ordered by reason of a breach of the residential tenancy agreement, it was necessary for the member to identify the breach, the time of the breach, the time the breach was brought to the attention of the landlord, and how the landlord responded after he became aware of the breach. The reasons fail to identify how the member arrived at a finding that 'the tenant was inconvenienced for one month' or how the amount of $4800 correlates to that finding. We consider that the reasons are not adequate in this regard.
5. The duty to provide adequate reasons was recently considered by the Appeal Panel in JCD Ideas Holdings Pty Ltd T/AS Cafeideas v Poole & Poole [2015] NSWCATAP 122.
6. There is, in addition, to s 62, set out above, a common law obligation to give reasons for a decision. This obligation was extensively discussed by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [47 ]-[57]. The Appeal Panel said: 47 Section 62 establishes a regime under which the Tribunal is not under an express statutory obligation to provide reasons for a decision unless a party makes a request for reasons under s 62(2) but the Tribunal may and in many cases does prepare and give reasons for decision, whether oral or written, without a request to do so from the parties, consistently with s 62(4). 48A provision such as s 62 of the Act does not, however, define exhaustively when there is a duty to give reasons or the extent of that duty. 49 One reason why reasons are generally required, notwithstanding a provision such as s 62, is that if reasons for decision are neither sought nor prepared and an appeal or application for leave to appeal is lodged, the findings of fact and legal reasoning of the decision maker at first instance would not be available to the appellate body by way of written reasons. In many instances not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right because the appellate body does not have a statement of the findings of fact, the relevant law and explanation of how the law was applied to the facts as found, by the decision maker at first instance.
7. The Appeal Panel cited the NSW Court of Appeal Decision in Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 (per Moffitt JA, Manning JA agreeing) as follows: 50 The force of the authorities, which in various ways say that the judge or magistrate at first instance in particular cases ought to have given reasons, is that, as part of his judicial duty and apart from any express requirement of any statute, he ought to have given reasons for the decision in question. I think there is duty upon a judge or magistrate, at least at first instance, in an appropriate case and in appropriate circumstances to give reasons for decision such as will facilitate a litigant, who may be aggrieved, exercising rights he may have to appeal. In Carlson v King [(1947) 64 WN (NSW) 6] Jordan CJ in delivering the decision of the Full Court said: "It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. [...]" The judgment otherwise makes it clear that this statement is directed to the general judicial duty of a judge of a court from which an appeal lies, whether or not a provision such as s. 144(3) [which in effect required a judge upon request to provide reasons] exists or not.
8. Whether considered in the context of the obligation under s 62 of the NCAT Act or in the context of the common law obligation to provide reasons, in our opinion the reasons given by the Tribunal in this matter were not adequate. They do not refer to any relevant material findings of fact, or the bases on which the Tribunal arrived at the award. Nor did the Tribunal refer in its decision to the appellants' evidence and apparently did not consider it in coming to its conclusion. The reasons do not, with sufficient clarity, set out the reasoning process by which the Tribunal reached its findings on questions of fact or law. On this basis, the Tribunal erred at law and the appeal must be allowed.

Orders 1. Time for filing the appeal is extended to 7 June 2016 2. Appeal allowed. 3. Application RT 16/12494 is remitted to the Consumer and Commercial Division, differently constituted, for re-determination on the evidence as filed. 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

Amendments 17 February 2017 - Amended file number in Order 3 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 February 2017