Kaho v Parklea Operations Pty Ltd

Scope and nature of internal appeals

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
2. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to The Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal, will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
3. Where the appeal is from a decision made in the Consumer and Commercial Division (other than in respect of interlocutory decisions), there is a further qualification to the possible grant of leave in that we may only go on to consider a grant of leave in the broader sense if we are first satisfied that the elements of cl 12(1) of Sch 4 of the NCAT Act are made out, in that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. We respectfully agree with the Appeal Panel in Collins v Urban where it said, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: ... [T]here 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."
5. We may decide to conduct a new hearing if we are satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17].

An Appeal commenced out of time.

1. The appeal was not commenced within time.
2. The Notice of Appeal records that the appellant received the Tribunal's reasons for decision on 30 September 2022. The Appeal was not lodged until 18 October 2022, some 4 days beyond the 14 days allowed for filing the notice under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014. This is the applicable period for residential proceedings, an expression which is defined in r 3(1) as being: …. proceedings allocated to the Consumer and Commercial Division of the Tribunal arising under any of the following - (a) the Boarding Houses Act 2012, (b) the Residential (Land Lease) Communities Act 2013, (c) the Residential Parks Act 1998, (d) the Residential Tenancies Act 2010, (e) the Retirement Villages Act 1999.
3. Since the original application was for orders under the Act, they are residential proceedings as so defined, and thus subject to the 14-day requirement under r 25(4)(b).
4. We may, however, extend time for filing the Notice of Appeal: NCAT Act, s 41.
5. In Kelly v Szatow [2020] NSWSC 407, the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the plaintiff's case and consideration of whether the defendants would be prejudiced by a granting of the application: see Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]; Tomko v Palasty (No 2) [2007] NSWCA 369 at [55].
6. The appellant bears the onus of demonstrating that strict compliance with the timeframe would work an injustice: Gallo v Dawson (1990) HCA 30; 93 ALR 479 ("Gallo"). In Gallo, McHugh J stated at [2]: "[2] …The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1978] VR 257 at 262. This means that 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 applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: 'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.'"
7. The delay in lodging the appeal was not long. There was, however, no explanation given and no extension was explicitly sought by the appellant. Whilst opposing an extension, the respondent could point to no specific prejudice beyond its vested right to retain the benefit of the decision and the consequent uncertainty caused by an extension of time.
8. We decided to hear from the parties on all substantive issues, so that we might be better informed about the prospects of the appeal to guide our decision as to an extension of time. If the appeal's prospects are strong, that may indicate an extension is warranted. If fairly arguable, it may warrant more extensive and careful consideration of the other relevant factors such as the extent and reason for delay, and the prejudice to the other party if an extension is granted. If particularly weak or apparently bound to fail, the applicant may be unable to demonstrate that refusal of an extension will work an injustice: see, for example, Rizk v FA Constructions Australia Pty Ltd (No 2) [2016] NSWCA 203 at [7], per Basten JA with Sackville JA in agreement.
9. For the reasons which appear below, we have refused the application to extend time to lodge the Notice of Appeal.

The Grounds of Appeal

1. The Notice of Appeal: 1. alleged two errors by the Tribunal on questions of law, as follows: 1. The Tribunal had denied the Appellant procedural fairness by admitting into evidence a certain joint report from the Appellant's and the Respondent's respective plumbing advisers concerning the pooling of water at the site (the Report); and 2. Misconstrued s 38 of the Act in its application to the effect on the Appellant of the pooling of water and the operation of the pump that had been installed to extract the water, and 1. made an application for leave to appeal from the Tribunal's factual findings, including by reference to evidence not lodged at first instance, but available to the appellant at the time.

Denial of procedural fairness.

1. The Report was a joint report, despite being typed by an officer of the Respondent. This is made clear by the Appellant's and the Respondent's experts respectively signing it to adopt it.
2. Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 is the oft-quoted authority on procedural unfairness and whether such unfairness will entitle a party to a new trial. Both in a court and in a tribunal, natural justice requires that a person be given a reasonable opportunity to present his or her case. However, as Gaudron J (with whom Dawson J agreed) pointed out in Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305 (sub nom Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 220): "… the fact that a hearing has taken place may have particular significance in determining whether or not the opportunity was given. As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81 at 84; 76 ALR 353 at 358."
3. The role of established procedures of courts, in deciding whether natural justice has been afforded to a litigant, is illustrated in Ex parte Fealey (1897) 18 NSWLR (L) 282 at 288 where Owen J (with whom GB Simpson J agreed) said: "A decision contrary to natural justice is where the presiding Judge or Magistrate denies to a litigant some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings, as for instance where a Magistrate refuses to allow a litigant to address the Court, or where he refuses to allow a witness to be cross-examined, or cases of that kind."
4. The duty to ensure that a hearing is conducted according to established principles of fairness does not extend to the Tribunal ensuring that an applicant or respondent present its best possible case (see Guo v CTTT [2007] NSWSC 1335, per Harrison AsJ at [29]; Milstern Retirement v Carton [2007] NSWSC 772 at [43]).
5. The joint report was prepared pursuant to a direction of the Tribunal made on 15 February 2022 as follows: If the parties have two conflicting plumbing reports, then the plumbers should talk on the phone and see if they can agree whether there is a leak under the house and to a method of rectification. Such telephone call should take place no later than 19 April 2022 and any agreement should be reduced to writing and circulated among the parties and presented to the member on the morning of the hearing.
6. The two plumbers conferred, and on 31 May 2022 the Respondent prepared a summary of their conclusions which were, in summary, that: 1. The "… undulation of the land contributes to the pooling of ground water" on the Site; 2. A "… trench line runs along the rear of all sites in Grevillea Cres in the section where [the Site] is located. [The Site] is the low point therefore water will naturally run along the trench line which has caused excess ground water to pond on [the Site] which became more evident during severe inclement weather"; 3. There were "… no leaks visible under the home on .." the Site; and 4. "… installation of drainage pit & pump is accepted as the appropriate method to address the issue. Post inspections have revealed the issue has been successfully addressed".
7. The document which set out these conclusions was signed by the Appellant's plumber, Mr M Millett, on 1 June 2022 and by the Respondent's plumber, Mr B Hayek, on 7 June 2022.
8. The order pursuant to which the report was prepared does not impose on a particular party the responsibility to circulate the report. Rather, the order is couched in the passive voice, and the clear inference to be drawn is that since the report is a joint one made collectively by the parties' respective plumbers, the Appellant was not only entitled to seek and obtain a copy of the report, but also that she was obliged to ensure its timely provision to the Tribunal. What follows is that the admission of the joint report into evidence at the hearing cannot amount to a breach of procedural fairness because the Appellant had not seen it. Under the Tribunal's orders, it was the Appellant's responsibility to obtain, circulate and provide the joint report as much as it was the responsibility of the Respondent, and in attending the hearing without having obtained and reviewed a copy of the joint report the Respondent was the author of her own misfortune.
9. In any event, the Appellant's representative at the hearing was offered the opportunity to raise any concerns as to prejudice as to the late receipt of the Report by her, She indicated that the content of the Report (which by that time she had clearly reviewed) made "no difference to her claim," (T:00.39.57) was "not really relevant to the claim for […] compensation" (T:00.48.26) and explicitly disclaimed any prejudice: (T:00.45.05).
10. We do not consider that there was any substance to the argument that the Appellant had been denied procedural fairness by reason of the admission of the Report.

The Tribunal misconstrued s 38 of the Act

1. The Appellant says that the Reasons read as a whole indicate that the Tribunal applied a test, not of "unreasonable restriction or interference" with the Appellant's privacy, peace and quiet or proper use of or enjoyment of her site, as the Act requires, but rather a gloss, of whether the acknowledged interference by the inadequate drainage and the subsequently installed pump and sump (including the loss of use of that area and the associated noise) were a substantial interference with the appellant's peace and quiet or proper use and enjoyment of her site.
2. Nowhere can we find that reflected in the Tribunal's decision. The Tribunal clearly articulated the correct test, and made a factual finding as to the nature and extent of the interference, which was open on the evidence.

Leave to appeal

1. In a similar situation to that referred to by the Full Court of the Federal Court in Endormer Pty Ltd v Australian Guarantee Corporation Ltd [2001] FCA 1208, citing Italiano v Barbaro [1993] FCA 241; (1993) 40 FCR 303 at 326, the grounds of appeal do not demonstrate that the Tribunal at first instance failed to take proper advantage of the opportunity to see and hear witnesses, or failed to appreciate the weight or bearing of established circumstances, or in what respect or respects the decision can be seen to be clearly wrong on grounds that do not depend on credibility. Rather, they implicitly invite this Appeal Panel to simply substitute the decision preferred by the appellant for the one made at first instance.
2. We are not satisfied that the appeal raises an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. The Tribunal's reasons for its decision make it clear that the correct legislative test was applied and its analysis of the evidence and the reasons provide a succinct but adequate explanation for the Tribunal's decision.

Consideration

1. Having regard to: 1. The substantive weaknesses in the appeal, which are summarised above; 2. The Appellant's failure to provide any explanation for her delay in lodging the appeal; and 3. The Appellant's failure to provide any compelling argument that a refusal to extend time for filing the appeal would work an injustice on her, we have decided to refuse to extend time to lodge 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: 06 February 2023