Kelly v Umphelby

Background

1. On 29 September 2020, the landlords filed an application in the Tribunal seeking payment of rental arrears. On that date, the Tribunal set the matter down for hearing on 16 November 2020.
2. On 16 November 2020, the hearing was held. It is common ground that the tenant did not participate in that hearing and that the Tribunal conducted an ex parte hearing and made the Orders on that day.
3. The tenant contends that he became aware of the Orders on 25 November 2020.
4. On 15 December 2020, the tenant filed a Notice of Appeal.
5. On 16 December 2020, the Appeal Panel listed the appeal for directions on 20 January 2021.
6. On 20 January 2021, the Tribunal made the usual directions for the preparation of an appeal, including a direction that any party who wished to rely upon what happened at the hearing was to lodge with the Appeal Panel and give to the other party the sound recording, or a transcript, of the hearing before the Tribunal. The tenant was directed to do so by 10 February 2021.
7. Despite these directions, and the obligation upon parties to comply with them (see Al Bisher v Sabbagh [2021] NSWCATAP 100 at [17]-[19]), the tenant did not lodge with the Appeal Panel a sound recording or transcript of the hearing before the Tribunal. As a consequence, the Appeal Panel does not have before it a record of what happened at the hearing. In these circumstances, the tenant faces significant difficulties in establishing that there was an absence of procedural fairness. This is discussed further below.

Material before the Appeal Panel

1. The material before the Appeal Panel comprises: 1. a Notice of Appeal with attached documents; 2. a Reply to Appeal with attached documents; 3. an unsigned and undated statement of evidence of the tenant, with attached documents; and 4. submissions of the respondents, with an accompanying bundle of documents.

The scope and nature of internal appeals and the grounds of appeal

1. This appeal is an internal appeal. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act").
2. Where, as in the present case, the tenant is not legally represented it is appropriate for the Tribunal to look at the Notice of Appeal generally and to determine whether a question of law or a basis for the grant of leave to appeal has been raised. In Cominos v Di Rico [2016] NSWCATAP 5, an Appeal Panel explained at [13]: "It may be difficult for self-represented appellants to clearly express their grounds of appeal In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice"."
3. Having considered the Notice of Appeal it is apparent that the basis of the tenant's appeal is that he was denied procedural fairness because the Orders were made by the Tribunal following an ex parte hearing held at a time when the tenant claims not to have been aware that there were proceedings on foot.
4. The tenant also seeks leave to appeal on the basis that, for same reasons, the decision was not fair and equitable. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. Clause 12(1) provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because - (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
5. In Collins v Urban [2014] NSWCATAP 17, an Appeal Panel stated 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: "… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
6. Even if the tenant satisfies the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. In Collins, the Appeal Panel stated at [84(2)] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; or (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; or (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
7. The tenant bears the onus of proving that there has been an error of law or that leave to appeal should be granted.

Leave to bring the appeal out of time

1. The Notice of Appeal was filed out of time. For reasons given orally during the hearing of the appeal, the Appeal Panel granted an extension of time.

Procedural fairness

1. Section 38(5)(c) of the NCAT Act and the general law rules of procedural fairness require that the Tribunal afford each party a reasonable opportunity to appear and present their case. Failure to afford procedural fairness is an error of law. If such an error of law were to be established it would also be necessary to consider whether the tenant could have obtained a different result if he had presented his case to the Tribunal: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54.
2. An important matter informing the question whether the Tribunal afforded procedural fairness to the tenant is the operation of rule 35 of the Civil and Administrative Tribunal Rules 2014 ("NCAT Rules"), which provides in so far as is presently relevant: 35 Ex parte proceedings in Consumer and Commercial Division (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Where a hearing is held for proceedings to which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if-- (a) the Tribunal is satisfied that notice of the hearing was duly served on the party, or (b) the Tribunal, being satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party. …
3. Rule 35 enables the Tribunal to hear proceedings in the absence of a party if it is satisfied of the matters set out in rule 35 (2)(a) or (b).
4. The failure of the tenant to obtain and to place before the Appeal Panel a sound recording or a transcript of the proceedings before the Tribunal means that the Appeal Panel is unable to determine whether the Tribunal did or did not satisfy itself of the matters set out in rule 35 and thus whether the Tribunal failed to afford procedural fairness to the tenant.
5. When the Appeal Panel raised this issue with the tenant during the hearing of the appeal, the tenant claimed to have made unsuccessful attempts to obtain the sound recording, but there was no evidence before the Appeal Panel of such attempts. The tenant did not seek an adjournment of the appeal hearing.
6. For the above reasons, the Appeal Panel is not satisfied that the Tribunal failed to afford procedural fairness to the tenant.
7. Thus, it is not strictly necessary for the Appeal Panel to consider whether the tenant could have obtained a different result if he had presented his case to the Tribunal. Nevertheless, the Appeal Panel is not persuaded that the tenant could have done so.
8. The tenant submitted in writing and orally that he had a defence to the landlords' claim for rental arrears, for a number of reasons. The Appeal Panel has considered those reasons carefully to determine whether the tenant may have a viable defence.
9. The tenant contends that the landlords agreed to reduce the amount of the rent payable in response to COVID-19. However the tenant's statement of evidence includes a statement that a final agreement was not reached. This was confirmed by the tenant in answer to a question from the Appeal Panel during the hearing. A defence based upon an agreement to reduce rent where such an agreement had not in fact been reached must fail. None of the other matters raised by the tenant discloses a viable defence to the landlords' claim for rental arrears. In these circumstances the Appeal Panel is not persuaded that the tenant could have obtained a different result if he had presented his case to the Tribunal.
10. For the above reasons, the appeal should be dismissed.

Leave to appeal

1. As noted above, the tenant also seeks leave to appeal. However, for the same reasons, the Appeal Panel is not persuaded that the tenant may have suffered a substantial miscarriage of justice or that it should exercise its discretion to grant leave to appeal.

Orders

1. The orders of the Appeal Panel are: 1. Leave to appeal is refused. 2. The appeal is dismissed

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: 24 May 2021