Kemsley v NSW Land and Housing Corporation

NCAT Appeal Panel|2020-07-08

[2020] NSWCATAP 15 NSW Land and Housing Corporation v Pauley [2019] NSWCATCD (unreported) Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Rogers v Vinoly [2016] NSWCATAP 2 The Commonwealth v Verwayen (1990) 170 CLR 394 Zheng v Kim [2019] NSWCATAP 285 Texts Cited: None cited Category: Principal judgment Parties: Kylie Anne Kemsley (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Counsel: R Mansfed (Appellant)

Solicitors: Legal Aid NSW (Appellant) R Fester (Respondent) File Number(s): AP 20/19191 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 08 April 2020 Before: S Hennings, General Member File Number(s): SH 20/07471

Background

The tenant entered into a residential tenancy agreement with the respondent (the landlord) on 12 May 2017.
On 21 February 2019 she was taken into custody and charged with offences relating to the possession and supply of drugs, the further details of which we have already set out above.
The landlord applied to terminate the tenancy on 1 August 2019. The Tribunal made orders on 13 December 2019 terminating the tenancy, in the absence of the tenant. The tenant appealed that decision by notice of appeal dated 7 January 2019 (the first appeal). The landlord consented to the first appeal, and orders were made by consent remitting the whole matter to the Tribunal.
The matter was heard and determined by the Tribunal on 8 April 2020 by telephone (the Decision).
This is an internal appeal from the orders of the Tribunal ordering possession in favour of the landlord and terminating the residential tenancy agreement.
The landlord's application for termination was made pursuant to s 91 and s 154D of the RTA.
The Tribunal is required by s 154D(1) of the RTA to make a termination order on application of the landlord where the Tribunal is satisfied of the matters in s 91(1)(a) of the RTA, namely, that the tenant intentionally or recklessly caused or permitted the use of the residential premises for the purpose of supply of a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 (NSW).
The mandatory making of a termination order under s 154D(1) is subject to subsection (3). Paragraph (b) of subsection (3) states that s 154D(1) or (2) do not apply if the Tribunal is satisfied that "the termination order would be likely to result in undue hardship being suffered by … a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977 (NSW) [the ADA] who is occupying … the social housing premises". The Tribunal then has a discretion as to whether or not to make a termination order.
Section 4(1) of the ADA defines "disability" to include "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour."
If the Tribunal finds that the matters in s 154D(3)(b) has been established, the provision regarding a mandatory termination in s 154D(1) is no longer applicable.
The Tribunal instead has a discretion as whether or not to make a termination order under s 91(1)(a), taking into account the matters in s 154E of the RTA.
"Undue hardship" for the purpose s 154D(3)(b) means "hardship that is excessive in the circumstances": see Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 (Orr's Case) at [49].
The "circumstances" are the impact of termination on a person with a disability: Orr's Case at [53].
Section 154E of the RTA identifies factors that the Tribunal must consider when exercising its discretion as to whether it should make a termination order for a social housing tenancy agreement.
The Appeal Panel in Orr's Case at [36] stated that terminating a social housing tenancy agreement under s 91(1)(a) of the RTA involves a three-stage process as follows: 1. Determining whether the elements of s 91(1)(a) are made out. 2. If the elements of s 91(1)(a) are made out, determining whether s 154D(3) applies so as to give the Tribunal a discretion as to whether to terminate the tenancy. 3. If s 154D(3) applies, exercising the discretion in relation to termination having regard to the factors listed in s 154E(1) and any other factors relevant to the exercise of the discretion.

The notice of appeal

The tenant propounded five grounds of appeal.
Four of the grounds of appeal alleged errors of law and the fifth ground of appeal alleged that the Tribunal's conclusion - that the tenancy should be terminated - was against the weight of the evidence.
The tenant accepted that leave to appeal was required in respect of the fifth ground.

Timing of the notice of appeal

The proceeding before us are residential proceedings within the meaning of Rule 3(1) of the Civil and Administrative Rules 2014 (NSW) (NCAT Rules). Accordingly, the notice of appeal needed to be filed within 14 days of the appellant receiving the Decision. That was emailed to the landlord on 8 April 2020 and, hence, must be taken to have been received on the same day.
The appeal therefore needed to be filed by 23 April 2020, but it was filed on 30 April 2020. Accordingly, the tenant requires an extension of time of seven days pursuant to Rule 25(4) and section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
The principles which govern an extension of time to appeal under s 40 of the NCAT Act are well known: see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 from [18]-[22].
In summary, an Appeal Panel will be required to consider: 1. The length of the delay; 2. The reason for the delay; 3. The appellant's prospects of success, that is usually whether the appellant has a fairly arguable case; and 4. The extent of any prejudice to the respondent to the appeal.
The length of the delay is only seven days. The landlord has not submitted that it has suffered any prejudice by such a short delay. We note that the landlord made no submission to us on the question of extending the time for lodging the notice of appeal and proceeded on the basis that it had no objection to the Appeal Panel dealing with the notice of appeal on its merits.
Accordingly, in such circumstances we are prepared to extend time for the lodgement of the notice of appeal to the date it was lodged, being 30 April 2020.

The nature and scope of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) NCAT Act.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
In order to amount to an error of law, it must be demonstrated that there was no evidence to justify the conclusion of the Tribunal or, alternatively, that no reasonable tribunal could have come to the conclusion that it did: see John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13 and (8).
Further, in respect of whether or not the Tribunal failed to take into account a relevant (i.e., mandatory) consideration, the Appeal Panel in Director-General, Department of Finance and Services v Porter [2014] NSWCATAP 6 at [28] stated the following: "Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to relevant consideration where its process is merely a formulaic reference: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing), instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory manner must be approached with caution, with care to avoid any impermissible reconsideration of the merits of the decision."
An alleged failure to give 'sufficient weight' to evidence does not identify a question of law: AHB v HSW Trustee and Guardian [2017] NSWCATAP 79; House v R (1936) 55 CLR 499. The correct approach is to set aside administrative decisions where the weight given to a factor is considered 'manifestly unreasonable', or where a finding or inference is made in the absence of supporting evidence: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 at [70]-[75])
The Appeal Panel in Rogers v Vinoly [2016] NSWCATAP 2 said: "12. The Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Pozzolanic) identified five general propositions in relation to the distinction between questions of law and fact. These were extracted by the High Court in Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 395 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) (Agfa-Gevaert): (1) The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. (22) Jedko Game Co Pty Ltd v Collector or Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1973] AC 854. (2) The ordinary meaning of a word or its non-legal technical meaning is a question of fact. (23) Life Insurance Co or Australia Ltd v Phillips (1925) 36 CLR 60 at 78; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner or Taxation (1956) 94 CLR 509 at 512; Neal v Department or Transport (1980) 3 ALD 97 at 107-108; Jedko (1987) 12 ALD 491. (3) The meaning of a technical legal term is a question of law. (24) Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Lombardo v Federal Commissioner or Taxation (1979) 40 FLR 208 at 215. (4) The effect or construction of a term whose meaning or interpretation is established is a question of law. (25) Life Insurance Co of Australia (1925) 36 CLR 60 at 79. (5) The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7, per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 277, per Sheppard and Burchett JJ. In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. Pozzolanic (1993) 43 FCR 280 at 288, citing Hope (1980) 144 CLR 1 at 8. 13. In relation to the fifth proposition, in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 Hill J noted at 16 as follows: The rule that a question of fact is involved in determining whether facts fall within the meaning of a word once that meaning is ascertained, may cause confusion. The confusion comes about because there are actually two related rules, the distinction between which is not always readily apparent. The first of these rules is generally expressed as being that where the facts have been fully found or there is no dispute as to the facts and the question is whether those facts necessarily fall within the description of a word or phrase in a statute, that will be a question of law. This is the sixth proposition enunciated by [Jordan] CJ in the Australian Gas Light Co case. The rationale for this principle is clear enough. If only one meaning is open but a tribunal arrives at a different meaning, underlying the Tribunal's conclusion must be an error of principle, that is to say, an error of law. The second related principle is that where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree. The Full Federal Court in Commissioner of Taxation v Crown Insurance Services Limited (2012) 207 FCR 247 said at [39]: When the statute under consideration has no technical meaning, but is understood in its plain ordinary meaning, a question of law will arise if the facts found must necessarily have come within the statutory description, but only a question of fact will arise if the facts found are capable of coming within the statutory description. In that second case, no question of law arises because, as Hill J said at 16 in Sharp Corporation of Australia Pty Ltd v Collector of Customs, the decision "will generally involve weight being given to one or other element of the facts and so involve matters of degree". To put it another way, a choice between two conclusions open on a consideration of the facts is a question of fact.
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 Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied 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).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (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; (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.

The tenant's submissions

Ground 1 was to the effect that the Tribunal denied procedural fairness to the tenant, who was deprived of the opportunity to rely on documents she had filed in the first appeal.
An allegation of failure to afford procedural fairness does involve a question of law and leave is not required.
The tenant relied upon the following circumstances. She was self-represented at the hearing and thought the documents that she had previously filed in the first appeal would be held by the Tribunal in the new hearing and that she did not need to provide them to the Tribunal again. Accordingly, she was confused when the Tribunal member indicated that he did not have any material filed by the tenant pursuant to the directions of the Tribunal.
The tenant submitted that the fact that the material which had been filed in the appeal was not before the Tribunal did not become obvious until well into the hearing. At that point the tenant said she would probably prefer to adjourn until she had the chance to contact an advocate: appellant's evidence, page 25, T05.42.
The Tribunal declined to grant an adjournment for this purpose and provided reasons in the Decision for doing so. Essentially, the Tribunal considered that the tenant had plenty of opportunity to seek assistance from an advocate prior to the hearing and the tenant had not contacted the Tribunal at any time before the date of the hearing to seek such adjournment or further extension of time to submit evidence: see [3]-[4] of the Decision.
The complaint of the tenant was that the Tribunal ought to have made enquiries of the tenant as to whether the documents previously lodged in the first appeal could be provided again at short notice and it ought to have adjourned the matter simply so that the documents could be located after enquiry with the Tribunal's registry.
The tenant referred to the fact that the hearing took place via telephone link which made it difficult to provide the documents to the Tribunal on the day of the hearing. The tenant also submitted that it was likely that the documents could have been obtained with minimal inconvenience.
According to the tenant, the Tribunal appears to have treated the failure to provide documents as a careless failure to comply with the Tribunal's direction rather than as an honest mistake about the need to re-file the material that had already been used in the first appeal.
The documents were said to be of significance in determining the application because (amongst other things) they included a letter from the tenant's treating mental health specialist as to the tenant's mental state; a letter from a community corrections officer indicating that loss of the tenant's accommodation could destabilise her progress; a hospital report which confirmed that the tenant suffered from asthma and was receiving medication for bi-polar/anxiety disorder. Accordingly, it was stated that these documents could have altered the decision in respect of whether the tenant would suffer undue hardship by the termination.
The tenant was given the opportunity to read out aloud any documents sought to be relied upon. However, the tenant submitted this was not the same as the documents being before the Tribunal and some of the material such as the hospital report, was not read out and so was not before the Tribunal.
The tenant referred to the fact that no reference was made to the above documents in the Decision. Rather, the Tribunal merely referred to statements by the tenant going to the issue of undue hardship.

The landlord's submissions

The landlord referred to the directions made prior to the hearing which included the direction that "on or before 16 March 2020 the respondent is to give to the Tribunal and the applicant in person or by post any documents she seeks to rely upon in opposition to the applicant's case for orders of the Tribunal".
The landlord submitted that this direction was clear and there was not a reasonable basis for thinking that this order was satisfied by material having been filed in the first appeal.
The tenant was given the opportunity to in effect place before the Tribunal any material that had been filed in the first appeal by reading out the content of such material at the hearing.

Consideration

For the reasons which follow, we reject this ground of appeal.
Regard must be had to the actual application made by the tenant. This was set out in the Decision and was dismissed in the following terms: 3). The tenant sought an adjournment requiring more time to prepare and present her case. The tenant wanted to seek assistance from the tenant's service. The landlord opposed the application. The Tribunal considered the nature of the application, the issues and the history of the matter. Matter SH 19/37969 was lodged on 22-Aug-2019. It was clear that procedural directions had been issued both in the previous matter SH 19/37969 and this matter SH 20/07471 requiring the tenant to prepare and submit her case. No material has ever been received by the Tribunal from the tenant in respect of either matter. The Tribunal considered that the tenant had been given more than sufficient time to prepare and present her case. There was no evidence in respect of any previous attempts to contact the tenant's service or any information from them if they had been approached. 4). The issues raised in the matter are serious. The Tribunal considered the legislation provisions contained in Sections 36 and 38 of the Civil and Administrative Tribunal Act 2013. The tenant had not formally contacted the Tribunal at any time before today to seek such an adjournment or further extension of time to submit evidence. Overall, the Tribunal was satisfied that there had been multiple hearings giving both parties reasonable and sufficient opportunity and time to seek advice, prepare and submit their documents prior to today. The tenant was aware since late February that the matter was listed for final hearing today. In taking into account the interests of both parties and the legislative requirements, the Tribunal was not satisfied that the matters should be further adjourned and delayed. The application by the tenant to adjourn the matter so that she could seek further assistance and submit material was refused.
It can be seen that the actual application made by the tenant was that the whole proceedings be adjourned and not proceed further on that day, in order to enable the tenant to seek assistance of an advocate so as to have more time to file documentary material and prepare her case. The tenant in her submissions to us did not challenge the conclusion reached by the Tribunal to refuse the adjournment application for such purpose.
In our view there was no error of law in the conclusion reached by the Tribunal on the adjournment application that was actually before it. Whether or not to grant an adjournment is at the discretion of the Tribunal: see Najmitdinov v Woolworth Group Limited [2020] NSWCATAP 15 where the Appeal Panel discussed the Tribunal's power to adjourn proceedings at [14]-[18].
In our view, it is quite clear that the Tribunal was entitled to find that the adjournment application in order to seek further assistance from an advocate and to submit material with the assistance of such advocate ought to be refused.
The complaint of the tenant was that the Tribunal ought to have independently made enquiries as to whether the documents previously filed in the first appeal could be obtained by the Tribunal at short notice and the failure to adjourn the matter so the documents could be located after enquiry with the Tribunal's registry constituted a failure to provide the tenant with procedural fairness.
In our view, this is not the role of the Tribunal in circumstances where the appellant did not ask the Tribunal to undertake such course. It is not for the Tribunal to try and locate documents from the registry when the party in question, even if unrepresented, has not sought such a course to be undertaken. This is particularly so where that party instead makes an application for an adjournment in order to seek the assistance of an advocate and to thereby have a further opportunity to consider exactly what material the party wishes to rely upon.
Even if the tenant requested the Tribunal to locate the documents she had previously filed in appeal proceedings, it is reasonable for the Tribunal to refuse that request. The following observations of the Appeal Panel in Zheng v Kim [2019] NSWCATAP 285 at [56] - [58] are apt to be repeated here: The Tribunal is a low-cost jurisdiction and has a heavy workload. In the 2017-18 financial year the Tribunal received 65,000 applications and appeals, a little under 54,000 of which were lodged in the Consumer and Commercial Division, the Division in which the present case was conducted and a little under 30,000 of which were tenancy matters. In that year the Tribunal disposed of 66,000 matters - NCAT Annual Report 2017-2018 at pp.5 and 8. The 54,000 odd Consumer and Commercial Division matters were heard by 86 full and part-time Members which results in an average of approximately 2.5 matters being disposed of by each of those Members every working day. In managing that workload the Tribunal is required to apply the guiding principle of facilitating the just, quick and cheap resolution of the real issues in dispute between parties - s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"). The Tribunal is required to implement its practices and procedures in such a way that the cost to the parties and to the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings - s 36(4) of the NCAT Act.
The Consumer and Commerical Division could not operate quickly or cheaply, or possibly at all, if it were required to source documents from related proceedings conducted in other Divisions of the Tribunal for possible use in proceedings before it. That is not a reasonable request for any party to make of a Member hearing a matter in the Division. It is incumbent on the parties to comply with the clear directions of the Tribunal and provide the documents upon which they wish to rely. If the documents are not provided in accordance with the directions, it is not for the Member to investigate if there may be documents in other Divisions, in related proceedings, that might assist a party.
In our view, the direction of the Tribunal for the filing and service of documents was clear. It required the tenant to file and serve the documents to be relied upon that were of relevance to the landlord's application for termination and possession. The documents filed in the first appeal related to different issues to the disposition of the current appeal. It was not reasonable for the tenant to assume, that all of the previous documents filed in the first appeal should have been taken to be the material to be relied upon in accordance with the directions of the Tribunal. If the tenants wanted those appeal documents before the Member to whom the matter had been remitted, it was incumbent on her to file and serve them in accordance with the Tribunal's direction.
The Tribunal afforded the tenant the opportunity to read out aloud from any of the documents she intended to rely upon and she did so in respect of some documents. After she had done so she indicated to the Tribunal "that's all" she wished to place before the Tribunal. The complaint being made is that the tenant should have been given the opportunity to place the actual written documentation before the Tribunal.
In our view, the way in which the Tribunal dealt with this issue did not amount to a failure to provide procedural fairness to the tenant. It is clear the Tribunal was proceeding on the basis that what was being read out was equivalent to that material being before the Tribunal in written form. For example, at [13] of the Decision, the Tribunal referred to what the tenant had read out from a report from her mental health treatment program.
Accordingly, we reject this ground of appeal.

The tenant's submissions

The tenant submitted that as there is no time limit for the making of an application under s 91 of the RTA, Rule 23 of the NCAT Rules applies.
Rule 23(3)(b) provides that where the enabling legislation does not provide a time limit to apply to the Tribunal, the time limit is 28 days from when the applicant became entitled to make the application.
Citing Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281, the tenant submitted that the entitlement to make an application under s 91 of the RTA arose upon the day that the tenant intentionally or recklessly caused or permitted the use of the residential premises for the purposes of supply of a prohibited drug within the meaning of Drug Misuse and Trafficking Act 1985. The tenant contended that this occurred on 8 November 2018 and 21 February 2019 and irrespective of whether or not the tenant was aware of this at the time. The landlord's application was not brought until "about August 2019", which was well outside the 28-day time limit provided for in Rule 23.
The tenant contended that compliance with the time limit in Rule 23 went to the jurisdiction of the Tribunal such that the Tribunal was obliged to ensure that the application was brought within time or that an extension of time was granted. It was submitted that this was the case irrespective of whether or not the tenant had raised and relied upon the time limit in Rule 23. Accordingly, it was stated that because the Tribunal did not turn its mind to the time limit it thereby erred.
Given that the application was not brought within time and there was no application to extend the time period, the application ought to have been dismissed.

The landlord's submissions

The landlord contended that an entitlement to bring the application could only first arise when it was made aware of sufficient facts to ground the application. The landlord submitted that the information sufficient to form the basis of the application only came to the attention of the respondent on 30 July 2019 and proceedings were commenced by 22 August 2019 and, accordingly, was brought within the time limit.
Further, the question of a time limit was not raised before the Tribunal. It was submitted that the Tribunal was not obliged to consider the matter in the absence of any contention that the proceedings were not brought within time.
Alternatively, the Appeal Panel ought to deal with the question as to whether an extension of time should be granted rather than having to remit the matter.
The Appeal Panel in such a case should grant an extension of time consistently with the decisions of Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]-[22] and Choy v Rugsat [2020] NSWCATAP 88 at [33]. The landlord submitted that the proceedings were one that would show that they had "more substantial merit than merely been fairly arguable".

Consideration

Rule 23(3) is in the following terms: Unless the Tribunal grants an extension under section 41 of the Act, an application must be made - (a) in the case were enabling legislation specifies the period within which the application is to be made - within the period specified, or (b) in any other case - within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application.
The landlord conceded, correctly in our view, that Rule 23 applied to a termination application under s 91 of the RTA and the RTA did not specify the period within which such an application is to be made. Hence, the application was required by Rule 23(3)(b) to be made within 28 days from the day on which the applicant became entitled under the RTA to make the application.
The tenant does not disclose in her evidence when she was convicted nor when she was sentenced. She simply states in her affidavit at paragraph 9 that she received a custodial sentence and was released on parole in August 2019. Her letter to the magistrate was dated 1 July 2019 and addressed the sentencing proceedings. It would appear that she must have received a sentence of 18 months imprisonment with six months non-parole, if her parole period ended in August 2020.
There appeared to be three issues to be considered as follows: 1. Whether the terms of Rule 23(3)(b) ought to be read as going to the existence of the jurisdiction of the Tribunal to hear and to determine the termination application or, alternatively, whether the time limit should be held to be a defence to the application which must be pleaded or raised at the hearing? 2. If the time limit does go to the jurisdiction of the Tribunal to entertain the application, does the time limit imposed by Rule 23(3)(b) begin on the date the landlord discovers the facts the subject of the termination application, being in this case 30 July 2019? 3. If the application is out of time and if this goes to the jurisdiction of the Tribunal to hear the application, whether or not the Appeal Panel should extend time pursuant to s 41 of the NCAT Act?
We address the first issue described above. The High Court in the decision of The Commonwealth v Verwayen (1990) 170 CLR 394 held that where a limitation provision applies it does not limit the jurisdiction of courts. Instead such a provision is a bar to the remedy but not the right and thus creates a defence to the action which must be pleaded: at [16] per Mason CJ; at [12] per Brennan J; at [11] per Dawson J.
On the other hand, the High Court held in the decision of David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at [26] that the time limit within which an application to set aside a statutory demand under the then Corporations Law had to be filed in the court, defined the jurisdiction of the court. The issue for consideration is whether Rule 23 operates to define the jurisdiction of the Tribunal or whether it is a defence which must be pleaded or made the subject of a specific submission.
We are not aware of any decision of the Tribunal which has had to deal with this issue on appeal where the appellant had not raised the time limitation under Rule 23 at first instance, but had only sought to raise the temporal limitation for the first time on appeal. We note that the Tribunal has on many occasions at first instance assumed that the time limitation in Rule 23 goes to the jurisdiction of the Tribunal: see, for example, BMF v Commissioner Victims Rights [2020] NSWCATAD 97 at [17]-[23]; CRG v Children's Guardian [2017] NSWCATAD 295 at [3]; Andrewartha v Weng [2019] NSWCATCD 55 at [22].
In our view, the decision of David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at [26] is the most analogous authority. In particular, the Hight Court in Verwayen reasoned that the limitation provision does not limit the jurisdiction of courts because such a provision has been held to bar the remedy but not the right. Such a distinction appears inapposite where the statute provides for a requirement than the relevant application must be filed within a certain time period. This in our view covers the case of the time limitation provided for in Rule 23.
Accordingly, the time limitation set out in Rule 23 does limit the jurisdiction of the Tribunal to hear and determine the relevant application, in this case being an application to terminate the residential tenancy pursuant to s 91 of the RTA. Rule 23 is not a limitation provision as such but rather the time bar is a precondition to the right to lodge and have determined the application for termination of the residential tenancy.
As the time limit in Rule 23 goes to the jurisdiction of the Tribunal, it is incumbent upon the Tribunal to be satisfied that such time limitation has been complied with and irrespective of whether or not it is raised by either party. Similarly, an appellant can allege for the first time on appeal that the Tribunal lacked jurisdiction to deal with the application and the Appeal Panel has to decide whether or not the application was filed within time.
We now turn to the second issue identified above, namely, whether or not the application was brought within time.
Section 91 of the RTA is in the following terms: 91 Use of premises for illegal purposes (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted-- (a) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or (b) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination. (2) In considering whether to make a termination order on the ground specified in subsection (1)(b), the Tribunal may consider (but is not limited to considering) the following-- (a) the nature of the unlawful use, (b) any previous unlawful uses, (c) the previous history of the tenancy. (3) The termination order may specify that the order for possession takes effect immediately. (4) A landlord may make an application under this section without giving the tenant a termination notice. (5) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.
The tenant contended that the landlord had an entitlement to make an application to the Tribunal for a termination order pursuant to s 91 within the meaning of Rule 23(1)(b) on the date that the tenant intentionally or recklessly caused or permitted the residential premises to be used for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985.
This date was, firstly, 8 November 2018, being the date that the tenant at her premises supplied and sold 1.58 grams of Methylamphetamine. Secondly, the tenant contended the date was 21 February 2018, being the date the tenant was arrested at her premises with 0.7 grams of Methylamphetamine in her possession. Accordingly, the tenant contended that the application for a termination order was outside the time limit provided for in Rule 23(1)(b).
On the other hand, the landlord contended that the day on which it became entitled to bring the application only first arose when it became aware of facts sufficient to form the basis of the application, which was on 30 July 2019. Accordingly, the proceedings were commenced within the time limit.
In our view, it is somewhat artificial to describe the landlord as having an "entitlement" to bring its application under s 91 of the RTA when it had neither discovered the facts giving rise to such an application nor could it be said that such facts were discoverable with reasonable diligence. It is difficult to describe the landlord as having a realistic or practical "entitlement" to bring its application when it had no knowledge of such a right or claim.
Further, it is inherently unlikely that a landlord would have knowledge of the tenant using the residential premises for the purpose of supply of any prohibited drug at that time. The construction of Rule 23(1)(b) contended for by the tenant would place an unrealistic and even impossible burden on the landlord to ever bring the relevant application within time and would inevitably lead to having to rely upon making an extension of time application pursuant to s 41 of the NCAT Act.
It would be a harsh and unreasonable construction of Rule 23(1)(b) to contend that time runs from the date of such supply. Such factors incline us to accept that the better construction of Rule 23(1)(b) is that the relevant "entitlement" can only arise when the landlord has knowledge of facts that would ground the relevant application under either s 90 or s 91 of the RTA or, at least, when the landlord ought to have discovered such facts with reasonable diligence.
However, given our conclusion in respect of whether to grant an extension of time pursuant to s 41 of the NCAT Act it is unnecessary for us to express a concluded view on this question.
We now consider whether or not to grant an extension of time pursuant to s 41 of the NCAT Act. Section 41 confers the Tribunal with a discretion to extend the time within which an application may be made to the Tribunal. The principles to be applied in the exercise of the discretion were distilled by the Appeal Panel of the Tribunal in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.
In brief, time limits are to be strictly enforced unless to do so would work an injustice to an applicant. In determining if an injustice would occur the Tribunal is to consider the length of the delay, the applicant's explanation for the delay, any prejudice to the respondent that would arise from time being extended, and whether the applicant has an arguable case. If the delay is significant, the applicant's case must be more than merely arguable, it must have substantial merit.
In our opinion, enforcement of the time limit, if the tenant's construction of such time limit is correct, would work a substantial injustice in circumstances where the landlord was unaware of any alleged "entitlement" to bring the application through no fault of its own. This constitutes a cogent explanation for the delay. No prejudice to the tenant appears to arise. The effect of delay in the landlord making its application for a termination order can only work to the benefit of the tenant by enabling her to stay in the premises for a longer period of time.
We note that the tenant made no submissions to us on the question on whether or not an extension to the time limit should be made. Further, even if the delay is regarded as significant, the landlord's case is more than barely arguable. It had substantial merit, particularly given that the Appeal Panel has the benefit of the finding of the Tribunal below and our finding on appeal that the appeal should be dismissed and the making of the termination order by the Tribunal ought not be disturbed.
Accordingly, to the extent required, we will order that the time within which the proceedings are to be commenced is extended to the date of filing on 22 August 2019.

Ground 3 - error in considering whether to suspend order for possession

The tenant's submissions

The tenant referred to s 114 of the RTA which requires the Tribunal to consider the hardship to both the landlord and tenant in coming to a decision as to whether or not to suspend the order for possession, and if so, for how long.
The tenant accepted that pursuant to s 154G of the RTA the Tribunal can only suspend an order for possession for more than 28 days where it is satisfied that there are "exceptional circumstances".
The essence of the complaint of the tenant was that the Tribunal "appeared to give no consideration to the hardship suffered by the tenant" and "gave scant consideration to whether there were exceptional circumstances".
In support of this submission, the tenant relied upon the fact that the Decision at [29] simply stated that there are no exceptional circumstances before it to justify a longer period of suspension than 28 days.
The tenant submitted that the Tribunal failed to consider the impact of the COVID-19 pandemic as an exceptional circumstance because the tenant said she was "not supposed to go out".
The tenant accepted that pursuant to Item 5 of the relevant government restriction, being Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW), persons were able to leave their place of residence in order to move to a new place or to inspect a new place of residence. Nevertheless, the tenant submitted that it should have been inferred that there would be additional difficulties encountered in seeking to source private rental accommodation. In particular, reference was made to Item 7(3) of the Order which prohibited open inspection of premises for the purposes of leasing the premises and restricting inspections to the showing of a single person after a person has made an appointment for that purpose.
The tenant submitted that in the particular circumstances where the tenant disclosed ongoing problems with asthma and respiratory difficulties, the Tribunal ought to have given consideration to whether the combination of her disability, the COVID-19 pandemic and the potential to become homeless constituted exceptional circumstances.
Reference was made to NSW Land and Housing Corporation v Pauley [2019] NSWCATCD (unreported) where the Tribunal found exceptional circumstances may exist even if the tenant was unable to show "undue hardship".

Consideration

The Tribunal at [29] stated the following: Based upon the landlord's request the order for possession is suspended by the maximum 28 days period to 6 May 2020 - Section 154G of the Residential Tenancies Act 2010. There are no exceptional circumstances before the Tribunal justifying a later day or justifying or [sic] a longer period of suspension.
We are not satisfied that the Tribunal failed to have regard for the evidence lead as to the tenant's disability or potential for her to become homeless so as to amount to an error of law. The central contention under this ground of appeal was that there was a failure to consider the effect of the relevant government order in respect of the COVID-19 pandemic.
There are two difficulties with this submission. First, there was a lack of any submission made by the tenant to the Tribunal as to the date that possession should be given. The following exchange took place (T 30:2-17): MEMBER: If the tenancy is going to be terminated, what sort of timeframe are you suggesting for possession, Ms Hook? MS HOOK: In the circumstances I wouldn't object to the four weeks being provided or allowed. I don't think there is any exceptional circumstance that would justify any further time than that. MS KEMSLEY: (Indistinct) supposed to go out anywhere so I don't know how I'm supposed to move, but anyway... MS HOOK: I would say four weeks from today brings it - makes it 28 April. That would be the date that we request possession to be given. MEMBER: Yes. Anything final that you want to say, Ms Kemsley? MS KEMSLEY: No.
The only arguable reference to the impact of the COVID-19 pandemic was the tenant's statement that she is not supposed to go out anywhere so she was unsure how she was supposed to move. However, this was followed by the statement "but anyway", suggesting she was not seeking a further extension of time. Further, when asked as to whether or not she had any final submission to make in response to the landlord's proposal to allow 28 days suspension of the order of possession, she stated "no". This further left the impression that she was not contending for a later date.
The relevant Health Order was not before the Tribunal and no other submission was made as to whether or not exceptional circumstances existed. Secondly, the relevant Health Order did not in fact prevent the tenant from going out to seek alternative accommodation. The tenant's submission that the restriction on public viewing of premises for let or sale making it more difficult to obtain alternative accommodation was not only speculative and without evidence to support it, it was also not the subject of any submission to the Tribunal below.
In Carr v NSW Land and Housing Corporation [2019] NSWCATAP 144 the Appeal Panel stated at [55] that "exceptional circumstances" are those which while not unique or unprecedented or very rare, are those which are out of the ordinary course or unusual. The onus lies on the tenant to make out the existence of such exceptional circumstances.
In the absence of anything else being placed before the Tribunal other than the remark made as recorded in the transcript, the tenant has not made out how the impact of the COVID-19 pandemic constituted such exceptional circumstances. If anything, the tenant at the time did not appear to be making any actual submission as to their being in existence any exceptional circumstances.
The tenant is not in a position to rely upon the relevant Health Order as demonstrating the existence of exceptional circumstances when the Order was not referred to or relied upon by the tenant.
Secondly, if the Health Order does not in fact restrain the tenant's ability to move to a new place of residence or inspect a potential new place of residence. Reliance upon Item 7(3) of the Order prohibiting a conduct of an open inspection of premises was neither in any way referred to before the Tribunal nor was there any evidence that a lack of open inspection of premises would impose an impediment upon the tenant's ability to find premises for lease.
Accordingly, we reject this ground of appeal.

The tenant's submissions

Grounds 4 and 5 relate to the finding that the tenant's evidence was insufficient to establish that the termination order would be likely to result in undue hardship.
In relation to ground 4, the tenant contended that the Tribunal's Decision to terminate the tenancy was unreasonable because it lacked an evident and intelligible justification: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [82]. Accordingly, this raises a question of law: see Prendergast at [13(8)]
Alternatively, by ground 5 the tenant sought leave to appeal on the basis that the findings were against the weight of evidence.
The tenant challenged the Tribunal's conclusion that the tenant's statements that she had nowhere else to go and was not able to live with her adult children were "just general statements without supporting evidence": at [22].
The tenant pointed out that she was not cross-examined on her inability to find other accommodation and prima facie the Tribunal should accept the unchallenged evidence of a witness, relying upon Bauskis v Liew [2013] NSWCA 297 at [109].
Accordingly, the Tribunal's determination that her assertions were "just general statements" was unreasonable, or alternatively, against the weight of evidence.
Further, the tenant referred to her evidence that three years ago she had applied for many (around 20) private rental properties and was not accepted as a tenant and this was why she was living in her current social housing property.
In the absence of any cross-examination of this evidence, there was no reason to think that the tenant's ability to find alternative accommodation would be any different now than it was three years ago.
In support of the application for leave to appeal, the tenant contends that she suffered a substantial miscarriage of justice because the Decision gives rise to an injustice which is reasonably clear or a factual error that was unreasonably arrived at and clearly mistaken, as set out by the Appeal Panel at Collins v Urban at [84].
The tenant relied upon her evidence as to the hardship that would be faced by her if her tenancy was terminated.

Consideration

First, we do not accept that the Tribunal's conclusion that the tenant's statements that she had nowhere else to go were "just general statements without supporting evidence" could be described as being unreasonable because it lacked an evident and intelligent justification. The contention was that the Tribunal, prima facie, should accept the unchallenged evidence of a witness. The difficulty with this submission is that the evidence in question related to the state of the rental market did not refer to the rental market at the time of the hearing.
Further, any statement by the tenant that she had nowhere else to go could only at its highest amount to her opinion or understanding of the rental market without supporting evidence. As a result, acceptance of the tenant's evidence in the sense of accepting that her evidence was evidence of her belief is not inconsistent with the conclusion that such evidence still amounted to nothing more than general statement without supporting evidence.
Secondly, the evidence three years ago that she had applied for many private rental properties without success does not make the conclusion of the Tribunal unreasonable or unintelligible. In our view, it was reasonably open to the Tribunal to not place significant weight on this evidence or to not be satisfied that the tenant's onus to demonstrate exceptional circumstances was made out.
Thirdly, in our view, there is no basis for the grant of leave to appeal.
As we have noted above, it was for the tenant to make out and persuade the Tribunal of the existence of exceptional circumstances. Whether or not exceptional circumstances are made out is a broad concept which in effect means an appellant must demonstrate something more than a submission that the Tribunal should have been satisfied by the evidence of the tenant that she or he would have difficulty obtaining private rental accommodation. In our view, it was reasonably open to the Tribunal to not be satisfied that the tenant had demonstrated the existence of exceptional circumstances based upon the evidence that was before it. In other words, we are not satisfied that the tenant suffered a substantial miscarriage of justice or that the Tribunal made a factual error that was unreasonable arrived at and clearly mistaken.
Accordingly, we reject all of the grounds of appeal and refuse the application for leave to appeal.

Orders

The orders of the Tribunal are as follows: 1. Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW), extend the time for lodging the notice of appeal to 30 April 2020. 2. Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW), to the extent required, extend the time for the filing of the application in the proceedings SH 20/07471 to 22 August 2019. 3. Leave to appeal is refused. 4. Appeal is dismissed. 5. The stay order made on 7 May 2020 is lifted. 6. Pursuant to s 188(b) of the Residential Tenancies Act 2010 (NSW) Order 3 made on 8 April 2020 is varied to 28 days after the date of these orders.

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: 11 September 2020

Civil and Administrative Rules 2014(NSW)

At a glance

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Judgment (20 paragraphs)

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Legislation Cited (5)

Cases Cited (35)

Cited By (2)