Ms Key, a social housing tenant, has appealed against a decision of the Consumer and Commercial Division of the Tribunal to remove her dog from the premises she rents from Southern Cross Community Housing Ltd. Ms Key's appeal was lodged out of time and we have decided not to accept it mainly because it has no reasonable prospects of success.
Ms Key did not lodge the appeal within 14 days from the day on which she was notified of the decision or given reasons for the decision: Civil and Administrative Tribunal Rules 2014 (NSW), (the Rules) rule 25(4)(b). The Tribunal made the decision on 9 September 2014 and, as Ms Key was at the hearing, she was notified of the decision on that day. She did not apply for reasons for the decision to be provided even though she was entitled to do so: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 62(2). As the 14 day time period started to run from 9 September 2014, and Ms Key did not lodge the appeal until 2 October 2014, it was nine days late.
The time for lodging an appeal may be extended even though the time has expired: NCAT Act, s 41. But rule 8 of the Rules requires that an application for an extension of time is to be in writing. The Notice of Appeal asks whether the appellant requires an extension of time. Ms Key put a cross in the 'No' box in answer to that question. Consequently she has not made a written application for an extension of time.
At the hearing before the Appeal Panel, Ms Key participated by phone. She said that she did not realise her appeal was out of time but would apply in writing for an extension of time. She has not done so but we have nevertheless considered her verbal application.
[2]
Application for extension of time
The Appeal Panel set out the principles to be applied when considering an application for an extension of time in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 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].
[3]
Consideration of the out of time application
The delay in this case is nine days which is a relatively short period of time. Ms Key said that the reason she lodged the appeal late was that she has dyslexia and she needed someone to help her complete the form. While that is a partial explanation, she does not say why it took her extra time to find someone to help her to complete the form.
More significantly, there are no reasonable prospects that Ms Key will be successful if leave is granted for the appeal to go ahead.
Ms Key is entitled to appeal on a question of law but must obtain the Appeal Panel's leave before appealing on other grounds: NCAT Act, s 80(2)(b). Ms Key has purported to appeal on a question of law, but the question that she identified (that "every other tenant under Southern Cross Housing is allowed to keep pets and I would like it ruled so that I am also able to") is not a question of law.
She indicated in the Notice of Appeal that she was not seeking leave to appeal in relation to the merits of the Tribunal's decision. Despite that election, she answered questions about the weight that the Tribunal gave to her evidence. In relation to appeals from the Consumer and Commercial Division, leave to appeal on grounds other than a question of law can only be granted in the limited circumstances set out in Schedule 4, cl 12:
(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).
It is not surprising, since Ms Key is self-represented, that she has not articulated the grounds of appeal in a way that clearly identifies a question of law or given a proper basis on which leave should be granted. While the Appeal Panel must remain impartial, we must also attempt to ensure that the real issues in dispute are determined justly, quickly and cheaply: NCAT Act, s 36(1). In order to identify any issues that may arise on appeal, we set out the brief history of Ms Key's matter.
Southern Cross Community Housing applied to the Tribunal under s 187(1)(a) or (b) of the Residential Tenancies Act 2010 (NSW) for an order that "restrains any action in breach of a residential tenancy agreement" or that "requires an action in performance of a residential tenancy agreement."
It was not in dispute that the Residential Tenancy Agreement between Ms Key and Southern Cross Community Housing states in cl 43, under the heading, "Additional Term - Pets" that "[T]he tenant agrees not to keep animals on the residential premises without obtaining the landlord's consent." On 19 December 2013 Southern Cross Community Housing decided not to approve Ms Key's application for permission to have a dog at the property. In those circumstances, the Tribunal made no error in finding, as we presume it did, that the dog was at the property in breach of the Residential Tenancy Agreement.
Once that finding had been made, the Tribunal had a discretion to make certain orders including the order that it did make that Ms Key remove her dog. The parties agreed that the Tribunal had given them a reasonable opportunity to provide evidence and submissions about whether it should make that order. Ms Key and Mr Coulter, representing Southern Cross Community Housing, repeated some of that evidence and those submissions to the Appeal Panel. Ms Key said that the parents of her dog, who belonged to her sister but who were at the property at the time, were responsible for killing a neighbour's dog on 10 December 2013. She also said that any damage caused to a shed and other property was done by her sister's dogs, not her dog. While Mr Coulter acknowledged that Ms Key's dog may not have been responsible for the attack, he provided other reasons why the dog was not a suitable pet for Ms Key.
If this appeal were accepted out of time, the Appeal Panel would be highly unlikely to overturn the first instance decision on a question of law because it involved the exercise of a discretion. The well-known statement of principles by Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505 apply. There is nothing to suggest that the exercise of the Tribunal's discretion miscarried in this case.
Similarly, if the appeal were accepted out of time, the Appeal Panel would be highly unlikely to give leave for the appeal to go ahead. For appeals from decisions of the Consumer and Commercial Division, leave may only be granted in the circumstances set out in Schedule 4, clause 12 of the NCAT Act which states that:
(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).
Note : Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.
There is no suggestion of any significant new evidence or that the decision was against the weight of evidence. Ms Key has not been been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved: Collins v Urban [2014] NSWCATAP 17 at [77]. In those circumstances it is highly unlikely that the Appeal Panel would be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.
Southern Cross Community Housing will not suffer any particular prejudice if leave is granted to appeal out of time because they have prepared their case for hearing. Nevertheless, the appeal is out of time and while a reason has been given for the late lodgement, we are unable to identify any ground of appeal that has reasonable prospects of success.
We note that Southern Cross Community Housing is amenable to Ms Key keeping a dog on the premises, but not the dog which she currently owns.
[4]
Orders
1. The application for an extension of time in which to appeal is refused.
2. The appeal is dismissed.
[5]
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
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Decision last updated: 12 March 2015