Klaphake v New South Wales Parks and Wildlife Service

NCAT Appeal Panel|2023-10-11|Before: Rolfe J

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 13 June 2023. The decision related to a residential tenancy agreement concerning an art gallery in Leacock Regional Park.
On 19 August 2002 the respondent granted a licence agreement to the appellant to live in the premises. The parties agree that the licence agreement is a residential tenancy agreement as defined in the Residential Tenancies Act 2010.
The internal appeal was brought by the tenant against NSW National Park and Wildlife Service (the landlord). The tenant appeals the decision of the Tribunal to terminate the tenancy and to give possession to the landlord.
For the reasons set out below we have decided to dismiss the appeal and to affirm the order for termination, extending the order for possession by a further 45 days from the publication of these written reasons for decision.
For convenience we shall refer to the appellant as the tenant and to the respondent as the landlord.

Scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, with the 'leave') of the Appeal Panel: s 80(2) of the 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.
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 CAT 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.

The relevant legislation

Section 94 of the RT Act provides. 94 TERMINATION OF LONG TERM TENANCIES (1) The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement-- (a) if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and (b) if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and (c) if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case. (2) A landlord may make an application under this section without giving the tenant a termination notice. (3) The Tribunal must not make a termination order under this section that specifies a termination date that is before the end of the fixed term if the residential tenancy agreement is a fixed term agreement. (4) The Tribunal, in determining the day on which vacant possession of the residential premises is to be given to the landlord, must not order that vacant possession be given earlier than 90 days after the order is made.
For the purposes of s94(1)(a) it was accepted that the tenant had been continual possession of the property for a period of 20 years or more.
In exercising its discretion to terminate the tenancy under section 94, the Tribunal may make a termination order if the Tribunal is satisfied that it is appropriate to do so 'in the circumstances of the case': s94(1)(c).
The circumstances which may have to be taken into account when exercising the discretion pursuant to s94 include the time the tenant has occupied the premises, the age and state of health of the tenant, the necessity for any number of reasons for the tenant to live in a particular area and the inability of the tenant to obtain other suitable accommodation which include accommodation in an area suitable for matters such as proximity to family, facilities or employment (see Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J unreported, 22 March 1995) and the reason for the respondent seeking possession of the premises and whether that is a 'genuine purpose' (see Gay v The Minister Administering the Environmental Planning and Assessment Act [2021] NSWCATAP 359 at [65] referring to Celemajer Holdings Pty Ltd v Kopas [2022] NSWSC). Swain was upheld on appeal: Roads and Traffic Authority v Swain [1997] NSWSC 181; (1997) 41 NSWLR 452.

Submissions and evidence

In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal filed on 29 June 2023, the tenant's two appeal bundles filed 8 August 2023 and the Further and Additional Grounds of Appeal dated 26 September 2023 and appellant's written submissions of the same date. 2. The Reply to Appeal filed 11 July 2023 with attachments and the respondents submissions and documents filed with the Appeal Panel Registry on 9 October 2023.

Grounds of Appeal

The grounds of appeal were particularised and amended in a document entitled Further and Additional Grounds dated 26 September 2023. They did not conform with the appellant's written submissions and as best we can we have numbered the grounds as follows: 1. Ground 1: the Tribunal erred in finding that the tenancy was not permissible under the National Parks and Wildlife Act (NSW) (NPWA). 2. Ground 2: in the exercise of the discretion pursuant to section 94 to terminate the tenancy, the Tribunal erred in law by failing to give adequate reasons as to why the Tribunal found that the tenancy was not permissible under the NPWA. 3. Ground 3: the Tribunal erred in law by failing to give adequate reasons as to the exercise of the discretion pursuant to section 94 and failed to consider the relevant circumstances: a) The landlord's statutory obligations pursuant to the NPWA; b) The Heritage Assessment of the property; c) the relevant provisions of the Leacock Regional Park Plan of Management (LRPPM) which included the provision that existing tenancies are to be maintained in accordance with the RT Act until the tenants leave the premises. 4. Ground 4: in the exercise of the discretion pursuant to section 94 the Tribunal erred in law by failing to give adequate reasons how it considered that there were facts relevant to the exercise of the discretion including the fact that the appellant will suffer significant physical and financial burdens as a result of the termination of the tenancy; and how the additional repair and electrical works justified the termination of a tenancy in circumstances where repair and electrical work had been undertaken in the past and whilst the appellant occupied the property. 5. Ground 5: the Tribunal erred in law in finding that the repair works required the termination of the tenancy. 6. Ground 6: denial of procedural fairness by refusing to allow the appellant cross-examination of the respondent's witnesses.

Reply to Appeal

In its Reply to Appeal filed on 11 July 2023 the respondent stated among other things that: 1. There is no dispute between the parties that the residential tenancy agreement commenced on 19 August 2002 and the fixed term expired on 18 September 2023 and that the licence agreement entered between the parties was a residential tenancy agreement within the meaning of the RT Act and that thereafter the agreement was a periodic agreement. 2. There is no legislative requirement contained in the Leacock Regional Park Plan of Management (LRPPM) that requires the retention of the residential tenancy agreement between the parties; the LRPPM is irrelevant. 3. The tenancy is capable of being terminated in accordance with the provisions of the RT Act. 4. There is no legislative requirement contained in the LRPM that supersedes any statutory provision prescribed by the RT Act. 5. The appellant's argument would mean that the tenancy could only be terminated at the instigation of the tenant, and that there is no statutory means for the landlord to terminate the tenancy; 6. There is no statutory right to remain in the premises indefinitely given that the fixed term has expired and the residential tenancy agreement continued as a periodic agreement pursuant to s18 of the RT Act that was capable of being terminated in accordance with the notice provisions of the RT Act; 7. It was within the authority of the landlord as manager of Leacock Regional Park to decide whether to maintain the residential tenancy agreement or to terminate it and the landlord was guided by the recommendations of future management options for the 3.17 hectare park to determine what is in the public interest.

Ground 1- the tenancy is not permissible under the NPWA

The appellant appeals against the finding at [64] of the written reasons for decision: "I don't accept the submission that there are no coherent reasons for needing occupation of the property. The review that revealed that the tenancy was not permissible under the NPWA is a coherent reason…."
The respondent accepts that the Tribunal erred in finding that the tenancy was not permissible under the NPWA. The tenancy was at all times and remains a valid residential tenancy pursuant to the RT Act. This is an agreed fact between the parties. It is agreed between the parties that the Tribunal erred in finding that the tenancy was 'impermissible' according to New South Wales statute.
However, we are not persuaded that the error materially affected the ultimate decision to terminate the tenancy and whilst the error is apparent we nevertheless affirm the decision to terminate the tenancy.
The Tribunal correctly made the relevant findings of fact it must take into account when terminating this particular tenancy pursuant to s94 of the RT Act namely: 1. there is a residential tenancy agreement between the parties [55]; 2. the tenant has been continual possession of the property for more than 20 years; 3. a 20 year tenancy may be terminated without a notice of termination; and 4. in the exercise of discretion and taking into account argument from both sides, it is appropriate to terminate the tenancy in the circumstances of this case at [58].
While a decision may be set aside if there is an error of law, the error must be material in the sense that it "might" or "may" have made a difference: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ and 384 per Toohey and Gaudron JJ; House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112 at 121.
In this case, the fact that the Tribunal Member misdirected himself as to the relevance of the 2014 review of residential accommodation in national parks that found that tenancies were not permissible under the NPWA does not detract from the fact that the relevant considerations for the termination of a 20 year tenancy were considered in accordance with the correct principles of the RT Act.
The material relied upon by the appellant does not demonstrate any error in the Tribunal's decision making nor does it provide any substantial basis for granting leave to appeal.
Accordingly, this ground of appeal fails. In light of the immateriality of the error it is not necessary to allow this ground of appeal or to remit the matter for redetermination by the Tribunal

Ground 2 - Failure to give adequate reasons as to "why the Tribunal found that the tenancy was no permissible under the NPWA"

This ground of appeal is not numbered separately but referred to at [24] and [25] of the appellant's submissions. The tenant submits "in exercising the discretion to terminate the tenancy the Tribunal failed to set out the reasoning process that led the Tribunal to conclude that the tenancy was not permissible under the NPWA. As we set out further above in these reasons, the respondent conceded that the Tribunal erred when it found that the tenancy was "not permissible" under the NPWA. However, as we arrived at a finding that the error is immaterial it is no longer necessary to determine whether the Tribunal's reasons concerning this finding were adequate.
This ground of appeal is dismissed.

Ground 3 - The Tribunal failed to give adequate reasons in particular the Tribunal failed to consider the landlord's statutory obligation under the NPWA, the heritage assessment report or the LRPPM

We refer to the tenant's submissions at 25(b). Again, this ground of appeal is not separately numbered. The tenant submits that the Tribunal failed to set out the reasoning process in reaching its conclusion that the respondent's statutory obligations under the NPWA and the Ashley Built Report are not relevant (see [67] of the written reasons for decision). We have considered the 'inadequacy of reasons' submission in grounds 3 and 4.
In NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr) Bell P at [66], [68], [70], [71] and [77] set out the following principles with respect to the adequacy of reasons of the Tribunal (with Ward JA at [109] agreeing): "[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley)." "[68] In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58]." (emphasis in original) "[70] As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court." (emphasis in original) [71] That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. [77] These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [14] (Gleeson CJ); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Pozzolanic at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291."
The observations in Orr at [66], [71] and [77] have been recently applied by the Appeal Panel: Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 at [20]-[23]; P8 Auto Ltd t/as European Automotive Ballina v Dolling [2022] NSWCATAP 41 at [18].
For the reasons that follow we are not satisfied that the appellant has established that the Tribunal erred on a question of law in failing to give adequate reasons. The Tribunal took into account the relevant evidence to arrive at the necessary findings that: 1. The tenancy should be terminated because the premises require significant repairs; 2. The safe occupancy of the premises can no longer be guaranteed; 3. The property requires repairs in the vicinity of $150,000; 4. The premises are not well kept or comfortable as was argued by the appellant. They require significant work; 5. The NPWA requires possession of the property so that repairs to the property may be undertaken and the respondent has no statutory obligation to maintain the premises pursuant to the NPWA.
In the exercise of its discretion the Tribunal took into account the circumstances of the case (Swain) namely the tenant's advanced age, his mobility issues and his long history in the premises. These were all factors that were clearly relevant and properly taken into account.
As we have noted, the only matter in dispute in the proceedings before the Tribunal was whether the discretion in s94 should or should not be exercised to terminate the tenant's tenancy.
We have been provided with all the material and arguments that were before the Tribunal and as we understand the appellant's case, it is submitted that the respondent has a statutory obligation to retain the tenancy "pursuant to the NPWA": see further and additional grounds of appeal (3)(a). It is the appellant's submission that the Tribunal did not set out adequate reasons as to how it evaluated the evidence of the appellant. "The Tribunal merely found that because of repair works required to the property (some of which was based on a suspicion the works were required), that factor justified the termination order." (written submissions at [27]).
Having viewed the written reasons for decisions, we accept that the reasons were expressed economically. That is, to an extent, understandable in the context of the workload of the Consumer and Commercial Division of the Tribunal; the relatively narrow compass of the factual and legal issues for consideration; and the benefit to the parties of delivering a decision and reasons efficiently, even if this means the reasons do not cover every factual or legal issue in copious detail. The Tribunal took into account the relevant evidence and arrived at the necessary findings that the tenancy should not and could not be maintained over the needs of the general public to repair and re-purpose the 3 hectare property. In doing so it took into account the competing evidence of the parties, more specifically addressed further below in these reasons at [47].
We are satisfied the reasons are sufficient to meet the minimum standard of adequate reasons. They sufficiently set out the evidence, the factual findings and the legal principles applied.
Further, having viewed the documentary evidence the parties were relying upon at first instance, there is nothing illogical or irrational or clearly unreasonable about the findings. The expert reports considered the premises were in a significantly damaged condition. It was clearly open to the Tribunal to find that the premises were in poor condition and contained many items of rubbish that required removal.
The landlord had a compelling case for termination under s94 of the RT Act. Further, the tenant did not have a strong case regarding his claims that by reason of his personal circumstances the deteriorating condition of the public property should be ignored and the Tribunal's reasons adequately explain why the landlord's claim succeeded.

Ground 4 - the Tribunal erred in the exercise of its discretion in particular the Tribunal failed to consider the tenant's circumstances

This ground of appeal is set out in submissions at page 11 para [28] and following. The tenant conceded he requires leave to appeal on the basis that the tenant challenges the Tribunal's exercise of discretion to terminate the tenancy: see s80(2)(b) of the CAT Act.
We do not accept the Tribunal erred in considering the circumstances of the case. The appellant submitted many references to documents as to the tenant's needs, contained at paragraphs [4] and [9] of the appellant's submissions, including but not limited to reference to the tenant's advanced age; state of health; his limited mobility due to the tenant having his leg amputated; the tenant having no family or friends he could live with if the tenancy was terminated; the Tribunal refused to make a finding that the tenant is unable to secure alternative accommodation merely due to the fact that he receives the "Aged Pension" and found the evidence as to available rental properties in the area inconclusive.
Reference was made to the landlord's submissions filed 24 March 2023 at [11] and the written reasons for decision at [40] that the condition of the property was poor and poses a significant risk to human life and the surrounding environment; the cost of remedying repairs to the property including electrical works will exceed $100,000 and the property is reserved for the public as a regional park under the NPWA, the objects of which are not served by the property being a private tenancy and the property should be made accessible to the public.
We do not accept that the Tribunal failed to evaluate the competing evidence. In relation to the evidence of the tenant, the Tribunal referred to the Ashley Built Heritage Report. It set out the long and significant history of the appellant's family with the property and referred to the structure on the property as being "well built" but as suffering from long term lack of regular maintenance. It appears that the recommendation of the report was, which the tenant says should be adopted, that if the tenancy is not terminated, the landlord could undertake repairs whilst the tenant remains resident and upgrade the residential premises. The Tribunal refers to the report and its conclusion at [27] of the written reasons for decision.
Reference was also made to the statement of Ms Katie Littlejohn who was present at the hearing and who deposes that the property is not fit for habitation. In her statement Ms Littlejohn refers to the NSW Government Planning Industry & Environment Memorandum citing the Ashley Built Heritage report and noting that while it recommends that the "property should be available for the community to use the buildings for environmental sustainability and arts programs" the report "fails to consider the significant asbestos contamination of the building assets and grounds, resource limitations to return the buildings to current Australian Standards and Building Code of Australia, legal implications of private tenancies, and whether adaptive reuse opportunities are needed in the local community". The statement of Ms Littlejohn is referred to at [8] of the written reasons for decision.
In oral submissions, the appellant submitted the way in which the Tribunal approached the exercise of discretion under s94 was to ignore the Leacock Regional Park Plan of Management (LRPPM) and in particular the recommendation at paragraph 3.5.8 to "conduct a heritage assessment of the Mt Omei Residence and associated buildings" and "if found to be of significance, prepare a heritage statement to guide future management and works". It was submitted that the Tribunal also failed to consider the further recommendation at page 27 of the LRPPM to "maintain existing tenancy agreements in accordance with the Residential Tenancies Act 2010 until the tenants leave or subject to the recommendations of the assessment of future management options." It was submitted that the Tribunal, if it had taken into account the LRPPM and the recommendation of the Ashley Built Heritage Report, could not reasonably have come to a conclusion to terminate the tenancy.
The tenant submitted that the Tribunal did not look at the particular circumstances relating to the residential premises, and gave inadequate reasons how it evaluated "the circumstances of the case". It was further submitted that that approach did not accord with what Rolfe J said in Swain where his Honour referred to, as a possible '"circumstance" which may have to be taken into account, the necessity for any number of reasons for the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation, in which his Honour included accommodation in an area suitable for matters such as proximity to family, facilities or employment. It was submitted the circumstances of the case where not properly evaluated.
The thrust of the submission was set out at [30] of the submissions: "The decision to terminate the tenancy was not one that a reasonable Tribunal member could reach having regard to [the evidence, as set out above]".
We refer to House v The King [1936] HCA 40; 55 CLR 499 at 504-505. There, Dixon, Evatt and McTiernan JJ said: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
In our opinion, the tenant has not made good this challenge to the exercise of the Tribunal's discretion or the inadequacy of reasons.
We reject the submission that the Tribunal failed to evaluate the "circumstances of the case". First, the Tribunal did consider all the circumstances of the appellant's particular case. Those were outlined under the heading "Respondent's submissions" at [53]ff and went into some detail outlining the appellant's particular age, health, social connection and reference to homelessness. We note at this juncture that neither before the Tribunal nor before us was there any evidence to support the contention that the appellant cannot rent accommodation in the Liverpool area, nor is there evidence of any attempts that may have been made to secure or inspect rental properties. Secondly, in the exercise of the discretion under s94 the Tribunal did consider each of the matters on which the appellant relied and made findings of the likely effects the termination may have on the tenant. The Tribunal certainly considered the recommendations of the Ashley Heritage Built report and the conclusions of the LRPPM, but concluded these were irrelevant to the exercise of the discretion under s94. We respectfully agree with the respondent's submission that there is no statutory requirement afforded by the LRPPM that requires the landlord to retain the tenancy for all time and at all cost. The submissions remain silent on the issue of why the LRPPM is relevant or why the tenancy cannot be terminated because the heritage report recommended an option for the tenancy to continue.
We reject the submission that the Tribunal did not evaluate the circumstances of the case, on the contrary, the evaluation is contained at [55]ff with the critical conclusion reached at [70] that the landlord's concerns outweigh those of the tenant.
In our opinion, in respect of the submissions made in relation to the tenant's evidence and in relation to the needs of the tenant, no appealable error on a question of law has been demonstrated in the Tribunal's consideration of the evidence or in the exercise of the discretion, weighing the interests of the tenant and the interests of the landlord.

Leave to appeal

The appellant referred to the decision to terminate the tenancy as being against the weight of evidence and conceded that leave to appeal is required in respect of ground 4. In the disposition of this ground of appeal, we are not satisfied that the grounds have been established or that leave should be granted due to the findings being against the weight of evidence.
A decision is "against the weight of evidence" when the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal Member could reach": Collins v Urban at [77].
We are not satisfied the appellant has established the decision [to exercise the discretion not to terminate the tenancy] was against the weight of evidence such that a substantial miscarriage of justice occurred. The Tribunal's reasons clearly set out why the Tribunal was satisfied that the landlord had established reasonable grounds for the termination of the tenancy. The Tribunal's reasons are logical and orthodox.
Further, the Tribunal's finding that the landlord, that is a public authority, was entitled to regain possession of its property was based upon the finding that significant repairs are needed and that the structure of the house and gallery were so significantly impaired that the occupation by a private tenant was no longer tenable , outweighed the position of the tenant (see at [70]). The Tribunal was justifiably persuaded in the exercise of its discretion, that the landlord had persuasive, justifiable reasons to take possession of the premises.
We are not satisfied the decision was against the weight of evidence. We are also not satisfied the decision was not fair and equitable. No basis for leave to appeal under cl. 12 of Sch. 4 of the NCAT Act has been established by the tenant, and we do not grant leave to appeal in accordance with the principles set out in Collins v Urban.
At page 12 the appellant raised a separate ground of appeal, although it is not separately pleaded or particularised, nor are we informed if this submission raises an error on a question of law or an error for which the leave of the appeal panel is required. We have nevertheless considered it separately.
This submission is contained at [31] of the appellant's written submissions: "To the extent that repairs works are required to the property, the works were the responsibility of the [landlord] to undertake and in failing to undertake the works, the [landlord] breached: a. clause 12 of the residential tenancy agreement; b. section 52 (3) of the RTA in failing to comply with its statutory obligation relating to the health and safety of the property to ensure the property is fit for habitation; and c. s50 of the RTA in failing to carry out urgent repairs to the property including electrical faults."
The point was raised that the order was made in circumstances where the basis upon which the Tribunal held it was appropriate to terminate the tenancy was because of the need for extensive repairs. The appellant submitted that the respondent had breached its statutory duties under the RT Act and the terms of the residential tenancy agreement to keep the residential premises habitable. This is a factor which "ought to have been considered" as part of the circumstances of the case.
First we note that the tenant did not bring a cross-application for repairs to property and this appeal is brought in relation to a decision following the landlord's application for termination of a residential tenancy agreement pursuant to section 94 of the RT Act. There is no evidence that the appellant pressed the landlord for repairs. As such this submission is not relevant to the to the appellant's fourth ground of appeal.
Second we would note that this was not an argument pressed before the Member below. It is trite to say that a party is bound by the case he or she ran in the Tribunal below, and the tenant now seeks to argue that, contrary to the position they took before the Tribunal, the failure by the landlord to repair the premises prevented the orders that were made from being made. That cannot be allowed except in exceptional circumstances.
In McInnes v Rheem Australia Pty Limited [2021] NSWCA 89 Gleeson JA, with whom Bell P and Payne JA agreed, observed: "[44] It is trite that a party is bound by the case he or she ran below. As the High Court said in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483, in the context of an application to reopen a case following judgment: 'It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had and (sic) opportunity to do so.' It would be inimical to the interests of justice to allow Ms McInnes to make an entirely new and different costs application on appeal, after having failed on a different basis before the primary judge: Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645-646; Water Board v Moustakas (1988) 180 CLR 491 at 487; [1988] HCA 12."
We are not of the view that this submission advances the tenant's grounds of appeal or that an error on a question of law by the Tribunal has been demonstrated. This ground of appeal is dismissed.

Ground 6 - denial of procedural fairness

The appellant seeks leave to include a new ground of appeal. The respondent does not oppose it. We grant leave to amend the "Further and additional Grounds of Appeal". The grounds are set out at [33] of the appellant's written submissions: "Although not currently pleaded there are grounds upon which the Appeal Panel ought to find that the appellant was denied procedural fairness at the hearing on 10 March 2023 in circumstances where: a. the Appellant was not legally represented at the hearing; b. the Appellant relied on the assistance of Ms Walker, a lay person; c. the Tribunal Member informed Ms Walker that "today is about submissions"; d. the Tribunal Member denied Ms Walker's request to call the author of the Heritage Assessment Report so as to adduce [fresh] evidence in relation to the contents and relevance of this report to the issues in dispute; e. the Tribunal Member denied Mr [sic] Walker the opportunity to cross-examine Ms Littlejohn in relation to the Leacock Regional Park Plan and the implementation of its recommendation; f. the Tribunal Member proceeded on the basis that the authors of the expert evidence relied upon by the Respondent, which were three years out of date, were not available and therefore the evidence given by the Respondent's expert witness was not explored or challenged; g. the Tribunal Member did not explain to Ms Walker or the Appellant the issues relevant to the exercise of the discretion to terminate the tenancy pursuant to s94 of the RTA in the context of hearing submissions from Ms Walker as to why the tenancy should not be terminated."
As can be seen in para [30(d)] set out above, it is alleged that the Tribunal prevented Ms Walker from adducing oral evidence at the hearing. The limited transcript provided describes that the Member explained to Ms Walker that the Tribunal would not permit the appellant to adduce fresh oral evidence from the author of the heritage report and explained that it is generally not permissible for either side's expert to elaborate on previously filed and served written reports. The Tribunal Member did explain that the parties can cross-examine the other side's experts but in light of the fact that the authors of the respondent's Tyrrell's report had not been requested for cross-examination, no such cross-examination took place.
The appellant did not tender a complete transcript of the proceedings.
We have been provided with an excerpt of the transcript by the respondent, contained in submissions at [39]. We conclude that there is no evidence that Ms Walker requested the makers of the Tyrrell's report for cross-examination, nor did the tenant request an adjournment when it became apparent that the makers of the reports were not available at the hearing.
In relation to courts and procedural fairness, the position was summarised in Hamod v State of New South Wales and Anor [2011] NSWCA 375 by Beazley JA, as Her Excellency then was, and with whom Giles and Whealy JJA agreed, where her Honour held (citations omitted): "[309] Courts have an overriding duty to ensure that a trial is fair ... This entails ensuring that the trial is conducted fairly and in accordance with law ... In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self represented …. In MacPherson Mason J, at [31] 534, noted that: 'A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'.' [310] … [311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case ... [312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised ... Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial ... The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant ... [313] The touchstone at all times remains that of fairness…"
In Gallo v Duflou [2014] NSWCATAP 115, the Appeal Panel considered that the Tribunal was subject to the common law obligation to inform an unrepresented litigant of the right to cross-examine and to ask the litigant whether he or she wished to ask a witness questions, and that that common law obligation was not excluded by s 38(5)(b) of the NCAT Act.
In the case of Cheung v Yang [2013] NSWSC 1694, referred to by the Appeal Panel in Gallo at [39] and [40], Harrison J said that Mr Cheung had not been denied procedural fairness in circumstances where the Consumer, Trader and Tenancy Tribunal had directed that there was to be no cross-examination of any witnesses in the proceedings. His Honour said: "[59]. … The only witnesses that Mr Cheung identified as a potential candidate for cross-examination was Mr Bae, and then only on the question of some relatively small amounts paid to him for plumbing and electrical work. Denying Mr Cheung the opportunity to cross-examine him would not attract a legitimate complaint in the circumstances, as well for the reason that the contest about the quantum of the cost of the works effectively disappeared in the wake of the Tribunal's acceptance of the value of the works performed by Mr Cheung. [60] It was wholly within the legitimate power of the Tribunal to dispense with cross-examination if it thought fit in accordance with the terms of s 28 of the Act. The only limitation upon its power to do so consists in its obligation to conform to the rules of procedural fairness. Refusing to permit Mr Cheung to cross-examine Mr Bae did not offend those rules."
Thus, whilst never doubting that procedural fairness needed to be applied by the Tribunal, his Honour held that no practical injustice had occurred through the Tribunal's refusal to allow Mr Cheung to cross-examine Mr Bae. This underlies the basal point that not only must procedural unfairness be shown, but an appellant also needs to demonstrate that the procedural unfairness caused some practical injustice.
The submissions for the appellant did not state how the failure by Ms Walker to cross-examine the respondent's witnesses caused some practical injustice. There needs to be something more than the mere assertion that a denial of procedural fairness has occurred, and we were not informed how any cross-examination would have produced relevant evidence. Ms Littlejohn's evidence, although admitted into evidence, is to a large degree irrelevant. Her statement deposed that private tenancies are not permissible under section 151I of the NPWA. Her statement, among other documents, led the Tribunal to find, erroneously, "that the tenancy was not permissible under the NPWA": [64] of the written reasons for decision. However, as we found earlier in these reasons, although an error is conceded by the landlord, the error was found to be of no consequence to the appeal. It is simply an irrelevant consideration. For these reasons we are not of the view that the tenant has established an error on a question of law by reason of the absence of cross-examination of Ms Littlejohn. No practical injustice has been established.
Further the tenant submitted that the decision of the Tribunal not to allow cross-examination of Ms Littlejohn about her views on the LRPPM is a denial of procedure fairness and therefore an error on a question of law. There is no transcript tendered that supports the contention that the Tribunal prevented cross-examination of Ms Littlejohn, and on the limited transcript before us we cannot be satisfied that it did. But even if it can be established that there was a refusal by the Tribunal Member to allow cross examination of this witness, we have considered Ms Littlejohn's statement. There is no mention of the LRPPM in her statement and counsel for the appellant does not elaborate how cross-examination of Ms Littlejohn on the LRPPM would have adduced evidence to support the tenant's case, particularly in light of the Tribunal's findings at [67] that the heritage assessment and the LRPPM are irrelevant to the exercise of the Tribunal's discretion under s94 of the RT Act. That finding of fact has not been appealed and is not impugned in any way.
The same applies to the allegation that the tenant has been denied procedural fairness by reason of the fact that the makers of the Tyrrell's reports were not cross-examined. First, there is no transcript reference that establishes that the maker of the report was requested for cross-examination or that the Tribunal refused a request by the appellant to cross-examine Mr Irvine the maker of the Tyrrells reports. Although this is not a ground of appeal particularised in the Notice of Appeal or the 'further amended grounds of appeal', as we understand it, the tenant raises the new point that the repairs outlined in the respondent's expert reports are exaggerated. At [64] of the written reasons for decision the Tribunal finds that "the fact that building repairs of approximately $118,110 were required over 3 years to ensure the safe occupancy of the house and gallery and that electrical work of approximately $38,930 was required constitute coherent reasons for needing occupation of the premises". The appellant does not appeal these findings of fact and in any event, if such a finding of fact was said to be against the weight of evidence, the leave of the Appeal Panel would be required.
No practical injustice has been demonstrated. We are of the view that the tenant has failed to establish an error on a question of law and has failed to establish how the Tribunal fell into error by reason of the fact that Ms Walker did not cross-examine the makers of the Tyrrells' reports.
This ground of appeal is dismissed.
That leaves the tenant's application to adduce fresh evidence. The appellant sought leave to adduce an additional expert report of Accurate Building Services dated 27 July 2023. The report was obtained after the initial hearing and its purpose is to "produce a cost estimate for the minimum amount of repairs and maintenance required to bring the house to a reasonable standard suitable for habitation": AB825ff. The author of the report, Mr Frank Paine, a licensed builder, estimated the total cost to carry out repairs and maintenance at $28,400. This does not include the cost of electrical repairs and does not include cost of removal of asbestos. The respondent objects to the tender of the fresh report on the grounds that such a report was reasonably available and could have been obtained before the hearing.
We agree. The report does not satisfy the criteria for fresh evidence under clause 12 of Schedule 4 of the CAT Act. 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 the decision of the Tribunal under appeal was not fair and equitable, or the decision of the Tribunal under appeal was against the weight of evidence, or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
We are not satisfied that the evidence "was not reasonably available at the time the proceedings under appeal were being dealt with". We interpret clause12(1)(c) of Schedule 4 of the NCAT Act to mean that the new evidence must have been in existence at the time of the hearing and that leave to appeal may be granted if the appellant suffered a substantial miscarriage of justice because the new evidence was unavailable at the hearing because no person could have reasonably obtained the evidence.
Support for this construction is to be found in Chapman v McLaughin [2016] NSWCATAP 212 at [37] in which an Appeal Panel stated: "… The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply." (Emphasis added)
The interpretation we stated at [79] and the effect of the authority of Chapman v McLaughlin results in us finding that the appellant is not entitled to rely on new evidence that came into existence after the hearing on 10 March 2023 had concluded, namely the report of Accurate Building Services. If that were not the case, the principle of finality of litigation would seriously be eroded as parties would be free to consider the decision handed down and then to seek out new evidence which would overcome any evidential deficiencies disclosed by the reasons given in support of the decision.
The appellant's application for leave to appeal to adduce fresh evidence based on clause12(1)(c) of Schedule 4 of the NCAT Act is refused.
Finally we note that after some discussion with the parties the parties agreed that in the event the appeal is not successful, the date for possession should be extended by a further 45 days from the date of publication of these written reasons for decision.

Orders

The orders of the Appeal Panel are: 1. Leave to appeal refused. 2. Appeal dismissed. 3. By consent of the parties, the order for possession made in RT 22/04553 is extended by 45 days from the date of publication of these reasons..

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: 31 January 2024

(2019) 100 NSWLR 578

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