Kline v NSW Land and Housing Corporation

NCAT Appeal Panel|2014-07-24|Before: Wright J, Dr J

Legal Aid NSW (Appellant) NSW Land and Housing Corporation (Respondent) File Number(s): AP 14/0239 Decision under appeal Before: J McMillan (SH 14/18707)T Simon (SH 14/18707)

reasons for decision 1This matter comprises: 1)An application for extension of time in which to appeal and; if granted 2)An appeal from orders made by the Tribunal on 22 April 2014 to terminate the appellant's residential lease and grant possession to the respondent; and alternatively 3)An application for leave to appeal from a decision of the Tribunal on 3 June 2014 to refuse to set aside the orders made on 22 April 2014. 2As the appellant succeeded on the first and second matters, it was not necessary to decide the third. (Although Mr Steven Kline is variously an applicant and an appellant, it is convenient to refer to him throughout these reasons as 'the appellant'.) 3On 24 July 2014, shortly after the conclusion of the oral hearing, the Tribunal announced the orders in this matter and advised that reasons would follow. These are those reasons.

Legislation 4This matter requires consideration of two statutes, namely the Civil and Administrative Tribunal Act 2013 (NSW) ('the Act') and the Residential Tenancies Act 2010 (NSW) ('the RT Act'). 5Section 38(2) of the Act states: The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. [emphasis added] 6Section 38(5)(c) of the Act states: The Tribunal is to take such measures as are reasonably practicable... to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 7Breach of the requirement 'to be heard' under the Act or the common law, may amount to an error of law, which may be remedied by the Tribunal in at least two ways that are relevant for the purpose of the present matter. First, where the decision was an 'internally appealable decision', there may be an appeal on a question of law under s 80 of the Act, to be determined in accordance with s 81 of the Act. 8Those provisions state: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance-with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance-as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal. 9Second, regulation 9 of the Civil and Administrative Tribunal Regulations 2013 (NSW) provides a further power to grant relief: Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. ... (2) The Tribunal may make an order under this clause of its own motion or on the application of a party. ... (5) A party may not make an application for an order under this clause to set aside or vary a decision of the Tribunal if: (a) an internal appeal or appeal to a court against the decision has been lodged or determined, or (b) an application for a judicial review of the decision has been made or determined. [Emphasis added] 10The RT Act permits termination of a residential tenancy agreement in a number of circumstances. Section 92(1)(a) states: Tribunal may terminate residential tenancy agreement for threat, abuse, intimidation or harassment (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: (a) seriously or persistently threatened or abused the landlord, the landlord's agent or any employee or contractor of the landlord or landlord's agent, or caused or permitted any such threats, abuse or conduct... 11The RT Act also deals with the appointment of a tenant's agent, and the revocation of that appointment, as follows: 221 Tenants' agents (1) A tenant may appoint a person as the tenant's agent for the purpose of receiving notices or documents given under the residential tenancy agreement or this Act or the regulations. (2) The tenant may appoint the agent in the residential tenancy agreement or at any time during the tenancy by written notice given to the landlord or the landlord's agent. (3) An appointment may be revoked at any time by written notice given to the landlord or the landlord's agent. (4) A landlord, landlord's agent or the Tribunal (if aware of the appointment) must give to the tenant's agent any notices or other documents required to be given to the tenant under the residential tenancy agreement or this Act or the regulations. (5) Any such notice or document is taken to have been given to the tenant if it is given to the tenant's agent. [Emphasis added.]

Background 12On 22 January 2001, the respondent entered into a residential tenancy agreement with the appellant over residential premises at [XXXX] Riverstone. By s 6 of the Housing Act 2001, the respondent was established as a body corporate, and a statutory body representing the Crown. 13On 7 April 2014, the respondent lodged an application with the Tribunal for orders terminating the residential tenancy agreement between the appellant and the respondent. 14On 22 April 2014, the application was heard in the absence of the appellant, and orders were made granting the application and providing the respondent with immediate possession. The reasons for the decision included the following: The applicant [now the respondent] appeared at the hearing. There was no appearance by the respondent [now the appellant]. There appears on the Tribunal file a copy of a notice of hearing addressed to respondent advising of the time and location of the hearing. Having perused the Tribunal file I am satisfied that, in accordance with the Registrar's usual practices, notice of hearing of today's proceedings was posted to the respondent on 8 April 2014 and it has not been returned. I am satisfied the respondent has notice of the [sic] today's hearing. Further, I am satisfied that in the interests of justice, the matter proceed in the absence of the respondent. 15On 30 April 2014, the appellant was notified of those orders, and his general practitioner, Dr Mckay, wrote to the Tribunal on the same day, in terms relevantly noted below. 16On 19 May 2014, the appellant applied to set aside the decision under regulation 9(1) of the Civil and Administrative Tribunal Regulation. On that same day the appellant's legal representatives also sought to lodge a notice of appeal under s 80 of the Act 17In view of the terms of regulation 9(5)(a) of the Civil and Administrative Tribunal Regulation, the Tribunal's registry refused to accept the notice of appeal. 18However, on that date the Tribunal nevertheless made an order staying the operation of the orders for termination and possession until further order. 19On 2 June 2014, the appellant filed statements by the appellant and others, and filed written submissions. On 3 June the Tribunal refused the application to set aside the decision. 20On 13 June the appellant commenced the proceedings before the Appeal Panel of the Tribunal which are noted above at [1]. 21The application for an extension of time in which to file an appeal was not opposed by the respondent. Thus, the focus of the hearing became the appeal from the decision of 22 April 2014 ('the appeal'). As already noted, the Tribunal's decision in favour of the appellant on that appeal makes it unnecessary to decide the application for leave to appeal from the decision of the Tribunal on 3 June 2014. 22On the appeal there were two grounds. The first ground was that there had been a denial of procedural fairness and/or a breach of s 38(5) of the Act. An additional ground put forward was that on 22 April the Tribunal did not address discretionary considerations under s 91 of the RT Act when deciding to terminate the residential tenancy agreement. Because we have decided to make orders for rehearing, and as there are contested matters for determination on the rehearing, it is neither necessary nor appropriate to consider that additional ground. 23Before considering the first ground, it is necessary to consider certain factual matters on the appeal. The Appeal Panel received evidence in addition to the evidence before the Tribunal on 22 April, without objection from either party.

The appellant's literacy and mental state 24A critical factor in the determination of the appeal was the circumstance, accepted by counsel for the respondent during the hearing on 24 July 2014, that at all relevant times the appellant was, at least, 'functionally illiterate'. 25Further, the Appeal Panel received a medical report from Dr Emily Mckay of the Riverstone Family Medical Practice, who was the treating doctor of the appellant, which described the appellant as an: Aboriginal gentleman with serious mental health issues, chronic health issues who requires regular medical care... he is extremely paranoid and likes to keep to himself. 26In order to overcome at least the problems caused by his functional illiteracy, on 12 November 2003, the appellant signed two documents, namely: 1)a 'Consent to Exchange Information Between a Social Housing Provider and Support Workers'; and 2)a 'General Consent to Exchange Information and Authority to Act' on the appellant's behalf. 27By signing these documents the appellant: (1)authorised 'Went West / Close the Gap Team' to collect, use, and exchange information, described on the form as 'all information'; and (2)authorised the Aboriginal outreach worker at Went West / Close the Gap to act on his behalf. 28The second form indicated that the appellant wished this written authority to last for two years, and contained his signature under the following terms of authorisation: I authorise the person/agencies named on this form to exchange information about me and/or to act on my behalf in matters concerning a social housing provider according to the arrangements shown on this form. I know that I can change my mind and stop my consent at any time by writing or telling a social housing provider unless there is a current legal order in place. 29By signing the first form, the appellant authorised support agencies to give or receive information about him from or to a social housing provider such as the respondent. 30We find that: 1)these documents were delivered to the respondent; and 2)the respondent accepted an arrangement whereby Went West were to receive at least a copy if not the original of all documents addressed to the appellant. 31It is the perhaps rare conjunction of these factors which is critical to the result in this matter. The evidence for so finding, which we accept, is as follows. 32First, there is the statutory declaration by Mr Andrew Langley, solicitor, Legal Aid NSW, who represented the appellant, recording a conversation he had with the appellant on 29 May 2014, in which the appellant said: Housing NSW had known for years that I cannot read or write... I went to a meeting before Christmas last year with Housing. My solicitor Veselko was there along with Jamie and my care worker from Closing the Gap. I signed some forms so that letters for me were meant to go to Jamie, to re-route to me. 33Second, Mr Langley's statutory declaration refers to the conversation he had with 'Veselko', namely, Mr Veselko Cuic, a solicitor at Mount Druitt and Area Community Legal Centre who, being about to travel overseas, did not make a statutory declaration for use at the hearing. Instead, he provided an email of 29 May 2014 which refers back to the notes of the November 2013 meeting between the appellant, Mr Cuic, and Housing NSW staff. Mr Cuic's recollection was that: basically it was agreed that any document [the respondent]... needed to send to Steve [i.e. the appellant] would be sent to [Went West]... and Went West were to call Steve and explain the documents to him. 34Finally, there is an email from Ms Amanda Annabel, acting Team Leader, Housing Operations, Mount Druitt, of the respondent, to Ms Catherine Williams, Manager Housing Services, also of the respondent (who had a role in the application to terminate the appellant's lease), dated 21 March 2014 at 2.52pm. This stated: we are not allowed to speak to Steven [the applicant] directly, we can only contact him through his solicitor or his advocate Jamie [Ms Mitchell's predecessor] at Went West.

The 24 March conversation 35An issue on the appeal was whether the agency agreement remained on foot. The Respondent contended it did not and pointed to a telephone conversation on 24 March 2014 between Mr Chris Routley, client service officer, Family and Community Services, of the respondent, and Ms Jennifer Mitchell, an Aboriginal-identified case worker in the Closing the Gap team at Went West Limited. 36Each created a contemporaneous record of that conversation, in Mr Routley's case, by an email sent to officers of the respondent including Ms Annabel and in Ms Mitchell's case, by an extract from her 'case profile report'. Each of Ms Mitchell and Mr Routley were called before the Appeal Panel and were cross-examined. 37It was not suggested by counsel for either party that Ms Mitchell or Mr Routley were doing anything, while witnesses before us, other than honestly trying to recall what was discussed. 38Ms Mitchell's case note, relevantly, states: Chris [Routley] from Housing called me and said they are looking at going to the Tribunal again to remove client [a reference to the appellant]. This is not confirmed, client has padlocked the vacant property next door and is refusing to allow trades in, including just to check smoke alarms as required by law, I told him I would like to be kept updated but could not assist them in gaining access to Steven's property. [Emphasis added.] 39Ms Mitchell, in her statement stated that 'independently' of her case notes, she remembered the telephone call in question. 40Mr Routley's email states: Jennifer rang from Went West this morning. She is the new outreach worker. She advises that, while Went West would like to be kept informed, they are no longer able to help Mr Kline because he has refused their offers of help and has refused services. Nevertheless, they remain approachable if we think they can help with anything. She also advised that Mt Druitt Community Legal Services are no longer acting for him. [Emphasis added.] 41Ms Mitchell's written statement contains a denial, which is supported by her case note, that at any stage she said to Mr Routley that she couldn't help the appellant because he had refused services, although she did say to Mr Routley that she was unable to assist with the 'legal side' of the appellant's housing. 42When asked in cross-examination why she did not raise with the appellant her conversation of 24 March with Mr Routley, Ms Mitchell said that because she understood there was then only a possibility of a hearing in the Tribunal, she decided not to worry the appellant unless it was 'definitely happening'. However, she said that had she received written confirmation of a hearing involving the appellant, she would have contacted the appellant, taken the correspondence to him, and read it to him. 43Mr Routley during cross-examination was not sure he was aware Went West had been the agent for communications between the respondent and the appellant, but in any event, was not aware of any written revocation of any such authority. 44We find that the conversation between Mr Routley and Ms Mitchell did not bring to an end the agency agreement mentioned above (nor, of course, alter the fact, at all relevant times accepted by the respondent, of the appellant's functional illiteracy). It is not however necessary to resolve any inconsistencies between Ms Mitchell and Mr Routley. This is for two reasons. 45First, even on Mr Routley's recollection of events, Ms Mitchell was not saying that the agency arrangement had come to an end. Indeed, according to him she had said 'Went West would like to be kept informed':- that is sufficiently similar to her recollection that 'I told him I would like to be kept updated'. 46Second, Went West continued to be copied in on correspondence sent by the respondent, which is consistent with the agency arrangement remaining on foot. Thus, shortly before 3 April, a letter was sent by Mr Routley to the appellant (a copy is at Exhibit 1, page 56; the date on the print-out of 27 June 2014, Mr Routley agreed, was the date it was printed out, not the date it was sent, as in any event is clear from, for example, the first paragraph of the letter). The letter advised that there would be a visit from the respondent between 10.00 and 10.30am on 7 April. At the bottom of the letter are the words 'cc: Went West / Close the Gap team'. 47Finally, although we need not decide the issue, it may well be that any withdrawal of authority would need to be in writing in accordance with s 221 of the Residential Tenancies Act 2010 (NSW), the terms of which appear above.

The 7 April visit 48Mr Routley did indeed visit the appellant's residential premises on 7 April. In view of the fact that there is now to be a contested hearing concerning what then transpired, we make no findings about those matters beyond saying that as a result of what then occurred, the respondent decided to make an application under s 92(1)(a) of the Residential Tenancies Act, to terminate the residential tenancy agreement. 49The usual written notice of a hearing from the Tribunal addressed to the appellant at his residential address, advising of the time and location of the hearing, appears on the Tribunal file. That was posted to the appellant by the Registrar of this Tribunal on 8 April and, as the member hearing the matter on 22 April recorded, the notice had not been returned. The Tribunal heard the matter, and decided to terminate the residential tenancy agreement under s 92(1)(a) of the Residential Tenancies Act. We have earlier set out that part of the decision dealing with the absence of the appellant. 50Again, as the matter is now to be heard on a contested basis, we say nothing about whether the decision would have been correct had, for example, the appellant been present and represented. Rather, our focus is on the terms of s 38 and the common law duty of procedural fairness.

Appeal Ground 1 51The appellant contended that the appellant was not notified of the hearing and was thus denied an opportunity to be heard either under the common law or under s 38(5). The appellant pointed to: 1)his functional illiteracy, and 2)the agency agreement between the appellant, the respondent, and Went West whereby all communications were at least to be copied to Went West by the respondent to remedy the problems caused particularly by his illiteracy. 52In those circumstances, the appellant contended that the failure of the respondent itself to serve a copy of the notice of the 22 April 2014 hearing on Went West, or alternatively to advise the Tribunal of the arrangement with Went West and/or the functional illiteracy of the appellant, and for that reason to have the Tribunal arrange to serve notice on Went West, meant that there had been a breach of the hearing rule and/or s 38(5)(c). 53The respondent relied essentially on two contentions in answer. 54First, the respondent contended that the agency agreement had been terminated by the appellant as evidenced by the conversation between Mr Routley and Ms Mitchell on 24 March 2014. 55Second, the respondent relied upon the Civil and Administrative Tribunal Rules 2013 (NSW), r 13(4) which states that: Unless the contrary is proved, the time at which a notice or document is taken to be served, given or lodged is: 1)in the case of a copy of a notice or document that is posted-at the end of the fourth working day after the date on which the notice or document was posted to the person. 56The respondent pointed to the facts that: 1)a letter containing the notice had been posted directly to the appellant; 2)the Appellant had previously received letters from the Tribunal and knew what they looked like; 3)the letter in this instance was not returned; and 4)the appellant knew that a representative (Mr Routley) had been outside the premises on 7 April.

Consideration of Ground 1 57As to the first contention of the respondent, for the reasons given above, we find that the agency arrangement remained on foot. We thus reject that contention as a matter of fact. 58As to the second contention of the respondent, while the respondent is correct to submit that the appellant had not proved 'the contrary' as contemplated by r 13(4), we find this to be beside the point. 59Rather, the issue is whether the appellant, in the perhaps unusual circumstances of this matter, was denied an opportunity to be heard. 60We have already noted the terms of ss 38(2) and (5) of the Act. 61Our attention was drawn to the statement of Giles JA in Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298; (2011) 83 NSWLR 23 at [63] that: ...in principle, the requirements of procedural fairness are identified as a matter of law depending upon the institutional setting in which decision-making is to operate, the relevant statutory scheme, the subject matter of the decision and, as part of that analysis, the seriousness of the potential consequences of an adverse decision. 62This Tribunal stated in CKG v Public Guardian [2014] NSWCATAP 32 at [14]: the Tribunal is bound to accord procedural fairness ( or 'natural justice') to parties to its proceedings, and, in addition to persons whose interests, rights or legitimate expectations are affected: see, generally, Hess v Public Guardian [2005] NSWADTAP 43 at [20] ff. The duty derives from the common law, and is reinforced by s 38(2) and (5) of the NCAT Act. 63The existence of this obligation was not disputed in this matter. The issue is what was required in order to meet the obligation. What is 'a reasonable opportunity to be heard' will, of course, vary from case to case. In part that is because, as Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. 64The appellant had a right to notice of the hearing. That notice was critical to his right to 'be heard', as notice was an essential pre-requisite to him exercising that right. 65In the very particular circumstances of this matter, personal receipt of the letter containing the notice was insufficient because the appellant could not himself read with comprehension any such notice. Further he was entitled to assume that the respondent having agreed to send notices to Went West would do so and that, where necessary, WentWest would get in touch with him and relay the contents of such notices to him. We therefore uphold Ground 1. 66A notice of appeal asserting denial of procedural fairness, or of the entitlement to 'a reasonable opportunity to be heard' under s 38 raises questions of law within the meaning of s 80(2)(b) of the Act. 67Breach of either obligation (and here there has been breach of both) ordinarily means that there has been an erroneous decision which should, under s 81 of the Act, be set aside or quashed, with the appeal allowed, save in rare circumstances, such as where the breach would have made no difference to the outcome of the case: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at [28]; Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [40]-[44]. 68As the appellant clearly has substantive submissions he wishes to make on a re-hearing, as to whether s 92(1)(a) of the Residential Tenancies Act is enlivened on the (disputed) facts of the case, or whether any discretion to terminate the lease and grant possession should be exercised, and because these matters were not dealt with in the appeal, an order for rehearing is appropriate. 69For these reasons we made the orders on 24 July which appear below. 70It is neither necessary nor appropriate to consider any other grounds of appeal. 71We raise one further matter.

Assisting the Tribunal 72It appears that in the Tribunal below: 1)no reference was there made to the fact of the consent to exchange information; 2)nor the fact of the functional illiteracy of the appellant and the respondent's acceptance of that state of affairs; 3)nor that, until at least early April, Went West had continued to be copied in on correspondence between the respondent and the appellant, irrespective of Mr Routley's view expressed in the email of 24 March. 73In addition to the effect of s 36(3) of the Act, the respondent is a statutory corporation representing the Crown, and is bound by the model litigant principle, see, eg, Mahenthirarasa v State Rail Authority (NSW) (No 2) [2008] NSWCA 201; (2008) 72 NSWLR 273 at [16]-[20]. 74In any future similar cases (which, we accept, may be rare), the Appeal Panel would anticipate that the respondent and its representatives, to the extent that they are aware of such matters, would bring to the Tribunal's attention any agency agreements of the type involved here, any characteristics of an appellant such as functional illiteracy, which bring into serious question the likelihood that real and effective notice of a hearing has been given by service by mail of a notice of hearing and any steps taken by the respondent to give real and effective notice.

Orders 75Accordingly, the Appeal Panel ordered that: 1)Under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) the time for filing the notice of appeal be extended to 13 June 2014. 2)The appeal be allowed. 3)The decision and orders made on 22 April 2014 in proceedings no SH14/18707 be set aside. 4) The whole of the proceedings no SH14/18707 be remitted to the Consumer and Commercial Division for rehearing. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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

Amendments 01 March 2016 - Anonymisation of party - coversheet and paragraph 62 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: 01 March 2016

Civil and Administrative Appeals Tribunal Act 2013(NSW)

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