Kostov v Ecclesia Housing Limited

NCAT Appeal Panel|2018-09-03|Before: The Hon J

Introduction and background to the proceedings

These proceedings concern an Application filed in this Tribunal on 27 July 2018. The applicant is Adriana Kostov. She seeks to set aside or vary a Decision of this Tribunal described in her Application as delivered on 27 July, 2018 in AP 18/28381 ("the appeal decision"). Those proceedings were determined by an Appeal Panel of this Tribunal and took the form of an appeal brought by the applicant from a decision of a Senior Member of this Tribunal made on 5 June, 2018. That decision determined to refuse to set aside or vary an earlier decision of this Tribunal made on 21 May 2018 which we shall hereafter referred to as the "initial decision". This initial decision had the effect of terminating a residential tenancy which the applicant held as tenant from the respondent; Ecclesia Housing Limited as landlord.
In her Application the applicant was asked to nominate the decision which she wished to set aside and, if she wished that decision to be varied, what orders she now wished to be made assuming she was successful in this application. The applicant stated, in a manner which was not entirely responsive to the material which she was asked to provide, that she wished the appeal the subject of the appeal decision to be dismissed and that the appeal be relisted. The appellant confirmed at the hearing before us that she sought an order that the appeal decision be set aside and that a fresh hearing be conducted.
The ground which the applicant nominated in her Application was that the appeal decision was made in her absence "which resulted in my case not being adequately put to the Tribunal". The applicant then provided information about why she was absent when the Tribunal made its appeal decision. That information was to the effect that an apprehended domestic violence order had been issued against the applicant's "ex-partner" on 25 July 2018 and that she had "asked for adjournment, as I was sick."

The statutory basis for the application

Before considering the merits of this Application it is necessary to set out the statutory context against which it is to be determined. The Application is brought under Regulation 9 of the Civil and Administrative Tribunal Regulation 2013 which is in the following terms; 9 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. The following provisions of the Act are examples of provisions that expressly confer powers to set aside or vary decisions of the Tribunal: (a) section 45 (3) (which enables the Tribunal to revoke leave granted to a person to represent a party), (b) section 53 (4) (which confers a power on the Tribunal to set aside proceedings and decisions involving procedural irregularities resulting from a failure to comply with provisions of the Act or the procedural rules in relation to the commencement or conduct of proceedings), (c) section 63 (which confers a power on the President or a presiding member to correct obvious errors in decisions of the Tribunal), (d) section 64 (3) (which enables the Tribunal to vary or revoke a non-disclosure order made under section 64), (e) section 73 (3) (which enables the Tribunal to vacate or revoke an order with respect to contempt of the Tribunal). (2) The Tribunal may make an order under this clause of its own motion or on the application of a party. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made. (4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (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. (6) A party may not, without the leave of the Tribunal, make an application for an order under this clause to set aside or vary a decision of the Tribunal if the party has previously made an application under this clause to have the decision set aside or varied. (7) If the Tribunal sets aside a decision under this clause, it may also set aside any orders that it made consequent on the decision that has been set aside. Note : An example of such a consequent order may be an order for costs in the proceedings. (8) Proceedings for the purposes of this clause are prescribed for the purposes of section 50 (1) (d) of the Act. Note : A hearing is not required for proceedings that are prescribed for the purposes of section 50 (1) (d) of the Act. (9) This clause does not limit any power of the Tribunal to set aside, revoke or vary its interlocutory decisions or any other decisions that do not operate to determine proceedings.
It should immediately be observed that there are two bases only upon which such an application can be made. The respondent did not consent to the Application. Accordingly the only basis upon which the applicant can rely is that contained in Regulation 9 (1) (b). That is, the applicant must show that the decision was made in her absence and we must be satisfied that her absence has resulted in her case not being adequately put to the Appeal Panel. We shall return to consider these matters later in these reasons for decision.
We also observe for completeness that the Application with which we are dealing is not an appeal for the purpose of the Civil and Administrative Tribunal Act, ("the Act") and indeed, no appeal lies to this Tribunal however constituted from a decision of the Appeal Panel, as is made clear by section 32 (3) (a) of that Act which is in the following terms; 32 INTERNAL APPEAL JURISDICTION OF TRIBUNAL (1) The Tribunal has "internal appeal jurisdiction" over: (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) However, the internal appeal jurisdiction of the Tribunal does not extend to: (a) any decision of an Appeal Panel, or (b) any decision of the Tribunal in an external appeal, or (c) any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or (d) any decision of the Tribunal in proceedings for the imposition of a civil penalty in exercise of its general jurisdiction. Note : The decisions above may be appealable to the Supreme Court and, in some cases in relation to civil penalty decisions made by the Tribunal (whether under this Act or enabling legislation), the District Court. See section 73 and Part 6. (4) An "internally appealable decision" is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction. (5) An "internal appeal" is an appeal to the Tribunal against an internally appealable decision. (6) Subject to the procedural rules, if a decision of a registrar is an internally appealable decision, the provisions of this Act relating to the making and determination of an internal appeal are taken to apply as if: (a) any reference to the Tribunal at first instance (however expressed) included a re (There is material filed ference to a registrar, and (b) any requirement concerning the granting of leave to appeal against particular kinds of decisions of the Tribunal or on particular grounds extended to decisions of the same kind made by a registrar or grounds of the same kind.

The initial decision

The applicant has not provided a copy of the initial decision given on 21 May 2018. The material which follows is based on the reasons for decision of the Appeal Panel, the contents of which have not been challenged in these proceedings. In the proceedings leading up to the initial decision the respondent had sought orders for the termination of the tenancy with the applicant for non-payment of rent, an order for possession of the premises, and an order for payment of outstanding rent. In the initial decision the Tribunal said that it was satisfied that notice of the hearing had been served on the applicant, and that it was satisfied that the applicant was in breach of the tenancy agreement by reason of her failure to pay rent due and payable under that agreement. In suspending the order for possession until 25 May 2018, the Tribunal also made an order for payment of a daily occupation fee at the rate of $13.64 per day from the day after termination namely 22 May 2018 until the date vacant possession was given to the respondent. The Tribunal also found that the amount of the outstanding rent then payable was $1745.54.
For completeness we note that although the sheriff attended the premises on 1 June 2018 and gave possession to the respondent, the respondent has been unable to remove the applicant's possessions in the nature of clothing and other personal effects from the premises because of claims made by the applicant that it would be unlawful to do so, and a threat of legal proceedings and has been thereby precluded from renting out the premises to another person. The applicant informed us that she would not allow anyone to touch her clothing and personal effects, and there is evidence that she threatened the respondent with Supreme Court proceedings if anyone did so. On the evidence given in these proceedings, the premises are conducted as a woman's refuge for persons in need. We were informed by the respondent that its inability to rent out the premises has resulted in women in need being denied residential premises made available on a subsidised rental basis.
The applicant subsequently sought an order that the initial decision be set aside under Regulation 9 which was refused by order made on 5 June 2018.
In her Application the applicant also sought a stay. She did not specify the order she sought to be stayed. In answer to the question "explain which orders you want stayed and why a stay is necessary" the applicant wrote "Appeal to proceed, property possession order revoked". In her email to the Tribunal dated 6 August 2018 the applicant sought that we "stay orders of member Harrowell regarding personal items". No copy of this order was provided to us.
In accordance with well-established principles we are not satisfied the stay sought should be granted (see Alexander v Cambridge Credit Corporation (1995) 2 NSWLR 685). For the reasons that follow we are satisfied the appeal had no prospect of success, and the warrant for possession has been executed. We also note that before us Mr Thompson made it clear that Ecceslia has offered to send the applicant's personal possessions to an address she nominates or the applicant may attend the premises with a support person and collect her personal items.

The appeal decision the subject of this Application to set aside

In the absence of publication of the appeal decision on Caselaw, it will be necessary to describe the reasons of the Appeal Panel in some little detail. The Appeal Panel noted that the appellant had originally asked to participate in the hearing by telephone, but she did in fact appear in person, and that "she immediately proceeded to make adverse comments about the respondent's conduct, threw plastic cups at the respondent, threw the water from a jug on the bar table over the respondent, and finally threw the empty jug at him. The appellant then left the courtroom obviously deciding not to take any further part in the appeal proceedings." The Appeal Panel then proceeded to deal with the matter in her absence and considered submissions made on behalf of the respondent.
The Appeal Panel noted that the appeal as formulated by her was with respect to an application made by the applicant under Regulation 9 to set aside or vary the initial decision. The Members therefore assumed that the applicant had not been present at the hearing leading up to the making of the initial decision. They noted that that the Regulation 9 application had been dismissed because the warrant for possession had been executed at the time the Application to set aside had been filed and that as the respondent was now in possession of the premises the set-aside application was "futile". Furthermore, in refusing the set-aside application the Tribunal had said that; "Further, there is no evidence the applicant has paid the rent." The Appeal Panel then went on to note that in reality both the applicant as appellant before it and the respondent had addressed their submissions to the initial decision, and not the set-aside application that had been nominated by the applicant as being the subject of the appeal.
In its decision the Appeal Panel first noted the statutory context in which the appeal had been brought. The applicant had raised a wide range of issues as justifying the grant of leave to appeal, including that the initial decision was not fair and equitable, was against the weight of evidence and that significant new evidence was available that was not reasonably available at the time of the hearing. The Appeal Panel noted that limitations on the grounds of appeal imposed by clause 12(2)(b) of Schedule 4 to the Act confined the appeal to a question of law because a warrant for possession had been executed.
The appeal panel then referred to a directions hearing conducted on 3 July 2018 where orders had been made for the filing of submissions and other documents in the appeal. In particular the applicant had been ordered to lodge "all the evidence provided to the Tribunal below on which she intended to rely, any fresh evidence on which it was intended to seek leave to rely upon, and written submissions in support of the appeal". Importantly, the appellant was ordered to lodge with the Tribunal "a statutory declaration setting out what rent had been paid, the date of each payment, and to attach relevant bank statements and receipts, and to provide a copy to the respondent." The appeal panel noted, inter alia, that the applicant had failed to comply with these orders.
The Appeal Panel then made reference to the questions of law which it apprehended had been raised by the applicant in her notice of appeal, or which might arguably have been raised by the appeal, which we summarise as follows; 1. a notice of termination under section 87 of the Residential Tenancies Act had not been properly served on the applicant. The Appeal Panel noted that a finding had been made in the initial decision to the effect that that notice had been served in accordance with the relevant statutory requirements. In fact, there had been evidence from the respondent that the notice had been placed in the applicant's mailbox. The applicant asserted in her submissions that she had not received the termination notice, but did not attempt to provide any sworn or other formal evidence in support of contentions that her mail had sometimes gone missing from her box and that she did not have a key. In the absence of any such evidence the Appeal Panel rejected the applicant's assertion that she had not received this notice. 2. an assertion by the applicant that she had been denied procedural fairness because she did not have an opportunity of presenting a case as a result of having failed to attend the hearing on 21 May 2018. She said that she had been misled by the respondent into not appearing on the basis that settlement negotiations were currently being conducted. The Appeal Panel had regard to those without prejudice settlement negotiations over the objection of the respondent and ascertained that they had been premised on the basis of an agreement by the applicant that she would vacate the premises. No such agreement was ever made by her, and the settlement negotiations failed to result in any negotiated settlement. In those circumstances it was appropriate that the matter proceed before the Tribunal as part of the initial hearing and it was inappropriate that she absent herself from the hearing. The Appeal Panel rejected this ground. 3. an assertion by the applicant that the respondent had failed to advise her in writing of orders made in the initial decision which it was required to do by the delivery of a letter to her premises by 6 PM on 21 May 2018. Again, this was a bare assertion made by the applicant. The Appeal Panel noted that the respondent had provided photographic evidence containing meta data as to the time and date on which it had been taken which attested to the service of the notice as required. The Appeal Panel rejected this ground. 4. an assertion that the respondent had improperly obtained and had failed to serve a warrant for possession. Again, the applicant provided no evidence in support of this ground, and on the basis of evidentiary material provided by the respondent, it was rejected by the Appeal Panel.
Significantly, the Appeal Panel noted that the applicant had failed to comply with directions and orders made as part of the case management of the appeal proceedings for her to lodge a statutory declaration setting out rental paid and the details thereof and to attach bank statements and receipts. Her failure to comply led the Appeal Panel to find that the applicant had no basis to dispute her failure to pay rent as found in the initial decision. This rendered the appeal futile in the sense that the applicant's failure to pay rent was an unassailable basis for the termination of the tenancy.
In all the circumstances, the Appeal Panel was unable to detect any basis upon which the initial decision or the initial set aside decision could be challenged, and the appeal was dismissed.

The applicant's submissions

The applicant appeared at the hearing before us. She relied on the contents of the application which she had filed and the accompanying documentation, which we have earlier described. In essence, the applicant asserted that she had not had an opportunity of a fair hearing before the Appeal Panel and she had not had an opportunity of presenting her case. She conceded that she had initially appeared before the Appeal Panel at the hearing which it had conducted, but she had lost control because of the emotional stress that she was then suffering caused by the combined effect of her miscarriage on 24 July 2018 and the necessity to obtain an apprehended domestic violence order the following day.
We made reference to the fact that despite having been ordered to do so on several occasions the applicant had never produced any documentation or evidence of any kind to rebut the finding in the initial decision that she had defaulted on the payment of her rent which was the basis upon which the tenancy had been terminated. The applicant said that she wanted that opportunity, and we reminded her that such an opportunity had been afforded to her on many occasions and she had failed to take advantage of it.
We engaged in a discussion with the applicant about why she had found it impossible over a long period of time to produce any evidence that she had paid rent, as she asserted. At first, the applicant used words that indicated that she had in fact paid the amount of the rent which was due and owing to the respondent. On further questioning she conceded that she had not paid the full amount of the rent. The respondent informed us that the applicant had made payments of rent from time to time, but less than the full amount of the rent of $95.50 a week and on an irregular basis. Nevertheless, the applicant then asserted that the amount she owed was less than that found to be due and owing in the initial decision. The applicant claimed that payments were made by her from her bank account by electronic funds transfer. We asked her why she was unable to have obtained copies of bank statements to justify her assertions that she had regularly paid rent, albeit sometimes in lesser amounts. We do not apprehend that we received any satisfactory explanation which would create some basis upon which it could be determined that the applicant had been denied an opportunity of presenting her case based on asserted payment of rent.
As we pointed out to the applicant, the non-payment of her rent which formed the basis of the order made at the initial hearing, and was adopted by the Appeal Panel is a matter which is fundamental to the determination of the Application with which we are dealing. Assuming, in favour of the applicant, all of the reasons for her departure from the hearing before the Appeal Panel to which she has referred in the Application and in her accompanying documentation, there can be no doubt that the applicant has failed to satisfy us that the initial decision was in error. The unfortunate circumstances which occurred just before the appeal hearing postdate the circumstances which prevailed at the time that the initial decision was made and can have no bearing on those factual circumstances. Once this fundamental position has been stated, the attempts by the applicant to attack the initial decision must be doomed to fail. In the circumstances, even if we were to accede to the request made by the applicant which is at the heart of these proceedings, no attack could be made on the integrity of the initial decision, and there is no redress available to the applicant with respect to that decision. This renders the bringing of this Application a futile exercise, and must lead, inexorably to its dismissal. This was the status of the proceedings when we adjourned the hearing, and we indicated to the parties that we would reserve our decision and publish our reasons.

Further evidence after the conclusion of the hearing

We did not make any orders for the production of further evidence at the conclusion of the hearing, and the matter was adjourned for the purpose only of enabling us to formulate and deliver reasons for decision.
Notwithstanding this, the applicant delivered a bundle of documents to the Registry of this Tribunal on 3 September 2018 after we had adjourned. There was an accompanying letter which referred to the proceedings that morning and said that the further information provided "may be of assistance." We note that the applicant is legally qualified and has formerly practised as a solicitor, although she told us that she now works in a solicitor's office but not in that capacity. We would have thought that the applicant would understand that it would not be permissible to introduce further evidence without seeking permission to do so, and with notice to the respondent.
In order to determine what course of action to take with respect to this new documentation, we have looked at it, and in particular evidence provided by the applicant with respect to the payment of rent by her to the respondent. We are content to have regard to this material as having notionally been presented with an application to reopen these proceedings. For reasons which will become obvious, we do not require the respondent to respond to it. This is because the material, such as it is, demonstrates a continuing failure by the respondent to pay the full rental of $95.50 per week in a timely manner.
Centrelink documentation provided by the respondent indicates that for the period 19 September 2017 to 4 April 2018, a period of approximately 28 weeks, the applicant made 11 payments totalling $1393. If payment had been made at the rate of $95.50 per week during this period, the applicant would have been required to have paid approximately $4067. There was therefore a shortfall of approximately $2674 during this period. Bank records provided for the period 11 April 2018 to 22 May 2018 indicate rental payments of $330, and perhaps more because the applicant was unable to identify all of the payments made to the respondent. However, whatever the payments made during this latter period, the applicant was clearly in default in the payment of the rental due to the respondent by a significant amount, with no explanation at all of any reason why she was in default, let alone a reason which would permit some latitude to be shown to the applicant. The additional material which the applicant has filed after the conclusion of the hearing before us reinforces the conclusion of the Appeal Panel that there is no material of any kind which would call into question in any way the finding at the initial hearing that the applicant was in arrears of rent in the sum of $1745.54.
For completeness, we exactly set out below the substance of an email communication received by the registry from the applicant on 5 September 2018; I refer to Mr Thompson email below, and respectfully submit, this is why, the appeal heard in my absence, needs to be set aside and a re-hearing occur, and a timetable be set, for evidence to be submitted. Apart from: a) As submitted to you, the ongoing ans serious illness I have suffered, it being confirmed today that I need to go to hospital now for a hysteroscopy b) Discrepancies as to rent paid; c) The fact that when this organisation was to protect me from domestic violence and homelessness, I was kicked out onto the street like an animal, for no reason, and per (a) above, and seriously unwell, and also, as you are aware, the day before this hearing, I had urgent ADVO orders issued against my ex-partner; I deem it not only in the interests justice, but, general human rights, and general humanity, to be able to submit my case. I have been kicked out by a so called charitable organizations with no notice pho termination, when I asked for the notice of the possession, such was ignored also, my requests for help ignored, received physical violence form my ex-partner. I am a lady, who needed support, I am not an animal. Please note, that of course should re-hearing not be allowed, this matter, will simply go to the Supreme Court, due to the severity of the illness I have suffered as a result of the wrongful termination, where, I hope, I can receive justice, and fuehrer, I will also be seeking compensation for the horrific loss and damage, I have suffered, and no woman, should suffer.
For completeness, also, we set out the contents of the respondent's email to which the applicant's email refers; We refer to the email from Ms Adriana Kostov's email to the Tribunal sent at 2:19pm on 3 September 2018. Ms Kostov's email contained further written submissions which she appears to be relying on for her application to set aside the Appeal Panel's decision. I did not think that it is possible or permissible to lodge further written submissions after an Appeal or a hearing. It is my understanding that the parties were heard on this matter on the morning of 3 September 2018, so please let me know whether the Appeal Panel will be taking into account Ms Kostov's further submissions (Submissions)? If the Submissions will be considered by the Tribunal, Ecclesia requests the opportunity to address the factual inaccuracies contained within those submissions which suggest, in particular, that certain payments were made by Ms Kostov for her rent. I have taken the opportunity to review Ecclesia's rent payment records and bank records and can confirm that no such payments were received (the ones circled by Ms Kostov on the NAB statement). To date, Ms Kostov has failed to pay rent to Ecclesia in the sum of $1,745.54, the same amount Ecclesia has claimed it its submissions.

Consideration

We have previously indicated that in order to succeed in demonstrating that the Appeal Panel decision should be set aside, the applicant must show that the decision was made in her absence and we must be satisfied that her absence resulted in her case not being adequately put to the appeal panel.
The power to set aside provided by Regulation 9 is analogous to the power to set aside proceedings contained in sec 79A(1)(a) of the Family Law Act (Cth) considered by the High Court of Australia in Allesch v Maunz [2000] HCA 40.
Section 79A was in the following terms; Setting aside of orders altering property interests (1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that: (a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;
The Court held that a hearing conducted in the absence of a party would, in appropriate circumstances, constitute a miscarriage of justice. The plurality, Gaudron, McHugh, Gummow and Hayne JJ said at [27] In Taylor, Gibbs J, with whom Stephen J agreed, and Mason J, with whom Aickin J agreed, each viewed the discretion to set aside an order made in the absence of a party as a corollary to the requirement that, before a person can be adversely affected by a judicial order, he or she must be afforded an adequate opportunity of being heard[14]. In that case the party's failure to appear was due to no fault of his own and Mason J expressed the view that the discretion to set aside the order made in his absence should have been approached "on the footing that it was prima facie the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that each party should be entitled to present his or her case."[15] Murphy J saw the discretion to reopen as an aspect of federal judicial power which was to be exercised "only with caution."[16] The factors to be considered, in his Honour's view, were "the presence or absence of some real explanation for failure to use the opportunity to be heard, delay, acquiescence, [and] prejudice to the other party."[17] However, nothing presently turns on whether the inherent power to set aside an order made in the absence of a party is a corollary to the right of a party to be heard or is an aspect of federal judicial power. (citations omitted)
There is a more expansive explanation by KirbyJ at [35] to [37] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as "an indispensable requirement of justice"[20]. It is a rule of natural justice or "procedural fairness"[21]. It will usually be imputed into statutes creating courts and adjudicative tribunals[22]. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden [23]. The rule is also implicit in international principles of human rights[24]. It is inherent in the proper conduct of judicial proceedings in a court of law[25]. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution[26]. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions[27], to administrative tribunals[28] and other decision-makers[29]. The principle governed the Family Court of Australia in determining the rights of the present parties. The foregoing provides the context of principle and of law within which the problem presented by this appeal must be resolved. That context is not contested. It occupied no time either in the Family Court of Australia or in this Court. It is a given. But it affords the starting point for legal analysis. (citations omitted)
On one view, the applicant did attend the hearing conducted by the appeal panel on 26 July 2018. As the hearing proceeded she conducted herself in a most inappropriate manner in circumstances which we have previously described. She then left the hearing on her own initiative. Prima facie, a miscarriage of justice would not occur where a party deliberately withdrew from a hearing. However, there may be extenuating or mitigating circumstances by reason of the fact that the applicant was clearly distressed and upset. She told us that she was upset because she had then recently had her miscarriage and she had been involved in an unpleasant exercise in obtaining an interim apprehended violence order against her former partner who had recently been released from prison. Of course, another explanation is that the applicant removed herself from the hearing because she was upset by what the representative of the respondent was saying.
However, it is not necessary that we determine this aspect of the matter conclusively, because we must nevertheless be satisfied that the absence of the applicant resulted in her case not being put adequately to the Appeal Panel. We are not so satisfied. As will have been seen from our examination of the reasons for decision of the Appeal Panel, the Members carefully and closely examined all of the evidentiary material which had been put before them by the applicant and assertions made by the applicant by way of written submissions, albeit that they were not corroborated by any evidentiary material. However, even if the applicant had remained in the hearing and had given oral evidence before the Appeal Panel that day, she would not have been in a position to have demonstrated that she was not in arrears in the payment of the rent. Indeed, on the basis of the evidentiary material and information presented by the applicant to us, including the documentation which she endeavoured to put before us after the conclusion of the hearing, it is inescapable that the applicant was in arrears in the payment of rent at the time of the initial hearing, when orders were made on 21 May 2018.
Furthermore, the applicant had been required by directions and orders of this Tribunal to file and serve all evidentiary material upon which she wished to rely for the purpose of the hearing before the Appeal Panel. On the basis of the reasons for the decision of the Appeal Panel, the state of the evidence as filed on behalf of the applicant was such that the Appeal Panel was able to conclude that the respondent had complied with all underlying legal requirements by way of service of appropriate notices on the applicant, including notification of the orders made at the time of the initial decision.
There is simply no basis upon which the applicant can claim that the order for possession which was made had no proper basis. That order is unassailable, and any attempt by the applicant to contend otherwise before this Tribunal, is doomed to failure and is futile.
Accordingly, we cannot be satisfied that even if the applicant had been present throughout the whole of the hearing before the Appeal Panel, this would have resulted in any different conclusion having been reached by the Appeal Panel concerning the fate of the appeal. It follows that the applicant has failed to establish a case to set aside the Appeal Panel decision pursuant to the provisions of Regulation 9, and this application must be dismissed.

Order

For the reasons set out above, we order: 1. The Application made by the applicant under Regulation 9 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2018

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