Kozak v Godfrey

Principles governing the appeal

1. The principles governing the appeal are not in doubt and require only brief reiteration. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13, the Appeal Panel provided a non-exhaustive list of what constituted questions of law. It is necessary for an appellant to establish error on a question of law in order to be entitled to appeal as of right. The questions of law which the Appeal Panel identified are: "(i) whether the Tribunal provided adequate reasons; (ii) whether the Tribunal identified the wrong issue or asked the wrong question; (iii) whether it applied a wrong principle of law; (iv) whether there was a failure to afford procedural fairness; (v) whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; (vi) whether it took into account an irrelevant consideration; (vii) whether there was no evidence to support a finding of fact; and (viii) whether the decision was legally unreasonable."
3. Clause 12 of Schedule 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, which this is, an Appeal Panel may grant leave to appeal only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because: 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.
4. Only the first of those possible grounds for a grant of leave to appeal has potential relevance in this case.
5. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84(2)] that: "Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
6. Even if an appellant establishes that he/she may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong (Pholi v Wearne [2014] NSWCATAP 78).
7. As he recognised, the Appellant being substantially out of time with the filing of his appeal, required an extension of time within which to appeal. NCAT Rule 25(4)(b) relevantly provides that in the case of an internal appeal against a decision made in residential proceedings the appeal must be lodged within 14 days from the day on which the appellant was notified of the decision. This would have been 13 September 2023 to be within time. Instead the Appellant lodged on 11 December 2023 which is a 12 weeks extension in circumstances whereby the legislature provided a 2 week limitation.
8. In Gallo v Dawson (1990) 93 ALR 479 (1990) 64 ALJR 458 [1990] HCA 3, McHugh J, said (at [2]) that the grant of an extension of time under rules permitting such extensions is "not automatic", and that the "object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties". His Honour added that "the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time". His Honour further added that, in an application for an extension of time "it is always necessary to consider the prospect of the applicant succeeding in the appeal".
9. In the context of an application for an extension of time to file a Notice of Appeal, McHugh said (at [3]) that "when the time for appealing has expired, the litigation is at an end; a successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a "vested right to retain the judgment". Given his conclusion that the proposed appeal of the applicant "cannot possibly succeed", His Honour did not need to consider the adequacy of the applicant's explanation for her failure to appeal within time, or the prejudice to the respondent to the appeal if an extension of time were granted.
10. Consistent with authority and the approach usually taken by the Appeal Panel, whether an extension of time to appeal is granted or refused turns upon an evaluation of the Appellant's prospects of success if time is extended and, if the Appellant is successful in that regard, the prejudice to the Respondent flowing form such extension of time. If, as in Gallo, extending time could have no utility, time will not be extended.
11. The Appellant represented himself in the proceedings. Notwithstanding his absence of written submissions in accordance with the Tribunal's directions and his failure to articulate what ultimately emerged as the basis of his appeal, the Appeal Panel has considered the Appellant's submissions in order to determine whether, howsoever articulated, a basis for appellate intervention has been established (Ros v Commissioner of Police [2020] NSWCATAP 70).

The hearing of the appeal

1. Much of the Appellant's oral presentation at the hearing involved vigorously articulated complaints about the conduct of the Sherrif in seeking to evict him from the Respondent's property on 11 December 2023. Although, as the Appeal Panel endeavoured to explain to the Appellant on numerous occasions, any complaints he may have about the conduct of the Sherrif are not matters with which the Appeal Panel, or the Tribunal can be concerned, nothing to which the Appellant did refer suggests that the Sherrif at any time acted other than in accordance with orders of the Tribunal which were then in force and effect. More relevantly, nothing raised by the Appellant with respect to the conduct of the Sherrif could advance either his appeal or application for leave to appeal, or an extension of time to appeal.
2. The Appellant's other oral submissions revealed that the real basis of his complaints about the decision of the Tribunal of 29 August 2023 was that he claimed that the Member who made the consent orders on that date had misled him as to their nature and effect. The Appellant asserted that the Tribunal Member had told him, when making the consent orders, that, notwithstanding their clear terms, if he paid up the agreed arrears of rent, and thereafter paid the agreed daily occupation fee, the Appellant could remain in possession of the premises until such time as he found other premises and elected to terminate his occupation of the Respondent's premises.
3. The Appellant referred in his submissions to the Residential Tenancies Act 2010 (RT Act) and submitted, presumably in reliance upon the provisions of s 89 of the Act, that the Tribunal could not have made a termination order against him and that the Sherrif could not have lawfully executed a warrant for possession of the premises. The Tribunal explained to the Appellant that, although on the Respondent's evidence with respect to his non-payment of rent, a termination order may well have been made by the Tribunal on that basis, the orders of 29 August 2023 were not so based. The orders were made by consent. In those circumstances, unless the other challenge advanced by the Appellant has merit, there was no impediment to either the making of a termination order or, unless and until that order was stayed, its enforcement by a warrant for possession.
4. Notwithstanding the directions of the Appeal Panel made on 15 December 2023, the Appellant did not file and serve either a sound recording of the hearing on 29 August 2023, or a transcript of the proceedings on that date. The Appellant maintained in oral submissions that he had filed a sound recording of the proceedings with the Tribunal. The Appeal Panel had no record of that occurring. The Respondent's representative informed the Appeal Panel that no sound recording or transcript had been served on her office.
5. As the Appellant was unrepresented, and may have provided the sound recording to the Tribunal, in the interests of justice, the Appellant was afforded the opportunity to file and serve a copy of the sound recording, and transcript of the proceedings on 29 August 2023, together with such further submissions as he wished to make.
6. The orders made by the Appeal Panel on 29 January 2024 were: 1. The appellant has leave to file and serve by 5pm on 5 February 2024: i) sound recording of the proceedings on 29 August 2023 ii) transcript of the proceedings on 29 August 2023 iii) written submissions in relation to any matters arising from the sound recording of the proceedings on 29 August 2023 2. The respondent has leave to respond to the matters referred to in order by 5pm on 12 February 2024. 3. Extend the stay ordered on 15 December 2023 until the determination of these proceedings. 4. Judgment reserved.
7. The Appellant filed the sound recording and the transcript in accordance with the Appeal Panel's directions. The Appellant filed no submissions with that material. On 13 February 2024, the agent representing the respondent emailed the Appeal Panel an updated rent ledger which the Appeal Panel did not take into account as the ledger does not constitute submissions addressing the transcript and the Appeal Panel did not give leave to either party to reopen its evidence on the appeal.
8. The Appeal Panel has listened to the sound recording, and considered the transcript provided by the Appellant. The transcript records that, having read the minutes of the consent orders to which the parties agreed, the Tribunal Member said: "By consent the residential tenancy agreement is terminated on the 29th of November 2023 and the tenant is to give possession to the landlord on that date. Alright, now after the 29th of November Mr Kozak if for some reason you haven't moved out then instead of rent you pay a daily occupation fee, that's just your rent divided by seven". The Appellant replied "Okay".
9. The Tribunal member proceeded to say "Okay so the next order is that from the 30th of November if you haven't moved out you pay seventy-eight dollars fifty seven cents a day. Next order, by consent within sixty days of the date that Mr Kozak has to give possession, the landlord may request to come back to the Tribunal to determine the total daily occupation fee owing. Make sense?" the Appellant replied "Yep".
10. The Tribunal Member then said, "Okay, next order by consent the tenant is to pay the landlord two thousand seven hundred and thirty dollars on or before the 5th of September this is the rental arrears 18th July 2023 to 29 August 2023, yep". The Appellant did not appear to respond to that statement, but, as the arrears were paid and no part of the appeal or application for leave to appeal is concerned with that order, nothing turns on that.
11. The Tribunal Member then said, "The next order is the tenant to pay the landlord rent, presently $550 dollars per week, next payment due on 1st September and to continue paying the rent once the arrears are paid in full. Okay is that what you have agreed to Mr Kozak". The Appellant replied, "Yep 100%". The Tribunal Member then asked whether there were "any questions" to which the Appellant replied, "Nope".

Consideration

1. The terms and effect of the consent orders of 29 August 2023 were clear and unequivocal. Nothing to which the Appellant has referred the Appeal Panel establishes that the Tribunal Member misled him as to the meaning and effect of the orders to which the Appellant consented. On the contrary, the Tribunal Member went through each of the orders, and ensured that the Appellant understood what they provided. The Appellant did not question anything said by the Member with respect to each order. He had every opportunity to do so.
2. If the Tribunal had misled the Appellant in the manner alleged by him, that would involve a material misrepresentation which constituted a denial of procedural fairness or legal unreasonableness which would constitute error on a question of law, and enliven appellate intervention. If not, it would provide a basis for a grant of leave to appeal. On neither basis in our view is appellate intervention enlivened.
3. The Appellant has not established that he entered into the consent orders of 29 August 2023 as a result of any misleading statements by the Tribunal Member who made the orders. Other basis for appellate intervention has, or could be suggested in this case.
4. Given that there is no merit in the Appellant's grounds of appeal, or any basis for granting leave to appeal, there would be no utility in granting an extension of time within which to appeal or seek leave to appeal. The Appellant did not offer an explanation for his delay in appealing. We record in that regard that, although the Appellant did not appear to accept what seemed readily apparent, which was that the Appellant's failure to appeal within time was because he erroneously interpreted the orders to which he consented in the manner described above. In view of the Appeal Panel's rejection of the Appellant's contentions in that regard, that explanation would be inadequate. It is unnecessary in the circumstances to consider prejudice to the Respondent if an extension of time was in contemplation.
5. For the foregoing reasons the orders of the Tribunal will be that time to appeal and/or seek leave to appeal is refused, the appeal is dismissed.
6. Given the passage of time, and the fact of the conditional stay granted on 15 December 2023, the Appeal Panel will vary the consent orders of 29 August 2023 pursuant to s.188 of the RT Act to avoid any issue in enforcing those consent orders which may arise under s.121 of the RT Act.

Orders 1. Leave to extend time to appeal is refused. 2. Leave to appeal is refused. 3. The appeal is dismissed. 4. Pursuant to s.188 of the RT Act the Appeal Panel varies the orders of the Tribunal made on 29 August 2023 in RT23/36948 to be: 1. The Residential Tenancy Agreement is terminated on 21 February 2024 and possession is to be given to the landlord on the date of termination. 2. The tenant shall pay the landlord a daily occupation fee at the rate of $78.57 per day from the day after the date of termination, namely 21 February 2024, until the date vacant possession is given to the landlord.

Notations

1. Orders 3 to 5 of the Tribunal made on 29 August 2023 in RT23/36948 are not varied and remain in force.
2. It is noted the conditional stay made in Order 1 on 15 December 2023 is lifted as the appeal is now finalised.

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: 21 February 2024