Lauron v Michael

NCAT Appeal Panel|2021-04-15

Introduction

By Notice of Appeal filed on 21 January 2021, the appellant appeals a decision of the Tribunal delivered on 8 January 2021 in proceedings number RT 20/ 32335.
The proceedings arose out of a residential tenancy agreement. The appellant had leased a four bedroom residence in the metropolitan area of Sydney. The occupancy commenced on 28 December 2019. Shortly thereafter the appellant found that there were defects in the residence, as particularised hereunder. Further, the appellant discovered that the residence had water leaks around windows and other places causing flooding of the carpet and tiles.
The appellant brought proceedings against the respondent landlord in the Tribunal, alleging breach of quiet enjoyment and reduction of services and making a claim for rent relief.

The appeal

The Notice of Appeal challenges the amounts which the Tribunal found were to be paid by the respondent to the appellant in respect of the breaches referred to above and the rental reduction due to flooding. The Notice of Appeal also asserts that the Tribunal made no allowance in respect of one item of defect, namely a bedroom window which did not open to allow ventilation. Lastly, the Notice of Appeal asserts that the Tribunal should have allowed an amount for loss or damage to the appellant's possessions as a result of the flooding.
The Notice of Appeal, which incorporates the grounds of appeal, has been supplemented by a volume of material incorporating a statement by the appellant lodged with the Tribunal in September 2020 and relied upon at the hearing, to which are annexed 175 pages of documents. On appeal the appellant also sought to rely upon a three-page statement dated 9 March 2021 to which was attached 27 pages of documents.
The appeal is an internal appeal provided for by section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"). Section 80 appeals are the subject of constraints as set out in Part 6, clause 12 of Schedule 4 to the CAT Act. In summary, an appeal as of right may be brought on any question of law or, where an appeal is brought on the ground that a decision was not fair and equitable, that it was against the weight of evidence, or that significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with), it is necessary for an appellant to obtain the leave of the Appeal Panel to bring the appeal. Leave will only be granted where the Appeal Panel is satisfied that to the appellant may have suffered a substantial miscarriage of justice: see Collins v Urban [2014] NSWCATAP 17. That decision determined, at [78], that if it is established that an appellant: "may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence."
At [84] the Appeal Panel held: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
The appellant seeks to rely in this appeal on what she states is fresh evidence, by which we understand is significant new evidence which has arisen since the Tribunal hearing and which was not reasonably available at the time the proceedings under appeal were being dealt with (as per cl 12 of Sch 4 to the CAT Act. If leave is granted to bring the appeal, s 80(3) of the CAT Act provides, relevantly: 80 Making of internal appeals … (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.
The Appeal Panel will consider the issue of leave to appeal and fresh evidence later in these reasons.

Appellant's submissions

The appellant submits that, in relation to the reduction of services claim, the Tribunal erred in allowing a rent reduction of only 25%, and a greater allowance should have been made. The appellant submits that the disruption to the rooms in the house extended beyond the bedroom and living room, requiring her to reposition her furniture, and that a greater allowance should have been made.
She further submits that the amounts awarded in relation to the air-conditioner, range hood and security alarm are too low. She also submits that the Tribunal did not allow any amount for the non-opening bedroom window. She did not press other claims which had been referred to in her Notice of Appeal but which are not listed above.
The appellant submits the Tribunal should have allowed a greater allowance for breach of quiet enjoyment because there was an additional occasion on which a person had attended her premises unannounced and for which the Tribunal had awarded no compensation.
The appellant asserts that her statement dated 9 March 2021 contains evidence of the value of her possessions which were damaged together with her explanation as to why that material had not been provided to the Tribunal. The Appeal Panel was referred to a building report, which was irrelevant to any claim for the appellant's possessions. However, the appellant claimed that it was necessary to obtain the building report for which she paid $660 and for which she claims to be entitled to reimbursement.
Each of the matters raised by the appellant concerning her challenges to the allowances made by the Tribunal relate to discretionary determinations made by the Tribunal. The Appeal Panel has had the benefit of listening to the audio recording of the hearing. It demonstrates that the Tribunal was fully aware of the claims of the appellant and that they were discussed during the hearing.
The Tribunal did not allow any allowance for the appellant's claim for damages to her personal property because there was no evidence to support such a claim. In the appellant's statement lodged with the Tribunal in September 2020 there is no evidence to support her claim for loss of personal property nor is there any valuation.
The Tribunal made no allowance for the closed bedroom window. The Tribunal heard evidence that the window was not intended to be an opening window. Council requirements were such that the window was required to be fixed and non-opening. Obviously this is the reason why the Tribunal rejected such a claim. The unannounced visit by a man named Anthony on 5 August 2020 was, viewed in context, so minor as to not warrant compensation. On the appellant's evidence the gentleman concerned simply knocked on the appellant's door, said he was there in relation to roofing, the appellant said she did not want him in her home, and he departed. No error was made by the Tribunal in not compensating the appellant for that visit.

Fresh evidence

The fresh evidence which the appellant seeks to rely upon is documentation which is claimed to constitute "fresh evidence". Such evidence comprises a more detailed description of the events which occurred prior to the Tribunal hearing, medical notes and a medical certificate.
A succinct definition of "fresh evidence" is as follows: "The meaning of that [fresh evidence], as laid down by Hill J. in Timmins v Timmins [1919] P. 75, 80, is "evidence" of something which has happened since the former hearing or has come to the knowledge of the party applying since the hearing and could not by reasonable means have come to his knowledge before that time." See Colchester v Peck [1926] 2 KB 366, per Avory J at 375.
In Lawless v The Queen (1978-1979) 142 CLR 659 at 669; [1979] HCA 49 Stephen J said: "The concept of fresh evidence, as evolved in the cases and in particular in Ratten v The Queen (1974) 131 CLR 510, a decision of this Court which was expressed as containing a definitive pronouncement of appropriate principle, requires that the evidence in question, not being before the jury at the trial, was not then available to be called by the defence. If, on the contrary, the defence, knowing of that evidence, elected not to tender it, it will not be fresh evidence. Again, if it is evidence of which the accused "bearing in mind his circumstances as an accused, … could reasonably have been expected to have become aware and which he could have been able to produce at the trial" it will not be fresh evidence. ... So it is that it is evidence which is "actually or constructively available" to the accused but is not called by him that is spoken of as lacking the quality of fresh evidence."
Such principles have been followed in other Australian jurisdictions. In Minister for Immigration and Multicultural Affairs v Madafferi (2001) 106 FCR 76; [2001] FCA 250, the Full Court of the Federal Court of Australia (Heerey, Emmett and Conti JJ) said at [30]: "The ordinary requirements for the receipt of fresh evidence under s 27 is that the party applying for the exercise of discretion must demonstrate that the fresh evidence would not have been available at the initial hearing despite the exercise of reasonable diligence and that if the evidence had been available there was at least a firm chance that the result would have been different."
In McNeill v The Queen (2008) 168 FCR 198; [2008] FCAFC 80, the Full Court of the Federal Court of Australia (Black CJ, Lander and Besanko JJ) applied the principle in Lawless v The Queen to exclude what was claimed to be "fresh evidence" on the basis that such evidence, comprising a book, had been published well before the trial.
Stroud's Judicial Dictionary of Words and Phrases (5th ed) defines "fresh evidence" by reference to the High Court of Justice decision of Johnson v Johnson [1900] P. 19, in which the President explained at 21: "But it is necessary that magistrates should clearly understand what "fresh evidence" means, though, in my view, there is no real doubt about it. It means practically the same sort of evidence as that upon which a new trial would, in the ordinary course, be granted: it must relate to something which has happened since the former hearing or trial, or it must be evidence which has come to the knowledge of the party applying since that hearing or trial, and which could not by reasonable means have come to his knowledge before that time. It must amount to what was called in the old forms of pleading res noviter ad notitiam perventa. It is altogether a mistake to suppose that "fresh evidence," within the meaning of the Act of 1895, means or includes evidence which could have been called, but which was not in fact adduced, at the first hearing. It would be monstrous to suppose that a party could abstain from calling evidence, and could thereafter proceed to make application upon application, based on evidence which might have been tendered in the first instance. I have no hesitation in saying that to the words "fresh evidence" in s. 7 must be assigned the limited meaning and scope which I have indicated."
The appellant relies upon a medical certificate of her general practitioner dated 6 February 2021. Relevantly it states: "This is to confirm that in February 2020, Amal presented post fall at home due to water damage. She was diagnosed with concussion and unfortunately still has memory lapses as a result. She is due to see a neurologist for further testing and management."
Consultation notes are included in the fresh evidence. A consultation note dated 12 February 2020 of a different medical practitioner refers to: "Fall last Tuesday - slipped on stairs at home - fell backward and hit head… Still has headache, fatigue, poor memory… Likely concussion + whiplash"
The notes of the general practitioner who prepared the certificate referred to above recorded on 27 February 2020: "… still has symptoms of postconcussion syndrome short-term memory slowly returning, though forgetting things."
This evidence is relied upon by the appellant to explain why she wishes to tender the fresh evidence. The Appeal Panel is asked to infer that the medical evidence leads to a conclusion that the appellant was not mentally fit to provide the evidence to the Tribunal upon which she now wishes to rely.
The Appeal Panel cannot accede to such submission. The medical evidence does not suggest that there was any incapacity of the appellant as suggested. Further, the contents of the appellant's statement provided to the Tribunal (some 7 months after her injury), her oral evidence and the presentation of her case (some 11 months after her injury) all indicate that the appellant's recollection was unaffected. She appears to have had a vivid recollection of many of the events, as set out in her detailed statement. Further, it is apparent that the appellant was conducting a business from her residence throughout this period. It is plain that there is no neurological reason to suggest that she was incapable of making the evidence available. There is no evidence of any neurologist or any further follow-up treatment.
It follows that we are not persuaded that this "fresh evidence" was not reasonably available to the appellant at the time of the hearing, and thus we refuse leave to appeal on that basis and refuse to admit that evidence on appeal.

Appeal Panel findings

The remaining challenge of the appellants to the findings of the Tribunal are based solely on matters of discretion, namely the assessment by the Tribunal of an appropriate allowance for alleged breaches of section 63 of the Residential Tenancies Act, and allowances made for discounts to rent.
The award of compensation and damages is a matter for the discretion of the Tribunal. A discretionary determination can only be set aside in the manner considered in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 where the majority (Dixon, Evatt and McTiernan JJ) said: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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.
There is no evidence to suggest that in arriving at the Tribunal's assessment, the Tribunal acted upon an erroneous basis. There is no suggestion that the Tribunal failed to take into account a relevant consideration; nor did it take into account an irrelevant consideration, as considered in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 at 39; [1986] HCA 40. No error of law is apparent.
As such, the Appeal Panel determines that it is not satisfied that any conduct has occurred by the Tribunal from which it could be suggested that there has been a substantial miscarriage of justice, such that the appellant would have received or is likely to have received a more favourable result.
Therefore, to the extent the appeal is based on alleged House v The King error, the appeal fails as no error has been established.
To the extent leave to appeal is sought on the basis that the Tribunal's decision was not fair or equitable, we refuse leave to appeal.
The Appeal Panel considers that there is no basis for the claim that the Tribunal did not take into account the full impact of the respondent's breaches and damage incurred by the appellant. The audio recording of the hearing demonstrates that the Tribunal fully considered the appellant's claims and the Tribunal reached its own determination in the exercise of its discretion as to the quantum which should be awarded where it was considered appropriate to award compensation.
It follows that the appeal does not succeed. However, it is necessary to make an adjustment to the final payment orders made by the Tribunal in view of the occupation fee which is to be offset against the payment of moneys found to be payable to the appellant.

Orders

The Appeal Panel: 1. varies the payment order made by the Tribunal on 8 January 2021 so that it reads: "The total order is that the landlord must immediately pay the tenant the amount of $2,726.76"; and 1. refuses leave to bring the appeal; 2. the appeal is otherwise 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: 07 May 2021

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