Lawrence v Gunner

The Appeal

1. On 24 November 2015 the Lawrences lodged their notice of appeal. The notice of appeal included an application for a stay. Mrs Gunner lodged a notice in reply on 25 November 2015. Separately, on 18 November 2015 the Lawrences had lodged an application with the Tribunal at first instance to set aside or vary its decision. This is a procedure allowed for by cl 9 of the Civil and Administrative Tribunal Regulation 2013. The Appeal Panel file contains no information as to whether, and how, that application was dealt with by the Tribunal at first instance. The Appeal Panel (Westgarth DP) heard the appellants' application for a stay of operation of the Tribunal's decision on 7 December 2015, and refused the application (reasons, 8 December 2015). Directions were made for the conduct of the appeal.

Appeal Out of Time

1. In residential proceedings, an appeal must be brought 'within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later)': Civil and Administrative Tribunal Rules 2014, cl 25(4)(b); not within the usual period (28 days): cl 25(4)(c).
2. The reasons themselves are dated 5 November 2015, and the notice of order is dated 6 November 2015. The appellants stated in their notice of appeal that they received notice of the decision on 9 November 2015. Thus, they needed to file any appeal by 23 November 2015. The notice of appeal was filed on 24 November 2015, one day late. The respondent filed its notice in reply on 25 November 2015.
3. The respondent in her notice in reply objected to the Tribunal entertaining the appeal on the ground that the notice of appeal was filed out of time, and there had been no application for an extension of time. We heard submissions at the appeal hearing and decided to extend time.
4. The Tribunal has an unqualified discretion to extend time: Civil and Administrative Tribunal Act, s 41. There is guidance in various Appeal Panel decisions as to how a discretion of this kind should ordinarily be exercised: see, for example, Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.
5. In this instance, we decided to extend time in light of the short length of the delay (one day), and because the respondent had given notice ahead of the due date that the Tribunal order would be disputed, albeit by dint of the filing on 18 November 2015 of a first instance process, the set aside application.
6. We doubt whether the appellants clearly recognised in the notice of appeal that there was a possible issue of late filing. They left unmarked the 'yes'/'no' boxes alongside the question 'Do you require an extension of time'. While the Appeal Panel was only strictly required at its hearing on 7 December 2015 to determine the stay application, we accord some weight to the fact that the out-of-time question was left lie on that occasion. The directions given by the Appeal Panel were of a standard kind, and might ideally have alerted the appellants to the need to meet the preliminary objection, and furnish an explanation for the delay together with submissions.

Non-Compliance with Directions

1. The second matter raised by the respondent was the appellants' failure to comply with all of the directions for the conduct of the appeal given on 8 December 2015. The timetable required the appellants to file any submissions and evidence by 11 January 2016 and the respondent to file submissions and evidence in reply by 28 January 2016. The appellants failed to file any submissions and evidence, and therefore the respondent did not file any further material.
2. The appellants sought at hearing to place various bundles of material before the Appeal Panel (they were marked provisionally as MFI1 to MFI4). The respondent objected to this material being received.
3. In addition the respondent advised that the notice of appeal as served appeared to be incomplete, and this issue had been raised and not responded to in the notice in reply. She advised that the text of the notice ended mid-sentence under point 7. After perusing the copy held on the Tribunal file, we noted that the primary part of the document had the same feature, but the Tribunal copy also included a paper attachment that repeated points 1 to 7, and continued on with the rest of point 7, and a lengthy point 8 containing a number of sub-points. Mr Lawrence explained that he had added the attachment because the space allowed in the online form for grounds of appeal was insufficient, and he had run out of space when filling in the online form. We concluded that the respondent had been served only with the online version and not with the full notice of appeal, comprising the online element and the paper attachment.
4. We adjourned to allow respondent's counsel to peruse the attachment.
5. We resumed and ruled in relation to the concerns raised that we would confine our hearing to the material found in the notice of appeal including the paper attachment, the notice in reply, and to any relevant material placed before the Tribunal at first instance, and would not have regard to any submissions or evidence falling outside these parameters.
6. The appellant asked to have considered the submissions found in his written submissions for the stay hearing of 7 December 2016. We allowed that to the extent they were consistent with the notice of appeal.

Scope of Appeal

1. An appeal may be brought against a decision of the present kind in the residential tenancy jurisdiction on 'any question of law' and, with the leave of the Appeal Panel, may be extended to 'other grounds': Civil and Administrative Tribunal Act 2013, s 80(2)(b).
2. The first appellant, Mr Lawrence, presented the case for he and his wife. His notice of appeal marked the box confirming that he did not seek leave to extend the appeal to questions other than questions of law. We informed him that we would proceed to deal with his appeal on that basis. He did not challenge that course.

Consideration

1. We had considerable difficulty in identifying any of the matters raised by the appellants in the text of the notice of appeal, or in the fuller account found in the stay submissions, as giving rise to 'questions of the law'.
2. On its face, the reasoning of the Tribunal below was conventional and thorough.
3. Proceeding from the premise that she was bound by the Supreme Court's rejection of the Lawrences' alternative case as to the legal basis of their occupation of the subject property, and by its finding that the agreement which founded their occupation was a residential tenancy agreement, the member applied the Act's requirements as to the nature of the notice, its duration and the like (see RTA, ss 82, 83 and 85). The member found the notice compliant. It followed that the orders sought by the applicant (Mrs Gunner) should be made, and that occurred.
4. The appellants' primary objection, as we construe the notice of appeal and Mr Lawrence's submissions, was that the Supreme Court had wrongly tied the hands of the member. The appellants also submitted that it was unfair for the Tribunal to go on and deal with the remitted application in a situation where there was an appeal on foot in the Court of Appeal, and the appeal challenged the ruling that a residential tenancy agreement governed their occupation of the subject property.
5. In their notice of appeal, in the submissions in support of the stay application, and, finally, in oral submissions at our hearing, the appellants referred at length to circumstances such as: the nature of the business relationship they claimed existed between Mr Lawrence and Mr Gunner; the particulars of the arrangements between both couples that led to the Lawrences' occupation of the subject property; the contribution Mr Lawrence had made to the improvement of the subject property in the context of an intended subdivision and redevelopment; a dispute as to liability for land tax in relation to the premises as between him and Mrs Gunner; and other matters of a like kind. It can be seen, we consider, that these are all matters connected with the principal question of the nature of the legal relationship between the parties. These matters were exhaustively dealt with in the Supreme Court judgment.
6. Mr Lawrence's submissions were confusing as to whether he accepted that the Tribunal was correct in not reopening the Supreme Court's finding. At times he appeared to be submitting that the Tribunal had no choice but to adopt that ruling and proceed in the way it did. At other times he appeared to be saying that it was unjust that it did not re-examine the issue, and had it done so, it would have reached a different conclusion.
7. In relation to the Tribunal's handling of the matter, Mr Lawrence noted that the file number given to Mrs Gunner's application (15/51215) was not the same as the one given to it in 2012 and reflected in the Judge's order (12/09391). As we understood his submissions, he considered that had the Tribunal dealt with the original file he would have the opportunity to test the evidence upon which the applicant relied, and possibly obtained a different outcome.
8. The Tribunal dealt with this objection in its reasons. It stated that it was a Registry practice to cease to use the existing file number when a matter was transferred to the Supreme Court. If the matter returned to the Tribunal a new file would be created with a new number covering the remitted matter or matters.
9. No question of law arises. The judge was simply giving the numbers for the files that had been transferred, and using them as a descriptor of the matters to be remitted. The new number was simply a replacement number the first of the matters remitted, with the old number retained for the second matter. The substance of the judge's order was not affected.
10. The position might be different if it were to be shown that some practical unfairness had been perpetrated by switching from an old file regime to the new file regime, such as, for example, the Registry failing to transfer to the new file relevant material going to the substance contained in the old file. No allegation of that kind was made. In any case the Tribunal's directions gave the parties a full opportunity to identify the material that they wished to rely upon.
11. The Tribunal dealt with the question of the scope of its obligations in dealing with an order for remittal of the present kind. It is plain we think from the passages that we have set out above from the Court's judgment that the Court had ruled on the residential tenancy agreement issue, and that it now intended that the Tribunal to dispose of the matter according to law. The Tribunal was bound by the Court's finding, for the reasons given by the Tribunal: see reasons [57] to [61].
12. In our view, the Tribunal properly construed the scope of the order of remittal. As between the Tribunal and the Supreme Court the issue of the nature of the parties' legal relationship had been determined, and was res judicata.
13. The appellants attached great significance to the grant by the Court of Appeal of a stay of the Supreme Court's decision. The appellants referred to observations made by Gleeson JA in relation to the arguability of their wider case (Lawrence v Gunner (No 2)). Those observations did not extend to the present matter. His Honour did not stay this aspect of the case. He said: 42. In my view, there is no merit in the applicants' contention that the Supreme Court had no jurisdiction to make findings with respect to the existence of a residential tenancy agreement in respect of 134 Clontarf Street. Assuming, favourably to Mr and Mrs Lawrence that a court, including the Supreme Court, cannot make an order terminating a residential tenancy agreement under s 81 RT Act, it is clear that order 4 made by his Honour on 21 August 2015, did not go so far. Nor did his Honour make any finding that Mrs Gunner had validly terminated the residential tenancy agreement in respect of 134 Clontarf Street, for the purposes of s 85 of the RT Act. 43. Although the Tribunal's decision when dealing with the possession proceedings on remittal is not in issue before this Court, it may be observed that the Tribunal considered for itself the question of the validity of the notice of termination given by letter dated 27 October 2011 by Mrs Gunner's solicitor. The Tribunal found that the residential tenancy agreement was a periodic agreement within s 85 of the RT Act (at [65]); that a valid termination notice had been given, ending the periodic tenancy (at [72]); and that the temporal requirements of s 83(2) of the RT Act with respect to the commencement of an application to the Tribunal for a termination order had been met (at [87]); before concluding that the Tribunal had no discretion to refuse to terminate the residential tenancy agreement: at [89]. 44. I am not persuaded that arguable grounds of appeal have been demonstrated in relation to the terms upon which the remittal order (order 4) was made.
14. An extant order of remittal of a Court remains the operative order until such time as it is set aside or otherwise varied. It is not for the Tribunal to anticipate the outcome of later proceedings. If no stay has been granted, its duty is to deal in an orderly and timely way with the order for remittal, and bring (as the order contemplated) the proceedings at first instance to closure. The Tribunal at first instance acted in that way.
15. In our view no other arguable questions of law were identified by the submissions, arising either from the expressed reasons of the Tribunal or arising from any possible procedural or substantive omissions of the Tribunal.

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: 23 February 2016