Makowska v NSW Land and Housing Corporation [2019] NSWCATAP 105 | Case summary

Judgment (7 paragraphs)

[1]

Background

These reasons for decision deal with two appeals brought by the appellant Zofia Makowska from two decisions of this Tribunal, both of which arise out of a social housing tenancy which the appellant has from the respondent NSW Land and Housing Corporation. Both appeals were heard together, and it is convenient to deal with them both together, because they arise out of the same tenancy and concern, essentially, the same underlying factual situation.

[2]

The underlying factual situation

Before dealing with the particular matters pertaining to each appeal it is necessary to set out some factual background information which is common to both of them, and which constitutes the genesis of both appeals. The narration which follows is based on information contained within documents filed in both sets of appeal proceedings.
The appellant has been a tenant of the respondent of an apartment in a multi-floor residential block for many years. At some stage new residents occupied an apartment on the same floor as the appellant consisting of a couple with a teenage son and two daughters. At some time prior to 18 July 2018 the appellant complained to the respondent about the behaviour of her new neighbours. The apparent non-resolution of her complaints led her to initiate proceedings in this Tribunal in SH18/20556. The proceedings came on for hearing before a Member of this Tribunal who made a number of consent orders on 18 July 2018 to the following effect; 1. By consent, the Landlord must comply with Section 50(3) of the Residential Tenancies Act 2010 and the terms of the residential tenancy agreement by taking all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of Zofia Makowska in using the residential premises. 2. By consent, the Landlord shall remove all remaining items from the common property stairwell in the vicinity of the applicant Zofia Makowska's unit on or before 31 July 2018. 3. By consent, the Landlord shall take all reasonable steps to ensure that the tenant(s) of unit 24 do not behave in a manner and do not place any items upon the common property stairwell that will interfere with the reasonable peace, comfort or privacy of Zofia Makowska using the residential premises.

AP19/03967

A transcript of the proceedings before the Senior Member has been made available to us. The transcript reveals that the appellant gave sworn evidence in the course of the hearing and was cross examined. In addition, evidence was given by a representative of the respondent. The appellant produced video evidence on which she sought to rely which was viewed by the Senior Member. Initially, the appellant sought to rely on a summons for the production of documents by the respondent, but those documents were not produced. The appellant was offered an adjournment to allow any controversy concerning the production of the documents to be resolved, but the appellant declined that opportunity and elected to proceed with the hearing.
The evidence in the proceedings was to the effect that despite the many incidents about which the appellant complained she had only notified the respondent in writing of three of those incidents. Furthermore, she had declined to report any matter involving alleged criminal behaviour to the police because she feared retribution from the neighbours. In addition, the appellant was unwilling to provide a written statement to the respondent concerning the conduct or behaviour of the occupants of the neighbouring unit to provide evidence upon which the respondent might take action against the neighbouring tenant, again because she feared retribution. There was evidence that the respondent had issued a warning letter to the tenant of the neighbouring premises.
The appellant said she suffered from anxiety and depression, and that the conduct and behaviour of the occupants of the neighbouring unit caused her to be apprehensive and anxious about venturing outside her apartment and traversing common areas where those occupants had left garbage and, on one occasion, some furniture before it was removed.
The Senior Member delivered detailed reasons in which she referred to each of the incidents alleged by the appellant in summary terms and the evidence given in the proceedings. After considering all of this material, the Senior Member concluded that the evidence did not justify a conclusion that the conduct of the tenant and the occupants of the neighbouring premises constituted an interference with the appellants "reasonable peace, comfort or privacy" in her use of her residential premises. Neither could the complaints made by the appellant concerning items left in the common passageway or left overnight in the foyer be characterised so as to constitute such an interference. In these circumstances the Senior Member concluded that it had not been established by the appellant that the respondent had failed to take all reasonable to steps to ensure that the neighbouring tenant and the occupants of those premises did not interfere with the appellant's reasonable peace, comfort or privacy in using the residential premises so as to constitute a breach by the respondent of the provisions of section 50(3) of the Act.
It was on this basis that the Senior Member dismissed the application made by the appellant, and it followed that the claim for compensation would also be dismissed.
The appellant's grounds for appeal were based on an allegation of an error of law, that the decision was against the weight of the evidence and that the appellant was denied "procedural fairness resulting in a denial of natural justice."
In reality, the appellant's argument that the decision of the Senior Member was wrong in law was based on an allegation that the Senior Member had not considered all of the evidence correctly and had given undue weight to oral evidence, as opposed to "written evidence." Such an argument encompasses the second ground for appeal. It is not necessary that we consider in any detail all of the evidence provided in the proceedings. It is sufficient that we point out that the Senior Member conducted the proceedings in an impeccable manner, affording every possible courtesy to the appellant and every opportunity to put her evidence and arguments forward. The detailed reasons for decision carefully and comprehensively deal with all of the relevant assertions made by the appellant. In our opinion the Senior Member was correct in characterising the conduct complained of by the teenage occupants of the neighbouring unit, and their visitors as providing some possible irritation, but viewed objectively the evidence could not sustain any allegation that there had been interference with the reasonable peace, comfort or privacy of the appellant in using the residential premises to which she was entitled under section 50 (3) of the Act.
On this basis, the first two grounds of this appeal must fail.
The denial of natural justice was said to relate firstly to the respondent's non-compliance with the summons for production of documents and secondly the reliance by the Senior Member on the fact that the appellant had not given a statement to the respondent as corroborating omissions in her evidence seeking to establish misconduct of the occupants of the neighbouring tenancy.
There is no basis for the first assertion, because the appellant was given an opportunity to have the proceedings adjourned to enable the documents to be produced by the respondent. In her notice of appeal the appellant said that she felt "helpless" after the respondent had indicated initially that the material which is the subject of the summons did not exist. However, this is not a sufficient reason for determining that in all the circumstances the appellant was not given an opportunity of pursuing this matter further. In any event she declined to accept the offer of an adjournment.
There is equally no basis for the second assertion. Even if there had been some corroborative evidence to the effect that the appellant might have been prepared to assist the respondent in pursuing the tenant of the neighbouring premises, the fundamental fact remains that the Senior Member determined that the appellant had failed to make out any case of a breach of section 50 (3) of the Act, and was correct to do so. On this basis the Senior Member was correct in dismissing the appellant's application, and whether or not the appellant was prepared to assist the respondent in this way was ultimately entirely irrelevant to the disposition of the proceedings.
These appeal proceedings are governed by the provisions of section 80 of the Civil and Administrative Tribunal Act 2013 as modified by clause 12 of Schedule 4 to that Act which applies to appeals from the Consumer and Commercial Division. We set out these provisions; 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. Schedule 4 Cl 12. 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if: (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order.
For the reasons given above we conclude that the appellant has not established any basis for interference with the decision of the Senior Member under appeal, and certainly no basis which would warrant the grant of leave to appeal. This appeal should be dismissed accordingly.

AP19/09903

We have earlier referred in summary form in [8] and [9] above to the background to this appeal. It will be recalled that the Member had dismissed the application made by the appellant on the basis that it was "misconceived." The transcript reveals that the Member did not say why the application was misconceived, such that it should have been peremptorily dismissed. In the absence of any explanation for the view taken by the Member, the appellant was clearly denied an opportunity of making any submissions or proffering any explanation of any kind in response to the prima facie position taken by the Member. The ground of appeal is based on an alleged failure to afford procedural fairness, and an assertion that there was no basis for the Member to have dismissed the application for this reason.
As already outlined above, the application before the Member was almost identical to that which had been determined by the Senior Member only weeks earlier. The only difference being the amount of compensation had increased and the dates of the incidents and the precise descriptions of the incidents, but the types of incidents (rubbish, noise) were the same. It is clear from the transcript the Member thought the appellant was complaining about the same matters already determined by the Senior Member in the earlier application, and indeed the appellant confirmed she had lodged an appeal against the Senior Member's decision. The transcript reveals that the Member thought therefore that the application before her was wrongly lodged in the Consumer and Commercial Division of the Tribunal, and once the Member learnt that the appellant had lodged an appeal against the Senior Member's determination she summarily dismissed the application before her.
However the later application was not an appeal against the Senior Member but in fact later instances of similar conduct complained of by the appellant which the appellant alleges constitutes breaches of the consent orders and the Act. All but one of the twenty new complaints in the application before the Member arose on dates on or before 7 January 2019 when the Senior Member determined the earlier application. All of the complaints were of a similar or identical nature to those that had been considered by the Senior Member.
The transcript of the proceedings under appeal was not made available to the respondent or to us until 2 April 2019, and we did not have an opportunity of reading it until just before the hearing. Accordingly, arguably the respondent was at a disadvantage in addressing this ground of appeal. Notwithstanding this, counsel for the respondent indicated that he was content for this appeal to be dealt with rather than have the proceedings adjourned for what was, relatively, a confined matter.
The appellant, who is not legally qualified was not able to assist in a consideration of relevant legal principles which might apply to the circumstances of this appeal and will not be prejudiced by the fact that we have determined to deal with it without the benefit of detailed submissions from her.
During the course of submissions made by counsel for the respondent there was a discussion of reasons available to the Member for having dismissed the appellant's application on the basis that it was misconceived. We discussed concepts of res judicata and estoppel. It is convenient at this stage to set out a brief extract from the decision of the High Court of Australia in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28 which succinctly describes the relevant principles which might arguably apply to the circumstances of this appeal. At [22] to [26] the Court (French CJ, Bell, Gageler and Keane JJ,( Nettle J delivering separate reasons)) said; Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel"[33]. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel"[34]. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment[35]. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies"[36]. The third form of estoppel is now most often referred to as "Anshun estoppel"[37], although it is still sometimes referred to as the "extended principle" in Henderson v Henderson[38]. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim[39], or the raising of an issue of fact or law[40], if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding[41]. The extended form has been treated in Australia as a "true estoppel"[42] and not as a form of res judicata in the strict sense[43]. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument. The present significance of the recognition of those three forms of estoppel is that each has the potential to preclude assertion of a right or obligation, or the raising of an issue of fact or law, between parties to a proceeding or their privies. Absent a principled basis for distinction - and none has been suggested - one principle must govern the identification of privies for the purpose of all forms of estoppel which result from the rendering of a final judgment in an adversarial proceeding. To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding. Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories[44], abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute[45]. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel. Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel[46]. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel[47]. (citations omitted)
In considering the disposal of this appeal we have had regard to the principles set out above in Tomlinson. On one basis, if it had been so obvious that the Member was entitled to summarily and peremptorily dismiss the appellant's application without giving her an opportunity of making any submission about it, it is feasible that we might have been able to dispose of the appeal even in the face of a prima facie denial of procedural fairness. It was for this reason that we shall briefly consider whether the Member was so entitled on the basis of res judicata, estoppel or that the later application constituted an abuse of process.
In determining these matters, we revert to the nature and extent of the proceedings before the Member whose decision has given rise to this appeal. We have earlier referred to the fact that the underlying Application sought the same orders under section section 187 of the Residential Tenancies Act consequent upon breaches of section 50 (3) of that Act. However, the dates upon which the breaches allegedly occurred were contained within two distinct periods. The first period which was dealt with in the proceedings before the Senior Member in SH18/40606 was for the period 30 July to 14 September 2018. The second period commenced on 3 December 2018 and concluded on 14 January, 2019. The hearing before the Senior Member was conducted on 7 January 2019, when all of the matters contained in the second Application may have been dealt with other than the one incident which allegedly occurred on 14 January, 2019.
However, arguably, if the appellant had sought to have agitated those matters save for the last one before the Senior Member on 7 January 2019 the proceedings would no doubt have needed to be adjourned to enable them to be suitably amended and to enable the parties to have prepared their evidentiary material. And this would have left the last incident on 14 January 2019 outside any amended proceedings. In the circumstances it is arguable that the second Application may not have constituted an abuse of process. Certainly, it is arguable that a determination to summarily dismiss that Application on the basis that it may have constituted an abuse of process could not have properly been made without considering the nature and extent of both Applications and without giving the parties an opportunity to address the Tribunal about such a matter.
In the same way, the question of the application of the principle of res judicata is not one which can be considered summarily without considering the nature and extent of both Applications and without giving the parties an opportunity to address the Tribunal, or giving the appellant the opportunity to make submissions about that application of the principle. Whilst the underlying cause of action might be the same, there is no suggestion that the Senior Member in the proceedings before her amended the Application to take into account any incidents which occurred outside the period specified in it, so as to establish in any way a decision having been made by reference to any of the incidents referred to in the second Application.
Counsel for the respondent directed us to that part of the transcript where the appellant referred in the proceedings before the Senior Member to an incident on 3 October 2018 which is outside the period covered by the first Application. However that date also predates the period covered in the second Application. It is hard to see how the principal of res judicata might apply in these circumstances.
For the reasons advanced when considering the question of abuse of process, it is difficult to conclude that any summary right of dismissal could be justified on the basis of Anshun estoppel, at least without giving the parties the opportunity of addressing the Tribunal about whether such dismissal was justified. It is difficult to comprehend that the appellant who has a continuing entitlement to a right of quiet enjoyment given under section 50 (3) of the Act could be precluded from continuing to maintain proceedings for an alleged breach at a later time, merely because earlier proceedings alleging such a breach at an earlier period of time had been dismissed.
There is one other basis upon which the Member determined to some relieve dismiss the Application. The transcript states that the Member said to the appellant; "Now, this application seeks orders that have already been dealt with by the Tribunal….is that right?" There is then a reference to a statement attributed to the appellant, which clearly should have been attributed to the respondent. The Member then obtained confirmation from the appellant that she had instituted an appeal in the earlier proceedings. The Member proceeded to inform the appellant that she should await the outcome of the appeal and that the results of the appeal would in some way determine the outcome of the application with which the Member was dealing. In dismissing the Application in this manner it is clear that the Member misread the basis for the Application before her, which dealt with a different period of time from the earlier proceedings. It appears, therefore, that the Member proceeded on this basis. If this is the case, it would have been inappropriate to have summarily dismissed the Application without obtaining submissions about the appropriateness of doing so having regard to the two different time periods referred to in each of the applications.
We are unable to conceive of any other possible basis upon which the Member proceeded when summarily dismissing the second Application.
For all these reasons we conclude that there was no arguable basis available to the Member at the time that the second Application was summarily and peremptorily dismissed without having afforded the appellant an opportunity of making submissions about it, and without explaining the basis for characterising that Application is having been "misconceived."
There is no error in a Member of the Tribunal summarily dismissing an application at the group list stage. However there must be sound grounds to do so and the parties in attendance at the hearing must first be afforded the opportunity to make submissions about the proposed dismissal.
It follows that the Member was in error in having so disposed of the proceedings. Such an error is an error at law. On this basis this appeal must succeed, and the decision of the Member quashed. These proceedings should be remitted to the Tribunal for hearing constituted by a different Member.

Makowska v NSW Land and Housing Corporation

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