Makowska v St George Community Housing Limited

Makowska v St George Community Housing Limited - [2024] NSWSC 1243 - NSWSC 2024 case summary — Zoe

[3]

Procedural history of previous complaints

On 7 May 2018, Ms Makowska commenced proceedings in the Consumer and Commercial Division of NCAT against the previous landlord, the LAHC (SH18/20556). The proceedings were finalised by consent orders being made on 18 July 2018 requiring LAHC to comply with s 50(3) of the Residential Tenancies Act 2010 (NSW) ("the RTA") by taking reasonable steps to ensure that neighbours did not interfere with Ms Makowska's reasonable peace, comfort, or privacy in using the residential premises. A claim for compensation was dismissed.
On 19 September 2018, Ms Makowska sought an order under s 187(1)(b) of the RTA and an order for payment of compensation under s 187(1)(d). She contended that the landlord had breached the consent orders. She relied on a number of specified breaches. Her application was dismissed on 7 January 2019. She appealed against that decision.
On 14 January 2019, Ms Makowska filed a further application seeking identical orders but relying on additional specified breaches said to have occurred between 3 December 2018 and 14 January 2019. That application was summarily dismissed on 14 February 2019. She appealed against that decision as well.
As stated above, from 1 April 2019 the landlord took over from LAHC.
Both of Ms Makowska's pending appeals were heard on 3 April 2019 by the Panel. The first appeal was dismissed but Ms Makowska was successful on the second appeal and that matter was remitted to a tribunal member on 7 June 2019: Makowska v NSW Land and Housing Corporation [2019] NSWCATAP 105.
Meanwhile, on 29 May 2019, Ms Makowska had commenced further proceedings in NCAT seeking compensation from the landlord for breach of her right to quiet enjoyment under the lease pursuant to s 50 of the RTA. She alleged that the landlord had failed to repair drains in the common area which resulted in stormwater blocking convenient access to the car park and the lawn in a recreational area (which she helped to maintain and enjoyed) to be destroyed.
At a directions hearing on 12 August 2019 of the remitted proceedings, LAHC was removed as the respondent to that application and the landlord was joined instead. The landlord did not attend the subsequent hearing due to an administrative error. The hearing proceeded in its absence and on 30 October 2019 the landlord was ordered to pay Ms Makowska the sum of $2,402.64 by way of compensation for breach of the obligation to give quiet enjoyment of the premises.
On 22 November 2019, the landlord made an application to NCAT to set aside or vary that decision. On 18 December 2019, NCAT made an order setting aside the order made on 30 October 2019. The proceedings were re-enlivened and given another number (SH 19/56856).
On 13 February 2020, Ms Makowska's claim was upheld in part (Makowska v St George Community Housing Ltd (New South Wales Civil and Administrative Tribunal Appeal Panel, 13 February 2020, unrep) in that an order was made under s 44(3) of the RTA to reduce her rent from 1 April 2019 to 31 March 2020. Her application was otherwise dismissed. Her complaint on that occasion concerned a blocked stormwater drain leading to, inter alia, the destruction of the lawn in the recreational area near the car park.
On 26 February 2020, Ms Makowska appealed against this decision to the Appeal Panel. On 29 July 2020, the Panel delivered its decision, dismissing the appeal: Makowska v St George Community Housing Ltd [2020] NSWCATAP 159.
On 9 July 2020, an order was made, with brief reasons, in proceedings SH 19/56856 (see [11] above) that Ms Makowska's application to rejoin the LAHC be refused (despite the fact that the landlord was not a party to the proceedings in which the 18 July 2018 orders were made and was not bound by them).
Ms Makowska appealed to the Panel against the refusal to join the landlord. That appeal was heard on 22 February 2021, and she was partially successful: that decision, Makowska v St George Community Housing Ltd [2021] NSWCATAP 198, was published on 30 June 2022.
On 2 October 2020, Ms Makowska filed a summons seeking judicial review of Makowska v St George Community Housing Ltd [2020] NSWCATAP 159 (see [13] above). On 17 March 2021, the matter was heard by Basten JA, sitting at first instance in the Common Law Division.
On 26 March 2021, Basten JA dismissed the summons: Makowska v St George Community Housing Ltd [2021] NSWSC 287. Ms Makowska's subsequent application for leave to appeal against that decision was dismissed by Leeming and Payne JJA on 18 October 2021: Makowska v St George Community Housing Ltd [2021] NSWCA 249.
Ms Makowska also sought judicial review of the decision of Makowska v St George Community Housing Ltd [2021] NSWCATAP 198 (see [15] above). Although those proceedings were commenced in the Common Law Division of this Court, on 31 January 2022, an order was made under s 51 of the Supreme Court Act 1970 (NSW) transferring the matter to the Court of Appeal because Judge Cole was one of the members of the relevant appeal panel. The matter was listed for oral hearing on 3 February 2022, but Ms Makowska made an application for the matter to be determined on the papers. The landlord did not oppose that order. The summons was dismissed with costs on 7 February 2022: Makowska v St George Community Housing Ltd [2022] NSWCA 5.
Meanwhile, on 24 November 2021, Ms Makowska brought fresh proceedings before NCAT seeking a rent reduction of 10% from 1 April 2020 to 31 March 2021 pursuant to s 44(1)(b) of the RTA, as well as an order pursuant to s 187(1)(b) of the RTA that the lawns that form part of the common property of the premises be remediated.
On 5 April 2022, Member George granted Ms Makowska's application and made orders, inter alia, reducing Ms Makowska's rent and requiring the landlord to remediate the lawn in the common area of the premises in a proper and workmanlike manner on or before 3 June 2022: Makowska v St George Community Housing [2022] NSWCATCD 69.
On 19 April 2022, Ms Makowska filed an application seeking a rental reduction pursuant to s 44(1)(b) of the RTA of 10% from 1 April 2021 until 31 March 2022, being a total of $1,768.18, to be paid as a money order.
The application was heard before Member Eftimiou on 12 July 2022. Ms Makowska did not seek another remediation order pursuant to s 187(1)(b) of the RTA and at the hearing it was conceded that the order made by Member George for the landlord to remediate the lawn on or before 3 June 2022 had been complied with. The landlord furnished the tribunal with a horticulturalist report which satisfied Member Eftimiou that it had complied with its obligations to maintain and repair the common property garden areas.
On 12 July 2022, Member Eftimiou made orders reducing Ms Makowska's rent on the basis that the diminished use of the common area was a reduction of facilities provided with the premises. The tribunal found that the rent was excessive for the period of 1 April 2021 until 25 June 2021, and for the period of 11 October 2021 to 31 March 2022. Between 25 June 2021 and 11 October 2021, the landlord was prohibited by a NSW Public Health Order from carrying out non-essential works such that the tribunal found there was not a withdrawal of facilities during this period. The tribunal found a total of 257 days when the rent was excessive due to a reduction of facilities provided with the premises and awarded a money order to Ms Makowska comprising a 10% reduction for the relevant days.
On 15 August 2022, Ms Makowska filed a renewal of proceedings application seeking to renew the orders of Member George requiring a rent reduction to $159.24 for the period of 1 April 2020 to 3 January 2021 and to $301.52 for the period of 4 January 2021 to 31 March 2021, and a remediation of the lawn in the common area on or before 3 June 2022.
On 21 September 2022, the hearing was adjourned to a date to be fixed by the Registrar. Ms Makowska sought orders that the rent reduction be paid as a rent refund and not a rent credit on the basis that her rent was paid as a Centrelink deduction and so she did not have the benefit of the rent reduction order. The landlord informed the tribunal that it had complied with all of the relevant orders.
On 22 November 2022, the renewal application was withdrawn at the request of Ms Makowska. The reasons for withdrawal, as stated by Member Kennedy, indicated that the matter was withdrawn pursuant to a private agreement between the parties which involved a transfer of rental credit from the landlord to Ms Makowska. The reasons for withdrawal did not include any reference to the remediation order.

[5]

The decision of the Member De Jersey on 10 August 2023

In her reasons, Member De Jersey set out the parties' details and described the property. She then made the following factual findings.
Ms Makowska claimed that the common property gardens had deteriorated over the years and some of the grassy areas were now either bare or weedy. Accordingly, she sought a rental reduction of 10% for the maximum period of 12 months from 1 April 2022 to 31 March 2023 and a work order that the landlord rehabilitate the lawns of the common property areas.
Member De Jersey noted that the landlord had adduced evidence that it had a fortnightly garden maintenance program, and that the grass areas were mowed on a fortnightly basis. It was accepted that the trees have grown over the years and are about 20 to 30 metres tall, but that they cannot be trimmed without council's approval and a number of them are not on the landlord's land. The landlord has made requests to NSW Transport to have those trees trimmed.
Member De Jersey also noted the evidence that the shadow from the tall trees means that some of the grass does not grow but the trees provide shade and a noise buffer from the nearby train line. The back grassy area was re-turfed in 2022. There has been consultation with residents about the garden and seating area.
It was noted that Ms Makowska considers the garden area a place where she can heal and relax by undertaking maintenance such as raking the lawn.
Member De Jersey then made the following findings: "Having reviewed the tenant's photos I accept that parts of the grass areas are bare in patches and there are some weeds. However, the grassy areas appear mowed and tidy in those photos. I accept from the horticultural report, the landlord's submissions and photos of the landlord that the garden areas are maintained on a fortnightly basis and given the extent of tree coverage some areas are probably not conducive to improvement of the grassy areas. I accept that there are probably weeds in those grassy areas. The responsibility of the landlord as the owner of the strata is to maintain the common property areas including the gardens. On the evidence I am not satisfied that the landlord is in breach of its duty to maintain the common property gardens. I find the garden areas appear neat and tidy and what appears from the photos to be a pleasant seating area has been provided for the use of residents. It follows that I am not satisfied that the landlord has withdrawn amenities or facilities from the tenant to establish that a rent reduction is justified under section 44(1)(b) of the Act. I decline to make an order that the landlord's lawn maintenance program includes weeding is maintained as the common property areas are not part of the leased premises and as such I am not satisfied I have jurisdiction to make orders in relation to areas that are not part of the leased premises. The Act does not define leased premises to include common property areas."

[6]

The internal appeal to the Appeal Panel

On 7 September 2023, Ms Makowska appealed to the Panel against the decision of Member De Jersey under s 80 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) ("the NCAT Act") which is in these terms: 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.
The relevant sub-section which governed the landlord's internal appeal was sub-s (2)(b). The circumstances in which the Appeal Panel may grant leave to appeal on a ground other than a question of law are set out in Sch 4 Pt 6 cl 12 of the NCAT Act which is in these terms: Part 6 Appeals 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.
Ms Makowska relied upon two grounds of appeal: 1. That the learned member acted so unreasonably in dismissing the rent reduction claim that no reasonable decision maker would have made that decision; and 2. That the learned member misunderstood or misapplied s 187(1)(b) or (e) of the RTA.
The appeal was set down for hearing on 1 November 2023 before the Appeal Panel constituted by Senior Member Wilson and Senior Member Boxall.

[7]

Extension of time required

Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2015 (NSW) ("the NCAT Rules") provides: 24 Administrative review applications … (4) The default application period for the purposes of subrule (3)(b) is - (a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997 - the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act, or (a1) in the case of an administrative review application under section 55 of the Privacy and Personal Information Protection Act 1998 - the period of 28 days after - (i) if an internal review under section 53 of that Act is completed within 60 days from the day on which the application for the internal review was received by the public sector agency concerned - the day on which the applicant was notified of the result of the internal review, or (ii) if an internal review under section 53 of that Act is not completed within that 60-day period - the day on which the 60-day period expires or the day on which the applicant was notified of the result of the internal review (whichever is the later), or (b) in any other case - the period of 28 days after - (i) if the applicant has requested reasons under section 49 of the Administrative Decisions Review Act 1997 for the administratively reviewable decision - the day on which the applicant was either provided with a statement of reasons under section 49 of that Act or notified under section 50 of that Act of a refusal to provide reasons, or (ii) if the applicant has not requested reasons under section 49 of that Act - the day on which the applicant was notified of the making of the administratively reviewable decision.
The relevant principles to be applied when determining whether to extend the time for lodging an appeal were discussed by Wright J in Jackson v NSW Land and Housing [2014] NSWCATAP 22 ("Jackson") at [22] as follows: "The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) 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 appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a 'vested right' to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."
Thus, the time limit for lodging an appeal to the Appeal Panel from a decision of a single member is 14 days. Ms Makowska did not lodge her appeal until 7 September 2023 (28 days from the date of the decision).

[8]

The hearing before the Appeal Panel on 1 November 2023

Relevant to Ms Makowska's first ground of appeal in this Court, the transcript of the proceedings before the Panel reflects that the Members clearly had difficulty in getting Ms Makowska to respond to questions asked, including when she was asked to identify her appeal grounds in order to properly understand whether they concerned questions of law, mixed fact and law, or solely fact.
On a number of times, Ms Makowska was asked to clarify her grounds and was not able to do so. By way of example, the following exchange occurred: "APPELLANT: May I know what you will deciding that I know how I correspond with you? SENIOR MEMBER WILSON: Sure. We will decide whether we're satisfied on the balance of probabilities that the grounds of appeal you raise have been established or made out. Once we know what the ground of appeal is, we can understand if its's an error on a question of law or if it's an error on a question other than law and therefore whether you need leave or permission to bring that application. There's also an extension of time. We're aware of the extension of time, we'll come to that, but one of the considerations with the extension of time is the merits of the appeal and we cannot even begin to assess the merits of the appeal unless we know what the error of law or the other error is that you say the member made. APPELLANT: I think I have described, okay. Appeal panel, may I ask that I do oral submission which is prepared. My words mean nothing. I stand here very agitated that I have to be here at all, so I put some notes and I have a very small read and that will come to the record, and I know where I stand."
In further discussion between Senior Member Wilson and Ms Makowska, it emerged that the substance of Ms Makowska's complaint was that Member De Jersey had "misconceived [the tribunal's] function and the facts", because Ms Makowska had been seeking to enforce the orders made in previous tribunal decisions, a purpose of the appeal which remained unfulfilled.
Ms Makowska alleged that the landlord had still failed to fulfill the order of Member George to remediate the property. Senior Member Wilson confirmed that Ms Makowska did not lodge a renewal application in relation to the remediation order. The Senior Member noted that Ms Makowska had also conceded in the proceedings before Member Eftimiou that the remediation order made by Member George had been complied with (see above at [22]).
Ms Makowska then attempted to tender fresh evidence in the form of recent pictures of the garden area before the Panel. The following exchange occurred: "SENIOR MEMBER WILSON: Right, then we need to know what is the error of law or error of fact that we have to consider and we still don't know. What did Member De Jersey do wrong that was against the law or against some other principle or something. SENIOR MEMBER BOXALL: Yes, either - if you're running an appeal here you've got to show us that Member De Jersey made a legal error or alternatively that the decision that she reached was so, so, so unsupportable - SENIOR MEMBER WILSON: Unreasonable - APPELLANT: Well I will use - I will - thank you very much appeal panel, I will take the opportunity and I say that the Member De Jersey made so - decision so unreasonable that a reasonable person would disagree with hat (sic). Reasonable person would disagree. She was unreasonable in her decision making, very - SENIOR MEMBER WILSON: Is that in relation to - APELLANT: And because she was confused. She truly, genuinely she was confused. This is green, this is grass, looks the - it's not, it's not remediation - SENIOR MEMBER WILSON: The photo you're holding up now was taken yesterday you said which means - APPELLANT: No, no, this is a week ago, a week ago SENIOR MEMBER WILSON: All right but was still taken at the end of October and what Member De Jersey's decision is based on was the evidence that was before her on 10 August. APPELLANT: I understand that. SENIOR MEMBER WILSON: Yes, so we can't take into account those photographs that were not even before the member - APPELLANT: That's why I'm failing because this lot brings the evidence when there is a beautiful green - I mean weeds, weeds live and thrive in winter. If you go to your - to your evidence of the bundle of respondent you will see that - that pictures were taken in very favourable time for weeds to show the best. SENIOR MEMBER WILSON: You could have taken whatever photos you wanted at any time of year because it was your application. APPELLANT: Well I did, this is my application and I did."
The following exchange also occurred in relation to the extension of time: "SENIOR MEMBER WILSON: Did you receive the orders of Member De Jersey by email on 10 August? APPLICANT: Yes. SENIOR MEMBER WILSON: Yes. So you received the orders of Member De Jersey on 10 August then? APPLICANT: Yes. SENIOR MEMBER WILSON: Yes. So you lodged this appeal on 6 September and you needed to lodge this appeal within 14 days but instead you've lodged in 26 days later. APPLICANT: Yes 20 - yeah because what I know is the 28 days was okay, that's what I know. … SENIOR MEMBER WILSON: This isn't the first appeal that you've run in the appeal panel against the residential tenancy application is it? APPLICANT: No. SENIOR MEMBER WILSON: All right so ignorance of the law is probably a weak excuse for why you lodged within 28 days instead of 14 days. Any other reason why you waited 26 days instead of lodging within the 14 days in rule 25? APPLICANT: I honestly truly thought this is my rights for 28 days, that's how I understood. SENIOR MEMBER WILSON: Okay. APPLICANT: If I did, I did a mistake. SENIOR MEMBER WILSON: Okay. Anything else you want to say in support of the extension of time which is almost double the statutory requirement so you need a 12 day extension on top of the 14 days required so it's almost a doubling of the statutory limit."

[9]

The Appeal Panel Decision

The reasons were delivered on 10 August 2023.
The reasons commenced with the Panel noting some confusion as to the nature of the grounds of appeal. The Panel observed that before the question of any amended grounds of appeal could be considered the question of the extension of time fell for determination.
It was noted that under r 25(4)(b) of the NCAT Rules, unless the Panel grants an extension of time, an internal appeal must be lodged within 14 days from when Ms Makowska was notified of the decision or given reasons. The decision was made on 10 August 2023. In her notice of appeal, Ms Makowska stated that she did not receive notice of the decision until 14 August 2023 but at the hearing in front of the Panel she agreed that she received the orders on 10 August 2023. The Panel held that she required a 12-day extension on the basis that her application was not filed until 6 September 2023. [2]
The four principles generally relevant to the consideration of whether to grant an extension of time enumerated in Jackson were referred to and considered by the Panel in turn.
The Panel was not satisfied that proof of strict compliance with the time limit would work an injustice on Ms Makowska as the prospects of success were "very weak or nil".
Secondly, it was noted that the respondent has a decision in its favour and a vested right to the benefit of that decision after time to appeal has lapsed.
As for the length and reason for the delay, the Panel observed that Ms Makowska's explanation for the delay was that she thought she had 28 days rather than 14 days. It was noted that she had been the appellant in a number of appeals thus the Panel considered this a "weak explanation" given her previous experience. It was accepted that there was no evidence of any proof of prejudice to the respondent, but it was observed that the appellant does not have prospects of success.
The fourth principle from Jackson was noted, namely, that it may be appropriate to go further into the merits of an appeal when either the explanation for the delay is less than satisfactory or the respondent has a substantial case of prejudice. In such cases, it may be relevant whether the appellant seeking an extension of time can show that her case has more substantial merit than merely being fairly arguable. The Panel observed: "We find that the appeal is not only not fairly arguable but lacks merit and we say that for these reasons".
The Panel then provided reasons for the conclusion that the appeal lacked merit.
As for the first ground of appeal (unreasonableness), the Panel observed that Member De Jersey considered the evidence before her and made the finding of fact extracted above at [36].
The Panel observed that because Member De Jersey found that there was no withdrawal of facilities provided, she could not exercise her discretion to make an order that the rent payable was excessive. It was noted that the Panel was not taken to evidence that showed that the Member acted unreasonably in making that finding of fact and it was not accepted that the Member acted unreasonably in reaching that factual conclusion.
The Panel then went on to note that there have been a number of other proceedings brought by Ms Makowska, including the Member Eftimiou proceedings, in which both parties conceded that the earlier work order to remediate the lawn in the common area of the premises in a workmanlike manner had been complied with. It was also noted that the decision in the Member Eftimiou proceedings included a finding that Ms Makowska was satisfied that the landlord had complied with his obligations in this regard. The Panel found that this was relevant to the findings under appeal and went on to conclude that the unreasonableness ground lacked merit and was "without substance".
The second ground of appeal contended that the Member De Jersey misapplied s 187(1)(b) or (e) of the RTA. The Panel noted that Ms Makowska sought a specific performance order that the landlord rehabilitate the lawns. Such an order can be sought and made when there has a been a breach of the tenancy agreement. The Panel observed that it had invited Ms Makowska to identify the breach of the agreement which would have permitted the tribunal member to make such an order. She took the Panel to obligations imposed upon the tenant rather than the landlord. Accordingly, the Panel concluded that the member was correct in not making a specific work order.
It was noted that a renewal application under cl 8 of Sch 4 of the the NCAT Act was never lodged alleging non-compliance with the previous order made by Member George in earlier proceedings.
The Panel concluded that there was no basis or substance in the second ground of appeal.
It was then noted that Ms Makowska had held up some colour photographs during the hearing which were not before the member. It was noted that the Panel did not propose to accept any evidence which was not before the member and that, in any event, photographs taken after the decision of the member could not be the basis of a successful appeal because there could be no error in not having regard to photographs which were not in existence at the time of the hearing.
The Panel then observed the following: "Therefore in exercising its discretion the Appeal Hearing refuses to extend time to 6 September 2023 to lodge this appeal. Even if it had extended time the appeal would have been dismissed because it lacked merit or substance."
The Panel then made the following orders: "(1) By consent the appellant has leave to amend her appeal. (2) Time is not extended. (3) The appeal is dismissed."
Ms Makowska now appeals against that decision to this Court.

[10]

Relevant legislation

The appeal is confined to one or more questions of law and leave is required. Section 83 of the NCAT Act provides, relevantly: 83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. … (3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following - (a) an order affirming, varying or setting aside the decision of the Tribunal, (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court. … (Emphasis added.)
The decision appealed against was delivered on 1 November 2023. On 29 November 2023, a written copy of the reasons and orders were emailed to the parties. The summons was filed on 1 December 2023. The amended summons was filed on 23 February 2024.
Section 84(2) of the NCAT Act provides that an appeal under s 83 must be made: (a) within such time and in such manner as is prescribed by the rules of court for the court to which the appeal is made, or (b) within such further time as the court may allow.
Rule 50.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) provides that a summons commencing an appeal must be filed: (1) A summons commencing an appeal must be filed - (a) within 28 days after the material date, or (b) if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after the material date, or (c) within such further time as the higher court may allow. (2) An application for an extension of time under subrule (1)(c) must be included in the summons commencing the appeal.
Although strictly the last day for the commencement of these proceedings was 29 November 2023, the landlord did not oppose an extension of time as it could not identify any demonstrable prejudice.

[11]

Other relevant legislation

Relevant to Ground 1, s 38 of the NCAT Act provides: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2) - (a) the Tribunal must observe the rules of evidence in - (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note - Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal - (a) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.

[12]

Residential Tenancies Act 2010 (NSW)

Section 44 of the RTA relevantly provides: 44 Tenant's remedies for excessive rent (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders - (a) an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount, (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. … (3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement. …
Section 62 of the RTA provides: 62 Definitions In this Division - residential premises includes everything provided with the premises (whether under the residential tenancy agreement or not) for use by the tenant. urgent repairs means any work needed to repair any one or more of the following - (a) a burst water service, (b) an appliance, fitting or fixture that uses water or is used to supply water that is broken or not functioning properly, so that a substantial amount of water is being wasted, (c) a blocked or broken lavatory system, (d) a serious roof leak, (e) a gas leak, (f) a dangerous electrical fault, (g) flooding or serious flood damage, (h) serious storm or fire damage, (i) a failure or breakdown of the gas, electricity or water supply to the residential premises, (j) a failure or breakdown of any essential service on the residential premises for hot water, cooking, heating, cooling or laundering, (k) any fault or damage that causes the residential premises to be unsafe or insecure, (l) any other damage prescribed by the regulations, but does not include work needed to repair premises that are owned by a person other than the landlord or a person having superior title (such as a head landlord) to the landlord.
Section 187(1) of the RTA relevantly provides: 187 Orders that may be made by Tribunal (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders - … (b) an order that requires an action in performance of a residential tenancy agreement, …… (e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement

[14]

Plaintiff's submissions

In her written submissions filed on 2 September 2024, Ms Makowska set out the relevant legislation and then recounted the factual history of fresh complaints about the common property. She addressed her grounds of appeal as follows.
In relation to Ground 1, Ms Makowska submitted that the Panel had used a legal technicality as a reason to refuse to make the work order. She submitted that the Panel did not consider her sole question of law ground in their reasons for decision on the basis of a technicality, and that this failure was inconsistent with the so-called good conscience clause of s 38(4) of the NCAT Act which provides that "the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."
In relation to Ground 3, Ms Makowska submitted that the Panel erred when it ignored her relevant evidence in related proceedings. She also submitted that the reference in the Panel's decision to Ms Makowska having never lodged a renewal application under cl 8 of Sch 4 of the NCAT Act alleging non-compliance with order 4 made by Member George in April 2022 was wrong.
In relation to Ground 4, Ms Makowska submitted that the Panel's decision was manifestly unreasonable on the basis that no reasonable decision-maker would equate the "good conscience" or equitable provision of the clause with the non-fulfilment of the order made by Member George on 5 April 2022.
Ms Makowska expanded on her written submissions at the hearing. In response to questions by me she clarified the basis of her three grounds of appeal as follows.
She submitted that the majority of the residential premises common area lawns have seen no rehabilitation or remediation work, including the extensive courtyard lawn, the front yard lawn of Milner Crescent and the lawn strip from Nurse's Lane.
She also made a submission relating to the definition of "residential premises" under s 62 of the RTA. She submitted that residential premises include everything provided with the premises for use by the tenant. She submitted that the common areas, including the lawn, are provided with the premises for use by the tenant. This means that the landlord has a general obligation to maintain the lawn in a reasonable state of repair.
Ms Makowska conceded that NCAT was permitted to decline to make the orders sought but submitted that it was not permitted to use "technicality of jurisdiction" as a reason to decline to make the order. She submitted that this overly technical interpretation was inconsistent with the "good conscience clause" being s 38(4) of the NCAT Act.
Ms Makowska also submitted that NCAT was dissuaded from making the order because of the landlord's "provocation to litigation over the same cause of action so as to trick or confuse the tenant on legal technicality and deny legitimate claim." She submitted that the matter has "dragged on" for three and a half years since first commencing in NCAT.
It was further submitted that the Panel erred in not entering upon the appeal grounds before them in their reasons, as they are required to do pursuant to s 62(3) of the NCAT Act. She submitted that the reasons did not expose the Panel's understanding of the Act's applicable law and did not otherwise dispose of the grounds. She also made a submission that the Panel was by implication "in agreement with the tribunal in its use of the term 'leased premises'" because it did not engage with the definition of leased premises as proffered by her, nor give reasons for not doing so.
I clarified with Ms Makowska that in establishing an error of law, the decision appealed against was a discretionary one and I took her to the landlord's submissions where the nature of House v The King [3] error was explained for her. I also confirmed that her submissions directed at the merits should be read as submissions that the Panel erred in law in finding that the appeal had no merit.
Ms Makowska also made the following submissions at the hearing, indicative of her passion for the lawns the subject of the tribunal proceedings: "I have to say this to you, your Honour. In 2015, when everything started to be so bad, I started initiate true prayer. So I pray that someone will move in to help me to take control over what's happening, because six blowers and whipper snippers going through the backward where you have little plants and herbs growing. So I pray for six years that someone will come and help me to do something with this property. In 2020, I believe, a tenant named Mark moved in, and he was landscape artist professional. When Member George stated that the grounds are to be tidy and it is normal that public premises should be looked after, because this is our signature, this is who we are. But, anyway, that person moved in. That's purely a spiritual aspect for your Honour to consider that something like this truly happened. So me praying six years for neighbour who comes, comes Mark, landscape artist. He see the need in this property. And he's not asking landlord for money or anything like that. He goes and he gets stuck in and he creates the oasis. The oasis he created was so important feature in that property for us, 35 years. I notice the wildlife is immensely ‑ was having like a platter, like tadpoles and kookaburra. And then Mark, he says to me the kookaburra, everyone loves it. … Not only wildlife loves what he done in 22, but I've never seen in 35 years something like that. From every corner neighbours, there's 24 units, neighbours from every corner come around this particular area. They thanking him how beautiful and dignified and wonderful what he has created. Some people who you never even seen at the yard or walking, whatever, they come in bringing him plants that he can establish more something beautiful. Now what has happened is Mark and I, we came in May 13, 2022 together to tribunal for related matters. So Mark, the one who created, we came to ‑ at that time, landlord was carrying on meeting with the residents how to fix the property. So everyone was there. There was no Mark and there was no me, because we were in the tribunal. They have organised that meeting long time ago. Upon 13 May is my appearance, so I won't be there. Anyway, Mark, god bless him, he passed away. And we have 178 page, 13 October 2023, this is what one‑third of my money is taken away, and I have to look at this, and rightly so because they are the owners and they can do‑‑ That happened, that I pray six years, that man came, fixed nicely. Every corner of it, as I said, dwellings, people gather around: 'Oh, Mark, how wonderful'. They started to be alive, tenants started to be alive for the first time in my 35 years being there. He's not with us anymore. Because landlord came in, took everything out, now we have this gaol little courtyard for drug addicts. I'm sorry, but that's what it is. Stupid kookaburras, they coming around and they saying, you know, where is our tadpoles, where is our bath, what is going on here. I don't know how to explain to kookaburra that the landlord took away their breakfast, lunch and dinner. For instance, currawong, your Honour, they pick dry berries, they popped in there, so they nicely hydrated and then they eat them at special times. Now we don't have. We have bench crooked. You can't sit on the bench because it is crooked."

[16]

Consideration

There are limitations on an appellant's right of appeal to this Court from a decision of the Panel. Not only must a ground of appeal raise a question of law, but leave is also required.
The relevant principles governing an appeal under s 83 of the NCAT Act were helpfully summarised by Griffiths AJA (sitting in the common law division) in Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 as follows at [33]: "(1) There is no appeal to this Court from a decision of the Appeal Panel as of right. The applicant must persuade the Court that leave should be granted. (2) An appeal is limited to 'an appeal on a question of law'. (3) As was recently emphasised in Thomas and Naaz at [32], 'it is not sufficient merely to assert that the Tribunal erred in law in order to satisfy the limited conferral of jurisdiction'. (To similar effect, see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; (2014) 96 ATR 875 at [6] and [22]; and Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]). Accordingly, it is well-settled that a challenge which is wholly or partly factual cannot be converted into a question of law merely by asserting that a question of law is involved or merely by asserting error itself. (4) What constitutes a question of law is 'vexed and context dependent' in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises (see Thomas and Naaz at [52] and Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51). (5) Although there is no clear test of what constitutes a question of law for the purposes of s 83 of the CAT Act, it is important not to lose sight of the continuing binding authority in this State of the Court of Appeal's decision (by majority) in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. Azzopardi stands for the proposition that a particular finding which is alleged to be 'perverse' or 'unreasonable' or 'not reasonably open' is not ordinarily a question of law. At pp 155-156, Glass JA (with whom Samuels JA agreed, Kirby P dissenting) said: It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654. (6) Furthermore, at p 157, Glass JA said: …when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the [course] of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council; Australian Gas Light Co v Valuer-General. See also Thomas and Naaz at [53]. (7) It is unnecessary to decide for the purposes of this appeal whether a 'question of law' encompasses a mixed question of fact and law (see generally, at the federal level, the decisions of the Full Court of the Federal Court in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 and May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2015] FCAFC 93 and contrast the position at the State level, which is reflected in cases such as Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]; and Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 at [45] per Chen J). (8) The existence of a question of law is not merely a qualifying condition to the statutory right of appeal; rather, the question of law alone is the subject matter of the appeal (see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21] per French CJ, Gummow and Bell JJ and Davis v NSW Land and Housing Corporation [2016] NSWCA 325; (2016) 18 BPR 36,459 at [77] per McColl JA, with whom Meagher and Leeming JJA agreed). (9) Whether or not an appeal is on a question of law should be approached as a matter of substance and not merely form. As the Full Court of the Federal Court said in Haritos at [107], if, as a matter of substance, there exists a question of law, the Court has 'a procedural discretion, to be exercised judicially and where it is in the interests of justice to do so, to direct its formal identification in an amended notice of appeal even where the question of law has not been identified before the primary judge'. It is notable that the Court there viewed this approach as consistent with that of the Court of Criminal Appeal in R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [57]-[69] per Spigelman CJ (with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed). Where an appellant is unrepresented, it may be appropriate to adopt a more generous or benevolent approach in assessing whether the notice of appeal identifies a question of law (see, for example, Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]-[77] per Mortimer J, as approved in Haritos at [104] and see also Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]). (10) A s 83 appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT at first instance (see Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 at [10])."
His Honour went on to summarise the relevant principles governing the grant of leave in such appeals at [34]. His Honour noted the summary by Gleeson JA (with whom Macfarlan and Payne JJA agreed) in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]: "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]."
Thus, it is well settled that an applicant for leave under s 83 of the NCAT Act must demonstrate something more than that the impugned decision is "arguably wrong". The appeal will usually need to raise a matter that involves an issue of principle, a question of general public importance or an injustice. The relevant principles were summarised by Basten JA (with whom Tobias AJA agreed) in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[37].
This appeal alleges error in the exercise of the discretion to extend time to file an appeal. Accordingly, the finding of the Panel is subject to the constraints on the review of the exercise of discretionary power identified in House v The King at 504-505 (per Dixon, Evatt and McTiernan JJ) and restated in Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17. Thus, Ms Makowska must establish that the Panel acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect it, mistook the facts, failed to take into account some material consideration or that upon the facts, the decision is "unreasonable or plainly unjust".
Under Ground 1, Ms Makowska contends that the Appeal Panel took an overly technical approach to considering the decision of Member De Jersey and (as I understand her argument) the refusal to extend time. This was said to be in breach of s 38(4) of the NCAT Act. Ms Makowska was unable to establish that the Panel acted with undue formality at the hearing of her appeal, nor that it ignored the substantial merits of the case in favour of technicalities. Nor am I satisfied that this ground raises a question of law. I am satisfied that what Ms Makowska in effect contends under this ground is that the Panel should have reached a different result. Even if this ground did involve a question of law, I am not satisfied it has been established in any event. Having read the transcript of the proceedings before the Panel and its reasons, it is clear to me that the Panel took steps to assist Ms Makowska, and, at some stages, she was not assisting herself by not being responsive.
The nub of Ms Makowska's complaint before the Panel was that Member De Jersey did not understand that Ms Makowska was seeking a further remediation order because she was still not satisfied that the orders made by Member George had been complied with. There are three problems with that submission.
First, Ms Makowska sought orders under s 187(1)(b) of the RTA ("an action in performance of a residential tenancy agreement") and s 187(1)(e) of the RTA ("an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement"). Both of those orders required Ms Makowska to establish a breach on the part of the landlord to the tenancy agreement. She was not able to do so before either Member De Jersey or the Appeal Panel. The Panel tried to ascertain from Ms Makowska during the hearing of her appeal what the breach on the part of the landlord was which would permit the Member to have made the order sought and Ms Makowska was unable to provide an answer.
In Ms Makowska's submissions in this Court (but not before the Appeal Panel) she submitted that the common garden areas were part of her "leased premises" within the meaning of s 62 of the RTA and as such she could obtain an order for specific performance to maintain the gardens to a higher standard. Member De Jersey declined to make that order on the basis that the "leased premises" did not include the common property given the definition in the RTA. The Member was not satisfied that she had jurisdiction to make orders under s 187 of the RTA in relation to areas that were not part of the leased premises. But even if Member De Jersey considered that she did have such jurisdiction she had already found that on the evidence she was "not satisfied that the landlord is in breach of its duty to maintain the common property gardens", so the result would have been the same.
Secondly, to the extent that Ms Makowska now contends that what she meant to do before Member De Jersey was to seek a renewal of the remediation order made by Member George on 5 April 2022, the evidence before the court was that although she made such an application it was subsequently withdrawn.
Thirdly, as the Panel observed, the reasons in the Member Eftimiou proceedings support the conclusion that Ms Makowska had previously accepted that the orders made by Member George had been complied with.
Part of the complaint made under this ground and in her oral submissions is that not enough is being done to assist Ms Makowska as a self-represented litigant and that she is being taken advantage of in some unspecified way by the landlord. Having traced the long history of proceedings brought by Ms Makowska it is difficult to conclude that the landlord has acted unfairly in its conduct in any of the proceedings. It has defended the claims brought by Ms Makowska but I am unable to find that in doing so it has acted unfairly in the manner alleged by Ms Makowska. As for her complaint that the landlord is wearing her down with litigation, the difficulty is that she is the one bringing all of these proceedings.
I am not satisfied that Ground 1 is an error of law and, in any event, it is not established.
Ground 2 was not pressed.
As for Ground 3, Ms Makowska complains that the Panel should have had regard to the success that she had had in other matters and taken that into account in (presumably) both extending the time to bring the appeal and in finding that her appeal did in fact have merit. The Panel did have regard to Ms Makowska's history in order to conclude that she should have known that the time limit was 14 days rather than 28 days. It is to be accepted that the factual finding as to whether Ms Makowska's "excuse" for the delay in bringing the appeal was one on which minds may have differed, but it was a discretionary finding open to the Panel. No House v The King error is disclosed in that finding such as to amount to an error of law.
Further, it is difficult to see how having regard to the other matters brought by Ms Makowska would have assisted Ms Makowska in the manner she suggests. The previous decisions showed that the landlord has taken steps to remediate the property and that she has previously conceded as much.
It may be that a differently constituted panel may have reached a different decision as to the strength of Ms Makowska's reason for delay but an appeal of this nature is not a merits review.
I am not satisfied Ground 3 is an error of law and, in any event, it is not established.
Finally, as for Ground 4, Ms Makowska relied on what she described as Wednesbury unreasonableness. A claim of unreasonableness is a ground for judicial review rather than a statutory appeal such as brought by Ms Makowska. The relevant principles are to be found in more recent High Court cases including Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 ("Li").
In Cameron v Woollahra Municipal Council [2024] NSWCA 216, Payne JA, with whom White JA and Price AJA agreed) recently said this of a ground of review claiming unreasonableness at [100]: "The unreasonableness ground of judicial review is no longer limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable no reasonable person could have arrived at it: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [68] (Hayne, Kiefel and Bell JJ). In Judicial Review of Administrative Action and Government Liability by M Aronson, M Groves and G Weeks (Thomson Reuters, 6th ed, 2017) it is suggested at [6.450], that Li 'invites a qualitative assessment of the impugned discretionary decision, but it does not allow an appeal to the judicial review judge's subjective sense of reasonableness'."
In Li, French CJ said this of such a ground of review: "The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, 'may have no particular legal consequence'.
Similarly, in Donaghy t/as GJ Donaghy & Company Solicitors v Legal Aid Commission of NSW [2022] NSWSC 626, Griffiths AJ observed this at [96]: "In assessing Mr Donaghy's complaints of irrationality and/or unreasonableness, it is important to bear in mind the observations of Bell and Crennan JJ in SZMDS at [124] that 'to describe reasoning as 'illogical, or unreasonable, or irrational' may merely be an emphatic way of expressing disagreement with it (to similar effect, see Gleeson CJ and McHugh J's observation in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40] and that of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [5]). As will emerge, those observations have a strong resonance in Mr Donaghy's case. I do not doubt the sincerity of his subjective belief that the LAC has acted irrationally, but I do not consider that he has met the high threshold of establishing extreme illogicality, for the reasons which I now provide."
Although these are not proceedings for judicial review, I have proceeded on the basis that what Ms Makowska is in fact submitting is that the decision not to extend her time to appeal was unreasonable and plainly unjust under the fifth limb in House v The King.
To the extent that Ms Makowska's complaint is that the decision was unreasonable because there was "no evidence" to support the finding, such a contention cannot be accepted (although it would raise a question of law): Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 at [90] per Hayne, Heydon, Crennan and Kiefel JJ and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 326 per Mason J.
The difficulty for Ms Makowska is that the factual issues before the tribunal were very narrow. Based on the photos and horticultural report before her, the decision made by Member De Jersey was one well open to her. The appeal against that decision was considered by the Panel to have no merit such as to warrant an extension of time to bring the appeal. No error has been established in that finding.
I have considered the photos before the Panel (which were the photos before Member De Jersey) and they support the findings of the Panel as to the lack of merit in the appeal before them. Ms Makowska tried to tender additional photos before me taken well after that hearing to show that the grass did not look as green as it does in the photos before the member, but clearly that does not go to any error on the part of the Panel.

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (4)

Cases Cited (57)