Martins-Lopes v Keller

Grounds of Appeal

1. Internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80 (2) of the CAT Act.
2. It may be difficult for a self-represented appellant to clearly express their grounds of appeal. In such circumstances, subject to requirements of procedural fairness, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided on the appeal and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: see Cominos v Di Rico [2016] NSWCATAP 5 at [13] (Cominos).
3. The tenants are not legally represented and their very lengthy and detailed submissions are at times repetitive and difficult to decipher. However, consistent with the principles expressed in Cominos, we have considered the tenants' materials as a whole with a view to identifying the grounds of appeal. We understand the grounds of appeal to be as follows: 1. The Tribunal denied the tenants procedural fairness; 2. The Tribunal's reasons for decision were inadequate; 3. The Tribunal erred by constructively failing to exercise jurisdiction; and 4. The Tribunal erred in its application of legal principles.
4. These grounds of appeal all involve errors on a question of law for which leave to appeal is not required. However, we understand the tenants also seek leave to appeal on the ground that they may have suffered a substantial miscarriage of justice because the decision was against the weight of evidence and was not fair and equitable.
5. Grounds 1 and 2 raise the most salient issues in this appeal and for the reasons that follow we are satisfied that the appeal should be upheld on those grounds. We have not addressed the other grounds of appeal, or the application for leave to appeal, because it is unnecessary do so.

Submissions

1. The denial of procedural fairness asserted by the tenants involves: 1. a failure by the Tribunal member to provide adequate assistance to the self-represented parties including by failing to explain the Tribunal's procedures for conducting the hearing; 2. a failure by the Tribunal to give the tenants an opportunity to be heard in relation to a number of procedural matters including their application for an adjournment, their concerns about the landlord's non-compliance with a summons to produce documents, and their concern that the bundle of documents provided by the landlord to the Tribunal was not identical to the bundle provided to the tenants; and 3. a failure by the Tribunal to follow appropriate procedures for the taking of evidence.
2. The landlord submits that the Tribunal member afforded both parties an ample opportunity to be heard and that there was no denial of procedural fairness.

Consideration

1. The Tribunal is bound to accord procedural fairness (or natural justice) to the parties - an obligation derived from the common law and reinforced by ss 38(2) and (5)(c) of the CAT Act: Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41 at [62] citing CKG v Public Guardian [2014] NSWCATAP 32 at [14].
2. S. 38(2)(c) provides: (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. S. 38 (5) (c) of the CAT Act, provides: The Tribunal is to take such measures as are reasonably practicable- …. (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
4. In Jeray v Blue Mountains City Council [2024] NSWCATAP 66 the Appeal Panel considered the obligation to assist a self-represented party. It said [14] - [15]: Procedural fairness includes a duty to provide assistance to a self-represented party in certain circumstances: Lee v Cha [2008] NSWCA 13 at [49]. In Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 at [55] the Full Court gave the following examples of the kinds of practical assistance that may be appropriate: [55] In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person: (a) Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: Hamod [311]. For example, failing to explain the difference between formal sworn testimony and statements made from the bar table, and the significance of failing to file an affidavit, to enable a litigant-in-person to choose whether or not to give oral evidence, may amount to a denial of procedural fairness: SZRUR [39]. Additionally, failing to explain the risks in not leading evidence where adverse inferences might be drawn may also constitute a denial of procedural fairness: Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; (2014) 46 VR 283. (b) Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: MacPherson, 534. For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness: AMF15, 50 [47]. (c) Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: Rajski.
5. The application of s 38 (5) of the CAT Act must be considered in the context in which "the concern of the law is to avoid practical injustice": per Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
6. Recently, in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610, making reference to earlier decisions of the High Court such as Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 and Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, the plurality of the High Court said in relation to the question of materiality of error, including by the denial of procedural fairness at [16]: In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
7. The relevant facts are as follows.
8. Some time prior to the hearing the Tribunal had, at the request of the tenants, issued a summons requiring the landlord to produce documents in relation to the repairs which had been carried out at the premises. A return of summons hearing was held on 26 April 2024 before a Deputy Divisional Registrar of the Tribunal. The Deputy Divisional Registrar made the following notation in the notice of order issued to the parties: The Tribunal notes no summons documents produced, no access orders are made.
9. The notice of order also recorded that the matter remained listed for hearing on 1 May 2024.
10. At the hearing on 1 May 2024 the tenants were represented by one of the co-tenants, Ms Martins-Lopes, and the landlord was represented by Ms Brown, who was the managing agent for the premises.
11. Given that the way in which the presiding Tribunal member conducted the hearing raises a number of concerns, we have set out below in some detail what happened at the hearing.
12. Shortly after the commencement of the hearing, the following exchange occurred between Ms Martins-Lopes, the presiding member and Ms Brown (at 00:00:36): Ms Martins-Lopes: Today, before we get to actually hearing everything, I would like to raise a motion for contempt and adjourn… Member: Ah, forget it. Ms Martins-Lopes: Well, the respondent did not provide documents for the summons that have been issued. Ms Brown: We did. Member I have yet to sit on the case where all of the directions have been complied with, so are some documents missing?
13. The Tribunal member asked the parties several questions about the summons to produce before saying at 00:03:45: OK we'll see if we need to revisit that later, so can you tell me what the plan is today?
14. Ms Martins-Lopes again asked the Tribunal member about the summonsed documents (at 00:03:53) and the following interaction followed: Member: We're going to deal with that issue if we need to later. It seems to be a rather small part of the whole. Ms Martins-Lopes: No, it is a big one. So before coming to the claim, I would like to have a look at the Tribunal's evidence because we've got respondents' evidence that is 284 pages despite 309 being announced. Member: if we could turn the volume down a bit. Can we turn the volume of, you know, anxiety down a bit? The best thing would be to settle the case.
15. The Tribunal member did not respond to Ms Martins-Lopes' request regarding the summonsed documents and did not return either to the application to adjourn the hearing, or to Ms Martins-Lopes' concerns regarding the summons to produce, despite Ms Martins-Lopes attempting to raise these issues at least several times throughout the hearing.
16. The Tribunal member went on to say to Ms Martins-Lopes: I want you to tell me what the claim is, so we can explore whether there's any point in this talking about settling.
17. The Tribunal member proceeded to ask the parties several questions about the claim, before saying at 0:15:45: Have you got some ideas about what might be a way to settle the case?
18. Ms Martins-Lopes then provided further information about the quantum of the claim to which the member responded at 00:16:54: I think you're just wasting the time putting those, from what I can see reading between the lines. Well I don't know whether we'll finish today with this list of issues. So which one do you want to start with?
19. There followed lengthy exchanges between the Tribunal member, Ms Martins-Lopes and Ms Brown about the water leaks at the premises and the claim regarding alleged breach of the covenant of quiet enjoyment.
20. At 00:26:42 in the context of that discussion the member said: These sorts of claims are not going to be worth much, if anything. There's a doctrine of law called the vicissitudes of life. We've all got to put up with little annoyances that happen, for one reason or another.
21. During this exchange, at 00:38:09, the presiding member said: I've taken that you folks have exchanged all your documents, correct?
22. Neither party provided a verbal response to this query.
23. There followed further exchanges about various other issues alleged by the tenants including in relation to the laundry, damage to the tenants' motor vehicle caused by a fallen tree branch, and the presence of asbestos at the premises.
24. At 1:57:40, shortly before the hearing came to an end, Ms Martins-Lopes again raised the issue of the invoices for works at the premises which had been the subject of the summons to produce. The Tribunal member responded: But even if they were the reports, they're probably subject to what's called legal professional privilege. Invoice might just say work done such and such a day. This is the bill but I don't think you've got a right to be inspecting those.
25. The above extracts from the transcript give rise to the following concerns: 1. The member did not clarify with any precision the relief being sought by the tenants or the legal basis of their various claims; 2. There was no clear procedure for the conduct of the hearing. For example, there was no delineation between the settlement discussions at the commencement of the hearing and the formal part of the hearing. Indeed what transpired is more aptly described as a discussion between the member and the parties' representatives. No methodical process was followed for the parties to make submissions, and give evidence, in relation to the various claims. 3. The member did not identify the evidence that was being relied upon by each party, nor did he verify that each party had received the documents of the other. In this regard, he did not respond to Ms Martins-Lopes' request to check that the bundle of documents provided by the landlord to the tenants was identical to that provided to the Tribunal. 4. The member did not administer oaths or affirmations before allowing Ms Martins-Lopes and Ms Brown to give what purported to be evidence from the bar table. Also, he did not enquire whether Ms Martins-Lopes objected to statements made by Ms Brown from the bar table (or vice versa) and did not ask either Ms Martins-Lopes or Ms Brown whether they wished to cross-examine each other. 5. The member did not invite the parties to make submissions about the alleged failure by the landlord to comply with the summons to produce, despite Ms Martins-Lopes attempting to raise this issue on several occasions during the hearing. 6. Similarly, the member did not entertain the tenants' request for an adjournment.
26. Transgressions such as those outlined above will not always result in a basis for upholding an appeal. In this regard we recognise that the Tribunal's procedures are intended to be flexible, and that s 38 of the CAT Act permits the Tribunal to determine its own procedures. However, in our view, the above failures, particularly when taken as a whole, meant that the unrepresented tenants were denied a fair opportunity to present their case and that there exists a realistic possibility that the outcome could have been different had that error not been made. In particular: 1. The tenants were denied an opportunity to be heard about their request for an adjournment and about the summonsed documents. Ms Martins-Lopes said that had she been heard on this issue she would have explained to the member that, given the landlord's failure to produce documents at the return of summons hearing, she required more time to obtain evidence about the repairs carried out at the premises and about the condition of the premises. 2. The reasons reflect that the Tribunal accepted Ms Brown's oral evidence about several matters, including water compliance inspections carried out the premises, and the "useability" of the laundry. However, the member did not formally administer an oath or affirmation prior to Ms Brown making statements in relation to those matters, and did not afford Ms Martins-Lopes an opportunity to cross-examine Ms Brown or otherwise challenge that evidence. 3. The failure to follow a clear procedure meant that Ms Martins-Lopes was not given an opportunity to make fulsome submissions or provide evidence or arguments about many aspects of the tenants' claim.
27. The failure to provide the tenants with a fair opportunity to present their case was compounded by the various erroneous statements made by the member during the hearing. For example, in response to Ms Martins-Lopes' inquiry about the contractor invoices she had sought to summons, the member informed Ms Martins-Lopes that those documents were likely to be subject to legal professional privilege. This statement was incorrect. Legal professional privilege protects communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client, or for use in current or anticipated litigation. Repair invoices are not subject to legal professional privilege.
28. Similarly, in the context of the discussion about the alleged breach of the covenant of quiet enjoyment, the member referred to "a doctrine of law called the vicissitudes of life". There is no such doctrine of law applicable to this type of claim.
29. For these reasons we are upholding this ground of appeal.

Ground 2 - Adequacy of Reasons

1. The second ground of appeal is that the Tribunal's reasons were inadequate.

Submissions

1. The tenants say that the reasons do not meet what would be considered the "minimum requirement" because they do not explain the reasoning processes which led to the decisions made by the Tribunal.
2. The landlord did not give detailed arguments in relation to this issue but submitted that the reasons of the Tribunal were adequate.

Consideration

1. The NSW Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (per Bell P) set out the principles relevant to adequacy of reasons at [66] - [77]. They were summarised by the Appeal Panel in Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [58] as follows: (1) The function of the appeal court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. (2) The quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court or tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided. (3) As to the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons is appropriate than may be the case when an appellate court is hearing an appeal from another court. (4) Even in the less formal setting of a tribunal there are certain minimum characteristics that a Tribunal's reasons must possess. These are supplied, in relation to the Tribunal, by s 62(3) of the NCAT Act which, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. (5) At least a basic explanation of the fundamental reasons which led the Tribunal to its conclusion is necessary. (6) It is not necessary for a judge to detail each factor which he or she has found to be relevant or irrelevant. Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference as to what is found is appropriately clear. (7) Reasons need not be elaborate. (8) Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. (9) The court should not read passages from the reasons for decision in isolation from others to which they may be related. (10) The reasons must be read fairly and as a whole. (11) The reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error. (12) There should be a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips.
2. Applying these principles, we agree that the Tribunal's reasons for decision are inadequate in a number of respects. Without being exhaustive, the problems with the reasons include the following:

Rent reduction claim

1. The tenants sought an order for "repayment of rent" in the sum of $11,312.86.
2. Appendix B attached to the tenants' application listed a range of issues in respect of which this order was sought, involving 47 "repair issues" which the tenants say had not been repaired, and 16 "repair issues" which the tenants say had taken an unreasonably long period to be addressed. Those issues included problems with the laundry and with the spa and also a range of other issues.
3. The Tribunal's reasons for decision relevantly state in relation to this part of the claim: Rent Reduction The claim is for a rent reduction of over 50% and this was the main rent reduction items pressed before me. The main item is the detached laundry although there was several others. It does appear that the roof of the laundry was in poor condition and leaking. During the tenancy the roofing iron was replaced by the landlord. I accept the managing agent's assessment that the laundry was never unusable. However the tenants declined to use it and part of their claim was for laundromat expenses. One reason for not using it was the presence of fibro but fibro in situ is not thought to be dangerous and it can be found in most homes in Sydney. I am satisfied that there was some deterioration in the laundry during the tenancy and I award a global amount of $500.
4. Later the decision states: There are some matters in the claim I think do warrant orders. One is the Spa. I find that the tenants should be compensated in the amount of $300 for delay in making good the spa.
5. At the end of the decision the reasons state: The balance of the claim is dismissed.
6. This part of the reasons is deficient in the following respects: 1. Firstly, the reasons do not address the lengthy list of repair issues for which the tenants' sought relief. Rather, the reasons address this part of the claim only insofar as it relates to the laundry and the spa, and merely alludes to there being "several other" items, without specifically addressing them. No findings of fact are made in relation to those other items, and no explanation is given as to why the balance of this part of the tenants' claim was dismissed. 2. Secondly, there is no explanation of the reasoning processes which led the Tribunal to award the tenants $500 for the laundry and $300 for the spa. In this regard, there are no findings as to the nature of the problems with the spa and there are only very limited findings as to the nature of the problems with the laundry. Moreover, there are no findings as to when the problems with these facilities became apparent, or as to how those problems affected the tenants' use or enjoyment of the premises. In the absence of any such findings, or any explanation as to how the respective figures of $500 and $300 were arrived at, it is not possible to evaluate the Tribunal's decision to award those sums to the tenants. 3. Thirdly, the Tribunal accepts the landlord's contention that "the laundry was never unusable" and rejects the tenants' submission that the laundry was not useable, without providing an adequate explanation as to why it prefers the landlord's position. 4. Fourthly, the reasons do not explain the Tribunal's understanding of the applicable law.

Water usage

1. Under the heading "Water Usage" the reasons state as follows: Water Usage. There was a claim for a refund of some $438 for water usage charges paid by the tenant. This was on the basis of there being leaks which caused water to run to waste. I accept the agent's evidence that before taking possession by the tenants a water compliance inspections was conducted which did not reveal any leaks. The main leaks complained of were in the vanity basin and an outside toilet where the cistern was said to run on. This seems not to have been fixed until early November and I assess the likely loss to the tenants at $50.
2. Again, the reasons in relation to this issue are inadequate. They: 1. do not explain the Tribunal's understanding of the applicable law; 2. contain minimal findings of fact. In particular, there are no findings as to when the problems with the leak commenced or what was the actual water usage expenditure, and no comparisons are made with previous water usage invoices; and 3. do not explain the reasoning process which led the Tribunal to conclude that the likely loss to the tenants was $50.

Repairs and other claims

1. The tenants had sought 47 repairs in "Appendix C" attached to their application. However, only the spa and bathroom fan repairs are addressed in the reasons. The reasons do not address any of the other repair claims. They merely state "the balance of the claim is dismissed" without providing any explanation for this decision.
2. Similarly, the tenants had sought numerous other orders which are not addressed in the reasons. These include orders under s 187(1)(b) of the RT Act for compensation for various expenses the tenants say they incurred as a result of alleged breaches of the agreement by the landlord, an order under s 115 of the RT Act that a termination notice was retaliatory, an order under s 65(5) that rent be paid into the Tribunal pending the completion of repairs, orders for specific performance, and orders requiring the landlord to comply with provisions of the RT Act. The Tribunal dismissed the balance of the claim without addressing any of these claims or explaining why it was dismissing them.
3. We are therefore upholding this ground of appeal.

Conclusion and disposition of the appeal

1. For the reasons given, we have decided to uphold the appeal and to set aside the orders made by the Tribunal on 1 May 2024.
2. In light of the issues we have identified in relation to the way in which the hearing was conducted, we are not satisfied that, in accordance with s 81(1)(d) of the CAT Act, we can fairly determine the dispute on the basis of the materials before the Appeal Panel. Therefore, pursuant to s 81(1)(e) of the CAT Act, we are remitting the matter back to the Consumer and Commercial Division for a differently constituted Tribunal to redetermine the matter.
3. We note however, that as the tenants have now vacated the premises and the agreement is no longer on foot, several aspects of their claim have become redundant. In particular, the claim for repairs (and for rent to be paid into the Tribunal pending the completion of repairs), the claim regarding the termination notice, and the claims for orders requiring the landlord to comply with the agreement and with the RT Act have become nugatory as a result of the termination of the tenancy, so that they will not need to be considered by the Tribunal when the matter is redetermined.

Costs

1. The tenants have foreshadowed seeking their costs of the appeal and have also applied for their costs of the first instance proceedings. As we explained at the hearing of the appeal, any application in connection with costs of the proceedings at first instance should be brought in the Consumer and Commercial Division of the Tribunal: see Estate of Bovaird v Milstern Retirement Services Pty Ltd [2022] NSWCATAP 174 at [26]. We are making a direction accordingly. We would note however that such an application would appear to us to be premature at this time given that we are remitting the entire matter to the Tribunal to be redetermined and the outcome of the remitted proceedings is not yet known.
2. We are also making directions for the parties to exchange submissions and materials with regard to the costs of the appeal.

Orders

1. For the above reasons we make the following orders: 1. Leave is granted to the appellants to extend the time for filing the appeal to 23 May 2024. 2. The appeal is allowed. 3. The decision made by the Tribunal in 2024/00048278 on 1 May 2024 is quashed. 4. The proceedings are remitted to the Consumer and Commercial Division of the Tribunal, differently constituted, for reconsideration in accordance with these reasons and otherwise according to law. 5. Whether any further evidence is to be allowed in the remitted proceedings is at the discretion of the Tribunal. 6. The appellants are to file and serve submissions and documents on any costs application by 14 days from the date of this decision. 7. The respondent is to file and serve submissions and documents on the costs application by 28 days from the date of this decision. 8. The appellants are to file and serve costs submissions in reply by 35 days from the date of this decision. 9. The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 10. The Appeal Panel may determine it appropriate to deal with any costs application on the papers and without a further oral hearing. 11. The Appeal Panel directs that any application for costs in respect of the proceedings at first instance is to be first made in the Consumer and Commercial Division of the Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2024