This is an internal appeal by Mr Matthew Bryan, a tenant of residential premises in Bundeena, against a decision made by the Consumer and Commercial Division of the Tribunal on 29 June 2015 to dismiss his application to set aside a decision made by the Tribunal in his absence on 19 June 2015. The landlords, Mr and Mrs Gorgievski, are the respondents to the appeal. They have been represented in all proceedings before the Tribunal by their managing agent.
There have been a number of proceedings in the Consumer and Commercial Division relating to disputes between Mr Bryan and Mr and Mrs Gorgievski which are relevant to the background to this appeal. It is therefore convenient to briefly outline these proceedings.
Mr and Mrs Gorgievski commenced proceedings, being RT 15/11553, against Mr Bryan under s 87 of the Residential Tenancies Act 2010 (NSW) (the RTA) seeking termination of his tenancy and possession of the leased premises for failure to pay outstanding rent. On 20 March 2015 consent orders were made by the Tribunal for immediate termination of the residential tenancy agreement between Mr Bryan and Mr and Mrs Gorgievski, possession of the premises, suspension of the order for possession until 31 March 2015 and an order that Mr Bryan pay outstanding rent in the sum of $989.02 on before 27 March 2015. It is unclear whether Mr Bryan paid the outstanding rent (he asserts he did) and he remained in possession.
Mr and Mrs Gorgievski again commenced proceedings (RT 15/31012) against Mr Bryan for termination and possession for failure to pay outstanding rent. These proceedings were resolved by consent orders made on 15 May 2015 to the effect that the residential tenancy agreement would be terminated on 1 August 2015, the order for possession would be suspended until 15 August 2015 and Mr Bryan would pay Mr and Mrs Gorgievski the sum of $1279.02 in two instalments, the first being an instalment of $500 on before 22 May 2015 and the second instalment of $779.02 on before 2 June 2015.
On 1 June 2015, Mr Bryan made a claim against Mr and Mrs Gorgievski under s 187 of the RTA for compensation for the cost of removing trees adjacent to the premises which he alleged were dangerous. He also sought orders that Mr and Mrs Gorgievski carry out repairs to the property. These proceedings, being matter number RT 15/35559, were listed before the Consumer and Commercial Division on 19 June 2015 at 2.15pm. Mr Bryan attended this hearing and directions were made about the filing of evidence. These proceedings were not resolved at the time of the appeal and were listed for hearing on 31 August 2015.
On 9 June 2015 Mr and Mrs Gorgievski commenced proceedings against Mr Bryan, being matter number RT 15/36797, for termination of the residential tenancy agreement based on the failure of Mr Bryan to pay rent from 15 May 2015. These proceedings were also listed for hearing on 19 June 2015 at 9.15am. There is no dispute that Mr Bryan did not attend this hearing and the proceedings were determined in his absence. The Tribunal set aside the orders made on 15 May 2015 and terminated the residential tenancy agreement between Mr Bryan and Mr and Mrs Gorgievski effective from 22 June 2015. The Tribunal also ordered Mr Bryan to pay Mr and Mrs Gorgievski $800 for outstanding rent from 16 May 2015.
Mr Bryan states that he did not attend the hearing because he did not receive notification of the hearing. He filed an application to set aside the termination decision on 26 June 2015. The application for set aside was determined on 29 June 2015 and was dismissed. Mr Bryan filed this appeal on 30 June 2015. He was granted an urgent stay on 7 July 2015 but was nonetheless evicted on that day. While there was no evidence about this, it is possible the relevant officer from the sheriff's office did not receive notice of the stay at the time the writ was executed. In any event, Mr Bryan's stay application was subsequently refused but his possessions have remained in the unit. Mr Bryan states he has been unable to get access to the premises and his possessions. It is clear there is considerable acrimony between Mr Bryan and the managing agent, Ms Shellie Boswell.
Mr Bryan contends he was disadvantaged by the hearing being determined in his absence, although he concedes rent was outstanding at the time of the hearing and that he was, and remains, in difficult financial circumstances. He fractured in his tibia in December 2014 and has been unable to work.
Clause 9 of the Civil and Administrative Tribunal Regulation 2013 gives the Tribunal to discretion to set aside or vary a decision it has made "if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put the Tribunal".
As noted in Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [40] a set aside decision is an "ancillary decision" for the purposes of s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). Under s 80(2)(b) a party may appeal against a decision of the Tribunal (including an ancillary decision) as of right on a question of law or with the leave of the Appeal Panel on any other grounds. Clause 12(1) of Schedule 4 to the CAT Act provides that the Appeal Panel may only grant leave to appeal from a decision in the Consumer and Commercial Division if it is satisfied the appellant may have suffered a substantial miscarriage of justice because the decision under appeal was not fair and equitable or was against the weight of evidence or significant new evidence has arisen, being evidence was not reasonably available at the time the proceedings under appeal will being dealt with.
[2]
The decision under appeal
Mr Bryan's application to set aside the decision made on 19 June 2015 was dismissed on 29 June 2015. The reasons for decision, after outlining the basis for the application, provided as follows:
5. The proceeding was before the Tribunal on 19 June 2015 by reason of the failure of the tenant to comply with orders in proceeding RT 15/11553.
6. The evidence before the Tribunal at the time of the hearing on 19 June 2015 was of orders made by consent on 20 March 2015 in proceeding RT 15/11533, in which the applicant consented to orders that the residential tenancy agreement be terminated and that possession be given on or after 31 March 2015.
7. Those facts were proved and attracted jurisdiction conferred on the Tribunal by the Residential Tenancies Act 2010.
8. Moreover those facts were sufficient to found a further order for termination on 19 June 2015 and for the issue of a warrant for possession at the time that such warrant was issued on 19 June 2015.
9. That being so, the Applicant has not demonstrated in accordance with the requirements of cl 9 of the Regulation that he did not have the opportunity to put his case adequately to the Tribunal, as this occurred on 20 March 2015.
10. For the foregoing reasons, the Tribunal has exercised its discretion and dismissed the application.
The parties did not provide a copy of the application for set aside and, given the relevance of the application, the parties were advised that the Appeal Panel would review the application and the material considered by the Tribunal, in determining the appeal. Neither party objected to this course.
Accordingly, the Appeal Panel reviewed the set aside application. Mr Bryan filed his application on 26 June 2015. In response to the question - "provide reasons why the order should be set aside or varied", Mr Bryan stated:
I was unaware of this hearing RT 15/36797 and I believe that this matter relates to RT 15/35559 and that the real estate agent deliberately lodged this application as a separate issue as the new matter had gone to trial.
He further stated:
I would like all issues resolved in the hearing RT 15/35559 as they are related. The landlord owes approximately $6800 which is far in excess of the $800 Ray White are claiming in rent.
It is clear from the reasons for decision that the Tribunal had access to the file in RT 15/36797, including the reasons, although it is not clear whether the Tribunal also had access to or reviewed the material in file RT 15/35559. The fact that the Tribunal does not refer to these proceedings suggests it did not. The set aside application was determined on the papers.
[3]
Grounds of appeal and submissions of the parties
Mr Bryan's grounds of appeal were that he was unaware of the hearing in RT 15/36797, his claim (RT 15/35559) should be listed with the claim made by the landlord for outstanding rent and termination of the lease, the Tribunal must not have realised the claims were related and his claim for compensation should have been offset against the claim for outstanding rental.
In written submissions provided to the Tribunal a day before the hearing, Mr Bryan provided detailed submissions about the costs he had incurred in removing what he alleged to be a dangerous tree adjacent to the premises, submissions about other faults with the premises, his financial hardship, the failures of the Tribunal and the landlords' agent to ensure he knew about the hearing at 9.15am on 19 June 2015 and the fact that the sheriff took possession of the premises on 7 July 2015 notwithstanding an interim stay had been granted, which left him with further difficulties in being homeless without access to his possessions. Mr Bryan attached medical certificates to his submissions evidencing his incapacity for work as a result of the injury sustained in December 2014, details of temporary housing he had obtained and applications he had made for social housing and an email from the landlords' real estate agent in November 2014 approving removal of the tree.
At the hearing of the appeal, Mr Bryan was requested to provide any relevant submissions on the case that he would have prosecuted if he had been present on 19 June 2015 in defence of the claim for termination and rent arrears and how the outcome may have been different if he had presented his case at the hearing.
Mr Bryan submitted he would have argued both claims should be heard together and that the termination proceedings should be delayed pending the hearing of his matter. Mr Bryan further submitted he may have been able to negotiate a further settlement or repayment plan that would have allowed him to remain in possession. The decision of the Tribunal to dismiss his application to set aside the decision made on 19 June 2015 in his absence was therefore wrong and unfair.
Ms Boswell submitted that by the time the landlords' claim came before the Tribunal on 19 June 2015, this was the third time that the landlords had been required to bring proceedings against Mr Bryan for rent arrears and termination of the lease. She submitted that the landlords would not have entered into further negotiations about a repayment plan in the circumstances where Mr Bryan had failed to meet previous repayment plans. Mr Bryan's claim against the landlords was opposed. Mr Bryan's absence therefore would have made no difference to the outcome.
[4]
Consideration
Clause 9 of the Civil and Administrative Tribunal Regulation gives the Tribunal with discretion to set aside or vary a decision but only where the parties consent (which they did not in this case) or where the decision was made in the absence of a party and the Tribunal is satisfied the party's absence has resulted in their case not being adequately put to the Tribunal. Clause 9(1) provides:
(1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances:
(a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision,
(b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
The question is whether the Tribunal erred in dismissing Mr Bryan's set aside application.
There is no dispute that Mr Bryan was absent and the proceedings were determined in his absence. We accept Mr Bryan did not know of the hearing and if he had known he would have attended. We also accept that if Mr Bryan had attended he would have made the submissions made in his set aside application and in support of this appeal.
After reciting the matters referred to in the reasons, the Tribunal found that Mr Bryan had not demonstrated that he "did not have the opportunity to put his case adequately" and observed that this was because this opportunity had "occurred on 20 March 2015". As already noted, the Tribunal did not refer to proceedings RT 15/35559.
The grounds of appeal, as expressed in the Notice of Appeal, do not raise any identifiable question of law. Furthermore, Mr Bryan did not seek leave to appeal in the application.
The Tribunal must give effect to the guiding principle when exercising functions under the CAT Act, which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36(1)). This is reinforced by s 38(4) which provides that the Tribunal is required 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."
The Appeal Panel is mindful that it may be difficult for self-represented appellants to clearly express their grounds of appeal or, even more challenging, identify a question of law. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the reasons 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: Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69.
Having regard to Mr Bryan's Notice of Appeal and his written and oral submissions, the Appeal Panel discerned that the essence of Mr Bryan's grounds of appeal was that the Tribunal was in error in failing to exercise its discretion to set aside the decision under cl 9 in the circumstances of the case.
The exercise of a statutory discretion can only be overturned in limited circumstances (refer BZE v NSW Public Guardian [2015] NSWCATAP 64 and the authorities cited, House v King (1936) 55 CLR 499 and Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297). As noted in BZE at [15], any attack on a discretionary decision must fail unless it can be demonstrated the decision-maker made an error of legal principle or material error of fact, took into account an irrelevant matter, failed to take into account, or gave insufficient weight to some relevant matter or arrived at a result so unreasonable or unjust as to suggest on of the other errors occurred.
In our view, this finding and the reasoning expressed by the Tribunal to dismiss the application discloses an error of law.
There can be no contest that Mr Bryan did not put his case on 19 June 2015 because he was absent. It is therefore apparent that the Tribunal must be referring to the opportunity for Mr Bryan to adequately put his case [emphasis added].This was in error for two reasons.
It is apparent from the reasons of 19 June 2015 that the proceedings before the Tribunal were proceedings for non-compliance with orders made on 15 May 2015 in RT 15/31012, not the orders in RT 15/11553 made on 20 March 2015. As a result of the consent orders made on 15 May 2015, termination of the tenancy was delayed until 1 August 2015, with possession suspended until 15 August 2015. The Tribunal also ordered the rent arrears of $1279.02 be paid by 2 June 2015 but it is relevant to note that the orders for termination and suspension were not conditional on payment of the arrears. In order to make the termination orders on 19 June the Tribunal needed to exercise its discretion under s 188 of the RTA to set aside the orders made on 15 May 2015. Section 188 gives the Tribunal discretion to vary or sets aside, or stay or suspend the operation of, any order made in proceedings or earlier proceedings before the Tribunal under the RTA.
In finding that the orders made on 19 June 2015 related to non-compliance with the orders made on 20 March 2015, the Tribunal made a factual error. The error was material because the case before the Tribunal on 19 June 2015 raised different issues to those raised on 20 March 2015. This was the third hearing of an application by Mr and Mrs Gorgievski for termination of the residential tenancy agreement and there had been numerous dealings between Mr Bryan and the managing agent by this time, including the commencement of proceedings by Mr Bryan. As at 19 June 2015, the Tribunal did not have power to terminate Mr Bryan's tenancy unless it exercised its jurisdiction under s 188 of the RTA. There can be no contest that Mr Bryan did not address this issue at the hearing on 19 June 2015, nor did he have the opportunity to do so, because he was not present. It is therefore not correct to say that Mr Bryan had the opportunity to put his case adequately on 19 June 2015 because he had already had this opportunity on 20 March 2015, the inference being that both cases raised the same issues. Clearly they did not.
However, the second, but more fundamental issue is that the reasons either disclose an error in applying the set aside provisions or, at the very least, in explaining the reasoning process applied.
Clause 9 involves a two stage process (Hammond v Ozzy's Cheapest Cars Pty Ltd and CMT [2014] NSWCATGD 11). First, the Tribunal must consider whether its discretion is enlivened, either because the parties consent to a decision being set aside or varied or because the decision was made in the absence of a party and the Tribunal is satisfied that the absence has resulted in the party's case not being adequately put. If the discretion is enlivened, the Tribunal must then consider how to exercise the discretion. The principles relevant to the exercise of the discretion are set out in Hammond v Ozzy's Cheapest Cars Pty Ltd at [74] to 81]. The central question identified by the Appeal Panel at [76] is "whether there is a real likelihood that it would be unjust to let the decision sought to be set aside stand". Relevantly, the Appeal Panel also noted at [79] citing Kyriakou v Long [2013] NSWSC 1890 at [33] and [55]:
Injustice will only be likely to result if the party seeking to set aside the decision has an arguable defence or an arguable case that a different decision could have been reached. If not, setting aside the decision would be futile.
In the absence of consent by the parties, the Tribunal only has jurisdiction to exercise the discretion under cl 9 to set aside or vary a decision if a party was absent and the Tribunal is satisfied the party's absence resulted in the party's case not being adequately put to the Tribunal [emphasis added]. Namely, there must be sufficient causal connection between the two matters referred to in subcl 9(1)(b). It is not necessary for the Tribunal to be satisfied that the party's case had reasonable prospects nor is it incumbent on the party to establish that they did not have the opportunity to put their case. This is not a requirement of the first limb of cl 9 of the Regulation. However, if a party is unable to identify any case or if the party has chosen not to attend the hearing and makes submissions in writing, it would be open to the Tribunal to find it is not satisfied that the first limb of cl 9 has been established. Of course, once the discretion is enlivened these matters will be highly relevant to the exercise of the discretion (refer Hammond v Ozzy's Car Sales Pty Ltd at [80]).
The Tribunal's reasons record at [9] that the Tribunal was not satisfied Mr Bryan had demonstrated "in accordance with the requirements of cl 9 of the Regulation that he did not have the opportunity to put his case adequately to the Tribunal". The matters that the Tribunal had regard to in forming this view are set out in [5] to [8] and in [9]. In summary, the Tribunal found there were orders for termination and possession effective from 31 March 2015, this was sufficient to found a further order for termination on 19 June 2015 and Mr Bryan previously (on 20 March 2015) had the opportunity to adequately put his case.
While the reasons are brief, and there is no criticism of this, the language in [9] suggests that the Tribunal was focussing on cl 9(1)(b) in this paragraph and concluded, wrongly in our view, that the relevant consideration was whether Mr Bryan had the "opportunity" to put his case adequately. As already noted, this is not the critical question in cl 9(1)(b) but will be relevant to the second limb, namely the exercise of discretion once the threshold matters to enliven jurisdiction are established. It was apparent from Mr Bryan's grounds of appeal and written submissions that he could not understand how his case could have been put adequately to the Tribunal on 19 June 2015 when he was not at the hearing and had not lodged any material with the Tribunal, nor had he been directed to do so. The Tribunal stated at [10] that it had exercised its discretion and dismissed the application. This suggests, although arguably inconsistent with [9], that the Tribunal in fact found it had jurisdiction to exercise the discretion under cl 9 but decided not to exercise the discretion in Mr Bryan's favour. It is therefore unclear whether the Tribunal was referring to both limbs of cl 9 in [9], what test the Tribunal was applying and how it was applied. This may disclose an error in applying and interpreting cl 9 or it may disclose inadequacy in the reasons. Either one is an error of law.
Having determined that the Tribunal was in error, the question is how to dispose of the appeal.
In determining an internal appeal, the Appeal Panel has broad powers under s 81 of the CAT Act and may make such orders as it "considers appropriate in light of its decision" on the appeal. Those orders include, but are not limited to, orders that the appeal be allowed or dismissed, the decision under review be confirmed, affirmed or varied, the decision under appeal be quashed or set aside, the decision under appeal be quashed or set aside for another decision to be substituted or that the whole or part of the case be reconsidered by the Tribunal, either with or without further evidence, according to the directions of the Appeal Panel.
If a decision-maker makes an error of law this does not necessarily mean the decision should be set aside unless the error is material and may have made a difference (Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAP 82 at [23] and the authorities cited, including Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321).
While we have concluded that the Tribunal committed error in the way it proceeded to determine the set aside application, we are not satisfied that the error made a difference or that there was an injustice.
The decision was clearly open to the Tribunal in the exercise of its discretion. It is apparent from Mr Bryan's submissions that he had no defence to the claim for rent arrears, he could not have paid the arrears or made a significant contribution towards them and had little prospect of persuading the landlords about a further repayment plan. Mr Bryan stated that would have asked for both residential tenancy disputes to be resolved at one time. However, the case for termination was strong and Mr Bryan's case for compensation was contested, had not been raised at any of the previous hearings, which he had attended, and could not be used as a set off for the arrears, which by 19 June 2015 were over $2000. There is no contest that Mr Bryan has not paid rent since late March 2015. While the Tribunal had discretion whether or not to make an order under s 188 of the RTA, it is unlikely the result would, or indeed should, have been any different.
We are therefore not satisfied it would be appropriate to set aside the decision made on 29 June 2015 and either remit this matter for reconsideration or hear the application under s 80(3) of the CAT Act when we have formed the view that the same decision would be made. Relevantly, this does not affect Mr Bryan's rights to pursue compensation in RT 15/35559.
[5]
Conclusion
For these reasons, the Appeal Panel has decided to dismiss the appeal.
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
[6]
Amendments
07 September 2015 - typo in catchwords
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Decision last updated: 07 September 2015
Parties
Applicant/Plaintiff:
Matthew Bryan
Respondent/Defendant:
Lilly Gorgievski and Les Gorgievski
Legislation Cited (3)
Civil and Administrative Tribunal Regulation 2013(NSW)