McKerlie v Leeser

Notice of Appeal, issues raised and hearing of the appeal

1. The tenant filed a Notice of Appeal on 16 November 2022. The appeal was filed in time. As usual, directions were made at the call over of the appeal for the filing and service of evidence and submissions in support of each party's position. The parties subsequently filed documents.
2. The appeal was heard on 18 January 2023. Various preliminary issues arose for determination to which we will briefly refer.
3. In respect of the tenant, he filed an amended Notice of Appeal on 21 December 2022. Attached to that document were submissions in support of the tenant's appeal. Leave was not opposed by the landlord. Leave was granted by the Appeal Panel at the hearing of this appeal on 18 January 2023.
4. At the hearing, the landlord sought leave to be represented by the agent. The application was made under s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). This was opposed by the tenant. We made orders granting that leave and provided oral reasons at the hearing. That leave permitted representation in this appeal only, it being noted that the proceedings at first instance are yet to be determined at a final hearing.
5. The tenant also raised an issue of bias. In part, this involved the tenant seeking to enquire of the Appeal Panel Members about their personal affairs as well as asking of the Appeal Panel Members whether they had any dealings with, or association with, parties in these appeal proceedings. Having been informed by the Appeal Panel Members that, to their recollection, they had no association with either of the parties or the agent, the tenant did not pursue any application in connection with this topic.
6. As to the substantial issues raised on the appeal, they were identified at the hearing as follows: 1. Was there a "decision" made by the Tribunal on 2 November 2022 which could be the subject of an application for leave to appeal under s 80(2)(a) of the NCAT Act. In this regard the tenant accepted that any decision made on 2 November 2022, including any refusal to make a decision, was an interlocutory decision for which leave of the Appeal Panel was required. 2. If so, should leave to appeal be granted. In this regard the parties attention was drawn to decisions such as Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 (Champion Homes) and the principles applicable to the grant of leave. 3. Alternatively, the tenant said that the Appeal Panel should refer to the Supreme Court of New South Wales a question of law. Such a referral can be made under s 54 of the NCAT Act.
7. As to the errors said to have been made by the Tribunal, these were identified as follows: 1. The decision of the Tribunal was unjust. There was a refusal to deal with the application concerning leave for representation. The failure to deal with this matter as a preliminary point meant that the tenant was denied an opportunity to negotiate in good faith with the landlord. In this regard, various assertions were made by the tenant concerning the conduct of the agent, including allegations of criminal misconduct and that the agent had misled the Tribunal and thereby contravened s 71 of the NCAT Act. 2. In addition to any injustice to the tenant, the tenant said there was an injustice that might be suffered by the landlord if the application for representation by the landlord was denied at a final hearing. We understood this was because the landlord may end up being unrepresented at the hearing and not in attendance if leave was refused.
8. As to the orders sought if leave to appeal was granted and the appeal allowed, the tenant identified these orders as follows: 1. an order that the agent be refused leave to represent the landlord in applications RT 22/43591 and RT 22/44479. 2. That the question raised in this appeal we referred to the Supreme Court of New South Wales for public policy reasons. 3. That an order be made by the Tribunal pursuant to s 187(1)(h) of the RT Act for the Secretary to appoint an agent as the Secretary is permitted to do under s 206 of the Act.

Consideration

1. As stated above, there was no dispute that leave to appeal is required.
2. It is convenient to deal with the issues raised under the following headings: 1. Was there a decision to which could be the subject of an application for leave to appeal; 2. If yes, should leave be granted and, if so, what orders should be made; 3. If no, should an order otherwise be made to refer a question of law to the Supreme Court.

Was there a decision to which could be the subject of an application for leave to appeal?

1. An interlocutory decision is appealable with leave: NCAT Act s 80(2)(a).
2. Section 5 of the NCAT Act relevantly defines a decision as follows: 5 Meaning of "decision" (1) In this Act, decision includes any of the following - (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing. (2) For the purposes of this Act - … (c) a refusal of a decision-maker to make a decision under enabling legislation or this Act because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act to refuse to make the decision requested, and …
3. In circumstances where no formal order was made, the tenant nonetheless submitted that there was a refusal by the Tribunal on 2 November 2022 to make a decision which itself was an appealable decision.
4. Reliance was placed on a transcript of the hearing on 2 November 2022. This transcript became Exhibit A in the appeal. It is sufficient to set out the following transcript excerpts recording the exchange between the tenant and by the Tribunal on this matter: … Mr McKerlie: Well, ah, Member, the preliminary point that we haven't addressed is the further involvement of Brescic Whitney in these proceedings and in the tenancy. Member: Brescic Whitney being the agent? Mr McKerlie: Yes. Member: Well, I don't have any jurisdiction, I don't think, to address. What is your concern about that? Mr McKerlie: Ah, Member, that the filing of the application that's before the Tribunal today constitutes an offence under section 71 of the Civil and Administrative Tribunal Act. Member: On what basis? Mr McKerlie: That it is materially false. Member: Then that a matter for the hearing, serve. I can't make that determination now, that's obviously disputed by the landlord. Mr McKerlie: I make the submission that the Tribunal has inherent jurisdiction over the representation of the parties. Member: And I determined to exercise my jurisdiction by adjourning this matter for hearing for that matter to be finalised and determined at the final hearing. Mr McKerlie: Very well, member. Member: Thank you.
5. It is clear from the language of the NCAT Act that a refusal to make a decision is itself a decision within the definition of "decision". Consequently, such a decision is an internally appealable decision within the meaning of s 32(4) of the NCAT Act.
6. We are satisfied that the tenant identified the decision which he was asking the Tribunal to make was a decision about "the further involvement of [the agent] in [the original proceedings] and in the tenancy". We are also satisfied the Tribunal declined to make a decision in relation to that matter, directing that it be dealt with at the final hearing. This was a refusal to make a decision.
7. Consequently, there is a decision made by the Tribunal about which the tenant can seek leave to appeal.

If yes, should leave be granted and, if so, what orders should be made?

1. The principles applicable to the grant of leave to appeal an interlocutory decision were summarised by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35]. There the Appeal Panel said: 35 As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave.
2. The tenant submitted that leave should be granted for the following reasons: 1. That there was a public interest in a party to proceedings dealing with a representative who is acting in good faith. Statements were made in the application commencing the landlord's proceedings which were materially false. This is a relevant consideration in the grant of leave. 2. It is trite law that any judicial body has inherent jurisdiction in common law to regulate proceedings; 3. Issues of representation should take account of allegations of criminal conduct; 4. Public confidence in the operation of the Tribunal requires allegations of criminal conduct to be dealt with expeditiously rather than put off and avoided.
3. These oral submissions were supported by written submissions which made numerous allegations of misconduct against both the agent and various Members of the Tribunal who had dealt with the proceedings at first instance. In making these submissions, the tenant noted that he had legal qualifications and had practised in various jurisdictions in Australia. It is unclear whether he still practices as a legal practitioner.
4. The personal attacks and allegations made against individual Members are unfounded and should not have been made.
5. As to the issues raised concerning the agent, the residential tenancy agreement and the involvement of the agent in assisting the landlord in connection with the management of the subject property and these proceedings, again these claims were unsupported by any evidence provided to the Appeal Panel. It is clear from the position of the landlord that these allegations are in contest, and, as the Tribunal determined (as recorded in the transcript which we have set out above), to the extent these matters are relevant and remain in contest they should be dealt with at a formal hearing of the original proceedings.
6. Be that as it may, there is no matter of public interest or a matter of principle that would warrant the grant of leave to appeal in this case. The question of the interpretation and operation of s 45 of the NCAT Act has been dealt with in previous decisions of this Tribunal: see e.g. Rodny v Stricke [2018] NSWCATAP 136. The issues which the tenant identifies as matters of public interest are, in truth, issues to be determined by in the context of the particular facts of this case.
7. No decision was made on 2 November 2022 to permit the agent to appear at the final hearing to represent the landlord. This remains a matter to be determined by the Tribunal, if it does not otherwise do so before the final hearing.
8. In passing, we note the determination of the allegations made by the tenant may be relevant to the exercise of discretion under s 45 as well as the substantive issues raised in the original proceedings. As such, we do not see any error in the approach adopted by the Tribunal in proceeding in a manner which it did.
9. As to the submission that the failure of the Tribunal to deal with the issue of representation meant that the tenant had lost an opportunity to negotiate with the landlord, two points can be made about this submission.
10. Firstly, when the Appeal Panel inquired whether the parties thought there might be a possibility of a settlement being achieved, both parties indicated the answer to this question was no.
11. Secondly, to the extent that the tenant wishes to have direct discussions with the landlord concerning settlement, there is nothing to prevent the tenant from making such an approach and making any offer which he considers appropriate.
12. Finally, the submission that this Tribunal has inherent jurisdiction arising from the common law is wrong and is rejected. The jurisdiction of this Tribunal is derived from statute only. The powers which this Tribunal has are those granted by the relevant legislation expressly or by necessary implication: Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435 [1999] HCA 19 per Gaudron, Gummow and Callinan JJ at [50].
13. It follows that leave to appeal should be refused.

If no, should an order otherwise be made to refer a question of law to the Supreme Court?

1. There is power of the Tribunal, including the Appeal Panel, to refer a question of law arising in proceedings to the Supreme Court of New South Wales for its opinion: NCAT Act s 54(1).
2. There are two reasons why an order should not be made under this section.
3. Firstly, no relevant question has been framed that, in our view, would be appropriate to submit to the Court for its consideration. The submission (at para 6 of the written submissions) that the Appeal Panel should "simply and immediately referred this appeal to the Supreme Court" misconstrues the nature of the power under s 54.
4. Secondly, for the reasons set out above, the resolution of the issues raised in the present case will, necessarily, involve a determination of various factual matters which are in dispute. This is a reason counting against referral: see e.g. relevant factors for exercise of discretion in The Owners - Strata Plan No. 80412 v Vickery [2019] NSWCATAP 71 at [72].
5. Consequently, the application to refer a question of law is dismissed.

Orders

1. The Appeal Panel makes the following orders: 1. The application for leave to appeal is refused and the appeal is otherwise dismissed. 2. The application to refer a question of law under s 54 of the Civil and Administrative Tribunal Act 2013 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 January 2023