Mitchell v Wood

Background

1. The parties were once a domestic couple and were joint lessees of residential premises at Elland, NSW.
2. On entry into the lease a bond was paid pursuant to the terms of the lease, and the bond was paid to the Rental Bond Board.
3. There is no dispute between the parties that the entirety of the bond was paid by the respondent.
4. Disputes arose between the parties and they ceased to be a domestic couple. The respondent moved to a different residence.
5. The lease ended. The landlord made no claim on the bond. The respondent commenced proceedings in the Tribunal seeking the payment of the full bond to herself. The appellant sought payment of part of the bond to himself.
6. Directions were made by the Tribunal in the usual course for the filing and exchange of evidence in preparation for the hearing. No documents were filed or served by the appellant.
7. A Notice of Hearing stating that the hearing of the proceedings would take place on 10 August 2020 was emailed to the appellant on 26 June 2020. The appellant does not dispute receiving that Notice.
8. On 10 August 2020 the respondent appeared at the hearing, but the appellant did not. The Tribunal tried to telephone the appellant twice at the commencement of the hearing but without success. The appellant does not dispute that fact.
9. The Tribunal proceeded to hear the proceedings as it was satisfied the requirements of Rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the "Rules") were met. Rule 35(1) and (2) are as follows: 35 Ex parte proceedings in Consumer and Commercial Division (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Where a hearing is held for proceedings to which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if - (a) the Tribunal is satisfied that notice of the hearing was duly served on the party, or (b) the Tribunal, being satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party.
10. The Tribunal was satisfied that that notice of the hearing was duly served on the appellant and that it was in the interests of justice to proceed to hear the matter.
11. The Tribunal found that the respondent had paid the whole of the bond at the commencement of the tenancy and was entitled to it in its entirety.
12. Section 175 of the Residential Tenancies Act 2010 (NSW) provides that the Tribunal may make an order for the payment of the bond to a person who has an interest in it. Section 175 says: The Tribunal may, on application by a landlord or tenant or any other person (including a former co-tenant) who has an interest in the payment of a rental bond, make an order as to the payment of the amount of the rental bond
13. The Tribunal accordingly directed the Rental Bond Board to pay the whole of the bond to the respondent.

The Appeal

1. The appellant filed a Notice of Appeal. In the Notice of Appeal, he said that at the time of the hearing he was in Tamworth Hospital undertaking a post-operation examination and removal of stitches in relation to compound fractures and tendon damage in one of his legs and therefore could not answer his phone.
2. He tendered what was said to be a screenshot of text messages confirming his appointment. The relevant text message says: "Reminder to Blake appt at Tamworth Outpatient Centre Level 1 on 10/08/2020 10.15. If UNABLE to attend call 67677699."
3. This text was dated 7 August 2020, approximately six weeks after he had been notified of the hearing date by the Tribunal. Self-evidently, he did not take up the Hospital's invitation to call the number provided to say he was unable to attend and to arrange an alternative appointment. Nor did he communicate to the Tribunal after having received that text message to seek an adjournment of the hearing if for some reason the medical appointment could not be changed or was urgent.
4. The appellant also seeks to tender evidence to the effect that he was entitled to one half of the bond because he had made various payments for other matters in relation to the tenancy.

Decision

1. The only possible ground of appeal which we discern might be available to the appellant (he did not identify any other ground) is a denial of procedural fairness, arising either as a question of law or by grant of leave to appeal pursuant to cl 12(1) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) - see Collins v Urban [2014] NSWCATAP 17 at [77] - which provides that: 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 …
2. In our opinion there was no procedural unfairness. The Tribunal was satisfied that the hearing date had been duly notified (and the appellant does not submit that he was unaware of the date and time of the hearing) pursuant to r 35(2)(a) of the Rules.
3. Accordingly, the Tribunal had acted in accordance with its statutory duties and had afforded procedural fairness - see Souleles v Todd [2016] NSWCA 91 at [30] regarding the same conclusion in relation to relevantly similar facts and equivalent provisions under the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) and Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW).
4. Although the Tribunal said that the interests of justice required the matter to be dealt with in the absence of the appellant, that finding was strictly unnecessary as such a finding is only applicable to circumstances falling within r 35(2)(b), namely where the Tribunal is satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, neither of which were mentioned in the Tribunal's reasons.
5. Neither of those circumstances appear to be present here as the Notice of Hearing was emailed to the appellant (as is allowed by r 16 and as was mentioned by the Tribunal in its reasons) and the appellant does not suggest he was unaware of the hearing date. Rather, he offers up an excuse for not answering the phone when the Tribunal telephoned him (his appearance was to be by telephone).
6. Where procedural unfairness (or denial of natural justice) is proved the ordinary remedy is an order for a new trial. But before an order for a new trial is made an appellant must demonstrate that, had the procedural unfairness not occurred, there was a possibility of a different result to that which had occurred. That is, in this case, had the appellant appeared at the hearing and given the evidence he desired to give, was there a possibility of a different result?
7. In Stead v State Government Insurance Commission [1986] HCA 54; [1986] 161 CLR 141 the High Court said at p.145: "Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
8. Having decided that there was no procedural unfairness (or denial of natural justice) to the appellant, we need not decide this point. But had we been required to do so we would have found that what the defendant says would not have given rise to the possibility of any different order than that which was made.
9. The respondent's claim on the bond arose because she had an interest in that bond in that all the funds were hers, a fact the appellant does not dispute. He does not assert an interest in the bond, rather he asserts that the respondent owes him money for other things and thus what he is owed should be paid out of the bond. As this claim does not give him an interest in the bond, as required by s 175 of the Residential Tenancies Act, there is no possibility that there would be a different order made if a new hearing were ordered.

Orders

1. The appeal 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: 16 December 2020