[2010] HCA 32
McSteen v Architects Registration Board of Victoria [2018] VSCA 96
Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36
[2020] NSWCCA 220
PR v MDM [2020] NSWCATAP 151
Raulfs v Fishy Bite Pty Ltd
Fishy Bite Pty Ltd v Raulfs [2012] NSWCA 135
Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39
Thomas v R (1937) 59 CLR 279
Source
Original judgment source is linked above.
Catchwords
[2015] FCAFC 92
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390[2010] HCA 32
McSteen v Architects Registration Board of Victoria [2018] VSCA 96
Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36[2020] NSWCCA 220
PR v MDM [2020] NSWCATAP 151
Raulfs v Fishy Bite Pty LtdFishy Bite Pty Ltd v Raulfs [2012] NSWCA 135
Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39
Thomas v R (1937) 59 CLR 279
Judgment (15 paragraphs)
[1]
Introduction
The tenant in the tenant's appeal submissions:
1. refers to Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 (Chase Oyster Bar) at [158];
2. submits that the essential precondition of a valid termination notice under s 88(1)(a) of the RT Act was not met because the rent subsidy received by the landlords from DCJ Housing was not applied to the arrears of rent of the tenant.
Before dealing with amended ground of appeal it is necessary to set out the applicable provisions of the RT Act and legal principles.
[2]
The applicable provisions of the RT Act
Part 5 Division 2 (ss 84-95) contains provisions relating to the termination of residential tenancy agreements by a landlord. Section 87 deals with termination where there is a breach of a residential tenancy agreement, and relevantly provides:
87 Breach of agreement
(1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement.
(2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given.
(3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement.
(4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that -
(a) the tenant has breached the residential tenancy agreement, and
(b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and
(c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
(5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following -
(a) the nature of the breach,
(b) any previous breaches,
(c) any steps taken by the tenant to remedy the breach,
(d) any steps taken by the landlord about the breach,
(e) the previous history of the tenancy.
…
Section 88 deals with termination notices for non-payment of rent or charges, and relevantly provides:
88 Termination notices for non-payment of rent or charges
(1) A termination notice given by a landlord on the ground of a breach of the residential tenancy agreement arising solely from a failure to pay -
(a) rent, or
(b) water usage charges, or
(c) charges for the supply of electricity, gas or oil (utility charges),
payable by the tenant (a non-payment termination notice) has no effect unless the rent has, or the water usage charges or utility charges have, remained unpaid in breach of the agreement for not less than 14 days before the non-payment termination notice is given.
…
[3]
The applicable legal principles
In Chase Oyster Bar two members of the New South Wales Court of Appeal considered the principles for identifying jurisdictional error: at [33]-[45] (Spigelman CJ); at [153]-[177] (McDougall J).
As we do not apprehend that there is any substantial difference in their respective statement of principles, we have set the relevant statements of principle of McDougall J. He cited authority at [158] that there are the following three categories of jurisdictional error:
1. the mistaken denial or assertion of jurisdiction, or (in a case where jurisdiction does exist), misapprehension or disregard of the nature of or limits on functions and powers;
2. entertaining a matter or making a decision of a kind that lies, wholly or partly, outside the limits on functions and powers, as identified from the relevant statutory context;
3. proceeding in the absence of a jurisdictional fact; disregarding something that the relevant statute requires to be considered as a condition of jurisdiction, or considering something required to be ignored; and misconstruction of the statute leading to misconception of functions.
As to the category of jurisdictional error of proceeding in the absence of a jurisdictional fact, McDougall J at [163]-[169] said:
"163 As Gleeson CJ and McHugh J observed in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 523-524[24], "[j]urisdiction is the authority to decide".
164 A "jurisdictional fact" is, in general terms, "a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question" (Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at 139[43]).
165 Spigelman CJ pointed out in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 63-64[37] that "[t]he parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality)". As his Honour said at 64[38], those two features "are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense". The interrelationship arose because essentiality may often suggest objectivity.
166 Whether something is a jurisdictional fact is ascertained by a process of construction, undertaken in the usual way. The court will have regard to the full statutory context and to the object that the legislation seeks to achieve. One asks, in essence, whether the legislature intended that the presence or absence of the factual condition should invalidate an attempted exercise of power: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391[93] (McHugh, Gummow, Kirby and Hayne JJ).
167 A jurisdictional fact may be the existence or non-existence of a specified state of affairs. For simplicity, I will talk only in terms of a jurisdictional fact as the existence of a specified state of affairs. The legislature may specify that the existence of that state of affairs - the jurisdictional fact - is essential to the exercise of statutory power. Or it may go further, and specify as well that the donee of the power is authorised to decide, authoritatively, the existence of the jurisdictional fact.
168 In the former case, if the exercise of power is challenged on the basis that the jurisdictional fact does not exist, the court must itself inquire into the existence of that fact. It may grant relief against the exercise of jurisdiction if it finds that the jurisdictional fact did not exist.
169 In the latter case, the court inquires into the primary decision-maker's decision that the jurisdictional fact exists, but does not itself inquire into the existence of that jurisdictional fact."
[4]
Consideration
While the tenant in the tenant's appeal submissions refers to the first limb of the first category of jurisdictional error in [56(1)] above, we understand that amended ground of appeal 1 is referring to the first limb of the third category of jurisdictional error in [56(3)] above.
If amended ground of appeal 1 is properly to be understood as referring to the first limb of the third category of jurisdictional error in [56(3)] above, then we are satisfied that on the proper construction of s 87(4) of the RT Act the existence of the three matters in paras (a) to (c) are jurisdictional facts and that the Tribunal has authority to decide whether they exist. We are also satisfied that the Tribunal at [12] and [20] found that the three jurisdictional facts existed. In accordance with Chase Oyster Bar at [169], it is inappropriate that we inquire into the existence of these jurisdictional facts or as to whether the 18 May 2022 termination notice complied with s 88(1) of the RT Act. It follows that there was no jurisdictional error by the Tribunal.
If amended ground of appeal 1 is properly to be understood as referring to the first limb of the first category of jurisdictional error in [56(1)] above, then we are satisfied that the Tribunal had jurisdiction to make a termination order under s 87(4) of the RT Act.
For these reasons we reject amended ground of appeal 1.
[5]
Amended ground of appeal 4
The letter dated 7 April 2022 of DCJ Housing to the landlords (the 7 April 2022 DCJ Housing letter) relevantly provided:
"This letter is to let you know that the Department of Communities and Justice Housing (DCJ) has approved the payment of a Rent Choice subsidy for Ms Hailee Moffatt for the property at [address omitted] Richmond Lowlands NSW 2753. The market rent for the property is $380.00 per week.
The subsidy helps a client to rent in the private rental market. Under this program, Ms Kailee Moffatt is required to pay $194.50 per week and DCJ Housing will pay $185.50. This payment is due to commence on 7th April 2022.
DCJ Housing accepts responsibility for $185.50 per week of rent in the form of a subsidy payment as long as the client meets relevant eligibility criteria.
The subsidy payments are made directly to you and are paid 28 days in advance by DCJ Housing.
Frequency and method of the remaining payment of $194.50 required by Ms Hailee Moffatt is to be arranged between Robert Muscat & Frank Muscat and the tenant."
The payment advices of DCJ Housing sent to the landlords relevantly specified the periods for which the rent subsidy was payable.
We are satisfied that the 7 April 2022 DCJ Housing letter and the payment advices support the finding of the Tribunal in the Tribunal Decision at [12] that "the public purpose of the rental subsidy which is to satisfy part (not all) of the rent owed by a tenant on the basis that the tenant remains responsible for the remainder of the rent payable."
For these reasons we reject amended ground of appeal 4.
[6]
Amended ground of appeal 8
In Bauskis v Liew [2013] NSWCA 297 (Bauskis) at [67]-[70] Gleeson JA (with Beazley P at [1] and Barrett JA at [2] agreeing) stated the obligation of a court to afford procedural fairness to an unrepresented litigant (citations omitted):
"67 First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: …
68 Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: …
69 Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: ….
70 Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: ….
Section 38 of the NCAT Act relevantly provides:
38 Procedure of Tribunal generally
…
(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.
…
The Tribunal as recorded in the 13 January 2023 transcript stated during the hearing:
"[In relation to determining whether the termination notice was valid]
Member: "it's complicated, because it will require me to make a finding about whether Ms Moffatt is entitled to the benefit of the rent paid in advance by DCJ."
The tenant in the tenant's appeal submissions did not identify an authority that requires the Tribunal to articulate reasons for rejecting the case of a litigant to be put to the litigant during the hearing.
[7]
Whether leave to appeal should be granted against orders 1 to 6 of the 17 January 2023 orders on any of grounds 1 to 8 of the amended grounds of appeal which do not give rise to a question of law and ground 9 of the amended grounds of appeal
[8]
Introduction
As we have decided that amended grounds of appeal 2, 3, 5, 6 and 7 do not raise questions of law, we have considered whether leave to appeal should be granted in respect of these grounds. We have also considered whether leave to appeal should be granted in respect of ground 9 of the amended grounds of appeal. It is convenient to deal with grounds 2, 3, 5 and 6 together and grounds 7 and 9 together.
[9]
Amended grounds of appeal 2, 3, 5 and 6
As conceded by Ms Crowley-Shaw in her oral address, amended grounds of appeal 2, 3, 5 and 6 are different ways of expressing that there was no trust in respect of the rent choice subsidy received by the landlords from DCJ Housing.
The Tribunal relevantly:
1. accepted the landlords' submissions and relied on payment advices received by the landlords from DCJ Housing in respect of the rent choice subsidy in finding that there was a trust of $742.00 as at 18 May 2022: Tribunal Decision at [10]-[11];
2. found that rent paid by the tenant and the rent choice subsidy payments received by the landlords from DCJ Housing were recorded in the one rent record: Tribunal Decision at [14].
The tenant in the tenant's appeal submissions and Ms Crowley-Shaw in her oral address contended that the landlords should have applied the rent choice subsidy received from DCJ Housing to the arrears of rent of the tenant and that no trust arose in respect of these monies.
Ms Muscat in her oral address supported the Tribunal Decision that there was a trust in respect the rent choice subsidy received by the landlords from DCJ Housing.
In Raulfs v Fishy Bite Pty Ltd; Fishy Bite Pty Ltd v Raulfs [2012] NSWCA 135 the appellant contended that there was a resulting trust of the type recognised in Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567. Campbell JA (with Meagher JA at [113] and Barrett JA at [114] agreeing) at [32]-[51] set out the principles for the establishment of a Quistclose trust, and relevantly said:
"41 In Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (in liq) (1978) 141 CLR 335, Mainline was a builder which encountered financial difficulties when it had partly completed a building project. The proprietor of that building project called on a bank security guarantee that Mainline had provided to it, and used part of the proceeds to pay subcontractors that Mainline had left unpaid. The dispute concerned the unexpended balance of the amount paid under the guarantee. The majority in the High Court held that the proprietor was not obliged to pay the unexpended balance to the bank.
42 Gibbs ACJ (Jacobs and Murphy JJ agreeing) said at 353 that the decision in Quistclose:
"... is authority for the proposition that where money is advanced by A to B, with the mutual intention that it should not become part of the assets of B, but should be used exclusively for a specific purpose, there will be implied (at least in the absence of an indication of a contrary intention) a stipulation that if the purpose fails the money will be repaid, and the arrangement will give rise to a relationship of a fiduciary character, or trust."
43 Notwithstanding that Gibbs ACJ referred to "the argument advanced by counsel for the Bank in reliance on the decision in Barclays Bank Ltd v Quistclose Investments Ltd" (353), it appears that in truth counsel for the Bank advanced a somewhat different argument to that which had been advanced in Quistclose. Gibbs ACJ continued at 353:
"In the present case it was submitted not that a trust was created, but that there was a contract express or implied between the appellant and the bank that so much of the money as was not spent in the discharge of the obligations of Mainline would be refunded to the Bank. However, there was no evidence from which it can be concluded that it was intended that the money should not form part of the general assets of Mainline. There was no requirement that it should be kept in a separate fund; in this report the provisions under which the security was given - those of cl 30(c) - may be contrasted with those of cl 30(d) which require the retention fund to be paid to an interest bearing deposit in joint names, the amount of which was to be held in trust. Further, the obligations of Mainline under the contract were various, and the likely amount of Mainline's final liability to the appellant was quite unknown when the guarantee was given. The payment by the bank was not a provisional payment, or a payment on account; the money was provided as a security and was used for that purpose. In all these circumstances it should be concluded that the intention of the parties to the guarantee was that the money was to form part of the general assets of the appellant, to be used as it wished, subject only to an obligation to account (to Mainline) for any surplus. No stipulation to repay the money to the bank can be implied."
…
48 Notwithstanding some earlier uncertainty arising from the decision in Commissioner of Stamp Duties (Qld) v Jolliffe (1920) 28 CLR 178 it is now clear that in deciding whether there is an intention to create a trust, the court ascertains that intention by inference from the outward manifestations of intention: Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 at [53]-[59], [102]-[115]. Thus, the task of ascertaining whether there is an intention to create a trust and, if so, on what terms is a similar one to ascertaining the intention of parties to a contract for the purpose of deciding whether there is an intention to enter contractual relations and the terms of any contract that has been entered. The sort of factors that Gibbs ACJ considered in Mainline are relevant to whether there is the sort of trust that was recognised in Quistclose.
49 Young, Croft and Smith, On Equity (2009) Lawbook Co, at [6.1020] said, correctly:
'Cases in this area will often depend on a close analysis of the facts, and in particular, whether the person who provided the money annexed a trust or equitable obligation that it was only to be used for the nominated purpose. The mutual intention of the parties ... will be important. A trust will not necessarily arise just because a lender inquires into the purpose for which a loan is sought and money is paid over for that particular purpose."
[10]
Amended grounds of appeal 7 and 9
The findings of the Tribunal as to the accuracy of the rent record are in the Tribunal Decision at [14]-[16].
Contrary to ground 7 of the amended grounds of appeal, the Tribunal did not make a finding that "the rent record provided by the landlord was a reliable business record of rent paid in relation to the tenancy". The Tribunal in the Tribunal Decision at [14] found that the rent record "has the appearance of a reliable business record." The Tribunal in the Tribunal Decision at [15] found that the rent record was accurate except for the failure to credit $390.00 paid by the tenant.
The tenant in the tenant's appeal submissions or Ms Crowley-Shaw in her oral address did not explain how these findings were not fair and equitable or against the weight of the evidence.
In the absence of any submissions in support of grounds 7 and 9 of the amended grounds of appeal except for the error of $390.00 which the tribunal took into account in determining the amount of the arrears of rent of the tenant, we are not satisfied that the tenant has established that she may have suffered a substantial miscarriage of justice on the basis that the decision of the Tribunal under appeal was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act or against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act.
For these reasons, if we had not otherwise granted leave to appeal, we would have refused leave to appeal against orders 1 to 6 the 17 January 2023 orders on amended grounds of appeal 7 and 9.
[11]
Whether the appeal should be allowed against orders 1 to 6 of the 17 January 2023 orders in respect of any errors of law or any of the amended grounds of appeal for which leave to appeal is granted
[12]
Introduction
We have decided to dispose of the appeal by way of a new hearing pursuant to s 80(3)(a) of the NCAT Act.
Where the Appeal Panel conducts a rehearing under s 80(3) or s 81(1)(e) of the NCAT Act it is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17]. In these circumstances, the Appeal Panel will make new findings of fact based on all the evidence, including the evidence that was before the Tribunal: PR v MDM [2020] NSWCATAP 151 at [25].
[13]
Consideration
We are required to consider whether the landlords have established the matters in s 87(1)(a) to (c) of the RT Act and if so exercise the discretion under this subsection whether or not to make a termination order. On the question of whether the breach of the residential tenancy agreement is, in the circumstances of the case, sufficient to justify termination of the agreement, we may have regard to the factors specified in s 87(5) of the RT Act.
It is common ground that the tenant has not vacated the premises as required by the 18 May 2022 termination notice. We are satisfied that proceedings RT 22/45596 when commenced on 6 June 2022 complied with s 83(2) of the RT Act.
In the light of our decision at [80] above we are satisfied that the 18 May 2022 termination notice complied with the requirements of s 88(1)(a) of the RT Act and accordingly had effect. We are also satisfied that the tenant breached the residential tenancy agreement by her failure to pay rent thereunder within s 87(1)(a) of the RT Act.
We are satisfied that the 18 May 2022 termination notice in specifying a termination date of 1 June 2022 specified a termination date that was not earlier than 14 days after the day on which the notice was given. It follows that s 87(1)(c) of the RT Act has been satisfied.
We are not satisfied that the breach of the residential tenancy agreement is, in the circumstances of the case, sufficient to justify termination of the agreement within s 87(1)(b) of the RT Act for the following reasons:
1. there has been a longstanding tenancy between the parties for six years and nine months;
2. while there has been a history of non-payment of rent since February 2017, three previous proceedings in the Tribunal commenced by the landlords against the tenant for a termination based on the non-payment of rent, and as at 1 April 2022 the tenant owed the amount of $2,435.00 less the amount of the rent choice subsidy payments received by the landlords from DCJ Housing, this amount had been reduced to $849.00 as at 18 May 2022 which was 15 days in arrears.
As we have not been satisfied that that the breach of the residential tenancy agreement is, in the circumstances of the case, sufficient to justify termination of the agreement within s 87(1)(b) of the RT Act, the exercise of the discretion under this subsection whether or not to make a termination order does not arise for consideration.
[14]
The disposition of the appeal
We have decided to make orders granting leave to appeal, allowing the appeal, setting aside orders 1 to 6 the 17 January 2023 orders, and in their place dismissing proceedings RT 22/45596.
However, as the landlords were not legally represented and may not have appreciated the effect of note 9(3) of the 10 February 2023 orders, we have decided to make the following procedural directions to provide an opportunity for the landlords to seek different orders to the substituted order dismissing proceedings RT 22/45596:
1. if the landlords wish to set aside the order substituted order dismissing proceedings RT 22/45596 and seek different orders in its place:
1. they are to file and serve within 14 days of the date of this decision:
1. an application setting out the orders sought;
2. evidence as to the amount owing under the residential tenancy agreement on the assumption that it had not been terminated by order 3 of the 17 January 2023 orders and any further evidence of relevant circumstances since 17 January 2023 which is to be by affidavit;
3. written submissions in support which are not to exceed three pages and are to address the question of whether a hearing can be dispensed with within 14 days of the date of this decision;
1. the tenant is to file and serve within 28 days of the date of this decision:
1. any evidence as to the amount owing under the residential tenancy agreement on the assumption that it had not been terminated by order 3 of the 17 January 2023 orders if she disagrees with the amount claimed by the landlords and any further evidence of relevant circumstances since 17 January 2023 which is to be by affidavit;
2. written submissions in opposition to the orders sought by the landlords which are not to exceed three pages and are to address the question of whether a hearing can be dispensed with;
1. the landlords are to file and serve within 35 days of the date of this decision any written submissions in reply which are not to exceed two pages.
[15]
Orders
We make the following orders:
1. leave to appeal is granted;
2. the appeal is allowed;
3. orders 1 to 6 made on 17 January 2023 in proceedings RT 22/45596 are set aside and in their place proceedings RT 22/45596 are otherwise dismissed;
4. if the respondents wish to set aside the order substituted order dismissing proceedings RT 22/45596 and seek different orders in its place:
1. they are to file and serve within 14 days of the date of this decision:
1. any application setting out setting out the orders sought;
2. evidence as to the amount owing under the residential tenancy agreement on the assumption that it had not been terminated by order 3 of the 17 January 2023 orders and any further evidence of relevant circumstances since 17 January 2023 which is to be by affidavit;
3. written submissions in support which are not to exceed three pages and are to address the question of whether a hearing can be dispensed with within 14 days of the date of this decision;
1. the appellant is to file and serve within 28 days of the date of this decision:
1. any evidence as to the amount owing under the residential tenancy agreement on the assumption that it had not been terminated by order 3 of the 17 January 2023 orders if she disagrees with the amount claimed by the respondents and any further evidence of relevant circumstances since 17 January 2023 which is to be by affidavit;
2. written submissions in opposition to the orders sought by the landlords which are not to exceed three pages and are to address the question of whether a hearing can be dispensed with;
1. the respondents are to file and serve within 35 days of the date of this decision any written submissions in reply which are not to exceed two pages.
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: 05 April 2023
of Taxation (2015) 233 FCR 315; [2015] FCAFC 92
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
McSteen v Architects Registration Board of Victoria [2018] VSCA 96
Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220
PR v MDM [2020] NSWCATAP 151
Raulfs v Fishy Bite Pty Ltd; Fishy Bite Pty Ltd v Raulfs [2012] NSWCA 135
Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39
Thomas v R (1937) 59 CLR 279; [1937] HCA 83
Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40
Yuen v Thom [2016] NSWCATAP 243
Texts Cited: None cited
Category: Principal judgment
Parties: Hailee Moffatt (Appellant)
Frank Muscat and Robert Muscat (Respondents)
Representation: Solicitors:
Legal Aid NSW (Appellant)
Ms V Muscat (Respondents)
File Number(s): 2023/00032686
Publication restriction: Nil
Decision under appeal Court or tribunal: Civil and Administrative Tribunal
Jurisdiction: Consumer and Commercial Division
Date of Decision: 17 January 2023
Before: P French, Senior Member
File Number(s): RT 22/45596
The scope and nature of internal appeals
Internal appeals 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)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
In Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 (Thomas and Naaz AP) at [58]-[59] the Appeal Panel stated in respect of an appeal under s 80(2)(b) of the NCAT Act:
"58 A Notice of Appeal is required to properly identify the questions of law which are the subject matter of the appeal. As the Court of Appeal stated in Ferella v Chief Commissioner of State Revenue (2014) 96 ATR 875; [2014] NSWCA 378 ("Ferella") at [22] in respect of an appeal from the Administrative Decisions Tribunal to the Appeal Panel (per White J, Barrett JA and Leeming JA agreeing):
"As the notice of appeal to the Appeal Panel purported to bе ап appeal оп questions of law, it was necessary for the notice of appeal to identify precisely the particular question or questions of law. It was those questions, if there were any, that should have formed the subject matter of the appeal to the Appeal Panel unless leave were sought and obtained for a merits review (TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; 19 ATR 1067 at 1070; В & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481; Соlbу Corporation Pty Ltd v Commissioner of Taxation [2008] FCAFC 10; (2008) 165 FCR 133 at [13]; Osland v Secretary to the Department of Justice (No. 2) [2010] НСА 24; (2010) 241 CLR 320 at 333, [21]; Ное v Manningham City Council [2011] VSC 37 at [4]-[5]; Smalley v Secretary, Department of Health and Ageing [2011] FCA 302 at [10] ff)."
59 It is not enough to simply assert (as the appellant did), that the Tribunal erred in its construction and application of certain provisions of the PTA without also identifying how that purportedly occurred. Further, as Leeming JA stated in Ferella at [6], "it is not possible, merely by the device of asking whether the Tribunal erred in law in doing something or failing to do something, to circumvent the statutory limitation on the scope of the appeal". What is required is that a particular question of law be identified for determination on the appeal."
The principles identified in Thomas and Naaz AP at [58]-[59] were cited with approval by the New South Wales Court of Appeal in Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 (Thomas and Naaz CA) at [26] (Leeming JA) (with Meagher JA at [1] and Griffiths AJA at [75] agreeing).
Having regard to the obligations of procedural fairness specified in Bauskis at [67]-[70] and s 38(5) of the NCAT Act, we are not satisfied that the Tribunal had any obligation during the hearing to put to the tenant reasons for refusing to apply the rent choice subsidy received from DCJ Housing to the arrears of rent of the tenant under the residential tenancy agreement.
In any event, as recorded in the 13 January 2023 transcript, the Tribunal clearly indicated that an issue to be decided was whether the tenant was entitled to the benefit the rent choice subsidy received by the landlords from DCJ Housing.
For these reasons we reject amended ground of appeal 8.
We are satisfied that the existence of a trust in respect of the rent choice subsidy received by the landlords from DCJ Housing cannot be inferred from the payment advices of DCJ Housing when considered alone or in conjunction with the 7 April 2022 DCJ Housing letter for the following reasons:
1. there was no requirement that the monies be paid into a separate account;
2. there was no requirement that the monies be repaid to DCJ Housing if not applied to rent for the particular period specified in the particular payment advice.
As the Tribunal erred in finding that there was a trust in respect of the rent choice subsidy payments received by the landlords from DCJ Housing, we are satisfied that the finding in the Tribunal Decision at [16] that "as at the date of the hearing the tenant owes rent of $1,591.00 and is 29 days in arrears" was erroneous. The Tribunal should have found that the arrears of rent was $849.00 and was 15 days in arrears. It follows that we are satisfied that the tenant has established that she may have suffered a substantial miscarriage of justice on the basis that the decision of the Tribunal under appeal was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act.
As the legal character of the rent choice subsidy payments received by the landlords from DCJ Housing is a matter of public importance we are satisfied that we should exercise the discretion under s 80(2)(b) of the NCAT Act to grant leave to appeal against orders 1 to 6 the 17 January 2023 orders.
The same principles apply on an appeal from the Tribunal to the Supreme Court of New South Wakes under s 83(1) of the NCAT Act with leave on "a question of law": Thomas and Naaz CA at [32] (Leeming JA) (with Meagher JA at [1] and Griffiths AJA at [75] agreeing); Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 (Hanave) at [45] (Chen J).
The approach of courts where there is an appeal on a question of law is not to read a notice of appeal narrowly, and to address questions of law that are identified in the notice of appeal as a whole and perhaps also from surrounding circumstances: Fraser v Sperling [2017] VSCA 53 (Fraser) at [56] (Maxwell P, Santamaria and McLeish JJA); McSteen v Architects Registration Board of Victoria [2018] VSCA 96 (McSteen) at [32]-[34] (Maxwell P, Priest and McLeish JJA).
In Thomas and Naaz CA the notice of appeal elaborated a large number of bases upon which, so it was said, the Appeal Panel had erred and fell short of squarely identifying a question of law. The Court of Appeal examined the key finding which was the subject of the appeal and found that that there was no error in the finding and that no question of law arose from the finding: at [34]-[58] (Leeming JA) (with Meagher JA at [1] and Griffiths AJA at [75] agreeing).
Whether a court or tribunal has jurisdiction or power to make a decision or take some other step in the proceedings raises a question of law: Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Orr) at [26]-[27] (Bathurst CJ and Bell P) (Johnson J at [128], Garling J at [136] and Lonergan J at [137] agreeing).
In Orr at [60] Bathurst CJ and Bell P (with Johnson J at [128], Garling J at [136] and Lonergan J at [137] agreeing) cited with approval the note of Dixon J in Thomas v R (1937) 59 CLR 279 at 306; [1937] HCA 83 (Thomas) that a "mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law".
Whether there was no evidence to support a factual finding is a question of law, not a question of fact: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 (Kostas) at [91] (Hayne, Heydon, Crennan and Kiefel JJ).
The question whether a tribunal made a jurisdictional error in a specified respect, such as denying a party procedural fairness, raises a question of law: Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 (Haritos) at [202] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).
In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (Azzopardi) at 155-157, Glass JA, with Samuels JA at 157 agreeing, 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. … Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage 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 cause 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. Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found." (citations omitted)
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
1. the decision of the Tribunal under appeal was not fair and equitable (cl 12(1)(a)); or
2. the decision of the Tribunal under appeal was against the weight of evidence (cl 12(1)(b)); or
3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) (cl 12(1)(c)).
In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where:
"… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." (emphasis in original)
In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that:
1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act;
2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
In Collins, the Appeal Panel at [84] summarised the general principles which govern the granting of leave to appeal:
"[84] The general principles derived from these cases can be summarised as follows:
(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,
BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."
The Appeal Panel may 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: s 80(3)(a) of the NCAT Act. Further, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be allowed, and the decision under appeal is to be set aside: s 81(1)(a) and (c) of the NCAT Act.
Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that in the case of an appeal from a decision of the Tribunal in proceedings under the RT Act an internal appeal must be lodged within 14 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision.