Monica Perez v NSW Land and Housing Corporation

NCAT Consumer and Commercial|2015-03-31|Before: Commission J

d by Mr Paul White. File Number(s): SH 14/44581 Publication restriction: Nil

Application

This is an application for a remedy against the respondent landlord under the Residential Tenancy Act (RTA) s 77 for recognition as a tenant; s 73 to refit locks; and s 187(1)(a) restraining a breach of the tenancy agreement.

Appearances

The applicant appeared in person with the assistance of her daughter as a Mackenzie friend. I granted leave to her daughter to speak for her from time to time notwithstanding that goes beyond the role of a Mackenzie friend.

Jurisdiction

The Tribunal has jurisdiction pursuant to the Civil and Administrative Tribunal Act 2013 (NSW) ("CATA") ss 28 (Jurisdiction of Tribunal generally), 29 (General jurisdiction) and Schedule 4 clause 3 (Functions allocated to Division) to determine this application and power to make orders pursuant to the RTA.

Preliminary application

At the outset the applicant applied for an adjournment to enable her to obtain assistance to present her case. She contended that a refusal to grant her an adjournment would be a denial of procedural fairness.
The respondent opposed the application for an adjournment.
The application for an adjournment was refused and I gave short oral reasons referring to the history of the applications, which is set out below;
The applicant was then given an opportunity to present her case on the evidence she has filed to date.
Mrs Perez requested and was granted a short adjournment so she could telephone her advisers. When she returned she made the following submissions: 1. No opportunity to put her case forward; 2. No opportunity to put on all her evidence; 3. No opportunity for all her evidence to be heard; 4. Not told that she needed to present her case today and have her witnesses present, but thought that today was to decide whether to proceed before this Tribunal or to commence proceedings elsewhere; 5. She was waiting for advice which she expected to receive tomorrow; 6. She felt pressured, was not confident to present her case without the assistance of her representation, and felt on the verge of suffering a nervous breakdown.
Although I had already determined to dismiss the adjournment application I allowed the applicant this further opportunity to persuade me to vacate my decision to dismiss the application for an adjournment, as she is a lay person.
Having heard the applicant on these further matters I invited Mr White for the respondent to address me. He referred to the applicant's history of failure to comply with previous directions and pointed to the prejudice suffered by the respondent if I vacated the order to refuse the adjournment application.
I declined to vacate my earlier determination.
The matter turns on the question of procedural fairness for the applicant, which I will discuss in the following paragraphs.

The facts

Before discussing the principles of law, it is necessary to set out the material facts arising from both proceedings brought by the applicant.

A. Proceedings SH 14/14423 1. The applicant filed her original application in proceedings SH 14/14423 on 10 March 2014 and the first Conciliation and Hearing (C&H) was appointed on 24 March 2014; 2. An adjournment was granted on 24 March 2014; 3. On 28 March 2014 a second C&H was appointed for 14 April 2014; 4. On 14 April 2014 interim orders were made and the balance of the application was adjourned; 5. On 29 April 2014 a Notice of Hearing was sent to the parties for Hearing on 6 May 2014, with two hours allocated; 6. On 6 May 2014 the applicant did not attend and the matter was adjourned with a direction that the applicant file and serve her evidence by 12 May 2014; 7. On 13 May 2014 a Notice of Hearing was sent to the parties for Hearing on 11 July 2014, with two hours allocated; 8. On 11 July 2014 the applicant did not appear and the application was dismissed;

B. Proceedings SH 14/44581 1. The applicant filed a second application on 8 September 2014 in which she relevantly requested an urgent hearing; 2. On 10 September 2014 a Notice of C&H was sent to the parties for a hearing on 17 September 2014; 3. On 17 September 2014 Directions were made for the applicant to file and serve her evidence by 3 October 2014, amongst other orders, and the matter was set down for hearing with an indication by the applicant that she would call five witnesses; 4. On 28 September 2014 a Notice of hearing was sent to the parties for a hearing on 21 November 2014, with an allocation of two hours; 5. On 3 October 2014 the applicant applied for an extension of time to file and serve her evidence. The Western Sydney Tenant's Service (WESTS) advised they were instructed to act for the applicant; 6. On 9 October 2014 an extension of time was granted and fresh directions made for her to file and serve evidence by 10 October 2014 and the respondent by 27 October 2014; 7. On 31 October 2014 the applicant requested issue of a Summons to Melissa Sheridan of the respondent to attend to give evidence at the hearing on 21 November 2014; 8. On 10 November 2014 the applicant applied to vacate the hearing on 21 November 2014; 9. On 11 November 2014 the application was refused and further directions made extending the time for the applicant to file and serve her evidence by 7 November 2014 with a consequential extension of time for the respondent to 19 November 2014; 10. On 21 November 2014 the hearing did not proceed as the applicant had not filed and served her evidence. The hearing was vacated and the matter adjourned by consent with further directions that the applicant file and serve any amended application and her evidence by 5 December 2014 and the respondent by 19 December 2014; 11. On 3 December 2014 a Notice of Hearing was sent to the parties advising a hearing on 23 January 2015, and two hours were allocated for the hearing; 12. On 23 January 2015 the matter was not ready to proceed as the applicant had not filed or served her amended claim or evidence. Further directions were made (and sent to the parties on 28 January 2015) for the applicant to file and serve the amended claim and evidence by 6 February 2015, and the respondent by 20 February 2015; 13. On 2 February 2015 a Notice of Hearing was sent to the parties advising a hearing on 31 March 2015. The matter was allocated two hours; 14. On 31 March 2015 the matter came before the Tribunal for hearing and as I have said above, the applicant made a further application for an adjournment, which was refused. The applicant had filed some evidence.

To summarise the above events for the second application, it was listed for hearing three times on 21 November 2014, 23 January 2015 and 31 March 2015 resulting in a cumulative total allocation of six hearing hours which were wasted; it was the subject of Directions for filing and service of evidence on four occasions: 17 September 2014, 11 November 2014, 21 November 2014 and 23 January 2015. Relevantly, in making the second application the applicant also requested an urgent hearing, but then failed to act with any urgency herself.

The legal principles

By CATA s 51 (Adjournment of proceedings) the Tribunal has a broad discretion to grant an adjournment to any time and place.
Procedural fairness in this Tribunal is required by CATA s 38 (Procedure of Tribunal generally) which relevantly provides: (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. … (5) The Tribunal is to take such measures as are reasonably practicable: … (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and …
Natural justice referred to in CATA s 38(2) is to be distinguished from procedural fairness, although the terms are often used interchangeably. [1] Natural justice is the policy objective and procedural fairness is the process for achieving natural justice based on the 'fair hearing rule' and the 'bias rule', and a determination made on logically probative evidence. [2]
The fair hearing rule provides that a person likely to be adversely affected by the order has a right to be heard, [3] However, this is not the only obligation and is not to be considered in isolation of other applicable provisions.
The source of procedural fairness arises specifically from the Tribunal's statute, [4] in this case CATA s 38, and from the common law, [5] and although there has been a difference of opinion in the High Court, [6] the NSW Court of Appeal favours a common law duty. [7]
The extent of procedural fairness varies to fit the statutory and factual circumstances [8] of a particular case. [9] The extent of procedural fairness is not immutable or standardised. [10] Procedural fairness does not require evidence to be obtained at too high a price [11] which is unacceptable to prevailing community standards, [12] nor does it require a Tribunal to ensure that an applicant's case is prepared and presented at its highest. [13] It is determined by reference to the whole of the Tribunal's process and not in isolation. [14]
The Tribunal is required to also observe the policy of 'just, quick and cheap' disposal of proceedings: CATA s 36(Guiding principle to be applied to practice and procedure); and natural justice and procedural fairness to both parties is to be considered in this context.
Procedural fairness has been defined by statute, [15] but it is not construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness. [16]
Generally, a person likely to be adversely affected by an order has a right to be heard [17] by an impartial tribunal (the 'bias rule') which gives a fair hearing (the 'hearing rule'), [18] or an opportunity to present their case. [19] These are the common law rules of procedural fairness. [20] The bias rule does not arise here and it is the hearing rule which is to be considered.
The common law hearing rule [21] is that a person whose rights, interests or legitimate expectations are affected has rights: first, to be notified of the proceedings; second, given an opportunity to be heard; [22] and third, to be heard. [23]
The material facts establish that the first element of this rule has been satisfied as the applicant has appeared.
It is the second and third elements which are in issue today. The opportunity to be heard in this matter involves the applicant's opportunity to file and serve her evidence, [24] in this matter by documents.
This procedure also gives the respondent procedural fairness by disclosure of the applicant's evidence so it knows the case it has to meet. Once the evidence is filed and served the matter goes to a hearing where the Tribunal's hearing procedural rules apply to ensure both parties have a fair hearing.
The second element has been satisfied as the applicant has been given four opportunities to be heard by filing and serving her evidence, and the third element has been satisfied as she has had three opportunities to have a hearing.
Procedural fairness and adjournment had been considered as an independent obligation on a Tribunal to offer an adjournment in some circumstances, even if no application is made: [25] [85] A claim based on procedural unfairness, in these circumstances, must demonstrate that the confusion in the mind of the Claimant was such that he cannot be said to have foregone a reasonable opportunity to make an application for an adjournment, or that the circumstances were otherwise such that the Tribunal Itself had an obligation offering an adjournment. and later in the same case explaining the proper approach: [26] [105] The remaining question is thus whether, on the evidence, the Tribunal was under an independent obligation to take particular steps which it did not do. If so, the consequent question is whether its failure invalidated the resulting orders. There is statutory support in the CTTT Act for such obligations. Thus, s.35 ... provides that the Tribunal 'must ensure' that each party is given 'a reasonable opportunity' to present its case. Where necessary this will entail offering an appropriate adjournment, whether sought or not. In addition, s.28(4)... requires the Tribunal to 'take such measures as are reasonably practicable' to ensure that the parties understand not only the nature of the assertions made in the proceedings, but also 'the legal implications of those assertions'. [106] There are, as already noted, provisions which allow the Tribunal a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness..."
The question arises concerning how is the Tribunal to ensure a self-represented party receives procedural fairness. This question also arises in court proceedings and some guidance is to be found in non-exhaustive guidelines issued by some courts, [27] but these relate to the practice and procedure adopted at a hearing rather than the question of whether a party should be refused an adjournment and forced on for a hearing, and in doing so, whether that results in a denial of procedural fairness.
Mrs Perez contends that she is receiving legal advice and legal representation but the person representing her is unable to attend today. There is no obligation on this Tribunal to ensure that she has legal representation, that the legal representative can or is unable to attend, and the absence of legal representation does not result in a denial of procedural fairness. [28]
The applicant's failure to comply with directions is relevant: see Davis v CTTT [2008] NSWSC 491 where the NSW Supreme Court held that there had been no breach of natural justice by the Tribunal refusing an application for an adjournment to obtain further evidence where there had been non-compliance with previous orders for the filing of evidence. Mrs Perez has had many opportunities to file and serve her evidence, but she has persistently failed to comply with directions to do so: see the material facts.
In considering whether Mrs Perez should have a further opportunity to prepare her evidence I have also considered CATA s36 and weighed the applicant's history of failure to comply with directions, against the cost to the respondent who after a year in the present application still does not know the case it is to meet, and the cost to the community by the applicant consuming the Tribunal's limited resources consisting of the abandoned six hours of hearing to date. In addition, it is relevant that this Tribunal has limited resources and in the last year has reportedly received about 90,000 applications. Each application has to be allocated time, and every time the applicant has failed to proceed at a hearing or had a further directions hearing, this results in other applicants losing an opportunity to have their applications determined in a "just, quick and cheap" manner.
The applicant is not entitled to an unlimited opportunity to have her application determined.
The applicant has had an opportunity by four directions hearings with orders made to file and serve her evidence, and three abandoned hearing dates prior to today (four if today's hearing is counted) to present her case and be heard. She has wasted all of those opportunities. The Tribunal has tried to accommodate her, but the time has come when it is no longer appropriate to grant any further indulgence.

Conclusion

In all the circumstances the applications for an adjournment and the substantive claims are to be dismissed. J Levingston General Member Civil and Administrative Tribunal of New South Wales 17 April 2015

Endnotes

Kioa v West (1985) 159 CLR 550; see Butterworths Australian Legal Dictionary 'Natural Justice' and 'procedural fairness', and see The Laws of Australia TLA [2.5.10] where the authors state that the terms natural justice and procedural fairness are interchangeable.
Salemi v Mackellar (No 2) (1977) 137 CLR 396.
Cameron v Cole (1944) 68 CLR 571; Re Great Eastern Cleaning Services Pty Ltd [1978] 2 NSWLR 278.
CATA s35; Kioa v West (1985) 159 CLR 550 per Brennan J at 614-615. In support of Brennan J see Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 75 ALJR 889; 179 ALR 238; [2001] HCA 22, Gleeson CJ and Hayne J at [30]. This is similar to the previous CTTT Rules: see Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 at [15] to [17] per French CJ.
Kioa v West (1985) 159 CLR 550 at 584 per Mason J. See TLA [2.5.10] fn 13 citing Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 ; 75 ALJR 889; 179 ALR 238; Gaudron J at [89]; Annetts v McCann (1990) 170 CLR 596 at 604 per Brenna J; 65 ALJR 167; 97 ALR 177; Tubbo Pty Ltd v Minister Administering Water Management Act 2000 [2008] NSWCA 356, Spigelman CJ at [54].
The difference in views of the source of procedural fairness is discussed in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 [PDF]; 207 ALR 12; 78 ALD 224; [2004] HCA 32, Kirby J at [88]-[89]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 [PDF]; 75 ALJR 52; 176 ALR 219; 62 ALD 285; [2000] HCA 57, Gaudron and Gummow JJ at [38]-[40], Hayne J at [168]. See also Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (4th ed, Lawbook Co., 2009) at [7.70]-[7.80]. In support of Brennan J's approach in relation to the source of procedural fairness, as expressed in Kioa v West (1985) 159 CLR 550 60 ALJR 113; 62 ALR 321, see Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 75 ALJR 889; 179 ALR 238; [2001] HCA 22, Gleeson CJ and Hayne J at [30]
The Mason J approach to the source of procedural fairness on a number of occasions: see Vanmeld Pty Ltd v Fairfield CC (1999) 46 NSWLR 78; [1999] NSWCA 6, Spigelman CJ at [50]; Minister for Local Government v South Sydney CC (2002) 55 NSWLR 381; [2002] NSWCA 288, Spigelman CJ at [6]-[15], Mason P at [152], [155]; Lesnewski v Mosman MC [2005] NSWCA 99, Tobias JA (with whom Hodgson and Ipp JJA agreed) at [61]; Tubbo Pty Ltd v Minister Administering Water Management Act 2000 [2008] NSWCA 356, Spigelman CJ at [53]; Stewart v Ronalds (2009) 232 FLR 331 ; 259 ALR 86; [2009] NSWCA 277, Allsop P at [68]-[70], Hodgson JA at [113], Handley AJA at [132].
Waqa v Technical & Further Education Commn [2009] NSWCA 213, Basten JA (Beazley and Giles JJA agreeing) at [45].
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22, (2001) 206 CLR 57 ; 75 ALJR 889; 179 ALR 238; Kirby J at [190]. See also Clarence CC v South Hobart Investment Pty Ltd (2007) 16 Tas R 201 [PDF]; 152 LGERA 24; [2007] TASSC 16 (FC), Underwood CJ at [29].
Public service Board (NSW) v Osmond (1986) 159 CLR 657.
R v Ireland (1972) 126 CLR 321 per Barwich CJ at 335; Ridgeway v The Queen (1995) 184 CLR 19 at 52 per Brennan J; Nicholas v The Queen (1998) 193 CLR 173 at [34].
R v Swaffield (1997) 192 CLR 159 at 91 per Toohey, Gaudron abd Gummow JJ.
Mr Berou chose to follow a particular course which ultimately did not serve him well [32]; see also Milstern Retirements Services Pty Ltd v Carton & Ors [2006] NSWSC 937.
See for example Calvin v Carr [1979] UKPC 1; [1980] AC 574 at 596-597; Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333 at [98].
CATA s38 (Procedure of Tribunal generally).
Berou v CTTT and Anor [2007] NSWSC 1046 at [16]; Italiano v Carbone [2005] NSWCA 177 at [105] and [106]
Cameron v Cole (1944) 68 CLR 571; Re Great Eastern Cleaning Services Pty Ltd [1978] 2 NSWLR 278.
The latin phrase : Audi alteram partem; right to a fair hearing and to present one's case. See Aronson and Dyer, Judicial Review of Administrative Action (1996) at 387 ff.
Italiano v Carbone [2005] NSWCA 177 per Basten JA at [106] these obligations are …core elements of procedural fairness, and failure to comply with them made the decision invalid.
Annetts v McCann (1990) 170 CLR 596 at 598-600 per Mason CJ, Deane and McHugh JJ.
See Park v Minister for Fair Trading and Ors [2000] NSWCA 96 at [58] per Mason P, Powell and Beasley AJA.
Ainsworth v Criminal Justice Commission (1992) CLR 175 CLR 564.
Kiola v West (1985) 159 CLR 550 at 584 per Mason J.
Berou v CTTT and Anor [2007] NSWSC 1046.
Italiano v Carbone [2005] NSWCA 177 at [85] per Basten J (in dissent but not on this issue), and see Einstein J at [147].
Cheung v Yang [2013] NSWSC 1694 at [45] per Harrison J citing Italiano v Carbone [2005] NSWCA 177 at [105] & [106] per Basten JA.
Litigants in Person Guidelines [2001] FamCA 348 at [253].
Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20. 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: 07 July 2015

Civil and Administrative Tribunal Act 2013(NSW)ss 28, 29, 38, Schedule

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