This matter was referred to me in chambers upon lodgement of a Notice of Appeal and an associated Application for a Stay in respect of a decision of the Consumer and Commercial Division made on 25 October 2022.
By order 1, the Tribunal had ordered the appellant, as landlord, to pay the respondents, as tenants, the sum of $4,243.98 as compensation for breach of the landlord's obligation to keep the premises in a reasonable state of repair under the Residential Tenancies Act 2010 (NSW), as well as other related claims, by 17 November 2022.
By order 2, the Tribunal had ordered that the tenants receive their bond from the Rental Bonds Service, which was likely to have occurred before the appeal was lodged.
The appeal was lodged out of time on 15 November 2022, with the appellant having failed to lodge it within 14 days from receipt of the Tribunal's decision: Civil and Administrative Tribunal Rules 2014, r 25(4)(b).
The Member to whom an Application for a Stay is referred will generally make directions for the lodgement and service of further evidence and submissions by the appellant, depending on how comprehensive the material lodged with the application is, and for material in response to be lodged and served by the respondent. The application will be allocated a hearing date, usually at a call-over of the appeal when directions are made to prepare the substantive appeal for hearing.
The Member may also need to consider whether the interests of justice warrant immediately putting a stay in place to suspend the operation of the orders (or some of them). Where this happens, the stay usually continues until a hearing can be conducted in respect of the application at which both parties can be heard and have their evidence and submissions taken into account. These types of orders are what are referred to as ex parte orders, because the other party does not get a chance to make submissions about whether a stay should be made until a later hearing.
Granting an ex parte stay may be appropriate if the appeal will be rendered useless or futile, or a significant outcome sought by the appellant will be stifled, and this is likely to occur before the matter can be listed for hearing. In the courts, it may be expected that notice that an urgent order is required would be given when the application is lodged. In the Tribunal, the overwhelming preponderance of self-represented parties who are unaware of that requirement makes it preferable that it be considered in any event.
Here, I made such directions until the hearing of the application could be conducted.
As I received the application in chambers on 17 November 2022, and the next available hearing for the application was on 30 November 2022, I gave the appellant a direction to lodge and serve any further evidence and submissions by 22 November 2022, and for the respondents to lodge and serve material in response by 28 November 2022.
The appellant has now asked that I provide written reasons for my decision, which are detailed below.
[2]
Directions
The need for directions to prepare the application for hearing is self-evident. The parties ought to be given a reasonable opportunity to put their material before the Appeal Panel in respect of the Application for a Stay: see the obligations of the Tribunal set out in s 38, Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act").
The Appeal Panel does not have access to the file of the Tribunal at first instance when the application is considered.
In making directions, the Appeal Panel will generally be mindful of the time available between the receipt of the Application for a Stay and the available hearing date, the complexity of the issues to be considered, and the extent of the material contemporaneously lodged in support of the application. Some applications are received with nothing more than an assertion that a stay should be granted because there is an appeal, which is unpersuasive: NCAT Act, s 43(2). Others are lodged with comprehensive evidence and submissions in support of the application, which makes it apparent that the applicant needs little or no further opportunity to lodge material.
In any event, though, an appellant as applicant for a stay needs to be aware that the application will generally be listed for hearing within 28 days, but more commonly approximately 10 to 14 days from the date of filing.
As a result, the Tribunal needs to appropriately allocate time in its directions for the parties to lodge and serve material in respect of the application. The appellant will have already had the opportunity to consider the application and the material needed to support it before the application is lodged. In contrast, the respondents may only learn of the appeal and application for a stay when it is served on them by the Tribunal with the directions.
For that reason, it may be appropriate to allow the appellant less time to lodge further material than is given to the respondents to prepare and lodge material in response, which is what I did here.
This is one reason why the application should be lodged with as much relevant supporting material as possible.
Another reason it is important to lodge as much material as possible in support of the application, with the application itself, is so that an ex parte stay can be considered. This issue is drawn to the attention of parties in the Tribunal's published guideline "NCAT Guideline 1 | Internal Appeals" which notes, at [56]:
In urgent cases, an interim stay can be ordered without hearing from the other party, but this will be only for a short time and the other party will be given an opportunity at a hearing to argue that the stay should not continue. If an interim stay is important, the appellant must lodge as much information to support it as possible with the Application for Stay of original decision pending appeal. If enough information is not provided to support an interim stay, the Tribunal might not order one until it has heard from both parties.
Of course, a degree of urgency is usually attached to stay applications. Consequently, both parties will be expected to respond quickly.
[3]
A stay until the application can be heard?
As discussed above, when the stay is lodged the Member to whom it is referred may consider whether to grant a stay pending the hearing of the application.
There is specific provision for the Tribunal to make that decision without conducting a hearing in respect an application for a stay, as long as the Tribunal is satisfied on application by a party, or on its own motion, that it is not appropriate to conduct a hearing due to the urgency of the matter: Civil and Administrative Tribunal Rules, r 36A(b).
It is not possible to exhaustively list the factors which may lead the Appeal Panel to a state of satisfaction that it should proceed without a hearing and grant a stay in this context but of course various factors may need to be considered. Relevant factors may include the impending execution of a warrant for possession in a tenancy matter; the likely suspension of a builder's licence if a judgment sum goes unpaid: Home Building Act 1989 (NSW), s 42A, e.g. where a licence will be automatically suspended unless the Secretary (as defined in the Act) defers the suspension: s 42A(5); or the ability of a judgment creditor to enforce the judgment if a stay is not granted. These are, though, only some relevant factors and they may not, on their own, warrant the grant of a stay.
As the appellant here was ordered to pay the judgment sum before the application for a stay could be listed for hearing, I was satisfied that I should consider making an order granting a stay on an ex parte basis without conducting a hearing.
[4]
The principles to be applied in considering whether to stay orders of the Tribunal on an ex parte basis pending the hearing of the application
I still needed to decide whether to grant a stay.
Consistent with the terms of s 43(2) of the NCAT Act and the general principles relating to granting a stay pending an appeal, a stay, even on an ex parte basis pending a hearing of the application, should not be automatically granted. To do so would, in my view, risk bringing the administration of justice into disrepute by allowing an automatic reprieve to any party willing to lodge an appeal and pay the relevant fee (or obtain a waiver), at least until a hearing of the application can be arranged.
As a result, the appellant as applicant for a stay bears the onus to demonstrate, even if on tenuous and unchallenged material, that a stay is warranted until the hearing can be conducted.
The mere lodgement of an internal appeal does not affect the operation of the decision appealed: NCAT Act, s 43(2). Nonetheless, under s 43(3) the Tribunal has the discretion to stay, or make an order otherwise affecting the operation of a decision pending the determination of the appeal. That discretion must be exercised judicially and the general principles that apply to the exercise of that discretion are derived from the terms of s 43(3) itself. Additional guidance can be obtained from the considerations applied by the Courts in deciding whether or not to grant a stay pending an appeal, summarised in a decision of the Appeal Panel constituted by the former President of the Tribunal, Wright J, in Bentran v Sabbarton [2014] NSWCATAP 37 at [9]. Those principles do not need to be repeated here. I am satisfied those principles are equally applicable to the proper consideration of whether to grant an ex parte stay pending the hearing of the application, albeit that the relevant factors will necessarily have to be considered on a very constrained basis on the available material.
The overriding principle in an application for a stay is to ask what the interests of justice require: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83]; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18].
Despite the late lodgement of the appeal, the appellant lodged nothing in support of his application. The errors alleged to have been made by the Tribunal were that the respondents provided unspecified "false/misleading information" which the appellant indicated that "[he] can prove". The appellant also alleges that the Member denied him the opportunity to respond to the respondents' claims and did not address "a breach" made by the respondents during the hearing at first instance. Those claims are vague, unsupported by any probative evidence and, as a result, entirely unpersuasive.
I also needed to make a decision without the opportunity for those allegations to be tested, and by balancing the competing rights and interests of the respondents to the extent possible. Those rights and interests may be self-evident insofar as they have a prima facie right to the benefit of the decision at first instance, or readily inferred, such as the possibility that they may be reliant on the damages awarded to replace or repair items the Tribunal found to have been damaged.
Weighing those considerations and asking the overarching question of what the interests of justice require, I was not satisfied I should exercise my discretion to grant a stay pending the hearing of the application. As the monies under the judgment were payable by 17 November 2022, there was some urgency in having the mater dealt with. I was satisfied that I should list the application promptly and give the appellant a short further period to lodge the evidence and submissions he relied upon in respect of the issues he said he could prove, but had to that point taken no steps to do so.
[5]
Directions
My directions were as follows:
1. The Appeal is listed for a Call Over and Hearing of the Application for a Stay on 30 November 2022 at 11:30 AM.
2. On or before 22 November 2022 Paul Monisse (APPELLANT) is to lodge with the Appeal Registry and give to the other parties any further evidence and submissions in support of the Application for a Stay by email.
3. On or before 28 November 2022 the respondents are to lodge with the Appeal Registry and give to the other party any evidence and submissions in opposition to the Application for a Stay by email.
[6]
A subsequent application for an adjournment and extension of time
The appellant then sought an adjournment of the hearing on 30 November 2022, and an extension of time to lodge his further material. He predominantly relied upon a difficulty in obtaining evidence from tradespersons to prove the assertions he makes.
Each party was given the opportunity to make submissions on the application, and advised the Appeal Panel may make an order dispensing with a hearing of the application and deal with it on the papers, which they should also address.
The respondents opposed the application. No party objected to it being determined on the papers. I was satisfied I could adequately determine the application in the absence of the parties by considering the material lodged.
I made an order dispensing with a hearing and refused the adjournment and extension of time, with a notation that:
If the appellant does not have the evidence to support the Application for a Stay, the application should be withdrawn and may be renewed in the future if the order is not enforced prior.
The appellant has also asked for reasons for that decision.
There is no reason why the directions hearing listed on 30 November 2022 should not proceed. At that hearing, the Appeal Panel will make directions for the prompt resolution of the substantive appeal.
In respect of deferring the application for a stay, the appellant's application in that regard did not address:
1. The nature of the evidence he is seeking and how it will be relevant to the application for a stay;
2. What attempts he has made to obtain the evidence he seeks;
3. When he made those attempts;
4. When he expects the evidence to be available; or
5. Why it was not sought and produced before the hearing at first instance.
Furthermore, given there is no current stay, delay may lead to the application not being dealt with until after the judgment is enforced and the stay becoming inutile.
I was also not satisfied that I should allocate the Tribunal's limited resources to setting a later date for the hearing. Neither should the respondents be inconvenienced by having a separate hearing allocated that they would need to make arrangements to attend, without any information from the appellant which would allow me to have any level of satisfaction that the evidence he seeks will be available before the date I might set.
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
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Decision last updated: 29 November 2022