Murugesu v Papoulias

The Notice of Appeal

1. We refer to the Notice of Appeal filed on 15 June 2023 and annexures.
2. The grounds of appeal are set out at page two of the Notice of Appeal and in written submissions.
3. It is convenient to set out the grounds of appeal in the order in which they were addressed by the tenant during oral submissions: 1. The Tribunal Member ran out of time and the member unfairly dismissed the application; 2. The tenant believes she should be compensated for all her losses and all her child's losses. 3. The tenant seeks compensation in the sum of $7000. 4. The tenant seeks leave to appeal because she submits she had evidence that should have been considered.

Reply to Appeal

1. In their Reply to Appeal filed on 14 July 2023 the landlords supported the orders made on 2 June 2023.
2. By way of summary the landlords submit that "the matter was dismissed twice. There is no new information supplied by the tenant".

Applicable legal principles governing appeals

1. Section 80 of the CAT Act provides as follows: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) 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, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."
2. Clause 12 of Schedule 4 to CAT Act states: "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, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."
3. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as examples of error of law: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
5. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]-[79] and [84(2)] as follows: "74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. … 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. 84 The general principles derived from these cases can be summarised as follows: … (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."
6. Even if the appellant establishes that she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the CAT Act, the Appeal Panel has discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Appeal Panel's consideration of whether to exercise that discretion.
7. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."

The tenant's submissions

1. The tenant was present in person at the appeal hearing. The tenant brings her appeal on the basis of an error on a question of law and on the basis that the findings of the Tribunal were against the weight of evidence, and for these errors the tenant requires the leave of the Appeal Panel in order to succeed.
2. One of the issues to be clarified was whether the tenant was appealing against the Tribunal's decision to dismiss her re-instatement application (RT 23/01372) dated 13 January 2023, or the decision of the Tribunal of 2 June 2023 to dismiss her second application and the refusal to extend time. The tenant confirmed that she was appealing against the Tribunal's decision of 2 June 2023 and acknowledged that any appeal against the decision not to re-instate her first application would be significantly out of time and that she had received advice to that effect.

Ground 1

1. The tenant provided a bundle of documents of some 117 pages in length.
2. The first ground of appeal stated that the Member did not have "enough time", although this ground of appeal was not further developed. We have considered that any ground of appeal stating that a party was not given sufficient time to present his or her case may amount to a denial of procedural fairness. It is well established that a party must be given an opportunity to be heard.
3. Section 38(6)(a) of the NCAT Act imposes a duty on the Tribunal, in the exercise of all its functions, to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts and issues in any proceedings. This is a permissive power, which is not to be read literally: Raissis v Anaz [2019] NSWCATAP 25 at [23] - [26]; ZND v ZNE [2020] NSWCATAP 34 at [33]. In the context of proceedings for the exercise of the Consumer and Commercial Division functions this obligation is fulfilled by ensuring the parties have a reasonable opportunity to put before the Tribunal the documentary materials, oral evidence and submissions that they rely upon to establish the grounds for the orders sought in relation to an application that is before the Tribunal for determination before the Tribunal makes a decision.
4. We consider that a failure by the Tribunal to allow sufficient time to be provided to present the tenant's material may amount to a denial of procedural fairness, or an error on a question of law. However the tenant did not make any submissions how she was deprived of an opportunity to present her case or how, given more time, she would have presented her case so that a different outcome may have been achieved. Critically we have not been provided with a copy of the transcript of the proceedings to establish that the hearing was rushed or that the tenant was prevented from presenting her case.
5. In the absence of any further evidence or submission to support this ground of appeal we are not of the view that an error on a question of law has been established or an error for which the leave of the appeal panel is required. This ground of appeal is dismissed.

Ground 2

1. The second ground of appeal appears to be that the Tribunal did not consider the appellant's document bundle. The failure to consider evidence or to overlook evidence or a failure to consider the applicant's case may amount to a constructive failure to exercise jurisdiction and is an error on a question of law. The 117 pages the tenant relied upon at the first instance hearing have been provided to this Appeal Panel and contain an index: 1. NCAT orders and notices; 2. statement of claim; 3. correspondence from Century 21 (the real estate agent); 4. damaged goods with mould pictures; 5. professional statements, receipts and quotes.
2. We have had regard to the documents and in particular the statutory declaration of the tenant dated 29 August 2022 which states that she experienced flooding in February 2022, and that she negotiated a $600 rent credit with the landlord in exchange for which she cleaned mould from the premises. She states that the mould returned in June 2022 and that this time she was unable to negotiate a mutually satisfactory agreement with the landlord. Fearing adverse health outcomes for herself and her young daughter she decided to "move as soon as possible". The tenant gave notice and vacated the property in about July 2022.
3. The tenant states the Tribunal failed to consider her evidence. This submission however does not address why the second application was filed in February 2023 or 12 months after the flood event of February 2022. The second application was therefore commenced significantly out of time. Regulation 39 of the Residential Tenancy Regulations 2019 requires a claim for compensation for the purposes of section 190(1) of the Act to be brought within 3 months after the applicant becomes aware of the breach or by May 2022 at the latest. The tenant's application, subject of this appeal was commenced more than eight months outside the prescribed period.
4. It was therefore incumbent on the Tribunal to consider whether the time within which to bring the claim should be extended under section 41 of the NCAT Act, before considering the merit of the application and before turning to the tenant's extensive documentation. Unless and until time was extended there was no utility in considering the tenant's evidence and there is no error established by pointing to the fact that the documents were not considered.
5. The tenant, who at all times represented herself, placed particular attention on a medical certificate tendered before us. The tenant submitted that the medical certificate of 10 January 2023 demonstrates that she was unfit to attend the Tribunal hearing of the same date. If we understand her correctly, she states that this certificate should be taken into account by this Appeal Panel.
6. We have considered the tenant's submissions, however the existence of a medical certificate dated 10 January 2023 was not relevant for the disposition of this appeal. While we have taken into account that there may have been a reason why tenant did not attend the initial hearing of 10 January 2023, the reinstatement application is not the decision under appeal. A forensic decision was made by the tenant to appeal the 2 June 2023 decision not to extend time. We have to consider whether the Member's decision not to extend time for the second application RT 23/07879 miscarried.
7. It was further clarified by the tenant that the medical certificate of 10 January 2023 was not tendered before the Tribunal at first instance and that the certificate has been tendered for the first time before this Appeal Panel. We consider that the medical certificate constitutes new evidence and that there was no reasonable explanation why the medical certificate was not tendered at the hearing of 2 June 2023. For these reasons we reject the tender of the medical certificate (see s80 of the CAT Act). In any event the medical certificate, stating that the tenant was unfit to attend Tribunal proceedings on 10 January 2023, was not relevant to the consideration of whether or not time should be extended to 17 February 2023 for the filing of the second application.
8. There are three issues to be considered by the Appeal Panel: 1. Did the Tribunal err in finding that the explanation for delay of 9 months was inadequate? 2. What are the prospects of success of the application? 3. Was there any prejudice to the respondent if time to file the application had been extended?
9. First, the reason provided to the Member and to the Appeal Panel was that the tenant received advice from a tenancy advice service, but it is not clear when this advice was received. She submitted that she attended the Western Sydney Tenants' Service and was advised that the prospects of success in an appeal against the refusal to reinstate the application were limited. We agree. An appeal from a decision to refuse a reinstatement application may have been commenced by 27 January 2023 and the appeal was not filed until 15 June 2023.
10. The appeal against the decision of 2 June 2023 was filed in time and the tenant, on advice, elected to pursue this appeal only. It is not clear precisely what submission was brought before the Member at first instance, as stated above, we have not been provided with a transcript. We consider that the explanation, namely the late advice from the Western Sydney Tenants' Service, is not an adequate explanation for a nine months delay. It was open to the tenant at any time to avail herself of the tenants' advisory service and the Member was correct to find that the significant delay could not be overcome. The applicant became aware of the mould issues in February 2022, but did not commence the first application until June 2022. The second application was not commenced until February 2023 more than nine months after the tenant first became aware of the mould issues. Each application was brought out of time and delay was a relevant consideration which the Member, in the exercise of her discretion, correctly, concluded could not be overcome.
11. The prospects of success were limited and we conclude that the Member did not err when she dismissed the application. The tenant filed no documents that would establish a clear breach by the landlord. Whilst it was not in dispute that the premises leaked during a storm event in February 2022, there was no subsequent evidence that any failure by the landlord to repair or maintain the property caused ongoing mould problems. A builder attended the premises on 11 June 2022 and notified the landlords that no roof leaks were found and that there was no water damage on the walls. We consider the Member correctly concluded that a leak following a storm event was not enough to establish a breach and the prospects of success were limited.
12. The question of prejudice to the respondent was addressed in the Tribunal's oral reasons. The respondent identified that this was the third time the agent was required to appear and each time the landlord incurred expense. The tenant had provided no additional evidence and the landlord considered the matter settled. The winning party is entitled to consider a matter finalised and the Tribunal considered that an extension of time, given the limited prospects of success, was not in keeping with the guiding principles of the Tribunal, the just, quick and cheap disposition of matters before it, (see s36 of the NCAT Act).
13. The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, including that the discretion to extend time can only be exercised in favour of the applicant upon proof that strict compliance with the rules will work an injustice upon the appellant.
14. We have considered the factors that, generally, should be considered concerning the application for an extension of time, as outlined in Jackson, including the tenant's explanation for delay.
15. However, we do not consider that refusal of an extension of time worked an injustice on the tenant. We conclude, for the reasons we have outlined above, we do not consider that the appellant has an arguable case on appeal.
16. We do not consider that the tenant has established that the decision of the Tribunal was more than arguably wrong because of these grounds, nor has the tenant established the existence of any of the other discretionary matters concerning the grant of leave to appeal. Accordingly, we refuse leave to appeal in respect of these grounds. Had we granted such leave, however, we would have rejected these grounds of appeal for the same reasons.

Orders

1. The orders that we accordingly make are as follows: 1. Leave to appeal is refused. 2. 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: 26 October 2023