Nikjoo v NSW Land and Housing Corporation

The Appeals

1. The tenant filed Notices of Appeal against the decisions of the Senior Member on 23 January 2018. The tenant also applied for a stay of the money order made by the Tribunal on 15 January 2018. A stay was subsequently granted by the Appeal Panel until further order of the Appeal Panel.
2. At a directions hearing of the Appeal Panel on 13 February 2018, the Appeal Panel relevantly directed that the tenant file and serve any written submission in support of the appeals and any fresh evidence the tenant sought to rely upon, by 9 March 2018. The tenant has not complied with this direction, nor has any explanation been provided as to why the direction has not been complied with.
3. The tenant's Notices of Appeal have been filed within the limitation period in r 25 of the Civil and Administrative Tribunal Rules 2014.
4. The tenant, nor any person acting as his representative, failed to appear at the Appeal Panel hearing on 10 April 2018. On 9 April 2018, the tenant sent to the Registry an email containing documents. Relevantly, the email states that the tenant did not intend to appear at the Appeal Panel hearing on 10 April 2018 and "I respect the Tribunal decisions on paper". The email seeks leave to rely upon a number of documents that relevantly include:

• A statutory declaration of the tenant.
• A statutory declaration of the tenant's wife.
• An invoice dated 18 January 2014 for a reverse cycle air-conditioning system.
• Photographs from the Instagram site of the tenant's wife.

1. The grounds of appeal are not clearly expressed, nor are they supported by written submissions. Attached to the Notice of Appeal are screenshots of photographs from the tenant's wife's Facebook page regarding the condition of the premises during the tenancy.
2. The grounds of appeal relied upon by the tenant (in both appeals) can be summarised as follows:

• The Tribunal should have granted the adjournment application.
• The Senior Member "appeared biased" against public housing tenants.
• The Senior Member had found that the tenant and his wife were "unclean".
• The Senior Member should not have "speculated" as to what evidence the tenant and his wife may have given in their compensation claim against the landlord.

1. Under s 80 of the NCAT Act, a party may appeal from an error of law as a matter of right. In respect of errors other than errors of law, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 Schedule 4 of the NCAT Act on the basis that a "substantial miscarriage of justice" had occurred because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; 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).
2. The principles regarding whether or not leave to appeal should be granted under cl 12 Schedule 4 of the NCAT Act were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [76]-[84].
3. The grounds of appeal based on the refusal to grant an adjournment; the alleged "bias" of the Senior Member; and the decision of the Senior Member to dismiss the tenants compensation claim on the merits are alleged errors of law. The ground of appeal that the Senior Member made factual findings that the tenant was "unclean" was a factual finding that requires leave to appeal to be granted under cl 12 Schedule 4 of the NCAT Act.

Refusal to Adjourn

1. As discussed previously, the Senior Member gave oral reasons as to why the adjournment application was refused. The Senior Member was not satisfied the tenant had provided sufficient reasons or evidence to justify the adjournment of the matter. The tenant had sought an adjournment because he wanted more time to prepare his case. The tenant had not provided evidence to support the adjournment application, nor attended the hearing to expand upon his argument that the hearing should be adjourned.
2. In O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22], the Appeal Panel identified the following principles governing applications for an adjournment: (1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should be seen as the exceptional rather than the ordinary course; (3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment.
3. Refusing an adjournment may be inappropriate if it has the effect of depriving a party from adequately presenting the party's case: Armee v Brearley [2017] NSWCATAP 141 at [121] and [135]. However, in considering an adjournment application, the Appeal Panel must take into account all the relevant facts and circumstances of the matter, in the context of its guiding principle under s 36 of the NCAT Act.
4. We are not satisfied that the tenant has established any error of law by the Senior Member in refusing the adjournment application. The reasons and evidence given by the tenant to support the adjournment application were clearly insufficient to justify the granting of an adjournment. The tenant had ample opportunity to prepare for the hearing, and to file and serve and documentary evidence. The tenant had failed to comply with directions regarding the filing and serving of documentary evidence and had not written to the Tribunal or the landlord in a timely manner seeking an extension of the period to file and serve documentary evidence. Rather, the tenant had sent an email in very close proximity to the hearing, stating that he had insufficient time to prepare.
5. As a Solicitor, the Appeal Panel can infer that the tenant understood the importance of complying with Tribunal directions, and that adjournments are not granted merely because a party makes an application for an adjournment. The tenant's failure to attend the hearing, or arrange for a representative to attended on his behalf, in circumstances where the hearing notice of the Tribunal clearly indicated that the matters may be determined in the absence of the tenant if he did not appear, is not the conduct of a party that has been deprived of the opportunity of adequately preparing and presenting his case.
6. The tenant was not deprived of the opportunity to adequately present his case, both in respect of defending the landlord's application, and in respect of the tenant's claim for compensation.

Bias

1. The relevant principles regarding actual and apprehended bias were set out by the High Court in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; and Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 ('Isbester'). There is no evidence of any actual bias by the Senior Member.
2. In respect of apprehended bias, there is nothing in the transcript of the hearing to indicate that a fair minded reasonable observer would form the view that the Senior Member had pre-judged any issue, or had any pre-existing views about social housing tenants that unfairly affected the findings she made.
3. The tenant has also failed to: 1. identify the matter that might lead the Tribunal to decide the case otherwise than on the merits; 2. describe any logical connection between that matter and the feared deviation from the course of deciding the case on the merits; and 3. establish the reasonableness of the apprehension of the feared deviation being caused by the matter identified in the first step (Isbester at [59]).
4. It is clear from the transcript and the written reasons of the Senior Member that her factual findings were based upon the evidence that had been presented by the landlord about the condition of the property at the commencement of the tenancy and the condition of the property at the end of the tenancy. The reasons of the Senior Member were logical and cogent.

Dismissal of the Tenant's Claim for Compensation on the Merits

1. In respect of dealing with the tenant's claim for compensation, the Senior Member had the discretion to dismiss under s 55(1) of the NCAT Act on the basis that the tenant had failed to appear at the hearing, or dismiss the claim on the merits. The Senior Member exercised her discretion to dismiss the claim on the merits, due to the absence of evidence of the tenant and that the tenant's claim was out of time in any event, and the tenant would require leave to extend the limitation period under s 41 of the NCAT Act.
2. The Senior Member also had the power to dismiss under cl 10 of Schedule 4 of the NCAT Act if satisfied that the tenant's failure to identify the amount of compensation claimed, and to file and serve any substantial evidence in accordance with Tribunal directions had caused unreasonable disadvantage to the landlord.
3. In respect of the exercise of discretion, the tenant must show the Senior Member exercised the wrong principle; allowed extraneous or irrelevant matters to guide her; mistakes the facts; or failed to take into account a relevant consideration so that the exercise of discretion was "unreasonable or plainly unjust" for an error of law to have occurred (House v R [1936] HCA 40; (1936) 55 CLR 499).
4. We are not satisfied in the circumstances of this matter that the tenant has established an error of law in the Senior Member exercising her discretion to dismiss the tenant's claim for compensation on the merits. The tenant had not filed and served any significant documentary evidence to support the application, and would have to convince the Tribunal to extend the time period to bring such a claim in any event (Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22).
5. We are not satisfied that there was an error in the Senior Member determining that the tenant's claim for compensation had little, if any, prospect of success and determining the tenant's claim on the merits, rather than making an order dismissing the tenant's proceedings against the landlord on the basis of non-attendance.

Factual Findings Regarding Uncleanliness

1. The tenant argues that the Senior Member found that the tenant and his wife were "unclean". However, the Senior Member made no such finding. The Senior Member found that the tenant had not returned the property in the same condition it was rented (fair wear and tear excepted) and in the condition evidenced in the ingoing inspection report, in breach of the tenant's obligation under s 51(3) of the Residential Tenancies Act 2010.
2. There was clear evidence to support the findings made by the Senior Member in this regard. The tenant has failed to establish a substantial miscarriage of justice has occurred, and leave to appeal is refused under cl 12 Schedule 4 of the NCAT Act.

Application by the Tenant to Admit Fresh Evidence

1. We are not satisfied the tenant should be granted leave to rely upon the documentary evidence attached to his email of 9 April 2018, nor the extracts from his wife's Facebook page that were attached to the Notice of Appeal. No adequate explanation has been provided as to why the evidence was unavailable because no person could have reasonably obtained the evidence prior to the hearing, assessed objectively (Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111).
2. The only explanation given by the tenant in his written materials for failing to file and serve the evidence he seeks to rely upon prior to the hearing on 15 January 2018 and in accordance with Tribunal directions is that Christmas and New Year is a "busy time of year…to gather right information and evidence". That explanation is manifestly inadequate.

Conclusion

1. Having failed to establish any error of law or that a substantial miscarriage of justice has occurred, leave to appeal is refused and the appeal is otherwise dismissed. Accordingly, the stay of the order made by the Tribunal on 15 January 2018 for the tenant to pay the landlord $2,438.92 is lifted. Orders are made accordingly.

Orders

1. The Appeal Panel makes the following orders: 1. The stay on order 3 of the Tribunal dated 15 January 2018 in Matter SH 17/46144 is lifted; 2. Leave to appeal is refused; and 3. The appeals in Matter AP 18/04314 and AP 18/043148 are dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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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: 19 April 2018