Phillips v Willoughby Retirement Community Association

NCAT Consumer and Commercial|2019-07-12

Introduction

Ms Doreen Phillips commenced living in the Willoughby Retirement Community Association Retirement Village, with her then husband, in 1995 and remains in residence to date.
In 2012 Ms Phillips made a number of complaints alleging she was suffering from passive smoking which she stated emanated from the units on either side of her own unit.
Ms Phillips and her husband occupied units 405 and 406 on the fourth floor of an eight story round, or rather octagonal, block called "The Tower" units 405 and 406 had been converted from two single bedroom units into one double bedroom unit.
A retired couple, Mr and Mrs Foskey, commenced occupying units 404 and 407. It is not clear on the evidence and is not relevant how Mr and Mrs Foskey occupied their two units but according to Ms Phillips they occupied one during the day and slept in the other at night. It appears from other evidence provided by the respondent that that may not be accurate but that is of no account in determining these proceedings. What is relevant is that both units were occupied at the same time, if not during the same hours.
Ms Phillips' 2012 complaints asserted a very high level of cigarette smoke emanating into her lot, allegedly from the balconies of lots 404 and 407. I use the term "a very high level" because according to Ms Phillips her neighbours smoked many hours per day, every day and into the night and there was a higher concentration of smoke coming into her lot through open doors or windows and also through cracks and spaces under doors and similar.
Apparently acting on her complaints, the operator called a meeting of other residents to consider a proposed new by-law in relation to smoking in the Village. The existing by-law was, or was to the effect of: "Smoking in bed is not permitted. Smoking in common areas is not permitted." The proposal by the operator was to extend Rule 18 so as to make the Village "non-smoking" other than in designated smoking areas.
It appears that the Residents Committee had dissolved itself in 2007. In any case a "Residents' Meeting" was convened on 23 April 2012. Following discussion the residents voted 13 to 9 not to change Rule 18.

Orders Sought

The application states that the applicant seeks an order pursuant to s. 54(1)(a) and (b) of the Retirement Villages Act 1999 (RV Act) in relation to Rule 18. More specifically, Ms Phillips seeks an order ("ORDER 1A") under s. 54(2)(b) to modify Rule 18 as follows: "Other than in a designated smoking area allocated by village management, smoking is not permitted anywhere in the village, including any Unit, balcony, common area, grounds or gardens.
The applicant also seeks an order for compensation pursuant to s. 66(3)(k) and s. 128(f) of the RV Act as follows: "That WRCA will pay a sum of $10,000 to Mrs Phillips in compensation for the deprivation of her rights to peace and quiet enjoyment of her premises over a period of more than six years, and the consequent real and continuing damage to her health."
Alternative orders 1B and 1C are as follows: "1B Village Rule 18 is set aside until replaced by a new Rule proposed by management in full recognition of its obligations under s. 62(2)(k) of the RV Act. The new rule will provide, as a minimum requirement, that smoking will not be permitted within a separation zone of 4 m in all directions, horizontally and vertically, from the external boundaries of all walls and floor and ceiling of unit 405/406 occupied by the Applicant Doreen Phillips. Such 4-metre exclusion zone will include areas both open and enclosed unless a hermetically sealed against escape of cigarette smoke." "1C Village Rule 18 is set aside until replaced by a new Rule proposed by management in recognition of its obligations under s. 66(2)(a) of the RV Act."
In accordance with Tribunal Directions made on 30 April 2019, on 14 May 2019 Mrs Phillips filed an affidavit dated 10 May 2019. Also in accordance with those directions Mr McBride filed on behalf of Mrs Phillips a concise one-page summary of the application and the requested orders. In that document the first order sought by the applicant has been amended to: "Rule 18. Smoking in bed is not permitted. Smoking in common areas is not permitted. Smoking is not permitted within a separation zone of 4 m in all directions, horizontally and vertically, from the external boundaries of all walls and floor and ceiling of unit 405/406 occupied by the Applicant Doreen Phillips. Such 4-metre exclusion zone will include areas both open and enclosed unless hermetically sealed against escape of cigarette smoke."

Applicant's Evidence

In her application, in addition to a 12-page submission prepared by Mr McBride, the applicant provided the following documentary evidence: 1. authority for Brian McBride to represent Doreen Phillips (actually an "Authority to Settle" in relation to the mediation on 19 February 2019 as referred to in paragraph 10 above); 2. DFT letter advising that the attempted mediation had failed; 3. Deed of License dated 31 May 1995 between Ronald and Doreen Phillips and WRCA including the Village Rules; 4. correspondence between Doreen Phillips and WRCA in the "relevant period" from 08 February 2012 to 15 February 2013; 5. medical certificates; 6. copy of Sheath v Whitley [2014] NSWCATCD 44; 7. "summary list" of further correspondence between the parties and others from 05 February 2012 to 22 April 2016; 8. submission "Reasons Residents Meeting 23 April 2012 Was Invalid" unsigned but apparently prepared by Mr McBride; and 9. evidence of "other resident's abuse" of Mrs Phillips.
Affidavit of Ms Phillips dated 10 May 2019,

Respondent's Evidence

The respondent lodged a lengthy affidavit sworn by Ms Lindy Kearns, Village Manager, dated 24 June 2019, to which was attached two Exhibits, each comprising a large bundle of documents. The affidavit is 27 pages long and comprises 177 paragraphs.
The first exhibit to Ms Kearns' affidavit ("LK-1") is stated to contain evidence in relation to "smoke-drift".
The second exhibit to Ms Kearns' affidavit ("LK-2") is stated to contain evidence in relation to matters "other than smoke-drift".
I will refer to the respondent's evidence below but without intending any disrespect to the respondent and in particular to Ms Kearns (who has patently gone to a great deal of trouble to locate and attach relevant documents) it is not necessary to summarise her evidence at this stage. However, I will note that LK-1 is in the form of a very detailed chronology (in reply to the applicant's chronology) referring to the numerous attached documents. Exhibit LK-2 consists entirely of a 64-page chronological schedule.

Legislation and Village Rules

Retirement Villages Act 1999: 54 Other applications to Tribunal concerning village rules (1) The operator of a retirement village or a resident of the village may, at any time, apply to the Tribunal for an order in relation to either or both of the following - (a) a dispute concerning the legal validity of a village rule in force in the village, (b) a village rule in force in the village that the operator or resident considers to be unjust, unconscionable, harsh or oppressive. (2) The Tribunal may determine an application made under subsection (1) by making an order - (a) setting aside the village rule concerned, or (b) modifying the operation of the rule in its application to a resident or to some or all of the residents of the village, or (c) upholding the rule. 66 Operator to respect rights of residents (1) The operator of a retirement village must respect the rights of residents of the village. (2) In particular, the operator: (a) must not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of a resident, and (b) must take all reasonable steps to ensure that all residents meet their obligations under their village contracts, the village rules and this Act, so that a resident does not unreasonably interfere with the peace, comfort and quiet enjoyment of his or her fellow residents, and (c) must not interfere with the right of any resident to autonomy over his or her personal, financial and other matters and over his or her possessions, and (d) must not inhibit any resident from exercising self-reliance in matters relating to his or her personal, domestic and financial affairs, and (e) must use his or her best endeavours to ensure that each resident lives in an environment free from harassment and intimidation. (3) A resident of a retirement village who is of the opinion that the operator of the village has contravened any provision of this section in relation to the resident may apply to the Tribunal for an order for either or both of the following: (a) an order directing the operator to pay compensation to the resident, (b) an order directing the operator to comply with this section. (4) On an application made under this section, the Tribunal may make the order sought or any other order of a kind set out in subsection (3). 122 Disputes between operator and resident (1) If a resident (or residents) or the operator of a retirement village claims that a dispute (including a dispute as to whether the operator is discharging his or her obligations under section 66(2)(b)) has arisen between the resident and the operator or the operator and one or more residents, the resident (or residents) or operator may apply to the Tribunal for (and the Tribunal may make) an order in respect of the dispute. Note. Section 128 specifies some of the kinds of orders that the Tribunal can make. 128 Order of Tribunal (1) The Tribunal may, on application by a resident (or residents) or an operator under this Act, make one or more of the following orders: (a) an order directing the resident (or residents) or operator to comply with a requirement of this Act or the regulations, (b) an order that varies or sets aside a provision of a village contract that conflicts with this Act or the regulations, (c) an order that: (i) restrains any action in breach of any village contract or village rule, or (ii) requires the performance of any village contract or village rule, (d) an order directing the resident (or residents) or operator to perform such work or take such other steps as the order specifies to remedy a breach of a village contract or village rule, (e) an order for the payment of an amount of money, (f) an order for compensation, (g) an order that requires payment to the Tribunal of all or part of any recurrent charges payable by a resident (or residents) to the operator until the whole or part of any village contract has been performed or any application for compensation has been determined, (h) an order that requires payment (out of recurrent charges paid to the Tribunal) towards the cost of remedying a breach of a contract or towards the cost of any compensation, (i), (j) (Repealed) (k) in the case of an application in relation to any other dispute made by a resident (or residents) or an operator of a retirement village that is subject to a community land scheme and with the concurrence of the other party to the dispute - any order that the Tribunal may make under the Community Land Management Act 1989 to determine the dispute, (k1) in the case of an application in relation to any other dispute made by a resident (or residents) or an operator of a retirement village that is subject to a strata scheme and with the concurrence of the other party to the dispute - any order that the Tribunal may make under the Strata Schemes Management Act 2015 to determine the dispute, (l) any other order prescribed by the regulations for the purposes of this section. (2) Nothing in this section limits the orders that the Tribunal may make under this Act.
Village Rules (VR): "Rule 18. Smoking in bed is not permitted."
Deed of License (Deed) made the 31st day of May 1995, Clause 7: "7 USE OF UNIT 7.1 The Licensee shall not use or permit or suffer the Unit to be used otherwise than as a residence for the Licensee. 7.2 The Licensee will not cause allow or suffer any conduct in or upon the Unit or any other part of the Village by himself or any person or persons which: i) could reasonably be regarded as a nuisance or annoyance to Residents of other units in the Village or neighbours of the Village or which may interfere with the quiet enjoyment by them of their premises or common areas and facilities; ii) is of an illegal or immoral character; iii) contravenes any of the Rules of the Village."
WRCA Disclosure Policy. A copy of the Disclosure Policy has not been provided by either party. In correspondence to Mrs Phillips from Mr Don Landers (Chairperson of the WRCA Board at that time) dated 05 September 2013, he writes: "… In relation to smoking, this Association's Disclosure Statement makes the sole statement as follows. The village and hostel has a NO SMOKING POLICY. For health and safety, smoking is not permitted in common areas. All units have smoke detectors, activation of which will directly summons the NSW Fire Brigade. Any resident responsible for a false alarm call-out is billed a proportion of the Fire Brigade penalty."
On 27 October 2014, Ms Kearns wrote to Mrs Phillips in relation to an information session held on 29 October 2013 in which she quoted the Disclosure Statement policy in slightly different terms: "… The actual wording in the disclosure statement is as follows: 'The village and hostel has a NO SMOKING POLICY. For health and safety, smoking is not permitted in common areas. All premises have smoke detectors, activation of which will directly summons the NSW Fire Brigade. A proportion of the Fire Brigade penalty is billed to any resident responsible for a false alarm call-out."
Retirement Villages Regulation 2009 (RV Regulation 2009): Schedule 5 Time for making of applications to Tribunal (Clause 38 (1)) Column 1 Column 2 Section Time during which application may be made 18(6) no earlier than 14 days after date of request for disclosure statement 36(3) no earlier than 1 month after service of rescission notice 36(8)(a) up to 3 months after date of rescission 36(8)(b) up to 3 months after date of rescission 37(3) up to 3 months after date of rescission 53(3) up to 30 days after date of notification of refusal to consent 107(5) no earlier than 14 days after date of request by Residents Committee under section 107 (4) 108(1) up to 30 days after date of notification of refusal to consent or, if residents do not notify, up to 14 days after expiry of period under section 107 (2) 113 no earlier than 59 days immediately prior to commencement of the financial year and any time until the end of the financial year 132(3) up to 7 days after date of notification of differing opinion as to condition of premises 134(1) no later than 14 days after service of termination notice 134(2) no later than 14 days after service of termination notice 135(1) up to 30 days after alleged incident became known to operator 140(1) up to 30 days after date fixed for vacation by earlier Tribunal order 146(1) any time before goods are disposed of under section 147 no earlier than 30 days after date of notice required under section 147 (2). 147(1) If that notice cannot be given, application cannot be made earlier than 30 days after date on which: (a) the former resident vacated premises concerned (if the residence contract was terminated by order of the Tribunal), or (b) the residence contract was terminated (in any other case) 148(2) up to 12 months after date operator deals with the goods 163(6)(a) up to 3 months after date of receipt of claim 163(6)(b) up to 3 months after date of receipt of claim 181(5)(a) no earlier than 1 month before expiry of period in section 181 (2) (f) and no later than 14 days after expiry of this period 181(5)(b) no earlier than 1 month before expiry of period in section 181 (2) (f) and no later than 14 days after expiry of this period 182(1)(a) up to 14 days after due date for payment

Retirement Villages Regulation 2017 (RV Regulation 2017): Schedule 4 Time for making of applications to Tribunal Column 1 Column 2 Section Time during which application may be made 18(6) no earlier than 14 days after date of request for disclosure statement 36(3) no earlier than 1 month after service of rescission notice 36(8)(a) up to 3 months after date of rescission 36(8)(b) up to 3 months after date of rescission 37(3) up to 3 months after date of rescission 53(3) up to 30 days after date of notification of refusal to consent 107(5) no earlier than 14 days after date of request by Residents Committee under section 107(4) 108(1) up to 30 days after date of notification of refusal to consent or, if residents do not notify, up to 14 days after expiry of period under section 107(2) 113 no earlier than 59 days immediately prior to commencement of the financial year and any time until the end of the financial year 132(3) up to 7 days after date of notification of differing opinion as to condition of premises 134(1) no later than 28 days after service of termination notice 134(2) no later than 28 days after service of termination notice 135(1) up to 30 days after alleged incident became known to operator 140(1) up to 30 days after date fixed for vacation by earlier Tribunal order 146(1) any time before goods are disposed of under section 147 no earlier than 30 days after date of notice required under section 147(2). 147(1) If that notice cannot be given, application cannot be made earlier than 30 days after date on which: (a) the former resident vacated premises concerned(if the residence contract was terminated by order of the Tribunal), or (b) the residence contract was terminated(in any other case) 148(2) up to 12 months after date operator deals with the goods 163(6)(a) up to 3 months after date of receipt of claim 163(6)(b) up to 3 months after date of receipt of claim 181(5)(a) no earlier than 1 month before expiry of period in section 181(2)(f) and no later than 14 days after expiry of this period 181(5)(b) no earlier than 1 month before expiry of period in section 181(2)(f) and no later than 14 days after expiry of this period 182(1)(a) up to 14 days after due date for payment

Civil and Administrative Tribunal Rules 2014 (CAT Rules): 8 Applications for extensions of time An application for an extension of time made under section 41 of the Act must be made in writing unless the Tribunal dispenses with that requirement. 23 General applications … (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made - (a) in the case where enabling legislation specifies the period within which the application is to be made - within the period specified, or (b) in any other case - within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application. (4) This rule does not apply to a referral to the Tribunal by the Ombudsman of a legal question for an advisory opinion under section 35C of the Ombudsman Act 1974.
Civil and Administrative Tribunal Act 2013 (CAT Act): 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.

Pre-Hearing Correspondence

As noted above (see paragraph 14 above) the application was listed for directions on 30 April 2019 before Senior Member Thode. Directions were made for the service of evidence and "the hearing was adjourned to a date to be fixed by the Registrar". In accordance with normal Tribunal practice, a copy of the directions was sent to Mrs Phillips by email to "mcbride9@bigpond.net.au". There is nothing on the Tribunal file to suggest that the email was not received and indeed as noted already Mrs Phillips and Mr McBride complied with the directions for service of evidence.
On the following day, 01 May 2019, a "Notice of Hearing" was sent to the parties. The Notice to Mrs Phillips was addressed to "mcbride9@bigpond.net.au". There is nothing on the Tribunal file to suggest that the email was not received.
By email on 01 July 2019, Mr McBride wrote to the Registry: "Dear NCAT I have today received the WRCA response to the original Application which was subject to a Directions Order on 30 April 2019. I understand that, as the Applicant's representative, I can now make a further response to that document before a Hearing date is set. Would you kindly confirm that arrangement and the timeframe for things to proceed to the next step. Many Thanks Brian McBride Representative for the Applicant Doreen Phillips."
On 05 July 2019, the registrar wrote to the parties (by email to Mrs Phillips at "mcbride9@bigpond.net.au") as follows: "Correspondence has been received from the Applicant on 1 July 2019 concerning Orders Made on 30 April 2019. The Member has not made an additional order for the Applicant to reply to the submissions of the Respondent. The correspondence has been placed on file. Any outstanding issues with procedural directions should be raised at the next hearing. The matter is next listed on 12 July 2019."
On 09 July 2019, Mr McBride responded by email to the Registrar's advice sent on 05 July 2019 (see paragraph 37 above) as follows: "Dear Registrar Thank you for this advice. I confirm I will attend on Friday 12 July. I attach a letter of request for the Tribunal to consider at this Directions Hearing. I confirm that by copy of this email I have also served this letter on the Respondent WRCA. I have done so in order to reduce time dealing with its contents on Friday 12 July. It is the Applicant's request to proceed to a final Hearing date as early as possible …"
The "letter of request" referred to in that email was a 3.5-page letter to the Registry which essentially comprised submissions in response to the respondent's evidence apparently received by Mr McBride on 01 July 2019. However, the 08 July 2019 document also contained the following statements: "Thank you for the notice of a second Directions Hearing listed for Friday, 12 July 2019 at 1:15 PM. … The Applicant therefore seeks a Directions Order on 12 July: "That the respondent WRCA, withdraw the 29 page Response and associated Attachments and replace them with a Response that deals solely and directly only with the complaint about exposure to passive smoking and the alleged breach of laws which that represented in the specified twelve months period from 8 February 2012 to 15 February 2013'. … Brian McBride will appear on Friday 12 July but it is uncertain whether Mrs Phillips can attend due to continuing health problems. I trust this is acceptable to the Tribunal."
For the sake of completeness I note that the respondent replied to the letter dated 08 July 2019 by letter dated 10 July 2019. The respondent's letter consisted of submissions in reply and concluded: "11. It is a matter for the Tribunal at the Hearing on 12 July 2019 as to whether the Hearing should be postponed or continued at a later date. The Respondent would have no objection to any requested delay of proceedings by the Applicant."

Should the Hearing Proceed?

At the beginning of the hearing I advised the parties that there were two issues in particular that I wish them to consider in the course of presenting their cases.
First was the issue of any time limitation: noting that the applicant sought to restrict the period under consideration to February 2012 until February 2013. The latter date was more than six years prior to the date this application was lodged in April 2019. I stated that I was not certain of the limitation period, if any, under the RV Act but that I would research that issue and take it into account in making my determination. I stated that I intended to hear the matter as set down without adjourning to consider the limitation issue.
Second was the issue of the compensation order sought by the applicant. I noted that while the Tribunal had the power to make an order for compensation under s. 125(e) of the RV Act, I did not understand the nature of the claim for compensation in the sum of $10,000.
Mr McBride then stated that he was not aware the matter was listed for formal hearing today, rather he understood it was listed for a further directions hearing. He referred to the correspondence referred to above at paragraphs 36 to 40 above. Mr McBride denied receiving a copy of the Notice of Hearing dated 01 May 2019. He also stated that he was expecting to be given sufficient time to provide evidence in reply to the respondent's evidence as he had been advised by Senior Member Thode at the directions hearing on 30 April 2019 that such time would be provided.
Mr English stated that he was present at the directions hearing and that he had no such recollection. Mr McBride repeated that he was told he would get time to respond and that he understood from the correspondence referred to at paragraphs 36 to 40 above that he would be given time.
Mr McBride was advised that the orders made on 30 April 2019 (a copy of which he did receive) made no reference to an order for reply evidence or submissions. Mr McBride noted that in the correspondence just referred to, he had referred to therein to another directions hearing and also that he understood from the correspondence from the registry dated 05 July 2019 that the next hearing (that is, 12 July 2019) would be a directions hearing. I considered that submission and advised Mr McBride, after reviewing the correspondence again, that I was satisfied that it had never been indicated that the next hearing would be a directions hearing and that no order for reply evidence and submissions had been made.
I then discussed briefly with the parties what should happen in relation to proceeding with the hearing. Both parties indicated firmly that they wished to proceed with the hearing as set down.
The hearing then proceeded by way of the parties making oral submissions. Mr McBride relied essentially on the very detailed submissions lodged with the application.
Mr English then made oral submissions on behalf of the respondent which followed the course of the one-page written submission provided to the Tribunal at the hearing

No Adjournment

I listened to the Tribunal recording of the directions hearing on 30 April 2019: see Annexure. Senior Member Thode carefully, at some length and with considerable repetition emphasised with some force that the next hearing would not be a directions hearing, rather it would be a 3-hour formal hearing. This was discussed with Mr McBride who confirmed, by repeating back the orders, that he understood what the next steps would be, including that the next hearing would be the formal hearing. In my opinion it is impossible to believe that Mr McBride understood that an order would be made for the applicant to provide reply evidence and submissions. It is also impossible to believe that Mr McBride was in any doubt that the next hearing was not to be a further directions hearing but would be the formal 3-hour hearing.
No doubt Mr McBride's recollection had faded and he appears also to have misunderstood the correspondence from the registry dated 05 July 2019.
I find that even had there been an application to adjourn the proceedings (and even if the respondent had confirmed its earlier advice that it would not object to an adjournment), for the reasons just outlined an adjournment was not warranted. In my opinion both parties were able to obtain and provide all their evidence and to prepare the presentation of their respective cases.

Time Limitation

Despite the discussion of this issue referred to in paragraph 42 above, apart from the applicant stating that he did not believe there was a time limitation issue and the respondent stating that the applicant was out of time, no detailed oral submissions were made. Neither party sought an opportunity to provide additional written submissions following the hearing and I should note that I did not invite such written submissions.
The Retirement Villages Regulation provides for time limitations in relation to Tribunal applications pursuant to numerous sections of the RV Act. These are set out in paragraphs 30 (2009 Regulation) and 31 (2017 Regulation) above.
No times are specified for ss. 66 or 128 of the RV Act.
In those circumstances it is necessary to consider Rule 23 of the CAT Rules and s. 41 of the CAT Act. This

Extension of Time

In my opinion the legal principles in relation to a request for an extension of time in this Tribunal are well-settled and may be found in the decision of a Presidential Appeal Panel in the matter of Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18] ff. This is a lengthy extract but is ASIC synced and very helpful summary of the relevant legal principles. "Extension of Time to Appeal - Principles 18 Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act 'is to facilitate the just, quick and cheap resolution of the real issue in the proceedings'. 19 An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion." 20 The Courts have identified in numerous cases various factors that should be considered in deciding whether to grant an extension of time in which to appeal. Substantially the same principles have also been applied by the Appeal Panel of the Administrative Decisions Tribunal (ADT), one of the predecessors of the Tribunal, in relation to appeals in the ADT - Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16], Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. These authorities provide useful guidance on the principles that are to be applied by the Appeal Panel in this regard. 21 Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. 22 The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."
An application for an extension of time in any proceedings in the Consumer and Commercial Division of the Tribunal (or any other division of the Tribunal) is brought pursuant to s. 41 of the CAT Act. An application for an extension of time in relation to an appeal from a decision in a Division of the Tribunal is also brought pursuant to s. 41 of the CAT Act. In my opinion the same principles apply in this Division as were applied in Jackson.
I now consider, in relation to any extension of time, the facts in these proceedings and apply those principles. 1. The length of the delay. 1. Rule 23(3)(b) provides that the application must be made within 28 days from the day on which the applicant, Mrs Phillips, "became entitled under the enabling legislation" to make the application. 2. Mrs Phillips' entitlement to make this application pursuant to s. 66(2) (a) and/or (b) of the RV Act arose under s. 122 of that Act when, as a matter of fact, Mrs Phillips claimed there was a dispute between her and the operator (that is, the respondent) or between her and another resident in relation to her rights under s. 66 being affected by sidestream smoke entering her unit. In the particular case, the dispute related to the allegation that sidestream smoke was entering her unit from one or other or both of the adjoining units 404 and 407. 3. The fact which has to be established is not the date Mrs Phillips claims smoke entered her unit but the date when she objected to the entry of sidestream smoke into her unit with her neighbour or neighbours on the one hand and the date when she objected to the entry of sidestream smoke into her unit with the operator on the other. That is, if we suppose smoke was entering Mrs Phillips' unit for many months or years but she remained silent, a dispute had not yet arisen. The dispute doesn't arise until by some means or other she made clear that she was in dispute with a neighbour or neighbours or the operator: see Bavin v Parklea Operations Pty Ltd [2019] NSWCATAP 120 at [47] - [48]. 4. According to Exhibit LK-2 in the respondent's evidence, Mrs Phillips' first complaint in relation to smoke in her unit was made on 08 February 2012. It is not clear from the document to whom that complaint was made. However, the next entry dated 17 February 2012 makes it clear that Mrs Phillips attended the operator's office and requested the person in attendance to accompany her back to her unit to smell the smoke. Between 05 March 2012 and 30 April 2012, LK-2 suggest that Mrs Phillips wrote five letters to the operator complaining about smoke drift. 5. According to Mrs Phillips' affidavit dated 10 May 2019 at paragraph 9, she could smell "the acrid burning sensation of cigarette smoke invading my premises at all hours". However she does not state she made any report or complaint until 08 February 2012 when she wrote to her neighbour and provided a copy of that letter to Ms Kearns: paragraphs 11-12. 6. I find that a dispute arose between Mrs Phillips and another resident (Mrs Foskey) and the operator on 08 February 2012. 7. Pursuant to Rule 23(3)(b), Mrs Phillips and had 28 days to bring this application from 08 February 2012, that is, by 07 March 2012. 8. This application was lodged on O4 April 2019 at the Service NSW office at Castle Hill and was received by NCAT at Penrith on 10 April 2019. It does not affect the outcome but I will take the date the application was lodged to be 10 April 2019. The delay is therefore a period of about 7.09 years 1. The reason for the delay. 1. As noted previously, the applicant, or those advising her, argue that the proceedings should be determined on the basis of actions occurring between 08 February 2012 to 15 February 2013. The "end date" was chosen because it is asserted that was the date of the operator's "final concluding response on 15 February 2013 put an official end to the process by stating 'management is unable to take the matter further'." The applicant says that any later actions "will only introduce secondary arguments …". 2. On that basis it is hardly surprising that the application and its attached documents did not provide and did not seek to provide any reason for the delay in complying with the provisions of the RV Act and the CAT Rules. 3. In her affidavit of 10 May 2019, Mrs Phillips sets out details of actions and events between 08 February 2012 and 15 February 2013. Although she states that "[m]y last 6 to 7 years have become a distressed, anxious and depressing life …", Mrs Phillips makes no reference at all to the delay in bringing this application in April 2019. 4. I find there is no explanation for the delay. 1. Mrs Phillips' prospects of success in these proceedings. 1. For the reasons to be given below, I find that Mrs Phillips had very little prospects of success in bringing this application. 2. In the first place, I have found that the provisions of the RV Act already provide the means to sufficiently protect Mrs Phillips' rights pursuant to s. 66(2), all that is required is that the operator comply with its duties under that section and if it does not then Mrs Phillips may bring a timely application to this Tribunal. There is therefore no utility in ordering that the operator re-draft Rule 18 all the Disclosure Statement or the Deed although, as stated below, I would be inclined to order that the operator does so to clarify the harmony between village rules and policy and the legislative provisions. 3. There is minimal evidence of actual entry of smoke into Mrs Phillips' unit. I can only find one reference which occurred on 13 February 2012. The evidence otherwise strongly suggests Mrs Phillips' tendency to grossly exaggerate the level of smoking by her neighbours. 4. The medical evidence, to be considered below, has very little persuasive weight although, as I will also consider below, I find that the principal to be applied in this Tribunal is that any sidestream smoke is a nuisance and a risk to the victim's health. 5. As was suggested in Jackson at [35], given the other factors weighing against granting an extension under s. 41 of the CAT Act, Mrs Phillips would need to satisfy the Tribunal that her case "has more substantial merit than being merely fairly arguable". I find she does not meet that test. 1. Prejudice to the respondent. 1. This horse has long since bolted, given that the proceedings have concluded. However, in my opinion, there can be no doubt that the respondent has suffered the prejudice of having to expend considerable time and at least in the sense of opportunity cost considerable expense in preparing and arguing its defence. 2. Were an extension of time being argued as an interlocutory matter soon after the application was lodged, the prejudice to the respondent would weigh significantly in my determination of the extension of time argument.
Applying those principles, I do not grant an extension of time pursuant to s. 41 of the CAT Act to commence these proceedings. Therefore, the application is dismissed.

Merits Determination

In case my decision in paragraph 60 is wrong, I will go on to consider the application on its merits.
In order to clear the decks a little, in my opinion (without referring to particular decisions) it is not necessary to seek to demonstrate, in 2020, that smoking, including passive smoking, is a health risk nor that the risk occurs as soon as smoke is inhaled.
It has been accepted in this Tribunal and indeed in its predecessor Tribunal, the Consumer, Trader and tenancy Tribunal (CTTT), that sidestream smoke resulting from tobacco smoking is a nuisance (that is, a nuisance in legal terms) which interferes with a person's right to quiet enjoyment comfort and privacy as that right may be expressed in particular legislation.
It has further been accepted in this Tribunal and the CTTT that in order to protect that right, another resident or neighbour may be ordered not to smoke anywhere in their own a lot or in the lot they occupy. A fairly early example of such a decision is found in Owners Corporation SP 49822 v May & Ors (Strata & Community Schemes) [2006] NSWCTTT 739. I am not aware of any decision in this Tribunal or its predecessor of a decision to the effect that a resident or visitor in a strata scheme or a retirement village or any premises in which residents may be in close proximity to other residents is permitted to smoke and any person who may potentially experience sidestream smoke is responsible for sealing their own a lot against the possible ingress of sidestream smoke.
The operator of a retirement village may include a rule banning smoking altogether within the boundaries of the village, including within individual residences and it may also introduce a suitably sealed smoking area from which tobacco smoke cannot escape.
In my opinion it is not necessary to order an operator of a retirement village to do so because s. 66 of the RV Act already gives the operator not only the power but the duty to protect the peace comfort and quiet enjoyment of the residents from interference with those rights by the operator or by another resident.
I find that it is not necessary for the operator to seek the approval of the residents to introduce a rule banning smoking or something similar. The operator instead should be vigilant to comply with the provisions of the RV Act in that regard based on the understanding that the rights of any resident who experiences sidestream smoke are being interfered with.
By the same token, should the residents of a retirement village unanimously pass a resolution permitting smoking either generally or in particular areas, that rule must comply with s. 47 of the RV Act to the effect that "[a] village rule is of no effect to the extent that it is inconsistent with this or any other Act or law".
For those reasons I dismiss the application, as amended from time to time, that Rule 18 be amended further as sought in this application.
To the extent that Mrs Phillips is seeking a declaration that Rule 18 is harsh or unconscionable, I find that that is a misconceived application. The current Rule 18 must be consistent with the RV Act or any other Act or law and to the extent that "smoking in bed" may cause the rights of another resident to be compromised then it is not harsh or unconscionable.
If this part of the application is based on an interpretation of Rule 18 that it means a person may smoke anywhere else in the village but in bed, I reject that submission and interpretation. The current Rule 18 means no more than a resident may not smoke in bed. On that interpretation there is no reason to amend the rule.
For those reasons the application for Order 1A is dismissed.

Compensation

Mrs Phillips, or at least those acting on her behalf, are seeking pursuant to s. 128(g) of the RV Act a payment of compensation in the sum of $10,000.00. Mr McBride did not offer any rationale or information as to how that some was calculated nor any submissions as to why it was a reasonable amount, apart from asserting that Mrs Phillips' retirement was "destroyed".
Apart from the comments made by me at the beginning of the hearing, I note that the issue of compensation was also discussed at the directions hearing before Senior Member Thode on 30 April 2019. I have listened to the recording of that hearing and in my opinion Senior Member Thode specifically raise the issue as to what kind of compensation was meant in the section. She suggested that it referred to a party being compensated for some actual loss including financial loss. She suggested also that it was not compensation arising from the negligent act of another party. As I understand her comments, she was referring to the legal principle that compensation in that sense means putting the plaintiff or applicant, so far as money can do so, into the position they would have been in had the loss not occurred.
That is specifically the point that I endeavoured to raise at the beginning of the hearing. Neither party provided, in my respectful opinion, appropriate submissions or evidence in that regard.
In discussion with the parties and particularly with Mr McBride, I sought to clarify the nature of the injury loss or damage which would support a claim for compensation.
Mr McBride submitted that the compensation was for her not being able to enjoy her retirement which was the fault of the operator. It was also submitted by Mr McBride that the operator should be punished for not doing the right thing, and that making an order to pay cash compensation to Mrs Phillips was a suitable method of punishment.
In relation to the method of calculating a suitable sum, Mr McBride submitted that this was very difficult to do but that on the evidence it was clear that Mrs Phillips had been very unhappy for a long period of time. I suggested to Mr McBride that if the compensation claim related to Mrs Phillips' grievous suffering and unhappiness (as he had submitted), that was a personal injury claim. Mr McBride's response was: "McBride - I'm not a lawyer, I am a humble electrical engineer doing my best to point to the Retirement Villages Act section 66 which says certain things shall not happen with residents and we're saying they did happen and it's not the resident's fault, it's the operator's fault. The operator should be found guilty and made accountable in some way. The best way to make them accountable is to make them pay some dollars in compensation. So it's that element of compensation which is stressed and the issue of personal injury - we don't raise it, we raise the risk of personal injury, we don't raise - Tribunal - It's the same thing, sorry, a risk of personal injury is the personal injury claim, it's calculated in a different way. Compensation can't be granted just on the basis of punishing someone if they haven't complied with the terms of an Act, if that is what is found."
At that point, Mr McBride switched focus to whether the hearing was to proceed on the day, as set out in detail above.
For the sake of completeness, I find that the medical certificates provided by the applicant are not in the form appropriate to an expert medical report: see Hagh v Kong [2014] NSWCATAP 47 at [12]: "[12] Although it was ultimately unnecessary for us to deal with this issue, we respectfully adopt what the Court of Appeal said in AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [4] and [5]. Although the statements by the Court of Appeal refer to the requirements in court, generally speaking, we consider them appropriate to apply equally in the Tribunal. The Court said: [4]... The Court will not ordinarily act on... a formulaic document [being a medical certificate] and will require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant's inability to attend Court.
Although that extract relates to an application for an adjournment on the basis that a party was not able to attend the hearing, which is a different situation from that under consideration here, in my opinion the same principle applies. Therefore to the extent that Mrs Phillips may be claiming actual physical damage or injury, I find she has not proved that claim for lack of expert evidence.
As argued by those assisting Mrs Phillips, I find that the compensation claim is misconceived and not in accordance with legal principle.
I find also that with respect to the claim for compensation in relation to the injury loss or damage suffered by Mrs Phillips (to the extent that it might be proved), it is a personal injury claim. Therefore it must comply with the provisions of the Civil Liability Act 2002 (CL Act.
I find that the loss being claimed on Mrs Phillips' behalf is a non-economic loss as defined in s. 3 of the CL Act and that the injury is impairment of her physical or mental condition as defined in s. 11 of the CL Act. In that case, the compensation claim does not comply with the provisions of s. 16 of the CL Act and is therefore dismissed.
For those reasons application RV 19/17352 is dismissed.

Annexure: Conciliation and Directions Hearing on 30 April 2019 Transcript from 11:27:20 a.m. … R: Is the matter coming back for further directions on twenty-six June? ST: No I'm setting it down for a hearing. The next hearing notice you will get will be a hearing. I am setting it down for a 3-hour hearing, the hearing will not be before the 25th of June. The next hearing notice you will get will be for 3 hours. Now, I don't think it will require a 1-day hearing. Right, Mr McBride, any questions? A: You mentioned 25th of June, I had written down 26th of June. ST: Had you? Sorry that may have been my not talking loud enough. 25 June for your evidence. A: 25th for the actual hearing? ST: No … 14 May for you to file your documents. A: That's my concise summary plus an affidavit of evidence from Mrs Phillips. ST: That's correct and you, well, any document you want, I'm not telling you what to put on, you are the applicant you bear the onus of proof you have to decide what documents you want to put on. A: That's in addition to what I consider already served … with the application ST: Well, I, yes and no. If you say yes I'm gonna rely on all of the documents in the application and they've received one and we've got a copy then any additional information yes. A: Yes sure ST: You should make it clear in that that you are relying on the application form and all of its attachments and any additional material. Then on the 25th of June you going to get some documents from Mr English or some representative of the respondent. You don't have to be anywhere you'll just be sent some documents and then there will be a hearing notice informing you of the hearing sometime in, I don't know, I suspect not before August Mr … A: And that's where you talk about the three hour process, that's the August type thing. ST: That'll be hearing yes not a directions hearing like this one, it will be the full hearing, it'll be the final hearing you will present your case and the other side will present their case. A: And that could be as far away as August? ST: It absolutely can be, we hear 55,000 applications every year, we'll get you on as soon as possible. A: And again you think this is a 3-hour matter? ST: I believe so, again, we hear 55,000 applications every year, this is a Tribunal not a Court. If you believe you want to go to a Court of competent jurisdiction then you can think about or get some legal advice whether you want to go to a District Court or to a, to a Supreme Court or file a summons there. A: That court might be appropriate for higher compensation but it doesn't do anything in terms of changing retirement village rules so that's, that … ST: Mr McBride I've been sitting here full-time for 8 years, a 3-hour hearing is in keeping with s. 36 of the Civil and Administrative Tribunal Act, this is meant to be a just, quick and cheap hearing for both parties to get access to justice. A 1-day hearing in my view is not required, we hear $250,000 - $500,000 cases, that sort of case we will hear for 2 days. Then we hear Strata schemes Management, you know compensation claims in the vicinity of $500,000 - that might be a 1-day case. I can assure you that a 3-hour case is sufficient for the purposes of whether a by-law should be amended, revoked or whatever. A: Now, raise one other matter, I would attempt to get some pro bono legal assistance because there is substantial legal argument in this issue I would agree and where limited on funds Mrs Phillips is merely a pensioner and cannot afford anything substantial. If I succeed in getting some pro bono legal advice, would that change the timescale [?] We assume it will roll on … ST: You haven't yet got a hearing notice, once you get one if you cannot comply with this timetable or you cannot appear at the hearing which is set by the Tribunal for which everybody has to just turn up, we don't take your available dates, we, we ask you to please comply with the notice we send out you, if you can't comply with that notice and you need an adjournment, you ask for an adjournment in writing. A: So it would be appropriate to introduce legal representation after getting the notice of that hearing. ST: I don't under- it's up to you if and when you want to seek legal advice, I've told Mr English today why I'm only granting him leave today here to be here represented for this directions hearing, he is going to try, I don't want to say luck, he's going to try and get legal representation by writing to the Tribunal. If you want the same then you write to the Tribunal and seek leave. I now have 6 people sitting behind you waiting for the next directions hearing. Are there any other questions? A: No, I think that's fine. ST: Right. Any other questions Mr English? R: no … ST: Thank you very much for your assistance today, the copy of these orders will be sent out to each of you. Thank you. 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: 17 March 2022

Retirement Villages Regulation 2009(NSW)

Retirement Villages Regulation 2017(NSW)

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (5)

Cases Cited (12)