Purdy v Link Wentworth Housing

(1) repair a faulty antenna and pay "35% of rental for 1 year";

(2) pay $360 "for extra data for the year past";

(3) pay "20% of rent for the year past for broken security lock on my unit door";

(4) pay "20% of rent for the year past for not controlling the dangerous tenant in unit 10";

(5) pay "10% of rent for the year past for never cleaning the bins";

(6) pay "10% of rent for the past year for locking the o/s toilet";

(7) pay "10% of rent for the past year for not maintaining the common areas"; and

(8) pay $160 for an unpaid invoice.

1. On 5 March 2025 the matter came before the Tribunal for a group list and conciliation hearing. The Tribunal made procedural directions in which it relevantly recorded that:

(1) the claim was properly understood as being a claim for compensation, rent reduction and repairs;

(2) the repairs sought had been completed, so that "only the question of money remains"; and

(3) the claim had been amended, including by addition of a ninth claim for "failure to maintain eaves and gutters on common property".

1. The final hearing of the matter took place on 16 July 2025. The Tribunal made orders and delivered written reasons for decision on the day of the hearing. It ordered the landlord to reimburse Mr Purdy $160 for an unpaid repair invoice (relating to repairs to a flyscreen) and dismissed the balance of Mr Purdy's application.

1. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
2. Where an appellant is self-represented and non-legally trained, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13]).
3. Applying those principles, and having considered the Notice of Appeal and Mr Purdy's oral and written submissions, we understand the basis of Mr Purdy's complaint to be that the hearing was procedurally unfair. This issue raises two grounds of appeal: whether there was a failure to afford procedural fairness; and whether the Tribunal member was affected by actual or apprehended bias. Whether there was a failure to afford procedural fairness raises a question of law: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)]. Whether the decision was vitiated by bias or a reasonable apprehension of bias also raises a question of law: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [32].
4. Mr Purdy is also seeking leave to appeal on the basis that the decision was not fair and equitable and was against the weight of evidence, and that significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In his oral and written submissions Mr Purdy makes a number of assertions about the Tribunal member's conduct at the hearing, and about the member's reasons for decision, which form the basis of his complaint that the Tribunal member was biased and denied him procedural fairness.
2. Mr Purdy says:

(1) The member wanted Mr Purdy to "move on from Order 1" and didn't give him an adequate opportunity to put forward his evidence about that matter.

(2) The member seemed to have "blind faith" in what the respondent's representative said, without requiring the respondent to show any proof.

(3) The member placed excessive trust in the respondent's "system".

(4) The member seemed to take "umbrage" when Mr Purdy called the respondent liars.

(5) The reasons for decision state that "previous NCAT decision and orders had provided compensation to [Mr Purdy] for various items" but don't explain what those decisions and orders are or why they are relevant.

1. The respondent disagreed that the hearing was affected by procedural unfairness or bias, but the focus of its submissions was the merits of Mr Purdy's claims at first instance.

1. The onus of demonstrating actual bias lies with the party asserting bias and is a heavy onus to discharge (per French J in Jia v Minister for Immigration and Multicultural Affairs [1998] FCA 768; (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 520. An allegation of actual bias must be distinctly made and clearly proved. Cogent evidence is required to support a finding of actual bias and that finding should not be made lightly: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97]. Actual bias will not be made out by suspicions, possibilities or other equivocal evidence: Ikimdzhieva t/as C & L Upholstery Services v Fudala [2017] NSWCATAP 196 at [49].
2. Here, there is nothing in the materials before us which establishes that the Tribunal prejudged this matter or closed its mind to any argument in support of Mr Purdy's position.
3. Actual bias is not established.
4. In contrast to actual bias, the test for apprehended bias is objective. The question is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question it is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]- [7]; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 (Isbester) at [12], [57]. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision: Isbester at [23].
5. The appellant's contentions largely relate to events that he says occurred at the hearing. On 20 August 2025 the Appeal Panel made procedural directions which relevantly included direction 2(d):

"If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing."

1. Direction 4(d), which applied to the respondent, was in identical terms.
2. Despite this, neither party furnished us with a copy of the sound recording of the hearing or of a typed transcript of any part of the hearing. Accordingly, we do not know what happened at the hearing. Thus, to the extent the appellant's complaint relates to the Tribunal member's conduct at the hearing, we cannot be satisfied that the member was affected by apprehended bias.
3. As for the reasons for decision, we understand the appellant to be asserting that the following two parts of the Tribunal's reasons demonstrate apprehended bias:

(1) the statement at [2] of the reasons: "the tenant made many comments to the effect that the respondent's people are "liars" (this was even stated in his application) and the member reminding him that it was up to him to prove his case on each item and the respondent was allowed to respond"; and

(2) the last paragraph of the decision which states at [11] (emphasis added):

"Having regard to the evidence, the burden of proof on the applicant and the provisions of the RT Act, including sections 43, 50, 63 and reg 39(3), the tribunal finds the applicant tenant has not made out a case for rent reduction or compensation or other orders other than for reimbursement of $160, noting that previous NCAT decision and orders had provided compensation to him for various items."

1. We are not satisfied that those statements, whether taken individually or cumulatively, are capable of giving rise to a reasonable apprehension of bias. The first statement reflects that the member - quite correctly - explained to the appellant that the burden of proof lay with him, and that without more, an allegation that a person is a "liar" will not suffice to discharge that burden.
2. The second statement contains a reference to "previous NCAT decisions and orders" where the appellant was awarded compensation "for various items". Unfortunately, the reasons do not provide any details as to the nature of those orders, what they related to, or why they were relevant to the Tribunal's decision. For reasons which we will canvas below, we consider the appellant was not given an adequate opportunity to make representations about those earlier Tribunal orders, and that the Tribunal's reasons for decision in relation to this issue were deficient. However, when assessing apprehended bias the issue is not whether the Tribunal Member's conduct fell short of the expected standards but, rather, whether on the basis of that conduct, the fair-minded lay observer might reasonably apprehend that the Tribunal member might not bring an impartial mind to the determination of the merits of the application, or was not open to persuasion: Wootten v Godfrey [2019] NSWCATAP 255 at [54].
3. For this purpose we have assumed that the fair-minded lay observer would be aware that the Tribunal's Consumer and Commercial Division has a high volume caseload and limited resources, and that the objects of the NCAT Act include "to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible": s 3(d).
4. We acknowledge that the statement about earlier orders and decisions is perplexing because the relevance of those earlier orders and decisions is not explained. The statement might leave a fair-minded lay observer confused by the decision, and troubled by the Tribunal Member's reasoning process. However, given the context, we do not consider that the hypothetical observer would be so sceptical of the Tribunal Member's reasons as to apprehend that such a statement, whilst inadequately explained, might mean that the Tribunal Member might not have brought an impartial mind to the determination of the merits of the application.
5. Apprehended bias is not established.

Was there a failure to afford the appellant procedural fairness?

1. The Tribunal has a duty to conduct its hearings in a procedurally fair manner and to take such measures that are reasonably practical to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(2) and s38(5)(c) of the NCAT Act).
2. The principles relevant to this ground of appeal were summarised by the Appeal Panel at [59] to [67] in Boreland v Brewis [2024] NSWCATAP 140. Relevantly:

(1) Procedural fairness requires that the Tribunal give the parties a fair hearing, and that it be free from actual or apprehended bias.

(2) The Tribunal must conduct a hearing that gives procedural fairness to both parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and subs (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable.

(3) Where there has been a breach of the requirement to afford the appellant procedural fairness, the question arises whether that error was material to the Tribunal's decision. A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal's decision.

(4) Materiality is established if the procedural unfairness deprived the appellant of a realistic possibility of a different outcome on the application lodged.

(5) As Justice Basten stated in Italiano v Carbone & Ors [2005] NSWCA 177 at [88]:

"An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]:

'"A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37].'"

(6) Finding that a properly conducted application would have inevitably produced the same result is not done lightly.

1. A failure to provide procedural fairness ordinarily means that there has been an erroneous decision which should, under s 81 of the NCAT Act, be set aside or quashed, with the appeal allowed, save in rare circumstances, such as where the breach would have made no difference to the outcome of the case: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at [28]; Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [40]- [44].
2. The issue in this case relates to the statement in the final paragraph of the Tribunal's statement of reasons. In concluding that the appellant had not made out a case for a rent reduction or compensation, the Tribunal noted that "previous NCAT decision and orders had provided compensation to him for various items."
3. As mentioned earlier in these reasons, we have not been provided with a sound recording or transcript of what transpired at the hearing. However, it was common ground in the appeal that there was no evidence before the Tribunal of any previous orders or decisions of the Tribunal, and that the parties were not given an opportunity to make submissions about this matter.
4. It is not apparent from the reasons for decision what were the nature of the previous orders or decisions, or why they were relevant to these proceedings. However, we surmise that the Tribunal member included a statement about previous orders and decisions in the reasons for decision because he had formed the view that they were in some way relevant to these proceedings, and to the decision to dismiss all but one of the appellant's claims.
5. In circumstances where the appellant was not informed that the Tribunal would take into account previous Tribunal orders or decisions, and was not given an opportunity to make representations about those matters, we cannot be satisfied that he has been afforded procedural fairness.
6. The next question is whether the failure to afford the appellant procedural fairness about this matter was material to the outcome.
7. This question is complicated by the fact that the Tribunal's reasons for decision are in many respects inadequate and in our view do not satisfy the "minimum characteristics that a Tribunal's reasons must possess" of informing the parties of the relevant findings, the Tribunal's understanding of the applicable law and the reasoning process which led to its decision: New South Wales Housing Corporation v Orr [2019] NSWCA 231 at [71]. As mentioned, the Tribunal's reasons do not explain the nature of the previous orders and decisions or why or how those previous orders and decisions were relevant to these proceedings or to the outcome. The reasons are also lacking in other respects. Whilst they address each claim (albeit briefly), they do not specify what evidence was before the Tribunal in relation to each claim, make few findings of material fact, do not refer to the Tribunal's understanding of the law applicable to each claim, and do not adequately explain the reasoning process which led to the Tribunal's decision to refuse eight of the nine claims. Relevantly:

(1) With regard to the claim for compensation or a rent reduction arising from a faulty antenna, the Tribunal appears to accept (at [2]) that Mr Purdy was without a working antenna for the five-month period from October 2024 until a new antenna was installed in March 2025. The reasons go on to say that the appellant was reminded that it was "up to him to prove his case on each item and the respondent allowed to respond" and concludes: "No reduction or compensation allowed by the Tribunal for this item." However, the reasons provide no explanation of the law relevant to this decision, or of the reason for refusing to award Mr Purdy compensation or a rent reduction for the period he was without a working antenna.

(2) With regard to the claim regarding a security lock, we understand the Tribunal to have accepted that the lock was broken, and that following a complaint by Mr Purdy it was repaired by the respondent. The reasons go on to state (at [4]) that the claim is out of time and that "no extension is granted". However, the reasons do not explain the law relevant to this part of the claim. They also do not include any finding as to when the lock was repaired, or explain why the claim is out of time, what submissions or evidence were before the Tribunal in relation to any extension of time application, or why the Tribunal decided not to exercise its discretion under s 41 of the NCAT Act to grant an extension of time.

(3) In relation to item 4 (which relates to the conduct of the appellant's neighbouring tenant) the reasons state at [5]: "Link advised they act in accordance with their ASB policy and this includes talking to the relevant tenant/s. The matter can be elevated if the applicant gets a police report with complaints from him and other tenants. He advised the relevant tenant is mentally unwell. No order to be given in this regard." The reasons seem merely to repeat the respondent's submissions. They do not explain the appellant's submissions or evidence, contain no findings of material fact, no explanation of the Tribunal's understanding of the applicable law, and no explanation as to why this part of the claim was refused.

(4) In relation to item 6 (access to external toilets) the reasons appear to acknowledge that there has been a withdrawal by the respondent of facilities originally provided with the residential premises (ie access to an external toilet) but do not address why, under s 44(1)(b) of the Residential Tenancies Act 2010 (NSW), the appellant is not entitled to a remedy for excessive rent. The reasons also express that this part of the claim is out of time but again contain no explanation as to what submissions or evidence were before the Tribunal in relation to any extension of time application, or why the Tribunal decided not to exercise its discretion to grant an extension of time.

(5) With regard to the claim regarding failure to clean the eaves and gutters, the reasons merely state that "these are cleaned at appropriate intervals" but do not refer to the parties' respective evidence about the matter, and do not set out findings of material fact (including what those intervals are or why they are "appropriate").

1. In circumstances where the relevance of previous orders and decisions of the Tribunal is not explained, and the reasoning processes that led to the Tribunal's decision are generally not clear, we cannot be satisfied that a properly conducted application of the rules of natural justice would have inevitably produced the same result. The threshold of materiality is thus met.
2. We are therefore allowing the appeal.
3. We would add that had the appellant argued that the reasons were inadequate, we would likely have upheld the appeal on that ground also.

1. As we have concluded that the Tribunal made an error on a question of law, it is not necessary to consider whether to grant leave to appeal.

1. For these reasons, we have decided to uphold the appeal and to quash the Tribunal's decision of 16 July 2025.
2. As we do not have a copy of the sound recording of the hearing, or a transcript of what transpired at the hearing, we are not satisfied that in accordance with s 81(1)(d) of the NCAT Act, we can fairly determine the dispute on the basis of the materials before the Appeal Panel. Therefore, in accordance with s 81(1)(e) of the NCAT Act, we are remitting the matter back to the Consumer and Commercial Division of the Tribunal for reconsideration of Mr Purdy's application.
3. Applying the principles thoroughly canvassed by the Appeal Panel in Chapman v Nicolosi [No 2] [2023] NSWCATAP 73 at [5]- [26], we consider that the matter should be reheard by a differently constituted Tribunal. Although we are not satisfied as to any bias or apprehended bias, given the nature of the appeal, and that the Tribunal firmly expressed views adverse to the appellant in relation to eight of his nine claims, we are of the view that justice would best be served if the matter is reheard by a different member.

(1) The appeal is allowed.

(2) The decision under appeal is quashed.

(3) The proceedings are remitted for reconsideration to a differently constituted Tribunal.

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.