Rigoni v Tao [2018] NSWCATAP 166 | Case summary

Decision

It is arguable that the tenant is not required to seek leave to appeal as it may be the problem presented does raise a "question" of law [as specified in s 80(2)(b) of the NCAT Act], rather than an "error" of law. In the present case it is difficult to see how the Tribunal fell into any error of law when it decided the case on the uncontested evidence presented to it.
However, the tenant also seeks leave to appeal on a ground other than a question of law. As we have decided to grant that leave, the point previously mentioned need not be explored.
Clause 12(1) of Schedule 4 of the NCAT Act says: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel said that to enliven an Appeal Panel's discretion to grant leave to appeal on a ground other than a question of law under cl 12, an Appeal Panel was first required to be satisfied that an appellant may have suffered a substantial miscarriage of justice because one or more of sub-clauses (1)(a) - (c) applied. If so satisfied, an Appeal Panel would then consider whether it should exercise its discretion to grant the leave sought.
In this case sub-clauses (1)(b) and (c) do not apply because the one-box notice received on the appeal was not before the Tribunal (and so the decision could not have been against the weight of evidence) and was reasonably available at the time of the proceedings before the Tribunal. Thus, the tenant relies on sub-clause (1)(a).
There has not been extensive consideration of what the words "not fair or equitable" mean in sub-clause (1)(a) of cl 12. In Collins at [77] the Appeal Panel said that, without being exhaustive, that sub-clause included circumstances where there had been a denial of procedural fairness.
Doubtless the words convey a broad meaning, and it is doubtful whether any definition would be possible given the large and varied number of circumstances that may arise, and which may be considered "not fair or equitable".
In this case, in considering whether the decision below was not fair or equitable, we have been assisted by those appellate authorities that considered the questions of the raising of new matters on appeal and whether a new trial ought to be ordered (which, in substance, will be the practical result of upholding this appeal, albeit, we anticipate, based on a new termination notice) in circumstances where the decision maker below proceeded on a false or incorrect basis, even where that occurred due to a concession or admission by the appealing party.
We have not decided whether the present issue is a jurisdictional one given that that point is problematical, has not been argued by the parties, and we have not been assisted by submissions on the point. That is not a criticism of the parties, who were unrepresented and are not legally trained, but simply states the fact.
It may be that because the appropriate notice had not been given to the tenant the Tribunal lacked jurisdiction to make the orders it did. However, it may be that the Tribunal did have the jurisdiction to make the orders it did, but it was an error within jurisdiction to do so given the problem with the Notice served.
In Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 Sackville AJA, with whom Leeming JA and Adamson J agreed, said at [55]: "The distinction between jurisdictional error and an error within jurisdiction is notoriously difficult to identify with clarity and may be 'chimerical'."
Sackville JA then referred to s 113 of the RTA Act which empowers the Tribunal to make a termination order even though there is a defect in the relevant termination notice, if it thinks it appropriate to do so and if it is satisfied that the tenant has not suffered any disadvantage because of the defect.
At [56] Sackville JA then said: "When these provisions are read together, the Tribunal's power to make a termination order is conditional upon a termination notice being served, but not a termination notice free from all defects."
What is a "defect" for the purposes of s 113 has not been, on our researches, extensively considered. It was not argued on this appeal. It may be that the omission to tick the relevant box on the notice was a "defect" for the purposes of s 113, but it may not.
The issue identified by Sackville JA in Navazi was to the effect that if the notice in that case contained a defect which fell within s 113 of the RT Act the error by the Tribunal was more likely to be an error within jurisdiction. If s 113 did not apply, then more likely the error was a jurisdictional one.
As we have decided that the tenant succeeds on this appeal on another point, and as the jurisdictional point, together with the question which might arise under s 113 was not argued before us, we are not inclined to decide whether or not the Tribunal lacked jurisdiction to make the orders it did.
The point on which the tenant succeeds on this appeal, in our opinion, is as follows.
The general rule is that a party is bound by the way he, she or it conducts the proceedings, and is generally disallowed from raising new matters on appeal - see generally Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1. In this case the tenant seeks to raise an issue she did not raise below.
That general rule is intended to serve a broadly stated public interest in the due administration of justice, namely: " .. the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court."
However, the authorities recognise a degree of permissive flexibility in the application of the general principles.
One area in which this permissive flexibility exists is where a decision maker is dealing with the rights of parties on a false or incorrect basis.
In Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87 the parties agreed between themselves, and so informed the Court, that it could be assumed that German law was the same as Australian law in relation to capital gains tax. Heydon JA (as his Honour then was), with whom Spigelman CJ and Sheller JA agreed, said at [148]: The problem of when a civil court can or must refuse to be bound by a failure of parties to prove relevant foreign law and a consensus between them that the lex fori applies is one part of a wider problem. The wider problem is the extent to which the parties, by their conduct of proceedings, can prevent the court from deciding a case in accordance with the law or the facts.
The "wider problem" referred to by Heydon JA arises on this appeal, although not quite in the way described in his Honour's last sentence. That is, in this case, it was the landlord that tendered the two-box notice and who provided evidence that that was the notice which had been given to the tenant. We accept that the landlord did so unknowingly and is personally blameless in this regard. Nevertheless, it was she rather than the tenant that provided the Tribunal with an incorrect basis for the making the termination order. The fault of the tenant, who is not legally qualified and was representing herself, was to fail to observe that the notice tendered, although identical in every other respect to the one she had in fact been given by the managing agent, had an extra cross, being that in the check box relating to non-payment of rent.
The point of distinction with the passage we have quoted from Damberg is that the parties in this case did not come to an agreement on a fact which was incorrect. Nor did the appellant expressly concede a point as is sometimes done by counsel representing a party at a hearing. Rather, the landlord led some (incorrect) evidence and the unrepresented tenant did not realise at the time that there was an extra cross on that document which did not appear on the otherwise identical document actually given to her.
At [160] Heydon JA went on to say: In short, the courts are averse to pronouncing judgments on hypotheses which are not correct. ... On the other hand, the courts will act on admissions of or agreements about matters of fact where there is no reason to doubt their correctness. But they are reluctant to do so where there is reason to question the correctness of the facts admitted or agreed.
Heydon JA, with whom Sheller JA and McClellan J agreed, returned to this subject in Symes v The Proprietors Strata Plan No 31731 [2003] NSWCA 7. At [45] his Honour said: It is true that there are cases where the courts are averse to pronouncing judgments on incorrect factual hypotheses, because to do so amounts to the giving of advisory opinions and to encouraging collusive litigation: see the cases discussed in Damberg v Damberg (2001) 52 NSWLR 492 at [148]-[160]. However, these perils do not exist here. It has not been demonstrated that the hypothesis that No 3 wall was common property is plainly incorrect. There is some evidence that it was incorrect; on this appeal evidence strongly pointing in the contrary direction has been filed. Courts commonly act on admissions in relation to matters of fact which might be disputed if the parties desired to do so, but which they have chosen to arrive at a compromise about. [Our emphasis]
In the present case it is common ground, and all of the evidence supports that common ground, that the tenant was given the one-box and not two-box notice. The tenant has provided a copy of the notice she received and the email from the managing agent to which it was attached. The landlord provided the email she received from the managing agent on the day of the appeal stating, in substance, that they had sent the tenant the one-box and not two-box notice.
Even in cases where points were expressly conceded at trial, or points inconsistent with arguments put below are sought to be raised on appeal for the first time, the circumstances of the case may mean that the general prohibition against raising new matters on appeal may be relaxed.
The basal proposition appears in the following passage found in the judgment of McColl JA, with whom Campbell and Bell JJA agreed, in Mallik v McGeown [2008] NSWCA 230 at [65]: "The Court's jurisdiction to order a new trial "depends on the demands of justice": Calin (at 39). The Court has to balance the justice of the appellant having the opportunity of relitigating her claim according to law and the fact that "it may be unjust 'to set aside a verdict for a reason which but for the default of the party moving would never have existed' ": Burchett v Kane (at 273) per Samuels JA citing Burston v Melbourne and Metropolitan Tramways Board [1948] HCA 36; (1948) 78 CLR 143 (at 167); see also Burchett v Kane (at 277 - 278) per Mahoney JA."
The passage from Burston v Melbourne and Metropolitan Tramways Board [1948] HCA 36; (1948) 78 CLR 143 cited by Samuels JA in Burchett v Kane referred to in the quote above was from the judgment of Dixon J. At p.167 in Burston Dixon J said: But I perhaps should add that the question whether the failure of counsel to raise a contention at the trial precludes an application for a new trial is not in my opinion to be determined as an abstract proposition of law. The court's jurisdiction to order a new trial depends upon the demands of justice. Often it would be unjust to set aside a verdict for a reason which but for the default of the party moving would never have existed. What is done and omitted at the trial is an important consideration to be weighed in deter¬mining a new trial application, but in the absence of a specific enactment or rule, it affects the exercise of discretion but does not amount always to a positive bar. There is not a rigid rule of law or practice. [Our emphasis]
Deane J, picking up Dixon J's statement quoted above, summarised the principles in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 as follows (references omitted): The traditional requirement that the power to receive further evidence on an appeal by way of rehearing be exercised "on special grounds" does not preclude the power from being properly described and treated as a "full discretionary" one: ... It must, of course, be exercised with due regard to the considerations which make it generally undesirable that the admission of further evidence be permitted at the appellate stage and to the requirement that there exist "special grounds" which must, at the least, be sufficiently cogent to outweigh the weight to be given to those considerations in the circumstances of the case. As has been seen, the members of the Court of Appeal identified and stressed the importance of those considerations. At the same time, however, their Honours were properly conscious of the impossibility of laying down a priori what will be a sufficiently special ground to justify the reception of further evidence ... or what circumstances will warrant permitting amendment of a notice of appeal to raise a new point at the appellate stage. Rigid judge-made rules should not be permitted to override the effect of a statutory conferral of general discretionary powers: ... In a case where there are countervailing considerations or special grounds favouring the exercise of such a full statutory discretion in a way which will allow the amendment of a notice of appeal to raise a new point or the receipt of further evidence, the question whether the discretion should be so exercised "is largely a matter of degree, and there is no precise formula which gives a ready answer": ... Where, notwithstanding the general undesirability of admitting further evidence on appeal because there ought to be finality in litigation, the scales are finely balanced, the guiding principle must be the search for justice in the particular circumstances of the individual case: see Burston v Melbourne and Metropolitan Tramways Board (1948) 78 CLR 143 at 167. [Our emphasis]
In our opinion, the justice in this particular case is to set aside the decision of the Tribunal below as it was, in the circumstances described, based on an incorrect fact, notwithstanding the failure of the tenant to raise this issue below. As we have mentioned, it was the landlord (albeit unknowingly and as a result of incorrect information supplied by another) that placed the incorrect material before the Tribunal.
It would not be appropriate, in our view, to allow a Tribunal decision to stand when the parties agree, and the evidence incontrovertibly establishes, that the Tribunal decision was based on an incorrect central fact, a fact which was a precondition to the exercise of the statutory power to terminate a residential tenancy. It would not be just, in our opinion, that the tenancy be terminated in circumstances where a condition laid down by Parliament as being an essential precondition to the exercise of the power to terminate a tenancy was not met.
In those circumstances, in our opinion, the decision of the Tribunal was not fair and equitable within the meaning of that term in cl 12(1)(a) of Schedule 4 of the NCAT Act.
We are satisfied, per Collins, that the tenant has suffered a substantial injustice as a result, namely the making of an order terminating her tenancy when, had the correct facts been given by the landlord's managing agent to the landlord prior to the hearing below, that order would not have been made.
Having been satisfied of those matters, we are satisfied (for the reasons already given) that it would be appropriate to exercise our discretion to grant leave to the tenant to appeal on a ground other than a question of law because the injustice is clear (see Collins at [84]).
Having granted that leave, and admitted the evidence referred to, the appeal must succeed for the reasons given at [28] - [36] above.

Rigoni v Tao

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