Riskalla v NSW Land and Housing Corporation

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) NCAT Act. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
3. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
4. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
5. In Collins, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
6. Since the appellant appeared in person, it is relevant to note what was said in Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) a decision in which the Appeal Panel stated, at [13]: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

Hearing

1. First, the documents upon which the parties relied were identified. As a result, in deciding the appeal, we have had regard to: 1. the Notice of Appeal and accompanying documents, 2. the appellant's three bundles of documents: received on 10 October 2022, 27 October 2022, and 11 November 2022, 3. the Reply to Appeal and accompanying outline submissions, and 4. the respondent's documents, received on 28 October 2022 and 24 November 2022.
2. Secondly, an opportunity was provided for oral submissions from both parties.

Appellant's documents

1. In the Notice of Appeal, under the heading "Grounds of Appeal", the appellant raised five matters said to involve points of law: 1. Hearsay allegations were admitted as evidence despite his objection. 2. Section 36 of the NCAT Act was used in two hearings to "dispense completely with running a hearing in accordance with law and thus abandoning natural justice and fairness to [the appellant]". 3. Section 41 of the NCAT Act was used in two hearings without any request from the respondent and caused the appellant to suffer a disadvantage in that he did not know what the documents were. 4. Forcing the appellant to receive and reply to documents. 5. The two hearings were "not according to law but yet decision are made by collusion".
2. The appellant also contended that leave to appeal should be granted on the basis that the decision was not fair and equitable, was against the weight of the evidence and that significant new evidence is now available that was not available at the time of the hearing. Reliance was placed on 13 pages of submissions that were included with the Notice of Appeal.
3. Documents received from the appellant on 10 October 2022 included documents relating to the appellant's health and submissions which alleged perjury by an officer or the respondent and conspiracy by members of the Tribunal. Documents received from the appellant on 10 October 2022 contained further submission and additional medical documents.
4. Documents received from the appellant on 11 November 2022 comprised a transcript of the hearings on 22 July 2022 and 14 September 2022 and other documents, including an application for costs of the appeal in the amount of $360. A USB drive with recordings of those hearings was also provided.

Respondent's documents

1. The Reply to Appeal responded to the grounds of appeal as follows: 1. The Tribunal made the finding of fact that the tenant was aware that the landlord is seeking access to the premises to inspect the smoke alarms and failed to negotiate access to the premises at conciliation and the substantive hearing, having been given sufficient explanation and evidence to know what the proceedings were about. 2. The finding of fact was fairly available on the evidence submitted. It is not enough that the Appellant disagrees with the weight the Tribunal gave to the evidence before it or that the Tribunal ought to have preferred to Appellant's evidence. 3. The tenant continues to refuse to provide a suitable date ad time for the landlord to inspect the fire alarms. 4. No question of law, issue of [principle], injustice or factual error has been identified by the Appellant. [5]. The appeal lacks merit
2. It is sufficient to record that the Reply to Appeal also opposed any grant of leave to appeal. The outline submissions, although directed to the question of whether the order now challenged should be stayed, set out the relevant history. Also provided were 39 pages which included a copy of the respondent's evidence that was before the Tribunal on 22 July 2022.
3. On 28 October 2022 the Tribunal received a bundle of documents from the respondent which contained written submissions and 42 pages which contained a copy of the respondent's evidence that was before the Tribunal on 22 July 2022 and 19 October 2022 and a copy of the orders made on 26 September 2022 and 19 October 2022.
4. On 29 November 2022, the respondent lodged written submissions in opposition to the appeal which traced the history of the proceedings and contended that the appeal should dismissed. Annexed to these submissions was a copy of a 22 November 2022 email from the appellant in which he alleged "collusion and corruption to pervert the course of justice" by the two Principal Members who dealt with this appeal prior to the hearing on the basis that they were recruited by a named representative of the respondent. An allegation in the same terms was made against the member of the Tribunal who considered the respondent's application on 22 July 2022 and 14 September 2022.

Appellant's oral submissions

1. The focus of the oral submission of the appellant was that there had been deception by the representative of the respondent and collusion by members of the Tribunal.
2. The appellant also sought an order for costs, claiming there were special circumstances in this case. The amount claimed was $360: $113 for the filing fee, $90 for the cost of obtaining sound recordings, $29 for five USB drives, $70 for a printer ink cartridge, $8 for A4 paper, and $50 for "other incidentals".

Respondent's oral submissions

1. The allegations of deception and collusion were denied. It was contended there was no error on a question of law and that there was no miscarriage of justice that would warrant a grant of leave to appeal. There was said to be no substantive issue remaining since access had been granted. Reliance was placed on the written submissions provided to the Tribunal and the appellant's request for a costs order was opposed.

Consideration

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". Rather, the role of the Appeal Panel is to determine whether there is any error in what occurred at first instance, sometimes referred to as the primary decision.
2. While the fact that access has occurred removes the need to further consider the order made on 14 September 2022, we nonetheless deal with each of the matters raised by the appellant because a consideration of those matters aids an assessment of whether there was collusion by any of the members of the Tribunal who considered either the application or the appeal prior to the hearing of the appeal.
3. Considering the matters raised by the appellant required us to not only read each of the documents he has submitted but also listen to the entire recording of the hearings on 22 July 2022 and 14 September 2022.
4. The first ground advanced by the appellant in his Notice of Appeal was that hearsay allegations were admitted as evidence despite his objection.
5. This claim was based on the respondent's representative giving evidence that letters were sent without the authors of those letters or the person who sent them giving evidence. As the Tribunal is not bound by the rules of evidence, by reason of s 38(2) of the NCAT Act, hearsay evidence is permissible. It is noted that, even if the rules of evidence applied, there are provisions in the Evidence Act 1995 (NSW), namely ss 59-75, which operate to permit hearsay.
6. Further, s 76(1)(b) of the Interpretation Act 1987 (NSW) creates a rebuttable presumption that a letter sent by mail was received on the seventh working day after it was posted. That provision, sometimes referred to as the postal rule, was applied by the member who presided at the hearing on 14 September 2022.
7. It is convenient to here note what is commonly referred to as the legal burden of proof and the evidential burden of proof. The words 'legal burden of proof' indicate that it is the party making the claim that bears the onus of proving the case and in civil proceedings that is on the balance of probabilities. In this case, it was for the respondent to prove that it had made a request for access. The term evidential burden of proof is used to reflect the fact that, when some evidence has been provided in support of an issue, that evidence may be sufficient if there is no evidence to the contrary. In this case, the respondent had the benefit of the rebuttable presumption, provided by a statutory provision, that the request for access had been served. The consequence was that if the appellant did not provide sufficient evidence to rebut that presumption, then the Tribunal was entitled to find that there had been a request for access.
8. Accordingly, on 14 September 2022, when the presiding member was referring to the appellant not having shown the request was not sent and received, any reference to him not having proved that contention was plainly a reference to the evidential burden of proof, not the legal burden of proof.
9. Secondly, it was asserted that s 36 of the NCAT Act was used in two hearings to "dispense completely with running a hearing in accordance with law and thus abandoning natural justice and fairness to [the appellant]".
10. In the NCAT Act, s 36(1) sets out the guiding principle which establishes that the aim of the Tribunal should be "to facilitate the just, quick and cheap resolution of the real issues in the proceedings."
11. It must be observed that the application which came before the member on 22 July 2022 was an application for termination, based on a failure to provide access, despite multiple requests, being access sought for the purpose of inspecting and testing fire alarms. But for the member conducting the hearing on that occasion facilitating the amendment of that application to a request for access, at the hearing on 14 September 2022 the appellant would have been facing the prospect of eviction. Further, the reason for the respondent seeking access was to ensure the safety of the appellant and his neighbours by reducing the risk of their death or injury from a fire. There was no cost to the appellant of providing access and it is difficult to see that the access would be required for anything more than a short period of time.
12. The only reason given by the appellant for opposing access was that the requests referred to s 55 of the Residential Tenancies Act 2010 (NSW) [the RT Act) and not s 60. Indeed, the appellant said that, if the respondent sent a letter based on s 60 and not s 55, he would provide access.
13. In fact, s 55(2) relevantly provides: A landlord, the landlord's agent or any other person authorised by the landlord may enter residential premises during a residential tenancy agreement without the consent of the tenant, after giving notice to the tenant, only in the following circumstances - … (c1) to carry out, inspect or assess the need for repairs to, or replacement of, a smoke alarm installed at the residential premises if the tenant has been given notice in accordance with the regulations, …
14. In the RT Act, s 60 reads: (1) The Tribunal may, on application by a landlord, make any of the following orders - (a) an order authorising the landlord or any other person to enter the residential premises for a purpose permitted under this Division, … (2) The order may specify the days and times, and purposes for which, entry to the residential premises is authorised.
15. As a result, s 55(2)(c1) provided the respondent with a right, provided notice had been given, and s 60 conferred on the Tribunal the power to make an order which enabled the respondent to exercise that right.
16. The reason advanced by the appellant at the hearings was not a reason why the order should not be made and neither during either of the hearings nor during the appeal did the appellant indicate any valid reason why the order should not be made.
17. Accordingly, if the matters raised by the appellant were followed by the Tribunal, then either (1) the application would be dismissed so that the respondent could send him a letter that referred to s 60 rather than s 55, or (2) the hearing would have been adjourned so that the people who sent the letters requesting access could be called to give evidence.
18. Neither of those courses of action would satisfy the requirement of s 36(1). The conduct of both hearings was according to law and there was no denial of natural justice in that the appellant was, at both hearings, made aware of the case that was being made against him and was given adequate opportunity to be heard.
19. Since the member who presided on 22 July 2022 was endeavouring to obtain the appellant's consent to an access order to avoid termination of his tenancy, and since the respondent was seeking to check the fire alarm for reasons of safety, it is puzzling that the appellant was resisting the efforts of a member of the Tribunal and the representative of the respondent to achieve an outcome that would be for his benefit.
20. In the circumstances of the hearing on 22 July 2022 and the hearing on 14 September 2022, we are satisfied that s 36 favoured what the presiding members did, that what was said and done was in accordance with the law, and that there was no denial of either natural justice or procedural fairness.
21. The third allegation was that s 41 of the NCAT Act was used in two hearings without any request from the respondent and caused the appellant to suffer a disadvantage in that he did not know what the documents were. There was no reference to s 41 during the either hearing. It appears to be that the appellant is complaining that he did not receive documents by the date when they should have been provided.
22. On 14 September 2022 the presiding member, in response to the appellant's claim that he had not received any letter from the respondent requesting access, arranged to have copies of those letters made and provided to the appellant. That was in the context that those letters had been deemed to have been received by him under the postal rule. Those letters were not lengthy, and it cannot be said that there was any prejudice to the appellant by requiring him to indicate his response to those letters, which he was able to do on that occasion.
23. In short, there was no reference to s 41, the suggestion of the appellant that he did not know what those documents were was overcome by providing him with a copy, and he did not suffer any disadvantage even if it could be said that those letters were provided to him late. The alternative, of adjourning the hearing to another date would not be consistent with the aim of achieving a just, quick, and cheap resolution of the real issues in the proceedings. Likewise, the suggestion that the application be dismissed was without merit as that would only have resulted in the additional time and cost for both parties of a second application in the same form.
24. Fourthly, it was said that the appellant had been forced to receive and reply to documents. The appellant was complaining that he had not received copies of the documents upon which the respondent relied. Providing copies to him was a sensible way of overcoming that complaint. Neither the provision of those pages not seeking a response to them was procedurally unfair and, as with the previous three claims, no error on a question of law has been established.
25. The final matter raised as a ground of appeal was that the two hearings were "not according to law but yet decision are made by collusion".
26. During the hearing of the appeal, the appellant frequently used the words "deception" and "collusion", using the former word to refer to the alleged conduct of a representative of the respondent and the latter word to refer to the alleged conduct of members of the Tribunal. It is not our role to consider any allegation relating to the conduct of a representative of the respondent, but it is necessary to consider the extremely serious allegation that there has been collusion on the part of members of the Tribunal.
27. There is a fundamental principle which applies in courts and tribunals that anyone making an allegation should be able to prove that allegation. It necessarily follows that an allegation should not be made unless it can be proved. In this instance, the appellant has not provided a shred of evidence in support of his allegations of collusion.
28. An allegation of collusion might arise if the outcome of proceedings was contrary to the evidence and/or the relevant law but when, as in this case, the outcome is plainly in accordance with the evidence and the applicable law, there is no rational basis for any allegation of collusion. As a result, the allegations of collusion on the part of members of the Tribunal should clearly never have been made. They rise no higher than unsubstantiated allegations.
29. With the benefit of having listened to the recording of both hearings (22 July 2022 and 22 July 2022), two things are clear. First, that the appellant was loud, aggressive, rude, and interrupted the presiding members on multiple occasions. Secondly, that both members demonstrated admirable patience such that their conduct warrants not criticism but praise.
30. The Consumer and Commercial Division of the Tribunal receives and deals with more than 50,000 applications each year. As a result, (1) hearing time is a scarce resource, (2) Tribunal members are given limited time to deal with each application, (3) avoidable adjournments are not favoured, and (4) dismissing an application which will only be resubmitted is undesirable. Those matters have only been noted because they create the environment within which presiding members work and it is, to say the least, not helpful when such hard-working members are subjected to conduct such as that of this appellant and to baseless allegations of collusion.
31. In view of what is set out above, we cannot accept that the decision made on 14 September 2022 was not fair and equitable. Nor can that decision be said to have been against the weight of the evidence. There is no fresh evidence that has been put before us by the appellant. As a result, there cannot be said to have been any miscarriage of justice.
32. It is also necessary to record that, applying what was said in Conimos, when considering the material provided for this appeal, we have borne in mind the need to consider that there might be a matter that could and should be raised which has not been raised by a self-represented appellant. However, we have not been able to identify any such matter.
33. Finally, the question of costs was raised by the appellant. The decision of the High Court in Cachia v Hanes [1994] HCA 14 establishes that a self-represented litigant cannot claim for the time spent conducting proceedings, but no such claim was made in this instance.
34. The effect of s 60 of the NCAT Act is that s 60(1) provides that "Each party to proceedings in the Tribunal is to pay the party's own costs" but s 60(2) relaxes that default position by providing that "The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs".
35. The following non-exhaustive list of considerations is set out in s 60(3): (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter the Tribunal considers relevant.
36. It is well-established that the adjective "special" requires circumstances that are out of the ordinary but do not need to be extraordinary or exceptional: Megerditchian v Kumond Homes Pty Ltd [2014] NSWCATAP 120, adopting what was said in Cripps v G & M Mawson [2006] NSWCA 84 at [60].
37. Since s 60(2) commences with the words "The Tribunal may award costs …", it is clear the Tribunal has a discretion which must be exercised. It is necessary to consider not only whether there are special circumstances but also whether those circumstances warrant an award of costs.
38. In this appeal, there are two reasons why the appellant's request for an order for costs must be rejected. First, the appellant has not succeeded in his appeal. Secondly, we are not satisfied that there are any special circumstances warranting an order for costs: this was a straightforward matter which did not involve any complex question of fact or law. There mere outcome of proceedings is not sufficient to warrant an order for costs otherwise an order for costs could be made in every case which would be clearly contrary to what the statute says.
39. Finally, for the sake of completeness, the Notice of Appeal was lodged on 29 September 2022, which could be said to be outside the 14-day period specified in r 25 of the Civil and Administrative Tribunal Rules 2014 because the decision challenged was made on 14 September 2022 and oral reasons were delivered that day. Rather that dismiss the appeal on a technicality, as it appears to have only been lodged one day late, we consider it appropriate to grant an extension of time.

Conclusion

1. No error on a question of law has been shown. No basis for leave to appeal has been established. The allegations of collusion are devoid of merit and should not have been made.
2. For these reasons set out above, the orders that will be made are as follows: 1. The time for lodging the Notice of Appeal is extended to 29 September 2022. 2. Leave to appeal is refused. 3. The appeal is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2022