Roach v Swain

Introduction

1. The appellants were landlords who entered into a Residential Tenancy Agreement (agreement) with the respondent in respect of a property at Adamstown Heights. The agreement was terminated on 26 April 2021 by consent in the circumstances described below.
2. Prior to 26 April 2021 the respondent sought various orders from the Tribunal under the Residential Tenancies Act 2010 (NSW) (RT Act). The orders sought were an order under s 44(1)(b) that the rent payable was excessive and an order under s 65(1)(a) that the landlord carry out repairs.
3. The application was heard on 24 May 2021. As the agreement had been terminated on 26 April 2021, no order was made for the landlord to carry out repairs. However, the Tribunal did make an order that the appellants pay the respondent the sum of $3,484.00 (decision). This amount represented compensation in respect of mould ($780), blinds not working ($2,080.00) and a balcony door not working ($624). The Tribunal found that the appellants failed to carry out necessary repairs in respect of each of these items and determined that an award for damages should be made in respect of each item, damages calculated by way of rent reduction.
4. The appellants appealed the decision. For the reasons set out below we have decided to set aside the decision and remit the proceedings for rehearing.

Notice of Appeal and Grounds of Appeal

1. The appellants filed a Notice of Appeal dated 31 May 2021. The appeal was filed on 2 June 2021. The appeal was filed in time.
2. The appellants appealed on a question of law as well as issues for which leave to appeal was required. The grounds of appeal can be summarised as follows: 1. The appellants were not notified of the hearing and were unable to file relevant evidence. This was due to the absence of the agent, Katelyn Aislabie from Street Property Management (Agent) and various failures of the Agent. 2. The Appellant disputed findings that repairs had not been carried out and the cause of the mould in the premises. Inter alia the appellants said they had various documents that showed repairs were in fact carried out by various trade persons on behalf of the landlord so there had been no relevant breach of the obligation to repair.
3. The Appeal Panel made directions for the parties to file and serve all evidence from the proceedings at first instance upon which they intended to rely together with any new evidence for which leave was sought. In addition directions were made for the provision of the sound recording and transcript of the hearing at first instance including the oral reasons given by the Tribunal. The appellants filed a bundle consisting of six packages of documents in support of their position. This material included new evidence upon which the appellants sought to rely. It did not include the documents provided by the Agent which had been lodged by the Agent pursuant to directions made in the original proceedings on 12 March 2021.
4. The respondent also filed various documents including a reply to appeal. The material provided by the respondent did not include all the documents she had provided to the Tribunal at first instance. She provided further material after the hearing of the appeal.
5. The appeal was heard by telephone on 10 August 2021. Mr Roach appeared on behalf of the appellants and Ms Swain represented herself.

Consideration

1. From the material provided to us we identified two substantive areas of dispute. The first raises a question of law, namely whether the appellants had been denied procedural fairness. The second was whether, based on new evidence sought to be provided to the Appeal Panel, the Tribunal was in error in making an order for compensation in respect of the mould, blinds and door. This involved a challenge to various factual conclusions and requires leave to appeal.
2. The procedural fairness ground arose in the following circumstances.
3. The Tribunal received two applications relating to disputes between these parties. The first were the proceedings the subject of this appeal, application RT 21/05116. In those proceedings, the respondent sought an order that the appellants carry out repairs and/or an order in respect of rent reduction. The second was application RT 21/13857. These proceedings were not the subject of this appeal. They involved the respondent seeking to have a notice of termination issued by the appellants declared retaliatory. The documents in relation to the second application were not before us, although it appears those proceeding were settled on 26 April 2021, an order being made by consent to terminate the residential tenancy agreement.
4. In relation to proceedings RT 20/05116, the appellants say there were unaware and did not receive notice of the hearing on 24 May 2021.
5. In their initial submissions on appeal, the appellants said in respect of the hearing on 24 May 2021: Fast forward to 2:53pm Monday 24 May 2021 and while at work I received a call on my mobile from a Member telling me matter RT 21/05116 was about to commence, it was a matter I had never been made aware of and even though NCAT had my email address and had previously emailed me and exchauseitve search of my emails did not find any communication from NCAT regarding 21/05116. I explained this to the Member who told me that communication regarding the matter had been sent to Street Real Estate who managed the property, not me yet for some unknown reason NCAT had called my mobile phone instead of calling Street Real Estate who had been notified to participate in the hearing, and the Member determined that despite me not knowing anything at all about the matter and having submitted any documents or had any documents on hand to review because I was at work during work hours that sufficient notice had been given and the matter would proceed at that time despite my protest.
6. It would appear from evidence provided to the Appeal Panel and the submissions made by Mr Roach that the Agent had been engaged to deal with original proceedings on behalf of the appellants. As stated by Mr Roach, a Notice of Hearing had been sent the appellants' Agent. However, due to Ms Aislabie being on leave, that notice did not come to her attention and, apparently, was not actioned by the Agent's other staff. On 24 May 2021 the Tribunal initially contacted the Agent on the nominate telephone number. A staff member at the agency referred the call to Mr Roach. The Tribunal then called Mr Roach and proceeded to deal with the hearing.
7. By reason of what occurred and the fact Mr Roach was at work when telephoned by the Tribunal and did not have available to him relevant documents, Mr Roach told the Tribunal he was not in a position to proceed with the hearing. Despite this, the Tribunal did not adjourn the hearing. Consequently, the appellants say they were denied a reasonable opportunity to be heard and that the proceedings should have been adjourned.
8. In support of their application, the appellants relied on an email from Ms Aislabie dated 25 May 2021. This document is found on Page 6 of 20 of the bundle identified as Packet 5 of the appellants' documents. In that email Ms Aislabie said: Hi Adrian, Firstly I'd like to give you a formal apology on this matter and a reason why I asked Julie to give you a call was to explain to you that it was during my absence at Townsville that I was not here to receive the email regarding the hearing in the first place and was not informed on my return. Now on my phone call being directed to yourself yesterday I want to apologise that we figuratively speaking 'threw you under the bus' for the hearing you knew nothing about since I was the representative for the case number (05116) and that you were acting for the other case umber which the girls must have mistaken both hearings for the one in which you were acting. Not realising they were two separate entities. As I mentioned over the phone I had previously sent in supporting documents regarding the repairs for the specific file number (05116) to which Zoe's supporting documents received was only a statement she had typed and because of that the hearing was adjourned to give her more time to gather supporting documents. Once again I did not receive anything else by the date the applicant (Zoe) was to send both the Tribunal and myself anything she has to back her application so I had nothing to respond to and presumed all documentation they had for the file still stood as there was no additional evidence given by Zoe or myself. …
9. The appellants also rely on the transcript of the hearing on 24 May 2021 (Transcript). The Transcript is marked Packet 4. Consistent with what the appellants have outlined above, the Transcript shows the Tribunal attempted to call the Agent, Ms Aislabie, at the time appointed for the hearing. The Tribunal spoke to Ms Julie McNab, apparently another employee of the Agent Ms McNab gave to the Tribunal the telephone number for Mr Roach. Thereafter the Tribunal called Mr Roach.
10. During the telephone discussions with Mr Roach the following exchanged took place (Transcript at 00:06:05 p. 5): Tribunal: Oh sorry, it's the Tribunal hearing. You should be aware of whereby Zoe Swain has brought an application against you in relation to some issues with the tenancy. Mr Roach: Not that I know of. I thought that was handled about a month ago. Tribunal: No it hasn't been. There's two files she's brought 2. There are well, what happened about a month ago was that um, there was, a, um decision made on the 26th April. Mr Roach: Yes, that's the one I remember. Tribunal: Whereby the agreement was terminated, but she had already filed on the 4th February, and so she still had filed, and it was still open and was not subject of the hearing in April. Mr Roach: Oh okay. Tribunal: The compensation claim. So things I think you've written some information about it. Things like the fencing, mould a variety of things. Mr Roach: Yeah yeah, but that was that was that were rebuttals of her claim. The fence has been fixed. Tribunal: So that's the issue. That's the issue today. But so now I've reached you. Do you have time to participate in the hearing? It's a 90 minute hearing. Mr Roach: well I'm at work, how long is it? Tribunal: No sorry, my name is Tribunal Member Clark. Mr Roach: Alright, Member Clark I wasn't aware it was on today. Should I receive some kind of notice? Tribunal: Yeah, but it may. It went to you by email at Adrian Roach and I'm sorry that was the consent orders that went there, sorry, not yeah. Consent orders that. Sorry, not yeah. Consent orders. Those April orders are we would have sent you a notice of hearing in relation to this matter but for a while I think you had a property manager. Mr Roach: yeah, I've always had a property manager. Tribunal: So I she I spoke to the property manager she said she wasn't engaged to represent you in the hearing. Mr Roach: well I didn't know there was a hearing, that's the thing.
11. Following discussions concerning the Agent, the conversation then continued (Transcript at 00:08:46 p.7): Tribunal: Right so she [referring to the Agent Katelyn Aislabie] must have come to that [referring to March directions hearings for this matter in March 2021]. And then … after that we set the matter down for a 90 minute hearing. Mr Roach: No I wasn't notified of it. Tribunal: Anyway, look, I'm hoping that we can settle this. If we can't, we might have to adjourn it, but … you have put on evidence so it's all very peculiar. Mr Roach: well that was for the rebuttal of her statement that she shouldn't be asked to leave.
12. Further discussions occurred concerning whether Mr Roach was effectively on notice of the hearing (Transcript at 00:11:10 p.8) Tribunal: So all of that's for discussion. What we? Have a problem? Because Mr Roach doesn't have any notice of today's hearing, he says, Although in a sense you do, I think Mr Roach because you're aware of the issues and you've put evidence on in reply. I'm not sure that you could do anything more. Because the evidence you put on, addresses the questions that have been raised, so I'm not sure that I accept that you're not on notice and in any event you've been notified through the agent, but I'm not. Mr Roach: But that's. Tribunal: I'm not going to argue about that because what I'm leading to is that I'm i'd like to propose that we try and spend a little bit of time before deciding whether to have this hearing.
13. The transcript then reveals that there were settlement discussions between the parties, facilitated by the Tribunal, in an attempt to resolve the dispute. Those discussions were unsuccessful.
14. After the settlement discussions concluded the following exchange took place (Transcript at 00:24:32 p. 15): Tribunal: Okay, well if that's the case, I'm going to make a. My proposal is that I … will hear the matter. I'm not, I know you say Mr Roach you have not had notice of it but we've got evidence that we've given your property manager notice. She should have notified you. So I'm satisfied you have sufficient notice and Ms Swain is ready for this matter to be heard. So I will hear it.
15. It was after this decision that the formal hearing took place.
16. We should note at this point that throughout the hearing, there appears no identification by the Tribunal of the documents it had before it. In this regard the Tribunal had made directions for filing and service of documents on the 12 March 2021, a matter noted above, and that the respondent's Agent had apparently filed some documents as directed. It also appears that the Agent had filed those documents before the respondent had filed and served all of her evidence.
17. Of the documentary evidence the following exchange occurred between Mr Roach and the Tribunal (Transcript at 00:44:02 p. 28): Mr Roach: uh, like I said at the moment, I'm not prepared for this because I'm at work and didn't know it's happening, but if I go through my files at home I probably could I I would have all the invoice. For now. I do have all the invoices for the expenses that were incurred. Tribunal: Well, if you don't, if you can't tell you can't, you're not. Yeah yeah. If you can't tell me now and we're nor adjourning then, We again I'm just going to have to work with what we've got in front of us today, because it's weird because you have sent me some invoices so you have responded. For example, show send me sending me the mould removal invoice from 2020. Mr Roach: Well, the response that the that was a response to the initial hearing that Zoe claimed that the eviction notice was retaliatory any anything I submitted to you, was in response to that claim, as I said I wasn't aware that that today I was even happening I didn't know that this was a thing. Tribunal: Well I'm not sure that I accept that either because you should see the cover notes. The cover. Note that Katelyn Aislabie has sent to me. It's got this file number on it. And it says here's from the respondent attached all relevant documents so um, what you are saying isn't really fitting what your Agent sent through. Mr Roach: okay, well the Agent didn't communicate it to me, [inaudible] communicate that this is happening to today.
18. We are satisfied from the above evidence that the following has occurred: 1. The agent, Katelyn Aislabie, from Street Property Management was appointed to represent the appellants in respect of the proceedings RT 21/05116. 2. Documents had been submitted by the appellants' Agent for the purpose of a hearing of that application, although those documents are not presently before the Appeal Panel. 3. The Notice of Hearing for 24 May 2021 was sent to the Agent. However, the person at the agency responsible for representing the appellants, Ms Aislabie, had been away on holidays and did not receive notice of the hearing date. The Notice of Hearing was not drawn to her attention by her other staff. 4. The appellants were not aware of the hearing on 24 May 2021 until telephoned by the Tribunal on that day. 5. One of the appellants, Mr Roach, was called at work and asked to participate in the hearing. Neither Mr Roach nor the second appellant had received notice of the hearing. Mr Roach did not have with him the documents which his Agent had apparently sent to the Tribunal pursuant to the directions made in the proceedings at first instance on 12 March 2021 or other documents upon which he wished to rely. 6. Despite these facts and the unavailability of the Agent to otherwise conduct the hearing on behalf of the appellants, the Tribunal determined to proceed with the hearing.
19. In Italiano v Carbone & Ors [2005] 177, Basten JA considered the obligations of the former Consumer, Trade and Tenancy Tribunal ('CTTT'), the predecessor of the Consumer & Commercial Division of this Tribunal, in relation to issues of procedural fairness and natural justice arising in connection with the adjournment of proceedings. The statutory obligations of the CTTT were similar to the obligations of this Tribunal found in s 38 of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act'). At [102] his Honour said: 102 No doubt, as the Master recognised, a refusal to grant an adjournment may give rise to procedural unfairness. In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40], Gaudron and Gummow JJ said: "Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness."

The relevant question is what test a court exercising supervisory jurisdiction should apply in considering whether the request was "reasonable". In Touma v Saparas [2000] NSWCA 11, this Court applied the principles in House v The King (1936) 55 CLR 499 in determining whether a District Court judge had erred in refusing an adjournment, so as to render the trial before him procedurally unfair: at [27]. The minimum requirement of fairness, consistent with a legal exercise of power, will depend not only on the circumstances of the case, but also upon the statutory regime. The fact that the provisions of the CTTT Act referred to above permit the Tribunal a considerable area of discretion in moulding its own procedures suggests that the bounds of legality may need to be expanded beyond those which might apply in other circumstances. Indeed, it is well understood that the requirements of natural justice may need to be modified from time to time "to meet the particular exigencies of the case": see Kioa v West (1985) 159 CLR 550 at 615, per Brennan J. …

1. Basten JA then continued at [105]-[107]: 105 The remaining question is thus whether, on the evidence, the Tribunal was under an independent obligation to take particular steps which it did not do. If so, the consequent question is whether its failure invalidated the resulting orders. There is statutory support in the CTTT Act for such obligations. Thus, s.35 (set out at [69] above) provides that the Tribunal "must ensure" that each party is given "a reasonable opportunity" to present its case. Where necessary this will entail offering an appropriate adjournment, whether sought or not. In addition, s.28(4) (see [68] above) requires the Tribunal to "take such measures as are reasonably practicable" to ensure that the parties understand not only the nature of the assertions made in the proceedings, but also "the legal implications of those assertions". 106 There are, as already noted, provisions which allow the Tribunal a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness. That conclusion is consistent with the approach adopted by the High Court in SAAP in relation to the obligation imposed on the Refugee Review Tribunal under s.424A of the Migration Act to give an applicant, in the way that the Tribunal considered appropriate in the circumstances, information which the Tribunal considered might be the reason or part of the reason for affirming the decision adverse to the applicant. 107 A provision in similar terms to those contained in s.35 of the CTTT Act led Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 342 (25) to state: "Where a Tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe… . If, in all the circumstances, the failure of the Tribunal to adjourn the matter to enable Dr Evans to be called as a witness or to alert the appellant of his right to apply for such an adjournment constituted a denial to the appellant of a reasonable opportunity of presenting his case, both the common law principles applicable to a tribunal under a duty to act judicially and the specific provisions [of the Act] entitle the appellant to the intervention of this Court."

His Honour then referred to provisions in the Administrative Appeals Tribunal Act (s.33(1)(b)) equivalent to s.28(3) of the CTTT Act. His Honour concluded, at p.343 (10): "A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment … that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a Tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506. In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."

1. Applying these principles to the present case, it seems to us that that the Tribunal should have adjourned the proceedings. The appellants did not have notice of the hearing, did not have the documents submitted on their behalf by the Agent for the purpose of the hearing and did not have other evidence to which the appellants wished to refer. In short, Mr Roach was unable to proceed in the absence of this material.
2. The appellants were placed in this position because the failure of the Agent.
3. The transcript does not suggest that the Tribunal identified the documents Mr Roach's agent had submitted and it is unclear from the reasons the use to which the Tribunal put to these documents. There appears to have been no discussion about the content of this evidence nor was Mr Roach given a chance to rely on the material provided by the Agent or to make submissions about its contents. Consequently, the steps taken by the Tribunal did not ameliorate the effect of any disadvantage to the appellants.
4. The disadvantage to the appellants in not having documents available to Mr Roach is demonstrated by at least one part of the decision of the Tribunal. This relates to the award of $624 made in respect of the balcony door.
5. Mr Roach had given oral evidence about this matter in the proceedings at first instance. This evidence was to the effect that Mr Bob White, handyman, had attended the premises and had carried out repairs to the door.
6. In its reasons in respect of the door not operating correctly the Tribunal rejected oral evidence given by Mr Roach concerning whether repairs had been carried out. The Tribunal said (Transcript at 01:48:07 p. 56): The landlord did claim that he did send a handyman Bob White out to fix the roller doors in November 2017, but there was no supporting evidence … to satisfy me that that had occurred. So I'm … not. I'm satisfied [it] remained unfixed until … the 12th of November 2020, and therefore I do make an award with respect to that because that's an ability to access the property via door doors.
7. On appeal, Mr Roach said he had an invoice from Bob White Home Handyman & Maintenance demonstrating work was done. This invoice (found in Packet 2 p 12) was provided to the Appeal Panel and indicates that repairs to the door had in fact been carried out in 2017.
8. Whether such material would ultimately have led to dismissal of the respondent's claim is unnecessary to decide, particularly as the respondent has not had a chance to respond and cross examine the relevant witnesses. However this material is sufficient to conclude that there has been a relevant error causing disadvantage which should be corrected.
9. In our view, an adjournment should have been granted in the circumstances of this case and the appellants have not been afforded a reasonable opportunity to be heard. Consequently, it is appropriate to set aside the orders of the Tribunal and remit the hearing for rehearing.
10. The problems arising in this case arose, in part, from the failure of the Agent to properly represent the appellants, keep the appellants informed of the directions, review notices from the Tribunal and ensure that the appointed representative attended on the day of the hearing. We will therefore make an order revoking leave for the appellants to be represented by the Agent.
11. Finally, during the hearing of the appeal, submissions were made by both parties concerning what occurred during the tenancy. There was significant disputation about factual matters including what repair work was done, who did that work and when. There were also issues raised as to the credibility of each of the parties, in part based on conversations said to have taken place with third parties engaged by the appellants to carry out repair work. It would seem from the transcript that both parties gave oral evidence concerning these matters. This was despite directions having been made for such evidence to be provided in the form of written statements. It would also seem that the third party witnesses did not provide evidence of these events. This has led to circumstances where each of the parties have been confronted by allegations made in oral evidence about which they have been unable to respond or provide corroborating documents or statements from relevant witnesses to support or rebut various allegations.
12. We will make directions so that the proceedings can be returned to the Division and refixed for hearing as soon as possible without the need for a further directions hearing. These directions will provide for all witnesses, including the parties, to provide their evidence by way of statutory declaration, signed statement or appropriate expert report. Witnesses should be available for cross-examination.
13. If possible, the rehearing should be conducted in person or by video link. However if this cannot be achieved due to pandemic, the hearing should take place by telephone so that the dispute can be finalised.

Orders

1. The Appeal Panel makes the following orders: 1. The appeal is allowed. 2. The orders made 24 May 2021 are set aside in the proceedings are remitted for rehearing by the Tribunal. 3. In respect off the remitted proceedings the following directions are made: 1. On or before 27 August 2021 the applicant (Swain) is to file a bundle of documents to contain all evidence relied upon for the purpose of the remitted proceedings, including a copy of any documents previously provided at the original hearing or to the Appeal Panel in appeal 2021/00159233. 2. On or before 3 September 2021 the respondents (Roach) are to file a bundle of documents to contain all evidence relied upon for the purpose of the remitted proceedings, including a copy of any documents previously provided at the original hearing or to the Appeal Panel in appeal 2021/00159233. 3. Evidence from all witnesses, including evidence from each of the parties must be in the form of a statutory declaration or signed statement and all witnesses must be available for cross examination. This includes any evidence from tradespeople concerning work done at the premises in respect of the matters the subject of the dispute and any expert evidence concerning reports in relation to the residential premises. 4. All witness statements must be included in the respective party's bundle required by directions (a) and (b). 5. Each party must provide in their agreed bundle a short submission (not more than 3 pages): 1. In the case of the applicant, setting out each item of claim and the amount sought in respect of that item and a brief statement as to the legal basis upon which the claim is brought (for example breach of an obligation to repair or failure to provide premises fit for habitation); and 2. In the case of the respondents, replying to each of the items in (e)(i) and otherwise setting out why they have no liability. 1. All bundles must be indexed and paginated and provided to the Tribunal in hard copy. To the extent documents were previously provided to the Tribunal they must be reproduced and included in each parties' bundle as required by these directions. 2. A party may not rely on documents provided late or not in accordance with the above directions without leave of the Tribunal which leave will only be granted in exceptional circumstances. 3. The leave previously granted to the respondents' Agent (Ms Katelyn Aislabie of Street Property Management) to represent the respondents in the proceedings at first instance is revoked and the respondents are to have carriage of their own matter, provided that nothing in this direction prevents the Agent from being a witness and providing a witness statement in these proceedings in accordance with the directions above. 4. Nothing in these orders prevents the Tribunal from making such further or different directions as it considers appropriate. 1. The issue of whether the appellants (Roachs), or the Agent, should pay the costs of the Respondent (Swain) in the proceedings at first instance, being costs thrown away by reason of the Agent failing to appear at the hearing on 24 May 2021 (including any costs incurred in registering the original money order in the Local Court New South Wales), is to be determined by the Tribunal on remittal.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2021