Robinson v NSW Land and Housing Corporation

NCAT Appeal Panel|2021-07-27|Before: Blake AM

Introduction

Having regard to the principles in Wallace at [25]-[31], it is necessary to consider the following questions: 1. whether there is a reasonable explanation for the failure of the appellant to attend the hearing of the appeal on 5 May 2021; 2. if so, whether the discretion should be exercised in favour of the appellant to reinstate the Appeal Panel proceedings.
In relation to the second question, the critical question to address is the likelihood of success of the grounds 1 and 2 raised by the appeal.
As can be seen from the 4 December 2020 reasons at [8]-[16], the Tribunal relied on the following two reasons in finding that the respondent had established that the appellant had breached s 91(1)(a) of the RT Act: 1. her legal representative in consultation with Mr Fordham conceded there was a breach; 2. the police brief of evidence established there was a breach.

Whether there is a reasonable explanation for the failure of the appellant to attend the hearing of the appeal on 5 May 2021

The appellant relied on a statutory declaration made on 12 May 2021 (the 12 May 2021 Robinson statutory declaration) in which she: 1. states she was unable to fly from Western Australia to Sydney by 5 May 2021 because of the lockdown "because of coronavirus", "Vodaphone - 3 weeks no service", "due to Vodaphone technical disruptions did not receive email NCAT till 2/5/2021 when I … computer caravan park. I had to drive 5,000 klms back no reception in remote Australia" and "time difference"; 2. attaches the following documents: 1. a temporary travel permit dated 29 April 2021 for travel between 1 and 3 May 2021 from a location in Western Australia to a location at the border of Western Australia and South Australia; 2. a series of tax invoices for the purchase of petrol and other items at various places in Western Australia and South Australia between 1 and 5 May 2021; 3. the log for a telephone recording a series of outgoing calls to the number (02) 8688 2222 between 11.27am and 11.36am on an unspecified day (the telephone log); 4. an email she sent to the Tribunal on 2 May 2021 at 7.41am requesting that Ms Gallagher be added to speak on her behalf; 5. an email she sent to the Tribunal on 5 May 2021 at 12.08pm in which she states she tried to connect with the appeal hearing on that day but received a message that that the "meeting … not yet active".

Whether the discretion should be exercised in favour of the appellant to reinstate the Appeal Panel proceedings

The likelihood of success of ground 1

Ground 1 raises the issue of whether the Tribunal failed to afford procedural fairness to the appellant or made some other error of law because her legal representative acted in excess of authority in conceding that she had breached s 91(1)(a) of the RT Act.
The plurality (Gleeson CJ, Heydon and Crennan JJ) in Smits v Roach (2006) 227 CLR 423 at [46] (Gummow and Hayne JJ at [61] agreeing); [2006] HCA 36 (Smits) observed: "[46] The adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel, and that counsel has a wide discretion as to the manner in which proceedings are conducted. The width of that discretion is reinforced by the role of the barrister as an officer of the court, by the barrister's paramount duty to the court, and by the public interest in the efficiency and finality of the judicial processes (18). This was civil litigation. If Mr Lindsay had failed to object to inadmissible evidence in the course of the trial, the appellants would have been bound by the consequences, and there would have been no inquiry by an appellate court as to whether that had occurred for a good reason, or with the approval of the clients. Indeed, such an inquiry would normally be impossible. Similarly, if Mr Lindsay had decided not to pursue a certain line of argument, or press a possible point of law, the appellants could not have complained to an appellate court that he had failed to consult them about the matter. The respondents were not at risk of having a favourable decision set aside on the ground that, in some aspect (perhaps some very important aspect) of the conduct of the case, Mr Lindsay was acting without express instructions from his clients. That was because, in conducting the case on behalf of his clients, Mr Lindsay was exercising wide and independent discretion. If it were otherwise, any judgment in a civil case would be at risk of being set aside on the ground that counsel had acted in excess of authority, and the appellate process would be one of endless re-litigation of contested issues." (footnote omitted)
The Tribunal did not make any error of law in acting on the concession of her legal representative that the appellant had breached s 91(1)(a) of the RT Act. Mr Fordham had been appointed the guardian ad litem of the appellant and was entitled to make decisions against her instructions. Consistent with Smits at [46], the appellant's legal representative exercised a wide and independent discretion in conducting proceedings SH 19/45202. In exercising this discretion he was entitled to make this concession even though it was contrary to the appellant's instructions and without her authority, and even more so where he was to obtain instructions from Mr Fordham.
For these reasons we are satisfied that ground 1 has no prospects of success.

The likelihood of success of ground 2

Ground 2 raises the issue of whether the Tribunal erred in finding that a breach of s 91(1)(a) of the RT Act had been established.
Part 5 Division 2 (ss 84-95) of the RT Act contains provisions dealing with the termination of a residential tenancy agreement by the landlord. This Division includes s 91 which deals with the use of premises for illegal purposes, and relevantly provides: 91 Use of premises for illegal purposes (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted - (a) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or …
The DMT Act relevantly includes: 1. Part 1 (ss 1-8B) which deals with preliminary matters. This Part includes s 3 which contains definitions, and relevantly provides: 3 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires - … prohibited drug means any substance, other than a prohibited plant, specified in Schedule 1. … 1. Part 1 Division 2 (ss 22-33A) which contains indictable offences. This Part includes: 1. section 25 which specifies the offence of the supply of prohibited drugs, and relevantly provides: 25 Supply of prohibited drugs (1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence. … 1. section 29 which specifies that possession of a traffickable quantity of a prohibited drug is taken to be for supply, and provides: 29 Traffickable quantity - possession taken to be for supply A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless - (a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or (b) except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner. 1. Schedule 1 which specifies that 3.0g of methylamphetamine is a traffickable quantity.
The documents tendered by respondent at the hearing of proceedings SH 19/45202 including documents produced by the NSW Police Force which relevantly included: 1. the Facts Sheet that states on 5 September 2019 when executing a search warrant at the premises the Police located a coke can containing approximately 25.79g of methylamphetamine in a small plastic bag in a coke can, which was later examined forensically. A DNA swab taken from the rim of the can was later positively compared to the DNA of the appellant; 2. a photograph of the coke can; 3. a signed statement of Detective Senior Constable Dignan dated 9 September 2019 which relevantly stated that at 4.20pm on 5 September 2019 he was handed a fake coke can by Constable James containing 24.2g of methylamphetamine at the premises which he sealed in exhibit bag XD000123483 and photographed; 4. a signed mass certificate dated 27 September 2019 which relevantly stated that that the mass of the substance in exhibit bag XD000123483 is 25.79g.
The appellant and Ms Gallagher advanced the same argument as had been advanced at the hearing of proceedings SH 19/45202 that she could not have breached s 91(1)(a) of the RT Act because she had not been guilty of any offence of the supply of a prohibited drug under the DMT Act. In the voluminous material provided by the appellant to the Appeal Panel there is no material that could constitute new evidence that was not reasonably available at the hearing of proceedings SH 19/45202.
The respondent submitted that the appellant has not provided material capable of satisfying the conditions in cl 12 of Sch 4 of the NCAT Act.
Although not obliged to do so in view of the concession of her legal representative, the Tribunal considered the appellant's submission that she did not breach s 91(1)(a) of the RT Act. The documents produced by the NSW Police Force at [53] above establish that the appellant was in possession of a traffickable quantity of methylamphetamine and so was supplying methylamphetamine, which is a prohibited drug within the definition of that expression in s 3 when read with Sch 1, in contravention of s 25(1) when read with s 29, of the DMT Act. There was no evidence before the Tribunal capable of establishing a defence under s 29(a) or (b) of the DMT Act. In the absence of any other evidence the Tribunal was entitled to be satisfied that the appellant had breached s 91(1)(a) of the RT Act by reason of intentionally or recklessly causing or permitting the use of the premises for the supply of a prohibited drug within the meaning of the DMT Act. The Tribunal was correct in rejecting the submission of the appellant that because she was not found guilty of "the serious matters" it could not be found that she had breached s 91(1)(a) of the RT Act. There is no evidence that the appellant was found not guilty of any charge arising out of the execution of the search warrant at the premises on 5 September 2019.
We are not satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that the decision of the Tribunal under appeal was not fair and equitable, or the decision of the Tribunal under appeal was against the weight of evidence, or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) within cl 12(1) of Sch 4 of the NCAT Act. Further, even if we had been satisfied that the appellant may have suffered a substantial miscarriage of justice we would not have exercised the discretion to grant leave to appeal because none of the factors identified in Collins at [84(2)] are present. Accordingly, there is no basis for leave to appeal being granted against the 4 December 2020 orders.
For these reasons we are satisfied that ground 2 has no prospects of success.

Conclusion

We have decided that the application of the appellant that the Appeal Panel proceedings be reinstated should be dismissed.

Whether time should be extended for the appellant to lodge the appeal

Whether the appeal should be allowed

As we have decided that the application of the appellant that the Appeal Panel proceedings be reinstated should be dismissed, these issues do not arise for decision. However, for the sake of completeness we have considered the position on the assumption that we had decided that the application of the appellant that the Appeal Panel proceedings be reinstated should be granted.
The appellant did not comply with the time specified in r 25(4)(b) of the NCAT Rules in lodging the notice of appeal. She said that Ms Smith had not followed her instructions. In applying the principles in Jackson at [18]-[22], even if we had been satisfied as to the appellant's explanation for the delay in lodging the notice of appeal, we would have dismissed the application of the appellant for an extension of time to lodge the appeal because of her insufficient prospects of success for the same reasons in refusing to reinstate the Appeal Panel proceedings.
If we had decided that the application of the appellant for an extension of time to lodge the appeal should be granted, then we would have dismissed the appeal and to the extent necessary refused leave to appeal for the same reasons in refusing to reinstate the Appeal Panel proceedings.

Orders

The respondent submits that order 3 of the 4 December 2020 orders should be varied because of the limitation of 30 days for the issue of a warrant for possession after 4 March 2021, being the date by which vacant possession of the premises was required, under s 121(2) of the RT Act. It is appropriate in view of the delay caused by the disposition of the Appeal Panel proceedings to extend the time under this section for a period of approximately two months after the decision in this appeal.
We make the following orders: 1. the application of the appellant that the Appeal Panel proceedings be reinstated is dismissed; 2. the time is extended for the issue of a warrant for possession until 4 October 2021.

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: 04 August 2021

Residential Tenancies Act 1987(NSW)

Proceedings SH 18/52892 and SH 19/45202

On 13 October 2018, the respondent as the applicant commenced proceedings SH 18/52892 against the appellant as the respondent by filing an application in which it relevantly sought a termination order under s 91 of the RT Act and provided the following reasons for this order: "On 11/10/2018 at approximately 9.30am, NSW Police executed a search warrant at the residential premises. During execution of the warrant, police located the following - 454 grams of Cannabis in a red dog food bag in the kitchen pantry, 482 Grams of Cannabis in a yellow dog food box within the pantry, $1150 within clothing inside draw in Ms Robinson's bedroom. A further $450.00 was found in Ms Robinson's bedroom. 19 grams of MDMA was located in Ms Robinson's bedroom along with a hand written ledger with a list of names and dollar amounts, 4 grams of Cannabis in a black container, 15 grams of Cannabis in individual foils, $205.00 in Ms Robinson's wallet and a CCTV hard drive. Police also found that the premises was equipped with CCTV camera's both inside and outside the property and also had 3 - 4 canine animals. Ms Robinson stated to police during the execution of the search warrant that numerous persons attend her address and use drugs at the location. The tenant has since been charged with the following - Supply Prohibited Drug x 2, Deal with property proceeds of crime, Owner/occupier knowingly allow use as drug premises and Possess Prohibited Drug."
On 8 October 2019, the respondent as the applicant commenced proceedings SH 19/45202 against the appellant as the respondent by filing an application in which it sought a termination order under s 91 of the RT Act and provided the following reasons for this order: "On 4 September 2019 ??? Police executed a search warrant at the premises. Police sighted loose Cannabis on the floor of garage which weighted 23 grams, located two separate clear resealable bags which police believe to be amphetamine in paste form, commonly known as base yet to be examined. Police also located 11 grams of Cannabis within hallway, 2 grams of methyl amphetamine in multiple clear resealable bags and 10 grams of cannabis in the room. Police located another 24.2 grams, 0.2 grams and 0.5 grams of methyl amphetamine. The premises has (sic) been previously subject of search warrant in October 2018 whereby prohibited drugs were seized and accused was charged."
On 18 February 2020, the Tribunal made procedural directions including an order that proceedings SH 18/52892 be listed for hearing with proceedings SH 19/45202.
On 21 July 2020, the representative of the respondent informed the Tribunal that the appellant had pleaded guilty to four of the charges arising out of the execution of both search warrants. The Tribunal made procedural directions including an order that in accordance with s 45(4)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a guardian ad litem be appointed for the appellant in proceedings SH 18/52892 and proceedings SH 19/45202.
On 29 July 2020, the Registrar advised the parties in proceedings SH 18/52892 and proceedings SH 19/45202 that Graeme Fordham (Mr Fordham) had been appointed as the guardian ad litem for the appellant.
On 20 October 2020, the Tribunal made procedural directions including an order that both parties proceedings SH 18/52892 and proceedings SH 19/45202 granted leave to be legally represented.
On 22 October 2020, the Registrar advised the parties that proceedings SH 18/52892 and proceedings SH 19/45202 had been listed for hearing on 24 November 2020.
On 24 November 2020, the hearing took place. Both parties were legally represented. Mr Fordham and the appellant accompanied by her friend Ms Melanie Smith (Ms Smith) were in attendance. At the hearing the Tribunal dismissed the application of the appellant that Mr Fordham be removed as her guardian ad litem. Both parties relied on material at the hearing.
On 4 December 2020, the Tribunal: 1. made the following orders (the 4 December 2020 orders): "1. The Residential Tenancy Agreement is terminated in accordance with section 91(1)(a) of the Residential Tenancies Act 2010. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 4 March 2021. 4. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing." 1. relevantly provided the following reasons for decision (the 4 December 2020 reasons): "[8] On 5 September 2019 the NSW Police Force entered the tenant's premises pursuant to a search warrant. As a result of conducting that search the tenant was charged with a number of serious offences all relating directly to the residential premises. The Police Brief of Evidence was summonsed and presented in the matter. The charges included: • 3 charges in respect of supply prohibited drug pursuant to the Drug Misuse and Trafficking Act 1985 • 10 charges in respect of possess prohibited drug pursuant to the Drug Misuse and Trafficking Act 1985 • 1 charge in respect of knowingly allow premises to be used as a drug premises pursuant to the Drug Misuse and Trafficking Act 1985 • 1 charge in respect of possess unauthorised pistol pursuant to the Firearms Act 1996. • 2 charges in respect of recklessly deal with proceeds of crime and unlawfully obtained goods pursuant to the Crimes Act 1900. [9] The Tribunal was informed that the criminal proceedings have now concluded. The tenant engaged successfully in a plea bargain, was released based on time served and is currently subject to Community Corrections supervision on parole until 4 March 2021. It was unclear what the final outcomes of the criminal proceedings were in relation to every single charge. [10] In accordance with the decision in Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 the Tribunal considered that there were then three elements to the landlord's application: (a) Are the elements of Section 91(1)(a) made out. (b) If so, does Section 154D apply so as to give the Tribunal a discretion as to whether to terminate the tenancy agreement. (c) If Section 154D applies, exercising proper discretion in relation to termination having regard to the legislation. Has the tenant breached s91 (1) (a) of the Act? [11] The landlord's position was based upon the facts, material and charges relevant to the police brief of evidence to establish that the tenant intentionally caused or permitted the use of her premises for the purposes of the sale or supply of a prohibited drug. The tenant also had both possession of drugs and there was an unauthorised pistol located on the premises. [12] The tenant's legal representative with the Guardian ad Litem conceded that the tenant had breached s91(1)(a) of the Act. They agreed they were not contesting the matter. [13] The tenant stated that the charges were reduced and she was not found guilty or sentenced on the serious matters. The tenant's seemed to be submitting that simply because she wasn't found guilty of the serious criminal charges, then the Tribunal couldn't find that she did any of those things or that there was a breach of s91(1)(a) of the Act. The tenant had submitted no other evidence in the matter to contest the issues. The tenant did not dispute any of the items found by the NSW Police on the premises as identified in the police brief of evidence. [14] The Tribunal could not accept the tenant's submission because irrespective of the result of the tenant's plea bargain and any actual final criminal convictions, these proceedings in respect of the residential tenancy agreement are to be independently heard and based upon the different civil standard of proof. Additionally, s91(1)(a) of the Act identifies that it relates to both the tenant, or any person who although not a tenant is occupying or jointly occupying the premises intentionally or recklessly causing or permitting the use of the premises for the purposes of manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985. Section 91(1)(a) of the Act has a much wider scope than just what criminal convictions the tenant actually plead guilty to as part of a plea bargain. [15] The police brief of evidence set out and clearly disclosed all the drugs and related material that was found on the tenant's property during the search. This included a large amount of prohibited drugs, CCTV cameras on each corner of the premises, drug scales, clear resealable bags, a number of electronic devices, cash and a firearm. The various items were located throughout the premises. The tenant did not deny that she was aware of the items located during the police search or provide any evidence or reasonable explanation for all these items being on her premises. [16] Based upon all the material located on the premises as identified in the police brief of evidence, the Tribunal finds that the tenant intentionally or recklessly caused or permitted the use of her premises for the purposes of the sale or supply of prohibited drugs within the meaning of the Drug Misuse and Trafficking Act 1985. Although the tenant opposed the finding, the tenant's legal representative in consultation with the Guardian ad Litem conceded the situation. The Tribunal finds that the provisions of Section 91 (1)(a) of the Act have been established and the application is one the Tribunal will consider and determine. …"
On 8 December 2020, the Tribunal dismissed proceedings SH 18/52892 as the respondent in view of the 4 December 2020 orders withdrew the application.

The scope and nature of internal appeals

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)(b) of the NCAT Act.
The Appeal Panel relevantly may decide to deal with the internal appeal by making one or more orders including that the appeal be dismissed: s 81(1)(a) of the 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 which relevantly includes whether the Tribunal failed to afford procedural fairness.
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 Sch 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: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. 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 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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."
In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.

At a glance

Court

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Judgment (10 paragraphs)

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Legislation Cited (5)

Cases Cited (12)

Cited By (1)