Rook v NSW Land & Housing

NCAT Appeal Panel|2016-06-15

Solicitors: none File Number(s): AP16/16550 Decision under appeal Court or tribunal: Consumer & Commercial Division NSW Civil & Administrative Tribunal Jurisdiction: Residential Tenancy Citation: Not reported Date of Decision: 17 November 2015 Before: S Hanstein, General Member File Number(s): SH 15/46903

Introduction

On 17 November 2015, Residential Tenancy proceedings taken by the respondent to the appeal, NSW Land & Housing Corporation, against the appellant, Grant John Rook, were concluded by the making of consent orders by the member before whom they were listed for hearing.
The orders made were as follows: 1. By consent, the tenant must comply with the terms of Residential Tenancy Agreement, by not threatening or harassing Housing NSW staff. 2. By consent the tenant will maintain 1 shed at the premises and remove the other 2 structures. The 2 sheds on the left hand side of the yard will be removed by 15 April 2016. 3. If these orders are not complied with by the tenant, then: 1. At any time before 22 April 2016 the landlord may request the relisting of this application to determine whether the tenancy should be terminated. 1. Notation: 1. The tenant admits that he left several abusive messages for a Housing NSW staff member.
The appeal is against order 2 only.

The Evidence

The evidence before this Appeal Panel comprises: 1. Statement and submission filed by the appellant on 10 June 2016; 2. Exhibit R1 being transcript of the original hearing; 3. Report of Dr Don McLachlan of Neurosurgery Department, John Hunter Hospital, dated 6 May 2008; 4. Further report from Dr McLachlan dated 14 May 2008; 5. Ambulance invoice dated 25 June 2008; 6. Residential Tenancy Agreement dated 7 December 2011; 7. Residential Tenancy Agreement dated 29 April 2013; 8. Letter of 8 December 2014 from NSW Land & Housing to the appellant; 9. Letter of 28 March 2015 from NSW Family & Community Services to the appellant; 10. Photographs of neighbours sheds; 11. Letter from BPK Building Approvals filed 11 May 2015; 12. Statement by the appellant of 18 October 2015; 13. Letter to the appellant of 26 June 2015 from Department of Family & Community Services; 14. Letter of 24 February 2015 from Department of Family & Community Services to the appellant; 15. Copy of request for information from Government Department, including informal request, dated 16 November 2015; 16. Letter from Department of Family & Community Services to the appellant dated 27 November 2015; 17. Letter from Legal Aid, Newcastle to the "Right to Information Unit" of NSW Land & Housing dated 1 April 2016; 18. Application for stay of decision pending appeal filed 6 April 2016; 19. Letter of 17 November 2015 notifying the appellant of the decision of that date; 20. Notice of appeal dated 6 April 2016; 21. Attachments to the notice of appeal, including statement of environmental effects and plans; 22. Affidavit of Paul David White filed on behalf of the respondent; 23. Submission filed by the appellant on 28 May 2016 titled "Affadavit (sic) - Submission 216 - Department of Housing Antercedents (sic)"; 24. Newcastle City Council document headed "Brief of Evidence covering sheet" in relation to alleged offences of appellant of failing to comply with a dog construction or control order and failure to comply with dangerous dog control requirements of the Companion Animals Act 1898 (S51(2)); 25. Court attendance notice requiring the attendance of the appellant at Newcastle Local Court on 13 January 2012 in respect to proceedings in relation to his control and keeping of a dangerous dog. 26. Notice of Newcastle City Council to the appellant of the Council's intention to inspect his premises for compliance with dangerous dog requirements; 27. Photographs taken by the Council's Senior Compliance Officer at the subject premises (11 photographs); 28. Transcript of conversation between the appellant, the Council's Senior Compliance Office, and another person (undated); 29. Letter of 3 January 2012 address "the whom it may concern" by Cindy Newton; 30. Photograph by the Council's Senior Compliance Officer of a locking mechanism on the front gate to an animal enclosure at Pendalbery Road, Maryland; 31. Copy of medical report of Dr Roger Przybylski to the appellant dated 17 August 2015; 32. CT scan results in respect to the appellant's brain signed by Dr Grant Bateman in respect of CT examination on 5 May 2008; 33. CT angiogram results in respect to the appellant's head from Hunter Health Imaging Service examination 7 May 2008; 34. Ambulance record in respect to ambulance staff attending on the appellant at the Kent Hotel, Hamilton, where he had fallen and hit his head whilst intoxicated on 5 May 2008 (he was conveyed to John Hunter Hospital and admitted); 35. Triage notes of John Hunter Hospital of 5 May 2008; 36. Letter of 24 February 2015 from Department of Family & Community Services to the appellant; 37. Warning letter of 28 March 2015 from the Department of Family & Community Services to the appellant; 38. Photographs of subject sheds; 39. Overhead photograph of 29 Curry Street, Merewether; 40. Copy of email from Mr White from Department of Family & Community Services (Housing NSW) to Tribunal filing submissions and copy of submissions; 41. Document entitled "submissions and evidence for the landlord"; 42. Copy of letter of 10 May 2016 to the parties confirming directions made at directions hearing on that day; 43. Application of the respondent of 10 August 2015 in which proceedings the order was made that the appellant now appeals; 44. Submissions by the respondent to the appeal filed 31 May 2016; 45. Submissions by the appellant filed 10 June 2016 and headed "A bullying victim. Affadavit (sic) 9/06/16.

Leave to appeal

Section 80 of the Civil & Administrative Tribunal Act 2012 ("The Act") provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note: Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance-with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance-as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
The appeal raises a question of fact as to whether the appellant was subjected to duress in giving his consent to the order made. If there is a finding that he was, there is a question of law as to whether his consent was valid.
The appellant therefore needs leave under Para 80(2)(b) to appeal on the factual issue of whether he was subjected to duress in relation to the consent and what duress, if any, affected his decision to consent.
In Docherty & Anor v Bullock [2016] NSWCATAP 126 (on 16 June 2016) an appeal panel determined an appeal from a decision of the Consumer & Commercial Division of the Tribunal under the Residential Tenancies Act 2010. Members of the Appeal Panel considered the authorities in relation to the granting of leave under Section 80 where the Tribunal had made consent orders to terminate a lease, and the appellant tenants claimed their consent to the orders was obtained by duress and they did not understand the effect of the orders.
The Appeal Panel in its decision endorsed the following dicta in the decision of the Appeal Panel in Roney v NSW Land & Housing Corporation [2015] NSWCATAP 269 at [33] to [49]: The Appeal Panel has recently considered the applicable principles on an application to set aside consent orders which terminated a residential tenancy on the basis that they were agreed to by the tenant in circumstances where he was acting under pressure or duress: Roney v NSW Land and Housing Corporation [2015] NSWCATAP 269, see particularly at [33]-[49]. In summary, and without citing all of the authorities referred to, the following principles may be extracted: (1) Section 59 of the Civil and Administrative Tribunal Act 2012 gives the Tribunal power to make consent orders, including dismissing the proceedings, where the consent orders give effect to any agreed settlement reached by the parties which are signed by the parties. (2) Grounds alleging that consent orders were entered into under pressure where the party ought to have been given an opportunity to be heard may raise questions of law, including: (i) whether the party was denied procedural fairness or; (ii) whether there was some procedural defect relating to the making of the consent orders in the circumstance of the case; or; (iii) whether the Tribunal miscarried in the exercise of its discretion because it failed to consider a mandatory consideration; or (iv) whether the Tribunal exceeded authority in making consent orders in the absence of a jurisdictional fact (3) In exercising any discretion under s 59, the Tribunal must take into account the interests of any "vulnerable person" which includes a person who is "totally or partially representing himself or herself in proceedings because he or she is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled": Rule 37 Civil and Administrative Tribunal Rules 2014, and a failure to do so would be an error of law; (4) The Tribunal may err in law by making consent orders in the mistaken belief that the settlement agreement was untainted by undue influence or other conduct or circumstances that may vitiate the consent. Arguably, the issue of whether there was an "agreed settlement" is a jurisdictional fact on which the discretion under s 59 (1) is necessarily based, and in making the orders, the Tribunal was by implication, making a finding which may have been erroneous or mistaken, depending on whether the underlying agreement can properly be challenged. (5) A party who seeks to set aside an agreement (or consent orders) must provide evidence of the facts which support that ground. (6) The grounds for setting aside consent orders are the same as those for setting aside the agreement on which it is based, for example, illegality, misrepresentation, nondisclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like: Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243-4. Such grounds can also include unconscionable conduct by the party which stands to receive the benefit of the agreement: Hobson v NSW Land and Housing Corporation [2015] NSWCATAP 222 at [11]- [14].

Further Limitations on internal appeals against decisions of the Consumer and Commercial Division

Schedule 4 to the Act applies to the Consumer and Commercial Division of the Tribunal. It provides in clause 12(1) : Limitations on internal appeals against Division Decision (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 available at the time the proceedings under appeal were being dealt with).
Given that the sheds were erected in breach of the condition of the lease requiring consent of the landlord, there is no arguable case that order 2 may have caused the appellant " a substantial miscarriage of justice" or "was not fair and equitable"..
There is no arguable case that order 2 was "against the weight of the evidence" as there was no hearing on the evidence. The member relied instead on the consent of the parties to the order.
It appears from the Notice of appeal that the only relevant allegation offered of any relevant evidence is the appellant's statement,"The capitulation decision to eliminate (2) two garden sheds was cowersed(sic)". That was the duress allegation. It was not evidence. It did not identify additional evidence. There was no evidence offered in the appeal that the appellant alleged was not available to him when the order was made.
Grounds of Appeal
Before the hearing day the appellant had the advice of Mr Capelin, a tenancy advocate from the Hunter Tenancy Advice and Advocacy Service and advice from Mr McClintock, a solicitor from Legal Aid. The appellant attended office of the Advocacy service before attending the Tribunal on the hearing day and discussed the proposed orders with Mr Capelin. Both Mr Capelin and Mr McClintock attended the Tribunal and advised the appellant there before he consented to the orders, although Mr McClintock did not appear before the member. Mr Capelin was present with the appellant and as his agent when the proceedings were before the member.
He had no such assistance before the Appeal Panel and he appeared to have had no such assistance in drafting his notice of appeal. Doing the best the Appeal Panel can do with the material, it appears from the material in the notice of appeal under the heading "Grounds of Appeal" that the ground raised is that the appellant's consent to order 2 was a result of "cohesion".
Elsewhere in his notice of appeal he said "statement was cohersed (sic) not free will". From the Notice of appeal and his submissions, it therefore appears he meant coercion or duress. It appears that his ground was that his consent was not valid as it was obtained by duress.

Vulnerability to duress by head injury

The appellant in his documents appears to assert that he has some relevant health problem from a head injury that rendered him vulnerable to duress or contributed to his consent being invalid. There is various evidence regarding his head injury. He suffered a head injury in May 2008 when he fell at a hotel whilst intoxicated. There is the following additional evidence: 1. Report of Dr Bateman regarding CT brain scan on 5 May 2008 that disclosed a non-displaced fracture which was suspected to be a "small acute subdural haemorrhage" 2. A report of Dr Napier of the Hunter Health Imaging Service regarding a CT angiogram that confirmed the matters in Dr Bateman's report. It said that the small subdural haemorrhage was "within the right frontal lobe". It also said there was associated oedema and also there was a small (6 mm in maximum thickness) subdural haemorrhage in the left frontal temporal region. That report is dated 7 May 2008; 3. Triage record of the hospital made on 5 May 2008; 4. Reports of the resident medical officer, Dr McLachlan in neurosurgery at John Hunter Hospital dated 6 May 2008 and 14 May 2008. In the latter report he said that the appellant had been discharged that day after being an in-patient from 5 May 2008 to 14 May 2008 "following a closed head injury". The Doctor said "he has had significant cognitive impairment during this time" and "he is down as discharging himself against medical advice but may need some special consideration for his upcoming University examinations". 5. The most recent medical evidence is the report of Dr Roger Przybylski of 17 August 2015. He says in that report: "Mr Rook suffers from a severe frontal executive dysfunction due to previous head injury. He also has ongoing grief due to the death of his parents and sister, as well as a loss of contact with his children. In my opinion, he requires stable long term housing in order to provide some stability for his ongoing mental health condition". 1. In an unsworn statement by the appellant dated 18 October 2015 he stated "I submit evidence as to my head injury which I do admit can give me a bit of a short fuse. When I suffered this injury I was hospitalised for 10 days and was in a coma". 2. In the notice of appeal the appellant says that he conducts businesses of furniture removal and also selling prawns. That evidence is repeated elsewhere in his documents. He refers to having a motor vehicle for furniture removal work and another vehicle for the prawn selling business. 3. He also says in the document he filed on 28 May 2016 that his sister died in 2008, his mother died in 2010.
There is no more recent medical evidence and no evidence by a medical practitioner or other expert that assesses the appellant as having any vulnerability from his 2008 head injury relevant to him giving consent to the orders made by the member.
The appeal panel therefore finds that there is no basis for any finding of vulnerability to duress from the head injury or otherwise.

What is the evidence of Duress?

In written and oral submissions of the appellant, he expanded on this argument. He also made relevant statements in an unsworn document titled "Affidavit - 05 April 2016" as follows: 1. "Coerced not by consent" 2. "The capitulated statements 'I agree to the gardens sheds was not coerced' - 'was not free will'". 3. "2 June 2016 Andrew Daley and Rachael Blaxell inspected 29 Curry Street, Wallsend was insolent, impudent, uncivil, with vitriolic speech, they Daly's rhetoric was disgruntled, vexed, discursive, ramblings, created an antagonistic mercurial atmosphere".
In his unsworn document filed 18 May 2016, titled "Affadavit (sic) - Submission 2016 - Department of Housing. Antercedents (sic)". The appellant makes the following allegations: (AA). "the warning letter of 28 March 2015 listed 10 requirements. The 10 requirements was a bigoted, bullying tactic by Andrew Daley"
A letter dated 28 March 2015 is in evidence, as is a letter from the Department of Family & Community Services (on behalf of the respondent to the appeal) to the appellant.
The appellant had erected or installed 3 sheds on the tenanted property in breach of Section 66 of the Residential Tenancies Act 2010 which provides: 66 Tenant must not make alterations to premises without consent (1) A tenant must not, without the landlord's written consent or unless the residential tenancy agreement otherwise permits, install or cause to be installed a fixture or make or cause to be made any renovation, alteration or addition to the residential premises. (2) A landlord must not unreasonably withhold consent to a fixture, or to an alteration, addition or renovation that is of a minor nature. (3) A landlord may withhold consent to any other action by the tenant that is permitted under this section whether or not it is reasonable to do so. (4) A fixture installed by or on behalf of the tenant, or any renovation, alteration or addition to the residential premises by or on behalf of the tenant, is to be at the cost of the tenant, unless the landlord otherwise agrees. (5) This section is a term of every residential tenancy agreement.
The erection of each shed by the tenant was therefore also a breach of the lease. There is no suggestion or evidence that the appellant tenant at any time sought the consent of the respondent landlord in respect to any of the 3 sheds.
It appears that the letter did no more than require the appellant to comply with his obligations under the lease. The requirement to remove the sheds was a mere requirement for the appellant tenant to rectify his breach of his obligations under the Act and the lease. It was more than 7 months before the consent order and there was no evidence capable of establishing that it did more than reasonably require the tenant's compliance and co-operation. The evidence is not capable of establishing that the letter constituted duress to have him sign the consent orders or consent order 2. (BB) Mr Daley from the respondent had on 17 November 2015 "at NCAD hearing in Newcastle attitude was mercurial ready to violate, he growled, uncomfortably stared, try to emotionally intimidate me, and the ethos and environment of our hearing" (CC) "The capitulated statements 'I agree to removed 2 gardens sheds on the left hand side of the yard' was 'coerced' by Geoff Capelin - Hunter Tenants Advice and Advocacy Services. Said words to the effect '….there will be no compromise from the Department of Housing over the sheds. They will take your residence from u'".
This statement attributed to his tenancy adviser, was practical and sound advice that the landlord was not inclined to compromise and would assert its right to terminate the lease because of his erection of the sheds without consent. (CC) On 2 July 2015, Daley was unreasonable, belligerent and dogmatic with authority. "Remove sheds immediately".
Mr Daley's statement was no more than to require the tenant to comply with the outstanding requirement of the warning letter of 28 March, 3 months previously.
Purported evidence of duress was also in a sworn submission filed by the appellant on 10 June 2016 titled "A Bullying Victim - Affidavit (sic) 9/6/2016" and the relevant allegations that he made in that document are" (CC) "Over the past year, that is from 2015 and continuous until 15 June 2016, I have been bullied by the following Department of Community Service employees. To name a few; Andrew Daley, Martin Crockford, Louise Fraser, Anne Shanley, Paul White. Additionally, Nicole Gregas, Geoff Capelin (coordinator off iced (sic) at Advice and Advocacy Service by Geoff Capelin - Hunter Tenants Advice and Advocacy Services". (DD) "The (5) (sic) Community Services employees have formed a collisional (sic) tact to defame my character and to discredit my autonomy. Geoff Capelin coerced my decision to keep the 2 garden sheds on the left hand side of the yard by using scare tactics, such as agree to pull down the garden sheds or you will lose your house, compromise to maintain the sheds will not be applicable". (EE) "On 17 November in the hearing at NCAP Administration Tribunal 175 Scott Street, Newcastle, Geoff Capelin was a witness to Andrew Daley's verbal and emotional attempt to create a negative, disruptive ethos and environmental tirade of abuse and threatening intimidating stares over 20 minutes episodes, growling, snarling and trying to provoke. There were only 4 people in the arbitration room at the time, myself, Geoff Capelin, Paul white Andrew Daley" (FF) "These stand over tactics have come from disgruntled staff that conduct their bullying in covert, yet disruptive ways, by withholding information with lies, accusing, denial coupled with poor performances in yet an intrusive, defamatory ways" (II) "Andrew Daley, the initial perpetrator of this heinous stand over tactics attended my property on 28 May 2015 for regular inspection with Rachael Black Snell. Daley was impudent and insolent, disrespectful, cocky, belligerently aggressive. Andrew Daley on arrival, verbal communication was based solely with vitriolic criticism using a tirade of abuse and forcing a mercurial atmosphere that displayed his discursive ramblings".
The appellant repeated most of these allegations in his documents and lengthy oral submissions at the appeal hearing. Much of the material of the appellant relied upon was not relevant to the appeal issues. For example, there was considerable evidence about conduct of people, alleged to be bullying or duress, that he alleged occurred on a date after the orders were made. Obviously such matters could not be regarded as duress influencing his consent to the orders.
In addition, there was some documentary evidence going to the duress issue. That evidence was: 1. Letter of 24 February 2015 from the landlord to the tenant advising the results of an inspection of the tenanted property that day. The letter said regarding the state of the property: "at the visit we discussed having a property care plan to address the issue of de-cluttering the rear yard and cleaning up the front yard to make it more appealing from the street scape. We have agreed to the following: You will begin the assess the belongings in the rear yard and make decisions about what you can dispose of; You will make a practical start on the rear yard and reduce the items by disposing of those things that are of no further use. For example, old fabric lounge chairs and bits of steel etc. Housing NSW will visit you again the end of April 2015 to see how you are going with improvements. 1. Letter of 26 June 2015 from the landlord to the tenant. This letter referred to complaint lodged by the tenant on 11 June 2015 regarding what the letter refers to as "service delivery and property concerns". It stated " "We have not taken any further action at this stage. You have been advised that you have been notified to remove items from the property by 28 July 2015. I have arranged for Mr Martin Crockford, Senior Client Service Officer Specialist, to contact you after 28 July 2015 to arrange a further property inspection. Please be assured that staff have been reminded about our customer service standards, which describe the level of service that clients can expect from us. 1. The application commencing the proceedings was filed on 10 August 2015. The NSW Land and Housing Corporation sought the following orders: 1. An order restraining any action in breach of the Residential Tenancy Agreement; 2. An order to comply with the requirements of the Act and Regulations; 3. An order for payment of an occupation fee; 4. A termination order for breach of the Residential Tenancy Agreement; 5. A termination order as the tenant had threatened, abused or intimidated or harassed the landlord, the landlord's agent, or an employee or contractor of the landlord; and 6. A termination order or an order for the possession of the premises. The reasons for the application were erection of unauthorised structures in the yard of the premises and abusive conduct towards employees of the landlord. 1. Email of Paul White of the Landlord's office to Geoff Capelin advising among other things, The sheds were erected without prior written permission of the landlord. HNSW is willing to allow the tenant to retain one of the properly constructed sheds but seeks an order that the other 2 sheds be removed. 1. Email of 7 October 2015 from Mr Geoff Capelin, tenant advocate from Hunter Tenants Advice & Advocacy Services to Paul White of the landlord's office. "Re - Matter of Grant Rook. Hi Paul, I will discuss the offer of an appeal SPO with the T. Thanks for that. Cheers Geoff Capelin. 1. Email of 16 October 2015 from Geoff Capelin to Paul White at the office of the landlord stating: Re: Matter of Grant Rook. Hi Paul, I have now discussed your suggestion to settle this matter with the tenant, Grant Rook. He is willing to agree to the terms you have put forward, ie SPO for the abuse; he admitted that he did do this. Secondly, he will agree to 1 shed and remove the other 2. Do you want to draft the agreement or shall I? Your sincerely Geoff Capelin 1. Reply dated 16 October 2016 by Paul White to Geoff Capelin, asking whether he would mind drafting the document. 2. Statement dated 18 October 2015 by the appellant to the Tribunal which included: "I agree that I did ring Housing Office on a number of occasions and I was rude. I am sorry and apologise for this. The background to this was that I was visited by Andrew Daley and Martin Crockford from the Department about some issues with my premises. I felt that they were difficult and rude to me and were not listening to me about why I need my sheds. I feel that during my discussions about this issue that the housing officers were aggressive. ….I submit evidence as to my head injury which I do admit can give me a bit of as short fuse. When I suffered this injury I was hospitalised for 10 days and was in a coma. I am willing to cooperate with the Department to address any issues if the Department decides I can continue my tenancy. 1. 19/10/15 - Typed Specific Performance Orders signed by the appellant and a representative of respondent and dated at the top "19/10/15". Below the signature for NSW Land & Housing is a handwritten date, the date of the hearing. There are handwritten alterations made to the document, presumably before it was signed. Order 1 is the same as order 1 in the orders made in November. The typed words of orders 2 and 3 are: 2. The tenant agrees he will maintain one shed on the property at 29 Curry Street, Wallsend and remove the other 2 structures. The shed on the right hand side of the yard and the…. ….will be removed. 3. If the orders are not complied with the L/L may request that the matter be relisted before 23/4/15. The amended Orders 2 and 3 read: 2. The tenant agrees he will maintain one shed on the property at 29 Curry Street, Wallsend and remove the other 2 structures. The 2 sheds on the left hand side of the yard .will be removed. 3. If the orders are not complied with the L/L may request that the matter be relisted before 23/4/16. 1. 20 October 2015 email from Geoff Capelin to Paul White Re matter of Grant Rook Hi Paul As discussed, draft SPO for Grant Rook Cheers Geoff Capelin 1. On 20 October 2015 email from Paul White to Geoff Capelin. It appears that it may have preceded the alterations to the draft orders of 19 October 2015. It says: Hi Geoff Thanks for your response. The only amendments I will need are as follows: A notation that the tenant admits he left several threatening and abusive telephone messages for a NHNSW staff member. I think it is necessary to clearly identify which sheds are to be removed - it goes without saying that the makeshift shed on the RHS of the yard must go, but which of the other 2 will be removed. Other than these 2 amendments I am happy with the agreement. 1. On 20 October 2015 Paul White again wrote to Mr Capelin. In the course of that email he said "regards to the consent agreement, please email me amended and signed agreement and I will sign and forward to the Tribunal". 2. 20 October 2015 - email from Paul White to Geoff Capelin - NSW Civil & Administrative Tribunal - SH 15/46903- NSW Land & Housing Corporation v Grant Rook stating: Hi Paul, Will do Cheers Geoff Capelin 1. Transcript of 17 November 2015 - no evidence was referred to or called. The member was informed that the matter had been settled. Mr Capelin appeared for the appellant as his agent. When the appellant arrived, he confirmed that. After some discussion the transcript reads: MEMBER: Thank you. You're Mr Rook? MR ROOK: Yes. MEMBER: You can take a seat up at the table here. And you've got Mr Capelin appearing for you today? MR ROOK: Yes. MEMBER: I'm told the parties have reached an agreement as to the orders to be made, and I congratulate them in relation to that. So I'll prepare some orders. The two sheds that are going to be removed, when will they be removed by? MR WHITE: We have agreed, in that it's approaching Christmas, that they be removed by the compliance date, the end of the relist date, with Mr -- MEMBER: By 23 April? MR WHITE: Yes. That will give Mr Rook time to arrange that. MEMBER: Should it be a week before then? MR WHITE: Yes, that's probably a good idea. MEMBER: Because otherwise you won't know whether to exercise the relist or not. MR WHITE: Yes, I think that's probably - is that okay, Mr Capelin? MR CAPELIN: Yes. MEMBER: So if we make it 15 April 2016, that's a Friday? MR WHITE: Yes, member MR CAPELIN: That's great, thank you. MEMBER: I'm going to read out the orders now and then I will just ask for confirmation that this is what is agreed to. The orders are: By consent, the tenant must comply with the terms of the agreement by not threatening or harassing Housing NSW staff. The tenant will maintain one shed at the premises and remove the other two structures. The two sheds on the left-hand side of the yard will be removed by 15 April 2016. If these orders are not complied with by the tenant, then at any time before 22 April 2016, the landlord may request a relisting of this application to determine whether the tenancy should be terminated. I have noted that the tenant admits that he left several abusive messages for a Housing NSW staff member. Mr White, does that cover everything? MR WHITE: It does, member. MEMBER: Mr Capelin? MR CAPELIN: Yes, thanks very much. MR ROOK: May I ask you something, please? Does a document precedent mean anything in this? MR WHITE: Well -- MR ROOK: No, I want to talk to the lady, please. They made me sign it, I was coerced to sign that, I didn't sign it, I don't agree with it, because I've had this stuff a long, long time, it's been in my other house before my mum died, my dad's memorabilia, it's all my study. It's very hard to say, "Get rid of it," I don't know where to get rid of it, I can't afford storage. So what do they expect me to do, just make it disappear? I was coerced to sign this. I can't win. I've lost faith in this system, if I can't win. The bloke behind me has built three big sheds, a garden shed, a pergola, and he's not interested. Why he's not interested, and Daly is not interested. He's built so much stuff in the last five weeks, he's built the biggest carport, the biggest - he's Department of Housing - right behind me, you've just got to look over the back fence [Subsequently, there was further discussion] MR CAPELIN: I think what Mr Rook is trying to say is he has reluctantly agreed to sign this, on advice. MR ROOK: It's come from my house before at Merrylands (indistinct). MEMBER: Mr Rook, you've got Mr Capelin acting for you in these proceedings. I think he has probably given you some advice in relation to what would be the likely outcome if I did hear this matter today MR ROOK: The law is supposed to be non-ambiguous, it's supposed to be precise, and this is ambiguous, very much so, MEMBER: If you didn't agree to these orders today, then it would be a matter for me to hear the case and make my decision. I would make my decision just looking on the facts of your case and applying the law as I think applies to those facts. Now, whatever has happened in relation to other Housing tenants doesn't necessarily impact on how I would decide your case. I would look to see simply whether you had the written consent of the landlord to erect these sheds and if you didn't, then you're in breach of your tenancy agreement MR ROOK: Couldn't they give me -- MEMBER: I don't need to - nevertheless, it's the landlord MR ROOK: He sold it (indistinct). MEMBER: It's up to the landlord whether or not they give you written consent to have the three sheds or not. Now, they have agreed to let you have one shed, okay. On the evidence I've seen, there is no written consent for the landlord to let you have any of the sheds, but they are agreeing to let you have one shed. If you're not consenting to these orders today, then I can MR ROOK: I understand, but -- MEMBER: You said you didn't -- MR ROOK: Under duress. MEMBER: I need to be satisfied that your consent is freely given, but I want you to understand that if -- MR ROOK: I don't know what to do with the stuff. MEMBER: No, please listen to what I'm saying, okay. If I need to hear the case, what I'm looking at is whether you've got the written consent of the landlord to erect those sheds. Now, there's nothing I've seen in the documents that have been submitted to say you've got the written consent. Please, just keep listening. MR ROOK: Yes. MEMBER: If you haven't got the written consent of the landlord to have the sheds, then you are breaching your tenancy agreement, okay. So what I would do is then order for the sheds to be removed. MR ROOK: Okay. If Daly gets aggressive with me again, he stared at me last time, he abused me, he was belligerent, do I get the right to (indistinct) because I will not let him into my house again, Daly. I don't care what manager he is or what, he will not get in my house again unless he is a PSA inspector, as I said Then there was some other discussion and the transcript then reads: MEMBER: Mr Rook, take a step back. In relation to the sheds, are you agreeing with the order that you will remove the two left-hand side sheds by 15 April next year? MR ROOK: I hope I can. The stuff has been there for a lot of years, it was at Merrylands as well. MEMBER: So you're agreeing to me making that order today? MR ROOK: Yes. I'm coerced to agree, but I'm agreeing, because I haven't got a choice. MEMBER: I think Mr Capelin was correct when he said you're reluctantly agreeing. MR ROOK: I'm very reluctant, very reluctant. I've been there for a long, long time. MEMBER: But nevertheless, you're agreeing - with some reluctance, but you're still agreeing; is that correct? MR ROOK: Yes. Later in the transcript there is a further relevant passage as follows: MEMBER: Mr Rook, you need to understand that your tenancy will really be at risk if you don't comply with these orders MR ROOK: I've lost all (indistinct) I've lost everything. Does it matter? This book I'm reading, I don't understand the system, the legal system. MEMBER: Okay, I can see -- MR ROOK: It's very ambiguous. MEMBER: Mr Rook, I can see you're frustrated. MR ROOK: Yes, I am. MEMBER: These orders that I'm told that you have agreed to today, I think you fully understand them. I think Mr Capelin has probably explained what is going to happen if you don't comply with these orders. MR ROOK: Yes. MEMBER: Okay? MR ROOK: Yeah, I'm just losing everything, so I'll just lose more. They took me double degree off me, too, but whatever. MEMBER: Okay. So with reluctance -- MR ROOK: It is to me, it is relevant in life -- MEMBER: -- with reluctance, you're agreeing to these orders that I've read out today? MR ROOK: Yes. 1. Exhibit A1 - letter from Hunter Tenants Advice & Advocacy Service to appellant dated 29 March 2016. The copy tendered by the appellant appears to be have a point whited out. That is indicated in the body of the letter. The letter is as follows: Dear Mr Rook I am writing in response to a number of verbal complaints you have made to me in relation to the services provided by this Hunter Tenants Advice and Advocacy Service (HTAAS), and in particular, Geoff Capelin. You attended the office without an appointment on Tuesday 8th of March and yelled at Mr Capelin as he left the office for the day. You then approached the office door and banged on the door with the heel of your hand. As I believed you were acting in an aggressive manner, I spoke to you through the door where you indicated you wanted to make a complaint. I advised that complaints can be made in writing and you told me you wanted to complain now. You alleged Mr Capelin did not advocate for you and said yes to everything Housing NSW asked and did not stick up for you. You advised you would not be removing the sheds from the property. You advised you were never abusive to Housing NSW Staff. I advised I would review the file and respond in writing. On 22/3/16 you rang the office and asked to speak with me. I advised that I had been reviewing the file and noted that the initial advice you received from HTAAS was as follows: that if you could not show you had written consent to erect the sheds that it would be difficult to win the case. You were advised by letter dated 9/11/2015 that there-was a draft order (which was enclosed) that we recommended you accept. This order would allow you to keep one shed The files shows that you came to the office and discussed the proposed orders. You were advised that the agreement would give you certainty, and that if the Tribunal were to decide, you may have been ordered to remove all the sheds. You attended the Tribunal and the orders were made as agreed. Jerome McClintock from Legal Aid was also present at the Tribunal on this day and I believe you had advice from him as well During the time I was speaking to you, you continued talking and made the following complaints: Andrew Daly growled at you and Geoff Capelin did not stop him [this line appears to be whited out] You want HTAAS to assist you with an out of time set-aside application You want HTAAS to assist you to make a complaint regarding Andrew Daly and Geoff Capelin. I advised you that we could not assist you any further and suggested going back to the University Legal Centre for assistance with a set-aside application. You told me that Legal Aid and the University Legal Centre told you they could not assist any further. I then referred you to the Samaritans Tenancy Resource Service for further support. In relation to your complaints I advise the following: At all times, the advice from HTAAS has been that it would be very difficult to keep the sheds as you did not have consent to erect them [this blank line of the original does not appear to have been whited out] You signed a. statement agreeing that you had been rude to Housing NSW staff and that your head injury can give you a bit of a 'short fuse'. File notes show that Mr Capelin did negotiate with Housing NSW to try and resolve the application that could have jeopardised your tenancy. Mr Capelin did advise you of the proposed orders in writing and in face to face meetings . During conciliation, Mr Capelin did not sense that Housing NSW representatives were acting in aggressive manner. Given the above information I am satisfied that the matter has been dealt with within the service guidelines. Your sincerely Nicole Grgas - Coordinator
Apart from specific statements of others referred to in the above discussion that are not capable of establishing duress, all of the allegations and evidence the appellant relies upon to prove duress are his opinions or speculation or conclusions as to the person's conduct, intention or state of mind. They are not evidence of what he observed was said or done by the persons. There is no evidence of conduct that he says is the basis of such opinions, conclusions or speculations.
So for example, he made statements/allegations that a person's behaviour was coercive, insolent, impudent, uncivil, "with vitriolic speech", disgruntled, , vexed, discursive, ramblings, , "created an antagonistic atmosphere", bigoted, bullying, "mercurial ready to violate", "uncomfortably" stared, "tried to emotionally intimidate me and the ethos and environment of our hearing", unreasonable, belligerent, "dogmatic with authority", "verbal and emotional attempt to create a negative, disruptive ethos and environmental tirade of abuse and threatening intimidating stares", growling, snarling and "trying to provoke".
These do not state what the person did or said. They are conclusions, submissions, opinions or speculations only. They are not evidence of what was done or said that could give rise to his opinion, conclusion or speculation.
This is a fatal flaw in the evidence the appellant offers to support the ground of duress. That evidence is so problematic and unreliable that it does not demonstrate that the ground is fairly arguable. It does not demonstrate there is any merit at all in the ground for the appeal that his consent was influenced by duress.
Because there is no evidence capable of establishing duress, there is no question of law relevant on the issue of whether his consent to order 2 was invalid. There is no question of law and consequently there is no issue in the appeal that does not require leave of the appeal panel under section 80(2)(b) of the Act..

Time limit for appeal

Rule 3 of the Civil and Administrative Tribunal Rules 2014 defines "Residential Proceedings" for the purposes of those Rules as including proceedings allocated in the Consumer & Commercial Division of the Tribunal arising under the Retail Tenancies Act 2010. The proceedings before the member is one such proceeding.
Clause 24(4)(b) of the Rules fixes the time for filing any internal appeal in the Tribunal against a decision in residential proceedings as "14 days from the day on which the appellant was notified of the decision or given reasons ( whichever is the later).
The decision was made on 17 November 2015 and the appellant was present at the time and was made aware of the reason for the orders before they were made, being that they were by consent. The time for appeal was therefore on or before 1 December 2015.
It appears the appeal was filed on 6 April 2016. The appellant therefore filed the appeal on a date that was 110 days after he was aware of the orders and the reason, when the appeal period was only 14 days. That was 9 times the period provided for by the Rules.
Under Section 41 of the Act, the Tribunal has power to extend the time for an appeal. In the Notice of Appeal the appellant sought leave to file the appeal out of time, that is, to have the appeal period extended.
The principles applicable for dealing with such an application were discussed by the Appeal Panel comprising the President of the Tribunal and the Deputy President of the Consumer and Commercial Division in Jackson v NSW Land & Housing Corporation [2014] NSW CATAP 22 (19 May 2014) [18] to [22].
It was held then that generally the Appeal Panel is required to consider granting an extension of time the following: 1. Length of the delay; 2. The reason for the delay; 3. Whether the appellant has a fairly arguable case; and 4. Extent of any prejudice suffered by the respondent to the appeal.
The Judicial Committee of the Privy Council held in Ratnam v Cumarasamy (1965) 1 WLR 8 (at p 12): The Rules of Court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material upon which the court can exercise its discretion.
The Australian courts have, in this area, adopted and applied the decision of McHugh J siting as a single Justice of the High Court in Gallo v Dawson [1990] HCA 30 at [2] that the grant of an extension of time is not automatic. The object of the Rule is to ensure that those rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties.
He held that the discretion to extend time can only be exercised in favour of an applicant upon proof that strict compliance with the Rules will work on injustice upon the applicant.
The length of the delay is extremely long. The only reason the appellant seems to offer for the delay is that legal practices were closed over the Christmas/New Year break. But he did not engage a lawyer to prepare the Notice of Appeal at all and was already out of time by early December. He did not file the Notice of Appeal until April. He did not give any real explanation for such a long delay.
He does not have "a fairly arguable case".
In the circumstances he has not established that there would be any injustice to him if the time were not extended.
The respondent to the appeal has suffered expense and delay in obtaining performance of order 2 or termination of the lease and possession of the property.

Conclusions

The appeal was out of time. It was an extreme delay. The appellant did not justify the delay. The ground of the appeal is not fairly arguable. There is no injustice that will arise if the time for filing the appeal is not extended. Given that there is no merit in the claim of duress, there is no ground that involved a question of law. Any ground relating to a question of fact requiring leave to appeal, does not satisfy the requirements of subclause 12(1) of Schedule 4 of the Act as the Appeal Panel is not satisfied that the appellant, as regards Order 2, may have suffered any substantial miscarriage of justice for any of the 3 reasons listed in the subclause.

Orders

Accordingly the orders of the Tribunal are: 1. The applications for an extension of time to appeal and for leave to appeal are refused and dismissed; 2. The Appeal from order 2 of 17 November 2015 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: 26 July 2016

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Judgment (11 paragraphs)

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Cases Cited (6)