The dispute between the parties to this appeal arises out of dealings in relation to the appellant's occupancy of a boarding house in Sydney during the latter part of 2019. The corporate respondent is the owner of those premises. Part of the dispute arises from the termination of the appellant's occupancy, which the appellant alleges was wrongful.
On 31 July 2020, the Tribunal ordered that the appellant's application (lodged on 14 May 2020) be dismissed and also made orders concerning the removal of some of the respondents as parties.
The Tribunal concluded that it had no jurisdiction to determine the application. It did so on the ground that the application had been brought outside the 28 day time limit set out in Rule 23 (3) (b) of the Civil and Administrative Tribunal Rules 2014. It was not prepared to extend the time for bringing the application.
Rurik v Travers [2020] NSWCATAP 242 | Case summary | Zoe
The Tribunal indicated that the decisive reason for not extending time was that the claim had no prospects of success. It said that s 16 (1) of the Civil Liability Act 2002 (NSW) (CLA) applied to the claim, which was a claim for compensation for "mental distress", and the claim had no prospects of success because there was no evidence from which the Tribunal could conclude that the severity of the applicant's loss arising from the alleged "psychological injury" was at least 15% of the most extreme case.
The Tribunal also referred to the delay (a delay of 3 months) in commencing the application as lengthy. However, as we have already mentioned, the Tribunal said that the s 16 (1) issue was the decisive reason for refusing an extension of time.
The appellant has a right of appeal on a question of law: s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (NSW).
Section 16 (1) of the CLA is in Part 2 of that Act, which applies whether the claim for damages is brought in tort, contract, under statute or otherwise: s 11A.
From the limited material seen by us on the appeal, it appears there were a variety of potential causes of action raised by the appellant. We note that it was far from easy for the Tribunal to identify the legal category into which the mixture of allegations fell, including how it could be said that the individual respondents had any civil liability to the appellant.
Nevertheless, if a claim for damages for mental distress fell within s 16 (1), as the Tribunal found, it was strictly unnecessary for it to have identified the particular cause(s) of action.
Up until the recent decision of the High Court in Moore v Scenic Tours Pty Ltd [2020] HCA 17; 94 ALJR 481; 377 ALR 209 (delivered in April this year) the Tribunal's opinion as to the meaning of s 16 (1) of the CLA accorded with Court of Appeal authority in NSW: see Insight Vacations Pty Limited v Young [2010] NSWCA 137 per Spigelman CJ at [78]-[79] and Basten JA at [125]; see also the summary of case authority by Bellew J in Tralee Technology Holdings Pty Limited v Yun Chen [2015] NSWSC 1259 at [47]-[63]-a case about breach of a residential tenancy agreement.
However, in Moore the High Court reached a conclusion contrary to this authority and found that s 16 (1) of the CLA did not apply to a claim for mental distress (and disappointment) because it was not a claim for personal injury within the meaning used in Part 2 of the CLA and it was not a claim for non-economic loss within the meaning used in s 16 (1).
As to the meaning of "personal injury" for the purposes of Part 2 of the CLA (defined in s 11), the plurality in Moore said:
40 Mr Moore submitted that his claim for damages for disappointment and distress for breach of contract falls outside Pt 2 of the CLA because the damages he claimed by way of compensation for his disappointment and distress do not relate to personal injury. He argued that a reaction of disappointment and distress to the breach of such a promise - a promise that had been bought and paid for - is a normal and healthy response to that disappointment rather than an impairment of the plaintiff's mental condition. It was said that the disappointment of a contractual expectation of recreation, relaxation and freedom from molestation is not "impairment" of a person's mental condition within the meaning of "injury" in s 11; nor is it "non-economic loss" under s 3 of the CLA. There is force in this submission.
41 Disappointment at a breach of a promise to provide recreation, relaxation and peace of mind is not an "impairment" of the mind or a "deterioration" or "injurious lessening or weakening" of the mind. Frustration and indignation as a reaction to a breach of contract under which the promisor undertook for reward to provide a pleasurable and relaxing holiday is, of itself, a normal, rational reaction of an unimpaired mind. In this regard, Mr Moore's claim for damages for his disappointment and distress resulting from Scenic's breach of contract can be seen as no more a claim relating to personal injury than would be a claim for damages for the indignation occasioned by false imprisonment or defamation. As was said in New South Wales v Williamson by French CJ and Hayne J, with whom Kiefel J agreed, while there may be cases where an act of false imprisonment itself causes psychiatric injury, insofar as an action for false imprisonment claims damages for loss of dignity and harm to reputation associated with the deprivation of liberty it is not a claim for an "impairment of a person's physical or mental condition" or otherwise a form of injury within s 11 of the CLA.
As to the meaning of "non-economic loss" used in s 16 (defined in s 3 of the CLA), the plurality in Moore said:
46 Disappointment and distress of this kind is not "non‑economic loss" under Pt 2 of the CLA. The text and structure of Pt 2 of the CLA are clear that non‑economic loss within Pt 2 is a head of loss associated with personal injury as pain and suffering. At common law, "pain and suffering" was understood to mean actual physical hurt occasioned by the accident or its aftermath; and damages for emotional harm were not recoverable unless a psychiatric injury was suffered. Similarly, the assessment of damages for "loss of amenities of life" invites a comparison between the ability of a person to enjoy life before and after the personal injury. But in the present case, no physical injury was alleged and no psychiatric illness was alleged to have resulted from the breach of the consumer guarantees in the ACL. The exception to the general rule relating to promises of enjoyment, relaxation or freedom from molestation, breach of which results directly in disappointment and distress, compensates a plaintiff for what he or she was promised where the expectation of a peaceful and contented holiday has been unfulfilled. The comparison between "the expectations against the reality" does not involve any reference to, or assessment of, an impairment to the plaintiff's mental condition.
In this case there was also no claim of physical injury, nor was there a claim that the appellant had suffered a psychiatric illness.
In view of the decision in Moore, it is clear that the Tribunal made an error of law in saying that s 16 (1) of the CLA was applicable to the damages claim before it.
Accordingly, the Tribunal's consideration of the application for an extension of time was founded upon a wrong principle and should be set aside: House v The King (1936) 55 CLR 499 at 504-505. Otherwise, we express no view about the merits of any of the appellant's allegations.
Upon remittal the Tribunal will need to consider the appellant's application for an extension of time for the commencement of his application. In doing so the Tribunal will need to consider what causes of action the appellant may have and whether the appellant's prospects of success in such causes of action are such that the interests of justice warrant the extension of time to permit the applicant to bring his application.
One such cause of action appears to be a claim for compensation under s 32 (4) (d) of the Boarding Houses Act 2012 (NSW) for distress and disappointment due to alleged breaches of the occupancy agreement, including, but not limited to, the wrongful termination of that agreement.
There were also imprecise references in the material to misleading and deceptive conduct in contravention of the Australian Consumer Law (NSW) which is alleged to have induced the appellant to enter the occupancy agreement.
In the event the Tribunal grants the appellant an extension of time to bring his claim, and determines that the appellant has established a breach of the occupancy agreement or other basis of liability, it will also need to consider the applicability of the exceptions to the general rule, that damages for distress or disappointment are not available for breach of contract, outlined by Mason CJ in Baltic Shipping Co v Dillon (1993) 176 CLR 344 at [44], including giving consideration to the decisions awarding damages in residential tenancy matters (for amounts very substantially less than the amount sought by the appellant) in Tralee and Fawzi El-Saiedy v NSW Land and Housing Corporation [2011] NSWSC 820.
[2]
Orders
For these reasons, we make the following orders:
1. The appeal is allowed.
2. Set aside the orders made by the Tribunal on 31 July 2020.
3. Remit the proceedings to a differently constituted Tribunal for a new hearing and re-determination of the appellant's application for an extension of time to bring his claim and, if an extension is granted, the appellant's claims, based upon the evidence already adduced by the parties and such additional evidence as the Tribunal may allow.
[3]
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
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Decision last updated: 18 November 2020