Schultz v NSW Land and Housing Commission

NCAT Appeal Panel|2015-03-09

Introduction

In this matter the appellant seeks to appeal against a decision of a member sitting in the Consumer and Commercial Division of the Tribunal (the Tribunal). The appellant sought an order that he be provided with a copy of the security key so as to enable access to the fuse box located in the common area of the unit complex in which he lived. He sought the order so that he, along with other residents, could have access to restore power in the event of a blown fuse or tripped isolation switch.
On 28 August 2014 the Tribunal dismissed his application. The Tribunal considered that the application was seeking a purely hypothetical or advisory opinion from the Tribunal, which was beyond its power to order. The Tribunal noted that the appellant had spent a considerable amount of time in preparing and presenting material upon which the application was founded. The Tribunal stated that as the appellant indicated that he may wish to appeal from its decision, it would indicate why, even if the Tribunal had power to make the order, why such an order would have been refused in the exercise of the Tribunal's discretion.
This is a matter in which the appellant requires the leave of the appeal panel for the appeal to proceed. For the reasons below, we consider that leave to appeal should be refused, and that the appeal should be dismissed.

Orders sought

In the notice of appeal the appellant asks the Appeal Panel to make the recommended solution he sought in a previous statement dated 23 August 2014 which was before the Tribunal. The appellant asks that a fixed lock be installed on the fuse box, and that the respondent's maintenance department be directed to reset a tenant's fuse within five hours of being requested to do so by a tenant.

Leave to appeal - principles to be applied

The Civil and Administrative Tribunal Act 2013 (the Act) sets out the basis upon which appeals from decisions of the Consumer and Commercial Division of the Tribunal can be made. Under s80 of the Act an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s80(2)(b)).
An Appeal Panel may grant leave only if satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal was not fair and equitable; or 2. the decision of the Tribunal 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).
The expression "substantial miscarriage of justice" was considered by an Appeal Panel of the Tribunal in Collins v Urban [2014] NSWCATAP 17, and summarized at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred."
The general principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted were also set out in Collins v Urban, at [84]: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Respondent's submissions

The respondent notes that the appellant appears to submit that leave should be granted because the decisions appealed from was not fair and equitable, and was against the weight of the evidence.
As to the first matter, the respondent submits to make out this ground or review, the appellant must demonstrate that the decision was affected by error which vitiated the integrity of the decision making process so that it was not fair and equitable. A decision can be said to have been not fair and equitable if there has been a denial of procedural fairness. As the appellant's submissions do not allege any denial of procedural fairness, the respondent submits that this ground has not been made out.
As to the second matter, the respondent submits that a decision under appeal can be said to be "against the weight of the evidence" where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that the conclusion was not one that a reasonable Tribunal member could reach. The appellant submits that the Tribunal's findings were open to it on the evidence and material before it.
Finally the respondent submits that, if the Appeal Panel is satisfied that the appellant may have suffered a miscarriage of justice, the appellant needs to demonstrate something more than that the Tribunal was arguably wrong in its conclusion. It submits that there was not a significant possibility, nor was it fairly open to chance, that the Tribunal would have made a more favourable decision in the matter, nor was the Tribunal arguably wrong in the conclusion it arrived at. Accordingly the respondent submits that, if the Appeal Panel is satisfied that the appellant may have suffered a miscarriage of justice, the Tribunal should not exercise its discretion to grant leave to appeal.

Consideration

It is useful to set out what was stated by the Tribunal in dismissing the application. Relevantly, the Tribunal stated: 7. . . . upon the Applicant giving his oral evidence it became clear that he was positing a series of hypothetical propositions, while anything but fanciful, were not facts which were able to be found by the Tribunal so as to afford the making of orders in the exercise of its discretion and upon the basis of the power conferred upon it by the Residential Tenancies Act 2010. . . . 9. It becomes immediately obvious, and this was pointed out to the Applicant during the hearing, that as no facts were able to be advanced in respect of his own personal circumstances; and that there was no other application being heard by other residents who did suffer such difficulty, that the application was seeking a purely hypothetical or advisory opinion from the Tribunal, and that this was beyond its power. 10. Indeed, the relief which the Applicant sought is of a type unlikely to be entertained by any court of tribunal conformably with the principles enunciated in Bass v Permanent Trustee Co Ltd (1999) 198 (CLR) 334, (at 355 para [45]) per Gleeson CJ, Gaudron, McHugh, Gummow Hayne and Callinan JJ, where their Honours noted central to the purpose of a judicial determination is the notion that such determinations include a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. 11 As their Honours went on to observe (at 358 para [56]), it is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case.
As we noted above, leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. None of these matters have been raised by the appellant in its documents. Nor has any error of principle been identified. The appellant is simply seeking to reagitate an application for orders which the Tribunal found it did not have jurisdiction to make.
We are not satisfied that, in the circumstances, the appellant may have suffered a miscarriage of justice. In our view the Tribunal was plainly correct in its decision to dismiss the application.

Orders

The Appeal Panel makes the following orders: 1. The application for leave to appeal is dismissed. 2. The appeal is otherwise 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: 09 March 2015

At a glance

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Judgment (8 paragraphs)

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