Scott v Mason

Background

1. The appellant occupied the premises as a tenant under the Agreement for a short time only; i.e. from on or about 17 July 2020 to 10 November 2020, the day following the Decision, when he vacated the premises.
2. The premises were a share house owned by the landlord and occupied by the landlord, the appellant (as a tenant) and by two (2) other tenants.
3. Disputes arose between the appellant, on the one hand, and the landlord and the other tenants of the share house, on the other hand. These disputes escalated with written and verbal abuse according to the landlord's evidence for the first instance application. There was a growing undertone of threating language and behaviour which prompted the landlord's application for urgent orders under the RT Act.
4. The landlord's application was served on the appellant (as tenant) on Friday 6 November 2020.
5. The appellant (in the Notice of Appeal) stated that he was aware of the landlord's application at least one hour prior to the hearing on Monday 9 November 2020.
6. The Tribunal Member attempted to call the appellant (as respondent to the application at first instance) twice prior to commencing the hearing. She was unable to make contact with the appellant. The hearing continued ex parte and took over two hours. The Member considered the written material and the sworn oral evidence of the landlord and the other tenants of the premises.
7. The appellant did not call back the Member during the hearing. The appellant therefore did not give evidence at the hearing.
8. At the conclusion of the hearing, the Member made the orders as set out in [4] above including a finding that justice required the matter to be dealt with in the appellant's absence (order 7).

Scope and nature of internal appeals

1. 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) of the NCAT Act.
2. 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 including that there was a failure to afford procedural fairness.
3. 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 Schedule 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).
4. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 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.
5. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
6. In Collins v Urban, the Appeal Panel stated at [84] that 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.
7. Therefore, obtaining leave to appeal is a two-stage process. At the first stage the tenant as the appellant must persuade us that he may have suffered a substantial miscarriage of justice under clause 12 (1) of Schedule 4, because of one or more of the matters referred to in his grounds of appeal. Should the tenant persuade us that he may have suffered a substantial miscarriage of justice he must then, at the second stage, persuade us that we should exercise our discretion to grant leave to appeal on one or more of those grounds
8. As to the position of self-represented litigants in appeals, in Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: 13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

Submissions and evidence

1. In deciding the appeal, we have had regard to the following:

• The Notice of Appeal lodged on 25 November 2020, with attached Appeal Application papers comprising annexures A - W (inclusive);
• The Reply to Appeal lodged on 14 December 2020, with affidavit of the landlord dated 9 December 2020 containing annexures JM 1 - JM 5 (inclusive) comprising the original hearing documents and the respondent's reply to appeal documents;
• The appellant's further written submissions and supporting documents (essentially, a further copy of the Appeal Application papers attached to the Notice of Appeal and a one page covering letter) received by the Registry on or about 1 December 2020;
• The Appeal Panel orders and directions of 11 December 2020, including an order made by consent that the appeal may be decided on the papers without an oral hearing pursuant to s 50(2) of the NCAT Act (see order 4);
• The application in the proceedings at first instance lodged on or about 4 November 2020; and
• The orders for the Decision of 9 November 2020 (as noted in [4] above, oral reasons were given for the Decision).

Notice of Appeal

1. The Notice of Appeal was lodged on 25 November 2020. As the Decision was handed down on 9 November 2020 and the appellant states in the Notice of Appeal that he received notice of the Decision on 9 November 2020, the Notice of Appeal was filed outside the 14 day period prescribed in r 25(3) of the Civil and Administrative Tribunal Rules 2014, NSW (NCAT Rules).
2. However, in the Reply to Appeal, the respondent does not take issue with the Notice of Appeal being filed and served late. We infer that the respondent raises no issue of prejudice to him by reason of the Notice of Appeal being filed and served two (2) days late and therefore does not object to time being extended to 25 November 2020 for the lodgement of the appeal. In those circumstances, we are satisfied that time should be extended (see NCAT Act, s 41) for lodging the appeal.
3. In his Notice of Appeal and supporting written submissions and other evidence, the appellant did not articulate any particular grounds of appeal, other than generally expressed assertions to the effect that he did not receive proper or "correct" notice of the original hearing, that he did not have adequate time to prepare his case, and that the Decision is based on "untrue, manipulative and misleading statements" of the landlord.
4. In this matter we discern the grounds of appeal to be that the appellant was denied procedural fairness, a question of law, and that the Decision was not fair and equitable and/or was against the weight of the evidence, for which leave is required.

Consideration

1. We see no error in the Decision.
2. The landlord's application was made as an urgent application to the Tribunal based upon grounds for termination arising under s 92(1) of the RT Act, which relates to serious and persistent threats of abuse; and engaging in intentional intimidation and harassment. We are satisfied that the appellant was served with the application and supporting documents by no later than Friday 6 November 2020 and that he had the ensuing weekend to consider, and prepare a defence to, the landlord's application. He did not seek an adjournment of the landlord's application.
3. General law principles of procedural fairness which encompass the natural justice hearing rule are set out in s 38(5) of the NCAT Act, which relevantly provides: "The Tribunal is to take such measures as are reasonably practicable: … (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings."
4. A similar point was made in Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298; (2011) 83 NSWLR 23 at [63], where Giles JA said that: "...in principle, the requirements of procedural fairness are identified as a matter of law depending upon the institutional setting in which decision-making is to operate, the relevant statutory scheme, the subject matter of the decision and, as part of that analysis, the seriousness of the potential consequences of an adverse decision."
5. The natural justice hearing rule, as s 38(5) of the NCAT Act provides, is not an absolute rule. The Tribunal is only required to take "reasonably practicable" measures to ensure that a party has a "reasonable opportunity" to be heard.
6. The Tribunal Member attempted to make contact with the appellant by telephone on two occasions before she commenced the hearing. The telephone number in the original application (being the telephone number that the Member used in her attempts to make contact with the appellant before commencing the hearing) is the same telephone number in the appellant's Notice of Appeal. The appellant gave no explanation as to why he did not attempt to participate the hearing, which went for over two hours.
7. In making her orders (see, in particular, order 7), the Tribunal Member found that a Notice of Hearing had been duly served on the appellant (as respondent for the hearing of the first instance application), and that justice required the matter be dealt with in that party's absence. Such findings were clearly open to the Tribunal: see r 35 of the NCAT Rules.
8. Therefore, we do not consider that the appellant was denied procedural fairness at the hearing on 9 November 2020.
9. We turn now to the grounds for which leave to appeal is being sought.
10. Although the appellant stated that he was not seeking leave to appeal, he put forward grounds that the Decision was not fair and equitable; and that the landlord's evidence was "untrue".
11. The appellant did not provide a sound recording of the hearing as he was directed to do on 11 December 2020 if he intended to rely on what happened at the hearing, and a typed copy of the relevant parts, and therefore we do not know in what respects it is said that the landlord's evidence (including the evidence of the other 2 tenants) was "untrue". As referred to, the appellant did not participate in the hearing at all. In any event, there is no evidence in the appellant's supporting documents for the appeal which, in our view, discloses a defence to the landlord's original application. The appellant vacated the premises the day following the Decision.
12. In all of the circumstances, we do not agree with the appellant's submission that he has suffered a substantial miscarriage of justice This is because we are satisfied that the findings of the Tribunal in the Decision were not against the weight of the evidence, nor were they not fair and equitable, and there is no significant new evidence which was not reasonably available at the time of the hearing. We find that the appellant has not been deprived of a significant possibility or of a chance which was fairly open: Collins v Urban at [76] - [79]
13. Further, even if the considerations in cl 12 of Sch4 of the NCAT Act were satisfied, we would not have been inclined to grant leave pursuant to s 80(2)(b) because in our view, there is no issue of principle involved, no question of public importance, no reasonably clear injustice and there is no clear mistake nor error in the fact finding process: Collins v Urban at [84].
14. Our conclusion is that none of the grounds of appeal have been established. Leave to appeal on a ground other than in relation to an error of law is therefore refused and the appeal is dismissed.

Orders

1. We make the following orders: 1. Leave to appeal refused. 2. Appeal dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 May 2021