Simion v de Beer

The hearing before the Tribunal

1. We have not been provided with a copy of the sound recording of the hearing or a transcript and neither party sought written reasons for the decision made by the Tribunal on 1 October 2020. As far as we can ascertain from the evidence provided to us by the parties on appeal, Ms Simion had provided some 120 pages of material to the Tribunal in support of her application in response to directions made when the matter came before the Tribunal on 4 May 2020. She states she did not provide Mr de Beer with a copy as required by the directions (although had emailed him the mould report) as there was an AVO in place. She believed that the Tribunal would forward the material to Mr de Beer. She also states that the material had been attached to her application to the Tribunal to set aside the earlier orders. It seems that a link to this attachment was sent by email to the Tribunal by Ms Simion and she apparently assumed it would be sent to Mr de Beer.
2. Mr de Beer told us that the only document he had received from Ms Simion was the mould report. He said that the Tribunal Member did not admit the 120 page document into evidence but each party was given time to present their case and all claims were considered by the Member. He said the hearing went for about an hour and three quarters. He had provided a bundle of documents, including photographs, to the Tribunal and Ms Simion.
3. Ms Simion told us that she moved into the premises in December 2019. She did not occupy a bedroom in the house but instead slept in a tent on the veranda. She also stored her clothes and other goods there. Ms Simion told us that she went to Sydney for three weeks in March 2020 and locked all her belongings in the house while she was away. When she returned they were all destroyed by mould.
4. Ms Simion engaged the services of a business called MouldPlus and a technician, David Singh, inspected the property on 24 April 2020 and provided a report. Mr Singh found high levels of mould in the property, particularly in the subfloor. This was compounded, he stated, by the climatic conditions present in the property's location and the lack of ventilation inside the property to circulate damp and moist air. In his opinion, the level and type of mould present constituted a health hazard. Ms Simion also provided a letter dated 24 June 2020 from Dr Adrian Hekel which indicated that she was suffering from the effects of "mould toxicity" (this letter, however, was not before the Tribunal Member).
5. Mr de Beer said that Ms Simion camped on the open veranda in a tent and did not use the bedroom. She would take her belongings outside where they were affected by rain, move them back into the premises and then out again. She also dragged furniture which had been supplied with the premises outside and it became wet and soiled. He said that she kept chickens inside the property and also had goannas and at one point a snake inside. The chickens could roam freely in and out of the house. He said that she would feed the chickens with leftover meat, vegetable scraps and bread which she would throw on the floor. As a result, the property became very dirty. Mr de Beer supplied photographs of the condition of the property showing food scraps strewn everywhere, chickens inside, furniture left outside and a tent and clothing and other belongings on the open veranda.
6. Mr de Beer said that when the tenancy commenced he advised Ms Simion that, as they lived in a rainforest area, she would need to use the air conditioner, ceiling fan and/or the supplied dehumidifier to deal with dampness, especially in wet weather. Mr de Beer said the premises were built in about 2001-02 and the subfloor was in fact sealed and was designed so that it would not get wet. He said that there have been no previous problems with mould in the premises that he and his family live in or the premises occupied by Ms Simion. He said that any dampness can be controlled by the use of the air-conditioner.
7. Ms Simion said that she didn't live inside the house and didn't feel that she needed to use the air-conditioner, particularly as it made a noise which she could not tolerate because of her autism. She said that when she was there the doors and windows were open.

Legal principles - internal appeals

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides that internal appeals other than on a question of law require the leave of the Appeal Panel.
2. Where the first instance decision is made in the Consumer and Commercial Division of the Tribunal clause 12(1) of Schedule 4 of the NCAT Act limits the ability of the Appeal Panel to grant leave to cases where the Appeal Panel is 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. there is significant new evidence which was not reasonably available at the time of the hearing.
3. An appeal from a decision made in the Consumer and Commercial Division must be lodged within 14 days of the date the appellant was notified of the decision. We are satisfied the appeal was made within time.
4. 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.
5. Obtaining leave to appeal is a two-stage process. At the first stage the tenant must persuade us that she 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 her grounds of appeal. Should she persuade us that she may have suffered a substantial miscarriage of justice she 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. The principles applicable to the granting of leave were set out in Collins v Urban [2014] NSWCATAP 17 at [65] - [84].
6. In her Notice of Appeal and subsequent submissions Ms Simion did not articulate any particular grounds of appeal. As to appeals by self-represented litigants, in Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel explained at [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.
7. In this matter we discern the grounds of appeal to be that Ms Simion 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.
8. For the reasons which appear below we are not persuaded that the member erred or that the tenant has suffered a substantial miscarriage of justice.

Consideration

1. Dealing first with the issue of whether Ms Simion was not afforded procedural fairness as the Member did not admit her bundle of evidence, while it is clear that her evidence was relevant to the proceedings, we do not discern any error on the part of the Member in not admitting that evidence.
2. The issue is whether Ms Simion was deprived of the opportunity to reasonably present her case to the Tribunal. Ms Simion's primary complaint is that she was not permitted to rely on her bundle of written evidence.
3. Section 38(2) of the NCAT Act expressly establishes that the Tribunal must observe the rules of natural justice. That subsection provides that the Tribunal "is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.".
4. Common law notions 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."
5. The hearing rule, as s 38(5)(c) indicates, is not, however, absolute. The Tribunal is only required to take "reasonably practicable" measures to ensure that a party has a "reasonable opportunity" to be heard. 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."
6. What constitutes a "reasonable opportunity" to be heard will, therefore, vary from case to case.
7. Ms Simion disputes that Mr de Beer did not receive her evidence prior to the hearing and claims that he lied to the Tribunal Member. In the material filed by Ms Simion in the appeal there is nothing which indicates that the Tribunal undertook to forward the documents to Mr de Beer electronically. There is also no evidence that Mr de Beer in fact received the documents. In the circumstances, the Member was entitled to rely upon the previous directions made by the Tribunal and the usual Tribunal practice for a party to serve documents on the other party. To allow the documents in on the day of the hearing would have significantly disadvantaged Mr de Beer. We have not been informed that any adjournment was sought by Ms Simion and we therefore assume that it was not.
8. In any event, Ms Simion does not dispute that she was given an opportunity to present her case orally to the Member. In addition, what might be described as the most important document in support of her position, the mould report, was clearly before the Tribunal and taken into account in the Member's decision. We therefore do not consider that Ms Simion was denied a reasonable opportunity to present her case.
9. We turn now to the grounds for which leave to appeal is being sought. In Collins v Urban [2014] NSWCATAP 17 at [76] it was said that a substantial miscarriage of justice 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.
10. The expression "against the weight of evidence" in the Tribunal means that the evidence in its totality preponderates so strongly against the conclusion favoured by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23 at [153], followed in Collins v Urban at [77].
11. In our view the decision below, on the state of the evidence the Member had before her was both fair and equitable. It was not against the weight of evidence.
12. The evidence which the Member had before her was that the tenant's goods had been damaged by mould. She also had a report from a mould expert which stated that mould was present in the premises and in the subfloor and that there was a lack of ventilation. The evidence also was that Ms Simion had stored her belongings outside where they became affected by the weather, kept chickens and other animals in the house and fed them food scraps inside, did not use the air-conditioning, ceiling fans or dehumidifier and when she went away for three weeks (which was when the mould appeared) locked all of her belongings inside the house.
13. Ms Simion insists that the source of the mould was the subfloor, a fact which is disputed by Mr de Beer. We note that the report by Mr Singh specifically referred to the lack of ventilation in the property. We make no finding as to whether the mould originated in the subfloor or elsewhere but we do accept that the tenant's goods were affected by mould.
14. Section 63 of the Residential Tenancies Act provides that the landlord must provide and maintain the residential premises in a reasonable state of repair. Sub-section 63(3), however, provides that a landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach. Mr de Beer attributes the mould, at least in part, to Ms Simion keeping chickens and other animals inside the premises in unsanitary conditions. It is arguable that this was a breach of the residential tenancy agreement and certainly a contributing factor to the mould problem.
15. In any event, it is well established that a landlord will not be liable for compensation or damages if the tenant has not taken reasonable steps to mitigate his or her loss. Even if mould was present in the premises for a reason not related to Ms Simion's occupation of them, there is clear evidence that she did not take steps to reduce any loss she may have suffered because of the mould. Not only did she allow chickens to roam freely in and out of the house in all weather, she dragged her wet belongings in and out of the house and stored them inside with no ventilation when she went to Sydney. Importantly, she did not use the air-conditioning, fans or dehumidifier which the landlord had specifically advised her to do because the premises were in a rainforest area and therefore the atmosphere was damp. In addition, Ms Simion had not provided any detailed or substantial evidence to support her claim of loss, including how she had arrived at the figure of $15,000.
16. In our view the findings made by the Member to dismiss the bulk of Ms Simion's claims for compensation were reasonably available on the evidence put forward by both parties at the hearing.
17. In all the circumstances we are unable to find that Ms Simion has suffered a substantial miscarriage of justice. There was no real possibility or fair chance of a different result on the state of the evidence before the Tribunal.
18. 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.

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: 22 February 2021