Leeser v McKerlie [2022] NSWCATCD 6
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Ex parte Lam [2003] HCA 6
7 February 2022
Source
Original judgment source is linked above.
Catchwords
(2004) 22 ACLC 931Leeser v McKerlie [2022] NSWCATCD 6
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11Ex parte Lam [2003] HCA 67 February 20229 February 202211 March 202222 March 2022 (amended 1 April 2022)
Before: J Drennan, General Member
File Number(s): RT 21/48777
Judgment (27 paragraphs)
[1]
REASONS FOR DECISION
This is an appeal from a number of decisions of the Consumer and Commercial Division of the Tribunal involving a residential tenancy dispute.
[2]
Background
The appellant is the former tenant and the respondent is the former landlord. In these reasons any reference to 'the tenant' is a reference to the appellant, and any reference to 'the landlord' is a reference to the respondent.
The parties entered into a residential tenancy agreement in writing on 28 April 2020. The written agreement was for a fixed term of three months. The tenancy continued as a periodic tenancy under the Residential Tenancies Act 2010 (NSW) ('the RT Act'). The residential property was managed by a real estate agent for the landlord. The residential premises are located in Port Stephens, an area north of Newcastle, NSW.
On 22 June 2021, the landlord served a 'no grounds' Notice To Terminate the tenancy under s 85 of the RT Act giving 90 days to vacate the property. According to the notice, it was served by placing it in the tenant's letterbox in an envelope addressed to the tenant. That is a valid method of service under s 223 of the RT Act.
The date of vacant possession pursuant to the Notice to Terminate was 23 September 2021.
The tenant wrote to the landlord's agent on a number of occasions disputing the validity of the Notice and did not vacate the residential premises.
On 29 November 2021, the landlord commenced proceedings in the Tribunal seeking a termination order under s 85 of the RT Act.
On 31 January 2022, the Deputy Divisional Registrar of the Tribunal refused to issue Summonses to produce documents sought to be filed by the tenant against the landlord's agent and the landlord, on the basis that the Summonses were not clearly relevant to an issue in dispute; were too broad and compliance would be too onerous; did not clearly identify what documents were sought; and improperly sought the creation of documents.
On 7 February 2022, the President of the Tribunal refused to grant leave for the tenant's application for an in person hearing as there were no special circumstances to warrant departure from the Tribunal's procedure at that time that hearings be conducted remotely. This was the second occasion the President had refused the tenant's application for an in person hearing in the proceedings.
The landlord's termination application was listed for hearing at the Tribunal on 9 February 2022. The parties appeared by telephone.
The hearing on 9 February 2022 did not conclude on that date. The Tribunal member made extensive written directions, noting that proceedings had been interrupted by attendance of NSW Fire Brigade to the hearing venue. The directions issued by the Tribunal made clear that the Tribunal was "considering" dispensing with a further hearing and making a determination of the landlord's termination application on the papers, and without further oral hearing.
The procedural directions of the Tribunal were that:
1. Both parties were to provide written submissions as to whether the hearing could conclude with a determination on the papers under section 50 (2) of the Civil And Administrative Tribunal Act 2013 (NSW) ('the NCAT Act').
2. The landlord was directed to file and serve reorganised documents that were page numbered and include a statutory declaration from the landlord confirming that her agent had been duly appointed and a copy of the Managing Agency Agreement (without certain unnecessary information, such as the landlord's private address).
3. The tenant was directed to file and serve documents in response to the landlord's documents.
4. Both parties were directed to make written submissions regarding issues including:
1. Whether the time period for the landlord to commence proceedings in the Tribunal under s 83 of the RT Act and Regulation 39 of the Residential Tenancies Regulation 2019 (NSW) ('RT Regulation') should be extended;
2. Whether there were any hardship issues pertaining to either party in respect of an appropriate date of vacant possession if the tenancy was terminated; and
3. Any other issue directly relevant to whether the tenancy should be terminated and the appropriate date of vacant possession.
1. The procedural directions made clear that the tenant was to focus upon the issues relevant to a determination of the extension of time; termination of the tenancy under s 85 of the RT Act; and (if time was extended for the filing of Tribunal proceedings and the Tribunal terminated the tenancy) the appropriate date of vacant possession. The directions stated that submissions on "any other matter" by the tenant would be read and considered, but only to the extent they related to the real issues in dispute in the landlord's termination application.
2. The procedural directions set out the provisions of s 50 of the NCAT Act and s 85 of the RT Act to assist the parties.
The tenant made a written application that the Member disqualify herself on grounds of actual or apprehended bias and an application seeking an extension of time to file and serve documents and submissions. The tenant opposed the hearing being concluded on the papers, and sought a further oral hearing. The tenant also applied for an adjournment.
The matter was listed for hearing on 11 March 2022, with the parties informed that personal attendance was not required.
On 11 March 2022, the Tribunal made orders and directions, but did not conclude the hearing.
The Tribunal:
1. Refused to grant the adjournment of the hearing. The Tribunal stated that there were insufficient grounds to grant a further adjournment. The Tribunal noted that it was not bound by the rules of evidence and evidence did not need to be by way of affidavit, which appear to be among the grounds raised by the tenant in seeking an adjournment. The Tribunal noted it would consider, among the issues, whether the landlord's Notice of Termination was retaliatory under s 115 of the RT Act. The Tribunal did not accept the tenant's argument that she did not have access to a computer, noting that the tenant demonstrated "by her constant use of email that she has access to a computer." The Tribunal noted that it was consistent with the just, quick and efficient resolution of the real issues in dispute under s 36 (1) of the NCAT Act that the hearing not be adjourned.
2. Granted the tenant a further and final extension of time to file and serve documents and submissions in response to the landlord's documents and submissions. The Tribunal noted that the tenant "emails the Tribunal on a daily basis, numerous times." The Tribunal stated that the tenant had been given a reasonable opportunity to provide submissions and documents that addressed the matters set out in the directions of 9 February 2022, but rather than doing so had continually and repeatedly requested extensions of time. The Tribunal, however, was prepared to give the tenant a final extension to 14 March 2022, but stated that no further extensions would be granted and no further documentary evidence filed and served after that date would be admitted.
3. Refused the application that the Member disqualify herself. The Tribunal stated that the tenant "does not provide a reason as to why I should recuse myself from this hearing" and accordingly there was no basis established for disqualification.
4. Determined that the hearing would proceed and conclude on the papers in accordance with s 50 (2) of the NCAT Act. The Tribunal set out that on 9 February 2022 the only issue to be heard was the tenant's adjournment application. The Tribunal stated that the tenant was "highly intelligent and articulate" but had provided "voluminous, repetitive and…complex" written submissions and documents and that the tenant had raised a number of claims that were not the subject of the Tribunal proceedings the Member was tasked with deciding. The Tribunal stated that it had read and considered all of the tenant's submissions and documents. The Tribunal stated that a further telephone hearing was likely to take "many days" due to the prolixity of the tenant's oral arguments and submissions. The Tribunal stated that the issues for consideration in the landlord's termination application were not legally or factually complex. The Tribunal was satisfied that it was consistent with the just, quick and efficient resolution of the real issues in dispute under s 36 (1) of the NCAT Act that the evidence and submission of the parties be determined on the papers and without further oral hearing.
5. Noted that the tenant had sought to revisit the decisions of the President of the Tribunal to refuse an in-person hearing and stated that the Tribunal could not "revisit" those decisions.
6. Noted that the tenant had submitted that the Tribunal Member had pre-determined that the hearing be concluded on the papers and stated that no such predetermination had been made.
7. Identified that the only proceedings for determination was the landlord's application for termination under s 85 of the RT Act (subject to the issue of extension of time) and that the tenant could obtain advice from a Tenants Advice and Advocacy Service if she believed the landlord had engaged in breaches of the RT Act.
8. Noted that the tenant has not filed any Summons to give evidence on any witnesses proposed to be called if an oral hearing was conducted.
9. Referred to the submission of the tenant containing an allegation that documents filed by her had been tampered with; and stated that the Member would "determine the veracity of all the documents in accordance with the law."
On 22 March 2022 (without further oral hearing in accordance with the previous orders dispensing with an oral hearing) the Tribunal made orders that:
1. Confirmed an oral hearing had been dispensed with and the matter to be heard "on the papers" in accordance with s 50 of the NCAT Act.
2. Terminated the tenancy pursuant to s 85 of the RT Act.
3. Suspended the date of vacant possession until 8 April 2022.
4. Ordered the tenant pay an occupation fee at the rate of $57.14 per day from the date after the date of termination until the date vacant possession was given to the landlord.
5. Granted the landlord the opportunity to re-list the matter to determine the amount of the occupation fee, with such a re-list to occur within 60 days of the date of possession of the premises.
The Tribunal gave written reasons for its orders. However, on 1 April 2022 it issued amended reasons pursuant to s 63 of the NCAT Act. It is appropriate to refer to the written reasons of 1 April 2022 as providing the final reasons for the orders made on 22 March 2022.
[3]
Reasons of the Tribunal Dated 1 April 2022
The Tribunal found that there was a residential tenancy agreement between the parties.
The Tribunal noted that although the tenant's submissions had sought that the landlord's application be dismissed "for various reasons" the tenant's submission had not directly engaged the issues the Tribunal had identified in its directions of 9 February 2022.
At paragraphs [9]-[11] of the decision, the Tribunal stated that the landlord had filed "2 bundles of documents" and that although prior to the hearing on 9 February 2022 the tenant had disputed having been served with the second bundle of documents, emails from the tenant had referred to a second bundle of documents. The Tribunal was satisfied the landlord's documents had been served on the tenant. The Tribunal did not reject the documents on the basis that the first bundle of documents were not individually page numbered.
At paragraphs [12]-[15] the Tribunal referred to the documents and submissions provided by the tenant. The Tribunal stated that rather than the tenant engaging with the real issues in dispute, she had "sent many lengthy emails about the authority of the agent, the processes of the Registrar, problems she is having with various computers, and an injury she has suffered." The tenant had failed to provide documents and submissions which engaged with the issues set out in the Tribunal's directions of 9 February 2022 and 11 March 2022.
At paragraphs [18]-[21] the Tribunal found that Ms Dogan was the landlord of the residential premises the subject of the tenancy and Douglass Port Stephens Real Estate were her managing agent. In this regard, the Tribunal stated that Ms Dogan had given sworn evidence at the first hearing on 9 February 2022 on this issue. Further, there was a managing agency agreement between Ms Dogan and Douglass Port Stephens Real Estate in evidence.
At paragraphs [22]-[31] the Tribunal considered the issue of whether the landlord should be granted an extension of time to file proceedings in the Tribunal. The Tribunal referred to the principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. The Tribunal found that the delay was not lengthy (the landlord being 36 days out of time); and the reasons for the delay were adequate. The reasons for the delay involved COVID-19 pandemic restrictions and the landlord giving the tenant additional time to move out and find alternative accommodation. The Tribunal found the landlord had a strongly arguable case on the issue of termination under s 85 of the RT Act and there was no prejudice or unfairness to the tenant in granting the extension in circumstances where the product of the delay was that the tenant had additional time to find alternative accommodation.
[4]
Decision on 2 August 2022
The landlord filed an application in the Tribunal to re-list the proceedings for calculation of the occupation fee. On 2 August 2022, the Tribunal heard and determined that issue, awarding the landlord $2,228.46.
The Tribunal provided written reasons. The Tribunal set out that the tenant had made a further application for the Member to disqualify herself on grounds of actual or apprehended bias. The Tribunal set out in detail the allegations made by the tenant, including allegations that the Tribunal Member had given "advice" to the landlord; had privately spoken to the landlord's accountant; and had falsely told the tenant that the landlord would provide "correct rent receipts" to the tenant. The Tribunal gave a clear and cogent explanation as to why the tenant's allegations were unfounded.
The Tribunal also noted that the tenant had applied for an adjournment of the hearing. The Tribunal gave clear and cogent reasons why it was refusing the adjournment application.
The Tribunal noted that the tenant had not provided documentary evidence to dispute the occupation fee claimed by the landlord despite having had a reasonable opportunity to do so. The Tribunal referred to the evidence of the landlord regarding the date upon which the Sherriff executed the eviction warrant and the evidence of the landlord regarding the amount of rent paid (with rent paid until 28 March 2022). On the basis of that evidence, the Tribunal calculated the occupation fee owing, being for the period from 29 March 2022 to 5 May 2022 at $57.14 per day, and equating to a total amount of $2,228.46.
[5]
Notice of Appeal
The tenant filed the Notice of Appeal on 12 December 2022.
The Notice of Appeal was filed well beyond the time limit in r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) ('NCAT Rules'), which stipulates that an internal appeal to the Appeal Panel from a decision made in residential proceedings must be filed within 14 days from the date the appellant was notified of the decision or given reasons for the decision (whichever is the latter), unless leave to extend time is granted under s 41 of the NCAT Act.
The Notice to Appeal was filed with 2 folders of material by the tenant .
The first folder contained 174 pages of material, including the grounds of appeal; the decisions appealed against; submissions in support of the appeal; submissions as to why time should be extended to file the appeal; copies of some of the decisions appealed against (being copies of the orders and reasons dated 1 April 2022; 22 March 2022; 11 March 2022; 9 February 2022; 7 February 2022; 31 January 2022; and 2 August 2022); and an application for a stay of orders.
The second folder was an affidavit of the tenant dated 3 October 2022. That affidavit (including annexures) comprised 578 pages of material.
[6]
Stay Orders of the Tribunal
On 20 December 2022, the tenant filed an Application for Miscellaneous Matters seeking an adjournment of the Appeal Panel Call Over on 21 December 2022 and for all hearings to be held in person.
The tenant's application to adjourn the Call Over on 21 December 2021 was refused. At the Call Over, the appeal was set down for hearing with directions regarding the parties filling and serving their appeal submissions. The landlord was represented by her agent. The landlord was granted leave to appear at the appeal hearing by Audio-Visual Link because the agent was located a considerable distance from Sydney.
On 21 December 2022 and 25 January 2023 the Appeal Panel granted and continued (by consent) a stay on the payment of the occupation fee; but otherwise dismissed the tenant's stay applications.
On 25 January 2023, the tenant made an application for the presiding Appeal Panel Principal Member to disqualify himself and grant an adjournment. Both applications were refused, with oral reasons given.
[7]
Appeal Documents and Submissions of the Parties
Other than a further Application for Miscellaneous Matters which was filed by the tenant at the appeal hearing on 28 February 2023 (which will be discussed in due course) the tenant did not file and serve any further documents and submissions in support of the appeal other than the materials filed on 12 December 2022.
The landlord filed and served 2 folders of documents and submissions on 14 February 2023. The relevant documents were the documents the landlord had provided to the Tribunal below. There was also a brief written submission as to why the landlord opposed the appeal.
[8]
Conduct of the Appeal Hearing-The Tenant's Application for an Adjournment and Disqualification
At the appeal hearing on 28 February 2023, the appellant appeared in person and Ms K. Douglass, agent for the respondent, appeared by Audio-Visual Link.
As stated above, at the commencement of the appeal hearing, the tenant filed an "Application for Miscellaneous Matters." That document comprised 38 pages. The document set out that the tenant was seeking orders that relevantly included:
1. The appeal hearing of 28 February 2023 be adjourned.
2. The tenant be granted an extension of time to file and serve documents and submissions in the appeal.
3. The tenant be granted leave to issue the Summonses to produce documents on the landlord and the landlord's agent that were refused by the Tribunal on 31 January 2022; in circumstances where the tenant had made a further attempt in February 2023 to file the Summonses.
4. The Registry of the Appeal Panel be directed to cure alleged irregularities in respect of documents the tenant believed she had filed with the Appeal Panel that had been removed or tampered with.
The tenant's Application for Miscellaneous Matters contained extensive written submissions in support of the orders sought.
The tenant made oral submissions in support of the orders sought. The tenant focused upon the adjournment application and the extension of time sought to file and serve appeal submissions.
The tenant asserted that she was disadvantaged because she was now homeless in Sydney, having spent all of her resources on temporary accommodation. The tenant stated that she did not have access to a computer.
The tenant then made a series of complaints and assertions that involved her subjective belief that:
1. There was no evidence the landlord was a real person;
2. The tenancy was illegal because the residential premises were misdescribed on the lease;
3. The landlord had not provided rent receipts and had illegally been paid rent;
4. There was no evidence that Ms Douglass was the agent of the landlord and the tenant did not accept that she should be permitted to appear for the landlord in the proceedings;
5. There had been insufficient time allocated to the appeal hearing, with the tenant asserting it would take many hours for her to adequately make her submissions;
6. Various public officials, including Members of NCAT and Registry staff had engaged in illegal conduct by removing and altering documents that the appellant had filed.
[9]
Scope and Nature of Appeals
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.
Internal appeals involve consideration of whether there has been any error of law; or any error other than an error of law sufficient to grant leave to appeal under Cl. 12 of Sch. 4 of the NCAT Act.
An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') the Appeal Panel set out at [13] a non-exclusive list of questions of law:
1. Whether there has been a failure to provide proper reasons.
2. Whether the Tribunal identified the wrong issue or asked the wrong question.
3. Whether a wrong principle of law had been applied.
4. Whether there was a failure to afford procedural fairness.
5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations.
6. Whether the Tribunal took into account an irrelevant consideration.
7. Whether there was no evidence to support a finding of fact; and
8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
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 Sch. 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).
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 Sch. 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.
[10]
Grounds of Appeal
The Grounds of Appeal contained in the tenant's documents filed on 12 December 2022 comprise of 45 pages (186 paragraphs), plus an additional 41 pages (154 paragraphs) dealing with why the tenant seeks leave to appeal under Cl. 12 (1) of Sch. 4 of the NCAT Act; and a further 26 pages (89 paragraphs) dealing with the reasons for the extension of time to file the appeal.
Many of the purported issues raised by the tenant are without merit and contain no rational or tenable basis. It is unnecessary for the Appeal Panel to engage with every submission and make findings on every argument advanced in an appeal, particularly where the arguments advanced are voluminous and lack substance (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 433; Liang v University of Technology, Sydney [2018] NSWCATAP 285; Kora v Ian's Roofing Pty Ltd [2023] NSWCATAP 42 at [51]).
We do not propose to set out gratuitous allegations claiming illegal conduct by Members of the Tribunal; its staff; the landlord; and the agent of the landlord as to do so does not accord with our duty to focus on the just, quick and efficient resolution of the real issues in dispute under s 36 (1) of the NCAT Act.
The matters raised on appeal, in substance, are as follows:
1. The decision to terminate the tenancy was irregular because amended reasons were issued on 1 April 2022.
2. The originating process of the landlord was irregular because it was filed electronically.
3. The tenant was denied procedural fairness because she was not given adequate time to file and serve her submissions and documents.
4. The tenant was denied procedural fairness because the hearing substantially occurred on the papers.
5. The tenancy was "legally invalid" because the original written residential tenancy agreement identified the property as "16/34-36" of the relevant street and suburb rather than "16/36". The tenant had taken this matter up with the Local Council.
6. The Tribunal should not have found that the respondent to the appeal was the landlord, without evidence that she existed as a person; and should not have granted the respondent leave to be represented by the agent, as there was no satisfactory proof the agent was validly appointed.
7. None of the documents of the landlord or the notices of the Tribunal were validly served on the tenant.
8. The landlord had issued a "legally invalid" rental ledger and the tenant had not lawfully been issued rent receipts.
9. The tenant was denied procedural fairness by the interlocutory decisions that denied her a hearing in person.
10. The tenant was denied procedural fairness by the interlocutory decision to refuse the filing of Summonses to produce documents.
11. The tenant was not given an adequate opportunity to make submissions that the Tribunal Member recuse herself.
12. All of the decisions of the Tribunal were not fair and equitable.
13. All of the decisions of the Tribunal were against the weight of evidence.
14. The tenant has "substantial new evidence" that was not in her affidavit of 3 October 2022 and available at the date of the hearing; and there is other evidence that the tenant has not "recovered" because it has been "stolen".
[11]
Principles Applicable to Extension of Time
The well-established principles for an extension of time arise from the Appeal Panel decision in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] as follows:
The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];
(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a) The length of the delay;
(b) The reason for the delay;
(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d) The extent of any prejudice suffered by the respondent (to the appeal),
- Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and
(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
[12]
The Length of the Delay and Reasons for the Delay
As discussed previously, the delay in filing the appeal is significant, being approximately 8 months from the date of the (original) decision on 22 March 2022 (with amended reasons dated 1 April 2022); and more than 4 months from the decision of 2 August 2022. Other earlier decisions identified in the appeal are of even longer duration to the date that the appeal was filed.
The reasons for the significant delay are inadequate. The tenant was not evicted until 5 May 2022. While the tenant may have had peripatetic accommodation since 5 May 2022, that is insufficient to explain the significant delay in filing the appeal. The asserted computer difficulties are also insufficient to explain the delay. The tenant's other assertions of "criminal conduct" and that somehow her computer and documents have been sabotaged do not go beyond a subjective belief for which no objective or factual foundation has been established.
[13]
Prospects of Success and Merits of the Appeal
A number of the grounds of appeal relate to the issue of procedural fairness. Of those grounds, the matter that is most prominent is the decision of the Tribunal to conclude the hearing "on the papers" and without an oral hearing after the Audio-Visual hearing on 9 February 2022.
[14]
Continuation of the Hearing On the Papers-Denial of Procedural Fairness
Section 38 (5) of the NCAT Act states:
38 Procedure of Tribunal generally
(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.
…
(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(5) The Tribunal is to take such measures as are reasonably practicable -
(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and
(b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
…
Section 50 of the NCAT Act states:
50 When hearings are required
(1) A hearing is required for proceedings in the Tribunal except -
(a) in proceedings for the granting of leave for an external or internal appeal, or
(b) in connection with the use of any resolution processes in proceedings, or
(c) if the Tribunal makes an order under this section dispensing with a hearing, or
(d) in such other circumstances as may be prescribed by the procedural rules.
(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first -
(a) afforded the parties an opportunity to make submissions about the proposed order, and
(b) taken any such submissions into account.
(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
(5) This section does not prevent the Tribunal from holding a hearing even if it is not required.
There is no immutable statutory right under the NCAT Act that a final hearing must always be conducted with oral attendance of the parties; or in person attendance of the parties.
[15]
Refusal of the Tenant's Various Applications for an Adjournment; an Extension of Time to File and Serve Documents and Submissions; and Recusal of the Member
Previously in this decision we have set out the applicable legal principles. We are not satisfied the tenant has established any arguable error of law. We are not satisfied the tenant has established that the Tribunal applied incorrect legal principles; denied the tenant procedural fairness; or made any other error of law of a type identified in Prendergast.
[16]
The Decision to Extend Time for the Landlord to File Tribunal Proceedings Seeking Termination of the Tenancy
No arguable error is established on this issue. The Tribunal clearly identified the correct legal principles regarding an extension of time, and explained in its reasons why the extension was granted.
[17]
Alleged Irregularity in the Commencement of Proceedings
Pursuant to r 10 of the NCAT Rules proceedings in the Tribunal may be filed electronically. No error is established in respect of the Tribunal being satisfied that proceedings had been validly commenced.
[18]
Service of Documents on the Tenant by the Landlord and Notices of the Tribunal
The Tribunal was satisfied that the landlord's documents had been served in a manner sufficient for the tenant to have received them and that she had the opportunity to respond in her documentary evidence and submissions. No arguable error is established in respect of this issue.
[19]
"Illegality" of the Residential Tenancy Agreement and the Validity of the Rental Ledger
The tenant asserted in her submissions that the residential tenancy agreement was "illegal" because when the written residential tenancy agreement was entered into it misdescribed the address of the premises. The relevant misdescription is that the premises were identified as "16/34-36" rather than "16/36".
The submission of the tenant overlooks the fact that the tenant herself amended in writing the written residential tenancy agreement to read "16/36" after the tenant contacted the Local Council; and the landlord agreed to the amendment. It is clear that the premises were at all times the same premises that the tenant resided in. The Notice to Terminate was addressed to "16/36". The error to which the tenant refers is not an illegality that vitiates the residential tenancy agreement (Karl Suleman Enterprises Pty Limited (in liquidation) v Babanour [2004] NSWCA 214; (2004) 22 ACLC 931; 49 ACSR 612 at [41]-[47]).
The evidence before the Tribunal was sufficient to establish that:
1. There was a residential tenancy agreement between the parties;
2. A valid Notice to Terminate had been served on the tenant pursuant to s 85 of the RT Act;
3. The Notice was not retaliatory; and
4. The tenancy should be terminated.
The tenant's assertion that the landlord's "rent ledger" was "illegal" and the landlord had "illegally" retained rent that had been paid are not supported by the evidence. The Tribunal's findings regarding the existence of the tenancy; the validity of the Notice to Terminate; termination of the tenancy and the date of vacant possession were open to it on the evidence before the Tribunal. There is nothing illogical, unorthodox or plainly unreasonable about any of the Tribunal's findings.
The tenant's complaint that the landlord had not issued valid rent receipts under the RT Act does not affect the determination of the occupation fee, which relates exclusively to the period during which the tenant resided in the property after the date of termination and failed to make payment. No arguable error is established in respect of the Tribunal's decision to order payment of the occupation fee, or the manner in which it was determined. The Tribunal has the power to grant a re-list of proceedings to calculate any outstanding occupation fee pursuant to s 188 of the RT Act.
[20]
Amended Reasons and the Issue of the Notice to Terminate Being Retaliatory
Pursuant to s 63 of the NCAT Act, the Tribunal was entitled to issue amended reasons, and the tenant has not established any arguable error on that issue.
The Tribunal took into account the tenant's argument that the Notice to Terminate was a retaliatory notice under s 115 of the RT Act. Again, the Tribunal's reasons are clear, and there is nothing illogical, unorthodox or plainly unreasonable about the Tribunal's finding that the Notice to Terminate was not retaliatory.
[21]
The Correct Landlord and the Authority of the Agent to Appear in the Tribunal
The Tribunal had evidence to find that the residential tenancy agreement correctly identified the landlord, which is clearly referred to in the written reasons of the Tribunal.
The Tribunal also had sufficient evidence to find that the agent was the duly authorised representative of the landlord, including a copy of the managing agency agreement. It is entirely consistent with the practice and procedure of the Consumer and Commercial Division of the Tribunal to grant leave under s 45 of the NCAT Act for a managing agent to represent a landlord in residential tenancy proceedings (McKerlie v Leeser; Leeser v McKerlie [2022] NSWCATCD 6 at [29]-[31]).
No arguable error is established in respect of this issue.
[22]
Denial of Procedural Fairness By Failing to Order the Parties Appear at a Hearing In Person.
We have previously discussed the issue of the hearing being concluded "on the papers." The current issue relates to the decisions of the President of the Tribunal that the hearing on 9 February 2022 being conducted remotely. Those decisions are not only interlocutory decisions for which leave to appeal is necessary under s 80 (2) (a) of the NCAT Act, but they are of even greater vintage than the decisions from 9 February 2022 onwards.
The Tribunal had (and continues to have) the power to constitute hearings by telephone and Audio-Visual Link (The Owners-Strata Plan No 79633 v Graorovska [2022] NSWCATAP 152 at [115]-[116]). At the time the hearing of 9 February 2022 was conducted, it was the usual practice of the Consumer and Commercial Division due to the Covid-19 pandemic to conduct hearings where parties appeared remotely. No arguable error of law, let alone an error sufficient to grant leave to appeal, is established.
[23]
Refusal to Grant Leave to the Tenant to Issue Summonses to Produce Documents
The decision of the Registrar on 31 January 2022 not to grant leave to issue the Summonses to produce documents that the tenant sought is entirely consistent with principles applicable to the determination of whether a Summons had a legitimate forensic purpose (see the discussion of such principles in McKerlie v Leeser; Leeser v McKerlie [2023] NSWCATCD 6 at [37]-[43]) and no arguable error of law is established regarding the decision, or any subsequent decision not to revisit the issue. It is unnecessary to discuss whether that is a decision that requires leave to appeal, as no arguable error is established in any event.
As the Summonses sought to be filed lacked a legitimate forensic purpose, there was never any proper legal basis to allow them to be filed; and accordingly forms no basis for the adjournment of the proceedings.
[24]
Failure to Give an Adequate Opportunity to Make Submissions on Recusal
We are satisfied that the tenant was given a reasonable opportunity to make submissions to the Tribunal on this issue, and there was no denial of procedural fairness or other arguable error of law.
[25]
Leave to Appeal - Cl. 12 (1) of Sch. 4 of the NCAT Act
The submissions and documents of the tenant do not persuade us that there are any arguable grounds to grant leave to appeal pursuant to the principles enunciated in Collins v Urban.
[26]
Conclusion - Extension of Time
We are not satisfied that the tenant has provided a reasonable explanation for the delay in filing the appeal. The appeal grounds are unmeritorious. That is sufficient to refuse leave to extend time to file the appeal. Accordingly, leave to extend time to file the appeal is refused and the appeal is dismissed.
[27]
ORDERS
1. Leave to extend time to file the appeal is refused.
2. Appeal dismissed.
3. Previous stay orders of the Appeal Panel are lifted immediately.
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: 08 March 2023
Parties
Applicant/Plaintiff:
Simjanovska
Respondent/Defendant:
Dogan
Legislation Cited (10)
LEASES AND TENANCIES---Residential Tenancies Act 2010(NSW)
Victorian Civil and Administrative Tribunal Act 1988(Vic)
Consumer, Trader and Tenancy Tribunal Act 2001(NSW)
The Tribunal also extended time for the tenant to contend that the Notice to Terminate was retaliatory. Under r 39 (4) (a) of the RT Regulation the tenant had 30 days from the date after the termination application was given to take proceedings under s 115 (3) of the RT Act.
At paragraphs [32]-[33] the Tribunal found that the Notice of Termination was served by placing it in the letterbox of the tenant on 22 June 2021. The Tribunal also found that the Notice to Terminate was a valid Notice.
At paragraphs [34]-[38] the Tribunal found that the Notice to Terminate was not retaliatory under s 115 (2) of the RT Act because there was no evidence the tenant had made an application to the Tribunal to apply for an order prior to the issue of the Notice (s 115 (2) (a)); there was no evidence the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, the RT Act, or any other law (s 115 (2) (b)); and there was no order of the Tribunal in force in relation to the landlord and the tenant at the time the Notice was given (s 115 (2) (c)). Additionally, the Tribunal stated that even if there were any matters that fell within s 115 (2) of the RT Act the Tribunal would not exercise its discretion to set aside the Notice, for reasons that included the landlord having waited since 23 September 2021 to obtain possession of the premises.
At paragraphs [39]-[41] the Tribunal referred to "remaining considerations". The Tribunal set out the evidence of the landlord that the landlord needed to obtain possession to move back into the property herself, and her parents intended to move into the property as their rental property in Sydney was coming to the end of the tenancy. The landlord stated she was "suffering from financial and mental hardship." The landlord stated the tenant had made it difficult to obtain access to the property to perform repairs; and the landlord had received lengthy text messages from the tenant that she considered to be threatening. The landlord stated that she felt "intimidated" by the tenant's repeated assertions that the tenant would call the police and take Supreme Court action against the landlord. The Tribunal noted an email from the strata manager of the building dated 14 July 2021 referring to difficulties in obtaining access to perform a fire safety check in the unit of the tenant.
At paragraphs [42]-[46] the Tribunal noted that pursuant to s 85 of the RT Act it "must" terminate the tenancy if a valid Notice of Termination had been given. The Tribunal stated that the tenant had not provided any evidence to support her assertions that the Notice was invalid; not served; or unauthorised. The tenant had also not provided evidence of hardship should the tenancy be terminated. The Tribunal stated that in terminating the tenancy (and, by implication, determining the appropriate date of vacant possession) it was taking into account the evidence that had been provided by the parties on hardship.
The landlord opposed the adjournment application.
The Appeal Panel adjourned to consider the tenant's application for an adjournment.
When the Appeal Panel returned to the bench, we announced our decision that the adjournment application was refused. The reasons follow.
In Touma v Colantuono [2021] NSWCATAP 152, the Appeal Panel summarised the relevant principles pertaining to adjournment applications as follows at [56]-[58]:
56. When refusing the adjournment application, the Tribunal cited the Appeal Panel in Hanson v Metricon Homes Pty Ltd [2019] NSWCATAP 133 from [25] to [28] (Hanson). While the Supreme Court allowed an appeal from the Appeal Panel's decision in Hanson (see Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401), the Court's judgment turned on the facts of the particular case rather than on the legal principles articulated in the Appeal Panel's decision, which are uncontroversial.
57. The Appeal Panel in Hanson cited another Appeal Panel decision, Armee v Brealey [2017] NSWCATAP 141 (Armee), on the issue of the circumstances in which a refusal to grant an adjournment may give rise to a denial of procedural fairness. In that matter, the Appeal Panel stated at [121]
121 The Tribunal has the power to adjourn proceedings under s 51 of the Act. The power to adjourn is to be exercised according to the principles set out by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, French CJ, Kiefel, Bell, Gageler and Keane JJ at 321 [51] (see O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [21]). Procedural fairness may be denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequately presenting the person's case: see Grozdanov v N&T Buildings Pty Ltd [2015] NSWCATAP 107 at [51]; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [21]-[22].
…
58. The Appeal Panel in Armee cited another Appeal Panel decision which considered the issue of adjournment applications: O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77. In that matter, the Appeal Panel stated at [20] to [23]:
20. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, a unanimous High Court said:
"In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice."
21. That approach is applicable in this Tribunal. Section 36(1) of the Civil and Administrative Tribunal Act 2013 ('the Act') is in relevantly identical terms to s 56(1) of the Civil Procedure Act 2005, the provision considered in the Expense Reduction decision.
22. It follows that a number of principles apply to applications for an adjournment:
(1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above,
(2) an application for an adjournment should be seen as the exceptional rather than the ordinary course;
(3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment
23. Further, there is the effect on the opposing party to consider. In Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112, an Appeal panel of this Tribunal said at [17], in terms we would adopt:
"We are satisfied that the respondent would be prejudiced if an extension of time were granted. That prejudice may be addressed by an award of costs, although we note the remarks of the plurality in Aon Risk Services Aust Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [100] that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants; and their approval (also at [100]) of Bowen LJ's statement in Cropper v Smith [1884] 26 Ch D 700 that: Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary."
The tenant's assertion that she was homeless and without access to a computer was not reflective of the fact that she had previously filed extensive written materials with the Appeal Panel Registry. Irrespective of whether the tenant faced a difficult accommodation situation, she was clearly able to prepare and submit extensive written submissions in support of the appeal; and there was no evidence of any health issues impairing the tenant's ability to prepare for and present her case at the appeal hearing on 28 February 2023. The tenant had ample time to prepare her materials and file and serve them in accordance with previous Appeal Panel directions.
The other grounds for an adjournment were less persuasive than the assertion of homelessness and an inability to access a computer. There was no reasonable basis established to grant the tenant a further extension of time to file and serve submissions in the appeal or to pursue the other matters she had raised. Despite the subjective belief of the tenant, the real issues for consideration in the appeal were not legally or factually complex. Adjourning the hearing would cause more time, expense and delay in determining the proceedings. There was no denial of procedural fairness to the tenant in circumstances where we are satisfied that she had a reasonable opportunity to prepare her appeal and be in a position to proceed on 28 February 2023.
The time allocated at the hearing was also sufficient for the tenant to make oral submissions on her grounds of appeal, in the context of the principles set out in ss 36 (1), 36 (2), 38 (5) (c) and 38 (6) (c) of the NCAT Act.
When the tenant was informed the adjournment application was refused, she immediately made an application for the presiding Senior Member of the Appeal Panel to recuse himself from the hearing, on grounds of actual or apprehended bias. No such application was made against the other Senior Member who constituted the Appeal Panel.
The basis for this application was that:
1. The presiding Senior Member had prejudged the tenant's adjournment application and had not considered all of the written material in her Application for Miscellaneous Matters;
2. The Appeal Panel should be constituted by 3 Members rather than 2, and the tenant did not understand while only 2 Members were sitting;
3. The conduct of the presiding Senior Member was "illegal," "corrupt" and consistent with conduct of previous judicial officers and public officials who were biased against the tenant and corrupt. The tenant stated that consistent with action she had taken in the past she would complain to the United Nations; the NSW Premier; the NSW Attorney General, the NSW Police and other action would be taken including action in the International Court of Justice.
We adjourned to consider the tenant's recusal application. If the recusal application were granted, that would cause the adjournment of the appeal hearing, as the hearing could not proceed with only one Senior Member unless it was reconstituted by the President of the Tribunal.
When the hearing reconvened, we informed the parties that the recusal application was refused and that our reasons would be set out in the written decision of the Appeal Panel.
Applicable principles for disqualification for apprehended bias were summarised by Gleeson JA (with whom Hulme and Button JJ agreed) in Chamoun v District Court of NSW [2018] NSWCA 187 at [35]-[38] as follows:
[35] The test for determining whether a judge is disqualified by reason of the appearance of bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31].
[36] The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias: Johnson v Johnson at [12]; Michael Wilson & Partners v Nicholls at [33].
[37] The application of the apprehension of bias principle requires two steps. The first is the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. The second is that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8]; Michael Wilson & Partners v Nicholls at [63].
[38] Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue: Michael Wilson & Partners v Nicholls at [67].
Other than the unfounded and wholly subjective assertions that the presiding Senior Member was involved in (directly or indirectly) illegal and other improper conduct against the tenant, the only other grounds advanced for actual or apprehended bias was that the Appeal Panel had refused the tenant's adjournment application and request for further interlocutory orders. The mere fact that a procedural ruling has been made against a party does not establish actual or apprehended bias. In making that ruling, nothing was said that would cause a fair minded lay observer to apprehend that the presiding Senior Member might not bring an impartial and unprejudiced mind to the issues for determination in the appeal; nor did the tenant articulate any logical connection between what was said when considering and refusing the adjournment application, and the feared deviation from deciding the appeal on its merits.
The principles applicable to actual bias were articulated by Gleeson JA (Emmett JA and Tobias AJA agreeing) in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[73] as follows:
[68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.
[69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127].
[70] As Gleeson CJ and Gummow J observed in that case at [71]:
"The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion."
[71] In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.
[72] His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded.
[73] The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290:
"The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned."
No conduct was identified that satisfies the test of actual bias, being that the presiding Senior Member had formed a view about the adjournment application and merits of the tenant's appeal that was incapable of alteration, irrespective of whatever evidence and arguments were presented.
After refusing the adjournment application and the recusal application, the Appeal Panel informed the parties that the appeal hearing would proceed, and the parties were given a timeframe to make oral submissions. The Appeal Panel made clear that, irrespective of the oral submissions of the parties, the Appeal Panel would consider the written submissions and materials provided by each party.
The tenant complained that the period of time given to her to make oral submissions and submissions in reply was insufficient. However, we are satisfied that the time allowed was reasonable in all the circumstances for each party to present its case in the appeal, noting that under s 38 (6) (c) of the NCAT Act, the Appeal Panel may limit the time taken by the parties to present their case to what is reasonably necessary for the fair and adequate presentation of their case.
The tenant made extensive oral submissions in addition to the written submissions and evidence filed on 12 December 2022. The landlord made short oral submissions opposing the appeal. The tenant then made oral submissions in reply.
Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of Cl. 12 (1) of Sch. 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80 (2) (b) of the NCAT Act.
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;
(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 the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80 (2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (Pholi v Wearne [2014] NSWCATAP 78 at [32]).
In respect of a self-represented non legally trained appellant, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised (Prendergast at [12]).
In respect of the application to extend time, the reasons for the extension identified by the tenant relevantly are:
1. The Tribunal issuing an amended decision.
2. "Continuous criminal attacks on my computer and frequent unauthorised intrusions into my computer in order to prevent me from producing and filing my documents and the evidence in this proceeding on appeal."
3. The eviction of the tenant meaning that she had belongings in storage in Port Stephens and had resided in various temporary accommodation in Sydney.
Section 50 (2) of the NCAT makes clear that the Tribunal has a discretion to dispense with an oral hearing were parties and witnesses appear (either in person, by telephone, or by Audio-Visual Link) if it is "satisfied that the issues for determination can be adequately determined in the absence of the parties" by considering the documents and written submissions of the parties. Section 50 (3) states that such an order may not be made (provided that it is the type of matter requiring a "hearing" under s 50 (1) of the NCAT Act, which does not involve matters such as a set aside application under r 9 of the Civil and Administrative Tribunal Regulation 2022 (NSW)-see r 9 (8) of the Civil and Administrative Tribunal Regulation 2022 (NSW)) unless the parties have been given the opportunity to be heard on this issue and if they have made submissions, for those issues to be considered.
In exercising that discretion, the Tribunal must consider whether "the issues for determination can be adequately determined" solely on the basis of the documentary evidence and submissions. "The issues for determination" is to be read in the context of s 36 (1) of the NCAT Act as being the "real issues" for determination, which is assessed objectively and not on the basis of the subjective assertions of a party as to what it regards as the issues for determination. The Tribunal cannot be used as a vehicle for a party to insist that every issue or grievance it raises be heard and determined, no matter if it is manifestly groundless; irrelevant; peripheral to the real issues in dispute; or vexatious.
The Tribunal must also take into account its obligation under s 38 (5) (c) of the NCAT Act that parties are to be given a reasonable opportunity to be heard or otherwise have their submissions considered in proceedings; and its general duty whilst exercising judicial power to conduct proceedings in a procedurally fair way, which includes giving parties a reasonable opportunity to be heard (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40]; Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343).
Section 50 (2) of the NCAT Act uses the phrase "adequately determined". The Macquarie Dictionary defines "adequate" as follows:
adjective 1. (sometimes followed by to or for) equal to the requirement or occasion; fully sufficient, suitable, or fit.
2. Law reasonably sufficient for starting legal action: adequate grounds
By deciding that a hearing should be conducted without an oral hearing, a party is not able to question the other party's witnesses. However, the inability to do so does not, of itself, constitute a denial of procedural fairness.
The Appeal Panel stated in Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99 at [29]-[32]:
It is well-established that a failure by the Tribunal to allow a party an opportunity to cross-examine another party's witness may, in some situations, constitute a denial of procedural fairness: see e.g. Morgan v Shardlan Pty Ltd as Trustee for the Stumar Family Trust t/as Carpet One and Blinds Wagga Wagga [2018] NDSWCATAP 143 ("Shardlan") at [21]; Gallo v Duflou [2014] NSWCATAP 115 at [21] citing Wakim v Mathiew Pty Ltd [2002] NSWSC 405 at [30].
Further, where a party is unrepresented, a failure by the Tribunal to explain its procedures, if requested to do so, may also constitute a denial of procedural fairness, as well as a failure to comply with its obligations under s 38(5) of the NCAT Act: Shardlan at [21]; Lee v Cha [2008] NSWCA 13 at [48] (per Basten JA). This principle has, in some instances, led Appeal Panels in this Tribunal to decide that a failure to inform an unrepresented party that they had a right to cross-examine the other party's witnesses was an error of law (see, for example: Wilson v AR Browning Nominees Pty Ltd t/as Ad-Built; AR Browning Nominees Pty Ltd t/as Ad-Built v Wilson [2015] NSWCATAP 238 at [9], [44]; Renda v Wu [2016] NSWCATAP 238 at [2], [62]).
However, cross-examination is not an essential element of an oral hearing, nor is there a rigid rule that fairness always requires cross-examination to be permitted in administrative hearings: Aronson and Groves, Judicial Review of Administrative Action (6th ed 2017) at 612, citing O'Rourke v Miller (1985) 156 CLR 342 at 353 (per Gibbs CJ), Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at 595-596 (per Flick and Perry JJ) and other cases.
We referred earlier to s 46 of the NCAT Act which provides power for the Tribunal itself to call, examine and cross-examine witnesses. In comparison to legislation establishing other state civil and administrative tribunals, the NCAT Act does not expressly provide for a general right of the parties to cross-examine or examine witnesses (see e.g. s 102 of the Victorian Civil and Administrative Tribunal Act 1988 (Vic) and s 95 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)). Rather, what is provided for by s 38 of the NCAT Act is that the Tribunal may determine its own procedure in relation to any matter for which the NCAT Act or procedural rules do not provide, and may inquire into and inform itself on any matter in such manner as it sees fit, subject to the rules of natural justice. As Harrison J found in Cheung v Yang [2013] NSWSC 1694 at [60] (in relation to s 28 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), which was in much the same terms), it is wholly within the power of the Tribunal to dispense with cross-examination if it thinks fit, provided it conforms to the rules of procedural fairness.
Further, procedural fairness is not abstract. As Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 said at [37] in respect of procedural fairness:
...Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
Basten JA addressed the same issue in Italiano v Carbone & Ors [2005] NSWCA 177 at [88]:
An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]:
"A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37].
In this matter, no arguable error of law is established by the Tribunal determining that the hearing should proceed 'on the papers' and without an oral hearing. The tenant was accorded procedural fairness on this issue.
The Tribunal gave the tenant a reasonable opportunity to make submissions as to why the hearing should, or should not, proceed on the papers and took those submissions in to account. That accords with the obligation under s 50 (3) of the NCAT Act.
The Tribunal explained why it determined it was appropriate for the hearing to proceed without an oral hearing beyond the first hearing on 9 February 2022. The reasons given demonstrate the Tribunal considered the correct legal principles. Despite the submissions of the tenant to the contrary, the issues in dispute were not factually or legally complex in the particular circumstances of this dispute. The Tribunal clearly set out what the real issues in dispute were; and gave both parties a reasonably opportunity to adduce documentary evidence and make submissions on those issues.
There is nothing to indicate that the tenant, by not having the opportunity to cross examine witnesses, was denied procedural fairness in circumstances were the real issues in dispute were of narrow factual compass.
Further, the decision of the Tribunal to dispense with an oral hearing was a discretionary decision. As the High Court (per Dixon, Evatt and McTiernan JJ) stated in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505:
[i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed … It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance
We are not satisfied that it is arguable the Tribunal's exercise of its discretion to dispense with an oral hearing after 9 February 2022 and conclude the hearing on the papers is a breach of the principles established in House v The King.