Simpson v NSW Land and Housing Corporation

NCAT Appeal Panel|2015-12-23

Introduction

The appellant, Ms Amy Simpson, seeks leave to appeal a decision of the Consumer and Commercial Division made on 30 September 2015. The Tribunal terminated Ms Simpson's social housing tenancy and ordered that possession of premises, being a house in Ambarvale, be given to the respondent, NSW Land and Housing Corporation (NSW Housing) on 30 November 2015.
Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) provides that an internal appeal may be made against a decision of the Tribunal as of right on any question of law or with leave of the Appeal Panel on any other grounds. The Appeal Panel may grant leave to appeal under cl 12, Sch 4 of the CAT Act but only if it is satisfied there may have been a "substantial miscarriage of justice" because the decision was not fair and equitable or it was against the weight of evidence or evidence is now available that was not reasonably available at the hearing. Ms Simpson did not raise any question of law that could be discerned from her Notice of Appeal and therefore requires leave to appeal.
It was also apparent, as acknowledged in her Notice of Appeal, that Ms Simpson requires an extension of time to lodge her appeal. Rule 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) relevantly provides that, unless the Tribunal grants an extension under s 41 of the CAT Act, an internal appeal (other than an appeal against a decision made in residential proceedings) must be made within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later). In her Notice of Appeal, Ms Simpson states the reasons were received on 30 September 2015 but this is unlikely given that orders were issued on that day. Taking into account r 13(4) of the Rules, unless proven to the contrary, Ms Simpson is deemed to have been served with a copy of the decision at the end of the fourth working day on which the decision was posted. Any internal appeal by Ms Simpson should therefore have been lodged on or before 7 October 2015. Ms Simpson lodged her internal appeal on 20 November 2015, approximately six weeks outside the period specified by the rules for lodging an internal appeal.

Decision of the Tribunal at first instance and relevant legislative provisions

The originating application was lodged by NSW Housing under the Residential Tenancies Act 2010 (NSW) (the RTA). NSW Housing sought a termination order under s 91 of the RTA.
Section 91 provides, 91 Use of premises for illegal purposes (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted: (a) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 , or (b) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination. (2) In considering whether to make a termination order on the ground specified in subsection (1) (b), the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the unlawful use, (b) any previous unlawful uses, (c) the previous history of the tenancy. (3) The termination order may specify that the order for possession takes effect immediately. (4) A landlord may make an application under this section without giving the tenant a termination notice. (5) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.
Ms Simpson entered into a residential tenancy agreement in respect of the premises on 7 August 2009. At the time of the proceedings, she lived with her partner, Mr Jason Napper, and three year old twins.
On 7 November 2014, NSW Housing filed an application seeking an order for termination of the residential tenancy agreement. According to the reasons for decision, NSW Housing sought to rely on a NSW Police brief of evidence in criminal proceedings before the Local Court. Ms Simpson was charged with various offences on 19 November 2014 and on 1 June 2015 she was convicted of two offences of supplying a prohibited drug. She was also convicted of two offences of possession of a prohibited drug.
The Tribunal was satisfied on the evidence before it that Ms Simpson had used or caused or permitted the premises to be used for the purposes of the sale or supply the prohibited drug within the meaning of the drug misuse and trafficking act 1985. The Tribunal noted that Ms Simpson denied the breach, however, was satisfied of the following (at [10]) based on the evidence before it: 1. Ms Simpson had been convicted of two offences of supply prohibited drug in the Campbelltown Local Court; and 2. A drug analysis report was been provided to indicate the drugs found on the premises fall within the meaning of a "prohibited drug" is set out in the Drug Misuse and Trafficking Act 1985 and includes cannabis and methamphetamine.
Ms Simpson denied supplying drugs from the premises and stated that the cannabis found the premises was that the personal use of her partner. She denied all knowledge of the amphetamines found in the premises.
The Tribunal relied on a fact sheet in the NSW Police Brief which was provided to the Tribunal in respect of the two offences. The Tribunal recorded extracts from the fact sheet in the reasons for decision as follows: The accused has previously been convicted of drug possession 2013. She has shown no remorse for her actions and police believe that the accused will continue to supply prohibited dugs to the community if she is granted the liberty of bail… In July 2014 the police were conducting an investigation into a person known as 'KMO' and as a result of that investigation police were lawfully monitoring the mobile phone numbers belonging to KMO. During the period of the telephone intercept warrant, the accused Amy Simpson received and made numerous phone calls and text message utilising her mobile phone number xxxxxxxxx to the mobile phone number of KMO. Through the monitoring of these phone calls, it became apparent that the accused Amy Simpson was operating a business from her home address at XXXXX Ambervale whereby she would supply numerous persons with the prohibited drug Cannabis Leaf. During conversations between Amy Simpson and KMO, conversations would often take place discussing the specifics such as weight, price and availability. On most occasions KMO would come to the accused at her home whereby she would supply KMO with prohibited drugs. Offence 7: Supply Prohibited Drug at 9.18am on Friday 8 August 2014 a call was intercepted between the accused and KMO. During this call Simpson discusses supplying an unknown male named Brendan with a Q, a twenty and a tenna. Police believe this directly refers to the supply of 7 grams of Cannabis leaf, 1 gram of Cannabis Leaf and 0.5 grams of Cannabis Leaf. During the conversation, the accused states her price for a Q (Quarter of an ounce) is $90.00. These terms are commonly used for various amounts of cannabis supply which is consistent with the pricing… On Thursday 28 August 2014, Campbelltown detectives from the Drug Investigation Unit with the assistance of uniformed police from Bass Hill RES executed a search at that location…upon searching the kitchen ,police located a small resealable satchel bag placed on top of a set of scales…A further small resealable satchel bag was located underneath the kitchen bench top... Both of these satchel bags contained a thick yellow coloured past suspected of being Amphetamine. The two satchel bags containing the thick yellow past substance had a combined weight of 1.7 grams. The accused was questioned in relation to the suspected Amphetamine, scales and drug paraphernalia located in the kitchen however she declined to answer… Whilst completing the search in the kitchen, police located several items of drug paraphernalia including glass [pipes sued for smoking crystal methyl amphetamine, empty small plastic satchel bags of the same variety as other prohibited drugs had been located within… …"
NSW Housing also provided a statement of a client services officer which set out the neighbourhood profile of Ambarvale as well as other matters pertaining to Ms Simpson's ability to find alternate housing in the area.
In exercising its discretion under s 91(1) of the RTA, the Tribunal noted at [12] that, while not mandatory, it was relevant to consider the factors set out in both sections 87 and 152 of the RTA in relation to termination for breach of a residential tenancy agreement.
It is therefore convenient to set out those provisions which were addressed by the Tribunal at [14] to [20] of the reasons for decision.
Section 87 of the RTA provides: Breach of agreement (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach.
Section 152 provides: Termination by Tribunal of social housing tenancy agreements for breach (1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. (2) This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act.
In summary, the Tribunal found: 1. The two convictions for the supply of prohibited drugs is a serious matter. The surrounding neighbourhood has a mixture of private and public housing tenancy and ownership and a mixture of single people and families residing in the area. There was a child-care centre within 600 metres of the property. Using premises or allowing the premises to be used supply prohibited drugs would have serious adverse effects on neighbouring residents. While the Tribunal accepted Ms Simpson may have a good relationship with her neighbours this did not diminish the impact that supplying a prohibited drug may have on the neighbourhood (at [14] to [16]). 2. Using the premises for an illegal purpose was a serious breach of the residential tenancy agreement. The fact Ms Simpson denied the offence, despite her convictions, indicates that a failure to terminate the agreement would subject or continue to subject neighbouring residents to unreasonable risk (at [17]). 3. There was no evidence Ms Simpson had been in breach of an order of the Tribunal (at [18]). 4. This there was nothing adverse known to the Tribunal regarding Ms Simpson's prior history in this tenancy or any other social housing tenancy (at [20]). 5. The Tribunal considered the evidence provided Ms Simpson and accepted that she had resided in the premises since 2009, otherwise had a good record as a tenant and resided with her partner, who was legally blind, and twin children aged three. The Tribunal also accepted that Ms Simpson did volunteer work in the area and that the children were enrolled in the local child-care centre. The Tribunal noted that there was no evidence provided that a move from the premises would have an adverse medical effect on her partner. The Tribunal was also not satisfied that termination of the tenancy would cause Ms Simpson any serious adverse effect in continuing with her volunteer work or that she would be unable to find alternative private housing in the area. Ms Simpson had previously had 10 months to obtain any evidence of these matters and there had been numerous adjournments (at [22] and [23]).
Relevantly, the Tribunal concluded at [24]: In the Tribunal's view the seriousness of the breach outweighs the tenant's otherwise good record as a tenant and her personal circumstances, including her children's established relationships in the area, her own personal circumstances and her partner's medical condition.
The Tribunal further stated, at [27] and [28]: 27 The Tribunal is satisfied the breach may have serious adverse effects on neighbouring residents or other persons. The Tribunal is satisfied that the tenant has intentionally or recklessly caused or permitted the supply of two prohibited drugs on the premises. 28 The Tribunal finds on balance that the seriousness of the breach, the lack of a remorse shown by the tenant in continuing to deny the offence, even after having pleaded guilty to 2 offences, the effect the crimes may have on neighbouring tenants and other persons justify termination of the tenant tenancy.
Ms Simpson was given two months to vacate the premises and the order for possession was delayed until 30 November 2015.

Notice of Appeal and Reply to Appeal

Ms Simpson's grounds of appeal as set out in her Notice of Appeal can be summarised as follows: 1. Despite the fact that Ms Simpson had been found in breach of the tenancy agreement, her partner, who has been an approved tenant since the commencement of the lease, has not been found guilty of such a breach. 2. Ms Simpson strongly denies supplying prohibited drugs from the premises having regard to the fact that she was charged for "what took place in designated meeting spots, mainly in the local shopping centre". 3. Her partner was being adversely affected because he required close proximity to a child-care centre and other support services in the area. 4. The decision was not fair or equitable because terminating the tenancy without providing emergency accommodation to her partner and the children would have serious medical effects on her partner's worsening mental health state. 5. The Tribunal should have given more weight to her partner's medical conditions and the need for housing in close proximity to the hospital, child care and medical specialists. The Tribunal should have also given more weight to the fact that the children were well established in the local preschool and that the applicant was involved in a local volunteer program. 6. There was significant new evidence available that Ms Simpson wished to rely on, being a medical assessment for her partner. The medical assessment was dated 9 November 2015 and noted that Ms Simpson's partner, Mr Jason Napper, was blind, had difficulty getting on public transport and had particular needs in terms of accommodation. It was also noted that Mr Napper was not able to live independently without the support of his carer. 7. Ms Simpson sought either reinstatement of the residential tenancy agreement for Mr Napper, the children and for her or alternative priority housing for Mr Napper.
Ms Simpson requested an extension of time to lodge the appeal on the following basis: Applicant found herself in state of shock initially then proceeded to search available accommodation in the local surrounding area which would [be] suitable for herself, her partner Jason Napper whom she cares for full time due to his limited mobility due to blindness. Also carer of twin four-year-old children whom are enrolled in local preschool number of days per week. Extra time would reduce stress currently suffering in unsuccessful attempts to secure alternate accommodation.
In her oral submissions Ms Simpson said she had further evidence that she was to wish to provide in relation to her volunteer work and the fact that she had attempted to provide alternative accommodation. She had provided further medical evidence about her partner's medical condition and this should be taken into account by the Appeal Panel in considering her appeal. Ms Simpson maintained her denial that she had used the premises for the supply of prohibited drugs. While she did not deny the conviction Ms Simpson said she had pleaded guilty because it was easier. Ms Simpson said that she would never jeopardise her relationship with the community by supplying drugs from the premises and she was convicted of an offence relating to her activities at the local shopping centre.
A Reply to Appeal was filed on 7 December 2015. NSW Housing opposed Ms Simpson being granted an extension of time on the basis that: 1. The appeal was vexatious and was being sought for the collateral purpose of delaying the execution of the Tribunal's orders. 2. The appeal was lodged at least six weeks out of time and while the matters set out in the notice of appeal might explain a short delay, such a significant delay was unexplained. Ms Simpson should not be entitled to rely on the steps taken by her to comply with the Tribunal's decision as an explanation for the delay. 3. If Ms Simpson's appeal had been lodged within time, the appeal may have been able to be finalised before Christmas. The delay was prejudicial because there were other applicants in need of three-bedroom housing accommodation in the Campbelltown area. If Ms Simpson's appeal was dismissed, the delay will have prejudiced the ability of NSW Housing to settle a new family in the premises in time for the start of the school year.
It was also submitted that the grounds of appeal were without merit because: 1. The Tribunal did not have the jurisdiction to make the orders sought by Ms Simpson in relation to Mr Napper (refer [22(7)]); 2. Ms Simpson's denial that she was not supplying prohibited drugs from the premises was against the weight of evidence, which included Ms Simpson's conviction based on the matters set out in the NSW Police fact sheet; and 3. Ms Simpson's claim that the Tribunal was required to consider the interests of an occupant of the premises, Mr Napper, should be rejected. First, because the Tribunal was not required to consider their interests in the exercise of its jurisdiction under s 91 of the RTA and secondly, because the Tribunal did consider those interests but found that the seriousness of the conviction outweighed those interests.

Procedural history and conduct of the hearing

Ms Simpson applied for a stay of the termination order at the time she lodged her appeal. The stay application was listed for hearing on 10 December 2015. NSW Housing opposed the stay and filed submissions seeking summary dismissal of the proceedings on the basis that the appeal was filed out of time and was vexatious and had no hope of success but was filed to give respite against immediate execution of the orders. NSW Housing further submitted it has been prejudiced by the delay.
The Appeal Panel heard the application and determined to grant a stay but made directions for an urgent hearing in order to mitigate any injustice to NSW Housing. The Appeal Panel did not grant an extension of time to lodge the appeal and directed that this issue be listed for hearing at the same time as the substantive appeal. The Appeal Panel directed NSW Housing to file and serve a copy of the documents that were before the Tribunal at first instance by 15 December 2015 and directed Ms Simpson to file and serve any written submissions in support of her appeal by the same date. NSW Housing was directed to file and serve any written submissions in opposition to the appeal by 21 December 2015. NSW Housing complied with the directions. Ms Simpson did not for the reasons later explained.
The proceedings were listed for hearing on 23 December 2015 at 10:15 am. The question of whether Ms Simpson should be granted an extension of time to file her appeal or whether she should be given leave to appeal was listed for the hearing at this time.
Ms Simpson was present at the hearing of the stay. She was advised of the directions and advised the stay was being given on the basis that the proceedings should be listed at the earliest opportunity. Written directions were sent to the parties on 16 December 2015.
On 23 December 2015 at approximately 9:18 am the Tribunal registry received an email from Ms Simpson to the following effect: I am writing to inform the Tribunal that on the 10th Dec the appeal panel made a number of directions to me that I was to receive in the mail. I received a letter was that was written by principal member 11/12/15 on Monday 21st December. I contacted NCAT immediately to inform the office that I was only on receipt of the directions I was to follow on the same day the 21st Dec. I expressed my extreme concerns that following reading the letter it was apparent I had missed the date my submissions were to be forwarded to both the Tribunal and the respondent. I spoke with a lady whose name was Natalie and she advised me to forward email explaining my concerns and that my letter was not received in adequate time to allow me to forward in my submissions. I apologise that there has been a further delay in sending this email. Unfortunately I am not in a position to access instant use of computer or email account, both of which I require assistance to use properly. As a result of becoming overwhelmed due to missing submission dates, support services have being unavailable this week due to Christmas along with my other daily responsibilities as both carer to my partner and small twins I have suffered from a number of anxiety attacks which I have sought GP assistance. I have hearing set for today that I am requesting an urgent adjournment for based on my above reasons. Please inform me of the outcome of this email.
Ms Simpson was advised by email sent at approximately 9.30 am on 23 December 2015 that her request was denied and she should attend the hearing.
The Appeal Panel was subsequently advised that Ms Simpson telephoned the Registry at 9:39 am and advised she would be running late but her expected arrival time would be 11:30 am. She requested an adjournment until this time.
The Appeal Panel commenced the hearing at 10:30 am, notified the representatives for NSW Housing of these developments and adjourned the hearing until 11:30 am. When the hearing resumed, the Appeal Panel was advised by a Tribunal officer that Ms Simpson was further delayed and would not be at the hearing until 11.45 am. The Appeal Panel again adjourned the appeal and resumed the hearing at 11:45 am. The matter was called outside the Tribunal hearing room and when Ms Simpson did not appear, the Appeal Panel commenced the hearing in Ms Simpson's absence.
Ms Simpson arrived at the hearing at approximately 11:50 am and after a short adjournment, the Appeal Panel resumed the hearing. Ms Simpson raised the following issues: 1. She had not received the directions until 21 December 2015 and felt anxious that she had not complied with the directions. She felt sick and anxious about the hearing and was physically sick before coming to the hearing. She had attempted to obtain representation, including assistance from an advocacy service, but had been unable to do so in the time available. 2. She wanted to present new evidence about her volunteer work, her attempts to find alternative accommodation and personal referees to support her case. 3. She maintained her denial that she had not breached s 91 because she had not supplied prohibited drugs from the premises.
The Appeal Panel continued with the hearing of the appeal and did not offer Ms Simpson a further opportunity for an adjournment.
As noted by Beazley JA (as she then was) in Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [131] an application for an adjournment was a discretionary matter relating to practice and procedure. Such an application is to be resolved according to the overall requirements of justice in the particular circumstances. Her Honour also observed at [141]: A just resolution of proceedings remains the paramount purpose of the case management objectives articulated in the relevant procedural provisions of the civil procedure legislation: in particular see the Civil Procedure Act , s 56. What constitutes a " just resolution " is to be understood in light of the purposes and objectives stated in the statutory provisions. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. However, these terms are relative and parties should be given an appropriate opportunity to plead and argue their case. Nonetheless, there are limits to the extent that a party will be accommodated in the conduct of the litigation.
In deciding to proceed, the Appeal Panel considered the following: 1. Ms Simpson attended the directions hearing and the hearing of her stay application on 10 December 2015 in person and was advised of the directions and the hearing date by the presiding Member. At this hearing, NSW Housing opposed the stay and the extension of time. Ms Simpson was also advised that the stay was being granted on the basis that her application for an extension of time and for the hearing of her appeal would be listed for urgent hearing. 2. The only directions made that affected Ms Simpson were directions that she file any written submissions by 15 December 2015. The Appeal Panel advised Ms Simpson that it did not matter she had not filed written submissions as she could provide oral submissions at the hearing, which she did. 3. Ms Simpson did not provide any medical certificate to support an adjournment. While it was apparent that Ms Simpson was agitated and anxious, she was able to make oral submissions. 4. The issues raised by Ms Simpson in her oral submissions were in similar terms to the written grounds of appeal provided by her. 5. Ms Simpson did not request the adjournment until the morning of the hearing and was immediately advised her request was denied. Ms Simpson attended the hearing and the Appeal Panel granted two adjournments, one until 11:30 am and the other until 11:45 am, at her request. 6. When Ms Simpson attended the hearing, it was apparent that she had not read the written submissions filed by NSW Housing on 21 December 2015. Accordingly, the Tribunal determined that it would not read those submissions and requested that NSW Housing make oral submissions about these matters. Those submissions were in similar terms to the submissions in the Reply to Appeal and the submissions filed in opposition to the extension of time and stay, which had been filed and served on 7 December 2015. 7. To further adjourned the matter would be unduly prejudicial to NSW Housing and was not warranted in the circumstances. Relevantly: 1. NSW Housing had lodged the original application in November 2014 and after delays and adjournments, the matter was finally determined on 30 September 2015. The order for possession was delayed for two months to give Ms Simpson the opportunity to find alternative accommodation. 2. Ms Simpson's appeal had been lodged out of time, she had been given a stay pending determination of the appeal and her grounds of appeal did not raise an error of law or any significant issues that had not already been raised in the proceedings at first instance. 3. It was unlikely that an adjournment would produce any new material that would result in a different outcome. There was no material provided by Ms Simpson in her grounds of appeal to support the contention that she may have suffered a substantial miscarriage of justice.

Relevant legal principles in determining the appeal

The relevant principles in considering whether or not to extend time were stated by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 as follows: 1. Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the CAT Act that the guiding principle for the CAT Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings": see [18]. 2. 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: see [22(1)]. 3. 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, 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: see [22(2)]. 4. Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider (at [22(3)]): 1. the length of the delay; 2. the reason for the delay; 3. the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and 4. the extent of any prejudice suffered by the respondent (to the appeal). 1. It may be necessary 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, namely, it may be relevant whether the appellant has a case that has more substantial merit than being fairly arguable: see [22(4)].

Consideration

The Appeal Panel makes the following relevant findings on the evidence before it: 1. The proceedings were listed for hearing on 7 September 2015 following a number of adjournments and directions made by the Tribunal about the filing of evidence. 2. The decision of the Tribunal was reserved and published on 30 September 2015. 3. The Notice of Appeal was filed on 20 November 2015.
In light of those findings, the Appeal Panel will now consider the relevant principles on whether Ms Simpson should be given an extension of time to lodge her appeal.

Length of delay

In Jackson the delay was some 19 days and the Appeal Panel declined to extend time to file the appeal. This appeal was filed approximately six weeks after the time on which the appeal should have been filed. This is a significant delay which militates against the grant of an extension of time.

The reasons for delay

Ms Simpson stated that she was initially in shock. NSW Housing submitted that this may explain a short delay but not a delay of six weeks. It is further submitted that Ms Simpson should not be entitled to rely on the steps necessarily taken by her to comply with the Tribunal orders as a reason for delay. In our view, these submissions are persuasive. Ms Simpson has not provided a satisfactory or adequate explanation for the delay and it is relevant that the notice of appeal and application for stay were filed just 10 days before Ms Simpson was due to vacate the premises. This factor militates strongly against the grant of an extension of time.

Prospects of success

Given Ms Simpson seeks leave to appeal, the principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are relevant to the consideration of Ms Simpson's prospects of success.
The principles are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel of the Tribunal conducted a review of the relevant cases and set out the principles at [84].
In summary, for leave to appeal to be granted, an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application, an injustice which is reasonably clear, a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal went about its fact finding process in such an unorthodox manner that it produced an unfair result.
The Appeal Panel is not persuaded, on the materials before it and having examined the reasons for decision, the Notice of Appeal and the Reply to Appeal, that Ms Simpson has sufficient grounds to establish any of these matters. Her appeal is without merit.
The Tribunal at first instance was satisfied Ms Simpson had breached s 91(1) of the RTA. Ms Simpson denied the breach on the basis that she was not supplying and denied the presence of methamphetamine in her house. She later asserted that any supply was not in the premises but at a local shopping centre.
The finding of the Tribunal was open on the evidence and, in particular, the Police fact sheet on which the convictions were based. It does not matter whether Ms Simpson was selling prohibited drugs at a shopping centre. If she was storing them in the premises and taking or making telephone calls from her premises, this would be sufficient to establish "use" of the premises for the purposes of supply (for instance, see McGuiness v NSW Land and Housing [2014] NSWCATAP 98 and Davis v NSW Land and Housing Corporation [2015] NSWCATAP 271 about the scope of the provision). In any event, there was evidence in the NSW Police fact sheet that the Police formed a view that Ms Simpson was "operating a business from her home address". The evidence was said to be based on information obtained through telephone intercepts monitoring the calls of a third party to Ms Simpson. It was also noted that the third party would visit Ms Simpson's house where she was supplied with prohibited drugs.
While Ms Simpson denied this at the hearing and continued to deny this at the appeal hearing, the weight of the evidence strongly supports the findings of the Tribunal at first instance finding that Ms Simpson used the premises for the supply of prohibited drugs.
As noted by the Tribunal, this was a serious breach which may have serious adverse effects on neighbours. Relevantly, there were families and a preschool nearby. This finding was also open to the Tribunal. This was not contested.
The Tribunal properly found it had a discretion to terminate Ms Simpson's tenancy and carefully considered a number of factors, including Ms Simpson's personal circumstances and those of Mr Napper and the children, in the exercise of the discretion. There was no miscarriage of the exercise of the discretion. Ms Simpson had many months to provide any evidence on which she wished to rely. The new evidence provided about Mr Napper's condition and the new evidence foreshadowed, about her volunteering and the difficulties she was having in finding suitable alternative accommodation, were matters raised at the hearing.
There is no evidence that the Tribunal went about the fact finding process in an unorthodox manner that produced an unfair result. This is a case where the Tribunal at first instance made a number of findings that were reasonably open based on the evidence and after a contested hearing.
This factor strongly militates against the grant of an extension of time. This is particularly so given the length of the delay and the failure of Ms Simpson to provide an adequate explanation for this delay.

Extent of prejudice

NSW Housing submits it was prejudiced by the delay. We accept this submission, although note that by listing the matter for urgent hearing, the Appeal Panel has ameliorated the effect of the delay. This factor is therefore neutral.

Conclusion

As the Appeal Panel stated in Jackson at [21]: Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced.
The Appeal Panel notes that the guiding principle for the CAT Act is to facilitate the just, quick and cheap resolution of the real issue in the proceedings: see s 36(1) of the Act.
The Appeal Panel considers that the factors considered above at [40] to [53] support NSW Housing's submission that the time for filing Ms Simpson's appeal should not be extended. Accordingly, the Appeal Panel is not prepared to extend time and the application for leave to appeal out of time is refused. The appeal is therefore dismissed, subject to the following order about the stay.
The Appeal Panel granted a stay of the order for possession pending further order of the Tribunal. The Tribunal accepts that Ms Simpson, while on notice she may need to vacate immediately, is likely to need further time to vacate. Against this, NSW Housing wants the premises to be vacated as quickly as possible so a family can be settled into the premises before the school term. In balancing these two competing interests, the Tribunal has determined to continue the stay in respect of order 2 of the decision made on 30 September 2015 in SH 14/54095 until 29 January 2016.

Orders

The Appeal Panel makes the following orders: 1. The application for an extension of time in which to appeal is dismissed. 2. The appeal is dismissed. 3. The operation of order 2 of the decision made on 30 September 2015 in SH 14/54095 is stayed until 29 January 2016. 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: 07 January 2016

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