Steinbeck, Sonia and Steinbeck, Graeme v McDonald

Should the time to lodge the Notice of Appeal be extended?

1. The Steinbecks were required to lodge their Notice of Appeal within 14 days from the day on which they were given reasons for the decision (Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW). Lodged on 9 January 2015, their Notice of Appeal was out of time by two days.
2. Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) confers on the Appeal Panel a discretionary power to extend the time for lodging the Notice of Appeal. While unfettered, that power must be exercised judicially and having regard to s 36 of the Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings": Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18].
3. In Jackson the Appeal Panel at [22] identified a number of considerations generally relevant to the consideration of whether to extend time to lodge a Notice of Appeal: (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]; (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 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; (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), (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 (citations omitted) ].
4. The appeal period straddled the Christmas and New Year period and included two public holidays. The explanation offered by the Steinbecks for lodging their Appeal out of time - family commitments together with difficulties in obtaining advice about the appeal over the Christmas and New Year period - in our opinion is satisfactory. The respondent, Mr McDonald, does not oppose the application for an extension of time and concedes he would not be prejudiced if it were to be granted.
5. Time limits are imposed to bring finality to the decision-making process. They are an important but not an absolute value. Once the threshold questions of whether an acceptable explanation for making a late application and whether the respondent will suffer substantial prejudice are resolved, the question must be whether or not justice can be done to both parties if the matter proceeds to an appeal having regard to the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings". It is to that question that the considerations outlined in Jackson are ultimately directed.
6. The delay in lodging the Notice of Appeal was relatively short, a satisfactory explanation has been given for the delay and Mr McDonald consents to the application for an extension of time and is unlikely to suffer any prejudice if it is granted. While for the reasons that follow we have ultimately decided to dismiss the Appeal, the Steinbeck's case in our opinion could not be described as hopeless. In our opinion the balance of considerations favour the granting of an extension of time for the lodging of the Notice of Appeal.

The decision under appeal

1. In August 2011, the Steinbecks and Mr McDonald entered into a written 12 month residential tenancy agreement. At the end of its term, the tenancy continued under a "periodic agreement" (s 18 of the Residential Tenancies Act 2010 (NSW) (the Act)).
2. In April 2014, Mr McDonald served the Steinbecks with a "termination notice" (s 80 of the Act). On their application, the Tribunal (constituted by Member K Ross) made an order under s 115 of the Act declaring that the notice had "no effect".
3. Two weeks after the Tribunal handed down its decision, the Steinbecks were served with a second termination notice giving a "termination date" of 4 November 2014.
4. On 28 August 2014 the Steinbecks applied to NCAT for orders: • declaring the termination notice to have "no effect" on the ground that it constituted a "retaliatory notice" • requiring Mr McDonald to carry out repairs to the property.
5. With the leave of the Tribunal, the Steinbecks later amended their application to include a claim for compensation under s 187(2) of the Act.
6. Subsequently Mr McDonald applied to NCAT for a termination order under s 85 of the Act.
7. The two applications were heard together on 19 December 2014. The Tribunal (constituted by Member P Hunter) decided to: • decline to make an order under s 115 of the Act • make a termination order under s 85 of the Act • give immediate possession of the property to Mr McDonald and to suspend that order until 1 March 2015 • dismiss the claim made under s 65 of the Act to require Mr McDonald to carry out repairs to the property • dismiss the claim for compensation made under s 187(2)(b) of the Act
8. The above decision is the decision under appeal. Unless otherwise stated, in these reasons all references to "the Tribunal" are references to the Tribunal as constituted by Member Hunter.

Scope and nature of the appeal

1. Part 6, Division 2 of the Civil and Administrative Tribunal Act deals with appeals against an "internally reviewable decision", as defined by s 32(4) of that Act. A party may appeal an internally reviewable decision as of right on any question of law or with the leave of the Appeal Panel on any other grounds (s 80(2)(b) of the Civil and Administrative Tribunal Act).
2. Where, as in this case, the internally reviewable decision is a decision of the Consumer and Commercial Division, Clause 12 to Schedule 4 of the Civil and Administrative Tribunal Act limits the circumstances in which an Appeal Panel may grant leave under s 80(2)(b) of the Act: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note: Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right.
3. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel considered the scope of cll 12(1)(a) and (b) of Schedule 4 to the Act, and stated at [77], that the authorities establish: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable"]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach (citations omitted).

Grounds of appeal

1. Attached to the Steinbeck's Notice of Appeal was a lengthy submission setting out the grounds of the Appeal. The submission traversed a large number of issues relating to aspects of the tenancy, many having no apparent relevance to the Appeal.
2. The submissions characterised the grounds of Appeal as falling exclusively within cl 12(1) of Schedule 4 of the Civil and Administrative Tribunal Act, that is, grounds requiring leave of the Appeal Panel for the Appeal to be made. An examination of those submissions together with the oral submissions made by Mrs Steinbeck, indicates that had the Steinbecks' grounds of appeal been properly formulated, some could be said to constitute "questions of law" for the purposes of s 80(2)(b) of the Civil and Administrative Tribunal Act. Given that the Steinbecks were not legally represented we took the approach of framing questions of law that in our opinion fairly arise from their submissions. In taking that approach, we considered whether Mr McDonald, who like the Steinbecks, was self-represented, would be prejudiced. We concluded that he would not be prejudiced.
3. The grounds of appeal can be summarised as follows: Grounds raising questions of law • Did the Tribunal misapply ss 85 and 115 of the Act? • Did the Tribunal misconstrue s 85 of the Act? • Did the Tribunal deny the Steinbecks procedural fairness, by (i) being biased against them; (ii) failing to have regard to "any evidence" when exercising the power conferred by s 115? Grounds requiring leave • Was the decision not to exercise the discretionary power conferred by s 115 against the weight of evidence/not fair and reasonable? • Was the decision to decline to order compensation against the weight of evidence/not fair and reasonable?

Did the Tribunal misapply ss 85 and 115 of the Act?

1. The Steinbecks contend that the Tribunal erred by holding that "section 85 overrules section 115".
2. Section 85 relevantly states: 85 Termination of periodic agreement … (3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. …
3. Section 115 of the Act states: 115 Retaliatory evictions (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice: (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons: (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant. …
4. Having found that the termination notice issued on 1 August 2014 (the impugned notice) complied with the requirements of s 85 of the Act, the Member proceeded in her Reasons for decision (at p 2) to consider the relationship between ss 85 and 115: On the face of it there would appear be an inconsistency between the provisions of section 85 of the Act and section 15. The terms of section 85 would appear to be mandatory. Once a notice complies with the section the Tribunal is directed that it must make an order for termination. There is no reference in that section to it being subject to section 115. Section 115 is expressed in permissive and discretionary terms, the Tribunal "may" exercise the power within. The Tribunal does not accept that section 115 is an overriding provision and that the Tribunal is bound to grant relief in accordance with the section if the relevant jurisdictional facts are established.
5. While the Member did not go on to resolve this apparent "inconsistency", she nonetheless proceeded to consider whether the discretion conferred by s 115, can and should be exercised. This implies that she did not, as the Steinbecks assert, take the view that s 85 trumps s 115. The Member, correctly in our opinion, adopted the approach that where an application for an order under s 115 has been made and the pre-condition to the exercise of the power conferred by that provision is satisfied, that power may be exercised, notwithstanding that the Tribunal would otherwise be obliged to make a termination order under s 85 of the Act.
6. The approach taken by the Tribunal to the interrelationship between ss 85 and 115 does not disclose an error of law.

Did the Tribunal misconstrue s 115 of the Act?

1. The Steinbecks contend that the Tribunal erred by declining to declare that the impugned notice had no effect. They submit that having found that notice to be a "retaliatory notice", the Tribunal was obliged to make the order they sought, that is, that the notice had no effect.
2. Section 115(2) of the Act requires the tribunal to undertake a two-step process. First, the tribunal must ask - "Is the subject notice a retaliatory notice?". That is, was the landlord wholly or partly motivated to give the notice for one or more of the reasons listed in paras (a) to (c) of s 115(2). Second, if the answer to that question is yes, the tribunal "may" declare that the termination notice has no effect (s 115(1)(a)). The submission made by the Steinbecks relates to the second of these steps.
3. Whether, as the Steinbecks contend, the Tribunal was obliged to declare that the impugned notice had no effect turns on the proper meaning of the word "may" in s 115(1) of the Act. Section 9(1) of the Interpretation Act 1987 (NSW) provides that "[i]n any Act … the word 'may', if used to confer a power, indicates that the power may be exercised or not, at discretion". Like other provisions of the Interpretation Act, s 9(1) operates subject to any contrary intention (s 5(2) of the Interpretation Act).
4. Determining whether a contrary intention is apparent so as to displace the definition given by the Interpretation Act, requires consideration to be given to the text, context and purpose of s 115. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Hayne, Heydon, Crennan and Kiefel JJ said at [47]: [T]he task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (Footnotes and citations omitted)
5. Mahoney JA observed in Deputy Commissioner of Taxation (NSW) v Mutton (1987) 79 ALR 509 (at p 512), "[t]here is, of course, no simple formula for determining what is a 'contrary intention'": In the end, what the court does when it decides whether there is a "contrary intention" is to decide whether it was the intention of the legislature that the statutory provision as to interpretation or definition should apply to the particular section (citations omitted).
6. The mischief s 115 seeks to remedy is the termination of a tenancy in circumstances where the landlord is motivated to do so, wholly or partly, because the tenant has, or proposes to, exercise their rights under a tenancy agreement and/or the Act. In short, its purpose is to protect tenants against "retaliatory evictions". While unarguable that if, as the Steinbecks contend, the power conferred by s 115 is obligatory not discretionary, tenants would be afforded a greater degree of protection, it does not follow that this was what Parliament intended.
7. A contrary intention in legislation is not something readily to be inferred (Comcare v Heffernan [2011] FCAFC 131 at [52]). Having regard to its ordinary meaning and its statutory context, we are not persuaded that the word "may" in s 115(1), should be given a different meaning to that given by the Interpretation Act.
8. The Tribunal did not err in concluding that the power conferred by s 115(1) to declare a termination notice to have no effect, was discretionary in nature.

Were the Steinbecks denied procedural fairness because the Member was biased?

1. The Steinbecks contend that the Member decided to terminate the tenancy and refused to make the orders they sought, in part because she was biased against them.
2. The Tribunal was obliged to accord all parties procedural fairness. This obligation includes, that the Tribunal be, and be seen to be, impartial or unbiased (the bias rule). Bias may be actual or apprehended. The Steinbecks allege actual bias.
3. The principles relating to actual bias were summarised by Drummond J in Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 (at [42]): (a) Actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant. (b) The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation. (c) Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias. Such bias may be subconscious, provided it is real. (d) It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party's position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings. Though relevant to proof of actual bias, displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish such bias, proof of which requires a finding on a question of fact, having regard to all the circumstances of the case (citations omitted).
4. To establish actual bias there must be cogent evidence that the decision-maker's mind was not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 (at [71]). The allegation must be "distinctly made and clearly proved": (at [69]). The onus of demonstrating actual bias lies upon the party asserting it and is a heavy onus: Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87, per French J (at p 106).

Consideration

1. The Steinbecks contend that after reading "prejudicial material" tendered by Mr McDonald, and being exposed to occasional outbursts by Mr Steinbeck throughout the course of the hearing, the Member became biased against them. We understand the "prejudicial material" to include (i) correspondence between the Steinbecks and the property's managing agent, Meek Real Estate, concerning complaints made by the Steinbecks about the management of the tenancy and the behaviour of the "back flat" tenant, and (ii) statements and counter complaints made by the tenant.
2. We agree with the Steinbecks that some of the material tendered by Mr Steinbeck could be characterised as critical of, or adverse to, them. While we do not have a transcript of the hearing, for current purposes we will assume, as contended by Mrs Steinbeck, that during the hearing, on occasion her husband's behaviour fell short of the ideal.
3. To establish actual bias there must be cogent evidence that the decision-maker's mind was not open to persuasion. There is nothing in the Reasons for decision to suggest that the Member had prejudged or was adverse to the Steinbecks' case. Nor is there any evidence about the conduct of the hearing which might support that finding. Mrs Steinbeck concedes that the allegation of bias rests on "intuition". It does not follow that because the Member was exposed to prejudicial material and challenging behaviour by Mr Steinbeck, that she was prejudiced against the Steinbecks or was incapable of deciding the application before her on its legal and factual merits. Indeed her decision to suspend the order granting possession of the tenancy for a period of two months, suggests that the Member was not unsympathetic to the Steinbecks.
4. We accept that the Steinbecks hold the genuine belief that the decision made by the Member was unfair and flawed. However, we do not accept the proposition that the only plausible explanation for the decision made was that the Member was biased against them. The allegation of actual bias lacks an objective basis and is rejected.

Did the Tribunal deny the Steinbecks procedural fairness by failing to have regard to any evidence?

1. The Steinbecks contend that the Tribunal failed to have regard to "any evidence" and simply stated that "s 85 overrules s 115". We understand the Steinbecks to specifically contend that the Tribunal failed to have regard to any material they provided in support of their case.
2. It is indisputable that the Steinbecks were entitled to procedural fairness. Among other things, the Tribunal was required to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s 38(5)(c) of the Civil and Administrative Tribunal Act).
3. It is apparent from the Reasons that the Tribunal had regard to evidence which was relevant to the decision of whether the power conferred by s 115 of the Act should be exercised. This included evidence of the long history of disputation between the parties and the consequent stress suffered by the Steinbecks (see paragraph [54] below). The premise on which this ground rests is not established.

Was the decision to decline to declare that the termination notice had no effect not fair and equitable and/or against the weight of evidence?

1. The primary challenge to this decision raises a question of statutory construction and has been dealt with above. We will proceed to deal with the Steinbecks' secondary submission, namely that the decision was not fair and equitable and/or against the weight of evidence. Given the significant overlap in the submissions made by the Steinbecks, for convenience we deal with these grounds together.
2. The Tribunal approached the question of whether to declare the termination notice to have no effect by first asking whether the impugned notice was a "retaliatory notice". For convenience, we repeat below the relevant part s 115(2): (2) The Tribunal may find that a termination notice is a retaliatory notice … if it is satisfied that the landlord was wholly or partly motivated to give the notice … for any of the following reasons: (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant.
3. The Tribunal noted that the Steinbecks had previously applied to NCAT for an order to "set aside" a notice of termination: To the extent that the landlord was motivated by the fact that his previous notice was unsuccessful, the Tribunal finds that the grounds in paragraph 115(2)(a) are partly made out.
4. The Tribunal went on to consider whether the notice was a retaliatory notice within the meaning of paras (b) and (c) of s 115. The Tribunal found: • Mr McDonald to be a "witness of truth" • Mr McDonald was "in the dark" about the repairs the Steinbecks were agitating for in their application to the Tribunal • throughout the tenancy the Steinbecks made complaints about repairs and "perceived breach of peace comfort and privacy" • those complaints have generally been responded to "although not always to satisfaction of the tenants" • Mr McDonald had apparently attempted to balance the interests of the Steinbecks and the tenants who occupied the granny flat.
5. The Tribunal concluded that neither paragraphs (b) or (c) were "made out".
6. The Tribunal went on to consider the evidence about the future of the tenancy and accepted Mr McDonald's testimony that: • he had "plans for the property", which included undertaking "several repairs" • it was his intention to undertake this work himself • in his estimate, the repairs would take a lengthy period to complete given that he intended to undertake the work himself and his practice of working slowly • Mr McDonald's desire to undertake renovations and repairs was his "true motivation" for seeking the return of the property.
7. The Tribunal found: • despite their claims to the contrary it was unlikely that the Steinbecks could endure "a long, slow and disruptive schedule" • the parties are "at an impasse of sorts" • while this continues Mr McDonald is unable to re-let the granny flat and is losing rent both parties are stressed by the current situation.
8. In declining to exercise the power conferred by s 115, the Tribunal concluded (at pp 4,5): ln exercising the discretion under section 115 the Tribunal is to balance the competing rights of the landlord and tenant. lt is also clear that if unsuccessful the landlord will again issue a further notice immediately. He put his position plainly, "I just want my house back. I have been waiting 241 days". This is his right under the Act and the only remedy available to him in the circumstances in the absence of breach by the tenants to return the properly is a notice under section 85. The parties are at an impasse of sorts. While this continues the landlord is not in a position to re-let the granny flat, resulting in a loss of income of $220.00 per week and also is unwilling to take action to enforce a rental increase to the tenants notified in accordance with the provisions of the Act. The evidence is that the rent is currently under market. The tenants are stressed by the current situation as is the landlord. There is also evidence in the medical reports of Dr Duncan Dew dated 21 October 2O14 and 5 November 2014 that the landlord is suffering extreme anxiety and this is having an adverse consequence for his health and his ability to operate his business. … This is not a tenancy where the evidence demonstrates that for the duration the landlord has acted oppressively or sought to circumvent the rights of the tenants. Although there is a history of Tribunal proceedings between the parties the Tribunal is not satisfied that it is appropriate to make orders to declare the notice of termination has no effect or refuse to make a termination order as at some time the landlord should be entitled to exercise their right to issue a notice of termination for no grounds and seek return of the property.

Submissions made by the Steinbecks

1. The Steinbecks contend that there was no basis for the finding that Mr McDonald's "true motivation" for seeking the return of the property was his desire to undertake renovations and repairs. Further they argue that Mr McDonald's claim that he would be unable to undertake the necessary repairs while the property remain tenanted is implausible pointing out that the bulk of the repairs involved the exterior of the property's exterior.
2. The Steinbecks submit that it is highly significant that two weeks before issuing the impugned notice, the Tribunal (constituted by Member Ross) made orders declaring that the first termination order had no effect. They contend that it was not fair and equitable that the Member made findings of fact "inconsistent" with those made by Member Ross, and reached a different conclusion about the ultimate question of whether the power conferred by s 115 should be exercised.

Consideration

1. The Act does not prescribe any factors that must be taken into account in deciding whether to exercise the power conferred by s 115. The relevant considerations therefore must be implied by considering the subject matter, scope and purpose of the Act. The Member identified the "interests of both parties" as relevant considerations and described the task required to be undertaken by s 155 as "to balance the competing rights of the landlord and tenant". We see no error in that approach.
2. There is nothing before us to indicate that the Member approached the task of fact finding in an unorthodox manner. Nor is there anything in the Reasons to indicate that in exercising the power conferred by s 115, the Member had regard to irrelevant considerations or failed to take into account relevant considerations. The findings made and inferences drawn by the Member were open to her on the available material. While reasonable minds might differ on the ultimate decision, it could not be described as one where "the evidence in its totality preponderates so strongly against the conclusion found by the tribunal … that it can be said that the conclusion was not one that a reasonable tribunal member could reach": Collins v Urban at [77].
3. With respect to the submission that the decision was not fair and equitable because it was "inconsistent" with the earlier decision made by Member Ross, we make these observations. First, Mr McDonald did not attend, or give evidence at the hearing in which the first application was considered. Self-evidently the evidence available to Member Hunter, who had before her evidence given by Mr McDonald, was not identical to the evidence available to Member Ross. Second, in any event, the decision made by Member Ross related only to the first termination notice and did not bind future decision-makers. The task Member Hunter was required to perform was to evaluate the available material, make findings of fact and to undertake the weighing exercise required by s 115. First instance courts and tribunals are generally not bound by previous findings made by other first instance courts and tribunals.
4. We reject the submission that the decision was against the weight of evidence and was not fair and equitable. The question of whether to grant leave therefore does not arise.

Was the decision not to award compensation unfair and inequitable and/or against the weight of evidence?

1. The Steinbecks submit that had the Member read their submissions together with those prepared by Meek Real Estate, she would have had "more than enough evidence to consider compensation". They argue that the Member failed to give proper regard to the evidence that their mental and physical health had been "pushed beyond breaking point".
2. The claim for compensation made by the Steinbecks was made under s 187(2)(b) of the ACT, which states: Orders that may be made by Tribunal … (2) Without limiting the Tribunal's power to make an order as to compensation, the Tribunal may order compensation to be paid for the following: .. (b) any other breach of a residential tenancy agreement, …
3. The claim was made in relation to the alleged loss of quiet enjoyment of the premises. As the Steinbecks correctly point out, it is a term of every residential tenancy agreement that tenants have the right of quiet enjoyment of the premises (s 50(4) of the Act). The claim was also made in relation to the stress the Steinbecks were said to have experienced as a result of "previous successful Tribunal proceedings". As the Tribunal noted, any loss suffered as a result of those proceedings is not compensable under s 187(2)(b).
4. The Tribunal wrote that the claim for compensation related to: [D] amages for disappointment, distress and loss of bargain, and a claim that the male tenant required psychological and psychiatric assistance and both tenants and their children experienced distress and heightened anxiety.
5. The Tribunal described the claim as one in the nature of a claim for "non-economic loss". The Tribunal considered the "best evidence" of that loss to be the report prepared by Dr Lauren Hubert, 22 April 2014, in which she wrote that Mr Steinbeck "has suffered anxiety and depression for many years and this has been exacerbated by events at that time". The Tribunal found that this loss did not amount to "at least 15 % of the most extreme case" and therefore by the operation of the Civil Liability Act 2002 (NSW), an award for compensation could not be made.
6. The Tribunal correctly noted that the power to award compensation under s 187(2)(b) of the Act was constrained by the Civil Liability Act. A tribunal cannot award damages contrary to Part 2 of that Act (s 11A(3)). Contained in Part 2 of the Act, s 16(1) provides that no damages may be awarded for non-economic loss unless the severity of that loss is at least 15% of a most extreme case. The Civil Liability Act defines "damages" to include any form of monetary compensation and "non-economic loss" to include pain and suffering (s 4).
7. The Tribunal did not, as the Steinbecks suggest, conclude there was no evidence that they had sustained pain and suffering. Rather the Tribunal found that the loss sustained did not reach the 15% threshold imposed by the Civil Liability Act. The Steinbecks were unable to point to any material that was before the Tribunal that could arguably be said to support a finding that their level of loss was at least 15% of a "most extreme case".
8. We reject the submission that the finding that the Steinbecks had not sustained non-economic loss of at least 15% and the ultimate decision to decline to make an order for compensation was against the weight of evidence. For largely the same reasons we are also unable to agree with the proposition that the decision was not fair and equitable.

Has significant new evidence arisen?

1. An Appeal Panel may grant leave under s 80(2)(b) of the Civil and Administrative Tribunal Act if satisfied the appellant may have suffered a substantial miscarriage of justice because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The "new evidence" relied upon by the Steinbecks in support of this ground is the report of psychologist/social worker, Mr Ian Leneham, dated 26 February 2015. For current purposes we will assume but not decide that that report was not reasonably available at the time of the proceedings the subject of this Appeal.
3. In his report Mr Leneham wrote that Mr Steinbeck's severe depression and anxiety are secondary to an Autism Spectrum Disorder. He wrote: These disruptions ["noise and other problems that have been experienced at his home and … tenant tribunal hearings"] exacerbate Tony's symptoms.
4. While consistent with the claim that Mr Steinbeck's pre-existing depression and anxiety were aggravated or exacerbated by various problems associated with the tenancy, this new evidence falls well short of supporting a finding that Mr Steinbeck's degree of "pain and suffering" met the 15% threshold imposed by the Civil Liability Act. We are not persuaded that the Steinbecks may have suffered a substantial miscarriage of justice because this evidence was not available in the original proceedings and reject this ground of appeal.

Decision

1. For the reasons given, we have decided to dismiss the appeal and to lift the stay of the decision under appeal. Unless the orders made by the Tribunal are varied, the Steinbecks would be required to vacate the premises immediately, placing them in a difficult position given that they have three children and apparently no alternative accommodation. We consider it appropriate that the Steinbecks be given a reasonable period to find alternative accommodation and for that reason have decided to set aside Order (5) made by the Tribunal and in substitution order, that the order for possession is suspended until 28 days from the date of this decision. The balance of the decision under Appeal is confirmed. 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: 20 May 2015