Sun v Zhang

Sun v Zhang - [2022] NSWCATAP 329 - NSWCATAP 2022 case summary — Zoe

[5]

Scope and nature of internal appeals

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].
To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
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 Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
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. The appellant must demonstrate something more than the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
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: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

[7]

Ground 1 - Procedural fairness

The tenant says there was a denial of procedural fairness because the mandarin language interpreter who was interpreting the hearing for the tenant's mother Ms Wang (who represented the tenant at the hearing) "abruptly left the hearing without informing anyone" whilst Ms Wang was making submissions. The tenant says her mother can only communicate in simple English and, without the assistance of the interpreter, could not understand what the Tribunal member or the landlord's agent were saying.
The tenant also says the interpreter's translation was "not professional" and therefore her mother had difficulty understanding the proceedings. We understand this to mean that the tenant asserts that the interpretation of the proceedings provided by the interpreter was inaccurate or incomplete.
It is well established that the Tribunal has a duty to conduct its hearings in a procedurally fair manner and to take such measures that are reasonably practical to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s38(2) and (5)(c) of the NCAT Act).
The absence of an interpreter, or the failure to use an interpreter's services appropriately, is likely to lead to a denial of procedural fairness if the absence or failure results in the party not having a reasonable opportunity to put forward his or her case: Nikiforova-Grigorieva v Li [2022] NSWCATAP 191 at [69]. Inaccurate or incomplete interpretation of what was said at the hearing may also raise procedural fairness concerns.
In this instance we have not been provided with an audio recording of the hearing, or a transcript of the relevant parts of the hearing. Therefore we cannot know what happened at the hearing including whether, and if so, at what stage of the hearing, the interpreter left the hearing, or, if the interpreter did leave early, what was said by the Tribunal member or the parties at that time.
Even if we had been provided with such materials, we could not assess the tenant's assertions regarding the quality of the interpretation without supporting evidence. This would include at the very least a statement from a suitably qualified mandarin language interpreter addressing the accuracy of the interpretation provided at the hearing. However, no such material has been provided.
Without these materials we cannot form a view as to whether the interpreter's conduct or quality of interpretation might give rise to procedural fairness concerns.
In any case, the tenant has not explained how the alleged issues with the interpreter affected the case she wished to put to the Tribunal. For example, she has not explained how her evidence or submissions would have been materially different had the interpreter's conduct and standard of interpretation been different. As a result, we cannot be satisfied that any issues with the interpretation of the proceedings caused the tenant any practical injustice: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 443 [38]; Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1 at 13-14 [37]-[38].
For these reasons we are not satisfied that there has been a denial of procedural fairness.

[8]

Ground 2 - Weight of evidence/Decision not fair and equitable

The tenant says that she may have suffered a substantial miscarriage of justice because the following findings were against the weight of evidence: 1. That the tenant provided vacant possession of the premises on 9 March 2022 and not 3 March 2022; 2. That there was no representation by the landlord at the time the new tenancy agreement was signed that no break fee would be charged if the tenant broke the tenancy agreement early; and 3. That the landlord was not responsible for the painting costs.
A decision under appeal can be said to be against the weight of evidence 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: Collins v Urban at [77].
The tenant's submissions in relation to these matters take the form of an extensive commentary which implicitly invite this Appeal Panel to simply substitute the factual findings preferred by the tenant for those made below without any cogent explanation as to how the findings made by the Tribunal were not ones that a reasonable Tribunal Member could reach on the basis of the totality of the evidence before it.
In any event, the tenant has provided neither copies of all the documents which were before the Tribunal, nor a complete sound recording of the hearing, nor a typed transcript of the relevant parts of the hearing. In the absence of these materials, the Appeal Panel it not able to assess the totality of the evidence and therefore cannot form a conclusion as to whether the findings of the Tribunal in relation to these matters were against the weight of evidence.
We are therefore not persuaded that the decision was against the weight of evidence.
We are also unable to identify any basis for the assertion that the decision was not fair and equitable, noting that whether a decision is not fair and equitable will involve a consideration of whether there has been an unfairness in the way the proceedings have been conducted or some other denial of procedural fairness. The tenant has not identified anything about the conduct of the proceedings which would lead us to the conclusion that the decision was not fair or equitable.

[9]

Ground 3 - Significant new evidence

The tenant says she may have suffered a substantial miscarriage of justice because significant new evidence has arisen which was not reasonably available at the time the proceedings were being dealt with.
The evidence on which the tenant seeks to rely is a series of "WeChat" messages between herself and the managing agent. The tenant says these messages support her contention that prior to the tenant signing the new tenancy agreement on 10 February 2022 the landlord agreed to waive the break fee if the tenant broke the agreement early. The messages bear a stamp indicating that they were translated into English from mandarin by a NAATI accredited translator on 1 July 2022.
All of the messages on which the tenant seeks to rely pre-date the final hearing of the matter which took place on 15 June 2022.
The tenant says that nonetheless she was unable to provide this evidence prior to the hearing because from 19 April to 14 May 2022 she was hospitalised and receiving treatment for severe mental illness and was unable to sufficiently prepare her evidence.
However, the hearing occurred over one month after the date the tenant was discharged from hospital and the Tribunal decision records that the tenant had submitted bundles of documents to the Tribunal registry on 12, 13 and 17 May 2022. The tenant could have arranged for the WeChat messages to be translated and included in those bundles of documents. Alternatively, if there was a legitimate impediment to her doing so, she could have sought an extension of time for the filing and serving of evidence, or an adjournment of the hearing date. There is nothing before us to establish that the tenant took such steps.
Moreover, it is not apparent to us how the evidence furthers the tenant's case. There is nothing in the WeChat message exchange which clearly supports the contention that the landlord agreed to waive any claim for a break lease fee at the time the tenant entered the new tenancy agreement.
We are therefore not satisfied that the additional evidence on which the tenant seeks to rely is significant new evidence which was not reasonably available at the time the proceedings were being dealt with.

[11]

Timing

As mentioned earlier, the appeal was lodged out of time and therefore the tenant requires an extension of time in which to lodge the appeal.
The Appeal Panel has power to extend time under s 41 of the NCAT Act.
The principles on which an extension of time to bring an appeal would be granted were set out by the Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]-[22], drawing on early orthodox principle and authority: "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. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice."
The criteria for assessing an extension application can be summarised from Jackson as follows: 1. the appellant must demonstrate that strict enforcement of the time limit will work an injustice on the appellant; 2. the respondent, having obtained a favourable primary decision, can be thought of as having a "vested right" to retain the benefit of that decision after the normal time for appeal has expired; 3. Consistent with the foregoing, the factors to be considered are the length of the delay, the reason for the delay, the prospects of success ("that is usually where the applicant has a fairly arguable case"), and 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.
In this case, applying the factors identified in Jackson: 1. The appeal was lodged 42 days out of time. This is a significant delay in circumstances where the time limit for lodgement of the appeal was 14 days. 2. The tenant has provided numerous explanations for the delay, including that she applied to the Appeal Panel Registry twice unsuccessfully for a fee waiver, and that she made several unsuccessful attempts to apply for legal aid. She also describes various family pressures which she is experiencing including dealing with her son's health issues. However, the tenant has provided only scant details of these issues and has provided no sworn witness statement or documentary materials supporting her request for an extension. For example, we do not know when the requests for a fee waiver were made or when or why they were refused, we have no details regarding the tenant's efforts to secure legal aid including the timing of those requests and the reasons for her lack of success in this regard, and no medical evidence in relation to the tenant's son's health issues, or why they may have contributed to the delay, has been provided. Accordingly, we do not consider the tenant's explanation for the delay to be persuasive. 3. There would be significant additional time, cost and inconvenience to the landlord if this matter was remitted to the Tribunal for the issues in dispute to be re-litigated. 4. For the reasons we have explained the tenant's grounds of appeal are ill-founded.
For these reasons we refuse to extend time.

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Judgment (12 paragraphs)

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Legislation Cited (3)

Cases Cited (10)