Swain v City of Parramatta Council [2026] NSWCATAP 110;

1. On 15 October 2025, the Council as the applicant commenced proceedings 2025/00396218 in the Consumer and Commercial Division of the Tribunal against Ms Swain as the respondent (the CCD proceedings) by lodging an application in which it sought termination of the residential tenancy agreement by reason of her failure to give vacant possession of the subject premises on 20 September 2025 in compliance with a termination notice under s 85 of the RT Act which had been served upon her in March 2025 (the Council application).
2. On 13 January 2026, the Tribunal constituted by General Member E Yin heard the Council application, and made a decision comprising orders against Ms Swain, including termination and possession orders with the possession order suspended to 23 January 2026 (the 13 January 2026 orders) and oral reasons.
3. On 14 January 2026, Ms Swain made an application to set aside the 13 January 2026 orders (the set aside application).
4. On 14 January 2026, the Tribunal constituted by Senior Member P Boyce made procedural orders for the hearing of the set aside application and an order staying the 13 January 2026 orders until further order.
5. On 16 February 2026, the Tribunal constituted by General Member M Terceiro heard the set aside application, and made a decision comprising orders dismissing the set aside application and lifting the stay of the 13 January 2026 orders (the 16 February 2026 orders) and written reasons (the 16 February 2026 reasons) in which he referred to a certificate of capacity relied on by Ms Swain.

1. On 16 February 2026, Ms Swain as the appellant commenced this appeal against the Council as the respondent by lodging the following documents:

(1) a notice of appeal in which she:

(a) challenged the 16 February 2026 orders;

(b) set out the following grounds of appeal:

"The Tribunal erred in law by failing to properly consider relevant medical evidence concerning my incapacity to participate in proceedings on 13 January 2026.

The Tribunal adopted an unduly narrow interpretation of the Certificate of Capacity dated 21 January 2026, treating it as confined to work capacity without considering the broader medical context and accompanying psychological evidence.

The Tribunal failed to properly consider the psychologist's written evidence stating that:

I had reduced capacity to manage complex administrative or legal processes; and

participation in tribunal proceedings would compromise my ability to represent myself effectively.

The Tribunal imposed a requirement that psychological incapacity be attested to in a specific form not mandated by clause 9 of the Civil and Administrative Tribunal Regulation.

The Tribunal failed to give proper weight to prior adjournments granted on similar medical grounds in the same proceedings.

The Tribunal's reasoning resulted in procedural unfairness, as il dismissed the application despite evidence that I had notified the Tribunal of my incapacity."

(c) set out the orders the Appeal Panel should make including the setting aside of the 13 January 2026 orders and the 16 February 2026 orders;

(d) sought leave to appeal on the grounds that the decision made on 16 February 2026 was not fair and equitable;

(e) attached the decisions made on 13 January 2026 and 16 February 2026 together with the following documents:

(i) an undated letter of Dr Fazeela Moghal (Dr Moghal), Clinical Psychologist;

(ii) the email of Dr Moghal sent on 2 December 2025 to a person named Nicole;

13 On 23 February 2026, the Appeal Panel constituted by myself dismissed the stay application in so far Ms Swain sought an ex-parte interim stay, listed the appeal for a call over and the hearing of the stay application on 18 March 2026 at 9.30am, and made procedural directions for the hearing of the stay application.

1. On 9 March 2026, Ms Swain lodged a bundle of documents in support of the stay application (the Swain stay documents).
2. On 13 March 2026, the Council lodged a bundle of documents in opposition to the stay application.
3. On 18 March 2026, Ms Swain lodged a further bundle of documents in support of the stay application.
4. On 18 March 2026, the Appeal Panel constituted by myself dismissed the appeal because of the failure of Ms Swain to appear (the dismissal decision).
5. On 18 March 2026 at 10.25am, Ms Swain sent an email to the Appeal Registry in which she sought the reinstatement of the appeal.
6. On 18 March 2026 at 1.11pm, Ms Swain sent a further email to the Appeal Registry in which she sought the reinstatement of the appeal and attached the reinstatement application together with documents in support (the Swain reinstatement documents).
7. On 20 March 2026, the Appeal Panel constituted by myself made procedural directions for the hearing of the reinstatement application, and if granted the stay application.
8. On 31 March 2026, the Council lodged a bundle of documents in opposition to the reinstatement application (the Council reinstatement documents).
9. On 9 April at 2.12pm, Ms Swain sent an email to the Appeal Registry in which she sought confidentiality orders and attached the confidentiality application.
10. On 9 April 2026 at 2.37pm, the Registrar sent a letter dated 9 April 2026 by email to the parties requesting comments on the confidentiality application by 10 April 2026 at 12.00pm and whether or not they object to a hearing being dispensed with.
11. On 9 April at 4.42pm, Ms Swain sent an email to the Appeal Registry in which she stated that she was in the process of providing documents to Legal Aid for urgent review and requested that this be taken into account in the consideration of the confidentiality application.
12. On 10 April at 9.35am, the Council's agent sent an email to Ms Swain, which was copied to the Appeal Registry, in which she stated that the Council does not consent to the orders sought in the confidentiality application.

1. The determination of the reinstatement application will involve answering the following two questions:

(1) whether a hearing of the reinstatement application should be dispensed with;

(2) whether the appeal should be reinstated.

1. If the appeal is reinstated, the determination of the stay application will involve answering the following two questions:

(1) whether a hearing of the stay application should be dispensed with;

(2) whether the 13 January 2026 orders should be stayed.

1. The determination of the confidentiality application will involve answering the following two questions:

(1) whether a hearing of the confidentiality application should be dispensed with;

(2) whether confidentiality orders should be made.

Whether a hearing of the reinstatement application should be dispensed with

1. Ms Swain is in agreement that, and the Council makes no submission as to whether, a hearing of the reinstatement application should be dispensed with.
2. I am satisfied that the issues for determination in relation to the reinstatement application can be adequately determined in the absence of the parties by considering their evidence and written submissions. Accordingly, I have decided pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to make an order dispensing with a hearing of the reinstatement application.

1. The reinstatement application is pursuant to s 55(2) of the NCAT Act. The determination of this application will involve answering the first and may involve answering the second of the following two questions:

(1) whether there is a reasonable explanation for the failure of Ms Swain to appear at the call over and the hearing of the stay application on 18 March 2026;

(2) if so, whether the discretion should be exercised to reinstate the appeal.

1. There is no question that Ms Swain has made the reinstatement application with the period of seven days after the dismissal decision prescribed by r 36 of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. Before dealing with this issue, it is appropriate to set out the applicable statutory provisions and legal principles, and to summarise the evidence of the parties. Neither of Ms Swain nor the Council provided submissions explaining their position with respect to the reinstatement application.

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances-

...

(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

...

(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.

1. Section 85 before its amendment by the Residential Tenancies Amendment Act 2024 (NSW) (RT Amendment Act) (with the amendment commencing on 19 May 2025) relevantly stated:

85 Termination of periodic agreement - no grounds required to be given

(1) A landlord may, at any time, give a termination notice for a periodic agreement.

(2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.

...

(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.

(4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.

1. Schedule 2, containing savings, transitional and other provisions, was amended by the insertion of Pt 10 by the RT Amendment Act which relevantly states:

Part 10 Provisions consequent on enactment of Residential Tenancies Amendment Act 2024

32 Definition

In this part -

amendment Act means the Residential Tenancies Amendment Act 2024.

(1) This Act, as in force immediately before its amendment by the amendment Act, continues to apply to a termination notice given under sections 84-87 before the substitution of the sections by the amendment Act.

...

1. The factors to be applied in exercising the discretion to reinstate an appeal were set out by the Appeal Panel in Wallace v Price [2017] NSWCATAP 151 at [31]:

"Factors relevant in exercising of the discretion include:

(1) The nature of the appeal and the issues raised;

(2) The strength of the appeal and its likelihood of success;

(3) Any injustice to the opposing party."

1. In Bobolas v Waverley Council [2016] NSWCA 139 (Bobolas) at [221], the New South Wales Court of Appeal made the following observation with respect to medical evidence relied upon for an adjournment (Mc Coll JA with Simpson JA at [253] and Sackville AJA at [254] agreeing):

"[221] A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the "critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing." (endnote omitted)

1. It is an established principle that the termination of a residential tenancy agreement under s 85 of the RT Act is mandatory if it is satisfied of the matters in that provision (namely that the notice of termination was given in accordance with s 85 and that the tenant has not vacated the premises): Bungree Aboriginal Association Ltd v Cosgrove [2023] NSWCATAP 68 (Bungree) at [30].

1. A material breach of procedural fairness constitutes jurisdictional error: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at [1] (Kiefel CJ, Keane and Gleeson JJ), [45] (Gageler J); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT) at [12] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).
2. As noted in Nathanson at [78]-[79] (Gordon J), [98] (Edelman J), and in LPDT at [13] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ), some breaches of procedural fairness are, by their nature, material, and others require materiality to be made out.
3. To be material, it is necessary only to show that the decision that was in fact made could, not would, "realistically" have been different had there been no error: LPDT at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). Materiality needs only to be established by "reasonable conjecture": Nathanson at [32]-[33] (Kiefel CJ, Keane and Gleeson JJ). It is not necessary to put on evidence or submissions as to what would have been done differently: Nathanson at [84] (Gordon J).

1. Ms Swain in section 4 of the reinstatement application has provided the following explanation for her failure to appear at the call over and the hearing of the stay application on 18 March 2026:

"I did not appear at the hearing due to documented medical incapacity.

Prior to the hearing, I notified the Tribunal in writing that I was medically unfit to attend and requested that the matter proceed on written submissions. I provided extensive medical evidence confirming my condition, including that I have no capacity for work and require urgent psychiatric assessment.

I actively participated in the proceedings by lodging written submissions on 4 March 2026 and supplementary evidence on 14 March 2026.

My failure to appear was not a refusal to participate, but a direct result of my medical condition, which significantly impairs my ability to attend or engage in real-time proceedings.

This is not the first time I have experienced difficulty participating in proceedings due to my medical condition. In January 2026, I sought an adjournment due to medical incapacity, which was not acknowledged, and the matter proceeded in my absence. I then had to undertake further application processes to address that outcome.

This history is relevant as it demonstrates an ongoing impact of my medical condition on my ability to attend hearings, despite my efforts to engage with the Tribunal through written communication and evidence.

Given the seriousness of the matter and the risk of enforcement, I respectfully request that the proceedings be reinstated and considered on the basis of the written material already provided.

I also note that a warrant for possession was issued on or about 19 February 2026, and I understand that the relevant enforcement timeframe is ongoing. This creates urgency, as the consequences of the dismissal are significant and may result in enforcement action. This further supports my request that the proceedings be reinstated and considered as a matter of urgency.

The dismissal of the proceedings in circumstances where I was medically unfit to appear, despite my attempts to engage with the Tribunal, results in significant prejudice. This includes the loss of the opportunity to have my appeal determined on its merits, despite my continued participation and compliance with procedural requirements to the extent of my capacity."

1. The following documents, which except as follows are unnecessary to set out or summarise, comprise the Swain reinstatement documents:

(1) the certificate of capacity of Dr Ajitha Charawanamuttu (Dr Charawanamuttu) dated 18 February 2026 (the 18 February 2026 Charawanamuttu certificate);

(2) the letter of Dr Moghal dated 4 March 2026 to Ms Swain (the 4 March 2026 Moghal letter);

(3) the undated letter of Dr Aji Chara (Dr Chara) to an unidentified psychiatrist;

(4) the email chain between the Complaints Officer of Evolve Housing and Ms Swain from 4 March 2026 to 9 March 2026;

(5) the email chain between Dr Chara and Nicole on 10 and 11 March 2026;

(6) the email chain between Ms Swain and the Enforcement Servies Officer of the NSW Sheriff's Office on 11 and 12 March 2026.

1. Dr Charawanamuttu in the 18 February 2026 Charawanamuttu certificate, which records that it is for use with the workers compensation claim of Ms Swain, expresses the opinion that she has no current capacity for any work from 5 to 26 March 2026.
2. Dr Moghal in the 4 March 2026 Moghal letter request consideration for housing support for Ms Swain because of her medical condition.

1. The Swain stay documents relevantly include the certificate of capacity of Dr Charawanamuttu) dated 17 December 2025 (the 17 December 2025 Charawanamuttu certificate).
2. Dr Charawanamuttu in the 17 December 2025 Charawanamuttu certificate, which records that it is for use with the workers compensation claim of Ms Swain, expresses the opinion that she has no current capacity for any work from 17 December 2025 to 21 January 2026. I infer that this certificate was considered by the Tribunal in deciding the set aside application on 16 February 2026 and referred to in the 16 February 2026 reasons.

1. The Council reinstatement documents, which are unnecessary to summarise, comprise various documents with respect to the tenancy between the Council and Ms Swain.

Whether there is a reasonable explanation for the failure of Ms Swain to appear at the call over and the hearing of the stay application on 18 March 2026

1. Having regard to the principles in Bobolas at [221], I am not satisfied that Ms Swain has established that there is a reasonable explanation for her failure to appear at the call over and the hearing of the stay application on 18 March 2026 for the following reasons:

(1) the 18 February 2026 Charawanamuttu certificate does not address the question of whether Ms Swain was unable to appear at the call over and the hearing of the stay application on 18 March 2026 due to any medical condition;

(2) similarly, the 4 March 2026 Moghal letter does not address this question;

(3) the other documents comprising the Swain reinstatement documents do not address this question.

1. As Ms Swain has not satisfied the condition for the exercise of the power to reinstate the appeal under s 55(2) of the NCAT Act, I have decided to dismiss the reinstatement application. It follows that it is unnecessary to determine the stay application.

If so, whether the discretion should be exercised to reinstate the appeal

1. If I had found that Ms Swain had provided a reasonable explanation for her failure to appear at the call over and the hearing of the stay application on 18 March 2026, then, having regard to the principles in Wallace v Price at [31], I would in the exercise of the discretion under s 55(2) of the NCAT Act have dismissed the reinstatement application because the appeal was weak and its likelihood of success low for the following reasons:

(1) having regard to the principles in Bobolas at [221], I would not have been satisfied that the Tribunal failed to accord procedural fairness to Ms Swain or made another error in deciding the set aside application. The 17 December 2025 Charawanamuttu certificate does not address the question of whether Ms Swain was unable to appear at the hearing of the Council application on 13 January 2026 due to any medical condition;

(2) even if I had been satisfied that the Tribunal arguably failed to accord procedural fairness to Ms Swain or made another error in deciding the set aside application, I would not have been satisfied that any such failure or error was material by reason that:

(a) the Tribunal pursuant to cll 32 and 36 of Sch 2 of the Rt Act was bound to apply s 85 as it was in force prior to the amendment by the RT Amendment Act;

(b) having regard to the principles in Bungree at [30], the Tribunal was bound to make a termination order in circumstances where there was no challenge that the matters set out in that provision were satisfied;

(c) having regard to the various principles in Nathanson and LPDT set out above, there is no realistic possibility that the decision could have been different had there been no error.

Whether a hearing of the confidentiality application should be dispensed with

1. Each of Ms Swain and the Council has made no submission as to whether a hearing of the confidentiality application should be dispensed with.
2. I am satisfied that the issues for determination in relation to the confidentiality application can be adequately determined in the absence of the parties by considering their evidence and written submissions. Accordingly, I have decided pursuant to s 50(2) of the NCAT Act to make an order dispensing with a hearing of the confidentiality application.

1. Before dealing with this issue, it is appropriate to set out the confidentiality application, the applicable statutory provisions and legal principles.

(1) seeks the following orders pursuant to s 64 of the NCAT Act:

"1. The decision in these proceedings not be published; or

2. In the alternative, that the decision be published in an anonymised form, including:

(a) (a) the Applicant's name not be disclosed;

(b) (b) any identifying details relating to the Applicant be removed or redacted; and

(c) (c) any references to the Applicant's child, or information capable of identifying the Applicant or her child, be removed.

3. Such further or other orders as the Tribunal considers appropriate to restrict publication of identifying or sensitive personal information."

(2) sets out the following reasons for seeking these orders:

The Applicant acknowledges the principle of open justice.

However, section 64 expressly permits departure from that principle where necessary to:

prevent prejudice to the administration of justice;

protect the safety or welfare of a person; or

avoid undue distress or harm.

This application is made on that basis.

The proceedings involve circumstances that directly affect the Applicant's daughter, who is a vulnerable person.

Although not a formal party, she is:

a resident of the premises; and

identified in housing-related documentation relevant to the tenancy.

Her first name is highly distinctive. When combined with the Applicant's surname and contextual details of the matter, there is a real and foreseeable risk that she could be identified if the decision is published.

3. Risk of Identification Despite Partial Anonymity

Even if names are limited or partially redacted, the Applicant's circumstances are sufficiently specific that identification may occur by inference.

Relevant factors include:

the involvement of a council-owned affordable housing property;

the relatively limited number of such properties within the relevant local government area; and

the combination of personal, housing, and procedural details unique to this matter.

The Applicant submits that anonymisation limited to names alone would not adequately mitigate this risk.

4. Context of Misleading or Escalatory Conduct

The Applicant further relies on the context in which these proceedings arise.

The Respondent's agent has, on multiple occasions, made representations to the Applicant regarding:

alleged ineligibility; and

imminent enforcement action (including warrants), which were inaccurate or misleading and caused significant distress.

The publication of a decision containing identifying details, in circumstances where such representations have already created confusion and fear, would compound that harm and increase the risk of reputational or personal impact.

Publication of the decision, whether directly identifying or not, may:

expose private living circumstances involving the Applicant and her daughter;

cause distress to a vulnerable person not party to the proceedings; and

result in ongoing or future reputational or social harm.

The Applicant submits that this harm is not speculative, but grounded in the nature of the information and prior interactions in the matter.

The proceedings concern residential tenancy issues intertwined with:

personal housing circumstances; and

interactions with a community or council-linked housing provider.

These are inherently private matters, and the public interest in publication of identifying details is limited.

The Applicant submits that it is in the interests of justice to:

protect the identity and welfare of individuals connected to the proceedings;

prevent avoidable harm arising from publication; and

ensure that the proceedings can be determined without collateral impact beyond the Tribunal process.

8. Alternative Position - Comprehensive Anonymisation

If the Tribunal is not minded to order non-publication, the Applicant seeks that:

the Applicant's name be anonymised;

the name of the Applicant's daughter be excluded entirely;

the Respondent's property and any identifying location details be generalised; and

any combination of details capable of identifying the individuals be removed.

The Applicant submits that the circumstances justify the making of a nonpublication order, or alternatively, a comprehensive anonymisation order under section 64."

(1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.

(2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders -

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal,

...

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1. In State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [81], the Appeal Panel of the predecessor Tribunal, considering almost identical provisions to s 64 of the NCAT Act, observed:

"... It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order."

1. These principles have been consistently applied in the Tribunal as explained by the Appeal Panel in Houda v Seraphim [2025] NSWCATAP 135 at [131]- [134].

1. In considering the confidentiality application, I have taken in account the following matters:

(1) Ms Swain in the CCD proceedings, which were held in public, relied on the 17 December 2025 Charawanamuttu certificate and did not seek confidentiality orders;

(2) there are no personal identifying details of Ms Swain in this decision other than her name;

(3) there is no reference to the daughter of Ms Swain in this decision;

(4) Ms Swain both in the CCD proceedings and in the reinstatement application has relied on her medical condition. The details of this medical condition have not been set out in this decision.

1. I am not satisfied that Ms Swain has established any misleading or escalatory conduct by the Council's agent, and even she had established such conduct it would have been of any relevance to the determination of the confidentiality application.
2. I am not satisfied that any of the matters relied upon by Ms Swain warrant the making of an order under s 64(1)(a) or (b) of the NCAT Act that this decision not be published or anonymised. I do not accept that Ms Swain has rebutted the principle of open justice which is given statutory expression in s 49(1) of the NCAT Act and is a centrally important factor. In particular, I do not accept that the alleged likely harm and distress to Ms Swain and her daughter warrants the non-publication or anonymisation of this decision. It follows that I have decided to dismiss the confidentiality application.

(1) A hearing of the application of the appellant lodged on 18 March 2026 to reinstate the appeal (the reinstatement application) is dispensed with.

(2) The reinstatement application is dismissed.

(3) A hearing of the application of the appellant lodged on 9 April 2026 for confidentiality orders (the confidentiality application) is dispensed with.

(4) The confidentiality application is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.