Tailo v New South Wales Land and Housing Corporation

Applicable legislation 12Section 90 of the Residential Tenancies Act 2010 (RT Act) provides as follows: 90 Serious damage or injury by tenant or other occupant (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) serious damage to the residential premises or any neighbouring property (including any property available for use by the tenant in common with others), or (b) injury to the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent, or an occupier or person on neighbouring property or premises used in common with the tenant. (2) The termination order may specify that the order for possession takes effect immediately. (3) A landlord may make an application under this section without giving the tenant a termination notice. (4) 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. (5) In this section: neighbouring property means: (a) property adjoining or adjacent to the residential premises, or (b) property owned by the landlord in the general locality of the residential premises. 13The basic provision dealing with internal appeals in this tribunal is s 80 of the Civil and Administrative Tribunal Act 2013 (CAT Act): 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance-with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance-as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 14Limitations on internal appeals against decisions of the Consumer and Commercial Division are imposed by cl 12 of schedule 4 of the CAT Act. "Division decision" is defined in cl 1 of schedule 4 as "a decision of the Tribunal in the exercise of a Division function". That includes a decision of the division when it is exercising functions under the RT Act, by virtue of the definitions of "the Division" and "Division function" in cl 1 and the provisions of cl 3(1) of schedule 4. Clause 12 reads as follows: 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. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if: (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 15The appellant's notice of appeal relies on cl 12(1)(a) and (c). The issues before the Appeal Panel in this case are thus (1) whether leave to appeal is required and, if so, should be granted, and (2) whether or not the appeal itself succeeds.

Appellant's submissions 16The appellant's only submissions were filed as an attachment to his original notice of appeal. In them he argued that the original decision was unsound as the appellant had been at an unfair disadvantage by not being legally represented, while the landlord was. The tribunal's letter to him dated 8 April 2014 did not inform him that he could seek assistance from a tenants' advocacy service or legal aid. 17 English is not the appellant's first language and he did not fully understand the correspondence sent to him by the tribunal. His only source of advice about it was from office staff at Housing New South Wales, who were the original applicants. 18The appellant suffers from a mental illness (depression) that may have presented further problems for him in representing himself. His witnesses left the tribunal before they were called to give evidence and he was unable to contact them by mobile telephone to recall them. That effectively denied him any opportunity to provide evidence. He submitted that the tribunal member should have seen that he was at an unfair disadvantage and adjourned the matter to allow him to obtain legal advice and representation. 19The decision was not fair or equitable because of his language difficulties and his depression. Because of his difficulties in understanding the correspondence, he did not know that he needed to provide any information before the hearing. He did not receive Housing New South Wales's documents until 2 May 2014. He believed that the information had not been supplied to the tribunal in time and thus that the hearing would not proceed. For that reason he did not seek legal advice or obtain a tenant advocate. 20When he arrived at the hearing he found that Housing New South Wales had a legal representative, who objected to his providing evidence because he had not supplied any evidentiary statements in advance. 21 He had brought his sister and niece to the tribunal to give evidence as they had both been to his house a number of times and could have told the tribunal what they had seen at the apartment block and how the other residents had treated him. While they were waiting outside during the proceedings they left and he was not able to contact them by telephone to recall them (Member Turley, however, had said that Mr Tailo did contact them but they did not return). He thus lost his only chance to provide evidence about his side of the dispute. 22The reasons for decision do not properly explain the grounds for the order and simply state that the member believed the witnesses and not himself. He sought legal advice as quickly as he could after the hearing and was referred to the Campbelltown office of the tenants' advocacy service. They referred him to legal aid and in the result he was unable to obtain any legal advice until 11 June. Because of the seriousness of the hearing, which would result in his being homeless, he submitted that he should have had the opportunity of legal representation, or at least further time to obtain legal advice. 23Further, evidence is now available that was not reasonably available at the time of the hearing. If he had been legally advised he would have been able to present his side of the dispute and challenge the evidence called by the corporation. If the eviction order was overturned and a new hearing ordered, he would have the opportunity to seek legal assistance and present his version of events. He could provide statements by himself and his family that would dispute the account given by Housing New South Wales, as well as presenting medical evidence about his diagnosis. 24When he spoke to a legal aid lawyer on 11 June 2014, he was told that he could provide statements and other evidence explaining his version of events. If he had known that before the hearing he would have sought legal advice and assistance for that purpose and thereby receive a fair hearing.

Consideration 25The first matter to be dealt with is the issue of leave to appeal. The CAT Act's basic rule in that regard is laid down in s 80(2), which states that in relation to any decision other than a first instance interlocutory decision, an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel on any other grounds. 26The requirements to be satisfied before leave to appeal can be granted against a Consumer and Commercial Division decision in a residential tenancy matter are comprehensively set out in the Appeal Panel's reasons for decision in Collins v Urban [2014] NSWCATAP 17, [65] - [79]. 27The fact that the statute imposes a leave requirement makes it clear that such appeals are not to be brought as a matter of routine. In the case of discretionary judgments there is a strong presumption in favour of correctness and decisions below will not be disturbed unless they are attended with sufficient doubt from which substantial injustice may have flowed: Niemann v Electronic Industries Ltd [1978] VR 431, 435 - 436,442. The criteria for granting leave are particularly strict in the case of interlocutory decisions: Nationwide News Pty Ltd v Bradshaw (1986) 84 FLR 49, 51 - 52, 60 - 61. 28The decision challenged in this appeal is not an interlocutory one, but s 90(1) of the RT Act, which states that the tribunal "may" on the application of a landlord make a termination order, shows that the power exercised is a discretionary one. On general principles, therefore, leave to appeal would be unlikely to be granted. 29It is unnecessary to canvass the appellant's grounds under cl 12(1) in detail, however, because in cl 12(2) of schedule 4 of the CAT Act, the appeal encounters an insuperable obstacle, one that did not arise in Collins v Urban. That provision states that an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds, even with leave, if it is an appeal against an order of the tribunal for the termination of a tenancy under the RT Act and a warrant of possession has been executed in relation to it. 30As was noted above, the decision in respect of which Mr Tailo seeks leave to appeal made an order for the termination of Mr Tailo's tenancy under the RT Act on 4 June 2014 and a warrant of possession was executed in relation to it on 17 June 2014. 31The only avenue for an appeal is thus for an appeal on a question of law. The appellant's submissions, however, advance the claim that he was at a disadvantage in the hearing below because of his lack of language fluency, his depression and his failure to obtain legal advice in time for the hearing. 32 But this tribunal is structured and organized in such a way as to allow for the probability that a substantial proportion of parties will not be legally represented or familiar with tribunal and court procedures, and that some may lack fluency in English. There is no evidence to suggest that the normal accommodations made for parties in that position were not extended to him. 33 His submissions also state that he did not seek legal advice or a tenant advocate in time because he did not think the hearing would go ahead. That was his own decision and did not mean that he had been denied the opportunity to have his submissions considered within the meaning of s 38(5)(c) of the CAT Act or generally, nor did the fact that his intended witnesses left the hearing before giving evidence and refused to return. 34More importantly, however, those submissions plainly indicate no denial of procedural fairness or raise any other question of law. Consequently, therefore, by reason of cl 12(2), no internal appeal to the Appeal Panel may be brought. The application for leave to appeal, and the appeal itself, must therefore be dismissed. 35The appeal is accordingly dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 17 October 2014