Issue 4: Whether the appellant's representative was able to consent to orders and bind the appellant by that consent
- The short answer to this issue is yes. When a person is given leave to represent a party, that person can speak on behalf of the party and has the authority to make decisions on behalf of the party.
- This was made clear to the appellant when she wrote to the Tribunal before the 20 July hearing, and the Tribunal twice sent her a link to the webpage for representation. The appellant then refined her request for Mr Story to represent her after receiving, and apparently opening and reading, that webpage: page 2 of her submissions. The webpage included information that "your representative has authority to make decisions on your behalf and in your absence" and "If NCAT does not permit you to have a representative, they can still provide help or advice to you on an informal basis as a support person". That is, if she preferred to present her own case and have Mr Story with her solely as a support person, that option was available to her. She chose the representation option.
- In that case, Mr Story was able to consent on her behalf. The following extract from the transcript, from page 93 of the respondent's evidence:
Blaney: So Member are we able to agree on a date and time for the tile insulation?
Member: Well, you don't have, uh, you don't have an indication of when that would be done can be done, do you?
Blaney: We will work, off you know off what orders today, but we're looking at something in the next two weeks.
Member: Well, all I all I can, um, Mr Story is Miss Turnbull going to allow them in to lay the tiles or not?
Story: Um if that's your suggestion she'll follow it *
Member: Well I'm well, I'm what I'm saying is that we can come backwards and forwards here so many times, but in the interest of trying to move forward, that is my suggestion.
Story: Ok so that's what will be followed
Member: That's that's my suggestion and that um
Story: Yea p that's what that that's what she'll do
…
Blaney: … can we have one [an agreement to lay tiles within three weeks] **
Story: Um I believe so, um yep I mean what's what's um, I'm assuming you've got a tiler lined up and whatever
Blaney: Yeap so our tiler can contact Rachel
Story: Yeap
Blaney: Yeap with the
Member: With at least 48 hours' notice
Blaney: Yeap with at least 48 hours' notice, yeap that's fine
Story: Yeap
-
- After typing up this part of the transcript, in her submissions on page 16, the appellant wrote "(this is completely not true nobody is allowed to put my health at risk like this. This is Rohan wanting to go home already because of the member's ridiculousness)". After typing up the part of the transcript marked ** above, the appellant submitted, on page 16 of her submissions "I did not give my consent to be poisoned by mould at 1:21 the member confirms that the rent rebate stays until the leak is fixed ec blah blah blah it's clear they're not fixing the leak."
- Mr Story's consent binds the appellant, and the Appeal Panel would not interfere with a consent order unless satisfied that there was fraud, duress, mistake, fresh evidence or the Tribunal lacked the power to make the consent order. As to whether the entry of the consent order was a denial of procedural fairness the following from Roney v NSW Land & Housing Corporation [2015] NSWCATAP 269 at [33] to [49] is relevant:
The Appeal Panel has recently considered the applicable principles on an application to set aside consent orders which terminated a residential tenancy on the basis that they were agreed to by the tenant in circumstances where he was acting under pressure or duress: Roney v NSW Land and Housing Corporation [2015] NSWCATAP 269, see particularly at [33]-[49]. In summary, and without citing all of the authorities referred to, the following principles may be extracted:
(1) Section 59 of the Civil and Administrative Tribunal Act 2012 gives the Tribunal power to make consent orders, including dismissing the proceedings, where the consent orders give effect to any agreed settlement reached by the parties which are signed by the parties.
(2) Grounds alleging that consent orders were entered into under pressure where the party ought to have been given an opportunity to be heard may raise questions of law, including:
(i) whether the party was denied procedural fairness or;
(ii) whether there was some procedural defect relating to the making of the consent orders in the circumstance of the case; or;
(iii) whether the Tribunal miscarried in the exercise of its discretion because it failed to consider a mandatory consideration; or
(iv) whether the Tribunal exceeded authority in making consent orders in the absence of a jurisdictional fact
(3) In exercising any discretion under s 59, the Tribunal must take into account the interests of any "vulnerable person" which includes a person who is "totally or partially representing himself or herself in proceedings because he or she is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled": Rule 37 Civil and Administrative Tribunal Rules 2014, and a failure to do so would be an error of law;
(4) The Tribunal may err in law by making consent orders in the mistaken belief that the settlement agreement was untainted by undue influence or other conduct or circumstances that may vitiate the consent. Arguably, the issue of whether there was an "agreed settlement" is a jurisdictional fact on which the discretion under s 59 (1) is necessarily based, and in making the orders, the Tribunal was by implication, making a finding which may have been erroneous or mistaken, depending on whether the underlying agreement can properly be challenged.
(5) A party who seeks to set aside an agreement (or consent orders) must provide evidence of the facts which support that ground.
(6) The grounds for setting aside consent orders are the same as those for setting aside the agreement on which it is based, for example, illegality, misrepresentation, nondisclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like: Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243-4. Such grounds can also include unconscionable conduct by the party which stands to receive the benefit of the agreement: Hobson v NSW Land and Housing Corporation [2015] NSWCATAP 222 at [11]- [14].
- The principles that the Appeal Panel applies when deciding whether to set aside a consent order were again outlined in McDonald v McDonald [2016] NSWCATAP 252 at [59]:
59. A review of the authorities dealing with when a consent order can be set aside can be found in the recent Appeal Panel cases of Prenc v Stojcevski [2016] NSWCATAP 244 at [43]-[45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]-[54]. From those cases, the following principles can be discerned (omitting authorities):
(1) At common law, a consent order may be set aside on the same basis as the underlying agreement may be set aside;
(2) Whether the agreement constituting the compromise can be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence and the like;
(3) In order to set aside a consent order on one of the above bases, it must be possible to point to some contumelious conduct on behalf of the respondent for instance:
(a) with respect to duress, it must be shown that illegitimate pressure was placed on the appellant such that there was no reasonable alternative but for her to submit;
(b) with respect to undue influence, not only must there be a source of power to deprive the other person of free and voluntary consent, but it must be shown that the agreement was the result of the actual influence;
(4) With respect to mistake:
(i) the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract;
(ii) a common mistake arises when the mistaken belief is held by both parties;
(iii) a unilateral mistake is where one party is mistaken but where there are no other vitiating circumstances, such as misleading or deceptive conduct, fraud or misrepresentation, a unilateral mistake will not generally constitute a basis for setting aside an agreement unless the mistake is a serious mistake in relation to a fundamental term of the agreement and the other party knew of, or contributed to, the mistake.
(5) With respect to other doctrines which may be applicable, such as unconscionable dealing, it must be shown that one party to the transaction was at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances that affect their ability to conserve their own interests, and the other party takes unconscientious advantage of the opportunity. It must be emphasised that the disadvantage must be "special" to disavow any suggestion that the principle applies whenever there is some inequality of bargaining power between the parties. What must be present is some disabling condition or circumstance which seriously affects the ability of the innocent party to make a judgment in their own interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.
(6) There may be other factors which arise such as non est factum which defence would arise in very limited circumstances to persons who, through circumstances such as blindness or illiteracy, are unable to have any understanding of the meaning of the document evidencing the agreement and who signed it in the belief it was radically different to what was in fact signed.
- The appellant has not satisfied the Appeal Panel that any of the circumstances which would empower the Appeal Panel to set aside the consent order have been established. Mr Story had the authority of the appellant to enter consent orders on her behalf and in this case he did so, and there was no irregularity in the consent order entered. This is particularly so in circumstances where the landlord can choose whatever flooring it wishes to lay in the rental premises; the consent order only concerns access and access is also something the tenant is required to give in certain circumstances pursuant to the Residential Tenancies Act and the residential tenancy agreement she has with the landlord.