Vincent v NSW Land and Housing Corporation

1. In her written submissions filed on 27 February 2025, the appellant also contended (for the first time) that there had been an error on a question of law, being whether there had been a failure to afford procedural fairness. Although the appellant had neither sought nor obtained leave to amend her grounds of appeal, we have nonetheless considered this additional ground. We are satisfied that there is no prejudice to the respondent in us doing so in circumstances where the ground involves the same circumstances as the first leave ground identified in the Notice of Appeal, and where the respondent had an opportunity to make oral submissions in relation to this ground at the hearing of the appeal.
2. For the following reasons, we have determined that neither of the first two grounds have been made out, with the result that there is no basis upon which leave to appeal could be granted. Further, there was no error on a question of law as there was no failure to afford procedural fairness. Accordingly, we are dismissing the appeal.

1. Internal appeals may be made either as of right on a question of law, or with leave (that is, the permission) of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). What constitutes a question of law has recently been considered in a number of Appeal Panel decisions including Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204, Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 and Impala Kitchens Pty Ltd v O'Donoghue [2025] NSWCATAP 49. Applying the principles set out in those decisions, we are satisfied that the third ground of appeal (that is, whether there was a failure to afford procedural fairness) involves an error on a question of law for which leave to appeal is not required.
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 to the NCAT Act.
3. 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).

1. In Collins v Urban [2014] NSWCATAP 17 (Collins), 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.

1. Even if an appellant from a decision of the Consumer and Commercial Division satisfies cl 12(1) of Sch 4, the Appeal Panel must still consider whether to exercise its discretion to grant leave to appeal under s 80(2)(b).
2. In Collins, at [84], the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy

which might have general application; or

(c) 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;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) 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.

1. The Notice of Appeal was lodged with the Tribunal's Penrith Registry on 14 November 2024 and was received by the Appeal Panel Registry on 18 November 2024. Thus, the appeal in respect of both the substantive decision and the set aside decision was lodged outside the 14-day time period specified in r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). Accordingly, an extension of time is required.
2. Section 41 of the NCAT Act empowers the Tribunal to grant an extension of time. The respondent has consented to such an order being made. In such circumstances, and as the Notice of Appeal was lodged only one day later than the due date for the lodgement of the appeal against the set aside decision, we have decided to extend time for lodgement of the appeal in relation to both the substantive decision and the set aside decision.

1. The parties entered into a social housing tenancy agreement in May 2023 in respect of premises in Dubbo, New South Wales.
2. In March 2024 the tenant was charged with a range of offences including offences relating to the supply of prohibited drugs.
3. On 5 April 2024 the landlord (the respondent in this appeal) commenced proceedings in the Tribunal's Consumer and Commercial Division seeking termination of the tenancy under s 91 of the RTA, on the ground of unlawful use of the premises.
4. On 10 July 2024 the matter came before the Tribunal and directions were made for the parties to file and serve the documents on which they intended to rely at the hearing. The due date for the appellant's materials was 11 September 2024.
5. No documents were filed by or on behalf of the appellant either by the due date, or at any time prior to the hearing on 3 October 2024.
6. On 3 October 2024 the matter came before the Tribunal for a final hearing. Neither the appellant, nor her legal representative Mr Teerman, attended the hearing. The transcript of the hearing reveals that the Tribunal member noted that there was no application before the Tribunal for an adjournment, that the Tribunal was satisfied that the appellant had received notice of the hearing, and that the Tribunal member proceeded to hear and determine the application in the appellant's absence.
7. The Tribunal found in favour of the respondent and gave oral reasons for its decision. It made orders under s 91 of the RTA terminating the tenancy, and suspended the date for the tenant to provide vacant possession of the premises to 10 October 2024. In reaching its decision the Tribunal had regard to s 154D(3) and s 154E of the RTA.
8. On 9 October 2024 the appellant lodged an application to set aside the substantive decision.
9. On 10 October 2024 the Tribunal made directions for the parties to exchange documents in relation to the set aside application. No documents were filed by or on behalf of the appellant.
10. On 30 October 2024 the set aside application was dismissed by the Tribunal.
11. The appellant's Notice of Appeal, together with an application to stay the Tribunal's orders, were filed on 14 November 2024 in the Tribunal's Penrith registry.
12. On 29 November 2024 the application for a stay was dismissed by the Appeal Panel.
13. On 28 February 2025 a second stay application was dismissed by consent.
14. The respondent obtained a warrant for possession and on 10 February 2025 the warrant was enforced.
15. As at the date of the hearing of the appeal, some of the tenant's possessions and pets remained at the premises.
16. The respondent agreed to extend the time for the appellant to collect her possessions from the premises until 21 March 2025 (the Friday after the appeal hearing).

1. The written submissions for the appellant went beyond what was set out in the Notice of Appeal by changing the ground that the decision was not fair and equitable (a ground which requires leave) to an allegation that there was an error on a question of law, being whether there had been a failure to afford procedural fairness (a ground which does not require leave).
2. After setting out the circumstances of the appellant, the written submissions raised two grounds of appeal. The first was headed "Appeal Ground 1 (Error of law - Denial of procedural fairness)" but the first sentence under that hearing submitted that the decision (which we understand to be a reference to the 3 October 2024 decision) _"_was not fair and equitable in circumstances where procedural fairness was diminished".
3. It was asserted that the appellant's solicitor was present on the telephone but could not be heard _"_whilst driving and inbound to NCAT in Sydney". The Notice of Appeal refers to "unforeseen tech issues on the day". Further, the appellant submitted that:

Without representation it is demonstrably clear [the appellant] whilst not possessing adequate understanding of the proceedings, was unable to appreciate the underpinning functionality of NCAT procedure(s); requirement(s) thereof; and therefore, remained acutely unaware of the legal elements of the matter at hearing and or the gravity of the situation and therefore was injured because of the denial of procedural fairness being tantamount to an error of law.

1. Reference was made to the 13 criminal charges which the appellant was facing in the Local Court at the time of the 3 October 2024 hearing. It is noted that the appellant had legal representation in relation to those charges. It was contended that the appellant was unable to deal with both those charges and the Tribunal proceedings and also, that the appellant was deprived of the opportunity to present evidence that could have resulted in a different outcome on 3 October 2024.
2. In relation to the second ground of appeal, which was that significant new evidence was now available that was not reasonably available at the time of the hearing, leave was sought to rely on nine additional documents.
3. It was contended that certain of those documents constituted "New medical evidence_"_ relevant to s 154D(3)(b) of the RTA. Under the heading "Significant New Evidence (Criminal Case Evidence)", it was suggested that the respondent "refused to accept that [the appellant] could be innocent of any wrongdoing" and reference was made to the "Agreed Facts" (which contained an admission of wrongdoing). Reference was also made to annexures A and B in a sworn statement of Rebecca Williams, but those documents were not included in the appellant's documents. There was also reference to s 154E of the RTA.
4. The appellant submitted that leave to appeal ought to be granted because the matter involves a question of public importance and because the appellant lives with a disability.
5. In oral submissions, the appellant's solicitor repeated the explanation given in written submissions for his non-attendance at the hearing on 3 October 2024. He also said that prior to that hearing he had sought the respondent's agreement to stay the proceedings due to the pending criminal charges, which request was said to have been refused. The appellant's solicitor conceded that no application to stay the first instance proceedings was made to the Tribunal and that, with the benefit of hindsight, this should have been done. He said that matters relevant to ss 154D and 154E of the RTA could not be properly taken into consideration and that it was difficult to obtain instructions. He conceded that no adjournment of the hearing had been sought.
6. As to the fresh evidence issue, the appellant's solicitor accepted that there was evidence dated prior to the hearing that was new to him. Reference was made to the documents which were said to be relevant to s 154D of the RTA. He contended that the execution of the warrant for possession was premature and that the appellant had a disability which fell within s 154D(3)(b) of the RTA.

1. Written submissions which accompanied the Reply to Appeal set out the relevant history and the applicable legal principles. It was noted that the appellant's case appeared to be that the first instance decision was not fair and equitable because (1) her legal representative was unable to appear at the hearing, (2) the appellant had a disability under the Anti-Discrimination Act 1977 (NSW) (the ADA), (3) the proceedings should have been adjourned until the criminal proceedings were finalised, and (4) the appellant was deprived of the possibility of presenting evidence. A response to each of those matters was provided.
2. In written submissions dated 6 December 2024 it was noted that the appellant sought to rely on what was said to be significant new evidence but had not yet either indicated what that evidence was or provided copies of that evidence.
3. The respondent's submissions note that there was no appearance by or for the appellant at the hearing on 3 October 2024, and that no explanation for that non-attendance was available to the presiding member. Further, the respondent notes that the appellant did not submit any documents in relation to either the substantive application or the set aside application. The respondent's case was that there had been no denial of procedural fairness and that there had not been any substantial miscarriage of justice.
4. Additional matters raised in the respondent's oral submissions were (1) there was no explanation for the failure of the appellant to appear at the 3 October 2024 hearing, (2) it had been open to the appellant to apply for that hearing to be stayed, (3) there was ample opportunity for the appellant to file evidence in relation to both the substantive application and the set aside application, (4) it was not until 27 February 2025 that documents were belatedly provided for the appellant in the appeal, (5) a consent order finalised the stay application on 28 February 2025, (6) the documents now provided by the appellant could and should have been provided prior to the 3 October 2024 hearing, (7) the presiding member considered s 154D but that issue required evidence from the appellant, (8) a warrant for possession has already been executed, (9) the time for the removal of the appellant's possessions and pets had been extended to Friday 21 February 2025.
5. The respondent's case was summarised by submissions that (1) the appellant had been afforded procedural fairness in relation to both the substantive decision and the set aside decision, (2) the appellant had failed to provide evidence prior to the Tribunal making either of those decisions, (3) there had not been a substantial miscarriage of justice, (4) weighing up the circumstances of this case suggested it was not in the interests of justice to allow this appeal, and (5) the respondent was entitled to finality, consistent with the Tribunal's guiding principle of the just, quick and cheap resolution of the real issues in the proceedings.
6. The respondent's written submissions attach a typed transcript of the hearing, which was said to have lasted for approximately 24 minutes.

1. Oral submissions in reply for the appellant began by saying that it was difficult to assess the issue raised by s 154D of the RTA because there was no evidence for the appellant. It was contended that this appeal raised an issue of public importance because the appellant was a vulnerable indigenous person, in the middle of a housing crisis. Further, that the appellant, on instructions, agreed to plead guilty to two charges, for expediency, and that it "feels like" those charges could not be proved beyond reasonable doubt. A submission was made that there was no consideration of s 91 of the RTA.

1. Section 91 of the RTA is in the following terms:

(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) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or

(b) the use of the residential premises for any other unlawful purpose and that use if sufficient to justify the termination.

(2) In considering whether to make a termination order on the ground specified in subsection (1)(b), the Tribunal may consider (but is not limited to considering) the following-

(a) the nature of the unlawful use,

(b) any previous unlawful uses,

(c) the previous history of the tenancy.

(3) The termination order may specify that the order for possession takes effect immediately.

(4) A landlord may make an application under this section without giving the tenant a termination notice.

(5) The Tribunal may make a termination order under this section that takes effect before the end of a fixed term if the residential tenancy is a fixed term agreement.

1. Section 154D of the RTA, so far as is relevant to these proceedings, may be summarised as follows. Subsection (1)(b) provides that the Tribunal must make a termination order if satisfied that s 91(1)(a) has been satisfied. However, subsection (3)(b) relaxes that requirement by providing that subsection (1) does not apply:

if the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered by ... a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977 who is occupying or jointly occupying the social housing premises ...

1. Section 154E, which applies to social housing tenancies, provides as follows:

(1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following -

(a) the effect the tenancy has had on neighbouring residents or other persons,

(b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated,

(c) the landlord's responsibility to its other tenants,

(d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord,

(e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal.

(2) This section does not limit any other matter that may be considered by the Tribunal under this Act.

1. Clause 12(2) of Sch 4 to the NCAT Act, so far as is presently relevant, provides as follows:

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 ...

(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.

1. Since that provision contains the words _"_may only be made" (emphasis added), we are of the view that cl 12(2)(b) only operates to preclude an appeal on grounds other than on a question of law in circumstances where a warrant for possession was executed before the appeal proceedings were commenced. Neither party contended otherwise.
2. In this instance the warrant for possession was executed on 10 February 2025, which is more than two months after the Notice of Appeal was lodged, and therefore cl 12(2)(b) does not apply in these proceedings.
3. We also note that there is authority for the proposition that execution of a warrant for possession prior to the lodgement of an appeal does not, of itself, deprive the Appeal Panel from having the power to set aside the original orders for termination and possession: Hopkins v NSW Land and Housing Corporation [2024] NSWCATAP 198 (Hopkins). Applying the reasoning expounded in that decision, execution of a warrant for possession after lodgement of an appeal but before the hearing of the appeal, would equally not preclude the Appeal Panel from setting aside orders for termination and possession. However, whether such an order is to be made, even where the grounds of appeal have been made out, will depend upon whether, in the exercise of the Appeal Panel's discretion, it is appropriate to do so: Hopkins at [131].

1. At a call-over hearing on 29 November 2024, the appellant was directed to lodge the documents upon which she intended to rely at the hearing of the appeal by 20 December 2024. Those documents were not lodged until 27 February 2025.
2. In her written submissions filed on that date the appellant sought leave to file her documents out of time on the basis that it had been difficult for her representative to obtain instructions. We have serious reservations about this request given that it was not made until 27 February 2025 (ie some ten weeks after the documents were due), and because it was not accompanied by supporting evidence (such as an affidavit from the appellant's solicitor attesting to the efforts made to obtain instructions). Nonetheless, we have decided to allow the extension of time so that this appeal can be determined on the merits, and because, as the respondent was able to address the additional issues raised in those documents in oral submissions made at the appeal hearing, there was no prejudice to the respondent.

1. Although the Notice of Appeal purports to appeal against the set aside decision, none of the appellant's written or oral submissions were directed towards challenging that decision. The appellant did not identify any error on a question of law, or basis on which leave to appeal the set aside decision should be granted.
2. As noted above, no evidence or submissions were provided in response to the procedural directions made by the Tribunal below in relation to the set aside application. The reasons for dismissing that application, dated 30 October 2024, said:

By orders made on 10 October 2024, the respondent [now the appellant] was given an opportunity to provide "further written submissions and any evidence as to the circumstances as to why she could not attend the hearing and whether there is any evidence that would have changed the decision on 03 October 2024, and any submission from her solicitor that she claims was on the way to the hearing[,] to the New South Wales Land and Housing Corporation and the Tribunal by 18 October 2024". The respondent did not take up that opportunity.

Cases such as James v NSW Land and Housing Corporation [2020] NSWCATAP 64 and NSW Land and Housing Corporation v Simeon [2021] NSWSC 325 establish that a stay of a civil proceeding due to related criminal charges will be ordered where the interests of justice required such an order. However, a stay will not be ordered merely because related charges have been brought and criminal proceedings ar pending. It must be apparent that the applicant for a stay is at risk of prejudice in the conduct of the defence in the criminal trial. The competing prejudices to each party from refusing or making the order must be weighed.

The respondent has failed to identify any relevant prejudice, despite being given an opportunity to do so.

1. The appellant not only failed to explain either her non-attendance or that of her solicitor on 3 October 2024, but also failed to explain why the stay of the termination order that was made when the set aside application was lodged should be continued.
2. Having considered the reasons delivered when dismissing the set aside application, we are not satisfied that they reveal any error of law or any basis upon which leave to appeal against the set aside decision should be granted. To the extent that the appeal is made against the set aside decision, it is dismissed.

Was there a failure to afford procedural fairness?

1. This ground was not directed to any aspect of the hearing conducted on 3 October 2024 other than that the hearing proceeded in the absence of the appellant and her legal representative.
2. Procedural fairness requires that both parties have a reasonable opportunity to present their case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40]; Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343.
3. Section 38 of the NCAT Act sets out the procedure to be adopted by the Tribunal. In particular, s 38(5) requires the Tribunal to take such measures as are reasonably practicable:

(a) to ensure the parties to the proceedings before it understand the nature of the proceedings, and

(b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

1. The Appeal Panel in Troy Hood trading as UR Place Landscape v Rutten [2016] NSWCATAP 250 at [5] stated the following in relation to procedural fairness:

It is not in every case where a Tribunal has determined a matter in the absence of a party that there will be a breach of procedural fairness. Where notice of a hearing has been given, it will be necessary for an appellant to demonstrate that through no contumelious, dilatory or careless conduct, he or she was nevertheless unable to be present at the hearing....

1. In Waters v Waghorn [2016] NSWCATAP 247 at [27] -[34], [36] the Appeal Panel also considered whether absence of a party will be a breach of procedural fairness and said at [27]:

The Tribunal has a duty 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 Act. The Tribunal is subject to the rules of natural justice: s 38(2) of the Act. Nevertheless, it will not be in every case where proceedings were heard in the absence of a party, that there will have been a breach of procedural fairness. Rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) applies to proceedings in the Consumer and Commercial Division (and this was such a proceeding) and provides, in effect, that the Tribunal may hear and determine proceedings in the absence of a party who has failed to attend a hearing, if the Tribunal is satisfied that notice of the hearing was duly served or duly attempted to be served on the party. Clause 9 of the Civil and Administrative Tribunal Regulations 2013 (NSW) provides that the Tribunal may set aside a decision of the Tribunal that was made in the absence of a party, if the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put. Due to the existence of these rules and regulations, in the usual case, a party will not be denied procedural fairness merely because the proceedings were determined adversely to them in their absence.

1. In this matter although neither the appellant nor her representative were present at the hearing, we are not satisfied that the appellant was denied procedural fairness for the reasons that follow.
2. There is nothing in the factual circumstances of this appeal to indicate that the Tribunal member was in error in finding that the appellant had notice of the hearing. This is confirmed by the Notice of Appeal and the appellant's oral and written submissions which make it plain that Mr Teerman was aware of the time and place of the hearing.
3. Although an explanation for the appellant's legal representative's failure to attend has been provided, no evidence in support of that explanation was submitted to the Appeal Panel. The only material we have in relation to this issue is what was included in the Notice of Appeal and in the appellant's written and oral submissions.
4. That explanation is lacking in detail and unpersuasive. Mr Teerman says that he was present on the call but "could not be heard", and that he was "waiting patiently to mention the matter whilst driving and inbound to NCAT in Sydney". He says he encountered "unforeseen tech issues" which he raised with the registry staff when he arrived at the registry. He also says his concerns were noted by staff at Murra Mia Western and by a Senior Manager at the Aboriginal Resource Unit during two separate calls that Mr Teerman made "shortly thereafter". Mr Teerman has not provided witness statements from the persons he says he spoke to at Murra Mia Western or at the Aboriginal Resource Unit, and has not provided the details of those conversations. He has not specified the name or names of the personnel he spoke to at the Tribunal's registry, nor the time of those discussions. He also has not explained the nature of the technical difficulties he experienced, what actually happened when he dialled into the hearing, what steps he took to address those difficulties, or what steps he took to notify the Tribunal or the respondent of those technical difficulties. The transcript of the hearing records that the hearing took 24 minutes. There is nothing to suggest that Mr Teerman attempted to contact the Tribunal registry during that time to alert the Tribunal that he was experiencing technical issues.
5. In addition, Mr Teerman says he was "driving and inbound to NCAT" at the time of the hearing, which suggests he was intending to attend the hearing in person. We do not have any evidence before us (such as a copy of the notice of hearing) to indicate whether the appellant was required to attend the hearing virtually or in-person. If the latter, Mr Teerman has provided no explanation as to why he was running late. Moreover, if he was in fact running late for an in-person hearing, he could and should have rung the Tribunal in advance of the hearing to advise the registry that this was the case. There is nothing to suggest he did.
6. In short, if Mr Teernan was running late or experiencing technical difficulties, it was incumbent on him to be proactive to protect his client's interests. Such measures included contacting the Tribunal registry immediately, at or prior to the time of the hearing, to inform the Tribunal of such issues, rather than wait until he had arrived at the Tribunal registry sometime later: see for example Merrick v Hines [2021] NSWCATAP 108 at [33] - [34]. There was nothing in Mr Teerman's oral or written submissions which suggested that such proactive steps were taken by Mr Teerman at the time of or prior to the hearing.
7. In addition, regardless of Mr Teerman's ability to attend the hearing, there has been no explanation at all for the absence of the appellant herself.
8. In this regard the appellant submitted, somewhat opaquely:

Without representation it is demonstrably clear that [the appellant] was not possessing adequate understanding of the proceedings, was unable to appreciate the underpinning functionality of NCAT procedure(s); requirement(s) thereof; and therefore, remained acutely unaware of the legal elements of the matter at hearing and or the gravity of the situation and therefore was injured because of the denial of procedural fairness being tantamount with an error of law.

1. The submission that the appellant was unrepresented is patently incorrect. Mr Teerman was, according to his own submission, on his way to the hearing to represent the appellant. There is also ample material before us which confirms that the appellant had been legally represented for some time prior to the 3 October 2024 hearing, including an order made by the Tribunal on 10 July 2024 granting both parties leave to be legally represented, Mr Teerman's submission that he had, some time prior to the 3 October hearing, sought the respondent's consent to a stay of the proceedings, and the transcript of the hearing in which the respondent's representative made reference to the appellant being represented by Mr Teerman. It is also noted that the appellant was legally represented in relation to the related criminal charges.
2. The appellant was either aware or should have been made aware by her legal representatives that the application carried the prospect of eviction from her home. In any event, the submission that she did not understand the gravity of the situation, which is difficult to accept (and not supported by evidence), does not explain her absence from the hearing.
3. We would add that the appellant was provided with the opportunity not only to attend the hearing but to provide documentary submissions and evidence in response to the claims made by the respondent. In this regard, as mentioned earlier in these reasons, directions were made for the exchange of evidence and submissions. The due date for the appellant's submissions was 11 September 2024. The appellant did not comply with those directions. No documents were lodged by or on behalf of the appellant. If more time was required, it was open to the appellant's solicitor to request an extension of time for the lodgement of documents, or to seek an adjournment or a stay of the proceedings. However, none of these things occurred and no reason has been proffered for those failures.
4. For all of these reasons we are not satisfied that the appellant was denied a reasonable opportunity to be heard and to have her evidence and submissions considered in the proceedings. The fact that she did not take up the opportunity afforded to her does not amount to a failure by the Tribunal to afford procedural fairness. For the same reasons there is also no basis for the assertion that the decision was not fair and equitable.
5. A number of the appellant's submissions were directed to how the outcome might have been different had she been present at the hearing and put her case. However, as we are not satisfied that there was a failure to afford procedural fairness, it is not necessary to address those additional submissions.

1. The tenant refers to nine documents relevant to this ground of appeal. They are:

(1) The orders made in this appeal on 29 November 2024.

(2) A copy of the 13 charges laid by the police on 7 March 2024 which required her attendance at the Dubbo Local Court on 8 March 2024, being charges based on matters said to have occurred between 6 June 2023 and 7 March 2024.

(3) A document headed "Agreed Facts" dated 16 April 2024.

(4) A Magistrates Early Referral Into Treatment (MERIT) report dated 1 July 2024.

(5) A forensic mental health report dated 12 April 2024, which was the result of a referral from a Legal Aid solicitor and an Aboriginal Legal Services Solicitor.

(6) A discharge summary dated 17 May 2023, issued by Dubbo Hospital's Mental Health Unit.

(7) A letter dated 25 January 2025 relating to the warrant for possession.

(8) The Tribunal's order dated 23 January 2025.

(9) The Local Court document dated 9 January 2025, headed "Advice of Result".

1. The relevant principles were recently enunciated by the Appeal Panel in The Owners-Strata Plan No 53865 v JPG Investments Pty Ltd [2024] NSWCATAP 12 (JPG Investments) as follows:

167. An appellant does not have an unfettered right to adduce fresh evidence about events that have occurred subsequent to the hearing. As the Appeal Panel stated in Chapman v McLaughlin [2016] NSWCATAP 212 at [37]:

... The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.'

168. The ability to adduce fresh evidence arises in the context of the Tribunal's powers to grant leave to appeal under cl. 12 of sch 4 of the NCAT Act. In that statutory context, the Tribunal must be satisfied that the appellant suffered a "substantial miscarriage of justice" in the sense there was a "significant possibility" or "a chance that was fairly open" that a different and more favourable result would have occurred if the fresh evidence of Mr Clee had been before the Tribunal at first instance (Collins v Urban at [76]-[79]).

169. Further, the "concept of substantial miscarriage of justice refers to the failure in the way a matter was conducted or decided that which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred" (Collins v Urban at [71]). The concept focuses upon the manner in which the hearing was conducted or decided, not fresh events that have occurred since the date of the Tribunal hearing.

170. The purported new evidence must not only be "significant," but it must also be evidence that was unavailable at the date of the hearing in the sense that "no person could reasonably have obtained the evidence" (Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]).

1. Of those nine documents, documents (1) and (8) are copies of orders made by the Tribunal and document (7) is a letter from the Tribunal referring to the warrant for possession. It is not apparent why those documents are "significant" or might have led to a different or more favourable result.
2. Documents (2), (3), (4), (5) and (6) all pre-date the 3 October 2024 hearing. Mr Teerman says they were not available to him prior to the hearing, but that is not the test. As explained in JPG Investments, citing Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23], the test is whether the evidence was unavailable at the date of the hearing in the sense that "no person could reasonably have obtained the evidence". There is no basis for such a finding, particularly as it appears that the first four of those documents were prepared for use in the criminal proceedings in the Dubbo Local Court, and the discharge summary was dated 17 May 2023 which is more than 17 months prior to the 3 October 2024 hearing.
3. We accept that document (9), which indicates the outcome of the Local Court proceedings, is new evidence as it post-dates the hearing. It records that the tenant was convicted and sentenced in respect of two offences, one of which was "supply prohibited drug > small & (1) The time for lodging the Notice of Appeal is extended to 18 November 2024.

(2) Appeal 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.