This is an application to reinstate an appeal under s 55(2) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act).
The appeal was dismissed by the Tribunal on 17 June 2017 pursuant to s55(1)(c) of the NCAT Act because the appellant failed to appear at the call over of her appeal.
[2]
History
The appellant was a landlord in respect of residential premises at Captains Flat in southern New South Wales. The respondent was her former tenant.
The appellant had commenced proceedings in the Consumer and Commercial Division being application RT 17/12692, seeking orders for compensation of $17,293.00 pursuant to s 107 of the Residential Tenancies Act, 2010 (RT Act) and an order for the payment of an occupation fee pursuant to s 132 of the RT Act in respect of goods left on the premises by the respondent.
On 12 April 2017, when the proceedings were listed before the Tribunal, the Tribunal made an order that the proceedings be transferred to the Bega Local Court of New South Wales. The transfer order was made pursuant to cl 6(1) of Sch4 of the NCAT Act. In short, the reason given by the Tribunal for making the transfer order was that the proceedings had been commenced in the Tribunal more than 3 months after the appellant had become aware of the breach to which a claim related and by reason of s190 of the RT Act and cl22(9) of the Residential Tenancies Regulation, 2010 the application was out of time. The Tribunal refused to extend time and in doing so said:
The applicant has been aware for almost 3 years that the premises were abandoned by the tenant in breach of the tenancy agreement. Under section 41 of the (NCAT Act) the Tribunal has power to extend time to file an application. This power is discretionary. The landlord's explanation for not filing much earlier was because she did not know where the tenant had moved to and she had been advised by the Tribunal that she could file the application any time. As the application has been filed 2 years and 11 months after the tenant vacated the premises, in effect the landlord is seeking an extension of 2 years and 8 months as the application should have been filed by approximately 18 July 2014.
Two years and 8 months is a substantial delay, and I am not satisfied that the reasons provided persuade me that discretion ought to be exercised to extend time for bringing the claim. The applicant strongly resisted a dismissal order. The applicant may still have rights against the tenant which could be within time if the matter had been filed in the Local Court. The Tribunal has informed the landlord that she ought to obtain advice in this regard to understand what her legal rights are against the tenant (if any) and if her claim is within time in another jurisdiction. The Tribunal cannot give advice on such matters. To preserve the filing date of this application, being 16 March 2017, I have considered it appropriate to transfer the proceedings to the Local Court rather than dismiss the application for being out of time. The applicant lives in bigger, NSW so sought the transfer to be to the Local Court at bigger, NSW the Tribunal notes that there is no claim on the rental bond which the Tribunal would deal with, as the landlord thought that nobody had been lodged at Rental Bond Services.
By notice of appeal filed 3 May 2017, the appellant appealed this decision. The appellant said her application should not have been transferred to the Local Court. Rather, she says that orders should be made in her favour being:
1. $17,293 for compensation because the respondent abandoned the premises; and
2. an order that the respondent pay an occupation fee in respect of goods left on the premises.
Under the heading "Grounds of Appeal", the appellant said she had been unable to find the respondent and had been told she could not commence proceedings in the Tribunal until she knew the respondents address. She asserts that she acted on the advice of the Tribunal and it was only a few months before her application was filed that she became aware she could commence the proceedings. She also said she did not have the funds to pursue the claim in the Local Court.
It is apparent from what the appellant has said that the tenant in fact vacated the premises some time prior to 27 June 2014, being the date on which the appellant says she relet the premises.
[3]
Submissions and hearing of the application
The Appeal Panel previously made directions for the parties to file and serve submissions in relation to the reinstatement application.
The application to reinstate the proceedings was heard on 13 July 2017. The appellant appeared by telephone. There was no appearance by the respondent nor did the respondent file written submissions.
The appellant provided written submissions in support of her application to reinstate the proceedings and made oral submissions at the hearing.
First, the appellant said she did not receive any call from the Tribunal on the day of the callover.
Secondly, the appellant said she had now been able to locate the respondent and had given her notice of this application at an address in Gordon in the Australian Capital Territory. Consequently, the respondent has been afforded an opportunity to appear at the hearing.
The Appeal Panel notes the appellant gave sworn evidence as to the circumstances in which she was able to locate the respondent's present whereabouts. She said she obtained the respondents addressed through a debt collection agency.
Based on the appellant's evidence, which was given on affirmation at the hearing, the Appeal Panel was satisfied the respondent had notice of the hearing and determined to proceed with the application in the absence of the respondent.
Thirdly, the appellant says that the Bega Local Court has refused to accept a transfer of proceedings. In this regard the appellant provided correspondence from the Local Court to corroborate this statement.
Fourthly, the appellant said that the proceedings were not out of time and that cl 22(9) did not operate in the present circumstances to impose a time-limit in respect of the application. The appellant said this was because this clause only applied to applications made under s190 of the RT Act. In the present case, her application was brought under s 107 of the RT Act, seeking an order for compensation for abandonment of the premises as well as an occupation fee for goods left on the premises by the tenant.
Fifthly, the appellant said that she was claiming $17,293 compensation in consequence of the alleged abandonment. It should be noted that during the hearing of the application for reinstatement, the appellant indicated she would consent to a condition being imposed that any claim for compensation be limited to $15,000 if the proceedings were reinstated.
[4]
Consideration
The Appeal Panel dismissed the appellant's appeal by order made 25 May 2017 pursuant to s55(1)(c) of the NCAT Act.
This occurred in circumstances where the appellant had been given leave to attend by telephone however the appellant did not answer the telephone calls when made by the Tribunal at the appointed time.
The application to reinstate was made in an email to the Tribunal dated 26 May 2017. In that email, the appellant said:
I am forwarding my Apologies in regards my matter that was listed for Call Over on Thursday, 25 May 2017 at 11:30 AM. I had been waiting in the morning by the phone for a call from NCAT Appeal; my phone did not ring. However I did receive 2 miss calls (messages) as I can only think that it went straight to voicemail. I have had some problems with the Mobile Tower before the Rural Bega Area after a lot of rain.
I would be further asking the Appeal Panel if I could try again by phone … or I would also like to ask if at all possible that I could ring at the allocated time….
Such an application must be made within 7 days from the date of the order for dismissal: see r 36 of the Civil and Administrative Tribunal Rules, 2014. The application to reinstate was made in time.
Subsequently, on 30 May 2017, the appellant sent further correspondence to the Tribunal indicating that she had been in communication with the Bega Local Court who had provided advice to the effect that "NCAT has no jurisdiction to transfer… to the Local Court".
Section 55(2) provides as follows:
The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers there is a reasonable explanation for that failure.
That is, if satisfied that there is a reasonable explanation for the failure to attend, the Tribunal has a discretion to reinstate the appeal.
A party seeking to appear by telephone has an obligation to ensure that the proposed telephone service will be reliable and available at the time the Tribunal places a call for the purpose of the hearing. Failure to provide a reliable telephone service and/or failing to be available at the appointed time may result in proceedings being dealt with in that party's absence.
In the present case, it is clear from the statements made by the appellant in her application for reinstatement that she was aware that the mobile telephone service which she had chosen to nominate on the day of the call over was an unreliable service. It is also clear that the appellant received two telephone calls from the Tribunal, both of which she says appeared as a "messages" on her telephone.
There was no suggestion that a landline telephone service could not have been provided. Indeed, when the application for reinstatement was heard, the appellant in fact appeared by telephone using a landline number.
Be that as it may, in the circumstances where the respondent did not appear and where the appellant subsequently made adequate arrangements to appear by telephone, the Appeal Panel is satisfied that there is a reasonable explanation for the appellant's failure to appear.
Notwithstanding there is an adequate explanation, the question is whether an order to reinstate the proceedings should be made as a matter of discretion.
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.
In the present case, the appeal is a challenge to an interlocutory decision to transfer the proceedings to the Local Court of New South Wales at Bega. That is, the appeal is against a decision in relation to "issues or activities, that arise or take place prior to proceedings being finally determined": Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [36]. Consequently leave to appeal is required.
The general principles applicable to the grant of leave are set out by the Appeal Panel in Collins v Urban [2014] NCWCATAP 17. At [80] the Appeal Panel said:
80 The general principles derived from these cases can be summarised as follows:
(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(2) 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,
BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
In the present case, the appeal raises two issues.
The first issue is whether the Tribunal was correct to make a transfer order having determined the appeal was out of time. It appears the appellant challenges the decision not to extend time. If so, leave will be required unless some error of law is established.
Otherwise, as the original application to the Tribunal was out of time, prima facie the application was incompetent and should be dismissed. In this case it may be appropriate to set aside the transfer order and make an order dismissing the application.
The second issue is whether, if time was extended, the Tribunal had power to transfer proceedings in circumstances where the amount claimed was in excess of the jurisdictional limit. Prima facie the Tribunal has jurisdiction to hear the dispute, its orders making power being limited to $15,000 only: see s187(4) RT Act and cl 23 of the RT Reg. If this is correct, and time was extended by the Appeal Panel, it may be appropriate to dismiss the appeal unless the appellant demonstrates the discretion to transfer miscarried or the appellant otherwise limits her claim.
On this second aspect, namely the value of her claim, the appellant also asserts she was not given a chance to make submissions at the original hearing on 12 April 2017. This is a matter which will need to be proved by providing a copy of the sound recording at the hearing of the appeal.
As can be seen from this analysis, there is an issue as to whether the transfer order was properly made in the present circumstances, whether the appeal should be allowed and the application dismissed or whether some other order should be made by the Appeal Panel. The appeal could not be described as hopeless, although the outcome may result in dismissal of the original application rather than its transfer to the Local Court. There are also matters of principle to be considered, namely whether the proceedings should have been dismissed because they were out of time and no extension was granted.
Finally, if the proceedings are ultimately dismissed, the appellant will be free to commence proceedings in the Local Court if those proceedings are brought in time and are otherwise within the jurisdiction of the Local Court.
Consequently, the Appeal Panel is satisfied that it is appropriate to exercise its discretion in favour of the appellant to reinstate these proceedings so these matters can be determined. In doing so, the Appeal Panel is not otherwise granting leave to appeal or extending any relevant time period. These are matters that will need to be determined at any final hearing.
[5]
Orders
In making an order to reinstate the proceedings, it is important that the proceedings be brought to the attention of the respondent so that she may participate in the proceedings if she wishes to do so. To facilitate this, directions should be made to relist the matter for call over including requiring the appellant to arrange for service upon the respondent of all relevant documents.
The Appeal Panel makes the following orders:
1. The appeal is reinstated.
2. The appeal is listed for callover on 3 August 2017 at 2:15pm.
3. On or before 28 July 2017 the appellant is to serve upon the respondent the following:
1. A copy of the notice of appeal;
2. A copy of the orders made by the Tribunal on 12 April 2017 and the reasons for that decision;
3. A copy of these reasons for decision and the orders of the Appeal Panel.
4. A copy of all directions previously made by the Appeal Panel.
5. A copy of any documents relied upon by the appellant in support of her appeal.
1. Service pursuant to order 3 is to be effected by the appellant or her agent delivering the above documents by hand to the respondent's residence and providing an statutory declaration which must confirm delivery and that the respondent lives at the address to which the documents are delivered.
[6]
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
[7]
Amendments
25 July 2017 - File number of decision corrected
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Decision last updated: 25 July 2017