Wootten v Godfrey

Wootten v Godfrey - [2019] NSWCATAP 255 - NSWCATAP 2019 case summary — Zoe

Procedural background to decision under appeal

At a conciliation conference on 2 November 2018, the parties failed to reach agreement. A differently constituted Tribunal to the Tribunal which made the decision under appeal listed the Application for hearing and set a timetable for the filing and serving of documents. In addition, the Tribunal directed the parties to prepare an index and a chronology and to paginate and place in a folder any documents on which they relied.
All parties attended the hearing on 9 January 2019, which was listed for three hours. For the purpose of that hearing, Mr Wootten submitted a document headed "summary of claim", listing 34 individual claims made in relation to alleged damage to the premises he claimed had been caused by the tenants (Summary of Claim). Not included in that document were two additional claims for alleged outstanding rental payments and water usage fees.
At the commencement of Day 1 of the hearing, the Tribunal Member invited Mr Wootten to elaborate on each claim listed in the Summary of Claim. At the end of the allocated hearing time, only 14 of the 34 claims had been addressed. The Tribunal Member adjourned the hearing to 19 February 2019 and advised that at the next hearing each party would be subject to a time limit in which to make further submissions and give further evidence. Mr Wootten would be allocated 90 minutes and the tenants 60 minutes.
At the commencement of Day 2 of the hearing, the Tribunal Member reminded Mr Wootten of his decision to impose a "strict time limit to finish your case". After noting that only 14 of the 34 items had been dealt with on the last occasion, the Tribunal Member observed: Part of the problem sir, is that your evidence was not put in as required by the directions. No numbered pages, I have no captioned photos - I've got nothing that summarises the claim.
Mr Wootten then requested the Tribunal Member to "remove yourself or dismiss yourself from this case". He submitted: Everything I've gone through so far, at the start, your sort of very offside. You seem very un... it should be unbiased. As I've been in sort of previous tribunals, you seem very biased towards the tenant, I'm sort of feeling the vibe.
The Tribunal Member declined to recuse himself and gave brief reasons: Alright, the landlord has made an application that I should disqualify myself on the basis of bias. I haven't handed down any decisions yet but I have made some observations to assist the parties. I do not regard that as being actual or perceived bias and I decline to remove myself from the case.
Mr Wootten again asked the Tribunal Member to recuse himself and stated that he intended to lodge an appeal. The Tribunal Member invited Mr Wootten to continue to participate in the hearing. Mr Wootten refused and repeated that he intended to lodge an appeal. The Tribunal Member stated: Okay, well your application will be dismissed. I'll publish reasons for that in due course, including the fact that when you were asked to go on and continue to present your case, you refused to do so.
Mr Wootten remained in the hearing room. Ten minutes after the hearing commenced, the Tribunal Member declared the hearing closed.

[4]

Background facts

To put in context the submissions made by the parties about the conduct of the Tribunal Member, it is necessary to set out some background facts.
Throughout the tenancy the premises were managed by Ray White Real Estate on behalf of Mr Wootten (the managing agent). On 26 September 2018, about two weeks after the tenants vacated the premises, the managing agent notified Mr Wootten of its intention to terminate its agreement with him, apparently because of a dispute over instructions issued in relation to the "bond claim". In its Reasons, the Tribunal summarised at [13]-[17] a series of emails tendered by Mr Wootten about that dispute. These reveal that Mr Wootten had instructed the managing agent, among other things, to make a claim for "vacate water", alleged damage to blinds and the garage roof and the cost of a termite inspection report. The managing agent replied that in its opinion, a claim could not be made for these items because: the claim for "vacate water" was out of time and the claim for damage to the garage roof could not be substantiated because of lack of evidence about the state of the garage roof at the commencement of the tenancy. With respect to the cost of obtaining an inspection report for suspected termite damage, the managing agent advised that there was no evidence that the timber alongside the premises at the end of the tenancy, which Mr Wootten suspected might have caused termite damage, had been left there by the tenants.
An issue of some significance in the proceedings was the reliability of the respective condition reports tendered by the parties. The RTA requires that a condition report relating to the condition of the premises must be completed by or on behalf of a landlord before or when the residential tenancy agreement is given to the tenant for signing: s 29(1). The tenant must complete and give one copy of the condition report to the landlord or the landlord's agent not later than 7 days after receiving it: s 29(3). At, or as soon as reasonably practicable after the termination of the residential tenancy agreement, the landlord or their agent and the tenant must complete the copy of the condition report retained by the landlord or the tenant, in the presence of the other party: s 29(4). A condition report signed by both parties is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report: s 30(1).
Mr Wootten tendered an unsigned copy of the condition report, apparently prepared by the managing agent. The version of the condition report tendered by the tenants included numerous entries they made about the state of the premises at the commencement of the tenancy. In addition, under the heading "Condition of premises at end of tenancy", that report contained a number of comments made by the managing agent. Further, that report bore the signatures of the managing agent and the tenants, dated 15 March 2017 and 21 March 2017 respectively. Neither party signed the report at the end of the tenancy.
The Tribunal rejected the version of the condition report tendered by Mr Wootten: Reasons at [37].
The managing agent conducted a final inspection of the property on 10 September 2019. The tenants claim they were not notified of that inspection. The managing agent sent an email to the tenants asking them to attend to a few matters. The tenants claim they completed those tasks to the satisfaction of the managing agent. Mr Wootten disagrees.

[5]

Submissions: actual and apprehended bias

Because there is considerable overlap in the submissions made by Mr Wootten about the claims of actual and apprehended bias, we deal with them together.
In support of his claim of actual and apprehended bias, Mr Wootten relies on the conduct of the Tribunal Member throughout the course of the hearing. He contends, in effect, that the Tribunal Member had, during the course of the hearing, revealed himself to being predisposed towards the tenants and against him to such an extent that the Tribunal Member approached the determination of the Application with a closed mind that was not open to persuasion. He claims that from the start of the hearing he felt the Tribunal Member was "off side" and throughout the hearing the Tribunal Member was "very rude, arrogant towards me about how I presented my case". He claims that the Tribunal Member appeared to be "very angry" and looked at him "with disgust". He asserts that, in contrast to other proceedings in which he has participated, the Tribunal Member was "rude and belittling". Mr Wootten states that he felt a "sense of dread" as he moved to make submissions about each new item, anticipating an attack by the Tribunal Member about the adequacy of the material he provided in support of the Application. He states that throughout the hearing he felt he was "fighting an uphill battle" and was "hitting his head against a wall".
In support of these claims, Mr Wootten relies on the transcript of the two-day hearing and, in particular, several exchanges which took place between himself and the Tribunal Member on Day 1. We consider these in greater detail below.
The tenants dispute the contention that the Tribunal Member was, or appeared to be, biased against Mr Wootten. They contend that, contrary to the claims made by Mr Wootten, the Tribunal Member was "very patient" and on a number of occasions prompted Mr Wootten to "direct him to evidence in support of the claimed item". The tenants assert that from the start of the hearing Mr Wootten demonstrated "contempt for the process" and made it clear that, if he was not successful, he would appeal.

[7]

Apprehended bias

In the contexts of courts, the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
In Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, in the context of a decision by a local council committee, Kiefel, Bell, Keane and Nettle JJ at [20], stated the test to be "whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made". Their Honours stated that this was largely a factual question "albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made". Their Honours commented at [22] that the application of the principle in Ebner to decision-makers other than judges "must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making".
In contrast to actual bias, the test of apprehended bias is objective. It involves possibilities (real and not remote) not probabilities. The question is not whether the decision-maker would not actually bring an impartial mind to the matter. The question is whether the fair-minded lay observer might reasonably apprehend that to be the case. While the observer assessing possible bias is not a lawyer and is not assumed to have a detailed knowledge of the law, nonetheless they are taken to be aware of the nature of the decision, the context in which it was made and to have knowledge of the circumstances leading to the decision: Isbester at [23].
In Isbester, Gageler J explained at [59] that the determination of an allegation of apprehended bias involves "three analytical steps": Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.
The question of whether the fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the matter is directed not to the correctness of the outcome, but to the apparent fairness of the process: VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [209]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [3].
Where, as here, the claim of apprehended bias relies on multiple instances of conduct, it is necessary to consider those instances both individually and cumulatively to determine whether they were capable of giving rise to a reasonable apprehension of bias: Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705 at [176]; Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [114].

[15]

Findings and conclusion

The transcript of the proceedings is the only reliable evidence to support the allegations made by Mr Wootten of actual and apprehended bias. No recording of the hearing before the Tribunal was in evidence. Mr Wootten's claim that throughout the hearing the Tribunal Member used a belittling and sarcastic tone of voice was contradicted by the tenants. Without more, that claim cannot be accepted.
Having examined the typescript of the record of hearing provided by Mr Wootten (which was the only form of transcript available), and giving particular attention to the extracts on which Mr Wootten relies, we are not satisfied that it supports the contention advanced by Mr Wootten that the Member's conduct throughout the hearing demonstrates that he was partial to the tenants and ill-disposed towards him and therefore not open to persuasion and unable to bring an impartial mind to the determination of the Application. Mr Wootten has failed to discharge the heavy onus to establish a claim of actual bias.
The more difficult question is whether the claim of apprehended bias is established. While the test and applicable principles are well settled, they can be difficult to apply. This case is no exception. The question to be posed is, when the transcript is considered in its entirety, giving particular regard to the extracts on which Mr Wootten relies, can it be concluded that a fair-minded lay observer with knowledge of the nature of the decision, the context in which it was made and the circumstances leading to that decision, might reasonably apprehend that the Tribunal Member might not bring an impartial mind to the determination of the merits of the Application or that his mind was not open to persuasion. The relevant enquiry is not whether the hypothetical fair-minded observer might have believed that the Tribunal Member might not have brought an impartial mind to the determination of the Application but rather whether they might have apprehended that to be the case.
Here the circumstances of which the observer is taken to be aware include the statutory context in which the Tribunal exercised its powers. These include the Tribunal's statutory obligation to afford each party procedural fairness (s 38(2) of the NCAT Act); to take such measures as are "reasonably practicable" to ensure that each party has a reasonable opportunity to be heard (s 38(5)(c) of the NCAT Act); and, to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in the proceedings (s 38(6)(a) of the NCAT Act). In addition, the observer is taken to know that in discharging its functions the Tribunal was required to have regard to the "guiding principle" - the facilitation of the just, quick, and cheap resolution of the real issues in the proceedings - together with the objects of the NCAT Act, which include the resolution of the real issues in proceedings justly, quickly, cheaply and with as little formality as possible: ss 36(1) and 3(d).
Day 2 of the hearing ran for about 10 minutes. It opened with the Tribunal Member reminding Mr Wootten of the time limit he announced would be applied at the close of Day 1. When the Tribunal Member invited Mr Wootten to put his case, Mr Wootten asked the Tribunal Member to recuse himself. The Tribunal Member declined that application. The Tribunal Member again invited Mr Wootten to put his case. Mr Wootten declined that invitation. The Tribunal Member then closed the hearing. In our view, the conduct of the Tribunal Member on that day was unremarkable and could not be said to be capable of giving rise to a reasonable apprehension of bias.
On Day 1 of the hearing, a number of the examples cited by Mr Wootten indicate, as he perceives, that the Tribunal Member was probably frustrated and annoyed by the manner in which Mr Wootten presented his case. Examples include, "Well, I don't care what you do with them, I'm only interested at the moment, with what happens between you and the tenant" (Claim 2); "I've only had 49 years as a Barrister and I know what courts expect of the behaviour of parties, including Barristers in those circumstances, and because I have a low tolerance, yes write it down, am I speaking slowly enough for you?" (Claim 2); "I am not sure why you believe that this whole tribunal and the hearing operates for your convenience whether you are right or wrong in law but you seem to have that view." (Claim 6); "[C]an you understand that the time I'm going to give you to go slowly and painfully through each of these items is now becoming more and more limited" (Claim 5).
The inescapable inference to be drawn from the transcript is that on occasion throughout Day 1 of the hearing the Tribunal Member was frustrated with and irritated by Mr Wootten's conduct in terms of attitude to the Tribunal and presentation of his case. The frustration and irritation appears in part to be the result of Mr Wootten's persistence with claims that the Tribunal Member considered lack a proper evidentiary foundation, in part the result of Mr Wootten's practice of repeating submissions that had been rejected by the Tribunal and in part the result of the apparent lack of organisation of Mr Wootten's case so that his large number of particulars of complaint could be presented and debated in the time frame set for hearing.
The three hours set for the initial hearing (Day 1) is within the range of standard practice for presenting a case such as the present, given the constraints of time and number of cases the Consumer and Commercial Division of the Tribunal hears and determines each year (which is about 100,000). Clear and standard directions had apparently been made for the form of presentation required and Mr Wootten's comments during the hearing indicated that he had a prior familiarity with Tribunal procedures. The material before us demonstrated that the Tribunal's directions had not been followed thoroughly. There was no clear linkage between a particular of complaint, the ingoing and outgoing statements about that particular in the condition report, the photographs said to complement what the ingoing and outgoing state was in respect of that particular of complaint, and what was said to be the cost of remediating the particular of complaint.
Part of the context for assessing the Tribunal Member's conduct is also the perception of the other participants in the hearing, being the former tenants. The tenants' written submissions on appeal said, among other matters, "The member on a number of occasions very patiently reminded the applicant of timeliness and time frames to complete. The applicant made it very clear from the outset that he would just appeal if not successful." The former tenants pointed to page references from the transcript referencing those comments.
We accept that the Tribunal Member's interactions with Mr Wootten were directed to the Tribunal Member attempting to perform his duty to act with procedural fairness in seeking to understand Mr Wootten's case and to test it with Mr Wootten. We also conclude that this was a difficult task given the absence of apparent organisation of the presentation of that case and given the non-compliance with directions which are designed to facilitate proper presentation of the case so that it can fairly and efficiently be understood.
Despite the context we have described, which appears to have generated the understandable frustration and irritation we have mentioned, such expression of frustration and irritation can give an unfortunate impression. While unfortunate, displays of this type will not generally amount to disqualifying bias: see for example, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 at [81]; Minister for Immigration & Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230 and Galea v Galea (1990) 19 NSWLR 263 at 279-80, 283. This is not to say that displays of impatience and irritation are never capable of give rise to a reasonable apprehension of bias. Rather, that it is a matter of degree and context.
In our view, assessed individually, none of the examples cited by Mr Wootten is capable of giving rise to a reasonable apprehension of bias. In reaching that conclusion we have assumed that the fair-minded lay observer is taken to appreciate that the Tribunal Member was entitled to ask questions of Mr Wootten and to explore with him what he considered to be the weaknesses in his case. In addition, we have assumed that the observer would not be so sensitive or suspicious of the Tribunal Member's conduct, so as to apprehend that occasional displays of impatience, irritation or frustration might indicate disqualifying bias on the Tribunal Member's part.
Do the examples cited by Mr Wootten, assessed cumulatively, together with the entirety of the transcript of the first day of the hearing give rise to a reasonable apprehension of bias? The issue is not whether the Tribunal Member's conduct fell short of the desirable standards but, rather, whether on the basis of that conduct, the fair-minded lay observer might reasonably apprehend that the Tribunal Member might not bring an impartial mind to the determination of the merits of the Application, or was not open to persuasion.
In our view, aspects of the Tribunal Member's conduct on Day 1 of the hearing might have left the fair-minded lay observer with "a vague sense of unease or disquiet" about the Tribunal Member's occasional displays of irritation and annoyance and some of his comments, such as those listed in [47] above. However, when taken in the overall context that we have described in [48]-[51] above, we are not persuaded that the fair-minded lay observer might reasonably apprehend that the Tribunal Member might not bring an impartial mind to the determination of the merits of the Application.
Grounds 1 and 2 of are rejected.

[17]

Conclusion

On Day 1 of the hearing, at the invitation of the Tribunal Member, Mr Wootten elaborated on each of the first 14 of the 34 claims listed in the Summary of Claim. As the tenants contend, there was considerable repetition in the exchanges between the Tribunal Member and Mr Wootten. For example, on several occasions, the Tribunal Member pointed out that, in the absence of reliable evidence to the contrary, the RTA required that he presume that the version of the condition report tendered by the tenants was a correct statement of the state of repair or general condition of the premises on the day at the commencement of the tenancy: s 30(1) of the RTA.
A difficulty confronting the Tribunal Member was that the Summary of Claim did not cross-reference the photographs on which Mr Wootten relied as evidence of the state of the premises. Those photographs in turn were not captioned and too small in size to be viewed by the Tribunal Member, and did not in any event appear in many cases to enable or facilitate a direct comparison between the incoming and outgoing conditions. In those circumstances, and when the landlord bears the onus of establishing an entitlement to take what is otherwise the tenant's property (the bond money) and to establish a claim for compensation, the Tribunal Member's conduct in questioning Mr Wootten about aspects of his claim, in our view was not only permissible but also necessary to discharge the statutory obligation to take such steps as reasonably practicable to ensure Mr Wootten had a reasonable opportunity to be heard and to ensure that all relevant material was disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue: ss 38(5)(c) and 38(6)(a) of the NCAT Act.
The Tribunal's decision to impose a time limit on Day 2 was permitted by s 38(6)(c) of the NCAT Act, which provides that the Tribunal may in the case of a hearing "require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases". In determining the amount of time "reasonably necessary for the fair and adequate presentation" for the balance of Mr Wootten's claims, the Tribunal was required to have regard, not only to the obligation to ensure that Mr Wootten had a reasonable opportunity to be heard (s 38(5)(c) of the NCAT Act), but also to the requirement to seek to give effect to the "guiding principle" of the NCAT Act - to facilitate the just, quick, and cheap resolution of the real issues in the proceedings (s 36(1) of the NCAT Act). In addition, the Tribunal was required to facilitate the resolution of those issues in such a way that the "cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings" (s 36(4) of the NCAT Act).
The Tribunal's decision to exercise the discretion to impose a time limit in the circumstances was unremarkable and could not be said to amount to a failure to ensure that Mr Wootten had a reasonable opportunity to be heard. That Mr Wootten elected not to participate in Day 2 of the hearing after the Tribunal Member declined to recuse himself did not amount to a breach of the obligation to give Mr Wootten a reasonable obligation to be heard. The Tribunal was obliged to ensure that Mr Wootten had a reasonable opportunity to be heard. It was not required to ensure that he availed himself of that opportunity.
This ground of appeal is rejected.

[19]

Was the decision against the weight of evidence?

In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel at [77] commented on the meaning of the phrase "against the weight of evidence" in cl 12(b) of Sch 4 of the NCAT Act: The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal Member could reach (citations omitted).
In these proceedings, Mr Wootten conceded that the decision made by the Tribunal in respect of the following claims were not against the weight of evidence: cigarette butts left on premises; missing tap padlock; damage to a stormwater pipe; damage to ensuite door; water wastage; damaged grass; damage to front door; damage to and staining of carpet [51]-[52]; missing door stops. (See Reasons [43]-[47], [50]-[53] for particulars of these claims.)
The following considerations are relevant to the assessment of whether the decision made by the Tribunal to dismiss the balance of claims made by Mr Wootten was against the weight of evidence: 1. The disparity between the evidence given by Mr Wootten about the state of the premises at the commencement of the tenancy and the condition report tendered by the tenants. 2. The conflicting evidence given by the parties about the state of the premises at the commencement of the tenancy. 3. The absence of any mention in the condition report of the garage. Mr Wootten claimed that the roof of the garage had been damaged as a result of the installation of a Foxtel dish. The tenants disputed that claim. 4. The conflicting evidence about the state of the premises at the end of the tenancy. Mr Wootten disputed many of the entries recorded by the managing agent in the condition report about the state of the premises at the end of the tenancy. 5. The absence of any independent evidence to support the respective claims made by the parties about the state of the premises at the end of the tenancy. 6. The conflicting evidence about whether the tenants had left the timber found alongside the house at the end of the tenancy, which Mr Wootten believed might have caused termite damage.
The above factors reveal the considerable conflict in the evidence about the state of the premises at both the commencement and the end of the tenancy. Added to the difficulties faced by Mr Wootten in establishing his claim was the rebuttable presumption, created by s 30 of the RTA, that a condition report signed by both the landlord and the tenant is presumed to be a correct statement of the state of repair or general condition of the residential premises on the day specified in that report.
Having regard to the above considerations, it could not reasonably be contended that the evidence in its totality weighs so strongly against the conclusion reached by the Tribunal - to dismiss all but the claim for outstanding rent - that a reasonable tribunal Member could not have reached the same conclusion.
Leave to appeal on this ground is refused.

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