This is an internal appeal, under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), by the landlord against a decision made in the Consumer and Commercial Division of the Tribunal on 22 September 2022 in relation to applications lodged by a landlord and a tenant.
The Notice of Appeal was completed by reference to a 14-page attachment in which many grounds of appeal were set out. However, the only issue raised is whether there was an error on a question of law as there was no indication that the appellant wished to raise any matter which requires leave to appeal.
Having considered the documents provided by the parties and their submissions, we have decided that the only error made was that an award of $1,000 in relation to a sliding back door was duplicated. As a result, the appeal should be allowed, and orders made to correct that error.
[2]
Background
On 22 September 2022 the Tribunal made order and published reasons for decision in relation to two applications for compensation, both based on the Residential Tenancies Act 2010: the landlord's application filed on 15 March 2022 (RT 22/11320), and the tenant's filed on 4 April 2022 (RT 22/14686).
The presiding member noted that: "Both parties filed a great deal of discombobulated evidence and submissions measured in centimetres rather than pages, all of which has taken a great deal of time to sort out." It is clear both applications were keenly contested, both at first instance and on appeal.
[3]
Scope and nature of internal appeals
Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: NCAT Act, s 80(2).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] listed of questions of law as:
1. Whether there has been a failure to provide proper reasons.
2. Whether the Tribunal identified the wrong issue or asked the wrong question.
3. Whether a wrong principle of law had been applied.
4. Whether there was a failure to afford procedural fairness.
5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations.
6. Whether the Tribunal took into account an irrelevant consideration.
7. Whether there was no evidence to support a finding of fact.
8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), at [13], the Appeal Panel said:
It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
[4]
Submissions and evidence
We have had regard to the oral submissions made during the hearing of the appeal and the following documents: (1) the Notice of Appeal and accompanying documents, (2) the landlord's submissions, received on 25 November 2022, (3) the tenant's submissions, received on 12 December 2022, and (4) the landlord's submissions in reply, received on 14 December 2022.
[5]
Notice of Appeal
Orders were made and reasons published on 22 September 2022. They were issued to the parties by email. The Notice of Appeal is dated 7 October 2022 and was received by the Tribunal on 13 October 2022. As a result, the appeal is outside the 14-day period specified in cl 25 of the Civil and Administrative Tribunal Rules 2014 with the result that it is necessary to consider whether to grant an extension of time for the lodgement of the Notice of Appeal.
[6]
Grounds of Appeal
In the Notice of Appeal, the landlord's grounds of appeal were expressed under the following headings:
1. difficult and protracted process added to the confusion,
2. errors have been made by the member,
3. the process was flawed,
4. unfair process,
5. as a consequence, I have suffered financially,
6. judgements have been made where the member failed to give consideration to the evidence, and
7. the member gave the tenant allowances that were not given to me.
[7]
Oral submissions
The landlord's submissions were made under two headings: (1) factual errors were made, and (2) the hearing was unfair. The submission of the tenant, and the landlord in reply, predominantly revisited the subject matter of the applications rather than whether there were errors in the challenged decision.
[8]
Consideration
As was indicated at the outset of the hearing, an appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing".
It is convenient to deal with the landlord's appeal by reference to the two headings under which her oral submissions were made, the first being that factual errors were made and the second that the hearing was unfair.
As to that suggestion that factual errors were made, an error on a question of law could, in view of what was said in Prendergast, only be established if the Tribunal failed to take into account a relevant consideration or took into account an irrelevant consideration, if there was no evidence to support a finding of fact, or if the decision was so unreasonable that no reasonable decision-maker could have reached that decision.
The landlord provided hundreds of pages of documents in support of her appeal and referred to the various claims in her written submissions. In accordance with what was said in Cominos, it has been necessary to consider whether those pages reveal an error on a question of law. That exercise only revealed one matter which warrants correction in this appeal.
In the reasons published on 22 September 2022, at [100], the tenant's claims were considered. That paragraph included the following words:
(7) Sliding back door increasingly hard to open until not opening, 31/3/21, not fixed, claims $1,000. This claim succeeds.
…
(12) Sliding back door not opening, 31/3/21, not fixed, claims $1,000. This item should have been fixed, and the claim succeeds.
Plainly, the amount awarded for that claim was duplicated. In terms of an error on a question of law, what was decided in [100] at (12) failed to consider that such a claim had already been allowed. Further, no reasonable decision-maker would have allowed the same claim twice.
In the summary at [103], it was indicated that the Tribunal considered the landlord to be entitled to an amount of $8,528 and the tenant to be entitled to an amount of $8,736, giving a net amount in favour of the tenant of $208. Had there been no duplication of the amount awarded for the tenant's claim in relation to the sliding back door, those amounts would have been $8,528 and $7,736 respectively, giving a net amount of $792 in favour of the landlord.
Accordingly, an order in favour of the landlord for $792 should replace the order in favour of the tenant for $208. If the landlord has already paid $208 to the tenant, in compliance with that order, the tenant will need to pay the landlord $1,000 to correct the error indicated above, being an error which the tenant sensibly conceded during the hearing of the appeal.
The second heading was that the hearing was unfair. That allegation was expressed in the grounds of appeal in a variety of ways: a difficult and protracted process added to the confusion, the process was flawed and unfair, and that the tenant was given "allowances" not given to the landlord.
Having considered more than 80 pages of transcript, covering all three hearings, we do not consider those claims to be justified.
The applications were unable to proceed on the first occasion as documents were not available and, on the second occasion, the hearing could not be completed on within the time allocated. Hence the need for three hearings. Both parties had claims they wished to be considered. There was a large volume of documents, the proceedings were keenly contested, and there were a considerable number of occasions where the landlord interrupted the presiding member. Each party was given ample opportunity to present their case.
A suggestion that the hearing process was unfair and that the tenant was given allowances not given to the landlord is, in effect, a claim that there was either actual bias or apprehended bias. There is nothing in the transcript that would suggest actual bias on the part of the presiding member: only an attempt to conduct a hearing where there are many documents, many claims, self-represented litigants who are not familiar with legal proceedings and, as was noted in the member's reasons: "There were many heated email exchanges between the parties indicating high emotion."
The test for apprehended bias is objective: "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson [2000] HCA 48 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; applied in many cases, including Michael Wilson & Partners Ltd v Nicholls [2011] 244 HCA 48 and Charisteas v Charisteas [2021] HCA 29.
Applying that test to the transcript does not reveal any basis for a claim of apprehended bias. What the transcript does reveal is a Tribunal member trying to deal with multiple claims by both parties, both keen to advance their case, within a limited allocation of time, in a hearing which involved interruptions and repetitions rather than brevity.
The landlord also complained the reasons did not deal with every matter raised, but there is no obligation for that to be done. The position was summarised as follows in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]:
[A] judge may, in dealing with large bodies of evidence, be forced to economise in expressions and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires a truncation of reference and expression. Judgement writing should not become a process that is oppressive and produces unnecessary prolixity. Not every piece of evidence must be referred to. That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed or resolved …
Given the multiplicity of claims and allegations, the published reasons are considered sufficient.
[9]
Extension of time
In the NCAT Act, s 41 provides that the Tribunal may grant an extension of time and the relevant considerations as to the exercise of the discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.
The landlord resides in Auckland which would appear to explain why a Notice of Appeal dated 7 October 2022 was not received until 13 October 2022. As the decision was published on 22 September 2022, the appeal should have been lodged by 6 October 2022, but 4 October 2022 was a public holiday.
Late lodgement of the Notice of Appeal does not appear to have caused any prejudice to the tenant, the required extension of time is not lengthy and the ground of appeal that has been made out is clear. It is preferable to decide this appeal on its merits rather than on what might be termed a technicality of time.
[10]
Amendment
In the NCAT Act, s 63 provides a power to correct an error in a decision and the reasons for that decision. As the Appeal Book contained a copy of the orders and reasons dated 22 September 2022, the hearing and reasons did not take into consideration that those orders and reasons were amended on 20 October 2022.
The reason for that amendment was that the original orders were made on the basis that the rental bond would be paid to the tenant, but the Tribunal member subsequently became aware that the rental bond had been paid to the landlord.
We note two arithmetic errors. First, in the original reasons, the total of the tenant's claims was said, at [103], to be $8,736 but the two preceding paragraphs suggest that amount should have been $8,536 ($8,000 plus $180 and $356). Secondly, in the amended reasons, also at [103], the difference between $8,528 and $8,536 should have been said to be $8 and not $16.
The position may be summarised by saying that the landlord was found to be entitled to be paid $8,528 and the tenant was found to be entitled to $8,536 with the net outcome being that the landlord should pay the tenant $8. Since the original orders were based on the mistaken belief that the $7,800 rental bond would be refunded to the tenant, the amended order should have been for the landlord to pay the tenant $7,808.
An alternative way to obtain the same result is to start with the landlord's entitlement to $8,528 and deduct $7,800 for her receipt of the rental bond, leaving a balance of $728. As the tenant is entitled to $8,536, the net outcome is $7,808 (ie $8,536 less $728) in favour of the tenant.
From an abundance of caution, after the hearing of the appeal, the Tribunal provided an opportunity for the parties to (1) confirm that the appeal should be based on the amended orders and reasons dated 20 October 2022, and (2) indicate whether any amount had been paid since either the original orders or the amended orders were made. To the extent that the emailed replies went beyond those two aspects and revisited matters raised during the hearing of the appeal, they have not been considered as we only sought clarification and not additional submissions.
As a result, this appeal has been determined by reference to the orders and reasons dated 20 October 2022 and the orders now made are based on no amount having been paid since either the original orders or the amended orders were made.
As this appeal has resulted in a finding that an amount of $1,000 was duplicated in amount awarded in respect of the tenant's claims, the effect of this appeal is that the landlord should be ordered to pay the tenant $6,808. It is noted that the parties have confirmed that no amount has been paid in response to either the original orders or the amended orders.
[11]
Orders
For the reasons set out above, the orders that will be made are as follows:
1. The time for lodging the Notice of Appeal is extended to 13 October 2022.
2. The appeal is allowed.
3. The orders made on 22 September 2022 and amended on 20 October 2022 are set aside.
4. In lieu thereof the following order is made.
5. The appellant (landlord) is to pay the respondent (tenant) $6,808 forthwith.
[12]
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
[13]
Amendments
02 February 2023 - Orders amended, see paragraphs 32 to 40
Catchwords updated
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Decision last updated: 02 February 2023