YQM v Le

1. The appellant states that order 2 was not made by consent. He has provided a copy of his letter to the Tribunal which he states was sent on 2 April 2025 in which he requested written reasons for the above order pursuant to s62 of the Civil and Administrative Tribunal Act 2013 (the 'CAT' Act).
2. On 7 April 2025, in response to the appellant's request for reasons the Tribunal made the following order and set out the reasons for making the order:

'I Leave is granted for the applicant YQM, and respondent Selena Le (also Known As Thi Ngoc Trang Le), to be represented

Reasons for decision:

The Tribunal has granted leave to all parties to be represented. This is not a direction that any party must be represented. It is permissive rather than mandatory.

The reason the Tribunal made such an order flowed from a perusal of the documents on file for the applicant.

They are voluminous and replete with citations of decided cases (including High Court of Australia authority) together with interpretation of several relevant statutes.

The main (but far from the only) submission relied on by YQM contains nearly 1000 paragraphs of what he probably imagines to be closely reasoned and irresistible legal argument.

It is more than possible that the effect of this kind of presentation in a relatively straight forward tenancy case will be to dazzle a less confident litigant with science. This could lead to the occurrence of a manifest injustice.

It should be noted that it is not contemplated that there would be any award of legal costs.

So in all the circumstances it is wise to enable the parties to be represented from this point forward to ensure that the possibility of a level playing field exists.'

1. The appellant challenges order 2 made on 31 March which was stated to be 'By consent' and order 1 made on 7 April, namely the orders made which granted the parties leave to be represented by a legal practitioner. While the 7 April order does not mention the right to be represented by a legal practitioner, we are of the view that the two orders when read together grant leave for legal representation.

'Procedural fairness violation: Orders regarding legal representation were made without notice, opportunity for submission, or consideration of filed objections.

Finding without evidence: Order marked "By consent" when no consent was sought or given.

Failure to apply statutory test: No consideration of section 45 NCAT Act presumption against representation.

Inadequate reasons: Reasons did not address specific questions raised in request for written reasons.

Non-compliance with Tribunal's own direction: Representation granted despite Respondent's failure to comply with Tribunal's explicit direction to apply for leave.'

1. Section 4 of the CAT Act defines an interlocutory decision as follows:

'interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following -

(h1) the granting of leave for a person to represent a party to proceedings,'

'Any internal appeal may be made -

(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel,'

Principles relevant to the grant of leave to appeal an interlocutory decision

1. The principles for the grant of leave to appeal an interlocutory decision were considered by an Appeal Panel in Champion Homes v Guirgis [2018] NSWCATAP 54. At [35] the Appeal Panel said:

As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following:

(1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 175; [1981] HCA 39;

(2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ;

(3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; [2000] 104 FCR 564;

(4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative;

(5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323;

(6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation [1988] FCA 398; (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 225-6;

(7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec);

(8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9;

(9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave.

1. The principles referred to in Collins v Urban [2014] NSWCATAP 17 at [84] are that:

'(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];'

'A party to proceedings in the Tribunal -

(a) has the carriage of the party's own case and is not entitled to be represented by any person, and

(b) may be represented by another person only if the Tribunal grants leave -

(i) for that person to represent the party, or

(ii) in the case of representation by an Australian legal practitioner - for a particular or any Australian legal practitioner to represent the party.'

1. Rule 32(1) of the Civil and Administrative Tribunal Rules 2014 states:

'In dealing with an application under section 45 of the Act for leave to be granted to a person (other than an Australian legal practitioner) to represent a party to proceedings, the Tribunal is to have regard to -

(a) such of the following circumstances as it considers are relevant to the proceedings -

(i) whether the proposed representative has sufficient knowledge of the issues in dispute to enable him or her to represent the applicant effectively before the Tribunal,

(ii) whether the proposed representative has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings,

(iii) whether the proposed representative is vested with sufficient authority to bind the party, and

(b) any other circumstances that it considers relevant.

1. The appellant submits that the relevant procedural history is that:

'On 19 February 2025, the Tribunal explicitly directed that Mr. Erdem, who was present at the hearing, apply for Leave to appear as legal representative by 3 March 2025.

Mr. Erdem did not make any such application by the deadline. I subsequently filed formal objections to legal representation in my submissions dated 12 March 2025, my main Bundle of Evidence filed 21 March 2025, and the Supplement to Bundle filed 24 March 2025.

At the hearing on 31 March 2025, the issue of legal representation was not raised by either party or the Tribunal. The hearing focused primarily on adjournment considerations, and no discussion regarding legal representation occurred.'

1. The first ground of appeal is based on a failure to provide procedural fairness because orders were made regarding legal representation without notice, opportunity for submission, or consideration of filed objections.
2. We reject this ground of appeal. While the order made on 31 March 2025 may have been made without notice or providing the appellant the opportunity to be heard, that was not the position in connection with the 7 April 2025 orders. That section of the appellant's Notice of Appeal titled 'Key Events and Objections' indicates that on:

(1) 12 March 2025 he filed a submission containing written objections to the respondent's request for legal representation;

(2) 21 March 2025 he filed a bundle of evidence containing a written objection to the respondents request for legal representation; and

(3) 24 March 2025 the appellant filed a supplemental bundle containing additional objections to the respondent's request for. legal representation.

1. On the appellant's own case he had at least three opportunities to make his position clear regarding the respondent's request for legal representation.
2. We are not satisfied that the appellant encountered a lack of procedural fairness in connection with the grant of legal representation. We will not grant leave to appeal based on Ground 1.
3. The second ground of appeal is there was a finding without evidence, namely that the 31 March 2025 order was marked "By consent" when no consent was sought or given. While it is most probably the case that order 1 which dealt with an adjournment was made by consent, the appellant contends that order 2, the legal representation order was not by consent. We are of the view that even if that is correct, the position was effectively corrected by the 7 April 2025 order which was not by consent, which re-iterated the grant of leave for representation and which was accompanied by reasons.
4. We are of the view that Ground 2 is not an appropriate basis for leave to appeal.
5. We have decided to treat the third and fourth grounds of appeal together as they both can be considered under the same heading, namely a failure to provide reasons. The third ground was a failure to apply the statutory test, namely that there was no consideration of s45 of the CAT Act, namely 'the presumption' against representation. The fourth ground was that the Tribunal Member's reasons did not address specific questions raised in the appellant's request for written reasons.
6. In Camilleri v Eastlake [2018] NSWCATAP 176 an appeal panel stated at [26]:

'It is correct that a failure to give reasons is an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration: Moloney v Collins [2011] NSWSC 628. The duty does not require a court or tribunal to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].'

1. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 the Court of Appeal considered, among other things, the obligations of a tribunal member to give reasons. At [66] - [67] the Court stated:

'In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal [1982] FCA 58; (1982) 40 ALR 233 at 255 (Bisley).

Whilst all decision makers, be they judges or tribunal members, should aspire to high quality decision making, an integral part of which is the formulation of clear reasons for decision (as Gleeson CJ explained extra-judicially in "Judicial Accountability" (1995) The Judicial Review 117 at 122), as Basten JA said in Resource Pacific at [48], "transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality." His Honour's identification of separate parameters of quantity and quality is, with respect, a useful one.'

1. We are of the view that the Tribunal Member's reasons when looked at as a whole adequately reveal the basis of the decision for legal representation, namely that the appellant was familiar with legal submissions and the citation of authorities, whereas the respondent was not. The leave for both parties to be legally represented would in that situation, if the respondent chose to appoint a legal representative, prevent her being at a disadvantage, which may lead to injustice.
2. Insofar as the appellant stated in his submissions that he felt that he was mocked in the Tribunal's reasons, while that is regrettable, the Tribunal's language of itself is not in our view sufficient for leave to appeal to be granted. In that regard we refer to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR at [22] (citations omitted):

'The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts'

1. In addition, we find that the Tribunal Member was under no obligation to address specific questions raised in the appellant's request for written reasons. The appellant was entitled to request written reasons under s62(2) of the CAT Act. However that section did not entitle the applicant to pose questions that the Tribunal Member was required to answer.
2. The fifth ground of appeal was that the Tribunal Member made an order for legal representation despite the fact that the respondent failed to comply with Tribunal's explicit direction for her to apply for leave. While this may strictly be correct, we find that there was no error, or ground that would justify the granting of leave to appeal because the Tribunal Member dealt with an issue that clearly was before the Tribunal and required determination. In our view s38(4) of the CAT Act justified the approach taken by the Tribunal. That section states:

'The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.'

Determination of application for leave to appeal

1. We have considered the appellant's grounds of appeal and considered that none of them, or even if they were taken cumulatively, disclose substantial reasons that would justify granting leave to appeal the interlocutory decision of the Tribunal made on 7 April 2025. Additionally, in accordance with the extract from Champion Homes v Guirgis set out above we are of the view that the matters raised by the appellant do not overcome the restraint that is referred to when reviewing interlocutory decisions. Finally, we have come to the conclusion that substantial injustice would not result if leave to appeal was not granted. In that regard, both parties have the right to legal representation. Further, we find that the decision is not attended with sufficient doubt to warrant it being reconsidered.
2. We will therefore order that:

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) The stay of order 2 made on 31 March 2025 and order 1 made on 7 April 2025 in proceedings 2024/429233 is lifted.

(4) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), publication or broadcast of the name of the Appellant is prohibited. The appellant's name is restricted to YQM.

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.