Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Phillips v Willoughby Retirement Village Association [2020] NSWCATAP 176 Hearing dates: On the papers Date of orders: 24 August 2020 Decision date: 24 August 2020 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President K Ransome, Senior Member Decision: (1) A hearing of the appeal is dispensed with and the appeal is determined on the papers. (2) The time for filing the appeal is extended to 11 March 2020. (3) The appeal is dismissed. Catchwords: RETIREMENT VILLAGES-time for bringing applications-rules , amending a rule, legal validity of a rule, smoking, Operators obligations to residents, claim for compensation. Legislation Cited: Retirement Villages Act, 1999 Retirement Villages Regulation, 2017 Civil & Administrative Act, 2013 Civil Liability Act, 2002 Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Doreen Phillips (Appellant) Willoughby Retirement Village Association (Respondent) Representation: Solicitors: Bailey Compton (Appellant) M English (Respondent) File Number(s): AP 20/13126 Publication restriction: Nil Decision under appeal Court or tribunal: Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: N/A Date of Decision: 6 February 2020 Before: G Meadows, Senior Member File Number(s): RV19/17352 REASONS FOR DECISION Background 1. The Appellant is a resident in a retirement village operated by the Respondent. She appeals a decision made in the Consumer & Commercial Division of the Tribunal by which the Tribunal dismissed her application. The Tribunal was exercising its jurisdiction under the Retirement Villages Act 1999 (NSW) (the RV Act). The Decision at First Instance 1. The following is a summary of the decision under appeal (which we will refer to as the Decision): 1. The Appellant has been a resident of the Respondent's retirement village for many years and in past years has lodged complaints about the behaviour of neighbouring residents smoking cigarettes near her unit. 2. There was an existing rule (Rule 18) which was to the effect that smoking in bed is not permitted. Another version of that rule had an additional sentence, namely that smoking in common areas is not permitted. 3. The Decision records that the Appellant's application (which was lodged on 4 April 2019) sought an order pursuant to s 55(1)(a) and (b) of the RV Act to modify Rule 18 so that it would read as follows (at [15]): "Other than in a designated smoking area, allocated by village management, smoking is not permitted anywhere in the village, including any unit, balcony, common area, grounds or gardens." 1. The Decision records that the Appellant also sought an order for compensation pursuant to ss 66(3)(k) and 128(f) of the RV Act in the sum of $10,000 as compensation for the deprivation of her rights to peace and quiet enjoyment of her premises over a period of more than six years and consequential real and continuing damage to her health. 2. A number of alternative orders were also sought but these do not need to be set out in this decision. 3. The Decision considered whether the Appellant's application had been brought within the period imposed by any time limitation provisions either under the RV Act, Retirement Villages Regulation 2017 or under the Civil & Administrative Rules (the NCAT Rules). The Tribunal found that there were no relevant time limitation provisions in the RV Act [54] and [55]. The Decision also considered whether, if the application had been brought out of time, whether time should be extended under s 41 of the Civil & Administrative Act (the NCAT Act). 4. The Decision considered the facts relied upon by the Appellant and found that a dispute arose between the Appellant and another resident on 8 February 2012 [59]. The Decision found that pursuant to Rule 23(3)(b) of the NCAT Rules, the Appellant had 28 days to bring her application after 8 February 2012. 5. The Decision considered whether the time should be extended and determined that that time should not be extended [60]. Accordingly the application was dismissed. 6. Against the contingency that the Tribunal was wrong in the conclusion referred to above, the Tribunal went on to consider the Appellant's application "on its merits". The Tribunal found that smoking, including passive smoking, is a health risk. It is also a nuisance (in the sense that the law uses that term) which interferes with a person's right to quiet enjoyment, comfort and privacy [63]. The Respondent has not objected to or made any submission with respect to those findings. 7. The Decision found that an operator of a retirement village may include a rule banning smoking or limit smoking to certain areas [65]. The Decision also held that it was not necessary to order an operator to make a rule because s 66 of the RV Act already gives the operator a power and duty to protect the peace, comfort and quiet enjoyment of residents from interference with those rights by the operator or by another resident [66]. Accordingly, the Tribunal dismissed the application that Rule 18 be amended [69]. 8. The Tribunal found that Rule 18 could not be construed so as to mean that a person may smoke anywhere other than in bed. The Tribunal construed Rule 18 as meaning no more than a resident may not smoke in bed and that accordingly there is no reason to amend the rule. 9. The Tribunal found that to the extent that the claim for compensation was based upon actual physical damage or injury, there was a lack of expert evidence to support that claim [81]. In addition, the claim may not be available by reason of the provisions of the Civil Liability Act, 2002 (the CL Act) [83] and [84]. Notice of Appeal 1. A Notice of Appeal was filed on 11 March 2020. That was outside the time prescribed by NCAT Rule 25(4)(b). That rule requires an appeal in respect of residential proceedings to be filed within 14 days from the date on which the Appellant was notified of the Decision. According to the Notice of Appeal the date the Decision was received was 6 February 2020. Therefore the appeal should have been filed by 20 February. It was not filed until 11 March. An extension of time is sought by the Appellant and we will deal with that subsequently in these reasons. The Notice of Appeal referred to the following grounds of appeal: 1. There was a denial of natural justice because the Decision not to grant an extension of time was made in circumstances in which the Appellant had not been afforded the opportunity to make a written submission. 2. The Tribunal failed to find whether or not the operator breached s 66 of the RV Act. 3. The Decision was not fair and equitable because the Appellant is left with the problem of having to endure passive smoking. 4. There has been new evidence to the effect that the Appellant will be removed from the village. 5. There is no time limit with respect to breaches of s 66 of the RV Act. 6. The balance of the Notice of Appeal has been overtaken by the subsequent submissions which we will describe later. Reply to Appeal 1. The Respondent has filed a Reply which may be summarised as follows: 1. The appeal was filed out of time and time should not be extended as the Appellant is a "frivolous and vexatious complainant". 2. The allegation of new facts to the effect that the Appellant will be removed is not supported by any evidence. 3. The balance of the Reply has been overtaken by the Respondent's submissions which we will summarise later in these reasons. Appellant's Submissions 1. The Appellant's submissions state that the Appellant seeks an order that the order under appeal be set aside and that in its place the Appeal Panel make an order that the operator cause to be made a village rule that amends Rule 18 so as to prohibit smoking from the retirement village unless undertaken in a designated area. In addition, the Appellant seeks an order that the Respondent is to take all steps to ensure that the village is a smoke-free environment. Alternatively, the Appellant seeks a rehearing. 2. The grounds of appeal appear to have been partly restated and partly varied in the submissions, and may be summarised as follows: 1. The Tribunal erred in law by applying NCAT Rule 23 in relation to an ongoing dispute. 2. The Tribunal erred in not considering that the date of a mediation which occurred on 19 February 2019 should be considered as the date from which the calculation of the time to commence proceedings should commence. That led to an error in rejecting the claim for an extension of time under s 41 of the NCAT Act. 3. The Tribunal erred in failing to apply s 54(1)(a) of the RV Act as a ground for amending Rule 18. 4. The Tribunal erred in deciding that a rule that prohibits smoking should not be made because s 66 of the RV Act prohibits such conduct. 5. The Tribunal erred in not applying s 122 of the RV Act to remedy a "significant safety issue". 6. The Appellant was not afforded natural justice and was not given an opportunity to obtain advice for applications made out of time. 1. The balance of the submissions may be summarised as follows: 1. The failure of the Tribunal to make any order has left the Respondent in the position where it has no power to take any action. In other words, smoking can occur anywhere but in a bed. 2. The result is that there is no rule that prevents a person from smoking in their own unit, on the verandahs, in the common property or in any communal areas. 3. Section 54 of the RV Act provides standing to a resident to make an application to the Tribunal and the Tribunal has power to make an order "ending" a rule if it is illegal or void or unconscionable. The Appellant accepts that Rule 18 is not unconscionable. 4. Section 58(1) of the RV Act requires the operator to ensure that the village is safe. Section 58(4) states that orders can be made regarding breaches of s 58(1). Section 58A(4) provides that a resident who believes in good faith that the retirement village is not reasonably safe may apply to the Tribunal for an order directing the operator to comply with s 58A(1) or (2). The operator has been in breach of its obligations under s 66 to ensure the reasonable peace, comfort or privacy of the Appellant. 5. The Tribunal has the power to make an amendment to village rules and Rule 18 should be amended to ensure the safety of residents and to ensure the quiet, peace and enjoyment of residents. 6. The Tribunal erred in refusing to make a rule on the basis that s 66 already made it illegal to smoke on the premises. The order making powers are contained in ss 58A(4), 122 and 128. 7. In this case it is open to the Tribunal to make orders that the operator and the residents provide a smoke-free environment by not smoking in any other area than in a designated smoking area or an order that the operator amend Rule 18 to prohibit cigarette smoking in the retirement village unless in the designated area. 1. The Appellant's submissions with respect to the claim for compensation may be summarised as follows: 1. The Appellant concedes that Rule 23 of the NCAT Rules limits the time for an application to be made to 28 days from the day on which the Applicant "became entitled under the enabling legislation" to make the application. The fact that the Appellant's application may have been made out of time was raised by the Tribunal during the proceeding and the Appellant did not have time to consider it or an opportunity to make submissions. The Tribunal should have adjourned the matter so as to afford the Appellant an opportunity to consider her position and make submissions. Accordingly, there was a breach of natural justice. 2. The Appellant's dispute with the Respondent is an "ongoing dispute" and has not ever been finalised. A mediation occurred in February 2019 and the application to the Tribunal was made on 4 April 2019. The relevant date from which NCAT Rule 23 operates is the date upon which the mediation occurred. That analysis would have provided for a more favourable application of s 41 of the NCAT Act (thus enhancing the possibility of time being extended). 3. The orders powers pursuant to ss 122 and 128 refer to the existence of a dispute. This dispute is ongoing and has not been resolved. Therefore, the Appellant was not was not out of time. Respondent's Submissions 1. The following is a summary of the Respondent's submissions in reply: 1. The Respondent contends that Rule 18 prohibits smoking in bed and also in common areas. 2. There is no ongoing dispute in the village. 3. Rule 18 is "legal" and there are no grounds for the order sought by the Appellant under s 54(1)(a). Rule 18 is not inconsistent with ss 66 of the RV Act. 4. There is no current law against smoking in private premises in a village unless there is evidence of smoke-drift causing nuisance to village residents under s 66 of the RV Act or the general law. 1. With respect to the claim for compensation, the Respondent's submissions may be summarised as follows: 1. The Decision discloses that there was insufficient evidence to support the Appellant's claim. At [75] the Tribunal found that neither party provided appropriate submissions or evidence with respect to the compensation claim. Further, in [80] the Tribunal found that the medical certificates provided were not in the form appropriate to an expert medical report. The Tribunal concluded at [81] that the Appellant had not proved her claim for "lack of expert evidence". 2. The balance of the Respondent's submissions are, respectfully, both irrelevant and unhelpful. They appear to be concerned with establishing that the Appellant has been and continues to be very difficult. The Respondent includes some new evidence in support of these contentions apparently not being aware that these proceedings are appeal proceedings (as to which we will say more later in these reasons). Appellant's Reply Submissions. 1. The Appellant has filed submissions in reply and these may be summarised as follows: 1. The "corner stone" issue in this case is whether Rule 18 is adequate to protect residents. The Appellant contends that ss 58A and 66 are not sufficient to outlaw smoking throughout the village and that a rule is required so as to avoid passive smoking. For example, smoking on balconies is not prohibited. 2. At present there is only one smoker and that person smokes in the carpark. But on occasions she does not do so. That resident has threatened the Appellant that unless the Appellant agrees not to make further complaints about smoke-drift then she will no longer comply with the "voluntary agreement" to only smoke in the carpark. 3. With respect to the Tribunal's findings that the application was lodged out of time, the Appellant submits that the references to complaints occurring in 2012 and 2013 were not intended to suggest that the smoking problems only existed at that time. The limitation was only for the purpose of providing a sharper focus on the "real issues". 4. Contrary to the Appellant's primary submissions, the Appellant's submissions in reply submit that the Tribunal erred in law by applying NCAT Rule 23. The Appellant submits that cl 34(2) of the RV Regulation, provides that an application under any other section of the Act may be made at any time. The reference to any other section encompasses all sections other than those referred to in cl 34(1). 1. With respect to the claim for compensation the Respondent's submissions in reply may be summarised as follows: 1. The claim for compensation is brought under s 66(3) or, alternatively, under s 128(1)(f) of the RV Act. 2. The medical evidence as to the effect of cigarette smoke on the Appellant's health was clear in saying that cigarette smoke and passive smoking had affected the Appellant's health. Consideration 1. Appeals from decisions made in the Consumer & Commercial Division of the Tribunal are regulated by s 80(2) of the NCAT Act and by cl 12 of Schedule 4 of the Act. Essentially this means that an appeal lies as of right on any question of law or with leave on the basis set out in cl 12. 2. The parties did not specifically identify whether the grounds of appeal were said to be errors of law or leave grounds but for reasons which will become apparent we take the Appellant's case to be based upon questions of law. 3. At a call over of this appeal it was determined that it was not necessary to have a hearing and that a hearing could be dispensed with. However, the parties were given the opportunity by the directions that were made to make a submission on that subject. Neither party objected to a hearing being dispensed with and the appeal being decided on the paper. We are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other material lodged with respect to this appeal. Accordingly, we will make the appropriate order dispensing with a hearing. 4. The appeal has, as we have indicated, been filed out of time by approximately three weeks. Previous Tribunal decisions have identified the issues which we must address when considering whether time should be extended for the filing of an appeal. These issues include the length of the delay, the reason for the delay and whether any prejudice has been incurred by the Respondent. In March this year, the Appellant's then representative lodged an email with the Tribunal describing attempts to obtain legal advice concerning the proposed appeal and the difficulties in obtaining such advice. The Appellant is an elderly woman who relies upon others for assistance. The Respondent has not identified any prejudice arising by reason of the approximate three week delay. Accordingly, we are of the opinion that it is in the interests of justice that time be extended for the lodgement of the appeal and an appropriate order to that effect will be made. 5. Both parties appear, in our respectful view, to have in some respects lost sight of the purpose of an appeal. The general purpose is to identify whether the Tribunal at first instance made orders in error and whether, if an error or errors had not occurred, different orders would have been made. We will focus our attention on the broad requirement to identify error and will not comment upon those submissions which concern the conduct of the parties outside the scope of this appeal. 6. The two essential questions that arise in this appeal are: 1. Whether the member was correct in finding that the application to seek an order amending Rule 18 had been brought out of time and whether the claim for compensation had been brought out of time. 2. Assuming that each of the above claims had not been brought out of time whether the Tribunal was in error in dismissing those two applications. 1. It is necessary to say something about those provisions in the RV Act which deal with the making of rules. Section 46 provides that rules may be made. Accordingly, there is no compulsion to make a rule. Section 47 provides that a rule is of no effect to the extent that it is inconsistent with "this or any other Act or law". Section 51 deals with amendments to village rules and that amendments require consent of the residents by special resolution. Section 51(6) provides that nothing in s 51 prevents the Tribunal from making an order under s 54 "modifying or setting aside a village rule, as amended". Section 54 provides that the operator or a resident may "at any time" apply to the Tribunal for an order in relation to a dispute concerning the legal validity of a village rule or in relation to a rule that is considered to be unjust, unconscionable, harsh or oppressive. This dispute concerned the legal validity of Rule 18 and not whether that rule was unjust, unconscionable, harsh or oppressive. The Tribunal has power under s 54(2) to make an order setting aside the village rule or modifying the operation of the rule in its application or upholding the rule. 2. Section 128 provides for the Tribunal to have the power to make a number of different types of orders. There is no provision in s 128 permitting the Tribunal to introduce a new rule. Rather, the power of the Tribunal with respect to rules appears to be limited to the powers provided for in s 54. 3. To the extent that this dispute concerns the Appellant's application to set aside or modify Rule 18 and is therefore brought under s 54, we are of the opinion that the Tribunal erred in stating that the application had been brought out of time. That is because s 54(1) expressly provides that the application concerning the subject matter of s 54 may be brought "at any time". 4. In addition, cl 34(2) of the RV Regulation states that an application made under any section other than those identified in cl 34(1) may be made "at any time". The Appellant's application is not affected by cl 34(1) and is therefore determined by reference to cl 34(2). 5. The Tribunal's decision was based upon the operation of NCAT Rule 25(3)(b). Rule 23 provides that an application to the Tribunal must be made in the case where enabling legislation specifies the period within which the application is to be made – within the period specified, or in any other case, within 28 days from the day on which the Applicant became entitled, under the enabling legislation to make the application. In our view, in this case the relevant enabling legislation (namely s 54 and cl 34(2)) specified the period namely "any time" and accordingly NCAT Rule 23 did not apply. 6. It is our view that the Tribunal erred in its decision to conclude that the application with respect to the operation of Rule 18 had been brought out of time. We are of the opinion that the claim for compensation was not bought out of time. This is because cl 34(2) provides for applications for orders under s 128 to be made at any time. 7. We agree with the Tribunal that Rule 18 cannot be construed as permitting smoking everywhere other than in bed or in common areas. Rule 18 must be read in conjunction with the general rights and obligations of the operator and of residents. In particular, the operator has an obligation under s 66(2)(b) to take all reasonable steps to ensure that all residents meet their obligations so that a resident does not unreasonably interfere with the peace, comfort and quiet enjoyment of his or her fellow residents. Section 66(3) permits a resident who is of the opinion that the operator has contravened any provision of this section to apply to the Tribunal for an order directing the operator to comply and/or pay compensation. 8. It cannot be inferred that Rule 18 permits smoking without qualification in other areas, because such an interpretation could result in the Rule being in breach of s 47 (which renders a rule of no effect to the extent that it is inconsistent with the RV Act or any other Act or law). 9. We are also of the view that the Tribunal does not have power to introduce a new rule or amend an existing rule. The procedures concerning the making of rules are democratic in the sense that once a village has residents s 51 requires an amendment to rule to be approved by the residents by special resolution (which is explained in Schedule 1 of the RV Act). The powers of the Tribunal in relation to rules are described in s 54(2) and are limited to setting aside a rule, modifying the operation of a rule in its application to a resident or to some or all of the residents of the village or to upholding a rule). In our view the Tribunal does not have the power to do what the Appellant seeks, namely to not only set aside Rule 18 but also to replace it with a new rule. To the extent that what the Appellant seeks may be construed as an amendment to Rule 18, it is our view that s 51 sets out the relevant procedures, not s 54. 10. The Appellant's submissions express the fear that if Rule 18 is not replaced, she will be exposed to health risks consequent upon passive smoking. In our view, there is appropriate protection afforded to the Appellant by the provisions of s 66(3). It is also necessary to add that in our view s 128 does not give the Tribunal the power to replace Rule 18. 11. The Appellant's claim for compensation in part failed because the amount sought was intended to make the Respondent more accountable (as opposed to seeking an amount for compensation) and it also failed because the medical evidence was not sufficient to prove that the Appellant's medical condition had been affected by passive smoking. In addition, the Tribunal concluded that the claim would have been defeated by the provisions of the Civil Liability Act which precludes claims for compensation for non economic loss except in severe cases. The Appellant did not provide any submissions relating to the Tribunal's conclusions in this respect. We do not discern any error in the Tribunal's reasoning concerning this aspect. The Appellant referred to the reports from Dr Morton dated 1 November 2012 and 24 January 2013 and to the reports from Dr Barin dated 6 May 2015 and 13 January 2016. There was no explanation as to why more up-to-date reports were not provided to the Tribunal prior to the hearing which occurred in July 2019. In our view the Tribunal's Decision to disregard the medical reports was understandable and does not display any error of law or a ground under clause 12. Indeed, the Tribunal's decision to dismiss the claim for compensation does not display any error of law or a ground under clause 12. Conclusion 1. For the above reasons, we are of the view that the Tribunal did not err in dismissing the Appellant's application. As a result, the appropriate order is that the appeal should be dismissed. 2. We therefore make the following orders: 1. A hearing of the appeal is dispensed with and the appeal is determined on the papers. 2. The time for filing the appeal is extended to 11 March 2020. 3. The appeal is 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2020