Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tonkin v Riverwalk Realty Pty Ltd [2020] NSWCATAP 260 Hearing dates: On the papers Date of orders: 8 December 2020 Decision date: 08 December 2020 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member A Boxall, Senior Member Decision: Appeal dismissed Catchwords: ADMINISTRATIVE LAW – bias rule – double might test – no evidence of bias CIVIL PROCEDURE – res judicata – fresh proceedings on the same causes of action – no point of principle Legislation Cited: Nil Cases Cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 Texts Cited: Nil Category: Principal judgment Parties: Lisa Tonkin (Appellant) Riverwalk Realty Pty Ltd (Respondent) Representation: Appellant (Self Represented) Respondent (Proper Officer) File Number(s): AP 20/34506 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 15 July 2020 Before: P Harris, General Member File Number(s): COM 20/15458 REASONS FOR DECISION 1. The appellant appeals from a decision of the Tribunal dismissing her application for damages against the respondent. The Tribunal dismissed the appellant's application because the matters in issue in that application had been determined in an earlier application commenced by her against the respondent from which she did not appeal. 2. In our opinion there was no error in the Tribunal dismissing the appellant's application for the reasons it gave. Accordingly, this appeal must be dismissed. Background 1. The appellant owns a residential property at Ballina, NSW. 2. By an Exclusive Management Agency Agreement (Residential) dated 4 April 2016 (the "Agreement") the appellant retained the respondent to manage, administer and lease the property to tenants in exchange for the fees referred to in the Agreement. 3. The property was leased to particular tenants commencing on 21 April 2016 and renewed on 26 April 2018. The tenants vacated the property on 24 April 2019. 4. A dispute ensued between the appellant and the tenants in relation to the outgoing condition of the property. The appellant commenced proceedings RT 19/49191 in the Tribunal against the tenants seeking orders for money and the bond. 5. Shortly thereafter the appellant commenced proceedings COM 19/51155 against the respondent. 6. The Tribunal considered that the two proceedings should be heard together, noting on 28 April 2020: "[8] This application is to be heard with RT 20/13713 as there are common issues of fact to be determined, including what compensation the applicant may be entitled to from the respondent tenant in that application. As the applicant is seeking that same compensation from the respondent real estate agency (presumably on the basis of joint liability) the respondent real estate agent has a right to be heard in RT 20113713." [Our emphasis] 1. The Tribunal made directions for the exchange of evidence and other matters in preparation for the hearing of the two matters. 2. The Tribunal explained what then happened in its reasons dated 15 July 2020 as follows (obvious spelling and grammatical errors have been corrected): "[6] Matters RT 19/49191 and COM 19/51155 were heard on 30 Jan 2020. In RT 19/49191 the Tribunal ordered that the tenants pay the applicant $784.25 from the bond. In COM 19/51155 at order 1 the Tribunal dismissed the application on two grounds. Firstly, that there was no appearance by the applicant. The paragraph following this ground stated that, under sect 55(2) of the [Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act")] the proceedings may be reinstated if application is made within 7 days. No such application was made by the applicant. [7] The second ground upon which the Tribunal dismissed the application in order 1 was: 'The applicant has suffered no loss as she has been compensated for any damage caused by the tenants by the money order in application RT 19/49191'. [8] The applicant in application COM 19/51155, although not appearing at the hearing, had lodged an evidence bundle of 135 pages. I am satisfied that the applicant was afforded the opportunity to put her case and had done so in the form of her evidence bundle which included written submissions. [9] I am further satisfied that having the applicant's evidence and submissions available to it, the Tribunal on 30 Jan 2020 finally heard and determined the applicant's claim against the agent 'on the papers'. [10] From the decision of 30 Jan 2020, the applicant had two options available to her. She could seek to have the proceedings re-instated pursuant to sect 55(2) as she was informed in the Tribunal's written order, or she could appeal the decision. She did neither. [11] Instead, on 3 Apr 2020 the applicant lodged application COM 20/15458, a further application against the agent and based on the same cause of action as in application COM 19/51155. [12] In the meantime the applicant had lodged a set-aside application in matter RT 19/5115 which was granted. On 12 May 2020 the Tribunal upon re-hearing the re-instated application, reduced the amount of the monies awarded to the applicant to $296.83." 1. The amount awarded to the appellant in RT 19/5115 on 12 May 2020 was for damage to and cleaning of the property. 2. Against that background, in the proceedings the subject of this appeal, the Tribunal dismissed the appellant's application (COM 20/15458, being the second proceedings commenced by the appellant against the respondent) for the following reasons: "[13] The doctrine of res judicata applies to this second application against the agent. The rule as to res judicata is that, if the cause of action which led to the judgment is essentially the same as that in the subsequent proceedings, that is, if the matters in controversy are identical, even though the form of proceedings in which they are raised is different; if the judgment was a "final and conclusive" one as to the merits; if the tribunal which delivered the judgment was empowered to do so and at the time not exceeding its jurisdiction: then res judicata will apply. (Halsbury's laws of Australia.190-45). [14] I am satisfied that the cause of action in each application against the agent is essentially the same and that the decision of the Tribunal of 30 Jan 2020 in its nature ls final and conclusive. The applicant is therefore unable to re-litigate the same claim and the application is dismissed." The Appeal 1. The appellant's grounds of appeal were: "1. Lack of procedural fairness. 2. I have never been given an opportunity to present my evidence (either COM 20/15458 or COM 19/51155). 3. This case COM 20/1545 hasn't been heard. The Member has dismissed it based on COM 19/51155. That case was dismissed on 30 January 2020 erroneously. Tribunal Member Priestley had received my adjournment request with detailed medical certificate on 28 January and refused it 13 minutes before the hearing which he dismissed for my non-attendance without reason. Although, as well as the adjournment request and medical certificate two days prior, I had also emailed at 7:20 am that day and telephoned to ensure the Member had all documentation, which I received verbal confirmation on two different occasions he had in his possession. 4. Tribunal Member Priestley didn't excuse himself from COM 20/15458 when I asked him due to his previous involvement and the set aside decision of the associated case. 5. Tribunal Member Harris didn't read or listen to any evidence which included evidence of false representations made by (the respondent) in a signed statutory declaration. Harris made his judgement solely based on Tribunal Member Priestley's dismissal from 30 January when an associated case had already been set aside due to lack of procedural fairness of that hearing held 30/1/2020. 6. There has been a clear lack of objectivity by Tribunal Members in Lismore. The only time my evidence has been heard was when some information pertaining to it was heard in an associated case after Tribunal Member Priestley's dismissal of RT 19/49191 was set aside. This hearing was not held in Lismore. It followed procedural fairness and both parties were able to put forward their evidence." 1. By letter dated 14 September 2020 the appellant sought leave to amend her Notice of Appeal. The Amended Notice of Appeal says: "Although there were two separate cases lodged and paid for individually, NCAT linked the two - commercial and residential tenancy - stating there were 'common issues of fact'. Therefore, I will refer to both as required. NCAT failed to apply procedural fairness. Tribunal Member Harris did not provide an opportunity for my evidence in COM 20/15458 to be heard. Member Harris's previous involvement in the separate Residential Tenancy case coloured his objectivity. NCAT made an error of law in applying res judicata as COM 20/15458 was not 'essentially the same' as COM 19/51155 for the following reasons. • The cause of action of COM 20/15458 is different, as a false and misleading statutory declaration was submitted by the respondent in COM 19/51155. As explained in Halsbury's, to establish a plea of res judicata the cause of action must be the same in both hearings. • The submission of a signed, false statutory declaration by the respondent was misleading or deceptive or likely to mislead or deceive, as it altered NCAT's understanding of the facts. In not affording me an adjournment and therefore an opportunity to be heard, Member Priestley's actions were misleading or deceptive or likely to mislead or deceive, as my detailed medical certification was in his possession. This prevented me from refuting the perjured statement - thereby altering the cause of action or the facts in COM 20/15458. • An error was made when NCAT did not allow me an opportunity to be heard on evidence submitted for COM 20/15458, including evidence of false and misleading claims that underpinned the respondent's case. The Civil and Administrative Tribunal Act, 2013 states, 'A person must not, in any proceedings or application to the Tribunal, provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading.' s 71 Therefore, to dismiss on the grounds of res judicata is to make a decision based on perjury which was clearly proven in my evidence (COM 20/15458 page 18) • Member Priestly presided at the first hearing for COM 20/15458 on 28 April 2020, although I requested he excuse himself based on his previous involvement in COM 19/51155 and RT 19/49191, which had been set aside due to his erroneous finding that no medical certification had been submitted, when it was in fact in his possession. Member Priestly made assumptions in his orders for COM 20/15458: '8 The application is to be heard with RT 20/13713, as there are common issues of fact to be determined, including what compensation the applicant may be entitled to from the respondent tenant in that application. As the applicant is seeking that same compensation from the respondent real estate agency (presumably on the basis of joint liability) the respondent real estate agent has a right to be heard in RT 20/13713.' By inaccurately 'presuming', without evidence, both joint liability and the amount of compensation I was claiming in COM 20/15458, NCAT failed to apply procedural fairness. • Member Priestly also amended the application COM 20/15458 to 'include a claim for compensation under the consumer claims provisions of the Fair Trading Act'. This was another variation to application COM 20/415458. • The cause of action of COM 20/15458 is different, as evidence and the outcome of the Tenant hearing (RT 20/13713) resulted substantial changes to what was tendered in COM 20/15458. This included evidence of what the agents knew and when, such as the tenants reporting a broken lock to agents on 23 April but not telling me - instead when arriving on the evening 2 May, the front door lock was broken. NCAT made an error of law in dismissing my application on the basis of res judicata as the differences indicated above demonstrate. 1. The appellant sought orders that the decision of the Tribunal be set aside and a new hearing held. 2. It is appropriate to consider the appellant's Amended Notice of Appeal and leave is granted for the appellant to rely upon it. 3. The appellant's Amended Grounds of Appeal can be distilled into the following grounds: 1. Denial of procedural fairness in: 1. not allowing the appellant to tender her evidence; and 2. in hearing the earlier proceedings (RT 19/49191 and COM 19/51155) together. 1. Bias – Member Harris and Member Priestly should have disqualified themselves. 2. Error of law in that the doctrine of res judicata did not apply in that the present proceedings included an allegation of a false and misleading statutory declaration, an allegation of perjury and there was different evidence (such as evidence relating to what and when the respondent knew of a broken lock). 3. Error by the Tribunal (in the appellant's earlier proceedings commenced against the respondent – COM 19/51155) in refusing the appellant's application for adjournment made on 30 January 2020. 1. The appellant, to the extent necessary, sought leave to appeal in relation to the same matters although expressed in different ways. Decision 1. There is no merit in any of the appellant's grounds of appeal, whether viewed as errors of law or whether leave to appeal is required. 2. Any alleged errors made by the Tribunal in refusing the appellant's application for an adjournment in the earlier proceedings were required to be dealt with by an appeal from that decision, and not by collateral attack in fresh proceedings. As the Tribunal noted, the appellant did not appeal from the dismissal of her earlier proceedings (COM 19/51155) on 30 January 2020 (and the refusal of her application for adjournment on that day). 3. For the same reason, there can be no complaint now concerning the Tribunal's decision to hear the two earlier proceedings (RT 19/49191 and COM 19/51155) together. That was a decision which, if it was to be appealed, had to be appealed in those proceedings. 4. In any event, the basis of the appellant's complaint is that she did not want the two proceedings heard together. With no disrespect to her, whether the proceedings were to be heard together was not a matter to be determined according to the appellant's wishes, but rather according to the guiding principle in the Tribunal that it should act so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Clearly there were some common issues of fact between the two proceedings (alleged damage to the premises for example) and thus it was entirely appropriate to hear the proceedings together. 5. There is no substance to the assertion that the Tribunal Member who decided the proceedings from which this appeal has been brought should have disqualified himself. 6. The relevant test for disqualification was set out by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. The test is whether a fair-minded lay observer might reasonably apprehend that the judge or tribunal member might not bring an impartial mind to the resolution of the question the judge or tribunal member is required to decide. 7. Justices Gleeson CJ, McHugh, Gummow and Hayne JJ said of the test at [8]: "… Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." 1. The appellant submits that Member Harris's previous involvement in the residential tenancy case coloured his objectivity, and made a number of allegations concerning Member Priestley (who heard and determined RT 19/49191 and COM 19/51155). 2. In relation to Member Priestley, any such allegations were required to be dealt with in an appeal from that Member's decision, and no such appeal was lodged. Such allegations cannot be dealt with in fresh proceedings in the Tribunal, nor on an appeal from the Tribunal's decision in those fresh proceedings. 3. In relation to Member Harris, we are unable to discern what allegations the appellant makes as Member Harris's previous involvement in the residential tenancy case is obscure to us, and in any event Member Harris did not decide that case. The appellant has failed to prove either of the two steps required by Ebner which are set out at [25] above and failed to prove that a fair-minded lay observer might reasonably apprehend that member Harris might not bring an impartial mind to the resolution of the questions he was required to decide. 4. That brings us to the appellant's ground of appeal asserting that the Tribunal erred in holding that the doctrine of res judicata applied. 5. The appellant submitted that that doctrine did not apply because her fresh proceedings (COM 20/15458) included an allegation that there was a false and misleading statutory declaration, an allegation of perjury and there was different evidence (such as evidence relating to what and when the respondent knew of a broken lock). 6. We do not accept the appellant's submissions. Allegations of various matters such as alleged false and misleading evidence (being the statutory declaration), alleged perjury and evidence of particular damage are not to the point. Those matters are not the cause of action, but collateral or peripheral matters which may or may not be relevant to determining whether the appellant's cause of action against the respondent was made out. 7. In the first proceedings the appellant was suing the agent for breach of the Agreement and negligence. She needed to prove what terms of the Agreement were breached, what negligence occurred, and what damage she suffered as a result. 8. In the present proceedings the appellant was suing the respondent on the same basis, and thus the Tribunal was correct in applying res judicata. If the appellant was suing on any additional basis then she would not be allowed to do so because the law requires her to bring all her claims against a party at the one time – Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. 9. There was an additional problem for the appellant. 10. As the Tribunal observed on 28 April 2020 (see [8] above) the appellant was seeking that same compensation from the respondent as she was from the tenant. That is, the appellant was suing the tenant for damage to her property and was suing the respondent for that same damage (presumably on the basis that had the agent not been at fault the appellant would not have suffered any damage). 11. The appellant cannot receive double compensation and has not alleged any different damage against the respondent than she sought against the tenant. 12. As res judicata did apply, there was no point in the Tribunal admitting the appellant's evidence. The whole point of res judicata is that, if it applies, as it does here, the case cannot proceed to be decided on the basis of evidence and submissions because it has already been decided in earlier proceedings. 13. For these reasons there is no substance to the appellant's appeal and the appeal must be dismissed. Orders 1. Appeal 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: 08 December 2020