Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Aboriginal Housing Office v Harrison [2021] NSWCATAP 97 Hearing dates: 17 March 2021 Date of orders: 21 April 2021 Decision date: 21 April 2021 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President K Rosser, Principal Member Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing is dispensed with in respect of the application to amend the name of the appellant and the application to extend time to lodge the appeal. (2) The name of the appellant is amended to the Aboriginal Housing Office. (3) Time to file the appeal is extended to 30 October 2020. (4) The appeal is dismissed. Catchwords: ORDERS – Consent order following settlement discussions facilitated by Tribunal – Misstatement of law by Tribunal during discussions to identify issues – liability of orders to be set aside by reason of misstatement – bases of challenge – prejudgment bias – denial of procedural fairness – challenge to underlying settlement agreement PRACTICE AND PROCEDURE – Settlement of proceedings – making of consent orders at oral hearing – whether s 59 of the Civil and Administrative Tribunal Act 2013 requires consent given at an oral hearing to be in writing, signed by the parties. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation, 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Interpretation Act 1987 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Atkinson v Crowley [2011] NSWCA 194 Attorney General for New South Wales v Gatsby [2018] NSWCA 254 Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 385 Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 Italiano v Carbone & Ors [2005] NSWCA 177 Kelly v NSW Land and Housing Corporation (Appeal Panel- unreported) 4 December 2020 London Export Corp Ltd v Jubilee Coffee Roasting Co Ltd [1958] 1 WLR 271; [1958] 1 All ER 494 Owners of "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404 Petropoulos v CPD Holdings Pty Ltd [2019] NSWCATAP 53 Spanos v Lazarus [2008] NSWCA 74 Sylvaney v Carolan [2016] NSWCATAP 36 Texts Cited: Judicial Review of Administrative Action, Aronson and Groves, 5th Edition, Lawbook Co 2013 Category: Principal judgment Parties: Aboriginal Housing Office (Appellant) Blake Charles Harrison (Respondent) Representation: Solicitors: R Fester, Department of Communities and Justice (Appellant) Respondent (Self-Represented) File Number(s): 2020/00371131 (AP 20/45625) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 15 October 2020 Before: A Halstead, General Member File Number(s): SH 20/34558 REASONS FOR DECISION Introduction 1. On 15 October 2020, the Tribunal made orders by consent in respect of residential tenancy proceedings SH 20/34558. 2. The orders were in the following terms: 1. The tenant must comply with the terms of the residential tenancy agreement by keeping the residential premises in a reasonable state of cleanliness both inside and out. 2. The tenant will ensure compliance with order 1 made 6 November 2020, including by having the yard cleaned to a reasonable condition. 1. The proceedings had been brought by the appellant, the Aboriginal Housing Office (landlord), which is the landlord in a residential tenancy agreement with the respondent, Mr Harrison (tenant). 2. In its application lodged 13 August 2020, the landlord sought both an order requiring performance of the residential tenancy agreement (specific performance order) and an order for termination by reason of the tenant having allegedly breached the residential tenancy agreement. The basis of the claim was that the tenant had: 1. negligently or intentionally caused or permitted damage to the residential premises; 2. failed to keep the premises reasonably clean; 3. impaired or prevented the use of particular rooms within the premises for their intended purpose or purposes; and/ or 4. caused or permitted the premises or part of the premises to become or to be in a condition that was unsanitary, unsafe, or that made the premises or part of the premises a risk to personal and/ or occupational and/ or public health and safety. 1. The proceedings were listed for hearing with directions on 15 October 2020 for a hearing by telephone. The landlord was represented by Ms Vearing. The tenant represented himself. As is the usual practice, this hearing process included discussions facilitated by the Tribunal to narrow issues and explore the possibility of settlement. The consent orders were made in circumstances where the Tribunal had said to the landlord's representative that the notice of termination relied upon to support an order for termination was invalid because it had been given in contravention of Part 6A of the Residential Tenancies Regulation 2019 (NSW) (RT Reg). This regulation was introduced as a response to the COVID-19 pandemic. 2. The Tribunal's statement concerning the application of Part 6A to the present residential tenancy agreement was incorrect. This is because the definition of "landlord" found in Reg 41A "does not include a landlord who is a social housing provider". Consequently, as the landlord is a social housing provider within the meaning of s 136 of the Residential Tenancies Act 2010 (NSW) (RT Act), Part 6A of the RT Reg does not apply to this residential tenancy agreement. 3. Following this statement by the Tribunal, the landlord's representative did not pursue its application for termination of the residential tenancy agreement. Rather, orders were made by consent. The order made was in the nature of a specific performance order requiring the tenant to perform his obligations and not breach the residential tenancy agreement. The agreement to make the orders was not in writing, consent being given orally during the course of the hearing before the Tribunal. 4. Consent was given in circumstances where the tenant acknowledged that "the backyard was in bad condition because of the dogs" and agreed to get the property into satisfactory order and to maintain it in a proper condition. 5. In making these orders, the Tribunal indicated during the course of discussions that there could be no "relist" of the proceedings in the event of non-compliance with the specific performance order. This was because the Tribunal said a termination order could not subsequently be made in light of the Tribunal's (erroneous) view that the notice of termination was invalid by reason of Part 6A of the RT Reg. A "relist" permits a landlord in whose favour a specific performance order is made in lieu of a termination order to apply to relist the application to pursue the original termination application if the tenant does not comply with the specific performance order. Notice of Appeal and grounds of appeal 1. The landlord appealed the orders made on 15 October 2020. The Notice of Appeal incorrectly named the appellant as NSW Land and Housing Corporation. As explained below, the landlord subsequently applied to correct this error. No objection was received from the tenant. The appellant's name should be amended to Aboriginal Housing Office and we will make this order, a hearing on this issue being unnecessary. 2. The Notice of Appeal is undated. It was filed on 30 October 2020. It appears to be one day out of time. 3. The appellant says that the October orders should be set aside on two bases: 1. The Tribunal erred in law in concluding Clause 41D of the RT Reg applied to these proceedings. Consequently, the notice of termination was not invalid and the Tribunal erroneously concluded that the termination notice required 90 days notice to be given despite the landlord being a social housing provider. 2. The agreement to settle the proceedings was not in writing, signed by the parties. There had been no compliance with the requirements of Section 59 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Consequently the Tribunal had no power to make consent orders. 1. The appeal was listed for call over and the Appeal Panel made directions for the filing and service of evidence and submissions by each of the parties. The tenant filed no documents despite being directed to do so. The landlord filed a bundle of documents containing written submissions, a statutory declaration of Ms Michelle Vearing made 7 December 2020 and a transcript of the proceedings before the Tribunal at first instance. 2. The Appeal was listed for hearing on 17 March 2021. The parties appeared by telephone and were afforded an opportunity to make submissions. Mr Fester, solicitor, appeared for the landlord. The tenant represented himself. 3. Because the tenant had failed to comply with earlier directions, directions were made at the conclusion of the oral hearing of the appeal permitting him to file any supplementary written submissions. Directions were also made for the landlord to provide submissions in reply. 4. No further submissions were received from the tenant. 5. Also, subsequent to the hearing of the appeal, we made directions for submissions concerning: 1. the need to correct the name of the landlord (a matter dealt with above); and 2. whether the appeal was lodged in time and, if not, whether time should be extended. 1. The landlord filed written submissions on these topics. In doing so it said an order should be made dispensing with a hearing about these matters. The tenant provided no submissions on these topics. 2. In these circumstances, an order should be made under s 50(2) of the NCAT Act dispensing with a hearing. Consideration 1. The Appeal was lodged one day out of time. These being residential proceedings, the time to lodge the appeal is "within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later)": see definition of residential proceedings - Rule 3 and Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules). 2. Leave was not requested. However, as explained above, after the hearing we drew to the parties' attention the fact that the Notice of Appeal was out of time and an extension of time was therefore required. In its submissions, the landlord explained the Notice of Appeal was sent to the Tribunal by email on 28 October 2021 and the delay was arranging payment of the filing fee which appears to have occurred on 30 October 2021. No relevant prejudice to the tenant arises from what has occurred. 3. Having regard to the important issues raised, particularly in relation to the operation of s 59 of the NCAT Act, and the fact the appeal is only one day out of time, we have determined it is appropriate to grant an extension of time. We will make an order extending the time to lodge the appeal to 30 October 2020. 4. There are two issues to be dealt with in this appeal. These are: 1. Are the consent orders liable to be set aside by reason of the Tribunal's erroneous statement concerning the applicability of Part 6A of the RT Reg and that the termination notice required 90 days notice to be given? 2. Was the making of the orders by consent invalid by reason of non-compliance with Section 59(1)(a) of the NCAT Act? 1. There is a right of appeal on a question of law: section 80(2)(b) NCAT Act. The grounds of appeal raise questions of law. 2. We will consider each issue in turn. Are the consent orders liable to be set aside by reason of the Tribunal's erroneous statement concerning the applicability of Part 6A of the RT Reg and that the termination notice required 90 days notice to be given? 1. The landlord says that the consent orders made by the Tribunal are liable to be set aside because, during the hearing, the Tribunal made an incorrect statement concerning the operation of Part 6A of the RT Reg to a residential tenancy agreement between it (as a social housing provider) and the tenant. Consideration of whether the consent orders should be set aside arises in the context of the Tribunal facilitating discussions to narrow issues and explore settlement which resulted in the making of consent orders. 2. While lacking in precision, the landlord appears to assert that the consent orders are liable to be set aside by reason of prejudgment bias, denial of procedural fairness or because consent of the landlord is in some way vitiated by what occurred. 3. In relation to the issue of setting aside for prejudgment bias, the views expressed by the authors of Judicial Review of Administrative Action, Aronson and Groves, 5th Edition, Lawbook Co 2013 are pertinent. At [9.210] they state: Prejudgment In Jia 231 Hayne J explained that a claim of prejudgment raised the following distinct but related contentions that: the decision-maker held an opinion on a matter in issue in the case at hand; the opinion will be applied to the case at hand; the existing opinion will be applied without considering the matter afresh in light of the circumstances of the case at hand; and the issue said to be prejudged is one that should be decided afresh. The cases do not normally examine questions of prejudgment by use of all of the questions of Hayne J, though they might be useful in difficult cases by providing a more detailed way to approach the Ebner test. Most of the prejudgment cases concern judges. The bias rule will prevent judges from hearing a matter when they have already said how it will be decided232. Such blunt examples of prejudgment are rare but forthright judicial statements that edge towards this prohibited line are increasingly common, particularly with the rise of active case management (which frequently exposes a judge to a great deal of evidence prior to the hearing)233 and the appearance of unrepresented parties (who often conduct cases in a manner that leads judges to express extremely forthright views).234 1. Footnotes 231-234 are also relevant: 231 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 564. Barakat v Goritsas (No 2) [2012] NSWCA 36 at [11], defined prejudgment more simply as "the apparent formation of a view ... in respect of an issue which will (or may) need to be determined…". 232 Balic v R (No 2) (1994) 75 A Crim R 515. See also Antoun v R (2006) 80 ALJR 497 where a judge informed a barrister that the no case submission he wished to make would not be accepted. The High Court held that even a weak case or submission had to be heard. 233 See Johnson v Johnson (2000) 201 CLR 488 at 493. 234 See, eg, Kyriacou v Police [2007] SASC 341 where a magistrate had lengthy pre-trial discussions with an unrepresented accused and suggested he plead guilty. There seemed little doubt that the magistrate conferred with the defendant because there was no-one else who could. His suggestion may also have been entirely sensible in the circumstances, but Gray J held the magistrate could not try the defendant after advising him to plead guilty. 1. Prudence suggests that any expression of opinion by the Tribunal during the course of a hearing should be qualified by "some anodyne remark as 'subject to whatever you may say'": Spanos v Lazarus [2008] NSWCA 74 at [5]. However, the absence of such a statement may not, without more, give rise to a denial of procedural fairness or support a conclusion of bias. 2. In relation to a consent order and its liability to be set aside, the High Court said in Harvey at 243-4: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. The rule appears rather from positive statements of the grounds that suffice (cf. Halsbury's Laws of England, vol. 26, 2nd ed., pp. 84, 85); but there is a dictum of Lindley L.J. which is distinct enough: ". . . nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual . . . To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if that agreement cannot be invalidated the consent order is good": Huddersfield Banking Co. Ltd. v. Henry Lister & Son Ltd. (1895) 2 Ch 273, at p 280 . (at p244) 1. In addition, a consent order may be set aside where the Tribunal fails to properly apply r 37 of the Civil and Administrative Tribunal Rules, 2014 (NSW) (Rules) in respect of a vulnerable person. 2. What constitutes mistake, duress or undue influence has been considered by the Appeal Panel in a number of cases including Prenc v Stojcevski [2016] NSWCATAP 244 at [43]-[45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]-[54]. 3. In relation to mistake, the Appeal Panel in Yuen said at [39]: In relation to mistake, the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract: Clasic International Pty Ltd v Lagos (2002) 60 NSWLR 241, [39], [42]-[43]. Assuming for the purposes of argument, that the appellant was mistaken as to whether or not she could refuse the respondent's offer, the question is whether that mistake was of a type that vitiates her consent. A common mistake arises when the mistaken belief is held by both parties: Clasic International Pty Ltd v Lagos (2002) 60 NSWLR 241, [41], applying Solle v Butcher [1950] 1 KB 671, 693. That does not arise here. A unilateral mistake is where one party is mistaken but the other party should have been aware of the mistake: Taylor v Johnson (1983) 151 CLR 422, 432. The appellant does not contend that the respondent ought to have known of any mistake upon which she was operating. A mutual mistake arises where both parties are mistaken, but their mistakes are different such that there is no meeting of minds: Charitou v The Owners of Strata Plan 10394 [2015] NSWSC 1059, [22]. Here, the parties both understood the bargain that was made; there is no misapprehension about the terms of the purported agreement. The issue is, was there an agreement reached even though the appellant did not understand the bargaining process. The Appeal Panel is of the view that the answer is yes because a reasonable observer would have concluded that an agreement was reached: see N Seddon, R Bigwood and M Ellinghaus, Cheshire & Fifoot Law of Contract (LexisNexis, 10th Aus ed, 2012) at [3.9]. 1. When considering an appeal seeking the set aside of consent orders on the grounds of undue influence and duress, the Appeal Panel said in Sylvaney v Carolan [2016] NSWCATAP 36 (Sylvaney) at [38]-[40]: 38 Undue influence is where there is ascendancy by a stronger party over a weaker party such that the relevant transaction is not a free, voluntary, and independent act of the weaker party (A v N [2012] NSWSC 534 at [475] (Ward J), citing Sir Anthony Mason in the Anglo-American Law Review 1998). This is in contrast to unconscionable dealing, as noted by Deane J in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 at [13] as follows: The equitable principles relating to relief against unconscionable dealing and the principles relating to undue influence are closely related. The two doctrines are, however, distinct. Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party. Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so. The adverse circumstances which may constitute a special disability for the purposes of the principles relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible to being comprehensively catalogues. [Case citations omitted] 39 In A v N (supra), Ward J (as she then was) discussed the nature and scope of duress at [504] to [509] and whether it can be established by "illegitimate pressure", which her Honour noted has been criticised by the NSW Court of Appeal in Australian & New Zealand Banking Group v Karam [2005] NSWCA 344; (2005) 64 NSWLR 149 as being inherently vague. Relevantly, her Honour observed at [509]: If Mitchell and Karam are correct, then the concept of duress in New South Wales, if not Australia (noting that Mitchell was decided in Queensland), is now limited to unlawful conduct. This limitation is not difficult to reconcile with the classic cases on duress to the person. In Barton v Armstrong, the 'duress' was constituted by several death threats. In McLarnon v McLarnon (1968) 112 Sol J 419, the threats were of incarceration. In Saxon v Saxon [1976] 4 WWR 300, death threats were made against not the signer, but the signer's children. The threatened acts in each of those cases are unlawful. Moreover, even if Karam is incorrect is limiting duress to unlawful acts, the cases show that there is a high threshold to be met with respect to the conduct of the party alleged to be exerting pressure, as these cases all exhibit a high degree of threatened violence. [Emphasis added] 40 In summary, the threshold to establish duress is high and the doctrines of undue influence and unconscionable conduct require evidence that the party complaining about the agreement is either weaker or has a special disability (for instance, was vulnerable within the meaning of r 37) or was unduly pressured by a stronger party into an agreement where there was, for instance, little or no benefit to be gained by the weaker party. 1. The Appeal Panel in Sylvaney applied these tests in evaluating the Member's conduct and whether the agreement was vitiated by reason of that conduct. 2. It seems to us that this analysis, by reference to concepts of contract law and principles that might apply in setting aside an agreement based on the conduct of the parties, is inappropriate when considering whether the conduct of the Member constituting the Tribunal is of a type which warrants the setting aside of orders made by that Member. 3. Rather, in our view, the evaluation process is more aptly undertaken by considering what is referred to in the context of commercial arbitrations as "misconduct" of an arbitrator which might justify a court setting aside a decision. In this sense, as stated by Diplock J (as he then was) in London Export Corp Ltd v Jubilee Coffee Roasting Co Ltd [1958] 1 WLR 271; [1958] 1 All ER 494 at 277 and as approved by Marks J in Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 385 at 392, the use of expressions 'misconduct', with its suggestion of moral values is apt to mislead, the issue being one of "an irregularity in procedure". 4. In this regard, Marks J said in Gas & Fuel at 392: There is a need to determine what constitutes an "irregularity" in proceedings which are not ordinary court proceedings. "Irregularity" connotes a deviation from what is "regular". This begs the question as to what procedure can be said to be "regular" before an arbitrator in a case such as the one here under consideration. 1. Where there is an irregularity in the conduct of an arbitrator, it is then necessary to determine whether the irregularity is such to warrant intervention. On this aspect, Marks J quoted with approval the decision of McNair J in E. Rotheray & Sons Ltd v Carlo Bedarida & Co. [1961] 1 Lloyd's Rep 220. At 225 McNair J said: The more difficult question, however, is whether the extent of that irregularity is such as to justify interference by this court either by way of setting aside the award or remitting the award. The determination of that issue, as it seems to me, depends on whether the court is satisfied that there may have been – not must have been – or that this irregularity may have caused – not must have cause – a substantial miscarriage of justice that would be sufficient to justify setting aside or remitting of the award, unless those resisting the setting aside or omission could show that no other award could properly have been made then that which was in fact made, notwithstanding the irregularity." 1. Adapting these principles to the Tribunal, a Member's conduct is to be considered in the context of the obligations imposed upon the Tribunal under the NCAT Act and the manner in which those obligations are performed. They must also be considered in the context of the role or roles the Member is to perform. 2. As stated above, in proceedings before the Tribunal, a Member may be required to act as both conciliator/facilitator and subsequently as decision-maker, s 37 of the NCAT Act empowering the Tribunal to use "any one or more resolution processes" … "to resolve or narrow issues". The making of a consent order following settlement is the exercise of power as a decision maker. 3. The performance of both roles in the same proceedings is not prohibited. However, the obligations imposed upon the Tribunal may limit the ability of a particular Member to exercise the Tribunal's order making powers if that Member has acted as a conciliator/facilitator and what occurred during the alternative dispute resolution process makes it inappropriate to do so. 4. In performing these roles, consistent with the objects in s 3 of the NCAT Act, the Tribunal must ensure it: 1. "is accessible and responsive to the needs of all its users"; 2. "resolve[s] the real issues in dispute in proceedings justly, quickly, cheaply and with as little formality as possible"; 3. makes decisions that "are timely, fair, consistent and of high quality"; and 4. "is accountable and has processes that are open and transparent". 1. The principles of case management, the limitation on Tribunal resources and issues of proportionality, the Tribunal's caseload, and the powers granted and obligations imposed on it under ss 36, 37 and 38 of the NCAT Act require the Tribunal to engage with the parties using various forms of dispute resolution which are available and appropriate in the circumstances of the particular case. 2. Where alternative dispute resolution processes are adopted and consent orders are consequentially made or the Tribunal proceeds to determine a dispute at a contested hearing where alternative dispute resolution processes have been engaged, the Tribunal is nonetheless required to comply with its statutory and other obligations imposed at law. Procedural obligations include: 1. affording the parties natural justice: s 38(2) NCAT Act; 2. acting 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: s 38(4) NCAT Act; 3. ensuring the parties to the proceedings understand the nature of the proceedings: s 38(3)(a) NCAT Act; 4. if requested, explaining any aspects of the procedure of the Tribunal or any decision or ruling made by the Tribunal that relates to the proceedings: s 38(3)(b) NCAT Act; 5. ensuring the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(3)(c) NCAT Act. 1. Failure to comply with these obligations is to be treated as an irregularity, the Tribunal being permitted to wholly or partly set aside a decision in proceedings when dealing with such irregularity: see s 53(3) and (4) of the NCAT Act and Atkinson v Crowley [2011] NSWCA 194 per Basten JA at [12]-[13]. Such failures may also constitute an error of law: see eg Italiano v Carbone & Ors [2005] NSWCA 177. 2. Where an order is made by consent by the same Member who has assisted the parties in reaching a settlement agreement, this fact alone is not sufficient to give rise to an irregularity that might render such an order liable to be set aside. Rather, there must be some breach of the obligations above which would give rise to a substantial injustice that should be corrected. 3. Such injustice might arise by the Tribunal imposing undue pressure on the parties to reach a settlement. At an extreme position, bullying or intentionally preventing a party from presenting its case would also give rise to circumstances justifying the setting aside of any consent order made. 4. Relevant considerations would also include whether the party affected is a vulnerable person within the meaning of r 37 of the Rules. 5. On the other hand, statements made during the course of a conciliation process, where no decisions are made and where a party is not otherwise prevented from pursuing its lawful claims would not, without more, be conduct that would give rise to an irregularity sufficient to justify the setting aside of an order made by consent. 6. It is against this background that the present appeal is to be determined. 7. The proceedings seeking a termination order were commenced after the landlord issued a notice of termination in consequence of breaches of the residential tenancy agreement set out above. 8. It is not in dispute that during the hearing the Tribunal erroneously stated: 1. that cl 41D of the RT Reg applied to a termination notice issued by the landlord in this case; and 2. that the termination notice issued was invalid as it did not provide a notice period of 90 days as required by the regulation. 1. It was an obvious error that would have been apparent to the landlord's representative from a cursory review of the legislation, in particular Reg 41A of Part 6A of the RT Reg. 2. The landlord asserts that by reason of the Tribunal's misstatement of the law, "the appellant formed the view that it could not proceed with the termination application and sought instead to have the Tribunal make specific performance orders which the Tribunal proceeded to do by consent". 3. The appellant said that its representative "did not have legal or other qualifications and relied upon the finding of the Tribunal". Reliance is placed on a statutory declaration of Ms Vearing referred to above. The landlord says it would not have entered into the consent agreement but for the error made by the Tribunal. 4. However, it was not submitted Ms Vearing was inexperienced in representing the landlord as its agent in proceedings in the Tribunal in matters involving disputes under the RT Act in respect of residential tenancy agreements. To the contrary, Ms Vearing's evidence was that she had been given authority to act on 3 December 2019, which included "appearing on behalf of DCJ [Department of Communities and Justice] at all hearings in NCAT". Ms Vearing did so in circumstances where the landlord had issued a notice of termination and subsequently applied to the Tribunal for a termination order, presumably on the basis that the landlord satisfied itself it was lawful to do so. Further, Ms Vearing sought to represent the landlord, no doubt on the basis she had the qualities described in r 32(1)(a)-(c) of the Rules, being qualities of the representative to be considered by the Tribunal in determining whether leave should be granted under s 45(1)(b) of the NCAT Act . 5. The landlord also relied on the statement of Ms Vearing at paragraph 6 of her statutory declaration. There she said: "Because the Member advised the notice of termination was not valid and I had to give 90 days notice and would not be able to seek termination, I felt I had no choice but to change my application to seek a Specific Performance Order". 1. Here, the appellant appeared to submit that the hearing process in some way miscarried or that by reason of the Tribunal's statement the representative was in some way prevented from pursuing the application for termination. 2. In making these submissions, reference was made to the transcript and statements made by the Tribunal on this subject matter. 3. The transcript reveals that the hearing commenced with the Tribunal identifying the nature of the application made and the documents filed by the landlord in support of its application, including the notice of termination relied upon to support termination. In the transcript, commencing at page 3 line 19, the following exchange occurred: MEMBER: Okay. The COVID regulations provide that an application for termination under - or the termination notice under section 87 that was served within the moratorium period - and July was within the moratorium period - must give a period of not less than 90 days notice. I am referring to regulation 41D of the Residential Tenancies Regulations 2020. MS VEARING: Okay. MEMBER: So this is at Part 6D of the regulations, it says: Despite any other provision of the act or the regulation the landlord must not, in a termination notice, given under the following provisions during the moratorium period specify a termination date that is earlier than 90 days. And it refers to section 87, so the notice was given under section 87, other than a notice in respect of that section 87 that refers to rental arrears. So this is clearly not for rental arrears it is for other purposes. MS VEARING: Yes. MEMBER: Or other reasons. So the notice is defective according to the COVID provisions. MS VEARING: Okay. MEMBER: So guess we are -- MS VEARING; We will be happy to seek a specific performance order to keep the property clean and tidy and that it is maintained on an ongoing basis with the possible re-list, if possible. MEMBER: There is no re-list because you can't get termination because termination rules are defective. MS VEARING: Right, okay, yes. 1. In our view, this exchange, both in relation to the validity of the termination notice and the request for a relist, did not amount to a decision of the Tribunal. The Tribunal's statements were made in the process of identifying issues and facilitating a possible settlement of the dispute. There was no statement by the Tribunal then, or at any time during the hearing, that the landlord's representative could not make submissions concerning the legislation, in particular whether Part 6A of the RT Reg operated in the circumstances. The appellant did not contend otherwise. 2. Rather, what happened is that the landlord's representative said the landlord would seek alternative relief, namely a specific performance order. Thereafter, the Tribunal discussed with the tenant the state of the premises, the tenant agreeing "the backyard was in a bad condition". 3. It was in this context that an agreement was reached for the making of the specific performance order in the terms we have set out above. The Tribunal then made the specific performance order by consent, the facts admitted by the respondent making it appropriate to do so. 4. In our view, a fair reading of the transcript does not suggest the Tribunal prevented Ms Vearing from pursuing the landlord's application for termination. The fact Ms Vearing formed her own view as to what she should do, without raising the matter with the Tribunal, does not support a conclusion to the contrary. 5. The Tribunal explained its (erroneous) understanding of the law in discussions with the parties. It identified the legislation to which it had regard. In doing so, Tribunal's role was not to provide legal advice to the parties. Rather its role at that time was to facilitate settlement discussions. 6. It remained open for the landlord's representative to read and consider the legislation, advocate for a different interpretation of the relevant legislation and pursue a termination order and ask the Tribunal to make a decision following a contested hearing. She did not do so. Rather, settlement discussions continued, the landlord agreeing with the tenant to the alternative relief of a specific performance order, being one of the forms of relief sought in the landlord's original application. 7. In these circumstances, it could not be said that the Tribunal denied the landlord the opportunity to be heard and present its case. Rather, what occurred is that the landlord simply said "Right, okay, yes" and did not pursue the making of a termination order. A settlement was then reached and consent orders made. 8. To the extent the Tribunal had formed a view of the Part 6A of the RT Reg and its application to the present case, we do not consider this expression of opinion amounted to prejudgment. It is inconceivable that the Tribunal would not have recognised its error if Reg 41A had been drawn to its attention. Further, as the Tribunal was not asked to and did not in fact make a ruling on the issue, it seems to us that bias arising from prejudgment is not a reason to set aside the consent order in the present case. 9. The next matter to consider is whether the consent order was liable to be set aside for by reason of duress, undue influence or other conduct of the Member which might constitute an irregularity or give rise to an error of law. 10. As to duress or undue influence, there are no facts to which we have been referred that would support a finding the Tribunal engaged in such conduct. The landlord did not suggest the Tribunal acted inappropriately, its complaint being that The Tribunal simply misstated the applicability of Part 6A of the RT Reg. There is nothing from the reading of the transcript which would suggest the Tribunal improperly sought to force a settlement upon the landlord. At no stage did the Tribunal say or do anything that prevented the landlord from seeking a ruling in respect of its application for termination as an alternative to agreeing to settle the dispute. 11. Rather, in circumstances where the Tribunal was attempting to narrow issues and facilitate a resolution of the dispute, the evidence shows that the landlord's representative made her own decision to reach an agreed settlement with the tenant based on her assumption the Tribunal was correct. 12. Consequently, we are not satisfied there was any substantial injustice arising from what occurred. 13. The final issue to deal with is mistake. 14. Clearly there was no common mistake as that term is used in Yuen. As to unilateral mistake, even if the landlord's representative was mistaken in relying on the Tribunal's statement, there was no suggestion the tenant was aware of the mistake and no conduct of the tenant that would entitle the landlord to avoid the settlement agreement on this basis. 15. During the course of oral submissions, we asked the landlord's representative whether there was any authority to which he could refer which would support the contention that a party was entitled have consent orders set aside where: 1. a Tribunal or Court had erroneously indicated its view of the law; and 2. that party thereafter declined to make any submissions or seek a ruling on the topic, having opted to seek orders in the form of alternative relief set out in its application. The landlord's representative was unable to do so. 1. Notwithstanding the Tribunal's erroneous statement concerning the application of Part 6A of the RT Reg, in the absence of relevant authority, in the absence of any relevant denial of procedural fairness, and in the absence of some proper basis to set the agreement aside, we are not satisfied any error has been established of the type contended for in the Notice of Appeal or the submissions made. 2. Accordingly, this ground fails. Was the making of the orders by consent invalid by reason of non-compliance with Section 59 (1) (a) of the NCAT Act? 1. The second ground of appeal is that the Tribunal had no power to make orders by consent, the power to do so being found solely within s 59 of the NCAT Act. 2. The appellant relied on a number of Appeal Panel decisions Panel to support this proposition. First was the decision of Sylvaney. At [27] of Sylvaney the Tribunal said: In summary, the Tribunal has discretion to make consent orders under s 59(1) but this discretion is only enlivened if the preconditions set out in subs (1) are satisfied. It would therefore be an error of law if the Tribunal made the orders in the absence of either one of those conditions. In exercising the discretion, the Tribunal must also to take into account the interests of any vulnerable person. Failure to do so would be an error of law (House v The King (1936) 55 CLR 499). 1. Secondly, the landlord relied on the decision of the Appeal Panel in Petropoulos v CPD Holdings Pty Ltd [2019] NSWCATAP 53. At [7] the Appeal Panel there said: Because the parties have not lodged the terms of any agreed settlement as provided for in s 59 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) we must consider this proposal and determine whether to make the orders sought. 1. In that case, the orders sought by consent were that the original costs decision of the Tribunal in the proceedings at first instance be set aside and that the proceedings be remitted to be reconsidered and re-determined by the Tribunal as originally constituted. This order was sought as a consequence of orders made in the substantive appeal. However, a written agreement had not been provided in the form required by s 59. 2. The landlord also relied on the unreported decision of the Appeal Panel in Kelly v NSW Land and Housing Corporation (Appeal Panel - unreported) 4 December 2020 (proceedings number 2020/00042071). In relation to this decision, we note that the Appeal Panel and not the parties raised the issue of there being no written agreement in compliance with s 59. In its oral reasons the Appeal Panel recorded that the respondent/ landlord, also represented by Mr Fester, had: 1. accepted "that s 59 was not complied with and [the landlord had] not identified any other basis upon which the consent orders could be justified"; and 2. conceded that the appeal needed to be allowed and that the orders set aside. 1. Having regard to these authorities, the landlord in this appeal submitted that the procedure of s 59 of the NCAT Act had not been followed, that the Tribunal did not "consider [the settlement proposal] and determine whether to make the orders sought", contrary to Petropoulos, and that the Tribunal therefore erred in law in making the orders by consent. 2. In our view, s 59 of the NCAT Act does not operate in the manner contended for by the landlord and does not prevent the Tribunal making orders at a hearing where the parties provide oral consent. Rather, properly construed, s 59 operates to grant additional powers to the Tribunal in connection with the resolution of disputes for which it has jurisdiction. 3. Our reasons are as follows. 4. The Tribunal when sitting as the Consumer and Commercial Division is exercising judicial power: Attorney General for New South Wales v Gatsby [2018] NSWCA 254. It has general jurisdiction to determine any application conferred upon it under relevant enabling legislation: s 29 NCAT Act. That includes the RT Act. The enabling legislation contains the grant of the order making power in relation to the jurisdiction conferred by the enabling legislation. In addition, unless there are different provisions in the enabling legislation, the NCAT Act also confers on the Tribunal the express additional powers to make interlocutory and ancillary decisions and to determine its jurisdiction (see s 29(2)), powers not presently relevant to this appeal. 5. In exercising its powers, a hearing is required other than in circumstances specified in or permitted by s 50(1) of the NCAT Act unless an order is made dispensing with a hearing as permitted by s 50(2). 6. The hearing process includes the receipt of evidence, the parties making concessions concerning the issues not in dispute and agreed facts that might resolve a dispute, the making of submissions and the making of orders in consequence of any concessions made or matters agreed during the course of the hearing. Absent provision in the NCAT Act or the Rules, the Tribunal is to determine its own procedure in respect of any oral hearing: s 38(1) NCAT Act 7. The obligation of the Tribunal is to facilitate the "just quick and cheap resolution of the real issues in proceedings" (guiding principle): s 36(1) NCAT Act. Section 38(4) requires the Tribunal "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 and legal forms". 8. Neither the NCAT Act, the rules nor regulations, let alone the RT Act, suggest that matters about which there is agreement cannot be dealt with at a hearing in the absence of a written agreement signed by the parties or that any consent must be in writing. Indeed, such a construction would be anathema in the context of an oral hearing. 9. Section 59 is in the following terms: 59 Powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if: (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal and; (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of agreed settlement or in terms that are consistent with the terms of the agreed settlement. 1. Section 59 must be interpreted in a manner that seeks to give effect to the guiding principle: s 36(2)(b) NCAT Act. 2. Section 59 does not purport to regulate the hearing process. 3. However, the landlord contends that this section regulates the making of any order by consent, including at an oral hearing. In effect, the landlord submits that it is the only power of the Tribunal to make orders other than upon determination of a dispute following a contested hearing. 4. In Owners of "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404 the High Court said at 421 : It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words. 1. In our view, the landlord's construction of the legislation inappropriately seeks to confine the powers of the Tribunal to make orders at a hearing. 2. First, it imports into s 59 the expression "consent order" or "order by consent" despite such expressions not appearing in that section. 3. Secondly, it conflates the manner in which s 59 is to operate. 4. In this regard, the power given to the Tribunal is to make such order "as it thinks fit to give effect to any agreed settlement reached by the parties", whether or not any form of order is specified in that settlement agreement and despite the particular form the parties might propose. Section 59(2) also permits the Tribunal to dismiss the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement. 5. That is, it remains for the Tribunal to decide what orders should be made, that discretion to be exercised in the context of the agreement reached between the parties. 6. Thirdly, the appellant's submission ignores the fact that the expression "consent", is separately used in the NCAT legislation, an indicator that consent can be given other than in the form required by s 59(1)(a) of the NCAT Act: see eg cl 9(1)(a) Civil and Administrative Tribunal Regulation, 2013 (NSW). This regulation provides: "In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decision, the Tribunal may order that a decision it made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all the parties to the proceedings have consented to the making of the order to set aside or vary the decision". 1. Fourthly, as stated above, such an interpretation seeks to impose into an oral hearing process the need to reduce any agreements reached by the parties during the course of such hearings to writing which they must then sign, a proposition inconsistent with conducting an oral hearing and inconsistent with s 38(4) of the NCAT Act. 2. In our view, s 59 contemplates an agreement has been reached between the parties outside the hearing process. This seems clear by the language of s 59(1)(a) of the NCAT Act which requires "the terms of the agreed settlement [to be] in writing, signed by or on behalf of the parties and lodged with the Tribunal". The use of the expression "lodged" is consistent with there being an agreement reached between the parties, separate to the Tribunal undertaking a hearing, which is subsequently provided to the Tribunal for the purpose of the Tribunal considering what, if any, orders it should make. 3. Such an agreement may arise by the parties negotiating directly between themselves or through what is called a "resolution process" defined in s 37 of the NCAT Act to mean: any process (including, for example, alternative dispute resolution) in which parties to proceedings are assisted to resolve or narrow issues between them in the proceedings. 1. In the case of an agreement reached through a resolution process, a hearing is not required, although the Tribunal may still hold a hearing: s 50(1)(b) and (5). Again, this is an indicator that s 59 operates in respect of agreements outside the hearing process. In respect of any settlement agreement reached between the parties without assistance, a hearing might only be required where there is a dispute as to the orders to be made to give effect to the agreement, the agreement otherwise evidencing an express or implied consent to dispense with a hearing where the Tribunal is asked to make orders in consequence thereof. 2. Once "lodged" in the appropriate form, the Tribunal then has authority to make orders consistent with the agreement, something it could not otherwise do without a formal hearing. 3. The Tribunal is also required to have regard to r 37 of the Rules, which relates to a vulnerable person who may be directly affected by any orders made, when making orders to give effect to a settlement agreement. However, this rule does not suggest s 59 is the only circumstance in which the Tribunal may make orders by consent or that consent cannot be given orally at a hearing. 4. Seen in this light, the requirements for writing and signing by the parties is nothing more than a means to record the terms of an agreement and consent thereto in order to enable the Tribunal to exercise its order making powers in circumstances where there might be no hearing. That is, s 59 enables the Tribunal to make orders in respect of agreements reached outside a formal hearing. However, it is not a precondition or procedure to be followed in order to enliven the power of the Tribunal to make orders to which the parties provide consent at a hearing. 5. Finally, it might be thought by reference to the heading of the section, namely "Powers when proceedings settled", that there is a limitation imposed, a codification of the circumstances in which orders can be made by consent or the specification of a procedure that must be adopted to enliven a power to make any orders by consent where proceedings settle. However, the heading is not relevant when construing the section: s 39 Interpretation Act 1987 (NSW). 6. Once this heading is disregarded, there seems no basis to conclude that s 59 operates in the context of an oral hearing. 7. We should deal briefly with the authorities relied on by the landlord. 8. In relation to the decision in Sylvaney, we note in that case there was an agreement in writing signed by the parties which the Appeal Panel found complied with s 59 of the NCAT Act: at [28]. Consequently, the statement at [27] was obiter dicta. Also, this decision did not address the broader issue of the practice and procedure to be adopted and what is permissible at an oral hearing. 9. In relation to Petropoulos, there was, apparently, an agreement reached outside the hearing process which was not provided to the Appeal Panel in the form required by s 59. It was not argued that any written submissions signed by the parties or their representatives might constitute writing in compliance with s 59. There was no hearing, the reasons for decision recording the matter was dealt with "on the papers". In these circumstances, nothing we have said is inconsistent with the approach taken by the Appeal Panel in that case. Otherwise, no statement was made by the Appeal Panel in Petropoulos that s 59 otherwise operates to constrain the Tribunal from making orders by consent at an oral hearing. 10. In relation to Kelly, as we said above, the enforceability of the orders because of non-compliance with s 59 was an issue raised by the Appeal Panel, not by the parties. It was a matter conceded by the representative of NSW Land and Housing Corporation in that case and does not appear to have been the subject of argument. 11. Otherwise, for the reasons stated above, insofar as Sylvaney or Kelly stand for the proposition that s 59 prevents the Tribunal from making orders by consent at a hearing unless such consent is in a written agreement signed by the parties, we respectfully disagree. 12. Finally, in the present case, the specific performance order was made in consequence of a telephone hearing where the parties agreed particular facts existed which established both breach and the appropriate remedy. The orders are expressed to be made "by consent". Having regard to the factual matters conceded at the hearing it was clearly open to the Tribunal to make the orders which it did and no relevant error has been disclosed. 13. Consequently, this ground of appeal fails. 14. It follows that the appeal should be dismissed. Orders 1. The Appeal Panel makes the following orders; 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing is dispensed with in respect of the application to amend the name of the appellant and the application to extend time to lodge the appeal. 2. The name of the appellant is amended to the Aboriginal Housing Office. 3. Time to file the appeal is extended to 30 October 2020. 4. 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: 21 April 2021