Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kendray v NSW Land and Housing Corporation [2021] NSWCATAP 117 Hearing dates: On the papers Date of orders: 5 May 2021 Decision date: 05 May 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member D Charles, Senior Member Decision: (1) The application for an extension of time in which to appeal is dismissed. (2) Appeal dismissed. Catchwords: APPEALS - right of appeal - scope of right – second appeal from the same orders made by the Tribunal as were the subject of the first appeal – only one appeal may be brought from the same orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 32(3)(a), 82 Cases Cited: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Grierson v R (1960) 60 CLR 431; [1938] HCA 45 Kendray v NSW Land and Housing Corporation [2020] NSWCATAP 281 National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315; [2002] NSWCA 273 Raymond George Morgan v R (No 2) [2013] NSWCCA 80 Satchithanantham and Ors v National Australia Bank [2010] NSWCA 243 Texts Cited: Nil Category: Principal judgment Parties: Linda Gay Kendray (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Appellant (Self-Represented) R Fester, Department of Communities and Justice (Respondent) File Number(s): 2021/00056043 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 3 August 2020 Before: J Lynch, General Member File Number(s): SH 20/17890 REASONS FOR DECISION 1. This is a second appeal lodged by the appellant against orders made by the Tribunal on 3 August 2020 terminating her residential tenancy agreement with the respondent and ordering the appellant to pay a daily occupation fee from the day after the date of termination until vacant possession is given to the respondent. 2. The appellant is not entitled to appeal from the same orders of the Tribunal more than once, nor to appeal from the orders made by one Appeal Panel to another Appeal Panel. 3. Accordingly, the appeal must be dismissed. Background 1. The parties entered into a residential tenancy agreement on 30 October 2012. 2. On 3 August 2020 the Tribunal made the orders to which we have referred at [1] above. The appellant appealed from those orders in appeal proceedings AP 20/43632. 3. On 22 December 2020 the Appeal Panel (differently constituted) decided the appellant's appeal – Kendray v NSW Land and Housing Corporation [2020] NSWCATAP 281. 4. In that decision the Appeal Panel set out the background to the appeal before it. The Appeal Panel said: "1. The appellant entered into a residential tenancy agreement with the respondent on 30 October 2012 (the Tenancy Agreement). 2. On 5 December 2019, a search warrant was executed on the premises at Albury by the NSW Police who discovered various quantities of prohibited substances contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The appellant admitted to police growing 10 cannabis plants in the rear yard and watering them. 3. On 30 July 2020, the Tribunal heard the respondent's application as landlord to terminate the Tenancy Agreement. On 3 August 2020, the Tribunal below found that matters under section 91(1)(a) of the Residential Tenancies Act 2010 (NSW) (the RT Act) to be satisfied and having considered the discretion within 154E of the RT Act, made an order for termination and vacant possession (the Reasons). 4. The Tribunal immediately terminated the appellant's Tenancy Agreement on the grounds that the appellant intentionally caused the premises to be used for the cultivation of prohibited drugs. The Tribunal suspended the order for possession until 3 November 2020. 5. The appellant lodged her appeal on 16 October 2020. On 11 December 2020 we heard the appeal and ordered the dismissal of the appeal. These are our reasons for this decision." 1. The orders made by the Appeal Panel were: "(1) The application for an extension of time in which to appeal is dismissed; (2) The application for leave to appeal is dismissed; (3) The appeal is dismissed; (4) The stay orders of 19 October 2020 are varied as follows: (a) The order for possession made on 23 August 2020 in matter number SH20/17890 is suspended until 31 March 2021; (b) The stay of the order for possession until 31 March 2021 is conditional upon the appellant: (i) paying an any arrears of rent; and (ii) paying the rent and the occupation fee." 1. On or about 14 January 2021 the appellant commenced further appeal proceedings, being AP 21/01987, being an appeal from the same Tribunal orders (in proceedings SH 20/17890) as had been appealed from and decided in Kendray v NSW Land and Housing Corporation [2020] NSWCATAP 281. 2. As the appellant is unrepresented, we have also treated this appeal as perhaps also an appeal by the appellant from the Appeal Panel's decision of 22 December 2020. Decision 1. In the criminal law it is well established that there can only be one appeal from convictions on indictment, even in circumstances where the first appeal is from certain counts and the second appeal from others - Raymond George Morgan v R (No 2) [2013] NSWCCA 80 citing Grierson v R (1960) 60 CLR 431; [1938] HCA 45. 2. Our research has not uncovered any civil cases in which the issue of multiple appeals from the same orders has been dealt with at length, although we will mention one civil authority which touches on the issue towards the end of these reasons. 3. The reasoning in Grierson – which we consider applies equally in the Tribunal, at least by analogy - was succinctly set out by Beazely P (as her Excellency then was), with whom Hidden and Harrison JJ agreed, in Morgan as follows: "[39] The question in Grierson was whether an appeal, once determined, may be reopened or whether a second appeal may be brought. Grierson, who was indicted on two counts and convicted of both, had appealed to the New South Wales Court of Criminal Appeal. The appeal was dismissed. Grierson later purported to bring a second appeal from his convictions on the same two counts on the basis that, since his original appeal, material facts had become known regarding one of the Crown's material witnesses. The Court of Criminal Appeal refused to reopen the original appeal or to grant leave to bring a fresh appeal: R v Grierson (1933) 50 WN (NSW) 71. [40] Grierson appealed to the High Court. Rich J, observing that a person's entitlement to appeal was founded in statute concluded, at 434, that: '… the jurisdiction of the Court of Criminal Appeal is confined within the limits of the Act and that when the court has heard an appeal on its merits and given its decision the appeal cannot be reopened.' [41] Dixon J was of the same opinion. His Honour observed, at 435, that the Court of Criminal Appeal had held, in accordance with the decision of the Supreme Court of South Australia in R v Edwards (No 2) (1931) SASR 376, that: '… a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal and that the first appeal could not be reopened after a final determination.' [42] After expressing his agreement with that proposition, Dixon J stated, at 435–436: 'The jurisdiction is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers. The Criminal Appeal Act of 1912 NSW … does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources. It defines the grounds, prescribes the procedure and states the duty of the court. The statute deals with criminal appeals rather as a right or benefit conferred on prisoners convicted of indictable offences and sets out the kind of convictions and sentences from which they may appeal and lays down the conditions on which they may appeal as of right and by leave and the procedure which they must observe. It limits the time within which appeals and applications for leave to appeal may be brought, subject, however, to a discretionary power in the court to extend the period except where the sentence is capital. The grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed. The determination of an appeal is evidently definitive, and a conviction unappealed is equally final. (emphasis added) [43] McTiernan J, at 437, agreed with the reasons of Rich and Dixon JJ. [44] Starke J, at 435, also considered that the application should be dismissed, expressing entire agreement with the reasons of Jordan CJ in the New South Wales Supreme Court, where Jordan CJ had stated: 'When an appeal has once been fully heard and disposed of, that is, in my opinion, an end of the matter … and the prisoner cannot continue to appeal from time to time thereafter, whenever a new point occurs to him … or whenever a new fact is alleged to have come to light.' 1. We consider this principle applies to the Tribunal because, just as it was in those cases, so the jurisdiction of an Appeal Panel is equally confined within the limits of the governing statute, being the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"). 2. In Morgan the Court of Appeal examined cases which came after Grierson, including cases where the relevant appeals included (as the first issue to be decided) an extension of time to appeal (which is the same situation presented to us and the earlier Appeal Panel in Kendray). The cases particularly examined were Matta v R (1995) 126 FLR 127 and Napier v Western Australia [2008] WASCA 106; 36 WAR 543. Her Honour said, at [73], that these authorities, in addition to the others to which her Honour referred, correctly stated the law. 3. Matta included consideration of multiple appeals where different appeal grounds were raised in the two appeals, or where extensions of time were required. 4. Extensions of time to appeal are generally thought to be interlocutory decisions against which there is no absolute bar against multiple applications (for the same relief). However, ordinarily some material change in circumstances is required to justify departure from a previous interlocutory decision – Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 at [177]-[178]; National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315; [2002] NSWCA 273 at [16]-[17]. 5. In relation to Matta, and circumstances where different grounds of appeal are raised between the two appeals or where there are multiple applications for extensions of time to appeal, Beazley P said: "[46] The Crown relied upon two Western Australian decisions in which Grierson had been applied: Matta v R (1995) 126 FLR 127 and Napier v Western Australia [2008] WASCA 106; 36 WAR 543. In Matta, the applicant had been charged with three drug offences, two contravening Commonwealth law and the third offence contravening a State law. The applicant was found guilty by unanimous verdicts of guilty in respect of each count. The applicant filed an application for an extension of time to appeal on the basis that the trial judge had erred in law by directing the jury that he would accept a majority verdict. Whilst a majority verdict was available in respect of the State offence, it was precluded in respect of the Commonwealth offences pursuant to The Constitution, s 80, as had been determined by the High Court in Cheatle v R [1993] HCA 44; 177 CLR 541. [47] The application for extension of time was refused on the basis that there was no merit in the proposed appeal in circumstances where the jury had brought in unanimous verdicts in respect of both the Commonwealth and State offences. Relevantly for the question presently under discussion, the applicant's counsel, in the course of the hearing of the application for extension of time, informed the court that the applicant wished to appeal only against the convictions for the two Commonwealth offences. [48] Subsequently, the applicant filed a further application for extension of time to appeal against all counts on the basis that certain evidence had been wrongly admitted. The Crown opposed the application contending that the proposed appeal was not competent by reason of the court's earlier refusal to extend time. [49] Pidgeon J, at 128–129, noted that Grierson was authority for the proposition that a second appeal or application for leave to appeal from a conviction cannot be entertained after its dismissal upon the merits. His Honour considered, at 129, that this rule was binding even where different grounds were put forward in the second application. See also R v Wickliffe [1986] 1 NZLR 4. His Honour concluded, on the basis of the reasoning in Grierson, that it made no difference whether the court had refused an extension of time as distinct from refusing an application for leave to appeal. His Honour observed that in Grierson, Dixon J had stated that the principle applied both to an appeal or application for leave to appeal. Pidgeon J considered, at 129–130, that similar reasoning applied to an application for extension of time, because the determination of that application involved a consideration of the merits of the proposed grounds of appeal. [50] His Honour held that the position was no different where, in the original application for an extension of time, the proposed appeal on the State count had not been considered on its merits. As his Honour noted, at 130: 'It is not open to lodge separate appeals on each count of a multiple indictment. There is one appeal.' [51] Rowland J, at 130, agreed with the reasons of Pidgeon J. Owen J also agreed with his Honour's reasons, but added additional comments on the question of multiple appeals. His Honour stated, at 131, that once an appeal had been heard on the merits, all statutory rights of appeal were exhausted and any further appeal was incompetent: see Grierson at 435–436. It was irrelevant, on his Honour's approach, that the second application was based on different proposed grounds of appeal from those advanced on the earlier occasion. His Honour considered that this principle applied, whether or not the question arose on a substantive appeal or on an application to extend time in which to appeal." 1. As would have been observed from the orders of the Appeal Panel set out at [8] above, the first issue the Appeal was required to deal with was the extension of time, an application which was refused. It is also apparent that in coming to its decision the Appeal Panel considered the merits of the grounds of appeal raised by the appellant in order to determine their likely prospects of success – see Kendray at [33]-[56]. The Appeal Panel concluded that the appellant's grounds of appeal did not enjoy good prospects of success (at [31]). 2. In any event, the important point is that, in relation to appeals and extensions of time (at least where the determination of that application involved a consideration of the merits of the proposed grounds of appeal) there can be but one appeal from orders of the Tribunal to an Appeal Panel. 3. A party unhappy with a decision of an Appeal Panel has certain rights of appeal from that decision to the Supreme Court under s 82 of the NCAT Act, or, possibly, a right to re-open an appeal. As to the latter, Beazley P said in Morgan at [62]: "In R v Reardon [2004] NSWCCA 197; 60 NSWLR 454 Hodgson JA (Simpson and Barr JJ agreeing) observed, at [41], that Grierson was authority for the proposition that once an appeal had been heard and determined and the order perfected, there is no jurisdiction to re-open the appeal. His Honour accepted that this principle was subject to the slip rule, cases of fraud and possibly where there had been a breach of procedural fairness. In regard to the last of these matters, his Honour stated, at [41]: 'Failure to deal with an argument that has been advanced, or deciding an appeal on a basis not properly argued, although possibly amounting to a denial of procedural fairness and thereby to an error of law, could not of itself in my opinion be a failure to determine the appeal such as could avoid the operation of the principle in Grierson.'" 1. And at [70]: "The ratio of Grierson is that an appeal against conviction is final and cannot be reopened, subject only to the rules of court which allow an appeal to be revisited if application is made within the time prescribed by the rules." 1. Whether a decision of an Appeal Panel may be re-opened in those circumstances (or any others) is an open question, there being no equivalent provisions in the NCAT Act, rules or regulations as those referred to by Beazley P at [70] in Morgan in relation to the Supreme Court. However, that is not a question we must decide in this appeal and we do not do so. 2. Suffice to say there is no reliance by the appellant on the slip rule, fraud is not alleged and, even were this an available ground (which the Court of Appeal in R v Reardon doubted) no allegation is raised of procedural unfairness by the Appeal Panel. 3. As we said earlier, our research has not uncovered any civil cases in which the issue of multiple appeals from the same orders has been dealt with at any length. The issue was touched on in Satchithanantham and Ors v National Australia Bank [2010] NSWCA 243. In that case Handley AJA, with whom Macfarlan JA and Sackville AJA said at [12]: "The judgment of this court of 2 September 2009 dismissing the appeal from the judgment of McCallum J of 6 February that year finally determined the rights of Mrs Satchi and the Bank and the High Court refused special leave to appeal. This means that the merits of this court's judgment of 2 September can no longer be examined or re-examined in any court anywhere." 1. On the basis of those authorities, it is our opinion that the appellant cannot again appeal (or again seek an extension of time to appeal) from the decision of the Tribunal from which this appeal is brought. She has exercised her rights of appeal from that decision in her earlier appeal, and those rights are now exhausted. 2. There must be finality to litigation. And it was that principle that underpinned the reasoning in Grierson. As Beazley P said in Morgan: "[74] The principle of finality of litigation was examined by the High Court in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [34]: 'A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.' [75] In Burrell the court emphasised that the reargument or reagitation of issues already decided by a court involves an unacceptable and, indeed, unavailable, departure from the principle of finality: see especially at [15], [16] and [19]; see also Kirby J at [98]. See also Eastman v R [2008] FCAFC 62; 166 FCR 579. [76] If more than one appeal was allowed from convictions of different counts on an indictment, there may well be an overlapping of issues in the different appeals. There may also be a determination in one appeal which would conflict with the determination in the second appeal. 1. In our opinion the same underlying principle applies in the Tribunal. 2. For completeness, the appellant cannot appeal to an Appeal Panel from a decision of another Appeal Panel. The internal appeal jurisdiction of the Tribunal does not extend to any decision of an Appeal Panel – see s 32(3)(a) of the NCAT Act. 3. In those circumstances the appellant's appeal fails. Orders 1. We make the following orders: 1. The application for an extension of time in which to appeal is dismissed. 2. Appeal dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 05 May 2021