Supreme Court New South Wales Medium Neutral Citation: Tanious v NSW Land & Housing Corporation [2021] NSWSC 807 Hearing dates: 30 June 2021 Date of orders: 30 June 2021 Decision date: 30 June 2021 Jurisdiction: Common Law Before: Garling J Decision: (1) Leave to appeal refused. (2) Summons filed 24 February 2021 is dismissed. (3) No order for costs. Catchwords: ADMINISTRATIVE LAW – leave to appeal against a decision of the Appeal Panel of NCAT – question of law – no question – no error found – summons dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Cases Cited: Corcoran v Far [2019] NSWSC 1284 Texts Cited: Not Applicable Category: Principal judgment Parties: Mofeed Tanious (Applicant) NSW Land & Housing Corporation (Respondent) Representation: Counsel: Self-represented (Applicant) G Faramarzi (Respondent) File Number(s): 2021/52933 Publication restriction: Not Applicable Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Appeal Panel Date of Decision: 2 February 2021 Before: Principal Member Suthers; Senior Member Currie File Number(s): 2020/47050 EX TEMPORE Judgment 1. On 24 February 2021, the plaintiff, Mofeed Tanious, filed a Summons seeking leave to appeal and commencing an appeal in respect of a decision of 2 February 2021 made by the Appeal Panel of the NSW Civil and Administrative Tribunal ("NCAT"). The defendant is the NSW Land and Housing Corporation. 2. The Summons sought the following orders in these terms: 1. Leave to appeal from the whole of the decision below. 2. Appeal to be allowed. Alternatively extending the time until final judgment from the honourable High Court of Australia come up in case number S35/2020. 3. Direct contact the honourable High Court Justice concerning judgment in the case S35/2020 because there was no judgment in support for that faked certificate of Deemed Abandonment which was dated on 1 September 2020. 4. No order for cost because defendant did not look for any costs previously. Relevant Statutory Provisions 1. NCAT is an administrative body created by the Civil and Administrative Tribunal Act 2013 ("the Act"). It has only such powers as are given to it by the Act. 2. The appeal brought by the plaintiff is brought pursuant to s 83 of that Act which relevantly provides as follows: "83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. ... (3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following— (a) an order affirming, varying or setting aside the decision of the Tribunal, (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court." 1. Section 83 of the Act also provides that an appeal under that section does not operate as a stay on any previous decision. Background to Present Proceedings 1. It is necessary to give a short background to these proceedings. 2. There has been, since 2016, litigation between the plaintiff and the defendant with respect to his tenancy at premises in a suburb of Sydney. After previous litigation, on 30 January 2020, the defendant applied to NCAT for a warrant of possession based on orders which had been made by NCAT on 1 June 2018. A contested hearing took place with respect to that application before a single Tribunal member ("the Member"). 3. On 4 November 2020, the Member delivered reasons for his decision which ordered the issue of a warrant of possession requiring the plaintiff to give the defendant vacant possession of the premises by 12 November 2020. 4. An application was made to a single member of the Appeal Panel by the plaintiff for a stay of that decision. That application was unsuccessful. 5. On 9 November 2020, the plaintiff filed an application for leave to appeal against the decision of the Member. The application listed a number of grounds for the appeal and sought orders that the decision of the Member of 4 November 2020 be stayed, set aside or dismissed, and that there be no order for costs. 6. The Appeal Panel of NCAT heard the appeal and on 2 February 2021 delivered reasons for its decision to refuse leave to appeal and to dismiss the appeal. 7. These proceedings commenced by the Summons identified in [1] and [2] are brought with respect to that decision of the Appeal Panel. Questions of Law 1. I have earlier noted the provisions of s 83 of the Act which provides that an appeal to this Court may only be brought providing leave is granted, on a question of law. It is necessary and indeed appropriate for a Summons to clearly identify the questions of law upon which leave to appeal is sought: see Corcoran v Far [2019] NSWSC 1284 at [26]. The formulation of the question of law is essential to inform the consideration of, and determination of, whether leave to appeal ought be granted: see Corcoran at [29]. 2. So far as can be gleaned from the Summons and the extensive material filed in support of the Summons by the plaintiff, two questions are identified which the plaintiff contends are questions of law and in respect of which the plaintiff argues that the Appeal Panel made a decision which was erroneous. 3. The first of these questions relates to the conclusion of the Member and the Appeal Panel to the effect that each was satisfied that a special leave application brought by the plaintiff in the High Court of Australia in proceedings numbered S35/2020 had been "deemed to be abandoned". The second question raises whether that Member should have, but did not, make direct contact with the High Court of Australia to establish what the true and accurate status was of the plaintiff's application for special leave to appeal in proceedings S35/2020. I will deal with each of these in turn. Deemed Abandonment Issue 1. The first issue, which I will call the Deemed Abandonment issue, was the subject of evidence and argument before the Member. The principal evidence was a document issued by the Deputy Registrar of the High Court of Australia dated 1 September 2020 under the seal of the High Court in the proceedings, and which read as follows: "CERTIFICATE OF DEEMED ABANDONMENT I, Matt Grey, Deputy Registrar of the High Court of Australia, certify that the Applicant, MOFEED TANIOUS, has failed to comply with the provisions of Rules 41.03.1 and 41.03.2 of the High Court Rules 2004 and accordingly, pursuant to Rule 41.10.1(a), the application for special leave to appeal has been deemed to have been abandoned." 1. The applicant put material before the Member upon which he relied to support his submission that, in truth, and contrary to the Certificate dated 1 September 2020, his special leave application made in proceedings S35/2020 had not been abandoned but was still on foot. 2. In the reasons for decision issued by the Member, the following appears: "The current application for the issue of a warrant for possession was based on the original order lodged by the landlord on 30 January 2020. Another appeal was dismissed by the Court of Appeal on 6 March 2020. The tenant then commenced proceedings in the High Court of Australia again. I am satisfied that the High Court has dismissed this last application as abandoned in accordance with the High Court Rules. The advocate for the landlord confirmed that this had occurred when a certificate of Deemed Abandonment was filed in the High Court registry." 1. A little further on in the decision the Member said this: "... Notwithstanding the tenant's stated intention to appeal again his submissions attempting to cast doubt on the High Court's action are without substance." 1. Those findings were challenged by the plaintiff and were considered by the Appeal Panel. The Appeal Panel in its reasons said this: "The first basis of challenge relied upon by the appellant in his appeal is that he says the Tribunal was incorrect in finding that he had in fact been deemed to have abandoned his appeal to the High Court of Australia. Despite the Tribunal having in evidence before it and us having in evidence before us a signed certificate dated 1 September 2020 apparently signed by Matt Grey, Deputy Registrar, of the High Court of Australia, Sydney Registry indicating that the appeal was deemed abandoned Mr Tanious makes a bare assertion that the respondent procured the certificate in some inappropriate way and that it is incorrect." 1. The Appeal Panel reviewed the evidence and concluded that the evidence that was before it and also before the Member, did not prove the assertion that the plaintiff had made that the certificate was incorrect or in any way inaccurate. The Appeal Panel expressed its conclusion in these terms: "Further, the appellant has provided no evidence whatever, establish […] beyond his bare assertion that he in fact has an ongoing application for special leave to the High Court. The finding that the application for special leave was dismissed was open to the Tribunal." 1. In this Court, the plaintiff seeks to re-agitate the issue about the correctness of the certificate of the High Court. He seeks to persuade this Court, by reference to a series of emails sent by him to the High Court of Australia and by the High Court of Australia to him, together with assertions of the factual circumstances at the time the special leave application was filed in March 2020, of the circumstances surrounding a suggested hacking event of the High Court website in June 2020, and the content of the Certificate issued by the Deputy Registrar in September 2020, combined with the absence of any judicial decision of the High Court of Australia determining his special leave application, that as a matter of fact he has not abandoned his special leave application to the High Court of Australia and that it remains on foot. 2. The issue of whether or not a special leave application was or was not current and on foot in the High Court of Australia at the time these proceedings were before the Member and the Appeal Panel, is a question of fact and not law. Either there were extant proceedings in the High Court or there were not. The Certificate which was relied upon is not said to have been anything other than a certificate issued by the High Court of Australia. Although hearings in NCAT are not obliged to observe the rules of evidence (except in a small area of matters dealing with penalties and enforcement). To the extent that there is any doubt about that, the provisions of s 156 of the Evidence Act 1995 set out a statutory presumption with respect to public documents (such as the certificate) which provides that unless the contrary is proved, a document which purports to be a copy of a public document, and to have been sealed with the seal of the relevant body, is that which it appears to be. 3. The Member was not satisfied by reference to the material before him that the special leave proceedings were still on foot. To the contrary, he was satisfied that they had been deemed to be abandoned. There was material before him which enabled him to come to that conclusion. The Appeal Panel was correct to hold that it was open to the Member to come to that decision. On the material before the Appeal Panel, it also determined that that decision was correct. 4. There is nothing placed before this Court on this first issue which causes me to have any doubt that the correct conclusion of fact was reached by the Member and by the Appeal Panel. There is no obligation on this Court to determine that question of fact afresh because any consideration of this issue is limited to considering whether there is any question of law arising from the Appeal Panel's decision on this issue. No such question of law exists. 5. The issue about the deemed abandonment is a question of fact, not of law. There was evidence available to the Member and the Appeal Panel to reach the factual conclusion to which they came. Accordingly, no question of law, or even any error, has been demonstrated with respect to that issue. Direct Contact Issue 1. The second issue that is raised relates to the failure, notwithstanding a request by the plaintiff, of the Member to make direct contact with the High Court of Australia in order to establish the validity and correctness of the Certificate of deemed abandonment. The Member did not make such contact. Complaint was made about that failure in the hearing before the Appeal Panel. The complaint made was in these terms: "2. During the hearing over the phone appellant has looked for Tribunal member should contact the Honourable [High] Court of Australia concerning the lack of certificate. But, unfortunately, the appellant's request has been rejected. Jeopardising the appellant right in order to let him lose the home he lived in continuously since 2005 and has made a nice garden and paving over there." 1. The plaintiff did not, in his Notice of Appeal to the Appeal Panel, seek an order that it contact the High Court of Australia. However, in the Summons before this Court, it seems that the plaintiff seeks that this Court direct that the contact with the High Court of Australia be made. 2. The Appeal Panel identified the plaintiff's complaint that the Member did not contact the High Court as a ground of appeal. It inferred that the complaint about the failure of the Member to contact the High Court ought be regarded as a breach of procedural fairness. The Appeal Panel said this: "We reject these assertions. Not only does it not indicate a breach of procedural fairness, but it would go well beyond that required of the Tribunal under section 38(6)(a) of the NCAT Act to do so..." 1. The practice and procedure of the Tribunal is provided for in Pt 4 of the Act. Section 36(1) of the Act provides that the guiding principle for the Act and the procedural rules in their application to proceedings in the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. However, that guiding principle is not apt to require a Member to do undertake any factual enquiry for themselves about the issues in the proceedings. 2. The procedure of the Tribunal generally is provided for in s 38. I note that s 38 does provide that the Tribunal may determine its own procedure in relation to any matter, but that is in circumstances where the relevant Act and the procedural rules do not otherwise make provision. I note that subject to the rules of natural justice, the Tribunal is not bound by the rules of evidence and may enquire to inform itself on any matter in such manner as it thinks fit. 3. Section 38(6) of the Act is in the following terms: "(6) The Tribunal- (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings; (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing – may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases." 1. I observe that there is no specific mandated obligation on a member of the Tribunal who is hearing a matter to gather evidence for themselves, to make inquiries of third parties or in any way to participate as a fact gatherer in the dispute to be determined by them. Their role is to adjudicate on the dispute. 2. The order sought by the applicant of the Member was that the Member himself should gather evidence which the applicant asserted would support the submissions he was making. The Member did not take up that invitation. The Appeal Panel, having considered the matter, rejected the existence of any mandatory obligation falling on the Member to undertake those enquiries. The Appeal Panel concluded that what was asked of the Member travelled beyond the requirements set out in s 38(6) of the Act. 3. It is to be kept in mind at all times that NCAT is a body which is established to determine disputes between parties contained in the proceedings brought before it. NCAT is not an inquisitorial tribunal designed or resourced to undertake independent investigations of any matter of fact raised by a party to a dispute brought before it. Its obligation is to hear and determine disputes in accordance with the guiding principle. It would have been an error, in my view, for the Member to have acceded to the plaintiff's request that he undertake independent investigations about a question of fact to be decided in the proceedings. The Appeal Panel was correct to reject the argument that the Member ought to have undertaken independent investigations. Equally, it would not have been open in my view to the Appeal Panel to itself make any such enquiry, even if it had been requested to do so. 4. The underlying issue, namely whether or not the special leave application was on foot or had been deemed to be abandoned was, as I have earlier indicated, a matter of fact to be proved in the proceedings. The plaintiff in this Court contended that it had not been abandoned. He brought no evidence to support that contention. His evidence was, if anything, directed at demonstrating that a certificate presumed to be correct was in fact incorrect. The Tribunal member was not persuaded of that, nor was the Appeal Panel. These, as I have earlier said, were questions of fact. I do not regard the failure by the Tribunal member to accede to an application to himself make enquiries about a matter of fact as being a ground which raises any question of law in this Court. If it does raise a question of law, there is absolutely no merit in this ground. Conclusion 1. In conclusion the plaintiff, who has appeared for himself and has articulated well the arguments which he wishes to put, has failed to demonstrate any error in the decision of the Member when he appealed to the Appeal Panel of NCAT. In bringing these proceedings, he has to demonstrate why leave should be granted and identify a question of law. 2. I am not satisfied that in respect of the first issue brought before this Court that any question of law has been identified. I am not satisfied that any error in the Appeal Panel's decision on this issue has been demonstrated. I am not satisfied in respect of the second issue that that ground has any merit because neither the Member nor the Appeal Panel made any error. It follows that leave to appeal ought be refused and the Summons filed on 24 February 2021 ought be dismissed. 3. Before finally making those orders, I add that insofar as it was suggested (and this was unclear by the terms of order 3 of the Summons) that this Court should itself undertake enquiries of the High Court of Australia, I decline so to do. This Court is hearing an appeal. Under the statute it has the power to affirm the decision below, to vary it, or set it aside. It can remit the matter to NCAT if error is shown. This Court is not a fact-finding court and it would be erroneous for this Court to undertake such enquiries. Costs 1. Finally, I note that the applicant has asked that no order for costs should be made in the event that the Summons is dismissed. I note that the defendant does not seek any order for costs. Orders 1. Accordingly, the following orders will be made: 1. Leave to appeal refused. 2. Summons filed 24 February 2021 is dismissed. 3. No order for costs. ********** Amendments 05 July 2021 - Addition of catchwords 05 July 2021 - Typographical error 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 July 2021