Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chadwick v NSW Land and Housing Corporation [2022] NSWCATAP 62 Hearing dates: 25 February 2022 Date of orders: 9 March 2022 Decision date: 09 March 2022 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member Dr J Lucy, Senior Member Decision: (1) The application for an extension of time in which to lodge the appeal is refused. (2) The appeal is dismissed. Catchwords: LEASES and TENANCIES-social housing tenancy-orders for payments in arrears and specific performance orders for payments-old decision of Consumer Trader and Tenancy Tribunal no longer in existence-subsequent decisions by NCAT in 2018 and 2019. APPEAL – lengthy delays in lodging appeal-application for an extension of time in which to lodge appeal-inadequate explanation for delay-weak or no prospects of success to obtain necessary grant of leave to appeal-no appeal right from Consumer Trader and Tenancy Tribunal-interests in finality of litigation-interests of justice do not warrant extension of time. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (repealed) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Collins v Urban [2014] NSWCATAP 17 Giappichello and Anr v Eakin's A-1 Pools Pty Ltd [2015] NSWCATAP 141 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: None cited Category: Principal judgment Parties: Sandra-Anne Ngaone Chadwick (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Solicitors: Appellant (Self Represented) NSW Land and Housing Corporation (Respondent) File Number(s): 2021/00219756 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Before: S Hanstein, General Member (SH 11/30606, SH 18/36780) D Moss, General Member (SH 18/46677); J Bourne, Deputy Divisional Registrar (SH 19/37365) File Number(s): SH 11/30606; SH 18/36780; SH 18/46677; SH 19/37365 REASONS FOR DECISION Overview 1. The appellant, Ms Chadwick, appeals from three sets of orders made by the Civil and Administrative Tribunal, NSW (NCAT) in three proceedings in which the respondent (NSW Housing), a corporation, was the applicant. She also seeks to appeal from an order made by the Consumer Trader and Tenancy Tribunal (CTTT) in July 2011. NCAT was established in early 2014, at which time the CTTT ceased to exist. 2. Since December 2005, Ms Chadwick has been a social housing tenant of NSW Housing premises in the Greater Newcastle region of New South Wales. She is a single mother with one son. She works as an Administration Officer, Medical Receptionist. 3. The orders the subject of this appeal were made on 12 July 2011, 10 September 2018, 20 November 2018 and 4 September 2019 (misstated in the appeal as 5 September 2019). Ms Chadwick requires an extension of time in which to bring this appeal. Her application for that extension is opposed by NSW Housing. 4. Her appeal was lodged on 30 July 2021. On 27 August 2021 an order was made in the conduct of this appeal that the application for an extension of time should be determined in a preliminary hearing in advance of determination of the balance of the appeal. 5. At the directions hearing in the appeal on 27 August 2021, it was also ordered that, subject to further order, a determination as to whether an extension of time would be granted should be dealt with on the papers, without an oral hearing. Under the directions made that day the parties were directed to indicate in written submissions whether there was any objection to the preliminary question being determined on the papers. Subsequently, in her written submissions, dated 10 September 2021, lodged on 16 September 2021, Ms Chadwick expressed a wish for an oral hearing. This led to a decision by the Appeal Panel to conduct an oral hearing on 6 December 2021. On that occasion, Ms Chadwick sought an adjournment of the hearing in order to complete an affidavit in relation to the merits of the appeal that she said was well advanced and would require about another 20 pages to be complete. We granted the adjournment and fixed a new date of 25 February 2022 for the hearing of the application for an extension of time. 6. Following the hearing on 25 February 2022 (by telephone), for the reasons set out below, we have decided that the application for an extension of time in which to lodge the appeal should be refused. Brief outline of the complaint in relation to the orders 1. We elaborate upon Ms Chadwick's contentions in more detail below, but by way of introduction, give a brief outline of what she says. 2. As will appear, appropriately, in our opinion, Ms Chadwick focuses upon the orders made on 10 September 2018 and 20 November 2018, rather than the much earlier order made on 12 July 2011 and the later order made on 4 September 2019. 3. Ms Chadwick has placed particular emphasis upon events that occurred in the period from August 2018 to April 2019 and to the views she has come to hold about how she was treated by NSW Housing concerning amounts that the corporation claimed she owed in respect of her tenancy. 4. As to the orders made on 10 September 2018, which were made in her absence, at its highest, she contends that the representative of NSW Housing at the hearing lied to the Tribunal by telling the Tribunal that Ms Chadwick had made an agreement to pay the amounts that came to be set out in those orders. Associated with this contention, are contentions that commencing those proceedings and the manner in which NSW Housing conducted itself in relation to those proceedings, including after the orders were made, were part of a course of mistreatment of her by the corporation consisting of bullying, dishonest conduct, unlawful victimisation and racial discrimination. 5. As to the orders made on 20 November 2018, Ms Chadwick complains, particularly, that the orders that she says were wrongfully obtained on 10 September 2018 were improperly used to commence these new proceedings and, as well, about how she and her supporter at the hearing on 20 November 2018 (Mr Rowan) were treated in a conciliation process that occurred before the hearing on that day. She contends that this conduct was also part of the wider mistreatment she experienced that we have just referred to. 6. The orders made on 20 November 2018 were made in proceedings commenced by NSW Housing on 31 October 2018 in which an order was sought for termination of the tenancy and possession on the basis of an alleged failure by Ms Chadwick to pay amounts the subject of the orders made on 10 September 2018. 7. In relation to the wider mistreatment about which she complains, in May 2019, Ms Chadwick made a complaint to the Australian Human Rights Commission. Subsequently, in December 2020, she commenced proceedings in the Federal Court in relation to this conduct in which she complains of racial discrimination and unlawful victimisation. The Federal Court proceedings are still on foot. 8. Ms Chadwick says that the relief that she seeks by the appeal includes that various orders be "struck off my record", which we interpret to include a contention that the relevant orders be set aside. In her Notice of Appeal she also refers to seeking a written apology and any other ruling that NCAT believes is appropriate. 9. Ms Chadwick says she does not criticise the Tribunal for making the orders she challenges. Rather, her contention is that they were obtained as a consequence wrongful conduct on behalf of NSW Housing, the Department of Family Community Services (FACS), as then existed, and the Department of Communities and Justice (DCJ), which was established in July 2019 and took over relevant responsibilities of the, previously, existing FACS. 10. In the circumstances, it does not appear that Ms Chadwick challenges the orders on the basis of any error of law. Rather, it seems that her challenge is founded upon misinformation given to the Tribunal. The limited appeal right 1. It is important to point out, at the outset, that an appeal to the Appeal Panel is against orders made by the Tribunal. It is not a process to challenge the fact that proceedings were commenced and pursued in the Tribunal against the appellant, or to seek relief against alleged misconduct directed against an appellant in multiple dealings of which the taking of proceedings in the Tribunal is said to have been a part. 2. As will be seen below, an appellant's prospects of success on an appeal are a relevant consideration in the determination of an application for an extension of time. In the case of an appeal where no error of law by the Tribunal is raised, an important issue to consider about the prospects of the appeal is to assess the prospects that the appellant would be granted leave to appeal. 3. This is because under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law but with respect to any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, as this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1 issues of principle; 2 questions of public importance or matters of administration or policy which might have general application; or 3 an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4 a factual error that was unreasonably arrived at and clearly mistaken; or the Tribunal having gone about the fact- finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Extension of time in which to appeal 1. Under r 25(4)(b) of the Civil and Administrative Rules 2014 (NSW) (the NCAT Rules) the time period to file an internal appeal in the circumstances of this matter, which concerns decisions made in "residential proceedings", is 14 days from the date the appellant was "notified" of the decision or given reasons for the decision (whichever is the later). 2. Accordingly, the delay beyond the time limit for commencing the appeal is very considerable. It is an unusually lengthy delay. As will be seen below, Ms Chadwick has given an explanation for that delay. 3. The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. In that case the Appeal Panel said that time limits should generally be strictly enforced but that was not to say that exceptions should not be made where the interests of justice so require (at [21]). The Appeal Panel added (at [22]): The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]-[59]. The orders of NCAT made on 10 September 2018 and 20 November 2018 1. The orders made by NCAT on 10 September 2018 were, relevantly, as follows: 1. The tenant is to pay the landlord the sum of $789.03 for rent owed under the terms of the residential tenancy agreement for the period from 22- Aug- 2018 to 10- Sep- 2018. The payment for rent owed is due by instalments of not less than $200.00 per fortnight, first payment 19- Sep- 2018. 2. The tenant is to pay the landlord the sum of $24.15 for water usage owed under the terms of the residential tenancy agreement for the period from 31- Aug -2018 to 10- Sep- 2018. The payment for water usage is due by instalments of not less than $15.00 per fortnight, first payment 19- Sep- 2018. 3. The tenant is to pay [NSW Housing] rent, presently $543.30 per paid in full, to pay rent in accordance with the residential tenancy agreement. 4. The tenant is to pay [NSW Housing] water usage, presently $30.30 per fortnight, next payment due on the19- Sep- 2018, and once the arrears are paid in full, to pay water usage in accordance with the residential tenancy agreement. 1. These were orders made in proceedings SH 18/36780 commenced by NSW Housing on 23 August 2018. 2. The orders made by NCAT on 20 November 2018 were as follows: 1. The tenant is to pay the landlord the sum of $732.18 for rent owed under the terms of the residential tenancy agreement for the period from 01-Nov-2018 to 20-Nov-2018. The payment for rent owed is due by instalments of not less than $50.00 per fortnight, first payment 03-Dec-2018. Failure to pay any instalment in this order by the due date will result in the whole of the balance being payable immediately. 2. The tenant is to pay [NSW Housing] rent, presently, $535.40 per fortnight, next payment due on the 03-Dec-2018, and once the arrears are paid in full, to pay rent in accordance with the residential tenancy agreement. 3. The tenant is to pay [NSW Housing] water usage, presently $30.30 per fortnight, next payment due on the 03-Dec-2018, and once the arrears are paid in full, to pay water usage in accordance with the residential tenancy agreement. 4. If the orders in respect of rent are not complied with then at any time before 20-May-2019 the landlord may request the re-listing of the application to determine whether the tenancy agreement should be terminated. 1. These were orders made in proceedings SH 18/46677 commenced by NSW Housing on 31 October 2018. 2. It can be seen that under the 20 November 2018 orders the payment to be made in respect of arrears of rent was $50.00 compared to the amount of $200.00 required under the 10 September 2018 orders and there was no additional payment required in respect of water usage compared with the extra $15.00 payment required under the 10 September 2018 orders. Ms Chadwick was also given a little more time than that contained in the 10 September 2018 orders before payment in respect of rental arrears was to commence. The orders of the CTTT made on 12 July 2011 1. The orders made by the CTTT on 12 July 2011 were as follows: 1. By consent, the tenant is to pay the landlord the sum of $392.14 for rent owed under the terms of the residential tenancy agreement for the period from 25-Jun-2011 to 12-Jul-2011. The payment for rent owed is due by instalments of not less than $5.00 per fortnight, first payment 20-Jul-2011. 2. By consent, the tenant is to pay [NSW Housing] rent, presently $300.30 per fortnight, next payment due on 20-Jul-2011, and once the arrears are paid in full, to pay rent in accordance with the residential tenancy agreement. 3. By consent, if the orders in respect of rent are not complied with then at any time before 12-Dec-2011 the landlord may request the re-listing of the application to determine whether the tenancy agreement should be terminated. The order made by NCAT on 4 September 2019 1. The orders made by NCAT on 4 September 2019 were as follows: The application is dismissed in accordance with Section 55 (1) (a) of the Civil and Administrative Tribunal Act, 2013 as the Applicant has withdrawn the application. 1. This was an order made in proceedings SH 19/37365 commenced by NSW Housing on 19 August 2019. NSW Housing's submissions in opposition to the grant of an extension of time 1. NSW Housing opposes the grant of an extension of time in which to bring the appeal. It presented no evidentiary material in opposition to the application. 2. In written submissions, dated 15 September 2021, NSW Housing referred to the decisions of the Appeal Panel in Jackson and Collins v Urban and submitted that it would not be appropriate to grant an extension of time because: 1. There have been very lengthy, unexplained delays consisting of 10 years since the 12 July 2011 decision, over three years since the 10 September 2018 decision, almost 3 years since the 20 November 2018 decision and over two years since the 5 (sic) September 2019 decision. 2. It is difficult to discern the reason for the delay other than that the appellant feels aggrieved after certain dealings with the DCJ in 2018-2019 and is now seeking any available means to air concerns. 3. The appeal has "nil" prospects given that there is no suggestion that the Tribunal made an error of law. As such, leave to appeal would be required and the grounds for leave to appeal have not been made out. 4. Appellant seeks orders from the Appeal Panel that it cannot make. 5. The rules would not work an injustice against the appellant as she has dealt with her grievances through the appropriate avenues, having lodged a complaint with the Australian Human Rights Commission and, subsequently, an application in the Federal Court, which are, presently, on foot. 6. The time limit has not become an instrument of injustice in this case and ought to be strictly enforced to preserve finality in litigation and to uphold the guiding principle in s 36 of the NCAT Act. 1. At the hearing of the extension of time application NSW Housing said that they relied upon their written submissions and made no further submissions about the extension of time application. 2. NSW Housing's submissions provided no specific response to the events and circumstances relied upon by Ms Chadwick both as to the prospects of success of her appeal and as to her explanation for delay. Ms Chadwick's account of events and circumstances and our conclusions The material relied upon by Ms Chadwick 1. Determining the extension of time application is not an occasion to make final and binding factual conclusions about the events and circumstances concerning the claims that Ms Chadwick wishes to pursue in order to challenge the various orders the subject of this appeal. Rather, we are only concerned with a preliminary question as to the prospects of success on appeal, which, to some extent, at least, as indicated below, concern the merits of her material and contentions as to relevant facts. Also, as we have already mentioned, we are only concerned with her claims that, properly, fall within the ambit of this appeal and not with her broader claims that are beyond the function of an appeal from these orders. 2. At the hearing of her application for an extension of time, Ms Chadwick spoke clearly and in a chronological fashion about the sequence of events and circumstances that concern her challenge to these orders. 3. The account she gave at the hearing of the appeal is reflected in an extensive amount of documentary material provided by her in respect of the extension of time application. Those documents included affidavits sworn by her in the Federal Court proceedings and can be most conveniently identified as follows: 1. Notice of Appeal, with attachments, lodged on 30 July 2021. 2. Documents provided with her emails to the Tribunal sent on 29 July 2021 at 7:40 pm, 6 August 2021 at 11:11 am, 8 September 2021 at 7:47 am, 10 September 2021 sent at 5:49 pm, 5:50 pm and 9:41 pm. 3. Written submissions, dated 10 September 2021 (at 9:38 pm) lodged in the Tribunal on 16 September 2021. 4. Documents provided with her emails to the Tribunal sent on 15 September 2021 at 8:45 pm, 16 September 2021 at 10:14 am and 11:03 am, 21 January 2022 at 9:21 am and 5:28 pm and 16 February 2022 at 4:19 am. 5. Bundle of documents lodged with the Tribunal on 23 February 2022 consisting of a document headed "Case Details" (19 pages), a draft affidavit 5 (143 pages), apparently, for presentation as well in the Federal Court proceedings, and documents identified as Annexures 16 to 38 (271 pages) for presentation in this appeal. 1. We should note that at the directions hearing for the conduct of the appeal on 27 August 2021 Ms Chadwick was required to provide all her evidence in support of her application for an extension of time in which to lodge the appeal by 10 September 2021. This time was extended at a further directions hearing in the appeal held on 20 October 2021 and then extended again on 18 November 2021, on Ms Chadwick's application, to 19 November 2021. At the hearing fixed for 6 December 2021 a direction was made for her affidavit in support of her application, which she referred to at that hearing and which she said was near completion, to be provided by 14 January 2022. 2. The affidavits and other material which Ms Chadwick has supplied in respect of the application for an extension of time contain a considerable amount of material covering topics that extend well beyond the issues with which we are concerned. For example, her document headed "Case Details", referred to above, made reference to "other" legal questions to be decided and "other" legal arguments in support of her case as including whether acts of the respondent constituted unlawful racial and/or sex discrimination or unlawful victimisation. 3. Nevertheless, with the assistance of what she said at the hearing on 25 February 2022, we have been able to focus upon the material that is relevant to the current application. 4. A considerable amount of the relevant material consists of the contents of email correspondence and, to some extent internal notes of FACS, which establish facts which ought to be uncontroversial. To some extent the relevant material contains concessions or admissions by Ms Chadwick. Other relevant material consists of statements by Ms Chadwick based upon what she has personally seen, heard, felt or come to believe, but, as will be seen, the outcome of this application does not depend upon a conclusion by us as to the truth and accuracy of such statements. 5. Other matters she puts forward are, however, clearly, in the nature of allegations, contentions or submissions and must be dealt with by us on that basis. Relevant events and circumstances 1. In the application commenced by NSW Housing on 23 August 2018 in proceedings SH/36780 NSW Housing stated that they were seeking a specific performance order for rental and water arrears to be paid in full and for the rent and water usage to be paid on time. 2. On 20 August 2018, prior to that application being lodged, FACS sent an email to Ms Chadwick which said that their previous request that she pay $60.00 per fortnight in respect of arrears of rent and $30.00 per fortnight in respect of arrears for water usage had not been complied with and that, as a consequence, they would be making an application to NCAT for a specific performance order to enforce that repayment arrangement and for an order that she pay rent and water in accordance with the residential tenancy agreement. There was no suggestion in this email that NSW Housing would be seeking an instalment payment of $200.00 in respect of rental arrears. 3. Ms Chadwick said that she accepts that as at 10 September 2018 she was in arrears of rent in the amount of $789.03 referred to in the order made that day. However, she, particularly, objects to the order for instalments of $200.00 in respect of rental arrears. She says that, contrary to what the Tribunal was told at the hearing on 10 September 2018 by Ms Morice, a Customer Service Officer at FACS, she never agreed to make such a payment or any extra payment in respect of water usage arrears. She says that the policy at the time in respect of payment of arrears was to make payments of $60.00 in respect of rental arrears and $14.00 in respect of water arrears. She says that she had no notification of any change in such policy. 4. Ms Chadwick did not attend the hearing on 10 September 2018. An email from Ms Chadwick to FACS sent late on 15 September 2018 contains statements that suggest it was not until just before that email of 15 September 2018 that Ms Chadwick may have first learnt of the terms of the orders made by the Tribunal on 10 September 2018. Certainly, according to Ms Chadwick, she had learnt of the orders made by 17 September 2018. 5. She accepts that she received and read an email from Ms Crump, from FACS, sent on 7 September 2018, stating "Please also be aware that there is a NCAT hearing for rental arrears at 1:45 PM on Monday 10/09/2018, located in Room 1, Floor one, 175 Scott Street, Newcastle". However, she says that she did not receive the formal notice of the hearing, she skimmed over the 7 September 2018 email and the reference to the hearing on 10 September 2018 and did not appreciate that it was mandatory for her to attend. She says that she had no background in knowing what she was supposed to do. She says that her whole experience of dealing with the Tribunal was that concerning the orders made on 12 July 2011 in respect of which she received a whole lot of documents before the hearing, which was in contrast to what occurred on this occasion. She says that if she had received the formal notice she would have sought to get advice from the Hunter Tenancy Advocacy Service as to what to do. 6. The email from FACS on 7 September 2018 did not set out any proposal as to amounts to be paid toward rental arrears, nor did it suggest any change of position in the orders NSW Housing would seek from that which was suggested in the email sent on 20 August 2018. 7. On 10 September 2018 at 12:40 am, Ms Chadwick sent an email to FACS (the person at FACS is not identified) which stated that she was aiming to "put on" $200.00 from the last fortnight and, possibly, another $200.00, and that she was aiming to pay down the water arrears. We take the references to $200.00 to be references to payments towards paying off the rental arrears. 8. The hearing on 10 September 2018 was a short one (about five and half minutes). The transcript of the hearing prepared from the sound recording obtained by Ms Chadwick in December 2018 reveals that the following, relevantly, occurred: Tribunal: Ok. So NSW Homes and Housing and Sandra-Anne Chadwick. So what is it Housing will be seeking in this matter. Housing [Ms Morice]: Umm she is actually made an agreement to pay the rent plus an additional $200 a fortnight and water plus an additional $15 per fortnight with all payments next due on the 19th September. Tribunal: And the rent arrears are $789.03? Housing: Yes. Tribunal: Water $24.15? Housing: Yes. Tribunal: And ongoing rent $543.30 per fortnight? Housing: That's correct. Tribunal: And water $30.30 per fortnight? Housing: Yes. …… Tribunal: So the orders are: [stated the orders] …… 1. Plainly, the making of an agreement referred to in the second paragraph of the extract of the transcript referred to above was a reference to an agreement made by Ms Chadwick separate from the written residential tenancy agreement. 2. There is no evidence of an agreement reached with Ms Chadwick before the hearing on 10 September 2018 for her to make the payments towards arrears owed as set out in the orders that were made. Ms Chadwick has said that there was no such agreement. Her email sent on 10 September 2018, prior to the hearing, did not contain such an agreement. No evidence was presented by NSW Housing seeking to establish that such an agreement was reached. In an internal email within FACS sent on 10 April 2019, Ms Kiskarpati said about the order for instalment payments of $200.00 that: "Ms Chadwick continually questions why FACS sought NCAT SPO orders of $200 pf when earlier contacts with FACS advised we were only seeking $60 pf…… I can only assume the Officer who represented FACS at NCAT requested 40% of rent payable and possibly did not realise staff had previously requested $60 pf (I note well below 40%) and we should offer apologies about this". 3. We refer below to emails sent to Ms Chadwick by FACS on 16 April 2019 and 11 September 2019 containing apologies to Ms Chadwick for the error (these did not explain how the FACS representative came to tell the Tribunal that Ms Chadwick had made an agreement to pay the instalment amounts awarded). 4. In view of this material, we consider that Ms Chadwick has established that at the hearing on 10 September 2018 the Tribunal was, incorrectly, told by Ms Morice that Ms Chadwick had made an agreement, as set out in the transcript. 5. Ms Chadwick alleges that it was a lie to tell the Tribunal that she had made such an agreement. Amongst other things, she relies upon the absence of any basis for the statement to the Tribunal, the pre-hearing correspondence about a different payment regime, the subsequent conduct by FACS in failing to provide her with an innocent explanation as to how it was that the Tribunal was told she had agreed to the proposed payments, internal documents of FACS obtained through an application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) and a number of dealings with FACS before and after the 10 September 2018 hearing. 6. A finding that the Tribunal was lied to at the hearing on 10 September 2018 would be a very serious adverse finding against, at least, Ms Morice, FACS and NSW Housing. Ms Chadwick alleges that a number of other persons within FACS were also involved. For the purpose of the civil process that Ms Chadwick wishes to pursue by this appeal, proof of such a fact would need to be established to the standard in Briginshaw v Briginshaw (1938) 60 CLR 336. At this stage of the appeal, NSW Housing have not sought to engage in the merits of Ms Chadwick allegation of a lie. There has been no cross-examination of Ms Chadwick, nor has any evidence been presented by NSW Housing. Whilst NSW Housing has chosen not to present any evidence, despite the opportunity to do so, this is of little significance in view of the preliminary nature of the present question. 7. Having regard to these matters, we are very cautious about expressing an opinion about the merits of the lie allegation at this stage of the appeal process other than to say that, for the purpose of the current application, we do not regard the allegation as being wholly without foundation and, on the other hand, the prospect that the statement was made because of a misunderstanding or negligently or recklessly cannot be excluded. 8. Nevertheless, for reasons that will become clear, even if we were to conclude that Ms Chadwick had strong prospects of establishing that the statement made to the Tribunal on 10 September 2018 was a lie, we do not consider that such a conclusion would alter the outcome of this application. 9. In the period after 10 September 2018, up until the hearing and orders on 20 November 2018, Ms Chadwick contends that NSW Housing improperly used the orders obtained on 10 September 2018 against her in conjunction with other wrongful conduct, with the objective of having her evicted from the residential premises. She also says that this occurred in a context in which she was experiencing some personal trauma-firstly, through a bad traffic accident that her mother had on 15 September 2018 and, secondly, with the pending departure of her son, who shared the residential premises with her and who suffered from autism, to attend basic training to join the Australian Defence Force (ADF). 10. We can, however, deal with the events in this period, relatively, shortly, because they culminate with the orders made by the Tribunal on 20 November 2018, after a contested hearing, which Ms Chadwick accepts were orders made in her favour because they reduced the amounts that Ms Chadwick was required to pay in respect of arrears to amounts that Ms Chadwick accepts were appropriate amounts. At the extension of time hearing before us Ms Chadwick described the situation in the following way: "I went to hell and back to get almost the same order that should have been made in the first place". 11. After she learnt of the orders made on 10 September 2018, Ms Chadwick says that she pressed FACS for an explanation as to how the Tribunal came to make the orders. She says she was, initially, led to believe that it was the Tribunal which had come up with the $200.00 amount in respect of rental arrears but she thought this did not make any sense. 12. In her email sent on 15 September 2018, Ms Chadwick referred to the $200 per fortnight amount in the 10 September 2018 orders as a silly amount, the agreed payments were $60 per fortnight, plus there had been an increase to $14 per month in respect of water usage. She indicated that the amounts NSW Housing would receive from her were $60 per fortnight and an extra payment of $14 per fortnight for water. She referred to "this bullying tactic" to use the Tribunal to request unrealistic amounts for arrears and that she would not tolerate being "pushed around into unrealistic expectations by Housing". 13. In an email from Ms Crump of FACS to Ms Chadwick sent on 17 September 2018 (which began by referring to the email sent to her on 7 September 2018 noting the date and time of the hearing on 10 September 2018) it was said that in order to amend the amounts in the orders made on 10 September 2018 NSW Housing required a comprehensive budget detailing fortnightly expenses and that if this budget was not provided, NSW Housing would have no option but to issue a Notice of Termination of the tenancy. It was said that the budget was required within 14 days. It was also said that they could not agree to the proposed fortnightly amount of $60.00 in respect of rental arrears. 14. Despite the reference in this email to a 14 day period for provision of a budget (which expired on 1 October 2018), on 25 September 2018, Ms Morice from FACS sent an email to Ms Chadwick which attached a Notice of Termination and stated that this was issued due to ongoing and persistent rental arrears. It invited her to contact the office to discuss payment options. It appears from the application, subsequently, lodged by NSW Housing on 31 October 2018 that the termination date in the Notice of Termination was 18 October 2018. 15. In an email to Ms Chadwick on 11 October 2018 Ms Crump said that they could accept a payment in respect of rental arrears of $100.00 per fortnight without the professional budget that was previously requested. 16. A telephone meeting took place between Ms Chadwick and Mr Sansom, a Team Leader at FACS, and Ms Crump on 11 October 2020, which Ms Chadwick said she perceived was to fix up the problem with the $200 per fortnight arrears figure and to go back to the original $60 per fortnight figure, which she could afford. She became alarmed at what was said to her at the meeting when she sought to have her son's income excluded from the income that NSW Housing took into account in determining her rent subsidy. From what she was told, she became scared that when her son finished his ADF training he would not be able to live in the residential premises. In this context, she agreed to pay $100 per fortnight instead of the $200 per fortnight, as she saw it, in order to avoid eviction. She says she told Ms Crump that she would not be able to afford this amount of payment and Ms Crump said that she should let them know if she got stuck and they would talk again. 17. However, Ms Chadwick says that no start date for this reduced payment was agreed at the 11 October 2018 meeting. Subsequently, on 17 October 2018, she was told by email from Ms Kiskarpati that various payments were due on 31 October 2018. She says she made one $100 per fortnight payment in advance on 24 October 2018 and then informed Ms Kiskarpati on 31 October 2010 that she may not be able to make the extra payment. 18. Despite what Ms Chadwick says was the agreed start date for extra payments, namely 31 October 2018, on that date NSW Housing commenced proceedings SH/46677 for orders, including an order for non-payment of rent. The application stated that if the tenant paid all rent owing and entered into and fully complied with a repayment plan NSW Housing would not be seeking to terminate the tenancy agreement on the basis that the tenant had frequently failed to pay rent. Incorrectly, the application stated that NSW Housing had a previous order issued by the Tribunal to pay rent and water arrears of $100 per week and $10 per week, respectively. 19. Also on 31 October 2018, Mr Sansom sent Ms Chadwick an email which said that the process FACS followed when a Notice of Termination has expired is to forward the matter to NCAT to formalise the arrears arrangement that has been made. He stated that he was aware there was an agreement with her for arrears repayments of $100 per fortnight and this would be the amount they would be requesting NCAT to formalise. That statement was different from what was set out in the new application. 20. Not without some justification, at the extension of time appeal hearing, Ms Chadwick described the 31 October 2018 application as a "big balls up". She said that the application made no reference to sending the Notice of Termination even though the 14 day period for provision of a budget had not expired. She also said that the application made no reference to a start date for an amended agreement on 31 October 2018, which meant that she had not been in breach of anything. She also criticised the statement in the application that NSW Housing had attempted to work with Ms Chadwick. She alleged that NSW Housing were being deceitful in this application. 21. Ms Chadwick presented a lengthy account of the events on 30 November 2018 before the main hearing in proceedings SH 18/46677 took place, particularly, the events concerning a conciliation that occurred before the main hearing. On that day she attended the Tribunal with a support person, Mr Rowan (an affidavit from Mr Rowan was amongst the papers she presented on the appeal). At the call through by the Tribunal (Member Moss) of the various matters for hearing that day, she agreed with a proposal from NSW Housing for a conciliation to occur, although it was not clear to her what that meant. 22. Then followed a sequence of events about which Ms Chadwick is very critical of Mr Sansom and a Tenant Advocate who came to the conciliation and, according to Ms Chadwick, proceeded to assist NSW Housing rather than herself. Ms Chadwick alleges that Mr Sansom manipulated a situation that was directed at pressuring her to reach an agreement with NSW Housing. 23. It is unnecessary for us to set out an account of such events and express any views about the merits of her allegations of manipulation and bullying tactics by Mr Sansom and the Tenant Advocate on this occasion. This is because Ms Chadwick refrained from reaching any agreement with NSW Housing, she then proceeded to contest the orders sought by NSW Housing and was successful in obtaining favourable orders as to the amount of the payments she was required to make in respect of arrears. 24. Ms Chadwick is complimentary of the role played by Member Ross in the main hearing and with the orders that were made. In these circumstances, it is impossible to see any basis for a challenge on this appeal to the orders made on 20 November 2018. 25. Without being exhaustive, the transcript of the hearing on 20 November 2018 includes reference to the following: 1. The Tenant Advocate came to tell the Tribunal that she did not have any instructions to help Ms Chadwick. 2. Mr Sansom told the Tribunal the rent was, currently, in arrears and they sought a $100 per fortnight payment toward rental arrears until the arrears were cleared. 3. At the instigation of the Tribunal, Ms Chadwick gave sworn oral evidence. She said she did not agree with what was put in the application and in the statement of Ms Lang that was attached to it. She gave an explanation as to why she did not agree with $100 per fortnight amount that was sought. She said that sum would set her up to fail. 4. After the Tribunal asked if she could afford $25 per week towards the rental arrears, Ms Chadwick said that she could and that she also proposed she pay an extra $10 towards water arrears, as well as to keep paying water as usual. 5. Mr Sansom objected to lowering the rental arrears payment to $50 per fortnight, and, controversially, in view of the history that we have set out above, he referred, amongst other things, to having asked for, but not received, a budget, to having tried to work with the tenant, to having obtained an order from the Tribunal for an arrears payment figure of $200 per fortnight, and to having no option but to issue a Notice of Termination. 6. Ms Chadwick said she was aiming for $20 per fortnight in respect of which the Tribunal asked "How does $50 per fortnight sound", to which Ms Chadwick answered "Yes, thank you". 7. Mr Sansom did not ask for any amount to be paid in respect of water arrears and no such amount was ordered. 1. Following the orders made on 20 November 2018, Ms Chadwick says that she complied with the $50 per fortnight order. 2. For reasons that are unexplained, Mr Sansom said nothing to the Tribunal about an error in obtaining the $200 per fortnight arrears payment in the 10 September 2018. 3. There was no examination at the 20 November 2018 hearing of Ms Chadwick's complaints about her treatment by FACS since 10 September 2018. Rather, the orders followed a practical examination by the Tribunal as to what arrears payment Ms Chadwick could afford. 4. With regard to the events after the 20 November 2018 orders were made, as to which Ms Chadwick says Mr Sansom made it clear on 20 November 2018 he was unhappy about, Ms Chadwick has complained about her dealings with FACS and, subsequently, DCJ through 2019 and beyond that time. For example, she alleges that from 25 February 2019 to 24 December 2019, Mr Sansom and his staff wrongfully kept her in rental arrears that accumulated to over $5000 in rent, including by the cancellation of a rent subsidy, which had reduced the amount of rent she was required to pay. 5. For the purpose of this application, however, it is unnecessary for us to address these very extensive further complaints that Ms Chapman makes. This is because the only further order that is the subject of this appeal is an order made against NSW Housing on 4 September 2019 (not 5 September 2019 as stated in the Notice of Appeal), which was an order that NSW Housing's proceedings be dismissed - an order in Ms Chadwick's favour. 6. This appeal is not, and cannot be, concerned with allegations of misconduct by NSW Housing which are said to be related to an order of the Tribunal that was favourable to Ms Chadwick. Furthermore, as we have previously mentioned, it is not the function of this appeal to determine complaints about alleged misconduct in the use of Tribunal proceedings and dealings with Ms Chadwick that were not the subject of the proceedings in which the orders appealed from were made. 7. Ms Chadwick complains about a hearing in NCAT on 23 April 2019. However, on that occasion an order was made in SH 18/46677 that NSW Housing's application for a re-listing of those proceedings was withdrawn. 8. On 19 August 2019, NSW Housing commenced new proceedings against Ms Chadwick (proceedings SH 19/37365) seeking orders, including an order for the payment of $4112.11 and a termination order, following the expiry of a Notice of Termination with a termination date of 16 August 2019. 9. However, on 4 September 2019 the Tribunal ordered that the application in proceedings SH 19/37365 was dismissed in accordance with Section 55 (1) (a) of the NCAT Act "as the Applicant has withdrawn the application". 10. We do, nevertheless, return to some events in 2018 and 2019 concerning the statement made at the hearing on 10 September 2018 that Ms Chadwick had made an agreement about the payments. 11. Ms Chadwick says it was not until after she obtained the sound recording of the 10 September 2018 hearing that she first learnt of the statement that she had made an agreement as to the payments. She says it was on 20 November 2018 that she first asked the Tribunal about obtaining a transcript of the hearing on 10 September 2018 and she was told that she could obtain the sound recording. She says she then made a request to purchase the sound recordings for the hearings on 10 September 2008 and 20 November 2018. These became available to her before Christmas 2018. She did not listen to them immediately but when she did, in January 2019, she heard, for the first time, the reference to her having agreed to make the payments. 12. Much later, in an email sent to Ms Chadwick on 16 April 2019, Ms Kiskarpati, on behalf of NSW Housing, apologised for the "error made" in asking on the day (10 September 2018) for the payment of $200 per fortnight. 13. Even later, in an email from Ms Kirkwood of DCJ to Ms Chadwick sent on 11 September 2019, it was said: …… What I have seen initially, is that there have been a number of staff involved in your case, and that this has unfortunately caused confusion in our approach. I have identified, as you have stated, that there was an agreement of an arrears payment of $60 per fortnight. Another staff member, who was not made aware of the agreement, attended the NCAT hearing and as you were not in attendance, followed process of requesting 40%. This was not the agreement made with you, and I apologise for this error. This was further complicated by another proposal which again was not the amount agreed to initially. …… 1. Ms Chadwick responded to Ms Kirkwood's email in an email sent on 30 October 2019. By this email, she sent Ms Kirkwood a copy of the sound recording of the hearing on 10 September 2018 and said that this contradicted what Ms Kirkwood had said that NSW Housing sought 40% of the rent. She also said that she was showing Ms Kirkwood, whom she believed was generally trying to help her, that she had been lied to by Ms Kirkwood's staff for many months and that not one of the representatives had told her what had been said. Ms Chadwick also said in the email that she had all the evidence ready and was hoping the District Court would permit her to forward the evidence that supports her allegations. 2. As to the 12 July 2011 orders, given the jurisdiction problem outlined below, it is sufficient for us to mention that Ms Chadwick alleges she was wrongfully taken to the CTTT in respect of these orders because they were requiring her to pay more than what had already been agreed and rental arrears were created because her Customer Service Officers had forgotten to process a rent subsidy. She says that it was only when she obtained the contents of her files through the application under the GIPA Act between July 2020 and October 2020 that she found evidence in her HOME account that she was right that FACS should never have taken her to the tribunal in 2011. Grounds of Appeal 1. In the light of the above account of events, circumstances and allegations, the Grounds of Appeal in the Notice of Appeal become more comprehensible. They are as follows: The Tribunal was not wrong at all. It is that DCJ Housing have been misleading NCAT and then covered up their mistakes, blame me and fabricated that I had broken orders and not complied to their agreement. I believe my evidence clearly shows that NCAT would have made different decisions in my favour had DCJ/NSWLHC been honest to NCAT. The A/Team Leader tricked NCAT into believing they wanted to conciliate with me, but instead of turning up to conciliation, they organised a Security Guard to stand outside of conciliation, and Housing never turned up. I had never met any of them before in person. Also, had I been properly advised by the Tenant Advocate on 20 November 2018 who was engaged by A/Team Leader Joshua Sansom, I was then intercepted, I would not have changed what I was going to ask of the NCAT, which was to strike out and dismiss. I never engaged the Tenant Advocate myself, she forced herself on me. More evidence obtained in 2020, 2021 strengthens my allegations that the same group of representatives were wrongfully building a case against me, misleading, lying to NCAT at the time. I have placed the evidence in Affidavits for Federal Court, which I have redacted for NCAT. The Respondent has been served with copies of these recent Affidavits and evidence. The only way to understand and see what DCJ/NSWLHC did is to read the Affidavits and evidence, detailing the collusion and the ongoing cover-up, targeting of me. They have been misleading NCAT and me. SH/36780 was a correct application by NSWLHC, however, how they achieve the ruling was from deviating from their stipulated agreement, then lying to NCAT saying I agreed to another. SH 18/46677 should never have been an application by DCJ Housing in the first place because they knew the mistake they had made. SH 11/30606 also should never have been an application by DCJ Housing and Affidavit 3.2 describes how. SH 19/37365 was withdrawn by Housing. However, it is connected to the mistakes from SH 18/36780 and SH 18/46677. DCJ/NSWLHC in official documents are using their mistakes they made at NCAT against me. Including they are excluding all my efforts to resolve and that once I obtained the more reasonable ruling, I was able to pay off original arrears of $721, never missing a payment, being almost 8 payments ahead and paying off my rental arrears early. Instead DCJ wrongfully created additional rental arrears, falsely accusing me of refusing to give income, when it was not true. There is no short version. I am confident my Affidavits of evidence will show NCAT what DCJ Housing did and how DCJ can easily manipulate the NCAT to get rulings in their favour without NCAT detecting. Consideration - Ms Chadwick's explanation for delay 1. Having regard to the criticisms that Ms Chadwick has with the orders that are the subject of this appeal, as well as her explanations for delay (referred to below), we are unable to discern any explanation that provides support for the lengthy extension of time that is required. 2. Even if it is accepted that over a considerable period of time Ms Chadwick has come to believe that the orders the subject of this appeal are part of much wider wrongful conduct against her by NSW Housing, FACS and DCJ and that they should be challenged in order to clear her name and prevent NSW Housing and DCJ using their mistakes against her in the future (a matter she refers to in her Notice of Appeal), we do not accept that such an explanation can assist to justify such a lengthy extension of time. 3. In this regard, as we see it, two matters assume importance. First, for a very long time, the manner in which the 10 September 2018 orders came to be made has been of central significance to Ms Chadwick's grievances. Secondly, Ms Chadwick has not identified any new, specific, discovery of major significance that might assist to explain the steps taken to lodge the appeal at the end of July 2021. 4. Furthermore, it appears to us from the above account of events and circumstances and legal steps taken in 2019 (referred to below) that, since, at least, the time when she became aware of the 10 September 2018 orders, Ms Chadwick has shown both a determination and a capacity to try to rectify unfavourable treatment she has experienced. 5. Ms Chadwick contends that the events that followed 10 September 2018 prevented her from being able to assert her rights of appeal within the NCAT timeframes and also within the years that have elapsed: see written submissions dated 10 September 2018 at [7], [13], [14], [23], [29], [30], [36] and [37]. 6. She says, amongst other things, that: 1. With regard to the orders made on 10 September 2018, for almost 3 years the relevant representatives at FACS refused to tell her why they changed their stipulated agreement, when they decided to do so, how they decided to make the change and why they never put it in writing to her that they wanted to make a change. 2. Everything she knows now came to light after she conducted her own investigations, whilst the relevant representatives refused to provide her with the truth. 3. Had the relevant representatives of FACS told her the truth she would have been able to get advice which would have allowed her to take the correct steps to apply to set aside and appeal the NCAT rulings. 4. It was only through obtaining the contents of her HOME and TRIM files between 5 August 2020 and 23 November 2020, then recently on 19 May 2021, that she has been able to put together "the rest of the jigsaw puzzle". She says that it was not until 5 August 2020 and 23 November 2020 that she learnt that relevant divisions of the DCJ were working together across the different jurisdictions that led to outcomes that favoured the DCJ only. 1. Ms Chadwick also refers to serious personal and family matters that needed attention in the period from 2018 to 2020: at [16] to [21] of her written submissions. She refers to a bad car accident that her mother experienced in New Zealand on about 15 September 2018, matters associated with her son's departure to ADF Basic Training in the period from 27 October 2018 to 3 December 2018, a car accident that she experienced on 27 January 2019 and a car accident that her son experienced on 19th February 2019. 2. However, by January 2019 she had obtained and listened to the sound recording of the hearing on 10 September 2018 (as well as the hearing on 20 November 2018). Subsequently, she obtained legal advice in February/March 2019 at which time it was confirmed she had missed the deadlines for appeal, which she says she already knew anyway: at [22]-[23] of her written submissions. 3. About such legal advice she said (see "Evidence 10" on page 62 of the bundle sent by email on 21 January 2022 6065 at 5:28 pm): Once I obtained legal advice on and around 17 March 2019 when I had to recollect everything, I realised how impossible it is to make so many mistakes by the same representatives…. 1. She says that, at this time, she did not have the full quantity of information that had been withheld from her. However, there is a substantial difference between relevant information concerning a challenge to the orders made in 2018 and that which, potentially, relates to allegations of racial discrimination and unlawful victimisation. Certainly, she obtained more information through the GIPA Act process in 2020, but, by February/March 2019, in addition to the sound recordings of what transpired at the hearing on 10 September 2018 she also had the history of her email communications with FACS that we have described above, including the failure by FACS to tell her what had actually occurred at the hearing on 10 September 2018. Not long afterwards, she had the email from Ms Kiskarpati sent on 16 April 2019, which included the apology for the error in relation to the $200.00 figure in the 10 September 2018. 2. So far as the orders made on 20 November 2018 were concerned, she had personally experienced the events on that date before the hearing and at the hearing itself and, accordingly, had known of the relevant information from that time. 3. However, she did not proceed, at that time, to appeal from any NCAT orders, accompanied by the necessary application for an extension of time (a much shorter extension than what is, presently, required). Instead, in May 2019 she commenced her complaint in the Australian Human Rights Commission. 4. Later, in October 2019, she was contemplating action in the District Court in circumstances where, according to her, she had "… all the evidence ready": email to Ms Kirkwood at DCJ at 6:32 am. It can be seen from of the rest of that email that this was a reference to her belief that she had been lied to by FACS, including about what occurred at the 10 September 2018 hearing. However, no internal appeal within NCAT was commenced by her until a long time later. 5. As to the July 2011 orders, in one of her affidavits filed in the Federal Court proceedings (Affidavit 3.2, sworn on 16 June 2021), after giving an account of the circumstances surrounding the making of those orders (paragraphs [13] to [18], Ms Chadwick said: (d) I learned weeks or months later I could have asked for that NCAT 11/30606 application [to be] dismissed…. Consideration – Prospects of success of the appeal 1. As we have already mentioned, in dealing with the current application for an extension of time, we should consider Ms Chadwick's prospects of success on the appeal. 2. The material presented by Ms Chadwick, in our opinion, is sufficient to establish that the orders made on 10 September 2018 were based upon an error of fact, namely that Ms Chadwick had agreed to the payments that were the subject of the orders. 3. This was not an error of fact based upon the material presented to the Tribunal. Rather, establishing the error depends upon new evidence that was not before the Tribunal. 4. We have already pointed out that because we are concerned with an error of fact, not an error of law, leave to appeal is required. One of the conditions for the grant of leave to appeal (as we have set out above) is that significant new evidence is now available that was not reasonably available at the time of the hearing. In our opinion, that condition is not satisfied here because Ms Chadwick could have told the Tribunal that she had not agreed to the payments and about the pre-hearing dealings had she been present at the hearing on 10 September 2018. Given the email from FACS sent on 7 September 2018 informing her of the hearing, in our opinion, the reasonable course for her to have taken would have been to attend the hearing, even if, as she says, she had not received the formal notice of the hearing. 5. However, another available condition for the grant of leave to appeal is that the Tribunal's decision made on 10 September 2018 was not fair and equitable. In our opinion, Ms Chadwick has, at least, a near irrefutable case that this condition is satisfied because the error of fact we have mentioned was based upon what the FACS, incorrectly, told the Tribunal in Ms Chadwick's absence. This is so, whether or not the representative knew that what the Tribunal was told was incorrect. 6. Plainly, if it was established that the representative from FACS knew that Ms Chadwick had not agreed to make the payments when she told the Tribunal that she had so agreed, the Tribunal's decision would also not be fair and equitable. 7. Nevertheless, it is also a requirement for the grant of leave to appeal in this case that Ms Chadwick may have suffered a substantial miscarriage of justice because the Tribunal's decision was not fair and equitable. This is a different and much narrower question than the question that forms no part of this appeal, namely whether through multiple dealings with NSW Housing, FACS and DCJ Ms Chadwick has been the subject of racial discrimination or unlawful victimisation. 8. In our opinion, Ms Chadwick has weak prospects of establishing that she may have suffered a substantial miscarriage of justice because the 10 September 2018 decision was not fair and equitable. We say this because the objectionable parts of the orders made on 10 September 2018 were, in effect, corrected by the orders made on 20 November 2018. Furthermore, these objectionable parts did not lead to the termination of her tenancy and, by 16 April 2019, at least, (the date of Ms Kiskarpati's email containing an apology) FACS had recognised that the 10 September 2018 orders for instalment arrears were made in error. The extensive delay in bringing an appeal to set aside the orders provides additional support for our assessment that her prospects of establishing that a substantial miscarriage of justice may have been suffered are weak. 9. We do not see how Ms Chadwick has any prospects of success in obtaining leave to appeal from the decisions of the Tribunal on 20 November 2018 and 4 September 2019. Both decisions were in Ms Chadwick's favour and we fail to see how she may have suffered a substantial miscarriage of justice because of either of them, let alone how it could be said that the other conditions for the grant of appeal might be satisfied. 10. In our opinion, Ms Chadwick has no prospects of success in the appeal against the 12 July 2011 decision. This is because, in our opinion, there is no appeal right of any kind from that decision of the CTTT to the Appeal Panel. 11. The 12 July 2011 orders were made by the CTTT pursuant to the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (now repealed). The CTTT did not have an equivalent to the Appeal Panel of this Tribunal. Pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act, there was an appeal from a decision of the CTTT on a question of law to the District Court, which could be made subject to a leave requirement by the rules of the District Court. 12. The NCAT Act abolished the CTTT (Sch 1, items 2 and 3). The NCAT Act made provision for unexercised rights of appeal from the Tribunals it abolished, including from the CTTT. Clause 10(2) of Sch 1 to the NCAT Act provides: (2) A person who has an existing unexercised appeal right may appeal against the decision of an existing tribunal to which that right relates— (a) if the decision was originally appealable to an Appeal Panel of the Administrative Decisions Tribunal—to an Appeal Panel of NCAT, or (b) if it was originally appealable to a particular court—to that court. 1. The decision made by the CTTT on 12 July 2011 was not "originally appealable to an Appeal Panel of the Administrative Decisions Tribunal." It was "originally appealable" to the District Court (only on a question of law). Accordingly, if Ms Chadwick has any avenue of appeal in relation to the 2011 orders, that is to the District Court. The Appeal Panel does not have any jurisdiction in respect of an appeal from those orders (to similar effect, see Giappichello and Anr v Eakin's A-1 Pools Pty Ltd [2015] NSWCATAP 141 at [46] – [51]). Consideration-prejudice to the respondent 1. NSW Housing does not point to any prejudice it will suffer if an extension of time is granted beyond its interest in the finality of the litigation and in the connected principle that generally time limits should be strictly enforced, as referred to in Jackson at [21]. 2. This is, however, a very important consideration, not only in the interests of NSW Housing, but also in the public interest and the interests of the Tribunal. Consideration – conclusion about extension of time 1. In view of our assessment of the explanation for delay, the length of the delay, our assessment of the prospects of success of the appeal, and the interests of the public, the Tribunal and NSW Housing in the finality of litigation, we have decided that the interests of justice do not warrant the grant of an extension of time in which to lodge the appeal against any of the orders and that application should be refused. 2. Accordingly, the appeal should be dismissed. Orders 1. For the above reasons we make the following orders: 1. The application for an extension of time in which to lodge the appeal is refused. 2. 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: 09 March 2022