Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jamal v NSW Land and Housing Corporation [2022] NSWCATAP 131 Hearing dates: 23 February 2022 Date of orders: 02 May 2022 Decision date: 02 May 2022 Jurisdiction: Appeal Panel Before: L Wilson, Senior Member E Bishop, Senior Member Decision: 1. Leave to appeal refused. 2. Appeal dismissed. 3. The stay, made by consent on 8 December 2021, is lifted. Catchwords: APPEAL – residential tenancies-social housing – rent and water arrears – renewal of work order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: None cited Category: Principal judgment Parties: Jon Jamal (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Appellant (self-represented) Department of Communities & Justice, Legal (Respondent) File Number(s): 2021/00327145 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 5 November 2021 Before: General Member J Bartrop File Number(s): SH21/07572; SH21/13717; SH21/32600 DECISION 1. On 5 November 2021 the Tribunal made a decision which finalised three applications which had been filed; two by the appellant and one by the respondent (Decision). The application which was filed first in time was by the respondent, who is the landlord, which was a relist of an earlier application (RT20/48908) for water and rent arrears. The second application was filed by the appellant, who is the tenant, seeking orders that the landlord repay him rent. The third application was also filed by the appellant. This was a renewal of earlier work orders made on 16 June 2021 in SH21/07292. 2. In the Decision the Tribunal: 3. Ordered the tenant to pay $590.75 for rent arrears and $146.95 for water usage: Orders 1 and 2; 4. Ordered the tenant to continue to pay his rent which is $218.70 per fortnight: Order 3; 5. Allowed the landlord three months to relist for termination orders if the tenant did not comply with the other orders: Order 5. 6. Dismissed the tenant's renewal application: Order 6. 7. The reasons for orders included that the Tribunal rejected the tenant's arguments that the ledger did not truly reflect the rent paid and that the rent payable was incorrect. Further the Tribunal was not persuaded on the tenant's evidence that the previous work orders had not been complied with, and took into account the landlord's evidence that the gate and front fence had been properly repaired as previously ordered, and thus dismissed the renewal. 8. The appellant lodged this appeal which essentially disagreed with the Decision and sought that the Decision be quashed "and make the right decision on all official evidence and the fact". 9. For the reasons given below, we dismiss the appeal. Adjournment request 1. During the appeal hearing the appellant sought an adjournment to enable him to get legal advice. The Appeal Panel refused to adjourn the appeal hearing for oral reasons given on the day. Grounds of appeal 1. The appellant may appeal as of right on any question of law: s 80 of the Civil and Administrative Tribunal Act 2013 (NSW)(NCAT Act). None of the appellant's grounds purport to be, or could be considered, errors of law. 2. Each of the appellant's grounds of appeal require leave to appeal and in considering whether leave should be granted the Appeal Panel must apply cl.12 of Sch. 4 of the NCAT Act which requires leave to be granted only if satisfied there may have been a substantial miscarriage of justice because the Decision was not fair and equitable or was against the weight of evidence or significant new evidence has arisen. 3. The five grounds of appeal set out in the appellant's Notice of Appeal were as follows, as written by the appellant: 1. Error in law [section 53(4)] the decision dated 5-11-2021 and that conflicted with the factual "rent and water were paid in full of the time frame which the order based on it, sees my bank account and letter date 7-11-2021; 2. Negligee the official evidence and accept the oral evidence to make the order. 3. Destroyed to appellant four receipts for rent and the relocation reimbursement after the respondent admitted by that requested in 22/7/2021 and not denied on 5-11-2021. 4. The order made by what not the litigant asked for. 5. Made a new assessment for rent and water on oral evidence and that was conflicted with official evidence. 1. As can be seen these 'grounds of appeal' are difficult to interpret and err more towards an expression of discontent by the appellant than proper grounds of appeal. During the appeal hearing the Appeal Panel gave the appellant ample opportunity to expand upon, and explain, his grounds of appeal, however the oral submissions did not refine or assist the interpretation of the above grounds of appeal. Evidence 1. The appellant relied upon: 1. Notice of Appeal filed 17 Nov 2021 (the application for stay filed on the same day was not relevant to the appeal hearing); 2. Documents emailed to the Tribunal on 23 November 2021 pages 1 to 53; 3. Documents filed over the counter on 12 Jan 2022 pages 54 to 56. 4. Written submissions filed 12 Jan 2022. 5. A USB sound recording of the hearing of SH21/13717 on 19 April 2021. 1. The appellant sought leave to rely upon new or fresh evidence which was not before the Member below. That fresh evidence was described as "what I was filed at the tribunal files, and … bank statements from 03.09.21 to 11.11.21… letter from the Respondent dated 7.11.21…" 2. The Appeal Panel refused to allow the appellant to rely on this fresh evidence as it was reasonably available, at least the bank statements from 3 September to the date of the hearing on 5 November 2021, at the time of the first instance hearings. There was not a proper explanation for why these bank statements were not tendered as part of the appellant's evidence at first instance. An appeal is not an opportunity to argue the case a second time, with whatever new evidence the appellant wishes to tender. The Appeal Panel does not allow the appellant to rely upon this fresh evidence in the appeal. 3. The appellant was able to rely upon his written submissions filed 2 February instead of by 27 January 2022 as ordered, as submissions assist the Appeal Panel to understand the grounds of appeal and could have been made orally during the appeal hearing if not relied on in their written form. However a request by the appellant to send further written submissions after the end of the appeal hearing was refused by the Appeal Panel for oral reasons given during the hearing. 4. The appellant attempted to put more documents before the Appeal Panel after the hearing on 23 February 2022 concluded. No directions were given for either party to tender more documents, or give more written submissions. The Appeal Panel informed the appellant the documents attached to his email would not be opened and therefore would not be taken into account by the Appeal Panel. 5. The respondent relied upon its Reply to Appeal filed 17 December 2021, written submissions and some documents attached to written submissions filed on 2 February 2022. The Landlord's reply 1. The respondent supports the orders made by the Tribunal and opposed the appellant's grounds of appeal, for reasons which were expanded upon in the respondent's written submissions filed on 17 December 2021. 2. The respondent correctly identified that each of the appellant's grounds require leave of the Appeal Panel and set out cl.12 of Sch 4 in paragraph 10 of their submissions: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied 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. Next the respondent set out [71], [79] and [84] from Collins v Urban [2014] NSWCATAP 17 which explained the expression "substantial miscarriage of justice": [71]… it can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred.. [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. [84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]… 1. The respondent pointed out, at paragraph 12 of its submissions, that even if the Appeal Panel were satisfied that a substantial miscarriage of justice may have been suffered by the appellant, there remains a discretion that the Appeal Panel must exercise as to whether leave should nevertheless be refused or granted. Decision not fair and equitable 1. This is the first basis the appellant argued caused him to suffer a substantial miscarriage of justice. The Notice of Appeal contained the following introduction to this application for leave to appeal: There is no decision made regarding SH21/13717, which the respondent on 22/7/20212 [sic] admitted by the applicant request from 1-3 and asked for time to make an adjustment regarding para 4… 1. SH21/13717 was the appellant's application seeking an order that the landlord repay him rent which he claimed he had overpaid. The Member below determined the appellant owed the landlord rent and water arrears, so clearly dismissed the appellant's application for rent to be repaid to him. The Decision clearly explained the basis of findings that the appellant owed the landlord arrears, and consequently that the landlord did not owe the appellant any monies. 2. There is no miscarriage of justice by the Member not explicitly referring to the file number SH21/13717 or the substance of the application in the Decision; the reasons and orders are clear and adequate and based upon an assessment of the evidence before the Tribunal at the hearing. 3. The rest of the details as to why the appellant says the decision was not fair and equitable quibble with the Member's assessment of evidence and other procedural issues, such as non-compliance with Tribunal orders, which do not demonstrate how these matters could have caused the appellant a miscarriage of justice. 4. As there is no miscarriage of justice shown in this regard this basis for leave to appeal is dismissed. Against the weight of evidence 1. Again the appellant details in this section of the Notice of Appeal that he disagrees with the Tribunal's assessment of the evidence and findings. The appellant also refers to evidence which was not before the Member below. 2. The appellant is reminded that he "must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact": Collins v Urban at [84] set out above. Unfortunately for the appellant all he has done is express his view that the Member should have made findings in his favour, rather than accepting the respondent's evidence at first instance. This is not enough to establish the appellant may have suffered a miscarriage of justice, nor would the Appeal Panel be minded to grant leave even if there was a possibility of a miscarriage of justice having occurred. Significant new evidence is now available 1. The Appeal Panel already declined to give leave for the appellant to tender documents for the first time on appeal, as they were reasonably available at the time of the first instance hearing. 2. As such there is no new evidence to consider and accordingly leave cannot be granted for this reason. 3. We dismiss the appeal. Orders 1. Leave to appeal refused. 2. Appeal dismissed. 3. The stay, made by consent on 8 December 2021, is lifted. ********** 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. 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