Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Asirvadem v Wesley Community Services Ltd [2022] NSWCATAP 301 Hearing dates: 30 August 2022 Date of orders: 15 September 2022 Decision date: 15 September 2022 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member G Burton SC, Senior Member Decision: 1. In relation to any question of law, the appeal is dismissed. 2. In relation to any other grounds of appeal, leave to appeal is refused. 3. The stay of the order for possession of the Tribunal in proceedings SH 21/49374 dated 30 June 2022 granted by the Appeal Panel on 20 July 2022 is lifted. Catchwords: LEASES AND TENANCIES – questions of law - leave to appeal – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – s 80; cl 12 of Sch 4 Cases Cited: AHB v NSW Trustee and Guardian [2014] NSWCA 40 Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Asirvadem v Wesley Community Services Ltd [2022] NSWCATAP 196 Collins v Urban [2014] NSWCATAP 17 Henkelman v Psychology Council of NSW [2017] NSWCATOD 161 Mourad v Aly [2015] NSWCATAP 49 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Saurine v Coral Homes Qld Pty Ltd [2015] NSWCATAP 147 Category: Principal judgment Parties: Derek Asirvadem (Appellant) Wesley Community Services Ltd (Respondent) Representation: Appellant (Self-represented) P Ay (Tenancy Officer) (Respondent) File Number(s): 2022/00200168 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 30 June 2022 Before: J Levingston, Member File Number(s): SH 21/49374 REASONS FOR DECISION Summary 1. The appellant Mr Asirvadem (tenant) appeals from a decision of the Civil and Commercial Division of the Tribunal (Tribunal) of 30 June 2022 in matter SH 21/49374 (Decision). 2. The Tribunal refused an application by the tenant for an adjournment of the proceedings, and terminated the tenant's residential tenancy agreement (RTA) with the respondent Wesley Community Services Ltd (landlord). 3. The Tribunal terminated the RTA that day and ordered the tenant to give vacant possession of the premises immediately. However, the Tribunal suspended that order until 21 July 2022. 4. On 7 July 2022, the tenant filed a Notice of Appeal and on 8 July 2022 an application for a stay of the Decision pending the appeal. 5. On 20 July 2022, the Appeal Panel suspended the order for possession until further order or finalisation of the appeal, whichever is the later. 6. For the following reasons we have decided that: 1. in relation to any question of law, the appeal is dismissed. 2. in relation to any other grounds of appeal, leave to appeal is refused. 3. the stay of the order for possession of the Tribunal granted by the Appeal Panel on 20 July 2022 is lifted. Preliminary issue 1. The appeal hearing was scheduled for 2:15pm on Tuesday 30 August 2022. 2. On Monday 29 August 2022 at 10:47PM, the tenant sent an email to the Registry relevantly stating that: I had an episode on the weekend which was mild. I had another episode today which was severe. I attended hospital. I have been there for most of the day. I am very sick and cannot function. I need to adjourn please. 1. Attached to the email was a medical certificate relevantly stating that: * the tenant had presented to the Emergency Department of St Vincent's Hospital on 29 August 2022 with left-sided chest pain radiating to his arm and back; * after assessment and consultation with the Cardiology Team he was deemed safe for discharge. 1. The Registry sent those documents to the landlord to seek its views on the adjournment application. The landlord opposed any adjournment as follows: I do not agree with Derek Asirvadem request for an adjournment. This matter has been ongoing for over 18 Months. Derek has also applied for another NCAT Hearing going over the same issues that have just been heard and appealed against. Please find a copy of the request for another hearing. Wesley Community Services Limited requests that Derek Asirvadem pays all costs for our time and appearances. Also, we continuously receive degrading emails from Derek, which must stop immediately by ending this Tenancy. Please find a copy below of the most recent email sent this morning. 1. The attached email referred to by the landlord was sent by the tenant to the respondent at 11:29PM on 29 August 2022. The email states: This has gone on for two years, one and a half years in court. AFAIC, the problem is between your (your commitment to provide single room in shared accommodation, until housing comes through) and your insane WCSL staff that are schizophrenic (denial of reality, pretence that the unit is "exclusive use 3-bedrooms) and now trying to terminate. The attached is merely the punch and counter-punch, due to the fact that neither you nor Rev Stu Cameron has the capacity to deal with this in the normal way that humans do (communication; meetings; discussion) , let alone Christians, and you people resort to court. This is just a courtesy to let you know the next stick in the fire. I expect to call you as a Witness. You may recall, I did make a claim last year, and withdrew it. None of you boffins recognised it as a shot across the bow, to display my evidence and position, *AND* to foster communication with a view to settle. The evidence is the same (not copied here), there were photos, you have visited this unit, you know the condition. There is a second problem which is a criminal fraud perpetrated against all clients, charging 40% instead of the NSW Housing mandate of 25%, which is what I am fighting in court. But there WCSL has an advantage, massive collusion with NCAT members. Evidently Nigel; Peter; Lisa attend the same Friday night orgies with NCAT. Nevertheless the truth will out. And yes, the overarching problem is the schizophrenia fostered by Nigel; Lisa; Peter, since 2018. The criminal fraud being one act across all clients. I am open to a meeting to deal with this and settle, as humans do, instead of labouring through the court. If you use an unemployed lawyer, he will say "don't talk to the other party while there is a matter before the courts", which is why he is unemployed. If you talk to a lawyer, he will say "do your best to settle out of court, court is there to establish your positions, not for fighting it out". 1. We formed a preliminary view that the adjournment application should not be granted, but advised the tenant that he could renew his application at the commencement of the appeal hearing. 2. After the tenant had been advised of this, the Registry received a further email from the tenant at 1:12PM on 30 August 2022. That email states: Sorry, I am sick and unable to function properly. This is pursuant to the order to provide submission today re the adjournment request. I just found, I have received an email from the respondent re related matters, which is *not copied to NCAT* (attached below). Herewith further evidence of either (a) dishonest conduct or (b) schizophrenia (denial of objective reality) on the part of the respondent. The maintenance issues are the same as documented: * in emails to the respondent in 2020; 2021; 2022, * and as evidenced in submissions including photos in SH 21/09181, * and in submissions for this appeal including photos (which were viewed by the good member at the callover), * and in the application SH 22/8685. As evidenced per email correspondence, last year I handled the NSW Housing inspection, and invited the respondent to attend, given the same 7 days notice that I was given, in order that (a) I suffer one not two inspections, and (b) that WCSL and NSW Housing determine who exactly is responsible for each maintenance task, thereby maintaining efficiency across the parties. WCSL accepted but did not show up, they would not answer the phone (went to voicemail). The inspector waited an additional 30 mins and left. Further, this is evidence the respondent does NOT have a working relationship with the provider NSW Housing, as they are required to, if they were responsible and operating at normal human levels. In which case would be WCSL handling the inspection, not me. But now, somehow, due to dishonest conduct or denial of all that reality, wherein both the reality and the denial is evidenced, the respondent begins to think about maintenance for the first time in eleven years. You can't make this stuff up. I am at pains to respond to this email, except to re-iterate the evidenced objective reality, which latter the respondent finds "insulting". I submit that that is yet more evidence that the respondent is unable to resolve anything in the ordinary manner, and that it is incapable of the responsibilities and duties of a landlord (exchange for rent), and that it is unfit to be a social housing provider. Mental illness is the basis for criminality, which explains their criminal enterprise that I have detailed in other submissions (charging rent of 40% instead of the mandated 25%, average $70pw per 400 tenants, is $1.45 million pa), by deception. It is institutionalised, and false "justifications" are repeated in brochures; in emails; etc. Which do not make it true, it simply provides evidence of the institutionalised nature of the fraud against each tenant and against the commonwealth. (It does not help when NCAT overlooks these facts and makes no determinations.) Which it appears only I am objecting to. We can limit the scope of the appeal and the initial application, as demanded by NCAT, but it is not possible to ignore the context and the issues that create the dispute, the respondent keeps providing evidence of its operating level and its non-functioning. 1. Against that background, the tenant renewed his application for an adjournment at the start of the hearing. The hearing commenced at 2:15pm, but initially there were some difficulties with the AVL connection. The hearing properly commenced around 2:30pm. 2. The tenant told us that that he was "sick", "on painkillers", and "not functioning properly". He said that it was taking him an hour to write submissions that normally he could prepare in a much shorter period of time. He also said that as he was taking painkillers, he could not feel "the pain". 3. The landlord opposed any adjournment. Mr Ay said that the landlord was ready to proceed, and submitted that the tenant was able to proceed, and noted that the tenant had been able to write lengthy submissions the evening before. 4. At the conclusion of submissions on this issue from both parties, after a brief adjournment, we indicated that we would refuse the application for an adjournment and would publish our reasons as part of this decision. 5. In our view, the tenant showed himself capable of sending detailed emails late at night and during the morning immediately prior to the hearing. In addition, the tenant appeared capable of representing himself at the hearing, making intelligible submissions on his adjournment application. 6. As has been previously found by this Tribunal, medical reports presented by a party to support an adjournment must be specific, must clearly state that the person is unable to attend a hearing, and must indicate the precise nature of the illness which prevents attendance: see Mourad v Aly [2015] NSWCATAP 49 at [21] and the cases there referred to, namely AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [4] - [5]; Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [6], [20], [22], [23]. 7. The medical report sent to the Appeal Panel by the tenant satisfied neither of these requirements. 8. In addition, as the Appeal Panel noted in Asirvadem v Wesley Community Services Ltd [2022] NSWCATAP 196 at [46] (Appeal Decision), in refusing to grant the tenant's application to adjourn the hearing of that appeal: We must also apply the guiding principle in s 36 (1) of the NCAT Act to facilitate the "just, quick and cheap resolution of the real issues in the proceedings" and that the parties to the proceedings have a statutory obligation to comply with directions of the Tribunal (s 36 (3)). We also must consider the interests of the respondent, the Tribunal and other litigants in the timely and efficient conduct of appeals: see Watson v Chen [2022] NSWCATAP 44 at [30]-[40]; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [4]-[5]. 1. We do not think it would accord with the guiding principle or otherwise be in the interests of justice for the adjournment sought to be granted. 2. For these reasons the application for an adjournment was refused. 3. We note that following our refusal to adjourn the hearing, the appeal hearing continued until about 4:10pm. Throughout that entire period the tenant appeared lucid, capable and coherent. The sound recording will show that throughout this period the tenant made lengthy oral submissions. Background to the Appeal 1. The tenant entered into a residential tenancy agreement with the landlord on 26 August 2016. Proceedings SH 21/49374 1. By application filed 2 December 2021 (Application) the landlord sought orders for termination of the RTA on the basis of rental arrears. In the application, the landlord stated that "Derek is constantly in rental arrears as he refused to pay his rent increase for his subsidised rent . . .". 2. A hearing was held on 25 February 2022. The Tribunal made the following orders: 1. The tenant, … is to pay the landlord … the sum of $1,449.54 by instalments of not less than $50.00 per fortnight, first payment 04-Mar-2022. Failure to pay any instalment in this order by the due date will result in the whole of the balance being payable immediately. Reasons : •rent from 13-May-2021 to 25-Feb-2022 $1,449.54 2. By consent, the tenant is to pay WESLEY COMMUNITY SERVICES LIMITED rent, presently $145.11 per week, next payment due on the 03-Mar-2022, 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 25-Aug-2022 the landlord may request the re-listing of the application to determine whether the tenancy agreement should be terminated. Proceedings SH 21/00791 1. On 7 January 2021, the landlord had lodged an earlier claim in the Tribunal for a termination order pursuant to s 87 of the RTA for breach of the residential tenancy agreement due to the non-payment of rent. In that application, the landlord stated that the appellant had been given a rent increase notice with the rent increasing to $179.14, being 25% of his Disability Support Pension, that the appellant refused to pay the increase and that was the reason why he had fallen into rental arrears. 2. A Notice of Order in those proceedings 3 May 2021, records the following: On 3 May 2021 the following orders were made by consent: 1. The tenant is to pay WESLEY COMMUNITY SERVICES LTD rent, presently $145.11 per week, next payment due on the 13 May 2021 in accordance with the residential tenancy agreement. 2. The application for termination & possession is withdrawn. 3. The applicant does not seek an order for payment of rent arrears for any period prior to 3 May 21. The parties agree that the rent shall increase to $145.11 from 13 May 2021 and shall be reviewed in accordance with the residential tenancy agreement. The tenant shall provide an updated income statement to the landlord on or before 10 May 2021. Proceedings 2022/00063192 – the appeal from the Decision in proceedings SH 21/49374 (the Appeal Decision) 1. The tenant appealed the decision making the consent orders of 25 February 2022. The tenant raised various grounds of appeal including jurisdiction, alleged bias, procedural unfairness and lack of evidence. A hearing was held on 2 June 2022 and reasons for decision published on 10 June 2022. 2. As the Appeal Panel commented at [16] of the Appeal Decision, "[n]otably, those orders were recorded as having been made by consent". 3. All grounds of appeal were dismissed. 4. One of the issues claimed by the tenant in that appeal was that the Tribunal had no jurisdiction to make the orders in SH 21/49374 because the Tribunal had no jurisdiction to make social housing rental calculations. The Appeal Panel then stated: 28. … When asked at the hearing of the appeal for the basis of such assertion, the appellant said that statements to that effect had been made by the Tribunal member before and at the hearing on 25 February 2022 and it had been stated at the call-over in the proceedings and it had been confirmed by NSW Housing. 29. We have not been shown any record of the precise terms of the statements made. However, whatever statements were made are not decisive because the situation is governed by the law, as outlined below. In this regard, we also note that there is no suggestion that any of these statements were part of any final and binding decision of the Tribunal. 30. We do not agree that the orders made on 25 February 2022 (or for that matter, on 3 May 2021) were beyond the jurisdiction of NCAT to make. 31. The proceedings were, properly, brought before the Tribunal as proceedings seeking an order for termination pursuant to s 87 of the RTA. Under that section, it is the Tribunal that is conferred with the jurisdiction and power to make a termination order on the basis set out in that section. Under s 187 of the RTA, the Tribunal is conferred with jurisdiction and power "in any proceedings under this Act", which includes proceedings under s 87, to make "an order for the payment of an amount of money" (s 187 (1) (c)) and to make "an order that requires an action in performance of a residential tenancy agreement" (s187 (1) (b)). Clearly, the orders made on 25 February 2022 fall within the description of such types of orders. 32. Pursuant to ss 28 and 29 of the NCAT Act the Tribunal has general jurisdiction over a matter if legislation, other than the NCAT Act, "enables the Tribunal to make decisions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter…". These provisions of the RTA that we have just referred to enable the Tribunal to make the orders concerning the payment of rent made on 25 February 2022. 33. There does, of course, need to be a recognised cause of action to support the orders made. Clearly, in this case there was because the respondent had a contractual claim for rent, including for arrears of rent. In determining the merits of that claim, the Tribunal, correctly, rejected the claim concerning the quantum of rental arrears and rent required to be paid founded upon the 22 June 2021 rent increase notice and applied the amount of rent the subject of the binding orders made by the Tribunal made on 3 May 2021. The calculation of the rental arrears amount was then a simple mathematical one, which the Tribunal was required to carry out in the exercise of its jurisdiction, and there was no restriction imposed upon it by the unfounded assertion that the Tribunal could not do a social housing rental calculation. 34. Although unnecessary for the purposes of disposing of this appeal, we do not agree that there was any jurisdictional obstacle to the Tribunal making the orders that it did on 3 May 2021. Plainly, in a context where there was a dispute as to an increase in rental, in respect of which the Tribunal could make an assessment under s 44 of the RTA as to whether the increase was excessive, the Tribunal could proceed to make consent orders resolving the proceedings, which included a consent order about a new and increased rental to be paid. Relist of proceedings SH 21/49374 1. The landlord subsequently sought a re-list of the Application. That hearing, held on 30 June 2022, was the subject of the Decision An alternative application seeking to renew the Application proceedings in respect of the orders made on 25 February 2022, which had been set for hearing on 14 July 2022, was not pressed. The appropriate course was adopted to hear the re-listed matter since leave had been given for that re-listing. The Decision 1. At the commencement of the hearing on 30 June 2022 the tenant asked for an adjournment for the following reasons: 1. he disagreed with the Appeal Decision; 2. he never received a copy of the "Hearing Notes"; 3. he wished to file a cross-application; 4. there were errors in the Tribunal's orders and reasons of 25 February 2022; 5. he was not required to pay rent once he filed his appeal in respect of the 25 February 2022 decision. 1. The Tribunal found that none of these matters warranted an adjournment of the hearing. 2. The Tribunal noted at [4] of the Decision that the tenant appeared in person at the hearing and gave sworn oral evidence, and that he relied on a folder of documents received by the Tribunal on 13 May 2022 as well as some emails and a letter received by the Tribunal on 10 June 2022. 3. Having refused the adjournment, the Tribunal then set out the relevant law in the Decision, made relevant findings of fact, applied the law to those findings, reached its decision and published orders. 4. Before the Tribunal was a document tendered by the landlord titled "Report for Tenant" (being found at p 18 of the landlord's materials filed in the appeal). The report sets out what the landlord claimed it was entitled to charge the tenant for rent, being $180.70. This was calculated as 25% of his assessable income ($110.30), to which is added Commonwealth Rent Assistance ($70.40) which is paid directly to the landlord. 5. The point is that in the proceedings before the Tribunal there was evidence that the landlord was actually entitled to charge the tenant $180.70 as weekly rent but, by reasons of its agreement with the tenant (given effect in the Tribunal orders of 25 February 2022 and confirmed in the Tribunal orders of 3 May 2022), the tenant's rent would be a discounted amount of $145.11. 6. After making findings of fact and setting out the relevant law, the Tribunal then expressly considered s 154E of the RT Act which sets out those matters the Tribunal must have regard to in considering whether or not to make a termination order for a social housing tenancy agreement. 7. The Tribunal concluded that: 32. I have considered the application of each of the RTA s154E matters, and relevantly, the material facts show the current tenancy has a history of failure to pay rent on time. 33. In addition, the material facts show that tenant has, whether wilfully or otherwise, been in breach of a previous order of the Tribunal requiring performance of the Agreement, namely by paying rent arrears and paying rent in accordance with the Agreement. Grounds of Appeal 1. The tenant's grounds of appeal are that the Decision was not fair and equitable, and was against the weight of the evidence. Reply to Appeal 1. No Reply to Appeal was filed by the landlord despite directions to do so. Nature of an appeal 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). A question of law 1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right. Leave to appeal 1. Clause 12 of Sch 4 to the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that: 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. 1. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. Tenant's submissions 1. In the Notice of Appeal, the tenant states that the Decision was not fair and equitable because: 1. It is a gross miscarriage of justice, my submissions in evidence (both documents and verbal evidence) were refused. The member colluded with the respondent, and demonstrated bias in favour of the respondent. The member refused to hear anything that countered the claims made by the respondent. The member refused to check the applicant's submissions versus the submissions copied to me, despite the evidence that in the past, the respondent has made submissions to NCAT that were not copied to me. It is a gross miscarriage of justice because it was not a genuine hearing of the evidence of both parties (only one party), but limited to answers to member's questions, and even that was cut off. Decisions were made without the evidence of the appellant. The wording of the orders is contrived to deny my rights. It is a denial of procedural fairness. 2. Due to hearing both SH 21/49374 Re-list & SH 21/27320 Termination (which was listed for 14 Jul 2022) on 30 Jun 2022 the evidence for the Termination hearing had not been submitted. The member refused to either hold the Termination hearing, or to adjourn for a day to allow me to submit such evidence. Thus the Termination was heard without notice and without the appellant's evidence (separate to refusing the evidence that was on hand) 3. I am sick, with several medical conditions, as per the evidence. I have permanent medical conditions, some of which flare up and cause immobility. Social housing is very difficult to obtain. I asked for 60 days but the member refused and gave me 21 days. 1. The second ground of appeal was that the Decision was against the weight of the evidence. 2. After setting out the evidence he gave at the hearing, and the evidence the landlord gave, the tenant said that the Tribunal should have given more weight to the following evidence: All the documents that I submitted in defence, were ignored. It explains why I was not in compliance of the orders, and why the remedial action that I did take was frustrated by the respondent. The crime of charrging [sic – charging] 38% rent in violation of the DCJ mandate of 25%; the appellant's own declarations; and CentreLink, was overlooked in favour of the respondent. This crime is ultimately against the Department of Social Security, because it is DSS that pays my DSP benefit. Further becasue [sic - because] all the respondent's clients are victims, and thus the fraud against the it [sic – Commonwealth] is substantial ($70 per week times 400 clients = $28,000 or $1,456,000 per annum. Overlooking this crime defeats justice. The NCAT order for rent of 30% is non-compliant, and based on the respondent's dictates alone, and not based on legislation, which was therefore disputed by the applicant, and not psid [sic – paid] until the appeal was completed. 1. We gave the tenant the opportunity to supplement these matters by way of oral submission at the appeal hearing. In summary, he said that: 1. the member constituting the Tribunal said that he was "not interested" in the tenant's evidence, which was completely "shut out"; 2. the member was "uncivilised and rude"; 3. the member did not let the tenant speak at the hearing; 4. the member colluded with the landlord's representative at the hearing, joking and laughing with each other and making the tenant feel like an "outcast"; 5. the landlord's evidence was "fantasy" and based on "false documents"; 1. In addition, the tenant variously described the landlord's conduct and evidence as false, illegal, criminal and dishonest. Landlord's submission 1. As noted, the landlord did not file a Reply to Appeal above. 2. We note that the landlord filed all the material that was before the Tribunal with the Appeal Panel apart from a transcript of the hearing, which the tenant had not filed and is referred to below. 3. In addition, the landlord relied on evidence not before the Tribunal, being pp 42 to 64 of its bundle. Pages 42 and 43 are submissions. Clearly, they may be received by the Appeal Panel as part of the appeal. 4. However, the balance of the materials (that is pp 44 to 64) were described as "documents with the rent guidelines and calculations of how the rents are calculated". While of some assistance, since they were not before the Tribunal, and we do not accept that they were not reasonably available at the time of the Tribunal hearing, we have had no regard to those materials: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. 5. The landlord's written submissions may be summarised as follows: 1. the tenant refuses to follow any direction from either the Tribunal or the landlord; 2. the tenant refuses to pay any rent increases as he believes his rent should not increase from $110 per week, which was his original rent from the start of his tenancy; 3. under new guidelines from the Department of Community and Justice, all tenants' rents are to increase every year if they have received more income. If a Tenant has not received more income from Centrelink the rent will not be increased; 4. on 3 May 2021, the tenant was ordered by the Tribunal to pay an increased rent of $145.11 and to pay rental arrears of $50 per fortnight. The tenant refuses to pay either the additional rent or the rental arrears as he believes the Tribunal does not have the authority to rule on any Tenancy matters; 5. the landlord is suffering undue hardship because, every time a rent increase is issued in the future, the landlord will have to waste many hours lodging/preparing Tribunal documents as the tenant will never agree to any future rent increases; 6. based on his current Centrelink payments the tenant should be paying $187.26 per week; 7. Centrelink will also pay the tenant $72.90 per week rent assistance, of which 100% goes to the Community Housing provider. Since the tenant has not updated his rent assistance with Centrelink since 17 November 2011, he is receiving a lesser amount; 8. the current rent assistance received by the tenant is for a single sharer of a property. The tenant is no longer a single sharer and is occupying a three bedroom family house by himself. The landlord has a number of families waiting for a family property with three bedrooms. 1. The landlord's submissions conclude with the statement: … [the tenant] will continue to defy any orders NCAT makes. He continues to appeal any decision he is not happy with and further wasting the time of NCAT and Wesley Community Services Limited. Please continue with the termination of the Tenancy orders. 1. We gave the landlord the opportunity to supplement those matters by way of oral submission at the appeal hearing. 2. In summary, its representative said that: 1. the appeal should be dismissed; 2. the current rate weekly rental for the tenant's property was $145, which was the reduced amount agreed on 3 May 2021 whereas the "real calculation is $180 per week, the basis of that latter calculation being set out in the landlord's materials which were before the Tribunal and provided to the tenant; 3. another rental increase was due in the next two months. 1. In brief oral submissions in reply, the tenant said that the landlord's submissions were false, in particular the claim that he was living in a three-bedroom apartment, that its evidence was not admissible and his lease was "false". He further submitted that the "Report for Tenant" document was invalid, that the landlord had no power or authority to calculate rent and that he continued to dispute the "detail of the crime". 2. The tenant then commented on the landlord's materials and concluded by exhorting the Appeal Panel to not overlook "the criminal activity" of the landlord. Consideration Question of law 1. In Prendergast the Appeal Panel stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise). 2. We have undertaken that exercise. The tenant's submissions raise two questions of law, namely that: 1. the Tribunal was biased; 2. he was denied procedural fairness. Bias 1. As the Appeal Panel stated in Saurine v Coral Homes Qld Pty Ltd [2015] NSWCATAP 147: 18. Bias can be actual or apprehended: Bogoevski v Stricklands [2015] NSWCATAP 133 at [110]. Mr Saurine has not articulated whether his claim is one of actual bias or apprehended bias. Claims of actual bias are rarely made, and even more rarely upheld. Actual bias usually, but not universally, contemplates an "interest" (whether financial or otherwise) by the judicial officer (in this case the Tribunal member) in the outcome of the proceedings. No such claim is made in this appeal. In the circumstances, we do not accept that the member was motivated by actual bias in the hearing and determination of Mr Saurine's application. … 20. The relevant principles in determining whether there is apprehended bias and how they are to be applied were explained by the High Court of Australia in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6], where the High Court stated: "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a tribunal be independent and impartial. 21. Mr Saurine appears to be suggesting that the reasoning of member in his written reasons illustrates (apprehended) bias. We do not agree. Mr Saurine also appears to be suggesting the member came to conclusions that were not reasonably available to him, or otherwise against the weight of the evidence, but this does not amount to apprehended or ostensible bias. In any event, Mr Saurine alleges that the conduct of the member in the preceding matter demonstrated the "member's bias to applicants without even hearing the case". As he was the applicant, it is unclear how such conduct, even if it occurred, could amount to bias against him. 1. In his Notice of Appeal the tenant states that the Tribunal demonstrated a "heavy bias" in favour of the landlord by: Various inappropriate statements [landlord's] bullying continued 1. Other claims of bias were made at the appeal hearing, and are summarised above. 2. We reject any suggestion that the member constituting the Tribunal was actually biased. 3. In the absence of a transcript of the proceedings or a sound recording, we see no reason that a fair-minded lay observer might reasonably apprehend that the Tribunal member might not bring an impartial mind to the resolution of the issues he was required to decide. 4. We note that the tenant did not file either a transcript of the proceedings or a sound recording despite being directed to do so if he wished to rely on what happened at the Tribunal hearing in his appeal. The tenant said that he had obtained the sound recording and had started to type out a transcript but had not had the opportunity to complete it. There was no prior application for extension of time or adjournment that mentioned these matters. 5. In the circumstances, we do not consider that the appeal should be allowed on the ground of bias. Denial of procedural fairness 1. This complaint is put in a variety of ways: * his evidence submitted on 29 June 2022 "was not even read" by the Tribunal; * at the hearing, after "asserting" his evidence, the Tribunal ignored it, with no reasons given; * the member constituting the Tribunal said words to the effect "no, you are not giving evidence, I will ask questions, and you will provide answers"; * when the Tribunal did ask questions, which were thus limited to the scope of his agenda, and unknown to me, he would cut off the answer, and thus anything that countered the verbal evidence given by the [landlord] was not allowed. Thus it was not a hearing (of evidence), but an inquisition, and a very narrow one. Various false statements were made by the respondent's, in which countering evidence was not permitted. * he was not permitted to provide verbal evidence regarding the non-compliance with orders; * "[c]onsistent with [the landlord's] ongoing dishonest conduct, that is not addressed by [the Tribunal], the landlord is in the habit of submitting documents to NCAT hearings without copying me as required. When the Hearing Notes came up, I asserted that I did not have that document, but the member refused to provide it or deal with the dishonest conduct. He said words to the effect "you don't need the Hearing Notes"; * the member proceeded on the basis of landlord's documents alone, which were not known to the tenant. 1. In addition, the tenant says that there is ongoing confusion about the dates and amounts ordered, and the landlord does not respond to his queries for clarification. He says that if he had the Hearing Notes, he would be able to clarity the figures himself, as well as "see" any other evidence that the landlord had submitted. 2. Again, in the absence of a transcript of the proceedings or a sound recording, we consider that this ground of appeal, raising a question of law, should be dismissed. This is reinforced by the treatment of evidence in the Tribunal's reasons in the Decision set out earlier, which absent a transcript supporting the tenant's allegations before us, read as well-ordered and comprehensive treatment of the material before the Tribunal that clearly supported the Decision. Leave to appeal 1. Since we have decided not to allow the appeal on a question of law, this means that the tenant needs leave to appeal. 2. In summary, the grounds agitated by the tenant are that the Decision: 1. was not fair and equitable; and 2. was against the weight of the evidence. 1. We have set out above the principles to be applied in granting leave. We have also set out above the tenant's submissions on these matters. 2. Put simply, we would not grant leave to appeal in respect of any of these matters. 3. We note that: 1. the tenant did not provide to us a transcript of the proceedings despite directions to do so; 2. the tenant did not provide to us a sound recording of the proceedings despite directions to do so; 3. the tenant did not provide a copy of the evidence he relied on at the hearing despite directions to do so. 1. We are not satisfied on the material before us that either ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. 2. Finally, we note that, during the course of the appeal hearing, the tenant made it plain that he still objected to the fact that his rent was presently being charged at $145.11, despite consent orders having been made on at least two occasions to that effect. It is to be noted that the tenant raised that very issue in appeal proceedings 2022/00063192 that resulted in the Appeal Decision already described. 3. The Appeal Panel rejected his appeal in relation to that issue, finding at [33] of the Appeal Decision that "the Tribunal correctly, … applied the amount of rent the subject of the binding orders made by the Tribunal made on 3 May 2021", and noting that [t]he calculation of the rental arrears amount was then a simple mathematical one, which the Tribunal was required to carry out in the exercise of its jurisdiction, and there was no restriction imposed upon it by the unfounded assertion that the Tribunal could not do a social housing rental calculation". 4. In those circumstances, leave to appeal is refused. Subsequent communications from the tenant 1. After the conclusion of the hearing the tenant sent three emails to the Appeal Panel containing further evidence and submissions. 2. We have had no regard to that material, which was filed without leave. As the Tribunal stated in Henkelman v Psychology Council of NSW [2017] NSWCATOD 161: 85. The impression that parties may file supplementary materials after the conclusion of oral argument, without leave having been given beforehand, is misconceived. As McHugh J, with whom Gummow J agreed, stated in Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 at [30]: 30. This is not the first time that this Court has had to emphasise that the hearing is the time and place to present arguments. In Carr v Finance Corporation of Australia Ltd [No 1] [[1981] HCA 20; (1981) 147 CLR 246 at 258] Mason J said: The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions. 31. Once the hearing has concluded, the workload of the Court makes it impossible for the Court to give leave to file further submissions - with all the attendant delay in the Court's business by a fresh round of submissions. Efficiency requires that the despatch of the Court's business not be delayed by further submissions reflecting the afterthoughts of a party or - as perhaps is the case in this appeal - some dissatisfaction with the arguments of the party's counsel. 86. While his Honour was referring to the work of the High Court of Australia, given that s 36 of the Act provides that the guiding principle for the Tribunal is the facilitation of the just, quick and cheap resolution of the real issues in the proceedings, I see no reason why the matters referred to by McHugh J are not applicable to the work of the Tribunal. Conclusion 1. Leave to appeal is refused. Other 1. There was some discussion at the conclusion of the appeal hearing about what would follow if the appeal was unsuccessful and the stay of the order for possession was therefore lifted. 2. We note the landlord's indication that it would take approximately three weeks to execute a warrant for possession of the premises. 3. We also note the tenant's indication that a warrant would not be necessary, and that each party should act like a "civilised person". Orders 1. The Appeal Panel orders: 1. In relation to any question of law, the appeal is dismissed. 2. In relation to any other grounds of appeal, leave to appeal is refused. 3. The stay of the order for possession of the Tribunal in proceedings SH 21/49374 dated 30 June 2022 granted by the Appeal Panel on 20 July 2022 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. 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: 15 September 2022