Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Molloy v Stewards' Foundation of Christian Brethren [2022] NSWCATAP 394 Hearing dates: 5 December 2022 Date of orders: 20 December 2022 Decision date: 20 December 2022 Jurisdiction: Appeal Panel Before: R Titterton, Senior Member OAM D Goldstein, Senior Member Decision: 1. The application for leave to appeal is refused. 2. The appeal is otherwise dismissed. 3. The respondent's application for costs is dismissed. Catchwords: APPEALS — leave to appeal – decision not fair and equitable – decision against the weight of the evidence – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – ss 60, 80; cl 12 of Sch 4 Civil and Administrative Tribunal Rules 2014 (NSW) Retirement Villages Act 1999 (NSW) – ss 66(2), 66(3) Retirement Villages Regulation 2017 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Anderson v The Owners - Strata Plan No. 61034 (No 2) [2019] NSWCATAP 108 Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152. Collins v Urban [2014] NSWCATAP 17 Gizah Pty Limited v AXA Trustees Limited (No. 2) [2001] NSWADT 164 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Temple v AMR Motors Pty Limited [2017] NSWCATAP 221 Texts Cited: None cited Category: Principal judgment Parties: Myrtle Molloy (Appellant) Stewards' Foundation of Christian Brethren (Respondent) Representation: Solicitors: Appellant (Self-represented) Atkinson Vinden Lawyers (Respondent) File Number(s): 2022/00290860 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2022] NSWCATCD Date of Decision: 01 September 2022 Before: G Blake AM, SC, Senior Member File Number(s): RV 22/17962 reasons for decision Background 1. This is an appeal against a decision made on 1 September 2022 (Decision) in the Consumer and Commercial Division of the Tribunal (Tribunal). 2. For reasons which we will summarise later in these reasons, the Tribunal dismissed the application. 3. For the following reasons, we have decided to refuse leave to appeal, and otherwise to dismiss the appeal. The Decision 1. To understand the grounds of appeal and submissions, it is appropriate to briefly summarise the Decision. 2. We note at the outset that the Decision was 58 pages in length, and was a careful and detailed examination of the matters in dispute between the parties. 3. Having summarised the factual background, the history of the proceedings and the relevant law, the Tribunal then summarised the disputes between the parties and the issues to be determined. 4. The disputes between the parties were stated as: 1. whether the respondent had breached s 66(3)(e) of the Retirement Villages Act 1999 (NSW) (RV Act); 2. whether there had been a variation in the services or facilities provided at the village due to the change in the method by which water is charged to residents; 3. whether the respondent had complied with its obligations with respect to one or both of the proposed annual budget for the 2020/2021 financial year and the 2021/2022 financial year. 1. The Tribunal then stated the issues for determination were: 1. whether the name of the respondent should be amended; 2. whether the Tribunal has jurisdiction to determine the proceedings; 3. whether the proceedings so far as the alleged breach of s 66(2)(e) of the RV Act by the respondent were commenced within the prescribed period, and if not time for their commencement should be extended; 4. whether the respondent has breached s 66(2)(e) of the RV Act; 5. whether the respondent is liable to consent to the applicant's right of occupancy being transferred from unit 3 to unit 15 for its breach of s 66(2)(e) of the RV Act; 6. whether the respondent is liable to pay any compensation to the applicant for its breach of s 66(2)(e) of the RV Act; 7. whether the proceedings so far as the alleged reduction or withdrawal in the services or facilities provided at the village due to the change in method by which water is charged to residents and failure to provide information in relation to the budget of the village were commenced within the prescribed period, and if not time for their should be extended; 8. whether there has been a reduction or withdrawal in the services or facilities provided at the village within s 62(1) of the RV Act due to the change in the method by which water is charged to residents, and if so whether any relief should be granted to the applicant; 9. whether the respondent has failed to comply with a requirement of the RV Act or the Retirement Villages Regulation 2017 (NSW) (RV Regulation), the village contract or the village rules with respect to one or both of the proposed annual budget for the 2020/2021 financial year and the 2021/2022 financial year, and if so whether any relief should be granted to the applicant; 10. costs. 1. The Tribunal then went on to set out the relevant statutory provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act); the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules); the RV Act and the RV Regulation. 2. The Tribunal then considered the appellant's application for an extension of time in which to commence her proceedings. After an exhaustive setting out of the relevant factual background (Decision, [57] to [89]), the Tribunal extended the time for the filing of the proceedings in relation to the alleged breach of s 66(2)(e) of the RV Act. 3. The Tribunal then proceeded to consider: [1] 1. whether the respondent had breached s 66(2)(e) of the RV Act. Here the Tribunal concluded (Decision, at [101]), that the appellant had not established that she had been harassed by her neighbours. The Tribunal went on to find that, even if it were later found that the appellant had been harassed by one or more of her neighbours, and had been intimidated by one or more of them, it would not have been satisfied that the respondent had breached s 66(2)(e) of the RV Act; 2. whether the respondent was liable to consent to the appellant's right of occupancy being transferred from unit 3 to unit 15 for its breach of s 66(2)(e) of the RV Act. Here the Tribunal was satisfied that it did not have power to make this order, and even if it had found that the respondent had breached s 66(2)(e) of the RV Act, it would have refused to make the order sought; 3. whether the respondent was liable to pay any compensation to the appellant for its breach of s 66(2)(e) of the RV Act. In view of the Tribunal's earlier findings, this issue did not arise. However, the Tribunal stated that, in case it was wrong in that regard, for the reasons set out at [111] to [115] of the Decision, it nevertheless would have refused to make the orders sought; 4. whether the proceedings so far as the alleged reduction or withdrawal in the services or facilities provided at the village due to the change in the method by which water is charged to residents and failure to provide information in relation to the budget of the village were commenced in the prescribed period, and if not, time for their commencement should be extended. For the reasons set out at [117] to [146] of the Decision, the Tribunal decided to grant an extension of time for the commencement of the proceedings; 5. whether there had been a reduction or withdrawal in the services or facilities provided at the village within s 62(1) of the RV Act due to the change in the method by which water is charged to residents, and if so whether any relief should be granted to the applicant. For the reasons set out at [149] to [151] of the Decision, the Tribunal decided that it had no power to make any order; 6. whether the respondent has failed to comply with a requirement of the RV Act or the RV Regulation, the village contract or the village rules with respect to one or both of the proposed annual budget for the 2020/2021 financial year and the 2021/2022 financial year, and if so whether any relief should be granted to the applicant. Here the Tribunal decided that it had no power to make the order sought (Decision at [155]); 7. as to the issue of costs, the Tribunal stated at [156] that: In view of the concession of the parties at [22] above, the costs of the proceedings do not arise for determination. It follows that pursuant to s 60(1) of the NCAT Act each of the applicant and the respondent are to pay their own costs. Notice of Appeal 1. The appellant's grounds of appeal are stated as follows: This Appeal is based on: (i) An error in law in that the Tribunal failed to take into consideration the weight of the evidence and (ii) The Tribunal did not properrly [sic – properly] consider the evidence of the Appellant Decision against the weight of the evidence 1. The appellant submits that the Decision was against the weight of the evidence because: (1) The decision was against the weight of evidence as on the evidence, the Appellant showed she was the subject of haressment and intimidation by other residents, was residing in premises not fit for purpose and in the circumstances the operator had not responded to these issues at all! The only evidence presented by the operator being a list of allegations prepared by the operators' lawyer. (2) The decision is not fair and equitable as the Appellant being an elderly person is required to continue to live in substandard accommodation and continue to be harressed and intimidated by other residents without any action being taken by the operator. (3) The significant evidence produced at the hearing on 24 August, 2022 to the Tribunal being New South Wales Police Event Reports relating to the conduct of 3 village residents confirmed the Appellant's of haressment and intimidation. This evidence was also provided to the operator and has not yet been actioned. (typographical errors as in original) 1. The appellant further submits that: The Tribunal should have given more weight to the evidence of the Appellant as it has been validated by statements made to NSW Police Officers attending the village in all 3 Event Reports in respect of Craiglea Retirement Village. The "Noise" based issues were between Resident "LU" (referred to as Luyuan Chen, in Police Report No 2) and the 8 year old disputes, harressment and intimidation" by Beverly Steer toward the Applicant outlined in both Police Reports No 1 and No 3. Further, throughout this 8 years period the Operator and Village Manager have chosen not to attempt in any meaningfull way to resolve these disputes, outbursts and even common assault. Further the Appellant's evidence outlines favourable treatment of Resident, Beverly Steer, who'se unit was repainted and recarpeted, with her window blinds cleaned during her term of her tenancy in the Village. Such works have only, over the past 8 years, been carried out by the Operator following the termination of a resident's tenure. Perhaps this was a reward? Please see Attachment "E" which is a full copy of the New South Wales Police Event Reports. Please also see Attachment "F" which contains a copy of the Report of Evolving Minds Counselling, Ms. Vanessa Allen, Principal Psychologist. (typographical errors as in original) 1. These, and other, matters were addressed in oral submissions at the appeal hearing by Mr D Smith, on behalf of the appellant. The principal matters he addressed were as follows: 1. the appellant was an 85 year old single woman with serious health concerns. For many years while living at "Craiglea", the subject retirement village at Engadine operated by the respondent, the appellant had had an acrimonious relationship with one of the other residents; 2. the Tribunal failed to give sufficient weight to three police reports respectively dated 6 October and 10 November 2020, and 26 May 2022, in finding that the appellant had not established that she has been harassed by her neighbours and the respondent had not fulfilled its obligations to her; 3. the Tribunal failed to take into account the appellant's safety; 4. the Tribunal failed to afford the appellant procedural fairness in that by failing to give sufficient weight to the evidence before it, it failed to protect the appellant; 5. the Tribunal failed to recognise the inadequate approach by the management of the respondent to the issues as identified by the appellant; 6. the principal resident with whom the appellant had been the victim of harassment and intimidation may have health and mental issues; 7. the Tribunal failed to address the issues identified by the appellant in respect of the annual budgets of the respondent; 8. the Tribunal failed to take into account the report findings of the Greiner Review Report of 2017; 9. the Tribunal failed to give sufficient weight to the applicant's handwritten submissions. Reply to Appeal 1. In the Reply to Appeal the respondent states that it supports the Decision for the reasons stated. 2. In its submissions dated 29 November 2022, the respondent submitted, in summary, that: 1. in neither the appeal nor the Tribunal proceedings had the appellant filed any evidentiary material for seeking the orders. We note immediately that that submission is not literally correct. The appellant filed hundreds of pages of evidentiary material. We assume that what the respondent is submitting is that the appellant failed to file any probative pr persuasive evidence in support of the orders she sought; 2. the appellant has not filed evidence which would warrant the Appeal Panel granting her leave to appeal; 3. there appears to be an inherent misunderstanding by the appellant of the relevant legislation and the powers of the Tribunal to make certain orders, and the orders sought by the appellant have no relevance the issues raised by the appellant and rather, said to bind the respondent to actions of third parties. Nature of an appeal 1. Section 80 of the 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. 2. In Prendergast the Appeal Panel also 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). 3. We have undertaken that exercise, but we cannot identify any error of law in the Notice of Appeal. Accordingly, the appellant requires the leave of the Appeal Panel to bring the appeal. Leave to appeal 1. Clause 12 of Sch 4 of 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]. Orders sought by the appellant before the Tribunal 1. To consider the submissions made by the appellant on appeal, we think it appropriate to set out the orders sought by the appellant before the Tribunal. These are set out in par [14] of the Decision which we reproduce in full: … The Applicant seeks the following orders: a. The Applicant seeks an order under section 66(3)(b) and/or 126(1)(a): i. directing the Respondent to allow the Applicant to transfer occupation from Unit 3 to Unit 15 in the Village without further payment by the Applicant; ii. directing the Respondent to prepare and enter into a village contract with the Applicant to allow the Applicant to reside in Unit 15 in the Village that contains the following elements: 1. the current level of ingoing contribution of UnIt 3; 2. equivalent departure fee and recurrent charges as are payable by the Applicant; 3. the equivalent formula for variation in recurrent charges as is payable by the Applicant in relation to Unit 3; iii. terminate the Applicants village contract for Unit 3 b. Further or in the alternative, the Applicant seeks an order for compensation under section 66(3)(a) and/or 128(1)(f) of the RV Act in respect of: i. The ingoing contribution to reside in Unit 15 after allowing for the receipt of any refund due to the Applicant in relation to Unit 3; ii. The costs of removal and transfer of the Applicants property to Unit 15; iii. The costs of connection of all necessary utilities, internet, electricity; iv. The costs to refurbish and renovate Unit 15 including remove any mould, v. General amount of $10000 for the stress, emotional injuries, fear, anxiety and deterioration of health suffered by the Applicant. c. An order: i. Under s128(1)(a) that the Respondent provide to the Applicant details of all metered water usage charges included in the Village Budget; ii. Under s128(1)(c) restraining the Respondent from including in any future Village budget any charge for water usage without providing full details; iii. under section 62(1)(a) - Directing the Respondent to cease charging water usage in the Village budget on the basis of metered charges and to allocate cost of water usage equally across all 15 premises in the Village. iv. Under 62(1)(b) and/or (c) for compensation for the additional cost or charges payable by the Applicant because of the change in the method of charging water usage to residents. Consideration 1. The principal matters raised by the appellant in the Notice of Appeal are that: 1. the Decision was against the weight of the evidence as the appellant showed she was the subject of harassment and intimidation by other residents, was residing in premises not fit for purpose, in circumstances where the respondent had not responded to these issues at all; 2. the Decision was against the weight of the evidence as Tribunal failed to give sufficient weight to the New South Wales Police Event Reports relating to the conduct of three village residents which confirms the appellant's harassment and intimidation; 3. the Decision was not fair and equitable as the appellant (being an elderly person) was required to continue to live in substandard accommodation where she was continued to be harassed and intimidated by other residents. 1. To those matters should be added the matters raised in Mr Smith's oral submissions which are set out in par [15]. With two exceptions, we see no substance in the oral submissions as warranting a grant of leave. 2. The first exception is the submission that the Tribunal failed to give sufficient weight to the three police reports respectively dated 6 October 2022, 10 November 2020, and 26 May 2022 respectively at pars [71], [72] and [80]. We shall deal with each report in turn. 3. In the three reports "PR" is a reference to the appellant, "PN" is a reference to her neighbour; "VIC" is a reference to the appellant; "ADD" means address; and "LOC" means the Craiglea Village. 4. Emphasis has been added by the Appeal Panel. Police report dated 6 October 2020 1. This report relevantly stated: About 11. 00am on Tuesday 6th October 2020 the PN and PR had an argument outside of their units in relation to the smoke. alarms going off. The smoke alarms are all connected to warn all of the elderly residence in each of their units. The PR went outside and asked what was happening when the PN yelled back towards her it is none of your business an argument ensued between them which caused other neighbours to come out. It continued for around 10 minutes with it finished and then started up again as they were wanting to both have the last word. About 2pm police arrived at the location and spoke to PR who stated there have been on going issues at the complex with the PN. The PN takes it upon herself to leave notes around the unit blocks dictating how things should be done and abusing the residence when her methods are not being followed. It has now become a us and them mentality between the selected residence on each side. Police speaking with a number of the neighbours stated the PN has a tenacity to be very pushy to the point of being a bully. Police spoke with the PN who stated their was an argument between them and informed the PR it was none of her business when the PR asked what was happening. Police asked why she thought it was non of her business when smoke alarms were going off which affects all of the residence. The PN informed police there has been previous issues between them and it has become personal. Police advised the PN not to approach the PR or speak to her if she feels it is going to upset her. The PR was advised to attend Sutherland Local Court and apply for a personal Violence Order (PVO) if she thinks it will continue between her and the PN. The PR informed police she would consider the PVO but at this time did not feel it was needed. 1. While not reproducing the text of this report, the Tribunal explicitly referred to this report at [71] of the Decision. We note that the only real reference of bullying is the observation that the appellant's neighbour had a "tenacity to be "very pushy to the point of being a bully". Police report 10 November 2020 1. This report relevantly stated: The VIC and the PN are neighbours and have lived near each other for the past 6 years. The two parties have been having ongoing issues over the past few years relating to neighbour disputes. About 10:30 am on Tuesday 10th November 2020, the VIC was outside her ADD when the PN has started to yell abuse at her from the balcony of her ADD. The VIC could not explain to police as to the exact phrases used by the PN, because she is of Chinese descent and speaks fractured English. The VIC was unsure as to why the PN was yelling at her, but believes it has to do with ongoing issues between her, the PN and another third party that lives at the complex. Police attended the LOC at 4:05 pm and spoke with the VIC. The VIC then went and spoke with the PN to get her version of events. The PN explained to police that she did not start the argument, but rather the VIC did as she "stared at her aggressively" whilst walking to her car. This has caused the PN to yell at the VIC to stop her from staring at her. Both parties have filed grievances with the management within the complex and believe the other party is at fault, with the PN showing police a typed document she made which detailed a previous police visit and how she believed the VIC to be at fault. Police then spoke with VIC once more and informed her of the outcome of the conversation with the PN and explained to her that a report would be made and told her and the PN to try and avoid each other from now on. No offences detected; No further police action. 1. While not reproducing the text of this report, the Tribunal explicitly referred to this report at [72] of the Decision. We see no comments which support a claim of harassment or bullying. Police report dated 26 May 2022 1. This report relevantly stated: … [The appellant] (84 years of age) … went out for a walk around the perimeter of her unit complex when as she approached the clothes line area sighted her neighbour, the PN … (83 years of age) who resides in unit 8. The VIC and PN have had a number of disagreements over the past 8 years when the VIC moved into the complex and are not on speaking terms. At this time, as the VIC sighted the PN due to previous incidents she has turned away from the PN and begun walking back to her unit. As she did so, the PN yelled coward towards her, the VIC continued walking and was closely followed PÑ confronted her and continued yelling 'coward' grabbing hold of the VIC's left wrist, before letting go and walking away. The VIC returned inside and contacted police a short time later. Police attended the location and spoke with the VIC who provided the above version. The VIC did not wish to provide a statement wanting police to attend the PN's unit to speak with her and advise her to leave her alone. The VIC stated she has anxiety as a result of the PN's behaviour over the past years and believes she may have a mental illness. The VIC was not injured, not threatened and indicated she is taking action against the PN and strata board via the NSW civil tribunal. A short time later police attended the PN's residence speaking with the PN who indicated she and the VIC do not like each other and haven't since the VIC moved into the location. The PN stated the VIC is continually harassing other residents in the complex, taking photographs of them etc. The PN stated that sometime in the morning the VIC approached her whilst she was picking some flowers making sly remarks before leaving. The PN stated around 5:00 pm the VIC again approached her at the clothes line again about picking flowers, before she turned around and walked off. The PN stated she did call the VIC a coward and walked after her as she wanted to confront her as she always walks off. The PN stated the VIC then began taking pictures of her and as they reached the VIC's unit they began to argue, calling her a coward before leaving. When questioned further the PN did admit to grabbing hold of the VIC's wrist. Due to the VIC not wishing to provide police with a statement the PN was spoken to in relation to her behaviour and advised she keep away from the VIC In future avoiding any further communication / not to approach her as due to their dislike for each other future incidents could have either party before the courts. The PN was also informed the VIC is within her rights to take photographs and should therefore refrain from engaging with her if this occurs again. 1. The Tribunal explicitly referred to this report at [80] of the Decision stating: On 26 May 2022, the officers of the NSW Police Force attended the village following an argument earlier that day between the applicant and person A which was precipitated by the applicant taking photographs and included person A grabbing the applicant's left wrist, and completed an incident report (the 26 May 2022 police report). This report records that there had been a number of disagreements between the applicant and person A over the past eight years. Person A stated to the officers that she and the applicant do not like each other and that the applicant is continually harassing other residents including by taking photographs of them. The NSW Police Force decided to take no action. 1. In the Decision, the Tribunal stated its reasons for not finding the appellant's claims of harassment or intimidation established: 101 I am not satisfied that the [appellant] has established that she has been harassed by her neighbours, and has been intimidated by one or more of them, for the following reasons: (1) while the [appellant] and her representatives have asserted ongoing abuse and harassment by her neighbours, the actual conduct is largely undescribed; (2) this evidence of the [appellant] and the respondent discloses significant disharmony between the applicant and her neighbours, but does not demonstrate harassment and intimidation by them. In particular; the 6 October 2020 police report discloses that there is long standing mutual animosity between the [appellant] and person A who each blame the other; (3) in the absence of any cross-examination challenging their evidence, I accept the evidence of the residents in the Resident 1 statement, the Resident 2 statement and the Resident 3 statement, and person A in the person A statement. 1. As noted, the Tribunal had explicitly referred to the three police reports, and we note in particular the Tribunal's comments at: 1. at [101](2), in relation to the 6 October 2020 police report; and 2. at [80] and [85], in relation to the 26 May 2022 police report. Paragraph [80] is set out above. 1. In par [85] the Tribunal stated it was satisfied that the 26 May 2022 police report had no relevance to the issue of to the alleged breach of s 66(e) of the Retirement Villages Act 1999 (NSW), (namely that the operator of a retirement village must use their best endeavours to ensure that each resident lives in an environment free from harassment and intimidation) were commenced within the prescribed period as there was no evidence that the appellant complained to the respondent about the incident the subject of the 26 May 2022 police report. In those circumstances, the Tribunal stated that it followed that it had not taken the incident the subject of the report into account on this issue (that is, the issue of the timing of the commencement of the proceedings). 2. We see no substance in the submission that the Tribunal failed to give sufficient weight to the police reports of 6 October 2022 and 10 November 2020, as there is nothing in those reports that suggests intimidation or harassment. As noted, the only real reference of bullying in the 6 October report is the observation that the appellant's neighbour had a "tenacity to be "very pushy to the point of being a bully". The highest the 10 November report goes to is some evidence of yelling. 3. The report of 26 May 2022 however stands in a different category, as it does disclose evidence of the applicant's neighbour grabbing her wrist, in circumstances where the applicant believes that the neighbour has a mental illness, and the police record states that the applicant was not injured or threatened. 4. We accept that the Tribunal stated that it had not taken this report into account in relation to the timing of the commencement of the application. The Tribunal is silent on whether it had taken this report into account in relation to the principal claim. We assume it did, as clearly the report was read by and referred to by the Tribunal. However, no explicit findings were made in relation to this report. 5. We have considered this evidence ourselves. Given that the report states that the applicant was not injured or threatened, we are satisfied that this report would have made no difference to the outcome of the application or to an award of compensation. 6. In the circumstances, we agree with the Tribunal's findings at [101] of the Decision and consider that the conclusions were properly able to the Tribunal. 7. As to the lack of attention given to the appellant's handwritten notes, the submission was not particularised in any way by Mr Smith. In those circumstances, we see no substance in the submission. 8. As to the other matters raised in oral submissions, we are not persuaded that any of these matters properly arise on appeal. That is principally because, as can be seen in the orders sought by the appellant reproduced at [25] above, the matters have little, if any, relevance to the orders sought. 9. In addition, the appellant appears to have misconceived the role of the Appeal Panel, and the Tribunal, in hearing and determining claims on the basis of the probative evidence before it and applying the relevant law. Conclusion 1. An appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. 2. Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence: Temple v AMR Motors Pty Limited [2017] NSWCATAP 221 at [38]. 3. To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website): … an appeal is not an opportunity to have a second go at a hearing. 1. This appears to be precisely what the appellant is seeking to do. 2. Leave to appeal should be refused. 3. We are not satisfied that any ground on or matter raised by the appellant 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. Other 1. The final matter to note is that the appellant sought to rely on evidence which was not before the Tribunal. This evidence was a "thank you card" relied on as attesting to her good character. We explained to Mr Smith that the usual rule was that evidence on appeal must be evidence that was not reasonably available at the time of the Tribunal hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. 2. Mr Smith quite properly conceded that the "thank you card" was available at the time of the hearing. 3. Those circumstances, we have had no regard to that evidence in determining this appeal. Costs 1. The respondent sought costs in the event that the appellant was unsuccessful. The respondent correctly identified s 60 of the NCAT Act as the relevant costs rule in its submissions. 2. Section 60 of the NCAT Act relevantly provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following-- (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, Including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. 1. As the Appeal Panel stated in Anderson v The Owners - Strata Plan No. 61034 (No 2) [2019] NSWCATAP 108: 9 In Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], the Appeal Panel cited with approval the meaning of the expression "special circumstances" that had been given to the same expression in the former section 88 of the Administrative Decisions Tribunal Act 1997 (NSW) by the Court of Appeal in Cripps v G & M Mawson [2006] NSWCA 84, per Santow JA at [60], Mason P and Brownie AJA agreeing. That is, special circumstances are "circumstances that that are out of the ordinary" but the circumstances do not have to be "extraordinary or exceptional". 10 The authorities considering the meaning of the expression "special circumstances" were also reviewed in CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]. It was again stated that "special circumstances" are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional. Further, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. 11 Each situation is to be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs. In Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75 [14]- [16] the Appeal Panel stated in connection with the issue of 'special circumstances': "14. An assessment whether circumstances are "special" involves the exercise of a value judgement carried out by way of comparison between what is not "special", and what is special. There are no scientific means by which the former can be ascertained. The evaluative process is necessarily one of impression informed by the particular provisions of section 60, which by sec 60(3)(f) incorporates also a consideration of section 36(3) of the Act. 15. Having regard to the nature of the proceedings on appeal as we have described them, we are of the opinion that they intrinsically, and by reason of their complexity, both as to fact and law, justify them being characterised as special, warranting an award of costs in favour of the successful appellants. Counsel for the second appellant likened the proceedings to those commonly encountered in the Supreme Court of NSW. Their complexity was increased because of the position taken by the respondent, and it was necessary in the course of the appeal proceedings and for the purpose of determining them, to deal with circumstances in which an equitable lease would come into effect, the duty of fidelity and its application and the nature and effect of an option to renew a lease. These appeal proceedings could have only been prosecuted and defended appropriately by legal practitioners, and this attests to their complexity. 16. Relying on the provisions of section 60(3)(d), we conclude that there are special circumstances in the appeal proceedings warranting an award of costs in favour of the successful appellants against the respondent and we shall so order." 1. In addition, each case depends upon on its own particular facts: Gizah Pty Limited v AXA Trustees Limited (No. 2) [2001] NSWADT 164, and will depend on the circumstances of the individual case: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152. 2. The respondent submitted that special circumstances were established for the following reasons. 3. First, the respondent submitted that the appellant by her representative had been responsible for unreasonably making the case take longer, in particular, the respondent incurred significant legal costs due to two hearings having to be conducted due to the Appellant making submissions which were either misguided, irrelevant and which unreasonably delayed the Tribunal Member from progressing with the case in a timely manner. 4. The submission is misconceived. The unreasonable prolonging of an application is usually understood to mean within a particular proceedings. Parties are entitled to appeal, and to seek leave to appeal. We do not consider that this factor warrants a finding of special circumstances. 5. Secondly, the appellant has sought Orders which were unsubstantiated and confusing. 6. If this is a reference to the orders sought by way of appeal, we reject the submission. The Notice of Appeal makes it very clear what orders are sought. If this is a reference to the orders sought before the Tribunal, the submission is misconceived in so far as it relates to the costs of the appeal. This factor does not warrant a finding of special circumstances. 7. Thirdly, the appellant has submitted a large volume of documents that are irrelevant to the Orders sought including materials such as articles relating to different jurisdictions, "thank you" cards, photos of newspapers to establish dates, photos of renovation works completely unrelated to the case, financial reports of the Respondent which again, were unrelated to the case as well as generally running a case without any legal knowledge or advice. 8. Save for the thank you card, the appellant filed the evidence she relied on before the Tribunal. As the appellant was directed to do this very thing, we see no substance in this being a factor warranting a finding of special circumstances. 9. Fourthly, the Decision addressed numerous issues with the appellant's case including lack of substantiation, lack of evidence, confusion as to Orders sought and generally having an inherent lack of understanding of the relevant legislation and the powers of the Tribunal in this respect. 10. This submission is generalised. We do not consider that this factor warrants a finding of special circumstances. 11. Fifthly, the relative strength of the appellant's case was hopeless. In this respect the respondent expended significant legal costs in defending the original application and was successful in those proceedings. 12. It is correct that the appellant's appeal was a weak one, but we would not characterise it as hopeless. We do not consider that this factor warrants a finding of special circumstances. 13. Sixthly, the Appellant did not seek costs in the original Proceedings. 14. We assume the respondent means to refer to the respondent not seeking costs, not the appellant. This is not relevant to the costs of the appeal. 15. Seventhly, the appellant's case was frivolous, vexatious and misconceived and a volume of evidence irrelevant to the orders sought was entered into evidence at time and cost to the respondent. 16. We assume that the respondent is referring to the appeal being frivolous, vexatious and misconceived. True it is that the appeal was weak, but we would not characterise it as any of frivolous, vexatious and misconceived. 17. Eighthly, the appellant has not cooperated with the Tribunal in providing a just, quick and cheap resolution of the real issues in dispute as these were not at any time articulated or substantiated by the appellant and the respondent's evidence supported its position without exclusion. 18. This submission is confused and difficult to understand. The fact is that the appellant pursued an appeal, as she was entitled to do. This factor does not warrant a finding of special circumstances. 19. In conclusion, we see no substance that any of the matters relied on by the respondent individually, or cumulatively, warrants a finding that special circumstances are established. 20. It follows that the application for costs is dismissed. Orders 1. The Appeal Panel orders that: 1. The application for leave to appeal is refused. 2. The appeal is otherwise dismissed. 3. The respondent's application for costs is dismissed. Endnote 1. in the following passages, a reference to "village" is a reference to the retirement village at Engadine operated by the respondent; see Decision at [1]. 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 Amendments 22 December 2022 - [63] - 'not' removed from second sentence. 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: 22 December 2022