Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gibbons v Hasan [2022] NSWCATAP 400 Hearing dates: 9 November 2022 Date of orders: 23 December 2022 Decision date: 23 December 2022 Jurisdiction: Appeal Panel Before: L Wilson, Senior Member M Gracie, Senior Member Decision: 1) Application for adjournment is refused. 2) Leave to appeal is refused. 3) The appeal is dismissed. 4) Order 7 made on 14 September 2022 (stay order) is lifted. Catchwords: APPEAL – NCAT - Procedural fairness Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Angela Gibbons (Appellant) Shahidul Hasan (Respondent 1) Sadia Kamel Evana (Respondent 2) Representation: Appellant (Self Represented) J Smoothy (Agent) (Respondents 1 and 2) File Number(s): 2022/00246716 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 03 August 2022 Before: K. Ruschen, General Member File Number(s): RT22/08879 and RT22/27254 REASONS FOR DECISION 1. This is an appeal commenced by a tenant, who was the applicant in one of the original proceedings brought under the Residential Tenancies Act 2010 (NSW) (RTA) between the tenant and landlords. 2. On 28 February 2022 the appellant lodged the original application against her then landlords seeking $7,500 in compensation and repayment of overpaid rent (Tenant's Application). This was dismissed on 3 August 2022. 3. On 20 June 2022 the landlords lodged an application against the tenant seeking payment of rent arrears in the amount $8,040 (Landlords' Application). This claim was upheld on 3 August 2022. 4. The appellant lodged her appeal on 18 August 2022 and was ordered to provide a sound recording of the hearing with a transcript of the relevant parts by 14 October 2022. She failed to do so and did not seek an extension of time. 5. The appellant paid for the sound recording of the hearings on 1 November 2022 and received them on 4 November 2022. She then sought an adjournment of the appeal hearing so that she could listen to and type up the transcript. The Principal Member refused this adjournment request on 7 November 2022 and in so doing suggested the appellant file the sound recording before the appeal hearing on 9 November 2022. The appellant failed to do so. The Appeal Panel made orders after the appeal hearing allowing the appellant to provide a copy of the sound recordings and excerpts from the transcript which establish the appellant's grounds of appeal. No further evidence or submissions were permitted to be filed after the appeal hearing. 6. Rather than comply with the order to provide excerpts from the transcript which the appellant submits proves her grounds of appeal, the appellant filed 87 pages of transcript which cover all of the two hearings below. The Appeal Panel made further orders that the appellant must provide time references to the parts of the transcript which the appellant says establishes her ground of appeal that the Tribunal denied her procedural fairness. The Appeal Panel made it clear it would not read through two days of transcript typed of 87 pages and guess which parts the appellant might contend establishes a denial of procedural fairness. Grounds of appeal 1. During the appeal hearing the appellant clarified her grounds of appeal. They were twofold; firstly, that the Tribunal did not afford her procedural fairness and secondly, that the finding that some of her claims were out of time was against the weight of evidence. The first ground is an allegation about an error of law for which the appellant can appeal as of right whereas the second ground requires leave of the Appeal Panel. Evidence 1. The Appeal Panel ordered the appellant to provide her evidence on the appeal, and all documents provided to the Tribunal below, by 12 October 2022. While the appellant provided some documents for her appeal on 11 October, she filed all 171 pages which were tendered in the original proceedings only the day before the appeal hearing (that is, by email sent on 8 November 2022). Despite these documents being required by 12 October 2022 the Appeal Panel allowed the appellant to rely on the 171 pages from the original proceedings in her appeal. 2. The transcript of the hearings below were also ordered to be provided by 12 October 2022 but as explained elsewhere in these reasons, the appellant was allowed to rely on the transcripts filed after the appeal hearing. 3. The landlords were ordered to provide their evidence and submissions on the appeal by 26 October 2022 and which they provided on 2 November 2022. Other than the cover page which were some short submissions on the appeal, most of the 126 pages of documents were in evidence before the Tribunal below. Page 35 arose after the hearings before the Tribunal and the Appeal Panel gave the landlords leave to rely on their documents filed after 26 October and also to rely on the fresh evidence on page 35 as this was not reasonably available at the time of the hearings. Page 35 is a letter from an ex-employee of the landlords' agent which the appellant raised in the 3 August 2022 hearing as having some relevance to the issues between the parties. Procedural fairness 1. The appellant submitted that the Tribunal denied her procedural fairness by not granting her request to adjourn the second day of the hearing and also by the Member being biased against her. This ground of appeal fails because the appellant has not shown the Appeal Panel when she made an adjournment request and there is no evidence offered to suggest that the Member was biased against the appellant. 2. The Tenant's Application was initially listed on 23 March 2022. The Tribunal ordered the Tenant's Application be heard together with the Landlords' Application. 3. On 29 April 2022 the Tenant's Application was listed again and adjourned for a 90 minute final hearing. That took place on 15 June 2022 which proved to be insufficient time to complete the hearing of the Tenant's Application. 4. On 15 June the Tribunal adjourned the hearing part-heard and made orders including: 1A. The Tribunal notes the hearing of the tenant's compensation/damages claim has concluded. The Tribunal will deliver its decision on the compensation/damages claim based on the oral evidence of the parties given at the hearing on 15 June 2022 and the documentary evidence in relation to the compensation/damages claim available to the Tribunal as at 15 June 2022. As the hearing on the compensation/damages claim has concluded and the decision is pending there is to be no further evidence in respect of the compensation/damages claim. 1B. On the next occasion the matter will be listed for final hearing of the remaining dispute in the application, being whether the tenant has overpaid rent such that she is entitled to reimbursement. 1C. If the landlord already has on foot an application for rent arrears the landlord may email the Tribunal by on or before 17 June 2022, copied to the tenant, a request that the next listing in the landlord's application be vacated and that the landlord's application be heard together with the current application of the tenant on the next occasion. 2. Alternatively, if there is no application of the landlord on foot, the Respondent may bring a cross application by lodging on or before 30-Jun-2022 an application with the Tribunal specifying: … • the orders sought; • reasons for the orders sought together with full particulars including: monetary amount for each claim copy of all invoices, receipts, statements, statutory declarations and other written material relied upon in support of the cross application. The cross application is to be limited to a claim for rent arrears. 3. A full copy of that application shall be supplied by the landlord to the tenant by 30-Jun- 2022. 1. The continuation of the hearing of the Tenant's Application took place on 3 August 2022 together with the hearing of the Landlord's Application.. 2. The appellant engaged a lawyer for the hearing on 3 August 2022 and the Tribunal granted the appellant leave to be legally represented. The appellant submitted that she, through her lawyer, made an adjournment request on the basis the lawyer needed more time to prepare the appellant's case, in particular to make inquires with a former employee of the landlords' agent, Megan Oliver. 3. It is the Tribunal's failure to grant the adjournment which is the first allegation that the appellant was not afforded procedural fairness. However, the appellant did not provide any time references in the transcript for the Appeal Panel to locate where such an adjournment request was made, so this allegation of a denial of procedural fairness must fail. 4. The appellant also alleges that the Member was biased against her; either actual or apprehended bias. 5. The appellant submitted the failure to afford procedural fairness is evident in the following excerpts from the two hearings (this document was received from the appellant after the two orders were made by the Appeal Panel to provide such references, see above): 2022/00246716-001 15/6/22 part 1 Page 1, time stamp from 1:45 through to 6.52 Page 4, time stamp from 7.23 through to 01.48.00 3/8/222 [sic] part 2 Page page [sic] 2, time stamp from 2.20 through to 02.06.00 These sections refer to my appeal grounds. Thank you Kind regards Angela Gibbons 1. Page 1 from 1:45 to 6:52 is the first four pages of the transcript of the first day and time stamps 7.23 to 1.48.00 are the remaining pages of the 43 page transcript. That is, the 'excerpts' that the appellant has provided of the 15 June 2022 hearing is in fact the entirety of the transcript.. 2. After receiving the 87 pages of transcript after the appeal hearing, the Appeal Panel gave the appellant a further opportunity by ordering as follows: Orders: 1. By close of business Monday 21 November 2022 the appellant must provide a list of references to the 87 pages of transcripts of parts of the transcript which demonstrate the Tribunal did not afford the appellant procedural fairness. No submissions or further evidence is permissible, only a list of references using the page numbers and time stamp references so the Appeal Panel can assess whether those parts of the transcript establish that the Tribunal denied the appellant procedural fairness in the way she submitted that it did. 2. The cover letter provided to the Appeal Panel with the 87 pages of transcript will not be read or taken into account by the Appeal Panel. The time for submissions is over. The Appeal Panel granted the appellant leave to provide the transcript well after the date she was ordered to so that she could maintain her first ground of appeal. No further submissions are permitted. Reasons: After the appeal hearing the Appeal Panel made orders allowing the appellant to provide a copy of the sound recordings and exerts from the transcript which establish the appellant's grounds of appeal. No further evidence or submissions were permitted to be filed after the appeal hearing. The exerts from the transcript are required for the appellant to establish her first ground of appeal that the Tribunal did not afford her procedural fairness. Instead of providing exerts which help the appellant establish her first ground of appeal the appellant has sent the Appeal Panel 44 typed pages which is the entire transcript of the August hearing and 43 typed pages which is the entire transcript of the June hearing. This does not accord with what the Appeal Panel clearly ordered the appellant to do. The Appeal Panel will not read these 87 pages of transcript to guess what parts of the transcript demonstrates the appellant's first ground of appeal. 1. The same is true for the second day of the appeal hearing. The appellant provided time stamps for the entirety of the hearing on 3 August 2022 excluding only the first two minutes when the Member was getting the parties on the telephone. 2. As was made clear to the appellant the "Appeal Panel will not read these 87 pages of transcript to guess what parts of the transcript demonstrates the appellant's first ground of appeal." The appellant's appeal is essentially that she felt the appeal hearing was unfair and there are parts of the hearing below which will confirm there was some denial of procedural fairness. 3. Despite it not being the role of the Appeal Panel to guess or determine what evidence there is in support of the appellant's first ground of appeal, it has looked at the transcript provided. From the transcript of 3 August 2022 it can be seen that the Member gets the parties and the tenant's lawyer on the phone. Then the Member asks the tenant's lawyer to take the Member to the evidence that the tenant overpaid her rent. The lawyer readily agrees that the Covid payment was applied to the tenant's ledger: 11 mins to 13 mins on 3 August 2022. 4. At 13 mins and 9 seconds the Member addressed the contentious email of 19 August 2021 that stated once the Covid payment has been received, the rent arrears will be waived. When the Covid payment was applied to the arrears to that date by reference to the rent ledger it did coverall outstanding rent. , That left the rent ledger in credit in the tenant's favour by some $980: see transcript 14 mins on 3 Aug 2022. All of that is established by the evidence and accepted by the tenant's lawyer at the hearing. 5. It can be seen from the exchanges between the Member and the tenant's lawyer that the Tribunal gave him time to make his submissions. For example, at 14 mins and 31 seconds the lawyer said: "Ahh let me just go and read page 20 I'm sorry to take up too much time" to which the Member responded, "no that's okay". 6. At 16 mins and 39 seconds the Member explained the difference between rent deferral (paying rent later) and rent waiver (not having to pay rent at all). This explanation is correct and the tenant has not raised on this appeal that the rent was actually reduced to 25% of the pre-Covid amount (or 75% waived). There was never an agreement between the parties that 75% of rent was waived; it was only a reduction from $550 to $490 in rent (as a result of other residential tenancy proceedings not the subject of this appeal). Then the tenant paid 25% of the reduced $490 rent which is $112.50/ week with the remaining $367.50 deferred to be paid at a later date. 7. During the appeal hearing the appellant submitted that the Member called her a "liar" and this demonstrates the Member's bias. The Appeal Panel told the appellant she must include the time reference in the transcript to any places in the hearing when the Member called her a "liar" and made sure the appellant understood what the Appeal Panel was telling her. The appellant agreed to include references to places where the Member called the appellant a "liar". The appellant has not done so. 8. The Appeal Panel cannot see any places in the 87 pages of transcript that the Member called the appellant a "liar". 9. The Member, quite rightly, put matters to the appellant and asked her to confirm the evidence that was the basis of the appellant's case. The Member also, as it was open for the Member to do, challenged the basis of the appellant's case especially where it was in direct conflict with other evidence. For example, on 3 August 2022 at 18 mins and 18 seconds, the Member said: Miss Gibbons, I went back and listened to the recording, there's a lot of protesting from you about plain English in documents and what they said and you refused to agree for example that an email sent said please send us another email before you get the dog, and you refused to agree with that and you went, and continued ahhh on and on and on about that issue that was in plain English. Now, I'm going to read the full email for the record: Thank you for updating me, I am sorry to hear about your financial circumstances and regards your situation with Jacob and your daughter's health. As discussed if you can afford to pay 25% of your weekly rent amount I can commence the application with NSW Fair Trade for the tenant's support package. Now I will just stop there – it does not say we've reduced your rent by 75%. It says if you can afford to pay 25% of your weekly rent, that is of $490 which is still your weekly rent. Then it continues: Please send through your supporting documents to me, I will forward you a consent form that will require you to complete, sign and return back to me. Once your application has been approved by NSW Fair Trading 100% of your rent arrears will be waived. Please don't hesitate to contact me if you have any further questions, I am here to help. Now, my question Miss Gibbons, is that the only email you rely on to say that you had a rent reduction down to $122.50? Gibbons: Yes Member: Right thank you… 1. The email read by the Member (accurately) above is at page 33 of the appellant's original documents and page 126 of the landlord's documents on the appeal. It is signed by Megan Oliver and was sent to the appellant on 19 August 2021. 2. Later in the 3 August 2022 hearing, the following exchange took place at 28 mins and 26 seconds: Member: Mr Simons did you want to say anything on Miss Gibbon's behalf about her contention that for all intents and purposes her rent was reduced to $122.50 per week from 1 July 2021 until 31 December 2021? Lawyer: Ahh Member, look, all I can say is that they're my instructions, but I do agree with you that the email from Megan Oliver is quite clear in what it says. It's not… it's talking about the arrears at that time. And I've explained that to Miss Gibbons. Member: and it's talking about the obligation if she wants covid support package she has an obligation to pay a minimum 25% rent correct? Not that it's an actual reduction. Lawyer: Yes. And all the forms I think were given to the agent in August 2021 but for whatever reason the package wasn't approved until February 2022. 1. Then at 35 mins and 53 seconds this exchange takes place: Member:.. unless you can take me to a document that the landlord said that the 75% would be completely waived then that's a misunderstanding on Miss Gibbons, in response to both the 19 August and 8 November emails. So my understanding from when I asked Miss Gibbons is that this is the only email [the 19 Aug email from Megan Oliver on page 33 appellant's documents] she relies on to say that the rent was reduced down to $122.50 rather than she was required to pay a minimum of that amount. Lawyer: Yes Member: That was the 19 August email. Are you aware of anything else? Lawyer: No I'm not aware of anything else. 1. At minutes 39 to 40 the Member explained how leave was granted for the appellant to be legally represented for the 3 August 2022 hearing and some of the solicitor's obligations. The Member confirmed that the appellant was being represented by her lawyer.. In none of those explanations did the Member call the appellant a "liar" or express any bias or personal criticism against the appellant. 2. From 41 minutes the appellant's lawyer requested the Tribunal call Megan Oliver as a witness of its own motion, pursuant to s 46 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Section 46 is as follows: (1) The Tribunal may— (a) call any witness of its own motion, and (b) examine any witness on oath or affirmation or require evidence to be verified by a statutory declaration, and (c) examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and (d) compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings. (2) If the Tribunal decides to call a person as a witness under subsection (1)(a), the Tribunal may— (a) seek to procure the voluntary attendance of the witness before it by notifying the person in such manner as it thinks appropriate in the circumstances, or (b) issue a summons (or direct a registrar to issue a summons) to compel the attendance of the person before it. (3) Nothing in subsection (1) enables the Tribunal to compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question. 1. At 43 minutes the Member correctly explained the proper process. The Member said: …because parties otherwise, outside of section 46 the parties have to properly prepare their case. And if they identify a witness that is required, they go and knock on that witness's door and they invite them to participate, or they ring them up or whatever and invite them to assist and provide a witness statement and so on. And a party cannot call oral evidence without a written statement. And Miss Gibbons has not obtained in her case a written statement from Megan… the property manager Megan so you're now trying to effectively backdoor this through s.46 which says the Tribunal may call any witness of its own motion. That doesn't give me any power to consider an application by you to issue a summons to a witness, where there is no witness statement. 1. The appellant's lawyer seemed to move the Tribunal to summons the former property manager, Megan Oliver, which the Tribunal rejected for detailed oral reasons given and recorded from 45 mins to 56 mins. The process under s 46of the NCAT Act does not apply where a party makes the application as occurred on 3 August 2022. Within the oral reasons at 53 mins the Member included some reference to issues of credibility and reliability of the appellant's recollections and how the appellant's submissions were at odds with the documents, in particular the 19 August 2021 email. If this is what the appellant refers to as the Tribunal calling her a "liar" then we reject that interpretation and submission. . The Tribunal did not call her a "liar" or use words to that effect and it was open to the Tribunal to describe the appellant's submissions as lacking in accuracy and not being supported by contemporaneous documents. 2. At 56 mins the Member asked the appellant's lawyer if he had anything else to say, to which he replied "no thank you Member". The lawyer, and therefore the appellant, did not make an adjournment request so that they could summons Ms Oliver, or for any other reason. There cannot be a denial of procedural fairness by the Tribunal refusing to adjourn if the appellant never requested an adjournment. If the appellant did make an adjournment request and it is buried in the transcript somewhere it was incumbent upon the appellant, in compliance with two sets of orders made in the appeal, to give the Appeal Panel the references to find where the adjournment request was made. That was not done and accordingly the ground of appeal based on a failure to adjourn is rejected. 3. The appellant has also not taken the Appeal Panel to any parts of the 15 June 2022 or 3 August 2022 hearings which apparently demonstrate the Member was biased against her. This ground of appeal must also be rejected. Claims were out of time – against the weight of evidence 1. The second ground of appeal was that the findings by the Member that some of the appellant's compensation claims were out of time, was against the weight of evidence. 2. The reference to this ground of appeal is in the Notice of Appeal at page 5, under the heading "Decision of the Tribunal against the weight of evidence". Under the question "What evidence did you give at the hearing? What documents did you show the Tribunal?" the appellant wrote: "Error by the member Rapplication [sic] was not out of time." That was the only reference to this ground of appeal and needed elaboration at the hearing of the appeal to be better understood. 3. During the appeal hearing the appellant confirmed that it was only claims 1 and 5, as numbered by the Member below, that are challenged on appeal. The appellant accepted that claims 2, 3, 4 and part of 6 are out of time. 4. In paragraph 16 of the Decision in the Tenant's Application, the Member summarised the tenant's compensation claim into six claims. The appellant accepts all but the first and fifth claims were out of time (we will deal with that part of claim 6 said to be in time separately)Claims one and five were summarised in the Tribunal's Decision as follows: a) The landlord's breaches in relation to the backyard and side yard turf issues that were the subject of her rent reduction application and renewal proceedings, including that they were particular inconvenience by reason of: i. being unable to use the backyard and side yard when the tenant was required to remain at home during COVID lockdowns and for related home schooling from July 2021 to December 2021; and ii. not being able to utilise or access the side living room doors or side internal laundry door to the yard due to the turf issue in the side yard ("Claim 1"). … e) Moving expenses ("Claim 5"). 1. Paragraphs 17 to 20 and 22 deal with the time issue for claims 1 and 5: TIME LIMIT 17. As the claim arises out of alleged breaches by the landlord of the residential tenancy agreement section 190(1) applies in relation to the time in which the applicant may bring their application. Relevantly, section 190(1) provides that a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the tenant becomes aware of the breach or within such other period as may be prescribed by the regulations. 18. Pursuant to clause 39(9) of the Residential Tenancies Regulation for the purposes of section 190 (1) of the Act, the prescribed period is within 3 months after the applicant becomes aware of the breach. ARE CLAIMS 1, 2 AND 3 OUT OF TIME? 19. Claims 1, 2 and 3 arise from the landlord's breaches regarding the turfing of the back and side yards. It is clear from the rent reduction applications 21/07010 and 21/34960 and contemporaneous emails that the tenant has been aware of the landlord's breaches regarding the back and side yard turf and the front landscaping since 12 July 2020 and 10 July 2020 respectively. These are the dates upon which the rent reduction commenced. Accordingly, under section 190(1) and clause 39(9) of the Regulation the tenant had until 10 October 2020 to make an application for compensation arising from the landlord's breach regarding the side yard and until 12 October 2021 to make an application for compensation arising from the breach regarding the back yard. 20. As the application was not lodged until 28 February 2022, Claims 1, 2 and 3 are out of time. IS CLAIM 5 OUT OF TIME? 22. Claim 5 is said to arise out of a culmination of all of the alleged breaches that is, the tenant contends she was forced to move by reason of the numerous alleged breaches by the landlord. To the extent it arises from the breaches or alleged breaches that underpin Claims 1, 2, 3 and/or 4 this claim is also out of time for the reasons set out above. To the extent it arises from claim 6 the evidence establishes the alleged unauthorised attendances by the landlord were between 13 July 2020 and 4 December 2020 save for two further attendances on 21 February 2022 and 23 February 2022. In so far as Claim 5 arises out of the alleged unauthorised attendances between 13 July 2020 and 4 December 2020 (or at any time prior to 28 November 2021) the claim is out of time. Only a claim for compensation arising from the alleged attendances on 21 and 23 February 2022 is within time. However, these attendances post date the date on which the tenant had physically moved from the premises, being 17 February 2022. Moving costs incurred prior to an alleged breach cannot possibly have any causal connection to an alleged breach, that has not yet occurred. 1. Claim 6 was an allegation that the landlord harassed the appellant by unauthorised attendances at the rental premises, most occurring in July 2021 according to the appellant or July 2020 according to the Decision. It would seem that those events are accepted by the appellant as being out of time. The part of claim 6 within time would seem to be events that were alleged to have occurred between 20 and 24 February 2022. However, the appellant gave vacant possession of the premises (that is, moved out) on 17 February 2022 so she could not maintain a claim for breach of quiet enjoyment of a property of which she was no longer in possession. It was unclear if claim 6 was raised by the appellant in the appeal. If it was raised, the ground is hopeless as the earlier alleged interferences, whether occurring in July 2020 or July 2021 were out of time and the February 2022 allegations could not be maintained. 2. Returning to claims 1 and 5; the Appeal Panel finds no error with the Member's findings that these two claims were outside of the statutory limitation periods for the reasons given in the Decision. In addition, claim 1 concerning the backyard had already been adjudicated by the Tribunal on at least two previous occasions which creates an impediment for the appellant claiming further compensation on the same facts that have already been determined. Leave to appeal 1. This second ground of appeal requires leave of the Appeal Panel. On page 3 of her Notice of Appeal, the appellant ticked "No" to the question "Are you asking for leave?" which is under the heading "Application for leave to appeal". The appellant therefore left blank the box which asked her to give reasons why the Appeal Panel should grant leave to appeal against the decision/s. 2. However on the next page, page 4 of the Notice of Appeal, the appellant ticked "Yes" when asked "Are you asking for leave?" 3. Internal appeals against an internally appealable decision may be made in the case of an interlocutory decision with leave of the Appeal Panel, and in the case of any other kind of decision (including an ancillary decision) as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds: s 80(1) and (2) of the NCAT Act. 4. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable (cl 12(1)(a)); or 2. the decision of the Tribunal under appeal was against the weight of evidence (cl 12(1)(b)); 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) (cl 12(1)(c)). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." (emphasis in original) 1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 2. In Collins, the Appeal Panel at [84] summarised the general principles which govern the granting of leave to appeal: [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]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 1. An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. 2. The appellant did not satisfy the Appeal Panel that the findings by the Member below that claims 1 and 5 were out of time were arguably wrong, let alone more than that. The findings of the Member that claims 1 and 5 were out of time were open to the Member to make on the evidence before the Tribunal. The appellant has not taken the Appeal Panel to evidence that demonstrates those claims were within time. Therefore we cannot be satisfied that the findings could be against the weight of the evidence. 3. None of the other considerations in Collins arise, particularly in circumstances in which the appellant did not state in her Notice of Appeal as to t why leave should be granted and she did not expand upon that during the appeal hearing. 4. Having regard to the above authorities, we are of the view that there is no basis upon which the Appeal Panel would grant leave to appeal from t the Tribunal's Decision. The Appeal Panel is not satisfied that the appellant has demonstrated that she may have suffered a substantial miscarriage of justice because the Tribunal's Decision was against the weight of evidence. Conclusion 1. The appeal must fail. The appellant has not satisfied the Appeal Panel that there was any denial of procedural fairness or that the findings about the limitation period were against the weight of evidence. Leave has not been granted for the appellant to bring the second ground of appeal. 2. The orders will reflect the decision that the Appeal Panel dismisses the appeal and thereby the stay granted on 14 September 2022 is lifted. Orders 1. We make the following orders: 1. Application for adjournment is refused. 2. Leave to appeal is refused. 3. The appeal is dismissed. 4. Order 7 made on 14 September 2022 (stay order) 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: 23 December 2022