Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pye v St George Community Housing Limited [2023] NSWCATAP 30 Hearing dates: 1 February 2023 Date of orders: 03 February 2023 Decision date: 03 February 2023 Jurisdiction: Appeal Panel Before: L Wilson, Senior Member G Ellis SC, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed Catchwords: APPEAL – No error on a question of law – no basis for granting leave to appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) - s 80, Sch 4 cl 12 Civil and Administrative Tribunal Rules 2014 (NSW) - cl 25 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Barbara Elizabeth Pye (Appellant) St George Community Housing Limited (Respondent) Representation: Appellant – self-represented Respondent – Ms Vandenberg File Number(s): 2022/00334719 Publication restriction: Nil reasons for decision Outline 1. This is an internal appeal, under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), against a decision made in the Consumer and Commercial Division of the Tribunal in relation to an application lodged by the appellant (the tenant). A work order and access order were made but the other claims of the appellant against the respondent (the landlord) were dismissed. 2. The Notice of Appeal indicated that the appeal is based on the tenant's opposition to the installation of a solid front door, and her claims in relation to an exit sign and light. Having considered the documents lodged and the submissions made, we do not consider that any ground of appeal, or any basis for leave to appeal, has been shown. Background 1. In her 2 August 2022 application, the tenant sought an order that the landlord carry out repairs and alleged the landlord had breached her right to quiet enjoyment. After a hearing, on 27 October 2022, the following orders were made: 1. The Tribunal directs the respondent landlord to carry out repairs to the front door of the subject premises to make the front door of the subject premises complaint with current fire safety laws. 2. The Tribunal authorises the landlord/s, St George Community Housing Limited or the landlord's authorised contractor to enter the residential premises. (1) from 9.00 AM on 08-Nov-2022 for the purpose of carrying out the following work: measuring and any preparations for the installation of a front door complaint with the current fire safety laws; and (2) from [sic] 9.00 AM on 08-Dec-2022 for the purpose of carrying out the following work: installation of a front door compliant with current fire safety laws. 3. The tenant is not to obstruct the landlord in carrying out these orders. 4. The tenant may arrange for access to the premises by the landlord/s and/or its authorised contractor to be at another time provided that it is earlier than that specified above. 5. If the landlord cannot gain access to the residential premises on the date agreed or in accordance with the above order, the landlord or their representative may engage a locksmith to gain entry to the premises and if the locksmith alters the locking device the landlord is to provide a copy of the door opening device to the tenant immediately. 6. Both parties are given leave to have this matter re-listed before the Tribunal if there are difficulties in complying with these orders. 7. The respondent's name St George Community Housing is amended to St George Community Housing Limited. 8. The tenants [sic] other claims are dismissed. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: NCAT Act, s 80(2). 2. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] listed of questions of law as: (1) Whether there has been a failure to provide proper reasons. (2) Whether the Tribunal identified the wrong issue or asked the wrong question. (3) Whether a wrong principle of law had been applied. (4) Whether there was a failure to afford procedural fairness. (5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. (6) Whether the Tribunal took into account an irrelevant consideration. (7) Whether there was no evidence to support a finding of fact. (8) Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. 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. 2. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. 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 Schedule 4 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. 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, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins, at [84], the Appeal Panel stated 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. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), at [13], the Appeal Panel said: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice". Documents 1. The tenant lodged the Notice of Appeal on 8 November 2022 and filed further documents on 11 November 2022 and 21 December 2022. The respondent lodged a Reply to Appeal on 8 December 2022 and filed documents on 19 January 2023. Notice of Appeal 1. Orders were made and reasons published on 27 October 2022. Since cl 25 of the Civil and Administrative Tribunal Rules 2014 requires that this appeal be commenced within 14 days, the Notice of Appeal was due to be lodged on or before 10 November 2022. As the Notice of Appeal was received on 8 November 2022, the appeal is within time. Grounds of Appeal 1. The grounds of appeal, as set out in the Notice of Appeal, are quoted below: I am appealing the decision because I believe the Tribunal was wrong in wanting [the landlord] to install a solid door at my unit. It will not change the fact that the exit sign and light [are] facing the wrong way. If we use the exit sign the way it is facing at present to escape a fire it will take us to the back of the building, where it is difficult to get out because the area is steep to climb for elderly residents. The second reason why I believe the Tribunal is wrong in their decision is that installing a sold door at the front of my unit is inappropriate because I suffer from claustrophobia which I informed the Tribunal member at the hearing. I have enclosed a copy of the Medical Certificate from my doctor for your information. 1. Leave to appeal was sought on the basis that the decision was not fair and equitable. The reason advanced in support of that claim was that the tenant provided evidence which included 15 photographs in letter dated 27 July 2022 and 26 September 2022 which seemed to her to have not been considered because there was no reference to them in the published reasons. 2. It was also contended that the decision was against the weight of the evidence for the same reason. 3. The tenant also asserts there is significant new evidence that is now available that was not reasonably available at the time of the hearing. In support of that aspect, the tenant said: At the time of the hearing, I told the Tribunal that the reason I cannot have a solid door installed at the unit is that I suffer from Claustrophobia. I am now providing a Medical Certificate from Dr Warren Wong. Please refer to copy enclosed. Tenant's submissions 1. The tenant indicated that she wished to read her 15 December 2022 letter that was at pages 1 to 8 of the documents which the Tribunal received from her on 21 December 2022. She also said that the presiding member never saw her medical certificate. However, she accepted that he did have copies of the photos to which she referred, which were part of her letters dated 27 July 2022 and 26 September 2022. It is noted that those pages refer to matters not raised at first instance, such as her request for a transfer to another unit. Landlord's submissions 1. Ms Vandenberg indicated that the exit arrangements were the result of fire safety regulations. She also indicated that, although the new fire door had been installed, there were no door closer, which the landlord wished to install on 7 February 2022. It was noted that the orders made on 27 October 2022 included leave to re-list the application should the need arise. Submissions in reply 1. In relation to the door closer, the tenant indicated that she had not consented to that work being done as her appeal was pending. She maintained that the matters she raised were safety issues and that, if those matters were dictated by a fire safety plan, then that plan should be changed. Consideration 1. As was indicated at the outset of the hearing, an appeal to the Appeal Panel does not simply 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]. Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". 2. Further, it is not sufficient for the tenant to disagree with the outcome and to contend that there should have been a different outcome: the tenant must demonstrate either that an error was made on a question of law or that there is a basis upon which leave to appeal should be granted. 3. In this instance, the outcome is dictated by fire safety regulations which have the force of law. The wishes of the tenant cannot displace or override the operation of those regulations which are designed to prevent loss of life and to prevent or reduce damage to property. This Tribunal does not have the power to make orders that change a fire safety plan. All that can be done is for the landlord to raise the tenant's concerns with the relevant authority. 4. It is not surprising that the presiding member did not refer to the photographs supplied by the tenant because the situation was the result of what was required by fire safety regulations. The reasons provided in support of the orders made did adequately summarise the tenant's case and referred to those requirements. 5. The Tribunal notes there is no requirement to refer to every piece of evidence. As was said by Allsop P (as he then was) in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]: Not every piece of evidence must be referred to. That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed or resolved … 1. Any failure to refer to the tenant's photographs does not constitute an error made by the presiding member. 2. The provision of medical evidence now does not appear to be evidence that was not reasonably obtainable prior to the hearing. Even if that evidence were to be taken into consideration, it would not provide a basis to override fire safety requirements. Further, the tenant has indicated that her claustrophobia was a matter that she raised with the presiding member during the hearing at first instance. 3. Leave is required to refer to or rely on evidence that was not before the Tribunal at first instance. Even if leave was granted to rely on the additional evidence included in her documents, the outcome would be the same. 4. In accordance with what was said in Cominos (quoted above), a consideration of the documents and submissions does not reveal either a ground of appeal or a basis for granting leave to appeal. 5. Since the decision was based on fire safety regulations, the position is that the tenant's opinion, her photographs, and her other evidence cannot prevail as fire safety requirements dictate the outcome. There was no error on a question of law and there is no basis upon which leave to appeal can be justified. 6. Put another way, if this matter were to be re-heard, taking into consideration all the evidence the tenant provided at the hearing, and the additional evidence lodged in support of her appeal, the result would be the same. 7. It is to be hoped that the parties will be able to agree on the remaining issue of the door closer so that it will not be necessary to re-list the application. Orders 1. For the reasons set out above, the orders that will be made are as follows: 1. Leave to appeal is refused. 2. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2023