Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YDB v NSW Land and Housing Corporation [2023] NSWCATAP 55 Hearing dates: 24 November 2022 Date of orders: 28 February 2023 Decision date: 28 February 2023 Jurisdiction: Appeal Panel Before: S Thode, Principal Member E Bishop SC, Senior Member Decision: 1. Leave is refused for the Appellant to rely on further evidence on the appeal. 2. Application for extension of time to lodge the appeal refused. 3. Leave to appeal refused. 4. Appeal dismissed 5. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure of the name of the applicant is prohibited. Catchwords: ADMINISTRATIVE LAW — particular administrative tribunals – NSW Civil and Administrative Tribunal – adequacy of reasons for interlocutory decisions APPEALS – extension of time decision and set aside decision – discretionary decisions – leave to appeal from interlocutory decisions LEASE AND TENANCIES – social housing – termination of tenancy – illegal activity – set aside application Legislation Cited: Administration Decisions Review Act 1997 (NSW), s 48, 49 Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 36, 41, 62, 64, 80, Sched 4, cl 12 Residential Tenancies Act 2010 (NSW), s 51(1) Civil and Administrative Tribunal Regulations 2013 (NSW), cl 9(3) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Gallo v Dawson [1990] HCA 30 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 House v The King (1936) 55 CLR 499 Housing Commissioner of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Jackamarra v Krakouer (1998) 195 CLR 516 Jackson v Land and Housing Corporation (NSW) [2014] NSWCATAP 22 Kelly v Szatow [2020] NSWSC 407 Li v Zhang [2016] NSWCATAP 268 NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578 Pholi v Wearne [2014] NSWCATAP 78 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 Tomko v Palasty (No 2) (2007) 71 NSWLR 61 Texts Cited: None cited Category: Principal judgment Parties: YDB (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Counsel: H Ryan (Appellant) C Marshall (Respondent) Solicitors: Legal Aid NSW (Appellant) Crown Solicitor (Respondent) File Number(s): 2022/00277400 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure of the name of the applicant is prohibited. Note: under s 64(4), a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 12 September 2022 Before: D Moss, Tribunal Member File Number(s): SH22/38418 REASONS FOR DECISION Introduction 1. This is an appeal from a decision of the Tribunal to dismiss the appellant's (YDB's) application to set aside a decision to terminate her social housing residency (set-aside decision) and extend the time to make the set-aside application (extension of time decision). 2. We have decided to refuse leave to appeal the extension of time decision and dismiss the appeals for the reasons which follow. The background facts 1. YDB is a tenant of the respondent (NSW Land and Housing Corporation) under a social housing residential tenancy. An express term of the residential tenancy agreement was that YDB not use or cause or permit the premises to be used for any illegal purpose. 2. On 15 December 2021, NSW Police executed a search warrant on YDB's premises. YDB and her partner were subsequently charged with 49 counts of supply of prohibited drugs, including a large commercial supply of methamphetamine, and dealing with proceeds of crime. 3. This led to the respondent issuing a Notice of Termination to YDB for breach of s 51(1)(a) of the Residential Tenancies Act 2010 (NSW), being illegal use of premises (the breach). 4. On 18 February 2022, the respondent lodged an application with the Tribunal seeking an order for termination and possession due to the breach. 5. At the first directions hearing, the Tribunal encouraged YDB to contact the local tenancy advocacy service and to seek advice. There is no evidence that YDB sought out that assistance. Other than the first directions hearing, YDB did not engage with the various processes of the Tribunal: she did not seek access to documents produced under summons; nor did she serve evidence or submissions in the proceeding. 6. The Notice of Hearing was issued by the Tribunal advising the parties that the hearing date of the termination application was to be 26 July 2022. All correspondence from the Tribunal was sent to YDB at the addresses (including email address) provided. 7. Having received no evidence from YDB, the respondent's representative took steps to contact YDB including phoning her and leaving a voicemail on 13 July 2022, 20 July 2022, 22 July 2022 and 25 July 2022. The Notice of Hearing was also hand delivered to YDB's premises on 21 July 2022. The Notice was left with YDB's son with a request that YDB contact the landlord. 8. On 26 July 2022, YDB did not appear at the hearing of the termination application before the Tribunal. The Tribunal found that the tenant breached the agreement under s 51 by using the residential premises or causing or permitting them to be used for an illegal purpose. The Tribunal ordered that the residential tenancy agreement be terminated immediately. 9. On 23 August 2022, YDB lodged the set-aside application. YDB also made the extension of time application as the set-aside application had been filed 22 days outside the seven day period required under cl 9(3) of the Civil and Administrative Tribunal Regulations 2013 (NSW) (Regulations). 10. The Tribunal's application form to set aside a decision states that it may be determined on the papers without an oral hearing and that as much information as possible should be provided in support of the application. 11. A stay of the original decision pending appeal was also filed by YDB. On 5 October, conditional orders were made for a stay of the operation of the orders or possession until further order or finalisation of this appeal. Consequently, YDB remains in possession of the property until determination of this appeal. 12. Represented by Legal Aid, detailed submissions and evidence were filed in support of YDB's applications. 13. There was no issue raised by YDB to the effect that she was unaware of the hearing on 26 July 2022. Rather, the reason for YDB's absence from the hearing on 26 July 2022 was said to be as a result of YDB not coping well since being released from custody following her arrest; that she had no support of family and friends and no legal representation during the proceeding. YDB also had an urgent dental appointment on 26 July 2022. A medical certificate was provided which said that YDB was treated at Newcastle Community Dental for denture construction and that she would be unfit for duty up to and including 26 July 2022. 14. YDB also contended that as a result of experiencing domestic violence in her relationship and as a victim of child sexual assault by her father up to the age of 13, this impacted upon her capacity for self-help which, she contended, was an important consideration. 15. The reasons YDB gave in support of the grant of an extension of time were effectively that: strict compliance with the rules would work an injustice; overwhelmed by her circumstances and her imminent homelessness, she did not understand she had appeal rights and only obtained legal advice on 23 August; YDB has been diligent in her other listed hearings and her concurrent criminal proceeding; her mental health has declined since arrest and she has not coped with the stress of her circumstances. YDB argued the consequences of a refusal to grant an extension of time were significant as she would become homeless with her 20 year old son for whom she is the primary carer as he has Asperger's and autism. Consequently they would likely suffer further hardship and detriment if they lose stable accommodation. 16. YDB also contended that if she had been able to participate in the hearing on 26 July 2022, she would have requested an adjournment until the concurrent criminal proceeding had been determined. This was for the reason that she had not yet entered a plea in those criminal proceedings and providing evidence about the subject of the charges in the Tribunal proceeding could prejudice her criminal proceeding. 17. The respondent also filed evidence and submissions. It was contended by the respondent that the Tribunal should not extend time for the set-aside application to be made by YDB for a number of reasons: 1. While the application was made 22 days out of time which is not significant, the timeframes are to ensure finality; 2. YDB failed to provide probative evidence about why it took 22 days to file the application and failed to provide evidence in support of her contention that stress and anxiety affected her ability to take steps to get help from Legal Aid; 3. Given the various notifications from the Tribunal and the steps the respondent took to notify YDB of the hearing, she must have known the hearing was taking place on 26 July 2022; 4. YDB had not engaged with previous directions of the Tribunal (such as directions for filing evidence); 5. YDB was aware there was a serious risk to the future of her tenancy yet there was an absence of evidence about why YDB did not simply contact the respondent or the Tribunal to seek an adjournment or provide an excuse for her non-attendance; 6. There was an absence of evidence about the matters YDB relied on in support of her application such as: her experiencing domestic violence; providing care for her adult son; seeking a placement in drug rehabilitation to address her drug dependency; 7. YDB did not have a fairly arguable case in the substantive proceedings in the face of substantial evidence, including the police brief evidence which included telephone intercepts involving YDB and her partner relating to the acquisition or on-sale of methyl amphetamine; her lack of remorse for her conduct; 8. As a social housing provider and a landlord of last resort, the respondent has a responsibility to ensure that it manages it assets and tenancies and that stock is available to those most in need who are willing to comply with their obligations under the tenancy agreement. The respondent also has a responsibility to other tenants to ensure they may live in quiet enjoyment without being exposed to drug dealing and anti-social behaviours associated with illegal activities such as robberies and break and enters; 9. The illegal activities of YDB and her partner were only brought to an end by police intervention and not by anything on her part to stop the drug supply trade. The decision under appeal 1. The applications were determined by the Tribunal on the papers. On 12 September 2022, the Tribunal issued the following Notice of Order to the parties: 1. The application is dismissed because although the orders were made in the absence of the applicant, and the Tribunal is satisfied that the party's absence resulted in their case not being adequately put to the Tribunal, in the exercise of discretion the Tribunal is not satisfied that there is a real likelihood that it would be unjust to let the decision stand because the application was not made in time. The grounds to extend time have not been established. Having considered the evidence and submissions from both parties, the Tribunal is not satisfied that the orders made on 26 July 2022 should be set aside. The tenant may lodge an appeal if she wishes. 2. The stay order made in matter number SH 22/07177 of 28 August 2022 is lifted. Materials 1. In deciding the appeal, we have had regard to the following: 1. Amended Notice of Appeal dated 7 October 2022; 2. Reply to Appeal dated 28 September 2022; 3. YDB relied on written submissions dated 19 October 2022 as well as those filed in support of her stay application and various other documents filed in support of that application; 4. The respondent relied on written submissions dated 10 November 2022 as well as those filed opposing the stay dated 30 September 2022; 5. Each provided documents which comprised the evidence in the Tribunal below; 6. YDB sought leave to rely on additional documents on appeal being her statutory declaration dated 19 October 2022 and the Bugmy Bar Book Executive Summary on Homelessness dated January 2020. Jurisdiction of the Appeal Panel 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. 2. Section 80(2) of the NCAT Act provides that an internal appeal can be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 1. In this case, the decision of the Tribunal with respect to the extension of time decision is an 'interlocutory' decision: see NCAT Act, s 4(1)(d). However, the set-aside decision under cl 9 of the Regulations is an "ancillary decision" as defined in s 4 NCAT ACt: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [25]-[40] and Li v Zhang [2016] NSWCATAP 268 at [5]. 2. Consequently, for the purposes of s 80(2) NCAT Act, while the appeal from the set-aside decision is brought as of right on any question of law or with permission on any other ground, the appeal from the extension of time decision is different: by reason of s 80(2)(a). YDB requires the leave (or permission) of the Appeal Panel in order to appeal that decision of the Tribunal at first instance. 3. A decision made in the exercise of a statutory discretion (such as to set-aside a decision or extend the time to file an application), can only be overturned in limited circumstances on a question of law: House v The King (1936) 55 CLR 499 at 505-506. 4. In Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 the Court of Appeal summarised the House v The King circumstances at [14] (Tobias AJA) and held that an attack on a discretionary decision on a matter of practice and procedure must fail: "…unless it can be demonstrated that the decision maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning." Leave to appeal 1. The principles governing an application for leave to appeal under the NCAT Act are well established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597, where the Court said at [28] (citations omitted): "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong." 1. Further, as YDB's appeal is an appeal from a general decision of the Tribunal in the Consumer and Commercial Division, cl 12(1) of Sch 4 of the NCAT Act provides that the Appeal Panel may only grant permission to appeal if it is satisfied that YDB 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. Even where an appellant satisfies the abovementioned requirements, the Appeal Panel must still consider, in the exercise of its discretion, whether leave to appeal should or should not be granted under s 80(2)(a) or (b). 2. In this case, the onus is on YDB to satisfy us on the balance of probabilities that she may have suffered a substantial miscarriage of justice and must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [31]. Extension of time 1. The discretionary power to grant an extension of time under s 41 of the NCAT Act is unfettered but it must be exercised judicially and having regard, among other things, to s 36 of the NCAT Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 2. In Kelly v Szatow [2020] NSWSC 407 at [28]-[32], the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the YDB's case and consideration of whether the respondent would be prejudiced by a granting of the application: see also Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]; Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55]; Jackson v Land and Housing Corporation (NSW) [2014] NSWCATAP 22 at [22] (Jackson). 3. YDB bears the onus of demonstrating that strict compliance with the timeframe would work an injustice: see Gallo v Dawson [1990] HCA 30. Grounds of Appeal 1. By an Amended Notice of appeal, YDB raises four grounds challenging the Tribunal's decisions: 1. The Tribunal erred by identifying the wrong issue or asking the wrong question when it dismissed YDB's set-aside application. 2. The Tribunal's decision miscarried when it refused to grant an extension of time for YDB to file the set-aside application. 3. The Tribunal failed to take into account relevant considerations in respect of the set-aside application and the extension of time application. 4. The Tribunal did not provide adequate reasons for its decision not to extend the time for YDB to file the set-aside application. Consideration Leave to appeal in respect of the extension of time application. Leave to appeal 1. Contrary to the YDB's contention, the extension of time decision is not "ancillary" but is interlocutory. Consequently, YDB requires leave to appeal. 2. We note that if leave is not granted or YDB's appeal from the extension of time decision is not granted, any consideration of an appeal of the set-side decision is unnecessary and the appeal from that decision must also fail. This is for the reason that it was only if the extension of time application was successful that YDB had the ability apply for the original decision of 26 July to be set-aside. Similarly on this appeal, the status of the extension of time decision is the gateway into the set-aside application and decision. 3. We have decided refuse leave as, for the reasons expressed below in response to each of the grounds of appeal, we have concluded that YDB has failed to demonstrate: 1. "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 (see BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19]; Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; and Collins v Urban [2014] NSWCATAP 17 at [84(1)]); 2. there is injustice which is reasonably clear, in the sense of going beyond merely what is arguable, and no 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; 3. there is factual error that was unreasonably arrived at and clearly mistaken; 4. the Tribunal went about the fact finding process in an unorthodox manner or in such a way that it was likely to produce an unfair result. 1. While YDB did not make these assertions, we are also not satisfied that YDB has demonstrated that the extension of time decision was not fair and equitable (nor did she contend it was); was against the weight of evidence; nor is there significant new evidence that was not reasonably available at the time the extension of time decision was made. 2. As we do not grant leave to appeal the extension of time decision, this is enough for us to dismiss the appeal from both decisions. 3. We address below each of YDB's grounds of appeal below. Ground 1:Did the Tribunal identify the wrong issue or ask the wrong question when it dismissed the set-aside application? 1. YDB argued that as the Tribunal dismissed the set-aside application because it was made out of time, it asked itself the wrong question or identified the wrong issue. 2. We disagree. The decision of the Tribunal to dismiss YDB's set-aside application was made as a consequence of dismissing her application for an extension of time under s 41 of the NCAT Act. A reading of the notice of decision (which was in simple order form) as a whole, without an eye finely attuned to error (Minister for immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578 (Orr)), rather than in a piecemeal fashion, supports this view. 3. While the Notice of Orders states that "the Tribunal is not satisfied that there is a real likelihood that it would be unjust to let the decision stand because the application was not made in time", the sentence immediately following this statement also needs to be read: "The grounds to extend time have not been established". This meant that the relevant threshold to the Tribunal considering the set-aside application, had not been met. 4. The Tribunal was obliged first to consider whether it would grant the extension of time to file the set-aside application, as it had been filed out of time. That was an anterior inquiry which preceded the consideration of the merits of the set-aside application itself. Once a decision to refuse the extension of application had been made there was no obligation on the Tribunal to determine the set-aside application. In any event, it necessarily had to fail for the reason that no extension of time had been granted for the merits of that application to be determined. This is what the Tribunal was trying to express in the order even if the use of language was somewhat infelicitous. 5. This ground of appeal fails. Ground 2: Did the Tribunal's discretion miscarry when it refused to grant the extension of time application? 1. YDB contends that the bare fact that the application was filed out of time was considered decisive to the question of whether the set-aside application should be allowed. 2. She argued that the considerations generally relevant to whether to grant an extension of time are set out in Jackson at [22] and include: whether strict compliance with the rules will work an injustice upon the applicant; the length of the delay; the reasons for the delay; the applicant's prospects of success; and the extent of any prejudice suffered by the respondent. So much is not in dispute and indeed the submissions below of both YDB and the respondent addressed these criteria. 3. YDB contended that as the Tribunal below concluded that "there is no real likelihood that it would be unjust to let the decision stand because the application was filed out of time" meant that the Tribunal did not consider whether it would be unjust to let the decision stand despite the application being made out of time based on the circumstances of the case and the reason for the delay. Consequently, YDB contended, the fact that the application was made out of time was decisive and the Tribunal acted on a wrong principle in the exercise of its discretion. 4. We disagree. The Tribunal recorded that it had considered the evidence and the submissions from both parties. The submissions of each of the parties below (which we have reviewed), addressed comprehensively the factors in Jackson. The Tribunal clearly noted in its Notice of Orders that "the grounds to extend time have not been established". This meant that the Tribunal was not satisfied on the evidence and submissions that the grounds had been met in this case. 5. Accordingly, this ground of appeal fails. Ground 3: Did the Tribunal fail to take into account relevant considerations? 1. This ground alleges that both the set-aside decision and the extension of time decision were infected with error in that they failed to take into account relevant considerations (addressed in the submissions of the parties below). YDB contends that as each of the tests were not expressly referred to in the Notice of Orders, we can infer that the Tribunal did not consider the relevant considerations in the exercise of its discretion. 2. In respect of the set-aside application, as we have already stated above, given the Tribunal refused the extension of time application, the Tribunal was not required to consider the merits of the set-aside application including any mandatory considerations relevant to that application. 3. In respect of the extension of time application, while the Tribunal was required to take into account the mandatory considerations applicable to the extension of time application, the mere failure to refer to each of those considerations in the Notice of Orders, does not equate to a failure to take them into account. As noted above, the Tribunal was clearly not satisfied the grounds for the extension of time application had been met. It came to that conclusion on the basis of the evidence and submissions before the Tribunal which detailed all of the relevant considerations and the facts supporting each. We do not accept YDB's submission that we can infer those submissions were not considered or that the Tribunal did not take into account any relevant considerations. 4. Accordingly, we are not satisfied that this ground of appeal is made out. Ground 4: Did the Tribunal provide adequate reasons in respect of the extension of time application? 1. YDB argued that the reasons for the extension of time application were inadequate in that they did not provide explanation as to what the grounds were and how it arrived at the conclusion which created a difficult task now for YDB to attempt to exercise her appeal rights. 2. The respondent contended, relying on the New South Wales Court of Appeal in Orr at [68], that there is no express statutory duty for the Tribunal to provide any (let alone detailed) reasons for its discretionary decisions. Even superior courts are not required to give reasons for every interlocutory decision and aspects "such as matters that necessarily call for estimation or impression" may require less or only allow for limited reasoning to be exposed. The Tribunal, exercising a discretionary evaluative judgment, was not required to detail each factor which was found to be relevant or irrelevant, nor was it required to make findings about each disputed piece of evidence. Nor, as a general proposition, do reasons need to be elaborate: they only need to go so far as necessary to indicate why the decision was made to enable them to exercise such rights in relation to the decision: Housing Commissioner of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386. 3. In our view, the Notice of Orders made by the Tribunal is not a statement of reasons under NCAT Act, s 62(3) but a notification of the decision. This is reflective of s 48 of the Administration Decisions Review Act 1997 (ADR) in respect of administratively reviewable decisions as defined in the ADR. 4. When a request for a written statement of reasons is made, the Tribunal is required to comply with NCAT Act, s 62(3) which is as follows: A written statement of reasons for the purposes of this section must set out the following-- (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. 1. Section 62(3) is consistent with s 49 of the ADR. 2. Having regard to the statutory framework of the NCAT Act under which decisions are made in the Tribunal and the type of decisions under appeal in this matter, in our view there was no statutory obligation under the NCAT Act for the Tribunal to provide a detailed statement of reasons for the discretionary interlocutory decision to refuse the extension of time application. Absent a request under NCAT Act, s 62(3), the statutory obligation is to provide a notice of the decision: NCAT Act, s 62(1). This facilitates dealing effectively with the nature and "sheer volume of work undertaken by the Tribunals": see Orr at [70] (per Bell P). 3. Administratively, providing a short explanation of the decision on an interlocutory application in the Notice of Orders is of assistance to the parties and the Tribunal. However, when it comes to a review on appeal from that decision on the basis of inadequate reasons, in our view, having regard to the statutory framework in the NCAT Act and the nature or "quality of decision" (Basten JA in Resource Pacific Pty Ltd v Wilkinson [20143] NSWCA 33 at [48] referred to by Bell P in Orr at [66] and [70]) of the Tribunal on an interlocutory application, less strict standards (including compensation for "linguistic infelicities) should be applied than we might otherwise apply if we were reviewing a statement of reasons. 4. While we note the Notice of Orders is expressed in a very limited way, it was open to YDB to request written reasons under the NCAT Act, s 62(2) within 28 days of the decision of the Tribunal below. This course was available to YDB even after she obtained the assistance of Legal Aid. 5. In any event, read in context, the Tribunal was not satisfied on the evidence and submissions that the grounds for extending the time to make the set aside application were established. 6. Consequently, as the orders are a notice of the decision and no request was made for a statement of reasons, what appears in the orders made by the Tribunal is adequate and no question of law arises. 7. This appeal ground fails. Further evidence and re-exercise of discretion 1. As a result of the conclusions we have reached, we do not need to re-exercise the discretion under the NCAT Act, s 80(3), and consequently we have not permitted YDB to rely on her further statutory declaration for this appeal or for a re-exercise of the discretion. As noted above, the information contained in the statutory declaration was evidence that could have been provided to the Tribunal below and there is no explanation as to why that was not done. 2. Leave to rely on the further evidence is refused. 3. We further note that had we granted leave to appeal from the extension of time application we would have re-exercised our discretion under s 80(3) (as the parties at the hearing submitted we should). We would have reached the same conclusion as the Tribunal for the following reasons: 1. There was no evidence before the Tribunal below about the reasons for YDB's non-appearance at the hearing on 26 July 2022 (to be distinguished from Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65) nor about why it took her until 23 August to lodge her application to set aside the decision. 2. It was submitted that she had been under extreme stress since her arrest but there was no evidence about why she did not contact the Tribunal or the respondent when she knew she would not be attending the hearing. We do not accept that extreme stress prevented her from making contact (at least with her landlord) about the pending hearing. 3. The submissions of YDB explained that she had a dental appointment (which had been made many months prior). We understand it was an important dental appointment but there was no explanation or evidence why steps were not taken by her to notify the Tribunal. 4. The submissions also expressed an acceptance by YDB that she was aware of the seriousness of losing her residence and being potentially homeless. It is not explained why, despite repeated communications from the respondent to ensure she would be in attendance, she would not have taken steps to contact the Tribunal (whether or not she knew she could seek an adjournment of the hearing) to protect her tenancy. 5. While the length of the delay (22 days) was not substantial, the consistent failures by YDB to engage in the processes of the Tribunal in our view outweighed the period of delay. 6. Further, while YDB contended that she would have been given an adjournment of her hearing had she attended on 26 July 2022, we do not agree that was a foregone conclusion. Noting the charges are far more extensive than what is relevant to this proceeding, and that the evidence against her is substantial, to the extent evidence she would have given in the proceedings crossed into territory to be covered in the criminal proceeding, prejudice to her could have been prevented by the Tribunal protecting her evidence such as by issuing a certificate under s 128 of the Evidence Act 1995 and/or making orders under s64 (which we have now done) rather than merely adjourning the entire proceeding pending her criminal proceeding. This is particularly so as the criminal hearing would likely take a substantial period of time. 7. We accept that the respondent would be prejudiced if the extension is granted and these proceedings are not brought to finality in circumstances where the Respondent has the responsibility to manage its social housing assets for those willing to comply with the terms of the residential tenancy. 8. Pursuant to s 36 of the NCAT Act, on balance, the just, quick and cheap resolution is best facilitated by refusing the extension of time application. 9. As the extension of time application is refused, the application to set aside the decision of 26 July 2022 is necessarily also dismissed. Section 64 order 1. Following the hearing, YDB requested we make an order under the NCAT Act, s 64(1)(a) that disclosure of YDB's name be prohibited and a pseudonym used in substitution. This was sought on the basis that she has made a plea of not guilty in her criminal proceeding which in some way concerns the same subject matter as the substantive default under her residential tenancy with the respondent: that is, the use of the premises for illegal purposes. 2. The respondent neither consents nor opposes the application for orders. 3. Both parties have provided written submissions which we have taken into account. 4. We agree there is a possible risk of prejudice to YDB's criminal proceedings if the order is not made. Consequently, the YDB's application for an order under s 64(1)(a) is granted. Orders 1. Leave is refused for the Appellant to rely on further evidence on the appeal. 2. Application for extension of time to lodge the appeal refused. 3. Leave to appeal refused. 4. Appeal dismissed 5. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure of the name of the applicant is prohibited. 1. Note: under s 64(4), a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 03 March 2023 - Amended Respondent representation. 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 March 2023