Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burns v St George Community Housing Ltd [2023] NSWCATAP 125 Hearing dates: On the papers Date of orders: 09 May 2023 Decision date: 09 May 2023 Jurisdiction: Appeal Panel Before: L. Wilson, Senior Member Decision: (1) The Appeal Panel makes an order dispensing with a hearing. (2) The Appeal Panel extends time for the appellant to provide submissions on the reinstatement application to 3 April 2023. (3) The application for reinstatement is refused. Catchwords: APPEAL – reinstatement after dismissal for non-appearance - multiple reinstatement applications – utility of reinstating proceedings Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Tuitea v Liu [2023] NSWCATAP 65 Wallace v Price [2017] NSWCATAP 151 Fabrizio v NSW Land and Housing Corporation [2016] NSWCATAP 21 Category: Procedural rulings Parties: Tania Ann Burns (appellant) St George Community Housing Ltd (respondent) File Number(s): 2022/00374173 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Cited Date of Decision: 30 November 2022 Before: D Ash, Member File Number(s): RT22/37115 REASONS FOR DECISION Reinstatement of Appeal 1. This is an application to reinstate appeal proceedings pursuant to s.55(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The proceedings were dismissed due to the appellant's failure to appear at the final hearing of the appeal pursuant to s 55(1)(c) of the NCAT Act. It is not the first reinstatement application in these proceedings. 2. Section 55(2) of the NCAT Act provides as follows: The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers there is a reasonable explanation for that failure. 1. That is, if satisfied that there is a reasonable explanation for the failure to attend, the Tribunal has a discretion to reinstate the appeal. Procedural history of the proceedings 1. On 19 April 2022 the appellant, who was the tenant of the respondent from 15 November 2021 to 23 June 2022, lodged a residential tenancy application against her landlord who is the respondent to this appeal. This had file number RT22/17140. In it, the tenant sought $15,000 compensation from the landlord for breach of quiet enjoyment – by the landlord failing to take action to prevent another tenant disrupting her quiet enjoyment – and for failure to carry out repairs in the laundry. 2. On 28 July 2022 the tenant's application RT22/17140 was listed for final hearing before the Tribunal. The presiding Senior Member dismissed the application due to the tenant's failure to appear: 1. The application is dismissed because: •There is no appearance of applicant by 01:23 PM. No satisfactory explanation for nonattendance has been given to the Tribunal. The Tribunal called the applicant on three occasions on the number she provided on her application, 0484 XXX 604. However she did not answer any of the calls. 1. The next day, 29 July 2022, the tenant lodged a reinstatement application to reinstate her tenancy application. On 1 August 2022 the Tribunal made directions for the parties to exchange submissions about the reinstatement of RT22/17140. 2. On 17 August 2022 the Tribunal set aside the order dismissing RT22/17140 and reinstated it. The tenant's tenancy application was then given a new file number RT22/37115. Another conciliation and group list hearing was held on 19 September 2022 for the tenant's application and then it was listed for final hearing (again) on 28 November 2022. The Tribunal determined the tenant's application on 30 November 2022 in her favour, finding breach of s 50 (right to quiet enjoyment) and s 63 (maintain and repair) of the Residential Tenancies Act (the Decision). The Member awarded the tenant $1,000 and $500 respectively for each breach. 3. On 12 December 2022 the tenant appealed against the Decision. The Appeal was lodged within time. 4. The appeal was listed for a callover on 13 January 2023 at which time the tenant did not appear so the appeal was dismissed because of the appellant's failure to appear. 5. On 18 January 2023 the tenant applied to reinstate her appeal. 6. On 8 February 2023 the respondent consented to the appeal being reinstated so the Appeal Panel reinstated the appeal by consent. The Appeal Panel proceeded to make procedural orders (or directions) on 8 February 2023 and listed the appeal for final hearing on 22 March 2023 at 2:15pm: Order 5. 7. On 22 March 2023 the appeal was dismissed because the appellant failed to appear. This was the third time the tenant's application or appeal had been dismissed because the tenant had failed to appear at a hearing. 8. On 23 March 2023 the tenant applied to reinstate the appeal. This is the third reinstatement applicant the tenant has made in these proceedings. Dispensing with a hearing 1. Section 50 of the NCAT Act is: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except— (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first— (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required. 1. On 27 March 2023, the Appeal Panel made the following procedural orders or directions in this reinstatement application: 1. On or before 31 March 2023 the Appellant has leave to file and serve any further evidence and submissions in support of the application by email. 2. On or before 12 April 2023 the Respondent has leave to file and serve any further evidence and submissions in reply by email. 3. The Appeal Panel may dispense with a hearing in relation to the application to reinstate. Both parties should also make any submissions about whether they object being made dispensing with a hearing under s.50(2) of the Civil and Administrative Tribunal Act 2013 or if they consent to the application to reinstate being dealt with on the papers. Submissions filed in accordance with the these [sic] orders should include submissions on dispensing with a hearing. 1. In the reinstatement application being considered herein, that is, the application lodged on 23 March 2023, the tenant wrote "I would like a public Hearing" under the box she ticked which reads "I do not want this application to be dealt with on the papers". 2. On 31 March 2023 the tenant provided four pages of typed submissions in support of the reinstatement application, with ten pages of annexures following. These did not address s 50 of the NCAT Act. 3. On 3 April 2023 the tenant provided two further pages of submissions which specifically addressed "Whether the matter can be agreed by the Tribunal on papers" (plus emails of 10 July 2020). The tenant wrote: I overlooked these procedural matters focused on the dates so as not to miss anymore but instead made the error of not addressing the Section 50(2) asked of me – my apologises. I have no objection for the Reinstatement for Appeal to be decided on the papers. 1. It then appears from the balance of the 3 April 2023 submissions that the tenant opposes the appeal, once reinstated, being heard on the papers. That is not what is being considered herein. The purpose of these reasons is to decide whether to reinstate the tenant's appeal, and whether to make that decision on the papers. 2. The Appeal Panel extends Order 1 made on 27 March 2023 for the tenant's submissions on the reinstatement application to 3 April 2023 when the supplementary submissions addressing s 50 were filed. 3. The respondent filed its submissions opposing the reinstatement application on 6 April 2023. In paragraph 5 the respondent wrote: The respondent consents to the application for reinstatement being determined on the papers (in accordance with s.50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW)). 1. Both parties agree the Appeal Panel should dispense with a hearing and the Appeal Panel agrees. Both parties have thoroughly outlined their positions in writing and the Appeal Panel is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering those written submissions and any other documents or material lodged with the Tribunal. Submissions of the parties The appellant/ applicant for reinstatement 1. Under the hearing "Reasons for Reinstatement" on the reinstatement application the tenant wrote: To members & respondent, My deep apologises for my non attendance, at the Appeal hearing. Multiple court cases and NCAT internal appeals I'm involved in have proven difficult to juggle all the times and dates whilst engaging in deep thought about all of them. I over looked this critical appeal – only the day before engaged in a directions hearing for another important & critical matter – my unpredictable circumstances of being homeless not knowing from one day to the next where I will sleep have certainly contributed to my unstable circumstances with documents being shifted from one place to another where ever I can use photocopy + computer services – it has no doubt put me at a disadvantage – but I ask the Tribunal for this matter to be reheard as it is in the public interest for for [sic] the damage created by SGCH LTD to tenants in their refusal to undertake + comply with Australian Bld code standards putting residents and ex residents as risk. I believe the evidence accumulated over a long period and battle must be answered + the Housing provider bought to accountability for their non repair + non compliance with the Residential Tenancy Act to have this dismissed out[r]igh[t] would be a miscarriage of justice – please consider my circumstances on my non attendance again I apologise. 1. In the 31 March 2023 submissions the tenant focussed on the merits of her substantive appeal. She wrote about the "overwhelming evidence" she had submitted and suggested the "tribunal, should be lenient as to its decision on the Appeal going forward". On page 3 she addressed the explanation for her failure to appear at the final hearing of her appeal on 22 March 2023 in the following way: My apologies to all parties for my no show on the 21 March due to jumbling dates of NCAT and court cases I am also seeing a neurologist for investigation into dizzy spells and intermittent bouts of forgetfulness with hospital detecting acute sinisitus which emerged from the living conditions I was subjected to for 3 and half years. I contracted Covid in June '23, facing eviction onto the streets homeless, SGCH Ltd couldn't have cared less, empathy being a foreign concept, as to "DUTY OF CARE TO THOSE with disabilities higher than another form of housing provider or Landlord in the private rental market" upheld Appeal Phillip Xenos v SGCH Ltd 2015", they tried to evict a person with life threatening illnesses as Outpatient to St Vincent hospital Sydney, more than just a tad, FASCIST ANTI – SOCIAL BEHAVIOUR, Corporatist Eugenics cultural. 1. It appears there are two typographical errors in the excerpt set out above; the date the tenant did not appear was 22 March and she must have contracted covid at some time before June 2023 as that date is in the future. 2. On page 4 the tenant addressed the explanation for her non-appearance again, in amongst more submissions about the substantive application, as follows: This must go to another Hearing not to do so would be a miscarriage of justice if ever Justice is to be seen to done [sic] this case stands out, as the Public health component and deceptions to the NSW government and its Tribunals, Must be Tested. 1. The ten pages attached to the 31 March submissions concern the substantive appeal and do not concern the reinstatement application, as did the supplementary submissions of 3 April 2023 (other than the consent to dispense with a hearing). The respondent's submissions 1. The respondent submitted as follows: 1. St George Community Housing Limited (SGCH) objects to the appeal being reinstated as the appellant has not provided a reasonable excuse for not attending the hearing on 22 March 2023. 2. At the time of the hearing on the 22 March 2023, Senior Member D Charles telephoned the appellant and there was no answer. Senior Member Charles also went out into the reception area of the Tribunal on two separate occasions to see if the appellant was present. 3. The appellant was aware that the hearing was on the 22 March 2023 and no contact was made to the Tribunal to attempt to have the hearing adjourned. 4. The respondent contacted the appellant on 15 March to advise her that a hard copy of the respondent's evidence was available for her collection. The appellant did not collect these documents… In response to the appellant's 31 March 2023 submissions, the respondent submits that: 1. The proceedings which the appellant seeks to have reinstated relate to two issues; an order of compensation in relation to the behaviour of the landlord's other neighbouring tenant and a claim in relation to the laundry drain (per the orders made by the Tribunal on the 28 November 2022). 2. The appellant's submissions make several allegations that are unsupported and are not relevant to the appellant's original application or this application for reinstatement. 3. The appellant's submissions also refer to Tribunal proceedings lodged by other parties. These matters have all been dismissed and are not relevant to the appellant's application for reinstatement. 4. The appellant's tenancy was not unlawfully terminated. The tenancy was terminated by the Tribunal at a hearing on the 23 June 2023 [sic]. 1. The date in paragraph 4 above should have been to 22 June 2022 referred to at [3] of the Decision (termination application SH21/49194). Consideration Legal principles 1. The Appeal Panel set out the principles applicable to reinstatement applications in Wallace v Price [2017] NSWCATAP 151 (Wallace). The starting point when considering a reinstatement application is whether there has been a reasonable explanation for the failure to attend. If there is, the next step is considering the exercise of the Tribunal's discretion. 2. It was held in Wallace at [24] to [26] and [30] to [31], cited with approval in Tuitea v Liu [2023] NSWCATAP 65 at [58]-[60]: Section 55(2) provides as follows: The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers there is a reasonable explanation for that failure. That is, if satisfied that there is a reasonable explanation for the failure to attend, the Tribunal has a discretion to reinstate the appeal. A party seeking to appear by telephone has an obligation to ensure that the proposed telephone service will be reliable and available at the time the Tribunal places a call for the purpose of the hearing. Failure to provide a reliable telephone service and/or failing to be available at the appointed time may result in proceedings being dealt with in that party's absence. … Notwithstanding there is an adequate explanation, the question is whether an order to reinstate the proceedings should be made as a matter of discretion. Factors relevant in the exercise of the discretion include: 1. The nature of the appeal and the issues raised; 2. The strength of the appeal and its likelihood of success; and 3. Any injustice to the opposing party. 1. In Fabrizio v NSW Land and Housing Corporation [2016] NSWCATAP 21 at [17] and [18] the Appeal Panel found the lack of merit of the appeal an important factor weighing against reinstatement: Having regard to all the matters referred to in these reasons, I am of the view that the appellant's prospects of a successful appeal are extremely remote and that her prospect of being granted extended time to lodge the appeal are also extremely remote. Accordingly in my view no utility will be served by reinstating the appeal. Indeed the respondent may be prejudiced by being denied the opportunity to recover possession of the premises until the appeal is resolved. I conclude that the appellant has not provided a reasonable explanation for the failure to appear at the callover on the 6 January 2016 and I therefore refuse to reinstate the appeal. Had I been of the opinion that there was a reasonable explanation for the failure to appear on the 6 January 2016 I would still have refused to reinstate the appeal because I do not see any utility in doing so. Reasonable explanation? 1. The Appeal Panel is not of the view the appellant has given an adequate or reasonable explanation for her non-attendance at the final hearing of her appeal on 22 March 2023, even taking into account the fact that she was homeless on that date. The appellant has apparently been homeless from 18 August 2022, when she vacated the rental premises the subject of these proceedings, to date. In that time she has managed to appear at multiple hearings (as well as not appear at three). 2. Her explanation for not appearing was that it is "difficult to juggle all the times and dates" of her multiple court and NCAT cases. It is not known what are her other court or NCAT cases. In any event these are her proceedings and she is required to attend the hearings of them otherwise they may be dismissed, as she is well aware having had these proceedings dismissed twice before the 22 March 2023 dismissal. Despite her claim that it is "difficult to juggle all the times and dates" she was able to lodge a reinstatement application within 24 hours of the 22 March dismissal which contained detailed descriptions. She was also able to comply with the 27 March directions to provide further submissions by 31 March, as well as providing further submissions on 3 April. It is difficult for the Tribunal to accept that the appellant cannot turn up to, or dial into, hearings but can type up detailed submissions or applications and file them in the Tribunal on their due dates. If the multiple court and NCAT cases were so difficult for her to juggle one might expect her written submissions to also be missed. 3. Her explanation of being confused with other cases, whatever those cases may be as they have not been proved or established in this application, is less persuasive given she has already had these proceedings reinstated twice after they were dismissed for her earlier non appearances. One could accept confusion causing an applicant, particularly a homeless applicant, to miss one hearing date. The explanation becomes weaker the second time the applicant or appellant misses a hearing. It is weaker still the third time the appellant does not appear at a hearing of the appellant's own appeal. 4. The appellant's vague reference to "seeing a neurologist for investigation into dizzy spells and intermittent bouts of forgetfulness" is not supported by evidence and does not constitute an adequate explanation for failing to appear. Again it must be observed that the appellant was very swiftly able to file a detailed reinstatement application after the appeal was dismissed, despite the alleged dizzy spells and forgetfulness. Further the appellant does not allege she had a dizzy spell on 22 March nor that she had a "bout of forgetfulness" on 22 March 2023. The submission is too vague to amount to an adequate explanation for not appearing at the final hearing of the appellant's own appeal. Nature and strength of the appeal 1. It would appear the crux of the appellant's appeal is that she does not agree with the Decision and considers she should have been awarded more compensation than the $1,500 she was awarded. 2. 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]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2). 3. Some of the orders sought in the Notice of Appeal are not orders that can be made by the Appeal Panel, such as "report to the EPA SGCH Ltd" and "FALSE AND MISLEADING INFORMATION". The tenant also seeks "12 MTHS FULL RENT REBATE $10,001.84" despite her tenancy being only 31.5 weeks in length totalling only $5,765 rent during the tenancy. 4. It would appear the appeal is largely a series of complaints many of which do not constitute proper grounds of appeal. The preliminary assessment of the merits of the appeal, for the purpose of deciding this reinstatement application, is that it is very weak. That is, if the appeal is reinstated, it is unlikely to succeed. Injustice to respondent and other discretionary considerations 1. It is relevant that the respondent attended the hearing and the Tribunal's resources – which are public resources - were wasted by the appellant's non-appearance. It is also relevant that the respondent appeared on 28 July 2022 when the tenant failed to appear and again at the callover on 13 January 2023. It is also relevant that these proceedings have been on foot for over 12 months and the respondent has had to provide submissions on three reinstatement applications, appear at least half a dozen hearings and contest this appeal which is difficult to interpret and thus respond to. The respondent is a social housing provider and these protracted proceedings may be causing a drain on its resources. 2. It is also relevant that the hearing the appellant missed was the final hearing and the tenant had notice of the time and date since 8 February 2023, which is six weeks notice. The Appeal Panel also takes into account the respondent's submission that the tenant did not collect the respondent's evidence after it notified her it was ready for collection on 15 March 2023. Not collecting the opposing party's evidence and not turning up to the final hearing of one's own appeal, having earlier not appeared at the appeal callover, gives the impression the appellant is not properly prosecuting her appeal and has abandoned her appeal. 3. It is the view of the Appeal Panel that the appellant has not given a reasonable explanation for her failure to appear on 22 March, and therefore the reinstatement application must fail. 4. Even if the Appeal Panel had found the appellant had a reasonable explanation for her failure to appear, the Appeal Panel would have exercised its discretion to refuse the reinstatement application because the prospects of success on the appeal are poor, and for discretionary reasons such as the multiple occasions of non attendance and disadvantage to the respondent, the appeal should not be reinstated. Orders: 1. The Appeal Panel makes an order dispensing with a hearing. 2. The Appeal Panel extends time for the appellant to provide submissions on the reinstatement application to 3 April 2023. 3. The application for reinstatement is refused. ********** 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: 09 May 2023