Eskander v Saweris [2023] NSWCATCD 42

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Eskander v Saweris [2023] NSWCATCD 42 Hearing dates: On the papers Date of orders: 11 May 2023 Decision date: 11 May 2023 Jurisdiction: Consumer and Commercial Division Before: R C Titterton OAM, Senior Member Decision: 1. The order dismissing the set aside application made on 11 April 2023 is confirmed. 2. The order made on 26 September 2022 in matter RT 22/40573 remains in full force and effect. Catchwords: PRACTICE AND PROCEDURE – application to set aside decision pursuant to cl 9 of the Civil and Administrative Tribunal Regulation 2022 Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 62 Civil and Administrative Tribunal Regulation 2022, cl 9 Civil and Administrative Tribunal Rules 2014 (NSW), r 13 Cases Cited: YDB v NSW Land and Housing Corporation [2023] NSWCATAP 55 Category: Consequential orders Parties: Tamer Eskander (Applicant) Mena Saweris (Respondent) Representation: The applicant was self-represented. File Number(s): RT 23/16451 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. In these reasons I will refer to the applicant as the tenant and the respondent as the landlord. 2. On 11 April 2023, the Tribunal dismissed an application to set aside the decision of the Tribunal made on 21 November 2022 in matter RT 22/40873. 3. Brief reasons were given at the time. 4. The Tribunal has now received a request for written reasons pursuant to s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and drawn the Tribunal's attention to the Appeal Panel Decision of YDB v NSW Land and Housing Corporation [2023] NSWCATAP 55 at [56] to [65]. Those paragraphs state: Ground 4: Did the Tribunal provide adequate reasons in respect of the extension of time application? 56 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. 57 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. 58 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. 59 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. 60 Section 62(3) is consistent with s 49 of the ADR. 61 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). 62 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. 63 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. 64 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. 65 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 arise