Supreme Court New South Wales Medium Neutral Citation: Williams v NSW Land and Housing [2012] NSWSC 1022 Hearing dates: 13 July 2012, 17 August 2012, 30 August 2012 Decision date: 31 August 2012 Jurisdiction: Common Law Before: Schmidt J Decision: 1. The Tribunal's decision of 23 May 2012 be set aside. 2. The first defendant bear Ms Williams' expenses of the proceedings, as agreed or assessed. Catchwords: APPEAL - appeal from Consumer Trader and Tenancy Tribunal - residential tenancies - refusal of application for adjournment - denial of procedural unfairness - orders sought made - costs Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 Consumer, Trader and Tenancy Tribunal Regulation 2009 Supreme Court Act 1970 Cases Cited: Brennan v Consumer, Trader & Tenancy Tribunal [2010] NSWSC 1240 Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362 Elabbas v CTTT [2007] NSWSC 878 GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 Italiano v Carbone [2005] NSWCA 177 Mikel v Dudley [2008] NSWSC 1090 O'Hara v Consumer Trader and Tenancy Tribunal [2007] NSWSC 663 Prentice v Cummins (No 6) [2003] FCA 1002 Sullivan v Department of Transport (1978) 20 ALR 323 Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405 Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 Category: Principal judgment Parties: Jenny Williams (Plaintiff) NSW Land and Housing Corporation (First Defendant) Consumer, Trader and Tenancy Tribunal (Second Defendant) Representation: Counsel: Mr J O'Connor (First Defendant) Solicitors: Ms Williams (unrepresented) Michael Callen, Housing NSW (First Defendant) IV Knight, Crown Solicitor (Second Defendant) File Number(s): 2012/2001200 Publication restriction: None Judgment 1Ms Williams is a tenant who resides with her children in premises owned by the defendant, NSW Land and Housing. In May 2012, the Consumer, Trader and Tenancy Tribunal made orders in favour of the first defendant in proceedings in which Ms Williams appeared unrepresented. Ms Williams complains that she was denied procedural fairness by the Tribunal's refusal of her adjournment applications and in the way in which the hearing was conducted in various respects. She has made out that complaint. 2Sitting as duty judge, I made an ex parte order in favour of Ms Williams, staying execution of a warrant by which the Tribunal's orders were to be enforced. The first defendant accepted that Ms Williams was entitled to pursue the orders which she sought in relation to the enforcement of the warrant. That jurisdiction rests in the Court under s 69 of the Supreme Court Act 1970 and s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001. 3Later the first defendant very properly raised the need for Ms Williams to join the Tribunal as a party to the proceedings and to seek an order that its decisions be set aside, if the real relief which she was seeking to achieve, was to be effective. Ms Williams accordingly took steps to amend her summons. It was served on the Tribunal, which then filed a submitting appearance. The proceedings before the Tribunal and its decisions 4The proceedings before the Tribunal were concerned with an application brought by the first defendant to evict Ms Williams. Directions were given in February 2012 as to the filing of evidence. Ms Williams was not able to comply with those directions, because she was obliged to enter a residential alcohol rehabilitation programme, as a condition of bail. 5With assistance from an officer of the Manly Local Court, Ms Williams wrote to the Tribunal, seeking an adjournment of the hearing fixed for April, given her admission into the residential programme. She explained in her written application that she wished to oppose the defendant's application, which she said had arisen from a long term conflict between other tenants and her family, which had resulted in extensive litigation ongoing in the Local Court. The application was opposed by the first defendant and refused by the Tribunal. 6Ms Williams' family sought assistance from a tenants' advocacy service. She was granted day leave from the rehabilitation programme, to attend the hearing. She understood that an advocate would be there to represent her, but the advocate did not attend and Ms Williams appeared unrepresented, in the company of her son, who sought to provide her with some assistance. She made another adjournment application, explaining that she had been unable to serve evidence on the first defendant as she had been directed, because of her participation in the residential rehabilitation programme. 7The application was opposed and refused. Ms Williams was informed that her son could make enquiries as to the advocate's whereabouts and if the advocate turned up, he or she could take over. Ms Williams had prepared some documents for the hearing, but they had not been served. The first defendant did not object to her relying upon them and the hearing proceeded with Ms Williams representing herself. 8It is apparent from the transcript of the proceedings that Ms Williams had significant difficulty, in part as the result of the way in which the Tribunal Member conducted the hearing. The Tribunal Member gave Ms Williams an explanation of the procedures to be followed, before calling on the first defendant to call its witnesses. In the explanation given, no mention was made of Mrs Williams having any right to question or cross-examine any of those witnesses. What was said was: "Now, Ms Williams, just let me explain to you what the procedure is. Have you got something to write with, pen and paper? I'll give you a pen and a paper, and what you do is - and this is going to be hard for you, I anticipate - it's the applicant's case. They go first. You don't interrupt them. MS WILLIAMS: Yes. THE TRIBUNAL MEMBER: You don't snort at them. You don't make derisory comments. You don't huff and puff and blow their house down. You take notes, and when you come across something that you will undoubtedly find offensive, you take a note. But it's very important that you let them have a go. You just let them say their piece, each witness. And then when it's your turn, they will afford you the same courtesy. Nobody will huff and puff and blow when you give your evidence and they will all remain quiet, no matter what you say, because they have a pen and paper and they will take notes and what they find particularly offensive of what you might say, they have the right of reply. MS WILLIAMS: Sure. THE TRIBUNAL MEMBER: So they go first. You say your defence piece. They have a right of reply. But it's very important that everybody in the room understand no matter what is said, I want you to be extremely courteous. Do not make derisory comments, shake your head, raise your eyeballs. Basically we'll get through it a lot quicker if everybody says their piece uninterrupted. Okay, is everybody happy with that? MS O'NEILL: Yes. THE TRIBUNAL MEMBER: Does anybody have any procedural questions? Ms Williams? No? MS WILLIAMS: No." 9After the second of the defendant's witnesses had finished giving his evidence, it appears to have occurred to the Tribunal Member that there had been an oversight. She then told Ms Williams that: "THE TRIBUNAL MEMBER: 'Normally we cross examine. Are there any questions you want to ask Mr Norton? Now, the way that I see this unfolding is this hearing will stop at quarter past. We may or may not finish all of the evidence - it depends. But strictly speaking you're entitled to ask Mr Norton and also Mr Ashton any questions. MS WILLIAMS: No, I won't be asking any questions. THE TRIBUNAL MEMBER: Okay. So the way that you want to proceed is not ask questions now but tell your side of the story later; is that it? MS WILLIAMS: That's right, that's it. THE TRIBUNAL MEMBER: Right, so can we just note that for the record that Ms Williams doesn't wish to cross-examine as such but she will put her case at the end. Yes? Is that a fair way of putting it? Okay, thanks, Ms Williams." 10This was the first time that any mention was made of any right to ask questions. There was no explanation given by the Tribunal as to what cross-examination involved, or what its purpose was, namely to challenge the evidence which the witness had given, as to its truth and/or reliability. Before Ms Williams gave up the right to question the defendant's witnesses, as a matter of elementary fairness, she ought to have been given some explanation of the purpose of cross-examination, albeit in the context of the proceedings before the Tribunal, that explanation could have been given in simple terms. 11In the result, Ms Williams asked no questions of any of the witnesses who the first defendant called. At the end of the day's hearing, the first defendant informed the Tribunal that it had no further witnesses and that it wished to make its submissions, after Ms Williams had put her case. 12The Tribunal Member then informed Ms Williams that the hearing would adjourn to another day, but told her that she would not be permitted to 'now start preparing your case in the sense that you've given your documents. They are going to be the documents you rely on, and then next time, what I'd like you to do is put the other side on notice what witnesses you're going to call.' 13The Tribunal Member said that there would be no need for those who had already given evidence to return on the next occasion, the defendant's case being basically finished. 14Ms Williams was then asked to identify who her witnesses would be. They included her 14 year old daughter, in respect of whom the Tribunal member made very clear her view, which she explained at length, that she ought not to be called, notwithstanding that Ms Williams believed that she had relevant evidence to give, about the matters in issue between the parties. 15The Tribunal Member noted that Ms Williams and her son would give evidence on the next occasion and observed that 'we get to determine' whether her daughter would give evidence, observing that 'it is my preference that she not be put through that'. There was a discussion of what steps needed to be taken for Ms Williams' daughter to prepare a statement. The Tribunal Member finally told Ms Williams that there was no legal impediment to her daughter giving evidence and directions were given as to the service of her witness statements, even though Ms Williams told the Tribunal Member of her difficulties while in rehab. 16The Tribunal Member said that the first defendant would be given a right of reply, because Ms Williams had not complied with the earlier directions as to the filing of evidence. The first defendant then indicated that it would call evidence from one other witness on the next occasion, if she was by then well enough to attend. The hearing concluded with the Tribunal Member urging Ms Williams to pursue assistance from the tenant's advisory service, or a solicitor. 17At the adjourned hearing on 23 May, Ms Williams appeared again without representation, but she had witnesses and a Mr Ewan present. The transcript is not entirely clear, but it does record Ms Williams telling the Tribunal Member that she had no representation and Mr Ewan saying that he was there to advise and assist her 'if I can'. 18Ms Williams then said that she did not wish to proceed without representation. The Tribunal Member initially said that the hearing would be finalised that day. She then said that the first defendant would call its last witness, she would ask it to make submissions and would then hear any adjournment application, which Ms Williams wished to make. 19The first defendant then called evidence from another witness, who Ms Williams also did not cross-examine. The first defendant made its submissions and the Tribunal Member then asked Ms Williams whether she was ready to put her case. She replied 'No I don't want to until I've got representation'. The Tribunal Member then invited her to explain why she needed an adjournment. 20It is apparent from the transcript that the Tribunal member then misunderstood something which Ms Williams was attempting to inform her of, about the outcome of other court proceedings in which she was involved, which ended with her son Mr Hayden interjecting. The exchange was: "THE TRIBUNAL MEMBER: Yes, all right. So what you need to do then, I need to hear from you why you want an adjournment today and then I rule on that. MS WILLIAMS: Yes, because I haven't had proper representation and this isn't exactly the way it is in Court this morning. I can go home. THE TRIBUNAL MEMBER: I'm sorry? Oh, then I'll be deciding it in your absence. So, sorry, if you - are you telling me that we can do this - we can do this with you or without you. What now - - MR EWAN: The hearing in court that was held in Manly Court this morning - - THE TRIBUNAL MEMBER: Yes. MS WILLIAMS: This morning - - THE TRIBUNAL MEMBER: Yes. MS WILLIAMS: -- I can go home. THE TRIBUNAL MEMBER: Right. MS WILLIAMS: All I have to do is just go to the courthouse. THE TRIBUNAL MEMBER: No, madam. No, let's go back to housekeeping. You are here today to meet the allegations under section 87 whether your tenancy should be terminated or not. The matter was adjourned on the last occasion to allow you to get representation, witnesses and any evidence at all that you needed to rely upon. Have you done any of that? MS WILLIAMS: No, not as yet. THE TRIBUNAL MEMBER: Okay. Well, madam, then in that case your adjournment application is refused. MR A HAYDEN: She's being denied procedural fairness in this matter today." 21An exchange ensued between her ex-husband, Mr Hayden and the Tribunal Member, which it is unnecessary to outline. Ms Williams then explained the steps she had taken since the last hearing, with the assistance of people at the rehabilitation facility, to adhere to the directions made on the previous occasion, saying that she had too much on her plate to do all that was required. The first defendant confirmed that a copy of Ms Williams' evidence had been received. The Tribunal Member then proceeded with the hearing, taking the view that Ms Williams had had enough time to prepare. 22Ms Williams gave evidence and she called evidence from her son. Much of that evidence was given in response to questions put to them by the Tribunal member The Tribunal Member also asked certain questions of Mr Ewan and then Ms Williams called Mr Hayden. Before he gave his evidence the Tribunal member addressed him, observing: "THE TRIBUNAL MEMBER: Q. Now, we were in particular - and I read it out again because, as I said to your son, that thresholds are quite low: Not to cause or permit a nuisance and not to interfere or cause or permit interference with the reasonable peace, comfort or privacy of neighbours. I don't think privacy is one of the issues here - well, it's peace and comfort, really, that we're concentrating on. So it's not really necessary to go back to 2010 but we're concentrating on incidents centring around 12 December 2011 which gave rise to this particular notice of termination. So it's actually not relevant the history - I mean, it is but it's not going to determine the issue today what happened two years ago -- Q. -- what happened between December and , say, now. So if you would like to address me on that. A. Absolutely. Well, first of all, I don't reside at the address --" 23Mr Hayden then gave his evidence, almost entirely by way of response to the Tribunal Member's questions and her observations as to the matters of concern to her, which she said at one point was 'drunken behaviour in the common area', which she asked him to address and about which she asked questions. 24Ms Williams interrupted this questioning, to ask Mr Hayden to identify which daughter he was referring to. He concluded by giving further short evidence, without further questioning by the Tribunal Member. Ms Williams then called evidence from her son's girlfriend. Again, that evidence was given by way of answers to the Tribunal Member's questioning. The first defendant was not asked, nor did it seek the opportunity to cross-examine Ms Williams, or any of her witnesses. Nor was Ms Williams called on to make any submissions, as the first defendant had been. Nor was the first defendant given an opportunity to reply or make submissions about the evidence Ms Williams had called. 25When the evidence concluded the Tribunal Member said: "THE TRIBUNAL MEMBER: Ms Williams, do you want to come back and take a seat next to Mr Ewan. Okay, if I might just sum up with what's now happened. You tendered evidence that both the - can I have those back. Do you still need them? And I think that they are a summary document of most of the events that were given on the last occasion and also your rehabilitation report. Now, can I ask this: you were released from Kedesh on 18 May. This incident that was the most recent incident, which date was that, which is the -- MS O'NEILL: That was Saturday night, the 19th. THE TRIBUNAL MEMBER: There wasn't the 18th (indistinct). MS O'NEILL: No, it's earlier, earlier. MS WILLIAMS: I can answer that. MS O'NEILL: It's about -- MS WILLIAMS: The 7th, 7th. THE TRIBUNAL MEMBER: Is that a typo? It says "Dates of treatment": Reasons for referral: enters Kedesh rehabilitation on 27/3 and dates of treatment 27 March to 18 May. MS O'NEILL: What is the date of that document? THE TRIBUNAL MEMBER: This document is dated -- MS O'NEILL: Because I know Ms Williams left a bit early because there was an issue about her smoking and they discharged her from the program. THE TRIBUNAL MEMBER: When do you think you came out? MS O'NEIL: I think it was the 7th. THE TRIBUNAL MEMBER: When were you -- MS WILLIAMS: It as about the 7th. THE TRIBUNAL MEMBER: All right. MS WILLIAMS: 7 May. THE TRIBUNAL MEMBER: All right. So that was the program and then on the 19th things got a bit heated at home." 26The Tribunal Member then immediately gave her decision, observing that she was of the view that a lot of the issues pertaining to AVOs were 'really not relevant'. She observed that she was concerned about behaviour that disturbs the peace and that she had: "... formed the view that you do that and I have formed the view that I would accept the witnesses that gave evidence on the last occasion. I have taken very big note of the fact that three of those witnesses that gave evidence on the last occasion have been - I don't want to use the word "accused", I'm trying to find non - there seems to be a bit of a tit for tat going on but there are also other people who are involved in this who seem to be perfectly innocent who get rolled up in it because of your behaviour and I have in particular in mind the incredibly compelling for me evidence of Ms Kearnes who gave evidence that she comes home and is told by you when you were drunk that she's a low life." 27Ms Williams interrupted at this point and an exchange ensued: "MS WILLIAMS: Oh, yes, that's another thing I'd dispute. I'd never say that to an elderly woman. THE TRIBUNAL MEMBER: Said gave evidence that you say that to her every single time she comes home and she was not one of the - - MS WILLIAMS: That's so untrue. THE TRIBUNAL MEMBER: and she was not one of the people who, you know, apparently throw oranges at your children or -- MS WILLIAMS: No, she doesn't. I never said she did." 28The decision then resumed: "THE TRIBUNAL MEMBER: Right, okay. I'm going to terminate your tenancy today. I'm not satisfied that you have taken the opportunity to present evidence that would convince me otherwise. I think that you have persistently and constantly breached the peace in the area of where you live and that was usually possible caused through alcohol, I don't know, I'm not a psychiatrist and you haven't tendered anything on that matter, other than the Kedesh report but unfortunately the Kedesh report finish on - says that you had rehab and you say "That's now all over, I don't drink anymore" and then there is an incident that breaches the peace on the 20th of this month, So, It's not --" 29This led to further interjections: "MS WILLIAMS: That wasn't caused by drinking. THE TRIBUNAL MEMBER: Okay. MR A HAYDEN: That's an allegation. MR E HAYDEN: It is an allegation and she had to be tested for -- " 30The decision then continued: "THE TRIBUNAL MEMBER: Okay. Madam, I have never heard a claim of this nature where so many people come and give evidence about how the peace is breached, never. It is an extraordinary case to the amount of people who want to come and say "You breach our peace and you do it consistently". We usually just get no witnesses, just a piece of paper from someone saying, you know - but I am persuaded by the weight of the evidence against you by all the people who gave evidence and not just the three who are single there are - there's the persons who - you know, I would find there is a bit of a tit for tat going on. There are others who are not involved in that. I'm flagging that for your - because I think it's fair for you to know where this is heading but I am going to terminate the tenancy. What I need to hear from you and I need to maybe, Mr Ewan, again take a short adjournment but I need to hear from you how long. I have concerns that if you go back there today that you will - I don't want to terminate immediately, I'm thinking two weeks. Even people with much younger children than yours usually don't get longer than that if there's a breach of a residential tenancy agreement. Usually in your situation it's an immediate termination that is sought and I have concerns that if you go back to live there, even for two weeks, that things will escalate horribly for you and for others. So I'm thinking two weeks. Do you want to be heard?" 31Having dealt with these matters, the Tribunal member finally announced that she was going to terminate Ms Williams' tenancy that day, for reasons which she explained. She then heard the parties on the form of the order to be made. 32The Tribunal Member later returned to her reasons, observing that she wished to make it perfectly clear that she was 'distinctly ruling out the evidence of' three witnesses who she identified 'because of the tit for tat allegations', observing that: "I just want you to know that I'm not accepting everything I hear today entirely at face value but the compounded evidence of the seven people we heard from has swayed me in this direction. I have listened to you and I have listened to your family in respect of the allegations that this goes two ways but that actually brings me further to the conclusion that it is actually in the best interests of all parties that this tenancy be terminated" 33The Tribunal Member later gave written reasons for her decision. There she observed that the hearing had been adjourned for six weeks to allow Ms Williams to prepare her case in reply and that she had not complied with orders that she provide the documents she wished to rely on, to the first defendant and the Tribunal. No reference was made to Ms Williams' explanation as to why she had not done so. In relation to the adjournment application pressed by Ms Williams on 23 May, it was observed that 'Having regard to the fact that none of the directions given on the last occasion were complied with, and as no reasonable explanation was given by the respondent explaining her non-compliance, the application for adjournment was refused'. 34The Tribunal Member then referred to the written statements on which Ms Williams had relied, noting that she did not deny various incidents, but that she claimed that she had been provoked by other tenants and that her claim was that she was the victim of others. The Tribunal Member noted the existence of AVO orders, in some of which Ms Williams was named as the victim and others the aggressor and she also noted that various related matters were part-heard in the Local Court. The Tribunal member noted Mr Hayden's evidence that Ms Williams had acted in self defence and that while she had taken this into account, she had not given it much weight. After referring to the supportive evidence given by Ms Williams' son and his girlfriend, the Tribunal Member observed: "I accept the witnesses and in this regard. In coming to my decision I propose to not afford much weight to the evidence of those three witnesses who are in constant conflict with the respondent and who are on opposing sides of various apprehended violent orders which are taken out against the respondent and the respondent's family and base my decision solely on those witnesses who are peripheral to the conflict and in particular the evidence by the nurse and the mother of a young daughter who is affected by the respondent's behaviour." 35The Tribunal member then made a number of factual findings in relation to events of 12 December and noted a report of 7 April from the rehabilitation facility and an incident on 19 April. The Tribunal Member concluded that there had been a breach of the tenancy agreement justifying termination of the tenancy, which had not been remedied. Orders for termination and possession of the property were made. 36Ms Williams later unsuccessfully sought a rehearing of the application, complaining under s 68 of the Consumer, Trader and Tenancy Tribunal Act, that the Tribunal's decision had not been fair and equitable, because she did not have time to prepare for the hearing and could not dispute the witnesses' statements. In refusing that application, it was noted that there had been no change in Ms Williams' circumstances and that bail conditions prevented her from residing at the premises. 37A warrant for the enforcement of the Tribunal's order was then taken out by the defendant. The orders earlier made in these proceedings prevent the first defendant from enforcing that warrant, until further order of the Court. The statutory scheme 38The obligations imposed on the Tribunal as to the way in which proceedings before it are to be conducted, are those provided in s 28 of the Consumer, Trader and Tenancy Tribunal Act. It provides: "28 Procedure of Tribunal generally (1) The Tribunal may, subject to this Act, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand: (a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings. (5) The Tribunal: (a) is to act as expeditiously as is practicable, and (b) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing-may require the presentation of the respective cases of the parties in proceedings to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (g) may dismiss any proceedings if the applicant fails to attend a hearing, and (h) must, if requested by the applicant, allow the applicant to withdraw the application, and (i) may dismiss any proceedings if it considers the proceedings to be frivolous or vexatious or for any other reason that appears to it sufficient, and (j) may order that any proceedings are to be stayed." 39Section 29(4) empowers Tribunal Members to give procedural directions 'that, in the opinion of the member, will enable costs to be reduced and will help to achieve a prompt hearing of the matters in issue between the parties in the proceedings'. 40Section 35 requires the Tribunal to give a reasonable opportunity 'to call or give evidence and otherwise present the party's case' and to make submissions in relation to the issues in the proceedings. Section 36 permits a party to be represented, if an application for permission to be represented is made and granted. Regulation 14 of the Consumer, Trader and Tenancy Tribunal Regulation 2009 permits a party to seek such permission in circumstances which include in (j), if the party is a government agency and is to be represented by an officer of that or any other government agency; in (p), if another party in the proceedings is a government agency; and in (q), if the Tribunal is of the opinion that the party would be placed at a disadvantage if not represented at the hearing. 41Section 39 of the Act empowers Tribunal Members to examine witnesses on oath and also to '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' (s 39(1)(c)). 42All of these provisions must be considered in the context of the provisions made in s 3, which provides: "3 Objects of Act The objects of this Act are as follows: (a) to establish a Consumer, Trader and Tenancy Tribunal to determine disputes in relation to matters over which it has jurisdiction, (b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, (c) to enable proceedings to be determined in an informal, expeditious and inexpensive manner, (d) to ensure the quality and consistency of the Tribunal's decision-making." Denial of procedural fairness 43For its part the first defendant urged the view that like the conclusion reached in Elabbas v CTTT [2007] NSWSC 878 at [48], it would be concluded in this case that the Tribunal Member had outlined the procedure to be followed and had ensured that the parties were given a reasonable opportunity to give evidence and make submissions in relation to the issues in the proceedings. 44Given the course which the proceedings before the Tribunal took, that submission may simply not be accepted. 45It is well settled that in civil proceedings in a court, the right to cross-examine is an important one. In Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405 O'Keefe J observed: "30 There may, however, be cases in which the denial of an oral hearing or of the right to cross-examine may constitute a denial of natural justice. In determining whether or not that is so in a given case, it is necessary to consider the whole of the circumstances including the legislation, the general practice as understood by the parties and any acceptance by them as to the way in which the proceedings are to be conducted. The Practice Note to which reference has been made is material in this regard. It is for the relevant tribunal, in this case the Small Claims Division of the Local Court, to determine such matters in the light of its obligation to act fairly." 46As Young J discussed in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 22, it is the duty of a trial judge to ensure that all parties have a fair trial and that: "In carrying out his duties the trial judge must so exercise his discretion in and about the examination and cross-examination of witnesses that a fair trial is assured." 47While the proceedings here in question came before the Tribunal, rather than a court, given that this statutory scheme requires the Tribunal to adhere to rules of procedural fairness, and to act according to equity, good conscience and the substantial merits of the case, the importance of ensuring that Ms Williams had a fair opportunity to cross-examine the defendant's witnesses is apparent. At the least, she needed to be given some explanation of what the process was and why it was important. 48That is underscored when consideration is given to the fact that the power to examine and cross-examine witnesses given by s 39 of the Consumer, Trader and Tenancy Tribunal Act was one which the Tribunal Member plainly exercised in relation to witnesses Ms Williams called, but without explaining that this power was available to be exercised by the Tribunal. It is also relevant that it was not one exercised in the same way, in relation to the witnesses called by the defendant, a matter about which Ms Williams complained. The result of the approach adopted was that the evidence given by the defendant's witnesses was not explored or challenged, but the evidence which she called was closely examined by the Tribunal Member. 49That is an unusual approach to adopt in adversarial proceedings such as this, particularly where the first defendant was represented, but Ms Williams was not. It is not one about which the first defendant complains. It is Ms Williams who complains that by the approach adopted by the Tribunal Member, she was denied procedural fairness. Given that she was also not given the opportunity to make any submissions as to the case brought against her, as the first defendant had been, it is impossible to see that the approach adopted adhered to the statutory requirements governing the conduct of these proceedings. 50What procedural fairness in proceedings before the Tribunal requires, has been repeatedly considered. In Italiano v Carbone [2005] NSWCA 177, Einstein J observed under the heading 'The measure of natural justice which the Act requires to be observed': "145 These submissions raise the question of the measure of natural justice which the Act requires to be observed by the CTTT. Clearly enough the critical parameter in terms of procedures required to be followed can only be discerned from the express and implied provisions of the Act. The proper approach was put in the following terms by Kitto AJ in Mobil Oil Australia Pty Ltd v the Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504: "Even if the Board is bound in law to act "in the spirit and with the sense of responsibility of a tribunal whose duty is to mete out justice" (to quote Lord Haldane's words in Local Government Board v. Arlidge [1915 AC 120, at p 132) it does not follow (and his Lordship proceeded immediately to say so) that the procedure of each such tribunal must be the same: "what that procedure is to be in detail must depend on the nature of the tribunal" (1915) AC, at p 132. And notwithstanding what Lord Loreburn said in Board of Education v. Rice (1911) AC 179 about "always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view" (1911) AC, at p 182, the books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin [1963] 2 WLR 935, at p 947. As Tucker L.J. said in Russell v. Duke of Norfolk [1949] 1 All ER 109, in a passage approved by the Privy Council in University of Ceylon v. Fernando [1960] 1 All ER 631, at p 637, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: "the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth" (1949) 1 All ER, at p 118 . What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business." [emphasis added] 146 The CTT Act in section 28 exhibits a clear intent that the CTTT, subject to the Act, may determine its own procedures and is to act with as little formality as the circumstances of the case permit according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. As Lord Shaw observed in Local Government Board v Arlidge [1915] AC 120 at 138: "[T]he assumption that the methods of natural justice are ex necessitate those of courts of justice is wholly unfounded." 147 However there are some aspects of the procedures which require to be seen to have been observed, preferably formally. The record does require a clear identification of the parties. There must be no doubt as to the identity of the applicant. There must be no doubt as to the identity of the respondent. Notice of an application requires to be served on the respondent. Where a party applies for an amendment to an application, appropriate notice requires to first be given to the respondent and the application to amend amendment requires thereafter to be considered and if granted, should be made by order of the CTTT. Whilst a considerable degree of informality is clearly permissible [cf section 43 (3)], the above described procedures centrally go to the record and are basic to the fundamental requirement entitling each party to be aware of the identity of the parties and of the nature of the case made against them. 148 Where as here, a complaint amounts to a denial of procedural fairness, the Court is not dealing with fairness as an abstract concept. As was put by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam [2003] 214 CLR 1 (at [37]): "[Fairness] is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 149 In some cases the manner in which the parties and the CTTT conduct proceedings may show that albeit that some procedures are not formally observed, the parties by their conduct may be taken to have implicitly accepted that further compliance with suggested formalities was otherwise waived. The real question concerns whether any and if so which procedural step requires to be strictly observed in the absence of which the proceedings are a nullity." 51It is impossible to conclude in this case that Ms Williams was given procedural fairness or that practical injustice was avoided. 52What must be done in circumstances where a party to the proceedings appears unrepresented, has been repeatedly considered. In Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362, it was observed, for example: "54 The obligations of a court or tribunal to ensure that an unrepresented party understands the procedural aspects of the matter was discussed by the High Court in MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512. In that case, the High Court stated that giving full weight to the adversary character of a criminal proceeding, the trial judge's primary obligation remained to ensure that the accused had a fair trial: per Mason J at 534. See also King v The Queen [2003] HCA 42; (2003) 215 CLR 150 at 179-180 [95] per Kirby J. 55 In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 July 1986, unreported), Samuels JA stated that: "In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent." 56 This passage was adopted by the Full Court of the Federal Court in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at 446 [28]. The Court noted, however, at 445 [27], that the duty of a trial judge might be more extensive in criminal proceedings, as compared to civil proceedings: see also Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943; (2006) 91 ALD 362." 53In that case it was concluded at [57] that: "... the Deputy Chairperson of the Tribunal explained, to the extent it was appropriate, what was occurring during the course of the proceedings. In this regard, I am of the opinion that the Deputy Chairperson satisfied the obligation of a presiding judicial officer where a person does not have legal representation. The principles that govern the obligation of a judicial officer in such circumstances was discussed in Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 at [147]-[155]; McMurtrie v Commonwealth of Australia [2006] NSWCA 148 at [46]-[48]; and Minogue v Human Rights and Equal Opportunity Commission at 445-446 [26]-[29]." 54In this case, that conclusion is not available. Ms Williams was not given an appropriate explanation of what cross-examination involves, nor was she given an opportunity to make submissions. 55In Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 the obligations to an unrepresented litigant were explained by reference to the admittedly more onerous obligations which arise in criminal proceedings. It was there observed: "150 The need for a trial judge to ensure that an unrepresented party understands the procedural options available to him or her has also been considered in the context of the criminal trial. In MacPherson v The Queen (1981) 147 CLR 512, the High Court considered the view of the Court of Criminal Appeal that "there was no obligation on the trial judge to advise the applicant that he might object to the confessional evidence, and might seek to test its admissibility on a voir dire": at 523, per Gibbs CJ and Wilson J. Their Honours continued: "It was suggested that a judge who advised an accused person in this way would be assuming the role of an advocate, and that in any case he could not effectively advise the accused on such a matter, and that if the accused were persuaded to seek a voir dire the result might be to his disadvantage." 151 Their Honours rejected that approach at 524: "However, there should be no difficulty in explaining to an accused person (in the absence of a jury) that it is necessary for the judge to hear evidence in the absence of the jury to enable him to decide whether the evidence of the confession should be admitted, that the accused may cross-examine the Crown witnesses and give and call evidence himself on the issue of voluntariness, that if he does give evidence he may be cross-examined, and that his answers on cross-examination may be used against him on the trial. It would be wrong to think that a judge who explained to an accused person the choices open to him would be playing the part of an advocate - he would be performing his duty as a judge by informing the accused of his rights in relation to the conduct of the trial." 152 Mason J in MacPherson expressed a similar view (at 534): "Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial. Once an issue as to the voluntariness of a confession arises fairness to the accused suggests that he should be acquainted with his right to a voir dire hearing. If he is left in ignorance of it he loses a valuable opportunity of testing the admissibility of the evidence, an opportunity which is often availed of by counsel for the accused. A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'." 56It was concluded that the conduct of the trial in that case revealed sufficient unfairness to demonstrate a miscarriage. This, it seems to me, is a similar situation, notwithstanding the more informal processes operating in this Tribunal. 57It is also relevant to consider that it is well settled, as discussed by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, that 'A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case'. 58Under the Act the Tribunal had a discretion as to whether or not to accept Ms Williams' various adjournment applications. The discretion had to be exercised under s 29, according to considerations of equity and good conscience; ensuring that Ms Williams was afforded procedural fairness and under s 35 that she had a reasonable opportunity to present her case and make submissions. Of necessity that required consideration to be given to the fact that the first defendant was represented in the proceedings and she was not. 59Her initial applications were refused, even though Ms Williams had been obliged to participate in a residential rehabilitation programme, as a condition of bail, with the result that she was not able to comply with the Tribunal's directions as to the service of her evidence, or to prepare for the proceedings and where representation which she understood had been arranged for her for the hearing on 11 April, had not materialised. At the adjourned hearing on 23 May she informed the Tribunal member that Mr Ewan was not there to represent her, which Mr Ewan confirmed and again, she was forced to proceed, representing herself, albeit the Tribunal Member dealt with Mr Ewan on some occasions as if he were representing Ms Williams. 60This situation not only now raises the question of whether Ms Williams was given an opportunity of adequately presenting her case, before the Tribunal at the time of the hearings, it raised the obligation to take care to ensure that Ms Williams was given procedural fairness. In the circumstances of this statutory scheme, that required amongst other things, that she be given some basic explanation of the processes to be pursued at the hearing and what they entailed, particularly in relation to cross-examination. It also required that the parties be treated in an even handed manner, if the requirements of equity and good conscience were to be observed. That did not occur. 61It was not until the second witness called by the first defendant had given his evidence, that the Tribunal Member raised with Ms Williams the possibility of cross-examination. Having omitted to make any mention of that possibility beforehand and having not given her that opportunity in respect of the first witness, the Tribunal Member did not tell Ms Williams anything about the value or purpose of such questioning, namely in order to challenge the evidence being given by the defendant's witnesses as being as untruthful or unreliable, to provide a basis for a later submission that it should be rejected. Ms Williams was simply told that she could ask questions, which she said she did not wish to do. 62The approach adopted left Ms Williams in ignorance of a fundamental procedure which, if invoked, may have proven to be of real advantage to her. The way in which the proceedings then unfolded, exacerbated the problem which had arisen. 63The first defendant called the rest of its witnesses, they being asked no questions by anyone; Ms Williams and her witnesses largely gave their evidence by being questioned by the Tribunal Member, as to matters of interest to her, rather than by being asked questions by Ms Williams. Having not been given the opportunity to make any submissions, Ms Williams' protests, while the oral decision was being delivered, that she disputed things which had been said by the defendant's witnesses, clearly revealed that she had not had either necessary knowledge, or understanding of the importance of testing the defendant's witnesses, in relation to the matters which were in dispute. What was clear from Ms Williams' objections as the oral reasons were being delivered, was that not only had she not been given an opportunity to put her case, there were aspects of the evidence of other witnesses with which she disagreed, but which she had not tested, by any cross-examination. 64It is apparent from the Tribunal Member's variously given decisions, that she became conscious of the difficulty which had resulted from the way in which the hearings had been conducted. The Tribunal Member attempted to deal with this, by 'ruling out' the evidence given by certain of the defendant's witnesses. 65Ms Williams had not made any such application and the first defendant was not heard in relation to that approach being adopted. Had the parties been invited to make submissions about this approach, as they clearly ought to have been, Ms Williams might have made the obvious submission that other witnesses called by the first defendant should also not be believed. 66It is apparent that the steps which the Tribunal Member explained she would take, when the oral reasons were given, in order to attempt to address the problem which it was appreciated had arisen, were inadequate and could not cure the difficulty which had resulted from the unfair procedures adopted to that point. They were clearly not practically fair and could not ensure that Ms Williams was given a reasonable opportunity to put her case. 67The right to cross-examine had been raised only belatedly with Ms Williams and in such a way that it cannot fairly be concluded that the circumstances in which she waived her right, ensured that she received procedural fairness. Her case on appeal, that she did not understand the procedure, or its importance and with no legal experience and no explanation of the process or its purpose, that she was not able to cross-examine, when forced to appear unrepresented, must be accepted. The result of the process adopted was that untested evidence given by the defendant's witnesses as to crucial matters, came to form the foundation of the Tribunal's decision. 68Contrary to the defendant's submissions, Mr Ewan did not appear for Ms Williams at the second hearing, when the first defendant called its final witness, even though the Tribunal Member addressed both him and Mr Hayden, at various points of the hearing, as if they were representing her. The Act only envisages representation by permission applied for and granted. That did not occur, in relation to either of them. 69Further, also contrary to the defendant's submission, the Tribunal Member did not conclude on 11 April that Ms Williams should be represented by a tenancy advisory service representative. Had such an advocate been present, leave may have been granted, but the Tribunal Member determined that Ms Williams had to proceed unrepresented. It was at the conclusion of the first day's hearing that the Tribunal Member urged Ms Williams to seek representation. At the rescheduled hearing Mr Ewan made clear that he was not present to represent Ms Williams, but only to advise and assist her. Still the Tribunal Member refused her adjournment application that day, notwithstanding her intervening difficulties in preparing for the resumed hearing. 70Had it been that the Tribunal Member had decided on the first day that Ms Williams should be given leave to be represented, a refusal to adjourn the hearing when the representative did not attend as expected, would have been plainly unjust and inconsistent with the obligation to provide procedural fairness and to act according to equity and good conscience. 71The first defendant relied on Hoeben J's observation In Brennan v Consumer, Trader & Tenancy Tribunal [2010] NSWSC 1240 at [48] to submit that the presence of a representative for Ms Williams at the hearing on 11 April would not have made any difference to the outcome of the proceedings. His Honour there observed: "48 As Italiano v Carbone demonstrates, the supervisory power of this Court can be exercised to intervene where procedural unfairness occurs in proceedings before an inferior Tribunal. The question remains, however, whether the Court should intervene. In other words would the attendance of the plaintiff have made any difference to the outcome?" 72It was argued that the presence of a representative could have made no difference to the decision to terminate Ms Williams' tenancy, because of the Tribunal Member's decision not to pay any regard to the evidence of three particular witnesses. That submission may not be accepted. 73It is apparent that Ms Williams disputed not only the evidence of the three witnesses whose evidence was disregarded, but also the evidence of the witnesses on whom the Tribunal Member's decision rested. The presence of a representative would have ensured that the evidence of all of the defendant's witnesses was tested; it would have ensured that the evidence led for Ms Williams, was directed to her case, rather than being dictated by the questions asked by the Tribunal Member as to the matters she identified were of concern to her; and that Ms Williams was given an opportunity to make submissions. 74In Mikel v Dudley [2008] NSWSC 1090, a complaint was also made that the Tribunal had prevented the plaintiff from cross-examining a witness and that by reason of the Tribunal's conduct of the proceedings, he was denied procedural fairness. Hall J there concluded that in the circumstances there had been no denial of procedural fairness, because he was satisfied that cross-examination of the witness on any of the relevant issues would, in no way, have conflicted with or prevented findings being made by the Tribunal as to matters which fell for determination, in relation to an implied warranty which bound the plaintiff. In the result there was no injustice in the approach taken by the Tribunal to the cross-examination of the witness. In reaching that conclusion, Hall J referred to the judgment of Sackville J in Prentice v Cummins (No 6) [2003] FCA 1002, where his Honour also discussed questions of injustice in the approach taken to cross-examination and its curtailment. 75This was a very different case. The need for an opportunity to cross-examine, if there was to be a fair hearing, given the factual issues lying between these parties, was correctly recognised by the Tribunal member, albeit belatedly. Having determined that Ms Williams had to proceed unrepresented, the Tribunal Member had to ensure that Ms Williams was not only told that she could cross-examine witnesses, but also that she was given some explanation of what that involved and why it was important that it be pursued and that she had a real opportunity to put her submissions. 76Ms Williams had to represent herself at a hearing for which she had been released from the rehabilitation facility to attend on day release. If procedural fairness was to be ensured in the circumstances which had arisen, the Tribunal Member having refused to adjourn the hearing, even though Ms Williams had obvious difficulties in preparing for the hearing, she had to be given some understanding of what cross-examination was, before she was required to indicate whether she wished to exercise the right, or being expected to undertake the process. 77The first defendant submitted that the Tribunal Member's decision ultimately rested on evidence that Ms Williams had been arrested on 19 April, when intoxicated, for breach of apprehended violence orders. It is unnecessary to determine whether or not that it is so. The merits of the decision do not arise for consideration in these proceedings. What arises for determination is whether or not Ms Williams was afforded the procedural fairness the Tribunal was obliged to ensure she received. 78Like the conclusion reached by Hoeben J in O'Hara v Consumer Trader and Tenancy Tribunal & Ors [2007] NSWSC 663, this is a case where despite the significant degree of flexibility which the Tribunal has in determining the manner in which proceedings before it will be conducted, it failed to comply with the requirements imposed upon it by s 28 and s 35. Those obligations are expressed in obligatory language. 79In the result the orders sought by Ms Williams must be made. Costs 80The usual order is costs follow the event. As an unrepresented litigant, Ms Williams is entitled to an order in her favour as to her expenses, but not any costs. Orders 81For these reasons I order that: 1. The Tribunal's decision of 23 May 2012 be set aside. 2. The first defendant bear Ms Williams' expenses of the proceedings, as agreed or assessed. ********** Amendments 04 November 2016 - [47] typographical error 'consciousness' amended to 'conscience' 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: 04 November 2016