Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McDonald v NSW Land and Housing Corporation [2015] NSWCATAP 163 Hearing dates: 24 July 2015 Date of orders: 11 August 2015 Decision date: 11 August 2015 Jurisdiction: Appeal Panel Before: Dr J Renwick SC, Senior Member M Anderson, Senior Member Decision: (1) Leave is refused. (2) Appeal is otherwise dismissed. Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL - Tenant's rights to privacy and quiet enjoyment – no issue of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancy Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Spathis v Hanave Investments Co Pty Ltd [2002] NSWSC 304 Texts Cited: None Category: Principal judgment Parties: Mark McDonald (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Mr Galitsky, of counsel, instructed by Haylen McKenzie & Co Solicitors for the Appellant Mr O'Connor of counsel, instructed by Ms Hook, Family & Community Services – Housing NSW for the Respondent File Number(s): AP 15/26593 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: [2015] NSWCAT Date of Decision: 08 April 2015 Before: M Gilson, General Member File Number(s): SH 14/46946 REASONS FOR Decision Introduction 1. Mark McDonald (the tenant), occupies residential premises in an apartment building in Port Macquarie owned by the NSW Land and Housing Corporation (the landlord). He entered into a standard form residential tenancy agreement with the landlord. With the landlord's approval (or at least acquiescence) he planted trees and shrubs on land adjoining, but outside the boundaries of, his rented lot. Later, the Landlord's agents either severely pruned, or removed and then replaced, some of those trees and shrubs. The tenant was aggrieved and approached this Tribunal for orders that he was thereby denied his contractual rights to privacy and to quiet enjoyment of his lot, consequential damages, and also certain findings against an officer of the respondent. The Tribunal dismissed all his claims. He appeals or seeks leave to appeal from those orders. For the reasons which follow, we would refuse to grant leave to appeal and otherwise dismiss the appeal. Facts 1. On 25 September 2006, the landlord and tenant entered into a written residential tenancy agreement over premises at Port Macquarie. A standard condition of the agreement clause 6 provided: "The landlord agrees: 6.1 That the tenant will have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord, or having superior title to that of the landlord. 6.2 That the landlord or the landlord's agent will not interfere, or cause or permit interference with the reasonable price, comfort or privacy of the tenant in using the premises." 1. Also of relevance are two provisions in the Residential Tenancy Act, namely ss 50(1) and (2) and 63, which provide: "50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. 63 Landlord's general obligation (1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. (2) A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises. (3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part. (4) This section is a term of every residential tenancy agreement." 1. It appears to be common ground that in 2009, the tenant, with the consent (or at least acquiescence) of the landlord, remediated an area of common property, that is to say, property owned by the landlord but not part of the particular residential tenancy lot and planted lawn, shrubs and trees, and cared for them. In 2014, a contractor for the landlord, whilst undertaking maintenance work in that area, damaged a number of shrubs and trees. The landlord contended it had taken prompt action to replant in the area. The tenant agrees that there has been replanting, but claims that the replacements are neither advanced nor mature, and that he thereby lost his contractual rights to privacy or quiet enjoyment. 2. The matter came before the Tribunal below. The Tribunal rejected an argument put at the hearing below that, by reason of the consent by the landlord to the tenant planting the trees and shrubs, he thereby obtained a right or interest in the common property area. Mr Galitsky of counsel, who now appears on the appeal for the tenant, said he did not now seek to challenge that finding, so we say no more about it. 3. Although other grounds of appeal are contained in the written notice of appeal, before us, two narrow grounds only were pressed. The first ground was that the Tribunal below had denied the tenant procedural fairness because, it was said, the Tribunal refused to consider submissions founded on a decision of Campbell J in Spathis v Hanave Investments Co Pty Ltd [2002] NSWSC 304 and refused to receive a copy of that case. An examination of the transcript of the Tribunal hearing particularly at page 14 shows that the factual premise for this submission is incorrect and the ground thus fails at the outset. In short, the Tribunal was aware of the Spathis decision. The Tribunal received submissions about it. 4. That left essentially a narrow challenge to the underlined portion of paragraph 20 of the Tribunal's reasons. It reads: "[20] The evidence causes me to hold that in the process of maintaining the complex and the residential premises, as required under the RT Act, the respondent has caused damage to a number of shrubs and trees located on common property, however the respondent has taken prompt action to replant in the area. In all the circumstances, I conclude that a breach of quiet enjoyment cannot arise from the respondent's actions to carry out a statutory obligation established by the RT Act." (emphasis added) 1. Under pressure of argument, Mr Galitsky disclaimed any intention to assert that there was an error of law arising from the identified conclusion in paragraph 20. Rather, he sought leave to appeal, but not on the basis that there was new evidence, or because any finding referred to in paragraph 20 was against the weight of evidence, but rather that this finding was not 'fair or equitable', and that there was a resulting substantial miscarriage of justice. 2. The Tribunal, the composition of which included the President, enunciated the correct test for a grant of leave in those circumstances in Collins v Urban [2014] NSWCATAP 17 of which the following paragraphs are presently apt: "Leave to Appeal from Decisions of the Consumer and Commercial Division 65 The Panel now turns to the question of whether the appellant should be granted leave to appeal in this matter where the decision appealed from was made by the Consumer and Commercial Division of the Tribunal. 66 In the case of an application for leave to appeal from a decision of the Consumer and Commercial Division, under cl 12(1) of Schedule 4 of the Act, the Appeal Panel's discretion to grant leave is only enlivened if the Panel is satisfied that: the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 67 This clause appears to be based on the provisions of s 68(2) in the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) which permitted that tribunal to grant a rehearing if the applicant may have suffered a substantial injustice because of one or more the bases listed in that subsection were made out. Those bases were in substance the same as the 3 bases identified in cl 12. The significant difference between cl 12 and s 68 is that cl 12(1) requires that the appellant may have suffered "a substantial miscarriage of justice" rather than "a substantial injustice" as appeared in s 68(2). 68 Clause 12 does not require that the Appeal Panel must be satisfied that the appellant has actually suffered a substantial miscarriage of justice. All that is required is that the appellant "may" have suffered such a miscarriage. 69 The use of the expression "substantial miscarriage of justice" recalls the wording of the proviso to s (6)(1) of the Criminal Appeal Act 1912 (NSW) which is in the following terms: provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. 70 What constitutes a "substantial miscarriage of justice" in the context of s 6(1) was explained by the High Court in Mraz v The Queen (1955) 93 CLR 493 at 514: It [the proviso] ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried. (underlining added) 71 From this passage, it can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. 72 A similar understanding of a miscarriage of justice is evident in cases which relate to an application for a new trial based upon fresh evidence becoming available. In Gallagher v R (1986) 160 CLR 392, Gibbs CJ considered what degree of likelihood was required that a different, more favourable result would have been achieved in order for there to have been a miscarriage of justice. The Chief Justice rejected the approach that the "bare possibility" of such a result was sufficient as well as finding that it was too severe to require that a different result was "likely" or "would probably" have been achieved. Gibbs CJ, at 399, agreed with the view expressed by Mason and Deane JJ in that case (at 402): the ultimate question for decision by an appellate court when considering an application for a new trial on the ground of fresh evidence in the relevant sense, is, as the remarks of Rich and Dixon JJ. in Craig indicate, whether there has been a miscarriage of justice at the trial. The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial. (underlining added) 73 Notwithstanding his agreement with Mason and Deane JJ, Gibbs CJ went on to warn against too stringent a reliance upon particular words, in the following terms, at 399: However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial. 74 This indicates that there will be a substantial miscarriage of justice where the fresh evidence was such that there was a "significant possibility" that a different, more favourable result would have been achieved if the evidence had been before the Court. There does not appear to be any difference of consequence between a "significant possibility" and a "chance which was fairly open" (to use the expression adopted in Mraz) of achieving a more favourable result. 75 The conclusion and the reasoning in Gallagher are directly applicable to cl 12(1)(c) which relates to a substantial miscarriage of justice because significant new evidence has arisen, being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. There is no reason of principle why it would not be appropriate to adopt the same approach in relation to the other aspects of cl 12(1). 76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which wasfairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. Leave to Appeal - General Principles on the Grant of Leave 80 If the Appeal Panel is satisfied that the applicant for leave to appeal from a decision of the Consumer and Commercial may have suffered a substantial miscarriage of justice on one of the grounds identified in cl 12(1)(a), (b) or (c), then the Panel "may" grant leave under s 80(2)(b) of the Act. 81 Thus, even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12 of Schedule 4 to the Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 82 The principles which govern the granting of leave to appeal by the Appeal Panel under s 80(2)(b) should generally be consistent with those which are applied by Courts when considering the question of leave to appeal. These have recently been summarised by the Court of Appeal in BHP Billiton Ltd v Dunning [2013] NSWCA 421. In addition, the Supreme Court has considered the principles which apply when granting leave to appeal to the Court from a decision of the Guardianship Tribunal in a number of cases including SAB v SEM [2013] NSWSC 253. The Guardianship Tribunal has now been absorbed into the Tribunal as the Guardianship Division. As there are alternate rights of appeal from decisions of the Guardianship Division to the Supreme Court or the Appeal Panel (see cll 12 to 14 of Schedule 6 to the Act) both by leave in the case of interlocutory decisions or on grounds other than a question of law, the same principles should apply in deciding whether to grant leave to appeal to the Court or to the Appeal Panel. 83 Further, the Appeal Panel has addressed the relevant principles to be applied when deciding whether to grant leave to extend an appeal to the merits of the decision (under s 113(2) ofAdministrative Decisions Tribunal Act 1997 (NSW)) in Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10. These principles may be applied by analogy when considering whether to grant leave to appeal under s 80(2)(b) of the Act. 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate 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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there." 1. The decision there at paragraph 77 gave a non-exhaustive example of a decision being "not fair and equitable". We are not satisfied that it has been shown that the asserted error fits that description but even if so satisfied, we would not grant leave as none of the preconditions adverted to in [84] of Collins v Urban are present. 2. Our reasons for so concluding include the following. It was reasonably clear what the Tribunal was saying in paragraph 20, although there may have been some compression in the manner in which it was expressed. The factual challenge by the tenant to the conclusion that "the respondent has taken prompt action to replant in the area" is a finding of fact for which there was supporting evidence – indeed, it appears to be common ground that there was, in fact, prompt action to replant in the area. 3. Second, the finding concerns questions of impression and degree. The disagreement between the parties is based on the fact that the replacement plants were not the same size and did not immediately give the same shade and privacy as the previously existing plants. We can find no error in this – but assuming it were so, this would not amount to an interference with privacy and quiet enjoyment in breach of contract or statute. 4. As we read paragraph 20 as a whole, the Tribunal is stating that what occurred in this case was maintenance authorised and required by s 63 of the RT Act, which was reasonable in all the circumstances; and so that those actions did not amount to a breach of the right to quiet enjoyment. 5. We do not read paragraph 20 as meaning that in every case, maintenance being carried out precludes a finding of a breach of clause 6 of the lease or s 50(1) and (2) of the RT Act. The use of the words "in all the circumstances" establishes that the decision in this case turns on its own particular facts. The reasons do not establish a general principle about what maintenance may occur without interfering with a tenant's right to privacy or to quiet enjoyment. 6. Thus, we conclude there is no error of law (indeed more was asserted on this ground), and we decline to grant leave to appeal, because there is neither a substantial miscarriage of justice nor is the error on the identified portion of paragraph 20 a matter which shows the decision was not fair and equitable. 7. In the circumstances, we decline to grant leave to appeal and otherwise dismiss the appeal. ****** 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: 11 August 2015