Schmitzer v Donnellan [2016] NSWCATCD 22

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Schmitzer v Donnellan [2016] NSWCATCD 22 Hearing dates: 20 January 2016 Date of orders: 20 January 2016 Decision date: 16 March 2016 Jurisdiction: Consumer and Commercial Division Before: M Harrowell, Principal Member Decision: (1) Written reasons pursuant to Section 62(2) of the Civil and Administrative Tribunal Act 2013 Other orders: (2) The Tribunal directs that a copy of these reasons is to be provided to the respondent, Suzanne Donnellan, at the post office box at Tweed Heads recorded in the Statement of Claim attached to the respondent's correspondence dated 24 February 2016 and at the post office box address in Armidale recorded in the applicant's original application. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act, 2010 Residential Tenancies Regulation, 2010 Cases Cited: Gennacker Pty Ltd v Bennett [2016] NSWCATAP 10 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 Category: Procedural and other rulings Parties: Aaron Schmitzer (Applicant) Suzanne Donnellan (Respondent) Representation: Applicant: K Pankhurst, New England and Western Tenants Advice and Advocacy Service by telephone Respondent: S Donnellan by telephone File Number(s): RT 15/65636 Publication restriction: Nil

reasons for decision 1. These reasons relate to directions made by the Tribunal on 20 January 2016 and a request for written reasons made by Suzanne Donnellan, the respondent in application RT 15/65636. 2. The application for request for written reasons was made pursuant to s 62 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). That section provides: 62 Tribunal to give notice of decision and provide written reasons on request (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. 1. Section 5 defines a decision to include making, suspending, revoking or refusing to make an order or determination (s 5(1)(a)) and the doing or refusing to do any act or thing (s 5(1)(g)). 2. The request for written reasons was made by email from the respondent dated 17 February 2016. Relevantly, that email was in the following terms: I hereby request pursuant to section 62 of the Civil and Administrative Tribunal Act 2013 No 2 (NCAT Act) that, as the member who "presided" over the Hearing, you are hereby formally requested to provide full and proper reasons which fully comply with Section 62 and especially Section 62 (3) (a)-(c) for all of the decisions you made both during the hearing and outside of it as reflected in any orders that I have not received or otherwise. 1. Inter alia, the email in which the request was contained made the following further statements: NOTICE: This email address is temporary only and will be deleted immediately after this email is sent. It is therefore not monitored and no reply or return emails can be sent and none will be received. ...... Location for Sending reply to this Email request for Reasons pursuant to the NCAT Act The Tribunal is specifically directed to place the answer to this request on the Tribunal file and it will be accessed in accordance with the appropriate Tribunal policies. Please note that the anticipated likely excuse of the member to avoid complying with Section 62 of the NCAT Act simply because there is no "service address on file" will not be accepted or justified as not only am I entitled to obtain access to the material placed on the file in accordance with the Tribunal viewing procedures upon which I intend to rely at my discretion and election at a time of my choosing, but Section 62 does not excuse the member from compliance simply because there is no address for service. 1. These reasons set out the reasons for the Tribunal in making the directions. They also contain the reasons for making the direction in connection with the provision of these reasons to the respondent. 2. For the purpose of providing these reasons it is necessary to set out a brief history of the dispute between the parties which is relevant to understanding what directions have been made and why. 3. It is also relevant to record the Tribunal has accessed the audio recording of the directions hearing in preparing these reasons which has been transcribed.