Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Owen v Kim [2017] NSWCATAP 26 Hearing dates: On the papers Date of orders: 07 February 2017 Decision date: 07 February 2017 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member D Goldstein, Senior Member Decision: (1) The appellant is granted an extension of time of one day for the filing of the Notice of Appeal. (2) Leave to Appeal is refused. (3) The Appeal is dismissed Catchwords: Application for leave to appeal. What constitutes significant new evidence not reasonably available at the time the proceedings were dealt with Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Rules 2014 Residential Tenancies Act NSW 2010 Cases Cited: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Collins v Urban [2014] NSWCATAP 17 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 Category: Principal judgment Parties: Matthew Owen (Applicant) Jina Kim (Respondent) Representation: The Parties were unrepresented: File Number(s): AP 16/47884 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 20 October 2016 Before: S De Jersey File Number(s): RT 16/37862 Reasons for decision Background 1. On 4 November 2016 the appellant filed a Notice of Appeal in connection with a decision given in the Consumer and Commercial division of the Tribunal on 20 October 2016. 2. The Tribunal decision was given pursuant to the provisions of the Residential Tenancies Act NSW 2010. 3. Pursuant to Rule 25(4)(b) of the Civil and Administrative Rules 2014 the appellant was required to lodge his appeal within 14 days of the date he was notified of the decision. We have not been informed of when he was notified of the Tribunal decision. Assuming that he was notified of the decision on the date it was given, namely 20 October 2016, his appeal was lodged one day out of time. 4. In circumstances where the appellant may have been notified of the decision after the date it was given and where the appeal in any event was filed only one day late, we think that it is appropriate to grant the appellant a one day extension of time for the filing of his appeal pursuant to s 41 of the Civil and Administrative Tribunal Act 2013. 5. The respondent has not participated in these proceedings either before the Tribunal Member or before the Appeal Panel. 6. When the appeal was listed for call over on 1 December 2016, it was determined that subject to any submissions, the appeal would be determined on the papers without an oral hearing. 7. Neither party has requested an oral hearing. We have therefore determined the appeal in accordance with the orders made at call over, taking into consideration the material filed by the appellant, the application originally made to the Tribunal and the Tribunal's reasons for decision. Tribunal application and decision 1. The appellant's application was filed in the Tribunal on 19 August 2016. The appellant attached to his application a document which provided an 'Overview of Issue' and which set out the 'Orders Requested' and provided the 'Reasons for Requesting'. 2. The application arose from a tenancy agreement between the parties signed on 27 June 2016. Pursuant to that agreement, the appellant had exclusive use of one bedroom and the main bathroom in residential premises also occupied by the respondent, as well as shared use of other facilities. The rent was $350 per week, including utilities. The appellant paid a rental bond equivalent to four weeks rent, two weeks rent in advance and a key deposit of $150. 3. The appellant claimed that he was not told when he moved in that the respondent was not the legal owner of the premises or that the respondent had a cat. He also claimed that the respondent withdrew services and facilities, such as the use of lights, the television and heating facilities and was abusive when the appellant complained. In addition, the appellant claimed that the water temperature in the bathroom shower did not work properly. 4. As a result of these issues, the appellant gave notice to the respondent, stating that he would move out on 16 July 2016. In response, the respondent asked him to move out immediately. The appellant vacated the premises on 11 July 2016. 5. The orders sought by the appellant were described by the Tribunal Member as follows: 1. Return of key deposit and bond - totalling $1550. 2. Return of 2 weeks rent in advance - $700 3. Compensation for hotel 3 nights - $590 4. Compensation of $2400 for stress of the proceedings and exacerbation of mental health issues and full time study $2400 5. Compensation of $700 for couch surfing after leaving leased premises 6. Compensation of $500 for malicious attack on character 7. Compensation for inconvenience and cost of moving twice in one month, psychological impact, time spent in preparing the application and attending NCAT $750 8. Fines for the respondent's conduct $2200 1. The Tribunal Member provided detailed reasons which determined the application. The Statement of Reasons described the orders sought by the appellant and then provided reasons dealing with each of the orders sought. 2. In summary, the Tribunal found that: 1. The appellant was entitled to a refund of the rental bond and key deposit he paid to the respondent; 2. The appellant was not entitled to a full refund of two weeks rent, but was entitled to a total rent reduction of $100 per week for that period; 3. The respondent breached the tenancy agreement by requiring immediate possession and the appellant was entitled to compensation in the sum of $590, which expense the appellant incurred for three nights accommodation in a hotel; 4. The medical certificate provided by the appellant did not establish that his condition met the threshold set by s 16 of the Civil Liability Act 2002; 5. The appellant did not seek to terminate the tenancy agreement in accordance with the Residential Tenancies Act. The cost of couch surfing arose from the appellant's early termination of the tenancy agreement and was not a foreseeable loss arising from any breach by the respondent; 6. The claim in relation to defamation did not have a sufficient nexus to any obligation owed under the tenancy agreement, so the Tribunal did not have jurisdiction to determine such a claim; 7. There was no evidence of the cost of moving, insufficient evidence of psychological impact within the threshold prescribed by s 16 of the Civil Liability Act and no special circumstances warranting an order for the costs of bringing proceedings. Internal appeals from decisions made in the Consumer and Commercial Division 1. Section 80(2)(b) of the Civil and Administrative Tribunal Act provides for internal appeals by stating: '(2) Any internal appeal may be made: (a) (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.' 1. Clause 12(1) of Schedule 4 to the Civil and Administrative Tribunal Act states the requirements that must be satisfied if the leave of the Appeal Panel is required on grounds other than a question of law. It states : (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied 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). Notice of appeal 1. In his Notice of Appeal, the appellant stated that he was seeking leave to appeal because the Tribunal decision was not fair and equitable, because it was against the weight of evidence and because significant new evidence was available that was not reasonably available at the time of the hearing. 2. In his submissions in support of his appeal, the appellant states that his appeal is based on five grounds. In some of the grounds the appellant raises matters which if made out would constitute errors of law for which leave is not required. Consideration 1. We will deal with each ground of appeal as referred to by the appellant. Ground 1: Compensation totalling $2,250 not awarded for withheld funds by the respondent including bond which placed me in financial hardship for over three months [This order was not addressed in the Member's original decision]' 1. We reject the assertion that this issue was not addressed in the decision of the Tribunal Member. The appellant's application states that he paid the respondent a lump sum of $2,250.00 which he states was made up of four weeks rent as bond, the key deposit and two weeks rent in advance. 2. These items of claim were referred to by the Tribunal Member as: 1. Return of key deposit and bond - totalling $1550. 2. Return of 2 weeks rent in advance - $700 1. As regards the first item of claim, the Tribunal Member found in favour of the appellant in the amount claimed of $1,550.00. As regards the claim for the return of the rent in the sum of $700.00, the Tribunal Member in detailed reasons allowed the appellant the sum of $200.00. 2. The appellant's contention that these issues were not addressed in the Member's original decision is plainly wrong. In addition there is no suggestion by the appellant in his Notice of Appeal or in his written submissions that this aspect of the Tribunal Member's decision was not fair and equitable, or was against the weight of evidence or subject to reconsideration because significant new evidence was available that was not reasonably available at the time of the hearing. 3. For these reasons we dismiss this ground of appeal. Ground 2: Compensation totalling $2,400 not awarded for psychological impact and subsequent loss of wages [Original evidence provided not properly considered or addressed in the Members original decision. Further, unsatisfactory explanation of decision] 1. The Tribunal Member considered this item of the appellant's claim but rejected it for the following reasons: Compensation $2400 for stress of the proceedings and exacerbation of mental health issues and full time study causing loss of wages totalling $2400 As explained to the applicant at the hearing, the power to award compensation for personal injuries physical or mental, arising out of a breach of a residential tenancy agreement is very limited. Section 16 of the Civil Liability Act 2012 limits the power of the Tribunal to order general damages for personal injuries unless the severity of the non economic loss is at least 15% of a most extreme case. The applicant relied on a medical certificate to support this claim but I am not satisfied that the applicant's condition meets the threshold set by section 16 of the Civil Liability Act 2012 and this part of the compensation claim is dismissed. 1. In connection with this item of claim the appellant states in his Notice of Appeal that the Tribunal Member's decision was not fair and equitable and was against the weight of evidence. He also claims that the Tribunal Member did not explain why his medical evidence was insufficient and seeks to rely on a further letter from his psychotherapist dated 22 October 2016. To do that, the leave of the Appeal Panel is required under s 80(2)(b) of the Civil and Administrative Tribunal Act on the basis that significant new evidence has arisen, being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. 2. As regards the ground of appeal that the Tribunal Member failed to give adequate reasons why the appellant's medical evidence was insufficient, that will constitute an error of law for which leave is not required if the ground is established. 3. It is clear that the Tribunal member considered this issue and dealt with it in the time she had available. In our view the Tribunal Member decided that the letter or medical certificate that the appellant relied upon in connection with this head of claim did not provide a basis for finding that the appellant had sustained the necessary psychological impact, namely at least 15% of a most extreme case, in order to meet the threshold requirement set out in s 16 of the Civil Liability Act 2012 which would have allowed recovery. 4. In considering this aspect of the appeal we are mindful of the decision of the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ), albeit in a case concerned with judicial review, where it was stated that "[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". This language was repeated with approval by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. 5. In our view the Tribunal Member provided brief but adequate reasons for finding that the appellant had not met the threshold set by s 16 of the Civil Liability Act. We reject the appellant's ground of appeal that the Tribunal Member did not provide adequate reasons to support this aspect of her decision. 6. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel summarized the principles relevant to the discretion to grant leave under s 80(2)(b) at [76 – 79] and at [84]: 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. 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] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 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. In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly 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].' "[84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the appellant 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. 1. We have considered the letter from the appellant's medical practitioner and psychotherapist dated 1 August 2016 which describes his position in general terms and refers to facts and issues relating to the tenancy the subject of the application. The letter in our view provides no basis at all for even considering whether the applicant's condition met the threshold set by s 16 of the Civil Liability Act 2012. 2. Because of the unsatisfactory nature of the letter dated 1 August 2016, insofar as the Civil Liability Act is concerned, the appellant has not demonstrated to our satisfaction something more than the Tribunal Member was arguably wrong in her decision as regards this aspect of the appellant's case or that the Tribunal member made an error which was plain and readily apparent and was central to this aspect of her decision. 3. We are not satisfied that the appellant may have suffered a substantial miscarriage of justice because the Tribunal Member did not accept his medical evidence as adequate to form the basis of a claim for non-economic loss under s 16 of the Civil Liability Act. 4. This leaves for our consideration the appellant's application for leave to appeal because significant new evidence has become available that was not reasonably available at the time of the hearing. 5. The new evidence that the appellant seeks leave to rely upon is the letter from his medical practitioner and psychotherapist dated 22 October 2016 in which she refers to the Tribunal Member's reference to s 16 of the Civil Liability Act and later states: "In summary the non-economic loss is more than 15% of a most extreme case." 6. In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard. 1. In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] – [24] the Appeal Panel said: 23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 1. As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing. 1. The appellant has stated that neither himself nor his therapist were aware of the need to specifically address s 16 of the Civil Liability Act. However, this does not mean that the new report on which the appellant seeks to rely was unavailable in the relevant sense. The test is whether the report was unavailable because "no person could have reasonably obtained the evidence", not because the appellant was unaware of the need to do so. 2. We find that the new evidence has both arisen since the hearing and was objectively available at the time of the hearing. There is no evidence to suggest that the new evidence could not have been provided in the original medical evidence referred to by the Tribunal Member which was dated 1 August 2016. By then the appellant had left the premises and the tenancy agreement the subject of the proceedings was at an end. 3. Accordingly we are of the view that this ground has not been established and leave to appeal on this ground is refused. Ground 3: $750 in compensation not awarded for inconvenience of moving twice, time spent organising applications and appearing at the Tribunal, and subsequent psychological impact [Original evidence provided not properly considered or addressed in the Member's original decision] 1. The application raises this as an item of claim seeking 'Compensation of some form'. 2. The Tribunal Member's reasons for decision lists this item of claim as claim item 7. The Reasons address the claim as follows: Compensation for inconvenience and cost of moving twice in one month, psychological impact, time spent in preparing the application and attending NCAT. This claim is dismissed for the following reasons - there is no evidence of the cost of moving; there is insufficient evidence that the psychological factors are within the threshold prescribed by section 16 of the Civil Liability Act and all costs associated with bringing the proceedings should be borne by a party unless there are special circumstances, which this case does not have (section 60 of the Civil and Administrative Tribunal Act NSW 2013). 1. The Notice of Appeal is wide enough to suggest that the appellant seeks leave to appeal in connection with this item of the claim on the basis that the Tribunal decision was either not fair or equitable or against the weight of evidence. The appellant's submissions state that the Member's decision do not adequately address the medical evidence tendered on his behalf which we have referred to. 2. We reject the appellant's assertion that this aspect of his claim was not properly addressed in the Member's decision. Clearly the Member considered this aspect of the claim and provided in our view adequate reasons for rejecting it. 3. Insofar as the Member found the appellant's medical evidence insufficient, the reasons we have provided in connection with the preceding claim for rejecting the appellant's submissions apply equally to this ground of appeal. 4. Leave to appeal in connection with this ground of appeal is refused and the ground of appeal is dismissed. Ground 4: $700 in compensation not awarded for two weeks itinerancy caused by the respondent's behaviour [Original evidence provided not properly addressed or considered] 1. The applicant did not raise this as an item of claim in the original application. Nonetheless it was described by the Member as item 5 of the claim 'Compensation of $700 for couch surfing after leaving leased premises'. 2. The Tribunal Member stated in connection with this item of claim: Compensation of $700 for couch surfing during the tenancy The applicant did not seek to terminate the tenancy agreement pursuant to any reason permissible under the Act. The applicant could have issued a valid termination notice for breach by the respondent under section 98 of the Act or applied to the Tribunal for a termination order without the need to issue a notice to terminate under section 103 of the Act. The applicant did not avail himself of either of these remedies, nor did he obtain tenancy advisory assistance until after he vacated. I consider this loss to have arisen from his early termination of the tenancy agreement, which was not according to the Act. Accordingly I do not consider that this was foreseeable loss arising from any breach by the respondent. This part of the claim is dismissed. 1. The Notice of Appeal states that the appellant seeks leave to appeal in connection with this item of the claim on the basis that the Tribunal decision was either not fair or equitable or against the weight of evidence. 2. The appellant's submissions in support of this ground of appeal rely upon the evidence from his psychotherapist as a justification for his entitlement to the amount claimed under this item of his claim. 3. The Tribunal Member treated this claim as being one for damages arising from the way in which the tenancy came to an end. She found that the appellant had not terminated the tenancy in accordance with the tenancy agreement as found between the parties or in accordance with the Residential Tenancies Act. As a result she found that the appellant had no basis at law for recovering the amount claimed under this head of the claim. 4. The appellant does not challenge those findings. 5. In our view the evidence that the appellant relies upon, namely the letter from his medical practitioner and psychotherapist dated 1 August 2016, has no relevance to these issues. We are of the view that the fact that the Tribunal Member did not take this evidence into account in considering the issue of the appellant's right to the damages claimed under this item of claim does not mean that the appellant may have suffered a substantial miscarriage of justice based upon either of the grounds in clause 12(1)(a) or (b) of Schedule 4 of the Civil and Administrative Tribunal Act. 6. Leave to appeal in connection with this ground of appeal is refused. Ground 5: Return of two weeks rent totalling $700 not fully awarded [Original evidence provided not properly addressed or considered] 1. This ground of appeal is a duplication in part of the first ground of appeal. 2. As stated the Tribunal Member considered this claim and in reasons that were provided, awarded the appellant the appellant the sum of $200.00. 3. In his submissions in support of this ground of appeal the appellant seeks to re-agitate the evidence before the Tribunal Member. 4. In our view the Tribunal Member considered all of the evidence in connection with this item of claim and provided adequate reasons for finding in the appellant's favour in the sum of $200.00. 5. We do not accept that the appellant may have suffered a substantial miscarriage of justice based upon either of the grounds in clause 12(1)(a) or (b) of Schedule 4 of the Civil and Administrative Tribunal Act. 6. Leave to appeal in connection with this ground of appeal is refused. Conclusion 1. We have found against the appellant on all grounds. Leave to appeal is accordingly refused and the appeal is dismissed. ********** 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: 07 February 2017