Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Klewer v Roberts [2018] NSWCATAP 225 Hearing dates: 15 August 2018 Date of orders: 20 September 2018 Decision date: 20 September 2018 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member T Simon, Senior Member Decision: 1. The appeal is allowed. 2. The decision to dismiss the appellant's application in RT 17/52045 is set aside. 3. We remit to the Consumer and Commercial Division constituted by another Member the hearing of the balance of the application brought by the Appellant in RT 17/52045, being all matters other than a claim for recovery of Sheriff's costs of eviction. Catchwords: Appeal from decision dismissing application after applicant left proceedings - held applicant justified in leaving proceedings - appeal allowed - held rejection of claim for rental arrears on basis of no available rental records without consideration of any other evidence constituted miscarriage of justice - decision set aside - matter remitted for hearing of application Category: Principal judgment Parties: Robert Klewer (Appellant) Michael John Roberts (Respondent) Representation: A Limbury as guardian ad litem for appellant (Appellant) Respondent self-represented File Number(s): AP 18/16845 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 26 March 2018 Before: M Gilson, Member File Number(s): RT 17/52045 Reasons for decision Background 1. The appellant, Robert Klewer seeks leave to appeal and appeals from a decision of this Tribunal made on 29 March 2018 which dismissed an application made by him. That application arose out of a residential tenancy in which he was the landlord and the respondent, Michael John Roberts was the tenant. In previous proceedings, the residential tenancy had been terminated by this Tribunal by order made on 13 October 2017. Possession was to be given on 16 October 2017 and a daily occupation fee was fixed in the event that vacant possession was given on a later date. The appellant was given the right to relist the matter to determine the amount of the occupation fee owing. 2. On 7 December 2017 the appellant filed a further tenancy application seeking payment of outstanding rent and alleging that no rent had been paid since 11 September 2017. It was said that the tenant had been evicted on 25 October 2017 pursuant to the issue of a warrant. There were further allegations that the respondent had left goods in the premises until 8 November 2017 and the total claim for arrears of rent at $390 per week was $3231.43. In addition, claims were made for the recovery of costs paid to the Sheriff for repossession of $346, cleaning cost of $363, change of locks for $160.50, carpet cleaning of $120 an amount said to be "about $600" for certain broken items and an unspecified amount to repair an air-conditioning unit. 3. The matter came on for hearing before the Tribunal on 12 January 2018. There was no appearance by the respondent. The appellant's mother attempted to represent him, but the Member declined to allow her to do so because she had been declared a vexatious litigant. We have available to us a sound recording of those proceedings which we have listened to. 4. After refusing to allow the mother to represent the appellant, the Member said that he would allow the appellant to be legally represented and offered to adjourn the proceedings for him to obtain legal advice. The appellant told him that it was too late for him to obtain assistance and he wanted to get the case over and done with. 5. Thereafter the Member carefully conducted the hearing and had regard to the documentation filed. In addition, he took evidence from the appellant on oath. 6. The Member questioned the appellant about the basis for his claims and noted that there was no evidence about the condition of the premises generally or the specific items about which there was a claim when the tenancy commenced and no evidence to show that any damage had been caused during the tenancy. 7. The Member asked the appellant about his rental records as a basis for a claim for arrears of rent. The appellant told him that the respondent paid cash, and there were no records. The Member queried how he could make an order for payment of rent if there were no records on which to base any claim for arrears. He said that in the absence of any records relating to the payment of rent he could not make any order for payment of alleged unpaid rent. 8. The member noted also that there was no claim for damage to a dryer in the application before him. 9. In general, the Member told the appellant that he was unhappy with the state of the evidence concerning all of the claims made by him. 10. The Member also commented that as a result of a recent decision in the Tribunal he was not empowered to make any order for recovery of Sheriff's costs. 11. At the end of the allotted time for the hearing of the matter that day the Member decided to adjourn the proceedings to another date and advised the appellant to obtain photographs and other evidence. 12. When the proceedings recommenced on the adjourned date, namely 29 March 2018, the respondent appeared and represented himself. The Member then noted that he had previously dealt with the claim for rent arrears and was not prepared to grant that claim because of the absence of rental records. The appellant's mother, who was present said that there were records on her phone, and the Member commented that he had been told on the previous occasion that there were no records. He confirmed that he would not allow any claim for arrears of rent. 13. There was also a discussion about payment of a bond by the respondent of $1170. The appellant said that he had not lodged that bond with any authority. 14. The Member noted that apart from the claim for rent and recovery of Sheriff's costs, both of which had been disallowed there were other claims totalling $1243, which was slightly in excess of the bond. He suggested that the appellant and the respondent go outside to discuss by way of conciliation whether the appellant would be prepared to accept forfeiture of the bond in total settlement as a way of resolving the matter. At that stage the attention of the Member was directed to the existence of an AVO prohibiting the respondent from making contact with the appellant except through a lawyer. The Member read this document and then proceeded to indicate that he was comfortable with these two persons meeting alone. At that stage the appellant's mother intervened loudly. She told the Member that her son would not participate in the proceedings any further and directed her son to leave the hearing. She and her son then left the hearing room and at that stage the Member formally dismissed the application because the appellant had left the proceedings and had not pressed his claim. 15. There is evidence in the Tribunal records in the form of a very brief letter to the effect that the appellant suffers from epilepsy and that his condition might be aggravated by stress. We assume this letter was before the Member. 16. There is some documentation provided about some of the items the subject of a claim for repair, maintenance or replacement. Whether and to what extent that documentation is appropriate as a basis for an order for compensation depends upon an examination of the documentation in the context of any oral evidence about it. The difficulty in considering whether there is any merit to this part of the claim is that no such examination has taken place, because the Member did not get up to that stage of the hearing after the appellant left the hearing room rather than engage in conciliation with the respondent. The appeal 1. There are a number of grounds of appeal. In essence, complaint is made that the Member paid insufficient regard to the fact that the appellant had "no capacity to represent himself without assistance", that the Member refused to allow the appellant's mother to participate in the proceedings, that the Member should have allowed the claim for unpaid rent and recovery of Sheriff's costs and should have considered the documentation produced in support of the several claims for compensation for damage to the rental property. The bulk of the complaints are therefore directed to the manner in which the Member conducted the proceedings and the balance to the merits of the appellant's claim. 2. Our regard to the recording of the hearing of the proceedings is that the Member, having determined that he would not permit the appellant's mother to participate in the proceedings as a result of her vexatious litigant status carefully, considerately and courteously led the appellant through his claim. He obtained information from the appellant on oath. We are unable to detect any concerns on the part of the appellant about the manner in which the proceedings were conducted on the first day. We do not regard the exclusion of the appellant's mother from participating in the proceedings as a matter of any significance as detracting from the overall quality of the hearing. 3. When the matter came on for hearing on the second occasion, the respondent appeared. This obviously added an additional dimension to the proceedings which were no longer to be conducted on an ex parte basis. At that stage the Member was required to allow the respondent to participate in the hearing. It was at that stage that the Member commented to the parties that he was required to assist them to endeavour to reach some sensible agreement concerning the balance of the appellant's claims confined to the outstanding claims for compensation for damage to the property allegedly caused by the respondent. The Member regarded himself as having determined against the appellant claims based on outstanding rent and recovery of the Sheriff's costs of eviction of the respondent. 4. There is in the Tribunal file a copy of an Interim Order Apprehended Personal Violence Order against the respondent in favour of the appellant dated 21 November 2017 which is in effect from that date until revoked or a further order made. There is no evidence of revocation or any further order. The effect of that order is that the respondent was prohibited from approaching or having contact "in any way" with the appellant unless that contact was through a lawyer. In all the circumstances, in that the Member sought to require the appellant to meet personally with the respondent outside the hearing room and without reference to any other person being present, the appellant through his mother was entitled to be concerned at this development. Whether and to what extent the Member may have been able to ameliorate or reverse this situation is unknown because the appellant, accompanied by his mother, left the hearing room. Furthermore, it is arguable that the assessment made by the Member about the quantum of the outstanding claims was incorrect because the amounts shown in the application did not include any claim for damage to or replacement of the air-conditioning unit. It is possible however that the Member did not have before him at that stage an invoice for repairs to an air-conditioning unit in the sum of $1300 and a claim for replacement of that unit in an amount of approximately $4400. 5. We have a great deal of sympathy for the situation which confronted the Member in determining to exhort the parties to reach some sensible agreement concerning the outstanding matters. Whilst we appreciate that the Member had a wide discretion in the manner in which he wished to conduct the proceedings, we are of the view that it was unwise in all the circumstances to have placed the appellant in a situation where he was compelled to deal personally with the respondent given the existence of the Apprehended Personal Violence Order. Given the information which we assume was before the Member that the appellant might have been adversely affected by any stressful situation, the resort to this conciliation process justified the appellant's mother removing him from the hearing. In these circumstances, the hearing miscarried at that stage. 6. When these appeal proceedings came on for hearing Mr A Limbury, who has been appointed the appellant's guardian ad litem appeared on behalf of the appellant, who was present, together with his mother by telephone, as was the respondent. During the course of addressing us Mr Limbury referred to the fact that the Member had excluded the appellant's mother from participating in the proceedings and, as she had said, there were records on her telephone concerning the rental payments. When we questioned Mr Limbury about these records he said that he had seen them, there was a notation of rental payments made, but no notation of any dates of payments. For completeness we note that Mr Limbury informed us that the appellant abandoned his claim for recovery of Sheriff's costs. Conclusion and orders 1. Based upon the matters to which we have referred, we conclude that the proceedings before the Member miscarried at the stage that he asked the appellant and the respondent to engage in personal discussions with a view to resolving the outstanding claims for compensation. This was the matter which caused the appellant to withdraw from the proceedings. Given that there is evidence that the appellant should not be subjected to undue stress and given the fact of the existence of the Apprehended Personal Violence Order, the appellant was in all the circumstances entitled to do so. It follows that it was inappropriate for the Member to have dismissed the proceedings at that stage. It would have been more appropriate to have adjourned them to allow further contact with the appellant to determine the further course of the proceedings. To the extent that the proceedings have miscarried and that it was inappropriate that they be dismissed, it follows that the order for dismissal should be set aside. To this extent the appeal must be allowed. We observe for completeness that our conclusion means that there is an appeal as of right and that it is not necessary for leave to appeal to be granted. 2. However, it is also necessary to consider the state of the proceedings. There has been a determination that the appellant's claim for unpaid rent should be dismissed. In our opinion the Member was not entitled to dismiss this part of the claim on the basis only of the absence of rental records in written form. It is possible that the appellant may have been able to give oral evidence about the rental payments or that his mother's records contained on her telephone might form some basis for making a determination concerning any arrears of rent. Whether the appellant can actually prove arrears of rent paid in cash without any of the usual written records may be a hurdle that the appellant will have to face. But he was denied the opportunity to do so, and this also caused the proceedings to miscarry. However, the appellant has conceded through his Guardian representative that the dismissal of the claim for recovery of the Sheriff's costs is no longer in contention. This leaves outstanding the claim for compensation for repair or replacement of any items to which the appellant alleges he is entitled. At the conclusion of the hearing on 12 January 2018 the Member informed the appellant that he would need to produce documentation in support of these items. It must be assumed that the appellant has now attended to this. 3. As there has been no determination by the Tribunal of these outstanding matters, and as the appellant has been denied the opportunity of endeavouring to make out a case for rental arrears, it is appropriate that the Tribunal now deal with them. Because the appellant, his mother and the respondent participated in the appeal proceedings by telephone and because Mr Limbury's helpful appearance was restricted to that in his capacity as guardian ad litem, it was inappropriate that we proceeded to deal with the outstanding matters during the course of the appeal proceedings. In the circumstances it is necessary to remit the balance of the proceedings for further hearing. In order to avoid any suggestion of apprehended bias, any further hearing should be conducted before another Member. Accordingly, we propose to remit the hearing of the balance of the claim of the appellant on this basis. Orders 1. We make the following orders; 1. the appeal is allowed 2. the decision under appeal to dismiss the appellant's application in RT 17/52045 is set aside 3. we remit to the Consumer and Commercial Division constituted by another Member the hearing of the balance of the application brought by the Appellant in RT 17/52045, being all matters other than a claim for recovery of Sheriff's costs of eviction ********** 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: 20 September 2018