Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bentata v NSW Land and Housing Corporation [2019] NSWCATAP 174 Hearing dates: On the papers Date of orders: 09 July 2019 Decision date: 09 July 2019 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member Decision: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013 an order is made dispensing with the hearing of the application of the respondent to summarily dismiss the appeal and/or dismiss or stay the set aside application lodged 4 June 2019 (Application). 2. The Application is dismissed. Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal – abuse of process – set aside application pending in proceedings at first instance – appeal against substantive orders lodged subsequently – power of Appeal Panel to intervene in unresolved set aside application. Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Regulation, 2013 (NSW) Residential Tenancies Act, 2010 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Procedural and other rulings Parties: Appellant: Yvonne Bentata Respondent: NSW Land and Housing Corporation Representation: Counsel: N Simpson (Appellant) A Fleckenoe-Brown (Respondent) Solicitors: NSW Legal Aid (Respondent) File Number(s): AP 19/27043 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 13 May 2019 Before: P Smith, General Member File Number(s): SH 19/08288 reasons for decision Introduction 1. The present appeal relates to an order made by the Tribunal on 13 May 2019 to terminate the appellant's residential tenancy agreement with the respondent (termination order). The tenancy was terminated for breach of s 90 of the Residential Tenancies Act, 2010 (NSW) (RT Act). 2. It is common ground that the termination order was made in the absence of the appellant. It is also common ground that the appellant lodged an application to set aside the termination order on 4 June 2019 (set aside application). The set aside application has not yet been determined by the Tribunal sitting at first instance. The set aside application was made pursuant to cl 9 of the Civil and Administrative Tribunal Regulation, 2013 (NSW) (NCAT Regulation). 3. The Notice of Appeal, by which the present appeal was commenced, was filed in the Tribunal on 11 June 2019. 4. The matter presently before the Appeal Panel concerns an issue raised by the respondent at the call over of this appeal on 20 June 2019. At that time, the respondent sought dismissal of the appeal on the basis that it was an abuse of process (summary dismissal application). The basis of the application was recorded in order 3 made 20 June 2019. Order 3 is said: The Respondent is to file and serve submissions that the appeal be dismissed on the basis that the appeal is an abuse of process by reason of the prior lodgement of a Reg 9 application, such submissions to be filed and served by 27 June 2019. 1. Consequently, the Appeal Panel adjourned the call over and made directions for the parties to file and serve submissions in relation to the summary dismissal application. Those submissions were to include whether an order should be made dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act). 2. The parties subsequently filed and served submissions. The appellant consented to an order being made to dispense with a hearing. The respondent made no submissions on this aspect. 3. In my opinion, having regard to the detailed written submissions filed by the parties and having regard to the reasons which follow, a hearing of this interlocutory application is unnecessary and an order should be made dispensing with a hearing. Consideration 1. Notwithstanding the nature of the application recorded in order 3 made by the Appeal Panel on 20 June 2019, in the submissions filed in support of the application the respondent sought, in the alternative, the following orders: 1. That the set aside application be dismissed pursuant to s 55(1)(b) of the NCAT Act; or 2. The set aside application be stayed pending the outcome of the appeal pursuant to s 43(3) of the NCAT Act. 1. As can be seen, the orders sought do not seek dismissal of the appeal. Rather, they seek a dismissal of the set aside application or a stay of that application pending hearing of this appeal. 2. The respondent refers to two possible constructions of the expression "application" used in cl 9 of the NCAT Regulation and when the application is made. The first is that the use of the word "application" in cl 9 is a reference to "a party's request for substantive relief under clause 9 (1)" made by lodging an application form, the date it was made being the date on which it is lodged. The second construction appears to suggest an application to set aside is made when there is a hearing before the Tribunal or, if an order is made dispensing with a hearing, the matter is determined by the Tribunal on the papers. 3. Thereafter, the respondent develops complex submissions to suggest that once an appeal is lodged a party cannot proceed with its set aside application in the proceedings at first instance or, alternatively, cl 9 of the NCAT Regulation "is void for inconsistency", in consequence of which the set aside application cannot be made. In this regard the respondent says the NCAT Act provides "for a single Tribunal" and that the "consequences of there being a single Tribunal is that it cannot have differently constituted manifestations of itself, concurrently deciding matters in which there is a single source of subject matter jurisdiction". 4. In my view, the present application for summary dismissal of the application to set aside is misconceived. 5. Insofar as there is a challenge to the power of the Tribunal sitting at first instance to determine a set aside application, this is a matter to be dealt with by the Tribunal sitting at first instance. Following a hearing, the Tribunal at first instance will make a decision within the meaning of s 5 of the NCAT Act. When this has occurred, the parties may exercise such rights as might be available in connection with an internally appealable decision (as that expression is used in s 32(4) of the NCAT Act) pursuant to s 80 (2) of the NCAT Act. 6. It might be that the Tribunal at first instance will reject the set aside application having regard to the submissions made by the respondent in the present application. However, until this has occurred, there is no basis for the Appeal Panel to intervene, the Tribunal at first instance having power in the exercise of its general jurisdiction to make ancillary decision, including as to jurisdiction: see s 29(2) and the definition of "ancillary decision" in s 4 of the NCAT Act. Otherwise, in my opinion, in the absence of a decision at first instance to exercise jurisdiction, there is no basis for the Appeal Panel to summarily dismiss the set aside application. 7. As to the application to stay the set aside application, in my opinion the Appeal Panel has power to do so. While unnecessary to explore the extent of the powers given to the Appeal Panel, the power to stay proceedings under s 43(3) and to make ancillary orders in the exercise of its internal appeal jurisdiction under s 32(2)(a) would provide sufficient authority. Further, in determining an appeal, s 81(1) makes clear the Appeal Panel may exercise "all the functions that are conferred or imposed by [the NCAT Act] or other legislation on the Tribunal at first instance when confirming, and affirming or varying or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance". 8. However, at this stage I am not satisfied such a power should be exercised. 9. There are a number of reasons for this view. 10. Prima facie, the legislature has provided two means by which a party may challenge a decision where that party was absent from the hearing at which the decision was made. One is to apply to the Tribunal sitting at first instance to set aside its decision because "the decision was made in the absence of [that] party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal": see cl 9(2) of the NCAT Regulation. The other is to appeal a final decision (in this case the termination order) as of right on a question of law and otherwise with leave, such right being to the Appeal Panel by way of internal appeal under s 80(2)(b) of the NCAT Act. 11. Secondly, as far as the Appeal Panel is aware, directions had been made for the filing and service of evidence and submissions in support of the set aside application. If successful, the proceedings at first instance will, presumably, be listed for hearing on the merits at which time both parties will have an opportunity to present their case in relation to the termination order. In the absence of evidence to the contrary, it is likely this application will be determined before the hearing of this appeal. If so, the appeal will become unnecessary. 12. Thirdly, what orders should be made for the just, quick and cheap resolution of the real issues in dispute will depend upon the submissions and evidence of the parties in respect of the set aside application on the one hand and this appeal on the other. At this stage, the material relevant to the appeal has not been provided to the Appeal Panel. 13. Fourthly, the issues in the appeal as presently constituted are limited. Unless the Appeal Panel determined to proceed by way of a new hearing as permitted by s 80(3) of the NCAT Act, success in the appeal will likely result in the proceedings being remitted for a new hearing. This is because, on the material presently before the Appeal Panel, it is unlikely that all witnesses who might give evidence in this dispute have provided their evidence and/or have been the subject of cross-examination, a process usually undertaken in the proceedings at first instance. 14. It follows that to impose a stay of the set aside application might prevent the appellant from exercising an available right and obtaining an order from the Tribunal at first instance to set aside its decision so as to permit her an opportunity to attend the final hearing and provide any relevant evidence. 15. In making these comments, I should not be taken as accepting the proposition that the set aside application will succeed, that there has been any relevant denial of procedural fairness, or that the appellant otherwise has a meritorious appeal. As I stated above, these determinations can only be made upon the provision of evidence and submissions in support of the substantive appeal. 16. For these reasons, the summary dismissal application should be dismissed and directions made for hearing the appeal. 17. As the set aside application might be determined in the meantime and/or an appeal might be made in connection with any decision made concerning that application, the parties may request liberty to apply to the Appeal Panel should that subsequently become necessary so as to make any relevant application prior to the hearing of the appeal as presently advanced. Orders 1. The Tribunal makes the following orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013 an order is made dispensing with the hearing of the application of the respondent to summarily dismiss the appeal and/or dismiss or stay the set aside application lodged 4 June 2019 (Application). 2. The Application is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 July 2019