Halil v NSW Land and Housing Corporation (No 2)

Since 2001, Hifsiye Halil (‘the plaintiff’) has lived in premises owned by the NSW Land and Housing Corporation (‘the defendant’ or ‘the landlord’) in Wentworthville, NSW. Until late 2018, the plaintiff occupied the premises with her husband – who had entered into a residential tenancy agreement with the defendant. Following his death however, the plaintiff entered into the residential tenancy agreement with the defendant herself.

Skipping over a considerable amount of the lengthy procedural history (which is addressed later), the defendant successfully terminated the tenancy agreement in proceedings brought in the NSW Civil and Administrative Tribunal (‘NCAT’ or ‘the Tribunal’), and related rent reduction proceedings brought by the plaintiff were dismissed. Those decisions were upheld by the NCAT Appeal Panel on 15 March 2023.

The plaintiff now seeks leave to appeal from the decision and orders of the Appeal Panel by amended summons filed 4 July 2023. By that amended summons, the plaintiff advances 55 grounds of appeal.

The plaintiff relied upon written submissions (that attached various documents) dated 3 July 2023 (but filed on 10 July 2023). The defendant filed submissions dated 6 July 2023 – that is, before the plaintiff had filed hers. The defendant subsequently sought, and was granted, leave to file submissions in reply – those submissions were filed on 1 December 2023.

The plaintiff was granted leave to be represented by her nephew, Musa Hassan. Mr Hassan represented her in the proceedings below, and so far as I can ascertain, on all occasions in this Court.

This matter has a protracted procedural history. What follows is a summary of the key events, which reflect my findings.

The agreed weekly rent for the Wentworthville premises was $425. At least initially, the plaintiff was granted a rental subsidy. The defendant cancelled that subsidy in early 2021 – alleging that the plaintiff was in breach of certain conditions relating to that subsidy – and claimed a substantial debt for rent said to be owed in consequence its cancellation. The plaintiff appealed the decision, and by letter dated 13 August 2021, the plaintiff was advised that the Housing Appeals Committee found that the cancellation of the subsidy was correct, but that there should be a variation in the date of cancellation: the debt owed by the plaintiff, as at 11 August 2021, was $9,478.95.

From the date of that decision the rent payable by the plaintiff was $435 per week. However, the plaintiff only paid the defendant about $110 per week: the plaintiff alleged that the premises were in a poor condition, and that she considered that the market rent for the premises in that condition was about $110.

On 6 December 2021 the plaintiff commenced proceedings in NCAT against the defendant seeking a range of orders. These proceedings have been referred to, when before the Tribunal and the Appeal Panel, as the ‘rent reduction proceedings’, and I will continue to do likewise. In those proceedings, the plaintiff also sought an order, under s 115 of the Residential Tenancies Act 2010 (NSW), declaring a termination notice was invalid – but the defendant did not proceed upon any notice that had issued.

On 21 March 2022, the defendant issued a notice of termination alleging non-payment of rent and that the plaintiff owed $19,440.95 in outstanding rent as at 20 March 2022.

On 25 March 2022, the defendant commenced proceedings in the Tribunal seeking an order for the payment of the arrears of rent; an order for the payment of an occupation fee; and a termination order on the basis that the plaintiff had breached the tenancy agreement in failing to pay the full rent. These proceedings have been referred to, when before the Tribunal and the Appeal Panel, as ‘the termination proceedings’, and I will continue to do likewise.

The two proceedings were case managed by the Tribunal. The rent reduction proceedings were initially listed for hearing on 18 March 2022, but were dismissed because the plaintiff failed to appear. The rent reduction proceedings were, however, reinstated and, subsequently, both matters were set down for a three day hearing commencing 12 September 2022. As at 12 September 2022, the amount of rent that was alleged to be outstanding, and owed the defendant, was $27,330.18.

On 2 and 9 September 2022, the plaintiff wrote to the Tribunal seeking an adjournment of the hearing. The Tribunal initially wrote to the plaintiff “stating that the adjournment application would be considered at the hearing … The [plaintiff] was informed that if the adjournment application is refused the hearing will proceed”. Following the second letter, on 9 September 2022, the Tribunal wrote to the plaintiff refusing the request for an adjournment, and provided reasons for doing so.

On 12 September 2022, the defendant appeared but the plaintiff did not. Her nephew telephoned the Registry requesting an adjournment. The plaintiff’s application for an adjournment of those proceedings was refused. One of the grounds advanced by the plaintiff for an adjournment was an argument that there was a need for a summons to issue. This ground was explained by the Tribunal as follows (Tribunal reasons at [11]):

As to the timing of the need to issue a summons, and its utility, the Tribunal made the following finding (Tribunal reasons at [21]):

The Tribunal dismissed the rent reduction proceedings (by reason of the non-appearance by the plaintiff) and considered and found in favour of the defendant in the termination proceedings. (A summary of the Tribunal’s decision is provided later in these reasons: see [28]ff, below) Relevantly, in connection with the termination proceedings, the Tribunal made the following orders:

The plaintiff filed an application to set aside both decisions, and sought an order that her proceedings (the rent reduction proceedings) be reinstated on 26 September 2022.

The Tribunal, by decision made on 24 October 2022, dismissed the application to set aside the decision in the termination proceedings. However, the Tribunal determined that the dismissal of the rent reduction proceedings should be set aside. Those proceedings were subsequently set down for a hearing on 21 November 2022, and they were heard on that day. (It appears that following the filing of the application on 26 September 2022, the Tribunal made an order that stayed the orders of 12 September 2022. Following the determination of these applications, the Tribunal “lifted” the stay on those orders: see order 4).

On 1 November 2022, the plaintiff filed a notice of appeal – out of time – from the decision of the Tribunal dated 12 September 2022 in connection with the termination proceedings. (The plaintiff did not appeal from the Tribunal’s decision dated 24 October 2022 dismissing her application to set aside the decision in the termination proceedings). These appeal proceedings have been referred to as ‘the termination appeal’, and I will continue to so describe them.

On 17 November 2022 the order for possession was stayed by the Tribunal until further order of the Tribunal or finalisation of the appeal.

On 21 November 2022, the Tribunal heard the rent reduction proceedings. The plaintiff also sought an adjournment of the hearing “on the basis that [the plaintiff] wish to issue a Summons on the [defendant] in relation to the condition of the property and lack of repair and maintenance” – an application that was refused (Tribunal reasons at [12]-[22]). The Tribunal reserved its decision. On 4 January 2023 the Tribunal delivered written reasons in those proceedings, and an order was made dismissing them (Tribunal reasons at [66]).

On 19 January 2023 the plaintiff filed a Notice of Appeal from the decision in the rent reduction proceedings. These appeal proceedings have been referred to as ‘the rent reduction appeal’, and I will continue to so describe them.

The two appeals were listed for hearing on 28 February 2023. By letter dated 22 February 2023 and two letters dated 26 February 2023, the plaintiff sought an adjournment of the appeals. At the hearing of the appeal, the Appeal Panel heard, but refused, the plaintiff’s application for an adjournment. (One of the plaintiff’s grounds of appeal in this Court relates to the refusal of the Appeal Panel to adjourn the hearing of the appeal).

The Appeal Panel delivered its reasons on 15 March 2023. In relation to the termination appeal, the Appeal Panel held that there was “no merit in any of the grounds alleged and accordingly refused to extend the time to appeal”: Appeal Panel reasons at [110]; see also [67] and [72]. Accordingly, the termination appeal was dismissed.

In relation to the rent reduction appeal, relevantly the Appeal Panel refused to extend time to appeal (varied an order of the Tribunal such that the suspended order for possession would end six weeks from the date of its decision), but otherwise dismissed the appeal. (Although the orders of the Appeal Panel refused to extend time to appeal, it earlier made a finding that there should be an extension granted to the plaintiff: Appeal Panel reasons at [111]. Nothing was argued to turn on this).

On 10 May 2023 the plaintiff commenced proceedings in this Court by summons containing 71 grounds of appeal seeking leave to appeal the decision of the Appeal Panel. The plaintiff subsequently filed an amended summons on 4 July 2023 with a slightly reduced 55 grounds of appeal.

I will, albeit briefly, provide a short summary of the key findings.

These proceedings, as I have earlier noted, were heard and determined on 12 September 2022.

The Tribunal, having refused the plaintiff’s application for an adjournment, found for the defendant. I have earlier set out the principal orders made (see [14], above).

Underlying those orders were the following findings: the plaintiff had breached the tenancy agreement by failing to pay rent; the plaintiff was more than 14 days in arrears in paying her rent on the date that the termination notice was served upon her by the defendant; the plaintiff, despite being given 14 days or more to vacate the premises in accordance with the termination notice, had failed to vacate the premises; and the plaintiff had frequently failed to pay the rent on or before the day set out in the tenancy agreement: Tribunal reasons at [27]. The Tribunal Member also found that there was “nothing in the material to suggest that the [plaintiff] can, or will, pay the market rental amount as required” (Tribunal reasons at [31]).

The key finding and subsequent conclusion made by the Tribunal was expressed in the following terms (Tribunal reasons at [32]-[33]):

These proceedings, as I have earlier noted, were heard on 21 November 2022 and determined on 4 January 2023. The Tribunal, although it refused an adjournment and gave oral reasons, provided a summary of them. For present purposes it is sufficient to refer to the following part of the reasons provided (Tribunal reasons at [22]):

The following findings should also be noted. First, the Tribunal found “on the evidence before it that the [plaintiff] has refused to provide reasonable access to the [defendant] to carry out repairs” (Tribunal reasons at [40]). Secondly, the Tribunal found that the plaintiff “acted unreasonably in not allowing access” (Tribunal reasons at [42]). Thirdly, the Tribunal found “from the correspondence sent by the [plaintiff] to the [defendant] that the aim of the [plaintiff] was for the [defendant] to withdraw the termination application for non-payment of rent before she would allow access” (Tribunal reasons at [44]). Fourthly, that each attempt by the defendant “to arrange access and repairs was met by correspondence [from] the [plaintiff] questioning the [defendant’s] motives and in the Tribunal’s view being combative, argumentative, obstructive and not willing to act reasonably to have the repairs carried out” by the defendant (Tribunal reasons at [45]). Fifthly, the Tribunal was “satisfied that the [plaintiff] has acted unreasonably in not allowing the [defendant] access” (Tribunal reasons at [46]).

Having dealt with the question of whether the plaintiff had refused reasonable access to the defendant to carry out repairs, the Tribunal went on to determine a number of other issues/claims within these proceedings – including whether the plaintiff was entitled to compensation for a flood that occurred in April 2022; whether there had been a breach of peace and quiet enjoyment; whether the rent payable under the agreement was excessive (referred to as the application under “s 141”); whether there should be an order for repairs and reimbursement or compensation for urgent repairs; whether there should be compensation for damage to the plaintiff’s goods and her health; and whether the defendant should be ordered to pay for the costs of a report from Safety and Environmental Services Australia Pty Ltd dated 25 November 2021 (described as the SESA report). These claims were all dismissed.

For completeness, it should be noted that the plaintiff filed in this Court a notice of motion dated 10 May 2023 seeking a stay of a warrant for possession issued by NCAT in respect of the plaintiff’s residential premises. The application first came before the Duty Judge on 11 May 2023, who stayed the warrant for possession until the date the motion was heard.

On 19 May 2023, Campbell J heard the plaintiff’s notice of motion and stayed the warrant for possession made by NCAT until “the disposition of the appeal on the condition that the plaintiff pay an occupation fee in respect of her continued occupation of the premises in the sum of $250 per week” (order 2), and further his Honour made orders that a pro bono referral be made by the Registrar on behalf of the plaintiff (order 3): Halil v NSW Land and Housing Corporation [2023] NSWSC 553 (the ‘stay judgment’).

The pro bono referral was unsuccessful, and the plaintiff appeared before me without the benefit of legal assistance. As I have noted, the plaintiff sought, and was granted, leave for her nephew to represent her in the proceedings.

Section 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’) deals with appeals from the Tribunal to the Court. That section relevantly provides:

An ‘appealable decision’ extends to “any decision made by an Appeal Panel in an internal appeal”: s 82(1)(a) of the NCAT Act. This section, when read with s 83(1), confines the appeal to the decision of the Appeal Panel: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [10] (‘Bronze Wing’).

During the course of submissions, the defendant drew attention to Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 at [44]-[45], where I said (relevantly) the following in relation to s 83 of the NCAT Act:

In relation to the requirement for leave, the relevant principles that govern the question of leave are well established: leave to appeal will ordinarily only be granted “concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what being merely arguable”: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Corcoran v Far [2020] NSWCA 140 at [12].

The Appeal Panel delivered judgment on 15 March 2023.

The plaintiff commenced proceedings by summons on 10 May 2023.

Section 84 of the NCAT Act provides:

Rule 50.3 of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’) provides that a summons commencing an appeal must be filed within 28 days.

The plaintiff has clearly commenced proceedings in this Court out of time. However, she seeks an order (order 15 of the amended summons) that she be granted an “extension of time to make the appeal to the Supreme Court of NSW”.

The defendant did not make a specific submission regarding whether the plaintiff should be granted an extension of time to file her summons (the Appeal Panel delivered judgment on 15 March 2023, and the plaintiff filed her summons on 10 May 2023 such that she was modestly out of time). The defendant’s position, as I understand it to be, was simply that leave to appeal should be refused on the basis that the grounds identified in the plaintiff’s summons did not raise a question of law and/or sought review of the incorrect decision – being the decision of the Tribunal rather than that of the Appeal Panel.

In my view absent any particular prejudice, and given the appeal was the subject of full submissions, I consider that it is appropriate to grant the plaintiff an extension of time.

During the course of the hearing, the plaintiff sought an adjournment. The basis for the adjournment was that, to properly prepare and present the plaintiff’s case, it would be necessary to secure legal representation and, to that end, steps had been taken in order to identify whether there were lawyers who might be available to assist. Ultimately what was submitted was that there were lawyers who had indicated a general preparedness to be “involved” but, given the “time constraints”, were unwilling to become so. To be clear, Mr Hassan confirmed, no lawyers had been retained.

The defendant opposed the adjournment, essentially on the following grounds. First, notwithstanding that the plaintiff had provided no evidence which would support her submission that she (or, as appears to be the case, one or other family member) had spoken with lawyers who would have agreed to represent her but for the insufficient time, the defendant submitted that the matter had a “long and torturous procedural history” and had already been subject to “multiple adjournments to date”. Closely connected to that submission, the defendant argued that it would be inappropriate to grant an adjournment where the Court did not have the benefit of an affidavit (or sworn evidence from a witness) to the effect that lawyers were on the cusp of being retained, such that while the Court does and should extend some flexibility to self-represented litigants, authority makes clear that evidence should not be accepted from the bar table. Secondly, the defendant submitted that the plaintiff had already had the benefit of multiple adjournment applications, and perhaps most importantly, continued to have the benefit of the stay ordered by Campbell J. In advancing this submission, the defendant noted that in granting the stay sought by the plaintiff, Campbell J “specifically set down an expedited timetable for hearing … because he appreciated that the grounds for stay were finely balanced” such that the plaintiff should not be permitted to delay the proceedings where this would impose further prejudice upon the defendant. The defendant also called in aid general case management considerations as part of this submission. Finally, the defendant submitted that the plaintiff had demonstrated a lack of candour when previously seeking adjournments and/or advising the Court as to the status of her applications with Legal Aid. This too was said to enhance the scepticism which the Court should adopt when hearing the plaintiff’s submissions on the prospects of lawyers being retained in the absence of proper evidence.

Having heard the argument, I refused the application. I indicated that I would give my reasons in the judgment to be delivered. These are those reasons.

In my view the following matters were against adjourning the matter.

First, the application for an adjournment was, on any view, exceedingly late. No explanation was proffered, at least none that I accept, for why the application was brought at this late stage and why – if an application was to be made – the application was not pursued much earlier than what it was. In this respect I would observe that the matter was, following its adjournment on 10 July 2023, case managed by me on a number of occasions – most recently on 27 October 2023: on that occasion nothing was said by the plaintiff, or Mr Hassan, about the possibility of securing legal representation (beyond the applications and/or appeals lodged with Legal Aid NSW).

Secondly, the procedural history – and case management considerations generally – are against the granting of that indulgence. I have earlier set out some of the procedural history in this Court. It is appropriate to emphasise aspects of that procedural history (which the defendant emphasised during submissions) including the following: the matter was expedited by Campbell J when it was initially fixed for hearing on 21 June 2023 – this hearing date was later varied to 10 July 2023. On that occasion the plaintiff applied for, successfully, an adjournment so that she could pursue her application with Legal Aid. It is apparent from the material that the plaintiff has been pursuing the grant of Legal Aid, or assistance from them, for a considerable period of time (for example, the material indicates as early as February 2022). The basis for the adjournment on 10 July 2023 was not only to enable the plaintiff to pursue the grant of Legal Aid, but to facilitate the better presentation of her appeal. There is no evidence about what transpired with her application for Legal Aid, but given the basis upon which the last adjournment was sought (and, in any event, independently of it) it was well known to the plaintiff that legal assistance would be beneficial to her and the presentation of her appeal. No doubt this was why Campbell J made a pro bono referral on 19 May 2023.

Thirdly, putting to one side the fact that the basis for the application was not the subject of evidence (as to which, see [56], below), what was proposed was exceedingly vague: there was no evidence, or submission, that if, say, an adjournment was provided, lawyers would be retained promptly and lawyers would prepare, promptly, for any resumed hearing. It was very much left up in the air as to what, if anything, would happen if the hearing was adjourned to enable the plaintiff to pursue further possible legal representation. The submission was also missing key details such as when those enquiries were made.

Fourthly, there was no evidence about any of the matters relating to the approaches that had been made to lawyers to assist, only statements made by Mr Hassan about what enquiries he, and it appears other family members, had made, and the defendant argued that it would not be proper to act on these untested and vague suggestions. I agree.

Fifthly, there has been considerable delay in finalising the matter generally and any adjournment would be productive of further delay. An order for possession was made by the Tribunal on 12 September 2022. Since that time the order has been variously stayed – initially by the Tribunal and later by an order made in this Court – pending disposition of the appeal.

Sixthly, the considerations in ss 56-58 of the Civil Procedure Act 2005 (NSW) (and case management considerations more generally), particularly given the earlier matters referred to, loom large. Ultimately the dictates of justice did not favour any adjournment (s 58(1)(a)(ii)).

It was for those reasons that I refused the application for an adjournment.

At one point, prior to applying for an adjournment and partway through his submissions, Mr Hassan sought an order that would permit him to file written submissions. I inquired of him why, if he preferred to deal with the matters in writing, he had not done so in the period before the hearing. Ultimately, however, the application by Mr Hassan to provide written submissions was not pursued by him and was withdrawn.

As I have earlier pointed out, the amended summons contains 55 appeal grounds. It is apparent that the grounds contained within the summons have been drafted by, or on behalf of, the plaintiff without legal assistance. It is sometimes the case that, with the benefit of written submissions, grounds of appeal that are sub-optimally expressed can be understood or are clarified. However, here the submissions of the plaintiff did not usefully illuminate the grounds contained within the amended summons.

I am mindful of the fact that the appeal has been presented by the plaintiff without the benefit of legal assistance. The essential duty of the Court in cases where there is an unrepresented litigant is to ensure a fair hearing: Hamod v New South Wales [2011] NSWCA 375 at [309] (‘Hamod’); Bauskis v Liew [2013] NSWCA 297 at [66] (‘Bauskis’). The duty, however, has limits. Relevantly here, two of them should be emphasised. First, “the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved …”: Hamod at [310]; Bauskis at [68]. Secondly, it is “not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant”: Hamod at [312]; Bauskis at [69].

Given the plaintiff has been represented by her nephew (who is not legally trained) I have endeavoured to fairly and justly identify the nub of what was sought to be argued. Nevertheless, even approaching the matter in this way it must be recognised that there are limits. One of them is that the Court “is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point”: Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21]; Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [42]. This is particularly relevant here because, with respect to the plaintiff, much of what was argued could fairly be described in these terms.

In terms of the appeal grounds, they too have significant limitations. In my view, the plaintiff has largely – if not uniformly – failed to identify any question of law by the grounds contained within the amended summons. Usually – if not invariably – the grounds are defective for more than one reason. In what follows, so as to avoid undue repetition, I address each of the grounds of appeal by reference to the principal reason for why I consider each ground to be defective.

Many of the proposed grounds of appeal – by their terms – fail to identify a question of law (or an error of law) and, furthermore, fail to state “with specificity, the grounds on which the relief is sought” (r 59.4(c) of the UCPR). As I have earlier noted (see [40], above – and the cases there cited), it is insufficient merely to assert that a decision-maker “erred in law” so as to engage the limited conferral of jurisdiction; rather, the grounds of appeal are required to explicitly identify the question of law raised. These shortcomings extend to the following grounds of appeal:

There are a number of grounds of appeal that complain about evidence, fact-finding and the manner in which the Tribunal dealt with evidence. Before identifying those grounds, and why no question of law (or error of law) is involved, it is useful to briefly restate a number of relevant well-established principles:

The grounds of the summons that, in my view, raise no more than a question of fact extend to the following grounds of appeal:

There is a striking similarity – in truth, an overwhelming duplication – between the grounds of appeal contained in the amended summons and the grounds of appeal in the termination and rent reduction appeals (that is, in the grounds of appeal raised before the Appeal Panel).

It is evident, from a consideration of the grounds identified in the summons filed in this Court, and the grounds contained in the notices of appeal from the decisions of the Tribunal to the Appeal Panel, that 54 of the 55 grounds are of that character. That is, the very grounds sought to be pursued in this Court (assuming leave were granted) merely seek to re-agitate the complaints raised in the appeals from the Tribunal to the Appeal Panel.

That this is so demonstrates that many of these grounds are simply inapt: the appeal to this Court is confined, by s 83 of the NCAT Act, to the decision of the Appeal Panel, and not the Tribunal: Bronze Wing at [10]. It also reinforces (to the extent needed) the absence of a ground of appeal on a question of law from the decision of the Appeal Panel.

The grounds which seek to challenge the decision of the Tribunal extend to the following grounds of appeal:

I have dealt with these grounds in line with the approach discussed in Saberi v Bakhshizadeh [2022] NSWCA 142 at [8] and Edwards v State of New South Wales [2022] NSWCA 187 at [58] (and the cases there cited). Leave to appeal is refused in relation to those grounds. Some grounds of appeal remain, and stand outside what I have covered above. Those grounds – which essentially align to the grounds identified as arguable in the stay judgment delivered by Campbell J – are: grounds 1, 9, 26, 27 and 53. They are covered in the next section of these reasons.

As I have earlier noted, on 12 May 2023 Campbell J made an order staying the warrant for possession, made by the Tribunal on 12 September 2022, until the disposition of the appeal on the condition that the plaintiff pay an occupation fee in respect of her continued occupation of the premises in the sum of $250 per week (order 2). His Honour also expedited the hearing of the plaintiff’s summons and, to that end, made an order listing the plaintiff’s summons for hearing on 21 June 2023 (order 1). (As it happens, the hearing did not proceed and when listed for hearing on 10 July 2023 the matter was adjourned on the plaintiff’s application).

In determining to grant a stay, his Honour gave consideration to whether the plaintiff had demonstrated “that one or more grounds of appeal are fairly arguable” (stay judgment at [7]). His Honour concluded that there were three grounds of appeal that were “arguable” (stay judgment at [9]). Given his Honour’s – necessarily preliminary – assessment of those grounds, it is appropriate to address them. It is important to emphasise Campbell J was not considering the merits of any of these arguments beyond an assessment that they were arguable and his Honour fully recognised that, “on a proper examination of these matters”, the Court may not be persuaded that they were “material or not otherwise made good” (stay judgment at [13]). These remarks bear emphasis because the plaintiff, during the course of submissions, tended to describe Campbell J’s findings as being, in effect, instances of demonstrated error in the reasons of the Appeal Panel. That, of course, is simply not so.

The three “arguable” grounds identified by Campbell J were: first, denying the plaintiff an opportunity to put additional material before the Appeal Panel (stay judgment at [9]); secondly, the Appeal Panel was “dismissive” of the argument that the termination was “retaliatory” (stay judgment at [10]); and, thirdly, in connection with the rent reduction proceedings, documents that were “previously filed” were “not available to General Member Eftimiou” (stay judgment at [12]).

I will deal with each matter, in order.

The first arguable ground of appeal identified by Campbell J, on the stay application, was that the plaintiff was denied an opportunity to put additional material before the Appeal Panel.

In relation to this matter, Campbell J said the following (stay judgment at [9]):

The plaintiff’s ground of appeal in the amended summons is expressed in these terms (ground 1):

It should be noted that the reference in the above “ground of appeal” to 28 February 2023 is an error: the orders that were made by the Tribunal were made on 8 February 2023, and the hearing of the appeal by the Appeal Panel was on 28 February 2023. Nothing turns on this error.

The plaintiff’s written submissions in this Court covered this ground of appeal. These submissions are under the heading: “NCAT internal Appeal” (plaintiff’s submissions dated 3 July 2023, p 18).

The key parts of the plaintiff’s submissions, which refer to the “short timetable” for the filing of evidence and submissions, are as follows:

As explained in the written submissions the ground involves two interrelated complaints: first, that a short timetable was set for the hearing of the appeals and, in the course of fixing that timetable, an “undertaking” had been given – in effect that the plaintiff would have, if it was sought, an adjournment of the hearing of the appeal – and, despite that undertaking and the plaintiff seeking an adjournment, the appeal proceedings were not adjourned; secondly, as a consequence of that refusal to adjourn the hearing of the appeal, the plaintiff was denied an opportunity to present evidence in support of the appeal. (I note that the written submissions refer to “submissions”, but the ground of appeal refers to evidence and submissions. The argument had as its focus “evidence” and I have approached the matter on that basis).

It is evident that the focus of the plaintiff’s complaints is upon three matters of fact: (a) the short timetable – it appears to be argued that that timetable precluded the plaintiff from providing the evidence upon which she relied; (b) the failure to adhere to the undertaking to have the appeal adjourned; and (c) by declining to adjourn the matter, the plaintiff was denied the opportunity to present evidence to the Appeal Panel.

In order to deal with this ground, and “address” the questions of fact within it, it is necessary to set out some of the procedural history.

On 8 February 2023, the Appeal Panel made orders in connection with the preparation of the rent reduction appeal.

A copy of the orders is in evidence (Exhibit 3). Nevertheless, it is presently sufficient to refer to the Appeal Panel reasons at [50]-[51] which identified the key orders:

Three matters should be noted. First, order 7 (which is summarised by the Appeal Panel in its reasons at [51]) in fact records that the directions were made “with the consent of the parties” (Exhibit 3). Secondly, from order 2, it will be observed that the Appeal Panel distinguished between (a) evidence that was before the Tribunal; and (b) evidence that was not before the Tribunal and upon which the plaintiff would seek leave of the Appeal Panel to rely upon that further material. Thirdly, the reference in the Appeal Panel’s reasons at [51] to the termination appeal, is a reference to the appeal from the termination proceedings decision that had been filed by the plaintiff on 1 November 2022.

In relation to the termination appeal, the defendant pointed out that although the first call over of the rent reduction appeal was held on 8 February 2023, the first directions hearing in relation to the termination appeal was held on 11 November 2022 and both appeals were, at the request (or the agreement) of the plaintiff, consolidated on 8 February 2023 (defendant’s reply submissions at [15] – a submission that is consistent with the notation that the directions were made with the consent of the parties). The point made – and one made by the Appeal Panel in refusing to adjourn the hearing of the appeal – is that the plaintiff had always considered that both appeals were required to be heard together because the issues in both proceedings substantially overlap: accordingly it was relevant to consider the fact that on 11 November 2022, the Appeal Panel gave directions which included a direction concerning the lodging of evidence that was in substantially the same terms that was made on 8 February 2023 (Exhibit 2, page 18).

As I have earlier noted (see [23], above), the plaintiff sought an adjournment of the Appeal Panel hearing – initially by letters sent to the Tribunal on 22 and 26 February 2023. The application for an adjournment was dealt with by the Appeal Panel at the commencement of the hearing, and refused (Appeal Panel reasons at [59]):

The reasons of the Appeal Panel for refusing the adjournment are at pages 17-19 of the transcript (Exhibit 2). I will return to them once I have addressed some of the detail of the plaintiff’s argument.

It is necessary to first look at the contentions of the plaintiff.

As to the argument that an “undertaking” was given, it should be noted that in the amended summons, the ground of appeal was that the “tribunal” and the “landlord” had given an “undertaking” (see [79], above), whereas in the written submissions the plaintiff submitted that the tribunal “made” the defendant give an undertaking that it would not object to an adjournment being granted (see [82], above). When before Campbell J, it appears that what is said to have occurred at the call over was different again: Campbell J records that Mr Hassan made submissions that “an adjournment if necessary would be considered”.

The defendant does not accept that any undertaking was sought or given. Based upon the record (that is, the orders, what is recorded in the reasons of the Appeal Panel at [50]-[51]) and the transcript of what occurred before the Appeal Panel there is no basis to find that any undertaking of any kind was given. Nor am I able to accept, given this material, that there was any failure to adhere to any stated position.

The Appeal Panel dealt with the matter in a way that is entirely consistent with the notation (recorded in the Appeal Panel’s reasons at [51]) and the position as explained to Campbell J – viz., the rent reduction appeal may be adjourned – by considering the adjournment application. The Appeal Panel did not, by the notation made on 8 February 2023, bind itself to granting an adjournment if one was sought by either party. Whether an adjournment was to be granted was, of course, a matter for the consideration of the Appeal Panel in the event that an application was made.

The truncated timetable, and the argument that the plaintiff was denied an opportunity of producing evidence to the Appeal Panel are closely related, and will be dealt with together. This was the argument that the plaintiff – unsuccessfully – advanced before the Appeal Panel as a ground to adjourn the hearing of both appeals. The argument in this Court was a repeat of that argument.

By way of summary, the Appeal Panel’s reasons for refusing the adjournment in connection with the “documents” (various grounds were put by the plaintiff some of which were rejected and the ground of appeal only concerns the adjournment application relating to “documents”) were as follows: (a) in relation to the suggestion that the plaintiff was only able to provide some, but not all, documents, the Appeal Panel noted that the plaintiff had lodged a bundle of material that was “approximately 570 pages”, but those documents formed part of a bigger bundle of documents “in excess of 1000 pages” or a “1500 page bundle” and those additional documents were at all relevant times in the possession of the plaintiff; (b) those documents, being at all relevant times in the possession of the plaintiff, could have been provided in December 2022 when the 570 pages of documents were provided and that is particularly so given the overlapping nature of the two appeals as perceived by the plaintiff and her nephew; (c) there was no “adequate excuse” for holding back the balance of the documents; (d) although justice was an important ingredient in hearing an appeal and in proceedings generally, there was also an obligation for the Tribunal to proceed “quickly and cheaply”.

Some context can be given to the “documents” referred to in the above reasons by reference to the reasons of the Appeal Panel at [43]-[45]:

Having set out that background, I return to the plaintiff's ground. In my view, there is no substance to it. That is for the following reasons. First, although the plaintiff argued why an adjournment was sought, the plaintiff did not – at any point – engage with or even refer to the reasons the Appeal Panel in refusing that application. Secondly, the plaintiff has not raised any ground to impugn the decision (aside from the point about breach of the “undertaking” – that I have rejected). Thirdly, the plaintiff did make an extremely limited reference to what occurred in relation to the adjournment application in her written submissions – in the following terms (plaintiff’s submissions, p 18):

In my respectful view this argument does not respond to the thrust of what the Appeal Panel were raising – put simply, the point they made in the course of refusing the plaintiff’s application for an adjournment was the plaintiff had an opportunity to lodge the material and had provided no adequate explanation (viz., “excuse”) for not doing so. Fourthly, having reviewed the background and the reasons of the Appeal Panel, the approach taken by them was, in my respectful view, orthodox and in line with principle: there is nothing that emerges to suggest error in either the assessment of whether there was an “opportunity” to present evidence, or the finding that there was. Fifthly, no attempt has been made to demonstrate the materiality of the “documents”, nor was an attempt made before the Appeal Panel to do so (Appeal Panel reasons at [41]-[42]. The finding made by the Appeal Panel, which has not been challenged on appeal, was that the plaintiff “has not demonstrated any practical injustice from their absence before the Tribunals” (Appeal Panel reasons at [42]).

In my view the plaintiff has neither suggested, nor demonstrated, error of any kind, less still that there is “question of law”. Given these matters, and those referred to [99]-[100], above, I consider that leave should be refused: there is no issue of principle, no question of general public importance nor is there even, in my respectful view, any error going beyond the merely arguable.

The second arguable ground of appeal identified by Campbell J, on the stay application, concerned the manner in which the Appeal Panel dealt with the “retaliation” issue.

In relation to this broad ground, Campbell J said the following (stay judgment at [10]-[11]):

The ground of appeal in the amended summons is in the following terms (ground 9):

The plaintiff’s written submissions touched upon this “ground”, as follows:

In my view, the appeal in relation to this ground should be dismissed, for the following reasons.

First, the ground (and the argument) is directed towards the Tribunal’s decision, not the decision made by the Appeal Panel. As I have pointed out, above, a ground directed to challenging a decision of the Tribunal is inapt – s 83 confines the appeal to this Court to the decision of the Appeal Panel: Bronze Wing at [10].

Secondly, in my respectful view, the ground, as expressed, fails to conform to the requirements of r 59.4(c) and, importantly, fails to identify a question of law: the appeal to this Court is only by leave, and limited to “an appeal on a question of law”: see the statutory provisions and authorities referred to at [38]-[40], above. As the authorities referred to emphasise, the existence of the question of law is not merely a qualifying condition to the right of appeal, but is the subject matter of the appeal itself. Thus, merely asserting – as is the case here – that the relevant decision maker “erred in law” is insufficient to satisfy the limited conferral of jurisdiction: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875 at [6]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. To be clear, no submissions were directed to any question of law in connection with the decision of the Appeal Panel.

Thirdly, it may be accepted that the existence of a question of law should be approached as a matter of substance, and not form, and that it may be appropriate (particularly where a party is self-represented) to adopt an approach of reading the “notice of appeal … as a whole, and read fairly” (Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [104]-[105]) so as to identify the question of law. However, in my view, even approaching the matter in that way, the ground of appeal is no more than an assertion that the Tribunal “erred in law” in not finding that the termination was retaliatory. In my respectful view, that does not involve a question of law, irrespective of how one reads the summons. To the extent this ground was (briefly) touched upon during submissions by the plaintiff, it amounted to no more than a bare statement that the eviction notice was retaliatory or that the conduct of “the person who cancelled her subsidy” was retaliatory in nature.

For these reasons, in my view, no question of law arises. It follows that there would be no utility in granting leave (and leave is refused) – which was, ultimately, the position that was adopted by the defendant not only in relation to this ground, but all others.

For completeness, although the plaintiff did not address the suggested error identified by Campbell J, I will say something further about this.

At the outset, two matters should be emphasised. The first is that the plaintiff’s ground of appeal and the accompanying written submissions are directed to, and focuses upon, a different “error” than the issue that was the subject of comment by Campbell J in the stay judgement. To be clear, in that judgment, Campbell J did not identify any error of the kind pressed by the plaintiff; rather, Campbell J identified an arguable error in the way in which the Appeal Panel dealt with the “retaliatory eviction” in its reasons. Secondly, I recognise that, absent the plaintiff advancing submissions directed to this ground, there is a degree of tension in proceeding further to consider it given the authorities in [62]-[63], above. Nevertheless, the defendant (properly) addressed this argument in its written submissions, so I consider it appropriate to address it, albeit briefly.

Having considered the way and manner in which the issue of retaliation was considered and dealt with by the Appeal Panel, in my respectful view, the Appeal Panel was perfectly entitled to deal with the issue in the way they did. It follows that the approach taken by the Appeal Panel was not in error, and no question of law arises. I will (briefly) explain why I considered this to be so in what follows.

Although I have earlier set out some of the key events, it is necessary to return briefly to some matters of background – as well as aspects of the procedural history – to put this issue into focus.

On 12 September 2022 the Tribunal dismissed the rent reduction proceedings and determined the termination proceedings in favour of the defendant. Although the rent reduction proceedings were subsequently reinstated, and later determined by, the Tribunal, the termination proceedings were not reinstated.

In relation to the termination proceedings hearing, the plaintiff made a number of attempts to adjourn the hearing in the days leading up to it – in fact, on the morning of the hearing itself, the plaintiff’s nephew (Mr Hassan) telephoned the registry of the Tribunal seeking an adjournment: see [13]-[14], above. The adjournment was refused, and neither the plaintiff, nor anyone on her behalf, attended and participated in that hearing.

The Tribunal hearing therefore proceeded in the absence of the plaintiff and the Tribunal Member favourably determined the defendant’s application. There was, in the reasons for decision, no mention of – or reference to – the application for termination by the defendant as being retaliatory. It is not difficult to see why that was so: nothing was said in the “application”, and the plaintiff did not attend and participate in the hearing to agitate, if she saw fit, that issue. These matters necessarily inform the way that the Appeal Panel approached, and decided, the matter.

The (reinstated) rent reduction proceedings were heard by the Tribunal on 21 November 2022. Pausing momentarily: thus, at the time the rent reduction proceedings were heard by the Tribunal, the tenancy had been terminated and orders have been made giving effect to that determination. It was for this reason that the Tribunal Member noted that as “the tenancy has now been terminated by the Tribunal”, any order under s 115 of the Residential Tenancies Act (the section that concerns retaliatory evictions) was “misconceived” (Tribunal reasons at [7](h)).

The Appeal Panel dealt with the plaintiff’s complaint that the termination notice was retaliatory in the following terms (Appeal Panel reasons at [85]):

It is important to note a number of matters in connection with the Appeal Panel’s reasons. First, no submissions were made by the plaintiff in this Court directed to demonstrating that the reasons in the extracted passage were erroneous in any way and involved a question of law. Secondly, although Campbell J considered that – admittedly impressionistically – the “termination” argument had been given “short shrift” by the Appeal Panel, once the wider context is considered (being the decisions of the Tribunal, the grounds of appeal raised and the submissions (or lack of submissions) made in support of those grounds), then in my view the Appeal Panel was perfectly entitled to approach, and deal with, the “issue” in the way that it did. Thirdly, it bears some emphasis that the task of the Appeal Panel was less than straightforward (as the Appeal Panel noted in its reasons at [63]): the notice of appeal itself, and the “material” in support of it, were largely unstructured and misdirected, and many of the grounds were not the subject of any written or oral submissions. They were mindful of the legal principles that I have referred to at [62]-[63], above: Appeal Panel reasons at [64]. Nevertheless, given the absence of meaningful submissions, rejection of this ground was well-nigh inevitable. Fourthly, the reasons and conclusions of the Appeal Panel must be viewed in their context: the Appeal Panel was considering whether the plaintiff should be given an extension of time – the notice of appeal was filed out of time – and as part of that (discretionary) consideration the Appeal Panel undertook an assessment of the merits and prospects of what the Appeal Panel could discern was (or was not) being argued by the plaintiff. Given that focus, I also consider that the Appeal Panel was quite entitled to deal with the “issue” in the way that it did.

In my respectful view, given the above matters, there is no substance to any complaint directed to the manner in which this issue was dealt with by the Appeal Panel. This is a further reason why leave to appeal should be refused in connection with this ground.

The third “arguable” ground of appeal identified by Campbell J, on the stay application, was that documents were not available to the Tribunal for their consideration. In relation to that matter, Campbell J observed the following (stay judgment at [12]):

The remarks of Campbell J are a reference to grounds 26, 27 and 53 in the plaintiff’s amended summons. (In the original summons filed by the plaintiff – which was before Campbell J – ground 26 was ground 35, ground 27 was grounds 33 and 34 and ground 53 was ground 69).

The plaintiff’s grounds of appeal in the amended summons are as follows (grounds 26, 27 and 53):

The plaintiff’s written submissions in this Court were expressed in essentially the same terms as the grounds.

These grounds, as is perhaps evident from their terms, were advanced before the Appeal Panel as a ground in the rent reduction appeal. Those grounds of appeal were expressed in the following terms:

The Appeal Panel squarely addressed these grounds of appeal (Appeal Panel reasons at [36]-[42]). The Appeal Panel also addressed some other issues relating to “documents”, including a building report that was referred to in the course of proceedings and invited by the Tribunal to be tendered as evidence. Although lengthy, it is convenient to also set out, by way of background the manner in which this was dealt with by the Appeal Panel (Appeal Panel reasons at [32]-[42]):

In relation to these grounds, the following matters should be noted. First, the plaintiff’s grounds of appeal in this Court are directed towards the Tribunal’s decision, not the decision made by the Appeal Panel. As I have pointed out, above, any ground directed to challenging a decision of the Tribunal is inapt – s 83 confines the appeal to this Court to the decision of the Appeal Panel: Bronze Wing at [10]. Secondly, in my respectful view, those parts of the Appeal Panel reasons comprehensively answer the plaintiff’s complaint about “missing documents” including the following findings and conclusions: (a) that a “fair reading of the transcript … contradicts” the plaintiff’s assertion that he objected to the Tribunal proceeding with the hearing because it did not have “all the documents”; (b) in relation to the “missing documents” generally, the Tribunal wrote to the plaintiff, on 15 December 2022, advising her that if she wished to rely upon further material that she should lodge them – and they would be referred to the Tribunal Member who heard the rent reduction proceedings; and (c) the plaintiff conceded that she always had copies of that material but, notwithstanding this and the invitation conveyed by the letter dated 15 December 2022, she did not lodge them. Thirdly, the plaintiff directed no submissions towards the specific findings of the Appeal Panel and why they were (and the decision more generally was) erroneous and raised a question of law. Fourthly, as I explained in relation to ground 1 (see [100], above), the Appeal Panel found that the plaintiff did not demonstrate that any practical injustice resulted from the absence of “documents”: Appeal Panel reasons at [41]-[42].

In my respectful view, given the above matters, there is no substance to any complaint directed to the manner in which this issue was dealt with by the Appeal Panel. Leave to appeal must be refused in connection with this ground.

For the above reasons, I make the following orders: