Abdel-Messih v Marshall

1. [1]

   HIS HONOUR: This is an appeal from a decision made by an Appeal Panel constituted by Deputy President Stuart Westgarth and Senior Member Robert Titterton of the NSW Civil and Administrative Tribunal (“the Appeal Panel”). The decision was regarding a dispute over a ‘break fee’ under a standard form Residential Tenancy Agreement dated 23 August 2016 (“the agreement”).

2. [2]

   The plaintiff, Mr Bishoy Abdel-Messih, and the defendant, Mr Simon Arthur Marshall, were the tenant and subtenant respectively of 5605/93 Liverpool Street, Sydney (“the unit”). Mr Marshall vacated the unit before the end of the term of the agreement on 5 November 2016. The break fee clause of the agreement (clause 41) provided that, if the subtenant ended the agreement before the end of the term, the subtenant would pay to the tenant a break fee in the amount of 4 weeks rent.

3. [3]

   Mr Abdel-Messih brought proceedings in the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (“the Tribunal”) to recover $1,600 as a break fee as a result of Mr Marshall terminating the agreement before the end of the term of the agreement. The Tribunal dismissed Mr Abdel-Messih’s application on 19 January 2017.

4. [4]

   Mr Abdel-Messih appealed the Tribunal’s decision to the Appeal Panel pursuant to s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the Act”). On 21 June 2017, the Appeal Panel made two orders:

   1. (1)

      Except for the purposes of making order 2, the appeal is dismissed; and

   2. (2)

      The bond of $1,600 held by Rental Bond Services (reference number P0000626726) is to be paid to the defendant.

5. [5]

   Mr Abdel-Messih brings an appeal to this Court from the decision of the Appeal Panel pursuant to s 83 of the Act which provision requires leave of the Court to appeal on a question of law and, additionally, under s 69 of the Supreme Court Act 1970 (NSW) where leave is not required to appeal on errors of law. (It should be noted that he also relied upon s 84 of the Act to bring the appeal, however, this must be incorrect because that provision clearly does not give the power to the Court to hear appeals; it is merely procedural).

FACTUAL BACKGROUND

1. [6]

   There was no dispute as to the material facts as found by the Appeal Panel. In summary, they were as follows:

   1. (1)

      Mr Abdel-Messih and Mr Marshall entered into the agreement under which Mr Marshall was required to pay $800 rent per fortnight for bedroom two in the unit for a fixed term of 3 months commencing 24 August 2016 and ending on 24 November 2016.

   2. (2)

      The agreement contained clause 41 which provided:

   3. (3)

      During the term of the agreement, separate proceedings in the Tribunal were underway between Mr Abdel-Messih and the head landlord of the unit. Those separate proceedings concerned Mr Abdel-Messih’s alleged breaches of the head lease (namely, a failure to pay rent and subleasing without consent). Mr Abdel-Messih produced copies of termination notices with respect to the head lease dated 8, 14 and 16 September 2016 to the Tribunal (see page 2 of the Tribunal’s reasons for decision).

   4. (4)

      Mr Marshall vacated the unit on 5 November 2016 without providing the period notice of termination required by the agreement.

2. [7]

   The Tribunal found that Mr Marshall had abandoned the unit. However it determined, in the exercise of its discretion, not to order Mr Marshall to pay Mr Abdel-Messih the break fee. In short, the Tribunal accepted Mr Marshall’s evidence that he reasonably believed it was imminent a person having superior title to Mr Abdel-Messih (i.e. the head landlord) was about to become entitled to possession of the unit at or around the time he abandoned the unit (see s 81(4)(a) of the Residential Tenancies Act 2010 (NSW) (“the RT Act”)).

The Tribunal Proceedings

1. [8]

   The break fee for the abandonment of the tenancy was the genesis of proceedings brought by Mr Abdel-Messih on 7 November 2016 under the RT Act: see, as to the jurisdiction of the Tribunal sitting in that Division, s 16(1)(b) and Sch 4 Pt 3 of the Act.

2. [9]

   The relief claimed fell within s 107 of the RT Act as a remedy available to landlords on abandonment of a residential premises by a tenant. Section 107 provides the following:

3. [10]

   Mr Abdel-Messih sought the following orders from the Tribunal as follows:

   1. (1)

      payment of the break fee in the amount of $1,600 as compensation for the loss caused by the abandonment by Mr Marshall;

   2. (2)

      payment of $38.25 (as a cleaning fee) as further compensation; and

   3. (3)

      a copy of the key (presumably to the unit) to be given to the head landlord.

4. [11]

   The Tribunal was constituted by Senior Member Mr David Charles. His decision was founded upon, inter alia, the following reasons (at page 3 of the Tribunal’s reasons for decision):

The Appeal Panel Proceedings

1. [12]

   Mr Abdel-Messih filed a notice of appeal against the decision of the Tribunal. That appeal was brought under Pt 6 Div 2 of the Act (the matter was within the internal appeal jurisdiction of the Tribunal pursuant to s 32(1)(a) of the Act).

2. [13]

   Section 80 of the Act permitted an appeal from the 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”: s 80(2)(b).

3. [14]

   As to leave to appeal, the provisions of Sch 4, Pt 6, cl 12(1) of the Act applied to the appeal before the Appeal Panel. Clause 12(1) provides as follows:

4. [15]

   In the notice to appeal, Mr Abdel-Messih appealed on the ground that the decision was not fair and equitable because the Member “[continued] to ignore evidence and relevant legislation in guiding his decisions”. He sought the following orders:

5. [16]

   Mr Abdel-Messih made an alternative submission that, if the break fee was not awarded, compensation for $256.06 should be awarded for the loss of rent otherwise payable by Mr Marshall from 5 November 2016 to the end of the term (24 November 2016) pursuant to s 107(2) of the Act. I note that s 107(2) however relates to an obligation on a landlord to mitigate its loss, and the Court will presume that he intended to refer to s 107(1).

6. [17]

   The Appeal Panel dismissed the appeal on 21 June 2017 on the basis that no error of law had been identified and there was no basis for giving leave to appeal because the decision was not fair and equitable under cl 12 of Sch 4 of the Act: Abdel-Messih v Marshall [2017] NSWCATAP 136.

7. [18]

   The Appeal Panel found the following:

   1. (1)

      As to the question of law raised by Mr Abdel-Messih as to whether a discretion existed under s 107 of the RT Act (at [28]-[29]):

   2. (2)

      The Appeal Panel consequently found that the Tribunal’s decision did not display any error of law by the Tribunal in the exercise of its discretion under s 107 of the RT Act (at [31]-[35]):

   3. (3)

      As to the component of the appeal concerning whether the decision of the Tribunal was not just and equitable, the Appeal Panel found that leave to appeal pursuant to s 80(2)(b) of the Act was required.

   4. (4)

      The Appeal Panel found the following in regard to whether leave would granted in respect of that ground (at [37], [38] and [44]):

   5. (5)

      This finding by the Appeal Panel was not the subject of any contentions or submissions by Mr Abdel-Messih raised in these proceedings.

   6. (6)

      There was a further aspect to the Appeal Panel’s decision which corresponds to the second order made in disposition of the appeal brought to the Appeal Panel by Mr Abdel-Messih. After receiving written submissions from the parties after the appeal hearing, the Appeal Panel found as follows (at [39]-[43]):

The Supreme Court Proceedings

1. [19]

   Mr Abdel-Messih filed a summons commencing an appeal in this Court on 19 July 2017 (“the summons”) pursuant to ss 83 and 84 of the Act, as well as s 69 of the Supreme Court Act.

2. [20]

   Under the heading “Appeal Grounds” in the summons, Mr Abdel-Messih pleaded the following:

3. [21]

   Mr Abdel-Messih sought the following orders:

Principles regarding Leave under s 83 of the Act

1. [22]

   Section 83(1) and (3) of the Act are in the following terms:

2. [23]

   The principles regarding appeals under s 83 were summarised in the following extract from Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2017] NSWSC 1322 (“Gan”) (at [27]-[37]):

3. [24]

   The solicitor for Mr Marshall correctly submitted that this appeal was confined to the decision of the Appeal Panel rather than the Senior Member of the Tribunal as ss 82 and 83 of the Act confine the scope for appeal under s 83 in the present case to one brought from the Appeal Panel: Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41 (“Bronze Wing International”) at [10] (per Basten JA).

Section 69 of the Supreme Court Act

1. [25]

   Proceedings under s 69 of the Supreme Court Act are distinct from the rights of appeal under s 83 of the Act: see Altaranesi v Sydney Local Health District [2012] NSWCA 69 at [8]-[10] and Macdonald v Macdonald [2017] NSWSC 809 at [46].

2. [26]

   Section 69 of the Supreme Court Act does not attract a requirement for leave and provides that the Court has the jurisdiction to quash the determination of the Tribunal if the determination was based on an error of law. Section 69 is in the following terms:

3. [27]

   In Craig v The State of South Australia (1995) 184 CLR 163, Brennan, Deane, Toohey, Gaudron and McHugh JJ held (at 179):

4. [28]

   The solicitor for Mr Marshall submitted that the grounds of appeal under s 69 of the Supreme Court Act must be restricted to an analysis of the decision by the Appeal Panel, and that transcripts and evidence put to the Tribunal do not form part of the record pursuant to s 69(3) and (4). Mr Marshall relied on the Court of Appeal’s decision in Wende v Horwarth (No 2) (2015) 91 NSWLR 588 at [15]:

GROUNDS OF APPEAL

1. [29]

   The following summary represents a synthesis of the grounds of appeal and contentions advanced by the plaintiff based on his written and oral submissions as further informed by the joinder of issues by the defendant:

   1. (1)

      Ground 1: The Appeal Panel erred in finding that the discretion conferred by s 107(1) of the RT Act extended to monies payable under fixed term agreements by a break fee provisions for the purposes of s 107(3) (although this contention did not feature in the grounds of appeal).

   2. (2)

      Ground 2: In the alternative, if the Court considered there was a discretion under s 107(3), there was an error of law in that discretion was miscarried because:

   3. (3)

      Ground 3: The Appeal Panel erred when it enquired into the payment of the bond, and this did not accord with the principles of procedural fairness.

   4. (4)

      Ground 4: The Appeal Panel acted outside its jurisdiction by making an order regarding the payment of the bond.

   5. (5)

      Ground 5: The Appeal Panel was biased.

   6. (6)

      Ground 6: The Appeal Panel erred in not informing Mr Abdel-Messih about his rights under s 128 of the Evidence Act 1995 (NSW) regarding evidence relating to self-incrimination.

2. [30]

   This summary of the grounds of appeal has been constructed in this way from both the summons and his submissions to provide clarity as to Mr Abdel-Messih’s case considering he is self-represented,

Ground 1: Whether a Discretion Existed under s 107

1. [31]

   The Appeal Panel found that there was no error in the Tribunal determining that it had a discretion under s 107 of the RT Act as to whether or not the break fee may be ordered. Mr Abdel-Messih contended in these proceedings, that the Tribunal had the discretion under s 107(1) of the Act but that discretion did not extend to a refusal to order the payment of a break fee payment due under a residential tenancy agreement due to the operation of s 107(3).

2. [32]

   The issue raised by Mr Abdel-Messih, in this respect, concerns a question of law because it involves the construction of s 107 of the RT Act. Given the nature of the construction issue raised, it appears appropriate to grant leave under s 83 of the Act. In any event, the issues raised are amendable to review under s 69 of the Supreme Court Act.

3. [33]

   Neither party addressed the question of whether Mr Abdel-Messih was a “landlord” and Mr Marshall a “tenant” for the purposes of s 107. Given the conclusion I will reach, it is unnecessary to finally resolve that question. However, it would appear Mr Abdel-Messih is a landlord for the purposes of the RT Act because he was “a tenant who granted the right to occupy residential premises to a sub-tenant”, and Mr Marshall is a tenant because he was “a sub-tenant of a tenant”: see s 3 of the RT Act.

4. [34]

   Mr Abdel-Messih contended that the Tribunal lacked a discretion to not enforce the break fee in cl 41 of the agreement for the following reasons:

   1. (1)

      Section 107(3) prescribes that, in the case of disputes over break fee payments under a fixed term agreement, the Tribunal must order the payment of the same when it is due under an agreement.

   2. (2)

      That construction is preferable because to interpret s 107 otherwise would produce an outcome that was contrary to the common law principles of enforcement of a contract.

5. [35]

   I do not agree. My reasons for that conclusion are as follows:

   1. (1)

      All parties accept that s 107(1) confers a discretion to the Tribunal. I accept this approach as:

   2. (2)

      Section 107(1) comprehends break fees under fixed term agreements referred to in s 107(3) (a fixed term agreement means a residential tenancy agreement for a tenancy for a fixed term: see s 3 of the RT Act) because:

   3. (3)

      There is no contrary intention to be discerned from s 107(3) as to the discretion in s 107(1) to order or refuse compensation for any loss occasioned by a landlord through abandonment because:

   4. (4)

      Common law rights are not applicable because:

6. [36]

   Considering the above analysis, the Appeal Panel was correct in finding that the Tribunal had a discretion under s 107 of the RT Act to refuse compensation for loss occasioned by Mr Marshall departing from the unit before the end of the fixed term agreement (assuming that his action, in fact, constituted abandonment for the purposes of s 107(1)). By the terms of s 107(1), the Tribunal had a power to decline to grant compensation for an amount specified in an agreement for a break fee in the proper exercise of a discretion. As such, this ground of appeal is dismissed.

Ground 2: If the Discretion applied to s 107(3), that Discretion was Miscarried

1. [37]

   Mr Abdel-Messih submitted that, if the Court found that there was a discretion under s 107(3), then exercise of that discretion miscarried because:

   1. (1)

      (1) the Tribunal relied on an irrelevant consideration by considering s 84(4)(a) of the RT Act;

   2. (2)

      (2) the Appeal Panel failed to take into account his submissions as to the effect of s 95 of the RT Act; and

   3. (3)

      (3) the Tribunal’s finding that Mr Marshall reasonably believed that the head agreement would be terminated by the head landlord was “against the weight of the evidence”.

2. [38]

   Mr Abdel-Messih contended that the Tribunal took into account an irrelevant matter when it considered s 81(4)(a) of the RT Act in its decision to not exercise its discretion under s 107.

3. [39]

   These proceedings are an appeal from the Appeal Panel and not from the Tribunal (see Gan at [25] and Bronze Wing International at [10]), the ground of the appeal must fail. However, I will briefly consider the merits of the ground.

4. [40]

   In Cain, Basten J found that “the factors which a court or tribunal takes into account may be characterised as mandatory, permissible or prohibited” (at [28]).

5. [41]

   The Appeal Panel did not rely on s 81(4)(a) in coming to its decision, but rather found that the Tribunal was entitled to have regard to the fact of the impending termination of the head lease in reaching its decision.

6. [42]

   No challenge was made as such by Mr Abdel-Messih to the Tribunal having regard, in the exercise of its discretion, to the prospective termination of the head lease as such.

7. [43]

   Further, it was open for the Tribunal to have regard to s 81(4) in the exercise of its discretion in assessing the significance of the fact of whether Mr Marshall reasonably believed that it was imminent that the head landlord was about to come into possession of the unit. This is because the provision makes clear that Mr Marshall would have been deprived of accommodation if the Tribunal decided to terminate the head lease in the separate proceedings between Mr Abdel-Messih and the head landlord.

8. [44]

   Whilst a ground that the Appeal Panel took into account a prohibited consideration (per Cain at [29]) or an irrelevant consideration would ordinarily raise a question of law, the ground proceeded upon a mistaken premise that the appeal should be brought from the Tribunal per se. In any event, I consider the proposition that the Appeal Panel may not take into account s 81(4)(a) of the RT Act is wrong. Leave to appeal should be refused.

9. [45]

   Mr Abdel-Messih contended that the Appeal Panel failed to address his submissions as to the application of s 95 of the RT Act. Section 95(2) of the RT Act is in the following terms:

10. [46]

    Mr Abdel-Messih contended that the requirement for the head landlord to give 14 days’ notice to occupants in the unit ‘casts doubt’ about whether Mr Marshall believed it was imminent that the head landlord was going to take possession, because Mr Marshall had not received such a notice.

11. [47]

    I do not consider that the contentions advanced by Mr Abdel-Messih with respect to s 95, concern a question of law for the purposes of s 83 of the Act. Mr Abdel-Messih is effectively arguing that the Tribunal should have drawn a factual inference that the relevant notice had not been given by virtue of the operation of s 95, which in turn would have resulted in a factual finding that Mr Marshall could not have reasonably believed the head landlord was going to take possession. The question does not concern the construction of s 95 or its operation as such in the context of the resolution of the dispute before the Tribunal.

12. [48]

    Nextly, even if there was a question of law, leave should not be granted because the issue was not raised below. As mentioned by Basten JA in Bronze Wing International, it would be a rare case in which the Supreme Court would grant leave on a question of law which had not been raised before the Appeal Panel (see at [11]).

13. [49]

    Mr Abdel-Messih’s written submissions to the Appeal Panel are before this Court in tab 10 in Ex 2. They do not contain any submissions as to the operation of s 95. The official transcript and recordings of the Appeal Panel proceedings were not before this Court. (Mr Abdel-Messih was required to provide a copy of the transcript pursuant to r 50.14 of the Uniform Civil Procedure Rules 2005 (NSW)). (I note that during the hearing, Mr Abdel-Messih read out parts of a transcription of the recording of the Appeal Panel proceedings he had prepared himself. These were treated as part of his submissions).

14. [50]

    In summary, Mr Abdel-Messih’s contention regarding the effect of s 95 of the RT Act is not a question of law. That ground of appeal should be dismissed. Even in the event that it was a question of law, leave would have been refused to appeal because, on the material before the Court, no submissions as to s 95 were raised at the Appeal Panel hearing.

15. [51]

    This appeal ground concerns an appeal from the Tribunal. The ground fails on that basis alone.

16. [52]

    In any event, the ground is expressed in terms of “weight of evidence”, and, so expressed, concerns a question of fact, not law, that is, whether the Tribunal should have attached more weight to some factors as material factors than others in coming to a conclusion.

17. [53]

    It is a well-established principle that the weight a tribunal attaches to a fact is not a question of law, but a question of fact. In McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 (at 9), it was held that:

18. [54]

    In Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (“Be Financial”), Basten JA (with whom Tobias AJA agreed) applied Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56 to applications for leave under s 83(1) of the Act (at [32]):

19. [55]

    The Appeal Panel carefully considered Mr Abdel-Messih’s contentions in its appeal and weighed a number of considerations which were before the Tribunal (at [33]):

20. [56]

    By that means, the Appeal Panel considered the competing contentions as to the gravamen of the issues ventilated by Mr Abdel-Messih.

21. [57]

    It can be inferred from [35] of the Appeal Panel’s decision that it considered that there was no error of law in the Tribunal’s exercise of its discretion because the Tribunal had not failed to take into account or give insufficient weight to a relevant matter, or that it took into account an irrelevant matter: see House v King (1936) 55 CLR 499.

22. [58]

    In any event, Mr Abdel-Messih’s contention is not a challenge to the adequacy of the reasons by the Appeal Panel as such.

23. [59]

    For more abundant caution, Mr Abdel-Messih’s contentions did refer to the Tribunal failing of having regard to a relevant consideration. His contention was that there were text messages which proved that he had informed Mr Marshall the head lease had not been terminated at the hearing of the proceedings between him and the head landlord on 26 October 2016, and that this matter was not taken sufficiently into account.

24. [60]

    Whilst it appears to be raised as a question of law concerning whether a relevant consideration should have been taken into account, in substance the matter is no more than an issue as to whether the Tribunal properly took into account evidence adduced by him (again noting that this is an appeal from the Appeal Panel). The relevant factor was the one the Tribunal dealt with, namely that Mr Marshall had a reasonable belief that it was imminent that the head landlord was about to take possession of the unit.

25. [61]

    In truth, this contention (but not ground) never rose above a challenge to the Tribunal as opposed to the Appeal Panel as to a question of fact. The issue of the evidence of text messages raised by Mr Abdel-Messih goes to no more than a fact and the weight that may be attached to it. There was no statutory requirement to have regard to this consideration per se.

26. [62]

    This ground of appeal fails because (a) it concerns an appeal from the Tribunal’s decision, and (b) no question of law was raised. To the extent that this ground brought a question of law regarding failure to have regard to a relevant consideration, I would refuse leave.

Grounds 3 and 4: The Issue of the Payment of the Bond

1. [63]

   Paragraph 9 of the summons raised various contentions with regard to a bond issue, namely, that the Appeal Panel drifted from its “guiding principles”, it inquired into a “privileged matter”, and disregarded the “proper restraints of the rules of natural justice”.

2. [64]

   Mr Abdel-Messih made extensive written submissions contending that he had been denied procedural fairness because the Appeal Panel dealt with the bond when it was not a “live issue” in the Tribunal proceedings.

3. [65]

   It is quite unclear what Mr Abdel-Messih meant by these formulations, but it is clear that this complaint of a denial of procedural fairness raises a question of law. I shall proceed to deal with that issue and a further consideration concerning the jurisdiction of the Appeal Panel.

4. [66]

   In his written submissions, Mr Abdel-Messih contended that the issue of the bond was not dealt with before the Tribunal and submitted “the Appeal Panel of the Tribunal was obliged to confine itself to the decision of the Tribunal below, and the evidence which underpinned that decision for the purposes of determining whether the Tribunal had erred”.

5. [67]

   As mentioned above, this Court does not have the transcript from the Appeal Panel proceedings. Nor does it have a copy of the directions of the Appeal Panel requesting submissions on the payment of the bond. However, it should be noted that the summons quoted the direction in para 9(VI) (extracted at [20] earlier in this judgment). Further, it is clear submissions were sought by the Appeal Panel on the question as to the payment of the bond to Mr Marshall.

6. [68]

   Mr Abdel-Messih included his submissions in response to the Appeal Panel’s directions in tab 14 of Ex 2 in these proceedings. Those submissions reveal the following:

   1. (1)

      On 27 April 2017, Mr Abdel-Messih was notified via email that Mr Marshall had made a claim for the full amount of the bond held by Rental Bond Services. At this juncture, it should be noted that the Appeal Panel hearing was held on 25 May 2017.

   2. (2)

      Mr Abdel-Messih said in his submissions that he notified “Fair Trading” that the bond amount was “still subject to litigation”.

   3. (3)

      On 2 May 2017, Mr Abdel-Messih received an email from Rental Bond Services which said:

7. [69]

   The email from Rental Bond Services to Mr Abdel-Messih was sent 23 days before the hearing before the Appeal Panel. As a result, Rental Bond Services were waiting on the decision of the Appeal Panel before releasing the bond.

8. [70]

   Considering the material the Court had before it, it is clear that Mr Marshall made a claim for the bond from Rental Bond Services, Mr Abdel-Messih disputed that claim because the amount of the bond was subject to the Appeal Panel proceedings, and Rental Bond Services was holding the bond until it was notified of the Appeal Panel’s decision.

9. [71]

   Considering the absence of the transcript from the Appeal Panel proceedings, it can reasonably be inferred that at some point during the hearing, either party raised the fact that Mr Marshall had made a claim for the bond on or about 27 April 2017, and that Rental Bond Services were holding the bond until the Appeal Panel made a decision.

10. [72]

    There is nothing explicit in the materials which states the exact steps the Appeal Panel took when considering the question of the bond. However, it appeared from the Appeal Panel’s decision and Mr Abdel-Messih’s submissions that the Appeal Panel enquired as to whether the bond should be paid to Mr Marshall in light of:

    1. (1)

       Mr Marshall’s application for the bond to Rental Bond Services on or around 27 April 2017; and

    2. (2)

       Mr Abdel-Messih’s breach of s 162 of the RT Act,

Ground 3: Denial Procedural Fairness in Considering the Bond

1. [73]

   Mr Abdel-Messih directed most of his submissions regarding the Appeal Panel’s treatment of the bond to the question of procedural fairness. Entwined with these submissions were challenges to the jurisdiction of the Appeal Panel to deal with the question of the bond. That issue will be dealt with separately below.

2. [74]

   The question of “procedural unfairness” was considered in Nominal Defendant v Saleh [2011] NSWCA 16 (at [17]), where McColl JA (with whom Beazley and Giles JJA agreed) held:

3. [75]

   In Attia v Health Care Complaints Commission [2017] NSWSC 1066, the Court made the following observation as to the relevant principle regarding procedural fairness in the current context (at [174]):

4. [76]

   Based on the aforementioned analysis of how the Appeal Panel dealt with the bond issue, in my view, Mr Abdel-Messih has failed to establish he was denied procedural fairness in the Appeal Panel proceedings. The Appeal Panel made clear at [39] of their decision that a question arose at the hearing as to whether the bond had been paid to Rental Bond Services. The Appeal Panel invited both parties to make submissions in writing concerning the payment of the bond. Mr Abdel-Messih was clearly on notice that the Appeal Panel was considering whether to make an order in favour of Mr Marshall regarding the bond he had paid with respect to the unit and both parties made submissions as to the same.

5. [77]

   In my view, there has been no denial of procedural fairness. Mr Abdel-Messih was not denied a fair trial, and in fact, was even given the opportunity by the Appeal Panel to be heard by filing additional written submissions as to the bond. No issue was raised, as such, as to a miscarriage of the discretion of the Appeal Panel. However, I do consider that leave should be given to advance this ground although it should be rejected.

Ground 4: Jurisdiction of the Appeal Panel to Make Orders regarding the Payment of the Bond

1. [78]

   Mr Abdel-Messih raised the issue of the jurisdiction of the Appeal Panel which he incorrectly contended was an issue of procedural fairness and natural justice. He submitted that “the Appeal Panel had directed its attention to an issue where it had no jurisdiction”.

2. [79]

   He contended in the particulars of the summons (at para 9(V)) that he requested the Appeal Panel to not deal with the bond issue because of, inter alia, its lack of jurisdiction.

3. [80]

   Again, whether the Appeal Panel had jurisdiction is a question of law.

4. [81]

   Mr Abdel-Messih’s submitted the following:

5. [82]

   The solicitor for Mr Marshall did not address the question of jurisdiction in their submissions.

6. [83]

   Mr Abdel-Messih contended that the Appeal Panel did not have jurisdiction to deal with “offences” under the RT Act, s 202(1), which provides:

7. [84]

   The Appeal Panel proceedings were not proceedings for an offence pursuant to s 202 of the RT Act. The Appeal Panel did not charge Mr Abdel-Messih with an offence, nor did it impose a penalty under s 162(5) of the RT Act.

8. [85]

   Rather, the Appeal Panel found that Mr Abdel-Messih “did not comply with his obligations under s 162 of the RT Act in respect of the agreement with [Mr Marshall]” (at [43]). That was a factor taken into account in the exercise of its discretion and did not constitute a finding of a breach of the provisions of the RT Act.

9. [86]

   It is, however, necessary to consider whether the Appeal Panel had jurisdiction to make an order to dispose of the bond. In my view, the Appeal Panel had the requisite jurisdiction for the following reasons:

   1. (1)

      The scope of the Appeal Panel’s power to make a decision regarding the bond can be summarised as follows:

   2. (2)

      The Tribunal (and therefore the Appeal Panel by virtue of s 81 of the Act) had the power to make an order as to the payment of a bond. Section 175(1) of the RT Act provides the following:

   3. (3)

      Mr Marshall made an application for the payment of the bond and considering the inferences drawn at [71] and [72] of this judgment, the Appeal Panel was entitled to treat that application as one made before it. Mr Abdel-Messih was notified via email of that application on 27 April 2017. Rental Bond Services then confirmed via email that they were notified that the bond was “subject to a Tribunal application” and informed Mr Abdel-Messih that they will hold the bond until the Appeal Panel made a decision.

   4. (4)

      I consider that there was an application before the Appeal Panel for the payment of the bond, and that application gave the Appeal Panel the power to make an order as to the payment of the bond. Considering the analysis above, the Appeal Panel had the jurisdiction to make an order as to the payment of the bond pursuant to s 175 of the RT Act.

10. [87]

    I would give leave to bring this ground of appeal but reject it for the reasons given above. This ground of appeal is dismissed.

Ground 5: Bias

1. [88]

   In para 9 of the summons, Mr Abdel-Messih contended that he “apprehends bias and collusion in the Tribunal below”. As to the reference to “Tribunal”, this Court will infer from the proceeding particulars that he is referring to the Appeal Panel.

2. [89]

   Mr Abdel-Messih submitted that bias was apparent because the Appeal Panel upheld “erroneous legal principles”. No further submissions of any substance were made.

3. [90]

   The solicitor for Mr Marshall submitted that there was no basis for an assertion of actual or apprehended bias. I agree. There is no submission or evidence before the Court which would remotely constitute grounds for apprehended bias, let alone actual bias or collusion. It appears the real complaint is disgruntlement with the outcome of the appeal before the Appeal Panel or the reasons given for that decision. Whilst the ground may arguably raise a question of law, I would refuse leave to bring it.

Ground 6: Question of Self-Incrimination

1. [91]

   In para 9 of the summons, Mr Abdel-Messih also pleaded that “while not being bound by the rules of evidence, [the Appeal Panel] … inquired into a privileged matter”. The particulars under para 9 relate to the Appeal Panel’s dealing with the bond (see extracted above at [20]).

2. [92]

   It can be inferred that the question of self-incrimination, or rather the right to s 128 of the Evidence Act relates to the Appeal Panel’s findings at [42] and [43] that Mr Abdel-Messih did not comply with his obligations under s 162 of the RT Act. This was briefly discussed above at [85] in the context of the Appeal Panel’s jurisdiction.

3. [93]

   Section 162 of the RT Act provides:

4. [94]

   As mentioned above at [84], the Appeal Panel did not impose a penalty upon Mr Abdel-Messih. Nor did it purport to convict him of an offence.

5. [95]

   The solicitor for Mr Marshall submitted:

6. [96]

   Mr Abdel-Messih conceded in his submissions that “[i]t is unclear whether the Tribunal has an obligation to inform the Appellant of his right to make an objection under s 128 [of the Evidence Act]”.

7. [97]

   The relevant subsections of s 128 of the Evidence Act provide as follows:

8. [98]

   Section 128 of the Evidence Act is not applicable in these circumstances for the following reasons:

   1. (1)

      There was no objection from Mr Abdel-Messih to giving evidence on the payment of the bond to Rental Bond Services on the ground that he would be liable to a civil penalty (see s 128(1)(b) of the Evidence Act).

   2. (2)

      There was no obligation on the Appeal Panel to advise Mr Abdel-Messih of the privilege in respect of self-incrimination under s 128 because Mr Abdel-Messih did not, in fact, give evidence on that question, he merely made submissions concerning the payment of the bond.

9. [99]

   Whilst the application of the requirements of s 128 may, in certain circumstances, have been a question of law, it appears that, without finally deciding upon that matter, this is not one of them as the provision clearly lacks any application in the present context. I would refuse leave to appeal on this ground. Furthermore, no error of law was demonstrated.

CONCLUSION

1. [100]

   In all the circumstances, I consider that the proceedings should be disposed of as follows:

   1. (1)

      Ground 1, being that the Tribunal’s discretion did not extend to s 107(3), raised a question of law. Leave was granted and the ground dismissed. There was no error of law.

   2. (2)

      By ground 2 it was contended that, if a discretion applied to s 107(3), then the discretion miscarried. The following has been found with respect to the particular aspects of this ground:

   3. (3)

      Ground 3 contended that Mr Abdel-Messih was denied procedural fairness when the Appeal Panel considered the payment of the bond. This ground raised a question of law. Leave to appeal was granted. No error of law was found. The ground is dismissed.

   4. (4)

      Ground 4 related to whether the Appeal Panel had the jurisdiction to consider the payment of the bond. This ground raised a question of law and leave to appeal was granted. No error of law was demonstrated. The ground is dismissed.

   5. (5)

      Ground 5 was that the Appeal Panel was biased. This ground raised a question of law but leave was refused. No error of law was identified. This ground is dismissed.

   6. (6)

      Ground 6 contended that the Appeal Panel erred by not informing Mr Abdel-Messih about his rights under s 128 of the Evidence Act. This ground did not appear to raise a question of law. No error of law was identified. The ground is dismissed.

2. [101]

   The above conclusions represent the findings and determinations of the Court on the summons.

ORDERS

1. [102]

   I make the following orders:

   1. (1)

      The summons filed 19 July 2017 is dismissed.

   2. (2)

      Costs are reserved.