Halil v NSW Land and Housing Corporation (No 2) - [2023] NSWSC 1646

Supreme Court

New South Wales

Medium Neutral Citation: Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646
Hearing dates: 7 December 2023
Date of orders: 22 December 2023
Decision date: 22 December 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
(1)   Extend the time for the plaintiff to file the amended summons to appeal from the decision of the Appeal Panel dated 15 March 2023.
(2)   Refuse the plaintiff leave to appeal.
(3)   Order the plaintiff to pay the defendant’s costs of the proceedings in this Court.
(4)   In the event that any party seeks to vary the costs order, grant liberty to apply with such liberty to be exercised by notice in writing to my Associate by 20 January 2024, 5pm, with a view to directions being made in Chambers and the question(s) being determined on the papers.
(5)   Direct that the Registrar of the Court send by post a copy of these reasons for judgment to the plaintiff.

Catchwords:
ADMINISTRATIVE LAW – judicial review – from decision of New South Wales Civil and Administrative Tribunal Appeal Panel – where plaintiff raised 55 grounds of appeal – whether grounds of appeal identify a question of law – appeal dismissed

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW)
Residential Tenancies Act2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bauskis v Liew [2013] NSWCA 297
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
Corcoran v Far [2020] NSWCA 140
Edwards v State of New South Wales [2022] NSWCA 187
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875
Halil v NSW Land and Housing Corporation [2023] NSWSC 553
Hamod v New South Wales [2011] NSWCA 375
Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265
Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Mendonca v Legal Services Commissioner [2020] NSWCA 84
Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235
Saberi v Bakhshizadeh [2022] NSWCA 142
Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223

Category: Principal judgment
Parties: Hifsiye Halil (plaintiff) (self-represented)
NSW Land and Housing Corporation (defendant)
Representation:
Counsel:
S Murray (defendant)
Solicitors:
Crown Solicitor’s Office (defendant)

File Number(s): 2023/149749
Publication restriction: Nil

JUDGMENT

Introduction

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.

Background

The procedural history: the proceedings before NCAT

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 Act2010 (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]):

The [plaintiff] seeks to issue a summons on the landlord in relation to the condition of the property and lack of repair and maintenance. The [defendant] disputed the need for any summons to be issued at this late stage in the proceedings. The [defendant] stated that they have always acknowledged that the property is in need of repair, they are ready and willing to undertake any required repairs to the property, but the [plaintiff] has failed to co-operate with any attempts by them to gain access and get the repairs carried out.

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

A request to issue a summons was not made at [the] directions hearing [on 10 May 2022]. No sufficient explanation for the delay in requesting the summons even after the latest filing of the [defendant’s] documents on 29 July 2022 has been provided … The Tribunal is not persuaded that there is overall much relevance to the summons at this late stage in the proceedings in that the [defendant] concedes that the condition of the property is poor and there has been a lack of repairs and maintenance.

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:

…
3. The residential tenancy agreement is terminated immediately and possession is given to the landlord on the date of termination.
4. The order for possession is suspended until 10 October 2022.

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.

The Tribunal decisions: a short summary

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

The termination proceedings decision

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]):

… the Tribunal finds that the breach is, in the circumstances of the case, sufficient to justify termination of the agreement and make the orders as sought by the landlord …
The Tribunal is satisfied that today the [plaintiff] owes the sum of $27,330.18 for rental arrears …

The rent reduction proceedings decision

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 application for an adjournment is refused. The [plaintiff] failed to provide a reasonable explanation for the delay in making the summons request. The [plaintiff] has had the [defendant’s] evidence since July 2022, yet the request for a Summons was not made until 3 days prior to the hearing in November 2022. The [defendant] concedes the need for repairs. The [plaintiff] has not satisfied the Tribunal that the summons of maintenance records, considering the [defendant] conceding the need for repairs, is necessary. The matter has had a long and complex history and it is in the interests of the Tribunal and the parties to have the matter finalised as soon as possible.

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.

Stay of warrant of possession

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.

The appeal to this Court

The nature of the appeal: s 83 of the NCAT Act

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:

83 Appeals against appealable decisions
(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.
(2) …
(3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following—
(a) an order affirming, varying or setting aside the decision of the Tribunal,
(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.

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:

44. Section 83(1) contains two express limitations: the first is the requirement for leave; the second is the existence of a question of law – which is “not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself”: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, 178; [1988] FCA 119.
45. As to the existence of a question of law, some matters are clear. First, a mixed question of fact and law does not fall within the description of “question of law alone” (Attorney General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]), nor is it a question of law: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]. Secondly, it is insufficient to merely assert that the relevant decision-maker “erred in law” so as to satisfy the limited conferral of jurisdiction: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875 at [6] (‘Ferella’); Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] (‘Schwartz’) … Thirdly, a matter that is wholly or partly factual is not converted into legal error (or involve a question of law) merely by using the description “erred in law”: “no amount of formulary” will transform something into a legal error if it is not: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, 527; [1990] FCA 689. Fourthly, the grounds of appeal are required to explicitly identify the question of law raised: Ferella at [6] and [22]; Schwartz at [13]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [26]. Finally, although s 83(1) of the NCAT Act confines an appeal to this Court to an appeal “on a question of law”, there is no clear test available to define a question of law (Ferella at [4]) – or a test of universal application: Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389, 394; [1996] HCA 36.

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].

Time limits: appeals to this Court from the Appeal Panel

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:

(1) This section applies in relation to an appeal against a decision of the Tribunal to—
(a) the Supreme Court or District Court under this Division, or
(b) the Supreme Court, the District Court or another court under any other provision of this Act.

(2) An appeal to which this section applies must be made—
(a) within such time and in such manner as is prescribed by the rules of court for the court to which the appeal is made, or
(b) within such further time as the court may allow.

(3) The Tribunal (or any of the members constituting the Tribunal) cannot be made a party to an appeal to which this section applies. The rules of court for a court to which such an appeal may be made may make provision for the parties to any such appeal (including the designation of a respondent where the only party to the proceedings from which the appeal is brought was the appellant).
(4) In this section—
rules of court for a court includes the uniform rules under the Civil Procedure Act 2005 if the uniform rules apply to proceedings of that court.

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.

The plaintiff applies for an adjournment

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.

The amended summons

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.

No question of law

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 was a dispute on the question of law” (ground 2).

“I was not given procedural fairness” (ground 3).

“There was a miscarriage of justice” (ground 4).

“Miscarriage of justice: The [defendant] breached NCAT directions on multiple occasions which has cause (sic) me disadvantage. The [defendant] failed to follow/comply with orders made by NCAT, that unfairly cause (sic) delay in disadvantaged my ability to respond and defend proceedings” (ground 18).

“Breach of quite (sic) enjoyment by a landlord” (ground 20).

“Breach of residential tenancy agreement by landlord” (ground 21).

“Malicious and vexatious litigation by the [defendant]: I was perused (sic) by the [defendant] … for a retrospective debt of $30,000 that was later withdrawn by the landlord in August 2021. This action caused the current debt to compound because the [defendant] acted unconscionable (sic) and unjustly towards me” (ground 22).

“Failure to deal with complete application” (ground 31).

“Error of law Residential Tenancies Act 2010 sections s141, s45, S43, s44, s65, s187, s50, s65(1)(b), 111, 115” (ground 32).

“Denial of procedural fairness” (ground 34).

“The Tribunal misapplied the law to the facts that it found” (ground 38).

“Decision not fair and equitable” (ground 41).

“NCAT decision raises issues of principle” (ground 44).

“There has been an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal’s decision and not merely peripheral, so that it would be unjust to allow the finding to stand” (ground 47).

The complaint involves a question of fact

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:

A finding that “is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way” is an error of fact, not of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156 (‘Azzopardi’). Moreover, “no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another”: Azzopardi at 151.

Whether “there was no evidence to support a factual finding is a question of law, not of fact”; thus, it is an error of law to make a finding of fact for which there is no evidence: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [90]-[91]; Azzopardi at 149 and 151.

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

“Incorrect/invalid tenancy agreement - I dispute the residential tenancy agreement submitted by the landlord; to the tribunal, I submit that the residential tenancy agreement that was submitted to the tribunal by the [defendant], is not the same as the document that I have in my possession” (ground 6).

“I dispute the debt and rent ledger. I dispute the amount of arrears alleged. Only a single page of the rent ledger was every (sic) given to me and therefore did not give me the opportunity to look at it or pick out errors” (ground 7).

“The termination notices contain errors. Section 111 Residential Tenancies Act: An order declaring that a termination notice was or was not given in accordance with the Act” (ground 8).

“False and misleading representation by [the defendant] … The [defendant] made false and misleading representations to the tribunal regarding the cause of the flood of the property …” (ground 24).

“NCAT did not consider relevant matter/evidence: sufficient consideration was not given to the evidence I submitted for the termination matter” (ground 25).

“The Tribunal did not have any evidence to support its factual finding” (ground 37). (Although, superficially, this might be a step towards a question of law, the ground is fully set out in the quote: there are, thus, no particulars of the factual finding that was unsupported by evidence).

“NCAT did not consider relevant matter/evidence. The tribunal erred in failing to consider other relevant circumstances” (ground 39).

“The finding of fact has been unreasonably arrived at resulting in unfairness” (ground 43).

“NCAT decision contains an error which raises a question of public importance …” (ground 45).

“The NCAT finding contains plain and readily apparent errors, so that it would be unjust to allow it to stand” (ground 46).

“Many factual errors that were unreasonably arrived at and clearly mistaken” (ground 48).

“Decision against the weight of evidence” (ground 50).

“The tribunal unfairly and incorrectly accepted the dates and assertions given by the defendant” (ground 51).

“the tribunal has failed to consider directly relevant evidence. The tribunal did not give sufficient weight to objective and independent evidence that was provided by the [plaintiff] which ought to have been given weight” (ground 52).

“The tribunal gave wight (sic) to unsubstantiated evidence given by the [defendant]. I have provided the tribunal with evidence to show that the [defendant] is unreliable, and their statements cannot be taken as being true” (ground 54).

“I have provided the tribunal evidence of Michelle Parkinson making false and misleading representation (sic) to the tribunal in writing and then changing her position …” (ground 55).

The error is directed to the decisions of the Tribunal, not the Appeal Panel

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:

“The tribunal did not have jurisdiction to determine the matter and that the sections of the Residential Tenancies Act 2010 have not been satisfied. There was no justification for termination or possession” (ground 5).

The tribunal made an error of law regarding section: section 87(4) of the Residential Tenancies Act 2010 …” (ground 10).

“The tribunal made an error of law regarding section: section 87(5) (c) of the Residential Tenancies Act 2010…” (ground 11).

“The tribunal made an error of law regarding section: section 87(5) (d) of the Residential Tenancies Act 2010 …” (ground 12).

“The tribunal made an error of law regarding section: 88 (3) RTA 2010 …” (ground 13).

“The tribunal made an error of law regarding section: Section 89 (5) of the Residential Tenancies Act 2010 …” (ground 14).

“The [defendant] conducted the matter in a way that unfairly disadvantaged me. The tribunal made an error of law and failed to consider my application and evidence …” (ground 15).

“The tribunal made an error of law regarding section: Section 94 of the Residential Tenancies Act 2010 …” (ground 16).

“The tribunal made an error of law regarding section: S154E Housing Act 2001 …” (ground 17).

“The tribunal unfairly refused to request to issue a summons to obtain documents from the [defendant] which would have supported my claim” (ground 19).

“The tribunal considered irrelevant documents that where (sic) not prevalent (sic) to the matter” (ground 23).

“NCAT refused to issue a summons on two separate applications” (ground 28).

“The tribunal made an error of law regarding mitigation of loss. Tribunal erred in finding that the [plaintiff] had failed to mitigate loss” (ground 29).

“The tribunal made an error of law regarding access to property” (ground 30).

“Failure to apply relevant legislation. NCAT made an error of law by interpreting the Residential Tenancies Act incorrectly…” (ground 33).

“NCAT made an error of law by taking into account irrelevant considerations. Misinterpretation of and error in applying facts and evidence” (ground 35).

“NCAT made an error of law by failing to give an adequate explanation of its reasoning process. The Tribunal did not give adequate reasons for the decision” (ground 36).

“The tribunal member assisted the [defendant] in making submissions and coached the [defendant] in replying to the [plaintiff]. Issues were raised by the Member at the hearing that were not the subject of any prior submission or evidence put forward by the [defendant]” (ground 40).

“The tribunal had failed to make specific findings about critical matters. There was a significant possibility that a different result would have followed if that finding had been made and that a substantial miscarriage mas (sic) occurred” (ground 42).

“the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed” (ground 49).

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.

Consideration: the grounds that justified the grant of a stay of the warrant for possession

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.

Denying the plaintiff an opportunity to adduce additional material: ground 1

Introduction

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 Appeal Panel erred in law in denying Mr Hassan, who appeared for his aunt, the opportunity to put before the Appeal Panel additional material which he had indicated at the call over he wished to rely upon. He says it had been indicated to him that he would be given that opportunity and an adjournment if necessary would be considered. Now it seems to me that in the circumstances – and I will not go through all of the detail in relation to the circumstances as it has been expounded before me – that is arguably a natural justice point in that the plaintiff was not given the opportunity to put all the relevant material before the Appeal Panel and an adjournment was refused.

The plaintiff’s ground of appeal in this Court

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

On the 28 February 2023. The tribunal set a short and unjust timetable for making written submissions and submitting evidence. The tribunal and the landlord made undertaking (sic) that the matter would have been adjourned at the request of the tenant. However, on the day of the hearing the tribunal refused to grant the adjournment as discussed during the call over. The tribunal then unfairly dismissed the matters without allowing time for submissions and evidence to be made.

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:

I objected and said I would have difficulties making the submissions on time and the tribunal member made orders that if submissions or evidence could not be prepared then he would adjourn the matter.
The principal member also made the defendant give an undertaking that they would not object to an adjournment being given if the 9-day timetable could not be met.

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.

Some further matters of background

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:

50. The Appeal Panel made directions for the preparation of the rent reduction appeal on 8 February 2023. The Appeal Panel made a number of orders in relation to the preparation of that appeal including the following:
1. leave was granted to the [plaintiff’s] nephew (Mr M Hassan) to represent her on the appeal;
2. the [plaintiff] was to lodge and serve all the evidence given to the Tribunal at first instance on which she intended to rely, and any evidence not provided to the Tribunal at first instance on which she intended to seek leave to rely by 17 February 2023; and
3. the [defendant] was directed to do likewise by 24 February 2023.

51. In making those directions the Appeal Panel sensibly noted that the directions provided less time than usual for compliance and noted that should those directions be unable to be met the rent reduction appeal “may be adjourned and heard separately from” the termination appeal (emphasis ours).

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]):

59. At the commencement of the hearing of the two appeals we heard the [plaintiff’s] oral submissions in support of her application for adjournment. We refused the adjournment application for reasons given orally at that time.

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.

Consideration

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]:

43. Returning to the narrative, and also on 15 December 2022, and in accordance with the Appeal Panel’s directions made on 11 November 2022, the [plaintiff] lodged with the Appeal Registry a bundle of documents consisting of 570 pages for the termination appeal.
44. Self-evidently, the bundle of 570 pages was a selection of documents taken from the 1,500 pages of documents the [plaintiff] had available to her. It is clear from the fact that the bundle was hand-paginated that some thought had been given to which documents were to be included in that bundle and indicates that the [plaintiff] did not consider the balance of the 1,500 pages of documents were necessary to her case.

45. We should add that most of the documents in the bundle of 570 pages was not provided by the [plaintiff] to either Tribunal below. It is not appropriate to consider that material for that reason. There was no evidence that any of that material was not reasonably available to the [plaintiff] at the time of the two Tribunal hearings and so is not admissible to found an application for leave to appeal under cl 12(1)(c) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the “NCAT Act”).

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):

The members said I should have submitted the evidence in December 2022, however the first call over hearing for the matter was only held on 08 February 2023.

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 manner in which the Appeal Panel dealt with the “retaliation” issue: ground 9

Introduction

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]):

10. The second point that I consider to be arguable is that the Appeal Panel was dismissive of the argument in relation to the termination appeal that the termination was retaliatory. Again, it is not necessary to go through all of the facts and circumstances in relation to the matter but it seems to me there is a possible factual basis for that in terms of the chronology of the commencement of the various competing applications in the Tribunal …
11. I am not here to decide the appeal. I am here to decide the application for a stay but it seems to me the issue was well and truly joined on that point and that if it was dismissed out of hand by the Appeal Panel, and if that can be established at the hearing, that is a matter involving an error of law in the sense of the Appeal Panel’s decision-making process having miscarried by reason of it not dealing in an appropriate manner with an argument seriously advanced and worthy of consideration.

The plaintiff’s ground of appeal in this Court

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

The Tribunal made an error of law regarding section 115 Residential Tenancies Act: An order declaring that a termination notice has no effect because it was a retaliatory notice.

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

The plaintiff argued (page 11):

The eviction and cancellation of subsidy was retaliatory because I was seeking legal action against the landlord for breach of tenancy agreement by the landlord. This dispute with the client service officer arose before the cancellation of the subsidy an initial termination in January 2021.

The plaintiff argued (page 13):

retaliatory eviction because: I sought legal recourse against the landlord for the action of the client service officers for breach of quite (sic) enjoyment of property, breach of privacy and repairs, breach of tenancy agreement by the landlord.

The plaintiff argued (page 16):

The tribunal failed to deal with complete application specifically in relation to retaliatory termination.

Discussion and consideration

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.

The Appeal Panel’s reasons on “retaliation”

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.

The (relevant) procedural history before NCAT

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 decision of the Appeal Panel

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

The [plaintiff] submitted that the termination notice was retaliatory. No oral or written submissions were advanced to support that submission and it does not appear to have been raised below. We take the view the ground was abandoned. If not abandoned, we see no substance in it.

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 absence of documents in the rent reduction proceedings before the Tribunal: grounds 26, 27 and 53

Introduction

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]):

… in relation to the rent reduction proceedings inasmuch documents which had been previously filed in respect of an earlier rent reduction application (which had been dismissed for nonappearance) were not available to [the Tribunal] who considered that matter, as I said. It may be that those documents, had they been available, could have included evidence possibly affecting the assessment of the issues in relation to the rent reduction.

The plaintiff’s grounds of appeal in this Court

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):

26. Failure of tribunal to manage documents and evidence submitted.
27. The tribunal member did not have all my evidence I submitted to the tribunal. I later discovered that the tribunal incorrectly place all my evidence into off-site storage. The tribunal failed and refused to retrieve the evidence. The matter should not have proceeded to hearing on until the tribunal discover what happened to all my evidence. Concerns were raised on multiple occasions to the member during the hearing that she did not have all my evidence.
…
53. Evidence of the plaintiff was incorrectly placed into off-site storage. The tribunal members did not have a large portion of my evidence in their possession.

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

The plaintiff’s grounds of appeal before the Appeal Panel

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 tribunal member did not have all my evidence I submitted to the tribunal. I later discovered that the tribunal incorrectly place (sic) all my evidence into off-site storage. The tribunal failed and refused to retrieve the evidence.
The matter should not have proceeded to hearing on the 21 November 22 until the tribunal discover (sic) what happened to all my evidence. Concerns were raised on multiple occasions to the member during the hearing that she did not have all my evidence.
Failure of tribunal to manage documents and evidence submitted.

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]):

32. During the hearing of the rent reduction proceedings the Member checked with the parties whether she had all of the evidence on which the parties’ desired to rely. During that process the following exchange took place between the Member and Mr Hassan:
“MEMBER EFTIMIOU: So, it’s one, two, three, four, ﬁve, six, seven lots of documents.
MR HASSAN: Okay. [0:41:20]. Okay. Yeah. That sounds about right.
MEMBER EFTIMIOU: So, you say everything contained in those documents is true and correct, and that’s your sworn evidence that you seek to rely upon today. Is that correct?
MR HASSAN: Yes. That’s right.
MEMBER EFTIMIOU: Any additions or corrections to those documents?
MR HASSAN: No. Just I wanted to – the 18 November documents, is that the adjournment and summons as well in there?
MEMBER EFTIMIOU: Yes. Correct.
MR HASSAN: Yeah.”

33. Subsequently, a question arose whether the Tribunal had before it a report headed Jim’s Building Inspection Report (a copy was provided on the appeal) which asserted that the premises were in poor condition with safety hazards, major and minor defects. We divert briefly to observe that the presence of safety hazards and major defects strengthen the case for the termination of the residential tenancy agreement due to the potential detrimental effects the hazards and defects may have on the tenant’s physical and mental wellbeing.
34. The Tribunal said it did not have a copy of the Jim’s Building Inspection Report, and the landlord said it had not been served with a copy. The matter was left on the basis that that report would be emailed to the Tribunal after the hearing. The Tribunal’s decision was reserved. No copy of the Jim’s Building Inspection Report was emailed to the Tribunal after the hearing.
35. On the appeal Mr Hassan said that at the hearing before the Tribunal on 21 November 2022 he had objected to the Tribunal proceeding with the hearing because the Tribunal did not have all of the documents lodged by the tenant. A fair reading of the transcript of that hearing contradicts that assertion. The only document allegedly lodged by the tenant and which the Tribunal did not have was the Jim’s Building Inspection Report. Despite the Tribunal’s invitation, the tenant did not subsequently provide that report to the Tribunal. Otherwise, as recorded in the transcript and quoted above, Mr Hassan confirmed the Tribunal had all of the documents on which the tenant relied. The Tribunal reserved its decision, with a written decision being given on 4 January 2023.

36. Meanwhile, on 8 December 2022, and in relation to the rent reduction proceedings, the tenant wrote to the Tribunal asking the Tribunal to retrieve its file in the original rent reduction proceedings.
37. On 15 December 2022, the Tribunal wrote to the tenant and said that the Tribunal’s file in the original rent reduction proceedings was now stored offsite and could not be retrieved. The Tribunal advised the tenant that:
“Every case must be considered based on the documents provided for that ﬁle. If you wish to rely on any documents for matter RT 22/16245 you may consider lodging them for that ﬁle.
The Registry will then refer the additional documents to the Presiding Tribunal Member for consideration.”

38. The significance of that correspondence is that the tenant asserted on the appeal that the documents contained in that original file were relevant to the issues in dispute in the termination and rent reduction proceedings but were not provided to the Tribunal Members who heard those proceedings on 12 September 2022 (the termination proceedings) or 21 November 2022 (the rent reduction proceedings).
39. On the appeal the tenant said that this original file contained some 1,500 pages of documents which were relevant to both proceedings and the appeal from the orders both proceedings. The tenant directed our attention to the Tribunal’s correspondence set out at [36]-[37] above and asserted that this proved the documents were not available to the Tribunals which heard the termination and rent reduction proceedings.
40. It is significant to note that on the appeal the tenant conceded in oral submissions that she had, and has always had, copies of those 1,500 pages of documents. She was advised by the Tribunal on 15 December 2022 to lodge them again if she wished to rely on them and they would be referred to the Tribunal Member who heard the rent reduction proceedings. She did not do so.
41. Nor did she do so on either appeal. Insofar as she claims on the appeals a denial of procedural fairness by reason of the fact that she did not provide the 1,500 pages of documents to the Tribunals because, she alleged, the Tribunal could not retrieve them, the claim fails for two reasons. First, she was given the opportunity to lodge them with the Tribunal as evidenced by the Tribunal’s correspondence of 15 December 2022. Second, she did not provide those documents to us. Procedural fairness is concerned with “practical injustice”. That is, the tenant is required to demonstrate that the alleged denial of procedural fairness effected a practical injustice in order for that claim to be actionable. As Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

42. The absence of the documents on the appeals, and the matters we refer to at [44]-[45] below, means that the tenant has not demonstrated any practical injustice from their absence before the Tribunals (assuming that was the case).

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.

Orders

For the above reasons, I make the following orders:

Extend the time for the plaintiff to file the amended summons to appeal from the decision of the Appeal Panel dated 15 March 2023.

Refuse the plaintiff leave to appeal.

Order the plaintiff to pay the defendant’s costs of the proceedings in this Court.

In the event that any party seeks to vary the costs order, grant liberty to apply with such liberty to be exercised by notice in writing to my Associate by 20 January 2024, 5pm, with a view to directions being made in Chambers and the question(s) being determined on the papers.

Direct that the Registrar of the Court send by post a copy of these reasons for judgment to the plaintiff.

********

Decision last updated: 22 December 2023

Medium Neutral Citation:	Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646
Hearing dates:	7 December 2023
Date of orders:	22 December 2023
Decision date:	22 December 2023
Jurisdiction:	Common Law
Before:	Chen J
Decision:	(1) Extend the time for the plaintiff to file the amended summons to appeal from the decision of the Appeal Panel dated 15 March 2023. (2) Refuse the plaintiff leave to appeal. (3) Order the plaintiff to pay the defendant’s costs of the proceedings in this Court. (4) In the event that any party seeks to vary the costs order, grant liberty to apply with such liberty to be exercised by notice in writing to my Associate by 20 January 2024, 5pm, with a view to directions being made in Chambers and the question(s) being determined on the papers. (5) Direct that the Registrar of the Court send by post a copy of these reasons for judgment to the plaintiff.
Catchwords:	ADMINISTRATIVE LAW – judicial review – from decision of New South Wales Civil and Administrative Tribunal Appeal Panel – where plaintiff raised 55 grounds of appeal – whether grounds of appeal identify a question of law – appeal dismissed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Residential Tenancies Act2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bauskis v Liew [2013] NSWCA 297 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Corcoran v Far [2020] NSWCA 140 Edwards v State of New South Wales [2022] NSWCA 187 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875 Halil v NSW Land and Housing Corporation [2023] NSWSC 553 Hamod v New South Wales [2011] NSWCA 375 Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Mendonca v Legal Services Commissioner [2020] NSWCA 84 Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 Saberi v Bakhshizadeh [2022] NSWCA 142 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223
Category:	Principal judgment
Parties:	Hifsiye Halil (plaintiff) (self-represented) NSW Land and Housing Corporation (defendant)
Representation:	Counsel: S Murray (defendant) Solicitors: Crown Solicitor’s Office (defendant)
File Number(s):	2023/149749
Publication restriction:	Nil