Kolodzeij v Ali & Anor (Appeal)

[2021] ACAT 114

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KOLODZEIJ v ALI & ANOR (Appeal) [2021] ACAT 114

AA 41/2020 (RT 547/2020)

Catchwords:               APPEAL – residential tenancies – determination of whether appeal proceed as a review of the original decision or as a new application – consideration of relevant principles regarding appropriate manner of conducting appeal – application for leave to adduce further evidence – relevant principles – application on appeal to proceed as a review – application to lead further evidence dismissed

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 79, 82

Subordinate

Legislation cited:        ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91

Cases cited:B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324 [2013] ACTSC 219

CDJ v VAJ (No 1) [1998] HCA 67
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56
Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207
Mansour v Dangar [2017] ACAT 49
Roberts v Morgan & Anor [2017] ACAT 70
Thornthwaite and Commissioner for Social Housing in the ACT [2012] ACAT 11

Appeal Tribunal:       Presidential Member G McCarthy

Date of Orders:  23 November 2021

Date of Reasons for Decision:      23 November 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 41/2020

BETWEEN:

ILKA KOLODZEIJ

Appellant

AND:

SHERIF ALI ABDELAZIZ ALI

First Respondent

THE OWNERS – UNITS PLAN 3889

Second Respondent

APPEAL TRIBUNAL:      Presidential Member G McCarthy

DATE:23 November 2021

ORDER

The Tribunal orders that:

1. The appellant on appeal has leave to proceed on the amended application for appeal dated 23 November 2020 but filed on 9 December 2020.

2. The appellant has leave to treat an unsigned and undated document entitled “Re AA 41/2020 Additional information” as a statement of additional grounds of appeal.

3. The appeal will be dealt with as a review of the original decision.

4. The appellant’s application for leave to adduce further evidence is dismissed.

5. The matter is listed for further directions by telephone on 30 November 2021 at 9:00am.

   ………………………………..

   Presidential Member G McCarthy

REASONS FOR DECISION

1. On 2 May 2017, the first respondent entered into a residential tenancy agreement with the appellant for lease of unit premises in Belconnen, ACT. The agreement was for 12 months but continued as a periodic tenancy.

2. On 6 August 2020, the first respondent brought proceedings against the appellant alleging that the appellant had failed to maintain the premises in a reasonable state of repair, in breach of clause 55 of the standard residential tenancy terms that formed part of the tenancy agreement. The respondent made four claims for compensation arising from an intercom to the premises that was not working; entry of rainwater through an unsealed window; inconvenience caused by an overpayment of rent; and a “ticking noise” that was inconvenient and annoying.

3. On 26 October 2020, the original tribunal allowed the first two claims and dismissed the second two. It made orders that the appellant pay the first respondent the sum of $10,024.47 comprised of $6,738.64 for the intercom that was not working and $3,123.23 for damage caused by the rainwater entering through the unsealed window. It also ordered the appellant to pay the first respondent $162.50 by way of a refund of the filing fee. The original tribunal gave oral reasons for its decision.

4. By application for appeal dated 23 November 2020, the appellant appealed on three stated grounds. By amended application for appeal also dated 23 November 2020, but filed on 9 December 2020, the appellant amended the grounds for appeal by reference to an unsigned and undated document entitled “Re: AA 41/2020 Additional information”. Where there was no objection to the appellant relying on the amended application for appeal, on 30 April 2021 I granted leave for the appellant to proceed by reference to the amended application (the appeal).[1]

   [1] Transcript of proceedings 30 April 2021, page 20, lines 29-38

5. On 8 January 2021, the second respondent, the Owners Corporation – Units Plan No 3889, was joined as a party to the appeal notwithstanding it not being a party to the original proceeding. It appears that the second respondent agreed to do so for the purpose of participating in a mediation, but (as Ms Hogan, solicitor for the second respondent, properly accepted) once joined, it was joined for all purposes.[2]

   [2] Transcript of proceedings 30 April 2021, page 34, lines 1-15

6. On 30 April 2021, the appeal was listed for hearing. Mr Stefaniak appeared for the appellant. The first respondent appeared for himself. Ms Hogan appeared for the second respondent. On that day, it became evident that Mr Stefaniak and Ms Hogan, at least, understood that the hearing was to determine two preliminary questions:

   (a)whether the appeal should proceed as a new application or as a review of the original decision; and

   (b)if the latter, whether the appellant should have leave to adduce further evidence.

New application or review

1. Section 82(1) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides:

   82     Appeal tribunal—general powers

   (1)An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal—

   (a)as a new application; or

   (b)as a review of all or part of the original decision on the application by the tribunal.

2. Regarding the difference between dealing with the appeal as a new application and dealing with it as a review of all part of the original decision, in Legal Practitioner v Council of the Law Society of the ACT, the Supreme Court per Refshauge J said:

   13.    The drafters have, for reasons to which I am not privy, decided not to use terms that have relatively clear meanings, such as “hearing de novo” and “rehearing”. These terms have received considerable judicial interpretation and, though the precise boundaries of their meaning may not be exact, are tolerably well understood. See Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (at [67] to [78]).

   14. It seems to me that the appeal in s 82(a) is what is usually called a “hearing de novo” and that the appeal in s 82(b) is what is usually called a “rehearing”.[3]

   [3] Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 at [13]-[14]. These statements were confirmed in Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [36]-[37].

3. In B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324 the Supreme Court, per Burns J, likewise said:

   The ACAT is then empowered by s 82 effectively to elect to deal with the appeal as a hearing de novo (s 82(a)) or as a rehearing (s 82(b)).[4]

   [4] B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324 [2013] ACTSC 219 at [12]

4. Per the text in section 82(1) of the ACAT Act, it is for the Appeal Tribunal, in each case, to determine which method of hearing the appeal it ‘considers appropriate’.

5. In Mansour v Dangar[5] Presidential Member Daniel, sitting as the Appeal Tribunal, commented on the principles to be applied when deciding which manner of dealing with an appeal is ‘appropriate’. I adopt those principles and agree with them.

   [5] Mansour v Dangar [2017] ACAT 49 at [18]-[23]. See also Roberts v Morgan & Anor [2017] ACAT 70 at [20]-[22]

6. In summary, I consider the principles for the purpose of determining which manner of hearing an appeal is appropriate are as follows:

   (a)Whichever manner the appeal is heard, it is incumbent on the appellant to establish an error of fact or law that affected the result.[6]

   (b)Whichever manner the appeal is heard, “the purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the previous decision. If that was so there would be no point in the original hearing”.[7]

   (c)When deciding which manner of hearing the appeal is ‘appropriate’, the Appeal Tribunal should be guided by which procedure will enable the appeal to be “resolved as quickly as is consistent with achieving justice”.[8]

   (d)An application for appeal that alleges only errors of law or errors of fact on the part of the original tribunal in its reasons for decision, will, in most cases, be most expeditiously dealt with as a rehearing. This is so, even if in exceptional circumstances leave is granted for the admission of further evidence.[9]

   (e)An application for appeal that raises “a real failure of process at the original hearing, such as a failure to hear both parties”,[10] or errors that fundamentally undermined the integrity of the original proceeding and its outcome, for example a lack of procedural fairness or bias leading to a consequence of that kind, might be more expediently dealt with by hearing the appeal as a new application.

   (f)On a new application, it remains for the Appeal Tribunal to determine whether the admission of further evidence is in the interests of justice. It also remains incumbent on the appellant to show error of fact or law that affected the result.

   [6] ACT Civil and Administrative Tribunal Act 2008 section 79(3); Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [39]; Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [54]-[55]

   [7] Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [48]; Thornthwaite and Commissioner for Social Housing in the ACT [2012] ACAT 11 at [52]-[54]

   [8] ACT Civil and Administrative Tribunal Act 2008 section 6(c); Mansour v Dangar [2017] ACAT 49 at [20]

   [9] Mansour v Dangar [2017] ACAT 49 at [23]

   [10] Mansour v Dangar [2017] ACAT 49 at [23]

7. In this case, Mr Stefaniak, appearing for the appellant, was equivocal about whether the appeal proceed as a new application or as a review of the original decision. His primary concern was, he said, that the parties in the original proceeding did not have “any idea”[11] what they were doing; that the original tribunal should have “delved down”[12] to obtain further detail about the first respondent’s claim; that the original tribunal should have advised both parties that they were able to ask questions of each other by way of cross-examination;[13] and that leave should be given on appeal to enable these things to occur.

   [11] Transcript of proceedings 30 April 2021, page 13 line 2

   [12] Transcript of proceedings 30 April 2021, page 9, line 28, page 24, line 36

   [13] Transcript of proceedings 30 April 2021, page 7 line 28

8. In particular, Mr Stefaniak wishes to cross-examine the first respondent in relation to his evidence across a wide range of matters[14] and to call the appellant’s property manager as a witness to give further evidence. He also seeks leave to tender further documentary evidence, as discussed below.

   [14] See further submissions of the appellant filed on 13 May 2021

9. In answer to my proposition that his case, in summary, was that if he had been presenting the appellant’s case at the original hearing he “would have done it differently, and … would like an opportunity to do so”, Mr Stefaniak answered “Yes, absolutely”.[15]

   [15] Transcript of proceedings 30 April 2021, page 35, lines 35-38

10. As a matter of principle, I reject the submission. As stated above, an appeal is not an opportunity to have another go. It is a mechanism to correct error. I am not persuaded that any of the procedural issues upon which Mr Stefaniak relied constitute procedural error on the part of the original tribunal.

11. Small claims of the kind dealt with by the original tribunal in this case are routinely, if not invariably, conducted by self-represented parties. They put their cases as they choose. Nothing in the transcript of the original tribunal proceeding persuades me that neither party had ‘any idea’ what they were doing. To the contrary, the first respondent’s residential tenancies application involved four precise claims which he and the appellant’s representative dealt with. The fact that Mr Stefaniak, if he had been representing the appellant, would have responded to the claim differently is not to the point.

12. The fact that Mr Stefaniak, looking back at the manner in which the matter was conducted, thinks that questions should have been asked or other evidence should have been tendered or a request to cross-examine should have been made is equally not to the point. Such is the lament of many a person involved in litigation who does not like the outcome of a claim.

13. In issue is whether the original tribunal erred in its conduct of the hearing. I am not persuaded that it did.

14. Mr Stefaniak criticises the senior member who conducted the original hearing because she “has not asked terribly many questions herself”,[16] – but that is not an error. It was her prerogative to ask such questions as she thought appropriate, or not to ask questions at all, depending on her judgement about what she wished to know and with regard to the parties’ prerogative to present their respective cases as they wished.

    [16] Transcript of proceedings 30 April 2021, page 8, line 22

15. Mr Stefaniak criticises the senior member for not offering the parties a chance to cross-examine each other, but the original proceeding was not conducted in a manner that lent itself to cross-examination. To the contrary, the senior member noted that she had received a large amount of documentation and proposed to the parties that they (and the tribunal) deal “with each of the issues one by one”.[17] She asked if that sounded “like a fair way to proceed at this stage?”,[18] and both parties agreed. The hearing proceeded on that basis.

    [17] Transcript of proceedings 26 October 2020, page 3, lines 11-14

    [18] Transcript of proceedings 26 October 2020, page 3, line 14

16. Mr Stefaniak agreed that there is “nothing in the transcript”[19] to suggest that either party wished to ask the other any questions. Mr Stefaniak could not point to anything in the transcript to suggest that his client or her representative was wanting to do something and not being given the opportunity to do so. He said that he “can’t see anything” in the transcript to show that someone was “specifically stopped from asking something or from making some comment”.[20] He offered that the senior member “conducted a very pleasant hearing as such”.[21]

    [19] Transcript of proceedings 30 April 2021, page 14, line 14

    [20] Transcript of proceedings 30 April 2021, page 14, lines 34-36

    [21] Transcript of proceedings 30 April 2021, page 14, line 37

17. When I enquired about whether anyone was disputing anything that was being put, Mr Stefaniak referred only to disagreement on the first respondent’s part regarding how many times the agent attempted to contact the first respondent for the purpose of arranging a time for a technician to access his apartment to fix the intercom and when that occurred.[22] Mr Stefaniak submitted that the issue needed “further explanation”. I do not agree. Mr Stefaniak might have done so if he had been at the original hearing, but the issue was not taken further by anyone. Also, it is apparent that the issue had little to do with the outcome. The original tribunal focused on how many days the intercom was not working, even if “we don’t know why it took so long”[23] to fix it.

    [22] See Transcript of proceedings 30 April 2021, page 15

    [23] Transcript of proceedings 26 October 2020, pages 13-15

18. I am unable to discern any procedural error in the manner in which the original tribunal conducted the hearing. In particular, it was required to adopt procedures that were “as simple, quick, inexpensive and informal as [was] consistent with achieving justice” and that would facilitate “the resolution of the issues between the parties” in a manner that was “proportionate to the importance and complexity of the subject matter of the proceeding”.[24] In my view, the original tribunal did so. The fact that Mr Stefaniak might have conducted the appellant’s case differently is irrelevant.

    [24] ACT Civil and Administrative Tribunal Act 2008 section 7

19. For these reasons, I am satisfied that the appeal should deal with the appeal as a rehearing, not as a new application.

Leave to introduce further evidence

1. Rule 91(c) of the ACT Civil and Administrative Tribunal Rules 2020 provides:

   For an appeal within the tribunal, the appeal tribunal–

   …

   (c)     may, if leave is granted, received further evidence about questions of fact, either orally or in a hearing, by written statement or in another way.

2. The principles regarding the grant of leave to introduce further evidence on appeal are well-settled. They are usefully summarised by President Neate in Hurst-Myers v Aulich Civil Law Pty Ltd.[25] President Neate drew on the High Court’s decision in CDJ v VAJ (No 1)[26] to say that the reception of further evidence on appeal should be “exceptional”. He noted Justice Gaudron’s view that:

   ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing.[27]

   [25] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [11]-[30]

   [26] CDJ v VAJ (No 1) [1998] HCA 67

   [27] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [24]

3. President Neate noted the observations of Justices McHugh, Gummow and Callinan, who stated that factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to whether the discretion to admit new evidence should be exercised. He noted their Honours’ view that:

   Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial.[28]

   [28] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [25]

4. President Neate concluded by saying that from these authorities:

   [I]t is apparent that an Appeal Tribunal would only grant leave to admit further evidence about questions of fact in exceptional circumstances where it serves the demands of justice to do so.[29]

   [29] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [30]

5. In this appeal, Mr Stefaniak sought leave to adduce the following further evidence:

   (a)Evidence from the Bureau of Meteorology (BOM) regarding rainfall from when the first respondent reported a leak from his external window[30] to show that it was “a pretty dry year”.[31] The evidence, I surmised, would be to show that rainwater did not often leak through the first respondent’s window.

   (b)The standard operating procedures used by the appellant’s real estate agent, Independent Property Group (IPG). As I understood it, Mr Stefaniak wishes to focus on the agency’s procedures regarding contacting tenants in response to complaints about defects and, perhaps, its procedures regarding rectification of defects.

   (c)Evidence from the appellant’s agency manager, Ms Minto, to be given as evidence in chief about IPG’s procedures.

   (d)Evidence that the first respondent would give under cross-examination by the appellant or her legal representative.

   [30] Transcript of proceedings 30 April 2021, page 21, line 36-39

   [31] Transcript of proceedings 30 April 2021, page 28, line 3

6. The respondents opposed the grant of leave for the appellant to lead the proposed further evidence. The first respondent stated that he did not wish to be cross-examined.[32]

   [32] Transcript of proceedings 30 April 2021, page 29, line 46

7. Applying the abovementioned principles regarding the grant of leave to adduce the proposed further evidence, leave must be refused in each case.

8. It is apparent that BOM data regarding rainfall and IPG’s standard operating procedures were available at the time of the original hearing. There is no suggestion that the appellant’s agent was, for whatever reason, unable to provide any of that evidence at the hearing. Leave to adduce these documents by way of further evidence is being sought simply because Mr Stefaniak thinks, in hindsight, that the documents would be useful. That is an observation that many a litigant makes after the event. I am not satisfied that there are ‘exceptional circumstances’ that justify the grant of leave to admit these documents.

1. Nor am I presently satisfied that the documents, if admitted, would have affected the result. Even if there were more or less days when it rained, or did not rain, the original tribunal acknowledged in its reasons that leakage occurred only when it rained.[33] It adjusted the first respondent’s claim down accordingly and allowed a daily rate from 14 November 2017 to 13 July 2020 regardless of whether it was raining or not on any particular day. Likewise, IPG’s procedures may evidence its standard operating procedures, but are not evidence of what actually happened.

   [33] Transcript of proceedings 26 October 2020, page 43, lines 35-38

2. I am not persuaded that I should give leave for the appellant to call Ms Minto to give evidence. There is no suggestion that she, or someone else from IPG, was not free to give evidence at the original hearing had they wished to do so. Nor is there any specificity about what her evidence would be. It seems to be no more than an offer on Mr Stefaniak’s part to call Ms Minto to give evidence in relation to IPG’s operating procedures and to make her available for cross-examination about them. That is inappropriate, in the context of an appeal by way of a rehearing. Nor is there an explanation about how her evidence would affect the result of the original hearing.

3. I make the same observation about Mr Stefaniak’s wish to cross-examine the first respondent. There is no suggestion that the appellant was denied that opportunity at the original hearing. I see no reason why that opportunity should, now, be given on appeal.

4. Also, there is nothing to indicate what evidence the first respondent would give in cross-examination. In relation to his proposed cross-examination, Mr Stefaniak said “and obviously I can’t say how those questions will be answered”.[34] It is difficult to see how the appellant can establish that the further evidence will affect the result when she does not know what the evidence will be.

   [34] Transcript of proceedings 30 April 2021, page 23, line 29

5. For these reasons, leave to adduce any of the proposed further evidence is refused.

Other matters

1. The second respondent was not a party to the original proceeding. However, its joinder on appeal complicates matters.

2. The appellant claims that the problems with the intercom and with the leaking windows, for which the first respondent has been awarded damages, were problems “totally beyond our control”.[35] Mr Stefaniak agreed that the first respondent can look to the appellant for those damages,[36] but says that the appellant will “have every right”[37] to recover those damages from the second respondent. He submitted, therefore, that the second respondent has an interest in reducing, on appeal, the amount of damages awarded.

   [35] Transcript of proceedings 30 April 2021, page 36, line 26

   [36] Transcript of proceedings 30 April 2021, page 36, line 27

   [37] Transcript of proceedings 30 April 2021, page 36, line 28

3. This is a question for the second respondent to consider. On the appeal, I have no jurisdiction to adjudicate any claim that the appellant might have against the second respondent. Also, the second respondent might have many reasons for disputing its liability to the appellant. However, where the second respondent is now joined to the appeal, I would give it leave to be heard on quantum if it wished to be heard. Alternatively, where no order attributing liability could be made against it, the second respondent might seek to be excused from taking any further part in the appeal.[38] What course to take is a matter for it.

   [38] Transcript of proceedings 30 April 2021, page 33, lines 20-28

4. The matter will be listed for directions, by telephone, for the purpose of addressing any remaining preliminary matters including a date for the hearing of the appeal and whether the appeal be heard in person, by video link or by telephone.

   ………………………………..

   Presidential Member G McCarthy

Date(s) of hearing	30 April 2021
Solicitors for the Appellant:	Mr B Stefaniak, Tu’ulakitau McGuire Lawyers
First Respondent:	In person
Solicitors for the Second Respondent:	Ms A Hogan, Namadgi Legal