Kyriakou v Long

[2014] NSWCA 308

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kyriakou v Long [2014] NSWCA 308

Hearing dates:

27 August 2014

Decision date:

04 September 2014

Before:

Basten JA at [1];
Meagher JA at [2]

Decision:

(1) Application for an adjournment of the hearing of the application for leave to appeal refused.

(2) Application for leave to appeal from the judgments and orders of White J of 10 and 11 December 2013 dismissed.

(3) Appeal brought by notice of appeal filed on 6 January 2014 dismissed as incompetent.

(4) Order the applicant to pay the respondents' costs of that appeal and application for leave, in the case of the first respondent up to 4 March 2014, and in the case of the second respondent up to 25 June 2014.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave - no appearance on behalf of applicant - appeal from refusal to quash decision of Consumer, Trader and Tenancy Tribunal for denial of procedural fairness - no arguable error - decision-making process included opportunity for rehearing by decision-maker - application for rehearing made and rejected - in the circumstances, no utility in adjourning application for leave

Legislation Cited:

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 68
Supreme Court Act 1970 (NSW), ss 69, 101
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(2), 51.12

Cases Cited:

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Calvin v Carr [1980] AC 574
Coulter v The Queen [1988] HCA 3; 164 CLR 350
Greyhound Racing NSW v Cessnock & District Agricultural Assn [2006] NSWCA 333
R v Marks; Ex parte Australian Building Construction Employees & Builders Labourers' Federation [1981] HCA 33; 147 CLR 471
South Australia v O'Shea [1987] HCA 39; 163 CLR 378

Category:

Principal judgment

Parties:

Andrew Kyriakou (Applicant)
Guo Fen Long (First Respondent)
New South Wales Civil & Administrative Tribunal (Second Respondent)

Representation:

Counsel:
No appearance (Applicant)
Submitting appearance (First Respondent)
Submitting appearance (Second Respondent)
Solicitors:
Self-represented (Applicant)
Jane Crittenden Lawyer (First Respondent)
Crown Solicitor's Office (Second Respondent)

File Number(s):

2014/4091

 Decision under appeal 

Jurisdiction:

9111

Citation:

Kyriakou v Long [2013] NSWSC 1890
Kyriakou v Long (No 2) [2013] NSWSC 1891

Before:

White J

File Number(s):

2013/371742

Judgment

1. BASTEN JA: I agree with Meagher JA.

1. MEAGHER JA: The Court has before it an application for leave to appeal from two judgments of White J (the primary judge). The application is made in proceedings commenced by the filing of a notice of appeal from the first of those judgments. The respondents have filed submitting appearances in the appeal proceedings. Early on the morning of 27 August 2014, the date fixed for the hearing of that application, the Registrar of this Court received an email from the person with whom the applicant shares a house. That email advised that the applicant "hasn't been well over the last 3 days with bouts of vomiting and diarrhea [sic]". The email communicated a request from the applicant "for the matter to be adjourned to another date". Thus the Court has before it two applications. The first is for an adjournment; the second is for leave to appeal.

1. For the reasons which follow the application for the adjournment should be refused and the application for leave to appeal dismissed. There is no utility in granting the adjournment in circumstances where the proposed appeal does not have any realistic prospects of success. That is apparent from a consideration of the notice of appeal and the material filed by the applicant in support of the application for leave. That material is the applicant's affidavit sworn 30 May 2014 and his written summary of argument dated 15 June 2014.

1. Before considering the merits of the proposed appeal, it is necessary to refer to the subject matter of the proceedings and the way in which the issues were dealt with by the primary judge.

The proceedings before the Consumer, Trader and Tenancy Tribunal

1. On 29 November 2013 the Consumer, Trader and Tenancy Tribunal (Tribunal) made orders terminating forthwith the residential tenancy agreement between the applicant tenant and the respondent landlord and requiring that the applicant give possession of the leased premises to the respondent on 6 December 2013. The applicant was also ordered to pay an amount of $782.86 representing the rent due to 29 November 2013. The Tribunal heard and disposed of those proceedings in the applicant's absence. The applicant had prior notice of the hearing on 29 November 2013. Early on that morning, by email communication to the Registrar of the Tribunal, he said that he would not be able to attend the hearing due to illness.

1. On 3 December 2013 the applicant applied under s 68 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (CTTT Act) (since repealed) for a rehearing of the completed proceedings. The basis on which that application was made was that the applicant was unable to attend the hearing due to illness and, for that reason, that the decision of the Tribunal was "not fair and equitable". The application was supported by a medical certificate addressed "To whom it may concern" certifying that on 29 November 2013 the applicant suffered from "acute pharyngitis, possibly bacterial" and was unfit to attend the proceedings that day. That application was refused on a number of grounds. They included that the applicant had not demonstrated that he had suffered a substantial injustice as a result of the proceedings being heard in his absence because he had not shown that he had any reasonably arguable defence to the application to terminate the residential tenancy agreement.

The proceedings in the District Court

1. On 6 December 2013, the applicant appealed to the District Court from the decision of the Tribunal of 29 November 2013 and sought a stay. Section 67(1) of the CTTT Act, as then in force, allowed an appeal to that Court on a question of law. On the very same day, Truss DCJ dismissed the application for a stay and the appeal. On what basis those steps were taken is not known. There has been no application to review the orders of the District Court.

The proceedings in the Supreme Court

1. Three days later, on 9 December 2013, the applicant brought proceedings under s 69 of the Supreme Court Act 1970 (NSW) for an order quashing the Tribunal's decision of 29 November 2013. (Given the recent application to the District Court, there might have been an issue as to whether these proceedings were an abuse of process, but that point was not taken and they were addressed on their merits.) The Supreme Court proceedings were heard by the primary judge, sitting in the Equity Division, on 9 and 10 December 2013. His Honour dismissed that application: Kyriakou v Long [2013] NSWSC 1890. He did so on the basis that, taking into account the whole of the decision-making process before the Tribunal, including the application for rehearing under s 68, the applicant had not been denied procedural fairness in relation to the determination of the proceedings before the Tribunal.

1. On 11 December 2013 the primary judge heard and dismissed a separate notice of motion brought by the applicant. That motion sought an order that he be allowed to continue to reside in the leased premises for a period of two weeks from that date. His Honour dismissed the motion on the basis that, having dismissed the applicant's claim in relation to the alleged denial of procedural fairness, he had no jurisdiction to grant the relief sought: Kyriakou v Long (No 2) [2013] NSWSC 1891.

The appeal proceedings

1. On 6 January 2014 the applicant filed a notice of appeal from the judgment and orders of the primary judge of 10 December 2013. That notice of appeal was listed for directions on 9 April 2014. On that day the applicant appeared in person and a direction was made giving him leave to file a summons for leave to appeal in substitution for the notice of appeal. The applicant was also directed to file and serve a White Folder in relation to that application for leave: see Uniform Civil Procedure Rules 2005 (NSW), r 51.12. Finally, an order was made joining the Tribunal as the second respondent in the proceedings. On 25 June 2014, a submitting appearance was filed on behalf of the Tribunal. A submitting appearance had earlier been filed on behalf of the respondent, Ms Long. That appearance was filed on 4 March 2014.

1. The applicant filed a White Folder which, as required by the Rules, included a summons seeking leave to appeal. However, that summons has not been filed. Nevertheless, at a call-over on 14 July 2014 at which the applicant again appeared in person, the summons seeking leave to appeal was listed for hearing on 27 August 2014.

The application for leave to appeal

1. The summons seeking leave to appeal identifies the decision appealed from as the decision of the primary judge of 11 December 2013. It also refers to the notice of appeal filed on 6 January 2014. In the circumstances, it is to be understood as an application for leave to appeal from each of the primary judge's decisions. Leave is required to appeal from the first of 10 December 2013 because, although a final judgment or order in proceedings in the Supreme Court, it is not one where the amount in issue is or exceeds $100,000: Supreme Court Act 1970, s 101(2)(r). The second judgment is said to be a judgment or order of the Court in a Division or a decision or determination of the Court in a Division on a stated case: Supreme Court Act 1970, s 101(1)(a), (b)(i). It is best described as being an interlocutory judgment or order in the proceedings which are the subject of the first judgment. That being the case, leave is required in relation to any appeal from that judgment or order: Supreme Court Act 1970, s 101(2)(e).

Principles relevant to the application for leave

1. The primary purpose of the requirement for leave to appeal is to restrict the availability of the appeal procedure to appropriate matters, thereby promoting the availability, speed and efficiency of justice in those appeals which are appropriate to proceed to a full hearing. It also operates as a justifiable constraint upon the overall cost of litigation by protecting parties, particularly respondents, from the costs of a full hearing of appeals which should not properly be entertained by the relevant Court including when they have little or no realistic prospects of success: per Deane and Gaudron JJ in Coulter v The Queen [1988] HCA 3; 164 CLR 350 at 359.

1. At the outset, it is necessary for the applicant to demonstrate arguable error. Ordinarily, it is also necessary to show that there is an issue of principle, a question of general importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. The relevant principles are collected by Basten JA in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[39].

The prospects of success of the proposed appeal

1. There are eight grounds of appeal relied upon. Those grounds raise four arguments.

1. The first is made by grounds of appeal 2 and 3. They are that in deciding whether the applicant had been denied procedural fairness before the Tribunal the primary judge erred in taking into account not only the events of 29 November 2013 but also the fact that the applicant was entitled to make and had made an application for the rehearing by the Tribunal of the completed proceeding. That application was made under s 68 of the CTTT Act.

1. His Honour concluded at [55]:

"In substance the Tribunal had a process that is analogous to the process available in the courts. When the Tribunal refused to adjourn the matter on 29 November 2013 having before it only the plaintiff's email of that morning, it had to take [into] account not only the fact that it would be determining the proceeding in the plaintiff's absence, but also of the need for expedition. It was also entitled to take into account the lack of detail as to the plaintiff's illness and the lack of corroboration. The CTTT Act provided a mechanism for any injustice that that course might have occasion[ed] to be remedied if the plaintiff could demonstrate that the decision was not fair and equitable and he had suffered a substantial injustice. The plaintiff invoked that procedure, but failed. Having regard to his failure to adduce evidence to show what his defence would have been, I do not think that he can be heard to complain that the process was unfair."

1. This conclusion does not involve any error. The relevant decision-making process is to be viewed in its entirety when addressing whether there has been procedural unfairness: see, for example, albeit in a different context, the approach adopted by Mason CJ (Murphy, Aickin and Wilson JJ relevantly agreeing) in South Australia v O'Shea [1987] HCA 39; 163 CLR 378 at 389. In some cases the original or primary decision-making process may involve a staged consideration before the making of the operative decision. In other cases, such as this one, the operative decision may be subject to an opportunity for reconsideration or rehearing by the decision-maker. That is a process distinct from one of appeal or review by another administrative body or a court. Here the decision-making process included the right to apply to the Chairperson of the Tribunal for a rehearing of the completed proceeding. The applicant exercised that right and by doing so was given the opportunity (and indeed was requested) to explain why a rehearing would achieve a different decision, and one favourable to him. The fact that he did not take advantage of that opportunity when requested did not itself involve any procedural unfairness.

1. The primary judge's conclusion can also be justified on an alternative basis. Even if the applicant was denied procedural fairness in relation to the hearing and determination on 29 November 2013, he had and exercised that right of review, which gave him the opportunity to put any argument as to why the earlier determination was wrong. This circumstance justified the refusal of relief in the exercise of the Court's discretion: see Calvin v Carr [1980] AC 574 at 595-596; and R v Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1981] HCA 33; 147 CLR 471 at 484-485.

1. The second argument, made by ground 3, is that the primary judge did not give proper consideration to s 35 of the CTTT Act. That section required the Tribunal to ensure that each party was given a reasonable opportunity to present its case. Although his Honour addressed this provision, in the way he decided the applicant's claim, he did not need to determine whether the applicant had been denied procedural fairness or whether there had been any failure to comply with s 35: [2013] NSWSC 1890 at [26]-[30]. For these reasons this ground of appeal is irrelevant, and, to the extent that it asserts that the primary judge did not consider the operation of s 35, it is not correct.

1. Next, the applicant argues that the decision of Truss DCJ was wrong (ground 6) and that the primary judge should have referred the application for hearing by a judge sitting in the Common Law Division instead of proceeding to hear it as a judge sitting in the Equity Division (ground 7). As to the former argument, the decision of Truss DCJ was not the subject of any application before the primary judge. Accordingly, the ground is irrelevant. As to the latter argument, nothing turns on the fact that the application should have been brought or dealt with in the Common Law Division. Section 41(2) of the Supreme Court Act provides that any judge of the Court may exercise its jurisdiction in any Division, with all the power and authority of a judge appointed or nominated to act in that Division.

1. Finally, grounds of appeal 1 and 5 do not present any additional arguments to those already considered. It is said that the applicant suffered a substantial or further denial of procedural fairness as a result of his Honour's decision to dismiss the application to quash the judgment and orders of the Tribunal. Neither ground is to be understood as contending that there was any denial of procedural fairness in the way the proceedings were conducted before the primary judge, as distinct from the Tribunal.

Conclusion

1. As the applicant has not demonstrated that either of the decisions of the primary judge is arguably wrong, there is no utility in granting the adjournment to permit his application to be dealt with on a later occasion. For that reason, the application for an adjournment should be refused. Because the proposed grounds of appeal do not identify any arguable error, the application for leave to appeal should be dismissed. It follows that the appeal must also be dismissed as incompetent.

1. The consequence is that the following orders will be made in the applicant's absence. The Rules provide that the applicant may seek to set aside or vary those orders although they may have been entered: UCPR, r 36.16(2).

1. The orders I propose are:

(1)   Application for an adjournment of the hearing of the application for leave to appeal refused.

(2)   Application for leave to appeal from the judgments and orders of White J of 10 and 11 December 2013 dismissed.

(3)   Appeal brought by notice of appeal filed on 6 January 2014 dismissed as incompetent.

(4)   Order the applicant to pay the respondents' costs of that appeal and application for leave, in the case of the first respondent up to 4 March 2014, and in the case of the second respondent up to 25 June 2014.

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Decision last updated: 04 September 2014