Supreme Court New South Wales Medium Neutral Citation: NSW Land and Housing Corporation v Simeon [2021] NSWSC 325 Hearing dates: 1 April 2021 Decision date: 01 April 2021 Jurisdiction: Common Law Before: Basten J Decision: (1) Direct that the name of the defendant be amended to James Simeon. (2) Dismiss the plaintiff's motion of 29 March 2021 seeking leave to file an amended summons. (3) Refuse the plaintiff leave to appeal from the decision of the Appeal Panel of the Civil and Administrative Tribunal given on 4 May 2020. (4) Order that the plaintiff pay the defendant's costs in this Court. Catchwords: APPEAL – leave to appeal – stay ordered pending disposal of criminal charges – charges disposed of – utility of appeal – whether question of law – whether need to determine legal issue to prevent frustration of right of appeal TENANCY – residential tenancy agreement – termination – criminal conduct relied on by landlord – criminal charges laid – whether defence of termination proceeding would prejudice criminal defence Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 64, 83 Residential Tenancies Act 2010 (NSW), ss 91, 154D Supreme Court Act 1970 (NSW), s 69 Cases Cited: Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 Commissioner, Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 DRJ v Commissioner of Victims Rights [2020] NSWCA 136 NSW Land and Housing Corporation v Simeon, 14 November 2019 Category: Principal judgment Parties: NSW Land and Housing Corporation (Plaintiff) James Simeon (Defendant) Representation: Counsel: Mr J O'Connor (Plaintiff) Mr D J Murray (Defendant) Solicitors: NSW Department of Communities and Justice (Plaintiff) M J Woods & Co Lawyers (Defendant) File Number(s): 2020/162817 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of NSW Jurisdiction: Appeal Panel Citation: [2020] NSWCATAP 64 Date of Decision: 04 May 2020 Before: S Thode, Dr J Lucy, Senior Members File Number(s): AP 19/54336 Judgment 1. BASTEN J: The matter before the Court involves an application by NSW Land and Housing Corporation for leave to appeal from a decision of the Appeal Panel of the Civil and Administrative Tribunal ("NCAT") granting a stay of an application for a termination order in relation to the residential tenancy agreement between the Housing Corporation and the defendant, James Simeon. The basis of the Appeal Panel decision was, shortly stated, that termination was sought on the basis of drug-related conduct of the tenant and the defence of that application, if it proceeded before the hearing of the charges, would be likely to prejudice Mr Simeon in his defence of those charges. 2. The Housing Corporation's application is not without merit: although the Appeal Panel relied on principles established by the High Court in Commissioner, Australian Federal Police v Zhao, [1] there is an arguable case that it failed to apply the principles correctly in the present statutory context. It also appears not to have been taken to potentially relevant observations of the High Court in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd. [2] The Housing Corporation also submitted that there is an issue of general importance raised by these circumstances, namely whether a non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) could sufficiently ameliorate the problem of prejudice to the person subject to criminal charges. These are matters to which it will be appropriate to return shortly. 3. The Appeal Panel decision, incorrectly named James v NSW Land and Housing Corporation, [3] was delivered on 4 May 2020. The Appeal Panel set aside the orders made by the Tribunal terminating Mr Simeon's tenancy agreement and remitted the matter to the Tribunal subject to the following conditions in order (4): "(a) the proceedings are stayed until such time as the criminal proceedings against the appellant are disposed of; (b) the appellant is to advise the Tribunal and the respondent within seven days of the determination of the criminal proceedings to have application SH 19/218606 relisted." 1. Whether, and if so when, Mr Simeon took the step required by order (4)(b) is not known. No evidence in this Court revealed the termination of the criminal proceedings. However, Mr Simeon's written submissions filed in this Court on 13 November 2020, opposing a grant of leave, referred to the fact that the "Local Court matter" has now been finalised. [4] 2. This statement was not challenged by the Housing Corporation. Rather, its written submissions in reply, dated 1 December 2020, stated that "the plaintiff understands that the defendant recently pleaded guilty to, and was convicted of, the criminal offences which the Tribunal and Appeal Panel had held established the defendant's breach of s 91 of the [Residential Tenancies Act]." [5] The Housing Corporation's chronology identified the pleas of guilty as having been entered and the defendant having been convicted in October 2020. At the hearing, counsel for Mr Simeon tendered the records of the Local Court showing that he was convicted and sentenced on 15 September 2020. 3. It follows that there is now nothing to prevent the completion of the tenancy termination proceedings in the Tribunal, and has not been for more than six months. Although the Tribunal's order terminating the tenancy agreement has been set aside, in the light of the guilty pleas and convictions, there would appear to be no doubt as to breach of s 91 of the Residential Tenancies Act. While it is true that, if the order of the Appeal Panel setting aside the termination order were itself set aside, there would be no need for a further termination order, as a practical matter that is not so. Given that the stay has been in place for some time, a further hearing before the Tribunal would be inevitable. The stay has had the effect that the date on which the termination order took effect (December 2019) is long past and further discretionary considerations will need to be addressed in setting a new date. Accordingly there is little purpose in setting aside the Appeal Panel's order. 4. There being no stay in place, Mr Simeon's submission that the appeal lacks utility should be accepted. Leave to appeal should be refused on that basis. 5. There are other reasons for refusing leave to appeal. 6. First, the Housing Corporation brought the proceedings partly on the basis that "if premises are being used for drug supply, manufacture or other drug-related purposes, neighbours and other tenants who are vulnerable may or will suffer due to the presence of such activities in their area." [6] Further, the Housing Corporation, in submissions to the Tribunal, "pointed to the long waiting lists of vulnerable people who require public housing accommodation". [7] There was, therefore, a public interest in having the termination application disposed of expeditiously. 7. However, that public interest appears to have been displaced. The Appeal Panel delivered its decision on 4 May 2020; the Housing Corporation sought leave to appeal to this Court on 1 June 2020. No step appears to have been taken to expedite the application for leave to appeal before 15 September 2020 when Mr Simeon entered his guilty pleas and was convicted. Then, instead of expediting a further hearing before the Tribunal, the Housing Corporation opposed a hearing fixed for 24 November 2020 and sought that the matter be adjourned until after 1 April 2021, when this application for leave to appeal was listed before the Court. There is an element of inconsistency between the early opposition to a stay of the termination application until the criminal proceedings were disposed of, and then resistance to having the termination application listed expeditiously following the disposal of the criminal charges. 8. Secondly, although the Housing Corporation submitted that there was an error of law on the part of the Appeal Panel, as required to engage the jurisdiction of this Court pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW), and that there was an issue of general principle involved, it is not clear that either proposition is established. In Today FM, the High Court noted that it was "not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action." Further, the Court stated: [8] "There is no reason to suppose that a Commonwealth public housing authority might lack the capacity to terminate a lease on the ground of the tenant's use of the premises for an unlawful purpose notwithstanding that the tenant has not been convicted of an offence arising out of that unlawful use." 1. There is no reason to doubt that the same proposition applies with respect to the powers of the Tribunal on application by a housing authority. However, it is also true that that statement did not expressly deal with the circumstance where the tenant was the subject of outstanding criminal charges. 2. That issue arose in somewhat different circumstances in Zhao, a decision of the High Court identically constituted, delivered some three weeks earlier. Zhao involved proceedings for forfeiture of property the subject of a restraining order under the Proceeds of Crime Act 2002 (Cth). The owner of the property, Ms Zhao, the wife of Mr Jin, who was facing criminal charges. The question was whether Mr Jin, a person facing a criminal trial, should have been required to defend his wife's ownership of the property suspected of being purchased with the proceeds of crime, before the criminal proceedings had been completed. 3. The answer given in that case was, no. However, it does not follow that the same answer will be given in all cases where there is a civil proceeding sought to be pursued at a time when criminal proceedings are pending. As explained by the High Court in Zhao: "[35] … Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required. To warrant a stay of the forfeiture proceedings, it must be apparent that the person whose property is in question is at risk of prejudice in the conduct of his or her defence in the criminal trial." 1. The Court further held that to require him to identify the source of the prejudice in detail "would be to make the risk of prejudice a reality by requiring him to reveal information about his defence, the very situation which an order for a stay seeks to avoid." [9] The Court concluded: "[50] The interests of justice are not served by requiring [the person charged] to defend the forfeiture proceedings or pursue the exclusion proceedings before his criminal proceedings are finalised, especially since the Commissioner will suffer no relevant prejudice from a delay in the continuation of the forfeiture proceedings." 1. However, the risk of prejudice must be apparent. In Zhao, the person charged, Mr Jin, gave the following evidence by way of affidavit in support of his application for a stay: [10] "In properly presenting my case for these proceedings I would be necessarily required to address these mattes in any affidavit filed; however to do so would require me to give evidence as to the purchase of the Restrained Property or ownership of any bank accounts I hold and the source of any funds into those accounts. These matters are directly relevant to the criminal charges. If I am to depose to these matters in an affidavit in these proceedings I will, in effect, by [sic] waiving my right to silence. I do not wish to do so." 1. There was no such evidence before the Tribunal or the Appeal Panel in the present case. Nor was it readily apparent what Mr Simeon could have said in defence of the proceedings. It was sufficient under s 91(1)(a) that he "intentionally or recklessly caused or permitted … the use of the residential premises or any property adjoining or adjacent to the premises … for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug". [11] Given that police found drugs and drug-related paraphernalia in his unit, it is by no means clear how the continuation of the termination proceedings could have prejudiced an available defence. (Because he pleaded guilty, he did not run a defence.) 2. The Appeal Panel identified the principles stated in Zhao. The application of those principles in an entirely different civil and statutory jurisdiction could give rise to questions of law. However, their application will usually turn on questions of evaluative judgment, which will not easily be characterised as involving questions of law. The closest the Housing Corporation came in the present case to identifying an error of law on the part of the Appeal Panel was the submission that the Panel erred in finding an error of law on the part of the Tribunal, which had also identified the appropriate principles, but reached a different conclusion to that of the Appeal Panel. 3. Further, the Housing Corporation sought to pursue an argument that the Appeal Panel had failed to give proper weight to the possibility that any prejudice to the tenant could be avoided by an order prohibiting the disclosure of the name of the tenant and prohibiting publication of his, or other, evidence given before the Tribunal, pursuant to s 64 of the Civil and Administrative Tribunal Act. Apart from the mootness of the case, there are two reasons for not granting leave to allow that issue to be agitated. First, there was little or no consideration given by the Appeal Panel to the operation of s 64 in this case. Secondly, as illustrated by the reasoning in this Court in DRJ v Commissioner of Victims Rights, [12] there are difficult issues which arise in relation to the proper construction and operation of this provision. The fact that these issues were not considered below makes this an inappropriate vehicle for the agitation of such matters on an appeal limited to a question of law. 4. Finally, the Housing Corporation emphasised the difficulty it faced in challenging a decision of the Tribunal to stay termination proceedings pending determination of criminal charges against a tenant. As is illustrated by the present case, any appeal will likely be frustrated by the criminal proceedings being determined before the appeal can be heard. Accepting that there may be a legitimate concern about the manner in which the Appeal Panel has applied the principles in Zhao, it is obviously desirable that a process of review by this Court should be available. The refusal of leave, in this case, does not preclude relief in another case. Thus, if the Appeal Panel is applying a particular approach, it is an approach which will no doubt be followed by single members of the Tribunal. A proceeding by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW) would be available from the decision of a Tribunal member granting a stay. Whilst the Court does not encourage use of the supervisory jurisdiction where there is a statutory appeal process available, that course is nevertheless appropriate where the issue of law has been determined by the Appeal Panel which is therefore likely to follow its own earlier decisions. Furthermore, an application for judicial review could be accompanied by a request for its expeditious listing. In a case of potential mootness caused by delay, and where interlocutory relief is not available to maintain the status quo, an early hearing will readily be given. Expedition was, as noted above, singularly lacking in the present case. There is no reason to believe that the Housing Corporation is deprived of an available remedy if there is substance to its complaint of an erroneous legal approach being adopted by the Appeal Panel. 5. In these circumstances, leave to appeal should be refused. It should be noted, however, that on 14 December 2020 the Housing Corporation served an amended summons on Mr Simeon, seeking his consent to the amendments. Consent not being forthcoming, on 29 March 2021, that is three days ago, the Housing Corporation filed a notice of motion seeking leave to amend. The amendments had two purposes. The first was to make it clear that the appeal was only from that part of the Appeal Panel's decision which held that the Tribunal had erred in refusing to adjourn the termination proceedings. The second purpose was to identify with greater clarity the alleged questions of law and to assert that there were issues of general public importance in relation to the application of the principles. I have had regard to those proposed amendments, and the submissions in support, in the observations with respect to the existence of a question of law. Given that leave to appeal should be refused, the notice of motion should also be dismissed. 6. Accordingly, the Court makes the following orders: 1. Direct that the name of the defendant be amended to James Simeon. 2. Dismiss the plaintiff's motion of 29 March 2021 seeking leave to file an amended summons. 3. Refuse the plaintiff leave to appeal from the decision of the Appeal Panel of the Civil and Administrative Tribunal given on 4 May 2020. 4. Order that the plaintiff pay the defendant's costs in this Court. ********** Endnotes 1. (2015) 255 CLR 46; [2015] HCA 5. 2. (2015) 255 CLR 352; [2015] HCA 7 at [33]. 3. [2020] NSWCATAP 64 (S Thode, Dr J Lucy, Senior Members). 4. Defendant's written submissions, par 27. 5. Plaintiff's submissions in reply, par 15. 6. NSW Land and Housing Corporation v Simeon, 14 November 2019 (M Tibbey, Senior Member), par 10. 7. Ibid, par 11. 8. Today FM at [33]. 9. Zhao at [43]. 10. Zhao at [9]. 11. Emphasis added. 12. [2020] NSWCA 136 at [21]-[24] (Leeming JA). Amendments 01 April 2021 - Coversheet - correcting name of defendant's solicitors DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 April 2021