Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nowacki v S & Q Assets Pty Limited [2022] NSWCATEN 1 Hearing dates: On the papers Date of orders: 22 July 2022 Decision date: 22 July 2022 Jurisdiction: Enforcement Before: I R Coleman SC ADCJ, Principal Member Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal is satisfied that it is appropriate to dispense with a hearing of the referral application. (2) Pursuant to s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) the Application filed 27 October 2021 for contempt be referred to the Supreme Court of New South Wales for determination. (3) Costs are reserved. Catchwords: PRACTICE AND PROCEDURE- contempt - where respondent in breach of Tribunal orders - whether evidence capable of establishing contempt of Tribunal - whether contempt application should be referred to Supreme Court Legislation Cited: Local Government Act 1993 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Residential (Land Lease) Communities Act 2013 (NSW) Cases Cited: DVI v ZTT [2021] NSWCATEN 4 Mohareb v Palmer 27 NSWCA 281 Burns v Corbett [2015] NSWCATAD 188 Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited [1986] HCA 46; (1986) 161 CLR 98 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 National Australia Bank Limited v Juric [2001] VSC 375 Category: Principal judgment Parties: Dianne Nowacki (Appellant) S & Q Assett Pty Ltd (Respondent) Representation: Nil File Number(s): PC 21/44309 Publication restriction: Nil REASONS FOR DECISION Introduction 1. On 27 October 2021 Diane Nowacki and others (Applicants) filed an application seeking orders against S & Q Assets Pty Limited (Respondent) that proceedings for contempt be taken against the Respondent for "wilfully and deliberately disobeying orders made by the Tribunal 27 March 2020 in RC20/02707 and varied by orders made on 4 June 2020 in RC20/18735 and on 16 October 2020 in RC20/29501" or that "these matters be referred to the Supreme Court of New South Wales for determination" ("referral application"). 2. The grounds for the application were pleaded in the following terms: "On 27 March 2020 in proceedings RC20/02707, the Tribunal made orders directing the Respondent operator of a residential community to carry out work by 20 April 2020. Reasons were given. Order 1 comprised a work order with 5 items, in summary directed to a reasonable arrangement for mail receipt; to curing a danger caused by pipes lying on the ground of common property; to curing a danger caused by roots; to informing the Applicant the basis upon which her electricity was charged; and to informing the Applicant the basis upon which her water was charged. On 4 June 2020 in proceedings RC/18735, the Tribunal extended time for compliance and ordered that if the orders were not complied with by 26 June 2020, then by 31 July 2020, the Applicant owner could request the relisting so that further orders could be considered." 1. At all material times the Applicants have been members of a residential community operated by the Respondent. 2. The referral application was before the Tribunal for directions at 9 am on 24 November 2021. There was no appearance by or on behalf of the Respondent. The matter was stood in the list, and recalled shortly before 9.25 am. There being no appearance by or on behalf of the Respondent at that time, and the Tribunal being satisfied that the Respondent was aware of the return date of the application, directions for the filing of evidence and submissions were made. The Registry caused the Tribunal's directions to be emailed to the Respondent at the email address of a Mr Wei who appears to be the director of the Respondent referred to in the decision of the Tribunal of 16 October 2020. 3. Mr Wei is the author or recipient of numerous emails which are contained in the material relied upon by the Applicants, and, as that material confirms, has knowledge of and involvement in the proceedings which give rise to the referral application, having actual or ostensible authority to represent the Respondent in proceedings in the Tribunal. The Tribunal is satisfied that the Respondent has been served with the present application, and been made aware of the directions of 24 November 2021. 4. The Applicants complied with those directions. The Respondent has filed no material with the Tribunal. The Respondent's failure to engage with the present application is unsurprising in view of the evidence relied upon by the Applicants, and the Respondent's history of non-compliance with orders of the Tribunal. 5. In support of its application, and pursuant to the directions of the Tribunal, on 14 December 2021, the Applicants filed an outline of submissions, together with 12 affidavits by members of the residential community deposing to the works which they allege that the Respondent has failed to undertake as required by the orders of the Tribunal, and many pages of photographs assertedly depicting those failures. 6. The Tribunal is satisfied that the Applicants' submissions and evidence relied upon by them have been brought to the notice of the Respondent, including by having them delivered to the Respondent's registered address. Background 1. The Applicants assert that the Respondent is in breach of orders of the Tribunal made on 27 March 2020, 4 June 2020 and 16 October 2020. On 27 March 2020, after a contested hearing, the Tribunal ordered that the Respondent: "carry out the following work on or before 20 April 2020 in a proper and workmanlike manner. Details of work order: (a) the Respondent is to put in place a system ensuring that mail addressed to the Applicant and received by it, is put into her mailbox within 2 hours of receipt of the mail by it. (b) the Respondent is to take all reasonable steps to have the pipes laying on the surface put underground, and to inform the Applicant in writing of those steps. (c) having regard to the photographs in the possession of the Tribunal and the parties, the Respondent is to take all reasonable steps to identify which trees' roots are causing damage to driveways and other property, to determine the appropriate course to stop and repair the damage, and to inform the applicant in writing of those steps. (d) having regard to the reasons below, the Respondent is to provide an itemised account to the Applicant for the Applicant's electricity charge for the period from 2 September to 1 October 2019. (e) having regard to the reasons below, the Respondent is to provide an itemised account to the Applicant for the Applicant's water charge(s) for September 2019 or monthly period covering the greater part of the month; 2 Having regard to the presence of the pipes on the surface and to the uneven surfaces occasioned by the roots, the Respondent is within 7 days: (a) to take reasonable steps to ensure that the community is reasonably safe; that the Applicant always has access to her residential site; and that the Applicant has reasonable access to the community's common areas; and (b) to inform the Applicant in writing of those steps." 1. There was no appeal against that decision. 2. On 4 June 2020 the Tribunal ordered that: "(1) The orders made by the Tribunal in application RC20/02707 on 27 March 2020 are varied in that the date for compliance referred to in orders 1 and 2 previously made is amended to 26 June 2020. (2) If the amended orders are not complied with by the Respondent by the date referred to in order (1) above, then at any time before 31 July 2020 the Applicant may request the relisting of this application so that further orders may be considered. Note. The intention of this order is to require the Respondent to complete the work previously ordered by the Tribunal, which is now to be completed by 26 June 2020. It is noted the Respondent experienced difficulty complying with the previous orders given the effect of restrictions imposed by Government in response to Covid-19." 1. There was no appeal against the orders of 4 June 2020. 2. On 16 October 2020 the Tribunal ordered that: "(1) The application for relist of proceedings RC20/02707 to consider orders made on 27 March 2020, is withdrawn. (2) The time for any further relist of those proceedings, is extended to 18 September 2021. (3) The Registry is to place a copy of these orders on the file of the other proceedings" 1. There was no appeal against those orders. 2. The reasons for the decision of the Tribunal of 16 October 2020 inform the current application. Those reasons relevantly recorded, after recounting the terms of the orders of 27 March 2020 and 4 June 2020 [7], that: "By Notice dated 3 September 2020 the operator (Respondent) purported to terminate all site agreements including that with the Applicant pursuant to s127 of the Residential (Land Leased) Communities Act (the RCA)." 1. The Tribunal recorded the terms of the Notice [8] as being: "We intend to give all the tenants 12 months time to vacate the site calculated from 18 September 2020 pending council's consent and approval. As the landlord we will suffer huge financial losses, by [sic] we must comply with the laws and regulations and put safety first." 1. The Tribunal inferred from the Notice [9] that the Respondent from time to time since 2006 had not held a valid operation licence pursuant to the Local Government Act 1993 (NSW), and that, since the Respondent became the operator and property owner in 2018 "the situation has not been resolved, and that the termination of all site agreements is seen by it as an appropriate way to address the matter". 2. The Tribunal referred to a communication from a Director of the Respondent to the Tribunal, including the Notice, stating that it would maintain the "current fire safety equipment" until all tenants had moved out but that "since their leases expired, I do not see any obligations for us to maintain the site, supply water and electricity in the future" and that "since the lease is finished and the tenant should move out ASAP for their own safety and health reasons can I ask the Member to reconsider the situation?" Neither then nor subsequently has the Respondent made any application to the Tribunal for any orders varying the previous orders of the Tribunal. 3. The Tribunal found [12] that the contention of the Respondent that it had ceased to be obliged to comply with the previous orders of the Tribunal because the occupants' leases had expired was "wrong" [13] for the reasons which the Tribunal provided by reference to sections 127 and 116 of the Residential (Land Lease) Communities Act 2013 (NSW) ("RCA"). 4. Under the heading "Determination" the Tribunal recorded that it was not satisfied that the Respondent's asserted reasons for its failure to comply with the second and third orders of 27 March 2020, the order to have pipes "laying on the surface put underground" and to identify and appropriately rectify damage to driveways and other property caused by tree roots had not been complied with were supported by "cogent evidence", and were rejected [17]. The Tribunal was satisfied [18] that the fourth and fifth orders had not been complied with. 5. The Tribunal addressed the contention of the Respondent [19] that, as it had been operating without Council approval the Respondent was not subject to the RCA, and could validly terminate the site agreements of each occupant of the facility operated by it, and evict them. The Tribunal found [20] that s 5 of the RCA provided that the Act applied to "all communities … whether or not any relevant approval has been obtained under the Local Government Act … unless provision of or under this Act provides otherwise". The Tribunal was not referred to any provision of the Act which so provided. The Tribunal thus rejected the contention of the Respondent that it was not bound by the provisions of the RCA, and could terminate the Applicants' site agreements. 6. The Tribunal identified [23]-[24] the options available to it, and determined to "extend the period for any relist for a period up to 18 September 2021". That decision effectively allowed the Respondent an additional 11 months in which to comply with the Tribunal's orders, and rendered it difficult for the Applicants to make further efforts to enforce the orders in their favour during that time. 7. As with previous decisions of the Tribunal, the Respondent did not appeal against the orders of 16 October 2020. Nor did the Respondent apply to vary the terms of the orders after 18 September 2021. 8. The background to the referral application is that, in the procedings referred to above, the Respondent has been found on the civil standard of proof to have failed, without reasonable excuse, to comply with the second, third, fourth and fifth of the orders of 27 March 2020 requiring the Respondent to undertake remedial works at the community village. Rather than comply with the Tribunal's orders, the Respondent has sought, albeit unsuccessfully, to circumvent them by purporting to terminate the Applicants' site agreements with it. Almost two and a half years since the Tribunal's orders were made, the evidence of the Applicants establishes that the Respondent has failed to comply with them. The principles governing the referral application 1. In DVI v ZTT [2021] NSWCATEN 4, the Tribunal, constituted by Armstrong J, reviewed the relevant legal principles with respect to an application to refer applications for contempt to the Supreme Court. Her Honour identified [5] the two procedures for dealing with contempt of the Tribunal provided by s 73 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"). It is not in doubt that the first procedure, which is "limited to cases where contempt is committed in the face of, or in the hearing of, the Tribunal" has no present application. The second procedure, which arises pursuant to s 73(5) of the CAT Act, involving breaches of orders of the Tribunal, has potential relevance for present purposes. 2. The Tribunal referred [7] to the decision of the Court of Appeal in Mohareb v Palmer 27 NSWCA 281 at [19] finding that the matter for determination in a referral application was whether the conduct complained of is "capable" of amounting to contempt of court. The Tribunal accepted [8] that, if that finding is made, the alleged contemnor must be afforded the opportunity to show why the matter should not be referred to the Supreme Court, which does not require any waiver of the right to silence, which right should be made clear to the Respondent to the referral application. Those matters were made clear in the orders which the Tribunal made at the conclusion of the Directions Hearing on 24 November 2021. 3. In reliance upon the authorities to which her Honour referred, the Tribunal held [9] that the power to refer a contempt application to the Supreme Court was discretionary, and underlined by the consideration that the power to punish for contempt was appropriately invoked "sparingly and only in serious cases". 4. In Burns v Corbett [2015] NSWCATAD 188, at [93] the Tribunal recorded that, in considering whether to refer a contempt application based upon breach of Tribunal orders to the Supreme Court, the Tribunal should consider whether there were alternate means of enforcing the Tribunal's orders and, in the exercise of discretion, take into account the availability of those alternatives, and whether any of them has already been invoked. 5. The scope of the remedies potentially available to the Applicants pursuant to the RCA in the Tribunal is limited. It is difficult to suggest the further relief which the Applicants could usefully pursue in the Tribunal. Proceedings for relief in the nature of specific performance in the Equity Division of the Supreme Court, or relief in the Supreme Court or the Federal Court pursuant to the provisions of the Corporations Act 2001 (Cth) are likely to prove complex, and expensive, and, if successful, not necessarily resulting in compliance with the Tribunal's orders. Although the penalties which may be imposed on the Respondent if it is found to be in contempt are more limited than in the case of a natural person, that would not justify refusing the referral application if it is otherwise made out. In the circumstances, the Tribunal accepts that refusing the present application in reliance upon the availability of alternate means of securing compliance with its orders would not be justified. 6. As the Tribunal recorded in Burns v Corbett at [93], and the decisions of the High Court in Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited [1986] HCA 46; (1986) 161 CLR 98 and Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 confirm, there are two purposes in referring an alleged contempt based on failing to comply with orders of the Tribunal to the Supreme Court. They are to secure enforcement of the orders for the benefit of the party entitled to that benefit, and to protect the effective administration of justice by demonstrating that orders of the Tribunal will be enforced. 7. In DVI at [11], the Tribunal referred to the common law requirements for a successful prosecution for contempt for breach of a Court order as: 1. establishing that the alleged contemnor had notice of the order; 2. the obligation imposed by the order being sufficiently clear to support enforcement of the order against the alleged contemnor; and 3. the conduct of the alleged contemnor amounted to a wilful, as opposed to a "casual accidental or unintentional" failure to comply with the order. 1. In DVI, at [20]-[23], the Tribunal considered whether it was appropriate to determine a referral application "on the papers" and without an oral hearing pursuant to s50 of the CAT Act. The Applicants in these proceedings seek to have the referral application determined on the papers. In the Tribunal's view, a compelling reason for doing so is that, the Respondent having filed no submissions or otherwise participated in the proceedings, there would be no contradictor if the referral application was referred for an oral hearing. Apart from potentially putting the Applicants to expense and delaying the determination of the referral application, in the present circumstances convening an oral hearing would serve no useful purpose. As in DVI, the Tribunal has made procedural directions, and afforded the Respondent time considerably in excess of the time provided by the directions, to respond. The Tribunal is satisfied that the Respondent has been served with the application and the Applicants' submissions. 2. The reasons recorded by the Tribunal in DVI as tending "firmly against the holding of a contested inter partes hearing" [22] of a referral application are also relevant for present purposes. The Tribunal is satisfied that it is appropriate in the circumstances to dispense with a hearing and is satisfied in accordance with s 50(2) of the CAT Act that "the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or other documents or material lodged with or provided to the Tribunal." In so finding, the Tribunal is satisfied pursuant to s 50(3) of the CAT Act that the parties have been afforded the opportunity to make submissions about the proposed order dispensing with a hearing. 3. As is not in doubt (DVI [24]-[29]) the applicant bears the onus of proving the facts which would demonstrate that the conduct complained of is "capable" of amounting to contempt of the Tribunal. The rules of evidence apply to the current application (CAT Act s 38(3) and s 33). 4. In DVI, the Tribunal did not need to determine whether the criminal or the civil standard of proof applied to a referral application, having not been satisfied that either standard had been met by the applicant [30]. This issue has not been agitated before the Tribunal in the present application. 5. In National Australia Bank Limited v Juric [2001] VSC 375, at [37]- [38] Gillard J held that, in order to prove a "civil contempt of court involving breach of an order of the Court", the plaintiff must prove beyond reasonable doubt that: 1 an order was made by a court; 2 the terms of the order are clear, unambiguous and capable of compliance; 3 that the order was served on the alleged contemnor; 4 the alleged contemnor has knowledge of the order; 5 the alleged contemnor has breached the terms of the order. 1. As the criminal standard of proof applies to the Applicants' contempt application if it is referred to the Supreme Court, granting the referral application if the evidence upon which the Applicants rely is not capable of establishing their allegations in accordance with that standard of proof would be problematic. The Applicants' submissions 1. The Applicants' submitted (43) that the Respondent was at all material times aware of the terms of the orders of the Tribunal. The evidence in this application is capable of establishing that to be so, particularly as the Respondent actively participated in the proceedings which resulted in the making of the orders upon which the Applicants rely. 2. The Applicants further submitted that "It cannot be said in the circumstances that there was any casual, accidental or unintentional excuse for [the Respondent's] wilful disobedience of the provisions of the orders" (44). The evidence in support of this application is capable of supporting a finding in those terms. 3. The Applicants further submitted (45) that the Respondent has "demonstrated a contumacious disregard for the clear terms of the order and has consistently declined to comply with it". The evidence in support of this application is capable of establishing those allegations. 4. The Applicants deposed to their personal circumstances, and the impact on their quality of living as a result of the Respondent's continuing failure to comply with the orders of the Tribunal (47). For more than two and a half years, the Applicants have been denied the benefit of the orders which they obtained relating to "property which they own and pay respective site fees for the use of". In the circumstances identified by them in their affiavits, and the absence of other realistically available alternate remedies, the Applicants demonstrate a "serious" case for referral of the Respondent to the Supreme Court. Consideration 1. The authorities make clear that the present application decision does not involve the determination of the Applicant's contempt application, and is confined to determining whether the evidence relied upon by the Applicants is "capable" of establishing that the Respondent is in contempt of the Tribunal. 2. The alleged contemnor has had the opportunity, without compromising its right to silence, or anything which it may wish to raise in the contempt proceedings, to file evidence and/or submissions in opposition to the referral application. The Respondent has not filed any submissions, evidence or otherwise signified any basis upon which the application, if otherwise appropriate to be referred to the Supreme Court, should not be. 3. The current determination involves the exercise of a discretion which is not unfettered, and must be exercised judicially. The Tribunal is mindful of the fact that applications for contempt should only be referred to the Supreme Court in serious cases, the power to refer thus being "used sparingly". The Applicants' evidence raises a serious case. 4. The Applicants' evidence establishes that their health, financial security and quiet enjoyment of the accommodation for which thay have paid, and continue to pay has been compromised by the Respondent's failure to comply with the Tribunal's orders. They have consistently sought to secure compliance with those orders. The Applicants have been unjustifiably denied the fruits of success in the Tribunal for more than two and a half years. The Respondent's apparent flagrant disregard for the Tribunal's orders, and attempts to circumvent them raise serious concerns for the administration of justice, and the importance of demonstrating that orders of the Tribunal will be enforced. 5. The Tribunal is satisfied that the evidence in support of the referral application is capable of establishing that the alleged contemnor had notice of the orders upon which the contempt application is based, had notice of the referral application, and the evidence and submissions in support of it, that the obligation imposed by the orders was sufficiently clear to support their enforcement against the Respondent, and that the conduct of the alleged contemnor amounted to a wilful, as opposed to a casual, accidental or unintentional failure to comply with the orders. 6. The evidence before the Tribunal is capable of establishing beyond reasonable doubt each of the matters which the Applicants must prove in order to succeed with their contempt application. In those circumstances, it is unnecessary to engage further with whether the civil or criminal standard of proof applies to the referral application. 7. The Applicants' referral application will be granted. Orders 1. That, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal is satisfied that it is appropriate to dispense with a hearing of the referral application. 2. That pursuant to s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) the Application filed 27 October 2021 for contempt be referred to the Supreme Court of New South Wales for determination. 3. Costs are reserved. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 22 July 2022