Supreme Court New South Wales Medium Neutral Citation: Halil v NSW Land and Housing Corporation [2023] NSWSC 553 Hearing dates: 19 May 2023 Date of orders: 19 May 2023 Decision date: 19 May 2023 Jurisdiction: Common Law Before: Campbell J Decision: 1. List the appeal for hearing on 21 June 2023 with an estimate of ½ day. 2. Stay the warrant for possession made in the NSW Civil and Administrative Tribunal on 12 September 2022 until 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. 3. Refer the plaintiff to the Registrar for the purpose of pro bono referral to a member of the Bar prepared to settle an amended summons limiting the grounds of appeal to available points of law alone and to appear for the plaintiff on the hearing of the appeal on 21 June 2023. 4. An amended summons to be filed on or before 7 June 2023. 5. Plaintiff's written submissions to be filed on or before 14 June 2023. 6. Defendant's written submissions to be filed on or before 18 June 2023. 7. The court book prepared by the defendant's solicitors and filed on 17 May 2023 may stand for the court book in the appeal. 8. Plaintiff to have liberty to file a supplementary court book on or before 7 June 2023. 9. List the matter to check readiness to proceed before the Registrar on 7 June 2023 at 9 am. Catchwords: CIVIL PROCEDURE — NCAT orders for possession of property — application for a stay of a warrant for possession — plaintiff seeks to appeal various NCAT decisions — whether stay is in the interests of justice — defendant entitled to fruits of litigation — statutory right of appeal nugatory if the stay is not granted Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 83 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Cook's Construction Pty Wine Ltd v Stork Food Systems Australia Pty Ltd [2008] Qd R 453 Category: Procedural rulings Parties: Hifsiye Halil (Plaintiff) NSW Land and Housing Corporation (Defendant) Representation: Counsel: D Farinha (Defendant) Solicitors: Crown Solicitor's Office (Defendant) Ms Halil (litigant in person by M Hassan as her agent via telephone) File Number(s): 2023/149749 JUDGMENT 1. I am dealing with an application for a stay of a warrant for possession issued by the NSW Civil and Administrative Tribunal in respect of residential premises which the plaintiff occupies pursuant to a residential tenancy agreement with the defendant, the NSW Land and Housing Corporation, a social housing agency of the NSW Government which I will refer to simply as "Housing". The appeal under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) requires leave of the Supreme Court which, generally speaking, is considered at the final hearing of the proceedings but is limited to an appeal on a question of law, an important limitation upon the power of the court to exercise its appellate jurisdiction. 2. The decision appealed from was given by the Appeal Panel of NCAT on 15 March 2023. That appeal itself was from two separate decisions that had been made at first instance in NCAT. The first was referred to by the Appeal Panel as the termination proceedings. Those proceedings were heard by General Member Hennings on 12 September 2022. That hearing was conducted ex parte in the absence of the present plaintiff because the learned member refused an application for an adjournment on behalf of the plaintiff that had been made in her absence. General Member Hennings terminated the tenancy on the ground of non-payment of rent and made other relevant findings applicable to the consideration that this was a social housing tenancy. The general member gave leave for the issue of a warrant, the operation of which he suspended for a period of one month. At the same time General Member Hennings dismissed the plaintiff's application for a rent reduction and associated relief in relation to the condition of the premises for the non-appearance of the plaintiff at the hearing. The Appeal Panel referred to this application as the rent reduction proceedings. 3. Senior Member Sarginson considered a reinstatement application in respect of both sets of proceedings. When I say a reinstatement, in respect of the termination proceedings that really required a consideration of whether the orders should be set aside. The learned senior member was not so satisfied and rejected that application but given that the rent reduction proceedings had been determined not on their merits but for non-appearance he reinstated those proceedings which were subsequently heard by General Member Eftimiou in November 2022. By her decision of 4 January 2023 the learned member dismissed the plaintiff's application. In those circumstances both applications were considered by way of an internal appeal under s 80 of the Civil and Administrative Tribunal Act by the Appeal Panel and both appeals were dismissed. 4. The plaintiff has, as I say, sought leave to appeal to this Court under s 83 of the Act by a summons filed on or about 5 May 2023 which undoubtedly is out of time. The summons contains 71 grounds which is perhaps understandable on the basis that it has been drafted, with family assistance, by a self-represented person who is not professionally qualified and, as I remarked today to Mr Hassan, the plaintiff's nephew who I gave leave to appear as has happened on prior occasions, it is highly unlikely that there could possibly be anything like 71 points of law arising from a single decision. 5. In any event, today I am concerned with the notice of motion filed with the summons which is for a stay of the warrant pending the outcome of the appeal and also for a referral for pro bono assistance under Part 7 of the Uniform Civil Procedure Rules 2005 (NSW). I will put that second application to one side for the moment. 6. I have been greatly assisted by written submissions prepared by Mr Farinha of counsel, who appears for the defendant in opposition to the motion for the stay, and I need not set out all of the detail concerning the applicable principles that learned counsel has expounded in an attractive manner in his written submissions. 7. Ultimately, as with all important questions of practice and procedure, the guiding principle is what do the interests of justice require? However, that general principle has been somewhat refined by the course of judicial exposition over a long period of time. Essentially as a starting point it needs to be seen that there is some point to the appeal, that is to say, in general terms, it should be demonstrated that one or more grounds of appeal are fairly arguable. 8. The second question really relates to the balance of convenience and that is encapsulated by reference to two competing principles. The first principle is that the successful party, here the defendant, ought to be entitled to the fruits of the litigation, being possession of the property the subject of the dispute. The other principle is that the court ought not, in an appropriate case, render the appellant's statutory right of appeal nugatory by refusing a stay which would render the appeal pointless. As with all discretionary considerations questions of prejudice on either side of the record are also relevant. 9. I largely accept the argument of Mr Farinha that certainly the great bulk of the grounds pleaded in the summons do not involve questions of law. At best they are mixed questions of law and fact. On the other hand, it seems to me from what has been explained today by Mr Hassan and from my consideration of the judgment of the Appeal Panel, which I have read carefully, certain grounds I think are arguable. First, that 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.. 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. Mr Farinha argued that in the end the appeal panel decided (a) that that ground, if it had ever been raised, had been abandoned and (b) that it had no substance anyway. With respect, it was given rather short shrift in what was otherwise a comprehensive and detailed judgment although it may have been an important point. 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. 12. Finally, there is another similar point 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 General Member Eftimiou 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. 13. It may be that on a proper examination of these matters the Court will be persuaded that they are not, in the end, material or not otherwise made good but at this threshold juncture I consider that those grounds are at least arguable. 14. I acknowledge Mr Farinha's argument that based upon the authority of Cook's Construction Pty Wine Ltd v Stork Food Systems Australia Pty Ltd [2008] Qd R 453 at [12] that a weak or an apparently weak case on appeal may reduce the intensity with which the court needs to consider the balance of convenience, particularly in regard to issues of prejudice affecting the successful party below. I am paraphrasing what Keane JA (as his Honour then was) said. Having said that I accept that the ability of a successful party to achieve the fruits of its litigation is an important principle and I accept as the government agency responsible for the provision of limited social housing stock to an ever-increasing backlog of applicants clearly there is a public interest in giving it possession of the property to ensure it can make it suitable for occupation by a qualified applicant on the waiting list. On the other hand, I am satisfied that the applicant's right of appeal, such as it may prove to be in due course, will be completely stymied if she is required to irrevocably surrender possession. In coming to that conclusion, I have also borne in mind that the premises have been the applicant's home for 22 years. Initially her husband was the tenant until his death, and she has only been the tenant since 2019. Even so she has lived there for that long period of time. Moreover, she is in her 70s now and not in good health. She has strong community connections in the immediate vicinity of the suburb where she lives including her doctor and chemist and it is in close proximity to a large public hospital. 15. It seems to me that in those circumstances the balance of convenience favours the grant of the stay. I have not lost sight of the material put forward as to availability of other housing stock in the area. I also bear in mind that it is notorious that it is very difficult for persons to find rental accommodation. But this material was collated toward the end of last year for the hearing before General Member Eftimiou and is entitled to some weight. However not all of it, it seems to me, has been shown to be appropriate for a woman in the plaintiff's circumstances and, as I remarked during the hearing, none of it seems to be close to the suburb where she currently lives which is where her community supports are. 16. I am conscious of the fact that the order for possession was originally made as long ago as 12 September 2022. Even so a person is entitled to exercise such legal rights as may be available to them. It seems to me, however, that given how finely balanced the matter is that the hearing of this appeal should be expedited so that the matter can be resolved once and for all within a fairly short time. Injecting a degree of expedition into the appeal will minimise the prejudice to both parties and I propose to proceed in that way. 17. Before making final orders, I will now deal with the application for referral for pro bono advice under UCPR Part 7. In determining this application I have not lost sight, as is apparent from consideration of the material before me, that at different times the plaintiff has had access to legal aid initially through the Legal Aid Commission and then later through the tenant advocacy service of the Western Sydney Community Legal Centre. That is a relevant factor because the material before the tribunal indicated that each legal aid provider sought to discontinue acting because there was disengagement of the plaintiff from their services and that is a relevant factor. However, the applicant has not been afforded the opportunity of referral under the Rules and if someone is willing to take on the case it will be of assistance to the Court. 18. The referral is under UCPR r 7.36. I am satisfied that the applicant is a pensioner and that she has little or no capacity to obtain legal assistance outside the scheme. In that regard I observe that there was reference in the transcript to an appeal being made to the appeal committee of the Legal Aid Commission that, I gather, must have been unsuccessful. I am of the view that although the proceedings are not unduly complex, the nature of them, involving a point of law alone appeal, is likely to be beyond the expertise of the litigant in person. Many lawyers have trouble identifying a point of law alone and it does seem to me that if the matter is to proceed and the Court is to have appropriate assistance in determining the outcome of the appeal that is a factor which weighs in favour of a pro bono appointment. It will also in the scheme of things assist the defendant because hopefully the grounds of appeal will be refined and the argument will be more clearly stated and therefore more easily dealt with. 19. For those reasons I propose to make such an order. I should say the resources of the profession in this regard are not unlimited and the fact that the Court makes a referral does not guarantee that someone will be prepared to accept it but that is a matter about which it may be said the bridge can be crossed when we come to it. ********** 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: 24 May 2023