OFFE v TENANCIES TRIBUNAL OF NEW SOUTH WALES AND ORS [1997] NSWCA 239

OFFE v TENANCIES TRIBUNAL OF NEW SOUTH WALES & ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, COLE and BEAZLEY JJA 29 October 1997, 29 October 1997

[1997] NSWCA 239

STANDING — statutory tribunal has no standing on a reference by it of question of law to Supreme Court

The Tribunal commenced proceedings by summons in the Supreme Court seeking a declaration that it had jurisdiction under the Residential Tenancies Act to award damages

for non-economic loss. The question had earlier been referred by it to the Supreme Court under s106 of the Residential Tenancies Act. The parties before the Tribunal were joined but did not appear. The Court heard argument ex parte and made the declaration sought. Mr Offe, the landlord who had not appeared before the Supreme Court, sought leave to appeal from the decision.

HELD: per curiam: Proceedings on the reference of the question of law were inter partes, the Tribunal had no standing, and the proceedings were incompetent. R v Australian Broadcasting Tribunal, ex parte Hardiman (1980) 144 CLR 13 and Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 distinguished.

Handley JA This is an application for leave to appeal from a decision of Abadee J sitting in the Common Law Division, who heard and determined a purported reference under s106 of the Residential Tenancies Act.

On 21 August 1995 Ms Jones and Mr Parkes entered into a residential tenancy agreement with Mr Offe as landlord. The tenants claimed that there were defects in the premises leased and the equipment supplied with those premises. Accordingly on 16 December 1996 they applied to the Residential Tenancies Tribunal for relief under the Act.

The Tribunal decided of its own motion to refer a question of law to the Supreme Court pursuant to s106 of the Act. So far as relevant, subs(2) provides: