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: "Tf in proceedings before it a question arises with respect to a matter of law, the Tribunal may decide the question or may refer it to the Supreme Court for decision". The Tribunal referred the question whether under s16(2)(d) of the Act it had power to award damages for non-economic loss. The proceedings in the Supreme Court were initiated by a summons, which does not appear in the appeal book, but there is an amended summons in which the first plaintiff was the Residential Tenancies Tribunal of New South Wales and the second and third plaintiffs were the tenants. The landlord was the sole defendant. The proceedings came on before Abadee J, and there was no appearance on behalf of the landlord and no appearance on behalf of the second or third plaintiffs. The only party who appeared was the Tribunal. His Honour determined the matter raised by the summons and granted a declaration as to the extent of the power of the Tribunal under s16(2)(d). The defendant, Mr Offe, who had not been represented before Abadee J because of a mishap, has applied for leave to appeal against that decision. The case falls within s101(2)(h) of the Supreme Court Act. The Tribunal is the only opponent represented in this Court. 2 UNREPORTED JUDGMENTS When the summons came on for hearing, the Court raised with counsel the competency of proceedings, on a reference from the Tribunal, in which that Tribunal was a plaintiff. This matter had not been raised by counsel in their written submissions and the Court stood the summons down to enable the parties to consider their position. Mrs Gilmour, who appeared for the Tribunal, submitted that it was a competent party on a reference under s106(2), and was entitled to be heard on a question as to the scope of its powers under the Act. The Court referred the parties to R v Australian Broadcasting Tribunal ex parte Hardiman (1980) 144 CLR 13, especially at 17 and 35-36, where the High Court held that a tribunal properly joined as a party to judicial review proceedings should not become a protagonist but ordinarily should submit to such order as the Court may make. A tribunal, of course, is a proper respondent to judicial review proceedings in respect of its decisions. The present case is distinguishable because the proceedings arise under a reference by the Tribunal of a question of law for determination by the Supreme Court. The reference was made in inter partes proceedings before the Tribunal. It is unheard of, in my experience, for a tribunal to become involved in appellate or appellate-type proceedings arising from its own decisions. The power to refer a question of law to a superior court is a familiar one in legislation establishing a tribunal or inferior court. The question must arise in proceedings between parties and the Tribunal is not, in my judgment, a competent party on the reference. The proceedings on the reference are of the same character as the proceedings in the Tribunal. They are proceedings in which the parties in the Tribunal are the only necessary parties. The position of a tribunal in judicial review proceedings is not relevant in cases under s106(2) or the like. Mrs Gilmour referred us to Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 681-682, where Brennan J distinguished Hardiman's case because, as he said, the Crimes Compensation Tribunal: "\.. was, in a sense, the guardian of the moneys appropriated by Parliament to answer the proper claims for compensation under the Act. In proceedings to review its decision, the Tribunal properly represents the public purse, and it was right that the Tribunal should appear by counsel as a party to respond substantially to the application". However this was said in judicial review proceedings in which there was no other opponent, and the Attorney General had not intervened. The decision in Fagan v Crimes Compensation Tribunal is therefore not relevant in this case. In my judgment the Tribunal was not a competent plaintiff in its own reference of the question of law. Although the tenants were named as co-plaintiffs they were not represented by the State Crown Solicitor who was acting for the Tribunal. In those circumstances the joinder of the tenants as co-plaintiffs was improper, and an order should have been made transferring them to the other side of the record. Since there was no proper party before the Court, the Judge should have ordered that the proceedings be struck out. I would propose that leave to appeal be granted, the appeal be allowed, that the declaration and orders made by Abadee J be set aside, and the summons in the Supreme Court dismissed. URJOFFE v TENANCIES TRIBUNAL OF NEW SOUTH WALES & ORS (Handley JA) 3 Cole JA I agree. In those circumstances it becomes unnecessary to consider whether "'a question" arises within the meaning of s106 of the Act where a claim giving rise to the question whether a tribunal has power to award damages for non-economic loss was not made to the Tribunal by the claimant tenants. I should also say that we have not considered the question of whether the Tribunal has power to award damages for non-economic loss nor the correctness of the decision of Abadee J. I would express no view on either of those matters. Beazley JA I agree. Handley JA The orders of the Court will be as I proposed. In view of the provisions of s106(4) the Court will make no order as to costs. Leave to appeal granted Appeal Allowed Declaration and orders made by Abadee J set aside Summons in Supreme Court dismissed RYN Counsel for the appellant: C Birch Solicitors for appellant: Conway MacCullum Counsel for the respondent: M A Gilmour Solicitors for the respondent: I V Knight