New South Wales Supreme Court CITATION : Gill & Anor v Residential Tribunal NSW & Ors [2001] NSWSC 584 CURRENT JURISDICTION: Common Law Division Administrative Law List FILE NUMBER(S) : SC 30016 of 2001 HEARING DATE(S) : 4 July 2001 JUDGMENT DATE : 13 July 2001 Stephen Gill (formerly Stephen Maybury) (First Plaintiff) Pamela Gill (formerly Pamela Maybury) (Second Plaintiff) PARTIES : v Residential Tribunal NSW (First Defendant) Michael Tuckerman and Paul James Devine (Second Defendant) Montano Realty Ashfield (Third Defendant) JUDGMENT OF : Master Malpass LOWER COURT Residential Tribunal JURISDICTION : LOWER COURT 00/34817 FILE NUMBER(S) : LOWER COURT J Cipolla JUDICIAL OFFICER : N/A (Plaintiffs) COUNSEL : N/A (First Defendant) Mr Brae Antcliffe (Second Defendant) N/A (Third Defendant) In Person (Plaintiffs) SOLICITORS : I V Knight - Crown Solicitor - Submitting appearance (First Defendant) Clarks Business & Property Lawyers (Second Defendant) Tony Andreacchio - Director (Third Defendant) CATCHWORDS : Appeal from Residential Tribunal - no error of law - out of time - assertion that the subject premises had been provided by God for the plaintiffs' family and ministry - assertion that the application had not been heard in open court and that the plaintiffs were denied conciliation. LEGISLATION CITED : Residential Tribunal Act 1998, s 30, s 49. CASES CITED : N/A DECISION : See Paragraph 20. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST MASTER MALPASS FRIDAY 13 JULY 2001 30016 of 2001 STEPHEN GILL (formerly STEPHEN MAYBURY) & ANOR v RESIDENTIAL TRIBUNAL NSW & ORS JUDGMENT 1 The plaintiffs are Mr and Mrs Gill (formerly Maybury). Their case has been presented by Mr Gill with assistance from Mrs Gill. 2 The plaintiffs had been the tenants of premises known as 193a Canterbury Road Canterbury. The Residential Tenancy Agreement was made with Blisdell Pty Limited. On 16 December 1999, Messrs Tuckerman and Devine (who are described as the second defendant) became the owners. Notice of attornment was given. There is dispute raised by the plaintiffs as to when this took place. 3 Mr Gill describes himself as a Minister of the Gospel and he conducted certain religious activities from the premises. He has taken the stance that God has provided the premises for his family and ministry. 4 There have been a number of applications before the Residential Tribunal (the Tribunal). An application came before the Tribunal on 24 May 2000. A further matter was heard on 2 August 2000. Finally, there was an application heard on 29 September 2000 (this was the first brought by the second defendant). On that day, the Tribunal made certain orders (including an order for termination of the tenancy agreement and giving possession to the landlords on 6 October 2000 together with an order for the payment of the sum of $3,391.50 on or before the same date). 5 The plaintiffs have vacated the premises. Some of their possessions remained in the premises. These have been the subject of continuing dispute. The dispute is not relevant to this appeal. New tenants are in occupation of the premises. 6 In October 2000, the plaintiffs sought a rehearing. This application was unsuccessful. 7 On 7 March 2001, the plaintiffs filed a Summons in this Court. They now proceed on an Amended Summons filed on 26 April 2001. 8 Apart from seeking an order concerning a matter of compensation, the thrust of the proceeding is to launch an appeal against the orders made on 29 September 2000. The claim for compensation can not be agitated in this appeal and accordingly must fail. The appeal itself is restricted to an error of law. 9 The appeal has been brought well out of time. The default and delay have been left unexplained. For these reasons alone the appeal is doomed to failure. However, as the matter has been fully argued (indeed, Mr Gill has addressed at inordinate length) I shall now turn to the merits of the matters that were sought to be agitated. If the grounds of appeal are devoid of merit it would be futile for the court to extend time for the bringing of an appeal. 10 The plaintiffs have relied on a number of documents which have been presented as affidavits sworn by Mr Gill. A significant part of this material may be accurately described as no more than submission tending to identify the grounds of the appeal. There is some purported evidentiary material. To a significant extent, this material is either irrelevant or inadmissible in form. The material was received subject to objection. 11 The second defendants have relied on a number of affidavits (affidavits sworn by Mr Tuckerman, Mr Devine, Mr Dahdah, Mr Shad and Mr Andreacchio). 12 Mr Andreacchio is a principal of Montano Realty Ashfield, which has been named as the third defendant. It is an unnecessary party to these proceedings and has adopted a submitting position (as has the Tribunal which is the first defendant). 13 I have given close attention to all of the material (including the reasons for decision of the Tribunal, and the affidavits of Mr Gill). Apart from reading this material I have given close attention to all of what has been said by Mr Gill. I am not satisfied that he has demonstrated any error of law entitling the plaintiffs to relief in this appeal. 14 Whilst not intending to be exhaustive, I shall specifically address certain of the matters identified by Mr Gill in his affidavits and submissions. 15 It was said that the Tribunal acted outside lawful jurisdiction making an illegal judgment. It was said that it acted with procedural impropriety in the same matter. It was said that it failed to observe natural justice. It was said that all the defendants other than the Residential Tribunal have already been judged concerning their professional negligence. It was said that Mr Gill was not given an opportunity for conciliation (s 49 of the Residential Tribunal Act 1998 (the Act) ). It was said that he was not offered the opportunity to bring relevant available evidence before the Tribunal. It was said that the hearing was not heard in public (s 30 of the Act). It was said that the premises are his rightful inheritance. To the extent that these assertions have relevance I am not satisfied that any of them have been sustained. 16 Lengthy submissions were made as to what was said happened during a previous application before the Tribunal (inter alia relating to back rent). The submissions were not only the subject of dispute as to their factual accuracy, they were correctly rebutted as being irrelevant and of no assistance to the plaintiffs in this appeal. 17 The evidence before the Tribunal included the tenancy agreement, the attornment, a notice of termination dated and served on 15 August 2000, evidence of non-payment of rent for the period relevant to the application for termination as well as to arrears of rent in an amount of $3,391-50 for the period 22 June 2000 to 29 September 2000. The findings and orders made by the Tribunal were open on the material before it. There is evidence from two deponents to the effect that conciliation was unsuccessfully explored. Neither deponent was cross-examined. There is evidence that the application was heard in an open courtroom. It may be that no members of the public availed themselves of the opportunity to observe the hearing. This is hardly surprising as it could be expected that a dispute over non-payment of rent may excite little public interest. Not only is there a lack of evidence to support Mr Gill's assertion that he did not have adequate opportunity to present his case, there is evidence that about 90% of the hearing time was taken up by the submissions made on behalf of Mr and Mrs Gill (or Maybury as perhaps they then were). The major (if not only) complaint made in support of this matter seems to be an assertion that Mr Gill was denied the opportunity of putting material relating to the attornment before the court. This was the subject of lengthy and emotive submission which seemed to me to be devoid of merit. The reasons for decision make it manifestly clear that this document was before the court. Its terms are set forth in the reasons. There is evidence that the attornment was given to the plaintiffs on 17 December 1999. Although Mr Gill continued to assert that he was unaware of it until 14 August 2000, his letter dated 27 January 2000 contains an admission that he was then aware of the ownership of the second defendant. In that letter, he discussed the matter of payment of rent and "supernatural debt cancellation". In it, he put the proposition that he should not have to pay rent because of his ministry. 18 Because the submissions relating to sections 30 and 49 failed on factual grounds, argument as to whether breach of either of them could give rise to an error of law was not pursued. 19 The onus rests on the plaintiffs to demonstrate entitlement to relief. In my view, that onus has not been discharged. They have failed to demonstrate merit in any of the alleged grounds of appeal. 20 The Summons is dismissed. The plaintiffs are to pay the costs of the proceedings. ********** Last Modified: 07/16/2001 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.