Holloway & Anor v Chairperson of the Residential Tribunal of NSW [2000] NSWSC 858

New South Wales Supreme Court

CITATION : Holloway & Anor v Chairperson of the Residential Tribunal of NSW [2000] NSWSC 858 revised - 5/09/2000 CURRENT JURISDICTION: Administrative Law FILE NUMBER(S) : SC 30015/2000 HEARING DATE(S) : 26 June 2000 JUDGMENT DATE : 30 August 2000

Casey Carroll Holloway (First Plaintiff)

Lisa Jane Sheridan (Second Plaintiff)

PARTIES : Chairperson of the Residential Tribunal of NSW (First Defendant)

Peter Gosper Griffiths (Second Defendant)

Miles Whippy (Third Defendant) JUDGMENT OF : Master Harrison

LOWER COURT Residential Tribunal JURISDICTION : LOWER COURT 99/43763 FILE NUMBER(S) : LOWER COURT Robert Tickner - Member JUDICIAL OFFICER :

Ms J Needham (Plaintiffs) COUNSEL : No appearance (Defendants) SOLICITORS : Legal Aid Commission (Plaintiffs) CATCHWORDS : Appeal decision of Residential Tribunal - Denial of natural justice - procedural fairness LEGISLATION CITED : Residential Tribunal Act 1998 - ss 60 & 62 Judicial Review of Administrative Act, 2nd ed. CASES CITED : Kioa v West (1985) 159 clr 550 DECISION : See para 19

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THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION

MASTER HARRISON

WEDNESDAY, 30 AUGUST 2000

30015/2000 - CASEY CARROLL HOLLOWAY & ANOR v CHAIRPERSON OF THE RESIDENTIAL TRIBUNAL OF NEW SOUTH WALES & 2 ORS JUDGMENT (Appeal decision of Residential Tribunal; denial of natural justice; procedural fairness) 1 MASTER: By summons filed 13 March 2000 the plaintiffs pursuant to s 62 of the Residential Tribunal Act 1998 (the Act) seek firstly, an order that the direction of the first defendant notified to the plaintiffs on 23 December 1999 be quashed on the grounds of denial of natural justice or alternatively, an order that the direction of the first defendant notified to the plaintiffs on 23 December 1999 be quashed on the grounds that the chairperson lacked the jurisdiction to make such a direction; and secondly an order that the matter be remitted to the chairperson for determination in accordance with law. 2 The plaintiffs relied on the affidavit of Bill Gerogiannis sworn 1 May 2000. The second defendant Peter Gosper Griffiths (the landlord) did not appear and indicated at a previous court hearing that he did not intend to appear at this hearing. The third defendant Miles Whippy was served in accordance with an order for substituted service and did not appear at the hearing. The first defendant, the Residential Tribunal filed a submitting appearance. The first and second plaintiffs and the third defendant entered into a residential tenancy agreement with the first defendant for premises at 125 Whale Beach Road, Whale Beach. 3 Section 62 of the Act allows for an appeal to be made to this court on a question of law. The onus lies on the plaintiff to demonstrate that there has been an error of law. However the plaintiffs do not contend that an appeal lies under this section as they do not assert that there has been an error of law. Rather, they submit that the Chairperson acted administratively when she directed a rehearing and that she was obliged to comply with the rules of procedural fairness and natural justice. They submit that she did not comply with the rules of procedural fairness and natural justice because she did not give them an opportunity to be heard. 4 Section 60 of the Act gives a limited right of review. It provides: "Review by prerogative writ etc generally excluded (1) Except as provided by this section, a court of record has no jurisdiction to grant relief or a remedy by way of: (a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or (b) a declaratory judgment or order, or (c) an injunction, in respect of a matter heard and determined or to be heard or determined by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter. (2) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in which the jurisdiction of the Tribunal to determine the matter was disputed, where the ground on which the relief or remedy is sought is that: (a) the Tribunal gave a ruling as to its jurisdiction that was erroneous, or (b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed. (3) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in which the Tribunal has made an order, where the ground on which the relief or remedy is sought is that: (a) the Tribunal had no jurisdiction to make the order, or (b) in relation to the hearing or determination of the matter, a party to the claim had been denied natural justice." 5 At the outset, it is helpful to set out some of the provisions of the Residential Tribunal Act 1998. The function of the Residential Tribunal is to adjudicate disputes between landlords and tenants. The Tribunal is not constrained by the rigour of the court room. Its objects are to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair. The Tribunal is to enable proceedings to be determined in an informal, expeditious and inexpensive manner. The Tribunal is to act with as little formality as the circumstances of the case permit. It is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (s 27(3)). 6 Evidence must be given on oath or statutory declaration (s 36(1)) but the Tribunal is not bound by the rules or practice of evidence. The Tribunal may inform itself on any matter in such manner as it considers appropriate (s 27(2)). The Tribunal must conform to the rules of natural justice, but broadly speaking, has control of and responsibility for its own procedures (s 27(1) and (2)). Its business is conducted in public (s 30). Normally a party to the proceedings has carriage to his or her own case and is not entitled to be legally represented (s 33(1)). The Tribunal has the power to award costs (s 47), but normally each party bears its own costs. Pursuant s 49 of the Act the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal has a power to correct its decision (s 46) and the registrar can issue a certificate which operates as a judgment (s 47). 7 A brief history of the proceedings before the Tribunal are as follows.