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 13 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. (1) On 25 June 1999 the plaintiffs and Mr Whippy entered into a residential tenancy agreement as tenants with Mr Griffiths (the second defendant and landlord) in relation to the premises at Whale Beach. (2) On 8 July 1999 the tenants vacated the premises. The Tribunal found that the landlord had committed at least two very serious breaches of the tenants' rights to enjoy their tenancy free of the unlawful entry by the landlord acting clearly outside his rights under s 24 of the Residential Tenancies Act 1987. (3) On 13 July 1999 the plaintiffs lodged an application to the Tribunal. (4) On 29 July 1999 the matter came before the Tribunal for hearing. On that day interim orders were made for the tenants to supply particulars of their compensation claim. (5) On 25 August 1999 the matter came back before the Tribunal. Mr Nicholas Warren the tenants advocate gave eyewitness evidence concerning conversation between the landlord and tenants. Mr Griffiths, the landlord and the tenants all gave evidence. At the conclusion of that days proceedings the landlord asked whether he would be permitted legal representation. This application was declined. Both parties were given an opportunity to present submissions on the issue of compensation. The tenants' submissions were only received by the Tribunal on 28 September 1999 and in order to ensure procedural fairness to the landlord the Tribunal adjourned the proceedings to allow him further time to respond to the applications' submissions and to obtain legal advice. (6) On 1 October 1999 the matter was stood over until 17 November 1999. The landlord requested an extension of time and was told to lodge the submissions immediately. (7) On 17 November 1999 the landlord produced a 74 page handwritten submission plus attachments. A copy had not been provided to the applicants. The submission was copied and then read by the applicants. According to the Tribunal member's reasons it was made clear to the parties that the proceedings would not adjourn for the day but the registrar would advise the member later in the morning when the parties were ready to proceed. At 12.05 pm the member was contacted by the registrar. The applicants were ready to proceed but the respondent had left the precinct of the Tribunal. Messages were left on the respondent's mobile telephone number but these calls were not returned. Orders were made that despite the failure to appear on 17 November 1999 the Tribunal further adjourned the hearing until 1 December 1999 to ensure procedural fairness to the landlord. (8) On 1 December 1999 there was no appearance by the landlord. The hearing concluded on an exparte basis. The Tribunal reserved its decision. (9) On 29 February 2000 the Tribunal handed down its reasons for decision. It ordered: "1. The Tribunal orders that the respondent Mr Peter Griffiths pay to the applicant Lisa Sheridan a total of $2776.67 immediately, being $226.67 repayment of bond, $50.00 for telephone installation, and $2500.00 for non-economic loss. 2. The Tribunal orders that the respondent Mr Peter Griffiths pay to the applicant Casey Holloway a total of $2837.67 immediately, being repayment of bond $226.67, $100.00 mail redirection, $100.00 cost of hire of removal truck, and $2500.00 for non-economic loss. 3. The Tribunal orders that the respondent Peter Griffiths pay to the applicant Miles Whippy the sum of $2726.67, being repayment of bond and $2500.00 for non-economic loss." (10) On 21 December 1999 the Tribunal received an application for rehearing from the landlord pursuant to s 63 of the Act. The reason that the landlord sought the rehearing was that he was not at the hearing on the days that the orders were made. By letter dated 23 December 1999 from the Residential Tribunal to the landlord the delegate of the Chairman directed that the matter be reheard because the Chairperson was satisfied that the applicant may have suffered a substantial injustice. The substantial injustice was that evidence which is now available was not reasonably available at the hearing and that the landlord was not at the hearing on the day that the orders were made. (11) By letter dated the 17 January 2000 addressed to the tenants, the acting registrar advised that the Chairperson was of the opinion that a s 63 application is an application to the Chairperson as opposed to an application to the Tribunal. The Chairperson also held the view that there is no obligation to provide a copy of the s 83 application form to the other parties in the matter and that the s 83 application is decided on the basis of "the face of the application", and the rehearing is a hearing de novo (that is a new hearing proceeds as if a previous hearing did not take place and a decision was not made). The letter concluded that as soon as a decision is made on the landlord's application for legal representation, the matters will be set down for a hearing. 8 The plaintiff submitted that the Chairperson of a Tribunal is an administrative rather than a judicial officer. The functions of a Chairperson are set out in s 10 of the Act. The functions of a Chairperson include being responsible for the overall operation and administration of the Tribunal, monitoring the operations of the Tribunal to ensure that those operations are just, economical, informal and as speedy as practicable, and allocating the work of the Tribunal among the members. Also the Chairperson may give directions as to the arrangement of the business of the Tribunal, the practice and procedure to be followed in proceedings before the Tribunal, or in alternative dispute resolution procedures, the places at which the Tribunal may sit, the procedure of the Tribunal generally, the procedure of the Tribunal at a particular place. It is my view the functions set out in s 10 are of an administrative nature. The Chairperson in deciding whether to grant a rehearing was acting administratively. 9 The plaintiffs submitted that the decisions of a Chairperson are not subject to the exclusion of jurisdiction of the Supreme Court. The plaintiff submitted that the decisions of a Chairperson are subject to the requirements of procedural fairness and because the type of decision made under s 63 is in the nature of an appeal the rehearing is a hearing de novo; secondly, only the specific words work to exclude the requirements of procedural fairness; thirdly, the words on the face of the application are not such so as to exclude the hearing from the tenants. 10 In relation to natural justice, Professor S A de Smith, Judicial Review of Administrative Act, 2nd ed., pp 180-181 has stated: "Natural justice generally required that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position: (a) to make representations on their own behalf; or (b) to appear at a hearing or inquiry (if one is to be held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet." 11 In Kioa v West (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing such as to give it a reasonable opportunity to meet that case and to advance its own. These statements are similar to those expressed by Professor de Smith and referred to earlier. Brennan J (as he then was) at p 628 stated: "A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interest which the repository of the power proposes to take into account in deciding upon its exercise." 12 In relation to procedural fairness, Mason J stated in Kioa that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect the rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case (pp 584 and 585). 13 The plaintiff submitted that the Chairperson's decision breached the "hearing rule" by failing to even notify the tenants that the application had been made and failing to give them the opportunity to be heard. The plaintiffs submitted that a copy of the review should have been provided to the tenants for comment at the very least. The plaintiffs only concern is that after five days of hearing they will be required to attend the Tribunal for a further lengthy period to complete the rehearing. 14 Section 63 provides: "Rehearings (1) In circumstances prescribed by the regulations, a party to proceedings before the Tribunal may, in the manner and within a time so prescribed, apply to the Chairperson for an order directing that the matter be reheard by the Tribunal , on the ground that the applicant may have suffered a substantial injustice because: (a) the decision of the Tribunal was not fair and equitable, or (b) the decision of the Tribunal was against the weight of evidence, or (c) evidence that is now available was not reasonably available at the time of the hearing. (2) The Chairperson is not to grant the application unless, on the face of the application, it appears to the Chairperson that the applicant may have suffered a substantial injustice. (3) If the application is granted, the Chairperson is to determine the constitution of the Tribunal in a manner appropriate for the purposes of the rehearing, having regard to the circumstances of the case and the requirements of natural justice. (4) The matter is to be dealt with as a hearing de novo by the Tribunal as constituted under subsection (3)." 15 The issue is whether the Chairperson (or delegate) should be required to furnish a copy of the application for rehearing to the affected party and permit them to make submissions, or alternatively, should the Chairperson make the decision on the basis of the application alone. The legislation creating this forum for the resolution of tenancy disputes has sought to achieve expeditious and inexpensive justice between the parties while maintaining a proper regard for and the protection of the rights of the parties to the dispute. The difficulty is striking the correct balance between the two goals. Even if the circumstances disclose an absence of natural justice the occasions on which the court can intervene are limited. 16 As previously stated, the tenants have been engaged in a 5 day hearing and prepared documentation for the Chairperson. They have expended time and their resources in having this matter determined. The proposed administrative act being a decision as to whether a rehearing will take place is one which directly affects the tenants. If a rehearing is refused the matter is at an end and the decision that the tenants are entitled to compensation and refund of bond money will stand. The decision affects the rights of the tenants and according to Kioa there is a common law duty to act fairly subject to the clear manifestation of a contrary statutory intention. 17 According to the plaintiffs, on proper construction of the phrase "on the face" means it should be construed as not meaning the application only but as including the tenant's reply to the contentions raised in the application. 18 Section 63 does not make provision for the respondent in the proceedings to make written submissions or to be heard. All the Chairperson is required to do is to decide whether the applicant may have suffered a substantial injustice. Three alternatives in paragraphs 3(1)(b) to (3) are stipulated. The Chairperson is not to grant the application unless "on the face of" the application, the applicant may have suffered an injustice. It is my view that "on the face" of the application limits the inquiry to be made by the Chairperson to the application alone. It was not intended that the Chairperson would embark on an inquiry which would encompass submissions by the opposing party. Further, once an application for rehearing is granted, s 60(3) specifically provides that the Chairman in deciding the constitution of the Tribunal to conduct the rehearing has to have regard to the requirements of natural justice. The section appears to have been drafted with the consideration of natural justice in mind and omitted to refer to it in s 60(2). Hence it is my view that the court should not intervene. The Chairperson does not have an obligation to hear from the affected party before a decision as to a rehearing is made. It is my view that in these circumstances contrary statutory intention has been expressed. The decision of the Chairperson of 23 December 1999 is affirmed. The summons should be dismissed. As the landlord Mr Griffiths, the second defendant, did not appear so I will not make an order for costs against the plaintiff at this stage. Costs are reserved. 19 The orders I make are: (1) The decision of the Chairperson of 23 December 1999 is affirmed. (2) The summons is dismissed. (3) Costs are reserved. ********** Last Modified: 09/27/2000 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.