New South Wales Supreme Court CITATION : Cohen-Hallaleh v Cyril Rosenbaum Synagogue [2003] NSWSC 395 revised - 13/05/2003 HEARING DATE(S) : 01/05/03, 08/05/03 JUDGMENT DATE : 13 May 2003 JURISDICTION: Equity Division JUDGMENT OF : Barrett J DECISION : Summons dismissed CATCHWORDS : APPEAL AND NEW TRIAL - plaintiff seeks review of decision of Consumer, Trader and Tenancy Tribunal - whether error of law - whether facts capable of supporting findings - whether "issue" concurrently before Industrial Relations Commission - LANDLORD AND TENANT - residential tenancies legislation - whether right of occupation granted by employment contract arises from "residential tenancy agreement" Consumer, Trader and Tenancy Tribunal Act 2001, ss.65, 66 and 67 LEGISLATION CITED : Industrial Relations Act 1996, s.106 Residential Tenancies Act 1987, ss.3(1), 6(2), 22(7) Residential Tenancies (Residential Premises) Regulation, cl. 21 Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648 Facchini v Bryson [1952] 1 TLR 1386 Ford v Langford [1949] 1 All ER 483 E & W Hackett Ltd v Oliver [1953] SASR 19 CASES CITED : Hyam v Yee [1997] NSWRT 194 McLeod v McLeod [1999] NSWRT 32 Metropolitan Fire Brigades Board v Tait [1949] VLR 231 Radaich v Smith (1959) 101 CLR 209 H A Warner Pty Ltd v Williams (1945) 73 CLR 421 Torbett v Faulkner [1952] 2 TLR 659 Juda Cohen-Hallaleh - Plaintiff PARTIES : Cyril Rosenbaum Synagogue Pty Ltd - First Defendant Sir Moses Montefiore Jewish Home - Second Defendant Consumer, Trader and Tenancy Tribunal - Third Defendant FILE NUMBER(S) : SC 2538/03 COUNSEL : Mr A Blank - Plaintiff Mr G Lucarelli - First and Second Defendants SOLICITORS : Plaintiff in person Minter Ellison - First and Second Defendants IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J TUESDAY, 13 MAY 2003 2538/03 – JUDA COHEN-HALLALEH v CYRIL ROSENBAUM SYNAGOGUE PTY LTD & 2 ORS JUDGMENT Parties and proceedings 1 The plaintiff seeks orders directed towards review of a determination of the Consumer, Trader and Tenancy Tribunal ("CTTT") on 28 March 2003 by which an order for termination and possession was made against the plaintiff in respect of an agreement between him and the owner of the property occupied by him (which I shall call "the subject premises"). That owner is the second defendant, Sir Moses Montefiore Jewish Home, a body constituted by statute. 2 The plaintiff is an orthodox Jewish rabbi. He was previously employed by the second defendant or its related entity, the first defendant, Cyril Rosenbaum Synagogue Pty Ltd. He occupied the subject premises in connection with his employment. The summons was prepared by the plaintiff himself and, while probably not conforming strictly to the requirements applicable to cases where review of a determination of the CTTT is sought, was accepted by the defendants as appropriate for that purpose. The plaintiff later obtained the services of Mr Blank of counsel who appeared before me when the matter was argued. 3 The plaintiff seeks to call in question the determination of the CTTT on five bases. First, he says that the agreement under which he occupied the subject premises was not a "residential tenancy agreement" as defined by s.3(1) of the Residential Tenancies Act 1987, so that the CTTT had no jurisdiction to make the determination it purported to make. Second, the plaintiff says that, if the agreement was a "residential tenancy agreement", it was one to which the Act did not apply by virtue of s.6(2). His third argument is based on the exempting or excluding effect of clause 21 of the Residential Tenancies (Residential Premises) Regulation 1995. The fourth ground of challenge is that "the issue of occupation" of the subject premises formed part of certain proceedings instituted by the plaintiff in the Industrial Relations Commission so that s.22(7) of the Consumer, Trader and Tenancy Tribunal Act 2001 applied to deprive the CTTT of the jurisdiction it purported to exercise. Finally, the plaintiff says that the CTTT should have referred the matter to the Supreme Court under s.66 of the Consumer, Trader and Tenancy Tribunal Act. 4 As was pointed out by Mr Lucarelli of counsel who appeared for the defendants, the Consumer, Trader and Tenancy Tribunal Act makes clear specifications limiting the extent to which decisions of the CTTT may be challenged in court proceedings. The general rule laid down by s.65(1) is as follows: "(1) Except as provided by this section, a court 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 any matter that has been heard and determined (or is 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." 5 Certain exceptions in s.65(2) and 65(3) allow intervention by a court on certain limited grounds going to jurisdiction. Section 67 creates an avenue of appeal from a decision of the CTTT to this court, but only where the decision is a decision with respect to a matter of law (including a matter related to the jurisdiction of the tribunal). These statutory restrictions play an important part in these proceedings. I shall return to them. Factual background 6 Before dealing with the bases on which the plaintiff seeks to call in question the determination of the tribunal, I should say something about the subject premises and matters of physical location and layout. 7 The second defendant owns and operates an aged care facility on a large area of land at Hunters Hill. The property has a long frontage to High Street and is known as No 120 High Street, Hunters Hill. The establishment operated by the second defendant is licensed as a nursing home under the Nursing Homes Act 1988 by way of licence NH1846 permitting a maximum of 174 patients in 148 wards at any one time. 8 The subject premises consist of a free-standing two-storey brick residence with four bedrooms. It is of what one might call typical suburban appearance enclosed on three sides by a paling fence and with an unfenced street frontage. That frontage is to High Street. The address of the subject premises is 118 High Street, Hunters Hill. They stand on their own block of land adjoining the second defendant's aged care facility. There is a gate in the dividing fence between the two properties. 9 The matters I have just mentioned were in evidence before the CTTT. In addition, I was asked to take judicial notice of the fact that an observant orthodox Jew is constrained by religious duty not to travel on the Sabbath except by foot. I am content to do so. First ground – "residential tenancy agreement" 10 Section 3(1) of the Residential Tenancies Act 1987 defines "residential tenancy agreement" as follows: "'residential tenancy agreement' means any agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence: (a) whether or not the right is a right of exclusive occupation, (b) whether the agreement is express or implied, and (c) whether the agreement is oral or in writing, or partly oral and partly in writing, and includes such an agreement granting the right to occupy residential premises together with the letting of goods." 11 It is not disputed that the plaintiff had a contractual right to occupy the subject premises. There was in evidence before the CTTT a service agreement between the second defendant and the plaintiff made in January 2000. It is said that the plaintiff later became an employee of the first defendant, instead of the second defendant, on the same terms but, since both are before the court and nothing has been made of any such substitution, it is unnecessary to say more about it. 12 Under the service agreement, the second defendant employed the plaintiff as the spiritual leader of the residents of its aged care facility and the plaintiff agreed to serve accordingly. A detailed specification of functions and duties was set out. The agreement dealt with remuneration, leave, other entitlements and a number of matters typically found in such agreements. Clause 4.1 stated that the plaintiff's remuneration package was to be as detailed in the first schedule. That schedule contained provisions as to salary, "other remuneration", superannuation contributions and provision of a vehicle, as well as the following terms: "(a) During the term of the Engagement an unfurnished house or unit within the grounds of the Home or in close proximity to the Home the standard of which is to be determined by the Board with all rates, taxes, electricity, telephone and gas charges in respect thereof to be paid by the Employer. (b) A contribution of $15,000 towards furnish the accommodation of the Minister provided under paragraph (a) above, such furnishings when purchased to be the property of the Employer and to remain the property of the Employer and to be returned to the Employer upon the termination of the Engagement." 13 It was pursuant to these provisions that the subject premises were made available to the plaintiff for occupation by him, in company, naturally enough, with his wife and children. It is true that the service agreement did not identify or specify the house at 118 High Street. But there was clearly some subsequent supplement by which the parties agreed that it was that house that was to be provided by the employer and accepted by the employee consistently with the service agreement. 14 The contention of the defendants is that there existed a "residential tenancy agreement" because the service agreement was the source of a contractual right of the defendant to occupy the subject premises, that right was granted by the second defendant "for value" (being the contractual promises on the plaintiff's part to perform services) and the right of occupation thus created by grant was "for the purpose of use as a residence". 15 The plaintiff's position is that there was no "residential tenancy agreement" and that the CTTT accordingly lacked jurisdiction. Mr Blank submitted that the status of the plaintiff was that of licensee rather than lessee or tenant. He referred to a number of cases concerning occupation of an employer's premises by an employee, including Metropolitan Fire Brigades Board v Tait [1949] VLR 231, Facchini v Bryson [1952] 1 TLR 1386, Torbett v Faulkner [1952] 2 TLR 659, Ford v Langford [1949] 1 All ER 483, E & W Hackett Ltd v Oliver [1953] SASR 19 and, in the High Court, H A Warner Pty Ltd v Williams (1945) 73 CLR 421. None of these cases is of assistance here. Each dealt with the difference between lease and licence and the question whether an employee to whom residential premises or accommodation were made available as a term of employment was a tenant. That question is irrelevant to the proper construction of the definition of "residential tenancy agreement" with which I am concerned. That definition makes no distinction between lease and licence. It is concerned only with a particular kind of "agreement", being one that, among other things, is the source of a grant of "a right of occupation". A lease which, by definition, confers a right to exclusive possession (Radaich v Smith (1959) 101 CLR 209) is clearly the source of a grant of such a right. But so too is a contract under which some right of occupation falling short of exclusive possession is conferred. A finding that a particular agreement is not a lease says nothing at all about its status as a "residential tenancy agreement". 16 I was referred to two decisions of the Residential Tribunal of New South Wales, Hyam v Yee [1997] NSWRT 194 and McLeod v McLeod [1999] NSWRT 32. The first case concerned two persons who moved into the home of a third so that one of them could act as her carer. It was held on the facts that there was no residential tenancy agreement, the arrangement being one under which an employer provided accommodation to enable an employee to provide services as employee. This conclusion was reached despite a clear finding that the services to be provided constituted "value". 17 The second case, McLeod v McLeod, concerned a family member who worked on a rural property and lived in premises on it. The findings of the tribunal relevant for present purposes were as follows: "Whilst it could be said that the respondent could only have carried out his duties as a stationhand by residing on the premises, it is clear that the provision of the premises constituted part of the 'package' that the respondent was paid by the applicant in return for his services. The 'wages' physically paid to him took into account the 'wages' paid by way of accommodation and services. It is therefore considered that because the element of 'value' was present under the arrangement, the agreement between the parties is a residential tenancy agreement rather than a mere licence to occupy." 18 Neither decision of the tribunal is of any great assistance except for the acknowledgment common to both that the provision of services in an employment situation can be "value" for the purposes of the definition of "residential tenancy agreement". 19 It seems to me that the correct approach in the present case is to have regard to the overall structure of the Act. Section 3(1) defines "residential tenancy agreement" in the way already noticed. The definition does not attempt to deal with anything beyond the existence of an agreement, the status of that agreement as the source of a grant of a right by one person to the other, the requirement that the grant be for value, the nature of the right as a right of occupation, the nature of the premises as residential premises and the existence, as the purpose of the occupation, of a purpose of use as a residence. If all these elements are found to exist, the parties' agreement is a "residential tenancy agreement" regardless of any other relationship that may exist between them. 20 The Act recognises, however, that certain premises and certain relationships are beyond its reach – or, more precisely, the Act puts certain premises and certain relationships beyond its reach. This is the effect of ss.6 and 7. Those provisions recognise that a "residential tenancy agreement" may exist between a person standing in a certain relationship to a property owner (for example, as boarder or lodger: s.6(1)(d)) or in relation to premises of a certain kind (such as a hotel or motel: s.6(2)(b)). The provisions then expressly exclude the particular cases from the Act's application. The scheme of the Act is therefore such that its provisions apply to every "residential tenancy agreement" unless a particular provision otherwise dictates, there being, in my opinion, no scope to read down or qualify the definition of "residential tenancy agreement" itself by reference to supposed implications drawn from some relationship between the parties that is additional to or wider than the relationship that causes a "residential tenancy agreement" to exist between them. The only reading down the Act contemplates is that expressly directed by its own provisions, including ss.6 and 7. 21 There is nothing in the Act indicating that an agreement otherwise falling within the definition of "residential tenancy agreement" is somehow put beyond the reach of the definition by the fact that the parties are employer and employee or that the right of occupation is incidental to employment or that the premises form part of or are associated with a place of employment. When the Act is understood in this way, it becomes immaterial that the subject premises are adjacent to the nursing home and that the plaintiff was housed there so that he might more effectively perform his functions as employee, including by ministering to residents of the nursing home on the Sabbath when religious duty permits him to travel by foot only. Those factors have no bearing on the question whether a "residential tenancy agreement" existed between the parties. 22 I am satisfied that, in the present case, there existed a "residential tenancy agreement" and that the CTTT properly assumed and exercised jurisdiction on that basis. Second ground – s.6(2) of the Residential Tenancies Act 23 The plaintiff says that the CTTT erred in law in finding that s.6(2)(d) did not operate to cause the Residential Tenancies Act not to apply to the subject premises. Section 6(2)(d) provides: "This Act does not apply to: … (d) any part of an educational institution, hospital or nursing home; …" 24 The CTTT's finding on this aspect was as follows: "The premises comprised a standard two storey residential house with 4 bedrooms. The house was built in 1999. The house was situated on its own block of land adjacent to the applicant's nursing home. There was gate in the fence but in my view that, of itself, was insufficient to make the premises part of the nursing home. The premises were not modified in any way to make them suitable for use by aged or infirm patients of the nursing home. I was satisfied the premises were not part of the applicant's nursing home for the purposes of section 6(2)(d) of the Act." 25 I would say two things about this finding: first, it seems to me to accord entirely with the evidence that was before the CTTT; and, second, even had my view of the correct factual conclusions differed from that of the CTTT, the position would still have been one in which the CTTT had before it evidence capable of supporting the finding so that there was no error of law. 26 I agree with Mr Lucarelli that s.67 of the Consumer, Trader and Tenancy Tribunal Act is relevantly indistinguishable from s.69(2) of the Local Courts (Civil Claims) Act 1970 which limits appeals from Local Courts to appeals on matters of law. It follows that, as Jordan CJ observed in Australian Gas Light Co v Valuer-General (1940) SR (NSW) 126: "(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or, (c) if it has misdirected itself in law." 27 The evidence about the subject property that was before the CTTT, as described above, is capable of supporting the finding that the subject premises are not "part of" the second defendant's nursing home. My conclusion on this aspect also disposes of the plaintiff's contentions under other paragraphs of s.6(2) that depend upon the subject premises being "part of" the adjoining property owned by the second defendant Third ground – clause 21 of the Regulation 28 Clause 21 of the Residential Tenancies (Residential Premises) Regulation is as follows: "A residential tenancy agreement is exempted from the operation of the Act if it relates to premises that are let to the tenant by the landlord for residential purposes but where the predominant use of the premises let is for the purposes of a trade, profession, business or agriculture." 29 The CTTT dealt with the plaintiff's clause 21 argument as follows: "The respondent, his wife and their two children lived at the premises. It was their only residence. The respondent had an office at the premises. He did paperwork relating to his employment at the office. He sometimes saw staff or patients from the nursing home at the office in the course of his employment with the applicant. The respondent did not have an office at the nursing home itself. I accepted that the respondent regularly used the office at the premises to carry out duties and activities directly related to his profession as spiritual leader of the nursing home. I was not satisfied however that on any reasonable view of the facts it could not be said that those duties and activities constituted the predominant use of the premises. Indeed I was satisfied to the contrary that the predominant use of the premises was for residential purposes. It followed that regulation 21 did not apply to the agreement." 30 These findings by the CTTT were clear and unambiguous. The evidence is amply capable of supporting the findings. There is therefore, in this area also, no decision with respect to a matter of law that is capable of being the subject of an appeal to this court consistently with s.67 of the Consumer, Trader and Tenancy Tribunal Act. Fourth ground – Industrial Relations Commission proceedings 31 Section 22(7) of the Consumer, Trader and Tenancy Tribunal Act is as follows: "If, at the time when an application is made to the Tribunal in accordance with this Act, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue." 32 By a summons dated 4 December 2002, the plaintiff, as applicant, instituted proceedings against the present defendants, as respondents, in the Industrial Relations Court. Claims for the following relief were made under s.106 of the Industrial Relations Act 1996: "(1) An order declaring void in whole or in part or varying in whole or in part, from its commencement the contract of employment or arrangement between the Applicant and the Second Respondent entered into on or about 19 January 2000 whereby the Applicant performed work as a Minister of religion – Rabbi, and as the spiritual and religious adviser to the clients of the First and Second Respondents. (2) An order that the contract between the Applicant and the Respondents whereby the Applicant performed work in the aged care industry was unfair, harsh and unconscionable and contrary to the public interest. (3) An order varying the contract of employment between the Applicant and the Respondent to include the following terms: (a) The Respondents shall not prohibit the Applicant from performing the religious duties of his position. (b) The Respondents shall not cause the Applicant to be answerable to a secular body on matters which are religious. (c) The Respondents shall not impose an arbitrary Rabbinical Code of Conduct upon the Applicant and make compliance with said Code of Conduct a condition precedent for on-going employment. (d) The Respondents shall not prevent the Applicant from applying for a position on the Board of the Second Respondent." 33 There follows a summary of matters of fact and law running to some four pages. Nowhere in that summary is there any reference to the plaintiff's occupation of the subject premises. Nor, as will be seen, is there any such reference in the prayers for relief. 34 The CTTT, when delivering reasons for its decision on 28 March 2003, referred to the pending proceedings in the Industrial Relations Commission. It did so in the following paragraphs: "In December 2002 the respondent lodged a summons with the Industrial Relations Commission of New South Wales seeking various orders including orders for the payment of compensation. The summons did not seek orders that the respondent be reinstated to his previous employment. … I was satisfied that orders of termination and possession should be made. The respondent's right to occupy the premises was contingent on his continuing employment with the applicant. The respondent's employment ceased on 1 October 2002 but he had continued to occupy the premises at no cost since that date. The respondent did not seek reinstatement in the proceedings in the Industrial Relations Commission and the applicant was not minded to re-employ him. If the applicant, unlawfully terminated the respondent's employment the respondent would have been able to seek compensation in the Industrial Relations Commission proceedings for any reasonable losses, including loss of the tenancy, suffered as a result." 35 The submission made on behalf of the plaintiff by Mr Blank is that because of the comprehensive power of the Industrial Relations Commission under s.106 or re-write contracts in any way required to achieve a just and fair result, it is open to the Commission to make a variation that confers on the plaintiff a right to continue to occupy the subject premises even in circumstances where the employment relationship has been terminated. 36 Mr Lucarelli emphasised that s.22(7) does not deprive the CTTT of jurisdiction generally where there are associated or related proceedings in a "court" – an expression which, in light of ss.22(1) and 22(2) extends to the Industrial Relations Commission. The most s.22(7) does is to deprive the CTTT of jurisdiction to hear and determine a particular "issue", being an "issue" arising under the application before the CTTT that, when that application was made to the CTTT, "was the subject of a dispute in proceedings pending before a court". 37 Mr Lucarelli submitted that "issue" here must be taken to refer to a justiciable issue, that is, an issue properly within the jurisdiction of both the CTTT and the particular court. Mr Lucarelli also submitted that there were no common issues (justiciable or otherwise) before the CTTT and the Commission. He pointed out that it was common ground before the CTTT that the employment contract had been terminated: the plaintiff's solicitor submitted to the CTTT that the termination was unlawful, therefore acknowledging the termination itself. Because the contractual right to occupy the subject premises was an incident of the employment contract, it is submitted that the question whether that right was still on foot was not before the CTTT. Nor, by definition, was any question whether the employment contract should be declared void or varied or whether it was unfair, harsh, unconscionable or contrary to the public interest. 38 I accept Mr Lucarelli's submissions. The purpose of s.22(7) is to avoid the risk of concurrent findings by the CTTT and a "court" (as defined by ss.22(1) and 22(2)) with respect to a particular "issue". For the section to operate, more must be shown that that the proceedings in the respective forums concern the same subject. It must be seen that disposition of each will require determination of the same question. In this case, the plaintiff points to common general subject matter but has not identified the particular "issue" that presented itself to the CTTT and was also thrown up by the Industrial Relations Commission proceedings. 39 The plaintiff's proceedings in the Commission are founded solely on s.106 of the Industrial Relations Act. That section is not concerned with re-establishing an employment contract: Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648. It s concern is exclusively with "the fairness of the terms of a contract of employment in its various respects" and, if unfairness is found, with the grant of remedial relief. 40 The plaintiff has not shown that any "issue" arising in the CTTT proceedings was already "the subject of" the parties' existing dispute in the Commission. The plaintiff has therefore not made out his case under this heading. Fifth ground – referral to Supreme Court 41 The plaintiff's summons says that the CTTT did not have jurisdiction because it "should have referred the matter to the Supreme Court pursuant to s.66 of the Act. 42 Section 66(2) of the Consumer, Trader and Tenancy Tribunal Act says that if a question with respect to a matter of law arises in any proceedings, the CTTT "may decide the question or may refer it to the Supreme Court for decision". The section confers a discretion. No submission was made as to any reason why the CTTT should be considered to have come under a duty to refer anything to this court or why its decision to determine questions of law itself was somehow wrong. Nor, in my opinion, is there any basis on which such a submission could be advanced. 43 No error of law was committed by the CTTT in hearing and determining the proceedings before it without referring any matter of law to the Supreme Court. Conclusion 44 The plaintiff has not established any right to the relief he seeks. The summons is dismissed. ********** Last Modified: 05/14/2003 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.