Douglas v NSW Department of Housing [2008] NSWSC 529

New South Wales Supreme Court

CITATION : Douglas v NSW Department of Housing [2008] NSWSC 529

HEARING DATE(S) : 29 May 2008

JUDGMENT DATE : 4 June 2008

JUDGMENT OF : Malpass AsJ

DECISION : Proceedings dismissed; plaintiff to pay the costs of the proceedings.

CATCHWORDS : ADMINSTRATIVE LAW - review or appeal from Tribunal - no basis shown for relief

Civil Procedure Act 2005 LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001 Residential Tenancies Act 1987

CATEGORY : Principal judgment

Wayne Douglas (Plaintiff) PARTIES : NSW Department of Housing (First defendant) Consumer, Trader and Tenancy Tribunal (Second defendant)

FILE NUMBER(S) : SC 12595/07

COUNSEL : A Jungwirth (First defendant)

Plaintiff in person SOLICITORS : Tenancies Legal Services Branch, NSW Department of Housing (First defendant) I V Knight (Second defendant)

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S) : RT 06/48107

LOWER COURT JUDICIAL OFFICER : C Murphy

LOWER COURT DATE OF DECISION : 1 February 2007

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

Wednesday 4 June 2008

12595/07 Wayne Douglas v NSW Department of Housing & Anor

JUDGMENT 1 HIS HONOUR: The plaintiff and the first defendant were parties to a residential tenancy agreement ("the agreement") in respect of premises at 9 Melliodora Way, Macquarie Fields ("the premises"). The agreement commenced on 1 August 2006. Rent was payable at a subsidised rate of $71.35 per week. The first defendant purported to terminate the agreement by notice of termination founded on breach (failure to pay rent). 2 The first defendant brought proceedings in the Consumer, Trader and Tenancy Tribunal ("the Tribunal"). The proceedings were heard on 1 February 2007. The plaintiff appeared in person. The first defendant was represented by Mr Tomkins. Orders were made for termination of the agreement and possession of the premises. 3 Proceedings were brought in this Court by Summons (number 10973 of 2007). An ex-parte application was made for a stay. Thereafter the proceedings came before the Court on seven occasions. The plaintiff did not appear on any of them. As a consequence, the proceedings were dismissed and the stay was lifted. This was done in May 2007. 4 On 24 May 2007, the plaintiff brought these proceedings. The plaintiff did not appear at 9.00 am on the return date of the summons. The proceedings were dismissed by the Registrar. Later in the day, the orders were vacated. The proceedings have since been before the court on 12 July 2007, 18 September 2007 (the first special fixture for hearing), 9 November 2007, 10 April 2008 and 28 May 2008. On a number of occasions the plaintiff has not appeared. 5 A further special fixture before Harrison AsJ had been allocated for 10 April 2008. Although the plaintiff did not appear on that occasion, an adjournment was granted by her Honour. 6 A further special fixture was allocated. It was fixed for 29 May 2008. The hearing proceeded on that day. The plaintiff appeared in person together with his carer (Mr Skeates). Mr Jungwirth of counsel appeared for the first defendant. 7 The present summons is in similar terms to its dismissed predecessor. The relief claimed is as follows: "1. To receive copies of the housing file up to date to prove housing [sic] knew of multiple medical conditions on file. 2. Doctors letters of serious medical conditions. 3. Until [sic] the matter is fairly heard. 4. To gain transcript and audiotapes of 'Breach of Oaths'." 8 What is sought is far from clear. The summons has not been supported by evidence that discloses any basis for relief. The relief that can be granted by this Court is restricted to that provided by ss 65 and 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 ("the Act"). Section 65 enables judicial review where the Tribunal had no jurisdiction or a party has been denied procedural fairness. Section 67 provides an appeal where the Tribunal decides a question with respect to a matter of law. 9 These proceedings are confronted by a number of insurmountable problems. Firstly, a similar set of proceedings has been dismissed, there has been no appeal from that decision and no other application has been made to have it set aside. Leaving that matter aside, the proceedings have been brought well out of time and the proceedings are only maintainable if an extension of time is granted. There is no material placed before the Court which satisfactorily explains past default and delay. Leaving those matters aside, there has been failure to demonstrate that what was done by the Tribunal should be disturbed. In my view, there was no denial of procedural fairness and no decision with respect to a matter of law. In the circumstances, the proceedings can be seen as being an abuse of process. 10 The only material placed before the court that has relevance to the hearing before the Tribunal is the transcript. It was relied on by the first defendant. The Tribunal member delivered extempore reasons which are recorded in the transcript. There are no written reasons. 11 The documentary evidence that was before the Tribunal has not been placed before this Court. However, it appears that it may have been largely restricted to documents tendered by the first defendant (including the termination notice and rent ledger). 12 The transcript records that the Tribunal member commenced with an explanation to the parties as to how the matter would proceed. He dealt with a question of conciliation. It became apparent that conciliation was a futile exercise. He took evidence from the plaintiff as well as from Messrs Tomkins and Skeates and made his findings. In so doing, he addressed the matters which are prescribed by s 64 of the Residential Tenancies Act 1987 ("the RTA"). It may be added, contrary to what was said by the plaintiff, that such section does not refer to "special circumstances". 13 He made findings as to jurisdiction. He made findings concerning the arrears of rent. No rent was paid for the period between 7 August 2006 and 21 December 2006. At the time of the hearing, only three payments of rent had been made during the term of the agreement (including a sum of $150 which was paid at the Tribunal on the hearing day). He found that there were arrears in the sum of $1,202.01 which represented a default in respect of 132 days (which was well in excess of the requirement of breach of 14 days). These findings do not appear to be in dispute. He made a finding that the breach was serious. He addressed the other requirements of s 64(2) of the RTA. 14 The evidence given by the plaintiff included what was said by him as to his medical condition. It appears that his oral evidence had little support from documentary material. 15 There was no medical report to support what was said by the plaintiff. In his oral evidence, the plaintiff referred to what he alleged to be on the housing file. At p 28 the transcript records the following: "Mr Douglas: It's all on my medical – on me housing file. He should have it. Member: … to support this? What you say about these troubles?