New South Wales Supreme Court CITATION : El-Saeidy v New South Wales Land and Housing Corporation [2009] NSWSC 1059 HEARING DATE(S) : 14 September 2009, 16 September 2009, 18 September 2009 JURISDICTION : Common Law JUDGMENT OF : Rothman J EX TEMPORE JUDGMENT DATE : 18 September 2009 (i) Judgment for the defendant; DECISION : (ii) Plaintiff to pay the defendant's costs of and incidental to these proceedings, as agreed or assessed; (iii) Proceedings be dismissed. CATCHWORDS : ADMINISTRATIVE LAW – Consumer, Trader & Tenancy Tribunal – prerogative relief sought – privative clause – current application against interlocutory order – overlapping factual issues in civil and criminal proceedings – reliance on right to silence and right/privilege against self-incrimination – application premature and caught by ouster provision – summons dismissed Civil Procedure Act 2005 Consumer, Trader and Tenancy Tribunal Act 2001 LEGISLATION CITED : Residential Tenancies Act 1987 Supreme Court Act 1970 The Constitution CATEGORY : Principal judgment Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Healthcare Complaints Commission v Wingate (2007) NSWCA 326 House v The King [1936] HCA 40; (1936) 55 CLR 499 CASES CITED : Maxwell v Keun (1928) 1 KB 645 Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 Sullivan v Department of Transport (1978) 20 ALR 323 Fawzi El-Saeidy (Plaintiff) PARTIES : New South Wales Land and Housing Corporation (First Defendant) Consumer, Trader & Tenancy Tribunal (Second Defendant) FILE NUMBER(S) : SC 14426/2009 D Hawkins (Plaintiff) COUNSEL : J Beck (First Defendant) Submitting appearance (Second Defendant) Slattery Thompson Solicitors (Plaintiff) SOLICITORS : New South Wales Land and Housing Corporation (First Defendant) Crown Solicitor's Office (Second Defendant) LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW LOWER COURT FILE NUMBER(S) : SH 09/17689 LOWER COURT JUDICIAL OFFICER : B Howe LOWER COURT DATE OF DECISION : 31 July 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ROTHMAN J 18 SEPTEMBER 2009 14426/2009 El-Saeidy v New South Wales Land and Housing Corporation EX TEMPORE JUDGMENT 1 HIS HONOUR: This matter concerns an attempt by the Housing Corporation to evict a tenant. As a consequence of that attempt there are proceedings before the Consumer, Trader & Tenancy Tribunal, ("the Tribunal") relating to that eviction notice, and the plaintiff, Mr El-Saeidy, seeks to halt those proceedings in order to preserve his right to silence and/or privilege against self-incrimination. 2 The Housing Corporation has applied to the Tribunal for an order terminating the tenancy agreement between it and the plaintiff and such an order may be made by the Tribunal if, pursuant to s 68 of the Residential Tenancies Act 1987, it becomes satisfied that the tenant has intentionally caused or permitted serious damage to the premises, or injury to the landlord or to any person in occupation of adjoining or adjacent premises. 3 The allegation of the Housing Corporation is that the plaintiff caused injury to a person in occupation of adjacent premises. 4 A question arises as to whether the person who has been caused the injury must be in occupation at the time of the order. That issue has not been raised in these proceedings and no doubt may be a matter that will exercise the mind of the Tribunal, if and when the Tribunal deals with the matter. 5 The fundamental issue raised by the plaintiff is an issue relating to the fact that at the same time as the proceedings before the Tribunal are to be heard, there is pending criminal proceedings in the Local Court in relation to the same alleged conduct. The Local Court proceedings are to be heard on 7 December 2009, which, as the plaintiff correctly points out, is not very distant and, in the circumstances that they outline, they submit it would not prejudice the Housing Corporation to adjourn the proceedings to a date after the criminal proceedings have been heard and determined. 6 There is much force in the issue of discretion with which Ms Hawkins, who appears for the plaintiff, has addressed the Court. The delay of two and a half months, or thereabouts, does not seem to be particularly prejudicial to the Housing Corporation, particularly, in the circumstances, where the person allegedly assaulted has, in fact, been moved to other premises. 7 Nevertheless, no agreement or compromise has been reached (despite the urging of the Tribunal) and the proceedings are brought initially by a summons, and today by Amended Summons, seeking a number of particular orders. 8 The relief claimed is long and I will not repeat it. It combines the orders that are sought and what seem to be either grounds or argument in support thereof. 9 The first prayer is an application for an order against the Tribunal, seemingly declaratory in nature, that the Tribunal erred in law purportedly under s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 ("the Act"). I will return to the provision of s 65 of the Act. 10 The second prayer sought is a declaration, purportedly pursuant to the terms of s 65(2)(a) of the Act, that the Tribunal member gave an "erroneous ruling" as to his jurisdiction, that being done on 31 July 2009. The third order is a further declaration that the Tribunal, on 31 July 2009, exceeded its jurisdiction when it failed to ask itself the correct jurisdictional question. The fourth is a further declaration, this time purportedly pursuant to s 65(3)(e) of the Act, that there has been a denial of procedural fairness. 11 The fifth prayer is a further declaration that there has been a denial of natural justice, once more purportedly pursuant to s 65(3)(b) of the Act. 12 The sixth prayer is an application for an order in the nature of certiorari, purportedly sought under the provision of s 65(1)(a) of the Act, and also under s 69 of the Supreme Court Act 1970. 13 The seventh prayer seeks an order said to be in the nature of prohibition relating to the same decision. 14 The eighth prayer seeks an order of a kind staying the Tribunal from hearing and determining the proceedings that are listed before it on 24 September 2009. It is unnecessary for me to go into (and, frankly, I am unaware of) the facts surrounding the alleged assault. It is sufficient for present purposes to deal with some procedural history. 15 The alleged assault is said to have occurred on or about 26 February 2009 at 6.30am. As a consequence of reports to the police, the plaintiff was charged with assault occasioning grievous bodily harm. 16 The plaintiff is currently on conditional bail, and the hearing of the charge is scheduled for 7 December 2009. On 14 April 2009, the New South Wales Land and Housing Corporation, the defendant in these proceedings, lodged the application to which reference has already been made, relating to the eviction of the plaintiff and seeking an order for possession of the premises pursuant to the Residential Tenancies Act. Both parties are represented before the Tribunal. 17 On 3 July 2009, a Tribunal direction hearing was adjourned by consent, because of issues relating to representation of the plaintiff in those proceedings. 18 On 31 July 2009, the most relevant hearing date, the Tribunal conducted a further directions hearing. At that hearing, the plaintiff in these proceedings sought to have the matter "adjourned", as it has been described. In truth the application was for the vacation of the dates, otherwise listed for hearing on 24 September 2009. 19 The material to which I have been taken does not make clear whether, as at 31 July 2009, the matter had already been listed for that day or was to be listed for that date. 20 On any analysis, what was applied for was not an adjournment, but rather a vacation of dates already set or an attempt to ensure that the Tribunal did not set the matter down for hearing prior to 7 December 2009. There seems to be no relevant distinction between the legal or jurisdictional issues that may arise from the difference. 21 In the proceedings of 31 July 2009, that which was submitted to the Tribunal, as I understand it, from the parties, was an application based upon whether it was inappropriate and unfair that the proceedings before the Tribunal continued in circumstances where the criminal proceedings had yet to be heard. 22 This unfairness or inappropriateness arose from the practical problem associated with the plaintiff being entitled, in the criminal proceedings, to a privilege against self-incrimination and a right to silence. 23 The two may be two sides of the one coin, but, included in that, as it was put to this Court, is the right of a defendant in criminal proceedings not to be required to plead, or to disclose, the case that it wishes to put in the criminal proceedings. The practical effect of a hearing before the Tribunal is that the factual issues before the criminal court will be required to be aired and determined prior to the criminal proceedings. 24 When the matter first came before the Court, as presently constituted, earlier this week, the matter was sought to be agitated ex parte. The Court declined to deal with the matter on an ex parte basis and brought the matter back, with short notice to the Housing Corporation. That was two days ago. The matter was adjourned two days ago, after the Court raised certain issues, relating to the cause of action on which the plaintiff relied. That is the reason that, today, the plaintiff has sought to file and has filed, an amended summons. 25 The general principle applying to a decision of this kind, in an inferior tribunal - and I do not use that term pejoratively - is that such a decision (to list a matter for hearing, to vacate hearing dates or to adjourn the matter) is a matter wholly within the discretion of the court or tribunal. An appeal, and a fortiori prerogative relief, against such a decision is an appeal against a discretionary decision and will be subject to interference by a superior court only on one of the well-known bases dealing with discretionary judgments: House v The King [1936] HCA 40; (1936) 55 CLR 499. 26 For a Court to interfere with an exercise of discretion, there must be a basis other than that it would take a different course. There must be error and it must be identifiable or manifest. The error must be based upon wrong principle, mistake of fact or law, or failure to take into account all and only relevant matters. That, of course, is the principle on appeal. It is also, to some degree, although more strictly, the issues that can be addressed on prerogative writ applications. 27 In these proceedings, the plaintiff does not put its case on the basis of an exercise of discretion. It seeks prerogative relief or declaratory orders to that effect, on a basis of denial of natural justice. 28 There are some great difficulties with the application, as a matter of the exercise of the jurisdiction of this Court and whether it should entertain such an application at this stage. 29 As was said by his Honour Justice Deane, as a member of the Full Court of the Federal Court of Australia, in Sullivan v Department of Transport (1978) 20 ALR 323 at 343: "A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment to enable him to procure Dr Evans' attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled." 30 This passage deals with the right of a party to be given a proper opportunity to prepare and to present a case before a tribunal, but also makes clear that no tribunal is given the impossible task of ensuring a party takes best advantage of the opportunity to which they are entitled. 31 In the circumstances of a refusal of an adjournment, where a party is denied an adequate opportunity to prepare or to present a case to the tribunal, there may well be a denial of natural justice. Indeed, it would seem, prima facie, there would be a denial of natural justice, and very different considerations arise as to whether or not a superior court would interfere, either by way of prerogative writ or by way of appeal. 32 The High Court has examined the issue of the interference with an adjournment application, as indeed has the Court of Appeal in England. The High Court case to which reference ought be made is Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625. The Court of Appeal judgment in the United Kingdom to which reference is made is Maxwell v Keun (1928) 1 KB 645. The High Court reconsidered those issues in its judgment in Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 and most recently dealt with the matter in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. 33 To the extent that the plaintiff is denied the capacity to present properly his case before the Tribunal, there may be very good argument that, were the Tribunal to proceed to determine the issue, the plaintiff will have been denied natural justice. 34 Nice questions arise as to whether the choice of a party not to give evidence, even one occasioned by the fundamental principle associated with either the right to silence or the right and privilege against self-incrimination, is a denial of the opportunity to present a case or simply an, albeit appropriate, forensic tactical decision not to give evidence in the civil proceedings. It is unnecessary for me to determine that issue finally or at all. There are, in my view, more fundamental issues. 35 Reference has been made to a number of cases involving the overlapping of civil and criminal proceedings. Again, it is unnecessary for me to deal at any length with those judgments. It is sufficient for me to remark and, in so doing, refer in particular to the judgment of his Honour Justice Basten in Healthcare Complaints Commission v Wingate (2007) NSWCA 326 at [45] in which his Honour, in delivering the reasons for judgment for the Court of Appeal, noted the importance of the right, rather than the privilege, against self-incrimination and the importance of ensuring that obligations that otherwise may arise do not impinge upon that right. Again, it is unnecessary for me to deal with the issue to finality. 36 The difficulty, it seems, that the plaintiff faces is a difficulty created by the privative provision contained in s 65 of the Act. Section 65 of the Act is a fairly strict limitation on the grant of a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or a declaratory judgment or an injunction, in respect of any matter that has been heard and determined, or is to be heard and determined by the Tribunal. On its face, s 65(1) of the Act would prevent the proceedings that have been taken by the plaintiff. 37 Notwithstanding the general words in s 65(1) of the Act, there are two exceptions. By s 65(2) of the Act, a court - including the Supreme Court, given that it is or seems to be the only court that has original jurisdiction for some of the orders that I have mentioned - is not prevented from granting prohibition, mandamus or declaratory judgment, if the matter be one in respect of which: "… the jurisdiction of the Tribunal to determine the matter was disputed if the ground on which the relief or remedy is sought is that: (a) the Tribunal gave an erroneous ruling as to its jurisdiction, or (b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed." 38 The difficulty that the plaintiff faces in relation to s 65(2) of the Act is that the application that was made to the Tribunal was an application that did not raise this issue, and was not a matter in respect of which the plaintiff disputed the jurisdiction of the Tribunal to determine the matter. I do not by those last comments suggest that it is, or is not arguable, that the Tribunal did not have jurisdiction to fix the matter for hearing. I am simply commenting that, whether or not it had jurisdiction to fix the matter for hearing, the want of jurisdiction was not raised, and it was not suggested that this was a matter the Tribunal was unable to determine. As a consequence, whatever ruling may have been made, and whether or not it was erroneous, it is not subject to the exception provided by s 65(2) of the Act. 39 The second exception, to the limitation in s 65(1) of the Act, is that contained in s 65(3). That provision exempts from the limitation on orders of the kind to which I have made reference in circumstances where it is a matter in respect of which the Tribunal: "… has made an order if 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 had been denied procedural fairness." 40 What is before the Court is essentially an application for prerogative writ against a determination of the Tribunal to list the matter for hearing. When the matter comes on for hearing, there is no restriction or prohibition on the legal practitioners appearing for the plaintiff making application for an adjournment of the hearing or making application that the matter not be finally determined before 7 December. These are interlocutory matters. They can be re-agitated. The matter has not yet been determined and the applicant has not yet been denied procedural fairness. 41 Whatever be the merits of the argument suggested on behalf of the plaintiff, it may well be that if the Tribunal were to proceed to determine the proceedings to finality in circumstances where the Tribunal did not have jurisdiction to determine the matter, then application would lie to this Court. But this application, at this time, is premature. There has been, as yet, no denial of natural justice. There may be reasons why the plaintiff would have a reasonable fear that natural justice will be denied. I make no comment on that one way or the other. 42 It seems to me that the issues associated with this application are answered by s 65 of the Act and the proceedings are precluded from being taken at this juncture. 43 I should, for the sake of completeness, point out two other aspects. There is an appeal against the decision of the Tribunal with respect to a matter of law on which the Court of Appeal has recently spoken, indeed yesterday, and that appeal goes to the District Court. Secondly, the parties before the Court accept that the jurisdiction exercised in this controversy is not the exercise of judicial power and no issue can arise as to any arguable conflict between the privative provision and s 73 of the Constitution. 44 For the foregoing reasons, the Court makes the following orders: (i) Judgment for the defendant; (ii) Proceedings be dismissed; (iii) I will now hear the parties on costs. 45 The question of whether to order costs is a matter within the discretion of the Court pursuant to the provisions of the Civil Procedure Act 2005. That discretion is required to be exercised judicially. While s 98 of the Civil Procedure Act makes clear that costs are at the discretion of the Court, there are a number of judgments relating to the proper application of that discretion which, even in relation to criminal proceedings or quasi-criminal proceedings, if there be a power to order costs, it has been made clear that the general rule is that costs should follow the event. While it seems to me that any costs order may be unable to be enforced, nothing has been put, which would warrant a departure from the general rule, and I order that the plaintiff pay the defendant's costs of and incidental to these proceedings as agreed or assessed. 46 Having heard the parties on costs, the Court makes the following further orders: (iv) Plaintiff to pay the defendant's costs of and incidental to these proceedings, as agreed or assessed; (v) Otherwise the matter is dismissed. ********** 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.