Lyel v NSW Civil & Administrative Tribunal [2014] NSWSC 1412

Supreme Court New South Wales

Medium Neutral Citation: Lyel v NSW Civil & Administrative Tribunal [2014] NSWSC 1412 Hearing dates: 14 October 2014 Decision date: 14 October 2014 Jurisdiction: Common Law Before: Davies J Decision: Summons filed 22 September 2014 dismissed with costs. Catchwords: LANDLORD AND TENANT - NSW Civil and Administrative Tribunal terminates residential tenancy agreement - application to stay writ of execution in Supreme Court - no substantive relief sought - no appeal taken to Appeal Panel of Tribunal - plaintiff fails to appear - summons dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Roskott v Commonwealth Bank of Australia [2014] NSWCA 341 Category: Interlocutory applications Parties: Louise Lyel (Plaintiff) NCAT - NSW Civil & Administrative Tribunal (First Defendant) Craig Burton (Second Defendant) Representation: Counsel: No appearance (Plaintiff) No Appearance (First Defendant) C Burton (Second Defendant) Solicitors: No appearance (Plaintiff) No appearance (First Defendant) In person (Second Defendant) File Number(s): 2014/279026

Judgment 1The Plaintiff was given leave on 22 September to file a summons in which she sought a stay of eviction from her flat. The eviction was then set for 23 September 2014. The matter was before Schmidt J on an ex parte basis. Her Honour was provided with what was said to be an affidavit by the Plaintiff, although the document itself had not been sworn. It is apparent from the material contained in that document that the matter of the eviction arose out of a landlord and tenant dispute. 2On 11 September 2014 the NSW Civil and Administrative Tribunal made orders terminating the residential tenancy agreement the Plaintiff had with the Second Defendant. The scheduled eviction arose from the making of that order. 3The summons was returnable before the Duty Judge on 7 October. The Plaintiff did not appear but there had been forwarded to the Court by a person who said that she was the Plaintiff's sister an email saying that the Plaintiff had been an inpatient in a hospital over the previous weekend. The email requested an adjournment of 10 days to two weeks. No medical certificate was provided. 4The Duty Judge, Hidden J, stood over the matter to 10 October and continued the stay until that time. 5At the request of Hidden J's associate a document was emailed on 9 October which was apparently a medical certificate. It said that the Plaintiff had been an in-patient from 3 to 6 October and that she would be unfit for usual activities to 13 October. 6When the matter was before Hidden J on 10 October there was no appearance by the Plaintiff. The matter was stood over to today, on the basis of the medical certificate, and the stay was continued up to 11.00 am today. 7There was no appearance by the Plaintiff when the matter was called at 10 am this morning and again at 11.20 am. Yesterday, Hidden J's associate received a further email from the Plaintiff's sister which said: Louise was re-admitted to hospital on the weekend (attach certificate) so we would like to request that the hearing is moved just a couple of days to Friday morning. Is this possible? No certificate was attached. My associate telephoned the Plaintiff's sister to inform her that no medical certificate was attached, and that the matter would be dealt with today. She said that someone should be present for the Plaintiff. 8It is not clear in any event that this court has jurisdiction. Section 119 of the Residential Tenancies Act 2010 (NSW) prevents a landlord from commencing proceedings in this Court to recover possession of residential premises. That is no doubt why the landlord in the present case took the proceedings in the Civil and Administrative Tribunal, and orders were made in that tribunal. 9The Plaintiff's summons does not identify what substantive relief in this court she seeks. She is not entitled to appeal to this Court from the decision of the Tribunal. Her right to appeal lies to the appeal panel of the tribunal under s 80. She may only appeal to this Court from a decision of the Appeal Panel of the Tribunal and only where the Tribunal was constituted by one or more senior judicial officers (s 82). No such decision has been given. 10Even if it is assumed that the Plaintiff was somehow seeking prerogative relief from this Court, as a matter of discretion such prerogative relief would be likely refused where she has not followed the appeal process set out in the Civil and Administrative Tribunal Act 2013 (NSW) Part 6. 11In addition, in Roskott v Commonwealth Bank of Australia [2014] NSWCA 341 the Court of Appeal said at [14]: "All parties, including, but not limited to, litigants in person, should understand that proceedings listed in this Court will not be vacated on the basis of an email communication to the Registrar at short notice. Where the application before the Court does not appear, on the basis of the documentary material filed, to have reasonable prospects of success, it is almost inevitable that the proceedings will be disposed of adversely to the applicant's interests." 12In my opinion for the reasons I have given the claim by the Plaintiff does not have reasonable prospects of success. There is a strong likelihood this Court has no jurisdiction to make the one order that she seeks. Any application for a stay should have been made to the Tribunal. 13In those circumstances the summons filed 22 September 2014 is dismissed with costs.