Local Court New South Wales Medium Neutral Citation: Murray, Jodie v Gibson, Agnes Nina [2014] NSWLC 25 Hearing dates: 17 July 2014 Decision date: 17 November 2014 Jurisdiction: Civil Before: LCM Favretto Decision: Application notice is not a nullity. Local Court has jurisdiction. Catchwords: APPLICATION PROCEEDINGS - recovery of premises under the Landlord and Tenant Act 1899 and the Landlord and Tenant Act 1948 - jurisdiction - service of the application notice - waiver of service requirements upon appearance in proceedings or failure to object Legislation Cited: Landlord and Tenant (Amendment) Act 1948 (NSW), Parts 2 and 3, s 59 Landlord and Tenant Act 1899 (NSW), ss 23, 33(2) Local Court Act 2007 (NSW), Parts 3, 4, ss 9(a), 30(1), 44, 45 Local Court Rules 2009 (NSW), Part 4, r 5.6 Residential Tenancies Act 2010 (NSW), s 7(a) Uniform Civil Procedure Rules 2005, r 10.20(5) Cases Cited: Ex parte Godfrey (1898) 14 W. N. (NSW) 222 Marshall v Burman [1960] VR 162 Murray v Gibson (Tenancy) [2013] NSWCTTT 470 Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28; 194 CLR 355 at [92] - [93] R v Janceski [2005] NSWCCA 281; 64 NSWLR 10 Category: Procedural and other rulings Parties: Jodie Murray (Applicant) Agnes Nina Gibson (Respondent) Representation: Ramensky Lawyers (Solicitor for the applicant) P Lane (Counsel for the respondent) P Baker (Solicitor for the respondent) File Number(s): 2014/00085825 Publication restriction: Nil JUDGMENT Background 1. These are application proceedings which on their face are brought under s 45 of the Local Court Act 2007 (NSW) and Part 4 of the Local Court Rules 2009 (NSW) for the recovery of possession of premises at 3/32 High Street, North Sydney. The application notice seeks recovery of the premises under both the Landlord and Tenant Act 1899 (NSW) ("the 1899 Act") and the Landlord and Tenant (Amendment) Act 1948 (NSW) ("the 1948 Act"). 2. The proceedings for recovery were taken in the Local Court after D Sheehan, member of the Consumer, Trader & Tenancy Tribunal ("CTTT"), sitting in the Tenancy Division of the CTTT, held that as the premises were not excluded from the provisions of the 1948 Act he had no jurisdiction under s 7(a) of the Residential Tenancies Act 2010 (NSW): Murray v Gibson (Tenancy) [2013] NSWCTTT 470 (19 September 2013). 3. The applicant, Jodie Murray, purchased the premises on 9 January 2013. It appears that the respondent, Agnes Gibson, is the tenant of the premises by virtue of paying the rent but is not the lessee under the residential lease of 31 March 1983 for Flat 2 (subsequently renumbered "3" following renovations) of 32 High Street, North Sydney, between the lessor, J G Earl, and lessee, Shakuntala Postelnik. 4. The threshold issue taken by the respondent on the hearing day of 17 July 2014 is that the application notice was not validly served as required by the stringent service requirements prescribed under s 25 of the 1899 Act and therefore the proceedings are a nullity, whereby jurisdiction has not been conferred on the Court. 5. The application notice was filed on 18 March 2014 and was returnable on 15 April 2014. The application notice was purportedly served on 20 March 2013 by "...placing it under the Defendant's door": Affidavit of Mirjana Echeverria dated 14 April 2014 (Ex 1). Mirjana Echeverria gave evidence of the manner of service on 17 July 2014. She attended the premises and after knocking on the door called out loudly twice for Ms Gibson. When she did not receive a response, she put the application notice under the door. In cross-examination she said that to the best of her recollection it was the first time she had attended for service of the application notice and did not come back another time to serve same as she considered she had left it on the land. 6. On 15 April 2014 both parties appeared legally represented and the application was set down for hearing on 17 July 2014. The Court also made orders by consent for the filing of evidence, a statement of agreed facts and an agreed list of exhibits. Both parties have since complied with at least the filing of evidence in Affidavit form. 7. On 30 May 2014 the applicant's solicitor appeared before the registrar on the return of three subpoenas issued on behalf of the applicant. The applicant's solicitor also mentioned the appearance of the respondent's solicitor as he was not available when the matter was called. 8. Otherwise, the applicant's solicitor, Gisella Ramensky of Ramensky Lawyers, tendered a significant amount of correspondence between the parties' legal representatives concerning certain procedural and other matters following the filing of the application notice: Affidavit of G Ramensky dated 26 August 2014 (Ex 2) . 9. Ms Ramensky deposes that it was only minutes before entering the court on 17 July 2014, being the date fixed for hearing, that she was made aware of the service issue. The service requirements of the 1899 Act 1. Section 25 of the 1899 Act provides: "25 Mode of service of summons (1) Such summons shall be served three clear days before the day appointed for the hearing of the matter of the information upon which the same issues, and such summons shall be served by delivering the same or a duplicate thereof personally to the person summoned thereby, or in case notwithstanding all due diligence in that behalf such person cannot be personally served as aforesaid, then by leaving the same with the spouse or servant of such person or some other competent person, either on the land in respect of which such summons has been issued or at the place of abode of the person so summoned, and in all such cases as aforesaid the person serving such summons shall explain the nature and effect thereof to the person to whom the same or the duplicate thereof is delivered, unless such last-mentioned person shall prevent such explanation from being made. (2) If notwithstanding all due diligence in that behalf it is from any cause impracticable to serve such summons in any of the ways aforesaid, then the posting of the same or a duplicate thereof on some conspicuous part of the land in respect of which the same has been issued shall be deemed to be good service of such summons. ....." 1. The Court accepts the respondent's submission that the manner of service by Mirjana Echeverria is not personal service and that what was done could not amount to "all due diligence" in accordance with s 25(2) of the 1899 Act. Simply attending only once, not making any further enquiries, say of the neighbours or her solicitor in the CTTT proceedings, is perfunctory. The parties' contentions 1. The respondent submits in the written submissions filed on her behalf that compliance with s 25 of the 1899 Act in serving the "summons" (ie. the application notice) is a mandatory preliminary step required to confer jurisdiction to ground the power in the Local Court to make an order for possession and that a failure to comply will result in invalidity, per McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28; 194 CLR 355 at [92] - [93]. 2. The respondent further submits (leaving aside the service issue) that the jurisdiction of the Court to hear this matter falls under s 44 and Part 4 of the Local Court Act 2007 as s 33(2) of the 1899 Act envisages that the proceedings may be commenced in "…any other appropriate form". However, although rule 5.6 of the Local Court Rules 2009 provides for personal service, that is a general provision which cannot modify the operation of the specific provision prescribed under s 25 of the 1899 Act which confers the jurisdiction. That is, the application notice must be served with strict compliance with s 25 of the 1899 Act. 3. The applicant submits that as the majority of the relief sought falls under the 1948 Act, s 59 of that Act governs the service requirements which can be done either in person or by post. In that regard, the applicant submits that leaving the application notice under the door is equivalent or better than sending it by pre-paid post. Additionally, the applicant relies upon the emailing of the application notice on 21 March 2014 to the respondent's solicitor who had represented the respondent in earlier proceedings between the parties. 4. As for service under s 25 of the 1899 Act, the applicant submits that Ms Echeverria had gone to the premises two or three times earlier without success for personal service and therefore it was not possible to personally explain the "summons" (i.e. the application notice). The applicant also disputes the jurisdictional issue as proof of the summons is only necessary in case the tenant or occupier does not appear on the appointed date and where a respondent appears, either in person or by a legal representative, to answer the "summons" (i.e. the application notice) then strict compliance is not necessary. 5. The applicant also submits that as these proceedings are governed by the Uniform Civil Procedure Rules 2005 ("the UCPR") then service was effected pursuant to r 10.20(5) which provides that "...a defendant who enters an appearance is taken to have been personally served with the relevant originating process on the date on which appearance was entered." Consideration 1. The applicant's submission that the UCPR governs these proceedings cannot be accepted. Section 9(a) of the Local Court Act 2007 specifically confers a limited civil jurisdiction on the Court under Part 3 of that Act. Section 30(1) of Part 3 of that Act provides: "30 Conferral of jurisdiction "(1) Subject to this Part, the Court sitting in its General Division has jurisdiction to hear and determine: (a) proceedings on any money claim, so long as the amount claimed, whether on a balance of account or after an admitted set-off or otherwise, does not exceed the jurisdictional limit of the Court when sitting in that Division, and (b) proceedings to recover detained goods, or to recover the assessed value of detained goods, so long as the value of the goods, together with the amount of any consequential damages claimed for their detention, does not exceed the jurisdictional limit of the Court when sitting in that Division, and (b1) proceedings involving company title home unit disputes under section 34A, and (c) proceedings that, pursuant to any other Act, are required to be dealt with by the Court sitting in that Division." 1. As the application notice does not seek relief under s 30(1)(a) - (b1) of the Local Court Act 2007 and neither the 1899 Act or the 1948 Act require proceedings for the recovery of premises to be heard in the General Division under s 30(1)(c) of the Local Court Act 2007, then the proceedings must be brought under s 44, Part 4. 2. The Court also does not accept the applicant's submission that s 59 of the 1948 Act governs service for the majority of the relief sought. Section 59(1) of the 1948 Act provides for service "...required or permitted by this Part", being Part 2 which deals with procedures and determinations regarding "Fair rents". The relief sought under the 1948 Act comes under Part 3 which deals with "Recovery of possession of prescribed premises". Part 3 does not provide for any mode of service so the provisions of the Local Court Act 2007 and the Local Court Rules 2009 apply. 3. During the Courts' deliberation of the written submissions it came across the Supreme Court decision of Ex parte Godfrey (1898) 14 W. N. (NSW) 222 which had not been referred to by either party. The parties were both informed of the decision by email and the Court's preliminary view that it appeared it was bound by that decision as it did not seem to the Court that it could be distinguished. The respondent has replied that it is distinguishable. 4. In Ex parte Godfrey (supra) an information and summons were taken out seeking recovery of premises. Objection was taken, in part, "that no proof was given under s 4 of 17 Vic. No. 10, that the summons was explained in conformity with the section. The Magistrate overruled those objections, and adjudged that Waters was entitled to possession of the room in question." Cohen J in refusing to make the order nisi absolute and in discharging the rule nisi held: "In support of that ground Ex parte Jackson is referred to. That, however, was a very different case to this. There the summons had been served on the wife, and the defendant only appeared before the Magistrate for the purpose of taking objection that the summons had not been properly served; whereas in this case the defendant having been served with the summons appeared to shew cause, and, through his solicitor, cross-examined the witnesses. I do not decide that it was necessary that the summons should have been explained to him, but it appears to me that he waived whatever rights he had under that section by appearing and taking part in the proceedings." 1. The applicant submits that Ex parte Godfrey (supra) is distinguishable in three ways. 2. First, there the objection was not taken at the hearing, or even at the beginning of the hearing, but after the matter had been heard and determined. As no objection had been taken prior to, or at, the hearing there is a far stronger basis for a finding that the party has submitted to the jurisdiction. The Court does not accept either distinction. While the report in the Weekly Notes is a little equivocal as to when the objection was taken it is clear that the "Magistrate overruled those objections…" one of the two objections being the service issue. It must follow that the objection of non-compliant service was taken at some stage (but no objection to manner of service for appearance) at, or prior to, the hearing. Further, if non-compliance with s 25 of the 1899 Act results in invalidity (as the respondent submits) then it cannot be cured by a failure to object at the hearing: Marshall v Burman [1960] VR 162; and R v Janceski [2005] NSWCCA 281; 64 NSWLR 10 at [209] and [277]. 3. Second, in the circumstances of this matter there are no procedural rules requiring the filing of a notice of appearance or even a defence. The respondent submits the attendance by a legal practitioner at a mention cannot be considered a waiver when the objection is subsequently taken at the hearing. 4. That submission is a distinction without a legitimate statutory cause. The evident purpose of the requirement to "...explain the nature and effect thereof" in s 25(1) of the 1899 Act is to inform the party served of the relief sought and the consequences if they do not attend court under s 23. It is illogical that a party would appear at the procedural stages (here limited appearances albeit by a legal representative, although in some cases there may be many appearances before a court), say nothing and then take objection at the listed hearing after the considerable use of party and court resources. Further, that distinction is contrary to Cohen J having distinguished Ex parte Jackson (supra), as here no objection was maintained until the hearing. Without needing to distinguish or decide the correctness of Ex parte Jackson (supra) (in any event this Court cannot decide the latter) it is difficult to accept that a party could appear but object to service in the actual knowledge of the relief sought against them. 5. Third, the respondent submits that Cohen J was not assisted by any submissions that the obligation to explain the "summons" (i.e. the application notice) was not capable of waiver. True as that may be and without any reference in the reasons to the submissions there made nevertheless, Cohen J did decide "I do not decide that it was necessary that the summons should have been explained to him, but it appears to me that he waived whatever rights he had under that section…". Clearly, Cohen J did decide rights could be waived, whether or not that was argued. 6. The Court otherwise accepts the thrust of the respondent's submission that compliance with s 25 is mandatory and that non-compliance leads to invalidity: Marshall v Burman (supra); R v Jancevski (supra). Determination 1. Section 25 of the 1899 Act is in the same terms as s 4 of 17 Vic. No.10 (Tenements Recovery Act 1853) , the whole of the latter Act being repealed by the 1899 Act with s 4 re-enacted as s 25 in the 1899 Act. As the decision in Ex parte Godfrey (supra) concerns the same provision, the ratio decidendi is binding on this Court and the respondent has waived any objection she had to service under s 25 of the 1899 Act. 2. In passing, the Court notes that it also raised with the parties that in the event that the application notice for relief under the 1899 Act was invalid, whether that part was severable from the relief sought under the 1948 Act. Neither party has addressed that issue nor need the Court to determine that issue given its decision. However, and without deciding, there appears to be a strong argument that that part of the application notice may be severable and the proceedings may be continued under the 1948 Act. LCM Favretto Downing Centre Local Court 17 November 2014 ******** 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. Decision last updated: 22 July 2015