Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Couch v NSW Land and Housing Corporation [2015] NSWCATAP 253 Hearing dates: 03 November 2015 Date of orders: 30 November 2015 Decision date: 30 November 2015 Jurisdiction: Appeal Panel Before: The Hon D A Cowdroy OAM QC, Principal Member J Wakefield, Senior Member M Bolt, General Member Decision: (1) Leave to appeal is granted (2) The appeal be dismissed. Catchwords: APPEAL - procedure – interim order in the nature of a prohibitory injunction – powers of Tribunal under s 105 of Anti-Discrimination Act 1977 to adjourn or stay proceedings under the Residential Tenancies Act, 2010 Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Vincent Crouch (Appellant) NSW Land and Housing Corporation (First Respondent) Department of Family and Community Services (Second Respondent) Representation: Counsel: B Fogarty (Appellant) J O'Connor (Respondents) Solicitors: Legal Aid New South Wales (Appellant) Department of Family and Community Services (NSW) (Respondents) File Number(s): AP15/45316 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2015] NSWCATAD 146 Date of Decision: 09 July 2015 Before: N Hennessy LCM, Deputy President File Number(s): 1510322 REASONS FOR DECISION Facts 1. The appellant appeals the decision of the Tribunal which refused the grant of an interlocutory injunction to restrain the Tribunal, in proceedings brought in another Division of the Tribunal, namely the Commercial and Consumer Division ("CCD"), from hearing those proceedings: see Couch v NSW Land and Housing Corporation [2015] NSWCATAD 146. 2. The appellant is a tenant of the respondent. The respondent commenced proceedings in this Tribunal, proceedings SH15/16604 in the CCD ("the possession proceedings"), seeking various orders to recover possession of its property. Before the hearing of the possession proceedings, the appellant applied in proceedings 15/0322 in the Administrative and Equal Opportunity Division under s105 of the Anti-Discrimination Act 1977 (NSW) ("ADA") for an order in the nature of an injunction. 3. Such application was made on the basis that the appellant had lodged a disability discrimination claim with the New South Wales Anti-Discrimination Board (ADB) on 3 June 2015. The claim had not determined by the President of the ADB when proceedings 15/0322 were commenced: it follows that no proceedings then existed alleging discrimination in the Tribunal. However, it was alleged that the possession proceedings, if continued, could have resulted in an adverse order to the prejudice of the appellant. 4. Section 105 of the ADA relevantly provides: (1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order: (a) to preserve the status quo between the parties to the complaint, or (b) to preserve the rights of the parties to the complaint, or (c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred." 1. The orders sought were directed to the respondent, the Land and Housing Corporation ("LHC"), in the following terms: (a) that the appellant's tenancy of premises at [ ] 'remain in place' pending a hearing of alleged disability discrimination against him by the LHC has been determined; (b) the hearing of proceedings SH15/16604 in the Commercial and Consumer Division) ("CCD") of the Tribunal 'be stayed' until the complaint of disability discrimination had been resolved". 1. Under the Tribunal's general jurisdiction, the Tribunal has power in the Administrative Equal Opportunities Division to hear and determine matters under the Anti-Discrimination Act": see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT ACT) Sch 3, cl 3(1)(a); see also NCAT Act, s29(1). Tribunal findings 1. The application by the appellant for injunctive relief in proceeding 15/0322 was rejected. 2. The application for the first order was apparently not pressed before the Tribunal, the appellant's Counsel accepting that the sole aim of the application was to prevent the resident tenancy proceedings from going ahead until the discrimination complaint had been resolved. The Tribunal did not deal with the application for the first order as a separate order and we do not understand it to be the subject of this appeal. 3. The Tribunal described the second order sought as a "prohibitory injunction" which would, if granted, operate to prevent the CCD from hearing and determining the application by the LHC to terminate the tenancy. 4. The Tribunal found that the provisions of s105 of the ADA, as set out above, which provide certain limited powers to it to grant orders, do not permit it to make an order which stays the CCD from determining matters before it. The Tribunal found that only the Tribunal which had the matter before it (that is, proceedings SH15/16604) was entitled to exercise power to restrain the hearing of a matter before it, if any application were made in those proceedings. 5. Accordingly, the application was refused, on the ground that the Tribunal "has no jurisdiction to make an order preventing the residential tenancy proceedings from continuing". 6. The power of the Tribunal to grant injunctions under s105 of the ADA and its assessment of the relevant authorities, and to grant injunctions generally, was correctly summarised by the Tribunal at [6] of its decision. Submissions and leave 1. The Appeal Panel has had regard to the submissions of each party, both with regard to the question of leave, and also as to the merits. 2. Pursuant to s 80(2)(a) of the NCAT Act the appellant requires leave to appeal the interlocutory decision of Tribunal at first instance. 3. The LHC does not oppose the appellant's application for leave, on the basis that the issue raises a question of jurisdiction, and that such issue is of importance. 4. The test to be applied for a grant of leave has been clearly established: see Collins v Urban [2014] NSWCATAP 17. Since a grant of leave is not opposed, and since the question raised on this appeal is an important issue, the Appeal Panel grants leave. Appeal findings 1. The Appeal Panel turns to the order sought, namely that the hearing of SH15/16604 be stayed until the appellant's complaint is resolved at the ADB or upon its referral by determination of the Tribunal in the Administrative and Equal Opportunity Division. 2. In the Appeal Panel's view, Her Honour correctly identified at [7] the preliminary issue for determination to be whether the Tribunal has power to stay or adjourn the proceedings before the Consumer and Commercial Division or direct that they be stayed or adjourned pending resolution or determination of the appellant's complaint under the ADA. 3. The Appeal Panel refers to the Tribunal's finding at [12] that s29(2)(a) of the NCAT Act does not permit an order as claimed. This section relevantly provides: (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings …' [emphasis added] 1. The order, as sought insofar as it sought an order restraining the Tribunal (as distinct from LHC) from hearing the tenancy dispute, was misconceived. Section 105 does not empower the Tribunal to make orders against itself restraining other proceedings. We consider that the Tribunal was correct in its conclusion that no power exists under s105 of the ADA to make an order of the kind sought. 2. Contrary to the Tribunal's finding, the Appeal Panel considers that an order could have been made in 15/0322, directed to LHC, ordering it to take no further steps in the possession proceedings 15/0322. Such an order would have been made "in the proceedings" [pursuant to s105(1)(a) of the ADA]: see s29(2)(a) of NCAT Act or pursuant to s105(1)(a) of the ADA. That is, in the proceedings in which the order was sought, namely 15/0322 but restraining the LHC proceeding with its possession proceeding. 3. The effect of such order would only be to preserve the status quo between the parties. It would operate to prevent, for example, LHC applying to have its possession proceedings set down for hearing. However, this would not be an order directed to the Tribunal in the possession proceedings. 4. If the Tribunal determined to proceed with the hearing of the possession proceedings, an order made directing the LHC from proceeding further with its possession proceedings would not prevent it doing so. However, in such circumstances LHC would have been required to seek an adjournment pending further order, since if it gave evidence, it would thereby be taking a step in the proceedings, contrary to the injunction directed to it and made in 15/0322. 5. Significantly however, such an order was expressly not sought. The Tribunal member directly asked of the legal representative for the appellant whether an order was sought directed to restraining the LHC from proceeding with the possession proceedings. A negative response was provided. 6. In the circumstances, the Tribunal member was therefore only asked to make an order directed to the Tribunal. 7. The appellant submitted before the Appeal Panel that the Application in 15/0322 also contained the following prayer for relief: Such further or other order as the Tribunal deems fit. 1. However in view of the express indication that no order was sought in 15/0322 directed to the LHC, the Tribunal had no reason to fashion an order, based on speculation, as to the real order which the appellant might have thought appropriate. Nor was it the function of the Tribunal to do so. 2. In conclusion, the Appeal Panel finds: 1. It was within the power of the Tribunal, in its exercise of power under s105 of the ADA, to grant an injunction in proceedings 15/0322 directed to restraining the LHC from pursuing its possession proceedings (SH15/16604), pending determination of the appellant's disability discrimination complaint; 2. Such an order was expressly not sought; 3. The Tribunal was correct, in such circumstances to dismiss the application. 1. The Appeal Panel observes that the appellant could have instituted its application in the possession proceedings: there was no need to commence proceedings 15/0322 which sought no relief other than the injunction. 2. There is nothing to prevent the appellant now seeking injunctive relief in the possession proceedings. Orders 1. Leave to appeal is granted; 2. The appeal be dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 30 November 2015