Reisner v NSW Land and Housing Corporation and anor [2016] NSWSC 1071

Supreme Court New South Wales

Medium Neutral Citation: Reisner v NSW Land and Housing Corporation and anor [2016] NSWSC 1071 Hearing dates: 3 August 2016 Date of orders: 03 August 2016 Decision date: 03 August 2016 Jurisdiction: Common Law Before: Bellew J Decision: (1) The proceedings are dismissed.

(2) The plaintiff is to pay the costs of the first defendant, namely the New South Wales Land and Housing Corporation, as agreed or assessed. Catchwords: APPEAL – Asserted errors of law on the part of members of Tribunal – Errors not established – No point of princple Legislation Cited: Civil & Administrative Tribunal Act 2013 (NSW) Residential Tenancies Amendment (Social Housing) Act 2005 (NSW) Residential and Tenancies Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: New South Wales Land and Housing Corporation v Reisner; Reisner v New South Wales Land and Housing Corporation [2016] NSWCATCD 9 Category: Principal judgment Parties: Koidu Reisner – Plaintiff NSW Land and Housing Corporation – First defendant NSW Civil and Administrative Tribunal – Second defendant Representation: Counsel: Mr TJ Boyle – First defendant

Solicitors: Self – Plaintiff FACS Legal – First defendant File Number(s): 2016/13382 Publication restriction: Nil

Judgment – EX TEMPORE (REVISED) 1. By an amended summons filed on 3 June 2016 the plaintiff seeks what is described as "judicial review" of two decisions of the New South Wales Civil & Administrative Tribunal ("the Tribunal"), namely a decision of member Harrowell of 7 October 2015, and a decision of Senior Member Rosser of 22 January 2016. 2. In support of the orders sought the Plaintiff relied upon her affidavits of 14 January 2016, 11 January 2016 and 3 June 2016. The plaintiff also relied on a number of other documents which were tendered without objection and which were marked exhibit A. 3. The first defendant relied on an affidavit of Suzanne Hook of 1 August 2016 to which no objection was taken. 4. Before dealing with the substance of the matter, there is a procedural issue which must be addressed. The amended summons names the New South Wales Land and Housing Corporation ("the Corporation") as the first defendant and the Tribunal as the second defendant. My attention was drawn by counsel for the Corporation to the provisions of s. 84(3) of the Civil & Administrative Tribunal Act 2013 (NSW) ("the Act") which is in the following terms. 84 Practice and procedure for appeals to courts under this Act … (3) The Tribunal (or any of the members constituting the Tribunal) cannot be made a party to an appeal to which this section applies. The rules of court for a court to which such an appeal may be made may make provision for the parties to any such appeal (including the designation of a respondent where the only party to the proceedings from which the appeal is brought was the appellant). (4) In this section: "rules of court" for a court includes the uniform rules under the Civil Procedure Act 2005 if the uniform rules apply to proceedings of that court. It was suggested in those circumstances that the Tribunal had been incorrectly named as a defendant in the proceedings. Section 84(3) applies only to an appeal to which that section is otherwise applicable. There is some degree of confusion, given the manner in which the amended summons has been drafted, as to whether these proceedings are to be treated as an appeal under s 83 of the Act or an application for judicial review. 1. The amended summons makes reference to "judicial review". It also makes reference to prerogative writs. However, confusion arises from the fact that as it has been drafted the summons also makes reference to s. 83 of the Act. Further confusion arises from the fact that the amended summons names the Tribunal as the second defendant. In the affidavit of 11 January upon which the plaintiff relies, the Tribunal is named as the first defendant and the Corporation as the second defendant. 2. These circumstances give rise to the question of whether the provisions of r. 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") applies. The rule confers a power on this Court to order that a party who has been improperly or unnecessarily joined be removed. That rule would apply if these were proceedings in the nature of an appeal under s. 83 of the Act. If, on the other hand, these proceedings are to be treated as an application for judicial review, the provisions of r. 59.3(iv) would apply. That provides that in judicial review proceedings the body or person responsible for a decision to be reviewed must be joined as a defendant, but not as the first defendant unless there is no other defendant. 3. As I have observed, the amended summons upon which the plaintiff moves names the Tribunal as the second defendant. In all of the circumstances, and given the nature of the submissions advanced by the plaintiff, these proceedings ought be treated as proceedings for judicial review. Accepting that to be the case, and having regard to r. 59.3(iv), the Tribunal is properly joined as the second defendant. 4. The circumstances giving rise to the present proceedings may be summarised as follows. 5. On 18 May 2015 the Corporation filed an application in the Tribunal seeking orders requiring the plaintiff to pay water usage charges. On 23 June 2015 the plaintiff filed an application in the Tribunal seeking an order that a water meter be installed in her property. After these applications had been filed the matters proceeded through interlocutory stages before the Tribunal. They were originally listed for hearing on 16 July 2015. On that day orders were made (inter alia) granting leave to the plaintiff to issue a summons to the Sydney Water Corporation. The terms of that order appear at T21 of the proceedings on 16 July 2015. 6. The terms of the summons which the plaintiff sought be issued is set out in one of the documents in exhibit A. Whilst I do not propose to set out such terms in full, the summons sought, amongst other things, production of water meter readings and bills for a period between 2005 and 2015, in relation to unidentified properties administered by Sydney Water located in the suburbs of Bondi, Coogee, Bronte, Randwick, Maroubra, Malabar, Matraville, Botany, Chifley and La Perouse. 7. On 7 October 2015 both matters were listed before Member Harrowell in the Tribunal. On that day Member Harrowell made an order dismissing the plaintiff's application to issue the summons ("the first decision"). That decision is the first of the decisions of which the plaintiff seeks judicial review in these proceedings. It should be noted that on the material before me Member Harrowell has not provided reasons for the decision which was reached. That appears to be due, at least in part, to the fact that there was a malfunction in the recording equipment when the matter came before Member Harrowell on 7 October 2015, which prevented the reasons from being recorded. 8. The hearing of the applications came before Senior Member Rosser on 15 January 2016. Having heard the matter on that day, Senior Member Rosser reserved her decision. On 22 January 2016, Senior Member Rosser ordered that: 1. leave to issue a summons to the Minister for Housing be refused; 2. an application for a stay of proceedings be refused; 3. the plaintiff pay to the Corporation the sum of $229.24 within 14 days of the date of publication of the orders for water usage charges for the period 18 March 2015 to 15 January 2016; and 4. the plaintiff pay water usage charges to the Corporation (currently 5.3 percent of the weekly rent of $100.30) in a sum of $5.30 per week due on the Monday of each week with the next payment due on 18 January 2016 ("the second decision"). 1. Senior Member Rosser also ordered that the plaintiff's application regarding the installation of a water meter in her premises be dismissed: New South Wales Land and Housing Corporation v Reisner; Reisner v New South Wales Land and Housing Corporation [2016] NSWCATCD 9. 2. Annexure D to the affidavit of Ms Hook establishes that on 3 March 2016 an appeal panel constituted by Deputy President Westgarth dismissed an appeal against Senior Member Rosser's decision under s 55(1)(c) of the Act. That determination was pursuant to a notice of appeal which had been filed by the plaintiff on 16 February 2016. 3. There is, as I have said, some confusion as to the nature of the proceedings that the plaintiff brings in this Court. However, for the reasons to which I have already alluded, I have proceeded on the basis that what the plaintiff seeks is judicial review of the first and second decisions. 4. As to the first decision, the gravamen of the plaintiff's complaint appears to be that Member Harrowell did not have power to act in a manner which was contrary to, or inconsistent with, the decision of Senior Member Boyce who had made the order on 16 July 2015 granting her leave to issue a summons to the Sydney Water Corporation. A supplementary submission was made by the plaintiff concerning the absence of reasons of member Harrowell for his decision. As I understood it, the plaintiff asserted that the absence of reasons rendered her position unfair. 5. I am satisfied by reference to a number of provisions of the Act, that Member Harrowell had the power to make the first decision. 6. Section 4 of the Act sets out a number of definitions including a definition of the term "Tribunal" which is in the following terms: 4 Definitions … "the Tribunal" or "NCAT" means the Civil and Administrative Tribunal of New South Wales established by this Act. Under s 9 of the Act membership of the Tribunal is addressed in the following terms: 1. Under s. 27 of the Act the constitution of the Tribunal is expressed to be as follows: 27 Constitution of Tribunal (1) The Tribunal is to be constituted as follows: (a) in the case of an internal appeal or designated external appeal-by an Appeal Panel of the Tribunal consisting of: (i) one member who is an Australian lawyer, or (ii) 2 or more members (at least one of whom must be an Australian lawyer), (b) in the case of proceedings for contempt of the Tribunal-by one or more of the following members: (i) the President, (ii) any other member who is a current or former NSW judicial officer, (c) in the case of proceedings for a contravention of a civil penalty provision of this Act-by one or more of the following: (i) the President, (ii) a Deputy President, (iii) a principal member who is an Australian lawyer of at least 7 years' standing, (d) in the case of any other proceedings-by one or more Division members of the Division to which the function of dealing with the proceedings is allocated. Note : The functions of the Tribunal are generally exercised in the Divisions of the Tribunal by Division members. However, the functions of the Tribunal when constituted by an Appeal Panel or in exercise of its enforcement jurisdiction are not allocated to any particular Division of the Tribunal. See section 16 (4). A Division Schedule for a Division may, in some cases, make special provision for the constitution of the Tribunal when exercising functions allocated to that Division (including the qualifications of members to sit in specified kinds of proceedings). It may also provide for certain Division functions to be exercised by a registrar and for the constitution of Appeal Panels in internal appeals against decisions made in the Division. The procedural rules may also authorise a registrar to make ancillary or interlocutory decisions of the Tribunal on behalf of the Tribunal. See section 23 (6). (2) The President may give directions as to the members who are to constitute the Tribunal for the purposes of any particular proceedings. Note : The President may delegate the function of constituting the Tribunal for particular proceedings to a Division Head for a Division of the Tribunal or another member. See clause 12 of Schedule 2. (3) In giving a direction as to the members who are to constitute the Tribunal for the purposes of any particular proceedings, the President is to have regard to the following matters: (a) the degree of public importance or complexity of the subject-matter of the proceedings, (b) the need for any of the members to have special knowledge or experience in the subject-matter of the proceedings, (c) any applicable requirements in relation to the constitution of the Tribunal that are specified by a Division Schedule for a Division of the Tribunal or enabling legislation, (d) such other matters as the President considers relevant. (4) The President may give directions (whether for particular proceedings, classes of proceedings or generally) as to which member is to preside at proceedings in the Tribunal when the Tribunal is constituted by more than one member. (5) There may be more than one sitting of the Tribunal (including when constituted as an Appeal Panel) at the same time. (6) In this section: "designated external appeal" means any of the following: (a) an external appeal under section 45 of the Drug and Alcohol Treatment Act 2007 , (b) an external appeal under section 50 of the NSW Trustee and Guardian Act 2009 , (c) any other external appeal that this Act or enabling legislation has declared to be a designated external appeal for the purposes of this section. 1. Section 29 confers what is described as general jurisdiction on the Tribunal in the following terms: 29 General jurisdiction (1) The Tribunal has "general jurisdiction" over a matter if: (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. Note : The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction. (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, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) A "general decision" of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction. (4) A "general application" is an application made to the Tribunal for a general decision. (5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act. 1. Importantly, s. 29(2)(a) confers upon the Tribunal, defined and constituted in the way previously set out, jurisdiction to make ancillary and interlocutory decisions in proceedings. A combination of these provisions conferred power on Member Harrowell to make the first decision. That is so, notwithstanding the earlier order of Senior Member Boyce. 2. As to the submission advanced by the plaintiff arising from the absence of any reasons for the first decision before this Court, I have had particular regard to the document within exhibit A which sets out the summons that was sought to be issued. The overwhelming inference is that the first decision was made by member Harrowell on the basis that the proposed summons was oppressive and amounted to an abuse of process. In circumstances where the documents which were sought extended over a period of 10 years, and purported to seek documents relating to unidentified properties located 10 separate suburbs, it is not difficult to see why the first decision was made. 3. As to the second decision, the plaintiff's complaint was that Senior Member Rosser had misconstrued the provisions of s. 139 of the Residential Tenancies Act 2010 (NSW) ("the RTA"). In particular, the plaintiff argued that an error had arisen by virtue of the fact that Senior Member Rosser had failed to construe the provisions of s. 139 in the context of the whole of the Act. A submission was also made by the plaintiff that an error of law had arisen as a consequence of her being denied natural justice and procedural fairness in the hearing before Senior Member Rosser. 4. As to the first of those complaints, I have read the Senior Member's reasons carefully. Having articulated (at [38]) the issues which were to be determined, the Senior Member (commencing at [39]) considered whether or not the provisions of s. 139 of the RTA applied to the tenancy agreement which was found to exist between the plaintiff and the Corporation. Having traced the relevant legislative history, and having considered the specific provisions of s. 139 (at [47]) Senior Member Rosser concluded (at [50]) that the provisions of s. 139 applied to the tenancy agreement between the parties and that under that agreement the plaintiff was required to pay water usage charges because of the operation of s. 19A of the Residential Tenancies Amendment (Social Housing) Act 2005 (NSW). Having reviewed the reasons of the Senior Member, I am unable to discern any error in her interpretation of the provisions of s. 139. 5. In the course of her submissions the plaintiff, who has appeared unrepresented in this Court, drew my attention to a number of provisions of the Act which govern, amongst other things, the procedures to be adopted by the Tribunal. The plaintiff referred me, in particular, to s. 36 which sets out a guiding principle to be applied to the practice and procedure of the Tribunal, along with the provisions of s. 38 which govern the procedure of the Tribunal generally. The plaintiff also drew my attention to the provisions of s. 38(5)(c) which impose an obligation on the Tribunal to take such measures as are reasonably practicable to ensure that a party has a reasonable opportunity to be heard, or otherwise has the opportunity to have their submissions considered in the proceedings. 6. Although not stated specifically, it appeared to be the plaintiff's contention that those provisions had been breached and that as a consequence she had been denied natural justice and procedural fairness in the course of the hearing before Senior Member Rosser. 7. The transcript of the proceedings before the Senior Member is annexed to the affidavit of Ms Hook. On a fair reading of that transcript the plaintiff, in my view, was given every opportunity by the Senior Member to put her case, and to put such submissions in support of her case as she wished to put. The plaintiff's submissions included, but were not limited to, submissions as to a constitutional issue which the plaintiff maintained arose on the facts before the Senior Member. I am unable to accept the submission that the plaintiff was denied procedural fairness in the course of those proceedings. 8. For those reasons, and bearing in mind the nature of an application for judicial review, I am not satisfied on the material before me that any error of law is made out in support of either decision. The proceedings should therefore be dismissed. 9. The Corporation has sought an order for costs. Counsel for the Corporation has submitted that costs should follow the event. The plaintiff objected to any order for costs, and submitted that any such order would operate unfairly. That submission appeared to involve canvassing issues I have determined adversely to the plaintiff in this judgment. In my view there is no reason why the usual order for costs ought not be made. 10. In those circumstances, and for those reasons, I make the following orders: 1. The proceedings are dismissed. 2. The plaintiff is to pay the costs of the first defendant, namely the New South Wales Land and Housing Corporation, as agreed or assessed.