Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sefton & Jacobs v Yeend [2017] NSWCATCD 82 Hearing dates: On the papers Decision date: 01 September 2017 Jurisdiction: Consumer and Commercial Division Before: S Westgarth, Deputy President Decision: (1) A hearing for the determination of this application is dispensed with; and (2) The application is dismissed. Catchwords: Jurisdiction – parties in different States Legislation Cited: Civil and Administrative Tribunal Act 2013 Commonwealth of Australia Constitution Act Judiciary Act 1903 Residential Tenancies Act 2010 Cases Cited: Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 Magaming v The Queen [2013] HCA 40; 252 CLR 381 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 Category: Consequential orders (other than Costs) Parties: Darby Sefton (Applicant) Anna Jacobs (Applicant) Richard Yeend (Respondent) Representation: File Number(s): RT 17/27219 Publication restriction: Unrestricted reasons for decision Background 1. These proceedings concern an application brought on the initiative of the Tribunal to dismiss the substantive application by reason of the fact that the Tribunal may not have jurisdiction to determine the dispute between the parties. It is necessary to set out some background as follows: 1. The applicants (the tenants) and the respondent (the landlord) entered into a residential tenancy agreement on 23 February 2016. The respondent is named as the landlord in the residential tenancy agreement and the contact details for the respondent are "c/- Richardson and Wrench Double Bay"; 2. The applicants filed an application in the Tribunal on 16 June 2017 seeking compensation under the Residential Tenancies Act, 2010 NSW (the RT Act) alleging the premises were "unusable or uninhabitable or destroyed"; 3. The application sought an order for the payment of an amount of money under s 187(1)(c), an order as to compensation under s 187(1)(d) and an order under s 45 of the RT Act reducing the rent payable. The tenant is able to bring an application to the Tribunal in relation to a breach of a residential tenancy agreement by virtue of s 190 of the RT Act; 4. On 7 July 2017 the Tribunal received a letter from Richardson and Wrench on behalf of the landlord. That letter stated that the Tribunal does not have jurisdiction because the landlord's place of residence is South Australia. The letter referred to the decision of the New South Wales Court of Appeal in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 and elsewhere in the letter stated that the landlord's "principal place of residence is in South Australia". Based upon the authority of the Burns v Corbett case, the agent asserted that the Tribunal does not have jurisdiction; 5. On the same day the proceedings were listed before the Tribunal and the Tribunal made an order that the hearing of the application be adjourned to a date to be fixed pending determination of the appeal before the High Court in Burns v Corbett; 6. I caused the proceedings to be relisted because the record of the orders made on 7 July 2017 did not record whether the Tribunal had afforded to the parties the opportunity to consider whether the better course would be for the proceedings to be dismissed so that the applicants could, if they wished, commence proceedings in an appropriate Court; and 7. The Tribunal made directions for the parties to make submissions as to whether the existing order should remain in place (thus leaving the proceedings adjourned pending the outcome of the proceedings referred to in the order of 7 July 2017) or whether the proceedings should be dismissed. The directions sought submissions as to whether the Tribunal could decide this application on the papers. Submissions 1. The applicants have provided written submissions but no submissions have been received from the respondent. 2. The applicants' submissions referred to above may be summarised as follows: 1. The applicants oppose the proceedings being dismissed and submitted that the existing order should remain in place. The submission state that the proceedings were "appropriately adjourned" pending the outcome of the appeal of the Burns v Corbett decision in the High Court or until "such time as the NSW Government enables NCAT to continue delivering informal and affordable dispute resolution, whichever is sooner"; 2. The applicants stated that they prefer the proceedings to remain in the Tribunal because it is the "only forum that presents itself as the real possibility for the cheap, quick and just solution of the dispute". They say that adjourning the matter will give the parties a real chance of alternative dispute resolution that is provided by s 37 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). They further say that adjourning the matter will also give effect to the "Attorney General's comments that in respect to the time period between now and the outcome of the Burns v Corbett appeal that the NSW Government is examining a number of options to enable NCAT to continue delivering informal and affordable dispute resolution". This last quotation from the applicants is stated to be from a report which they described as "ABC report 14 July"; 3. The applicants submitted that dismissing the application "directly contradicts the described outcome as expressed by the NSW Attorney General and it will not facilitate a just, quick and cheap resolution to the dispute". They say a dismissal would have the effect of preventing the applicants from "accessing an appropriate resolution even though the Attorney General has expressly stated that an appropriate resolution pathway has been considered while the current jurisdictional uncertainty is clarified"; 4. The applicants' submission goes on to state that dismissing the application "simply means that the dispute becomes the applicants' own problem only, and no longer the Tribunal's". They say that would be manifestly unfair; and 5. The applicants submitted that if the Tribunal is minded to "discontinue" the adjournment, the application should be transferred to a Court that has jurisdiction. Decision 1. The parties have been afforded an opportunity to make submissions as to whether the Tribunal should dispense with a hearing concerning this application and decide the issue on the papers. Neither party has made such a submission. As s 50(3) of the NCAT Act has been satisfied, I am in a position to make a determination under s 50(4). I determine that this application is one in which a hearing is not required and accordingly I make an order under s 50(2) dispensing with a hearing of this application. 2. It is my view that the effect of the Burns v Corbett decision referred to above is that the Tribunal is unable to exercise judicial power to determine matters between residents of two different States because of s 39(2) of the Judiciary Act 1903 (Commonwealth) and s 109 of the Constitution (Commonwealth). In this case, there is evidence that the applicants are residents of New South Wales. I find that when the proceedings were commenced, they were persons permanently residing in New South Wales. 3. The only evidence concerning the residency of the respondent landlord is the letter referred to above which states that the landlord's "place of residence is South Australia". The letter is somewhat inadequate in that it does not state that the respondent's permanent place of residence is in South Australia (the letter refers to the respondent's "principal" place of residence) and it does not state that on 16 June 2017 the landlord's permanent place of residence was in South Australia. I think it is reasonable to infer that it was the intention of the letter to convey that information. Accordingly, I find that when the proceedings before the Tribunal were commenced, the landlord permanently resided in South Australia. 4. I am satisfied that if the Tribunal were to consider the applicants' application and either make the orders sought (or other orders) or dismiss the application, the Tribunal would be exercising judicial power for these reasons: 1. The applicants' application seeks orders from the Tribunal based upon alleged breaches of the residential tenancy agreement by the landlord; 2. In determining the dispute, the Tribunal would be making determinations concerning the existing rights and obligations of the parties to the residential tenancy agreement; 3. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 Kitto J described judicial power in these terms: Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. 1. In Magaming v The Queen [2013] HCA 40; 252 CLR 381 Gageler J at par 65 described judicial power in these terms: 65. "The unique and essential function of the judicial power is the quelling of … controversies [including those between the executive and the individual as to life or liberty] by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion."[41] The exercise of the judicial power "involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process", which "requires that the parties be given an opportunity to present their evidence and [at least ordinarily] to challenge the evidence led against them"[42]. [41] Fencott v Muller (1983) 152 CLR 570 at 608; [1983] HCA 12. [42] Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 359 [56]; [1999] HCA 9. Cf Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458 at 500 [196]; 295 ALR 638 at 690-691. 1. Having regard to the two authorities which I have referred to above, I am of the view that the effect of the applicants' application is to request the Tribunal to exercise its powers to determine the respective rights and obligations of the applicants and the landlord and to make orders arising out of such determination. In my view, that process constitutes the exercise of judicial power. 1. It follows from the above that I find that by reason of the principles set out in Burns v Corbett this Tribunal currently has no jurisdiction to determine the proceedings. 2. I am of the view that the appropriate course in this case is to dismiss the application notwithstanding the submissions of the applicants. My reasons are: 1. If, as the applicants assert, the Attorney General is considering appropriate reforms, then it does not necessarily follow that those reforms would result in this application becoming one in respect of which the Tribunal would be given jurisdiction. That could only arise if the Tribunal were designated a "court" and it thereupon was held to become a "court of a State" for the purposes of Ch iii of the Constitution. The essence of the decision in Burns v Corbett was that a court of a State (or a Commonwealth court) could exercise jurisdiction in relation to a dispute between residents of two different States, but a Tribunal, if it is not a court, cannot. It appears to me that Burns v Corbett proceeded upon the basis that the Tribunal was not a court without actually deciding the issue. Although the law may change, it may not necessarily change such that applications made to the Tribunal before the foreshadowed change in the law may be decided by the Tribunal in circumstances where they could not have been decided in the Tribunal before the change in law; 2. It is not possible to say whether a decision of the High Court would result in a determination that this Tribunal is a Court, and as that point was not the subject of the Court of Appeal's decision, it is my view that it is more probable than not, that a decision of the High Court would not result in the principle being established that this Tribunal can hear disputes between residents of two different States; and 3. Essentially, the applicants ask me to speculate that as a result of proposed law reform or as a result of the High Court decision, this Tribunal will, in the future, be declared to have jurisdiction to determine the dispute between these parties. In my view that is sufficiently doubtful to justify not awaiting the outcome of either the Attorney General's proposed reforms or the outcome of the High Court decision. 1. Another possibility is for the proceedings to be transferred to the relevant Court. Clause 6 of Sch 4 of the NCAT Act provides that the Tribunal may transfer proceedings to a Court in certain circumstances. Whether an order for transfer can be effected in circumstances where the Tribunal has no jurisdiction is debatable. In order to avoid the potential for argument that the transfer order, if made, was an order in respect of which the Tribunal has no jurisdiction, it would be better for the applicants to initiate their own proceedings in a court. Whilst there are short term time limits governing the commencement of applications under the RT Act in respect of proceedings brought in the Tribunal, there are no such short term limitations applicable in the case of proceedings commenced in a court. 2. The appropriate course in this case is to dismiss the proceedings. Orders 1. Accordingly, the Tribunal makes the following order: 1. A hearing for the determination of this application is dispensed with; and 2. The application is dismissed. Additional Comment 1. In passing, I note that the prescribed form of residential tenancy agreement does not require either the landlord or the tenant to state their permanent place of residence. In the case of a landlord (who may possibly reside interstate) this creates an unknown risk for tenants who may find that they have entered into a residential tenancy agreement with an interstate landlord and that therefore the remedies that they might otherwise be able to access through the Tribunal are not available to them. I would respectfully suggest to those responsible for law reform that the prescribed form of residential tenancy agreement be amended so as to require the residential tenancy agreement to state the permanent place of residence of each landlord and to also provide for an ongoing requirement for each landlord to disclose a change of permanent place of residence during the period of the tenancy. S Westgarth Deputy President Civil and Administrative Tribunal of NSW 1 September 2017 ********** 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: 14 September 2017