Bott v NSW Land and Housing Corporation (No 2) [2018] NSWCATCD 2

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bott v NSW Land and Housing Corporation (No 2) [2018] NSWCATCD 2 Hearing dates: 23 January and 23 February 2018 Date of orders: 08 March 2018 Decision date: 08 March 2018 Jurisdiction: Consumer and Commercial Division Before: The Hon F Marks Principal Member Decision: 1. The order made on 24 November, 2017 in proceedings Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88 is hereby vacated. Catchwords: Conduct capable of constituting contempt of the Tribunal referred to Supreme Court-discretion to revoke or vacate order of referral- discretionary considerations-referral order vacated. Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88 Killen v Lane [1983] 1 NSW LR 171 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51 Witham v Holloway [1995] HCA 3 Category: Principal judgment Parties: David Charles Bott (Applicant)

NSW Land and Housing Corporation (Respondent) Representation: Counsel: N M Eastman (Applicant) D Kell SC (Respondent)

Solicitors: Crown Solicitor (Respondent) File Number(s): SH 17/11245 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. David Charles Bott, whom, for the sake of convenience, I shall hereafter refer to as the Applicant was for many years a tenant of the NSW Land and Housing Corporation whom I shall hereafter refer to as the Respondent. The Applicant brought a series of proceedings before this Tribunal seeking, in general terms, rectification of certain defects in the rented premises and compensation. Those proceedings date back to 2009. More latterly, commencing in 2016 the Applicant instituted further proceedings and obtained a number of orders from the Tribunal against the Respondent requiring the carrying out of certain work, reducing the rent for a certain period and for the payment of a refund of part of the rent. The Applicant alleged that the Respondent had failed to comply with the orders of this Tribunal on a number of occasions in subsequent proceedings. The asserted continuing failure of the Respondent to comply with the orders of this Tribunal culminated in an application brought by the Applicant seeking that this Tribunal refer the question of whether the Respondent was guilty of contempt of this Tribunal by reason of its failure to comply with the several orders made against it to the Supreme Court of New South Wales, pursuant to the provisions of section 73 of the Civil and Administrative Tribunal Act 2013 ("the Act"). 2. In Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88 (24 November 2017), I made orders pursuant to section 73 of the Act, which is in the following terms; 73 CONTEMPT OF TRIBUNAL (1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court. Note: Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer). (2) A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission. (3) Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal. (4) For the purposes of this section: (a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and (b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and (c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied. Note: Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section. (5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination. (6) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate. 1. The orders made were as follows; The following matters are referred to the Supreme Court of New South Wales for its consideration, namely whether the respondent, NSW Land and Housing Corporation has committed contempt of the Civil and Administrative Tribunal by reason of its failures, or any one or more of those failures with reference to premises occupied by the applicant under tenancy from the respondent; (1) to comply with order made on 20 October,2016 in matter SH 16/16880 to carry out replacement of a door and door frame (2) to comply with order made on the same day and in the same matter as referred to in (1) to conduct an inspection of the premises to ascertain whether there was a water leak and conduct any necessary maintenance work for the leak on or before 18 November, 2016 (3) to comply with orders made on 24 March, 2017 in matter SH 17/11245; (a) to complete the work described in (1) above (b) to complete the work described in (2) above (c) to replace a pre-existing security door in a proper and workmanlike manner by 20 April, 2017 (d) to refund by 6 April, 2017 all rent paid in excess of $108.80 per week from 18 November, 2016 to 15 February, 2017 (e) to refund by 6 April, 2017 all rent paid in excess of $80 per week from 16 February, 2017 to 6 April, 2017 (f) to reduce all rent payable to the sum of $80 per week from 7 April, 2017 to the earlier of 17 November, 2017 or the date upon which all of the work referred to in (3) and (4) is completed. 1. Some sense of the underlying failures of the Respondent may be gathered from the following description contained in my Decision; Factual findings 36 It is beyond doubt, as conceded by Mr White who gave evidence on behalf the respondent, that it had failed to replace the door and doorframe and conduct an inspection of the premises to ascertain whether there was a water leak and conduct any necessary maintenance work for the leak for a considerable time. Indeed, the respondent has still not conducted the appropriate maintenance work to repair the damaged paint work and remove the mould in the toilet area and the adjoining bedroom. 37 I note that the respondent had consented to orders made by the Tribunal on 20 October 2016 that it would carry out this work on or before 18 November 2016. Further orders were made covering the same work on 30 January 2017 and on 3 March 2017. On the evidence of Mr White, the repairs to the doorframe and replacement of the door were not completed till about 18 October 2017. It was his evidence that the water leak had been attended to on 18 September 2017, although I accept the evidence of the applicant that the remediation work necessary as a result of the water leakage has not yet been attended to. I note that there is, in effect, no evidence to the contrary. 38 I also accept the evidence of the applicant that not only has he not been paid any monies due and owing consequent upon the rent reduction orders made on 24 March, 2017, but that the respondent has declined to pay those monies to him. The rental reduction was to operate from 18 November, 2016 and the respondent was ordered to refund all rent paid in excess of the reduced rental by 6 April, 2017. I do not regard the holding of any necessary monies to the account of the applicant in the funds of the respondent as constituting a refund of the amounts due and owing to the applicant pursuant to the orders of 24 March 2017. Accordingly, the respondent has still not complied with the rent reduction orders. 39 I also accept the evidence of the applicant that the screen door which has been installed is not a security screen door as such a door is known by way of common knowledge, but is a traditional screen door with a latch and a locking device only. 1. Section 73 occurs within Part 5 of the Act which is entitled Enforcement. It was the position of the Applicant that the only means available to him to enforce and thus secure the benefit of the orders which had been made by this Tribunal in his favour was to seek a finding of contempt against the Respondent. Of course, the availability of orders for contempt has, for the purpose of these proceedings, a dual purpose namely to assist in the enforcement of orders of a Court or Tribunal and in upholding the effective administration of justice. It is in the public interest to ensure that orders of a Court and Tribunal cannot be disobeyed with impunity, because this will impact upon the administration of justice generally, as well as depriving individual litigants from the benefits due to them.