Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Herbert v New South Wales Land and Housing Corporation [2020] NSWCA 74 Hearing dates: 20 April 2020 Date of orders: 22 April 2020 Decision date: 22 April 2020 Before: Basten JA Decision: (1) Dismiss the applicant's notice of motion filed on 15 April 2020. (2) Order that the costs of the motion be the respondent's costs in the application for leave to appeal. Catchwords: CIVIL PROCEDURE – appeal – question of law – request to issue subpoena – refusal of request by Registrar – review of Registrar's decision CIVIL PROCEDURE – application to vacate hearing date – termination of residential tenancy agreement – effect of COVID-19 pandemic – whether moratorium on rental tenancy evictions – Residential Tenancies Regulation 2019 (NSW), Pt 6A CIVIL PROCEDURE – appearance – failure to file notice of appearance – Uniform Civil Procedure Rules 2005 (NSW), rr 51.5; 6.9; 6.11 CONSTITUTIONAL LAW – operation of State law – whether inconsistent federal law – Government policy not a law – no notice given to Attorneys General – Judiciary Act 1903 (Cth), s 78B – Constitution, s 109 – no inconsistency Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 83 Constitution, s 109 COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) Judiciary Act 1903 (Cth), s 78B Residential Tenancies Act 2010 (NSW), ss 87, 121, 229; Pt 13 Residential Tenancies Regulation 2019 (NSW), Pt 6A Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 6.9, 6.11, 51.5. Cases Cited: Herbert v NSW Land & Housing Corporation [2019] NSWCATAP 173 Category: Procedural and other rulings Parties: Stephen Noel Herbert (Applicant) New South Wales Land and Housing Corporation (First Respondent) New South Wales Civil and Administrative Tribunal (Second Respondent) Representation: Counsel: Applicant in person Mr N J Simpson (First Respondent) Solicitors: Applicant self-represented Crown Solicitor's Office (Second Respondent) File Number(s): 2019/390319 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2019] NSWSC 1703 Date of Decision: 2 December 2019 Before: Adamson J File Number(s): 2019/240755 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: The applicant, Stephen Noel Herbert, lives with his family in social housing in Woolloomooloo. On 1 August 2018 his landlord, New South Wales Land and Housing Corporation (the Corporation), issued a termination notice under s 87 of the Residential Tenancies Act 2010 (NSW) for non-payment of rental, asserting he had been in arrears for a period in excess of 14 days. Absent payment of the arrears, he was required to give vacant possession on 28 August 2018. 2. On 19 March 2019 the Civil and Administrative Tribunal ("NCAT") ordered that Mr Herbert's residential tenancy agreement be terminated. Mr Herbert's appeal to the Appeal Panel was dismissed on 11 July 2019. [1] 3. Mr Herbert then appealed from the decision of the Appeal Panel to a judge in the Common Law Division, pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW). That appeal requires leave of the Supreme Court and is limited to a question of law. The appeal was heard by Adamson J on 28 November 2019. On 2 December 2019 Adamson J granted leave to appeal in respect of one ground, but dismissed the appeal. [2] 4. On 11 December 2019 Mr Herbert filed a summons seeking leave to appeal from the judgment of Adamson J. The application for leave to appeal is to be heard by this Court on 28 April 2020, that date having been fixed by the Registrar on 9 March 2020. 5. On 30 March 2020 the applicant advised the Court that he wished to seek an adjournment of the hearing of the leave application. That application being opposed, he was advised to file a notice of motion seeking to vacate the hearing date, which he did on 15 April 2020, although the notice of motion was not served until two days later, namely on Friday, 17 April 2020. Application to vacate hearing date 1. Mr Herbert's application varied somewhat as between his notice of motion, his written submissions in support of the motion and his oral submissions. However, his main focus was on the effect of the COVID-19 pandemic and governmental responses to it. These will be dealt with as the first issue raised below. 2. A second issue concerned a request for a subpoena seeking details in relation to a contract allegedly signed by a representative of the Corporation on 5 December 2017, apparently setting out the terms on which Mr Herbert would remain in the premises, terms which differed from those of the termination notice relied upon by the Corporation. 3. Thirdly, there was reference to the failure of the Corporation's lawyers to file an appearance in the Court below. 4. Finally, as sometimes occurs with litigants in person, there were submissions directed to the behaviour of the legal representatives of the Corporation. Nothing in the material before this Court revealed any unsatisfactory professional conduct in this matter and that complaint may be put to one side. 5. The primary complaint concerning the circumstances arising from the pandemic will be addressed first. Responses to COVID-19 pandemic 1. Mr Herbert believes that the Australian Government has "placed a moratorium on the eviction of tenants, for at least six (6) months". That moratorium is said to be inconsistent with continued pursuit of evictions under the Residential Tenancies Act. There is therefore an inconsistency, he submitted, to which s 109 of the Constitution applies, requiring that Commonwealth law shall prevail. 2. If that argument had substance, it would require the issue of notices to the Commonwealth and State Attorneys under s 78B of the Judiciary Act 1903 (Cth). However, it would not, as Mr Herbert also appeared to believe, necessitate proceedings being brought in the Federal Court; this Court can exercise the relevant federal jurisdiction. There is no need to adjourn for the issue of s 78B notices because the underlying premise of the argument is misconceived: there is no Commonwealth legislation having the effect identified by Mr Herbert. A Government policy does not constitute a Commonwealth law engaging the operation of s 109. 3. A second limb of the submissions was more soundly based. Mr Herbert sought to invoke provisions of State law which sought to address the consequences of the pandemic for tenants. 4. On 25 March 2020 the Governor assented to the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW). The Act commenced on the day of assent. That Act inserted a new Pt 13 in the Residential Tenancies Act, providing power, pursuant to s 229, for the making of regulations "for the purposes of responding to the public health emergency caused by the COVID-19 pandemic". Regulations were in fact promulgated on 15 April 2020 inserting a new Pt 6A "Response to COVID-19 pandemic" in the Residential Tenancies Regulation 2019 (NSW). The regulation provides for a "moratorium period" of six months: reg 41A, moratorium period. The regulation prohibits a landlord from giving a termination notice, applying to the NCAT for an order relating to a termination notice, or otherwise applying to the NCAT for a termination order during the moratorium period, in respect of an "impacted tenant". An "impacted tenant" is a member of a household impacted by the pandemic, a concept defined in reg 41B by reference to loss of employment and reduction in weekly household income. The details are not relevant for present purposes: there was no evidence allowing a finding as that Mr Herbert was an "impacted tenant". In any event, the Corporation seeks to rely upon an order made by NCAT long before the commencement of the moratorium period. Accordingly, the protections given by the regulation are not engaged. 5. Thirdly, Mr Herbert relied, particularly in oral submissions, on the hardship likely to be faced by his family and himself, were he to be evicted from the premises they currently occupy. These factors are unlikely to provide a basis for challenging the judgment in the Common Law Division. Indeed, they would not have been relevant to any question of law sought to be raised in the Division. They may, however, be relevant to the identification of any period during which the execution of a warrant for possession may be stayed. They do not provide a basis for vacating the date fixed for hearing of the leave application in this Court. 6. Although the Tribunal made an order for possession, it is not clear whether a warrant for possession has been issued pursuant to s 121(1) of the Residential Tenancies Act. Counsel for the Corporation suggested that the Corporation would yet need to go back to NCAT to obtain such a warrant before obtaining vacant possession. It would then be a matter for NCAT to determine whether the execution of such a warrant should be stayed for a particular period on discretionary grounds. 7. On the other hand, orders made by Ierace J on 22 August 2019 included an order suspending the execution of "the writ of possession" until further order. The orders made on 2 December 2019 by Adamson J included a dissolution of the stay of execution of the writ of possession granted by Ierace J. There may have been an order made by the Tribunal issuing a warrant for possession, but if so it does not appear in the materials before this Court. 8. If leave to appeal were refused, it may be appropriate for the court dealing with the leave application to address any discretionary question as to the suspension of the execution of any warrant for possession which may have issued and still be in force. Indeed, in the absence of a stay, this factor militates in favour of an early hearing of the leave application so that the current status of any warrant for possession may be resolved. There appears to have been no suspension of execution in place since the order of Adamson J. Issue of subpoena 1. Mr Herbert's notice of motion sought leave to issue a subpoena for material relating to an alleged agreement signed by an employee of the Corporation on 5 December 2017. Leave had been sought from the Registrar on 9 March 2020 and refused. Accordingly, the present motion should be treated as an application to review the decision of the Registrar. 2. There is, however, no reason to doubt the correctness of the decision of the Registrar. Whether there is a document upon which Mr Herbert could rely in response to the notice of termination served on him by the Corporation, gives rise to a factual question which had to be resolved in NCAT. It was not an issue available in the Common Law Division and would not be an issue available on an appeal from the judgment in the Division. Notice of appearance 1. Somewhat curiously, Mr Herbert's notice of motion sought an order that the respondents in this Court file notices of appearance. Even more curiously, the first respondent (the Corporation) stated that it had "appeared" in these proceedings "by filing its response", being a document containing submissions in response to the application for leave to appeal. That document is patently not a notice of appearance; indeed filing such a document constitutes taking a step in the proceedings which, without prior filing of a notice of appearance, cannot be done without leave of the court: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.5. 2. UCPR r 6.11(2), applying generally (and not merely to appeals), is to similar effect. There is an approved form, namely Form 6A. It requires not merely a statement that the respondent appears, but also details about the filing party and his, her or its legal representatives, which will include an address for service of documents. It is, however, true that r 6.9(2) further provides that a defendant who files a defence "is taken to have entered an appearance in the proceedings", a step not likely to be taken in a proceeding commenced by summons. In any event, the appropriate practice is to file an appearance in the usual form. The first respondent conceded that that did not happen in the Common Law Division. 3. The second respondent in this Court is NCAT. Whether it should be a party to an appeal is a separate question. (These are not proceedings by way of judicial review.) On the other hand, it has been joined as a party and has not to have filed a notice of appearance either. If the Corporation seeks to be heard in opposition to a grant of leave, it would be well advised to attend to this situation immediately. NCAT would also be well advised to consider filing the usual submitting appearance, or seek to be removed from the record. 4. This matter has, however, no bearing on the retention of the hearing of the leave application fixed for 28 April 2020. Costs 1. For the reasons set out above, Mr Herbert's notice of motion filed on 15 April 2020 must be dismissed. The Corporation seeks an order for costs; Mr Herbert seeks an order that each party pay his or its own costs of the motion. Given the circumstances which led to the filing of the motion, the better course is to make the costs of the motion the Corporation's costs in the summons proceedings. Orders 1. The Court makes the following orders: 1. Dismiss the applicant's notice of motion filed on 15 April 2020. 2. Order that the costs of the motion be the respondent's costs in the application for leave to appeal. ********** Endnotes 1. Herbert v NSW Land & Housing Corporation [2019] NSWCATAP 173. 2. Herbert v New South Wales Land and Housing Corporation [2019] NSWSC 1703. 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 April 2020