Allan Smith v RTT & Anor

LOWER COURT Residential Tribunal JURISDICTION : LOWER COURT 02/02456 FILE NUMBER(S) : LOWER COURT Mr D Sheehan JUDICIAL OFFICER :

COUNSEL : Mr A Enright (Second Defendant) Mr A Smith (Plaintiff in person) SOLICITORS : Submitting Appearance (First Defendant)

CATCHWORDS : Appeal decision of Residential Tribunal - screen door LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001 Residential Tenancies Act 19876 Kioa v West (1985) 159 CLR 550 CASES CITED : Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951 The Australian Gaslight Co v Valuer General (1940) 40 SR (NSW) 126 DECISION : (1) The summons is dismissed; (2) The plaintiff is to pay the second defendant's costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30015/2002 - ALLAN SMITH v RESIDENTIAL TRIBUNAL & ANOR

JUDGMENT (Appeal decision of Residential Tribunal; Screen door) 1 MASTER: By summons filed 19 February 2002 the plaintiff seeks firstly, an order that the Department of Housing replace front screen door that Tribunal did not at hearing on 14 February 2002; and secondly, an order that the harassment and intimidation of him by the Department of Housing staff at Maroubra cease forthwith. These orders are sought as a result of an error of law by the Tribunal. The plaintiff relied on his affidavit affirmed 19 February 2002 and his statutory declaration dated 16 May 2002 (Ex A). The Residential Tribunal, the first defendant (the Tribunal), filed a submitting appearance. The Land & Housing Corporation, the second defendant, relied on the affidavits of Michael Callen sworn 26 February 2002, Rodney Land sworn 12 April 2002 and Robert Weeks sworn 16 April 2002 and 3 May 2002. Mr Smith appeared unrepresented. All deponents (with the exception of Mr Callen) were cross examined.

2 Section 65(3)(b) Consumer, Trader and Tenancy Tribunal Act 2001 (the Act) provides that relief can be granted by way of a judgment or order in the nature of prohibition, mandamus, certiorari, and a declaratory judgment or an injunction if in relation to the hearing or declaration of the matter, a party had been denied procedural fairness. 3 Section 67 of the Act allows for an appeal to be made to this court on a question of law. An appeal may only be made with leave of the court. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. The onus lies on the plaintiff to demonstrate that there has been an error of law. Section 67(3) of the Act provides that after deciding the question of the subject of an appeal the court may, unless it affirms the decision of the Tribunal on the question that should have been made by the Tribunal, remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal. 4 At the outset, it is helpful to set out some of the provisions of the Act. The function of the Residential Tribunal is to adjudicate disputes between landlords and tenants. The Tribunal is not constrained by the rigour of the court room. Its objects are to ensure that the Tribunal is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner. The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 27(3)). 5 Evidence must be given on oath or statutory declaration (s 39(1)) but the Tribunal is not bound by the rules or practice of evidence and the Tribunal may inform itself on any matter in such manner as it considers appropriate (s 28(2)). The Tribunal must conform to the rules of natural justice, but broadly speaking, has control of and responsibility for its own procedures (s 28(1) and (2)). Its business is conducted in public (s 33). Normally a party to the proceedings has carriage of his or her own case and is not entitled to be legally represented (s 36(1)). The Tribunal has the power to award costs (s 53), but usually each party bears its own costs. Pursuant to s 54 of the Act the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal has a power to correct its decision (s 50) and the registrar can issue a certificate which operates as a judgment (s 51). 6 The grounds of appeal are set out in the plaintiff's affidavit affirmed 19 February 2002. They read:

(1) "I lodged an immediate appeal, which was rejected, after I was told by another tribunal Member that Mr Sheehan was very upset that I had lodged an appeal, to which I replied Let him (Mr Sheehan) get upset, He Broke the Law. He was Wrong.

(2) On these grounds I seek an urgent RE-HEARING which required HAEMA. To attend un represented . I also seek to Suspend imedially (sic) the order Made by Mr SHEEHAN, as he has shown a great deal of incompetance (sic) and Lack of Respect for tribunal Regulations." 7 To this I add the alleged errors of law noted by Dunford J on 19 March 2002. They are:

(3) The Tribunal took into account an irrelevant consideration namely a building code standard.

(4) The Tribunal took evidence which was not at a formal hearing. 8 Midway through the submissions in this matter in this court the plaintiff submitted that he was not given a notice from the Tribunal which stipulated whether the hearing was to be informal or formal. According to the plaintiff, if the hearing was a formal one he needed to know so that he could call witnesses such as "Haema". Leaving aside the lateness of raising this matter, as an error of law the Tribunal's letter in relation to the hearing was not placed in evidence and it is not known what information, if any, the plaintiff was given in relation to the hearing. As he attended the hearing, he had been advised when it was to take place. Nor do the provisions of the Act refer to formal and informal hearings. This submission fails. 9 The second defendant leases premises at 59-1075 Anzac Parade Maroubra to the plaintiff. On 23 January 2002 the plaintiff filed an application at the Tribunal seeking orders that the second defendant replace the security door. There were other orders sought but these matters were resolved between the parties and did not require adjudication at the Tribunal.

Whether the Tribunal took evidence which was not at a formal hearing - denial of natural justice or procedural fairness 10 In relation to natural justice, Professor S A de Smith, Judicial Review of Administrative Act, 2nd ed., pp 180-181 has stated: "Natural justice generally required that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position: (a) to make representations on their own behalf; or (b) to appear at a hearing or inquiry (if one is to be held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet." 11 In Kioa v West (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing such as to give it a reasonable opportunity to meet that case and to advance its own. These statements are similar to those expressed by Professor de Smith and referred to earlier. Brennan J (as he then was) at 628 stated: "A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interest which the repository of the power proposes to take into account in deciding upon its exercise." 12 In relation to procedural fairness, Mason J stated in Kioa that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case (pp 454 and 455). 13 In Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951 Grove J stated at para 25: "There is ample authority that procedural fairness is denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequate opportunity to prepare or present a case: Sullivan v Department of Transport (1978) 20 ALR 323; Opitz v Repatriation Commission (1991) 29 FCR 50; Humphrey v Wills (1989) VR 439." 14 Mr Land, team leader, Mr Weeks, an advocate employed by the second defendant, and Mr Fornasier, a technical officer, attended the hearing on behalf of the second defendant. The second defendant's evidence as to what occurred at the Tribunal prior to the hearing is most fully covered by Robert Weeks. 15 Mr Weeks deposed that he spoke to Mr Connelly, Tribunal Member, prior to entering the hearing room where Mr Sheehan was to hear the matter. This short conversation with Mr Connelly occurred in a conference conciliation room which is located down the hall from the actual Tribunal hearing room. The conversation with Mr Connelly was brief. Mr Weeks was aware that Mr Connelly had conducted the conciliation conference. Mr Weeks cannot recall where the plaintiff was when he had this short conversation with Mr Connelly. 16 According to Mr Weeks a conciliation conference takes place in most proceedings before the Tribunal with a view to seeing whether the matters can be settled before hearing takes place. The conciliation generally takes place in rooms set aside for such purpose and those rooms are on the same floor as the actual Tribunal hearing room. There is no set procedure as to how the conciliation conferences take place. Sometimes the conciliator and both parties are in the room at the same time and on other occasions the conciliator may move from room to room. There is no set routine. The presiding member Mr Sheehan did not in any way participate in any part of the conciliation process. A Member who is designated to hear a matter never takes part in the conciliation process, as the process is confidential. 17 The plaintiff's evidence differs from the second defendant's witnesses' in that he says that there was an earlier attempt at conciliation before a female conciliator and then a second conciliation with Mr Connelly. The earlier conciliation conference is denied by the second defendants witnesses. In any event it does not matter because even if there was an earlier attempt at conciliation, it was not carried out by the Tribunal Member that heard the dispute. Thus there was at least one attempt to resolve the matter just prior to the hearing. The conciliation took place before a male conciliator. The conciliator was not the Tribunal Member who conducted the hearing. The Tribunal did not take evidence other than at the hearing. This submission fails. 18 The proceedings were then called before Member Mr D Sheehan for hearing. The plaintiff admitted that at the hearing he gave evidence and was cross examined and that the defendant's witness Mr Fornasier gave evidence. There was evidence before the Tribunal that during the sign up of the lease Mr Smith explained that there was a security door placed when he viewed the property but that it had been removed. Mr Fornasier a senior client officer (technical) had removed the door under fire safety regulations. Thus when the plaintiff signed the lease there was no security door. The plaintiff admitted in cross examination that one of the reasons he was given for the removal of the door was that of safety. 19 After the hearing the plaintiff has obtained a letter from Planning NSW dated 15 May 2002 (Ex B) in which Alan Host, Team Leader, Building Codes Development and Reform Unit states: "… It is the Department's opinion that the BCA [Building Code of Australia] does not prohibit the fitting of such a door in the circumstances described by you. Part D2 of the BCA regulates, among other things, the swing of doors (Clause D2.20) and the operation of door latches (Clause D2.21). It is this Department's view that neither of these provisions apply to doors at the entrances to, or inside, residential units such as yours." 20 This letter was not before the Tribunal Member. It should not be considered here. The plaintiff's evidence is that at the time of the hearing he did not know whether BCA applied. 21 After the Tribunal hearing the plaintiff also obtained a letter from D C Sanderson, Superintendent, Commander Monaro LC Queanbeyan dated 27 May 2002 (Ex C) wherein the Superintendent Commander confirmed that he had requested additional security in the form of a security door to be added to Mr Smith's unit because he (Mr Smith) had developed the perception that he may be in danger of retribution from crime figures. Like the letter from Planning NSW, this letter was not before the Tribunal Member and should not be considered here. However the Tribunal Member makes reference to the plaintiff's safety so this issue was raised at the hearing. 22 Also at the hearing before the Tribunal Member it was common ground that approximately half the unit holders within this flat complex in which the plaintiff resides have installed screen doors to the front door of their premises. The department says that it has not itself installed any of these screen doors. The defendant's evidence is that it has not consented to such installation and due to the Building Code of Australia standards as to fire safety the department has over a period of time when any of these units become vacant removed any screen door attached to the premises. Mr Smith disputes this. His evidence is that the unit holders had obtained verbal permission to affix their screen doors. As previously stated the plaintiff submitted that during the hearing the Tribunal Member said that he did not fully understand D2.20. 23 After hearing evidence and submissions from both parties the Tribunal Member gave his reasons for dismissing the application. They are: "1. Having considered the material place before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established. 2. The Tribunal notes the application for other orders in relation to repairs is withdrawn, as the applicant is satisfied as to the landlord's steps, which have been and will be taken. 24 Member Sheehan made the following findings: "1. The contested issue was the re-installation of the screen door. 2. The Tribunal determined that it was not appropriate in all the circumstances to compel the landlord to reinstall the screen door, even though there may be issues of the applicants personal safety involved. 3. The Tribunal took into consideration, in the main, that (on the applicant's measurements as given in evidence) there would be a maximum of 540mm between his open screen door and the stairwell. 4. The Tribunal considered that this width would more than likely not allow two persons at a time to pass, thus constituting a potential access hazard in the event of fire. 5. The Tribunal treated the BCA extracts produced as guidelines only, as their currency was not proved (and was challenged). 6. The Tribunal noted with some concern that the BCA extracts produced mean that the other 860mm doors in the premises also infringe the BCA requirements and the Tribunal also notes that the main door when open could be a safety risk to the applicant, when exiting his premises. The Tribunal notes however the undertaking offered by the landlord to review all safety aspects in the adjacent common area." 25 In relation to order (1), it seems that the plaintiff's application was made pursuant to s 16(2)(a)(ii) of the Residential Tenancies Act 1987. Under this section the Tribunal may make an order that requires an action in performance of the agreement. The Tribunal Member having considered all the material before him, was not satisfied that grounds required to make an order that the screen door be replaced, had been established.

Whether the building code was an irrelevant consideration which amounted to an error of law 26 In The Australian Gaslight Co. v Valuer General (1940) 40 SR (NSW) 126 (at 137 & 138) the Court of Appeal define what constitutes an error of law. It can be summarised as follows:

(1) The question what is the meaning of an ordinary English word or phrase as used in the statute is one of fact not law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence; although evidence is receivable as to the meaning of technical terms; and the meaning of a technical term is a question of law.

(2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact.

(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding and there is evidence capable of supporting its inferences.

(a) if there is no evidence to support its inferences, or

(b) if the facts inferred by it and supported by the evidence are incapable of justifying the finding of fact based upon those inferences, or

(c) if it has misdirected itself in law. 27 Returning to the Tribunal Member's reasons, he stated that firstly that it was not appropriate in all the circumstances to compel the landlord to reinstall the screen door, even though there may be issues of the applicant's personal safety involved; and secondly, he had taken into consideration, in the main, that (on the applicant's measurements as given in evidence) there would be a maximum of 540mm between his open screen door and the stairwell. The Tribunal treated the BCA extracts as guidelines only. The critical reason for disallowing the installation of the screen door was that that (on the applicant's measurements as given in evidence) there would be a maximum of 540mm between his open screen door and the stairwell. The Tribunal Member was entitled to come to the conclusion on the evidence placed before him. There is no error of law. There was no denial of natural justice or procedural fairness at either the conciliation conference or the hearing. The plaintiff's claims fail. The summons is dismissed. 28 Costs are discretionary. Normally costs follow the event. As the plaintiff was unsuccessful he is to pay the second defendant's costs. 29 The court orders:

(2) The plaintiff is to pay the second defendant's costs. **********

Last Modified: 06/18/2002 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.