Anagnostou v Leo

NCAT Appeal Panel|2020-12-17

Introduction

The Appellant is a landlord and the Respondent to the appeal is a tenant. Last year the parties entered into a residential tenancy agreement regulated by the Residential Tenancies Act 2010 (NSW). On the 10 November 2020 the Tribunal determined that the Tribunal should decline to determine an application brought by the Appellant as "it seeks to invoke federal jurisdiction of the kind referred to in ss 75 or 76 of the Commonwealth Constitution" .This is the decision from which the appeal is brought, and I will refer to it as the Decision.

The Decision

The Appellant brought an application to the Tribunal seeking to invoke various provisions of the Residential Tenancies Act. One of the orders sought was a termination order by reason that the tenant had allegedly breached the residential tenancy agreement. The Decision contains reasons for declining to determine the application, which may be summarised as follows: 1. At the time of the filing of the application (4 November 2020) the Tribunal was satisfied on the evidence that the Appellant was living in Victoria and has "mostly done so since she moved there in August 2019 when she entered into a one year tenancy with the tenant". 2. The Appellant's oral submission was that she had moved to Victoria temporarily to work for a year, but in March 2020 lost her job due to COVID-19, but has continued to reside in Victoria in premises provided by her employer, even though she has returned to NSW for a period to visit an ill relative. 3. The Tribunal stated: "Although I am satisfied that the landlord intended to return to NSW at some stage in late 2020, when the tenancy ended, the fact remains that when the application was filed she was still residing in Victoria and by the time of the hearing today, she has still not returned to NSW to live." 1. The Respondent lives in NSW, this means that the application concerns two persons "living in different states" and, "as such, the Tribunal does not have jurisdiction to determine the dispute." The Tribunal referred to the High Court Decision in Burns v Corbett [2018] HCA 15.

The Appeal

The Appellant lodged a Notice of Appeal on 24 November 2020. The grounds of the appeal may be summarised as follows: 1. The Appellant stated: "I am not a Victorian resident and was living in NSW when tenancy began. 2. I did visit Melbourne in late February/March whilst I was working to do a delivery but got stuck in lockdown. 3. In the context of submitting that the Decision was not fair and equitable, the Appellant stated: "I have worked in NSW for 30 years but need to travel interstate from time to time to deliver jewellery, unfortunately during March when I travelled to Victoria I got stuck here in lockdown". 1. Also in the context of submitting that the Decision was not fair and equitable the Appellant stated: "I was stranded in factory, I am on a couch with no proper facilities, no kitchen, laundry or proper bathroom." In addition, the Appellant stated: I am a NSW resident who lives in NSW."
The appeal came before me on 11 December 2020 in a call-over list for the purposes of making directions for the preparation of the hearing and the grant of a telephone hearing. The current practice of the Tribunal in relation to appeals is that both the call-overs and the hearing of the appeal are conducted by telephone. In this case I rang both the Appellant and the Respondent at numbers provided, linked their calls together with the result that the parties and the Tribunal could each hear the others.
By the time of the call-over the Respondent had not filed a Reply to Appeal but had filed an email concerning her financial situation and other matters. The content of that document (received 10 December 2020) is not relevant to this decision. 1. The telephone call-over hearing was made difficult by the regular argumentative interjections of the Appellant. At one point both parties engaged in a vigorous debate over my objections and I was forced to discontinue the telephone hearing. I rang them back and the hearing resumed. I mention this conduct only because I think that the interests of both parties would be better served if they had either legal or lay representation to assist them with their respective arguments.
At the conclusion of the call-over I made the following directions: 1. The Respondent is to file and serve submissions on the appeal by email to be received no later than Tuesday 15 December 2020 2. The Appellant may respond by email to the Tribunal and to the Respondent to be received no later than 16 December 2020. 3. By consent the appeal is to be decided on the papers (and a hearing dispensed with) after 16 December 2020.
During the call-over I indicated to the parties that I thought that the Decision may have been made in error and that the appeal could be resolved fairly quickly. I enquired of the Respondent as to whether she wished to make any submissions. She indicated that she did and could do so by Tuesday 15 December. This is the background to the directions referred to above.
Submissions have been received from the Respondent in the form of an email dated 14th December 2020 with attachments. The Respondent says that she believes the Appellant resides in Melbourne and has attached an account from Sydney Water in respect of the subject property. It is addressed to the Appellant at an address in Victoria. Submissions have also been received from the Appellant. She asserts she is a NSW permanent resident, has a NSW drivers licence and gave her address in Earlwood NSW .

Consideration

Appeals from decisions made in the Consumer & Commercial Division of the Tribunal are regulated by s 80 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and also cl 12 sch 4 of the NCAT Act. Essentially this means that an appeal lies as of right on a question of law or with leave on the ground stipulated in cl 12.
In this case it is my view that there has been an error of law and the appeal therefore lies as of right.
It is the case that this Tribunal does not have power to determine disputes between residents of different States of the Commonwealth of Australia. This pronouncement of the law has been recently stated in the High Court in Burns v Corbett [2018] HCA 15 and also in the Court of Appeal of NSW in Attorney General for New South Wales v Gatsby [2010] NSWCA 254.Because the tribunal is not a court of a State for the purposes of the Constitution it does not have the power to decide disputes between residents of different States of Australia.
However, those two cases do not deal with what the expression "residents of different States" means. Earlier decisions of the High Court have done so and there are two relevant cases, namely The Australasian Temperance & General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 and R v Oregan; Ex Parte Oregan (1957) 97 CLR 323. It is also relevant to make reference to the text "Authority to Decide - the Law of Jurisdiction in Australia" by Leeming MJ. At page 222 of that text his Honour dealt with "essential principles" concerning what is called "the diversity jurisdiction". One of the principles stated at page 222 is that a resident is a person who resides permanently in a State. In support of that statement his Honour referred to the two High Court cases referred to above. It is helpful to consider in more detail what is said in those two cases, which I do in the following paragraphs.

The Australasian Temperance case

The essential decision made in this case was that the word "residents" refers to natural persons only and not to "artificial persons or corporations". In the course of considering the matter, their Honours Knox CJ and Gavan Duffy J, considered the meaning of the word "residents". They said that the word "resident" is taken to be a noun substantive rather than the adjectival form of the word "resident". They said that the substantive form retains its original literal meaning as opposed to the adjectival form which is often extended. They went on to say that the meaning of the word in this context refers to a person who resides permanently in a place.
Although Isaacs J was in dissent in relation to whether resident is restricted to natural persons, he nevertheless said that residence in this context involves determining the persons "State membership". It involves identification with one State to the exclusion from similar identification with any other State. He said: " Every Australian is, when all the facts are known, residentially identifiable pre-eminently with some one State, and he is therefore a resident of that State , and of that State alone" for the purposes of the relevant section of the Constitution.
In addition, Higgins J held that the words "resident of a State" points to a more intimate connection with the State than residents in a State.

The Oregan case

In this case Webb J approved the above statements and adopted them. That case concerned the residence of the respondent mother in a custody dispute. His Honour found that the respondent was residing permanently in Melbourne. She had made her home there and obtained employment there having earlier lived in Hobart. She had formed the intention to reside in Melbourne permanently.
These various statements from the High Court would appear to form the basis of the conclusion reached by His Honour Leeming JA in the above text. In short, it is necessary to determine in this case where the appellant permanently resides.
The Decision records the Appellant's oral submission that she had moved to Victoria temporarily to work for a year. There was no evidence to the contrary, and the Respondent has not drawn to my attention any evidence to the contrary. The Decision went on to find that the Tribunal was satisfied that the Appellant intended to return to New South Wales at some stage in late 2020. In my view that evidence and the finding of fact as to the Appellants intention do not establish that the Appellant had a permanent place of residence in Victoria. Rather they establish that the Appellants permanent of residence was NSW.
In the Notice of Appeal the Appellant has stated that she has lived and worked in NSW for more than 30 years. The circumstances of her time in Victoria are explained in the Notice of Appeal (referred to above). It is not clear to me whether these additional facts were known to the Member at first instance or have only come to my attention because of the content of the Notice of Appeal. Nevertheless, in my view, the Decision was in error in determining that the Tribunal had no jurisdiction because "when the application was filed" the Appellant "was still residing in Victoria" and also because the dispute concerns two persons "living in different States". If the correct test is that it is necessary for there to be a finding that the dispute concerns two persons whose permanent place of residence is in different States of Australia, then in my view, the position is that the evidence discloses that the permanent place of residence of both parties is in New South Wales. There was no issue concerning the permanent place of residence of the Respondent. The issue only concerned the permanent place of residence of the Appellant and applying the principles set out in the two High Court decisions it is my view that the Appellant for many years had a permanent place of residence in New South Wales, moved to Victoria temporarily (perhaps through force of circumstances), intended to return and therefore her permanent place of residence remained in New South Wales.
The appeal must therefore be upheld. Given the fact that this is a residential tenancy agreement and there are obligations upon the Tribunal to resolve such disputes as quickly as is reasonable, I will make a direction intended to have the dispute come to a hearing as soon as possible.
I make the following orders: 1. Appeal upheld. 2. The application is remitted to the Consumer & Commercial Division and the Registrar of the Division is requested to make reasonable attempts to list this matter as soon as is reasonable.

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: 17 December 2020

Administrative Tribunal Act 2013(NSW)

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Judgment (7 paragraphs)

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