Bott v NSW Land and Housing Corporation

The evidentiary material and historical background

1. There was tendered into evidence on behalf of the applicant an affidavit which he had sworn which contained a number of annexures. The affidavit essentially set out the history of the several matters which have given rise to these proceedings, including a reference to a number of proceedings before this Tribunal. In addition, the applicant gave oral evidence and was cross examined. An affidavit of an officer of the respondent was tendered into evidence on behalf of the respondent and he also gave oral evidence and was cross examined. I shall refer to this evidentiary material where relevant in my consideration of these proceedings.
2. The applicant had moved into the premises on or around 3 May 2004, and notified the respondent shortly thereafter that there was a water leak in the room in which the toilet was located which he suspected was a result of damage on the roof of the building. The applicant commenced proceedings before the then Consumer, Trader and Tenancy Tribunal in 2009 arising out of the failure of the respondent to have the water leak rectified. Consent orders were made on 24 August 2009 noting that the respondent agreed to pay the applicant the sum of $5000 representing "both economic and non-economic loss suffered as a result of the landlord's failure to repair a water leak and repair facilities affected by the same water leak between 28 December 2008 and 17 March 2009."
3. The applicant again brought proceedings before that Tribunal in 2009 claiming compensation for economic and non-economic loss between May 2004 and 28 December 2008 resulting from damage sustained by the same water leak. This application was dismissed by order made on 17 June 2010. The reasons for dismissal, in summary terms were based on the fact that the previous settlement covered in part the period which was the subject of this claim, and relying also on Anshun estoppel.
4. There were further proceedings, this time before this Tribunal in 2016. On 20 October 2016 in matter SH 16/16880, the respondent consented to orders that on or before 18 November 2016 it would carry out, in a proper and workmanlike manner the following: (a) replace the door and doorframe (b) conduct an inspection of premises to ascertain whether there is a water leak and conduct any necessary maintenance work for the leak.
5. There is in evidence a series of email communications between the applicant and a representative of the respondent. These commence on 7 December 2016 when the applicant expressed concern about the state of the door because falling grout was blocking it from opening. He received a response to the effect that a contractor had endeavoured to contact him on a number of occasions without success. The respondent replied on 9 December 2016 that he had only received one call from a contractor which was the previous day and he had been asked to waited home from 9 am till 2 pm. At 4:17 pm he was still at home and nobody had attended. The applicant reported back that he had been informed by the contractor that someone would attend to the door after Christmas, conceding that there had been a failure to attend on three previous occasions.
6. The applicant revived earlier proceedings before this Tribunal in the same matter as previously, being file SH 16/16880. On this occasion he sought reimbursement for the cost of urgent repairs which he had undertaken consequent upon a break-in sustained to the premises and for the loss of certain items which were stolen. The Tribunal, in a decision published on 3 March 2017 dismissed the claim for reimbursement for the cost of urgent repairs because, essentially, the applicant had failed to obtain the consent of the respondent and dismissed the claim arising out of the loss of the stolen items because they were not owned by the applicant. However, the Tribunal confirmed the consent order previously made on 20 October 2016 concerning the replacement of the door and doorframe, and the conduct of an inspection of premises with regard to the water leak.
7. The applicant commenced fresh proceedings before the Tribunal in 2017 under file number SH 17/11245. Written reasons published on 24 March 2017 indicate that notwithstanding proof of service of the application upon the respondent, there was no appearance of the respondent and the matter proceeded ex parte. The Tribunal member found that as at that date the respondent had failed to comply with the orders made by the Tribunal on 20 October 2016 for the replacement of the door and doorframe and for the investigation of the water leak and for the conduct of any necessary maintenance work. The Member noted that even though the respondent had attempted to install a new door and frame the previous week, this work had not been completed because there were large gaps between the frame and the wall, the door was of incorrect length and the door and frames had not been painted. Furthermore, the Member accepted the evidence of the applicant that no investigative work had been carried out by the respondent concerning the leak, nor any maintenance. There was a finding that water continued "to leak from the sewer pipe cover and to cause mould and paint peeling on the walls in the toilet and the adjacent bedroom."
8. The Tribunal Member expressed concern that the respondent had failed to comply with previous orders and had failed to attend the hearing to explain the reasons for non-compliance. He granted an application brought by the applicant as part of the proceedings seeking a rent reduction of 20% commencing on 18 November 2016 when the work was originally ordered to be completed for a maximum period of one year, being all that was allowed under the Residential Tenancies Act. In addition, the Member noted that the rental of $136 per week had been reduced to $100 per week because of a change in the number of occupants. He made two rent reduction orders to reflect that change. The Member also found that the security door should be replaced as part of the obligations of the respondent to keep the premises reasonably maintained. Finally, the Member noted that the applicant had sought an order in the proceedings that the respondent was in contempt because of its failure to comply with the orders of 20 October 2016. The Member said he had no power as constituted to deal with that application and that he would refer it to another Tribunal Member.
9. The applicant forwarded an email to Mr Paul White, an Advocate/Investigator employed by the Department of Family and Community Services Housing NSW on 2 May 2017. This email noted that a supervisor from a contractor had attended his home on 18 April to measure for a screen, but said that the entire doorframe had to be removed again as it had not been installed properly. Another contractor attended on 20 April, but the applicant was not home. He said that he would come back the following day but did not. A painter contacted the applicant on 26 April to attend to paint the door, but the head contractor cancelled that job because the entire door and frame had not yet been replaced. The applicant was concerned that no work had been commenced as agreed, and that the work might not be attended to. On the same day Mr White forwarded an email to representatives of Land and Housing Corporation attaching the applicant's email and asking that the matter be given priority in view of the then current pending appeal before this Tribunal, "on-going rent abatements and with the suggestion of contempt proceedings pending." Mr White further said; "It would appear from my experience of the matter (commencing in Feb 2016 or thereabouts) that the co-ordination/appropriateness and skill/ability of contractors has been an issue throughout the matter. Despite clear instructions on what needs to occur to remedy the problem, contractors seem to have turned up with incorrect directions, out of turn or without the necessary skills."
10. Internal email communications within the respondent's organisation dated 4 May 2017 indicate that the "internal painting is being done right now and concluded today" and that there had been an inspection of the water leak on 27 April, 2017, a pressure test had been conducted to hot and cold water services and no leak was recorded. A further email that day indicated that the Land and Housing Corporation does not install screen doors to units, and that the order made by this Tribunal would need to be resolved at Mr White's level.
11. As at 8 May,2017 the applicant advised Mr White that someone had been on the roof to look at the source of the leak "for the first time in the13 year history" but he had not been given any information about the outcome. The applicant noted that the door had been installed but it was between 30 mm and 40 mm too short. As at 24 May, internal emails within the respondent and associated organisations seem to indicate that all of the work had been carried out satisfactorily and that the door was fire compliant.
12. The applicant said that he attended on the Maroubra office of the respondent on 20 October,2017 and received a copy of his current rent ledger. This ledger indicates that on 29 September 2017 two amounts, respectively of $969 and $229.45 were credited to his account. It was common ground between the parties that these credits represented amounts payable by the respondent to the applicant pursuant to the rent reduction orders made by the Tribunal. However, although the applicant's account was then substantially in credit, regular rental payments continued to be received by the respondent, his account remained in credit and no attempt was made by the respondent to pay out these funds to him. Indeed, the applicant said that he asked for a cheque for payment of these two amounts but was told that it was against the respondent's policy to pay the monies out and they would remain in his account until the tenancy came to an end.
13. The applicant was highly critical of the respondent's conduct with respect to the non-payment to him of the amounts representing the rental reductions. He asserted that these amounts had not in fact been paid to him but remained as a credit in his account, the benefit of which was reflected in the funds of the respondent. He said that he would have appreciated the payment of these monies to assist his own cash flow.
14. In his affidavit, the applicant said that a plumber attended on his apartment on 22 September 2017 to undertake a pressure test, but did not understand why he was to carry this out. The plumber explained that if he undertook a pressure test of a sewer pipe, any leak would cause what he said the plumber described as "a shit shower". The plumber told him that a "leak down" test would need to be carried out. The plumber left that day without carrying out any work.
15. The applicant said that on 18 October,2017 the front door and frame were replaced, and that the contractor told him that this had been ordered by the respondent on 14 April 2017. Later that day a supervisor from the contractor attempted to "stage a photograph of a security door in situ" because he had been ordered to do this. The applicant refused to allow him to do so.
16. In his evidence, the applicant said that the front door was not finally fixed until 18 October 2017. However, although a screen door has been installed, the applicant said that this was not a security door and had one latch only.
17. In describing the water leak, the applicant said that there was a sewer pipe installed in the corner of the room in which the toilet is situated and which is encased. That sewer pipe also services the two apartments which are above his. Photographs which became evidence in the proceedings indicate that there are water stains in the ceiling of the room housing the toilet and in the bedroom which adjoins that room and that they are mouldy. He thought that because these leaks became worse after rain, that they may have been caused by rain water entering the premises from the roof and travelling down alongside the sewer pipe within the encasing.
18. The applicant said that some work had recently been completed on the roof which hopefully will preclude water entering into the area around the sewer pipe and will fix the chronic leak. He said that no one has attended his premises to inspect the current state of the area which has been affected by the leak. Furthermore, no effort has been made to rectify the damage to the walls or to replace the enclosure around the sewer pipe which is affected by water damage.
19. Evidence was given in the proceedings on behalf of the respondent by Mr Paul White. In an affidavit tendered as evidence in the proceedings Mr White said; 1. the repairs to the doorframe and replacement of the solid core door were completed on or about 18 October 2017 2. a new screen door was fitted at the same time 3. the rent abatement ordered by the Tribunal on 24 March 2017 was applied to the accounts of the applicant on or about 29 September, 2017 and a further abatement was applied on or about 23 October, 2017, extending the abatement to 18 October, 2017 being the date on which the door and doorframe repairs were completed 4. following an inspection, "repairs to water service internal" were completed on 18 September 2017.
20. In the course of giving oral evidence Mr White was unable to identify whether the screen door was a security door because he had only seen a photograph of it and had only given it a cursory glance. He was unaware whether it had a locking arrangement.
21. In terms of the rental abatement, Mr White understood that the applicant was entitled to request a refund of any amount standing to his credit, but was unaware of the current policy adopted by the respondent concerning refunds because he had not been involved in this part of the business for some years.
22. In terms of the water leak problem, Mr White was unaware of what repairs were carried out and he had reproduced in his affidavit verbatim wording which had been furnished to him in an email.
23. I had available to me copies of the orders made by this Tribunal the breach of which form the basis of these proceedings. The respondent did not challenge in any way the nature and form of those orders, nor their validity. Accordingly, I proceed on the basis that no contention arises in these proceedings with respect to them. Nor was any suggestion made by or on behalf of the respondent that the provisions of the orders were unclear, ambiguous or framed in such a way that the respondent was in any doubt concerning the obligations which were imposed upon it by those orders.

The legislative framework

1. These proceedings are governed by Section 73 of the Civil and Administrative Tribunal 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.
2. As is obvious, the relevant provision is subsection (5).

The relevant principles

1. There are a number of authorities which will govern the approach to be adopted in the resolution of these proceedings.
2. It should first be observed that I am concerned only with the question of whether or not, by reason of the allegations of contempt against the respondent made by the applicant, that matter should be referred to the Supreme Court for determination by that Court. An alternative question may arguably arise under sec 73(5) about whether I have formed any independent view that the respondent is guilty of contempt of the Tribunal. Because of the view which I take concerning the disposition of these proceedings it is not necessary that I consider this question further. Arguably, if I were to do so I would need to be satisfied that in my view it appears that the respondent is guilty of contempt. Arguably, also, there may be a difference in approach between what is required to be considered and determined depending upon whether the question is one of what "appears" to the Tribunal "on its own view" or the question concerns an allegation that the respondent is guilty of contempt. In either case, this Tribunal has a discretion under section 73 (5) whether to refer the matter to the Supreme Court, and the exercise of that discretion must involve a consideration of relevant matters.
3. As I have formed the view that I am able to dispose of these proceedings by having regard only to the allegations of contempt made by the applicant, it is only necessary to consider such matters as are relevant to the exercise of discretion whether to make the relevant referral. Fortunately, guidance is provided as to the appropriate in principle approach by observations of Basten JA (Sackville AJA agreeing) in the NSW Court of Appeal in Mohareb v Palmer [2017] NSWCA 281. The fundamental question to be determined is whether the conduct which is the subject of the allegations is "capable of amounting to contempt." The determination of this question involves a consideration of the relevant factual matters coupled with a requirement to afford the respondent an opportunity to address the Tribunal about whether or not the matter should be referred to the Supreme Court. I shall proceed accordingly.
4. Many of the cases involving contempt have focused on the civil/criminal contempt dichotomy and the relevant onus of proof. The distinction between the two occupied the attention of the High Court of Australia, in AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46. In determining this issue, the Court examined the criteria which divided one class of contempt from the other. This caused the Court to consider the nature of the conduct in the context of whether any disobedience to a court order was criminal if the primary purpose was to vindicate the authority of the court or civil if the primary purpose was to vindicate the rights of an individual party to litigation. This in turn caused the Court to consider "the distinction between casual, accidental and unintentional disobedience on the one hand and wilful disobedience on the other …." (at [21]).
5. The characterisation of the admitted disobedience by the respondent of the several orders of this Tribunal which is at the heart of these proceedings involves a consideration of whether and to what extent the disobedience may have been, on the one hand, casual, accidental or unintentional, or wilful. For this reason, the observations of the plurality in Mudginberri are of assistance.
6. In their joint judgement, Gibbs CJ, Mason, Wilson and Deane JJ, after discussing the imposition of fines in the context of civil contempt in authorities dating back to the 16th and 17th Centuries, said; 22. In more recent times a strong stream of English and Australian authority has emerged to support the imposition of fines for disobedience to orders in circumstances where the disobedience is wilful (Phonographic Performance; British Motor Trade Association v. Hewitt, reported only in "The Times", 1 June 1951; Multiform Displays Ld v. Whitmarley Displays Ld (1957) RPC 137; Steiner Products Ltd v. Willy Steiner Ltd (1966) 1 WLR 986; (1966) 2 All ER 387; In re Mileage Conference Group of the Tyre Manufacturers' Conference Ltd's Agreement (1966) 1 WLR 1137; (1966) 2 All ER 849; Heatons Transport (St Helens) Ltd v. Transport and General Workers' Union (1973) AC 15; Coonan & Denlay Pty Ltd v. Superstar Australia Pty Ltd (No. 2) [1981] FCA 197; (1981) 57 FLR 118, affirmed on other grounds [1982] FCA 190; (1982) 65 FLR 432; Flamingo Park Pty Ltd v. Dolly Dolly Creation Pty Ltd [1985] FCA 123; (1985) 59 ALR 247). In Phonographic Performance Cross J. held, at pp 198-199, that where there has been wilful disobedience to an order of the court and a measure of contumacy on the part of the defendants, then civil contempt has a dual character, namely, (a) as between the parties to the proceedings, the element of civil execution and (b) as between the party in default and the state, a penal or disciplinary jurisdiction to be exercised by the court in the public interest. In such a case, at least, "(c)ivil contempt bears much the same character as criminal contempt." His Lordship held that the "very great casualness" of the defendants in complying with the order amounted to "wilful disobedience", though it did not involve a sufficient "measure of contumacy" to warrant the imposition of a fine. His Lordship asserted, at p.200, that there was a lack of logic in saying that in a case of civil contempt "the court has no alternative to sending the defendants to prison", concluding, at p.201, that "the court must have power, in the case of a civil contempt, to impose the lesser penalty of a fine". 23. In Morgan Windeyer J. considered, at pp.499-500, that this conclusion was inconsistent with the comments of Lord Lindley in Seaward v. Paterson and Lord Atkinson in Scott, at pp 497-500. His Honour did not consider the English decisions in Hewitt and Multiform to have authoritative value because the defendants did not contest their liability to a fine, perhaps because had they done so it might have ensured their imprisonment. His Honour pointed out, at pp.501-502, that cases in the United States supported the view that there was no power to fine for civil contempt, and such cases as there were in which fines were imposed for civil contempt were explicable on the basis that they were cases in which the fine was payable to the injured party to make good his actual loss, the fine corresponding to assessment of compensation or an account of profits (see United States v. United Mine Workers of America [1947] USSC 40; (1947) 330 US 258, at pp 303-304; Gompers v. Bucks Stove & Range Co. [1911] USSC 79; (1911) 221 US 418, at p 449; Leman v. Krentler-Arnold Hinge Last Co. [1932] USSC 26; (1932) 284 US 448). Subsequently in his judgment (at pp 502-503), Windeyer J. indicated a view that wilful conduct would not constitute contempt unless it was also "contumacious". In support of that view, his Honour cited (at p 503) Fairclough v. Manchester Ship Canal Co. (1897) WN 7; 41 SJ 225 and Worthington v. Ad-Lib Club Ltd (1965) Ch 236. 24. However, the position has been illuminated by the decisions since Morgan. It can now be seen that Cross J.'s interpretation in Phonographic Performance of the word "wilfully" in Ord.42, r.31 of the Rules of the Supreme Court, 1883 accorded with a proper understanding of what had been said by the English Court of Appeal in Fairclough where the Court contrasted "casual, or accidental and unintentional disobedience" with what was required in a case where "it is sought to commit a private individual to prison for contempt" or "to sequestrate the property of a company upon the ground of disobedience" (see, for example, Steiner, at pp.991-992; p.390 of All E.R.; Mileage Conference, at pp.1161-1162; pp.861-862 of All E.R.; and Flamingo, at p.260). In Steiner Stamp J. imposed a fine upon the defendants as punishment for a contempt constituted by breach of an undertaking to the court in a case which was not one which it was "possible to regard as an obstinate disregard" of the undertaking but which was "simply a case of a failure by the company, for no excuse whatever, to carry out the terms of its undertaking" (at p.992; p.390 of All E.R.). In the course of his judgment, Stamp J. pointed out (at pp.991-992; p.390 of All E.R.) that the Court of Appeal in Fairclough, in expressing the view that it was necessary, in such cases, that the court's "order has been contumaciously disregarded", was using the word "contumaciously" in the narrow sense of "wilfully". Stamp J. expressed the conclusion, in support of which he cited the judgments of Chitty J. in Attorney-General at the Relation of the Leyton (Essex) Urban District Council v. Walthamstow Urban District Council (1895) 11 Times LR 533 and Warrington J. in Stancomb v. Trowbridge Urban District Council (1910) 2 Ch 190, that any "disobedience which was worse than casual, accidental or unintentional must be regarded as wilful". His Lordship had earlier indicated that, if the effect of the decision of Stirling J. in Worthington was that "nothing short of stubborn opposition to the terms of an order or undertaking amounted to wilful disobedience so as to be punishable by proceedings for attachment", he was not prepared to follow it. In that regard, it is of interest to note that in Mileage Conference (at p.1162; pp.861-862 of All E.R.) the members of the Restrictive Practices Court, who included Megaw J. as President and McVeigh L.J., suggested that the approach of Stirling J. in Worthington, which they rejected, had resulted from the fact that the only report of Fairclough which had been cited to Stirling J. had been "the abbreviated eight-line report in the Weekly Notes, and not the fuller and better report in the Solicitors Journal" and that Windeyer J., in Morgan, had likewise referred only to the report of Fairclough in the Weekly Notes when citing that case and Worthington in support of the proposition that conduct which was "wilful, but not contumacious", was not punishable by fine or sequestration. In Mileage Conference, the members of the Restrictive Practices Court (at p.1162; p.862 of All E.R.) accepted as correct the view of the law expressed by Warrington J. in Stancomb (at p.194), namely, that it is no answer to proceedings for contempt "to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order". Thus, it would suffice that the relevant act or omission was wilful even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was "through carelessness, neglect, or even in dereliction of his duty" (per Warrington J. in Stancomb, at p.194). In Mileage Conference itself, substantial fines were imposed on companies for contempt by breach of undertaking which was not merely non-contumacious but was committed reasonably on legal advice. 25. The correctness of the approach outlined in the preceding paragraph was endorsed by the House of Lords in Heatons Transport, at p.109; their Lordships explicitly citing Steiner and Mileage Conference as precedents for the imposition of a fine in a case of disobedience to an order which is more than casual, accidental or unintentional. This endorsement was evidently based on the reasoning in the decisions to which we have referred, including an appreciation of the unsatisfactory consequences which would flow from the adoption of the view that there is no power to fine in such cases. To those reasons we would add the comment that lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. In our view the reasons supporting the recent decisions are compelling and they should be accepted by this Court. It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional. It is immaterial that the existence of the power to impose a fine for wilful disobedience to a court order may not have been explicitly recognized in 1903.
7. Accordingly, in considering the conduct of the respondent it is appropriate to determine whether it is a "deliberate commission or omission which is in breach of an ... order (which will thereby)… constitute … wilful disobedience unless it be casual, accidental or unintentional." "Deliberate" where used in this context does not reflect conduct where there is a direct intention to disobey an order. It will include conduct where the respondent, being aware of it, had "no direct intention to disobey the order". Significantly for the purpose of these proceedings, the conduct will remain characterised as wilful "even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was "through carelessness, neglect, or even in dereliction of his duty".
8. The High Court of Australia revisited the civil/criminal contempt dichotomy in Witham v Holloway [1995] HCA 3. It is not necessary that I refer to the judgements in those proceedings at this stage, save to note that the joint judgement of Brennan, Deane, Toohey and Gaudron JJ applied Mudginberri and emphasised that "the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests."

Factual findings

1. 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.
2. 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.
3. 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.
4. 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.

Is the respondent amenable to contempt proceedings?

1. The respondent submitted that it was not amenable to any contempt order that the Supreme Court might impose because it was entitled to Crown immunity from suit. The starting point for this submission was the provisions of the Housing Act (NSW) 2001 which established the respondent. By section 6 (4) of that Act the respondent was said, for the purposes of any Act, to be a statutory body representing the Crown. Under the Act, the respondent is given very wide powers to enter into a variety of commercial transactions associated with its provision of assist assisted housing. It is also given the right to prosecute offences under the Act.
2. By section 13A of the Interpretation Act (NSW) 1987, if there is a provision in an Act that a statutory body represents the Crown, then that body "has the status, privileges and immunities of the Crown. The respondent submitted, and I accept, that there is nothing contained in the Housing Act which would indicate that there was any intention to displace section 13A of the Interpretation Act.
3. The respondent next referred to the provisions of the Crown Proceedings Act 1988, section 5 of which enables the Crown to be sued. It is in the following terms; 5 CROWN MAY BE SUED (1) Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title "State of New South Wales" in any competent court. (2) Civil proceedings against the Crown shall be commenced in the same way, and the proceedings and rights of the parties in the case shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side, and shall bear interest, as in an ordinary case between subject and subject.
4. "Civil proceedings" and "Crown" are defined in section 3 as follows; "Civil proceedings" includes civil proceedings at law or in equity, and also includes proceedings by way of preliminary discovery, cross-claim, counterclaim, cross-action, set-off, third-party claim and interpleader. "Crown" means the Crown in right of New South Wales, and includes: (a) the Government of New South Wales, and (b) a Minister of the Crown in right of New South Wales, and (c) a statutory corporation, or other body, representing the Crown in right of New South Wales.
5. There can be no doubt that, by reason of the provisions of the Housing Act that the respondent is a statutory Corporation representing the Crown in right of New South Wales. I note also that the definition of "civil proceedings" is inclusive, and is capable of comprehending any proceedings which may be characterised as civil proceedings at common law.
6. The respondent submitted that any proceedings for contempt which might be initiated by the Supreme Court would, on authority, be criminal proceedings. Such proceedings would not fall within section 5 of the Crown Proceedings Act, and would therefore fall within the well-known principle of Crown immunity from suit. An example of the manner in which the exemption from criminal proceedings is applied is provided by the decision of the High Court of Australia in State Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32. Those proceedings considered whether or not the State Authorities Superannuation Board, a statutory Corporation representing the Crown in New South Wales was amenable to the payment of Western Australian stamp duty on an instrument by which it acquired property in Western Australia.
7. In a joint judgement, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, in discussing the application of the legislation said; In any event, by the exemptions which it grants in favour of the Crown, the Stamp Act manifests a clear intention that the Crown should be otherwise bound by its provisions, save to the extent that it creates a criminal offence in relation to the non-payment of duty, a matter to which we shall turn shortly. It is now settled by Bropho v Western Australia[13] that the presumption that a statute is not intended to bind the Crown does not prevail against an intention to the contrary, notwithstanding that it cannot be said that the intention is "manifest from the very terms" of the statute or that the purpose of the statute would be "wholly frustrated"[14]. If a legislative intent that the Crown should be bound does appear from the provisions of a statute then it should be given effect. Apart from the specific exemptions provided, and to a large extent because of them, such an intent appears, in our view, from the provisions of the Stamp Act. Since it is apparent that the Stamp Act was not drafted in reliance upon the strict rule of construction which was applied before the decision in Bropho, there is no difficulty in approaching the construction of the Act in the more flexible manner laid down in that case. Different considerations apply in respect of the offence created by s 39(1a) of the Stamp Act. That offence occurs when there is a failure to present an instrument for stamping or to pay the duty chargeable on it within the requisite period. An intention that the Crown should not be bound by that provision is manifested, not by the application of a presumption of the kind discussed in Bropho, but by a different presumption based upon the inherent unlikelihood that the legislature should seek to render the Crown liable to a criminal penalty. As Dixon J said in Cain v Doyle[15], there is: "the strongest presumption against attaching to a statutory provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature. It is opposed to all our conceptions, constitutional, legal and historical. Conceptions of this nature are, of course, not immutable and we should beware of giving effect to the strong presumption in their favour in the face of some clear expression of a valid intention to infringe upon them. But we should at least look for quite certain indications that the legislature had adverted to the matter and had advisedly resolved upon so important and serious a course." There is no clear indication in the Stamp Act that the legislature intended by s 39(1a) to create an offence of which the Crown could be guilty. Indeed, the Act is silent upon the matter and those who would contend to the contrary must rely only upon the generality of s 39(1a). In those circumstances the only conclusion possible is that s 39(1a) of the Stamp Act does not bind the Crown. There is no difficulty in reaching that conclusion and at the same time concluding that the Act otherwise does bind the Crown. The principle that the Crown cannot be made criminally liable save in the most exceptional circumstances has no application other than to s 39(1a) of the Act and is not inconsistent with the rest of the Act being given an operation so as to bind the Crown. (citations omitted)
8. The High Court of Australia gave detailed consideration to the nature of contempt proceedings in Witham v Holloway, previously referred to.. In the course of their joint judgement, Brennan, Deane, Toohey and Gaudron JJ in referring to the distinction often made between criminal and civil contempt, the former arising out of conduct committed in the face or hearing of the court and the latter arising out of a failure to comply with orders, said; 19. The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt "must realistically be seen as criminal in nature"(38). The consequence is that all charges of contempt must be proved beyond reasonable doubt. The Court of Appeal erred in holding otherwise. 20. It was submitted by counsel for the appellant that, if contempt proceedings are essentially criminal in nature, there is no power to order a retrial of the charges against the appellant. It was put that, so far as New South Wales is concerned, the only power to order the retrial of a criminal matter is to be found in s 8 of the Criminal Appeal Act 1912 (NSW) and as this was not an appeal under that Act, there could be no order for retrial. However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not. There is no basis, in our view, for importing into the law of contempt the 19th century rules which allowed a verdict of guilty, given in a jury trial, to be quashed on appeal, but did not permit of an order for retrial. Moreover, the issue, so far as contempt is concerned, is not whether there should be a retrial, but whether there should be a rehearing.
9. The important matter to note here, is that although their Honours characterised contempt proceedings as being "criminal in nature" so as to attract the criminal standard of proof, they did not say that contempt proceedings were criminal proceedings. Indeed, their Honours expressly eschewed the concept of contempt proceedings being equated with criminal proceedings. This observation is reinforced by the more specific reference in the judgement of McHugh J. His honour said; 32. The appellant submitted that, as the proceedings were essentially criminal in nature, this Court could not order a new trial of the proceedings if it allowed the appeal. He submitted that in New South Wales only the Court of Criminal Appeal had power to order a new trial in criminal proceedings(108). However, although the principal, if not sole, object of the present proceedings was to punish the appellant, the proceedings were and remain civil and not criminal proceedings for contempt. They were commenced (109) under the Rules of the Supreme Court that govern civil proceedings. Moreover, the appellant's appeal lay to the Court of Appeal pursuant to s 101 of the Supreme Court Act 1970 (NSW) and not to the Court of Criminal Appeal under the Criminal Appeal Act 1912 (NSW). By s 75A (10) of the Supreme Court Act, the Court of Appeal, in hearing an appeal, "may make any order ... which the nature of the case requires". Under that sub-section, the Court of Appeal regularly makes orders allowing appeals and remitting the proceedings back to a Division for further hearing or a rehearing. There is no reason why that power should be read down to exclude appeals from findings of civil contempt that have been heard in a Division of the Court. It is true that the provisions of Pt 55 apply to proceedings for criminal contempt that are commenced in the summary jurisdiction. It might be thought unlikely that, in the absence of an express power, the Court of Appeal was intended to have power to order a rehearing of criminal proceedings after a finding of criminal contempt has been set aside. But the Supreme Court Act and Pt 55 proceed upon the theory that proceedings for criminal contempt will ordinarily be heard by the Court of Appeal itself and that there is no appeal against a finding of contempt by that Division of the Supreme Court. It will be time to determine whether the rehearing power conferred by s 75A (10) applies to criminal proceedings commenced under Pt 55 when a case arises where proceedings for criminal contempt have been commenced and have remained in a Division and an appeal has then been taken to the Court of Appeal. In the ordinary course of events, because the Court of Appeal hears proceedings for criminal contempt, s 75A (10) will not apply to criminal proceedings for contempt although it applies to civil proceedings for contempt. As I have pointed out, many differences in procedure still exist between civil and criminal contempt proceedings. It is therefore unsurprising that they give rise to different rights of appeal with different remedies. (My emphasis added)
10. Accordingly ,it is arguable that Witham is not authority for the proposition that any proceedings for contempt against the respondent for failure to comply with the orders of this Tribunal are necessarily to be characterised as criminal proceedings so as to attract any Crown immunity from suit. Many of the arguments focus on the nature of the orders made as indicating the criminal nature of the proceedings and the resultant standard of proof. But these arguments do not address the fundamental nature of the proceedings which, in this case arise solely within the context of civil proceedings.
11. In so concluding, I am conscious that there is authority to contrary effect in the Queensland Court of Appeal in Crowther v State of Qld [2006] QCA 308. In that case, de Jersey CJ said; [14] In Hinch v Attorney-General (Vict) [1987] HCA 56; (1987) 164 CLR 15, 49, Deane J said that "[p]roceedings seeking the imposition of ... punishment upon an alleged contemnor (or an order for sequestration in the case of a company) must realistically be seen as essentially criminal in nature ...". Subsequently in Witham v Holloway (1995) 183 CLR 525, 534, Brennan, Deane, Toohey and Gaudron JJ endorsed that observation, saying that all proceedings for contempt "must realistically be seen as criminal in nature". One may add reference to Hafele Australia Pty Ltd & Anor v Maggbury Pty Ltd & Anor [2000] QCA 397, where with the agreement of the other members of the Court, Muir J said: [20] Mr Morris submitted that the unsatisfactory end result is that the State "is free to contravene judicial injunctions with absolute impunity". Of course one would confidently expect the State, by its officers, conscientiously to adhere to the terms of any injunction granted against it; and for that reason, granting such an injunction should not lack utility. But the position remains that should such an injunction be breached, in circumstances otherwise amounting to contempt of court, proceedings in contempt against the Crown itself are unavailable, because the legislation has not effected an abrogation of the common law immunity. [15] While not cavilling with that characterisation, Mr Morris submitted that because this application for the imposition of penalties for contempt was filed in the (civil) proceeding begun by the originating application filed on 14 June 2002, s 9(2) and s 10 applied. But that would ignore the substance of the claim being made. The application filed on 19 October 2005, claiming penalties for contempt, is, for the purposes of those sections, the relevant "proceeding", and because it is criminal in character, those provisions can have no application. They are not apt, in this situation, to abrogate the immunity established by the common law.
12. McMurdo P used reasoning to similar effect
13. Jerrard JA said; [41] I agree with the Chief Justice that the definition of "proceeding" in the Crown Proceedings Act 1980 stands in the way of success for Claire Crowther, to the extent that she relies on the Crown Proceedings Act 1980 in her application for an order finding the State of Queensland in contempt. Proceedings for contempt do not satisfy the description of an action, suit, or proceeding of a civil nature. It follows that s 10 of that Act cannot be applied to include a power to punish for contempt. That is consistent with the difficulty in applying the provisions of UCPR rr 921 to 932, dealing with contempt, to the Crown. For example, UCPR rr 930 makes provision for punishment of either an individual (who may be punished by the court making an order that might be made under the Penalties and Sentences Act 1992 (Qld)) or a corporation. In the latter case the court can punish by seizing property or ordering a fine or both. The Crown Proceedings Act 1980 makes much more restricted provision for the satisfaction of judgments against the State of Queensland.
14. I observe that the definition of "civil proceedings" contained in section 3 of the Crown Proceedings Act is inclusive and would accommodate within it any proceedings falling within the rubric of "civil" as opposed to criminal. Contempt proceedings of the kind which are the subject of these proceedings are very much involved with the enforcement of orders of this Tribunal and in upholding the due administration of justice as dispensed by the courts, and tribunals, which are involved in the resolution of civil disputation in New South Wales. The specific classification of the contempt proceedings in Witham by McHugh J as being civil proceedings, and the inferential characterisation by the plurality to the same effect arguably create some tension with the decision of the Queensland Court of Appeal in Crowther.
15. I should add for completeness that counsel for the respondent referred me to other authorities to similar effect as Crowther, but none of them was a decision of the High Court. Included was a decision of Young AJA (as his Honour then was) in Hoxton Park Resident's Action Group Inc v Liverpool City Council [2014] NSWSC 704. Those proceedings dealt with a motion to strike out charges of contempt brought, inter alia, against the State of New South Wales and the Commonwealth of Australia for breach of orders of the Supreme Court. After referring to Crowther, his Honour said; 13.The modern day distinction between procedural contempt and criminal contempt is a little blurred however in the instant case the allegation is that there has been a wilful contempt of court by the Commonwealth which is probably as close to criminal contempt as one gets even if it is not over the line. 14.To my mind there is no ability in this court to police by orders for discovery by sequestration, or fine, any alleged disobedience of such order for discovery by the Commonwealth or a State.
16. A significant matter was the inability of the Court to police any orders made consequent upon any finding of contempt, and the inability to make orders such as sequestration orders against the property of the Commonwealth or of a State.

Consideration

1. In my opinion, the judgments in Witham to which I have referred our arguably inconsistent with decisions such as Crowther. Given this possible uncertainty concerning the characterisation of contempt proceedings as constituting criminal proceedings, I am not prepared to conclude definitively that for the purpose of these proceedings that the doctrine of Crown implied immunity applies to prevent contempt proceedings being instituted by the Supreme Court against the respondent in the sense that this would preclude referral to that Court under section 73 (5). Consideration of these matters is obviously for the Supreme Court.
2. I observe that although I have had the benefit of detailed submissions from counsel for the respondent, the applicant does not have legal qualifications and is unrepresented. In these circumstances, any request that he should have made detailed submissions concerning the characterisation of contempt proceedings and the application or otherwise of the doctrine of Crown implied immunity would arguably be unfair, and unproductive. His concern throughout these proceedings has focused on the unsatisfactory delays which he has suffered in having the orders of this Tribunal complied with by the respondent. As will be obvious from the recitation of the factual material, the applicant has reinstituted proceedings in an endeavour to have the original orders enforced. The repetition of the original orders by this Tribunal has still not resulted in all of the orders made being attended to. He regards his application to have the matter referred to the Supreme Court to deal with the respondent for contempt as his last remaining prospect of having the orders made in his favour carried out. There seems to be no other remedy available to him to enforce the now long standing orders of this Tribunal in his favour.
3. It follows from the factual findings that I have made that the respondent has been in breach of all of the orders of this Tribunal which are the subject of these proceedings for a considerable period of time, and remains in breach with respect to three of them, namely the failure to install a security screen door, the failure to apply the rent reduction orders and the failure to attend to the maintenance work in the toilet and adjoining bedroom.
4. The respondent in written submissions relied on an assertion that the orders of this Tribunal had largely been complied with and that "the coercive power of a contempt order is unnecessary, and would be punitive in nature." On this basis there was no need for referral. Such a submission ignores one of the principal reasons for the making of contempt orders, namely that the public interest in the administration of justice requires compliance with all orders and undertakings. Such a submission would also, arguably, undermine the role of the Supreme Court to determine whether the respondent is guilty of contempt and, if so, whether any and what consequential orders should be made. The role of the Tribunal as currently constituted is, as I have stated, to determine whether the conduct complained of is capable of constituting contempt so as to justify referral. It is arguable that if I were to determine to refer the matter, any attempt by me to consider mitigating factors would constitute usurping the role and function of the Supreme Court. This is especially so because the power of this Tribunal to itself deal with contempt is limited by the provisions of section 73(1) to contempt in the face of or in the hearing of the Tribunal.
5. The respondent's submissions also referred to authorities dealing with reluctance sometimes displayed by courts to make contempt orders in cases involving the non-payment of monetary orders. As the respondent properly conceded there is no authority which precludes a contempt order being made in these circumstances, and it is not necessary that I deal with this aspect further.
6. The respondent also relied on the decision in the Supreme Court of NSW in O' Shane v Channel Seven Sydney Pty Ltd [2005] NSWSC 1358. In those proceedings, Grove J took into account the fact that certain procedures adopted by that television channel "had not kept pace with advances in higher level technology, specifically the installation and use of the central news server." However, these observations were applied in mitigation of consequential orders made upon a finding of contempt. Accordingly, this case is not authority for the proposition advanced by the respondent that the breach by it of the orders was "due to flawed procedures within a large organisation". There may be circumstances where this is a relevant matter to take into account. However, there is no evidence in these proceedings that the flawed procedures which obviously operated to explain the lack of compliance with the many orders of the Tribunal should in some way explain the non-compliance so as to detract from a finding of contempt. Furthermore, these are matters which should more properly be raised in any proceedings initiated by the Supreme Court pursuant to referral to it.
7. I refer again to the discussion by the High Court in Mudginberri which I have extracted above. The Court confirmed that it is no answer to proceedings for contempt "to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order". Thus, it would suffice that the relevant act or omission was wilful even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was "through carelessness, neglect, or even in dereliction of his duty". Furthermore, there can be no basis for describing the long-standing and continuing breaches by the respondent of the several orders of this Tribunal as casual, accidental or unintentional. The several email communications to which I have earlier referred make it abundantly clear that there were persons within the respondent's organisation who were aware of the orders of this Tribunal, and that they had not been complied with. In addition, the applicant continued to remind the respondent of its failures to comply with the orders, seeking further assistance from this Tribunal, and otherwise exhibiting saintly restraint. In these circumstances, it is appropriate to characterise the conduct of the respondent as capable of constituting deliberate omissions in defiance of the several orders of this Tribunal in the sense that that expression is used by the High Court in Mudginberri.
8. There remains to be considered one last matter namely, the appropriate standard of proof that must accompany a determination that the respondent's conduct complained of is capable of constituting contempt. I have not had the benefit of submissions on this matter, and it does not seem to have been addressed in any decided cases to which I have been taken. Perhaps, the answer is so obvious that it does not require examination. Prima facie, I am only concerned with the exercise of discretion whether to refer these matters to the Supreme Court. On this basis it might be thought sufficient to determine that, on the balance of probabilities, the respondent's conduct as I have found it, is capable of constituting contempt. However, for abundant caution I indicate that given the underlying nature of contempt proceedings and the part that this Tribunal plays in the referral process, referred to in some cases as being "executive", I am comfortably satisfied on the balance of probabilities according to the Briginshaw standard that the conduct of the respondent is capable of constituting contempt.
9. For these reasons I conclude that it is appropriate that the conduct of the respondent in failing to comply with some of the orders of this Tribunal as I have described them, and in neglecting to comply with others of the orders for a long period of time be referred to the Supreme Court of NSW under section 73 (5) of the Civil and Administrative Tribunal Act.

Orders

1. 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; 1. to complete the work described in (1) above 2. to complete the work described in (2) above 3. to replace a pre-existing security door in a proper and workmanlike manner by 20 April, 2017 4. to refund by 6 April, 2017 all rent paid in excess of $108.80 per week from 18 November, 2016 to 15 February, 2017 5. to refund by 6 April, 2017 all rent paid in excess of $80 per week from 16 February, 2017 to 6 April, 2017 6. 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.

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

Amendments 27 November 2017 - Typographical error SH16/16880 instead of SH16/168802 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: 27 November 2017