David Charles Bott, whom, for the sake of convenience, I shall hereafter refer to as the Applicant was for many years a tenant of the NSW Land and Housing Corporation whom I shall hereafter refer to as the Respondent. The Applicant brought a series of proceedings before this Tribunal seeking, in general terms, rectification of certain defects in the rented premises and compensation. Those proceedings date back to 2009. More latterly, commencing in 2016 the Applicant instituted further proceedings and obtained a number of orders from the Tribunal against the Respondent requiring the carrying out of certain work, reducing the rent for a certain period and for the payment of a refund of part of the rent. The Applicant alleged that the Respondent had failed to comply with the orders of this Tribunal on a number of occasions in subsequent proceedings. The asserted continuing failure of the Respondent to comply with the orders of this Tribunal culminated in an application brought by the Applicant seeking that this Tribunal refer the question of whether the Respondent was guilty of contempt of this Tribunal by reason of its failure to comply with the several orders made against it to the Supreme Court of New South Wales, pursuant to the provisions of section 73 of the Civil and Administrative Tribunal Act 2013 ("the Act").
In Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88 (24 November 2017), I made orders pursuant to section 73 of the Act, which is in the following terms;
73 CONTEMPT OF TRIBUNAL
(1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.
Note: Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).
(2) A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.
(3) Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.
(4) For the purposes of this section:
(a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and
(b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and
(c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.
Note: Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.
(5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.
(6) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.
The orders made were as follows;
The following matters are referred to the Supreme Court of New South Wales for its consideration, namely whether the respondent, NSW Land and Housing Corporation has committed contempt of the Civil and Administrative Tribunal by reason of its failures, or any one or more of those failures with reference to premises occupied by the applicant under tenancy from the respondent;
(1) to comply with order made on 20 October,2016 in matter SH 16/16880 to carry out replacement of a door and door frame
(2) to comply with order made on the same day and in the same matter as referred to in (1) to conduct an inspection of the premises to ascertain whether there was a water leak and conduct any necessary maintenance work for the leak on or before 18 November, 2016
(3) to comply with orders made on 24 March, 2017 in matter SH 17/11245;
(a) to complete the work described in (1) above
(b) to complete the work described in (2) above
(c) to replace a pre-existing security door in a proper and workmanlike manner by 20 April, 2017
(d) to refund by 6 April, 2017 all rent paid in excess of $108.80 per week from 18 November, 2016 to 15 February, 2017
(e) to refund by 6 April, 2017 all rent paid in excess of $80 per week from 16 February, 2017 to 6 April, 2017
(f) to reduce all rent payable to the sum of $80 per week from 7 April, 2017 to the earlier of 17 November, 2017 or the date upon which all of the work referred to in (3) and (4) is completed.
Some sense of the underlying failures of the Respondent may be gathered from the following description contained in my Decision;
Factual findings
36 It is beyond doubt, as conceded by Mr White who gave evidence on behalf the respondent, that it had failed to replace the door and doorframe and conduct an inspection of the premises to ascertain whether there was a water leak and conduct any necessary maintenance work for the leak for a considerable time. Indeed, the respondent has still not conducted the appropriate maintenance work to repair the damaged paint work and remove the mould in the toilet area and the adjoining bedroom.
37 I note that the respondent had consented to orders made by the Tribunal on 20 October 2016 that it would carry out this work on or before 18 November 2016. Further orders were made covering the same work on 30 January 2017 and on 3 March 2017. On the evidence of Mr White, the repairs to the doorframe and replacement of the door were not completed till about 18 October 2017. It was his evidence that the water leak had been attended to on 18 September 2017, although I accept the evidence of the applicant that the remediation work necessary as a result of the water leakage has not yet been attended to. I note that there is, in effect, no evidence to the contrary.
38 I also accept the evidence of the applicant that not only has he not been paid any monies due and owing consequent upon the rent reduction orders made on 24 March, 2017, but that the respondent has declined to pay those monies to him. The rental reduction was to operate from 18 November, 2016 and the respondent was ordered to refund all rent paid in excess of the reduced rental by 6 April, 2017. I do not regard the holding of any necessary monies to the account of the applicant in the funds of the respondent as constituting a refund of the amounts due and owing to the applicant pursuant to the orders of 24 March 2017. Accordingly, the respondent has still not complied with the rent reduction orders.
39 I also accept the evidence of the applicant that the screen door which has been installed is not a security screen door as such a door is known by way of common knowledge, but is a traditional screen door with a latch and a locking device only.
Section 73 occurs within Part 5 of the Act which is entitled Enforcement. It was the position of the Applicant that the only means available to him to enforce and thus secure the benefit of the orders which had been made by this Tribunal in his favour was to seek a finding of contempt against the Respondent. Of course, the availability of orders for contempt has, for the purpose of these proceedings, a dual purpose namely to assist in the enforcement of orders of a Court or Tribunal and in upholding the effective administration of justice. It is in the public interest to ensure that orders of a Court and Tribunal cannot be disobeyed with impunity, because this will impact upon the administration of justice generally, as well as depriving individual litigants from the benefits due to them.
[2]
Developments since the orders of referral
On 20 December, 2017 the Crown Solicitor's Office, acting for the Respondent wrote to the Registrar of this Tribunal concerning the Decision which I had made in these proceedings and informing the Registrar that;
1. responsibility for the administration of the Respondent vests in the Secretary of the Department of Family and Community Services ("FACS")
2. the Secretary had prepared a letter to this Tribunal to apologise for the conduct that had given rise to the reference and to inform the Tribunal "of the steps taken in relation to the subject orders in relation to (the Applicant's) premises, and to outline the remedial steps being taken to improve FACS' procedures to ensure that all orders of the Tribunal are complied with in the future."
3. FACS would welcome an opportunity to provide an apology to the Tribunal and to the Respondent "in open court" to provide evidence of compliance, "including the measures being put in place to prevent recurrence of this failure to comply with Tribunal orders."
4. FACS would invite the attention of the Tribunal to section 73 (3) of the Act and suggest that the order of referral be vacated or revoked.
I listed the proceedings for hearing on 23 January 2018 for the purpose of giving consideration to the suggestion that the order of referral be vacated or revoked, and notice was given to the Applicant. On that occasion the Applicant was represented for the first time by counsel. The proceedings were stood over for further hearing on 23 February 2018 inter-alia for the purpose of clarifying whether all of the work to be carried out on the residential premises occupied by the Applicant had in fact been attended to.
I first set out the letter of apology, the draft email to FACS staff and the Summary of Revised Procedures to be adopted by FACS for monitoring and complying with orders of this Tribunal;
20 December 2017
His Honour Acting Judge F Marks
Principal Member
NSW Civil and Administrative Tribunal
Civic Tower
66 Goulburn Street
Sydney NSW 2000
Delivery by hand
Dear Judge
Bott v NSW Land & Housing Corporation - referral for alleged contempt of the Tribunal (SH 17/11245)
On 24 November 2017 your Honour made a determination referring conduct of the NSW Land and Housing Corporation (referred to in this letter as either LAHC or the Corporation) to the Supreme Court as an alleged contempt of the Tribunal with respect to orders it had made.
The Corporation is a statutory body under the Housing Act 2001 (the Act) and is part of the Department of Family and Community Services (referred to in this letter as either FACS or the Department). As Secretary of the Department, I have responsibility for the management of the Corporation under s.6(2) of the Act.
The purpose of this letter is to apologise for the conduct that gave rise to the reference, to inform the Tribunal of the steps taken in relation to those orders and to outline the remedial steps being taken to improve FACS' procedures to ensure that all orders of the Tribunal are complied with in the future. A copy of this letter has been sent to Mr David Bott.
Context
The Department has a number of divisions to manage its social housing responsibilities. LAHC is the owner of property assets and the landlord to public housing residents under residential tenancy agreements. LAHC has agreements in place with contractors who carry out repairs and maintenance on behalf of the Corporation. FACS Housing, another division of FACS, is the service provider of tenancy management functions for our public housing residents. The tenancy management functions are localised, with residents interacting directly with FACS Housing staff in the offices closest to where they reside.
The majority of tenant initiated matters before the Tribunal are straightforward. More complex matters are referred to a team of tenancy officers who are directly supervised by a FACS senior lawyer. The tenancy officers appear in the Tribunal, occasionally with Counsel briefed to advise and appear.
FACS has direct social housing responsibilities for in excess of 275,000 residents in around 126,000 residential dwellings throughout New South Wales. FACS received more than 700,000 repair and maintenance requests in 2017. An independent survey is undertaken monthly to measure residents' satisfaction on completed works. This year, 52,000 surveys have been conducted with tenant satisfaction survey scores reaching, on average, above 90%.
These figures are not advanced as an excuse for the failures in this case, but simply to indicate the scale of the challenge for FACS which we accept we must meet.
Most regrettably, our level of performance in complying with Tribunal orders in this matter was entirely inadequate.
Apology
We recognise the important role played by the Tribunal in upholding the rights of tenants and landlords under the Residential Tenancies Act 2010.
We respect the authority of the Tribunal and are deeply mindful of FACS' role as a model litigant. We recognise, and accept, that the Corporation is accountable for any breach of Tribunal orders.
The application that Mr Bott was obliged to bring in these proceedings has demonstrated that we failed in our obligations to him and to the Tribunal. We respectfully accept your Honour's findings, which indicate that we remained in breach of some of the Tribunal's orders, even at the time your Honour heard Mr Bott's contempt application and made a determination to refer the Corporation's conduct to the Supreme Court.
FACS' conduct was entirely unacceptable. It was unacceptable that Mr Bott was required to wait so long for repairs to be effected and to receive the refund due to him as a result of the rebate of rent ordered by the Tribunal. It was unacceptable that orders of the Tribunal were not complied with and that the resources of the Tribunal were wasted by repeated applications to obtain compliance. It was also unacceptable that the Tribunal was not adequately assisted by FACS as to the circumstances attending the matters raised by Mr Bott. The lack of cohesion and coordination between divisions of the Department was unacceptable and contributed to the delay in complying with the Tribunal's orders.
One issue that has been demonstrated by this matter is that supervision and monitoring has been inadequate. Decisions taken in this matter involving Mr Bott were not escalated to a sufficiently senior level.
In these respects, without reservation, I apologise to the Tribunal and I apologise to Mr Bott.
Since an apology would be empty without action to deal with this particular case, and with the wider systemic issues that it has revealed, I seek to provide an explanation of what steps have been taken in these respects.
Orders in relation to Mr Bott
Your Honour found that the following matters remained outstanding, as at the date of your Honour's determination:
a) remediation work necessary as a result of the water leakage;
b) refund of money due to Mr Bott as a result of rent reduction orders; and
c) the installation of a security door.
I will address each of these matters, in turn:
(a) Remediation work
I understand that a contractor engaged by the Corporation arranged with Mr Bott to call and attend to the plumbing stack cover in the bathroom of the premises as a LAHC compliance officer had noted on a site visit on 4 December 2017 that there was a small amount of mould starting to appear on the cover. The first date suitable to Mr Bott was Monday 11 December 2017. However, Mr Bott indicated to a FACS officer, Sheridan McGuinness, in conversations on 7 and 11 December, that there was nothing left to be done. He explained that he had repaired sheeting around the stack, which had fixed the mould problem, and that he had also carried out further repairs in relation to the roof leak.
George Carvin, the Corporation's Executive Director Assets, visited Mr Bott on 12 December 2017. Mr Carvin explained that he was responsible for maintenance of Corporation properties and that he wanted to satisfy himself that Mr Bott's needs had been met. Mr Carvin apologised to Mr Bott in relation to the delay, and indicated that an apology and explanation would be provided to the Tribunal. Mr Bott responded that LAHC should be more responsive to residents in assisting them in their needs and that he did not want compensation or money.
(b) Refund of money as a result of rent reduction
On 17 November 2017, Mr Bott collected a cheque for $1330.01, which represented the amount of refund of rent reduction due for the periods 18 November 2016 to 15 February 2017 (for which rent was reduced to $108.80 per week) and 16 February 2017 to 6 April 2017 (for which rent was reduced to $80 per week). This amount should have been paid to Mr Bott by 6 April 2017.
The Tribunal's orders made on 24 March 2017 also required that rent be reduced to $80 per week from 7 April 2017 to 17 November 2017, or to such earlier date when the front door had been replaced and all inspection and remediation work had been completed. Since this work, including the painting and mould treatment, was not completed by 17 November 2017, a further amount of $ 211.50 was due to him. A cash cheque for that amount was delivered to Mr Bott by Ms McGuinness on 11 December 2017. This represented a rent reduction in fact calculated to 11 December 2017.
(c) Security door
Some confusion arose from the wording of the order in relation to the security door. On 24 March 2017, the Tribunal made an order to "replace existing security door, which was removed when work was commenced to install a new door".
According to the Corporation's records, a replacement heavy duty screen door was installed on 13 September 2017. It was of the same design as the pre-existing screen door that had been removed when work was undertaken to install a new front (fire) door and doorframe. Due to a defect in the door frame, a new screen door of the same type was fitted on 24 October 2017. This door was a heavy duty screen door but, as your Honour observed in the contempt determination, it was not a security door in the accepted sense of that term (that is to say, a door with a triple locking mechanism). It is regrettable that your Honour was not assisted by an explanation of the nature of the pre-existing door and information on the Corporation's position on the installation of security doors and the consideration of the risk of hindering access for fire fighters to a premises in the event of a fire. I sincerely apologise that this information was not presented to the Tribunal.
Nonetheless, the Corporation unreservedly acknowledges that since an order was made to install a security door, that is the type of door that should have been installed.
When Ms McGuinness visited Mr Bott on 11 December 2017 he told her that he was happy that the door frame, door and screen door had finally been installed and said that he had "no issues" with them. Mr Bott explained that he was going to get bolt locks installed on the screen door, so that it would operate as a security door. She asked if Mr Bott would prefer that the Corporation install a whole new security door, but he said that he had ordered the parts and that someone was coming in the following week to install them.
Mr Carvin discussed the door with Mr Bott during his visit on 12 December 2017, explained concerns in relation to possible risks during any fire, and offered to call back with a qualified technical officer after the modifications have been made to the door to ensure that it would be compliant in this respect. Mr Bott indicated that the cost of the additional fittings to the screen door was $200.
As noted above, in his conversation with Mr Carvin, Mr Bott very properly said, in effect, that his main concern was to ensure other tenants were assisted in their needs. Ms McGuinness made further contact with Mr Bott on 18 December 2017 regarding the locks for the screen door. Ms McGuinness reconfirmed that LAHC was happy to attend the premises (with NSW Fire and Rescue) once Mr Bott had installed the additional locks. Mr Bott said that he did not think such a visit was needed, and was satisfied that the locks were to standard. Ms McGuinness offered to reimburse Mr Bott for any out of pocket expenses for the locks. Mr Bott acknowledged the offer but declined it, in view of the amount that he had spent on the property. Ms McGuinness further advised Mr Bott that if he were to change his mind, she could organise for reimbursement of the costs of the locks.
Steps being taken to improve FACS procedures
I acknowledge the importance of vindicating the authority of the Tribunal, and I respectfully agree with Mr Bott that it is a concern of primary importance that the accommodation needs of all tenants are respected and provided for. I accordingly outline the steps that I have approved for improving the responsiveness and coordination across FACS in such matters.
Our experience in this matter has provided a sharp awakening of deficiencies in our arrangements for the administration of our matters in the Tribunal. It is clear that the lines of communication across FACS with respect to notifications received from the Tribunal about hearings and orders were not effective or efficient. These processes were already under review, commencing in May 2017 to identify the communication/coordination deficiencies.
On 8 August 2017, Mr Mark Byrne, Director Operations from LAHC, met with Ms Vikki Hardwick (Tribunal Registrar and Director) and it was agreed that the six Tribunal registries would refer Notices of Hearings/Applications and Tribunal orders to a dedicated LAHC email mailbox in addition to existing FACS district addresses. On 8 September 2017, the new process for additional notification of Tribunal Hearings and orders was commenced. We look forward to continued consultations with the Tribunal to enable the Department to better facilitate communications and assist the Tribunal.
New procedures
While the high volume of matters will necessarily present administrative and logistical challenges, particularly in the context of a high volume, decentralised process, it is my responsibility to ensure these challenges are met and that all Tribunal orders are complied with.
New procedures have been developed for dealing with Tribunal matters. We have developed an escalated process to ensure a cohesive and integrated approach in resolving matters. The new procedures include the following:
• Identifying new dedicated roles within the central business units of LAHC and FACS Housing to have greater oversight of all tenant initiated Tribunal cases, and responsibility for ensuring processes are followed and high risk cases are escalated and managed effectively;
• Implementing a robust accountability model, led by the LAHC Executive Director, Assets (George Carvin), FACS Housing Director, Customer Service & Business Improvement (Lance Carden) and FACS Director (and lawyer), Commercial and Property (Chris Valacos). Those executive officers will meet weekly as part of the escalation, monitoring and reporting process;
• Conducting an immediate audit of all Tribunal proceedings to identify outstanding Tribunal orders and ensure there is an appropriate pathway to ensure compliance;
• Sending an email from me to all staff emphasising the importance of strict compliance with Tribunal orders and of the need to seek a prior variation of an order if compliance is not possible. I attach a copy of that email.
• Instituting revised management and supervision procedures which will be included in staff manuals;
• Introducing an improved Tribunal tracking tool to record the progress of all Tribunal matters to which the Corporation is a party, and monitoring compliance with orders. This tracking tool will be implemented by 22 December 2017 and will generate a daily report. Regular reports will be provided to senior FACS executives who will be immediately informed of any case in which the time limit in an order may be exceeded;
• Briefing FACS Housing Directors about new procedures. This occurred on 19 December 2017 in the Housing Operations meeting. All staff will be notified of the detail of new procedures in January 2018, and face to face training programs will commence in January 2018 to ensure that staff are aware of their responsibilities;
• Undertaking regular programmed audits to ensure that new procedures are being complied with by staff;
• Liaising more closely with the Tribunal registry to deal with outstanding and emerging issues, such as procedures to provide notices of hearing; and
• Establishing a continuous improvement committee to review procedures and to receive and consider suggestions from staff, tenants and contractors to improve standards of service responsiveness. The committee will include staff from LAHC and FACS Housing and the senior lawyer supervising FACS' in-house advocacy officers who appear in the Tribunal on behalf of the Department. This committee will be formed to augment the current mechanism for meetings on a quarterly basis (and ad hoc as required) with the Tenants' Union of NSW to discuss tenancy matters as a standing item on the meeting agendas.
The present proceedings
FACS would welcome an opportunity to provide an apology to the Tribunal, and to Mr Bott, in open court, and to provide evidence of the matters set out in this letter, including the measures being put in place to prevent recurrence of this failure to comply with Tribunal orders. While it would seem that this may be done in the context of the existing proceedings, FACS would be prepared to do so by fresh application, if the Tribunal considered that this was a more appropriate course.
The Tribunal's attention is respectfully invited to s. 73(3) of the Civil and Administrative Tribunal Act 2013, which confirms that the Tribunal may, if it sees fit, vacate or revoke an order with respect to contempt of the Tribunal. If your Honour considers that the steps outlined in this letter represent a sufficient acknowledgement and vindication of the Tribunal's authority, your Honour may consider that the formal prosecution for contempt may be unnecessary and that the referral may be revoked under s. 73(3).
Yours faithfully
Michael Coutts-Trotter
Secretary
Department of Family and Community Services
The following is the Summary of Revised Procedures referred to in the letter of apology;
DEPARTMENT OF FAMILY AND COMMUNITY SERVICES SUMMARY OF REVISED PROCEDURES
FOR MONITORING AND COMPLYING WITH TRIBUNAL ORDERS
Introduction
1. The Department of Family and Community Services (FACS) has reassessed its systems and procedures for ensuring that orders made by the Tribunal in relation to tenant-initiated matters are effectively monitored and complied with. Tenant-initiated matters are applications by tenants of NSW Land and Housing Corporation (LAHC) properties for relief under the Residential Tenancies Act 2010, including applications for orders to carry out repairs, or for reimbursement, compensation or rent abatement. In this summary such matters are referred to compendiously as "Tribunal matters". The decision in Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88 (the present matter) was the catalyst for overhauling the procedures. FACS now has centralised tracking and monitoring (in place of tracking and monitoring at a local level in the various districts) and escalation points for resolving difficulties in complying with Tribunal orders. The procedures now also include a specific additional step to assess remedial works requested by a tenant before a matter proceeds to a first hearing/conciliation in the Tribunal.
2. The revised procedures are clearer and more prescriptive for staff in LAHC, FACS Housing and FACS Legal to follow, in order to efficiently and effectively assess relief sought by tenants, consent to appropriate orders (or present informed submissions as to the orders that should be made) and then to record, monitor, and comply with Tribunal orders. They replace previous operational procedures, protocols or guidelines for dealing with orders in Tribunal matters.
3. FACS has in existence a number of operational protocols and guidelines that explain how staff at an operational level in LAHC and FACS Housing are to handle all types of tenancy and maintenance related matters, including Tribunal matters. The protocols and guidelines have evolved over time to accommodate changes in FACS' organisational structure and contractual arrangements with contractors. FACS' current guidelines for all matters do stipulate the actions required for Tribunal matters. However, the present matter has demonstrated the need to set out, in more explicit terms, for staff the specific operational procedure for Tribunal matters.
4. Two key innovations have been introduced:
a) all Tribunal matters are now centrally recorded, monitored and managed to completion. This includes using a new tracking tool (NCAT Tracking Tool). This tool is centrally managed (rather than local tracking in the various districts), with escalation of delays or potential non-compliance to identified senior managers in the department; and
b) a specific additional step (referred to as the "Parameters of Negotiation" step) has been introduced to assess and document both the viability of the proposed repair and maintenance works and the timeframe in which such works can be undertaken to completion. This is to occur before matters progress to a first hearing/conciliation in the Tribunal, and thus before any relevant Tribunal order is made
Centralised management of Tribunal matters
5. The first change involves the centralised management of all Tribunal matters to ensure an integrated approach is taken across FACS to respond to applications made by tenants and to comply with orders ultimately made by the Tribunal. Monitoring of the orders is coordinated by FACS Housing.
6. The new NCAT Tracking Tool was built and implemented on 22 December 2017 and is currently being populated with information based on all current Tribunal matters, the status of those matters, actions and timeframes associated with each matter. The tool is capable of producing daily reports on the status of orders. A report is available which provides advice to relevant staff, including senior executives about all current Tribunal matters, any matters where FACS' response to orders is outside the timeframe and matters where there is an anticipated delay in meeting the order timeframe. The tracking tool captures the following information:
a) tenant name, premises and orders made;
b) all timeframes, including explanations for extensions or access issues;
c) the FACS officer responsible for action to be taken;
d) the name of a tenant's advocate or representative (if known); and
e) the details of maintenance work including timeframes.
7. In support of the centralised management of all Tribunal matters, LAHC has a Critical Response Unit (CRU). The CRU has been augmented with additional responsibilities for Tribunal matters including:
a) ensuring the quality of information added to the NCAT Tracking Tool for maintenance matters is correct including updating and communicating any issues that may arise;
b) escalation to the LAHC Director Operations for prompt resolution of any matters including works that are not supported to determine whether to uphold the "not supported" recommendation or approve the work requested to be carried out;
c) ensuring all Parameters of Negotiation forms (see below) are obtained from the LAHC Regional offices and recorded in the NCAT Tracking tool;
d) liaising with FACS Customer Service and Business Improvement (CSBI) unit weekly to confirm the quality of all information is correct and resolve any administrative matters;
e) confirming and recording that a LAHC Compliance Officer has checked and confirmed that the quality of work undertaken is to an acceptable standard or if not, that appropriate actions have been taken to rectify any defect and all parties are informed of those actions;
f) ensuring that all milestones for maintenance works that are subject to Tribunal orders are met by the relevant contractors and that the quality of the work undertaken is to an acceptable standard;
g) contribute to continuous improvement of any processes or systems that will assist in the effectiveness and efficiency of dealing with Tribunal matters.
8. As already noted, as a result of the present matter, the role of the Districts in having oversight for tracking of orders has now been centralised. A new role has been created in FACS Housing, namely the CSBI NCAT Officer, with responsibilities for:
a) daily monitoring of the CSBI mailbox, to identify all Tribunal matters and insert them into the NCAT Tracking Tool;
b) contacting the local housing team officer to ensure receipt of each new Tribunal matter to action, ensuring that the current status and actions required for every matter are maintained and kept updated in the NCAT Tracking Tool;
c) escalating matters to the Director CSBI where actions have not been undertaken to expected timeframes;
d) referring emerging complex or contentious cases to the Director, CSBI: and
e) on a weekly basis, liaising with LAHC CRU to ensure and confirm the quality of all information is correct in the NCAT Tracking Tool and resolve any administrative matters. The assistance of FACS Legal will be sought, if instructed, for a particular case.
9. As part of the centralisation process, the Director, CSBI has responsibility for escalating incomplete actions or matters that are likely to involve delays in complying with orders:
a) to the Director, Operations in LAHC;
b) to the Executive District Director in FACS Housing; and
c) to the Senior Solicitor overseeing tenancy matters in FACS Legal, with instructions to seek to have a matter promptly relisted in the Tribunal, if appropriate.
Assessment and negotiation of maintenance work
10. The second major change is the introduction of the Parameters of Negotiation step. This is a specific additional step to be undertaken before a matter proceeds to a first hearing/conciliation in the Tribunal. The template records:
a) the LAHC's response to the maintenance work requested, in particular to articulate what work is supported and what work is not supported;
b) indicative timeframes for completion of the work that is supported; and
c) reasons why any work is not supported or could not be undertaken (a typical example may be structural work which cannot be undertaken without further assessment of relevant building construction matters).
This will be enable LAHC to formulate a more informed and considered position at the first conciliation and any final hearing. The purpose of this step is to assist the parties to resolve any contentious issues before orders are made and to ensure that orders made by the Tribunal are viable and capable of being implemented and completed. This will be done prior to entering into consent orders or to make submissions to the Tribunal at the outset that certain requested works (such as structural modifications) cannot be done or cannot be done within a constrained timeframe.
Regular programmed audits to ensure compliance
11. As part of any repair and maintenance work involving NCAT orders, LAHC's asset compliance team will carry out compliance inspections to confirm that all work required by orders has been carried out and that the quality of work is to an acceptable standard. All other orders (eg orders for rebates and refunds of rent, or payment of compensation) will be subject to regular programmed audits to ensure that orders have been complied with. Audits are undertaken on a quarterly basis and ad hoc audits can be undertaken as required.
Close liaison with the Tribunal registry
12. On 8 August 2017 Mr Mark Byrne, the Director Operations from LAHC, met with the then Tribunal Registrar and Director, Vikki Hardwick. Following that meeting, it was agreed that Tribunal registries would, in addition to sending the documents to the Local Housing office, refer Notices of Hearings/Applications and Tribunal orders to a dedicated LAHC email. This is email inbox monitored continuously. On 8 September 2017, the new process for additional notification of Tribunal hearings and orders was commenced.
13. This liaison will ensure that LAHC is aware of Tribunal proceedings quickly. Significantly, Tribunal orders will be implemented as fast and efficiently as possible, and centrally coordinated for better monitoring and compliance.
14. Further, where it is apparent that a Tribunal order may potentially not be complied with, for a proper reason, FACS will take immediate proactive action to apply to the Tribunal for a variation of the order with a reasonable explanation for the application.
Weekly meetings of executive officers for continuous improvement
15. As part of the monitoring and escalation processes, a committee known as the "Tenant-Initiated NCAT Committee" has been established with Executive officers of LAHC, FACS Housing and FACS Legal who meet weekly to review the information in the tracking tool, discuss the progress of cases towards completion of Tribunal orders. The committee was established in late December 2017 and first met on 9 January and again on 16 January 2018.
16. These meetings will enable those Tribunal matters to be identified which are experiencing actual or expected delays or difficulties in complying with orders or the timeframe set in orders and which may need to be referred to the Tribunal for variation of the orders or escalation of the works. Attending the meetings to date have been Lance Carden, Director CSBI, George Carvin Executive Director Assets, Mark Byrne, Director - Operations (LAHC), Rebecca Huntsman, Principal Project Officer - NCAT Matters/CSBI and representative from FACS Legal.
17. The Tenant-Initiated NCAT Committee will complement the current meetings FACS has with the Tenants' Union of NSW to discuss tenancy matters as a standing item on the meeting agendas. The meeting with the Tenant's Union of NSW occur quarterly and ad hoc as required.
Audit of current Tribunal matters
18. The Director, FACS Housing caused an audit to be conducted of all Tribunal matters currently the subject of orders.
19. Out of a total of 84 current Tribunal matters, the audit detected a small number of matters (10) in respect of which there are actual or expected difficulties in terms of compliance with orders, or which are overdue pending actions. There are varying circumstances impacting upon these matters, including:
a) delays experienced due to a number of tenants asking for maintenance to not be undertaken over the Christmas holiday period, and so dates have been agreed with those tenants to complete work in January and February 2018;
b) matters that concern properties subject to a headlease where LAHC has complied with the order to the extent of its responsibility and the remainder of the responsibility (such as removal of a tree) sits with the landlord (not FACS) and this is being followed up with negotiations with the tenant and an application to the Tribunal to have the orders varied to require the landlord to do the required work;
c) where a tenant has accepted a transfer to another property and the tenant has requested that maintenance work not be undertaken until the property is vacated;
d) where maintenance has been completed and a hearing is scheduled for compensation to be determined;
e) where maintenance work is dependant on a detailed Occupational Therapist's assessment and the tenant has cancelled scheduled visits due to illness, LAHC will seek a variation to the order once an inspection occurs;
f) where a contractor has advised work has been done however the tenant has not provided access to enable inspection and confirmation that the work is completed, and attempts are being made to arrange the inspection;
g) a matter involving a formal request to the Tribunal to extend the time to complete the work, where parties are in agreement and the Tribunal has agreed to vary the order.
The LAHC is taking steps to relist relevant matters before the Tribunal to seek variation of such orders
Briefing FACS Housing Directors about new procedures
20. On 19 December 2017, FACS Housing senior managers were informed of the new operational procedures that were effective from that day to better manage Tribunal matters. The operational procedures remain in place and will be updated further, in line with staff training which is to take place in February 2018.
FACS Secretary email to staff
21. As foreshadowed in the letter from FACS Secretary to the Tribunal on 20 December 2017, the Secretary sent an email to staff on 21 December 2017. A copy of that email as sent to staff is attached.
Staff Training
22. In addition to briefing senior managers on 19 December 2017, operational staff have been advised of the new procedures throughout January 2018, and formal training sessions have been planned for when the majority of personnel will have returned from leave over the Christmas and New Year period. Joint training sessions between FACS Housing and LAHC staff based in local offices have been scheduled to take place over a 3 week period from the beginning of February 2018. This training will be delivered to key personnel and managers involved in handling Tribunal matters. The training will include a detailed briefing on the revised operational procedures, explain the key contact points between all parties involved in responding to Tribunal matters, outline the centralised responsibility to maintain the NCAT Tracking Tool with current matter information and cover escalation instructions. The training dates are 6, 7, 13 and 14 February 2018.
Referral to FACS Legal
23. The procedure for referring matters to FACS Legal has also been revised, including a specific step for FACS Legal to apply to relist a matter for variation of orders where it is apparent that orders may not be met within deadlines.
23 January 2018
I also set out a copy of an email communication to be forwarded by the Secretary to all persons within FACS who are involved with the implementation of orders of this Tribunal;
From: SecretaryMessage < SecretaryMessage@facs.nsw.gov.au
Sent: Thursday, 21 December 2017 11:14 AM
To: SecretaryMessage
Subject: Important message from the Secretary
Colleagues,
We always want to ensure that any concerns our tenants have are resolved without the need for them to take matters to an external body for resolution such as the NSW Civil and Administrative Tribunal (NCAT).
I have become aware that the systems across FACS for dealing with orders of the NCAT in tenancy matters have been demonstrated to be inadequate.
Our processes and systems to provide clear and timely resolution of NCAT matters are inadequate. They need to be significantly improved across FACS.
High risk and contentious matters are not being appropriately escalated to senior officers of the department for appropriate consideration and attention.
In a recent matter in NCAT, his Honour Judge Marks made findings that the Land and Housing Corporation (LAHC) had breached a number of orders, over a substantial period of time. His Honour referred the allegations of contempt involved, to the Supreme Court.
This is a serious matter. The Department is expected to perform to the high standards of a model litigant. Officers of LAHC, FACS Housing and FACS Legal would know this.
If an order is made by NCAT for repairs, or to take other steps, that order must be implemented within the specified time.
If for any reason it is not possible to carry out the order as required, and in the time required, the matter must be brought back before NCAT to seek a variation of the order.
It makes no difference whether the order was made after a contested hearing or made by consent.
We will adopt new procedures to more carefully record and monitor the making and implementation of orders of NCAT. You will soon be advised of the new procedures and provided with training to use them.
If you have any questions in relation to this email, please contact:
• LAHC - George Carvin, Executive Director Assets
• FACS Housing - Lance Carden, Director, CSBI
• FACS Legal - Chris Valacos, Director Commercial & Property
With my best regards,
Michael Coutts-Trotter
Secretary
NSW Department of Family and Community Services
In addition to the above material the Respondent made available at the hearing on 23 February 2018 an expert report of Steven Jeffs, a consulting engineer who had examined the residential premises in which the Applicant resided on 20 February 2018 and provided a detailed report confirming that all of the work the subject of the Tribunal orders had been attended to satisfactorily and that certain additional work had also been completed. As it transpired, Mr Jeffs had been informed that a bathroom ceiling finish had been removed on 12 February, 2018 and left to dry for seven days before being refinished and painted on 19 February. Information provided by the Applicant was that although the finishing had been removed on 12 February, it had been plastered over on 16 February, that is four days later and not compliant with the recommended period of seven days to allow the area to dry.
In order to overcome this one remaining problem, the Respondent gave the following undertaking in writing to the Tribunal namely;
In the event of written notification by Mr Bott of any cracking of plaster or bubbling of paint in the bathroom ceiling, the Respondent will promptly take all reasonable steps to investigate, and as may be required, rectify such problem. Such written notification to be provided to the Executive Director Assets, Land and Housing Corporation at Locked Bag 4009 Ashfield BC 1800.
The Applicant filed two affidavits for the purpose of this aspect of these proceedings. In an affidavit sworn 22 January, 2018 he narrated the fact that the Respondent had failed over a period exceeding 18 months to comply with a number of orders of the Tribunal, that he had spent many years attempting to have repairs such as water leaks into the apartment remedied, that some of the work undertaken was substandard, that the property had been left improperly secured and had been subject to a break in with resultant financial loss and that the only time that there had been any acceleration of the attention provided to his premises was after the order of referral made on 24 November, 2017.
It is quite apparent from the contents of this affidavit which I have not attempted to summarise in any detail that the Applicant remains bitter and concerned by the treatment which he has received and which he says has impacted so badly on his quality of life and that of a member of his family. He said in part; "This matter, on its merits, has the potential to bring accountability to the actions of misfeasance public servants and I implore the tribunal to uphold its transfer orders."
The second affidavit of the Applicant sworn 16 February 2018 dealt with a number of outstanding repair items which, thankfully, would now appear to have been attended to save perhaps for any outstanding matter concerning the bathroom ceiling.
[3]
Submissions
I was assisted by written and oral submissions of Mr N M Eastman of counsel who appeared for the Applicant and Mr D Kell SC who appeared for the Respondent. These submissions were directed to two primary matters, namely the nature and extent of the power contained within section 73 (3) of the Act to vacate or revoke an order with respect to contempt of the Tribunal and secondly whether the discretion to do so should be exercised.
I now proceed to deal with each of these matters in turn.
[4]
The nature of the discretion created by section 73 (3) of the Act.
I have previously set out the provisions of section 73. Prima facie subsection (3) creates a discretion with no apparent fetter by reference to any particular matter, save that as a matter of general principle the discretion must be exercised appropriately, giving due regard to all relevant matters. The Respondent submitted that this discretion was capable of being exercised by the Tribunal of its own motion, without the necessity for any formal application being made by any party. Indeed, the Respondent primarily eschewed the making of any application, stating that it would be inappropriate to have done so, but conceded that if I determined that it was necessary that such an application be made, or that I would feel more comfortable in exercising the discretion if such an application were made, then it would formally so apply. However one describes what has occurred, it is clear that it was the Respondent that brought recent events to the notice of the Tribunal and it is equally clear that it is the Respondent that has, at the least, suggested that the referral order be vacated or revoked.
And, in any event, I do not think that anything turns on the particular characterisation given to the circumstances in which the Respondent has again brought these proceedings before the Tribunal. Both parties agreed that by reason of the provisions of this subsection, the Tribunal has a discretion whether to vacate or revoke the referral order.
Initially, the Applicant submitted that I should take no steps in this matter in the absence of any formal application brought by the Respondent, and certainly in the absence of any application brought by the Applicant for the revocation or vacation of the referral order. Furthermore, no question had been raised of any jurisdictional error or administrative oversight or error in the referral decision. It was said that in these circumstances that I should apply the "fundamental principle of finality of litigation" so that any power to revisit an earlier decision should be exercised "with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation." In so submitting the Applicant relied on the decision of the High Court of Australia in State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51. The facts which applied in those proceedings were complex, and no good reason would be served in analysing them. In essence, the Court was dealing with an application to allow the proceedings between the parties to be re-litigated so as to enable an examination of the application of the doctrine of frustration to the contract between them. Some flavour of the underlying factual situation is to be gained from the following extract of the joint majority judgement of Mason and Wilson JJ;
24. To these factors two additional factors should be added. The first is that the application of the doctrine here, if it were to result in litigation of the frustration issue in the Supreme Court, might well result in the relitigation of matters already canvassed before the Arbitrator. This result would not conform to the policy which underlies res judicata and issue estoppel - the avoidance of the further litigation of issues which have already been determined between the parties. Whether the litigation of the quantum meruit claim would have similar consequences is uncertain - we do not know enough of the details of the proceedings before the Arbitrator. But there must be a strong possibility that in the event of the Supreme Court continuing to exercise jurisdiction it would order that the issues be remitted to arbitration in accordance with s. 15 of the Arbitration Act 1902 (N.S.W.), as amended. (at p42)
In the context of the matter before me I am not dealing strictly with proceedings inter parties, and no question arises of relitigating any issue, and in particular, any issue concerning the history of non-compliance by the Respondent with orders of the Tribunal. What is being "litigated" again is the exercise of discretion whether to refer the matter to the Supreme Court. The basis for the re-examination of the referral is the set of circumstances which have arisen since the original referral order was made. This requires an examination of the impact of these changed circumstances on the exercise of discretion to refer. Of course, any consideration of any such impact must take into account the totality of the circumstances which manifested themselves in the non-compliance with the orders of this Tribunal, but none of these will be "relitigated". Furthermore, it is arguable that if the order for referral is revoked or vacated this would bring an end to the proceedings between the Applicant and the Respondent arising out of the non-compliance by the Respondent of the favourable orders of this Tribunal which the Applicant had obtained. For these reasons I am of the opinion that the principle of finality or any analogous principle should not preclude a consideration of the revocation or vacation of the referral order.
For completeness I note that both parties agreed that the referral order was an order "with respect to contempt of the Tribunal" and was therefore capable of being vacated or revoked under section 73 (3).
The Respondent submitted that the referral power under section 73(5) and, presumably the power of vacation and revocation under subsection (3) were in the nature of "ministerial powers" relying on principles established by the NSW Court of Appeal in cases such as Killen v Lane [1983] 1 NSW LR 171. (The often cited extract from the judgement of Moffit P is found at [177] and following). Accordingly, the Tribunal is not dealing with inter partes proceedings in the strict sense, hence the reason for the reticence of the Respondent in making any formal application under subsection (3). It was submitted on this basis that strictly speaking not only did neither the Respondent or the Applicant have any standing as parties but no standing to be heard in the proceedings. For my part, I welcomed the participation of both the Applicant and the Respondent in this aspect of the proceedings because, firstly, they were intimately involved in the initial proceedings giving rise to the referral, it is in the interests of the Respondent that the referral be either vacated or revoked, and it is clearly in the interests of the Applicant that he feel some vindication for the injustice and inconvenience which he has suffered.
[5]
The exercise of discretion
There are obviously a number of matters which need to be taken into account when considering whether to exercise the discretion given by subsection (3). A convenient starting point is a consideration of the utility of the referral power created by section 73 of the Act. As I previously indicated, there are two principal matters for consideration. The first is the part that contempt plays in the enforcement procedures of this Tribunal. The second is the need to uphold and advance the integrity of the system of justice in New South Wales, which obviously includes the work of this Tribunal.
[6]
Enforcement provisions of the Act
Part 5 of the Act contains provisions allowing for enforcement of decisions of the Tribunal. A failure to comply with a decision constitutes an offence under the Act which will attract the imposition of a civil penalty (Section 72). In addition, there is the right to invoke section 73, the contempt provisions earlier set out, although enforcement can only proceed through one or other of these procedures. There is an entitlement to have an order for the payment of monies registered with a court of competent jurisdiction so that it operates as a judgement and will enable recovery through the processes of that court (section 78). However, there is no process other than that of seeking to prosecute a civil penalty or recourse to the contempt provisions to enforce a non-monetary order made by the Tribunal, such as an order for rectification of defects in residential premises, as applied in a number of the proceedings between the Applicant and the Respondent.
Accordingly, the contempt procedures can arguably play an important part in securing the enforcement of an order of the Tribunal. By way of example, the Supreme Court is empowered to impose a fine, and to order imprisonment consequent upon a finding of contempt.
However, it is arguable in the context of the controversy between the Applicant and the Respondent that, at least by reason of work carried our very recently, the Applicant should no longer be concerned with the enforcement of the orders of this Tribunal, save for one outstanding potential matter, which is covered by a written and public undertaking by the Respondent to this Tribunal.
Accordingly, the question of enforcement of outstanding matters is no longer relevant, and as such the justification for a referral to the Supreme Court on this basis is lessened.
[7]
Upholding the administration of justice
The necessity to uphold the public interest in the administration of justice and to vindicate the authority of this Tribunal is illustrated by the following extract from the judgement of the plurality in the High Court of Australia in Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525. In the course of discussing whether there was a distinction between civil and criminal contempt their Honours said;
15. One problem is that there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual. Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court's authority. Moreover, 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.
16. Nor can the dichotomy between proceedings in the public interest and proceedings in the interest of the individual be maintained on the basis that some cases involve an interference with the administration of justice and others merely involve an interference with individual rights. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.
There can be no doubt that the Respondent engaged in conduct which is capable of constituting contempt of the several orders of this Tribunal, which conduct is fully described in my earlier Decision. Furthermore, as the High Court observed in Witham, the position remains that the Respondent's conduct has impacted adversely on the administration of justice even though it has remedied its position vis-à-vis the Applicant.
Furthermore, the Applicant asserted in the course of submissions that any determination by the Supreme Court that the Respondent was in contempt of the orders of this Tribunal would be of benefit to the many other residents in New South Wales who lease premises from the Respondent. As is clear from the information provided by the Respondent, it is one of the largest institutional landlords in Australia and there would be potential benefits for that part of the public represented by those residents if a finding of contempt was made. This was one of the bases upon which the Applicant submitted that no revocation or vacation of the referral order should be made.
Accordingly, there remain powerful reasons for declining to revoke or vacate the earlier referral order.
However, in determining whether to accede to the "suggestion" of the Respondent it is necessary to balance all of the relevant matters. These include, in addition to the matters referred to immediately above;
1. The Secretary of the Department of Family and Community Services has personally written to this Tribunal apologising for the failure to comply with the several orders the subject of the original referral proceedings, has undertaken to ensure compliance, and has initiated a number of processes with the aim of ensuring in the future compliance with orders of this Tribunal. That letter did not attempt in any way to justify what had occurred, but frankly and openly described the reasons for the non-compliance in terms of systemic inadequacies within the Respondent's organisation. I am impressed by the candour with which the Secretary has expressed himself.
2. The Respondent has personally apologised to the Applicant for what has occurred, and on the evidence adduced for the purpose of the hearing of this matter has addressed itself efficiently and effectively in endeavouring to rectify every outstanding issue. It is true that there is one potential remaining outstanding matter, which on the evidence seems to have been brought about by the overzealous concern by an individual within the Respondent's organisation to ensure that all outstanding matters had been attended to prior to the hearing. If this potential outstanding matter becomes a problem, the Respondent has agreed in writing, addressed to this Tribunal to remedy it.
3. The Respondent has provided supporting documentation which is indicative of revised procedures for monitoring and complying with orders of this Tribunal and which contains also a copy of an email communication personally from the Secretary to personnel within the respondent's organisation informing them of the revised procedures. All of this documentation has been made available to the Tribunal during the course of the open hearing. None of this documentation is confidential and there is no restriction on its publication. Indeed, I have earlier reproduced these documents in these reasons for decision. Accordingly, all of the persons who are tenants of the Respondent, all of the personnel and contractors who are employed or engaged by the Respondent, and all of the members of this Tribunal who deal with matters in which the Respondent is engaged will now have knowledge of these new procedures and it may be assumed that such knowledge will inform their dealings with the Respondent. To this extent, the publication of this material must satisfy the concern of the Applicant with respect to the circumstances of other tenants of the Respondent.
4. In addition to the matters referred to above, the candour with which the Secretary expressed himself, and the detailed and comprehensive revised procedures which he has introduced are indicative of a sincere and well thought out attempt to avoid problems of this nature in the future. I do not regard it in any way as reflecting a cynical attempt to avoid responsibility in the future and, more particularly, as expressed solely to avoid referral to the Supreme Court.
5. It is also necessary to assess any advantage that may be gained by continuing the referral process given the changed circumstances. I do not wish to be seen as acting presumptuously in any way in discussing what might or might not occur once the papers have been received by the Supreme Court. I observe, for the purpose of discussion only, that it is possible that the Supreme Court may determine not to initiate contempt proceedings because the Respondent has, in effect, purged its contempt. It is also possible that if the Supreme Court were to institute contempt proceedings that the Court would need to address the outstanding issue about whether or not the Respondent was amenable to contempt proceedings because of the matters relating to privilege of the Crown which I discussed in the earlier decision. Accordingly, there can be no certainty that the Supreme Court might determine to initiate proceedings, and as to the outcome of those proceedings. Furthermore, even if the Supreme Court initiated contempt proceedings and the Respondent was found guilty of contempt, I wonder what advantage might be gained. The Respondent has already candidly and very publicly conceded its failure to comply with the orders of this Tribunal, and has, in effect, purged any contempt. In reality, although the Applicant may feel some personal satisfaction if the Respondent were found guilty of contempt in the Supreme Court and to that extent personally vindicated, I have great difficulty in determining that the cause of the administration of justice and compliance with the orders of this Tribunal would be further advanced, given the public concession made by the Respondent and the introduction of its revised processes and procedures. Finally, any penalty imposed by way of fine would deprive the Respondent of some of its available resources to provide and attend to public housing for those in need. This is in addition to monetary expenses and distraction costs involved in the defence of any contempt proceedings.
I have sympathy for the Applicant's personal situation having endured lack of attention to defects in rented premises and having been exposed to the stress of attempting to have the work carried out over a long period of time and recover moneys owing to him. However, on balance, and for the reasons which I have set out above, I am of the opinion that given the changed circumstances which I have described in some detail, there is no longer any pressing reason to refer the matter to the Supreme Court. Accordingly, I intend to vacate the referral order previously made.
I do not normally acknowledge the assistance of counsel, but I shall do so in this instance for a reason which I shall shortly state. Both Mr Kell SC and Mr Eastman provided helpful assistance in allowing me to identify the many matters which I have taken into account in arriving at a decision in these proceedings, including matters of legal principle. I wish to acknowledge the contribution of Mr Eastman which was given pro bono on behalf of the Applicant. He provided an effective contradictor in proceedings which involve a number of matters of law. Without the assistance of legal practitioners who are prepared to give of their time pro bono in order to help individual litigants, and just as importantly, to facilitate the work of this Tribunal and the courts generally in the administration of justice, the ability of the courts and tribunals to serve the people of New South Wales would be diminished. In my opinion the assistance of these legal practitioners should be publicly acknowledged, and I trust that what I have said will be so regarded.
[8]
Order
The order made on 24 November 2017 in proceedings Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88 is hereby vacated
[9]
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: 08 March 2018