Carnley v Grafton Ngerrie Local Aboriginal Land Council

"[98] The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. ….

[99] There is but one common law of Australia. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of 'distorted positions'. And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics." 11 A question has arisen in these proceedings as to whether s 65 of the Consumer, Trader & Tenancy Tribunal Act 2001 ("the CTTT Act") removes or else restricts the jurisdiction of this Court. 12 Section 65 of the CTTT Act is in these terms: " 65 . Review by prerogative writ etc generally excluded (1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of: (a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or (b) a declaratory judgment or order, or (c) an injunction, in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter. (2) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the jurisdiction of the Tribunal to determine the matter was disputed if the ground on which the relief or remedy is sought is that: (a) the Tribunal gave an erroneous ruling as to its jurisdiction, or (b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed.

(3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that: (a) the Tribunal had no jurisdiction to make the order, or (b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness." 13 The CTTT Act was introduced at a time when the position about the permissibility of privative clauses was that described by Gaudron and Gummow JJ in Darling Casino Limited v NSW Casino Control Authority (1997) 191 CLR 602 at 633-634, where their Honours said: "… a clause which provides only that a decision may not be called into question in a court of law is construed as not excluding review on the ground that the decision involved jurisdictional error, at least in the sense that it involved a refusal to exercise jurisdiction or that it exceeded the jurisdiction of the decision-maker. However, and provided the intention is clear, a privative clause in a valid state enactment may preclude review for errors of any kind. And if it does, the decision in question is entirely beyond review so long as it satisfies the Hickman principle." 14 It is now clear that whilst it is constitutionally impermissible for the NSW Parliament to deprive this Court of its supervisory jurisdiction with respect to both inferior courts and tribunals, it may nonetheless deny the availability of relief for non-jurisdictional error of law appearing on the face of the record: Kirk at [96], [98]-[100]. 15 It appears now, as a result of Kirk, that the Hickman principle (The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) has little, if any, work to do at State level. State privative clauses can no longer protect an inferior court or tribunal from review by the Supreme Court of NSW when jurisdictional error has occurred: see Spigelman CJ writing extra-judicially in The Centrality of Jurisdictional Error (2010) 21 PLR 77 at pp 82-83.

Plaintiff's Submissions on Jurisdiction 16 Counsel for the plaintiff submitted that the relief which he sought was not barred by s 65 of the CTTT Act and was capable of being granted on two bases. First, that upon the proper construction of s 65 of the CTTT Act, it did not exclude judicial review where a jurisdictional error was established. Secondly, it was submitted that, if upon their proper construction, the provisions of s 65 of the CTTT Act were effective to exclude the Court's jurisdiction, then, the terms ought be read down to accord with the decision in Kirk. 17 The plaintiff's principal submission was that upon its proper construction, the provisions of s 65(3)(a) of the CTTT Act, namely, " … the Tribunal had no jurisdiction to make the order", did not exclude judicial review on the basis of jurisdictional error because: "… when one is in a state of jurisdictional error, one has no jurisdiction to go on to make the order …". (T44)

18 Counsel supported the submission by reference to Italiano v Carbone [2005] NSWCA 177 at [116], where Basten JA said " … there was a constructive failure by the Tribunal to exercise the jurisdiction vested in it by statute, in accordance with the mandatory requirements of the statute. Absent compliance with those requirements, the Tribunal 'had no jurisdiction to make the order', a finding which falls within s 65(3)(a) of the CTTT Act. In those circumstances, the Court is empowered to grant relief in the nature of certiorari, pursuant to s 65(1) of the CTTT Act." 19 That the provisions of s 65(3)(a) of the CTTT Act are a description of jurisdictional error is supported by the judgment of the NSW Court of Appeal in Scicluna v NSW Land and Housing Corporation (2008) 72 NSWLR 674 at [33], where Basten JA said: "That conclusion is also consistent with the apparent purpose of s 65 of the Consumer, Trader and Tenancy Tribunal Act , which is to limit the relief which might have been available in the nature of prerogative relief, declaratory judgments or orders and injunctions, to circumstances of jurisdictional error or denial of procedural fairness." 20 The judgment of the NSW Court of Appeal (Campbell JA, Basten and MacFarlan JJA agreeing), in Dayeian v Davidson [2010] NSWCA 42, at [38] also supports the conclusion: "Indeed, the bringing of an appeal under section 67(1) is inconsistent with alleging jurisdictional error in the proceedings below, … . An appeal under s 67(1) proceeds on the basis that there has been a decision of the Tribunal with respect to a matter of law, and that the appellant contends that that decision is wrong. In contrast, an applicant for judicial review on the basis of jurisdictional error alleges that there has been a purported decision, that in the eyes of the law is not a valid decision because a legal requirement for exercise of the Tribunal's jurisdiction has been breached. … . Now that appeals under s 67(1) lie only to the District Court, which has no jurisdiction to make orders in the nature of prerogative relief, it will be necessary for a person dissatisfied with a decision of the Tribunal to analyse carefully the reasons for dissatisfaction, as those reasons will affect the choice of the appropriate forum in which to challenge the decision." 21 Various decisions by single judges of this Court have adopted the interpretation submitted by the plaintiff as the appropriate one: Beckley v Consumer, Trader & Tenancy Tribunal [2009] NSWSC 703 at [50]-[53] (Davies J), Purnell Motors Pty Ltd v Commissioner for Fair Trading [2007] NSWSC 19 at [12]-[20] (Johnson J), and Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd [2004] NSWSC 765 at [54]-[55] (Sperling J). 22 By this path of precedent, I am satisfied that s 65 of the CTTT Act does not preclude proceedings before the Supreme Court for judicial review where the plaintiff can establish jurisdictional error. Jurisdictional error leads to the inferior court or tribunal having no "… no jurisdiction to make the order …" 23 Although there is strictly no need for me to consider the second basis advanced by the plaintiff, it is convenient to do so, because the same result can now be reached by reference to the need, in accordance with the High Court of Australia's decision in Kirk, to read down the effect of s 65 of the CTTT Act so as not to restrict the inherent jurisdiction of the Court to undertake judicial review and to make an order in the nature of a prerogative writ, when jurisdictional error has been found: see Kirk at [100].

Nature of judicial review 24 It is clear that in undertaking the exercise of its inherent jurisdiction to supervise inferior courts and tribunals, the Court is not undertaking a merits review of the decision of the Tribunal. In considering whether the Tribunal has had regard to a relevant consideration, a court must proceed with caution lest it exceed its supervisory role by reviewing the decision on its merits: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 per Mason J, Weal v Bathurst City Council (2000) 111 LGERA 181 at [82] per Giles JA. 25 It is not, in the absence of any specific statutory provision, for this Court to determine the appropriate weight to be given to matters which are required to be taken into account in the exercise of the statutory power by the Tribunal. That is ordinarily a matter for the decision maker: Peko-Wallsend at p 41. 26 It is important, in the particular circumstances of this case, to draw attention to the limited exercise that this Court engages in when its jurisdiction addressing judicial review is invoked. My decision does not involve the expression of any opinion whatsoever on the substance, or merits, of the dispute between the plaintiff and the Land Council, namely, whether the conduct of the plaintiff over an extended period of time has regularly and persistently breached the residential tenancy agreement. That is a matter for the Tribunal. 27 It follows that this decision involves neither a win, nor a loss, by one or other party on the substance of the dispute between them. It merely involves the supervision by this Court of the Tribunal's exercise of its statutory powers.

The Tribunal's decisions 28 There are three decisions of the Tribunal from which the plaintiff seeks relief by way of these judicial review proceedings. 29 The first decision is that of the Tribunal of 21 October 2008 ("the October Order"). The plaintiff submits that order 2 made that day was beyond power. It is in these terms: "If the tenant fails to comply with this order in any respect the landlord has leave to request (by relist) an urgent hearing to determine whether the tenancy agreement should be terminated." 30 The second "decision", to use the term adopted by the plaintiff, which the plaintiff seeks to make the subject of review, is the conduct of the Chairperson of the Tribunal in permitting the Tribunal to be constituted by a member other than Mr Sainsbury when the matter was heard in February and April 2010. I will refer to this "decision" as the "member nomination issue". It is submitted that in the absence of a written direction under s 11 of the CTTT Act, the Tribunal could not be constituted by any member other than Mr Sainsbury, who had heard the initial proceedings in 2008 at which he had pronounced the October Order. 31 The third decision from which the plaintiff seeks relief by way of review is the final decision made by the Tribunal on 23 April 2010 ("the 2010 decision"). The Tribunal, which made the 2010 decision, was constituted by Mr Holwell. It decided that the residential tenancy of the plaintiff ought to be terminated, and that the plaintiff was obliged to deliver up possession of the house to the Land Council by 23 July 2010.

32 It will be necessary to address each of these decisions and matters of conduct separately.

The October Order 33 On 21 October 2008, the Tribunal, constituted by Mr Sainsbury, made the following orders: "The Tribunal finds that there has been a substantial breach of section 23(b) and (c) of the Residential Tenancies Act 1987, by the tenant, in particular: - excessive music noise, - loud foul language including explicit sexual descriptions not appropriate to be heard by neighbours and their children; and - personal physical threats to the persons and property of neighbours. After considering all the circumstances of the landlord and the tenant, the Tribunal declines to make an order for termination and possession, but make the following orders: 1. The tenant is to strictly observe all elements of section 23(b) and (c) of the Residential Tenancies Act 1987, especially in relation to the findings articulated above.

2. If the tenant fails to comply with this order in any respect the landlord has leave to request (by relist) an urgent hearing to determine whether the tenancy agreement should be terminated." 34 The last of these orders, number 2, is the subject of attack by the plaintiff. She attacks that order by submitting that the only statutory source for such an order is s 43 of the CTTT Act. That section is in the following terms: " 43 Enforcement of certain Tribunal orders (1) If the Tribunal makes an order in relation to any proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subsection (2) as if the notice were an application made in accordance with section 24. (4) When proceedings have been renewed in accordance with this section, the Tribunal: (a) may make any other appropriate order under this Act as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This section does not apply if the operation of an order has been suspended. (6) A notice under this section must be in the form prescribed by the regulations." 35 The Land Council does not accept any deficiency in the order. It submits that, even if s 43 is the only available source for the order, where an order is to take effect immediately and is intended to continue for an indefinite period of time, then an order worded in the way order 2 is, would be an adequate reflection of the provisions of s 43 of the CTTT Act. 36 I do not accept this submission by the Land Council. The terms of s 43 make it plain that it contemplates a circumstance where an order is made, which is accompanied by a fixed period of time within which compliance with the order is to take place. 37 An order which continues for an indefinite period, or else for a period which is not specified is not an order to which s 43 relates. An order which calls for immediate performance may be an order to which s 43 relates providing that the order also specifies a time period no later than which the order must be complied with. 38 A further question to be determined is whether s 43, however it be interpreted, is the only source of power enabling the Tribunal to relist a matter, where a breach of an order is alleged. The terms of the section do not make it plain that it is the exclusive source of the power. Subsection (1) is permissive, in its terms, and not mandatory. It suggests that the section is not the exclusive source of power. As well, s 43 is directed only to those principal orders which require compliance within a specified period, eg., payment of an outstanding sum for rent within a month. Not all orders are intended to take effect in that way. The principal order here is one example. Accordingly, I conclude that s 43 of the CTTT Act is not the exclusive source of power for order 2. 39 The Land Council also submits that the order is a proper and ordinary procedural order for which there is ample power. It points to the provisions of the CTTT Act, in particular s 28 and s 29, which permit the Tribunal to determine its own procedure, and enjoin it to act with as little formality as the circumstances permit without regard to technicalities or legal forms. This state of the Tribunal's affairs is well recognised, although it has some limits: Italiano v Carbone [2005] NSWCA 177 at [8], [11]-[13] per Spigelman CJ. 40 The Land Council submitted that, as well, s 85(1) of the Residential Tenancies Act 1987 ("the RT Act") is a sufficient source of power to make the relevant order. Section 85(1) is in these terms: " 85 Orders of the Tribunal (1) The Tribunal may, in any proceedings before it, make any one or more of the following orders: … , (d) any ancillary order which the Tribunal thinks appropriate." 41 As well, the Land Council submitted that there was an implied power in the Tribunal to make order 2 because it was a necessary order to enforce compliance with, and to give meaningful effect to, the principal order. It submitted that the principal order was founded on an express power: s 16 of the RT Act, and hence an implied power existed for the Tribunal to make all necessary orders to give effect to that express order. 42 I am satisfied that the Tribunal had the power to make order 2 as a part of the October Order. There are a number of sufficient sources of power. 43 One source can be found in s 85(1)(d) of the RT Act. Order 2 falls within the description of an "… ancillary one …". Its purpose and terms demonstrate that it was made to support the effectiveness of the principal order that the plaintiff comply strictly with the conditions of the tenancy agreement. As well it provided for prompt enforcement action, which seems to me to be an aid by way of reinforcement of order 1 which, in essence, provided for specific performance of the tenancy agreement. Order 2 is ancillary because it depends upon, and supports, order 1. It is not the principal order establishing an entitlement to relief. 44 As well, I am satisfied that order 2 can be properly described as a procedural one made for the purpose of ensuring a quick hearing where compliance with the substance of the October Order could be dealt with. Section 28 of the CTTT Act is a sufficient source for that purpose as well. 45 Accordingly, I do not find that the making of order 2, which is challenged, involved any excess of jurisdiction or jurisdictional error. 46 These sufficient sources of power meant that it is unnecessary for me to determine whether the order was grounded properly is an implied power. It would be preferable for that question to be decided when necessary. It is rather complex. 47 If I be wrong in the finding of there being sufficient power for the order, it is appropriate that I indicate that having regard to the events which followed the application to relist the matter, which I deal with below, I would not have exercised my discretion to grant the relief sought.

Procedural History in the Tribunal 48 The history of the matter after the October Order was made includes these steps. 49 The Land Council made an application to have a further hearing by letter dated 10 March 2009. On 14 April 2009, the Registrar of the Tribunal adjourned the hearing to a date to be fixed, and gave directions as to the provision by the parties to each other and the Tribunal of all documents upon which they intended to rely at the hearing. A date was fixed for the hearing. 50 A hearing took place in Grafton on 19 May 2009 by a tribunal constituted by Mr Bassett. He reserved his decision at the conclusion of the hearing. Both parties had representatives appearing for them. It is unclear to me whether those representatives were lawyers. 51 On 6 July 2009, Mr Bassett delivered a written decision which was provided to the parties. 52 On 22 July 2009, the plaintiff made an application under s 68 of the CTTT Act for the matter to be reheard claiming that she had suffered a substantial injustice because the decision of 6 July 2009 of the Tribunal was not fair and equitable. 53 On 24 July 2009, an order was made by the Tribunal staying the effect of the order made by the Tribunal, constituted by Mr Bassett, on 6 July 2009 when its reserved decision was delivered. 54 On 7 August 2009, the Chairperson of the Tribunal granted the plaintiff's application for a rehearing on the basis that the Chairperson was satisfied that the reasons for decision did not disclose that any consideration was given "… to the circumstances of the case as required by the legislation in section 64(2)(b) and the Supreme Court". 55 Thereafter, there were a series of directions made which resulted in the matter coming on for hearing before the Tribunal in Grafton on 16 February 2010. That is to say, about six months after the rehearing was granted. The directions which were made included: (a) requiring the parties to provide each other and to the Tribunal a copy of all documents upon which they each intended to rely at the hearing of the matter (26 June 2009); (b) permitting evidence to be placed before the Tribunal about the plaintiff's alleged disability so that the question of granting leave for both parties to be legally represented at the final hearing (31 August 2009); (c) granting an application by the plaintiff for an extension of time for the parties to comply with the directions as to exchange of documents (30 September 2009); (d) granting an application which permitted both parties to have access to documents produced under summons (13 October 2009); (e) granting leave to both parties to be legally represented at the hearing of the matter, and seeking to set the matter down for hearing on a date convenient to legal representatives (20 October 2009); (f) granting an application for an adjournment of the hearing of the matter from the date fixed to a new date because of the unavailability of legal representation for the plaintiff (10 November 2009); and (g) fixing the matter for hearing on 16 February 2010, a date which was suitable to the legal representatives of both parties. 56 The matter was heard on 16 February 2010 and then was adjourned part heard until 23 April 2010. On each of these hearing days both the plaintiff and the Land Council were represented by a lawyer. 57 The lawyer appearing for the plaintiff made no complaint, at any time, about any prejudice arising to the plaintiff by way of a lack of understanding about the issues to be determined in the proceedings, the nature or matter in dispute, nor any other complaint about inadequacy of the listing procedures. The lawyer did not call for a notice of the kind prescribed by the Regulations and referred to in s 43(2) of the CTTT Act. No suggestion was made that the plaintiff required any further adjournment in order to enable her to put all matters that she wished before the Tribunal. 58 There is no suggestion made in these proceedings that there has been any denial of procedural fairness in and about the way in which the proceedings were heard and determined by the Tribunal in 2010. 59 Having regard to this sequence of events, including the extensive accommodation made in favour of the plaintiff by the Tribunal to ensure that she had sufficient notice of, and was able to be fully prepared for, the hearing which took place in 2010, and having regard to my satisfaction that she has had a full and complete opportunity to place all matters pertaining to the merits of the dispute before the Tribunal, I would not be justified in exercising my discretion to make an order quashing the October Order if that order was found to be defective.

Member nomination conduct 60 The plaintiff submitted that where a matter is relisted to deal with enforcement of an order made by the Tribunal, under its powers in s 43, then the matter must be heard by the original tribunal member unless a direction in writing was given in accordance with s 11 of the CTTT Act. Counsel submitted that, in the absence of any such direction, the Tribunal was not properly constituted, had no jurisdiction and hence any decision of the Tribunal, improperly constituted, ought to be quashed. 61 Section 11 of the CTTT Act is in the following terms: "11 Constitution of Tribunal for particular proceedings (1) For the purposes of any proceedings, the Tribunal may be constituted by 1, 2 or 3 of its members. (2) The Chairperson may give directions as to which member or members are to constitute the Tribunal for the purposes of any particular proceedings or class of proceedings. (3) In giving a direction as to the member or members who are to constitute the Tribunal for the purposes of any particular proceedings, the Chairperson is to have due regard to the degree of public importance or complexity of the matters to which the proceedings relate. (4) A direction under this section in respect of particular proceedings may be revoked, and another given in its place: (a) at any time after the giving of the direction and before the commencement of the hearing of the proceedings, or (b) if the member constituting the Tribunal (or, in the case of proceedings where it is constituted by 2 or more members, one of those members) during the hearing of the proceedings, or after the completion of the hearing but before the matter to which the proceedings relate is determined: (i) ceases to be a member, or (ii) ceases to be available for the purposes of the proceedings, at any time after the member ceases to be a member or to be available. (5) The Tribunal, if reconstituted in accordance with subsection (4) (b), may, for the purposes of the proceedings, have regard to any record of the proceedings of the Tribunal as previously constituted, including a record of any evidence taken in the proceedings." 62 The plaintiff submitted that the significance of a direction under s 11 was that unless the Tribunal was reconstituted in accordance with s 11 direction, then the Tribunal could not have regard to any previous record of the proceedings, including a record of the evidence taken in the proceedings. The plaintiff submitted that since Mr Holwell, who constituted the Tribunal in 2010 had taken as his starting point for that hearing the judgment of the Tribunal of October 2008, and had accepted the factual allegations considered in that decision as having been proved, his conduct amounted to a fundamental jurisdictional error. 63 The Land Council submitted that there was no proof of what direction had in fact been given, that there was no requirement for any direction to have been given in writing, and that an essential element of the plaintiff's submissions, namely, that there was only one set of proceedings, was not proved. Rather, the Land Council submitted, the hearing which was conducted in 2010 was a separate proceeding from that which was conducted in 2008, and hence there was no need for a direction under s 11(4) of the CTTT Act. 64 In support of its allegation that there was no adequate s 11 direction, the plaintiff tendered a bundle of documents which became Ex A. The documents were said to be all those produced by the Tribunal in answer to a notice to produce documents for inspection served by the plaintiff on the Tribunal. 65 The notice to produce sought the production of documents which constituted a copy of all directions given by the Chairperson or her delegate with respect to proceedings which had three separate file numbers between the plaintiff and Land Council. 66 Although the plaintiff did not refer the Court to any specific document, or attempt to analyse the bundle in any detailed way, I have read and carefully considered the whole of the exhibit. Those documents satisfy me of the following matters. The proceedings in which the October Order was made were proceedings on file no. RT08/36792. 67 In 2009, when the plaintiff applied for a rehearing of the Tribunal's decision of 19 May 2009, that application was treated as a new application, a new file was opened as RT09/34083 which concluded with the decision of 6 August 2009 by the Chairperson to set aside the decision of the Tribunal of May 2009 on the basis of substantial injustice. 68 The hearing which then took place in 2010, which may conveniently be referred to as the s 68 rehearing, (ie., the rehearing following a successful application under s 68 of the CTTT Act) was then given a further file number by the Tribunal being RT09/36602. 69 Once the Chairperson of the Tribunal has granted an application under s 68 of the CTTT Act for a rehearing, certain mechanical provisions are contained in that section. They are: "(9) If the application is granted, the Chairperson is to determine: (a) the constitution of the Tribunal in a manner appropriate for the purposes of the rehearing (having regard to the circumstances of the case), and (b) the matters that are to be reheard. (9A) … (10) The rehearing is to be dealt with by the Tribunal as a fresh hearing of the matters to be reheard, but it does not give rise to any further rehearing under this section. (11) Subsection (9) does not prevent the Tribunal from dealing with any matter that arises during the rehearing so long as it is a matter that is related to the completed proceedings." 70 It is to be observed that the provisions of s 68 refer to the rehearing of a "completed proceedings". This suggests to me that, as the numbering system within the Tribunal recognises, the proceedings heard in 2010 were not one and the same proceedings as those which resulted in the October Order. Those proceedings were completed. 71 As well, the provisions of s 68(9) which deal with the constitution of the Tribunal suggest that for a rehearing the Chairperson determines the constitution of the Tribunal in accordance with s 68(9) and not s 11. In Ex A, there is a notation which provides that the matter is not to be listed before Member Bassett and also a notation to the effect that the file has been referred to the Deputy Chairperson of the Tribunal who has approved of the fixing of the matter for a hearing. As well, in Ex A there are a number of notations recording that various steps which have been taken, including the fixing of the length of the hearing, have been approved by either the Chairperson or the Deputy Chairperson. 72 I am not satisfied that a determination by the Chairperson under s 68(9) needs to be in writing. I am not satisfied by a perusal of Ex A that such a determination was not made. On the contrary, it seems to me from Ex A that a direction probably was made. But I do not need to make a specific finding to that effect. Hence, I am not satisfied that as a matter of fact, the plaintiff has established the absence of a direction. 73 As well, I am not satisfied, if s 11 be the appropriate section, that a direction under s 11 needs to be in writing. I am not satisfied on the basis of the limited evidence which has been tendered that such a direction was not made. 74 In those circumstances, I am not satisfied that there has been any jurisdictional error of the kind claimed by the plaintiff in respect of the constitution of the Tribunal.

The 2010 decision 75 The proceedings were heard on a final basis in February and April 2010. The decision of Member Holwell is recorded in the transcript of the April hearing which forms part of the evidence before me. That decision commences at p 21 of the transcript of 23 April 2010 and continues to p 26. 76 In the course of that decision, the Tribunal member reviews the history of the matter and states the question for determination by the Tribunal in these terms: "The Tribunal has to determine whether the tenancy was breached between technically 21 October 2008 and 10 March 2009, the date on which the landlord asked for it to be relisted, which is roughly a five month period." 77 The tribunal member then reviews the evidence given before him and recorded that he was satisfied on the basis of the evidence of conduct during the five month period, that the plaintiff was in breach of ss 23(1)(b) and 23(1)(c) of the RT Act by causing or permitting a nuisance, and causing or permitting an interference with the reasonable peace, comfort or privacy of any neighbour. 78 The Tribunal member having held that he was satisfied as to a breach turned his attention to s 64 of the RT Act. He then said this (at pp 24-25): "As I said before, this is a rehearing of the Tribunal hearing that was previously held in May 2009, so it is a rehearing of the landlord's application as to whether or not the tenancy should be terminated as a consequence of the relist. There are some misconceptions about section 64 of the Residential Tenancies Act. Some people have a mistaken view that there is a discretion with Tribunal Members in regard to whether a tenancy should be terminated or not. That is not so. Section 64 says, 'The Tenancy must be terminated by the Tribunal if certain things are established'. The legislation does not say may, it says must. This is not a social housing case so section 64(4) does not apply . So in this case, the Tribunal has to determine two things, is the tenant in breach after October 2008 and secondly, in all the circumstances should the tenancy be terminated. If the Tribunal finds both of those matters to be - makes findings in regard to each of those matters against the tenant, then the tenancy must be terminated, we have no other discretion." [Emphasis added] 79 It is the statement that "this is not a social housing case so section 64(4) does not apply" upon which the plaintiff relies as constituting a jurisdictional error in this decision. 80 In order to determine whether there was jurisdictional error here, it is necessary to understand the provisions of s 64 of the RT Act. 81 Section 64 of the RT Act is in these terms: " 64 Application to Tribunal by landlord for termination and order for possession (1) If: (a) a landlord or a tenant gives notice of termination of a residential tenancy agreement under this Part, and (b) the tenant fails to deliver up vacant possession of the residential premises on the day specified, the landlord may, not later than 30 days after that day, apply to the Tribunal for an order terminating the agreement and an order for possession of the premises.

(2) The Tribunal, on application by a landlord under this section, is to make an order terminating the agreement if it is satisfied: (a) … (b) in the case of a notice given by a landlord on the ground referred to in section 57, relating to a breach of the agreement: (i) that the landlord has established the ground, and (ii) that the breach, in the circumstances of the case, is such as to justify termination of the agreement, or (c) … … (4) Without limiting the obligations of the Tribunal under subsection (2) (b) or (c), in considering the circumstances of a case concerning social housing premises under that provision, the Tribunal, in addition to having regard to the circumstances of the tenant and other circumstances of the case, is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the residential tenancy agreement was a serious one (and, in particular, whether it was one to which subsection (6) applies), and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including, if the tenant is a tenant under a public housing tenancy agreement, any prior tenancy of the tenant arising under any such agreement.

(5) If the Tribunal makes an order terminating a residential tenancy agreement under this section, it must make a further order for possession of the residential premises, specifying the day on which the order takes effect. (6) If the residential premises concerned are social housing premises, an order for possession made under this section is to be expressed to take effect immediately if, in the case of a breach of the agreement, the breach: (a) involves the use of the premises, or any property adjoining or adjacent to the premises (including any property available for use by the tenant in common with others), for the purposes of the manufacture or sale of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or (b) subjects persons or property to unreasonable risk, unless the Tribunal considers that it would be unjust to do so. …" 82 Counsel for the Land Council conceded before me that the premises are social housing premises and that accordingly the Tribunal was obliged to consider the matters set out in s 64(4) of the RT Act. This was an entirely proper concession. 83 The terms of s 64 of the RT Act were given careful consideration by the NSW Court of Appeal in Scicluna v NSW Land & Housing Corporation (2008) 72 NSWLR 674. That decision is authority for these propositions:

(a) the power conferred on the Tribunal by s 64 of the RT Act is a power to make an order terminating a residential tenancy agreement if it is satisfied as to the statutory criteria. It is not a discretionary power but a matter of statutory obligation, once an evaluative opinion had been formed: at [6] per Basten JA; and

(b) in the case of social housing premises, the terms of s 64(4) of the RT Act make it explicit that the considerations specified in that subsection are mandatory considerations before the Tribunal can make an order terminating the agreement: at [5], [12]-[13] per Basten JA and at [62] per Campbell JA. 84 In short, in the 2010 decision, the Tribunal was obliged to have regard to the various matters listed in s 64(4)(a)-(e) as may be relevant. The Tribunal plainly disregarded those matters because it concluded that the premises were not social housing premises. It did not embark on any determination as to which, if any, of these matters was relevant or not. It simply ignored them. 85 The remaining debate between the parties was whether this failure was a jurisdictional error, or an error within jurisdiction, and whether it was appropriate for this Court to grant relief by way of judicial review.

Jurisdictional error 86 The common law traditionally distinguished between jurisdictional error and non-jurisdictional error. The precise scope of error classified as jurisdictional was always uncertain. The boundary in contemporary Australian law between error regarded as jurisdictional and error regarded as non-jurisdictional is often difficult to find. The distinction has been described as "… chimerical …": Re Minister for Immigration & Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 at 122-3 per Kirby J. 87 The position in Australia first diverged from that in England when in Craig v South Australia (1995) 184 CLR 163, at 178-179, the High Court of Australia declined to follow Lord Reid's speech in Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147 at 171 which effectively abolished in England the distinction between jurisdictional error and error within jurisdiction. 88 The existence of the distinction, and the necessity for it, was most recently affirmed by the High Court of Australia in Kirk at [100]. 89 In Craig, the High Court of Australia held that in an inferior court (as opposed to an administrative tribunal), jurisdictional error will be established if: "… it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction exists …" (p 177).

or else where: "… an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the particular case." (p 177) 90 When speaking of administrative tribunals in Craig, the High Court of Australia said: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authorities or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." (p 179) 91 Professor Aronson in "Jurisdictional Error Without Tears", Groves & Lee (eds), Australian Administrative Law Fundamentals, Principles & Doctrines, Cambridge University Press, 2007, at pp 335-336 includes in what he describes as a "modern catalogue of jurisdictional errors", the following: "Disregarding a relevant consideration which the Act required to be considered, or paying regard to an irrelevant consideration which the Act required not to be considered, in circumstances where the Act's requirements constitute preconditions to the validity of the decision maker's act or decision." 92 Professor Aronson's list was referred to with approval by the High Court of Australia in Kirk at [71]. 93 Considerable debate was engaged in by the parties as to whether or not the Tribunal was an inferior court or an administrative tribunal within the meaning of those expressions as they were used in Craig. 94 Having regard to my satisfaction that the mandatory requirements of s 64(4) of the RT Act were not addressed by the Tribunal, there is little to be gained by embarking upon an analysis of this interesting but esoteric question. That is because whether the Tribunal be an inferior court or an administrative tribunal, the principles described in Craig have the result that the nature of this error amounts to jurisdictional error in both circumstances. 95 The failure of the Tribunal to have regard to mandatory considerations as the statute requires, which considerations constitute preconditions to the pronouncement by the Tribunal of a valid order for termination of the agreement, is, I am satisfied, a jurisdictional error. Since the statutory considerations are mandatory the error cannot be regarded, in this case, as insignificant.

Relief 96 The decision to grant the plaintiff relief in the nature of certiorari is discretionary. There is no closed category of cases for the refusal of the discretional relief: Meagher v Stephenson (1993) 30 NSWLR 736 at 738B, Sasterawan v Morris [2008] NSWCA 70 at [73]. 97 The provision of relief by way of prerogative writ was traditionally commonly withheld if there was another "equally effective and convenient remedy": The Queen v Ross Jones; ex parte Green (1984) 156 CLR 185 at 214; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 508F. 98 However, the mere existence of an alternative statutory remedy is not necessarily fatal to the provision of prerogative relief. An order in the nature of certiorari would be afforded to an applicant where the statutory remedy was considered "nowhere near so convenient, beneficial and effectual": R v Paddington Valuation Officer; ex parte Peachy Property Corporation Limited [1966] 1 QB 380 at 400; Boral Gas at 508G. 99 The High Court of Australia held in The King v Commonwealth Court of Conciliation & Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400 that there were well recognised grounds upon which a court may in its discretion withhold the granting of the writ of mandamus: "For example, the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises, or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld." 100 The NSW Court of Appeal had regard to these considerations, when determining whether to exercise its discretion on an application for an order in the nature of a writ of certiorari: Sasterawan at [75]. 101 There is no hard and fast rule upon which the court acts in exercising the discretion whether to grant relief by way of certiorari in respect of a determination of the Tribunal which is shown to be flawed by jurisdictional error. The authorities show that the courts take a pragmatic approach to the question whether there is another equally effective and convenient remedy: Multiplex Constructions Pty Ltd v Luikens & Anor [2003] NSWSC 1140 at [95]. In Ex parte Waldron [1986] QB 824, Glidewell LJ said this at [852]: "Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available in the alternative appellate body; these are amongst the matters which a court should take into account when deciding whether to grant relief by way of judicial review when an alternative remedy is available." 102 Here there are two alternative remedies which are available. 103 Under s 67 of the CTTT Act, the plaintiff would be entitled to appeal to the District Court of NSW where the Tribunal has decided a question "… with respect to a matter of law …". I am satisfied that the issue about the 2010 decision, which I have concluded amounts to jurisdictional error, would involve a question with respect to a matter of law. 104 As well, under s 68 of the CTTT Act, the plaintiff has the right to seek to have completed proceedings reheard by the Tribunal. The grounds for such an application are that the applicant has suffered a substantial injustice because the decision of the Tribunal in the completed proceedings was not fair and equitable. The plaintiff had already had the benefit of a rehearing under s 68 of the CTTT Act, because the determination of the Tribunal member, Mr Bassett, in 2009 had not properly, in its reasons, addressed the issues raised by s 64(2)(b). The Land Council submits that that is precisely the same question as here exists, and that this remedy was open to the plaintiff. 105 Neither an application for a rehearing under s 68 of the CTTT Act was made, nor was there any appeal lodged to the District Court of NSW under s 67 of the CTTT Act. 106 Why then the Land Council submits should this court, in the exercise of its undoubted discretion, grant the relief sought? 107 The overriding purpose of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 is to facilitate "… the just quick and cheap resolution of the real issues in the proceedings": s 56 Civil Procedure Act 2005. This injunction whilst not in terms directly applicable to proceedings under s 69 of the SC Act, is nevertheless an important and appropriate consideration to be borne in mind, and applied here. 108 Proceedings in this Court are not inexpensive. The plaintiff has succeeded in demonstrating a significant jurisdictional error because the Tribunal has failed to consider mandatory requirements. An appeal to the District Court or else a consideration by the Chairperson of the Tribunal under s 68 by way of an application for a rehearing, could if successful, only result in the matter being referred back to the Tribunal for a further hearing. The same result, ie., a reference back to the Tribunal for a hearing on the merits, can be readily achieved by the exercise of the Court's discretion. 109 However, the mere fact that this Court possesses a supervisory jurisdiction and can grant relief by way of judicial review does not mean that the exercise of the discretion to grant relief will be an automatic response to every claim brought before the Court. 110 Many of the disputes before the Tribunal will involve small amounts of money or straightforward questions of law. In 2008, s 67 of the CTTT Act was amended to provide for the appeals under that section to be heard by the District Court of NSW and not the Supreme Court. The Attorney General of NSW said in the Second Reading Speech about the Bill which introduced the relevant amendments: "The Bill will amend a number of Acts in order to improve the efficiency and operation of the courts … … The Supreme Court generally deals with disputes involving large amounts of money or proceedings involving difficult and important questions of law. The District Court generally deals with less complex disputes and proceedings involving smaller amounts of money. In a number of classes of cases currently going to the Supreme Court, the District Court has been identified as a more suitable venue for the cases to be held. These classes of cases involve small claims or proceedings, the subject matter of which is of very limited monetary value. Transferring such cases will free up sitting time for the Supreme Court and will encourage the use of a more appropriate and less expensive forum for resolving smaller matters …" 111 Section 68 of the CTTT Act provides for the Chairperson of the Tribunal to grant an application for a rehearing of the matter if substantial injustice has occurred. 112 Both an appeal to the District Court under s 67 of the CTTT Act, and a rehearing granted by the Chairperson of the Tribunal under s 68 of the CTTT Act, are less expensive and more expeditious means, speaking generally, than proceedings for judicial review before this Court. Those pathways result in a hearing in a more suitable venue than the Supreme Court. 113 Parties are not entitled to expect simply because they bring proceedings to this Court that the Court will automatically grant relief. The failure to take advantage of other avenues for rehearing or for appeals where those avenues are quicker, less expensive and more suitable or appropriate, is a matter which can be, and typically will be, weighed in the balance by this Court when considering whether to exercise its discretion or not. 114 However, I have been persuaded that in the particular circumstances of this case, it would be just for me to exercise my discretion to grant the relief sought. These are the features which lead me to that conclusion in this case:

(a) The lengthy history of the proceedings before the Tribunal dealing with the merits of the dispute;

(b) the personal circumstances of the plaintiff which appear adequately from the proceedings before the Tribunal;

(c) the wasted cost and expense to which both parties would be put, if they were forced to seek out and use one or other of the alternative venues;

(d) the interests of the plaintiff's neighbours in having the residential status of the plaintiff determined expeditiously;

(e) the obvious and clear nature of the jurisdictional error which has been established; and

Costs 115 The plaintiff seeks an order for costs. The Land Council resists an order for costs. 116 Although they ordinarily follow the event, an order for costs is within the discretion of the Court: s 98 Civil Procedure Act 2005. 117 The only jurisdictional error of which I have been persuaded is that attended by the failure in the 2010 decision of the Tribunal to address the mandatory statutory requirements before making the orders which it did. 118 At the hearing before the Tribunal, both parties were represented by lawyers. It is the obligation of all lawyers appearing in proceedings to draw the attention of courts, or in this case the Tribunal member, to provisions of the statute law which impact upon the decision which the Tribunal member is being asked to make. It matters not that the tribunal is a specialist tribunal and may be taken to know of the particular statutory provisions. It is irrelevant to this obligation whether the statute is thought to be favourable to or else adverse to the interests of the party for whom the lawyer appears. The necessity to draw the Tribunal's attention to the statute is part of the practitioner's overriding duty to the Tribunal. 119 What was necessary for the lawyers for both parties in this case was to inform the Tribunal member that the premises were social housing premises within the meaning of that definition in the RT Act and to invite the Tribunal member's attention to the provisions of s 64(4) and their mandatory effect. 120 Neither of the lawyers did so in their address to the Tribunal. Neither of them did so at the conclusion of the decision delivered by the Tribunal member. Each of them ought to have done so. 121 In those circumstances, the necessity for the plaintiff seeking judicial review was the error of the Tribunal member, which occurred in circumstances where neither the plaintiff nor the Land Council, as they both ought have done, drew the matter to the Tribunal member's attention. 122 In all of the circumstances I would not be disposed to make an order for costs in favour of the plaintiff. In the exercise of my discretion I would order that each party to these proceedings pay her and its own costs.

(1) The decision of the NSW Consumer, Trader & Tenancy Tribunal made on 23 April 2010 in proceedings RT09/36602 be removed into this Court and quashed.

(2) The proceedings entitled Grafton Ngerrie Local Aboriginal Land Council v Carnley No. RT09/36602 otherwise be remitted to the Consumer, Trader and Tenancy Tribunal to be dealt with in accordance with law.

(3) Each party pay her and its own costs of the proceedings.

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