CTHFCA
Chadwick v State of New South Wales
[2023] FCA 945
Federal Court of Australia|2023-08-08|Before: Knox CJ, Starke JJ, Perry J
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Source factsCourt
Federal Court of Australia
Decision date
2023-08-08
Before
Knox CJ, Starke JJ, Perry J
Source
Original judgment source is linked above.
Judgment (6 paragraphs)
[1]
- The appellant's notice of appeal and supplementary notice of appeal be dismissed.
- There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
[2]
- INTRODUCTION 1 At the hearing of this matter on 8 August 2023, I made orders dismissing the present appeal on the basis that the Court lacked jurisdiction and made an order that there be no order as to the costs of the appeal. I indicated that I would publish reasons for those orders shortly. These are my reasons for those orders.
[3]
- BACKGROUND 2 The background to this proceeding is largely summarised in the primary judge's (PJ) reasons from [1]-[19]: Chadwick v State of New South Wales [2022] FCA 1498. I briefly outline the following background points. 3 The appellant, Ms Chadwick, has lived in public housing in Belmont North in New South Wales since December 2005 (primary judge's reasons (PJ) at [6]). On 21 April 2022, Ms Chadwick was given notice of termination of her social housing tenancy agreement (and that the tenancy agreement would be not be extended) under the Residential Tenancy Act 2010 (NSW). The notice was issued on the stated basis that, by reason of her income, the appellant was no longer eligible for social housing. A review of that decision was unsuccessful. On 24 June 2022, the State sent Ms Chadwick a notice of termination and advised that she was required to give vacant possession on 29 August 2022 (PJ at [15]). 4 Ms Chadwick did not give vacant possession on 29 August 2022. On 30 August 2022, the NSW Land & Housing Corporation commenced proceedings in the NSW Civil and Administrative Tribunal (NCAT) seeking the termination of Ms Chadwick's tenancy agreement (PJ at [16]). 5 On or about Friday 18 November 2022, Ms Chadwick lodged a complaint against the Respondents in the Australian Human Rights Commission. Ms Chadwick alleges that the actions of various officers of the State and the Housing Corporation in seeking to terminate her tenancy agreement constituted unlawful discrimination as defined in s 3(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), on the basis of her sex, race and marital status. As at the date of the hearing on 8 August 2023, that complaint remains on foot. 6 On 28 November 2022, Ms Chadwick instituted proceedings in this Court attempting to restrain the State from terminating her tenancy agreement and from evicting, or taking steps to evict, her (PJ at [2]). The basis on which that relief was sought was s 46PP of the AHRC Act, which relevantly provides: (1) At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may grant an interim injunction to maintain: (a) the status quo, as it existed immediately before the complaint was lodged; or (b) the rights of any complainant, respondent or affected person. (2) The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person. (3) The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE, paragraph 46PF(1)(b) or section 46PH. 7 On 16 December 2022, the primary judge dismissed Ms Chadwick's application for an interim injunction on the basis that it was not in the interests of justice to grant the injunction. Specifically, the primary judge concluded that he was not persuaded that Ms Chadwick's claim before the Commission was sufficiently meritorious to warrant the granting of an injunction (PJ at [44]). In addition, the primary judge took into account (among other things) the fact that, if the injunction were granted, it would prevent the State from pursuing its legal rights under the Tenancy Act, referring to the State's proceedings in the NCAT seeking termination of the appellant's social housing agreement (PJ at [37]-[40]). Specifically, the primary judge observed that the effect of such an injunction would be "at the very least, to stay the NCAT proceeding until the Commission has taken action in relation to her complaint" (PJ at [38]). The primary judge considered this to be a consideration which favoured exercising "caution" in granting the injunction sought by Ms Chadwick (PJ at [39]). The primary judge also observed that, even if no injunction was granted, it would not necessarily follow that Ms Chadwick would be evicted from her housing, as this would depend on the outcome of the NCAT proceeding (PJ at [42]). 8 Following the decision of the primary judge, on 16 January 2023 the respondents' application to terminate Ms Chadwick's tenancy agreement in the NCAT was dismissed: NSW Land & Housing Corporation v Chadwick [2023] NSWCATCD 11. 9 Ms Chadwick, who was unrepresented on the appeal, nonetheless lodged a notice of appeal from the primary judge's decision on 23 January 2023, which was accepted for filing on 31 January 2023, and a supplementary notice of appeal on 1 February 2023, accepted for filing on 3 February 2023. On 17 May 2023, the respondents filed a notice of objection to competency on the ground that Ms Chadwick required leave pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) because the judgment from which she sought to appeal was an interlocutory judgment. 10 Both parties filed detailed written submissions in advance of the hearing. Those submissions addressed both the question of whether leave to appeal was required and the question of whether leave to appeal should be granted in the event that the Court accepted that leave was required. The implicit assumption underlying the detailed submissions filed by the respondent on the second issue was that, if leave was required, the Court would proceed to hear that issue, notwithstanding that no formal application for leave to appeal had been filed and served. 11 Subsequently, at the case management hearing on 21 July 2023, I explained that at the hearing then listed for the following week, the Court would hear submissions on the notice of objection to the competency of the appeal and on the question of whether leave to appeal should be granted, in the event that I was persuaded that it was necessary for her to seek leave to appeal from the decision of the primary judge. 12 When Ms Chadwick indicated that she was confused, I asked the respondents' counsel, Mr Lee, to explain the way in which he anticipated that the hearing would proceed more clearly, which he did as follows: What's happening next week is there will be a hearing as to - the first stage is whether, Ms Chadwick, you do need leave to appeal and the basis upon which the respondents say you do need leave is because the interim injunction or the judgment of [the primary judge] relating to the interim injunction was interlocutory in nature. So perhaps an exact way of rephrasing that is whether it is or was not a final order in nature. And if the court finds that leave is required, then the second step of that hearing will be whether leave should be granted or not. I don't know if I made that any more clearer. 13 It follows that, at least by the time of the case management hearing, the parties were in no doubt that the question of whether leave should be granted would be heard at the same time as the notice of objection to competency.