Dorante-Day, Elvianna v Martin

The relevant statutory provisions 6The plaintiffs brought their claim pursuant to s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 ("CTTT Act") and relied upon that section in their written submissions. The plaintiffs can also rely on s 69 of the Supreme Court Act 1970. 7Section 69 of the Supreme Court Act provides that this Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. 8Section 65(1) of the CTTT Act provides: "(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." 9Section 65(3) however provides: "(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." 10Prerogative relief under s 65(3) of the CTTT Act is discretionary and may be refused where there has been delay on the part of the applicant or it can be said that the applicant has waived or acquiesced in the validity of the decision (Italiano v Carbone [2005] NSWCA 177 per Basten JA at [117]; Maconachie v Kullenberg [2005] NSWCA 294 per McColl JA (Basten and Giles JJA agreeing) at [59]). 11Until 1 September 2008, s 67 of the CTTT Act allowed for an appeal to the Supreme Court against a decision of the Tribunal "with respect to a matter of law". However, since that date and the commencement of Schedule 5 of the Courts and Crimes Legislation Amendment Act 2008, that appeal now lies with the District Court. The plaintiffs do not rely on s 67 in their summons or submissions. In any event the thrust of the plaintiffs' submissions is a denial of procedural fairness.

The Tribunal generally 12At the outset, it is helpful to set out some of the provisions of the CTTT Act. The functions of the Tribunal are to adjudicate disputes between consumers and disputes between landlords and tenants. The Tribunal is not constrained by the rigour of the courtroom. Its objects are to ensure that the Tribunal is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner (s 3). The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 28). 13Evidence must be given on oath or statutory declaration (s 39(1)) but the Tribunal is not bound by the rules or practice of evidence and the Tribunal may inform itself on any matter in such manner as it considers appropriate (s 28(2)). The Tribunal must conform to the rules of natural justice, but broadly speaking it has control of and responsibility for its own procedures (s 28(1) and (2)). Its business is generally conducted in public (s 33). 14Section 35 provides that the Tribunal must ensure that each party in any proceedings is given a reasonable opportunity to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and to make submissions in relation to the issues in the proceedings. Normally a party to the proceedings has carriage of his or her own case and is not entitled to be legally represented (s 36(1)). The Tribunal has the power to award costs (s 53), but usually each party bears its own costs. Pursuant to s 54 of the CTTT Act, the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal has a power to correct its decision (s 50) and the Registrar can issue a certificate which operates as a judgment to recover amounts ordered to be paid (s 51). I shall refer to ss 28 and 35 in more detail later in this judgment.

Denial of natural justice or procedural fairness 15The thrust of the plaintiffs' submissions is that they have been denied procedural fairness both in the Tribunal and in this Court. 16The starting point is Kioa v West [1985] HCA 81; (1985) 159 CLR 550, where Mason J held that the duty to accord natural justice is a duty to act fairly (at 583). In the normal course, a party to administrative proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing so as to give it a reasonable opportunity to meet that case and to advance its own. 17In Kioa v West, Mason J (at 584-585) stated that the law in relation to procedural fairness had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. Whether there is a denial of procedural fairness depends on the circumstances in each case. 18In Re Minister for Immigration & Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 the High Court discussed the manner in which procedural fairness cases are approached by the courts. Gleeson CJ said (at [37]): "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 19The matters raised in the plaintiffs' submissions are wide ranging. However, I shall confine this judgment to the matters raised in the summons. 20So far as the Tribunal is concerned, specific reference should be made to ss 28 and 35 of the CTTT Act. Section 28 relevantly reads: "28Procedure of Tribunal generally (1)The Tribunal may, subject to this Act, determine its own procedure. (2)The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness. (3)The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4)The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand: (a)the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b)the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings..." 21Section 35 reads: "Opportunity for parties to present case The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity: (a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and (b)to make submissions in relation to the issues in the proceedings." 22Section 35 provides that the CTTT "must ensure" that each party is given "a reasonable opportunity" to present its case. Provisions of the CTTT Act allow the CTTT a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness - see Italiano v Carbone at [105] and [106]. 23In their written submissions the plaintiffs referred to a speech made by French CJ to the law students' society of the University of Melbourne in 2010 entitled "Procedural fairness - Indispensable to Justice" (at [6]). French CJ, according to Mr Dorante-Day, highlights that the procedure that should be considered within a judicial review is the complete procedure, that is not just the procedure in the actual hearing, but also the decisions and actions of public decision-makers leading up to the case, the actions of the court officials and registry during the case and the procedural elements of the case itself. 24Mr Dorante-Day says that, therefore, the issues with non-payment of Centrelink funds, non-release of superannuation, decisions by NSW Housing and the behaviour of the Supreme Court registry are very important parts of this case and demonstrate that procedural fairness has not occurred at any stage of this action. 25However, I have confined myself to the question of whether the Tribunal Member accorded procedural fairness to the plaintiffs in the proceedings before that Tribunal.

The hearing at the Tribunal on 26 May 2011 26At the CTTT hearing on 26 May 2011, Ms Vera Tannous and Mr Joseph Scarcello, estate agents, appeared for the first defendants. Mr Simon Dorante-Day appeared in person on behalf of himself and his wife Elvianna Dorante-Day. At the outset, the Tribunal Member noted that there were four applications listed, two by the landlord and two by the tenant. One of the tenants' applications concerned the matter being removed to the High Court, as according to Mr Dorante-Day it raised two constitutional issues. These "constitutional" issues were firstly, the non-release of superannuation; and secondly, because the Abstudy payments were lost, delayed and stopped at times. The delay of the Abstudy payments led to the rent arrears (T2) and had the superannuation money been released the arrears could have been brought up to date (T4). 27(I note that the plaintiffs' applications for special leave to the High Court have been dismissed: Dorante-Day v Martin [2011] HCASL 150). 28The issue of the validity of the termination notice was then raised (T5). Mr Dorante-Day submitted that on the letter dated 28 January they were given 14 days to vacate the property, but on the notice of termination attached to the letter, it said that they had to vacate on the 20 February, and both dates were within the 30 days given for the end of the fixed term lease (T9). He argued that they were being asked to leave at a date that was earlier than the date upon which they should have been asked to vacate. 29Mr Dorante-Day submitted that he received notice of termination on 3 February 2011, after the final date of the lease, being 28 January 2011. The Tribunal Member determined that the notice of termination was posted on 28 January 2011 and was deemed received four working days later. Therefore the notice was received after the end of the fixed term, when it had to be given before the end of that term (T12). 30The Member then proceeded to discuss the issue of rent arrears (T16). In discussing the rent arrears, Mr Dorante-Day initially said that he was "happy to come to a payment plan" (T20), but then stated at T22: "Yeah regardless of what we do, whether we pay tomorrow or whatever, and you've got, no matter if we put money down he still wants us out doesn't he? That's the landlord's scenario. From what I see, I don't know how you see it Your Honour, maybe it would be better to set a day where we say terminate the agreement, and we move on, but if we are going to do that, it's going to have to be set at a time that is reasonable for us we've got to at least get past July to be able to do that. That's, that's, because I see he's not going to sign another lease, so even if I bent him over backwards, yeah it's not going to work I know that and that's his choice, but you know I can't force a lease upon him but I can offer ways to settle this. But it will have to be at least the end of July, she's got her assignments due at the end of June, maybe overlapping the weeks, we'd have to be looking at the end of July, give us time to move and a payment plan to catch up with arrears, so if you're happy with that, we're happy with that, then I don't mind doing that - I would say end of July beginning of August. Yeah." 31Hence, Mr Dorante-Day indicated that he could offer a way to settle these proceedings and a time at which they were to vacate the premises. 32The following discussion in relation to settlement took place (T24-25): "MEMBER: I mean there is value in having a consent order termination ... So why don't you have a talk, are you able to get--- Mr Dorante-Day: I can ring my wife now, she's home. MEMBER: Why don't you. Mr Dorante-Day: The payment plan won't be an issue, it's, for us it's always going to be the date we've got to be out by, and as I said, because I have seven children it's a bit hard to manipulate things, move things, so I'd-----" 33After the Tribunal Member was informed that Mr Dorante-Day, his wife and seven children resided at the premises, the following exchange took place (T25): "Mr Dorante-Day: Yep, so it makes it hard to find places too, that's the other issue we have too so I can say, I am confident that the end of July will be okay but it could be the first week in August, but I don't think----- MEMBER: If you, I mean, bearing in mind that, you need to take into account that you've got seven children but it's always hard to find a place I would be more inclined to give you more time than less." 34The parties then went outside to see if they could agree on the orders to be made. Before doing so, the Tribunal Member explained to the parties that if the matter settled, the other applications would just "fall away". Mr Dorante-Day agreed with this proposition (T26). 35The parties returned with a completed conciliation agreement form. It was signed by an estate agent on behalf of the landlords and by Mr Dorante-Day on behalf of the tenants. The agreed orders were: "1.By consent, order for termination and possession: the tenancy agreement is hereby terminated, and possession is to be given to the landlord on 05-Aug-2011. 2.By consent, the tenant shall pay the landlord a daily occupation fee at the rate of $53.57 per day from 27-May-2011 to the date possession is given. 3.By consent, the tenant SIMON AND ELVIANNA DORANTE-DAY, XX XXXX XXX KINGS PARK NSW 2148 Australia is to pay the landlord, DOUGLAS AND SUSAN MARTIN, C/- Prime Real Estate Agents Pty Ltd 4/38-40 Railway Road MARAYONG NSW 2148 Australia the sum of $1,500.00 for rent owed under the terms of the residential tenancy agreement for the period from 30-Apr-2011 to 26-May-2011. The payment for rent owed is due by instalments of not less than $100.00 per fortnight, first payment 02-Jun-2011 and (on alternative weeks) $50.00 per fortnight, first payment 09-Jun-2011. THE TRIBUNAL NOTES the additional terms of agreement at paragraph 13 of the Conciliation Agreement Form." 36The orders made correspond to the agreement contained in the conciliation agreement form. In particular, the form contains the paragraph "The tenancy agreement between the parties will end today and the Tenant will vacate the premises on: 5/8/11". Paragraph 13 of the conciliation agreement form, noted by the Member, deals with repairs and representation at subsequent hearings. 37In each of the four applications, the Tribunal Member made an order that "the application is withdrawn under s 28(5)(h) of the Consumer, Trader & Tenancy Tribunal Act 2001." Section 28(5)(h) of the CTTT Act provides that the Tribunal must, if requested by the applicant, allow the applicant to withdraw the application. 38In his submissions Mr Dorante-Day says that the orders to withdraw the matters he had brought were not made by consent.

Determination 39At the hearing Mr Dorante-Day, who appeared on behalf of himself and his wife, was given a reasonable opportunity to present their cases and make submissions in all four matters before the Tribunal that related to the termination of the lease and vacation of the premises. Mr Dorante-Day indicated that he could offer to settle the proceedings and was given that opportunity to do so. The parties did agree to orders in relation to termination and possession of the property, the amount of arrears to be paid, the payment of that amount by instalments and the payment of an occupation fee. Mr Dorante-Day agreed with the Tribunal Member that if the matter settled the other applications would "fall away". The matter did settle and the Tribunal Member made orders that the applications were withdrawn. 40It is my view that the plaintiffs were afforded procedural fairness. The application for judicial review under s 69 of the Supreme Court Act fails. The application pursuant to s 65 of the Consumer, Trader & Tenancy Tribunal Act also fails. The decision of the Tribunal member dated 26 May 2011 is affirmed. The summons filed 4 August 2011 is dismissed.

Application for stay of execution of orders 41The plaintiffs also sought a stay of the execution of orders. The CTTT Act does not provide for this Court to stay the execution of orders, but provides for this to be done in certain circumstances by the District Court or the Tribunal's Chairperson (s 69). So far as the possession of the premises is concerned, the plaintiffs no longer live at the first defendants' property. So far as the rental arrears and the occupation fee are concerned, it is not necessary to consider the application for a stay because the plaintiffs have failed in their other applications and the orders of the Tribunal member are affirmed.

Costs 42On 5 September 2011, the first defendants filed a motion seeking summary judgment which was stood over several times due to the plaintiffs' delay in obtaining the transcript. In January 2012, the Tribunal transcript was obtained. The plaintiffs now seek the costs of the motion. It was not appropriate to seek summary judgment. I do not make any order for costs in relation to this motion. 43Costs are discretionary. Costs normally follow the event. The plaintiffs are to pay the first defendants' costs as agreed or assessed (excluding the costs of the first defendants' notice of motion filed 5 September 2011).

The Court orders that: (1)The application for judicial review under s 69 of the Supreme Court Act fails. (2)The application pursuant to s 65 of the Consumer, Trader & Tenancy Tribunal Act fails. (3)The decision of Tribunal member O'Keeffe dated 26 May 2011 is affirmed. (4)The summons filed 4 August 2011 is dismissed. (5)The plaintiffs are to pay the first defendants' costs as agreed or assessed (excluding the costs of the first defendants' notice of motion filed 5 September 2011).

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: 28 June 2012