Dorante-Day, Keshia v Martin

The relevant statutory provisions 6The plaintiff brought her claim pursuant to s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 ("CTTT Act"). The plaintiff 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 plaintiff does not rely on s 67 in her summons or submissions. In any event the thrust of the plaintiff's 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). Section 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 14The thrust of the plaintiff's submissions is that, firstly, the Tribunal Member prejudged her case; secondly, that she has been denied procedural fairness both in the Tribunal and in this Court. 15The 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. 16In 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. 17In 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." 18The matters raised in the plaintiffs' submissions are wide ranging. However, I shall confine this judgment to the matters raised in the summons.

Procedural fairness in Tribunal 19So 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..." 20Section 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." 21Section 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]. 22So far as procedural fairness is concerned, the plaintiff 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?" 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 decisions makers leading up to the case, the actions of the court officials and registry during the case, the procedural elements of the case itself. 23Mr 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. 24However, 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 in the Tribunal on 8 February 2011 25In proceedings RT10/57911 the first defendants sought termination of Ms Dorante-Day's tenancy alleging that she was in arrears of rent. 26At the hearing on 8 February 2011 Ms Vera Tannous and Mr Joseph Scarcello, estate agents, appeared for the first defendants. Mr Simon Dorante-Day spoke on behalf of Keshia Dorante-Day. Ms Keshia Dorante Day was present in Court. 27At the outset the Tribunal Member outlined the process of conciliation to all parties that had matters listed that day. The Tribunal Member stated (T1-2): "... Part of the Tribunal procedure when you come here is conciliation and mediation. So to give effect to the whole procedure, I ask you to go out and talk with the other side to see if you're able to work out some sot of agreement. The emphasis is on you trying to work out your own agreement and the Tribunal will then give effect, give orders to give effect to what you've done. If you can work out a solution in the confidential and informal process that's great; if not the Tribunal will work it out for you and make a decision based on the evidence before it. You both can't be right, somebody has to win and somebody has to lose. Mostly at stake is a house, so you can see it's pretty important to have pretty good, open, honest, flexible discussions about what's gone wrong, how you hope to fix it and what you propose. That's probably about it. It's the basis of trying to sort it out yourself the best way you can if it's at all possible. We have a trained mediator who is a Tribunal Member here to assist you in this process today. So to mainly the tenants, I know you've been through this before, so you are okay with it; are you guys okay at the back, you're okay with what I'm asking you to do? Don't forget we've got [indistinct] she's standing at the door. She can assist all tenants, tell you what your rights are, tell you what your obligations are, and then assist in talking to the agents with you, okay? I would strongly urge any tenant that's got any doubts to seek some assistance. At least you know where you stand. You okay with [indistinct]? All right, well I'll let you go and find a spare conciliation room and see if you can work out a solution. Good luck." 28Ms Tannous asked the Tribunal Member whether he wanted the paper work on the two properties that the Dorante-Days had leased and the Member indicated that he did not. The Tribunal Member then asked Mr Dorante-Day "how did you go with the payments?" (T2) and Mr Dorante-Day explained that he had not been able to make payments due in January (T3). From this exchange it appears that the plaintiff had been given a prior opportunity to bring the arrears of rent owing on the property up to date. 29The Tribunal Member dealt with a list of matters throughout the day. The plaintiff's matter was mentioned from time to time. At one of those mentions the Tribunal Member was informed that the parties had been unable to reach settlement. The Tribunal Member suggested to Keshia Dorante-Day that she might want to talk to the tenants' advisory worker and indicated that "the matter will probably go ahead today" (T19). The application by Mr Dorante-Day and his wife (Keshia's parents) was adjourned with directions being made (T27-28). 30Later in the day the hearing of these proceedings commenced. The Tribunal member read the file. Ms Tannous advised the Tribunal member that she was seeking vacant possession and an order for the arrears to be paid along with the daily occupation fee. She relied on documents that had been filed and she led evidence as to the arrears. The amount of arrears was said to be $3424.14, the last payment having been made on 4 February 2011 for the sum of $215 (T2, T31). Mr Dorante-Day was given the opportunity to ask questions. 31The following exchange took place (T32): "MEMBER:What else do you want to tell the Tribunal about this matter? Is [inaudible] with your knowledge? MS TANNOUS:Yes, definitely. He has owned this property for about five odd years now. He's got [inaudible] mortgage, relies on the payments every two weeks to come through to obviously accommodate his insurance and his mortgage repayments. Him and his wife are definitely going through a tough time. He's been off work because of the diabetes issue with his eyes. So he's in no situation to be having his tenants not pay anything. MEMBER:I'll give you the [inaudible]. Is there anything else you'd like to add? Would you like to ask any questions [inaudible]? MR DORANTE-DAY:Two questions. What was the debt last year, was it $3,100 or $3,400? MEMBER:$3,400. MR DORANTE-DAY:It was the same, wasn't it, because [inaudible]. MEMBER:$3,434, it's come down $10. MR DORANTE-DAY:Yes that's [inaudible]. I was just checking." 32Mr Dorante-Day was then sworn in and was asked by the Tribunal Member "what is it that you have to put to the Tribunal?" Mr Dorante-Day then sought an adjournment. He stated (T33): "If I can seek an adjournment until the other case, by which time the monies that I'd promised for the last time will be able to come through. Thus returning the majority of the money to the landlord. The reason why we got behind on the rent is we haven't had a chance yet to show, and I still won't today to get to show that, it's out of our control completely..." 33The Tribunal member asked Mr Dorante-Day why he had not brought some information with him today. The following exchange then took place (T34): "MR DORANTE-DAY:Because it would involve me bringing evidence that I haven't quite got my hands on yet, which I need some time to sort out, which is why I'm bringing in to the next one, anyway. So it's totally relevant to this case as well. MEMBER:No it's not. It's a question of whether it's been paid or whether it hasn't been paid. MR DORANTE-DAY:Well, if the money's not there because it's been removed illegally then I've got a case to argue, I believe." 34Mr Dorante-Day then expanded on these submissions. 35At T38 the Tribunal Member decided not to grant the adjournment. The following exchange took place: "MEMBER:I'm not going to adjourn this matter. MR DORANTE-DAY:You're not going to. Well, I'll appeal it in the Supreme Court because my evidence has not had a chance to be heard. MEMBER:$3,500, the rent has been paid or it hasn't been paid. MR DORANTE-DAY:Exactly, I said I understand. MEMBER:There's a breach of the Residential Tenancy Agreement. MR DORANTE-DAY:Yes, I understand that, I tried to even get my superannuation released, but we can't do it because of the payment my wife's on, they say she should go [inaudible]." 36At T39 and 41 Mr Dorante-Day agreed that the plaintiff was in arrears and told the Tribunal Member that the plaintiff was "living with us anyway at the moment". The Tribunal Member asked who was living at the property and Mr Dorante-Day replied "most of the time nobody". The Tribunal Member gave Mr Dorante-Day a further opportunity to address the Tribunal. Mr Dorante-Day took that opportunity. 37The Tribunal Member determined that the notice of termination was compliant and that therefore the residential tenancy agreement over the property was terminated. He gave reasons for his decision and made the following orders: "1By consent, order for termination and possession: the tenancy agreement is hereby terminated, and possession is to be given to the landlord on 15-Feb-2011. 2.By consent, the tenant shall pay the landlord a daily occupation fee at the rate of $30.71 per day from 09-Feb-2011 to the date possession is given. 3.The tenant, Keshia Dorante-Day, XX XXXX XXX KINGS PARK NSW 2148 Australia, is to pay the landlord, Douglas Martin and Susan Martin C/- PRIME REAL ESTATE AGENTS P/L 4/38-40 RAILWAY ROAD MARAYONG NSW 2148 AUSTRALIA, the sum of $3,424.14 on or before 15-Feb-2011. Reasons - RENT ARREARS $3,424.14 ... Reasons for decision: The notice of termination issued on 27 September 2009 complies with the provisions of S63 of the Residential Tenancies Act 1987 and has been served in accordance with Clause 6 of the 2006 Regulations. The tenant has been afforded sufficient time to comply with that notice. I am satisfied that the tenant was 14 days or more in arrears at the time the notice was served or deemed served. I am satisfied that the tenant has persistently breached the terms of the residential tenancy agreement in relation to the payment of rent. The application has been filed within the time permitted by law. I am satisfied that the landlord is suffering financial hardship due to the non payment of rent. Mr Dorante-Day has given oral testimony at the hearing regarding the non payment of rent, indicating issues with Centrelink that have caused the problems. The simple facts are that the tenant has breached the agreement by not paying rent and the landlord is suffering as a result of that breach. The problems of the tenant have effectively been transferred to the landlord. This situation is not to be tolerated and the relationship must end. Considering all of the circumstances I am satisfied that the breach justifies termination of the agreement." 38While paragraph (1) and (2) of the formal orders record that they were made by consent, this is an error. None of the orders made by the Tribunal were by consent.

Determination 39While the Tribunal Member said to all parties appearing before the Tribunal on 8 February 2011 "You both can't be right, somebody has to win and somebody has to lose" (T2), that comment was made in the context that it would be preferable if the parties worked out their own agreement rather than have a decision imposed upon them by the Tribunal. I accept that the Tribunal Member indicated to the plaintiff that he would be "certainly finalising" the plaintiff's matter today" (T7), this was moderated to "the matter will probably go ahead today" later on in the proceedings after the parties had been unable to settle (T19). These comments to not indicate that the Tribunal Member had prejudged the outcome of these proceedings. 40When the matter did proceed it was clear that only a payment of $215 had been made since the matter had last been listed before the Tribunal. Mr Dorante-Day requested an adjournment. He was given a reasonable opportunity to make submissions as to the reasons why he should be granted an adjournment. After hearing submissions from both parties, the Tribunal Member decided not to grant the adjournment. He was entitled to do so. 41It is my view that the Tribunal Member ensured that the plaintiff was given a reasonable opportunity to give evidence and to make submissions. The Tribunal Member did not prejudge the outcome of the proceedings. The plaintiff was afforded procedural fairness. 42The application for judicial review under s 69 of the Supreme Court Act fails. The application under s 65 of the CTTT Act also fails. The decision of Tribunal Member Halliday dated 8 February 2011 is affirmed. The summons filed 25 March 2011 is dismissed.

Application for stay of execution of orders 43The plaintiff 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 plaintiff no longer lives at the 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 plaintiff has failed in her other applications and the orders of the Tribunal Member are affirmed.

Costs 44Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the first defendants' costs as agreed or assessed.

The Court orders that: (1)The application for judicial review under s 69 of the Supreme Court Act fails. (2)The application under ss 65 of the Consumer, Trader & Tenancy Tribunal Act also fails. (3)The decision of Tribunal Member Halliday dated 8 February 2011 is affirmed. (4)The summons filed 25 March 2011 is dismissed. (5)The plaintiff is to pay the first defendants' costs as agreed or assessed.

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