Douglas v NSW Department of Housing [2008] NSWSC 529 | Case summary

JUDGMENT 1 HIS HONOUR: The plaintiff and the first defendant were parties to a residential tenancy agreement ("the agreement") in respect of premises at 9 Melliodora Way, Macquarie Fields ("the premises"). The agreement commenced on 1 August 2006. Rent was payable at a subsidised rate of $71.35 per week. The first defendant purported to terminate the agreement by notice of termination founded on breach (failure to pay rent). 2 The first defendant brought proceedings in the Consumer, Trader and Tenancy Tribunal ("the Tribunal"). The proceedings were heard on 1 February 2007. The plaintiff appeared in person. The first defendant was represented by Mr Tomkins. Orders were made for termination of the agreement and possession of the premises. 3 Proceedings were brought in this Court by Summons (number 10973 of 2007). An ex-parte application was made for a stay. Thereafter the proceedings came before the Court on seven occasions. The plaintiff did not appear on any of them. As a consequence, the proceedings were dismissed and the stay was lifted. This was done in May 2007. 4 On 24 May 2007, the plaintiff brought these proceedings. The plaintiff did not appear at 9.00 am on the return date of the summons. The proceedings were dismissed by the Registrar. Later in the day, the orders were vacated. The proceedings have since been before the court on 12 July 2007, 18 September 2007 (the first special fixture for hearing), 9 November 2007, 10 April 2008 and 28 May 2008. On a number of occasions the plaintiff has not appeared. 5 A further special fixture before Harrison AsJ had been allocated for 10 April 2008. Although the plaintiff did not appear on that occasion, an adjournment was granted by her Honour. 6 A further special fixture was allocated. It was fixed for 29 May 2008. The hearing proceeded on that day. The plaintiff appeared in person together with his carer (Mr Skeates). Mr Jungwirth of counsel appeared for the first defendant. 7 The present summons is in similar terms to its dismissed predecessor. The relief claimed is as follows: "1. To receive copies of the housing file up to date to prove housing [sic] knew of multiple medical conditions on file. 2. Doctors letters of serious medical conditions. 3. Until [sic] the matter is fairly heard. 4. To gain transcript and audiotapes of 'Breach of Oaths'." 8 What is sought is far from clear. The summons has not been supported by evidence that discloses any basis for relief. The relief that can be granted by this Court is restricted to that provided by ss 65 and 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 ("the Act"). Section 65 enables judicial review where the Tribunal had no jurisdiction or a party has been denied procedural fairness. Section 67 provides an appeal where the Tribunal decides a question with respect to a matter of law. 9 These proceedings are confronted by a number of insurmountable problems. Firstly, a similar set of proceedings has been dismissed, there has been no appeal from that decision and no other application has been made to have it set aside. Leaving that matter aside, the proceedings have been brought well out of time and the proceedings are only maintainable if an extension of time is granted. There is no material placed before the Court which satisfactorily explains past default and delay. Leaving those matters aside, there has been failure to demonstrate that what was done by the Tribunal should be disturbed. In my view, there was no denial of procedural fairness and no decision with respect to a matter of law. In the circumstances, the proceedings can be seen as being an abuse of process. 10 The only material placed before the court that has relevance to the hearing before the Tribunal is the transcript. It was relied on by the first defendant. The Tribunal member delivered extempore reasons which are recorded in the transcript. There are no written reasons. 11 The documentary evidence that was before the Tribunal has not been placed before this Court. However, it appears that it may have been largely restricted to documents tendered by the first defendant (including the termination notice and rent ledger). 12 The transcript records that the Tribunal member commenced with an explanation to the parties as to how the matter would proceed. He dealt with a question of conciliation. It became apparent that conciliation was a futile exercise. He took evidence from the plaintiff as well as from Messrs Tomkins and Skeates and made his findings. In so doing, he addressed the matters which are prescribed by s 64 of the Residential Tenancies Act 1987 ("the RTA"). It may be added, contrary to what was said by the plaintiff, that such section does not refer to "special circumstances". 13 He made findings as to jurisdiction. He made findings concerning the arrears of rent. No rent was paid for the period between 7 August 2006 and 21 December 2006. At the time of the hearing, only three payments of rent had been made during the term of the agreement (including a sum of $150 which was paid at the Tribunal on the hearing day). He found that there were arrears in the sum of $1,202.01 which represented a default in respect of 132 days (which was well in excess of the requirement of breach of 14 days). These findings do not appear to be in dispute. He made a finding that the breach was serious. He addressed the other requirements of s 64(2) of the RTA. 14 The evidence given by the plaintiff included what was said by him as to his medical condition. It appears that his oral evidence had little support from documentary material. 15 There was no medical report to support what was said by the plaintiff. In his oral evidence, the plaintiff referred to what he alleged to be on the housing file. At p 28 the transcript records the following: "Mr Douglas: It's all on my medical - on me housing file. He should have it. Member: … to support this? What you say about these troubles?

Mr Tomkins: The insurers may have their own files I don't know." 16 At p. 31 the transcript records the following from the Tribunal member: "Member: … that he suffers from. The difficulty that I have in this matter, and I need to determine whether in the circumstances of the case it's appropriate to make an order terminating the tenancy agreement or not. I don't have any evidence, other than the evidence of Mr Douglas and his carer, about the medical conditions that Mr Douglas suffers from and their nature. While I'm satisfied they may provide a level of inconvenience, I'm just not satisfied on the evidence before me that the medical circumstances of Mr Douglas is so severe that I should decline to make an order terminating his tenancy agreement." 17 The transcript also records that the plaintiff sought to introduce other considerations (such as the manner in which the first defendant had treated other tenants). The Tribunal member correctly refused to take such considerations into account. 18 The Tribunal member also had regard to the plaintiff's failure to comply with the previous orders of the Tribunal (orders made on 26 October 2006 and 21 December 2006), the hardship of others who had been on a waiting list for over two years to obtain occupation of what were similar to the premises and who were willing to pay rent on time. 19 I now return to what happened during the hearing before this Court. The plaintiff seemed to be either unaware of or unwilling to accept the narrowness of jurisdiction had by this Court in relation to the disturbing of the decision by the Tribunal. What it could look at was restricted to what was placed before the Tribunal. The role of the Court was either one of review or appeal. It could not conduct a fresh hearing on the merits. 20 The plaintiff addressed the Court repetitiously and at some considerable length on his personal circumstances rather than deal with matters that may attract the jurisdiction of this Court. The Court's power to intervene in this case was restricted to a demonstration of either a material denial of procedural fairness or a material error relating to the deciding of a question with respect to a matter of law. In this case, it follows from what has been earlier said that neither of those matters were made out. It may be also added that it would have been futile to attempt to do so, having regard to the material before the court. 21 It may be that the plaintiff and his family have been the victims of unfortunate events and that he suffers from serious medical problems. Be that as it may, these matters do not give this Court an entitlement to disturb the decision of the Tribunal. It may be further added that the Tribunal considered what he said about his medical problems and decided the case on the evidence that was placed before it. The findings on these matters cannot be disturbed. 22 I shall now deal briefly with the various other matters that were thrown up either by the plaintiff's process or what was said during argument. In considering these matters, I have carefully read what was recorded in the transcript. 23 I have earlier set out what was recorded on p 28 of the transcript. The plaintiff contends that Mr Tomkins committed perjury. This is a very serious allegation and should not be lightly made. In my view, a reading of the transcript does not support that contention. 24 His process perhaps suggests that this Court should either receive or provide to him copies of the housing file and doctors' letters of serious medical conditions. As earlier mentioned, the Court is not in a position to receive that material. It is not empowered to require the first defendant to provide any such material to the plaintiff. If he had intended to rely on any of it, he should have earlier obtained it and placed it before the Tribunal. 25 The plaintiff also relied on allegations that the proceedings were part-heard before another Tribunal member and that the Tribunal member who heard the proceedings was biased. 26 There was no material before this Court to support the allegation that another Tribunal member was part-heard. In any event, even if that had been the case, I am not persuaded that it assists the plaintiff with these proceedings. He was given a full and fresh hearing by the Tribunal member. 27 It was said by the plaintiff both in the Tribunal sittings and in this Court that the Tribunal member had earlier made up his mind to find in favour of the first defendant before the giving of his decision. As earlier mentioned, I have carefully read the transcript. In my view, the transcript does not support such an allegation. I am not satisfied that there was any denial of procedural fairness. 28 Before concluding this judgment, I should mention two other matters that were raised repeatedly by the plaintiff. 29 One of them concerned his complaints as to the unsuitability of the premises. It seemed to be associated with allegations of breaches on the part of the first defendant. I should further add that such breaches as alleged were not the subject of evidence before the Tribunal. 30 One allegation was that there was breach because the premises were not medically ready for him when he took occupation. He contended that the premises were unsuitable for a person of his size. He also complained about the bad condition of the premises (inter alia, it was termite ridden and should be knocked down). He further complained that such condition was a cause of certain of his present medical problems. 31 Whilst these matters do not assist the plaintiff in the present case, if they are founded in fact, it might be thought surprising that he has so desperately resisted the termination of his occupancy of the premises. 32 The other matter concerned payment of arrears. It was said from the bar table that since the decision of the Tribunal the amount of the arrears has been reduced (it was said to be reduced to an order of $900). If this be the case, whilst any payments reduce the plaintiff's indebtedness to the first defendant, they do not bring about an entitlement to a disturbing of the decision. Subsequently arising matters of reductions in arrears and entitlement to remain in occupation are matters that have to be dealt with by and between the plaintiff and the first defendant. 33 In the circumstances, the plaintiff has failed to discharge the onus of demonstrating an entitlement to relief. 34 The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. Because of the jurisdictional limitations of s 67 of the Civil Procedure Act 2005, any questions of stay will have to be dealt with by a Judge.

Douglas v NSW Department of Housing

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