Douglas v NSW Land and Housing Corporation & Anor

(a) Grant the appellant leave to appeal. (b) Appeal allowed. DECISION: (c) Set aside the order made by Associate Justice Malpass on 4 June 2008 dismissing the summons filed by the appellant on 27 April 2007. (d) In lieu thereof the said summons be dismissed pursuant to r 13.4(1) of the Uniform Civil Procedural Rules 2005. (e) Each party to pay his or its own costs of the summons for leave to appeal and the appeal. (f) Order that the execution of any warrant issued for possession of the premises at 9 Melliodora Way, Macquarie Fields be stayed up to and including 12 December 2008.

CATCHWORDS: CONSUMER, TRADER and TENANCY TRIBUNAL - Termination of tenancy agreement - Eviction of tenant from subsidised housing - Sections 65 and 67 Consumer, Trader & Tenancy Tribunal Act 2001 (NSW) - Appeal from decision of Tribunal on a question with respect to a matter of law - PROCEDURAL FAIRNESS - Whether appellant denied procedural fairness - Appellant unrepresented litigant (litigant in person) - Relief claimed by appellant not available - Whether it was open to primary judge to review and determine grounds not tendered by appellant - Appellant not heard in relation grounds not tendered by him - Determination of grounds not tendered by appellant may prevent him filing properly drafted summons

Consumer, Trader & Tenancy Tribunal Act 2001 (NSW) LEGISLATION CITED: Residential Tenancies Act 1987 (NSW) Supreme Court Rules Pt 66A Uniform Civil Procedural Rules 2005 Pt 7 Div 9; Pt 13

Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150 Douglas v NSW Department of Housing [2008] NSWSC 529 CASES CITED: Grygiel v Baine [2005] NSWCA 218 Jae Kyung Lee v Bob Chae-Sang Cha & Ors [2008] NSWCA 13 McMurtrie v Commonwealth of Australia [2006] NSWCA 148 Reisner v Bratt [2004] NSWCA 22

Wayne Douglas PARTIES: Director-General, NSW Land and Housing Corporation The Consumer, Trader and Tenancy Tribunal

Cl: C J Whitelaw COUNSEL: 1 Opp: C Jackson 2 Opp: Submitting appearance

Cl: Tenants' Union of NSW Co-op Ltd SOLICITORS: 1 Opp: Cecilia O'Brien, NSW Land and Housing Corp. 2 Opp: Crown Solicitor's Office, Sydney

LOWER COURT JURISDICTION: Supreme Court

May 2007 12 July 2007 18 September 2007 LOWER COURT DATE OF DECISION: 9 November 2007 10 April 2008 28 May 2008 6 June 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Douglas v NSW Department of Housing [2008] NSWSC 529

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40156/08

TOBIAS JA BELL JA GYLES AJA

Friday 28 November 2008 WAYNE DOUGLAS v DIRECTOR-GENERAL, NSW LAND AND HOUSING CORPORATION & ANOR Judgment 1 TOBIAS JA: On 4 June 2008 Associate Justice Malpass made an order dismissing a summons filed by Mr Wayne Douglas (the appellant) in the Common Law Division of the Supreme Court on 27 April 2007 (the summons). His Honour also ordered the appellant to pay the costs of NSW Housing Corporation (the respondent): Douglas v NSW Department of Housing [2008] NSWSC 529. On the same day the appellant filed a summons for leave to appeal from his Honour's decision. That application and the substantive appeal have been heard concurrently.

The background facts 2 On 31 July 2006 the appellant entered into a residential tenancy agreement (the agreement) with the respondent in respect of premises at 9 Melliodora Way, Macquarie Fields (the premises). The agreement commenced on 1 August 2006 and the rent payable thereunder was at the subsidised rate of $71.35 per week. 3 On 30 August 2006 the respondent issued a notice of termination of the agreement requiring the appellant to vacate the premises on 24 September 2006. The notice was deemed to have been served on 5 September 2006. No rent had apparently been paid for the period between 7 August 2006 and 21 December 2006. 4 Not having vacated the premises by the due date, on 26 September 2006 the respondent filed with the Consumer, Trader & Tenancy Tribunal (the Tribunal) an application pursuant to the combined operation of s 64(1) of the Residential Tenancies Act 1987 (NSW) (the Tenancies Act) and s 24(1) of the Consumer, Trader & Tenancy Tribunal Act 2001 (NSW) (the Tribunal Act) for orders terminating the agreement and for possession of the premises. 5 The notice of termination was given pursuant to s 57(1) and (3) of the Tenancies Act upon the ground of breach of the agreement to pay rent which had remained unpaid for not less than 14 days prior to the date the notice was given. 6 The application came before the Registrar of the Tribunal for directions on 26 October 2006 when it was adjourned to a date to be fixed. A direction was given that the appellant pay the respondent the sum of $390 towards rental arrears prior to the date upon which the matter was next listed. The directions noted that the respondent would seek termination and possession of the premises on the next occasion in the event that the appellant failed to respond to the direction to pay rental arrears. Those arrears were not paid prior to the matter being relisted for directions before the Registrar on 21 December 2006 when it was again adjourned to a date to be fixed. On that occasion the appellant was directed to make the following rental payments:

27 December 2006 $200 11 January 2007 $500 25 January 2007 $400 8 February 2007 $400 22 February 2007 $400

The only rental payments apparently made by the appellant were $200 on 4 January 2007, $250 on 25 January 2007 and $150 on 1 February 2007. 7 The application came on for hearing before Member Murphy (the Member) on 1 February 2007. As at that date, rental arrears totalled $1,202.01. After conducting a hearing at which the appellant was self-represented, the Member ordered that the agreement be terminated and that possession of the premises be given to the respondent on 1 March 2007. He also made an order for the payment of a daily occupation fee of $10.19 and a further order that the rental arrears of $1,202.01 be paid on or before 1 March 2007. It was with respect to that decision that the appellant filed the summons. 8 In fact the appellant filed two summonses. The first was filed on 22 February 2007 but was dismissed on 10 May 2007. In the meantime, on 27 April 2007 the appellant filed the summons the subject of the proceedings before the primary judge. However, due to non-compliance by the appellant with the orders made by the Tribunal, on or about 28 July 2008 the respondent sought and obtained the issue of a warrant for possession. From time to time the execution of that warrant has been stayed or an undertaking given by the respondent not to execute it. 9 There is some confusion as to whether a stay of that warrant is presently operative. On 5 August 2008 an order staying execution of the warrant was granted by Price J. On 11 August 2008 Beazley JA extended that order up to and including 7 September 2008, "with the intent that no warrant for possession be executed until after that date or by further order of the Court".

I do not construe that order as one staying the execution of the warrant after 7 September 2008 until further order. 10 Her Honour also ordered that the respondent be restrained from making application for a further warrant up to and including 7 September 2008 or until further order of the Court. 11 On 8 September 2008 McColl JA ordered that the respondent take no steps to secure possession of the premises up to and including 15 September 2008. On that date her Honour ordered that the execution of the warrant issued on 28 July 2008 be stayed up to and including 10 November 2008, being the date of hearing of the appeal. 12 At the conclusion of the hearing we were informed by both parties that McColl JA had stayed execution of the warrant until further order. However, that would not appear to be the case. Nevertheless we have proceeded on the basis, acknowledged by the respondent, that the warrant would not be executed pending the determination of the present appeal. 13 I would add for completeness that on 7 February 2007 the appellant sought a rehearing of the matter by the Chairperson of the Tribunal pursuant to s 68 of the Tribunal Act which was refused on 19 February 2007.

The decision of the Tribunal 14 At the commencement of the hearing before the Tribunal the parties were informed by the Member that only half an hour had been allotted for the hearing. The hearing extended over 30 pages of transcript. At its conclusion, the Member delivered his judgment in the following terms: "In this matter, on the evidence before me on the balance of probabilities, I find the following. The first is I'm satisfied that there's jurisdiction to make an order terminating the residential tenancy agreement. A valid notice of termination has been served by the landlord's agent, Mr Tomkins on the tenant and I'm satisfied that the landlord's agent has made out the grounds required under the Residential Tenancies Act for an order to be made. In this matter I'm satisfied that there's been a series of persistent breach of the residential tenancy agreement, that being rental arrears. The orders made by the Tribunal on 26 October 2006 - and the orders made by the Tribunal on 21 December 2006, have been breached. I'm satisfied that the rent of the premises remains in arrears as of today's date is $1,202.01 and 132 days behind and I note that only three rent payments have been made since the commencement of the residential tenancy agreement while those payments have been made during the last month, those payments don't amount to sufficient in my view to become an attempt to try and rectify the breach. I accept on the face of it the evidence given to me by the tenant, Mr Douglas, about his medical conditions 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. I don't have any evidence to that effect. In this matter I have no confidence either that should I leave the tenancy agreement on foot that rent would be paid by the tenant, Mr Douglas, let alone the arrears that are owing to today. I am satisfied in the circumstances that it's fair and reasonable for me to make an order terminating the tenancy agreement because Mr Douglas has a daughter living in the premises and goes to school in the area I'll provide Mr Douglas with a period of four weeks to vacate the premises."

The terms of the summons and the jurisdiction of the Supreme Court with respect to a challenge to a decision of the Tribunal 15 The summons was prepared by the appellant in his own handwriting and under the heading "RELIEF CLAIMED" stated the following: "The plaintiff claims 1. To receive copies of housing file up to date to prove housing knew of multiple medical conditions on file. 2. Doctors letters of serious medical conditions. 3. Until the matter is fairly heard. 4. To gain transcript and audio tapes of 'Breach of oaths '. " 16 Appeals from decisions of the Tribunal are governed by Pt 6 of the Tribunal Act. Section 67(1) of that Act confines an appeal to the Supreme Court to a matter of law. It is in these terms: "If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision." 17 The phrase "the Tribunal decides a question with respect to a matter of law" was discussed by Basten JA, with whom Mason P agreed, in Grygiel v Baine [2005] NSWCA 218. At [29] his Honour said: "… Further, as the judgment of Bryson JA in Kalokerinos demonstrates, the terms of s 67(1) require that an appellant must identify with precision a decision of the Tribunal with respect to a matter of law, in order to invoke the jurisdiction of the Court. It is not necessary that the matter of law be separately identified by the Tribunal and expressly addressed as such: it is sufficient that the Tribunal reaches a conclusion with respect to some matter which requires for its determination the identification of a relevant matter of law and that error is alleged with respect to that matter of law." 18 In the present case, the Member did not separately identify and decide any question of law which was expressly raised before him. However, he was required to apply the relevant provisions of the Tenancies Act and it is now alleged that he misdirected himself in so doing and thus erred with respect to a matter of law. This is an issue to which I shall return. 19 Review of a Tribunal decision is governed by s 65 of the Tribunal Act. It relevantly provides as follows: "(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

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. … (3) A court is not prevent 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 that: (a) … (b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness." 20 The difference between seeking relief under s 65(3) of the Tribunal Act on the one hand and an appeal under s 67(1) on the other is not merely of academic interest. There are a number of significant practical differences. In particular, that of relief under s 65, being analogous to a grant of prerogative relief, is discretionary whereas if the Tribunal's decision is erroneous with respect to a matter of law, then no question of discretion with respect to the grant of relief will arise: Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150 at [29]-[30]. 21 Furthermore, although there are time limits within which an appeal under s 67(1) can be filed, there are no such limits with respect to an application under s 65(3)(b). Nevertheless any question of delay in the institution of any such proceedings may be relevant to the exercise by the Court of its discretion to grant relief if otherwise a case of denial of procedural fairness has been established.

The course of the proceedings before the primary judge 22 The respondent provided written submissions to the primary judge in which it noted that the summons pleaded "no relevant appeal grounds". After referring to s 67(1) of the Tribunal Act, it was submitted that there was no "question with respect to a matter of law" that had been decided by the Tribunal in the proceeding sought to be appealed from. The only question was the failure of the appellant to pay rent, which was not a question with respect to a matter of law. 23 The submissions then continued under the heading "Conduct of the hearing before the Tribunal on 1 February 2007". In para 10 the respondent asserted that at its highest, the appellant's complaint amounted to an allegation that the Tribunal hearing was not conducted fairly or that he did not receive a proper opportunity to put his case. After referring to the relevant provisions of s 28 of the Tribunal Act which sets out the procedures to be followed by the Tribunal, the submissions then proceeded by reference to the transcript before the Member to support the proposition that the conduct of the hearing by the Member evidenced nothing that "could conceivably give rise to a legitimate complaint that [the appellant] was denied procedural fairness". The submissions then proceeded to consider whether there were any possible grounds for review of the Member's decision concluding that after review of the transcript it was clear that the Member had asked himself the right questions and had come to a decision which was open to him. 24 Finally, and significantly, after referring to the terms of the relief sought in the summons to which I have referred in [15] above, it was submitted that the proceedings were an abuse of the Court's process in that they did not disclose any or any reasonable cause of action. That submission was clearly correct and of itself provided a proper basis for the dismissal of the summons without further consideration. 25 At the hearing before the primary judge on 29 May 2008, the appellant indicated that he would be doing "the talking". His Honour then said "You tell me what you want to say". The appellant proceeded to address his Honour over the next two and a half pages of transcript. Nothing he said could be construed as constituting a submission on any question of law or as an assertion that he had been denied procedural fairness by the Member. It was very much a reiteration of the same assertions that he had made to the Tribunal with respect to his medical condition and other factors relating to his inability to pay rent. In essence, it was a plea to the primary judge that he not be evicted from his home. 26 Counsel for the respondent then addressed his Honour, referring him to his written submissions. He took his Honour through the transcript of the hearing before the Member. He referred to the provisions of s 64 of the Tenancies Act which governed the issues before the Member indicating the manner in which they had been dealt with. He finally submitted that there was no apparent error of law on the part of the Member or any support for the proposition that the appellant was not given an ample opportunity to give his evidence. 27 The appellant replied but nothing he said was responsive to the submissions made on behalf of the respondent. Essentially the appellant sought to impress upon the primary judge the injustice of his being evicted over a relatively small amount of unpaid rent the arrears of which he was attempting to pay in circumstances where he was looking after his daughter who was living with him and whose custody he would lose, so he asserted, if he had nowhere to live. At the conclusion of the hearing his Honour reserved judgment.

The primary judge's reasons 28 At [7] his Honour set out the terms of the summons to which I have referred at [15] above. What was sought, he observed at [8], was "far from clear". His Honour noted that the summons had not been supported by evidence that disclosed any basis for relief. 29 After referring to ss 65 and 67 of the Tribunal Act, the primary judge observed (at [9]) that the appellant's proceedings were confronted by a number of insurmountable problems. Having noted that the summons had been filed out of time and that no material had been placed before the Court which satisfactorily explained any past defaults and delays, he continued: "Leaving those matters aside, there has been a 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 been seen as being an abuse of process." 30 His Honour then noted (at [10]) that the only material placed before him which had relevance to the hearing before the Tribunal was the transcript which had been relied on by the respondent. He then proceeded to summarise the conduct of the proceedings by the Member by reference to the transcript. Having stated (at [14]) that the evidence given by the appellant included what he had asserted as to his medical condition, his Honour observed that it appeared that his oral evidence had little support from the documentary material. In particular, he found (at [15]) that there was no medical report before the Tribunal to support what the appellant had said with respect to his medical condition. 31 The primary judge then turned to the manner in which the appellant had conducted the proceedings before him. He noted (at [19]) that the appellant seemed to be either unaware of, or unwilling to, accept the narrowness of the Court's jurisdiction to disturb a decision of the Tribunal. He then said (at [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."

32 His Honour then sought to deal with what he described as other matters which had been thrown up either by the appellant's process or what was said during argument. These were matters which clearly did not bear upon the correctness of the Member's decision with respect to any matter of law or upon his conduct of the hearing with respect to any denial of procedural fairness. He referred also to an assertion by the appellant that the Member had earlier made up his mind to find in favour of the respondent before giving his decision. Having read the transcript, his Honour dismissed that allegation, indicating (at [27]) that he was "not satisfied that there was any denial of procedural fairness". 33 Finally, after dealing with two other matters which had been repeatedly raised by the appellant concerning the unsuitability of the premises and alleged breaches by the respondent of the agreement, his Honour concluded (at [33]) that in the circumstances the appellant had failed to discharge the onus of demonstrating any entitlement to relief.

The appellant is referred to the Registrar under Part 66A of the Supreme Court Rules 34 Immediately after the primary judge had dismissed the appellant's summons, the respondent made an application to Rothman J for the removal of the stay of execution of the warrant for possession which had been granted by Harrison J on 9 November 2007. At the same time, his Honour heard a Notice of Motion filed by the appellant for a stay of the judgment of the primary judge. On this occasion his Honour made the following order: "Bearing in mind the means of the [appellant] Mr Douglas, his alleged medical disabilities, the nature and complexity of the proceedings before the Tribunal, the Court and the Court of Appeal, the Court, in the interests of the administration of justice, refers Mr Douglas to the Registrar for a referral to a Barrister on the Pro Bono Panel for legal assistance, being advice, representation on directions hearing, interlocutory and/or final hearing, drafting and/or settlement of documents and/or representation generally before the Court and/or Tribunal relating to these proceedings."

This order was made pursuant to cl 4(1) of Pt 66A of the Supreme Court Rules . 35 It is apparent that before Rothman J exercised his power under Pt 66A, no other judicial officer, of whom there were a number before whom the proceedings had come for one reason or another, had thought to consider referring the appellant pursuant to that Part for pro bono assistance. Nor, apparently, had the respondent considered it appropriate, although under no legal duty to do so, to have suggested such a course. Obviously, the appellant himself was unaware of the Court's power in that regard. This is indeed unfortunate. As the respondent observed on the hearing of the appeal, had Rothman J not exercised the Court's power under Pt 66A, then the present appeal would, in all probability, never have been brought. If anything, such an observation only enhances the wisdom of Rothman J's reference. It is a pity that it did not occur at a much earlier point of time. 36 Part 66A has since been repealed and its equivalent inserted in Part 7 Div 9 of the Uniform Civil Procedural Rules 2005 (NSW) (UCPR), so that the power of referral under cl 4(1) is now found in r 7.36 of the UCPR. It is therefore now available to all the courts to whom those rules apply - see r 1.5. Of course, the court's power under r 7.36 should be only used in an appropriate case where a litigant is unrepresented and then only sparingly so as to ensure that an unreasonable burden is not placed upon members of the Pro Bono Panel. Further, there are probably cases where the power to refer, if it is to be considered at all, should be so considered at an early stage of proceedings in which a litigant in person is involved. The present was such a case. 37 However, it is important to emphasise that r 7.33(5) in Div 9 of Pt 7 of the UCPR provides that nothing "requires the Court to make a referral, or to consider a litigant's case for referral , under this Division." (Emphasis added) 38 Nevertheless, it is also important that the existence of r 7.36 be recognised and, when an unrepresented litigant is involved, kept in mind for consideration in an appropriate case. However, a failure to consider exercising the power of referral cannot be a legitimate ground of challenge. 39 In this context it is apposite to refer to two recent decisions in this Court relating to unrepresented litigants. The first is McMurtrie v Commonwealth of Australia [2006] NSWCA 148 where (at [47]) Ipp JA, with the concurrence of Hodgson and Basten JJA, cited with approval the following passage from the judgment of Hodgson JA (with whom Ipp JA had agreed) in Reisner v Bratt [2004] NSWCA 22 at [4]: "Parties are entitled to appear unrepresented in proceedings in the Court, and sometimes, because of lack of funds or other reasons, they have no alternative. The Court has the duty to give such persons a fair hearing, and it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator." 40 The second decision is Jae Kyung Lee v Bob Chae-Sang Cha & Ors [2008] NSWCA 13 where Basten JA, with the concurrence of Hodgson and Bell JJA, relevantly observed (omitting citations): "48 The Court was invited to assess the conduct of the trial judge in part by reference to the principles said to govern the conduct of a trial where one party is a litigant in person and not fluent in English. The relevant principles, if they can be so described, derive from the obligation of a trial judge to take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure of the court as is reasonably practicable for the purpose of ensuring a fair trial… 49 There will be cases where a failure to provide assistance to a litigant in person will give rise to a miscarriage, so that the trial may be overturned on appeal …" 41 The above observations by members of this Court are relevant to the appellant's allegation, foreshadowed on the appeal, that he was denied procedural fairness by the Member. But they also highlight the potential role of r 7.36 which, if invoked, in an appropriate case, has the potential (I put it no higher than that) to avoid the difficult balancing act required of a judge before whom an unrepresented litigant is appearing.

The appellant's case on appeal 42 The relief claimed by the appellant was that the judgment of the primary judge be set aside. The basis of that claim was that his Honour had erred in proceeding to hear the summons upon the assumption that it constituted a valid appeal under s 67(1) of the Tribunal Act or a valid application for judicial review under s 65(3)(b). It was submitted, correctly, that the summons was not only defective in form but that on its face it did not constitute or purport to constitute an appeal under s 67 or an application for review under s 65. In other words, it did not disclose any cause of action, reasonable or at all. 43 As the relief sought in the summons was misconceived, it was submitted that his Honour should have peremptorily dismissed the proceedings without proceeding to a determination on the merits of an assumed appeal under s 67 and an assumed application for review on the ground of a denial of procedural fairness under s 65. 44 The real concern of the appellant was that if his Honour's judgment was to stand, then it contained merit findings made with respect to both an appeal under s 67(1) and an application review under s 65(3)(b) which would potentially give rise to a defence of res judicata or issue estoppel in the event that the appellant filed, as he wished to do, a properly drafted summons seeking relief under both those provisions. The respondent confirmed this concern. It advised the Court that those defences would be raised if a new summons seeking such relief were filed. 45 To illustrate the new case sought to be made on a new summons it was submitted that the Member had erred in law in applying s 64(2)(c)(ii) of the Tenancies Act rather than s 64(2)(b)(ii) in his consideration of whether the Tribunal on the respondent's application should make an order terminating the agreement. Section 64 relevantly provides as follows: "(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 s 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) that any other case …: (i) that the tenant has seriously or persistently breached the agreement, or (ii) that, having considered the circumstances of the case, it is appropriate to do so ." (Emphasis added) 46 In the present case the notice of termination given by the respondent to the appellant was on a ground referred to in s 57, namely, the non-payment of rent. Accordingly, once that ground was established the Member could not make an order terminating the agreement unless pursuant to s 64(2)(b)(ii) he was satisfied that that breach, in the circumstances of the case, was such as to justify termination. 47 However, the Member does not appear to have considered that provision. Rather, he purported to apply sub-paragraph (c)(ii) when considering whether in the circumstances of the case it was appropriate to order termination. Thus in the transcript at pgs 5-6 the Member said: "The way it operates is I'll hear evidence from the applicant first, if you can establish a case I'll check the notice of termination and so on to see if that is valid. Whether there is a serious and persistent breach of the residential tenancy agreement or not and then whether in the circumstances of the case it is appropriate to make an order terminating the tenancy agreement or not ." (Emphasis added)

It is apparent from the foregoing that the Member was purporting to apply sub-paragraph (c) of s 64(2) and not subparagraph (b). 48 In his judgment which I have set out in [14] above, he said that he was "satisfied that there has been a series of persistent breaches of the residential tenancy agreement, that being rental arrears".

He further said: "The difficulty that I have in this matter, and I need to determine whether in the circumstances of the case it is appropriate to make an order terminating the tenancy agreement or not …" 49 Finally the Member concluded his judgment in these terms: "I am satisfied in the circumstances that it is fair and reasonable for me to make an order terminating the tenancy agreement." 50 It would be inappropriate to express a concluded view on whether the appellant's contention was correct, as the issue was not before us for decision. However, it is not unreasonable to observe that there was at least an arguable case that the Member applied the wrong subparagraph of s 64(2) and thus decided a question with respect to a matter of law erroneously. Even if one accepts that a finding that it is fair and reasonable to make an order terminating the tenancy is equivalent to a finding that it is appropriate to do so, nevertheless it is arguable that that is a substantively different test to one that requires the Tribunal to be satisfied that the relevant breach in the circumstances of the case is such as to justify termination of the agreement. 51 The foregoing was not an issue that was ventilated before the primary judge who contented himself with merely asserting (at [9]) that there was "no decision with respect to a matter of law". This is not surprising given that first, the appellant did not address him on any such question and, second, the respondent's written submissions merely asserted that the only question with respect to a matter of law which the Tribunal was required to consider was whether the appellant had paid his rent on time or at all. In these circumstances, and again without expressing a concluded view on the issue which was not before us, it is arguable that no question of res judicata or issue estoppel could arise out of the primary judge's reasons with respect to the matter of law which the appellant has now sought to identify. 52 However, it is apparent that his Honour did determine whether the appellant had been denied procedural fairness and came to the conclusion that he had not. The respondent submitted that it was open to his Honour to treat the appellant's summons on its merits and to conduct his own review of the Member's decision. Indeed, it was submitted that, given that the appellant was unrepresented, it was preferable that he take that course. 53 In so submitting, the respondent nevertheless accepted that in the summons the appellant sought various forms of relief not available to him and made a number of complaints about the hearing of the matter in the Tribunal, none of which stated any question for determination by the Court. Whilst he neither demonstrated any understanding as to what remedies were open to him nor any insight into the nature of judicial review, it was nevertheless submitted that the appellant had clearly demonstrated that what he sought was any remedy that would either prevent, or be a step in the prevention of, his eviction from his home. 54 There is no doubt that the appellant wished the primary judge to set aside the Member's order terminating the agreement and ordering that he give up possession of the premises. However, at no time did he purport to tender to his Honour any issue that would, from a jurisdictional point of view, support the grant by the Court of any such relief. 55 If the appellant did not tender an issue under s 67(1) or s 65(3)(b) of the Tribunal Act, then in my respectful view it was inappropriate for the primary judge, albeit at the invitation of the respondent, to embark upon a consideration of the merits of those issues. The result of the course that his Honour took was, in effect, that he only heard one side of the argument on those issues, namely that of the respondent. The appellant not only did not seek to address those issues but also was understandably incapable of doing so. In these circumstances, they should not have been the subject of findings in respect of which one party had not been properly heard and which might have founded an estoppel against that party. That of itself was a denial of procedural fairness. 56 The proper course was for the respondent to have submitted, and his Honour to have determined, that the proceedings should be dismissed pursuant to Pt 13 r 13.4(1) of the UCPR. That rule provides as follows: "(1) If in any proceedings it appears to the Court in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or

(c) the proceedings are an abuse of the process of the court,

the Court may order that the proceedings be dismissed generally or in relation to that claim." 57 In the present case it was clear that the summons did not disclose any reasonable cause of action; nor did the appellant's conduct of the hearing before the primary judge. Furthermore, it was the submission of the respondent and the finding of the primary judge that the proceedings were an abuse of process. That should have been the end of the matter. At that point his Honour should have dismissed the proceedings pursuant to r 13.4(1) and not embarked upon a hearing of issues which were never tendered before him by the moving party. 58 Although I can readily accept that the primary judge was merely attempting to assist the appellant by purporting to resolve issues that he might have advanced at the hearing before him, nevertheless in the circumstances it was an appellable error on his part to have taken that course, resulting in a miscarriage of justice. As the ground upon which the primary judge dismissed the summons was founded on his finding that the appellant had not made out a case either of a denial of procedural fairness or a material error relating to the Member's decision on a question with respect to a matter of law, it follows in my view that his Honour's order of dismissal, which was founded on those findings, should be set aside. Rather, this Court should substitute an order dismissing the summons pursuant to r 13.4(1) of the UCPR.

Conclusion 59 In my opinion error on the part of the primary judge has been demonstrated sufficient to justify the setting aside of his Honour's orders dismissing the summons and an admittedly identical order substituted but on a different legal basis. The order for costs made by his Honour should stand. 60 So far as the costs of the appeal are concerned, the appellant has been successful although, at the end of the day, this Court has made an order identical to that made by the primary judge. Nevertheless, in the circumstances, in my opinion the appropriate order for costs of the summons for leave to appeal and of the appeal is that each party should bear their own costs of those proceedings. Finally, in my view the stay of execution of the warrant for possession of the premises should be renewed for 14 days to enable a new summons to be filed and a fresh stay to be obtained or, if that course is not pursued, to provide the appellant with a short period in which to make alternative arrangements for accommodation for himself and his daughter. 61 I would therefore propose the following orders: (a) Grant the appellant leave to appeal.

(c) Set aside the order made by Associate Justice Malpass on 4 June 2008 dismissing the summons filed by the appellant on 27 April 2007.

(d) In lieu thereof the said summons be dismissed pursuant to r 13.4(1) of the Uniform Civil Procedural Rules 2005.

(e) Each party to pay his or its own costs of the summons for leave to appeal and the appeal.

(f) Order that the execution of any warrant issued for possession of the premises at 9 Melliodora Way, Macquarie Fields be stayed up to and including 12 December 2008. 62 BELL JA: I agree with Tobias JA. 63 GYLES JA: I agree with Tobias JA. **********

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