Evangelos Rouvinetis v CTTT & Anor

JURISDICTION : Common Law Division - Administrative Law List

DECISION : (1) The plaintiff's summons filed 14 May 2007 is dismissed; (2) The plaintiff is to pay the second defendant's costs as agreed or assessed.

CATCHWORDS : Name of defendant - denial of natural justice and other issues

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) - ss 5(2), 21, 24, 28, 35, 65, 67 & Schedule 1 LEGISLATION CITED : Housing Act 2001 (NSW) ss 3, 6 Residential Tenancies Act 1987 (NSW) - s s 58

Chapman v Taylor & Ors; Veroa Insurance Ltd v Taylor & Ors [2004] NSWCA 456 CASES CITED : Italiano v Carbone & Ors [2005] NSWCA 177 Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312

Evangelos Rouvinetis - Plaintiff PARTIES : Consumer, Trader and Tenancy Tribunal - First Defendant New South Wales Land and Housing Corporation - Second Defendant

COUNSEL : Mr A Jungwirth - Second Defendant

Submitting Appearance, Crown Solicitor - First Defendant SOLICITORS : New South Wales Land and Housing Corporation - Second Defendant

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT JUDICIAL OFFICER : Tribunal Member P Smith

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30048/07 - EVANGELOS ROUVINETIS v CONSUMER, TRADER AND TENANCY TRIBUNAL & ANOR

JUDGMENT (Name of defendant; denial of natural justice and other issues) 1 HER HONOUR: By summons filed 14 May 2007, the plaintiff seeks to appeal the decision of the Consumer, Trader and Tenancy Tribunal (CTTT) Tribunal Member P Smith in the matter 07/20220. The plaintiff is Evangelos Rouvinetis. The first defendant is the CTTT. The second defendant is the New South Wales Land and Housing Corporation. The plaintiff describes the second defendant as the "Corporation of Land and Housing". The CTTT has filed a submitting appearance.

Grounds of appeal 2 Mr Rouvinetis appeals the decision of Tribunal Member Smith on three grounds: (i) error of law, (ii) denial of natural justice, and (iii) abuse of authority by "impotentia excusat legem" (impossibility of performance of a legal obligation is a good excuse).

The relevant statutory provisions for review and appeal in this Court 3 Section 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the 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

(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." 4 Section 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." 5 Section 67 of the Act allows for an appeal to be made to this court on a question with respect to a matter of law. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal (s 67(8)). The onus lies on the plaintiff to demonstrate that there has been an error with respect to a matter of law. 6 Section 67(3) of the Act provides that, after deciding the question of the subject of an appeal, the court may affirm the decision of the Tribunal, or it may make an order in relation to the proceedings in which the question arose as it, in its opinion, should have been made by the Tribunal, or it may remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal. 7 The width of s 67 was discussed in Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456. Hodgson JA (with whom Beazley and Tobias JJA agreed) stated succinctly [at para 33]: "… in my opinion, to establish an error of law by the Senior Member, it was necessary to show that he applied a wrong principle of law. That could be shown either from what he said, or because the ultimate result, associated with the facts that he expressly or impliedly found, indicates that he must have applied the wrong principle of law". 8 See also Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312 at paragraphs [39], [40], [41], [47] and [59].

The proceedings in the CTTT 9 The Tribunal has statutory powers conferred upon it in relation to residential tenancy agreement between tenants and landlords by the Act. 10 The plaintiff is a tenant of premises at Kensington owned by the second defendant. The terms and conditions of the tenancy are set out in a residential tenancy agreement and by reason of statutory terms pursuant to the Residential Tenancies Act 1987 (NSW). 11 Sections 5(2), 21, 24 and Schedule 1 of the Act and s 58 Residential Tenancies Act establish and delineate the jurisdictional boundaries of the Tribunal in relation to tenancies and the second defendant. The Tribunal is empowered to exercise functions conferred upon it by and arising under the Residential Tenancy Act. 12 On 16 April 2007, Mr Rouvinetis lodged an application in the CTTT seeking orders firstly, "that the N.S.W. Corporation of Land and Housing in its contacts, of what ever nature and form, ceased in using the misleading and deceptive term "Department of Housing" when addresses the applicant and tenant"; and secondly, "that the N.S.W. Corporation of Land and Housing, when addressing the applicant, as a tenant, by name, in any form of documents, those documents to bear the signature of the documents issuing personnel anonymity in documents not accepted." 13 On 7 May 2007, the Tribunal Member dismissed Mr Rouvinetis' application on the basis that there was no jurisdiction. 14 The Tribunal Member in his reasons for his decision stated: "This application for this specific performance order is based upon a breach of the residential tenancy agreement ( Residential Tenancies Act 1987, s 16 ) and the Tribunal does not have the jurisdiction to make such a specific performance or declaratory orders. 15 The Tribunal noted the definitions of "Corporation" and "Department" contained in s 3 of the Housing Act 2001 (NSW). They read: " Corporation means the New South Wales Land and Housing Corporation constituted by this Act. Department means the Department of Housing." 16 The Tribunal member also noted s 6 of the Housing Act. It reads: "6 Establishment of New South Wales Lane and Housing Corporation (1) There is constituted by this Act a body corporate with the corporate name of the New South Wales Land and Housing Corporation

(2) The affairs of the Corporation are to be managed by the Director-General.

(3) Any Act, matter or thing done in the name of, or on behalf, of the Corporation by the Director-General, or with the authority of the Director-General, is taken to have been done by the Corporation.

(4) The Corporation is, for the purposes of any Act, a statutory body representing the Crown.

(5) The Corporation is subject to the direction and control of the Minister.

(7) The Corporation may exercise any of its functions, and may otherwise act, in the name of the Department.

(8) The Corporation and the Department are, to the maximum extent possible, to act in a complementary manner, so as to achieve a unified administration of this Act." 17 Additionally s 6(7) of the Act provides: "The Corporation May exercise any of its functions, and may otherwise act, in the name of the Department." 18 The plaintiff, in oral submissions stated that if the CTTT does not have jurisdiction, the Supreme Court did. He also said that the second defendant was really a real estate agent. Section 6 of the Housing Act permits the New South Wales Land and Housing Corporation to act in the name of the Department. Section 3 defines the Department as the Department of Housing. The New South Wales Land and Housing Corporation is permitted to act in the name of the Department of Housing. The plaintiff's claim, whether it be an appeal or a review from the CTTT or proceedings initiated in this Court, is not made out. It fails.

Procedural fairness in Tribunal 19 Section 28 of the CTTT Act reads: "Procedure 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.

… (g) may dismiss any proceedings if the applicant fails to attend a hearing, …" 20 Section 35 of the Act 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." 21 Section 35 provides that the CTTT "must ensure" that each party is given "a reasonable opportunity" to present its case. There are provisions which 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 & Ors [2005] NSWCA 177 at [105] and [106]. 22 There are a number of written submissions made by the plaintiff. I have read them very carefully and paid close attention to them. This Court is unable to ascertain, from those submissions, why the plaintiff says that he was not given a reasonable opportunity to present his case. He bears the onus to show there was a denial of natural justice or procedural fairness. He has not done so. This claim fails. 23 From my reading of the plaintiff's wide-ranging submissions, he seems to be referring to a number of constitutional issues. I am unsure how these issues relate to the correct name of the second defendant. Further, the plaintiff made reference to "market rent". If the complaint concerns the ability of the second defendant to grant subsidised or rebated rates of rent for public housing, that power is to be found in Part 7 of the Housing Act. So far as the ground of appeal "abuse of authority by 'impotentia excusat legem'" is concerned, if the plaintiff is asserting that the second defendant as a corporation is not subject to the laws of the State, this assertion is not correct. The plaintiff's claim fails. The plaintiff's summons filed 14 May 2007 is dismissed. 24 Costs are discretionary. Cost normally follow the event. The plaintiff is to pay the second defendant's costs as agreed or assessed.

(1) The plaintiff's summons filed 14 May 2007 is dismissed.

(2) The plaintiff is to pay the second defendant's costs as agreed or assessed. **********

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