Evangelos ROUVINETIS v RESIDENTIAL TRIBUNAL & ANOR

COUNSEL : Mr Jungwirth - Second defendant Plaintiff in person SOLICITORS : I.V. Knight Crown Solicitor's Office - First defendant Mr Michael Callen - Second defendant CATCHWORDS : Appeal against Residential Tribunal for rent owing. LEGISLATION CITED : Residential Tribunal Act 1998 No. 168, ss 60 & 62 Residential Tenancies Act 1987, s 16(1) DECISION : 1. Appeal dismissed; 2. Orders of the Tribunal affirmed; 3. No order as to costs.

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

30011/02 Evangelos ROUVINETIS v RESIDENTIAL TRIBUNAL & ANOR

JUDGMENT 1 FOSTER AJ: These proceedings were brought by Mr Evangelos Rouvinetis as plaintiff in the Administrative Law Division. The first defendant, The Residential Tribunal made a submitting appearance. The second defendant, New South Wales Land and Housing Corporation was represented by counsel. Mr Rouvinetis appeared in person. 2 The Summons dated 14 February 2002, Mr Rouvinetis's supporting affidavit of the same date and a subsequent affidavit of 25 May 2002 were plainly drafted by Mr Rouvinetis, apparently without legal assistance. 3 I gained the impression (perhaps incorrectly) that English was not Mr Rouvinetis's first language. This led to some difficulty in comprehending the material in his Summons and affidavits and also in following his oral submissions. However, I consider that I obtained a sufficiently clear understanding of what Mr Rouvinetis wished to place before the Court. A lot of that material was couched in emotional and somewhat colourful language. It was clear that he was indeed aggrieved by the decision of the Residential Tribunal against which he was seeking to appeal and also by what he conceived to be sinister and conspiratorial conduct on the part of officers of the second defendant, who had the responsibility of administering his subsidised rental payments in respect of the residence occupied by him as tenant from the second defendant. It is a matter for regret that he has these suspicions. I trust that when he reflects upon the matter further, he will come to realise that they are misconceived. 4 I felt that Mr Rouvinetis was not entirely clear as to the nature of the proceedings he had brought. From some of the material in his affidavits and from statements he made in Court, I gained the impression that he thought he was bringing some sort of criminal proceedings, related to the making by the Tribunal of the order in respect of which he was complaining. That order was that he pay an amount of arrears of rent, calculated as being $117.64, by certain instalments. I trust that, after discussion in Court, it was clear to him that the proceedings he had brought were, necessarily, of a limited kind, as prescribed by Statute. 5 As I have mentioned, Mr Rouvinetis complains of a decision made by the Residential Tribunal. This decision was given on 30 January 2002, after a hearing in which Mr Rouvinetis represented himself. The Tribunal, in its order of that date, indicated that it was satisfied that a breach of Mr Rouvinetis's Tenancy Agreement had occurred namely, "rent arrears". The Tribunal made a consequential order that Mr Rouvinetis pay the second defendant, his landlord, "the sum of $117.64 for subsidised rent owed under the terms of the Residential Tenancy Agreement for the period from 17 January 2002 to 4 February 2002 by instalments of $20.00 per fortnight, the first payment 4 February 2002". Certain consequential orders were made which it is unnecessary to set out. 6 Appeals from the Residential Tribunal, at the relevant time, were, as already indicated, limited in nature. They were governed by the Residential Tribunal Act 1998 No 168, ss 60 and 62. Section 60 excluded the jurisdiction of this Court to grant relief in the nature of prohibition, mandamus, certiorari, declaratory judgment or injunction, except where, (by s 60(3)(b)), the ground on which the relief or remedy was sought was that "in relation to the hearing or determination of the matter, a party to the claim had been denied natural justice." 7 Additionally, a limited appeal was provided for by s 62 which relevantly reads as follows:- "62(2) If, in proceedings before it, the Tribunal decides a question with respect to a matter of law, a party to the proceedings who is dissatisfied with the decision may appeal to the Supreme Court against the decision." 8 Accordingly, Mr Rouvinetis can succeed in this application only if he establishes that he was denied natural justice in relation to the hearing before the Tribunal or the Tribunal erred in deciding "a question with respect to a matter of law." It is convenient to consider the latter question first. 9 The Summons was not accompanied by any transcript of the proceedings before the Tribunal, the Court being advised by counsel that transcripts were not normally provided. It is not suggested, however, by Mr Rouvinetis that the learned Tribunal member deciding the case in fact decided "a question with respect to a matter of law." The question before the Tribunal was whether there had, pursuant to s 16(1) of the Residential Tenancies Act 1987, been "a breach of a term of the Agreement". The relevant term was, quite clearly, one providing for the payment of rent. The finding of the Tribunal that such a breach had occurred, insofar as there was arrears of rent owing by Mr Rouvinetis to the second defendant, was one of fact not of law. A question of law could, conceivably, have arisen if the learned member had before him no evidence upon which such a finding of breach could be made. In this regard, with the consent of Mr Rouvinetis and the second defendant, I had regard to the Tribunal's file which had been produced to the Court, in order to ascertain what material had been placed before the Tribunal. 10 Pursuant to an interim order made at an earlier stage of the litigation, the second defendant had provided to the Tribunal member, in relation to Mr Rouvinetis's tenancy, "all documents pertaining to rent increases from 30/4/2000 'til current and all documents regarding the rent arrears." A perusal of these documents indicates the existence of a number of letters advising Mr Rouvinetis that his rent had fallen into arrears and requiring that it be brought up to date. In addition, a document, several pages in length, was provided setting out, in full, a running account in relation to Mr Rouvinetis's rent commencing on 3 January 2000. Although this account did not show the precise figure of $117.64 as owing at the date of the order, it is tolerably clear that this amount would have been arrived at by way of a minor adjustment to an amount showing as owed, shortly before that date. 11 The account shows the amounts of "market rent" payable in respect of the tenancy on a weekly basis, with credits against these amounts of the amounts of the subsidy provided to Mr Rouvinetis, together with the amounts of rent actually paid by him. It is clear that the accounts reflect alterations from time to time in the amount of the weekly "market rent" and corresponding increases in the amount of subsidy, with consequential variations in the amounts of rent payable. 12 It is clear that there was no absence of evidence to found the order made by the learned Tribunal member, with the result that no appeal can lie under s 62 of the Residential Tribunal Act 1996. 13 Before parting with this aspect of the proceedings, I should say, in deference to arguments strenuously put, orally and in writing, by Mr Rouvinetis, that I can detect no factual error in relation to the order made by the Magistrate which would warrant correction, assuming that this Court had power to do so. Mr Rouvinetis complained that an initial advance provided by him towards his rent liability had not been accounted for. He asserted that this was a suspicious circumstance. It seems that the Tribunal member, according to Mr Rouvinetis's affidavit, told him that this amount had been "eroded". The accounts before the Magistrate, indeed, show an initial credit of $90.05, which I assume to be the amount which Mr Rouvinetis was referring to. The accounts make it clear that this amount was gradually absorbed into the level of debt that accumulated through Mr Rouvinetis failing to make his own rental payments at the required level. It is clear that Mr Rouvinetis holds the view that he regularly paid rent in the correct amount and that the demands made from time to time that he bring arrears of rent up to date were the product of mistake or something more sinister. It is proper for me to say that my reading of the material placed before the Tribunal does not suggest any mistake or error on the part of the second defendant in the computation of the arrears of rent made from time to time. Mr Rouvinetis points to inconsistencies in claims for arrears made from time to time. However, this inconsistency is apparent rather than real as the state of indebtedness obviously fluctuated in accordance with the amounts of increase in market rent, subsidy, and amounts actually paid by Mr Rouvinetis. 14 Mr Rouvinetis also pointed to what he said was the arithmetical impossibility of the amount of $117.64 accumulating in the time frame referred to. As I said, however, the amount is not referable to that particular time frame but reflects the discrepancy between the amount owing and the amount paid over a period of time, as a result of the running account. In his affidavit, Mr Rouvinetis speaks of his inability to decipher running accounts provided to him. It may be that this inability has led to the significant concerns which he has expressed and which would disappear if the accounts were explained to him by someone he could regard as independent and impartial. However, as I have already indicated, the only concern of this Court is whether a relevant error of law has been demonstrated. There has been no such demonstration. I should add, in this regard, that Mr Rouvinetis claimed breaches of what he described as Rule 63. I have been unable to determine what was meant by this assertion, nor was Mr Rouvinetis able to explain it to me. 15 As to the assertion of denial of natural justice. I am not able to detect any substance in this claim. It is clear that specific orders were made by the Tribunal for the furnishing of the material to which I have made reference. This was furnished to the Tribunal. Mr Rouvinetis also handed to the Tribunal the documents upon which he relied, most of which appear to be in Exhibit "A" in these proceedings. I can see nothing which would indicate that he did not receive a fair and impartial hearing. 16 The result is that this Summons must be dismissed. An application for costs on the part of the defendants was, as I understand it, not pressed. In any event, in the special circumstance of this case, where Mr Rouvinetis was not legally represented and was, in my view, confused as to the nature of his rights of appeal and their limitations, I am satisfied that no order for costs should be made. 17 I make the following orders:-

2. Orders of the Tribunal affirmed.
3. No order as to costs. ************************

Last Modified: 10/28/2002 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.