Faraday v Residential Tribunal

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

30005/01 - JAMES PETER FARADAY v RESIDENTIAL TRIBUNAL & ANOR

JUDGMENT 1 HIS HONOUR: This is the final hearing of proceedings in which the plaintiff, James Peter Faraday seeks an order that the decision of the Residential Tribunal of 18 July 2000 be reversed. His Amended Summons filed 25 October 2001 sets out the following grounds for the relief sought, namely:

1. There was an agreement that if the plaintiff was unable to clean the property, that the defendant would assist the plaintiff by organising a quote for the cleaning of the property, (see annexure A of affidavit);

2. The defendant is aware that the plaintiff has been suffering from chronic fatigue syndrome and an anxiety disorder, (see annexure B of affidavit). 2 These proceedings have a long and tortuous history, the details of which up until October last year are set out in the affidavit of Michael Callen sworn 4 October 2001, and it is not necessary to repeat it in detail. 3 In summary, the Department of Housing has sought to terminate Mr Faraday's tenancy on the ground of his failure to properly care for the premises. The photographs referred to in paragraph 8 of Mr Callen's affidavit which have been exhibited before me, as they were before Sperling J on 8 October 2000, show the premises inside and out in a very untidy and uncared for condition with rubbish piled everywhere. 4 The proceedings in this Court were initially commenced by a Summons filed on 12 February 2001, seeking an order for a rehearing of the proceedings in the Residential Tribunal. On 6 April 2001 orders were made by consent for a rehearing, which was subsequently set down for 18 July 2001; but Mr Faraday did not appear at that hearing and an order for possession of the premises was made in his absence. 5 Pursuant to such order, a warrant was issued and executed on 8 August 2001, but on the same day the plaintiff filed a Summons in these same proceedings (although such proceedings had by that stage been finally concluded by the consent orders of 6 April) seeking a stay of execution, which was granted; as a result of which he re-entered the premises, as described in paragraph 12 of Mr Callen's affidavit. That stay was continued by Sperling J on 27 August 2001 when he was directed to file an Amended Summons which is the Amended Summons presently before the Court. 6 The matter then came before a succession of different Duty Judges, and ultimately before me on 12 December 2001, when Mr Faraday appeared in person and Mr Enright for the Department. I then stood the matter over to 17 December, but because of Mr Faraday's claim that owing to his chronic fatigue syndrome he is unable to get out of bed early enough to be in Court at 9.30 or 10am, I listed it for 12 noon. One of the problems in the proceedings has been that Mr Faraday often arrives late or not at all, both in this Court and in the Residential Tribunal. 7 On 17 December Mr Enright again appeared for the Department, but there was no appearance by Mr Faraday at 12 noon. As will appear from the transcript, out of deference to Mr Faraday's apparent health difficulties, I stood the matter down until 12.45, shortly prior to which I received a telephone call purporting to come from Mr Faraday stating he was sick, still at Campbelltown and could not be at Court that day because of a tooth ache or abscess, or both. 8 With the consent of the Department, and to accommodate Mr Faraday as far as possible, I then re-listed the matter for today at 11am. It is now after 3.50pm. Mr Faraday has been called a number of times, specifically at 11.10 and 11.30am, 12.40, 1.00, 2.05, 2.35 and 3.21pm, but he has not appeared and I have received no message.

9 Because of the difficulties that have arisen to date, on 17 December I made specific orders directing the filing of affidavits, that my associate notify the plaintiff by telephone of the orders, which she has done, and I directed that sealed copies of orders be served personally by post or by leaving it under the door of the subject premises. I also noted that no adjournment on the grounds of the plaintiff's ill health would be granted without satisfactory medical evidence, and a mere certificate from a medical practitioner that the plaintiff was suffering from fatigue, anxiety or depression would not be deemed sufficient. 10 I am satisfied by the affidavit of Michael Callen sworn 7 February 2002 that a sealed copy of the orders made on 17 December 2001 were duly served on Mr Faraday in accordance with my directions. I am therefore satisfied that I should proceed to deal with the matter notwithstanding the absence of the plaintiff. 11 Apart from the matter being set down for final hearing today, the Department has filed a Notice of Motion seeking summary dismissal on the grounds that the Amended Summons filed 25 October 2001 discloses no arguable ground of appeal. 12 But before I deal with the Amended Summons, I wish to refer to the stay of proceedings granted ex parte on 8 August last. That was obtained on the basis of an affidavit by the plaintiff sworn that day to the effect that at the rehearing fixed for 20 July 2001 at 2pm, Mr Faraday was 15 to 20 minutes late due to public transport difficulties, and that upon arrival at the Tribunal he was informed that the matter had been heard and a fresh order for eviction made. 13 There is, however, on file the affidavit of Darryl Ford sworn 3 October 2001 who appeared as advocate in the Residential Tribunal on 18 July, which was the date fixed for the hearing (see paragraph 9 of Mr Callen's affidavit of 4 October 2001 - it is not clear where Mr Faraday got the date 20 July 2001 referred to in his affidavit). Mr Ford says that on 18 July, although the proceedings were listed for 2pm, the matter did not proceed to a hearing until about 2.20 to 2.25pm, and concluded at about 2.50pm. He says he left the premises at about 3pm and he did not see Mr Faraday at all on that day. 14 In the absence of any explanation from Mr Faraday, it is by no means clear to me, the basis on which he obtained the stay of execution on 8 August 2001. 15 In support of the Amended Summons of 25 October, Mr Faraday has sworn an affidavit in which he claims that he has been ill with chronic fatigue syndrome and an anxiety disorder for at least 10 years, that he has recently been the victim of a home invasion, physically threatened and psychologically abused, and that he has had the home in an improved state before the invasion "to the point that most rooms in the interior were tidy enough to be satisfactory". He also refers to an alleged agreement of 10 May 2000. He attached a medical certificate dated 27 September 2001 to the effect that he at that stage suffered from chronic fatigue syndrome and anxiety together with some further details. 16 An appeal under s 62 of the Residential Tribunal Act 1998, can only be made in respect of a matter of law, and I am satisfied that the Amended Summons and the affidavit in support of it disclose no arguable matter of law. 17 It is also desirable in the circumstances to consider whether, because the orders of the Tribunal of 18 July 2001 were made in the absence of the plaintiff, the plaintiff has been denied natural justice within the terms of s 60 (3)(b) of the said Act. 18 However, it is the responsibility of parties to litigation who have been given notice of the time and place of hearing to be there on time. It is not as though 18 July 2001 is the only time Mr Faraday has not appeared or has been late. The same thing happened on 23 October 2000 when he originally was late, it has happened many times in this Court and has happened again today. 19 In those circumstances, I am not satisfied that the plaintiff is entitled to any order by way of prerogative relief on the ground that he has been denied natural justice because the matters in the Tribunal were heard in his absence. For these reasons, the Amended Summons will be dismissed with costs, including reserved costs. 20 Having regard to Mr Faraday's circumstances, both Mr Enright, counsel for the Department, and myself realise that it will be necessary for him to be relocated in other premises provided by the Department. 21 Accordingly, I order that the order for eviction of 18 July 2001 and any warrant issued thereon is not to be executed before 22 March 2002 and having regard to the history of the matter, I direct that any further application in these proceedings, or fresh proceedings, by the plaintiff seeking any variation or stay of the orders made in these proceedings, unless made to the Court of Appeal, is to be made by me as Judge in charge of the Administrative Law List, unless I am out of town; and such application is only to be made on giving not less than 48 hours written notice to the Department of such application. **********

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