The challenge to the August orders
26The challenge to the August order is limited to the finding of fact in paragraph 17 of the reasons for decision (see [11] above) which is said to ground the order prohibiting the plaintiff from committing any illegal acts in the future in breach of by-law 7.1(f) and, in particular, to what is said to be the necessary construction given to the word "may" inherent in that finding.
27Senior counsel for the plaintiff submitted that when the Adjudicator declared himself satisfied in paragraph 17 that the past conduct of the plaintiff, which he identified by paragraph numbers in the submissions filed by the Owners Corporation, "may" constitute criminal activity and that this justified the order that the plaintiff refrain (in the future) from breaching by-law 7.1(f), he should be taken to have decided that the plaintiff's past conduct merely "could", in the sense that it "might", constitute a criminal act, (or that he was unable to decide whether the conduct was of that kind) as distinct from being satisfied that it was probable that it was conduct of that kind. It was submitted that a finding that it was merely possible that the plaintiff's past conduct amounted to a breach of either or both s 61 and s 545B of the Crimes Act did not ground the jurisdiction in s 138 of the Act to order that the plaintiff refrain in the future from doing:
... anything illegal within the strata scheme and in particular shall not insult, abuse, assault, intimidate, bully or threaten any other lot owner, resident or employee of the Owners Corporation.
28Counsel submitted that a positive finding by the Adjudicator that the plaintiff's past conduct probably amounted to a criminal offence or offences was essential to ground jurisdiction and, since he made no such finding, the order requiring the plaintiff to comply with by-law 7.1(f) was beyond the jurisdiction conferred under s 138 of the Act, thereby constituting jurisdictional error.
29Section 138(1) of the Act confers on an Adjudicator jurisdiction, inter alia, to settle a dispute or rectify a complaint about the operation, administration and management of the by-laws of a strata scheme (in this case, whether there has been a breach of a by-law) without specifying a standard of proof by which a breach must be found to have occurred as a precondition to the exercise of the power to require compliance with the by-law or by-laws under consideration. Counsel was unable to refer me to any authority for the proposition that before the jurisdiction in s 138 is enlivened, whether generally or, so far as this case is concerned, before it was open to the Adjudicator to order that the plaintiff comply with the prohibition in by-law 7.1(f) against doing anything illegal in the Apartments, that the factual finding supporting the making of the order for compliance must, by necessary implication, be made according to the civil standard of proof.
30The fact that Adjudicators in other cases to which I was referred by counsel have expressed themselves to be satisfied on the probabilities that a particular by-law was breached, while in other cases a strata title dispute has been determined or resolved by the Adjudicator expressing himself or herself as simply satisfied that material matters are established, is not determinative. In my view, what those decisions indicate is that it is sufficient for an Adjudicator exercising the function under s 138 to be comfortably satisfied on the available material in the particular case that there is a genuine dispute or complaint which is capable of being resolved, and, where necessary, that the facts justify an order or orders settling the dispute, including orders requiring compliance with a by-law (or by-laws) by the person or persons whose conduct has been found to be in breach.
31It is perfectly clear from the reasons for decision (the adequacy of which were not the subject of criticism save for lack of precision or potential ambiguity in his use of the word "may" in paragraph 17) that was the approach taken by the Adjudicator in this case. There is no reason to doubt that he was well satisfied that the plaintiff's behaviour, set out in considerable detail in the enumerated paragraphs of the submissions of the Owners Corporation, constituted conduct that was likely to offend or embarrass another owner or occupant of the strata scheme, in breach of by-law 7.1(b) despite the fact that he did not advert to any standard of proof referable to which that finding was made. The plaintiff's counsel accepted that finding was likely to have been made on the balance of probabilities.
32I am unable to see why it should follow that when, in the next paragraph, the Adjudicator declared himself satisfied that some of that same behaviour also amounted to conduct that "may" have constituted an offence contrary to the Crimes Act he should be taken to have expressed himself as satisfied to any different standard. The two paragraphs are not only factually linked with the numbered paragraphs in paragraph 17, being a subset of the numbered paragraphs, but by his use of the word "furthermore" the Adjudicator must be taken to have intended that in addition to his being satisfied that there is proven conduct constituting a breach of by-law 7.1(b) some of that same conduct puts the plaintiff in breach of by-law 7.1(f) because it "may" also constitute specified criminal conduct and, that being so, that an order the plaintiff not do anything in the Apartments that is illegal should be made. .
16. I am satisfied that the behaviour of the respondent as described at paragraphs 4, 6, 7, 8, 10, 12, 13, 16, 18, 24, 27, 28, 30, 31, 32, 36, 42, 43, 44, 45, 50, 51, 52, 54, 55, 57, 58, 59, 61, in the submissions of the applicant amounts to conduct that is likely to offend or embarrass another owner or occupant of the strata scheme, in breach of by-law 7.1(b).
17. Furthermore I am satisfied that at least some of the conduct (paragraphs 13, 18, 27, 44, 50, 54, 55, 58, 59, 61) may constitute an illegal act contrary to the provisions of the Crimes Act 1900 s 61 and 545B so as to put the respondent in breach of by-law 7.1(f).
(Emphasis added)
33Interpreted in that way, his use of the word "may" simply emphasised what the Adjudicator had noted earlier in his reasons, namely that while he had no jurisdiction to decide whether any of the conduct complained of was actually criminal, it appeared to him that at least some of the conduct may well constitute a breach of the criminal law and, for that reason, he was justified in making an order prohibiting the plaintiff from conducting himself in the future in a way that would put him in breach of the law. .
34Counsel for the second defendant submitted that the interpretation of the Adjudicator's reason for decision for which the plaintiff's counsel contended, suggested the reasons (or a discrete part of them) had been combed with an eye for jurisdictional error, an approach to the exercise of the jurisdiction of this Court under s 69 of the Supreme Court Act which has been repeatedly criticised. I regard that submission well founded. I am not persuaded that the error of jurisdiction for which the plaintiff contended is made out.
35Even were the order requiring the plaintiff to comply with by-law 7.1(f) made without jurisdiction, it would be necessary to decide in the exercise of discretion whether to grant the plaintiff the relief sought. In this case I would not have exercised the discretion in the plaintiff's favour.
36In Carnley v Grafton Ngerrie Local Aboriginal Land Council [2010] NSWSC 837, a case where the decision of the CTTT to uphold the termination of the plaintiff's tenancy of certain lands was held to have been infected by jurisdictional error, Garling J reviewed the relevant authorities bearing on that question at [96]-[114]. In the result, his Honour was satisfied that he should exercise his discretion to grant the relief sought, namely a quashing of the decision and a direction that the matter remitted to the CTTT.
37After noting at [96] that the categories of cases where relief is refused are not closed but are commonly withheld if there is another "equally effective and convenient remedy" (see Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 508F), his Honour noted at [97] that the mere existence of an alternate statutory remedy is not necessarily fatal to the provision of relief, particularly where it can be demonstrated that the statutory remedy was "nowhere near so convenient, beneficial and effectual". In this case, I am well satisfied that on any practical view the appeal against the Adjudicator's order to the CTTT under s 177 of the Act meets these criterion. The appeal under the Act is both more expeditious and necessarily less expensive than proceedings for judicial review in this Court (see Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390). In addition, not only does the CTTT have the specialist experience to resolve whether or not the Adjudicator was required, when exercising the jurisdiction under s 138, to find the breach of by-law7.1(f) established on the probabilities, the appeal is a hearing de novo where fresh evidence may have been adduced. An appeal to the District Court from the CTTT's decision on a question of law is also available under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001. As Garling J observed at [113]:
Parties are not entitled to expect simply because they bring proceedings to this Court that the Court will automatically grant relief. The failure to take advantage of other avenues for rehearing or for appeals where those avenues are quicker, less expensive and more suitable or appropriate, is a matter which can be, and typically will be, weighed in the balance by this Court when considering whether to exercise its discretion or not.
38I should also add that an additional factor weighing heavily against the exercise of discretion in the plaintiff's favour, were I called upon to exercise it, is the fact that the proceedings in this Court were not brought in a timely fashion and, when instituted, were accompanied by a lengthy UCPR 6.12A statement and written submissions, most of which was ultimately abandoned the day before the hearing. I anticipate that this must have resulted in unnecessary costs incurred by the second defendant and what I know to be a wholly unwarranted waste of court time and judicial resources.
39Furthermore, even assuming that it was appropriate to grant the relief sought in the exercise of discretion, in circumstances where there was no challenge to the Adjudicator's jurisdiction to order the plaintiff's compliance with by-law 7.1(b), I would have held that it was both open to me and appropriate to have quashed that part of the order (set out in full in [12] above) from the word "visitors", thereby leaving the balance of the order to have its intended effect. I note that an order, the effect of which would have been to partially quash the order and remit the residue of the dispute that gave rise to the August order to the CTTT to be dealt with according to law, was not resisted by the plaintiff's counsel.