Griffin v Ingram

NCAT Appeal Panel|2014-02-28|Before: Wright J

reasons for decision 1The appellants, tenants of a residential property in the Sydney suburb of Pymble (the Property), are seeking to appeal from a decision of the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal (NCAT) whereby orders were made on 29 January 2014 that: (1)the residential tenancy agreement in respect of the Property was terminated immediately; (2)possession of the Property was to be given to the respondents, the landlords, on the date of termination; (3)the order for possession was suspended until 1 March 2014; (4)the tenants were to pay a daily occupation fee of $167.84 from the day after termination, namely 30 January 2014 until the date vacant possession was given to the landlords; (5)within 60 days of the date for possession the landlords might request the relisting of the application to determine the amount of occupation fee owing. 2The Tribunal's reasons for decision are dated 4 February 2014. The tenants received notice of the decision and reasons on 6 February 2014. A notice of appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) was lodged on 19 February 2014. Included in that notice of appeal was an application for a stay of the orders.

Hearing on 28 February 2014 12At the hearing on 28 February 2014, Mr B Lloyd of counsel appeared for the tenants, appellants. Ms Hill appeared for the landlords, respondents. Given the issues of statutory construction involved in determining the effect of the transitional provisions in Schedule 1 to the Act and of the appeal and jurisdiction provisions of the Act, the Appeal Panel considered that it would benefit from the participation of the tenants' legal representative. The Panel was also of the view that this would not cause any substantial prejudice to the landlords, having chosen not to be legally represented. Accordingly leave was granted to the parties to be represented by their respective representatives. 13At the end of that hearing the Panel indicated that it would give its decision at that time and provide the reasons for decision later. The orders made at that time were: (1)The parties have leave to be represented at this hearing and at the final hearing of this appeal by their respective representatives. (2)The orders made on 29 January 2014 in this matter, except Order 4, be stayed until further order. 14The Appeal Panel also gave directions for the preparation of the appeal for an expedited hearing. 15The Appeal Panel's reasons for its decision on the stay application, including the issue of whether it has jurisdiction to hear and determine the appeal, are set out below.

The Tribunal has Jurisdiction to Determine whether it has Jurisdiction 16It is well established that a tribunal may decide the question of whether or not it has jurisdiction to hear and determine a matter. For example, the Court of Appeal has held in Bailey v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293 at [55]: A tribunal has jurisdiction to decide for itself whether the conditions necessary for it to hear and determine a dispute have been satisfied. Generally speaking, the tribunal's decision on such a question is not conclusive and may be challenged on appeal or on an application for judicial review: Mutual Life & Citizens' Assurance Co Ltd v Attorney-General (Qld) [1961] HCA 51; 106 CLR 48, at 56, per Dixon CJ (with whom Taylor and Windeyer JJ agreed); The Queen v Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League (Inc) [1979] HCA 6; 143 CLR 190, at 202-203, per Barwick CJ; M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action , 4 th ed (2009) Thompson Reuters, at 804-805. However, if a jurisdictional issue is litigated as a preliminary issue in the Tribunal and full advantage is taken of the opportunities for appeal and judicial review, statutory objectives are likely to be frustrated. 17Whilst the admonition in the last sentence of the quotation should be heeded, in the present case the Appeal Panel believed that the interests of the parties and the administration of justice were better served by determining the question of jurisdiction as a preliminary question rather than leaving it unresolved until the final hearing. In the present matter, the question of jurisdiction relates to an appeal not a hearing at first instance and the existence of jurisdiction does not depend on facts which are the subject of contested evidence.

The Issues Arising out of the Transitional Provisions 18The issues to be determined in relation to the operation of the transitional provisions in the present matter are: (1)Did the landlords have "an unexercised right to apply to an existing tribunal for it to make a decision at first instance concerning a matter" within the meaning of cl 9(1)(a) of Schedule 1? If so, (2)Were the landlords required to apply under cl 9(2) in order to exercise their "unexercised application ... right" or did they have the option of proceeding under ss 84 and 187 of the RT Act instead? (3)Was the decision made by the Consumer and Commercial Division an "internally appealable decision" within the meaning of ss 80, 32 of the Act so that the Appeal Panel had jurisdiction to hear and determine the Appeal?

The Transitional Provisions 19Division 3 of Schedule 1 to the Act (cll 6 to 14) contains the transitional provisions that apply in respect of NCAT and the tribunals which were abolished on NCAT's establishment. The transitional provisions are structured as follows: (1)Subdivision 1 - Interpretation: Cl 6 - definitions of "part heard proceedings", "pending proceedings", "unexercised rights" and "unheard proceedings"; (2)Subdivision 2 - Determination of Pending Proceedings: Cl 7 - how pending proceedings in abolished tribunals, whether unheard or part heard, are to be dealt with by NCAT;Cl 8 - how pending proceedings in a Court relating to a decision of an abolished tribunal are to be dealt with, including the power to remit to NCAT instead of the abolished tribunal; (3)Subdivision 3 - Exercise of Certain Unexercised Rights:Cl 9 - applications or appeals based upon an "existing unexercised application or appeal right" may be made to NCAT for the exercise of the same functions that could have been exercised by the relevant abolished tribunal and how they are to be dealt with;Cl 10 - appeals based upon an "existing unexercised appeal right" to an Appeal Panel of the ADT or to a court may be made to an Appeal Panel of NCAT or the court in question and how they are to be dealt with; (4)Subdivision 4 - Reviews of certain existing Orders and Renewal of certain Proceedings:Cl 11 - in effect, certain orders made by the Guardianship Tribunal can be reviewed by NCAT;Cl 12 - in effect, proceedings can be renewed in respect of certain CTTT decisions as if the decisions had been made by the Consumer and Commercial Division of NCAT; (5)Subdivision 5 - Allocation of Transitional Proceedings and Enforcement of existing Orders:Cl 13 - allocating various types of transitional proceedings to divisions of NCAT or to an Appeal Panel of NCAT and how the Tribunal should be constituted in those cases;Cl 14 - orders made by abolished tribunals are taken after 1 January 2014 to be orders of NCAT. 20In general terms these transitional provisions establish mechanisms which allow proceedings or orders to be heard, finalised, appealed or otherwise dealt with in circumstances where this could not otherwise occur because of the abolition of the various previously existing tribunals. Given their nature, transitional provisions also usually provide the only means of having the proceedings to which they apply heard, finalised, appealed or otherwise dealt with. Whether this latter comment applies to cl 9 is at the heart of the issues raised in this matter. 21The specific clauses of the transitional provisions that may be relevant to these proceedings are set out below. 22An unexercised right is defined in cl 6(1) in the following terms: unexercised right means a right (including a right exercisable only with leave) that: (a) was available to be exercised immediately before [1January 2014], and (b) had not yet been exercised before that day. 23Proceedings based upon an "unexercised application ... right" which could have been dealt with at first instances in an abolished tribunal are covered in cl 9 in the following terms: (1) This clause applies to each of the following unexercised rights (an existing unexercised application or appeal right): (a) an unexercised right to apply to an existing tribunal for it to make a decision at first instance concerning a matter, (b) an unexercised right to apply to an existing tribunal for a review of a decision of another person or body, (c) an unexercised right to appeal to an existing tribunal against a decision of another person or body. (2) A person who has an existing unexercised application or appeal right may apply or appeal to NCAT for the exercise of the same functions that could have been exercised by the existing tribunal to which the right relates had the existing tribunal not been abolished. (3) For the purposes of subclause (2): (a) NCAT has and may exercise all the functions that the relevant existing tribunal would have had in relation to the application or appeal if it had been made before [1 January 2014] (including any functions relating to the granting of leave to apply or appeal), and (b) the provisions of any Act, statutory rule or other law (including provisions concerning the time within which to apply or appeal) that would have applied to or in respect of the application or appeal had this Act and the relevant amending Acts not been enacted continue to apply. 24Clause 13 establishes the Divisions of NCAT in which proceedings based upon an unexercised application right should be determined and how NCAT should be constituted for such proceedings. That clause provides as follows: (1) This clause applies to any proceedings (transitional proceedings) that: (a) are permitted or required to be determined by NCAT under this Division instead of an abolished existing tribunal, or (b) are remitted by a court or an Appeal Panel of NCAT under this Division to NCAT for reconsideration or redetermination. (2) Unless the regulations provide otherwise, the function of determining transitional proceedings is allocated to the Divisions of the Tribunal as follows: (a) if NCAT is determining the proceedings instead of the Consumer, Trader and Tenancy Tribunal or is determining proceedings under the Dividing Fences Act 1991 or Retail Leases Act 1994 instead of a local land board or the Administrative Decisions Tribunal-the proceedings are allocated to the Consumer and Commercial Division, ... (c) if NCAT is determining the proceedings instead of an Appeal Panel of the Administrative Decisions Tribunal-the proceedings are not allocated to any particular Division of the Tribunal in accordance with section 16 (4), .... (3) Despite anything to the contrary in this Act or other legislation, the President is, where practicable, to constitute NCAT for the purposes of transitional proceedings (other than part heard proceedings) in a manner that is consistent with the constitution requirements that would have been applicable for the kind of proceedings in the existing tribunal concerned.

Was the landlords' right "an unexercised right to apply to an existing tribunal"? 25The first issue to be determined is whether the landlords' right upon which the proceedings at first instance were based was "an unexercised right to apply to an existing tribunal". 26The findings made in the reasons for decision of the Tribunal at first instance establish the following matters. The residential tenancy agreement in respect of the Property was constituted by a number of fixed term agreements. Subject to the tenants' claim that there was a further fixed term agreement, the latest fixed term agreement expired on 30 December 2013. The landlords served on the tenants a Notice of Termination dated 28 October 2013 under s 84 of the RT Act (in its pre-January 2014 form). The notice required vacant possession to be given on 30 December 2013. The tenants received a copy of this notice at some time before 30 October 2013. All of these facts and circumstances relied upon by the landlords to establish their claims for termination and possession of the Property arose prior to 1 January 2014. 27It also appears from the reasons for decision that the tenants' defence rested upon the alleged existence of a further fixed term agreement for the period after the expiration of the residential tenancy agreement on 30 December 2013. It was the tenants' case that such a further agreement had been the subject of negotiation in mid 2013 and a proposed residential tenancy agreement for a fixed term from 31 December 2013 to 1 July 2014 was sent by the landlords' agent to the tenants on 1 October 2013. The proposed agreement had not been signed or sent back to the landlords' agent prior to service of the Notice of Termination. The solicitors for the tenants wrote to the landlords' agent on 30 October 2013 stating that the Termination Notice was invalid as the tenants had been granted a new lease of the Property for the period 31 December 2013 to 1 July 2014. A signed copy of the proposed residential tenancy agreement for that period was not provided by the tenants to the landlords at that time. 28On 21 November 2013, the landlords lodged an application with the CTTT to have the issue of the termination of the tenancy determined, but they withdrew it on 9 December 2013. On that date, the tenants' solicitor handed to the landlords' agent a copy, signed by the tenants, of the proposed residential tenancy agreement which had been sent to them on 1 October 2013. The tenants paid the sum of $4,779.76 by direct deposit into the account of the landlords' agent on 31 December 2013. This amount was the monthly rent payable under the proposed residential tenancy agreement. The tenants case was also that this amount was accepted "without reservation" within the meaning of s 17 of the RT Act, which provides: (1) If a residential tenancy agreement has been signed by a tenant and given to the landlord or a person on the landlord's behalf and has not been signed by the landlord: (a) acceptance of rent by or on behalf of the landlord without reservation, or (b) any other act of part performance of the agreement by or on behalf of the landlord, gives to the document the same effect it would have if it had been signed by the landlord on the first day in respect of which rent was accepted or on the day on which such an act was first performed. (2) This section applies despite section 54A of the Conveyancing Act 1919. 29Thus, in so far as it is relevant, all of the circumstances relied upon by the tenants in their defence also occurred prior to 1 January 2014. 30In order to fall within the definition of "unexercised right" in cl 6(1), the tenants must have had a right available to be exercised immediately before 1 January 2014 which had not been exercised before that date. As at 31 December 2013, the landlords did have a right, available to be exercised immediately but not yet exercised, to apply to the CTTT for orders terminating the tenancy and for possession of the Property. Indeed, this was the right they had exercised when making their application on 21 November 2013 which was subsequently withdrawn, apparently without prejudice to their entitlement to exercise it again. 31The CTTT is defined as an "existing tribunal" in cl 2(1), subpara (d), of Schedule 1 to the Act. 32As to the first issue, it should be concluded that the landlords had at the time they made their application on 9 January 2014 "an unexercised right to apply to an existing tribunal for it to make a decision at first instance concerning a matter" within the meaning of cl 9(1)(a).

Were the landlords required to apply under cl 9(2) in order to exercise their "unexercised application ... right"? 33Clause 9(2) and (3) provide: (2) A person who has an existing unexercised application or appeal right may apply or appeal to NCAT for the exercise of the same functions that could have been exercised by the existing tribunal to which the right relates had the existing tribunal not been abolished. 34If the ordinary meaning of the words in cl 9 is adopted, the use of the word "may" and not "must" indicates that cl 9(2) confers on a person who has an existing unexercised application right the ability or power to apply to NCAT for the exercise of the functions that could have been exercised by the existing tribunal had it not been abolished. 35Furthermore, cl 9(3)(a) confers jurisdiction on NCAT to exercise all the functions that the relevant "existing" but abolished tribunal would have had in relation to any application made under cl 9(2). Finally, cl 9(3)(b) establishes that the pre-NCAT legislative regime is to apply in respect of such an application. 36Accordingly, an applicant who has an unexercised application right has the ability to apply to NCAT to have the application determined as if the NCAT legislative regime had not been otherwise been enacted. It also follows that if there is no other legislative provision which enables NCAT to make the decision sought by the applicant, the applicant is required to proceed under cl 9(2) if any relief is to be obtained. In this limited sense and in those circumstances, cl 9(2) could be said to be mandatory. 37Clause 9 does not refer to what should occur where an applicant has an alternative right to apply for relief arising out of the same facts and circumstances as give rise to the "unexercised application ... right". Clause 9 certainly does not expressly purport to prohibit an applicant from exercising such an alternative right. Nor does there appear to be any reason arising out of the wording, scope or purpose of the transitional provisions in Division 3 of Schedule 1 to the Act, or of the Act itself, to give cl 9 such an interpretation. 38Indeed, as part of the legislative regime under which NCAT was established, from the establishment date of NCAT, 1 January 2014, the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 amended a large number of statutes which previously conferred jurisdiction on the abolished tribunals so as to confer jurisdiction on NCAT to hear and determine relevant matters in place of the abolished tribunals. 39One of those statutes so amended from 1 January 2014 was the RT Act and the most relevant amendment was to change the definition of "Tribunal" in that Act from the CTTT to NCAT - see cl 4.34 item [2] in Schedule 4 to the Civil and Administrative Legislation (Repeal and Amendment) Act. Nothing in those amendments indicated that NCAT's jurisdiction was limited to applications based on rights that accrued only after 1 January 2014. 40As a result of the amendments, from 1 January 2014 s 84(3) of the RT Act provided that: The Tribunal [NCAT] must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice 41Similarly, from 1 January 2014, s 187 of the RT Act conferred on NCAT the jurisdiction, on application by a landlord or tenant among others, to make certain orders, including a termination order and an order for the possession of premises (under s 187(1)(i)). 42In the present case, after 1 January 2014, the landlords appear to have had alternative rights. They could make an application to NCAT: (1)under ss 84 and 187 of the RT Act for NCAT to make a termination order and an order for possession; or (2)under cl 9 of Schedule 1 of the Act for NCAT to exercise the same functions as the CTTT could have exercised had it not been abolished. 43In the case of an application under ss 84 and 187 of the RT Act (in its post-1 January 2014 form), the applicable legislation and rules would be that Act, the Civil and Administrative Tribunal Act and the applicable NCAT procedural rules. For an application under cl 9, cl 9(3)(b) specified that the Acts, statutory rules and other law that would have applied if the Act, the Civil and Administrative Legislation (Repeal and Amendment) Act and any regulation or rules made under them had not been enacted would continue to apply. 44There is nothing in the record of the proceedings at first instance to suggest that the landlords sought to invoke NCAT's jurisdiction under cl 9 of Schedule 1. Rather, their application was simply made under ss 84 and 187 of the RT Act (in its post-1 January 2014 form). If the ordinary meaning of the words in cl 9 is adopted, there does not appear to be any reason to require the landlords to apply under cl 9(2) of Schedule 1 to the Act and not under ss 84 and 187 of the RT Act. Furthermore, there is no justification in the wording, scope or purpose of the Act or the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 for reaching a different conclusion. 45For these reasons the Appeal Panel concludes that the landlords were not required to apply under cl 9(2) in order to exercise their "unexercised application ... right". They had the option of proceeding under ss 84 and 187 of the RT Act (in its post-1 January 2014 form) instead.

Was the decision made by the Consumer and Commercial Division an "internally appealable decision"? 46The final issue is whether the decision of the Consumer and Commercial Division in the present case was an "internally appealable decision" so that NCAT has jurisdiction to hear and determine the appeal. None of the other transitional provisions would appear to give NCAT jurisdiction to determine the appeal if the decision is not an "internally appealable decision". 47NCAT's internal appeals jurisdiction is established by s 32 of the Act and the right of a party to appeal against an "internally appealable decision" is conferred by s 80. Section 80(1) states: (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. 48An "internally appealable decision" is defined in s 32(4) as "a decision of [NCAT] or a registrar over which [NCAT] has internal appeal jurisdiction". 49Section 32(1) provides: (1) The Tribunal has internal appeal jurisdiction over: (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section. 50Thus, in the present case where registrars' decisions and administrative review decisions (see s 30 of the Act) are not involved, an NCAT internally appealable decision will be limited to a decision made by NCAT in proceedings for a "general decision". 51Section 29(3) provides: (3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction. 52Section 29(1) provides: (1) The Tribunal has general jurisdiction over a matter if: (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. 53The RT Act (in its post 1 January 2014 form) enables NCAT to make decisions and exercise other functions of the kinds specified in the RT Act. Claims for termination of a residential tenancy and an order for possession do not fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of NCAT (see ss 30, 32 and 33 respectively). Accordingly, a decision made by the Consumer and Commercial Division under ss 84 and 187 of the RT Act (in its post 1 January 2014 form) will be a "general decision" within the meaning of the Act and the Appeal Panel will have jurisdiction to hear and determine an internal appeal from such a decision. 54If, however, the decision of the Consumer and Commercial Division had been made as a result of an application under cl 9(2) of Schedule 1 to the Act a different result follows. Clause 9 would at least be part of the legislation that relevantly "enables the Tribunal to make decisions or exercise other functions" in such a case but cl 9 is not "legislation (other than this Act or the procedural rules)", within the meaning of s 29(1)(a). Accordingly, it seems that proceedings based upon an application made under cl 9 at first instance will not be in NCAT's general jurisdiction and the decision in such proceedings will not be a "general decision". In those circumstances, it will not be a decision over which NCAT has internal appeal jurisdiction under s 32(1). 55It is this latter conclusion that was the foundation for the Appeal Panel's concern as to its jurisdiction. If the landlords in this matter had applied at first instance under cl 9(2) of Schedule 1 to the Act, the decision would not, it seems, have been appealable to the Appeal Panel. 56That is not to say, however, that there would be no appeal rights in that case. For the purposes of proceedings under cl 9(2), cl 9(3)(b) provides that "the provisions of any Act, statutory rule or other law ... that would have applied to or in respect of the application had [the Act] and the relevant amending Acts not been enacted continue to apply". Thus, the appeal rights in such a case would seem to be those available under the CTTT Act, as if it had not been repealed by the Civil and Administrative Legislation (Repeal and Amendment) Act. Section 67 of the CTTT Act provided for an appeal in limited circumstances to the District Court. 57For these reasons the Appeal Panel concludes that the decision made by the Consumer and Commercial Division in this matter, since it was based on ss 84 and 187 of the RT Act (in its post-1 January 2014 form), was an "internally appealable decision" within the meaning of ss 80, 32 of the Act. As a consequence, the Appeal Panel has jurisdiction to hear and determine this appeal. 58It should be noted, however, that if the application by the landlords had been made under cl 9(2) of Schedule 1, the decision by the Consumer and Commercial Division would not have been an "internally appealable decision" and the Appeal Panel would not have had jurisdiction to deal with the appeal.

The Stay Application 59Under s 43(2) of the Act, where an internal appeal is involved the pendency of an appeal does not affect the operation of the decision to which the appeal relates unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. The Tribunal may under s 43(3) make such orders staying or otherwise affecting the operation of a decision to which a pending appeal relates as it considers appropriate to secure the effectiveness of the determination of the appeal. 60In the present matter, the Consumer and Commercial Division had ordered that the residential tenancy agreement in respect of the Property be terminated immediately and that possession be given on the date of termination. The order for possession was suspended until 1 March 2014. 61The tenants had not delayed in lodging their appeal. The grounds of appeal were in effect that there was a valid residential tenancy agreement for the period from 31 December 2013 to 1 July 2014 because: (1)agreement on a new fixed term tenancy agreement had been reached before the Notice of Termination was served; (2)the Notice of Termination did not as a matter of law subsume the previous negotiations; and (3)the requirement of s 17 of the RT Act were satisfied thus creating a valid residential tenancy agreement. The Appeal Panel was satisfied that these ground were reasonably arguable in the circumstances. 62Given the nature of the subject matter of the proceedings, the Panel also accepted that if the stay were not granted, the tenants would be required to give possession to the landlords on 1 March 2014. As a result, the subject matter of the appeal, namely the tenants' right to remain in occupation, would be effectively lost. 63Finally, the Panel also took into account the fact, quite properly acknowledged by Ms Hill, that the landlords would not suffer any significant prejudice if the appeal were heard on an expedited basis within two weeks. 64For these reasons, the Appeal Panel granted a stay of the orders made on 29 January 2014 in this matter, except Order 4, until further order. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 10 March 2014

Civil and Administrative Legislation (Repeal and Amendment) Act 2013(NSW)

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

Consumer Trader and Tenancy Tribunal Act 2001(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (3)

Cited By (6)