Makowska v St George Community Housing Ltd - [2022] NSWCA 5 - NSWCA 2022 case summary — Zoe

NSWNSWCA

Makowska v St George Community Housing Ltd

[2022] NSWCA 5

Court of Appeal (NSW)|2022-02-07|Before: Meagher JA, Payne JA, Adams J

View original source

At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2022-02-07

Before

Meagher JA, Payne JA, Adams J

Catchwords

[1995] HCA 10 Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259

Source

Original judgment source is linked above.

Catchwords

[1995] HCA 10 Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259

Judgment (19 paragraphs)

[1]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[2]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Ms Zofia Makowska, is a tenant of premises operated by St George Community Housing Ltd (St George). St George became landlord of Ms Makowska's unit from 1 April 2019, when it entered into a concurrent lease of the premises with the owner and former landlord of the premises, the Land and Housing Corporation (LAHC). On 7 May 2018, Ms Makowska commenced proceedings against the LAHC in the Civil and Administrative Tribunal (Tribunal), the second respondent, seeking compensation for alleged breaches of the Residential Tenancies Act 2010 (NSW). Those proceedings concluded on 18 July 2018 with the entry of consent orders requiring the LAHC to comply with s 50(3) of the Act and to undertake other actions. Subsequently, Ms Makowska brought two further sets of proceedings against the LAHC, based on alleged failures by the LAHC to comply with the consent orders. The first proceeding, which related to alleged incidents in the period 30 July 2018 to 14 September 2018, was dismissed. The second proceeding, which related to alleged incidents in a different period 30 December 2018 to 14 January 2019, was also dismissed on the incorrect basis that it raised the same issues as the first set of proceedings. Ms Makowska successfully appealed to the Appeal Panel against the dismissal of the second proceeding, and the matter was remitted to the Tribunal for determination. On 29 August 2019, the Tribunal made orders removing the LAHC as respondent and joining St George in its place. Due to an internal administrative error, St George did not attend the hearing of the remitted matter and orders for compensation were entered in its absence. On 26 November 2019, Ms Makowska registered the compensation order as a judgment of the Local Court and applied for a garnishee order. On 18 December 2019 in response to an application filed by St George, the Tribunal set aside the compensation order. Ms Makowska was unsuccessful in her appeal against the Tribunal's decision. On 9 July 2020, the Tribunal refused an application by Ms Makowska to re‑join the LAHC as respondent to the proceeding. On 25 November 2020, the Tribunal dismissed Ms Makowska's claim, which had been amended so that it now alleged 136 incidents of purported breach in the period 3 December 2018 to 11 June 2020. On 30 June 2021, the Appeal Panel affirmed the Tribunal's finding that St George was not liable to pay compensation to Ms Makowska but upheld her appeal against the Tribunal's refusal to re‑join the LAHC. On 27 July 2021, Ms Makowska filed a summons in the Supreme Court seeking judicial review of the Appeal Panel's decision of 30 June 2021. Ms Makowska did not exercise her right to appeal to the Supreme Court on a question of law under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW). On 31 January 2022, orders were made transferring the matter to the Court of Appeal. The sole issue before the Court was whether Ms Makowska had demonstrated any jurisdictional error or error of law on the face of the record in relation to the decision of the Appeal Panel of 30 June 2021.

[4]

Judgment

THE COURT: The applicant, Ms Zofia Makowska, is a tenant of premises operated by St George Community Housing Ltd (St George), the first respondent, pursuant to a concurrent lease arrangement with the owner of the premises, the Land and Housing Corporation (LAHC).
A concurrent lease is created when a landlord, who holds an interest in land in the form of a reversion expectant on a current lease, grants a second lease (in proper form) of the same estate for a longer period than the current lease. Where a concurrent lease has been granted, the premises are therefore subject to two leases concurrently during the term of the first lease. A concurrent lease is a lease and not a sub-lease. It operates as an assignment of the landlord's reversionary interest for the term of the concurrent lease. Consequently, the concurrent lessee becomes landlord vis-à-vis the lessee under the first lease. As landlord, the concurrent lessee may give the tenant under the first lease a notice to quit and is entitled to rent and to enforce the terms and covenants of that lease. Conversely, the grantor of the concurrent lease cannot enforce lease covenants against the former lessee: see further Andrew G Lang, Leases and Tenancies in New South Wales (1976, The Law Book Co) at 224-226.
Ms Makowska commenced proceedings in the New South Wales Civil and Administrative Tribunal (Tribunal), the second respondent, which have been subject to three rounds of hearing before the Tribunal and its Appeal Panel. Those proceedings were initially commenced against the LAHC, however St George was substituted as respondent partway through the extensive procedural history. The substantive component of those proceedings relates to St George's alleged failure to take all reasonable steps to ensure that its other neighbouring tenants do not interfere with Ms Makowska's reasonable peace, comfort or privacy in using the residential premises, in breach of its obligation under s 50(3) of the Residential Tenancies Act 2010 (NSW).
By its decision of 30 June 2021, the Appeal Panel of the Tribunal ultimately dismissed Ms Makowska's substantive claim against St George but granted her leave to appeal in relation to her challenge to the Tribunal's refusal to re‑join the LAHC. The Appeal Panel remitted to the Tribunal the issues of whether the LAHC should be joined as respondent to the proceedings and, if so, whether it is liable to pay compensation to Ms Makowska.
Ms Makowska seeks judicial review of that decision of the Appeal Panel. As Cole DCJ presided in the Appeal Panel, the proceedings are required to be heard in the Court of Appeal: Supreme Court Act 1970 (NSW), s 48. That provision relevantly provides: 48 Assignment to the Court of Appeal (1) (a) In this section - specified tribunal means - … (iv) the District Court or a Judge of the District Court (but not a Judicial Registrar of that Court), … (vii) a tribunal or other body (not including the State Parole Authority) that was constituted by one or more judges or members when exercising the functions, or purporting to exercise the functions, to which the proceedings in the Court relate… (b) In paragraph (a)(vi) and (vii), judge or member means a person who is or has been - (i) a Judge or associate Judge, or (ii) a judge or member of any body referred to in paragraph (a) (i)-(iv)… (2) There are assigned to the Court of Appeal proceedings in the Court - … (g) for otherwise reviewing a decision of a specified tribunal.
Although proceedings were commenced in the Common Law Division of the Supreme Court, on 31 January 2022 an order under s 51 of the Supreme Court Act was made transferring the matter to this Court. The matter was listed for oral hearing on 3 February 2022. Ms Makowska made an application for the matter to be determined on the papers. St George did not oppose that order. The Court made an order in chambers directing that the matter be determined on the papers and reserving its decision.

[5]

The initial proceedings and the first appeal

On 7 May 2018, Ms Makowska commenced proceedings against the LAHC seeking compensation and remedial orders relating to alleged breaches of ss 50 and 52 of the Residential Tenancies Act arising from the alleged behaviour of certain of her neighbouring tenants. Those proceedings concluded on 18 July 2018 with the entry of consent orders requiring the LAHC to comply with s 50(3) of the Residential Tenancies Act, to remove certain items from a stairwell on common property in the vicinity of Ms Makowska's unit, and to take reasonable steps to ensure the tenants of a neighbouring unit did not behave in a manner and did not place any items on the stairwell that would interfere with Ms Makowska's reasonable peace, comfort or privacy (2018 Orders). The proceedings were otherwise dismissed.
Subsequently, Ms Makowska brought two further sets of proceedings against the LAHC seeking orders under s 187(1) of the Residential Tenancies Act. The first, commenced on 19 September 2018, was based on alleged failures by the LAHC to comply with the 2018 Orders said to have arisen from 20 alleged incidents involving her neighbouring tenants in the period 30 July 2018 to 14 September 2018. The Tribunal dismissed that proceeding on 7 January 2019.
The second set of proceedings, commenced on 14 January 2019, was based on 20 alleged incidents involving her neighbouring tenants in a different and later period: 30 December 2018 to 14 January 2019. It is this set of proceedings which provides the genesis of the present application for judicial review. The Tribunal dismissed these proceedings on 14 February 2019, on the basis that it raised the same issues as the first set of proceedings in respect of which an appeal was then pending. It is common ground that this was an error, as the two sets of proceedings commenced by the applicant related to alleged breaches in different periods of time.
On 27 February 2019, Ms Makowska commenced an appeal in the Appeal Panel contesting the Tribunal's decision to dismiss the second set of proceedings.
On 7 June 2019, the Appeal Panel quashed the Tribunal's decision to dismiss the second set of proceedings and remitted the matter to the Tribunal for determination.

[6]

Joinder of St George as respondent and the second appeal

On 31 March 2019, the LAHC wrote to Ms Makowska giving notice of the concurrent lease of the type described at [2] above and as referred to in s 13A of the Housing Act 2001 (NSW). Purported notice pursuant to s 12 of the Conveyancing Act 1919 (NSW) was given that the LAHC had assigned to St George all debts owed to the LAHC by Ms Makowska; cf Housing Act, s 13A(2).
On 1 April 2019, after the proceedings before the Appeal Panel had commenced but before the Appeal Panel's decision, the LAHC and St George entered into the concurrent lease in relation to Ms Makowska's unit. The unit was already leased to Ms Makowska pursuant to a "residential tenancy agreement" within the meaning of s 13 of the Residential Tenancies Act. Accordingly, from 1 April 2019 St George became Ms Makowska's "landlord" within the meaning of that Act: Residential Tenancies Act, s 3.
St George appeared in the Tribunal for the first time on 29 August 2019, when the Tribunal made orders removing the LAHC as respondent and joining St George in its place. The Tribunal also granted Ms Makowska leave to amend her application to extend her claim to incorporate further alleged incidents and to increase her claim for compensation.
On 12 September 2019, Ms Makowska filed a document entitled "Applicant's submissions in support (as amended)", indicating that she now relied on 78 alleged incidents in the period 3 December 2018 to 12 September 2019, and sought compensation in the sum of $5,591.25.
On 30 October 2019, the Tribunal heard the claim in the absence of St George and ordered St George to pay Ms Makowska compensation in the sum of $2,402.64 (Compensation Order). Upon receiving notice from Ms Makowska of the Compensation Order entered in its absence, on 22 November 2019 St George filed an application in the Tribunal to have it set aside. Soon after on 26 November 2019, Ms Makowska registered the Compensation Order as a judgment of the Local Court of NSW and applied for a garnishee order.
In response to St George's application, on 29 November 2019 the Tribunal made orders temporarily staying the operation of the Compensation Order.
On 18 December 2019, the Tribunal set aside the Compensation Order as it was satisfied that, due to an internal administrative error, the relevant officers of St George were not made aware of the Tribunal's notice of hearing.
On 23 December 2019, Ms Makowska filed a notice of appeal in the Appeal Panel challenging the Tribunal's decision to set aside the Compensation Order. On 17 March 2020, the Appeal Panel dismissed this appeal.

[8]

A preliminary issue

By commencing proceedings for judicial review of the Appeal Panel's decision, Ms Makowska seeks to invoke the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act. She does so notwithstanding that, as a party to proceedings before the Appeal Panel, she has a statutory right to appeal to the Supreme Court on a question of law. [1] Section 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides: 83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.
Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 50.3(1) requires that a summons commencing an appeal under s 83(1) of the NCAT Act must be filed within 28 days after the material date (being the date of the decision of the Appeal Panel) or within such further time as the Court may allow. Ms Makowska has not sought leave to appeal on a question of law under s 83 of the NCAT Act.
Where a statutory right of appeal to the Supreme Court is available, but a party chooses instead to invoke the Court's supervisory jurisdiction by way of judicial review, usually the Court will exercise its discretion and refuse to conduct a judicial review. This is because the inference may readily be drawn that, by commencing proceedings for judicial review, the moving party is deliberately seeking to avoid the obligation to obtain leave to appeal. This conclusion is underlined by s 34(1)(c) of the NCAT Act, which provides: 34 Inter-relationship between Tribunal and Supreme Court (1) The Supreme Court may - … (c) refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision.
Ms Makowska has proffered no explanation for her failure to pursue her statutory rights of appeal. Her stated reason for pursuing judicial review is that it could not be said that an appeal would be an "apposite path" in circumstances where she pleads both an error of law on the face of the record and jurisdictional error. However, this Court hearing an appeal under s 83 of the NCAT Act would be competent to deal with any such issue as a question of law.
It is open to this Court to dismiss Ms Makowska's summons as a matter of discretion, unless a substantial miscarriage of justice would occur if relief were not available in the supervisory jurisdiction. The answer to this question turns in part on whether Ms Makowska can make out a case for relief in the supervisory jurisdiction. We will return to this issue after addressing the grounds of review in this application.

[9]

The grounds of review

Ms Makowska's summons for judicial review seeks a review of the Appeal Panel's decision of 30 June 2021. The summons, dated 27 July 2021, contains four grounds of review: "1 The Appeal Panel entered on an error of law by determining that during the period of the [applicant]'s complaints to the first [respondent] about the neighbouring tenant, a composite course of reasonable steps less one step equated to all reasonable steps for the satisfaction of the all reasonable steps legal test. 2 It was not open for the Appeal panel to make a finding of fact that any reasonable steps the first [respondent] was to take to satisfy the [applicant]'s complaints or the all reasonable steps legal test, was at great expense and effort. 3 The Appeal Panel breached section 38(4) of the Civil and Administrative Tribunal Act 2013 by relying on a technicality as to the position of the first [respondent] as the liable party in circumstances where the first [respondent] had substituted itself as the respondent in the proceedings. 4 The Appeal Panel as constituted in related proceedings with the file number AP 19/57305 entered on an error of law when it determined that jurisdiction had not vested in the local court upon the [applicant] registering the Tribunal's money order in the amount of $2,402.64 contemporaneously with the notice of motion garnishee order."
On 31 August 2021, Ms Makowska filed an affidavit, accompanied by an exhibit of 320 pages and a USB drive containing various video and audio recording files. In her affidavit, Ms Makowska describes the conduct of her neighbouring tenant said to give rise to her claims before the Tribunal and sets out the extensive procedural history of the matter before the Tribunal and its Appeal Panel. As this is an application for judicial review, the merits of Ms Makowska's complaints addressed in that evidence have little, if any, relevance. Objection was taken to paragraphs 113-119 of the affidavit. That material is inadmissible and is rejected: Evidence Act 1995 (NSW), s 131. Objection was also taken to the USB drive containing video and audio recordings. None of this material was referred to in Ms Makowska's lengthy written submissions. It is irrelevant to this judicial review application and is rejected.
The affidavit of Liam Patrick Kirby sworn 21 September 2021 was read by St George without objection. That affidavit simply sets out the procedural history of the proceedings before the Tribunal and the Appeal Panel, and annexes the various orders made in those proceedings and the reasons for the orders.

[11]

Ground 1

By her first ground of review, Ms Makowska contends that the Appeal Panel made an error in its construction of s 50(3) of the Residential Tenancies Act. That provision provides: 50 Tenant's right to quiet enjoyment … (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises.
The Appeal Panel concluded that the question of whether a landlord had taken "all reasonable steps" as required by s 50(3) was a question of fact to be determined objectively, taking into account all of the circumstances. No error has been shown in that conclusion.
Ms Makowska's first ground of review asserts that because St George failed to take a reasonable step which was open to it, St George could not therefore have taken "all reasonable steps". As the Appeal Panel characterised the same argument, St George was, according to Ms Makowska, obliged by s 50(3) to "literally do everything possible which was not unreasonable", despite the apparent triviality of a complaint and regardless of the expense and effort involved in taking the putative step.
Before the Tribunal, Ms Makowska contended that St George should have applied the procedure set out in the Antisocial Behaviour Management Policy, a policy document published by the Department of Communities and Justice which was not binding on St George, against the neighbouring tenant. As St George had failed to do so, it could not be said to have taken "all reasonable steps". However, the Tribunal found that implementation of the process provided for in the Policy was not a reasonable step which St George was required to take in the circumstances of this case. Ms Makowska did not seek leave to challenge that factual finding before the Appeal Panel.
This ground of review is an attempt to challenge the merits of the finding of the Tribunal, which was not challenged before the Appeal Panel, that St George had discharged its obligation to take "all reasonable steps" under s 50(3) of the Residential Tenancies Act. That factual finding did not amount to a jurisdictional error or error of law on the face of the record. This ground of review fails.

[14]

Ground 4

By her fourth ground of review, Ms Makowska does not challenge any aspect of the Appeal Panel's decision of 30 June 2021, but instead alleges error in the decision of a differently constituted Appeal Panel made on 17 March 2020. That decision concerned the setting aside of the Compensation Order.
The time for the commencement of any judicial review proceeding in relation to the decision to set aside the Compensation Order has long since expired. Rule 59.10 of the UCPR specifies that proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. The decision to set aside the Compensation Order was made on 17 March 2020. Accordingly, the time for commencing proceedings for judicial review of that decision expired on 17 June 2020, more than a year before the present summons was filed.
In any event, the Tribunal had power to make an order setting aside an earlier decision if it was made in the absence of a party and the Tribunal was satisfied that the party's absence resulted in the party's case not being adequately put to the Tribunal: Civil and Administrative Tribunal Regulation 2013 (NSW), r 9(1)(b). That express power to set aside the Compensation Order, which was entered in St George's absence following a hearing from which St George was also absent, was not affected by the registration of the Compensation Order as a judgment of the Local Court pursuant to s 78 of the NCAT Act. The Appeal Panel correctly found that registration of a money order was "an administrative process" and a consequence of an order made by the Tribunal under its legislation. If and when the decision made by the Tribunal is set aside, the money order is not sustained by the mere fact of its earlier registration and it ceases to have operative effect.
This ground raises no arguable jurisdictional error or error of law on the face of the record.
Finally, as we have explained, the decision of the Appeal Panel made on 17 March 2020 is not the subject of the summons filed in this proceeding and is outside the scope of this proceeding.

[16]

Further challenge to the Appeal Panel's decision

Although this was not raised in any ground of review, Ms Makowska in her written submissions argues that the Appeal Panel lacked jurisdiction to answer a question of law, namely the construction of s 50(3) of the Residential Tenancies Act. Ms Makowska contends that the Appeal Panel "progressed beyond the limit of the Appeal Panel's authority under sub-s 38(4) of the [NCAT] Act by distracting itself with the technicality or legal form of the question of law."
As this submission does not go to any ground of review, it is not open to Ms Makowska in these proceedings.
In any event, the submission is without merit. In determining an appeal from the Tribunal, the Appeal Panel may exercise all the functions that are conferred or imposed on the Tribunal at first instance: NCAT Act, s 81(2). Those functions include the power to decide whether there has been a breach of s 50(3) of the Residential Tenancies Act which necessarily involved the proper construction of that section.
Furthermore, provision is made for a statutory appeal on a question of law to the Supreme Court against a decision of the Appeal Panel: NCAT Act, s 83(1). It follows that the Appeal Panel must have general powers to determine questions of law, against which such an appeal might lie.
The Appeal Panel did not exceed its jurisdiction in construing s 50(3) of the Residential Tenancies Act. Ms Makowska's submissions to the contrary, which in any case do not go to any ground of review, cannot be accepted.
In her written submissions, Ms Makowska also asserted that by simultaneously registering the Compensation Order in the Local Court of NSW and applying for a garnishee order, jurisdiction became vested in the Local Court with the result that "the case was at once one of federal jurisdiction, the interpretation of the Constitution was involved, and the Tribunal (as a State statutory tribunal) was functus officio by 22 days."
Although s 78 of the NCAT Act provides that an order for compensation by the Tribunal can be registered in the Local Court as though it were a judgment, such registration does not in itself constitute an exercise of judicial power by the Local Court: see Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 271; [1995] HCA 10. Regardless of whether judicial power was engaged, it is simply not arguable that any jurisdiction vested in the Local Court transformed the case into one involving federal jurisdiction.
Ms Makowska has not identified a matter arising under the Constitution or involving its interpretation and there was no need, in the circumstances, for the issue of notices under s 78B of the Judiciary Act 1903 (Cth).

Makowska v St George Community Housing Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (8)

Cited By (5)