Muldoon v Church of England Children's Homes Burwood

Judgment 1On 31 May 2011, the Court issued orders dismissing the application by Paul Muldoon (hereinafter "the plaintiff") for judicial review of a decision of the Consumer, Trader & Tenancy Tribunal (hereinafter "CTTT"). At the time the Court issued very short reasons so that the parties, who include an unrepresented plaintiff, would understand some of the reasons for the orders that were made.

Facts/Procedural history 2The procedural history of the matter is a little complicated. On or about 28 October 2005, Mr Muldoon and the Church of England Children's Home (hereinafter "Weldon") entered into an agreement entitled a "Collaborative Agreement" (hereinafter "Agreement"). 3Under that Agreement, Weldon provided tenancy for Mr Muldoon to an area described as "the currently unused upstairs area of 23 Weldon St, comprising the old bathroom block (pottery room/darkroom), self-contained corner room, small pantry cupboard, front and side upper veranda area, and two adjoining rooms to the veranda. The agreed rental value of the tenancy is $190 per week." The Agreement also provides that Mr Muldoon will provide caretaking work and computer consulting work in lieu of cash payment of rent and a method of calculating equivalent rates is provided in the Agreement. 4The currently unused upstairs area that was the subject of the tenancy arrangement was thereafter used by Mr Muldoon as a residence, as it was initially intended. The term of the Agreement was for six months and the terms of the Agreement do not provide for an extension or for a continuation of the tenancy in the absence of further agreement. 5The terms of the Agreement provide that at the conclusion of the six-month term, specified in the agreement, "if both parties are in mutual agreement, a longer lease will be negotiated". The six-month time limit expired on 27 April 2006. 6The Agreement provides that Mr Muldoon will perform certain caretaking and computer work for Weldon, which, under a calculation provided in the Agreement, will suffice as the rent. That computer work ceased on or about 30 June 2007. 7On 25 July 2007, there was a purported meeting of the Council of Weldon, which resolved to provide written advice to Mr Muldoon that he had 60 days in which to vacate the premises. The first notice of termination, purportedly pursuant to s 58 of the Residential Tenancies Act 1987 (hereinafter "the Act"), was served on Mr Muldoon on 23 October 2007. Under that notice, Mr Muldoon was required to vacate the premises on 24 December 2007. A second notice of termination, purportedly pursuant to s 58 of the Act, was served on 7 May 2008 and it gave Mr Muldoon until 11 July 2008 to vacate the premises. 8On 16 July 2008, Weldon made an application to the CTTT pursuant to s 64 of the Act. On 30 July 2008, the hearing of the application was adjourned in order for Mr Muldoon to seek assistance from a tenancy advocate. 9On 7 August 2008, Weldon made application to the CTTT based upon the second notice of termination. On 11 September 2008, both applications were dismissed on technical grounds. 10Weldon asserts, in an affidavit of its solicitor, that Mr Muldoon ceased residing at the premises on 12 November 2008. This assertion was contested, albeit from the bar table and not through evidence, at the hearing before the CTTT. 11On 21 January 2009, a further notice of termination of lease was executed by Weldon and a third notice of termination, purportedly pursuant to s 58 of the Act, was served on Mr Muldoon on 2 February 2009, which notice arose out of the purported termination on 21 January 2009. That notice was served pursuant to s 130(4) of the Act and clause 29(c) of the Regulations made pursuant thereto. 12The third notice of termination, to which reference has just been made, required Mr Muldoon to vacate the premises on 7 April 2009. On 30 April 2009, a third application was made to the CTTT (RT09/20573) (hereinafter "the Application"). On 18 May 2009, there was a hearing of the Application and orders were made terminating the lease and requiring Mr Muldoon to vacate the premises on 30 June 2009. 13On 1 June 2009, Mr Muldoon applied for the Application to be reheard. That application for rehearing (RT09/25821) was successful and the Application was re-listed and the orders made in the Application set aside or stayed, at least pending a full rehearing. The rehearing was listed for 24 June 2009. 14On 24 June 2009, the rehearing was adjourned and on 11 August 2009 the hearing occurred and orders were once more made by the CTTT for termination of the lease and that Mr Muldoon provide vacant possession. The CTTT ordered that Mr Muldoon vacate the premises on or before 25 August 2009. 15On 21 August 2009, Mr Muldoon filed a summons purporting to appeal the CTTT decision. That appeal, pursuant to the terms of s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (hereinafter "CTTT Act") was to the District Court of New South Wales. The orders of the CTTT were suspended or stayed pending the outcome of the appeal, which was heard on 8 and 9 April 2010. 16At the conclusion of the appeal, the District Court granted leave to appeal the whole of the decision of the CTTT; declined to make the remaining orders; affirmed the decision of the Tribunal, save as to the date of the order for possession; dismissed the summons; ordered Mr Muldoon to pay Weldon's costs of the appeal; and ordered that possession be given on or before 30 April 2010. The jurisdiction of the District Court under s 67 of the CTTT Act was either to affirm the decision of the Tribunal or make certain other orders: s 67(3) of the CTTT Act. No issue is taken in these proceedings as to the validity of the extension of time to provide vacant possession. 17On 29 April 2010, Mr Muldoon filed a notice of intention to appeal the judgment of the District Court to the Supreme Court. Mr Muldoon filed a notice of appeal in the Supreme Court on 30 April 2010 and the purported appeal was heard before the Court of Appeal on 27 August 2010. On 11 March 2011, the Court of Appeal delivered judgment. The Court of Appeal dismissed the purported appeal with costs and extended the execution of the order for possession for a further 21 days after the date of its orders. Again, no issue is (or could be) taken before me as to the validity of the extension granted by the Court of Appeal. 18After all of the foregoing, Mr Muldoon filed the originating summons in the present proceedings on or about 25 March 2011, lodged the copies of the summons on or about 28 March 2011 and the document, being the summons originally filed, was eventually stamped on 29 March 2011. That summons sought orders in the nature of certiorari, pursuant to the terms of s 69 of the Supreme Court Act 1970 against both the Consumer, Trader & Tenancy Tribunal of 11 August 2009 and, it seems, against the District Court. It also seems, at least inferentially, that certiorari was sought to be issued against the Court of Appeal. 19For reasons that are unknown to the Court, as presently constituted, the matter came before me, the then Common Law Division Duty Judge. It was pointed out to Mr Muldoon, by the Court, that certiorari would not issue against the Court of Appeal (or the Supreme Court) and that certiorari against the District Court must be sought and obtained in the Court of Appeal to which, if the application in relation to the District Court were not withdrawn, the matter would be referred. 20At the initial hearing Mr Muldoon sought to withdraw the application and the Court granted leave to file an amended summons. Before the Court at the same time was a notice of motion filed by Weldon that the summons be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005. The latter notice of motion was stood over as was a further notice of motion for interlocutory orders by Mr Muldoon that the Court of Appeal orders "be suspended" until after the judicial review sought by the plaintiff. 21Weldon, through its legal representatives, most properly undertook, wholly unsolicited, not to seek or to obtain possession during the course of the proceedings before the Court. 22Further, due to the complicated procedural background and the complexities associated with the relationship between judicial review proceedings against the decision of the CTTT and the appeal to the District Court and the failed appeal to the Court of Appeal, attempts were made to obtain pro bono legal advice for Mr Muldoon. Those attempts were unsuccessful. 23Finally, on 31 May 2011, the proceedings were heard by the Court and orders issued granting leave to file in Court the affidavit of Mr Muldoon and the amended summons which was annexure D to that affidavit. The Court dismissed the notices of motion of both the plaintiff and the defendant. The summons and proceedings were dismissed and an order was made that Mr Muldoon pay the defendants' costs of and incidental to the proceedings, as agreed or assessed.

Relief sought in these proceedings 24The amended summons did not seek the issue of prerogative relief against the Court of Appeal or the Supreme Court. Such an attempt would have been futile. The terms of the amended summons did seek prerogative relief against the District Court, but Mr Muldoon made it clear, during the course of proceedings, that relief was not sought against the judgment of the District Court. As a consequence, notwithstanding the terms of the amended summons, the Court allowed the matter to proceed without recourse to certiorari against the District Court and, therefore, before a single judge of the Court. 25Mr Muldoon filed and read an affidavit of 30 May 2011, which affidavit sought to deal with some of the issues that, ordinarily, ought to have been dealt with in the summons. By paragraph 4 of that affidavit, Mr Muldoon made it clear that he was withdrawing the claims for relief against the judgment of the District Court, notwithstanding the wording of the amended summons. 26Mr Muldoon purported to rely on the jurisdiction of this Court pursuant to s 65(3)(a) of the CTTT Act. Section 65 of the CTTT Act is a purported privative clause and the Court took the reference to be a reference to s 69 of the Supreme Court Act . 27Notwithstanding the discursive nature of the grounds upon which Mr Muldoon relied and the failure, in any strict sense, to identify in the pleadings an error of law that would give rise to certiorari, the Court obtained from Mr Muldoon a series of propositions upon which he relied which, arguably, were questions of law.

Difficulties with the application 28The first difficulty in proceedings such as this is the complexity created by legislation which grants a right of appeal to the District Court, no appeal from the District Court (see Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46), a right to orders in the nature of certiorari against the CTTT issuing from a single judge of the Supreme Court and a right to orders in the nature of certiorari issuing from the Court of Appeal in relation to a judgment of the District Court. The mere fact that the District Court has dealt with an appeal from the decision of the CTTT does not preclude a party from seeking orders in the nature of certiorari quashing the same decision from which an appeal has already unsuccessfully been brought and does not necessarily mandate a particular result. 29Issues will necessarily arise in relation to abuse of process: Hill v King (1993) 31 NSWLR 654 at 659. In Hill , supra, the Court of Appeal (Clarke, Handley and Sheller JJA) said: "In our opinion, therefore, a judge hearing an appeal ... who is faced with claims for prerogative relief has a discretion to refuse that relief, even where jurisdictional error is alleged. Ordinarily, a second summons claiming prerogative relief [in situations where an appeal has already been instituted] should be struck out as an abuse of process." 30Further, the High Court, in other circumstances, has made it clear that an internal (or external) appeal process should be finalised before prerogative relief is sought and/or obtained. Further, there are significant difficulties associated with the proposition that the CTTT decision should be subject to judicial review in this Court (particularly when comprised of a single judge) in circumstances where there is a judgment of the District Court of New South Wales confirming that decision. In R v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation ("Omega case") [1981] HCA 33; (1981) 147 CLR 471, Mason J (with whom, on this issue, Murphy, Aickin, Wilson and Brennan JJ agreed) was required to deal with an application for a constitutional writ where the application was made against a single member of the relevant federal industrial tribunal in circumstances where a full bench of that tribunal had confirmed the decision at first instance but were not party to the proceedings. His Honour said: "The applicant's omission to join the members of the Full Bench as respondents to its application to this Court for prohibition creates a preliminary complication. Mr. Ryan for the applicant sought to justify the course which had been adopted by submitting that if the challenge to the decision of Marks J. succeeded on the footing that it was void, the confirmation of that decision by the Full Bench would have no operative effect. This submission does not meet the point that the Full Bench decision is conclusive while it stands. In Wishart v. Fraser [1941] HCA 8; (1941) 64 CLR 470, it was held that an appeal as of right to the High Court from a decision of a magistrate exercising federal jurisdiction could not be maintained after it had been confirmed by a Court of Quarter Sessions. Dixon J. said (1941) 64 CLR, at p 483: '... we cannot ignore the order of the Court of Quarter Sessions confirming the conviction and ... unless we are satisfied that it was made without jurisdiction and is totally void, we must regard it as conclusive while it stands.' By its decision the Full Bench confirmed the decision at first instance. Further steps to implement the decision will be steps taken pursuant to its confirmation of that decision." (Marks, supra, at [4], per Mason J.) 31In this case, the District Court confirmed the decision of the CTTT and that decision of the District Court stands. Further, the Court of Appeal in its judgment of 11 March 2011 granted leave to issue a writ of possession at the exploration of a further 21 days after the date of its reasons. The execution of the order for possession therefore depends, not on the original order of the CTTT, but on the orders of the District Court and of the Court of Appeal. Each of those latter orders are extant and are not sought to be impugned in these proceedings. Nor could they be impugned in these proceedings. It is unnecessary to determine finally whether orders in the nature of certiorari could issue in such circumstances. 32As announced on 31 May 2011, the Court has dismissed the summons and the proceedings and, in so doing, has assumed, without deciding, that, if the merits were otherwise, appropriate orders could issue. It is unnecessary to determine otherwise. Nevertheless, the jurisdictional complexity associated with prerogative relief against the CTTT in circumstances where there is an extant District Court judgment on appeal should not be underestimated. Nor should it be assumed that the Court will issue prerogative relief in circumstances where appropriate remedy is available on appeal under s 67 of the CTTT Act. Prerogative relief may be refused on discretionary grounds, which include, at least, that there are appropriate remedies available on appeal.

The substantive grounds 33The first substantive ground raised by Mr Muldoon is that the Agreement is not a residential lease and therefore is an agreement over which the CTTT has no jurisdiction. Plainly this is a ground alleging jurisdictional error. 34The most obvious answer, from a practical perspective, in relation to this point is that, if, as Mr Muldoon alleges, the Agreement is not a residential tenancy over which the CTTT has jurisdiction, than the notice to quit was effective, in and of itself, and the lease expired, as set out above, six months from the date of its execution, namely, 27 April 2006. On that basis Mr Muldoon has no right to be on the premises and the Court would not interfere with an order giving effect to Weldon's right to occupy. 35However, there are more substantial reasons why Mr Muldoon's submission must be rejected. It is true that the Agreement deals with subject matters beyond residential tenancy. Nevertheless, the terms of the Residential Tenancies Act 2010, and its evident purpose would need to be ignored in order for Mr Muldoon to be successful. 36The Residential Tenancies Act defines residential premises as meaning "any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence". (See Definitions, s 3 of the Residential Tenancies Act .) By s 13 of the Residential Tenancies Act , a residential tenancy agreement is defined as "any agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence". By s 13(2), such a residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing. 37The premises in issue in these proceedings were plainly intended to be used as residential premises and were, in fact, used as a residence. To deny the CTTT jurisdiction in those circumstances would be to ignore the definitions in the Residential Tenancies Act and would be to allow the protections given to parties by the terms of the Residential Tenancies Act to be circumvented with ease. 38As the parties have conceded, the premises that were the subject of occupancy, for value, were intended to be used as a residence and were, in fact, used as a residence. As a consequence, Mr Muldoon's jurisdictional issue as to the nature of the Agreement must be rejected. 39The second and third grounds upon which Mr Muldoon relies are each procedural fairness grounds. The second ground pleads a denial of natural justice in that there was a failure by the CTTT to grant a summons directed at Weldon seeking minutes of its annual general meeting, documents relating to the constitution of its board of management and the termination notice. 40The third ground asserts, supplementary to the second ground, that the CTTT was under a strict obligation at common law. The CTTT failed, it is alleged, in its obligation to ensure that all relevant material was placed before it in denying the summons and, secondly, that it ought to have summonsed witnesses to attend, notwithstanding that no application for such attendance was made. 41Essentially Mr Muldoon alleges that there was a duty on the CTTT to advise him of his rights and/or to advise him of the best way in which to prepare and/or to present his case. It is the duty of a tribunal (or a court) to provide to a party the opportunity of properly presenting that party's case, including the proper preparation of the case to be presented. It is no part of that duty to ensure that a party, once given a reasonable opportunity, takes the best advantage of the opportunity to which that party is entitled. In Sullivan v Department of Transport (1978) 20 ALR 323 at 343, Deane J (as part of the Full Court of the Federal Court and with whom, in this respect, Fisher J agreed) said: "The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment ... In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled." 42The foregoing statement was cited with approval by Gaudron J (with whom Dawson J agreed) in Re Coldham; Ex Parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 84 ALR 208 at [19]. 43In this case the CTTT gave Mr Muldoon every opportunity to bring before it such material as he was able. Further, the CTTT allowed significant leeway and/or flexibility to Mr Muldoon on account of the fact that he was not legally represented. Nevertheless, there was no duty imposed on the CTTT to advise Mr Muldoon or to conduct his case. 44Mr Muldoon had a number of opportunities on which he could have and should have applied for subpoenas for witnesses that he sought to examine. He made no such application. Notwithstanding the opportunity given to him to prepare the case in the manner that he considered best, and to present the case in the manner that he could, his argument before this Court amounts to the proposition that the CTTT did not require him to use that opportunity to his best advantage. There is no duty on the CTTT to that effect. 45The fourth ground upon which Mr Muldoon seeks to rely is a matter on which Mr Muldoon sought to rely in his appeal to the District Court. It is an allegation that the solicitor representing Weldon in the District Court and/or before the CTTT misled the court and/or tribunal. The assertion of such a proposition, without evidence, is not sufficient to hold, as a matter of fact, that the assertion is correct. Even if it were correct, the submission did not amount to the proposition that the decision of the CTTT and/or the judgment of the District Court were obtained by fraud or would otherwise have been different. As a consequence of the foregoing, both as a matter of fact and as an issue which would vitiate the decision of the CTTT, the Court is not prepared to issue writs on the basis of the assertion made. 46The last ground upon which Mr Muldoon relies is that the board of management of the corporation, which in these reasons has been referred to as Weldon, was improperly constituted and could not validly act on behalf of Weldon. Further, Mr Muldoon must be taken also to make the necessary submission that the officer that signed the Application and/or termination did not have authority so to do. 47In this matter Mrs Drew was the General Manager of Weldon and her evidence before the CTTT was that she had authority to sign the notice. Nothing was said, in evidence, against that proposition. As the Court of Appeal pointed out in the purported appeal from the District Court: "[70] First, there is a lot to be said for the respondent's submission that none of the interesting questions on the corporations law vented by Mr Muldoon have any relevance because, as a matter of fact, both the Tribunal and Robison DCJ took the view that there was sufficient evidence to show that the notice to terminate was given by a person with sufficient authority to do so on behalf of the corporation. [71] Cases such as Richardson v Landecker (1950) 50 SR (NSW) 250 (FC) show that if a person with general authority within a corporation gives a notice to terminate a tenancy, it is not necessary for the landlord to show that its governing board has authorised that notice. In the present case it was quite clear from Mrs Drew's evidence, which was accepted, that she was the General Manager and that she considered herself to have authority to sign the notice and nothing was said against this. [72] Secondly, Mr Muldoon relied on the decision of Neville J in Re Sly, Spink & Co [1911] 2 Ch 430. Whilst the decision in that case has been followed in Australia, see eg Singh v Singh [2008] NSWSC 386 [95] and Gosford Christian School Ltd v Totonjian [2006] NSWSC 725; (2006) 201 FLR 424, 440 [54] and see Jalmoon Pty Ltd v Bow [1997] 2 Qd R 62, the Sly, Spink case might not have been sufficient for Mr Muldoon's purposes. This is because it is possible that s 1322 and other sections of the Corporations Act might come into play (though see the Gosford Christian School case at [445] to [446]). Also the principle in Re Duomatic Ltd [1969] 2 Ch 365 may well be relevant in a case where all the corporators by themselves or a committee of their delegates exercise the powers of the board; see eg Euro Brokers Holdings Ltd v Monecor (London) Ltd [2003] 1 BCLC 506." (Muldoon, supra, per Young JA.) 48Mr Muldoon does not have the requisite interest to bring proceedings under s 1322 of the Corporations Act 2001. He has no interest, beyond members of the general public, in the regular conduct of the corporation. From a practical perspective, there is a more fundamental problem with his argument. The argument, if valid, would also invalidate the lease upon which he relies for the occupancy of the premises. This ground too is rejected.

Conclusion 49As a consequence of the foregoing, each of the grounds upon which Mr Muldoon relies for the issue of orders in the nature of certiorari fails. It is unnecessary for the Court to deal with the issues as to whether proceedings were an abuse of process because of the extant orders of the District Court and Court of Appeal, but my preliminary view is that if the CTTT decision is confirmed (as it was) in the District Court, there must be a challenge to the District Court judgment in order for writs or orders to issue from this Court. 50It is also unnecessary for the Court to deal with the operation of s 65 of the CTTT Act insofar as it purports to deny the capacity of Mr Muldoon to seek orders in the nature of certiorari for other than jurisdictional error: Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 at [100]. 51For the foregoing reasons the Court on 31 May 2011 issued the following orders: (i) The summons be dismissed. (ii) The plaintiff pay the defendants' costs of and incidental to the proceedings as agreed or assessed.

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: 22 July 2011