By summons filed with the Registry of this Court on 5 April 2016, the plaintiff seeks judicial review of orders made on 31 March 2016 by the Appeal Panel of the Civil and Administrative Tribunal of New South Wales ("NCAT").
The matter came before me for hearing in the Duty List on 6 May 2016, but was ultimately resolved, with the parties asking for orders to be made by this Court by consent.
The orders made on that day were:
1. It be declared that orders 2 and 3 of the Civil and Administrative Tribunal of New South Wales by its Appeal Panel made on 31 March 2016 were made without jurisdiction, in that the Appeal Panel was not (for the purposes of s 59 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"), which applied to the Appeal Panel's decision by way of s 81(2) of the CAT Act) satisfied that it had the power to make a decision in terms of the agreed settlement between the parties or in terms that are consistent with the terms of the agreed settlement, and by dismissing the appeal brought to it from the orders of the Tribunal made on 24 September 2015 purportedly pursuant to s 59 of the CAT Act, the Appeal Panel constructively failed to exercise jurisdiction under s 59 and 81 of the CAT Act.
2. The matter be remitted to the Appeal Panel for redetermination according to law.
3. Each party is to bear their own costs.
These are my reasons, in brief, for making those orders.
On 24 September 2015, NCAT heard proceedings that had been instituted in the Tribunal by the first defendant. The first defendant was the plaintiff's landlord, and it sought orders terminating the plaintiff's tenancy of a specific residential premises.
NCAT made orders that day pursuant to s 59 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"), in relation to an apparent agreed settlement of the proceedings.
Section 59 of the CAT Act provides:
"59 Powers when proceedings settled
(1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if:
(a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and
(b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.
(2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement."
The apparent agreed settlement was for the termination of the tenancy and possession of the premises to the landlord, but thereafter a suspension of the order for possession, and reinstatement of the tenancy subject to the plaintiff meeting certain conditions.
The plaintiff was not represented at the hearing of the matter before NCAT.
Reflecting the apparent agreed settlement, NCAT made the following orders:
"1. By consent, the Residential Tenancy Agreement is terminated in accordance with:
- s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement.
- keeping animals on the premises without the landlords consent; by failing to keep the premises reasonably clean; and by being responsible for the presence of an infestation of pests.
2. By consent, by the Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.
3. By consent, the order for possession is suspended until 01-Oct-2015.
4. By consent, if the tenant removes all pets, expect the permitted two cats, removes and disposes of all rubbish and clutter, and eliminates all pests and odours within seven days, the landlord will reinstate the tenancy.
5. By consent, the tenant will allow the landlord access to the premises on 2 October 2015 at 11:00am to confirm that Order 4 has been carried out.
6. By consent, if Order 4 has not been carried out to the reasonable satisfaction of the landlord by 1 October 2015 the landlord will not reinstate the tenancy, and it will seek a warrant for the possession of the premises."
Subsequently, the plaintiff filed an appeal to the NCAT Appeal Panel, contending that the order of NCAT was procedurally unfair, in that the termination of the tenancy was at the discretion of the landlord, and the plaintiff had been unable to understand proceedings and had felt pressured to accepting the agreed settlement.
The grounds of appeal were later expanded to assert that orders 4 and 6 were beyond the jurisdiction of the Tribunal, and the whole of the orders made were unfair because the unrepresented plaintiff had been unable to understand their effect.
On 31 March 2016 the Appeal Panel of NCAT granted leave to the plaintiff to appeal against a decision of NCAT out of time, and dismissed the appeal. Further orders were made confirming the orders of NCAT made on 24 September 2015: Naumovski v Mission Australia Housing [2016] NSWCATAP 71.
In its judgment the Appeal Panel accepted that order 4 "imposed an impossible obligation" on the plaintiff (at [6]), and the terms of the agreement that the orders had endeavoured to translate had created confusion by the inconsistent nature of orders by consent with orders dependent upon the performance of obligations by the plaintiff.
The Appeal Panel agreed with the plaintiff that order 4 probably went beyond the jurisdiction of the Tribunal, and order 6 was no more than something evidencing an agreement between the parties (at [7]).
The Appeal Panel concluded (at [8]):
"Although the making of consent orders beyond jurisdiction constitutes error of law by the Tribunal below, nothing in our view turns upon this error in the circumstances of this case. The orders challenged can be read as reflecting contractual obligations entered into between the parties."
Ultimately, the Appeal Panel concluded that there was no basis to find that the plaintiff, who was "well experienced in the procedures of the Tribunal" (at [10]), had been unable to understand the effect of the orders, and nothing inequitable had occurred as a consequence of those orders.
Before this Court the first defendant did not take issue with the plaintiff's contention that orders 1 and 2 as confirmed by the Appeal Panel were not severable from order 4, order 4 being made beyond the jurisdiction of NCAT.
The first defendant similarly took no issue with the contention of the plaintiff that the Appeal Panel was in error in failing to itself exercise the functions of NCAT pursuant to s 59 of the CAT Act, as it was empowered to do by s 81(2) of the Act, to vary or make orders in substitution of the orders made on 24 September 2015.
The Appeal Panel accepted that order 4 of 24 September 2015 was beyond jurisdiction. As that order was an inseparable part of the whole of the orders made that day, the Appeal Panel should have exercised its power to itself determine what orders were necessary, and make those orders.
In dismissing the appeal, the Appeal Panel upheld orders which it accepted to be invalid, thus falling into error.
The error complained of is made out. Whilst it is clear that the Appeal Panel was endeavouring to find a practical solution to what appears to be an ongoing problem between the plaintiff and the first defendant, the plaintiff has made good her claim for relief.
[2]
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: 01 June 2016