Navazi v New South Wales Land and Housing Corporation

Court of Appeal (NSW)|2015-08-12|Before: Leeming JA, Adamson J

The Applicant's Submissions

Ms Needham SC, focussed her submissions on what was said to be the jurisdictional error committed by the Tribunal. She acknowledged, however, that the applicant, in order to set aside the Tribunal's order terminating the Lease, must succeed in quashing both the Tribunal's decision and the District Court order dismissing the applicant's appeal.
Ms Needham submitted that the Tribunal had committed a jurisdictional error in that it had incorrectly held that the effect of the retrospective cancellation of the applicant's rental subsidy was to place the applicant in arrears of rental as from June 2003. Instead, the Tribunal, consistently with Diab, should have held that the rental under the Lease was adjusted only from the date of the cancellation decision. Ms Needham submitted that if the Tribunal's decision was set aside, the District Court decision would fall with it.
In the course of argument, it was pointed out that there might be a difficulty in challenging the Tribunal's decision in circumstances where the District Court had dismissed an appeal from the Tribunal. Ms Needham's attention was drawn to the decision of this court in Forge v Australian Securities and Investments Commission (No 2). [31]
In that case, the Court of Appeal made orders on an appeal from a decision of the Equity Division. A subsequent appeal to the High Court was dismissed. The Court of Appeal dismissed as incompetent a motion to vary certain orders because: [32] "the operative decision is now that of the High Court which has replaced the decision of this Court for all purposes. The orders of the High Court are now the source of res judicata estoppels".
In supplementary written submissions, Ms Needham accepted that it was not open to this Court, on an application for judicial review, to set aside the decision of the Tribunal, but leave intact the orders made by the District Court. She agreed that this followed from the proposition that orders made by an appellate court replace those made by the original decision-maker. Ms Needham nonetheless submitted that the corollary was that: "any error underlying the [Tribunal's] decision must have infected that of the District Court's dismissal of the appeal to it by reason of the replacement. Accordingly, if any error of the kind contended for by the [applicant] is identified in the decision of the [Tribunal], then it necessarily follows that this Court should set aside each of the decisions of the District Court and [the Tribunal] and remit the matter to [NCAT] for proper consideration according to law." (Emphasis added.)

Must the District Court Decision be Challenged?

The Court in Forge v ASIC (No 2) referred to two decisions of the High Court. In one of those, Wishart v Fraser, [33] the applicant was convicted of an offence by a Court of Petty Sessions and the Court of Quarter Sessions affirmed the conviction. The applicant challenged his conviction in the Court of Petty Sessions, by seeking statutory prohibition against the informant and the magistrate. The High Court held that the order nisi had to be discharged on the ground that the appellate judgment: "holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary". [34]
In the second case referred to in Forge v ASIC (No 2), The Queen v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation, [35] a union applied for a writ of prohibition against a second union and a Deputy President of the Conciliation and Arbitration Commission. The writ was sought to prevent the Deputy President and the second union from proceeding further with an application brought in the Commission by the second union. The orders made by the Deputy President had been confirmed on appeal by the Full Bench of the Commission.
The applicant did not join the members of the Full Bench of the Commission as respondents to the proceedings. Mason J (with whom Murphy and Aickin JJ agreed on this point), explained why the joinder was necessary: [36] "… 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 [37] , 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: '... 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."
If in the present case, the effect of the District Court's decision was that its orders replaced the Tribunal's orders "for all purposes", it would seem that relief in the nature of certiorari would not be available to challenge the decision of the Tribunal. The reason for this is that an order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. [38] If the Tribunal's decision had been replaced by the District Court's orders, presumably the Tribunal's exercise of power has been spent.
In her written submissions in reply to the applicant's supplementary submissions, Ms McWilliam, who appeared for the Corporation, properly referred the Court to several decisions suggesting a qualification to the principle stated in Wishart v Fraser. [39] Those decisions indicate that a distinction may need to be drawn between cases where there is an appeal by way of rehearing on both fact and law, and cases where the right of appeal is more limited. In the former, the order of the appellate court supersedes that of the court or tribunal at first instance. But if the right of appeal is limited, for example to questions of law, the orders at first instance may not be replaced or entirely replaced by orders made on the appeal.
I am prepared to accept, without deciding, that this distinction is correct. Nonetheless, it does not determine whether a writ in the nature of certiorari is available to quash the decision of a court or tribunal at first instance, while leaving untouched the decision made on appeal. Kirk v Industrial Relations Court of New South Wales [40] suggests that if the first instance decision is to be quashed, the appellate decision must also be quashed. In that case the High Court made orders quashing both the decision of the Industrial Court and the decision of the Full Bench dismissing the appeal from the Industrial Court. [41] The plurality in Kirk characterised the appeal to the Full Bench as a "limited appeal" because of the restrictions the Full Bench had placed on the appellants. [42]
There is, however, authority against the proposition that a challenge cannot be made to a decision of the Tribunal, where an appeal to the District Court has been dismissed, unless the decision of the District Court is quashed. Although Ms Needham did not refer to the authority, Ms McWilliam did so in her supplementary written submissions.
In Brennan a tenant sought judicial review in the Supreme Court of a decision by the Tribunal terminating her lease. The application for judicial review was founded on a denial of procedural fairness by the Tribunal. In addition to seeking judicial review of the Tribunal's decision in the Supreme Court, the tenant appealed on a number of grounds to the District Court against the Tribunal's decision. Initially, the summons for leave to appeal in the District Court included the complaint about denial of procedural fairness, but that complaint was removed from the amended summons and expressly eschewed in the District Court. [43]
Although both the summons for leave to appeal and the summons seeking judicial review were filed at about the same time, the District Court appeal was heard first. The District Court dismissed the appeal apparently on the ground that the tenant challenged only factual findings of the Tribunal and thus did not raise any question of law. [44] The application for relief in the nature of certiorari subsequently succeeded in the Common Law Division. An appeal by the Corporation to the Court of Appeal from the decision of the Common Law Division was dismissed.
The Corporation did not dispute before the Court of Appeal that the Common Law Division had power in the judicial review proceedings to determine the claim that the tenant had been denied procedural fairness, notwithstanding that the District Court had dismissed her appeal. Although the point had been conceded, all three members of the Court of Appeal expressed the view that the orders made by the District Court presented no impediment to the application for judicial review.
Basten JA accepted that: [45] "Where a dissatisfied party seeks to appeal against a judgment on the merits, it cannot usually maintain that appeal and, at the same time, pursue proceedings by way of judicial review. That is because success on judicial review would invalidate the judgment against which the appeal had been brought and thus remove the subject matter of the appeal: see Wishart v Fraser … In these circumstances, it would be usual to put the party to his or her election. The situation is more complicated where the appeal is limited to a question of law, especially where grounds of appeal may reflect grounds available on judicial review. There is an apparent inconsistency between the judgment of the District Court that the decision of the Tribunal should not be set aside for any error of law and the conclusion of the primary judge in this Court that the decision was invalid for breach of procedural fairness."
Basten JA also considered [46] that there might have been an inconsistency if the "no evidence" ground had been upheld in the judicial review proceedings as that ground would have fallen within s 67 of the CTTT Act. [47] But the no evidence ground had not been upheld in the Common Law Division and the procedural fairness argument had not been run in the District Court. The judgment of the District Court rejecting the tenant's appeal "was not inconsistent with the conclusion that the Tribunal's decision was invalid on grounds not raised in the course of the appeal to that court". [48]
Handley AJA reached the same conclusion for this reason: [49] "An appeal under s 67 [of the CTTT Act] and judicial review proceedings permitted by s 65 provide an aggrieved party with remedies which may overlap or be cumulative. The principle in Wishart v Fraser … does not preclude the pursuit of cumulative remedies where there is no inconsistency." (Citations omitted.)
In this passage, his Honour referred to his own judgment in Geftlic v Merhi, where he said that: [50] "Sections 38 and 39 [of the Local Court Act 2007 (NSW)] permit challenges to a decision of the Small Claims Division in the District Court and the Supreme Court on some grounds, and in the Supreme Court on an additional ground … [T]he dismissal of an appeal to the District Court would not bar an application for certiorari in the Supreme Court for error of law on the face of the record. The remedies are cumulative and an aggrieved litigant has no obligation to elect. However, there could be an Anshun estoppel in an appropriate case." (Emphasis added.)
There are two distinctions between Brennan and the present case. The first is that in Brennan the District Court appeal and the proceedings for judicial review were run concurrently, not consecutively. Thus at the time the District Court appeal in Brennan was heard, the tenant's complaint about denial of procedural fairness was before the Supreme Court. Indeed the complaint had been raised earlier in the District Court proceedings, but not pursued in those proceedings. As Basten JA pointed out, [51] the only reason the applications were not heard together was that appeals from the Tribunal under the 2008 amendments to the CTTT Act go to the District Court, which lacks the supervisory jurisdiction of the Supreme Court. Previously such appeals went to the Supreme Court.
The second distinction is that the District Court appeal in Brennan, was available only on questions of law but apparently did not raise any such question and was dismissed for that reason. The appeal to the District Court in the present case raised questions of law, but the applicant's arguments were rejected.
Whether the second of these distinctions is important depends on how a court is to determine whether the dismissal of a District Court appeal is inconsistent with the orders sought by the unsuccessful appellant in a later judicial review proceedings. On one view, if the ground of the judicial review application raises a question of law that could have been raised on the appeal there may be an inconsistency.
The reasoning in Brennan suggests, however that if the appeal does not include the ground subsequently relied on in the judicial review proceedings, there is no relevant inconsistency. This view receives support from the language of s 67(3), of the CTTT Act which states that, after deciding the question with respect to a matter of law which is the subject of the appeal, the District Court may affirm the decision of the Tribunal on the question. If a question of law is not raised in the grounds of appeal, the orders of the District Court may be interpreted as simply not addressing that ground and as having nothing to say on whether the decision of the initial decision-maker was correct insofar as it dealt with that question of law. If that is correct, there may be no direct inconsistency between the orders made by the District Court in this case and the judicial review proceedings, insofar as the applicant seeks relief on the ground that the Tribunal erred in calculating the arrears of rent.
I am prepared to proceed on the basis that, despite Ms Needham's apparent concession to the contrary, the applicant is not necessarily required to set aside the decision of the District Court before seeking orders quashing the Tribunal's decision on the ground of jurisdictional error. There is, however, another obstacle in the applicant's path arising from the fact that the proceedings seeking judicial review of the Tribunal's decision were instituted after the District Court dismissed the applicant's appeal.

Anshun Estoppel

In Brennan, Handley AJA qualified his observation that the principle of Wishart v Fraser does not preclude the pursuit of cumulative remedies by referring to "Anshun estoppel". In Anshun [52] the High Court approved the principle stated in Henderson v Henderson [53] as follows: "where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case." (Emphasis added.)
The ratio of Anshun applies where the contentions not brought forward relate to claims as well as defences. [54] The test is whether it was unreasonable for the claimant in the second proceedings not to have raised the contention in the first proceedings. If it was unreasonable, the claimant will be estopped from relying on the contention in the second proceedings. The test of unreasonableness requires the court to exercise a broad discretion by reference to the circumstances of the case. [55]
For the reasons I have given, the ground upon which the applicant relies to obtain an order in the nature of certiorari quashing the decision of the Tribunal could and should have been raised in the appeal to the District Court. The ground raises "a question [decided by the Tribunal] with respect to a matter of law" within the meaning of s 67(1) of the CTTT Act and thus could have been included in the applicant's grounds of appeal. The ground was closely related to the other grounds of appeal which challenged the correctness of the Tribunal's decision to terminate the Lease. The fact that the issue was apparently overlooked by the applicant's legal representatives is not a sufficient basis for concluding that it was not unreasonable for the applicant to have raised the question of law in the District Court appeal
Insofar as the applicant contends that the Corporation should have drawn the attention of the District Court to the decision in Diab (AP), I do not accept the contention. The decision in Diab (AP) was irrelevant to the grounds of appeal identified in the applicant's 3FAS. The Corporation was not obliged to draw to the attention of the District Court or to the applicant's legal representatives a decision that might have supported a ground of appeal not identified by the applicant. (It is not necessary to consider whether there would have been any obligation had Mr Navazi not been represented by counsel.)
The argument of law that is the foundation for relief in the judicial review proceedings was clearly available and supported by authority at the time the 3FAS was filed in the District Court and at the time the appeal was heard. In my view, it was clearly unreasonable for the ground not to have been advanced on the applicant's behalf in the District Court appeal.
This is no mere technicality. Whatever the position where a District Court appeal and judicial review proceedings are run concurrently, a party who has not brought his or her whole case forward on the appeal should not be permitted, in the absence of a satisfactory explanation for the omission, to rerun the appeal in the form of an application for judicial review of the original decision. In Burrell v The Queen, [56] the High Court observed that the principle of finality of litigation: [57] "serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time". The circumstances of Burrell were different to those of the present case, [58] but the observation of the High Court is pertinent to the applicant's attempt to rely on an argument that was available to him in the appellate process. [59] The policy reasons underlying the Anshun principle apply to that attempt.
The consequence of applying the Anshun principle to the present case is that the applicant should not be permitted in these proceedings to challenge the Tribunal's decision on the ground that it incorrectly understood the effect of the Corporation's cancellation decision on the tenant's obligation to pay rent. The application for an extension of time to file the application for judicial review, insofar as it relates to the challenge to the Tribunal's decision, should therefore be dismissed.

Error of Law?

It is not clear whether the applicant wishes to persist in his contention that the District Court committed an error of law on the face of the record if he is not permitted to challenge the decision of the Tribunal. If, however, the challenge is maintained, I would reject it.
Ms Needham submitted that if the Tribunal committed a jurisdictional error, it followed that the District Court must have committed the same error. No doubt there are cases where an appellate court commits the same error as the court or tribunal at first instance. This appears to have been the situation in Kirk, where the High Court quashed both the orders made by the Industrial Court and those made by the Full Bench on appeal. But the fact that an appellate court dismisses an appeal from a court or tribunal which committed a jurisdictional error does not necessarily mean that the appellate court has fallen into the same error. Indeed an error of law committed by a tribunal may constitute a jurisdictional error (because the tribunal has no jurisdiction to decide questions of law incorrectly), but the same error committed by a court on appeal may merely constitute an error of law on the face of the record (because the Court has jurisdiction to decide questions of law).
The general point is illustrated by The Queen v Marks; Ex parte BLF. The applicant union in that case complained that a Deputy President of the Conciliation and Arbitration Commission had denied it natural justice. The complaint was rejected on the ground that the union had received a fair hearing on the appeal to the Full Bench and thus any denial of natural justice before the Deputy President (or jurisdictional error) was irrelevant. [60] Other illustrations can readily be given of an appellate decision affirming the original decision without being tainted by any error affecting the original decision. It is not uncommon, for example, for an appellate tribunal to hold that the original decision-maker committed an error of law, but to uphold the decision on other grounds.
It follows that insofar as the applicant is challenging the orders of the District Court, the question that has to be determined, subject to any discretionary considerations, is whether the District Court committed an error of law on the face of the record. Since the applicant's submissions concentrated on the Tribunal's decision, they said relatively little about the District Court's decision, other than to submit (erroneously in my view) that any error committed by the Tribunal must be imputed to the District Court. In substance, Ms Needham's remaining contention is that the District Court's reasons show that it, like the Tribunal, acted on the mistaken view that the retrospective cancellation of the applicant's rental subsidy placed the applicant in default on the payment of rent from June 2003.
The applicant was entitled to appeal to the District Court as a party dissatisfied with the Tribunal's decision on a question with respect to a matter of law. It was incumbent on him to identify any such decision of the Tribunal with which he was dissatisfied. As French CJ observed in Kostas v HIA Insurance Services Pty Ltd: [61] "[a]n appellant invoking s 67 [of the CTTT Act] should identify the decisions of the Tribunal of questions with respect to matters of law which are the subject of the appeal. A decision of a question with respect to matters of law is not merely a condition of the jurisdiction conferred by s 67, it is the subject matter of the jurisdiction". (Citations omitted.)
The applicant identified the alleged errors of the Tribunal about which he complained in the 3FAS filed in the District Court. [62] None of the grounds of appeal identified the Tribunal's finding that the arrears of rental at the date of the hearing totalled $141,367.78, rather than a lesser figure (such as the amount of $30,378.43 the applicant appears to accept as correct). Nor did the grounds of appeal challenge the finding by the Tribunal that the applicant was in breach of the Lease and that the breach, in the circumstances of the case, was sufficiently serious to justify termination of the Lease. [63] No argument was put to the District Court that the Tribunal erred in concluding that the cancellation of the rental rebate created arrears of rent dating from 2003.
Had the applicant appealed to the District Court on the ground that the Tribunal erred in law in dating the arrears of rent from 2003 and if the District Court rejected the argument, there would be little difficulty in concluding that the District Court had committed an error of law on the face of the record. This would be so even though, on one view of the Tribunal's reasons, it would have reached the same conclusion had it found that the arrears of rent dated only from the date of the cancellation decision and not from 2003. But the applicant put no such contention to the District Court.
As a general principle, it is difficult to conclude that a court or tribunal has erred in law if the question of law was neither raised before the decision-maker nor addressed in the reasons. The question posed by s 69(3) of the Supreme Court Act is whether the ultimate determination of the court or tribunal has been made on the basis of an error of law that appears on the face of the record of the proceedings. If the party invoking the jurisdiction of the appellate court has not identified the error of law made by the court or tribunal at first instance and has not asked the appellate court to correct the error, and if the appellate court for that reason has not addressed the question of law, its ultimate determination is not likely to have been made on the basis of the error of law. In the present case, the applicant's 3FAS stating the grounds of appeal in the District Court did not identify the error of law upon which it now seeks to rely and in consequence the District Court did not address the question of law. Indeed the error of law on which the applicant relies was not, in French CJ's phrase, "the subject matter of the jurisdiction" of the District Court.
The general principle I have identified is undoubtedly subject to important qualifications. In Kirk the High Court held that the Industrial Relations Court erred in law by permitting a defendant to give evidence in criminal proceedings, in contravention of s 17(2) of the Evidence Act 1995 (NSW). The Court held that this constituted both an error of law on the face of the record and a jurisdictional error. [64] The fact that the parties had agreed that the defendant could give evidence did not prevent relief in the nature of certiorari being granted.
The decision in Kirk establishes that certain kinds of decisions by a court or tribunal that can constitute errors of law on the face of the record even though they have not been the subject of complaint before the decision-maker. However, the error identified in Kirk was a jurisdictional error. In the view of the plurality, it involved a "substantial departure from the rules of evidence" that the Industrial Relations Court had no power to waive. [65] Heydon J in his concurring judgment said that the Industrial Relations Court lacked jurisdiction to decide whether to fine the defendants after a trial which was not conducted in accordance with the rules of evidence. [66]
It seems to follow from Kirk that a decision by an inferior court or tribunal that involves contravention of the statutory constraints imposed on the court or tribunal constitutes an error on the face of the record even if the point was not adverted to by the parties. Whether the decision in Kirk applies to other jurisdictional errors or perhaps to serious non-jurisdictional errors is not yet clear.
In the present case, the error attributed to the District Court did not involve any contravention of statutory constraints governing the appeal or any other jurisdictional error. The District Court had jurisdiction to hear and determine the appeal. In doing so, the District Court did what it was required to do by s 67 of the CTTT Act. The alleged error of law was immaterial to the issues which were raised for determination and which the District Court addressed in its judgment. In these circumstances, in my opinion, the District Court did not commit an error of law on the face of the record.
In the preceding analysis I have assumed that if the District Court erred in law, the error was apparent on the face of the record. The only reference in the District Court judgment to the Tribunal's holding that the cancellation of the rental subsidy had retrospective effect on the rent payable under the Lease appears to be the statement that "[by] October 2011, [the applicant's] rent was in arrears by $141,367.78". It is not necessary to consider whether, if the District Court erred in law, this statement is sufficient for the error to appear on the face of the record.

Discretion

Relief under s 69(1) of the Supreme Court Act in the nature of certiorari is a discretionary remedy. [67] Since I have concluded that the District Court did not commit an error of law, there is no need to consider whether, if the District Court had made errors of law on the face of the record, relief should be refused to the applicant on discretionary grounds. Nonetheless, I should indicate that, if error had been established, I would have refused relief.
I would have done so for much the same reasons as I have given for refusing an extension of time to allow the applicant to challenge the decision of the Tribunal in these proceedings. The applicant could and should have raised the argument on which he now relies in the District Court appeal. The right of appeal to the District Court provided the mechanism to correct the error of the Tribunal in its assessment of the amount of rent owed by the applicant. As I have pointed out, no explanation has been proffered as to why the applicant did not take advantage of the right of appeal available to him in this respect. I would have also taken into account the applicant's failure to make up any portion of the arrears of rent or to adduce evidence that he is willing or able to pay the rent fixed by the Lease.
It was unreasonable for the applicant not to put forward the whole of the case open to him in the District Court appeal. He should not be granted relief in the present proceedings to rectify the omission.

Orders

I would make the following orders:
Refuse the applicant an extension of time to file the Amended Summons insofar as it seeks relief in relation to the decision of the Consumer, Trader and Tenancy Tribunal given on 6 October 2011.
Otherwise dismiss the Amended Summons.
The applicant pay the costs of the respondent of the proceedings, including the costs of the application to extend time.
Ms McWilliam informed the Court that if the Amended Summons was dismissed, the Corporation was prepared to agree to what she described as "a stay of 28 days". It is sufficient to note that the Corporation does not intend to seek possession of the premises for a period of 28 days after delivery of this judgment. Thereafter, the Corporation is free to enforce the order for possession of the premises made by the Tribunal.
ADAMSON J: I agree with the orders proposed by Sackville AJA and with his Honour's reasons. I also agree with what Leeming JA has said about the overwhelming discretionary factors against a grant of relief, even if there were (contrary to my view) any basis for such relief.

Endnotes

See Housing Act, Sch 3 cll 3, 5(1).
Navazi v New South Wales Land and Housing Corporation (District Court, Gibb DCJ, 27 March 2015).
[2015] NSWCA 133.
CTTT Act, s 67(3).
Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282.
Supreme Court Act, s 69(3).
Supreme Court Act, s 69(4).
Boele v Rinbac Pty Ltd [2014] NSWCA 451; 88 NSWLR 381 at [74]-[76] (Sackville AJA).
Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10(1), (2).
See Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, Pt 3.
The numbering is that in the Amended Summons.
[1981] HCA 45; 147 CLR 589.
Diab at [33] (Macfarlan JA, Beazley P agreeing).
Navazi v New South Wales Land and Housing Corporation [2013] NSWSC 138.
New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431.
At [22] above.
See at [13] above.
See at [27] above.
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [212] (Kirby J); see generally M Allars, "The Distinction between Jurisdictional and Non-jurisdictional Errors: Its Significance and Rationale" in D Mortimer (ed), Administrative Justice and its Availability, (2015, Federation Press) at 74.
[2011] NSWCA 298; 83 NSWLR 23.
Brennan at [89], referring to s 64(2)(b)(ii) of the Residential Tenancies Act 1987 (NSW). Section 64(2), unlike s 87(4) of the current Residential Tenancies Act, required the Tribunal to make a termination order if satisfied of the specified matters. But the difference is not material for present purposes.
Brennan at [84], citing Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [54] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360 (Dixon J); Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179 per curiam.
See at [24] above.
See at [25]-[26] above.
[2014] NSWCATAP 27 at [53].
[2014] NSWCATAP 27 at [54].
The decision referred to was NSW Land and Housing Corporation v Bergman [2008] NSWCTTT 1201.
Diab at [57].
The application for leave to appeal to the High Court, which was dismissed on 11 September 2014, did not relieve the applicant from the obligation to pay rent under the Lease.
[2007] NSWCA 42; 69 NSWLR 575.
Forge v ASIC (No 2) at [3]. See also Boland v Dillon [2015] NSWCA 183 at [8]-[9] (McColl JA), at [19]-[20] (Gleeson JA), [77]-[79] (Bergin CJ in Eq).
[1941] HCA 8: 64 CLR 470.
Wishart v Fraser at 478 (Starke J). See also at 476-477 (Rich J), at 483 (Dixon J), at 487 (McTiernan J).
[1981] HCA 33; 147 CLR 471.
The Queen v Marks: Ex parte BLF at 476.
[1941] HCA 8; 64 CLR 470.
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [25] per curiam.
Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 at [55] (Basten JA, Ward and Emmett JJA agreeing); Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [24] (Basten JA, McColl JA and Handley AJA agreeing).
[2010] HCA 1; 239 CLR 531.
Kirk at [108] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Kirk at [46]. A similar approach was taken in Thiess Pty Ltd and Hochtief AG v Industrial Court of New South Wales [2010] NSWCA 252; 78 NSWLR 94 at [71]-[77] (Spigelman CJ, Beazley P agreeing), although no jurisdictional error was found and thus no orders were made.
Brennan at [104] (Basten JA).
Brennan at [108].
Brennan at [101].
Brennan at [102].
Basten JA referred to Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390, which held that a finding made without evidence is an error of law.
Brennan at [107].
Brennan at [131].
Geftlic v Merhi [2011] NSWCA 241 at [38].
Brennan at [28].
Anshun at 598, 602-603 (Gibbs CJ, Mason and Aickin JJ).
(1843) 3 Hare 100 at 115; 67 ER 313 at 319 (Wigram V-C).
Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 at 673 (Samuels JA, Priestley and Meagher JJA agreeing).
Boles v Esanda Finance Corporation at 673.
[2008] HCA 34; 238 CLR 218.
Burrell v The Queen at [16] per curiam.
The issue in Burrell v The Queen was whether the Court of Criminal Appeal had power to reopen an appeal once judgment had been entered, in order to correct factual errors. The High Court held that the Court of Criminal Appeal lacked power to reopen the appeal.
See also Achurch v The Queen [2014] HCA 10; 253 CLR 141 at [15]-[16] (French CJ, Crennan, Kiefel and Bell JJ).
The Queen v Marks; Ex parte BLF at 485 (Mason J, Aickin and Wilson JJ agreeing).
[2010] HCA 32; 241 CLR 390 at [33].
See at [46] above.
Residential Tenancies Act, s 87(4)(a), (b).
Kirk at [55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Kirk at [51], [53].
Kirk at [114].
Re McBain; Ex parte Catholic Bishops Conference [2002] HCA 16, 209 CLR 372 at [95] (McHugh J); Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [33] (Gummow and Callinan JJ). 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: 02 October 2015

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

Residential Tenancies Act 1987(NSW)

See Civil and Administrative Tribunal Act 2013(NSW)

man [2008] NSWCTTT 1201 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 Re McBain; Ex parte Catholic Bishops Conference [2002] HCA 16, 209 CLR 372 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 The Queen v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation [1981] HCA 33; 147 CLR 471 Thiess Pty Ltd and Hochtief AG v Industrial Court of New South Wales [2010] NSWCA 252; 78 NSWLR 94 Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 Wishart v Fraser [1941] HCA 8; 64 CLR 470 Texts Cited: M Allars, "The Distinction between Jurisdictional and Non-jurisdictional Errors: Its Significance and Rationale" in D Mortimer (ed), Administrative Justice and its Availability, (2015, Federation Press) Category: Principal judgment Parties: Ali Navazi (also known as Nowronzali Navazihakani) (Applicant) New South Wales Land and Housing Corporation (First Respondent) District Court of New South Wales (Second Respondent) New South Wales Civil and Administrative Tribunal (Third Respondent) Representation: Counsel: Ms J Needham SC / GE Babe (Applicant) Ms V McWilliam / N Kelly (First Respondent) Submitting appearances (Second and Third Respondent)

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was a public housing tenant pursuant to a Residential Tenancy Agreement (Lease) with the NSW Land and Housing Corporation (Corporation). In 2011, the Consumer, Trader and Tenancy Tribunal (CTTT), on the application of the Corporation, made an order terminating the Lease and requiring the applicant to vacate the premises. In March 2015, the District Court dismissed an appeal brought by the tenant on a question of law pursuant to section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (CTTT Act). The Court of Appeal handed down its decision in NSW Land and Housing Corporation v Diab (Diab) after the District Court dismissed the tenant's appeal. The effect of Diab was that a tenant whose rent subsidy was cancelled retrospectively did not thereby accumulate arrears of rent. The tenant sought judicial review of the decisions of the Tribunal and District Court. The tenant's principal complaint was that, in view of the decision in Diab, the Tribunal made a jurisdictional error in assessing arrears of rent and the District Court made a similar error of law on the face of the record. The tenant did not put the principle or issue of law addressed in Diab to the District Court. The principal issues were whether: (1) the District Court decision had to be set aside before a challenge could be made to the Tribunal decision; (2) the applicant should be precluded from raising the issue of law addressed in Diab, which was not put to the District Court; (3) the District Court committed an error of law on the face of the record; (4) the Tribunal committed a jurisdictional error; and (5) in the exercise of its discretion the Court should allow an extension of time for the applicant to challenge the Tribunals decision or grant the applicant relief against the District Court decision if, contrary to the Courts view, there was an error of law on the face of the record. Held (Sackville AJA, Leeming JA and Adamson J agreeing), dismissing the appeal: In relation to (1) The applicant was not necessarily required to set aside the decision of the District Court before seeking orders quashing the Tribunal's decision. There was no direct inconsistency between the orders made by the District Court and the judicial review proceedings, insofar as the applicant sought relief on the ground that the Tribunal erred in calculating arrears of rent. Forge v Australian Securities and Investments Commission (No 2) (2007) 69 NSWLR 575; The Queen v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation [1981] HCA 33; 147 CLR 471; Wishart v Fraser [1941] HCA 8; 64 CLR 470; Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531; Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298; 83 NSWLR 23; Geftlic v Merhi [2011] NSWCA 241 In relation to (2) The applicant could and should have raised in the appeal to the District Court, the principle of law addressed in Diab. The applicant's legal representatives, with the exercise of reasonable diligence, could have ascertained that the appeal panel decision in Diab (which pre-dated the decision of the District Court) had determined a question of law that could have been raised on the applicant's behalf in the District Court. The applicant therefore should not be permitted to challenge the Tribunal's decision on the ground that it incorrectly understood the effect of the Corporation's cancellation decision on the tenant's obligation to pay rent. Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589; Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666; Burrell v The Queen [2008] HCA 34; 238 CLR 218; Henderson v Henderson (1843) 3 Hare 100; 67 ER 313; Achurch v The Queen [2014] HCA 10; 253 CLR 141 In relation to (3) The District Court had jurisdiction to hear and determine the appeal and in doing so, did what it was required to do by s 67 of the CTTT Act. The alleged error of law was immaterial to the issues which were raised for determination and which the District Court addressed in its judgment. In these circumstances, the District Court did not commit an error of law on the face of the record. Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 In relation to (4) Had it been necessary to decide, the Court would have held that the Tribunal's satisfaction that the breach of the Lease was sufficient to justify termination rested on an erroneous understanding of the legal effect of the Corporation's cancellation of the applicant's rental subsidy. It therefore committed a jurisdictional error. Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298; 83 NSWLR 23; Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 In relation to (5) The applicant had pointed to nothing to suggest that he was willing or able to pay the rent owed. He had not established an arguable basis that the ultimate outcome could be any different. Accordingly, there was no proper basis to grant the requisite extension of time to challenge the Tribunal decision or to grant relief against the District Court's decision. (Leeming JA, Adamson J agreeing)

Judgment

LEEMING JA: I agree with the orders proposed by Sackville AJA, and, subject to one matter, with the entirety of his comprehensive reasons.
The factual and procedural background, which is complex, is reproduced in Sackville AJA's reasons. In summary, Mr Navazi has, for many years, received a rental rebate on his community housing in the order of $350 per week. He has not been entitled to a rental rebate since 2003. Mr Navazi has known that his rebate was cancelled since no later than 2010. All avenues of appeal as to the entitlement of a rental rebate were exhausted in September 2014.
Even so, until this day, Mr Navazi has continued in occupation of the premises, while paying only a fraction of the rent which it is now incontrovertibly established is due each week. Mr Navazi has said that he is unable to pay the rent that is due, and has served no evidence of his willingness, or ability, to pay the rent. Every week he remains in occupation, Mr Navazi falls hundreds of dollars further in debt.
Mr Navazi comes to this Court seeking, nearly four years out of time, to challenge the decision of the former Consumer, Trader and Tenancy Tribunal given in 2011, and the decision of the District Court dismissing his appeal from that decision in March 2015. He does so on the basis that the termination referred, incorrectly, to an amount of unpaid rent of $110,989.35. Although Mr Navazi owed that amount to his landlord, following the retrospective cancellation of his rental rebate with effect from 2003, this Court's decision in New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 in May 2015 confirmed earlier authority to the effect that the retrospective cancellation of the rebate did not convert the rebate into arrears of rent. Mr Navazi conceded that, at the time the termination notice was issued, he owed rent of around $11,000 which had increased to $30,378.43 when the matter came before the Tribunal. It is now considerably more.
Mr Navazi accepts that, in order to challenge the decision of the Tribunal, he needs a substantial extension of time. He points to the defect in the termination notice served in February 2011, which materially misstated the unpaid rent. In circumstances where even if the entirety of Mr Navazi's challenge be allowed, he points to nothing to suggest that he is willing or able to pay the rent, there is in my view no proper basis to grant the requisite extension of time. Mr Navazi at all relevant times has been assisted by solicitors and barristers (it may be presumed, acting pro bono) yet has not established even an arguable basis that the ultimate outcome could be any different. On that basis alone I would refuse to grant an extension of time to challenge the decision of the Tribunal.
Mr Navazi's application for judicial review of the decision of the District Court raises different considerations, some of which are not free from difficulty. I agree with Sackville AJA that there was no jurisdictional error or error of law on the face of the record of the District Court. However, even if there were, I would still decline to grant relief, for the reasons already mentioned. There is no utility in quashing the District Court's dismissal of Mr Navazi's appeal, so as to let Mr Navazi run a further appeal on a question of law not previously raised by him, whose ultimate success would lead at best to a return to the Tribunal where he will remain unable to pay the outstanding rent and be even further in debt than he is today. Once again, I regard the unusual discretionary considerations to be sufficient. Indeed, to my mind, they are overpowering.
SACKVILLE AJA: In 1995, the applicant, as the tenant, entered into a Residential Tenancy Agreement (Lease) with the Department of Housing of New South Wales, as the landlord. The Lease was of premises at Brookvale, New South Wales. The premises constitute "public housing" for the purposes of the Housing Act 2001 (NSW) (Housing Act).
The defendant (Corporation) has responsibilities under the Housing Act for public housing. It is common ground that the Corporation succeeded to the rights and obligations of the Department of Housing under the Lease. [1]
On 6 October 2011, the Consumer, Trader and Tenancy Tribunal (Tribunal) made an order, on the application of the Corporation, terminating the Lease and requiring the applicant to give up possession of the premises. The applicant appealed to the District Court against the Tribunal's decision with respect to a matter of law, pursuant to s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (CTTT Act). For reasons connected with the applicant's challenge to the Corporation's cancellation of his rental rebate, referred to below, the District Court appeal was not heard until 6 March 2015. On 27 March 2015, the District Court dismissed the appeal. [2]
The applicant now seeks judicial review, pursuant to s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act), of two decisions:

the decision of the Tribunal; and
the decision of the District Court. He says that the decision of the District Court is affected by an error of law on the face of the record and the decision of the Tribunal is affected by a jurisdictional error.

The applicant's complaints arise out of a decision by the Corporation in 2010 to cancel retrospectively the rental rebate he previously enjoyed. He says that the decisions of both the Tribunal and the District Court were affected by an error of law that only became apparent when this Court handed down judgment in New South Wales Land and Housing Corporation v Diab (Diab) [3] on 21 May 2015, nearly two months after the District Court dismissed the applicant's appeal. In Diab, the Court held that the retrospective cancellation of a tenant's rental rebate by the Corporation created a debt due by the tenant to the Corporation, but did not retrospectively cause the tenant to fall into arrears of rent. The tenant's obligation to pay increased rent under the Lease commenced only from the date of the cancellation decision.
The applicant says that both the Tribunal and the District Court assumed, incorrectly in view of Diab, that the Corporation's retrospective cancellation of the applicant's rental rebate caused him to be in arrears with the rent due under the Lease. It was this incorrect assumption, so the applicant argues, that underpinned both the decision of the Tribunal to terminate the Lease and the District Court's dismissal of the applicant's appeal.

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