New South Wales Land and Housing Corporation v Quinn

Court of Appeal (NSW)|2016-09-08|Before: Beazley P, Ward JA, Davies J, Gageler J

Background

Mr Quinn, as tenant, entered into a residential tenancy agreement with "the NSW Land and Housing Corporation" as landlord in respect of the Property on 6 March 1998. The residential tenancy agreement appears to be a standard form document incorporating terms of agreement that were apparently attached thereto (but were not reproduced in the appeal books) and a residential premises condition report (also not reproduced).
On or about 1 July 2001, pursuant to cll 3 and 5(1) of Sch 3 to the Housing Act, Housing NSW succeeded to the rights and obligations of the Department of Housing under previous residential leases to which it was a party and became the owner of properties previously owned by the Department. This included the Property leased to Mr Quinn.
According to Housing NSW records, rent rebates (the Subsidies) were provided to Mr Quinn for the period between about 26 October 1998 and 12 November 2012.
By letter dated 15 November 2012, Mr Quinn was notified that, following an investigation by Housing NSW into allegations that he had failed to declare his full household income when claiming a rental rebate, Housing NSW had decided to cancel his rent subsidies for the Property effective from 1 July 1998 (Cancellation Decision). (Housing NSW's letter referred to earlier notification to Mr Quinn that the investigation was taking place and to requests, not complied with by Mr Quinn, that he provide information on his bank accounts, tax returns and tax assessments.)
By letter dated 22 November 2012, Mr Quinn was again notified that his rent subsidy had been cancelled (this time the cancellation was said to take effect from 5 July 1998). Mr Quinn was notified that a total debt of $221,062.10 had been placed on his rental account due to his subsidy being cancelled and that, as at 19 November 2012, the current balance of his account was $221,414.60 in debit. Mr Quinn was advised that Housing NSW would continue to charge market rent ($545 per week) until he provided full details of the people, income and assets for his household and that a notice of termination would be issued within 14 days.

Relevant legislative provisions

The sole issue in these proceedings is as to the jurisdiction of the District Court to determine part or all of the claims brought by Housing NSW against Mr Quinn.
The District Court, as an inferior court of record, has only the jurisdiction conferred on it by statute, either expressly or by necessary implication (Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [121]; Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46).
Relevantly, s 44(1)(a) of the District Court Act provides as follows: 44 Actions (1) Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions: (a) any action of a kind: (i) which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court, and (ii) in which the amount (if any) claimed does not exceed the Court's jurisdictional limit, whether on a balance of account or after an admitted set-off or otherwise, other than an action referred to in paragraph (d) or (e) [neither of which applies in the present case], …
"Action" is defined in s 4(1) of the District Court Act as meaning, except insofar as the context or subject-matter otherwise indicates or requires, "action in the Court"; but does not include any "proceedings" under Div 8 of Pt 3 or under Pt 4 of the Act. The expression "action of a kind" is not defined in the District Court Act. "Proceedings" is defined by reference to where the expression is used in the Act and/or its context as meaning either civil or criminal proceedings.
The relevant date when considering, for the purposes of s 44(1)(a), whether an action is of a kind which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court, is 2 February 1998, that being the date on which s 44(1)(a) came into operation (Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531; [2007] HCA 8 at 549). As at that date, the Supreme Court was divided into the Court of Appeal and nine divisions, including the Common Law Division and the Administrative Law Division (see s 38 of the Supreme Court Act 1970 (NSW)).
The relevant provisions of the Supreme Court Act as at 2 February 1998 were as follows: 52 Arrangements for despatch of business The business of the Court, other than the Court of Appeal, shall, for convenient despatch, be assigned in accordance with this Division. 53 Assignment of business (1) Subject to the rules, there shall be assigned to each Division, other than the Family Law Division, the Administrative Law Division, the Criminal Division and the Commercial Division, all proceedings: (a) which are required by or under any Act from time to time in force to be commenced, heard or determined in that Division or in the corresponding former jurisdiction, or (b) which would have been commenced in the corresponding former jurisdiction if this Act had not been passed. (2) In subsection (1), the expression corresponding former jurisdiction means, in relation to any Division, other than the Family Law Division, specified in the Second Column in the Table in paragraph (b) of subsection (1) of section 8, the former jurisdiction specified opposite that Division in the First Column of that Table. [The Administrative Law Division was not specified in the said Second Column.] … (3B) Subject to the rules: (a) there shall be assigned to the Administrative Law Division all proceedings which are required by or under any Act, or by or in accordance with the rules, from time to time in force to be commenced, heard or determined in that Division, and (b) there shall be assigned to the Administrative Law Division all proceedings in the Court: (i) for commanding or otherwise requiring a public body or a public officer to perform a public duty, (ii) for prohibiting or otherwise restraining a public body or a public officer from performing or purporting to perform any act, (iii) for determining by declaration or otherwise any matter concerning the powers of a public body or a public officer, and (iv) in appeals or applications to the Court in respect of decisions of a public body or a public officer under any enactment specified in the rules for the purposes of this subsection. (3C) In this section: … public body means a body of persons, whether corporate or unincorporate, constituted by or under an Act and required to perform or performing public duties, but does not include a prescribed tribunal [also a defined term]. … (4) Subject to the rules, there shall be assigned to the Common Law Division all proceedings not assigned to another Division by the foregoing provisions of this section.
Part 12 r 6 of the Supreme Court Rules 1970 (NSW), as at 2 February 1998, relevantly provided that: (1) There shall be assigned to the Administrative Law Division proceedings in the Court: … (b) mentioned in Part 2 of Schedule H.
Part 2, cl 1 of Sch H of the Rules included: General 1. (a) Subject to the rules, proceedings in appeals and applications to the Court in respect of decisions of a public body or a public officer. (b) Subject to the rules, proceedings for commanding or otherwise requiring the removal into the Court of any matter before a public body or public officer whether for the purpose of quashing or otherwise. (c) For the purposes of this paragraph, each of the expressions "public body" and "public officer" has the meaning assigned to it by section 53 (3C) of the Act but does not include a Judge or a master, registrar or other officer of the Court.
There was no definition in the Supreme Court Act or rules of the term "proceedings" nor of the expression contained in s 53(3B)(b)(iv) namely, "appeals or applications to the Court".

Primary judgment

The primary judge concluded (at [26]) that the proceedings against Mr Quinn were proceedings "in respect of a decision of a public body" (i.e., of Housing NSW), being proceedings "in respect of" the Cancellation Decision, and hence that, in accordance with Pt 12 r 6(1)(b) and Pt 2 cl 1(a) of Sch H of the Supreme Court Rules as they were on 2 February 1998, if the proceedings had been brought in the Supreme Court they would have been assigned to the Administrative Law Division rather than the Common Law Division. His Honour therefore concluded that the proceedings did not fall within s 44(1)(a)(i) of the District Court Act and hence the District Court had no jurisdiction to determine them.
In reaching that conclusion, his Honour noted (at [14]) that the words "in respect of" had a wide meaning but that their meaning was dependent on the context (citing Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642; [1988] HCA 49 at 653-4 per Deane, Dawson and Toohey JJ; 646-7 per Wilson and Gaudron JJ; and Wonall Pty Ltd v Clarence Property Corporation Ltd (2003) 58 NSWLR 23; [2003] NSWSC 497 at [41]-[43]).
His Honour considered that an application to enforce a decision would lie comfortably within the ambit of an application "in respect of" that decision ([16]) and noted that applications for enforcement were found within the various provisions of Pt 1 of Sch H, which were also assigned to the Administrative Law Division ([16]). At [17], his Honour said that the primary purpose of the District Court proceedings was to enforce the Cancellation Decision (by recovery of the Subsidies or rebate in accordance with s 57(1) of the Housing Act) and that this indicated that the proceedings were "in respect of" Housing NSW's decision.
The primary judge found only limited guidance to be drawn from Forsyth (on which Housing NSW had relied as supporting a distinction between a claim in respect of a debt and a claim in respect of the decision giving rise to the debt), saying that the relevant distinction in the taxation context between proceedings in respect of decisions of a public body or officer and appeals against assessments was not identified in the particular footnote in Forsyth to which Housing NSW had referred (fn 45). In that context his Honour expressed the opinion that the primary issue in the proceedings before him involved the validity of the Housing NSW decision.
The primary judge accepted that aspects of the proceedings may have been within the District Court's jurisdiction if brought separately (such as the claim for recovery of the occupation fee) but said that, as that claim was part of the proceedings that "would be" assigned to the Administrative Law Division of the Supreme Court, in the circumstances of these proceedings, the Court had no jurisdiction to determine that claim ([27]). His Honour considered that to hold otherwise would generate a multiplicity of proceedings.
The primary judge said (at [27]) that the effect of s 44(1) of the District Court Act was to invest the Court with jurisdiction to determine the whole dispute reflected in the proceedings or none of it, because jurisdiction under that section is conferred in actions or proceedings, not in causes of action (referring, among other authority, to Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; [2001] HCA 66 at [22]).
At [28]-[31], his Honour considered whether any other provisions of the District Court Act would invest relevant jurisdiction, noting that ss 134 and 137 conferred upon the District Court the jurisdiction of the Supreme Court in certain equity proceedings, including "any equitable claim or demand for recovery of money or damages"; and said that the claim by Housing NSW for recovery of the Subsidies would be within the jurisdiction if it was an equitable claim. However, his Honour concluded that the statutory right to recover the subsidies as a debt (s 57 of the Housing Act) was not a creature of equity but a creation of statute ([30]) and said that: Nor, if it mattered, does the above reference to a "restitutionary right" [that being a reference to the statement of Leeming JA in New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 at [7] to the effect that "the obligation to repay the cancelled rebate is, or is analogous to, a quasi-contractual, or restitutionary, right to recover money paid"] indicate that the action would, if commenced in the Supreme Court in February 1998, have been assigned to the Equity Division rather than the Administrative Law Division.

Appeal

Housing NSW raises the following grounds of appeal, maintaining that the primary judge should have found that there was jurisdiction to determine the whole of the proceedings before him but that, in any event, there was jurisdiction to determine the unpaid rent and occupation fee claims: 1. The trial judge erred in finding at [26] of the reasons for judgment that the District Court does not have jurisdiction to hear and dispose of the whole of the actions in the statement of claim under section 44(1)(a)(i) of the District Court Act 1973 (NSW). 2. Further, the trial judge erred in finding that the plaintiff's action for the recovery of a statutory debt arising by operation of section 57(5) Housing Act 2001 (NSW) is an "application in respect of a decision of a public body" under Part 2 of Schedule H of the Supreme Court Rules 1970 (NSW), in force on 2 February 1998. 3. Further, and in the alternative, the trial judge erred at [14] to [26] of the reasons for judgment in considering whether "the proceedings are in respect of a decision of a public body" whereas Part 2 of Schedule H of the Supreme Court Rules 1970 (NSW), in force on 2 February 1998, instead refers to "applications to the Court in respect of decisions of a public body" and so the trial judge applied an incorrect principle of law and, further and in the alternative, reached an erroneous conclusion as to the applicability of Part 2 of Schedule H. 4. Further, and in the alternative, the trial judge erred in finding at [27] of the reasons for judgment that if the District Court does not have jurisdiction to determine the plaintiff's claim to recover a statutory debt under section 57 Housing Act 2001 (NSW), then the District Court also lacks jurisdiction under section 44(1)(a) of the District Court Act to hear and dispose of: (a) the plaintiff's claim for recovery of unpaid rent between 22 November 2012 and 15 May 2014; and (b) the plaintiff's claim for recovery of the daily occupation fee between 16 May 2014 and the date in July or August 2014 that the plaintiff regained vacant possession of the rental property. (emphasis in original)

Notice of Contention

Mr Quinn has in turn filed a notice of contention raising the issue that was referred to by the primary judge (at [9]) as one that need not be answered, namely that: 1. The District Court had no jurisdiction under s 44(1) (a) (i) of the District Court Act 1973 (NSW) to hear and determine the action, because an action under s 57 of the Housing Act 2001 (NSW) is a statutory cause of action which was not an action of a kind which, if brought in the Supreme Court on 2 February 1998, would have been assigned to the Common Law Division of that Court on the grounds, in addition to those relied on by P. Taylor SC DCJ in the Judgment [2016] NSWDC 27, that: (a) There was no cause of action available to the appellant for the recovery of the amount of cancelled rebates other than the statutory cause of action under s 57 of the Housing Act 2001 (NSW): NSW Land and Housing Corporation v Diab [2015] NSWCA 133. (b) The Housing Act 2001 (NSW) commenced on 1 July 2001 and was not in operation as at 2 February 1998. (c) Between 1 September 1992 and 1 July 2001 there was no similar or equivalent statutory cause of action to that provided for by s 57 of the Housing Act 2001. An action of that kind had been provided under regulations 22 to 24 of the Housing Act, 1912, Regulations, but those regulations were repealed on 1 September 1992 by s 10(1) of the Subordinate Legislation Act 1989 (NSW). (d) The kind of action brought by the appellant could not have been brought on 2 February 1998 in the Supreme Court, or in any court. (e) This issue was referred to by the trial judge at [9] of the Judgment [2016] NSWDC 27, but the trial judge found that the question "need not be answered". (f) The issue is addressed by the appellant in its Written Submissions filed on 31 May 2016 at [92]-[101].

Appeal Grounds 1-3

These three grounds can conveniently be dealt with together.

Submissions

Housing NSW concedes that, with one possible exception (that relating to the claim by Mr Quinn to be entitled to an equitable set-off contained in the particulars to [22] of his second further amended defence), the only basis on which it can be contended that the District Court has jurisdiction to determine the proceedings is s 44(1)(a) of the District Court Act.
That possible exception relates to what appears at [22] of the second further amended defence, under the heading "Particulars of Estoppel at Common Law and Equitable Estoppel". There it is asserted, by way of alternative to an estoppel claim raised by Mr Quinn, that Mr Quinn had suffered loss or damage by the conduct of Housing NSW, which loss or damage he claimed "by way of equitable set-off" against Housing NSW's claim. Housing NSW accepts that a claim for moneys "based on a purported claim of estoppel" would fall within the District Court's jurisdiction under either s 6 of the Law Reform (Law and Equity) Act 1972 (NSW) or s 134(1)(h) of the District Court Act.
Any such argument can be readily disposed of by reference to the pleadings. No cross-claim for any such loss or damage was filed by Mr Quinn in the District Court proceedings. If it had been intended to raise a substantive claim for recovery of the alleged loss or damage by the reference to such a claim in particulars appended to the allegation that Housing NSW was estopped from seeking the "retrospective payments", this would show a fundamental misapprehension of the proper function of particulars from a pleading perspective. In any event Mr Quinn did not argue that there was any such claim by him, so the issue is moot.
As noted earlier, the basis on which the primary judge concluded that the proceedings before him were proceedings that, under the Supreme Court Rules in force in 1998, would be assigned to the Administrative Law Division, was that the primary purpose of the proceedings was to enforce a decision of a public body and hence the proceedings were "in respect of a decision" of a public body.
Housing NSW maintains that his Honour erred (at [16] and [17]) by conflating an application following or arising out of a decision with an application in respect of that decision. It submits that an application "in respect of" a decision is one that relates to claims for relief in respect of the decision itself (such as how it is to be made, who is to make it, what the decision is to be and whether it is valid) and says that such applications would seek relief in the nature of declarations, injunctions or prerogative writs. In contrast, it is submitted that, where the effect of the decision is to give rise to a statutory debt, then the statutory debt is a chose in action arising out of, or following from, the decision (not the decision itself). Thus, Housing NSW argues that enforcement of that chose in action is a matter that follows from or arises out of the Cancellation Decision; it is not an application "in respect of the" Cancellation Decision.
As it did before the primary judge, Housing NSW refers, in support of the submission that there is a distinction between an action for recovery of a statutory debt and an application in respect of a decision of a public body out of which the statutory debt was created, to the decision of the High Court in Forsyth.
There, proceedings were commenced by the Deputy Commissioner for Taxation in the District Court against a company director for recovery, as a penalty, of an amount equal to tax that had been deducted from the salary and wages of the staff of the company but not remitted to the Deputy Commissioner. There was a dispute as to the jurisdiction of the District Court to determine the proceedings. The plurality held that the District Court had jurisdiction on the basis that claims for recovery of income tax debts and penalties were, as at 2 February 1998, assigned under s 53(4) of the District Court Act to the Common Law Division, not being specifically assigned elsewhere (see [28], [29] and fn 45). At footnote 45, the plurality said: Although Pt 12, r 6(1) and Pt 2 of Sch H of the Rules assigned to the Administrative Law Division proceedings "in respect of decisions of a public body or public officer", defined to include persons such as the Deputy Commissioner, actions for recovery of a taxation debt, or a penalty, were not such proceedings. They may be contrasted with references and appeals against assessments which for some years were dealt with in the Administrative Law Division ...
Housing NSW argues that there are similarities between the respective statutory provisions considered in Forsyth (at 540-542) and s 57 of the Housing Act in that both sets of provisions: have a mechanism giving rise to an amount being payable to the Crown; require written notice of the amount due being provided with a time stipulation within which the debt is to be paid; and provide that the Crown may recover the amount, if unpaid, as a debt due to the Crown, in a court of competent jurisdiction. It is submitted that a taxation debt and/or a taxation penalty is a statutory debt that arises following a decision by a public body, in the same way that a statutory debt under ss 57(4)-(5) of the Housing Act arises following a decision under s 57(1)-(3) of that Act; and hence that in the same way that actions by the Deputy Commissioner for recovery of statutory debts did not fall within the equivalent provision of Sch H, an action for recovery of the statutory debt under ss 57(4)-(5) of the Housing Act should be found not to fall within Pt 2 cl 1(a) of Sch H. Housing NSW maintains that the primary judge misconstrued the significance of the decision in Forsyth.
Housing NSW further argues that even if Mr Quinn's defence (though not itself a cross-claim, summons or motion for relief) were to be found as having given rise to an application in respect of a decision by a public body, that does not determine the issue in Mr Quinn's favour because the relevant question is where the action by Housing NSW would have been assigned.
In this regard, Housing NSW refers to ss 54 and 55 of the Supreme Court Act, as it was in 1998. Section 54 permitted the transfer of the whole or any part of proceedings in a Division to another Division or the retention of proceedings in a Division "whether or not the proceedings are assigned to that Division by this Act or by the rules". Section 55 preserved the validity of proceedings in any Division as if done in the Division to which the proceedings were statutorily assigned by the Act or rules. It argues that ss 54 and 55 of the Supreme Court Act reflect the fact that some proceedings are capable of assignment to multiple Divisions (referring to the discussion in Abbott v Klein [2015] NSWDC 45 at [53]-[72]).

Respondent's submissions

Mr Quinn argues that the term "action" in s 44 of the District Court Act does not mean "cause of action"; rather, it is to be equated with the term "proceeding" (or perhaps "proceedings"). Reference is made to Baxter v Obacelo Pty Ltd, where Gleeson CJ and Callinan J, having referred to the distinction that had been made by Blackburn J in Brinsmead v Harrison (1872) LR 7 CP 547 at 553 between action (i.e., a proceeding by which the jurisdiction of a court was invoked) and cause of action, said at [22] (footnotes omitted): Both in England, and in New South Wales, at the end of the nineteenth century and the beginning of the twentieth century, the word "action", in its proper legal sense, was "a generic term … [that] includes every sort of legal proceeding".
Reference is also made by Mr Quinn to what was said by Mahoney JA in Cook v Head and Arneman [1976] NSWLR 176, his Honour there noting that the term "action" in its ordinary meaning may have a wide scope (so as to include every application to a court for relief or remedy through the exercise of the court's powers or authority or otherwise to invite its interference), though its meaning in any particular case was dependent essentially on its context (and in the District Court Act "action" did not include an appeal under the Act).
Mr Quinn argues that "action" means the whole of the proceedings such that if one cause of action in the Housing NSW proceedings (relevantly, the statutory debt claim) would have been assigned under the Supreme Court Act or rules to the Administrative Law Division as at February 1998, then the District Court has no jurisdiction in respect of any other cause of action in those proceedings even if the District Court would have had jurisdiction to hear that other cause of action if it had been brought in a separate proceeding, and even though that other cause of action could have been severed from the cause of action in respect of which there was no jurisdiction.
Housing NSW argues that an "action" in the context of s 44(1) of the District Court Act is to be construed more narrowly than as a reference to every kind of proceeding. It says that "action" is to be construed as meaning a proceeding initiated by a plaintiff in which a claim is made to a sum of money, ending, if successful, in a judgment for the recovery of such amount as the court may find to be due (referring to Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 93, 94, 96-98, 101; Sullivan v St George Community Housing Ltd [2010] NSWCA 248 at [15]-[40] and Muldoon v Church of England Children's Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46 at [26]-[37], [42], [45]).
Emphasis is placed on what was said in Sullivan v St George Community Housing by Basten JA at [22]: In Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86, a five judge bench of this Court considered whether the Court had jurisdiction to entertain an appeal from the refusal by a District Court judge of an application for an extension of a limitation period. The question did not turn, primarily, on the phrase "in an action", but on whether the decision was made in "a proceeding ancillary to an action". Nevertheless, in the course of undertaking a comprehensive review of the structure and content of the [District Court Act] and similar provisions in earlier legislation, Gleeson CJ (with whom Samuels and Priestley JJA and Hope AJA agreed) concluded that the term "action" was used to refer to the conferral of civil jurisdiction contained in Pt III, stating at 94E: "The concept of an 'action' in the District Court as being a claim for a money sum, which in relation to the ordinary or primary jurisdiction of the Court was, and subject to qualification still is, of pervasive jurisdictional significance, is reflected in the provision to which reference has just been made."
In Muldoon, Campbell JA (at [26]) commented that the definition of "action" in the District Court Act was poorly drafted but said (at [32]) that the headings of Pt 3, Div 2 and Subdiv 1 of Div 2 of the District Court Act assisted in the conclusion that an "action" within the meaning of the District Court Act is the type of litigation in relation to which jurisdiction arises under Pt 3 Div 2 of that Act.
Mr Quinn further argues that, in the expression in s 53(3B)(b)(iv) "[proceedings] in appeals or applications to the Court", the use of the word "applications" means any proceeding other than an appeal, i.e., that every "action" or "proceeding" that is not an appeal is an "application for the purposes of this section". He relies in support of this argument on s 19(2) of the Supreme Court Act, which provided at the relevant time: (2) For the purposes of this Act and the rules, proceedings in the Court under an Act: (a) are an appeal if described in that Act or in any regulation made under that Act as an appeal, and (b) subject to the rules, are not an appeal if not so described.
Mr Quinn argues that a valid cancellation decision under s 57(1) of the Housing Act was an essential ingredient of the cause of action and that the principal issue in the proceedings was whether the relevant decisions were validly made by Housing NSW. Hence he maintains that the proceedings were properly characterised by the primary judge as proceedings "in respect of a decision of a public body".
As to the breadth of the words "in respect of", Mr Quinn refers to what was said in this respect by White J in Qantas Airways Ltd v Chief Commissioner of State Revenue [2015] NSWSC 826 at [88]-[89]; White J there referring to the passage in the Workers' Compensation Board of Queensland case (to which the primary judge also referred at [14]). Mr Quinn submits that there is nothing in the context, as at 2 February 1998, which would limit the ordinary wide meaning of the words "in respect of" in cl 1(a) of Pt 2 of Sch H.
Mr Quinn argues in relation to the present case that what Pt 2 of Sch H required, for assignment to the Administrative Law Division, was a connection between the proceedings and the respective decisions of Housing NSW in its capacity as a public body: namely, the decision to cancel the Subsidies under s 57(1) of the Housing Act; the decision to determine the date on which the cancellation was effective under s 57(2); and the decision to require payment under s 57(4). He argues that there is nothing remote or tangential about the connection in question; rather, that those decisions were fundamental to the claim by Housing NSW to recover the statutory debt under s 57(5). He submits that the allegation at [14] of the statement of claim as to the making of the Cancellation Decision is a sufficient connection between the proceedings and the decision of Housing NSW.
Mr Quinn contends that the centrality of the Cancellation Decision to the District Court proceedings is demonstrated by the fact that no document constituting the Cancellation Decision, nor any document purporting to authorise the Cancellation Decision, has been produced. He says that there was a real issue in the proceedings as to whether any such document ever existed.
Housing NSW cavils with the proposition that it needs to prove the existence of a valid decision as an element of an action under s 57(5) of the Housing Act. It contends that it need only satisfy the District Court, on the balance of probabilities: first, of the existence of a purported decision under s 57(3) of the Housing Act, by or on behalf of Housing NSW, purporting to vary or cancel the rebates under s 57(3) of the Housing Act; and, second, of the provision to Mr Quinn of a notice under s 57(4) of the Housing Act requiring him to pay an amount equal to any rental rebate, or part thereof, received by Mr Quinn on or after the date of variation or cancellation in the s 57(3) decision. Housing NSW submits that, unless orders are made by the Supreme Court, or a higher Court, in the nature of prerogative relief to the effect that the purported s 57(3) decision or s 57(4) notice is a nullity or unenforceable, the District Court should enter judgment against the defendant so as to enforce the debt under s 57(5) of the Housing Act.
Housing NSW further submits that Mr Quinn's reading of "in respect of" as requiring a "connection to a decision by a public body" erroneously expands the concept so as to read into the rules a meaning that includes "or arising out of or in connection with"; words that do not appear in Pt 2 of Sch H.
As to the relevance of the decision in Forsyth, Mr Quinn submits that, in the absence of reasoning in footnote 45 for the proposition that actions for the recovery of a taxation debt, or a penalty, were not proceedings in respect of decisions of a public body, that decision provides no authoritative analogy for the purpose of the present proceedings. It is submitted that the most that can be drawn from that footnote is that such actions might be contrasted with references and appeals against assessments.
Mr Quinn argues that enforcement of a tax debt or penalty is distinguishable from the present case in that the question whether there was liability for the tax debt and penalty in Forsyth did not depend on an administrative decision of a public body (liability either arose or it did not under the Income Tax Assessment Act 1936 (Cth) as a matter of law). In the present case it is submitted that Housing NSW has no entitlement and Mr Quinn has no liability to pay unless Housing NSW made a series of valid decisions under s 57 of the Housing Act, in particular the Cancellation Decision. Moreover, he argues that, unlike Forsyth, liability to pay in the present context is conditioned on the exercise of an administrative discretion ("the stroke of a bureaucrat's pen") and says that all that is required is that an investigation under s 58 of the Housing Act has been conducted (whether or not the investigation revealed anything untoward).

Determination

Turning first to the significance of what was said in the relevant footnote in Forsyth, in my opinion the basis on which Mr Quinn seeks to distinguish the two cases is not persuasive. The taxation context of the matter in Forsyth does not detract from the fact that what is clearly there being recognised by the plurality is the distinction between proceedings for recovery of a debt or penalty and "references and appeals against assessments" (which the plurality noted had for some years been dealt with in the Administrative Law Division).
That said, the precedential (or other) value of footnotes is a moot point (see for example Robert A James, "Are Footnotes in Opinions Given Full Precedential Effect?" 2 Green Bag 2d 167, an article the entirety of which, bar one word, appears in a footnote; Lord Rodger, "The form and language of judicial opinions" (2002) 118 LQR 226 at 234, referring to the admonition by Sir Harry Gibbs in 1993 to avoid the use of footnotes containing observations not thought fit to be included in the judgment; and Gageler J writing extra-judicially, "What is information technology doing to the common law?" (2014) 39 Aust Bar Rev 146, referring to an article likening an English judgment with footnotes to a fish with feathers - see fn 19). Where they fall on the spectrum of "seriously considered dicta"/ "passing dicta" may well be open to debate. It is not necessary here to determine that issue because Mr Quinn's argument ultimately fails without the need to rely on any analogy drawn from what was said in the footnote in Forsyth.
Section 44, which confers jurisdiction on the District Court to hear and dispose of "the following actions", speaks of "any action of a kind" which, if "brought" in the Supreme Court would be assigned to the Common Law Division. The section is therefore clearly speaking in terms of something that might be "brought" in the Supreme Court and is more apt to refer to a "proceeding" than a cause of action in respect of which the proceeding is brought. That is consistent with the views expressed as to the meaning of "action" in the authorities referred to earlier.
That gives rise to a practical difficulty where there are a number of causes of action pursued in the one set of proceedings, not all of which would, if brought in separate proceedings, be "an action of a kind" that would be statutorily assigned to the Common Law Division. Section 44 of the District Court Act does not in terms introduce any concept as to the proportionate weight or significance of one or more separate causes of action that might be contained in an "action". Moreover, it would be novel to suggest that if there were jurisdiction in the District Court to hear a particular action, that carried with it jurisdiction to hear other claims contained in those proceedings in respect of which the Court would otherwise have had no jurisdiction.
Hence there is force to the contention by Mr Quinn that, if an "action" (or proceeding) brought by Housing NSW in the District Court to recover a debt arising pursuant to the provisions of the Housing Act is an action of the kind that would (properly and appropriately) have been assigned to the Administrative Law Division under the statute and rules applicable in 1998, then the District Court has no jurisdiction to hear any of the claims in that proceeding (unless and until those other claims are severed from the action or proceeding), irrespective of the worth or value of the various claims. (For that reason the issue raised by ground 4 cannot be determined in favour of Housing NSW).
That said, the construction Mr Quinn seeks to advance as to the meaning of "applications to the Court" in s 53(3B)(b)(iv), i.e., that it means any proceeding in the Court other than an appeal (Mr Quinn there citing Cook v Head and Arneman at 185D-E and referring to s 19(2) of the Supreme Court Act as it was in 1998 - see T 9.30), is difficult to accept. It would require the section to be read as, in effect: "there shall be assigned to the Administrative Law Division all proceedings in the Court … … (iv) in appeals or [in any proceeding other than an appeal]"
The more natural reading of s 53(3B)(b)(iv) of the Supreme Court Act as at February 1998 in my opinion is that it refers, relevantly, to all proceedings in which there is an appeal to the Court in respect of a decision of a public body or in which there is an application to the Court in respect of a decision of a public body. In other words, the expression contemplates appeals or applications that challenge decisions of public bodies in some way.
The question whether the action is one "in respect of" the decision of a public body must in my opinion be answered in the negative. None of the claims or causes of action in the proceedings commenced by Housing NSW is a claim which would ordinarily be described as being "in respect of" such a decision. Rather, all three of the claims (or causes of action) in the District Court proceedings the subject of the present appeal are monetary claims: for the debt recoverable under s 57(5) of the Housing Act; for unpaid rent; and for unpaid occupation fees. In each of those claims, Housing NSW claims Mr Quinn is indebted or otherwise obliged to pay moneys to it. The source of the liability or obligation varies but the claim is in respect of the liability or obligation, not the decision or decisions that gave rise to it.
Insofar as Mr Quinn argues that the test to be applied is to look at the proceedings as a whole and say whether, as a matter of substance, the proceedings "as a whole" are in respect of a decision of a public body (or public officer), i.e., a test of "relationship" or sufficient "connection" between the proceedings and the relevant decision, that seeks to import a requirement of "substance" or "sufficiency of connection", where neither test is evident on the face of the Act or rules in question.
Mr Quinn argues that the characterisation as to whether or not the proceedings are in respect of a decision of a public body does not depend on what is in the statement of claim alone (even though he maintains that the same result would be reached if one focusses only on the statement of claim because he says that it is apparent, from that, that the Cancellation Decision is central to the "cause of action" - T 10.50). (Mr Quinn also appeared to suggest (at T 13.44) that there might be an argument that the occupation fee claim is also outside the jurisdiction of the District Court as being the decision of a public body (i.e., the Tribunal, that not being a prescribed Tribunal under the rules as at 1998) (see T 13.44).)
However, that does not assist Mr Quinn in circumstances where the "action" by Housing NSW is to recover the respective debts. The statutory debt claim is not an application by Housing NSW to enforce any particular decision by Housing NSW; rather, it is an application to recover an amount for which Mr Quinn is liable as a result of the making of the particular decision(s).
Mr Quinn's focus is on the source of the debt claimed - whether one arising under statute as a consequence of a decision of a public body (the s 57(5) Housing Act claim) or one imposed by the Tribunal (which he described, incorrectly, as a "statutory fee" under the Residential Tenancies Act - T 14.9). That is not warranted by the terms of the Supreme Court Act or rules. Housing NSW's "action", for the purposes of s 44, is an action to recover monetary sums. That is the kind of action that is typically, and was at the relevant time, assigned to the Common Law Division. There is no reason to think that the underlying source of the debt should make any difference to that result.
It may be accepted that in the present case Mr Quinn's defence did raise a question "in respect of a decision of a public body" because he contends that the decision under s 57 of the Housing Act was not validly made. He makes no "application" as such in relation to that contention. If an application had been made by Mr Quinn in respect of that decision, then it may be accepted that the District Court would have no jurisdiction to deal with that application as that would be an action of the kind that would have been assigned to the Administrative Law Division. In that scenario it would have been incumbent on Mr Quinn (the matter having been within District Court jurisdiction when commenced - all three claims being monetary debt claims) to move to have the proceedings transferred to the Supreme Court. If he chose not to do so then any lack of jurisdiction to deal with his challenge to the decision would not deprive the District Court of jurisdiction to deal with Housing NSW's recovery proceedings.
It is not necessary in those circumstances to consider whether, in the absence of an "application" to set aside or challenge the respective Housing Act decisions in any direct way, there would be jurisdiction in the District Court to hear a collateral attack on the validity of decision in question (see the discussion as to collateral review of administrative decisions in Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49; Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266) having regard to s 6 of the Law Reform (Law and Equity) Act, which permits a defendant an opportunity to raise in the District Court defences that can be raised in the Supreme Court.
Accordingly, subject to the issue raised by the notice of contention, the appeal on grounds 1-3 should be allowed and the matter remitted to the District Court for determination on the merits of the proceedings.

Notice of Contention

The notice of contention raises a further ground on which Mr Quinn submits the primary judge's decision should be affirmed.
This relates to the issue which the primary judge (at [9]) raised (but did not decide), namely as to whether an action to recover a statutory debt under s 57 of the Housing Act could be "of a kind" referred to in s 44(1)(a)(i) of the District Court Act when the former legislation did not exist on 2 February 1998.
In essence, what Mr Quinn argues is that, since the Housing Act only commenced on 1 July 2001, no action under s 57(5) of that Act could have been brought before that date. He points out that Housing NSW did not exist before that date and that no rebates were "granted under this Part" before that date; and hence says there was nothing to cancel.
Mr Quinn argues that the position is simply that between 1 September 1992 and 1 July 2001, there was no statutory remedy at all in relation to the recovery of cancelled rebates (simply a legislative vacuum). He accepts that there were regulations in place (former regs 22 to 24 of the Housing Act 1912 (NSW) Regulations, published in the New South Wales Government Gazette, No 64, 17 June 1977) that had provided for the retrospective cancellation of rebates but says that the only kind of action provided for in that context was the recovery of "arrears of rental arising from the cancellation". He points to New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133, where the distinction was drawn between an action for "arrears of rental" and an action to recover a statutory debt under s 57(5) of the Housing Act, and argues that cancelled rebates could not be recovered under reg 24 as they could not be "arrears of rental".
Housing NSW submits that the ordinary meaning that would attach to the description "of a kind" is that the action in question falls within a type or class that is the same or similar to actions that could be brought in the Supreme Court on 2 February 1998. It argues that the word "any" in s 44(1) is suggestive of a jurisdiction not to be narrowly construed.
Housing NSW submits that the claim for recovery of amounts under s 57(4)-(5) of the Housing Act is an action of a kind that could have been brought in the Supreme Court on 2 February 1998 because it is an action for recovery of a statutory debt (and, similarly, that the other causes of action in the statement of claim are actions that could have been brought in the Supreme Court on 2 February 1998 in that: the claim for unpaid rent is a claim for rent payable under a lease; and the claim for occupation fees is a claim for quantification and enforcement of orders of the Tribunal). Housing NSW submits that it is not necessary that the precise form of statutory debt recovery action be in existence as at 1998. I agree.
Mr Quinn argues that "action of a kind" in this context means an action to recover rebates under the housing legislation in question; not an action to recover from other statutory imposts. He argues that this is a peculiar statutory debt which never existed at the time. I see no warrant for reading "any action of a kind" as being more specific than a reference to a genus or class of action (i.e., an action to recover a monetary sum or an action to recover a statutory debt). The s 57(5) claim is an action for recovery of a debt. It is not necessary that this particular statutory debt was not the subject of legislative provision until 2001. The "kind" of action is not dependent on the legislation by reference to which the claimed debt arises.
It is not therefore necessary to consider the submission made by Housing NSW to the effect that the construction contended for by Mr Quinn would lead to the surprising practical consequence that the District Court would not have civil jurisdiction in relation to other actions which are made under statutes enacted after 2 February 1998 or under amendments made to statutes after 2 February 1998 in the absence of express conferral of jurisdiction (such as actions for recovery of amounts the subject of payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW), which commenced operation on 26 March 2000 - see ss 15(2)(a)(i) and 16(2)(a)(i) of that legislation).
Ground 1 of the notice of contention is not made good.

Appeal ground 4

The final ground of appeal relates to the finding by the primary judge (at [27]) that if the District Court does not have jurisdiction to determine the statutory debt claim then it also lacks jurisdiction to determine the claims for unpaid rent and unpaid occupation fees. Housing NSW submits that the primary judge erred in finding that the District Court lacked jurisdiction to determine any part of the proceedings before it. It is submitted that the unpaid rent/occupation fee claims are causes of action over which the District Court has jurisdiction under s 44(1)(a) of the District Court Act even if there is no jurisdiction in respect of the statutory debt claim.
Housing NSW argues that the unpaid rent/occupation fee claims are money claims which are not specifically assigned to any Division of the Supreme Court under s 53 of the Supreme Court Act as at 1998 or the rules in force at that time. It also argues that the claim for rent owing under the lease may be within the jurisdiction of the Common Law Division (under s 53(1)(b)) as a claim which would have been commenced in the corresponding former jurisdiction if the Supreme Court Act had not been enacted. Thus it is submitted that the statement of claim included claims which, if pleaded on their own, would have been assigned to the Common Law Division.
Housing NSW argues that the reasoning adopted by his Honour as to the avoidance of a multiplicity of proceedings does not take into account that there may permissibly be two sets of proceedings between parties in different courts at the same time and that, if the proceedings in the lower court were not transferred to the Supreme Court, then that would simply mean that there might be an issue estoppel arising in one set of proceedings in respect of facts to be applied to the determination of the other proceeding.
It submits that, if the correct position is that the statutory debt claim would be assigned to the Administrative Law Division, then the consequence is that the statement of claim contains both a cause of action that would normally be assigned to the Administrative Law Division and also other causes of action that would normally be assigned to the Common Law Division, with the result that the proceedings would be capable of being heard and determined in either division by operation of ss 54 and 55 of the Supreme Court Act as it was in 1998. Housing NSW submits that if the analysis in Abbott v Klein at [53]-[72] is correct then under the above scenario the District Court has jurisdiction under s 44(1)(a)(i) of the District Court Act to hear and determine the claims.
Mr Quinn points out that it was the decision of Housing NSW to join the three alleged causes of action in the one "action". He argues that the claim for the Subsidies was clearly the primary claim (going back more than 14 years and amounting to $221,062.10 out of a total claim of $259,942.60, without taking into account interest). He submits that as at 2 February 1998 the proceedings would have been assigned to the most appropriate Division and that the minor causes of action for the unpaid rent and occupation fees would be assigned to the same Division as the primary cause of action. Mr Quinn argues that it is too late for Housing NSW in effect to seek to sever the causes of action.
For the reasons adverted to in relation to grounds 1-3, the proposition that because the District Court would have had jurisdiction to determine the claims for unpaid rent and occupation fees (which I accept it would have had) if the claims for those amounts were brought in separate proceedings could not operate to confer jurisdiction on it to hear the statutory debt claim if (contrary to the conclusion I have reached above) that were outside the jurisdiction of the Court. The word "action" in s 44 must, I accept, mean the proceeding in question. In those circumstances if there had been no jurisdiction to deal with the "action" because it comprised in part the statutory debt claim then the forensic decision of Housing NSW not to seek to sever the statutory debt claim/cause of action would be something by which it would arguably later be bound such that it could not complain as to the dismissal of the whole of the proceedings. The complaint as to his Honour's reasoning as to the desirability of avoiding a multiplicity of proceedings would in my view have had force if that had been a basis on which his Honour refused to determine the unpaid rent/occupation fee claims after an application had been made to sever the statutory debt claim. However that is not what occurred here.
In any event, in light of the conclusion reached above, ground 4 does not arise.

Costs

As to the issue of costs, the Court raised concerns during the course of argument as to the unsatisfactory course this litigation has taken. The issue of jurisdiction was first raised in Housing NSW's reply in the context that it contended the District Court had no jurisdiction to hear Mr Quinn's challenge to validity of the Cancellation Decision and other administration matters. Mr Quinn pleaded that the District Court did have jurisdiction. Neither party sought to have the matter removed to the Supreme Court when the issue of jurisdiction was raised. Nor did Housing NSW seek to sever the two causes of action in respect of which there would clearly have been jurisdiction if prosecuted separately.
Any issue as to jurisdiction should have been determined at the outset. Instead, the matter does not appear to have been squarely addressed until the conclusion of the eight day hearing, after the merits of the case had been explored in the proceedings before his Honour (with the wasted costs that this course necessarily entailed once his Honour found that there was no jurisdiction to determine the claim).
Housing NSW informed this Court that there are other cases in which the question of forum will be dependent on the Court's determination on the question of jurisdiction. In those circumstances, the Court raised the question whether it would be appropriate for Housing NSW to pay the costs of the appeal irrespective of its outcome. Housing NSW, however, argued that costs should follow the event, noting that Mr Quinn had been an active party in resisting the appeal.
In my opinion, each party should bear its or his own costs of the appeal. They each share responsibility for the manner in which the proceedings have ended up in this Court without there having been any determination of the merits of the issues canvassed in the eight day contested hearing.

Orders

I propose the following orders: 1. Appeal allowed. 2. Set aside the order made by Taylor SC DCJ on 18 March 2016 and remit the matter to the District Court for determination by Taylor SC DCJ or such other judge of the District Court to whom the matter may be assigned in that Court. 3. Each party to pay its or his own costs.
DAVIES J: I agree with Ward JA.

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: 06 December 2016

Housing Act 1912(NSW)

Solicitors: Legal Services Branch, Housing NSW (Appellant) John Byrnes & Associates (Legal) Pty Ltd (Respondent) File Number(s): 2016/00114752 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2016] NSWDC 27 Date of Decision: 18 March 2016 Before: P Taylor SC DCJ File Number(s): 2014/00232539

At a glance

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Judgment (14 paragraphs)

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Legislation Cited (11)

Cases Cited (24)

Cited By (16)