New South Wales Land and Housing Corporation v Quinn

Enfield v Development Assessment Commission (2000) 199 CLR 135 Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582 Harrington v Lowe (1996) 190 CLR 311 Henderson v Henderson (1843) 3 Hare 100 Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512 In re Athlumney; Ex parte Wilson [1898] 2 QB 547 Jackson v Goldsmith (1950) 81 CLR 446 Mathieson v Burton (1971) 124 CLR 1 Maurice Blackburn Cashman v Brown (2011) 242 CLR 647; [2011] HCA 22; Maxwell v Murphy (1957) 96 CLR 261 Minister for Natural Resources v Aboriginal Land Council (1987) 9 NSWLR 154 Mulgrave Central Mill Co Ltd v Hagglunds Drives Pty Ltd [2001] QSC 040 New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431 New South Wales Land and Housing Corporation v Quinn [2016] NSWCA 338 O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 Ousley v The Queen (1997) 192 CLR 69 Pollnow v Armstrong [2000] NSWCA 245 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Reference under section 11 of Ombudsman Act 1976 for an Advisory Opinion; ex parte Director-General of Social Services (1979) 2 ALD 86 RS Howard & Sons Ltd v Brunton (1916) 21 CLR 366 Secretary of State for Social Services v Tunnicliffe [1991] 2 All ER 712 Thomas v Metropolitan Housing Corporation Ltd [1936] 1 All ER 210 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 Twadell v NSW Land and Housing Corporation [2014] NSWSC 7 Wandsworth London Borough Council v Winder [1985] AC 461 Zistis v Zistis [2018] NSWSC 722 Texts Cited: Commonwealth of Australia v Cockatoo Dockyard Pty Limited [2007] HCATrans 150 Judicial Review of Administrative Action and Government Liability, Mark Aronson, Matthew Groves, Greg Weeks, 6th edition (2016) Second Reading Speech for Housing Bill 2001 Category: Principal judgment Parties: New South Wales Land and Housing Corporation (plaintiff) Robert Quinn (defendant) Representation: Counsel: Mr A Di Francesco (plaintiff) Mr R Dalgleish (defendant)

Solicitors: Legal Services Branch, Housing NSW (plaintiff) John Byrnes & Associates (Legal) Pty Ltd (defendant) File Number(s): 2014/232539 Publication restriction: None

Judgment Table of Contents Heading Paragraph A. Introduction 1 B. Jurisdiction 2 C. The statutory basis of the claim 3 D. The issues 9 E. The nature of the action 15 F. The issue estoppel 18 (a) The principle 18 (b) The Tribunal determination 22 (c) The estoppels that arise 24 (d) Exceptions to issue estoppel 31 G. The collateral attack 39 H. The authority of the Cancellation Notice and November 2012 decisions 53 (a) The extent of the backdating power and rebates "granted under this Part" 54 (b) What rebates are "granted under this Part"? 69 (i) Is there a statutory basis in a former Housing Act for the grants of subsidy to Mr Quinn? 80 (ii) Is a grant of a rebate or subsidy the "execution" of an "approval"? 85 (iii) What subsidy was "in force immediately" before the commencement of clause 5(2)? 88 (iv) "The corresponding provision" 90 (c) Effect of purported cancellation of earlier subsidies 101 (d) Decisions made by the Corporation 117 (i) Documentary evidence 121 (ii) Ms Pickering 132 (iii) Mr Cureton 144 (iv) Mr Fester 148 (v) Analysis 151 (vi) The delegated authority of the General Manager or other officers to cancel rebates 162 (vii) Agency, the Carltona Principle and the authority of the General Manager and other officers to cancel rebates 181 (viii) Which Director-General? 196 (ix) The Recovery Decision 206 I. The prior investigation into weekly income 210 J. Requirement to repay rebated amount 225 K. The correct amount of the rebates 226 L. The limitation period 228 M. Section 41 of the Residential Tenancies Act 2010 233 (a) Prospective rebate cancellation 234 (i) A different date of effect 234 (ii) Severance 238 (iii) A later decision 241 (b) Residential Tenancies Act 2010 244 N. Date of vacant possession 251 O. Orders 260

A. Introduction

1. Robert Quinn was a residential tenant of the New South Wales Land and Housing Corporation from 6 March 1998 until 15 May 2014. Until November 2012, the Corporation granted rebates of rent to Mr Quinn. On 15 November 2012 Housing NSW gave Mr Quinn notice that the rebates of rent were cancelled with effect from 1 July 1998 ("the Cancellation Notice"), and on 22 November 2012, gave notice to Mr Quinn of a debt of $221,062.10, resulting from the rebate cancellation, which Mr Quinn was required to repay ("the Repayment Notice"). The Corporation seeks to recover from Mr Quinn the amount of the cancelled rebates, and the amount of the alleged underpayment of rent from November 2012 until the tenancy was terminated by a decision of the New South Wales Civil and Administrative Tribunal on 15 May 2014. The Corporation also seeks the occupation fee the Tribunal ordered Mr Quinn to pay from 16 May 2014 until the premises were vacated two or three months later.

B. Jurisdiction

1. On 6 December 2016 the Court of Appeal found that this Court had jurisdiction to hear and determine the proceedings, and remitted "the matter…to the District Court for determination". [1]

C. The statutory basis of the claim

1. The Corporation's claim to recover the rebates arises out of s 57 of the Housing Act 2001 ("the 2001 Act").
2. Section 57 of the 2001 Act (as at November 2012) provides: "57 Cancellation or variation of rental rebate (1) The Corporation may, after conducting an investigation under section 58, vary or cancel any rental rebate granted under this Part. (2) The Corporation is to determine the date (being a date occurring before, on or after the making of the determination) on which the variation or cancellation has effect or is taken to have effect. (3) The Corporation is to give notice in writing to a tenant of any decision to vary or cancel any rental rebate being received by the tenant and is to include in the notice the date on which the variation or cancellation takes effect or is taken to have effect. (4) If the Corporation reduces or cancels a tenant's rental rebate under this Part with effect from a preceding date, the Corporation may, by notice in writing to the tenant, require the tenant to pay to the Corporation: (a) an amount equal to any rental rebate or part of a rental rebate received by the tenant on or after the date that the variation or cancellation took effect to which, because of the variation or cancellation, the tenant was not entitled, and (b) interest (at the rate prescribed under section 101 of the Civil Procedure Act 2005 in respect of unpaid judgments) on any outstanding amount under paragraph (a) from a date specified in the notice, being a date not earlier than the date on which the notice is issued to the tenant. (5) Any amount (together with interest) referred to in subsection (4) that is unpaid may be recovered by the Corporation as a debt in any court of competent jurisdiction."
3. Section 58 provides: "58 Investigation of application (1) The Corporation may make an investigation to determine the weekly income of: (a) a person who is an applicant for, or a recipient of, a rental rebate under this Part, and (b) any other resident of the house in which that person resides. (2) The Corporation may require a person who is an applicant for, or a recipient of, a rental rebate under this Part to produce such evidence as the Corporation thinks fit of the person's weekly income and of the weekly income of any other resident of the house in which that person resides."
4. Accordingly, the Corporation is entitled under s 57(5) to recover an unpaid amount in a s 57(4) notice. A notice under s 57(4) is a notice by the Corporation requiring the tenant to pay to the Corporation an amount of rebate that has been cancelled retrospectively under s 57(1) and (2), that is, a cancellation with effect from a preceding date so that under s 57(4) "the tenant was not entitled" to that rebate.

D. The issues

1. The proceedings were not at all concerned with whether the financial position or weekly income of Mr Quinn justified him receiving a rebate. Neither party made submissions on this issue, nor did the evidence go to it. That is because the statutory action for recovery of a cancelled rebate does not involve proof of a lack of entitlement to a rebate; Mr Quinn's wealth or income was not an element of the cause of action. So there was no debate about Mr Quinn's financial circumstances. But there nevertheless remained a number of issues that arose out of the statutory action.
2. Mr Quinn says that s 57 does not entitle the Corporation to recover the rebates, for a number of reasons: 1. The Corporation did not cancel the rebates under s 57(1) or determine the date of effect of the cancellation under s 57(2) (i.e. did not make a Cancellation Decision) because the November 2012 decisions (the decisions as reflected in the Cancellation Notice and the Repayment Notice) were made without the authority of the Corporation. 2. The Corporation did not conduct an investigation to determine Mr Quinn's weekly income under s 58(1), as is required by s 57(1), before any Cancellation Decision. 3. The Corporation did not require Mr Quinn to pay to the Corporation the correct amount of the rebates granted under Pt 7 of the Act and purportedly cancelled under s 57(1), but demanded an excessive amount. 4. The proper amount of the rebates is not proved and therefore is unable to be required to be paid under s 57(4)(a). 5. Any debt for rebates prior to six years before the proceedings were commenced is statute-barred under s 14 of the Limitation Act 1969. 6. The rent payable by Mr Quinn (after any rebates) could not be increased except in accordance with s 41 of the Residential Tenancies Act 2010 ("RTA"), and that did not occur until September 2013, effective 25 November 2013.
3. The Corporation alleges that Mr Quinn cannot dispute the existence or validity of the November 2012 decisions, but is precluded by an issue estoppel arising from the decision of the Tribunal on 15 May 2014 determining the existence and validity of a Cancellation Decision.
4. The Corporation also alleges that irrespective of an issue estoppel the existence and validity of the November 2012 decisions cannot be challenged in this Court for that would be a "collateral attack" which, in this Court at least, is confined to jurisdictional challenges to decisions. The Corporation submits that purported decisions can only be challenged by an application to the Supreme Court for orders in the nature of prerogative relief.

E. The nature of the action

1. In New South Wales Land and Housing Corporation v Diab, [2] Leeming JA, with whom Beazley P relevantly agreed, [3] stated at [61]: "The exercise of the power to cancel a rebate with effect from an earlier time gives rise to an obligation to repay a sum of money…the obligation to repay the cancelled rebate is, or is analogous to, a quasi-contractual, or restitutionary, right to recover money paid to the use of Mr Diab."
2. The meaning of this passage is informed by the relevant issue in Diab: whether a retrospectively cancelled rebate creates a non-payment of rent. The quoted passage was part of the reasons why no non-payment of rent arises from a retrospective cancellation but was not concerned with the elements of the statutory action. Accordingly, the passage should not be read as authority for a proposition not in issue in Diab, that the mere cancellation of rebates with effect from a preceding date, under s 57(1) and (2), gives rise to an obligation to repay in the absence of a s 57(4) decision to recover the retrospectively cancelled rebates. It seems unlikely that the right not to be arbitrarily deprived of one's own property would be displaced by the terms of s 57(1) to (3), so as to enliven a common law action to recover rebates, at least because the statutory words make no unambiguous provision to that effect. Rather, the section provides for a statutory right of recovery, not from a retrospective cancellation alone, but from a retrospective cancellation together with a notice to pay under s 57(4) (and non-payment under s 57(5)).
3. It follows that the effective date of a Cancellation Decision is not the date from which all rebates are repayable, nor even the date from which all Pt 7 rebates are repayable. Rather, the repayment of rebates is governed by a date nominated under s 57(4). The date governing recovery under s 57(4) cannot extend beyond the date nominated under s 57(2) because under s 57(4) recovery extends only to cancelled rebates received by the tenant "on or after" the Cancellation Decision "took effect". Recovery under s 57(4) can only extend to rebates to which the tenant, because of the cancellation, was not entitled, namely cancelled Pt 7 rebates. What "part" of those past, cancelled, Pt 7 rebates is recoverable depends on the terms of the notice under s 57(4).

(a) The principle

1. The principle of finality of judgments manifests itself in litigation in a number of ways. One of those ways is in the doctrine of issue estoppel. An issue estoppel precludes a party re-agitating an issue in proceedings against another party where that issue has been finally determined between them. To arise, issue estoppel requires identity of parties, identity of subject matter, and a final judicial decision. [4]
2. The Corporation asserts that an issue estoppel arose from a decision of the Tribunal. It is not disputed that a decision of the Tribunal is sufficiently "final" so that it can give rise to an issue estoppel, [5] even if it can sometimes be difficult to isolate the necessary issues determined. Nor does any issue arise about an identity of parties, for both the Corporation and Mr Quinn were parties before the Tribunal. The present concern is what relevant estoppel arose from the Tribunal's decision.
3. Not all findings of the Tribunal give rise to an issue estoppel, only those determinations of "ultimate facts" [6] which form the "ingredients in the cause of action". [7] The decision concludes debate not only as to "the point actually decided", but "[m]atters cardinal" to that decision. [8] These ingredients, the elements of the cause of action, cannot be raised again for that would be "to assert that the former decision was erroneous". [9] Matters "subsidiary or collateral are not covered by the estoppel". [10]
4. The majority in Cachia (McHugh JA dissenting) decided that an issue estoppel might include matters not actually traversed in the earlier judgment, [11] although Dixon J in Blair (at 532) specified that the issue estoppel has to be a matter "which was actually decided" as well as being a matter "necessary to decide".

(b) The Tribunal determination

1. On 15 May 2014 the Tribunal Member G Meadows heard an application in respect of the residential tenancy agreement between Mr Quinn and the Corporation. There was no appearance for Mr Quinn. The reasons of Tribunal Member Meadows included the following: "The respondent tenant has received a rental rebate from about 1998 or possibly 2000. In about 2012 the applicant investigated the tenant's circumstances and concluded that he was not entitled to a rental rebate. The rebate was cancelled in November 2012. Since that date the tenant has been required to pay market rent for the premises but has continued to pay on the rebated rent, as it was at the date of cancellation. This Tribunal has no power to look behind the rebate cancellation but accepts it as a matter of fact… By letter dated 22 November 2012, the applicant gave notice to the tenant that his rebate was cancelled… A notice of termination was issued to the tenant on 19 June 2013… … I find the notice of termination does comply in its exact meaning and is a valid notice. The evidence provided by the applicant amply demonstrates the tenant has failed to pay his rent on time since the date of cancellation of the rental rebate… … I am satisfied that I should terminate this tenancy, in which post-cancellation arrears have already reached in excess of $30,000.00 and continue to rise… … I am aware that a recent decision of the Tribunal to the effect that such a debt is not to be characterised as rental arrears, and that that decision has been appealed to the Tribunal's Appeal Panel. The decision is imminent. In those circumstances it is not appropriate to consider that aspect of the application which should be adjourned until the appeal decision is known at which time the applicant may consider its position."
2. The Tribunal made orders, including: "The Residential Tenancy Agreement is terminated in accordance with: • s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. • failure to pay rent in accordance with agreement."

(c) The estoppels that arise

1. The orders of the Tribunal indicate that the "right established" [12] is the right to have the residential tenancy agreement terminated. One essential fact, an ingredient of that right specified in the orders, is that rent was not paid in accordance with the agreement.
2. The Corporation submits that there are other "necessary and fundamental finding[s] of fact": the termination "[n]otice was valid", the rebate "had been cancelled" and the post-cancellation arrears of rent exceeded $30,000. [13]
3. Each of these matters was decided. The Tribunal expressly determined that "the notice of termination…is a valid notice", that the arrears exceeded $30,000, and the Tribunal accepted the rebate cancellation "as a matter of fact". The Tribunal's decision that it had "no power to look behind the rebate cancellation" may raise a question about the extent of the Tribunal's jurisdiction and its consideration of the validity of the purported Cancellation Decision.
4. Mr Quinn submitted that as there was no inquiry by the Tribunal into the validity of the November 2012 decisions, there was no decision of the Tribunal creating an estoppel. However, that reasoning seems to illustrate why the decision of the Tribunal may be wrong, rather than that no decision was made. Once the Tribunal accepted the correctness of the November 2012 decisions cancelling the rebate, a matter essential to the Tribunal's decision to find unpaid rent and terminate the tenancy, the Tribunal has, in my view, made a decision.
5. The other requirement is that each of these matters was "necessary to decide". [14] It was not a requirement, an essential "ingredient", [15] that the rental arrears be in excess of $30,000 in order for the Tribunal to determine the tenancy. The Tribunal had no jurisdiction to make an order for payment of unpaid rent for a sum in excess of $15,000 and the Corporation withdrew any claim for unpaid rent. A determination of the extent of the arrears was thus "subsidiary or collateral" [16] even if a breach of the rental obligation was a necessary finding.
6. A valid termination notice is necessary in order for the Tribunal to issue a termination order. [17] Accordingly, the validity of the termination notice was an ultimate fact cardinal to the Tribunal's decision. But the validity of this notice is not part of the Corporation's claim in these proceedings: the Corporation has regained possession of the rental premises, a matter not challenged, so the validity of the termination notice is of no present significance.

(d) Exceptions to issue estoppel

1. Two possible exceptions arise in relation to the issue estoppel. First, whether it is necessary that the Tribunal have jurisdiction to determine the validity of the November 2012 decisions in order for such an issue estoppel to arise, and secondly, whether "special circumstances" preclude an issue estoppel.
2. As to the first matter, where a subordinate tribunal must necessarily decide matters solely in order to exercise its jurisdiction, its decision does not conclusively determine those matters between the parties and no issue estoppel arises. This is because the tribunal has no general jurisdiction to determine those appendant incidental matters, but can only determine them in connection with the particular invested jurisdiction. [20] Unless the tribunal has jurisdiction to "decide the matter conclusively and for all purposes between the parties", no issue estoppel arises. [21]
3. Thus, a magistrate's decision about the existence of a criminal offence of digging on Crown land does not determine between the parties for all purposes whether the land was, or was not, Crown land, because that was beyond the magistrate general's jurisdiction. [22] "[N]o greater ambit of finality should be attributed to" decisions of subordinate bodies than the legislation provides. [23]
4. The Corporation accepted that the Tribunal had no power either to engage in a judicial review of the November 2012 decisions or to undertake a "collateral review" of their validity. The decision in Director of Housing v Sudi, [24] confirms this limitation. Having no jurisdiction to undertake a collateral review of the November 2012 decisions precludes the Tribunal's decision giving rise to an issue estoppel as to their validity. Such a decision in the special jurisdiction of the Tribunal "creates no estoppel". [25]
5. Faced with this, the Corporation submitted that the issue estoppel was to the effect that the November 2012 decisions were decisions, if not necessarily valid. The circumstance that someone decided to cancel the rebates is not in dispute. But that gives rise to no relevant issue estoppel to preclude an agitation of the validity of the November 2012 decisions.
6. The second exception concerns "special circumstances". The House of Lords in Arnold v National Westminster Bank plc [26] determined that where a subsequent decision of a higher court found an earlier decision (not the subject of an appeal) to have been incorrectly decided, the earlier decision should not create an issue estoppel. Arnold referred to the "special circumstances" [27] in Henderson v Henderson, [28] and indicated that there may be special circumstances "where estoppel does not operate". The Arnold decision was referred to in Pollnow v Armstrong [29] and in Mulgrave Central Mill Co Ltd v Hagglunds Drives Pty Ltd [30] without criticism. In Commonwealth of Australia v Cockatoo Dockyard Pty Limited, [31] the High Court, in a special leave application, expressly refrained from expressing a view on the correctness of the "special circumstances" exception.

G. The collateral attack

1. Mr Quinn has not applied for judicial review of the November 2012 decisions. Such an application is beyond the jurisdiction of this Court. [33] Rather, the validity of the November 2012 decisions arises in the proceedings from the denial by Mr Quinn of the prerequisites in s 57 for recovery of the debt claimed by the Corporation. The Corporation seeks to prove the statutory elements for the debt in s 57, and a valid Cancellation Decision is said to be one of those elements. Thus, the challenge to the November 2012 decisions is collateral to the primary claim. The use of the term "collateral" in this context is not altogether the same as the use of that term in respect of decisions that give rise to no issue estoppel.
2. The Corporation submitted that Mr Quinn was unable to challenge the validity of the Cancellation Decision in these proceedings because a "collateral attack on the validity of administrative decisions is confined to a consideration of the validity of the decision on its face, that is, patent jurisdictional errors only". [34] Patent jurisdictional errors were submitted not to be present.
3. The Court of Appeal in Quinn CA at [73] refrained, it seems, from considering whether a collateral review of the Cancellation Decision was available as any lack of that jurisdiction would not preclude the Corporation from debt recovery proceedings. [35] Yet the Court recognised that Mr Quinn could raise "defences that can be raised in the Supreme Court" because of s 6 of the Law Reform (Law and Equity) Act 1972. [36] Thus, a defence challenging the validity of the Corporation's decisions by way of collateral attack was permitted if it was available in the Supreme Court.
4. So if a defensive, collateral challenge to the November 2012 decisions is available in the Supreme Court (without an application for judicial review), it must also be available in this Court. As the Supreme Court's jurisdiction is unlimited, the relevant question becomes whether a collateral challenge of this nature, where prerogative relief is not sought, is available in any court.
5. The ambit of a so-called "collateral attack" on validity, [37] although limited, [38] is not altogether clear. It has been described as embracing "validity of the decision on its face", [39] "'obvious' defects", [40] "facial invalidity", [41] "patent invalidity", [42] "ultra vires", [43] "jurisdictional error" [44] and "lack of power". [45] Collateral challenge is limited to where the validity of the decision is "merely an incident in determining other issues". [46] The "relevant distinction" between collateral review and conventional judicial review is "between the 'validity' of the order…and the legal propriety of the making of it". [47]

H. The authority of the Cancellation Notice and November 2012 decisions

1. This issue in the proceedings raises a number of questions which need separate attention. Those questions include: 1. What is the earliest date to which a Cancellation Decision can validly be backdated? 2. What rebates are "granted under this Part"? 3. The effect of the purported cancellation of earlier subsidies. 4. Did the Cancellation Notice and the Recovery Notice reflect decisions made by the Corporation?

(a) The extent of the backdating power and rebates "granted under this Part"

1. Section 57(2) provides that, as part of the Cancellation Decision, the Corporation "is to determine the date (being…before, on or after…the determination) on which the…cancellation has effect or is taken to have effect".
2. Section 57 was enacted as part of the 2001 Act, with effect from 1 July 2001. Mr Quinn relied on the presumption against retrospectivity to submit that, as a result, 1 July 2001 is the earliest date the cancellation can be "taken to have effect".
3. The presumption against retrospectivity has two components. The first is in respect of a provision that might have legal operation from a past date. [58] "[I]t is a settled rule of construction of Statutes that a law is not to be construed as retrospective in its operation unless the Legislature has clearly expressed that intention". [59]
4. The provisions of Pt 7 of the 2001 Act, including s 57, do not purport to come into operation any earlier than the commencement of the Act on 1 July 2001.
5. However, s 57(2), by the use of the word "before", plainly grants to the Corporation the power to make a retrospective decision, operating from a date prior to the decision. That does not of itself make the subsection retrospective, so long as the date selected by the Corporation is not prior to 1 July 2001. The law prior to the enactment has not been affected by the 2001 Act, and so there is no retrospectivity in the Act itself. This may be one application of the "further rule" stated in RS Howard & Sons Ltd v Brunton that an Act "is not to be construed as retrospective to any greater extent than the clearly expressed intention of the Legislature indicates". [60]
6. A second operation of the presumption arises where an enactment might alter rights and liabilities which have already come into existence. As stated by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267: "a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events".
7. On the other hand, "Interference with existing rights does not make a statute retrospective. Many if not most statutes affect existing rights". [61]

(b) What rebates are "granted under this Part"?

1. Although the Corporation relied upon the terms of s 57(2) to justify recovery of pre-2001 rebates, its principal argument was founded on the transitional provisions in the Act.
2. It might be thought unlikely that s 57(2) was given retrospective operation in the transitional provisions. Transitional provisions may be principally enacted to ease the transition from the law as it was to the law as it becomes, rather than enact a substantive change to the earlier law. This policy is reflected in the provisions governing transitional regulations. Clause (1) of Part 1 of Schedule 3 of the 2001 Act indicates that regulations "may contain provisions of a savings or transitional nature". Clause 1(3) provides: "1 Regulations … (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication." Thus regulations are to be construed as not retrospective.
3. Nevertheless, the proper meaning of the specific transitional provision in context is paramount.
4. The principal provisions relied upon by the Corporation are cl 5(1) and (2) of Pt 2 of Sch 3 of 2001 Act. Clause 5 relevantly provides: "5 Contracts, documents and agreements under former Housing Acts (1) Any contract executed under any provision of a former Housing Act is taken to have been executed under the corresponding provision of this Act. (2) Any approval, warrant or delegation executed under any provision of a former Housing Act and in force immediately before the commencement of this clause is taken to have been given or made under the corresponding provision of this Act."
5. Some historical matters need to be specified to explain the context in which these provisions operate.
6. Mr Quinn entered a residential tenancy agreement with the Corporation dated 6 March 1998, commencing 9 March 1998. That agreement continued in operation until the end of the lease on 15 May 2014, when the Tribunal terminated the lease. Clause 31 of the residential tenancy agreement provided: "31. RENTAL REBATE The tenant acknowledges that the landlord may formulate a policy for the granting of rebates or waiver of rents. The parties agree that in accordance with such policy the Corporation/Department as landlord may grant a rebate or waive rent in its absolute discretion."

(i) Is there a statutory basis in a former Housing Act for the grants of subsidy to Mr Quinn?

1. The statutory basis for the subsidies granted to Mr Quinn is not apparent. The evidence of the initial subsidy is a computer printout making no reference to any statutory provision. It gives "subsidy details" indicating Mr Quinn's income, percentage rate of income payable as rent, and the subsidised rent, and makes reference to codes which are were explained.
2. The Corporation made two alternative submissions as to the basis of the subsidy. First, that the subsidy was granted under the contract. Reference was made to cl 31. But cl 31 merely foreshadows a possible subsidy, it does not empower the Corporation to give it. [65] In any event, cl 5(2), by its terms, can only operate in respect of the subsidy if it is granted under a former Housing Act provision, not under a contractual provision. A finding that the subsidy was granted under cl 31 of the residential tenancy agreement would thus not assist the Corporation.
3. The alternative submission is that the subsidy was granted under the general powers of the Corporation dealing with land in ss 9, 10 and 14 of the 1976 Act.
4. The provisions of the 1912 Act and the 1976 Act, as noted above, allowed the Corporation to lease land vested in the Corporation "on such terms or conditions as it thinks fit". [66] Although these provisions are not specific to rental rebates, there is no reason to read down their width. The conduct of the Corporation, including the grant of subsidies, would be expected ultimately to be rooted in some statutory power. The provisions allowed the lease to Mr Quinn to be granted on terms, including rebated rent or rental subsidies, as the Corporation thought fit. Clause 31 of the residential tenancy agreement imports this power into the contract.
5. Accordingly, I accept that the subsidies formerly granted to Mr Quinn prior to 1 July 2001 pursuant to cl 31 of the residential tenancy agreement were granted, at least indirectly, under the provisions of a former Housing Act, namely s 14 of the 1976 Act.

(ii) Is a grant of a rebate or subsidy the "execution" of an "approval"?

1. The Corporation submitted that the term "execution" in cl 5(2) also applied to "warrants", and that as the execution of, say, a warrant for possession would involve the carrying out of the warrant, I should read "execution" as at least including "carrying out". How such a construction would assist the Corporation was not apparent. Nor do I find the analogy especially persuasive, and would incline to view that the "execution" of a warrant (and an "approval" and "delegation") may refer to its formal creation.
2. However, it might be supposed that a subsidy granted under a former Housing Act, and current immediately prior to the enactment of the 2001 Act, was intended to continue under the new statutory regime, as in fact occurred. If the subsidy was not continued by cl 5(2), then its legal status would be uncertain. If there was no statutory foundation for Mr Quinn's pre-existing subsidy when the 2001 Act was enacted, it may be that recovery of it by the Corporation as money had and received, or money paid under a mistake, might potentially have been available, although such an action might long ago have become statute-barred. No such cause of action is part of the current claim of the Corporation.
3. Because of the likely need after the enactment of the 2001 Act for there to be a legislative foundation for the subsidies or rebates already existing in July 2001, I am inclined to the view that a grant of subsidy would be within the terms of an "approval…executed" under a former Housing Act, with the result that Mr Quinn's entitlement to a subsidy did not evaporate with the passage of the 2001 Act. It cannot be supposed that the intention of the 2001 Act was to end the legal basis for then existing subsidies, and to do so sub silentio, with no express reference. Consideration of fairness and consistency referred to in Project Blue Sky Inc v Australian Broadcasting Authority [67] and other cases [68] support that construction.

(iii) What subsidy was "in force immediately" before the commencement of clause 5(2)?

1. Mr Quinn was the beneficiary of a subsidy granted effective 9 March 1998. That continued or was superseded by a subsidy effective 15 June 1998 that preserved the rent at the initial subsidised level. On 3 April 2000 the amount of subsidised rent changed, indicating a new and different level of subsidy. Again on 7 May 2001 the subsidy details changed again, with a new income level, rate of income payable as rent, and subsidised rent level. The inference I draw is that this was the last subsidy granted prior to 1 July 2001. According to evidence tendered by the Corporation, Mr Quinn was asked "to verify household income details" and thereafter, on 13 March 2001, he was provided with the "Subsidy Granted Advice" and advised of the new rent payable effective 7 May 2001.
2. It follows that the subsidy "in force immediately before the commencement" of cl 5(2) was the subsidy granted on 13 March 2001, effective 7 May 2001. This subsidy alone is "taken to have been given or made" under the 2001 Act. Clause 5(2) would preserve the effect of this subsidy, inferentially a purpose of the transitional provisions. There is no apparent utility in preserving prior, expired subsidies, and, in my view, they fall outside the terms of cl 5(2). Mr Quinn did not argue that the phrase referred only to the last fortnightly subsidy amount credited to his rental account prior to 1 July 2001.

(iv) "The corresponding provision"

1. Identifying the "corresponding provision" to ss 9, 10 or 14 of the 1976 Act is also not apparent. The 1976 provisions are in Pt 3, headed "Functions of the Corporation", and concern functions or powers of the Corporation with respect to and including dealing with land. The most closely equivalent provisions in the 2001 Act are ss 7 and 8 in Pt 3 and s 18 in Pt 4, although other provisions in Pts 3 and 4 have some similarity. It is evident that if a rebate or subsidy could be granted under Pt 3 of the 1976 Act, then it could also be granted under s 18 in Pt 4 of the 2001 Act which empowers the Corporation "subject to such terms and conditions as it thinks fit [to]…lease…the land or any part". However, after 1 July 2001, when there are express provisions for the granting of rebates in Pt 7 headed "Rental Rebates", I would infer that rebates were in fact granted under Pt 7.
2. The Corporation submitted that Pt 7 was the "corresponding provision" because it would be the provision under which rental rebates are granted. Pt 7 need not be the "corresponding provision" in order for the rebate or subsidy to continue under the 2001 Act; that is also achieved if Pts 3 or 4 of the 2001 Act are the "corresponding provision[s]". The significance of Pt 7 being the corresponding provision is that it might allow the backdated cancellation and subsequent recovery of pre-2001 rebates.
3. In referring to "corresponding provision", cl 5(2) focuses on the content or nature of the former and present provisions, rather than upon the actions done under those provisions. Clause 5(2) does not refer to the provision in the earlier Act corresponding to Pt 7. These matters, along with the similarity between s 18(b) of the 2001 Act and s 14 of the 1976 Act, persuade me that s 18(b) of the 2001 Act is the "corresponding provision" to s 14 of the 1976 Act, under which rebates were formerly granted.
4. To hold otherwise would be to create retrospectivity where none is demanded by the terms of cl 5(2).
5. The Second Reading Speech for Housing Bill 2001 stated: "The current legislation does not provide sufficient power for the Land and Housing Corporation to fully investigate and deal with rental rebate fraud, despite the substantial increase in the proportion of tenants who receive a rental rebate. In the early 1990s the regulations under the Housing Act 1912 were allowed to lapse under the Subordinate Legislation Act 1989. Those regulations gave extensive powers to the Land and Housing Corporation in relation to granting and revoking rental rebates and in relation to investigation. The Land and Housing Corporation currently relies on sections 48 and 49 of the Housing Act 1912, and on existing contractual and administrative principles of law. This bill will provide the necessary powers to deal with rental rebate fraud. The powers will include the capacity to investigate suspected rebate fraud, cancel or vary a rebate, and require repayment of arrears where a rebate has been fraudulently claimed. The bill will not establish a harsh or punitive system. The Land and Housing Corporation will continue to be governed by privacy principles and legislation. Tenants' rights will not be changed at all, including the right to appeal decisions to an independent appeals committee. However, taxpayers and the vast majority of tenants who do the right thing deserve to be certain that everyone is paying their fair share."

(c) Effect of purported cancellation of earlier subsidies

1. The November 2012 decisions do not purport merely to cancel Pt 7 rebates and nominate a date when the cancellation of rebates is effective. Rather, the decisions purport to cancel rebates which are not Pt 7 rebates. The letter of notice dated 15 November 2012 included the following information: "Pursuant to Section 57(1) of the Housing Act, 2001 (NSW), Housing NSW has decided to cancel your rent subsidies for the property you occupy, effective from 01 July 1998 to date and continuing. Section 57(1) states: … Cancellation of your rental subsidies will now take place. You will be advised in writing of the amount that the Corporation will require you to pay. … It will be the intention of the Corporation to seek to recover from you the rental rebates that you received during the period of cancellation." [71]
2. The letter dated 22 November 2012 stated, in part: "As you have not provided enough details to complete a full assessment of your rent subsidy, we have cancelled it. The cancellation takes effect from 05 July 1998. Housing NSW has the right to cancel you subsidy under Section 57(1) of the Housing Act 2001, which states: … The following subsidies have now been cancelled from 05 July 1998 and you have been charged market rent for the below periods: 05 Jul 1998 - 03 Jun 2001 $230.00 04 Jun 2001 - 17 Jul 2005 $330.00 … 08 Oct 2012 - current $545.00

We will continue to charge the market rent until you provide full details of the people, income and assets for your household. Due to your subsidy being cancelled, a total debt of $221,062.10 has been placed on your rental account. As at 19 November 2012, your current balance is now $221,414.60 in debit." [72]

1. The notifications given by the Corporation to Mr Quinn specified an amount of $221,062.10 as the debt on Mr Quinn's rental account as a consequence of the November 2012 decisions. The evidence indicates that Mr Quinn's account was $140.80 in credit prior to the debiting of the purported cancelled rebates. Thus, in the submission of the Corporation, the total amount of the rebates cancelled was $221,202.90 which, after a credit of $140.80, meant that Mr Quinn was required to pay $221,062.10.
2. The contents of the letters, Mr Quinn's rental account, and the amount claimed, demonstrate that Mr Quinn was not merely being required to repay cancelled Pt 7 rental rebates, but also rental subsidies granted prior to July 2001. As the Corporation was not entitled to cancel pre-July 2001 rebates, not being Pt 7 rebates, it was therefore not entitled to require the tenant to repay an amount in respect of those prior rebates.
3. Under s 57(5) of the 2001 Act, the Corporation is entitled to recover any amount referred to in s 57(4) that is unpaid. The amount nominated for repayment in the letter of 22 November 2012 has not been repaid. But as it contains some rebates that are not repayable, a question arises as to whether any amount is repayable under s 57(5) if there has been a defective s 57(4) notice.
4. The entitlement of the Corporation to recover arises once it has "by notice in writing" required the tenant to pay an amount in accordance with the terms of s 57(4)(a). The s 57(4)(a) amount can be less than the cancelled Pt 7 rebates, but it cannot be more than those rebates: it can only extend to an amount equal to the whole "or part" of the cancelled rebates. In this case, the notice in writing has purported to require Mr Quinn to pay an amount more than the cancelled Pt 7 rebates.
5. Does s 57(4) require "an amount" to be specified? Other than the reference to "an amount", there is no express requirement in the s 57(4) notice requiring a figure to be specified. However, it is difficult to see how a tenant can be required to pay an amount that is not specified, even less that an unpaid portion of an unspecified amount may be recovered under s 57(5). Both because of the reference to "an amount", and because of the fairness of enabling the tenant to avoid liability by paying the specified amount, the preferable construction is that the amount must be specified.

(d) Decisions made by the Corporation

1. Section 57(1) and (2) contemplates a discretion being exercised by the Corporation as to whether to cancel Pt 7 rebates and as to the date the cancellation is to be effective. Section 57(4) contemplates a discretion being exercised by the Corporation as to whether to recover all or what part of the cancelled rebates. Thus, there are two decisions to be made by the Corporation, and two discretions to be exercised, in order for the Corporation to be entitled to recover an amount in respect of cancelled rebates. [75] These two decisions comprise the Cancellation Decision and the Recovery Decision. Mr Quinn submits that neither of the November 2012 decisions made in this case was properly a Cancellation Decision or a Recovery Decision made by the Corporation in accordance with s 57. The force of that submission depends upon the identity, position and authority of the decision maker.
2. Brennan J, as President of the Administrative Appeals Tribunal, said in Re Reference under section 11 of Ombudsman Act 1976 for an Advisory Opinion; ex parte Director-General of Social Services: [76] "An act done in purported exercise of a statutory power is valid if the act falls within the statutory provision which confers the power. Prima facie an act will not fall within the statute unless it be done by the person in whom the statute reposes power…Validity is thus dependent upon the identity of the authority and the doer of the act".
3. The evidence concerning the decisions is thin, and the identity of the decision maker non-existent. The Corporation submitted that the decision was in writing and disavowed any suggestion of an oral, unrecorded decision. The only contemporaneous primary documents in evidence comprise two letters to Mr Quinn: the first dated 15 November 2012, giving him notice of a purported Cancellation Decision, and the second dated 22 November 2012, giving notice of the purported Cancellation and Recovery decisions; and three emails. No actual decision is in evidence. Nor is there a briefing note containing recommendations. Nor is there any relevant report of an investigation under ss 57(1) and 58 concerning Mr Quinn's weekly income. The actual decision maker is not identified in any document, and even on the Corporation's case, the position occupied by the unidentified decision maker is uncertain.
4. Nevertheless, the Corporation submits that there was a briefing note recommending cancellation of the rebates and recovery of the amount, which was approved by a General Manager ("GM") or alternatively, the Area Director in October or early November 2012.

(i) Documentary evidence

1. On 6 September 2012 Mr Quinn forwarded a signed Rent Subsidy Application to the Department of Family and Community Services ("FACS"). It was accompanied by a completed "Employment Income Details" form declaring a current gross weekly wage of $385. The form is signed by the "Employer's representative".
2. On 18 September 2012 FACS sent to Mr Quinn an unsigned letter stating: "Dear Mr R. Quinn RENT SUBSIDY REVIEW - YOUR NEW RENT AND WATER CHARGE This letter is to advise you of your new rent and water charge. Housing NSW has assessed your eligibility for a rent subsidy. Our assessment has determined that you are eligible for a rent subsidy. Your new rent Your new rent will be $96.25 per week, which you must pay from 10 September 2012. Your new rent is based on your household income details shown in the Rent Assessment Details table at the end of this letter. Your new water charge Your new water charge will be $4.50 per week, which you must pay from 10 September 2012. This charge is based on whichever is lower: 4.7% of your rent, of $7.00 (the amount at which water charges have been capped). Adjustments due to you rent Due to the change in your household income, we have adjusted your rent account by $24.80DR. We have also adjusted your water account by $1.10 DR over the same period. … Housing NSW".
3. On Friday, 9 November 2012 at 11.12am Michael Lindfield, a person whose then position in FACS is not identified, sent an email to Angela Walsh and Lynda Duncan on the subject of "Quinn, Robert - Cancellation of Subsidy Advice.doc" in the following terms: "Lynda/Angela Would you please arrange for this to be sent out asap? Please commence cancelling subsidies as approved by GM - once you have done so, advise client in writing of amount. Cheers Michael".
4. The email did not otherwise indicate the presence of an attachment. Quite what is described by the phrase "as approved by GM" is unclear. Mr Lindfield did not give evidence.
5. The following Monday morning, 12 November 2012, at 9.43am Lynda Duncan, the Acting Team Leader in FACS at Surry Hills, forwarded Mr Lindfield's email to Shannon Pickering, cc'd to Angela Walsh. The same subject was repeated. The email said: "HI Shannon Rent subsidies to be cancelled - please discuss when Ange returns this PM Cheers Lynda Duncan".
6. Again the email did not indicate any attachments. Ms Duncan did not give evidence.

We will continue to charge the market rent until you provide full details of the people, income and assets for your household. Due to your subsidy being cancelled, a total debt of $221,062.10 has been placed on your rental account. As at 19 November 2012, your current balance is now $221,414.60 in debit. Please contact us to arrange to repay any debt owning on your rental account. In addition to the above, will we (sic) also take the following action: • Issue a Notice of Termination against your tenancy within 14 days of the date of this letter In future, you must remember to tell us within 28 days if your household circumstances change. We will ask you to confirm the changes in writing. You may also need to fill out a new Application for Rental Subsidy Form so that we can adjust your rent immediately. If you disagree with our decision, you should first discuss your concerns with a Client Service Officer. If you still believe we made the wrong decision, you can ask for a formal review of the decision. For information on how a formal review works, read the Appeals and Reviewing Decisions fact sheet or the Client Service Delivery and Appeals policy available from our website www.housing.nsw.gov.au. If you have any questions, or you would like to discuss this matter further, please contact us on 9319 9333 and ask for your Client Service Officer. For independent and free advice you can: … These services will also be able to put you in touch with your local tenants' advisory service. SHANNON PICKERING Senior Client Service Officer [signature] Housing NSW".

(ii) Ms Pickering

1. Ms Pickering gave evidence that her usual practice was to review any decision cancelling a rebate and then prepare and send the letter advising the tenant. She could not "recall the exact circumstances at the time" [79] but affirmed that because a lot of work was involved to reinstate the subsidy, she "would not go through the process of cancelling a tenant's subsidy unless I had seen the decision cancelling the subsidy". [80]
2. Ms Pickering also affirmed that there was no decision cancelling Mr Quinn's rebates kept on the electronic file. She said that hardcopy files were also maintained but that she had not been able to locate a copy of any such decision.
3. In oral evidence, Ms Pickering was adamant that she would not have proceeded with the cancellation without seeing the General Manager's approval, even if her boss had told her that the General Manager had approved it, had notified Mr Quinn of the cancellation and had told Ms Pickering to act on that.
4. I was not entirely comfortable with Ms Pickering's evidence. The reason Ms Pickering offered as to why she would always see the approval of the cancellation was because once she had cancelled the rebate it would involve a lot of work to reinstate it. That reason is supported by the email where she said she was "hesitant in cancelling…without seeing the GM's approval" because it is "a huge job to redo" once she cancels the subsidies. But there is no suggestion that she was responsible for ensuring that an approval by the General Manager had occurred. A reason based on the work involved to manually reinstate the subsidy may be a reason to question a decision, but is less convincing as a reason to disregard or disobey her supervisor's instruction had her supervisor assured her of the General Manager's approval, acted on it by sending the notice to Mr Quinn and instructed her to proceed with the cancellation. Ms Pickering's contemporaneous written record of hesitancy to cancel "as requested" is not so adamant as her more recent oral evidence.
5. Also, cancellation of rebates, including some backdated cancellation of rebates, did not all require the approval of the General Manager. The relevant instrument of delegation gave Ms Pickering, as well as Ms Walsh and Ms Duncan, power to cancel rebates and backdate that cancellation up to six months. This matter is dealt with later in this judgment.

(iii) Mr Cureton

1. Some months later, in May 2013, Nathan Cureton, a solicitor in FACS, gave advice to FACS regarding a "first tier appeal" by Mr Quinn against the decision to cancel his rebate. Mr Cureton's advice indicated that there was no Navazi [83] error as "there is an attempt to determine household weekly income", but nevertheless advised "Please go through the exercise of deciding whether household weekly income can be determined or not. If it can, please make this determination". Mr Cureton also advised that a letter be sent to Mr Quinn informing him of the allegations "for comment" and that thereafter Mr Quinn be interviewed.
2. Mr Cureton's advice also stated that "There is no actual determination of household weekly income" and "the decision-maker does not ask the question as to whether household weekly income can be determined". He wrote "it is clear from the documentation including letters and enquiries to various bodies that there was a genuine attempt to investigate Mr Quinn's income". There was one other reference to "the original decision-maker" in the advice.
3. Mr Cureton affirmed that his usual practice in reviewing the decision is to have a copy of the decision in front of him, and that he would not regard the letters of 15 and 22 November 2012 as constituting the written decision. He said the written decision would be in the form of a briefing note.
4. In oral evidence, Mr Cureton said he saw the briefing note, a matter not recorded in his affidavit. He denied that the original decision maker could have been Mr Lindfield, who was no more senior at the time than a Team Leader (such as Ms Walsh or Ms Duncan). Mr Cureton could not recall who was the original decision maker but nominated one John Waite as the "first tier decision-maker". Mr Waite did not give evidence. Mr Cureton said that the primary decision maker could have been an Area Director, a General Manager, or "one between that, I can't recall". Mr Cureton denied it could have been a Senior Client Services Officer, and thought the decision was in November 2012.

(iv) Mr Fester

1. Robin Fester was also a solicitor employed by FACS. He made some investigations during the trial and ascertained that at the relevant time Paul Vevers was the General Manager, Central Sydney, the area in which the tenanted property was located. He also affirmed that a decision to cancel Mr Quinn's rebates "would most likely have been made by the General Manager Central Sydney although it might have been made by an Area Director". Mr Fester also affirmed that: "in the first half of November 2012, the Plaintiff completed an investigation of the Defendant's income and assets compared to those that had been previously disclosed by the Defendant to the Plaintiff. A decision was then made to cancel the rental rebates/subsidies…with retrospective effect from 1 July 1998".
2. Mr Fester however had not seen the decision and he could not say definitively who made it.
3. Mr Vevers did not give evidence.

(v) Analysis

1. In evidence there is no decision or related documents and no explanation for their absence. Mr Lindfield, who claimed in a contemporaneous email that a cancellation had been "approved by GM", gave no evidence and his absence was not explained. Nor was Mr Lindfield's position identified. His email does not bear the formal indicia of the other FACS email.
2. Ms Duncan, the acting Team Leader, who forwarded the instruction to Ms Pickering to cancel the subsidies, and who apparently received the unidentified item from Mr Lindfield that was to be "sent out asap", gave no evidence and her absence was not explained.
3. Ms Walsh, the relevant Team Leader, who also received the same email as Ms Duncan, who was copied into Ms Duncan's request to Ms Pickering to cancel the subsidies, and who, like Ms Duncan, received Ms Pickering's pointed response of hesitancy because of an absence of an investigation folder, an approval and other details, a response that was apparently never answered, and who then, in her own name on the same day, sent out the letter notifying Mr Quinn of the cancellation, also gave no evidence and her absence was not explained.
4. Mr Vevers was identified as the relevant General Manager but he gave no evidence and his absence was not explained.
5. There was no evidence of who was or were the Area Director or Directors and no evidence from anyone in that position, and that absence was not explained.
6. Ms Pickering checked the file on 15 November 2012 and there was no approval from the General Manager on the file. Nor does the electronic file contain any approval. Mr Fester asserts a decision was made but he never saw it and could not say who made it.
7. I accept that Ms Pickering and Mr Cureton now believe they saw a decision. But they are recalling a document several years ago of no particular significance and not created by them. They cannot identify the decision maker or the contents of the decision, apart perhaps from the suggestion that some of its content might be reflected in the letters of 15 or 22 November 2012. There were two internal appeals against the decision but neither appeared to result in the creation or at least the safekeeping of a copy of the decision by the General Manager or some other senior officer. Mr Cureton's memorandum referring to the "decision maker" and not containing details of the decision leaves these questions unanswered.

(vi) The delegated authority of the General Manager or other officers to cancel rebates

1. The Corporation submitted that the General Manager had delegated authority to retrospectively cancel rebates under s 57(1) and (2) of the 2001 Act and to decide to recover retrospectively cancelled rebates under s 57(4).
2. Section 15(1) of the 2001 Act provided: "15 Delegations (1) The Corporation may delegate to a person the exercise of any of its functions, other than this power of delegation."
3. Section 6 of the 2001 Act provided that "The affairs of the Corporation are to be managed by the Director-General" and that: "Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Director-General, or with the authority of the Director-General, is taken to have been done by the Corporation."
4. The Corporation relied on an instrument of sub delegation executed by Mike Allen, "Chief Executive, Housing NSW, Department of Human Services" ("DHS"), on 8 March 2011. DHS was, in general terms, the predecessor of FACS.
5. That instrument provided: "By instrument of delegation dated 24 March, 2010 Jennifer Mason, Director-General, Department of Human Services delegated to the Chief Executive, Housing NSW, Department of Human Services all powers and functions of the New South Wales Land and Housing Corporation under the Public Finance and Audit Act 1983 with power to sub delegate. To the extent that I am able, I Mike Allen, Chief Executive, Housing NSW, Department of Human Services revoke all former Financial Delegations to officers of Housing NSW previously given by me on 23 March, 2009 and I sub delegate the exercise and performance of those functions, authorities, duties and powers in column 3 of the Schedule hereto, to the person occupying the position specifically identified or within the category specified in column 4 and to the extent specified in column 5."
6. The Corporation tendered a later document, a signed instrument of delegation dated 30 May 2012, whereby the Director-General of FACS, Jim Moore, delegated all of his functions to Mike Allen, Chief Executive of Housing NSW, with authority to sub delegate. No issue was taken about the different primary instruments of delegation and the argument proceeded on the basis that the instruments of delegation and instrument of sub delegation were operative at the time of the November 2012 decisions subject to the issue about the correct Director-General, considered below.

1. It was accepted that "Up to 6 months" in delegation number 44 was a restriction on the extent that Categories 11 and 12 officers could "[a]pprove cancellation of rebate subsidy". Thus, it would appear that categories 11 and 12 officers, which include Team Leaders such as Ms Walsh, and Senior Client Service Officers such as Ms Pickering, respectively, had power to cancel a rebate subsidy but could only backdate for six months the date the cancellation took effect.
2. The reference in the definition of officer quoted above to include "any supervising officer senior to that person" implies that, in this case, an officer senior to a Level 11 in the "reporting line" [85] above Ms Walsh would have her same authority, subject to any additional delegation in the instrument.
3. Although both Mr Quinn and the Corporation conceded this to be the proper construction of the document, it does not appear to be the way the document was interpreted by some in FACS. Mr Cureton gave the following evidence: "Q. The delegations for the area director or general manager don't enable them to cancel beyond six months do they? A. No, they do. Q. Why do you say that? A. What you're referring to in the delegation is the - in that instrument of delegation the six months refers to the limit of those three people that are mentioned in that particular table, so those three people-- Q. You're referring to exhibit D? A. Housing manager - sorry, I'm trying to picture it." [86] "Q. So you've got the delegated officer category 11, 12, housing manager, we're looking at item 44. A. Yes, but the limitation of up to six months refers to those positions, but anything above them is, is unlimited. Q. It doesn't say that in this document does it? A. Well, that's, that's how the power is exercised. Q. That's how it was assumed to be? A. Yeah. If you look at - I mean, this isn't explicit, but if you look at page 1 of that instrument where it says: 'Officer means the holder of a specified office and includes a person acting in that office or exercising the functions of the office or any supervising officer senior to that person.' And the way we read it is - the way that it operates is that anyone above that position that's in the box can also exercise the power but the limitation - on an unlimited basis than that six month is - only applies to those people in the actual box. Q. Sorry, where were you reading? I just can't see it. A. Sorry, if you look at the, the first page of the instrument of sub-delegation which is--". [87] "Q. I'm sorry, Mr Cureton, you just continue with your answer please. A. I, I'm just pointing out the first page of the instrument of sub-delegation where it's got that underlined, "In this instrument" and at (i): 'Officer means the holder of a specified office and includes a person acting in that office or exercising the functions of the office and any supervising officer senior to that person.' So the way that the delegation works in this context is that all of the people in the - in that box in paragraph 44 on the table also includes anyone above them, but the six months reference there only refers to those people, the 11, 12, the housing manager. So anyone above that, the way it operates is that they can make a, a cancellation decision above six months. Q. That's your interpretation of the document and that's how Housing NSW operates? A. That's right. Q. They operate on the basis that anybody above that level, they assume, is authorised, is that right? A. Yes, they take it as they're authorised for more than six months. Q. Who's the housing manager referred to in item 44? A. It's a, it's a level between, it's a level between - it's, it's an odd one to describe because they don't really supervise anyone but it's, it's a level at about team leader, maybe a little bit higher. Q. Is it a general manager? A. No." [88]

(vii) Agency, the Carltona Principle and the authority of the General Manager and other officers to cancel rebates

1. A delegation is not the only means by which the Corporation's power may be exercised. Agency is another. The Court of Appeal in Navazi at [68] stated: "Nevertheless, taking Mr Navazi's argument at its highest, the absence of a delegation says nothing as to whether Ms Roil was acting on behalf of the Corporation with the authority of the Director-General, which is sufficient to engage s 6(3). In O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 20 and 30, Mason J referred to "administrative necessity" and Wilson J referred to "the necessity in modern government for the shared performance of duties short of delegation". There is no sound reason to find that the Act required all cancellation decisions involving a backdating for a period in excess of six months to be undertaken by the Director-General; the material referred to above suggests that such decisions may be very numerous. The process by which Ms Morgan's report was reviewed and approved by two officers within the department before being presented to Ms Roil supports the inference that the exercise of power was reserved for the more senior officers and that Ms Roil, the General Manager for the Central Sydney Division, was authorised by the Director-General to exercise the power."
2. However, the evidence of Ms Pickering suggested that the exercise of the power of cancellation was done pursuant to a delegation, and not by means of agency. As Mr Cureton said, "that's how the power is exercised". [91] Mr Fester gave evidence as follows: "Q. Do you have any delegations for the general manager or the area director? A. Sorry? Q. Do you have any delegations-- A. I don't have anything-- Q. --for the general manager or the area director? A. When you say delegations, are you saying was there delegated authority to the general manager? Normally there would be some form of delegation to the general manager. Q. But there's no delegation under section 57? A. Not that I'm aware of. Q. That applies to the area director as well? A. I'm not sure if it covers the area director. If, if I - well, I do my searches mainly for general manager based on certain things that I had seen. But normally speaking, an area director would have delegation but I haven't seen anything relating to section 57 specifically for an area director." [92]

(viii) Which Director-General?

1. There is another material factual difference between this case and Navazi.
2. Section 6(2) of the 2001 Act provided that the Director-General manages the affairs of the Corporation. Section 3 provided that the Director-General meant the "Director-General of the Department". At the time of enactment of the 2001 Act, the Department was the Department of Human Services. On about 4 April 2011 the name of the Department was changed to the Department of Family and Community Services by the Public Sector Employment and Management (Departments) Order 2011 (dated 3 April 2012) cl 34. The relevant Director-General was the Director-General of FACS.
3. On 5 October 2011 the Public Sector Employment and Management (General) Order 2011, was made under the Public Sector Employment and Management Act 2002. Clause 4 of the Order provided: "A reference in section 6 of the Housing Act 2001 to the Director-General (within the meaning of that Act) is to be construed as a reference to the Director-General of the Department of Finance and Services."
4. In the result, the Director-General of the Department of Finance and Services ("DFS"), not the Director-General of FACS, became the relevant Director-General under s 6(3) of the 2001 Act. Although not altogether clear, the better view may be that even though the Director-General is defined as the Director-General of the Department, the absence of any reference to the Department in the Order means that references to the Department remain as references to FACS although the Director-General of the Department, in relation to s 6 of the 2001 Act, is a reference to the Director-General of DFS. The power of delegation under s 15 of the 2001 Act would thus remain with FACS and the Director-General of FACS. Quite what powers or functions were delegated by the Director-General of FACS under s 15, when the affairs of the Corporation are managed by the Director-General of DFS, under s 6(2) of the 2001 Act and the 5 October Order, was not explained.
5. In any event, it follows from s 6 of the 2001 Act and the 5 October Order that at the relevant time, November 2012, the Corporation was managed by the Director-General of DFS.
6. Clause 32 of the 3 April Order also provided for the transfer of certain Housing NSW staff from the Department of Human Services to DFS, namely those which "in the opinion of the Director-General of the Department of Premier and Cabinet are principally involved in asset management". There was no evidence of that opinion, or which employees were principally involved in asset management. The employees referred to in the proceedings, Mr Fester, Mr Cureton, Ms Pickering, Ms Walsh, Ms Duncan, and Mr Vevers, either by oral evidence or by the correspondence, appeared to remain with Housing NSW and FACS. Neither Mr Quinn nor the Corporation submitted to the contrary.

(ix) The Recovery Decision

1. As mentioned earlier, both s 57(1) and (2), and s 57(4) contemplate decisions of the Corporation. Only the s 57(4) decision gives rise to a debt. [101] Both s 57(2) and s 57(4) require discretions to be exercised. [102]
2. Both the 15 and 22 November Notices appear to treat recovery under s 57(4) as an automatic consequence of the earlier decision cancelling the subsidies. After referring to the cancellation, the 15 November letter says, "It will be the intention of the Corporation to seek to recover" the whole of the cancelled rebates. The 22 November 2012 letter repeats the notice of cancellation and says that due to the subsidy being cancelled "a total debt of $221,062.10 has been placed on your rental account…Please contact us to arrange to repay any debt owning on your rental account". Further, Ms Pickering gave evidence that recovery of the cancelled rebates was an "automatic" consequence. [103]
3. There is no evidence of anyone, such as a General Manager or an Area Director, making a decision under s 57(4). Of course, it might be possible to infer that a decision under s 57(2) and (3), and a decision under s 57(4) were made at the same time. But all the reasons why an inference of authority is not available to support a finding of a Cancellation Decision under s 57(2) and (3) apply a fortiori in respect of a Recovery Decision under s 57(4).
4. The preceding findings are sufficient to determine the invalidity of the November 2012 decisions.

I. The prior investigation into weekly income

1. Section 57 provides that an investigation to determine the weekly income of Mr Quinn, under s 58 of the 2001 Act, is a precondition to cancellation of a rebate. [104] Navazi confirmed that the required content of an investigation into weekly income is limited. The Court held "[a]n 'investigation' is merely a series of inquiries and analysis directed to a particular topic" [105] and it may be "short and informal." [106] It need not "determine weekly income" [107] and there is no requirement as to its "exhaustiveness and duration". [108] Its manner and form is a matter for the Corporation. That an investigation is continuing is no bar to a finding that it has, or a relevant part has, been conducted, so that the element in s 57(1) is satisfied.
2. In Navazi there was clear evidence of an investigation. In the present case, there is evidence of a prior investigation in 2010, although it did not then lead to any decision under s 57. Is this investigation sufficient to satisfy s 57(1)?
3. As was noted in Navazi at [39], a s 58 investigation into weekly income is not only required for a cancellation of a rebate under s 57, but the grant of a rebate under s 56. In other words, whenever a rebate is cancelled, there must necessarily be presumed to have been a prior s 58 investigation into weekly income, because the tenant has a rebate that can be cancelled, and the existence of a rebate implies a prior s 58 investigation. Is that sufficient to satisfy s 57(1)?
4. The Corporation submitted that it was; that the s 58 investigation that permits the grant of a rebate under s 56 was sufficient to satisfy s 57, since the literal requirement of a prior s 58 investigation was fulfilled. The same prior investigation, it was submitted, is sufficient to justify both the grant of a rebate and its subsequent cancellation. That construction would remove any utility in the requirement in s 57 that the decision occur "after conducting an investigation under section 58" since that must have already occurred for a rebate to be granted.
5. Further, it cannot be supposed that the mere formal requirement of having first conducted an investigation is sufficient so that the Corporation is entitled to disregard, without consideration, the results of the investigation. Navazi at [51] confirms as much: "It may readily be implied from the language of the subsection that the decision maker is required to consider what has emerged from that investigation before exercising the power". Navazi involved judicial review proceedings but the quoted finding leaves open the question whether a failure to take into account the result of a prior investigation into weekly income is a basis for prerogative relief only, or is a statutory requirement imposed by s 57 that must be satisfied in order for a valid Cancellation Decision to result.

J. Requirement to repay rebated amount

1. I have already determined above that the recovery notice demanded payment of an amount greater than was rebated under Pt 7 of the 2001 Act, greater than what could be validly cancelled under s 57(2). The amount of rebates for the period between 1998 and 1 July 2001 was $12,758.10. These rebates were not able to be cancelled and recovered under s 57, and the recovery notice fell outside s 57(4)(a), since it required Mr Quinn to pay these unrecoverable amounts.

K. The correct amount of the rebates

1. The correct amount of the rebates which could be cancelled was the totality of the Pt 7 rebates. The rebate in place immediately prior to 1 July 2001 was, I have found, taken to be granted under the 2001 Act by reason of the transitional provisions. But those provisions deem the rebates to be granted under the "corresponding provision" to s 14 of the 1976 Act, which I have found to be s 18(b) of the 2001 Act. As the corresponding provision is not in Pt 7, the cancellation and recovery provisions do not extend to the pre-July 2001 rebates, even if they were taken to be granted under the 2001 Act.
2. No Pt 7 rebates were granted until there was an application by Mr Quinn for a rebate under s 55, an investigation of weekly income under s 58, and the grant of a rebate under s 56. On the evidence, the first rebate so granted was on 15 April 2002, after an investigation in February and March 2002. [114] As this was the first rebate granted under Pt 7, it was the first rebate able to be cancelled and recovered under s 57. The correct amount of Pt 7 rebates must thus exclude the $12,758.10 subsidy prior to 1 July 2001, and the amount of rebates in the period from 1 July 2001 to 15 April 2002. The amount of rebates in this second period was not specified, but would be capable of calculation from Mr Quinn's Housing NSW account in evidence, and may be the sum of $11,689.10.

L. The limitation period

1. Mr Quinn submitted that the rebates recoverable under s 57(4) were those that were received in the six years preceding the cancellation, and that a cancellation that "took effect" at an earlier date did not enable recovery of the cancelled rebate because of the six-year limitation period.
2. Section 14 of the Limitation Act 1969 provides that "a cause of action to recover money recoverable by virtue of an enactment" is "not maintainable if brought after…six years running from the date on which the cause of action first accrues to the plaintiff".
3. The cause of action accrues to the plaintiff when all the elements of the cause of action are present. As indicated above, the elements of this statutory cause of action include a rebate granted under Pt 7, an investigation under s 58, a cancellation decision by the Corporation, determination of a retrospective date of effect, notice of the cancellation to Mr Quinn and notice of the amount to be recovered. All but the first of these matters occurred in 2012. The fact that one element, the granting of a rebate, might have occurred more than six years before proceedings were commenced says nothing about when the cause of action first accrued.
4. The action first accrued when a valid notice under s 57(4) was given, requiring payment by Mr Quinn. That did not occur before 22 November 2012, when a s 57(4) notice was allegedly given. Until that date, no action could be maintained under Pt 7 for recovery of rebates.
5. Accordingly, the action by the Corporation is not statute-barred.

M. Section 41 of the Residential Tenancies Act 2010

1. The application of s 41 of the Residential Tenancies Act 2010 ("RTA") depends on the validity of any cancellation of rebates after November 2012 as well as on the terms of s 41 of the RTA. These two matter can be considered separately.

(i) A different date of effect

1. The exercise of the power of the Corporation to cancel a rental rebate granted under s 56 of the 2001 Act is governed by s 57 of the Act, whether the cancellation be retrospective or prospective. To cancel a rebate from a date "on or after the making of a determination", the Corporation was required to: 1. conduct an investigation under s 58 of the Act; 2. decide to cancel the rebate; 3. determine the relevant date of effect being a date on or after the making of the determination; and 4. give notice to the tenant of the decision and date of effect.
2. Whilst I have doubted whether the Corporation conducted a s 58 investigation, I have decided that the Corporation did not validly cancel the rebate. Even though the authors of the November 2012 notices, Ms Walsh and Ms Pickering had authority under delegation to cancel the rebates prospectively, neither exercised that authority. It was not part of the Corporation's argument that the authors of the notices were in any respect decision makers cancelling the rebates.
3. Nor did the Corporation determine an effective date of cancellation to be a date occurring "on or after the making of the determination". Nor did the Corporation give notice of such a date.
4. Thus there was not prospective cancellation of the rebate. Rather, the rebates continued until cancelled or varied in accordance with s 57 of the Act. The November 2012 notices did not effect a cancellation of the rebate, not even for the future.

(ii) Severance

1. At the conclusion of submissions, the Corporation sought to argue that the Corporation had cancelled the rebate for the past and for the future and that the latter can be severed from the former. The argument was not developed. It would require, it seems, two determinations by the Corporation, but this is not supported by the evidence.
2. The administrative law doctrine of severance has been described by the High Court as "notoriously difficult", [115] particularly where, as here, it was not "developed in the submissions". Severance cannot be used "to achieve substantial alteration" or "rectification" [116] and it is difficult on the findings I have made to identify a valid, discrete part of the decision dealing with a prospective cancellation. A Cancellation Decision requires a date of effect to be identified, and it is not for this Court to determine a new date if the date chosen is invalid. Section 57 does not provide in terms that the Corporation may provide an earlier or later date of effect but in mandatory language requires that "the Corporation is to determine the date". A valid date has not been determined.
3. There is a more fundamental problem. The remedy of severance, to the extent that it may have some application to the November 2012 decisions, is an administrative law remedy. [117] It has not been pleaded. Had it been raised earlier, it may have impacted on the decision of the Court of Appeal in Quinn CA finding that this Court has jurisdiction because the Corporation's proceedings would then not have been simply a claim for a monetary sum, [118] but for administrative law relief. That may have persuaded the Court of Appeal that the matter, if it had commenced in 1998 in the Supreme Court, would have been assigned to the Administrative Law Division rather than the Common Law Division, and thus the proceedings would not be within the jurisdiction of this Court. [119] The lateness of the issue being raised, after repeated assurances that there was no severance argument, its potential to adversely impact on the jurisdiction of this Court if allowed, its potential impact on the Court of Appeal's decision in Quinn CA, and the absence of any application to amend the claim to include a claim for severance, all persuade me that it is too late to raise the point, and I do not propose to allow it.

(iii) A later decision

1. If the November 2012 notices do not effect a cancellation of the rebate, was there any later notice that did so? None is identified by the Corporation. However, on 14 September 2013, the Corporation gave notice of a market rent increase to $565 from 25 November 2013. The notice stated: "NOTICE OF MARKET RENT INCREASE This letter is to advise you that the market rent for your property at 44 SIRIUS, 44 CUMBERLAND ST, THE ROCKS, NSW, 2000 is increasing. Each year, Housing NSW reviews the market rent of its properties. The new market rent for your property will be $565.00 per week, which commences from 25 November 2013. This is an increase of $20.00 per week from your current rent of $545.00 per week. As the market rent has increased, you may now be entitled to a rent subsidy. For more information on how to apply for a rent subsidy, please contact your local office on the phone number at the top of this letter. If you believe the rent increase is excessive you can make an application to the Consumer, Trader and Tenancy Tribunal. You should do this within 30 days of the date you receive this notice. Tribunal fees will apply. … Yours sincerely [signature] Catherine Stuart Director Client Service Operations".
2. While this notice may be effective to satisfy the requirements of s 41 of the RTA, a matter considered below, it does not purport to cancel a rental rebate. There is no evidence of the requirements in s 57 for a valid cancellation of rental rebates: rebate cancellation, date of effect, a s 58 investigation, and notice.
3. It follows that the rebate has not been cancelled.

(b) Residential Tenancies Act 2010

1. The alternative argument relied upon by Mr Quinn is that s 41 of the RTA was not satisfied by the November 2012 notices. Section 41 provides: "41 Rent increases (1) The rent payable under a residential tenancy agreement may be increased only if: (a) the tenant is given a written notice by the landlord or the landlord's agent specifying the increased rent and the day from which it is payable, and (b) the notice is given at least 60 days before the increased rent is payable. (2) This section extends to an increase in the rent payable under a residential tenancy agreement on renewal of the agreement as if the increase were an increase during the term of the agreement. Note. Notice of a rent increase on renewal is required under subsection (1) before the lease is renewed. (3) A rent increase is not payable by a tenant unless the rent is increased in accordance with this section or the rent is increased by the Tribunal. (4) The residential tenancy agreement is varied to specify the increased rent from the date the rent is increased in accordance with this section. (5) Notice of a rent increase must be given by a landlord or landlord's agent in accordance with this section even if details of the rent increase are set out in the residential tenancy agreement. (6) Notice of a rent increase may be cancelled or varied (so as to reduce the increase) by a subsequent written notice given to the tenant by or on behalf of the landlord. Any such later notice takes effect from the date on which the earlier notice was to take effect. (7) Notice of a rent increase is not required to be given by a landlord or landlord's agent if the increase arises because of the end of, or a reduction in, a rent reduction. (8) Subsections (1)-(7) are terms of every residential tenancy agreement. (9) A landlord or landlord's agent must not contravene this section. Maximum penalty: 20 penalty units. (10) The Tribunal must not make an order that a rent increase is not payable because this section has not been complied with unless the application for the order is made not later than 12 months after the rent is increased. If an application has not been made within that 12-month period, the rent increase is taken to comply with this section."
2. The November 2012 notices did not provide 60 days' notice of any rent increase as required by s 41(1)(b), so Mr Quinn argued that by s 41(3), the rental increase is not payable.

N. Date of vacant possession

1. On 15 May 2014 the Tribunal ordered that Mr Quinn pay $80.71 per day from the day after the date of termination of the lease, namely from 16 May 2014, until "vacant possession is given to the landlord". The Tribunal also ordered "the order for possession is suspended until 15 July 2014".
2. Mr Quinn accepts that he must pay $80.71 per day from 16 May 2014 to 15 July 2014 inclusive, which is 61 days, totalling $4,923.31. The Corporation says that a further 21 days, or $1,694.91, is payable because the Corporation did not execute the warrant of possession until 6 August 2014.
3. There is no evidence as to when Mr Quinn ceased occupying the premises or returned the key. Thus, this issue turns on whether "vacant possession [was] given to the landlord" [126] on 6 August 2014, when the Corporation executed the warrant of possession and entered the premises, or 15 July 2014, the date until which the order for possession was suspended.
4. Mr Quinn argues that vacant possession cannot be determined merely by the date that the Corporation chooses to execute the warrant. On the other hand, the Corporation submits that the date until which "the order of possession is suspended" [127] is not the same as the "date vacant possession is given to the landlord".
5. In Thomas v Metropolitan Housing Corporation Ltd [1936] 1 All ER 210, the English Court of Appeal (Slesser LJ, Scott LJ and Eve J) unanimously found that where a tenant left premises empty and locked up, the provision of the keys to the premises by the tenant to the landlord's agent constituted the returning of actual possession to the landlord and the time actual possession was returned to the landlord was when the key was delivered to the landlord's agent. At 216 Scott LJ observed: "… Actual possession of empty premises, or of chattels which are locked up within a building or in a package of some sort, is retained by retaining the key. Possession of the key gives actual possession. The reason why there is so little law on the point is, I think, that it is difficult to imagine that anything to the contrary could ever have been contended."
6. Slesser LJ observed at 214: "There are many cases, of which I will mention only one, to the effect that the giving of a key giving access to the premises may amount to actual possession; and, when this is done with the intention to give possession, that possession will be an actual possession. … "

O. Orders

1. Accordingly, the orders of the Court are: 1. Judgment for the plaintiff in the sum of $8,767.82. 2. Costs reserved.

Endnotes

1. New South Wales Land and Housing Corporation v Quinn [2016] NSWCA 338 ("Quinn CA") at [1], [74] and [96].
2. [2015] NSWCA 133.
3. At [12].
4. Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [90].
5. Cachia v Isaacs (1985) 3 NSWLR 366, 368F (per Kirby P), 382F (per Hope JA), (contra McHugh JA at 388A).
6. Jackson v Goldsmith (1950) 81 CLR 446, 467.
7. Blair v Curran (1939) 62 CLR 464 at 532; [1939] HCA 23.
8. Blair at 532.
9. Blair at 532.
10. Blair at 532.
11. Cachia at 382 (per Hope JA), 368B, 369D (per Kirby P).
12. Blair at 532.
13. Plaintiff's outline of closing submissions ("POCS"), 14/7/17, at [10].
14. Blair at 532.
15. Blair at 532.
16. Blair at 532.
17. Ss 87(4) and 88(4) of the RTA.
18. Blair at 532.
19. See [250].
20. Cachia per McHugh JA at 387.
21. Amalgamated Engineering Union (Aust Section), Ex parte; Re Jackson (1937) 38 SR (NSW) 13; (1937) 55 WN (NSW) 7.
22. Attorney General For Trinidad and Tobago v Eriché [1893] AC 518, 523.
23. Maurice Blackburn Cashman v Brown [2011] HCA 22; (2011) 242 CLR 647, 662 [40]; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 at [24]-[38].
24. (2011) 33 VR 559; [2011] VSCA 266 at [20], [43], [62]-[63], [153]-[155], [284].
25. Amalgamated Engineering Union at 20.
26. [1991] 2 AC 93.
27. Arnold at 107C.
28. (1843) 3 Hare 100.
29. [2000] NSWCA 245.
30. [2001] QSC 040.
31. [2007] HCATrans 150.
32. See generally Zistis v Zistis [2018] NSWSC 722 at [68]-[73].
33. Quinn CA at [72].
34. POCS, 14/7/17, at [17].
35. Quinn CA at [72]-[73].
36. Quinn CA at [73].
37. Quinn CA at [73].
38. Ousley v The Queen (1997) 192 CLR 69 at 87.
39. Ousley at 80.
40. Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 at [231].