By application filed on 15 March 2024, Kathryn Nichols (Applicant) sought that Brendan Ford (Respondent) be referred to the Supreme Court to be dealt with for contempt of the Tribunal pursuant to the provisions of s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) (referral application).
On 9 May 2024, the Tribunal made directions for the filing of any evidence relied upon by the parties and submissions in support of and opposition to the referral application.
On 6 June 2024, in accordance with the Tribunal's directions, the Applicant filed an Affidavit in which the substance of her submissions and evidence upon which she relied were articulated.
The Respondent did not appear at the Directions Hearing on 9 May 2024. The Respondent filed no submissions by 10 July 2024 in accordance with the Tribunal's directions of 9 May 2024 and has not, as at the date of this decision, filed any material in opposition to the referral application. The Tribunal is satisfied that it is probable that the Respondent has notice of the proceedings, and of the Tribunal's directions. Whether that is a sufficient evidentiary basis for granting the referral, if the Applicant satisfies the Tribunal that doing so is otherwise appropriate, requires further consideration.
The alleged breach of the Tribunal's orders upon which the Applicant relies was of Order 4 of the Orders of 21 December 2023, which provided that "Within 7 days of receipt of the funds referred to at 3, the landlord is to issue to the tenant an updated ledger which recognises the receipt of the tenant's rental payments made to the Tribunal". Orders 2 and 3 of the Orders of 21 December 2023 relevantly provided that:
"2 Within 7 days of these orders, the landlord or the landlord's agent is to advise the Registry in writing of the trust account details to facilitate payment of funds held by the Tribunal.
3 Following receipt of the account details referred to in order 2, the Registry is directed to:
(a) pay any rent received from the tenant in accordance with order 2 made on 25 October 2023 to the bank account nominated by the landlord or the landlord's agent;
(b) advise the tenant in writing on release of the rental payments to the landlord."
The Affidavit of the Applicant of 6 June 2024 referred to the release of the funds referred to in Order 3(a) of the Orders of 21 December 2023, inferentially establishing that Order 2 of the Orders of that date had been satisfied, thereby enlivening the operation of Order 4.
The Applicant's Affidavit relevantly alleged:
"5 On 21 February 2024 the landlord's agent issue me a rent receipt for $3,000, which I assume was the [sic] held rent from the Tribunal.
6 Please note that during our tenancy my husband Gerry and I have not been in contact with the landlord, but rather, we have dealt with Fabre and Partners XXXX Street Penrith NSW 2750 who are the real estate agents for Brendan Ford.
7 On 5 March 2024 I emailed a message to the estate agent that was sent with "high importance". I thanked the agent for the 21 February 2024 rent receipt and reminded him about order 4 in the latest NCAT orders, dated 21 December 2023. I said that we have not received an updated ledger from him which according to order 4 we should have received by 28 February 2024, 7 days after receipt of the $3,000 held rent."
The Applicant's Affidavit does not refer to any communication from the landlord or the landlord's agent after that date. The Applicant's affidavit, supported by a succession of orders of the Tribunal, recorded a history of difficulty in obtaining accurate rental statements from the landlord's agent over a period of several years. Although not directly relevant, the history of proceedings between the Applicant and the Respondent in the Tribunal is capable of establishing that the Applicant has consistently sought, but has been unable to secure updated rental statements from the landlord or the landlord's agent. The tenancy ledger attached to the Applicant's Affidavit covers the period from 7 April 2021 to 14 December 2022. The credits recorded in the statement for that period total $74,374.95. The "balance" of the account totals $64,822.44. A debt of $9,552.51 is reflected in the statement. The Applicant has not alleged that, subsequent to the Orders of 21 December 2023, the Respondent or the Respondent's agent has asserted that there are arrears of rent payable by the Applicant.
[2]
Principles governing the application
The principles governing the referral application are not in doubt and do not require extensive reiteration.
As is not in doubt, this is not the hearing of a contempt application. The Tribunal has no power to hear and determine a contempt application of the present kind. The basis of the application is that the Respondent is alleged to have wilfully breached an order of the Tribunal, and that the evidence in that respect is capable of establishing the necessary elements of a contempt. It is not in doubt that the Tribunal must, in order for the discretion to refer for contempt to be enlivened, make a finding that the conduct complained of is capable of amounting to contempt (Mohareb v Palmer [2017] NSWCA 281). Even if the conduct complained of is held to be capable of amounting to contempt, the Tribunal has a discretion to decline to refer the matter to the Supreme Court (JW v Department of Communities and Justice [2023] NSWDC 566). The power to punish for contempt is only used sparingly, and only in serious cases (DVI v ZTT [2021] NSWCATEN 4).
An issue in the present proceedings, and ultimately the major issue requiring consideration, is whether the application raises a case which is "serious" as that term is interpreted in a referral application. The Tribunal does not doubt that, from the Applicant's perspective, the present application raises a serious issue. However, whether that is sufficient to enliven the discretion to refer is less than certain.
The standard of proof applicable in the hearing of a charge of contempt of the present kind, sometimes described as civil contempt, is the criminal standard of proof (Witham v Holloway (1995) 183 CLR 525; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21). Unless the evidence relied upon by the Applicant is capable of establishing contempt in accordance with the criminal standard, there would be no utility in granting the referral application in circumstances where the referral application, if prosecuted, would be determined by the Supreme Court in accordance with the requirement that the Applicant discharge the criminal standard of proof.
As explained in Witham v Hollaway, and in CFMEU v Boral, the proceedings in the Supreme Court, if referred, though similar in some respects, are different in a number of material respects to the proceedings in a criminal trial. The Tribunal's discretion, if the Applicant establishes that there is evidence sufficient to warrant a referral to the Supreme Court, is governed by a number of considerations to which reference will be made.
The first requirement which the Applicant must satisfy is that there is evidence capable of establishing beyond reasonable doubt that an order was made by the Tribunal. That requirement is readily satisfied by the Applicant in these proceedings.
The second requirement is that the terms of the order relied upon are clear, unambiguous and capable of compliance. That requirement is satisfied by the Applicant in these proceedings.
The third requirement is that the order was served on the alleged contemnor. In the present era, personal service of hard copies of documents appears to increasingly be exceptional, and service by electronic means, as was allegedly effected in this case, to increasingly be the norm. As will be seen, the Tribunal has some concerns as to whether the Respondent, who has taken no part in the proceedings, has actually and effectively been served with the Applicant's originating process and the Tribunal's directions with respect to the filing of submissions in the proceedings.
The fourth requirement is that the alleged contemnor has knowledge of the order upon which the Applicant relies. That requirement is satisfied by the Applicant in these proceedings.
The fifth requirement is that the evidence relied upon by the Applicant is capable of establishing that the alleged contemnor has breached the terms of the order upon which the Applicant relies. As the authorities establish (DVI v ZTT at [11]) the conduct of an alleged contemnor must have amounted to a wilful, as opposed to a casual, accidental, or unintentional failure to comply with the Tribunal's order. Having regard to the terms of the order, and the absence of any suggestion by the Respondent to the contrary, the Applicant satisfies that requirement.
The contempt power has two primary objectives: compliance with orders of the Tribunal; and demonstrating for the benefit of a party who is found not to have complied with Tribunal orders, and the community generally, that the orders of Tribunals are to be honoured or complied with (JW v Secretary at [35]).
If the power to refer the Respondent for contempt is enlivened, whether to do so in the exercise of a discretion requires consideration. The matters which are relevant to the exercise of that discretion include, the authorities accept, whether there are other remedies available to secure compliance with Tribunal orders, and the extent to which the party seeking referral has sought to enforce the orders of the Tribunal pursuant to those remedies. It is difficult to suggest what more the Applicant in these proceedings could do, or attempt to do, in order to secure compliance with the Tribunal's order by means not involving recourse to a referral application.
[3]
Consideration
Notwithstanding the Applicant's evidence that, during the period of more than 7 years in which the Applicant and her husband have occupied the Respondent's premises, they have had no dealings with him, but rather have always dealt with the Respondent's managing agents, the orders of the Tribunal have at all relevant times been made in proceedings between the Applicant and their landlord, the Respondent. However, the Respondent achieved compliance with Order 4 of the Orders of 21 December 2023, against which there has been no appeal or successful appeal, the Respondent thus remained obliged to comply with the order.
The Respondent's agent has never been a party to the proceedings, and the Applicant is accordingly unable to take any enforcement proceedings against the managing agent in reliance upon the Tribunal's orders, or on any other apparent basis. In any event, the Respondent has not made any submission in the referral application that his apparent failure to comply with the Tribunal's order was due to the misconduct or neglect of his managing agent, or to any other matter beyond his control.
Objectively, in circumstances where there is no evidence that the Applicant is being pressed for the payment of arrears of rental which have not been accrued, and it might be thought that the Applicant's complaint is not "serious" in the sense in which that term is understood in referral applications. As noted earlier, it is difficult to see how the Applicant could do more than she has to secure compliance with the undisturbed orders of the Tribunal.
The evidence relied upon by the Applicant is capable of establishing a breach of the Tribunal's orders beyond reasonable doubt. On the face of it, the implications of granting the referral application are disproportionate to the substance of Respondent's alleged breach of the Tribunal's orders. It is not however for the Tribunal to determine whether to prosecute the Applicant's contempt application if it is referred to the Supreme Court.
The objectives of contempt proceedings have been identified earlier in these reasons. Given the nature of the power which the Tribunal exercises with respect to referral applications, to decline to grant the referral application on the basis that the subject matter of it is insufficiently serious to warrant doing so potentially involves the Tribunal exceeding its role, and purporting to effectively determine the contempt application when, as the authorities establish, the Tribunal's function is to determine whether the evidence relied upon by the Applicant is "capable" of establishing the contempt. However, it is not in the interests of the Applicant that the referral application be granted unless doing so is likely to have some utility.
To decline the present application would be likely to have two effects, neither of them desirable. Having done all that she reasonably could to secure compliance with the Tribunal's orders, the Applicant would be entitled to feel that the legal system has let her down. Conversely, having apparently thumbed his nose at the Tribunal, the Respondent would be entitled to think that compliance with Tribunal orders was optional, or that, put crudely, Tribunal orders are not worth the paper they are written on.
As noted earlier, "service" of the Applicant's material in the referral application on the Respondent has been by email, to the email address which the Respondent has used throughout the proceedings. There is no reason to think that the Respondent would not have received those email communications. His silence is consistent with the Respondent's history of indifference with respect to Tribunal proceedings. Nevertheless, rather than falsely raise the Applicant's hopes by granting the referral application in case there is a reason for the Respondent's silence, the Tribunal will stay the operation of its orders for 14 days after publication of its decision and orders are emailed to the Respondent, during which time, and at his risk as to costs, the Respondent may make an application, supported by affidavit evidence, seeking that the order granting the referral application be discharged or varied.
Although perhaps unusual, in all the circumstances, the Tribunal considers the appropriate order to be that, subject to the orders proposed in [29], unless within 21 days of the Tribunal's order the Respondent complies with Order 4 of the Orders of 21 December 2023 the referral application is granted. If the Respondent complies with Order 4, the Applicant will have achieved what she hoped to, without having to wait potentially months to see whether the referral application will be prosecuted in the Supreme Court. Equally, by complying with the order, albeit belatedly, the Respondent will have been left in no doubt that orders of the Tribunal must be complied with.
[4]
Orders
The Tribunal makes the following orders:
1. That, subject to the operation of Orders 2, 3, 4 and 5, the Respondent be referred to the Supreme Court of NSW to be dealt with for contempt of the Tribunal.
2. That the operation of Order 1 is stayed for 14 days from the date of the decision of the Tribunal.
3. That the Registrar forthwith email the Tribunal's decision to the Respondent.
4. That, within 14 days, at his risk as to costs, the Respondent has leave to make an application to the Tribunal, supported by affidavit evidence, to discharge or vary Order 1 of the Tribunal's orders.
5. That Order 1 of the Tribunal's orders be vacated, and the referral application be dismissed in the event that the Respondent complies with Order 4 of the orders of the Tribunal of 21 December 2023 within 21 days of these orders.
[5]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 02 August 2024