Sharma v Kaur

The submissions of the tenants

1. Mr Singh relied on Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 (Bhardwaj) and Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58 (Craig). He contended that the Tribunal does not have jurisdiction for a variety of reasons which he asserted constituted jurisdictional error including that the Tribunal is prohibited from issuing a warrant for possession pursuant to s 119 of the RT Act. Only the Supreme Court has jurisdiction to enforce the order for possession of the premises.

Consideration

1. In Bhardwaj the High Court considered an administrative tribunal's capacity to correct its own error when, in consequence of that error, it has failed to discharge its statutory function. The Immigration Review Tribunal dismissed the application of the respondent, whose student visa was cancelled by a delegate of the Minister for Immigration and Multicultural Affairs, for a review of the decision under Pt 5 of the Migration Act 1958 (Cth). This decision was made in ignorance of a letter stating that the respondent was ill and would be unable to attend the hearing, and requesting an adjournment, which by an administrative oversight, did not come to the Tribunal's attention. A new hearing date was arranged. The Tribunal heard the respondent's explanation of the conduct which had resulted in the cancellation of his visa, accepted the explanation, and revoked the cancellation. The Minister brought proceedings in the Federal Court seeking the setting aside of the decision on the ground that the Tribunal ''had previously made a decision in respect of the same application and was functus officio''. The application failed. An appeal to the Full Court was dismissed. The High Court by majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that the Tribunal had power to make the second decision and dismissed the appeal by the Minister.
2. Gaudron and Gummow JJ at [51] said (with McHugh J at [63] agreeing): "[51] There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all …" (footnote omitted)
3. In Bhardwaj at [151] Hayne J said: "[151] In general, judicial orders of superior courts of record are valid until they are set aside on appeal, even if they are made in excess of jurisdiction. …" (footnote omitted)
4. In Craig the High Court considered the question of jurisdictional error and error on the face of the record arising out of an order staying an information in the District Court of South Australia upon counts of the larceny, receiving and arson of a motor car contrary to ss 131, 196 and 85(1) of the Criminal Law Consolidation Act 1935 (SA). The High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) said at 177-180: "An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction. Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. … In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error."
5. It is an established principle that the Tribunal exercises judicial power of the State of New South Wales when making orders under the RT Act: Attorney-General of NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 (Gatsby) at [125]-[137] (Bathurst CJ) (with Beazley P at [197], McColl JA at [198] and Leeming JA at [279] agreeing).
6. In Gatsby at [247] Basten JA said: "[247] … Finally, the power to recover possession of premises otherwise than pursuant to the procedures established by the Act is precluded by s 119 which is in the following terms: …"
7. The judgment in Bhardwaj has no bearing on the jurisdiction of the Tribunal as it is exercising judicial power and not making an administrative decision.
8. Having regard to principles in Craig at 177-180 and Gatsby at [125]-[137], I am not satisfied that there was any jurisdictional error made by the Tribunal. Most of the arguments of Mr Singh have been rejected by the Appeal Panel: Kaur v Sharma [2022] NSWCATAP 336 at [107]-[108], [113].
9. On its proper construction s 119 of the RT Act does not deprive the Tribunal of its jurisdiction of the enforcement of orders for possession under s 121 of that Act. On the contrary, as stated Gatsby at [247], the power to recover possession of premises otherwise than pursuant to the procedures established by the RT Act is precluded by s 119. It follows that the Tribunal has not been deprived of its jurisdiction because the residential tenancy agreement has been terminated.
10. If, contrary to my finding, the Tribunal fell into jurisdictional error in making orders 7 and 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order, then they are valid because they have not been set aside on appeal by the Appeal Panel or by the Supreme Court in the exercise its supervisory jurisdiction over the Tribunal.
11. I am not satisfied that its proper construction the power to issue a warrant for possession under s 121 of the RT Act is spent once the power has been exercised. The power is a discretionary and may be exercised provided the principal registrar is satisfied that the order for possession or a condition of suspension of the order has not been complied with.
12. For these reasons, I reject the submissions of the tenants that does not have jurisdiction to determine the 3 February 2023 Sharma CCD application.

Whether the tenants can impeach orders 7 and 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order

Introduction

1. Mr Singh advanced the submission that the Tribunal should not have made orders 7 and 8 of the 28 June 2022 CCD orders as varied because the premises were uninhabitable. He referred to the 85 page report of Mycotec Pty Ltd dated 15 September 2022 prepared by its Director and Principal Mycologist Dr Heike Neumeister-Kemp (the Mycotec report).

Consideration

1. The Appeal Panel refused to accept the Mycotec report in the appeal: Kaur v Sharma [2022] NSWCATAP 336 at [17]-[21].
2. It is an abuse of process to bring a proceeding in order to make a collateral attack upon an unappealed decision of a court, or upon a decision which, having been appealed, has been affirmed: Smits v Loel [2014] FCA 1341 at [67]; Smits v Loel (No 3) [2015] FCA 77 at [23(b)]; McLean v Power [2013] NSWSC 193 at [14]-[15].
3. The Singh/Kaur 21 February 2023 CCD application to the extent that Mr Singh and Ms Kaur rely on the Mycotec report to relitigate matters that have already been determined against the tenants constitutes an abuse of process, and should be dismissed.

Whether there should be a stay pending the determination of the Supreme Court proceedings

1. I am not satisfied that Mr Singh and Ms Kaur have established any ground to stay the 3 February 2023 Sharma CCD application pending the determination of the Supreme Court proceedings for the following reasons: 1. the 2022/00346122 proceedings, in which the relief sought by Mr Singh and the tenants if granted would restrained the Tribunal from exercising the power under s 121 of the RT Act to issue a warrant for possession of the premises in favour of the landlords, have been dismissed: Singh v Tidball [2023] NSWSC 96; 2. the landlords are entitled by virtue of orders 7 and 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order to possession of the premises subject to the granting of an extension of time for tier application for a warrant for possession under s 121(2) of the RT Act; 3. the Supreme Court has not stayed orders 7 and 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order or restrained the hearing of the 3 February 2023 Sharma CCD application.

Conclusion

1. For these reasons the 21 February 2023 Singh/Kaur CCD application should be dismissed.

Whether the time for making an application for a warrant for possession of the premises should be extended

1. As indicated by order 1 of the 6 February 2023 CCD orders, the 3 February 2023 Sharma CCD application has been treated as an application for an extension of time to apply for a warrant for possession of the premises.
2. The landlords submit that the time for making an application for a warrant for possession of the premises should be extended should be extended for the following reasons: 1. on 17 November 2022, when the Registrar issued a warrant for possession of the premises and sent it to the sent to the Office of the Sheriff of NSW, Mr Singh and the tenants commenced the 2022/00346122 proceedings; 2. on 8 February 2023, the Supreme Court dismissed the 2022/00346122 proceedings: Singh v Tidball [2023] NSWSC 96.
3. The tenants relied on the same submissions as they made in support of the Singh/Kaur 21 February 2023 CCD application.
4. I am satisfied that the time for making an application for a warrant for possession of the premises should be extended to 3 February 2023 pursuant to s 121(2) of the RT Act for the following reasons: 1. the tenants remain in possession of the premises; 2. on 17 November 2022, which was within the period of 30 days of the lifting of the stay of order 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order on 27 October 2022 by the Appeal Panel, Mr Singh and the tenants commenced the 2022/00346122 proceedings; 3. in view of the relief sought by Mr Singh and the tenants in the 2022/00346122 proceedings it was reasonable for the landlords not to comply with the requirements set out in the 17 November 2022 notice and not to apply for an extension of time for a warrant of possession until their determination.

Orders

1. I make the following orders: 1. the application for miscellaneous matters of Gurgit Singh and the first named respondent filed on 21 February 2023 is dismissed; 2. the time for the applicants to make an application for a warrant for possession of the premises is extended to 3 February 2023.

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

Amendments 18 August 2023 - Formatting amendments. 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: 18 August 2023