[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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EX TEMPORE Judgment
THE COURT: Mr Mofeed Tanious seeks leave to appeal from a decision of a judge sitting in the Common Law Division of this Court: Tanious v NSW Land & Housing Corporation [2021] NSWSC 807. The primary judge refused leave to him to appeal from the decision of an Appeal Panel of NCAT, itself dismissing Mr Tanious' appeal from a decision of a member of NCAT ordering, on 4 November 2020, the issue of a warrant for possession requiring Mr Tanious to give vacant possession to the respondent, which is the owner of the social housing premises in which Mr Tanious had lived for some years.
At all stages Mr Tanious has appeared for himself. This is reflected in the formulation of the proposed grounds of appeal, which are as follows:
"1. On 30 Jun 2021 the Honourable Garling J from the Common Law Division / Supreme Court of New South Wales has refused leave for the appellant's Summons Commencing an Appeal and dismissed the Summons which appellant has filed on 24 February 2021. His Honourable Judge has supported the decisions all from the Tribunal below which accepted the certificate of Deemed Abandonment which was issued by Matt Grey, Deputy Registrar of the High Court of Australia from Sydney Registry which was dated on 1 September 2020. At the time a lot of suspicious surroundings the mentioned certificate, and it was accepted by the court and tribunals all below jeopardizing the appellant's right because the mentioned certificate itself can be considered as unreliable evidence and a sort of natural justice as there was no judgement from the Honourable High Court of Australia as well as no reasons of the decision for the mentioned certificate.
2. In Jun 2020 we all heard the public news about electronic invasion of the Honourable High Court of Australia website which could strongly have effect on faking the mentioned certificate because in March 2020 when the appellant has filed his case in that website as there was no other alternative in filing his case. At that time the appellant has noticed a lot of suspicious things have happened with his application while filing it with the help of an Asian officer has been working with the Honourable High Court of Australia at Sydney Registry computer at level 23 The appellant was able providing a lot of factual evidence in a form of emails and other verbal evidence confirming unreliability of the mentioned certificate supporting the natural justice from the side of the court and tribunals all below.
3. On 30/11/2018 in front of NSW Civil & Administrative Tribunal / the Appeal Panel in AP 18/42205 as well as on 21/11/2019 in front of the Honourable lerace J Supreme Court of NSW / Common Law Division in case number 2018 / 00391799 the respondent's representative has accepted not to take the home from the appellant. At the time on 29 / 3 / 2021 respondent under the police power has taken the home for the same reasons in the previous procedures all confirming the unreliability and the natural justice of the ways in which the appellant's eviction has happened in March 2021." [sic]
It may be noted that the grounds do not in terms allege any error on the part of the primary judge.
The primary judge identified the issue which had been debated before the Member and the Appeal Panel as whether proceedings commenced by Mr Tanious in the High Court of Australia had been abandoned. Mr Tanious contended before the primary judge, and seeks to contend in this Court in the event there is a grant of leave, that he has not abandoned an application for special leave to appeal. The primary judge pointed to a certificate in the following terms:
"CERTIFICATE OF DEEMED ABANDONMENT
I, Matt Grey, Deputy Registrar of the High Court of Australia, certify that the Applicant, MOFEED TANIOUS, has failed to comply with the provisions of Rules 41.03.1 and 41.03.2 of the High Court Rules 2004 and accordingly, pursuant to Rule 41.10.1(a), the application for special leave to appeal has been deemed to have been abandoned."
His Honour summarised the reasons of the Member and the Appeal Panel dealing with Mr Tanious' contention that his proceedings in the High Court had not been abandoned, and observed that it was a question of fact, not of law: at [23]. His Honour noted the presumption in the Evidence Act 1995 (NSW) in relation to public documents such as the certificate reproduced above. His Honour concluded at [24]-[26]:
"The Member was not satisfied by reference to the material before him that the special leave proceedings were still on foot. To the contrary, he was satisfied that they had been deemed to be abandoned. There was material before him which enabled him to come to that conclusion. The Appeal Panel was correct to hold that it was open to the Member to come to that decision. On the material before the Appeal Panel, it also determined that that decision was correct.
There is nothing placed before this Court on this first issue which causes me to have any doubt that the correct conclusion of fact was reached by the Member and by the Appeal Panel. There is no obligation on this Court to determine that question of fact afresh because any consideration of this issue is limited to considering whether there is any question of law arising from the Appeal Panel's decision on this issue. No such question of law exists.
The issue about the deemed abandonment is a question of fact, not of law. There was evidence available to the Member and the Appeal Panel to reach the factual conclusion to which they came. Accordingly, no question of law, or even any error, has been demonstrated with respect to that issue."
His Honour also addressed Mr Tanious' submissions relating to his request that the Court contact the High Court directly. His Honour determined that there was no error in NCAT failing to make an inquiry to the High Court. His Honour added, out of an abundance of caution, that insofar as Mr Tanious invited the Supreme Court to undertake enquiries, he declined to do so.
Nothing has been advanced by Mr Tanious to call into question either aspect of the reasoning of the primary judge. The focus of Mr Tanious' oral submissions in this Court has been his allegation that the certificate is a fake or at least that there have been suspicious circumstances attending upon it, but those submissions do not address the matter upon which Garling J relied, namely, that it did not give rise to a question of law. Both aspects of the reasoning of the primary judge are plainly correct.
Mr Tanious' written submissions were directed principally to the circumstances in which, subsequent to the decision of NCAT, he was removed from his home, as well as his claims that the certificate reproduced above was a fake. He elaborated upon those written submissions in his oral submissions today. The submissions are, with respect, a little difficult to follow. By way of example, they include:
"In Jun 2020 we all heard about public news of electronic invasion of the Honourable High Court of Australia website which could strongly have an effect on faking the mentioned certificate because in March 2020 when applicant has filed his case in that website because there was no another alternative in filing his case. At that time applicant has noticed a lot of suspicious things have happened with his application while filing it with the help of an Asian officer has been working with the honourable High Court of Australia at Sydney Registry computer at level 23." [sic]
Mr Tanious has elaborated upon this orally before us today.
Nothing in what has been put by Mr Tanious casts any doubt upon the orders made by the primary judge. Any appeal would be hopeless.
There are two other matters which may be mentioned by way of completeness. First, at one stage in his oral submissions Mr Tanious claimed that there was a failure to accord natural justice by the primary judge. That was not articulated in any way and insofar as may be seen from the materials before this Court, there was no such failure.
The second is that paragraph 8 of Mr Tanious' written submissions includes a sentence that Mr Tanious added to the orders sought from the primary judge:
"orders sought looked to live back again in the home which he was evicted from previously and financial compensation due to abuse of power from respondent and police in obeying default natural judgement ended by his eviction, intention vandalizing his vital belonging, and defamation which was neglected from the honourable judge below." [sic]
Submissions along those lines were also advanced by Mr Tanious orally today. There are submissions of 3 paragraphs dated 26 April 2021 (in fact they are annexed to an affidavit purportedly affirmed on 23 April 2021; how that came to be need not be resolved for present purposes) and further submissions of 8 paragraphs of 8 June 2021.
Mr Tanious is correct to state that this was not addressed by the reasons of the primary judge. The materials do not disclose whether Mr Tanious made any attempt to rely on those submissions when his summons seeking leave to appeal was heard on 30 June 2021. But even if he did, they plainly fall outside the scope of an appeal from NCAT, and outside the scope of his summons.
The summons seeking leave to appeal must be dismissed for those reasons. We note that the respondent does not seek costs. The order of the Court therefore is summons seeking leave to appeal filed 9 July 2021 dismissed.
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Decision last updated: 22 October 2021