TICA Default Tenancy Control Pty Ltd (Appellant); Hilal Selvi (First Respondent); Gwenda Champness (Second Respondent) [2015] NSWCATAP 187

NCAT Appeal Panel|2015-06-23

Solicitors: Tomaras Lawyers (Appellant) South West Tenants Advice Service (First Respondent) No appearance (Second Respondent) File Number(s): AP15/29321 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Citation: Not applicable Date of Decision: 17 February 2015 Before: J Lennard File Number(s): RT 15/01631

REASONS FOR DECISION

These proceedings raise the question of whether a database, containing information sourced from court and tribunal lists on public websites, including names of individuals who are parties, is a "residential tenancy database" regulated by the Residential Tenancies Act 2010 (NSW). There is a further question as to whether the database operator was afforded procedural fairness in the hearing below, in circumstances where there was no appearance for that party at the hearing and there is evidence that it did not receive notice of the hearing.
The appellant ("TICA") brings this appeal from a decision of the Consumer and Commercial Division of the Tribunal made on 17 February 2015. The notice of appeal was filed on 22 April 2015. At a directions hearing of an Appeal Panel on 6 May 2015, an order was made that the time for filing the notice of appeal be extended to 22 April 2015.

BACKGROUND

TICA operates a number of databases for the use of its members. Members of TICA are able to search the databases by entering the name of an applicant for a residential tenancy agreement. It has approximately 6,550 members, most of which operate within the real estate industry.
One of the databases operated by TICA, the residential tenancy database, allows members to search information about whether an applicant for a residential tenancy agreement has previously caused damage to a rental property or vacated a rental property leaving behind unpaid rent or other unpaid charges.
Another database, the public record database, is compiled by TICA obtaining daily court lists from courts such as the Supreme Courts of New South Wales, Queensland and Victoria and daily tribunal lists from tribunals such as this Tribunal, the Queensland Civil and Administrative Tribunal and the Victorian Civil and Administrative Tribunal. It also includes bankruptcy records. All of this information is acquired from public websites.
TICA placed on its public record database the following information concerning the first respondent to the appeal, Ms Selvi: "Public Information - Bankruptcy records No bankruptcy records found with the name HILAL SELVI Public Information - VCAT & QCAT hearings No court records found with the name HILAL SELVI Public information - NSW CTTT/NCAT Hearings Hearing date Case number Entries involved ` Location 08/05/2014 RT 14/27549 HILAL SELVI vs. JOY CHAMPNESS GOULBURN 08/05/2014 RT 14/29220 Gwenda Joy Champness vs. Hilal SELVI GOULBURN" Public Information - NSW CTTT/NCAT Hearings Hearing dates Case Number Entities evolved Location 08/05/2014 RT 14/27549 HILAL SELVI vs. JOY CHAMPNESS GOULBURN 08/05/2014 RT 14/29220 Gwenda Joy Champness vs. Hilal Selvi GOULBURN" NSW CTTT/NCAT Record Information Report This REPORT is Private and Confidential and for your office Only Hearing date: 08/05/2014 Location: GOULBURN Case Number: RT 14/29220T TICA Removal Date: 08/05/2021 Claimants Gwenda Joy Champness Respondents Hilal Selvi Warning, the information on TICA's Public Record Database does not have unique identifiers such as Dates of Birth or Drivers License numbers. This information has been sourced from State and Federal Government Public Records throughout Australia where available. There may be a chance that the person displayed above is not the same person as your applicant therefore requiring further verification from your applicant by you. DO NOT HAND THIS REPORT TO THE APPLICANT NSW CTTT/NCAT Record Information Report This REPORT is Private and Confidential and for your office Only Hearing date: 08/05/2014 Location: GOULBURN Case Number: RT 14/27549 TICA Removal Date: 08/05/2021 Claimants HILAL SELVI Respondents JOY CHAMPNESS Warning, the information on TICA's Public Record Database does not have unique identifiers such as Dates of Birth or Drivers License numbers. This information has been sourced from State and Federal Government Public Records throughout Australia where available. There may be a chance that the person displayed above is not the same person as your applicant therefore requiring further verification from your applicant by you. DO NOT HAND THIS REPORT TO THE APPLICANT"
A person may apply to the Tribunal for an order under s 217 of the Residential Tenancies Act that the person's personal information be removed from a residential tenancy database, if personal information about the person has been listed in a residential tenancy database (Residential Tenancies Act, s 217(1)). The Tribunal may, in proceedings under the Residential Tenancies Act, make an order as to compensation, including loss or damage suffered by a person as a result of inaccurate, ambiguous or out-of-date information being listed about the person on a residential tenancy database (s 187(1)(d), (2)(c)).
Ms Selvi brought proceedings against the appellant and her landlord, the second respondent, seeking an order under s 217 of the Residential Tenancies Act that her personal information be wholly removed from TICA's public record database, and also seeking compensation under s 187 of the Residential Tenancies Act. She claimed that she had suffered a loss in relocating her personal belongings into a storage unit due to being unable to secure alternative accommodation as a result of the database listing. She said that information about her on the public record database was inaccurate, incomplete and ambiguous.
On 17 February 2015, the Tribunal held a hearing in the matter. The Tribunal's usual practice is to send a notice of hearing to the parties at the address provided by the applicant. Ms Selvi had provided the correct address for TICA. There was no appearance for TICA at the hearing.
The Tribunal made orders against TICA in TICA's absence. Those orders required TICA to pay Ms Selvi $732.15 in compensation pursuant to s 187(2)(c) of the Residential Tenancies Act, and required the following information on TICA's public record database to be wholly removed from it: "NSW CTTT/NCAT Hearings 08/05/2014 RT 14/27549 HILAL SELVI vs. JOY CHAMPNESS 08/05/2014 RT 14/29220 Gwenda Joy Champness vs. Hilal SELVI "
The Tribunal also made an order joining TICA as a party, but misnaming it as "TICA Default Control Pty Ltd." It is not clear why it was necessary to add TICA as a party, given that TICA had been correctly named as a respondent in Ms Selvi's application.
Following the appeal hearing, the Appeal Panel reviewed the documents concerning the proceedings below and found that Ms Gwenda Champness, who was a respondent to the application below, had not been named as a party to the appeal. This meant she had not had an opportunity to appear at the hearing or to make submissions. Pursuant to r 29 of the Civil and Administrative Tribunal Rules 2014 (NSW), the parties to the proceedings before the Tribunal at first instance are parties to an appeal from the Tribunal's decision.
The Appeal Panel directed the Registry to write to the parties, including Ms Champness, informing them of this situation and inviting them to make submissions concerning Ms Champness's participation in the proceedings. Ms Champness indicated, following this correspondence, that she did not wish to take part in the appeal. In these circumstances, it was not necessary to hold another hearing or give her a further opportunity to make submissions.

APPEAL GROUNDS

TICA raised a number of grounds of appeal, which are in substance two grounds. The first is that the Tribunal did not have jurisdiction to hear Ms Selvi's application because TICA's public record database is not a "residential tenancy database" within the meaning of the Residential Tenancies Act. The second ground is that TICA was denied procedural fairness because it did not receive notice of the hearing.

EVIDENCE

TICA adduced evidence in the form of two statutory declarations at the hearing of the appeal, which evidence described TICA's business, its databases and its non-receipt of the hearing notice.
Ms Selvi opposed the tender of the statutory declarations.
The Appeal Panel has allowed the tender of the statutory declaration of Philip Nounnis, the sole director and secretary of TICA, made on 1 March 2015, on the basis that it contains factual information relevant to whether the Tribunal provided TICA with procedural fairness. The Appeal Panel has also allowed the tender of the statutory declaration of Philip Nounnis, made on 19 May 2015, on the basis that it contains factual information relevant to whether the public record database is a regulated database in respect of which the Tribunal has jurisdiction under the s 217 of the Residential Tenancies Act. As in both cases the Appeal Panel is determining jurisdictional issues, evidence which goes to the Tribunal's jurisdiction is admissible on the appeal (see City of Enfield v Development Assessment Commission (2000) 199 CLR 135, Gleeson CJ, Gummow, Kirby and Hayne JJ at 145-146 [22] and 151 [38]; Gaudron J at 158 [59]-[60]).

JURISDICTIONAL ISSUE

In order to properly consider TICA's jurisdictional argument, it is helpful to set out the legislative scheme of Part 11 of the Residential Tenancies Act and some of its history. Part 11 is headed "Residential Tenancy Databases" and regulates the use and operation of residential tenancy databases.
The Residential Tenancies Act 1987, which preceded the Residential Tenancies Act 2010, did not include an equivalent of Part 11. Prior to the commencement of the Residential Tenancies Act 2010, there were some provisions regulating the conduct of real estate agents when listing a person on a tenant database in Sch 6A of the Property, Stock and Business Agents Regulation 2003 (NSW), but no provisions regulating landlords or database operators in relation to tenant databases. The Privacy Act 1988 (Cth) regulated the storage and use of personal information by "organisations" including individuals and corporations which were not "small business operators" - broadly being operators of businesses with an annual turnover of $3 million or less (Privacy Act, ss 6C, 6D).
In the second reading speech to the Residential Tenancies Bill 2010 (NSW), the Minister for Fair Trading and Minister for the Arts, Ms Virginia Judge, commented: "Part 11 of the bill will tighten the regulation of bad tenant databases. Any person listed on a tenancy database faces great difficulty in being accepted to rent a property. Such listings should, therefore, not be made lightly or for frivolous reasons. Importantly, part 11 of the bill will, for the first time, give the tribunal power to determine disputes and make orders in respect to listings. Currently, tenants have nowhere to go if they believe they have been wrongly or unjustly listed on such a database. Tenants who are knocked back when applying for a property because of the listing will need to be told how they can go about finding out what the database says about them. Part 11 has been based on uniform provisions developed in conjunction with all other Australian jurisdictions in recognition of the fact that tenancy databases operate across jurisdictions." (Hansard, 2 June 2010)
As indicated in the second reading speech, Part 11 of the Residential Tenancies Act contains a number of protections in respect of the personal information of tenants who are or may be named in a residential tenancy database. A landlord or agent may only list personal information about a person in a residential tenancy database where the person is a tenant who breached a residential tenancy agreement which has been terminated, where the breach caused the person to owe the landlord more than the rental bond, or the Tribunal has made a termination order, and the personal information identifies the nature of the breach and is accurate, complete and unambiguous (Residential Tenancies Act, s 212).
A landlord or agent who lists personal information about a person in a residential tenancy database must generally give the person a copy of the information and consider the person's submissions about it before listing it (Residential Tenancies Act, s 213). The landlord or agent must notify a database operator upon becoming aware that listed information is inaccurate, incomplete, ambiguous or out-of-date and the database operator must make the amendment or remove the information in accordance with the notice (Residential Tenancies Act, ss 214, 215). A landlord, agent or database operator must give a person any personal information about that person in a residential tenancy database which was listed by the landlord or agent or kept by the database operator, upon written request (Residential Tenancies Act, s 216). A database operator must not list personal information about a person in a residential tenancy database except at the request of a landlord or landlord's agent in accordance with Part 11 (Residential Tenancies Act, s 213(3)). A database operator may only keep personal information about a person in its database for a maximum period of three years (Residential Tenancies Act, s 218).
If a landlord or agent uses a residential tenancy database to assess a person's application to enter into a residential tenancy agreement, the landlord or agent is required to give the person a written notice concerning the use of that database and the person's rights to access and amend their personal information (Residential Tenancies Act, s 211).
Section 209 of the Residential Tenancies Act contains definitions for the purposes of Part 11 of that Act. The term "residential tenancy database" is defined in s 209 to mean: "a database: (a) containing personal information: (i) relating to, or arising from, the occupation of residential premises under a residential tenancy agreement, or (ii) entered into the database for reasons relating to, or arising from, the occupation of residential premises under a residential tenancy agreement, and (b) the purpose of which is for use by landlords or agents of landlords for checking a person's tenancy history to decide whether a residential tenancy agreement should be entered into with the person."
A "database" means "a system, device or other thing used for storing information, whether electronically or in some other form" (Residential Tenancies Act, s 209). There is no dispute that the public record database meets this definition.
"Personal information" means an individual's name or "information or an opinion, whether true or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion" (Residential Tenancies Act, s 209).

TICA's submissions

TICA accepted that its public record database contains "personal information" as it contains the names of individuals (including that of Ms Selvi). TICA argued, however, that the public record database met neither the description in paragraph (a) nor in paragraph (b) of the definition of "residential tenancy database." It was submitted for TICA that its public record database is a database containing certain limited publicly available information and not a residential tenancy database.
Mr Pike SC, for TICA, submitted that the definition of "residential tenancy database" was to be construed as part of the prohibitions contained in Part 11 of the Residential Tenancies Act (relying upon Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-82), and that regard must also be had to the mischief to which the provisions are directed. This mischief was, in Mr Pike SC's submission, to regulate the sharing of information regarding a person's tenancy history in the context of deciding whether to enter into a subsequent residential tenancy with a person.
Mr Pike SC submitted that the information that was sought to be regulated under Part 11 was information which would otherwise not be in the public domain because it concerned a private tenancy agreement. It was not to be presumed, Mr Pike SC said, that Parliament intended to regulate the provision of information that was otherwise legally in the public domain and able to be freely used.
It was also submitted for TICA that the definition of "residential tenancy database" should be strictly construed, because Part 11 contains penal provisions which use that term. For example, s 213(3), which provides that a database operator must not list personal information about a person in a residential tenancy database except at the request of a landlord or landlord's agent in accordance with Part 11, provides a maximum penalty of 20 penalty units for contravention of the provision. In Mr Pike SC's submission, Parliament could not have intended that a database operator would be criminally liable for listing personal information which was publicly available.

Reply to Appeal

Ms Selvi opposes the appeal on the grounds described in the following paragraphs.
Ms Selvi opposes the fact that the time for filing the appeal was extended on 6 May 2015. Ms Selvi submits that the appeal should have been filed no later than 12 March 2015 but was not filed until 22 April 2015. As the Appeal Panel made an order on 6 May 2015 at the call over of this appeal extending the time for the filing of the appeal, the issue is no longer one which this Appeal Panel is able to consider. However, had we been required to consider it, we would have granted leave. The period of delay was not long and there would have been an injustice to the appellant had leave been refused.
It was submitted for Ms Selvi that the database the subject of this dispute is a "residential tenancy database" as defined in s 209 of the Residential Tenancies Act. She also submitted that her personal information was listed on the database and that the listing relates to, and arises from the occupation of, residential premises under a residential tenancy agreement.
Ms Selvi further contended that the information listed in the database impacted on a landlord's or landlord's agent's decision to enter into a residential tenancy agreement. Ms Selvi submitted that the source of TICA's information (through court and tribunal hearing list searches) is not available to the parties to the proceedings, the general public or "learned persons" once the proceedings have been dealt with. She submitted that the information entered in the database is "not of usual public information", and that it is clear the listing relates to a residential tenancy dispute due to the "RT reference preceding the matter number" in listings of matters in this Tribunal or in the former Consumer, Trader and Tenancy Tribunal ("CTTT").
Ms Selvi submitted that the information on the database reveals that there has been a dispute between the parties concerning a residential agreement and that a person listed may be litigious.

Decision

There is no doubt that the definition of "residential tenancy database" is to be construed having regard to all of the provisions of Part 11, and to the broader statutory context. It does not inevitably follow, however, that Parliament only intended to regulate information which was not in the public domain.
The text of the legislation gives no indication that publicly available information is to be excluded from the definition of "residential tenancy database" or "personal information." On their face, the definitions apply equally to information which is publicly available and information which is known only to a limited number of people. As Hayne, Heydon, Crennan and Kiefel JJ commented in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47], in a passage which has since been frequently cited: "… the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy." (footnotes omitted)
It is therefore necessary to consider the context of the definition of "residential tenancy database" and the mischief the provision is seeking to remedy, in order to determine whether this indicates that the plain meaning, apparent from the text itself, should be read down or otherwise modified.
The contextual history of the definition of "personal information" suggests that Parliament deliberately chose not to exclude publicly available information from the definition. Part of the definition of "personal information" ("information or an opinion, whether true or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion") closely resembles the definition of the same term in s 4(1) of the Privacy and Personal Information Protection Act 1998 (NSW) and s 5(1) of the Health Records and Information Privacy Act 2002 (NSW) (being "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion"). The New South Wales privacy legislation excludes information in a "publicly available publication" or "generally available publication" from the definition of "personal information" (Privacy and Personal Information Protection Act, s 4(3)(b); Health Records and Information Privacy Act, s 5(3)(b)).
The definition of "personal information" in the Residential Tenancies Act also has some similarities with the definition of "personal information" in s 6 of the Privacy Act 1988 (Cth) ("information or an opinion about an identified individual, or an individual who is reasonably identifiable… (a) whether the information or opinion is true or not; and … (b) whether the information or opinion is recorded in a material form or not"). However, the Commonwealth privacy legislation does not exclude publicly available information from the definition of "personal information." As indicated above, the Commonwealth privacy legislation applies to the collection of and storage of personal information in a database by private entities which are not small business operators (Privacy Act, ss 6(1) (definitions of "APP entity" and "personal information"), 6C(1) (definition of "organisation"), 6D (definitions of "small business" and "small business operator"), 14(1), 15 and Sch 1, APPs 3, 5 and 11).
It is clear that the legislature had in mind the relationship between Part 11 of the Residential Tenancies Act and the Commonwealth privacy legislation, because s 218 aligns the time frames for which a database operator may keep personal information in a database with the time frames applicable under the Commonwealth privacy legislation. (The section has been amended to reflect changes to the Commonwealth privacy principles, but has always referred to the applicable principles).
The similarity between the language used in the definitions of "personal information" in the Residential Tenancies Act and the Privacy and Personal Information Protection Act, and the circumstance that the Privacy Act is explicitly referred to in Part 11, indicates that the legislature turned its mind to the interaction of Part 11 with State and Commonwealth privacy laws. In these circumstances, it may be inferred the decision to adopt the Commonwealth approach of not excluding publicly available information from the definition of "personal information" reflected a deliberate legislative choice, and that the Parliament's intention was to regulate such information.
The argument for TICA was not that the term "personal information" does not include publicly available information, but that the definition of "residential tenancy database" does not apply to a database comprising information which derives entirely from publicly available sources. The consideration that Parliament has not excluded publicly available information from the definition of "personal information" tends against this construction. Even if this were not so, we would not be satisfied that the definition does not apply to publicly-sourced information.
Contrary to TICA's position, its construction of the definition of "residential tenancy database" is not consistent with remedying the mischief with which the definition is concerned. While the definition of "residential tenancy database" is not an operative provision, and therefore does not itself directly remedy any mischief, it is nevertheless a key term in Part 11 of the Residential Tenancies Act. The mischief Part 11 is seeking to remedy includes the collection, storage and use of inaccurate, incomplete, ambiguous or out-of-date personal information about tenants on databases, the collection, storage and use of tenants' personal information on databases without the tenant's knowledge or ability to amend the information and the collection, storage and use of tenants' personal information where there is no sufficient justification for it (that is, where there has been no breach of an agreement by the tenant as described in s 212 of the Residential Tenancies Act). As the Minister for Fair Trading succinctly put it in the second reading speech, the purpose of Part 11 is to "tighten the regulation of bad tenant databases" and it can be inferred that the mischief sought to be remedied is, broadly speaking, "bad tenant databases."
TICA's description of the mischief addressed by Part 11 as the regulation of the sharing of information regarding a person's tenancy history properly describes a purpose of the Part, but not the mischief to which it is directed. It is consistent with a legislative purpose of remedying the mischief of "bad tenant databases" (broadly put), that the legislature regulates personal information contained in regulated databases, irrespective of whether the information was once in the public domain.
Nor are we persuaded by TICA's argument that Parliament could not have intended that a database operator would be criminally liable for listing personal information which was publicly available. TICA relied, for this submission, upon the presumption that penal provisions are strictly construed. However, as Gibbs J observed in Beckwith v The Queen (1976) 135 CLR 569 at 576, the "rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times." In Waugh v Kippen (1986) 160 CLR 156, Gibbs CJ, Mason, Wilson and Dawson JJ commented, in the context of interpreting legislation concerned with furthering industrial safety, that two principles of statutory interpretation potentially conflicted: one was the principle that such a provision should be interpreted to give the fullest relief the fair meaning of the language allowed, and the other was that any ambiguity in the construction of a penal provision may be resolved in favour of the subject. Their Honours observed: "If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have…"
Part 11 of the Residential Tenancies Act is, as Mr Pike SC acknowledged, beneficial legislation. Whilst the term "residential tenancy database" is used in some provisions imposing a penalty, it is also used in a number of other provisions which do not impose a penalty (such as ss 211, 212, 214 and 218). These are "remedial measures" passed for the protection of tenants. Having regard to all of the provisions of Part 11, there is no basis for construing the term "residential tenancy database" so as to exclude databases comprising information sourced from the public domain and thereby to deprive tenants of protections Parliament intended they should have.
Another difficulty with TICA's position is that there is nothing in the statute to indicate exactly how the provision would be read down or narrowly construed. Much of the information in TICA's public record database is derived from court and tribunal lists which appear on a public website for a short space of time and are then removed from public access. Should the provision be read down so as not to apply to information which is currently publicly available, or should it be read down so as not to apply to information which has been at any time publicly available? The lack of an obvious answer to this question supports a construction which gives the words their plain meaning.
It is then necessary to consider whether TICA's public record database falls within the meaning of a "residential tenancy database," having regard to the definition of that term in s 209 of the Residential Tenancies Act.
In our view, as Ms Selvi submitted, the public record database contains personal information relating to, or arising from, the occupation of residential premises under a residential tenancy agreement within paragraph (a)(i) of the definition of "residential tenancy database." This is because it contains the names of individuals (being personal information) in listings in this Tribunal with case numbers preceded by the letters "RT" which indicate that the proceedings are brought pursuant to the Residential Tenancies Act. The words "relating to" are, as Mr Pike SC acknowledged, of broad import. Almost all listings of residential tenancy matters in this Tribunal in which an individual is a party to the proceedings would contain personal information meeting the description in paragraph (a)(i).
Mr Pike SC conceded that if part of a database contained personal information meeting the description in paragraph (a) of the definition, and the purpose of the database met the description in (b) of the definition, then the database would be a "residential tenancy database" regulated by the Act, even if other parts of the database contained personal information which did not meet the relevant description. As indicated earlier, some of the information in the database relates to proceedings in other States.
We note that references to a matter or thing in the definition of "residential tenancy database" are to be interpreted, unless the contrary intention appears, as references to a matter or thing in and of New South Wales (Interpretation Act 1987 (NSW), ss 5(2), 12(1)(b)). Thus, the words "residential premises" are to be interpreted as referring to residential premises in and of New South Wales. Similarly the term "residential tenancy agreement" means an agreement in and of New South Wales. We do not consider there to be any contrary intention apparent in the Residential Tenancies Act.
A database is not a "residential tenancy database" unless it falls within both paragraphs of the definition in s 209 of the Residential Tenancies Act. In order to satisfy paragraph (b), its purpose must be "for use by landlords or agents of landlords for checking a person's tenancy history to decide whether a residential tenancy agreement should be entered into with the person."
Mr Pike SC submitted that the nature of the information obtained (being court and tribunal listings) and the manner in which it was obtained (internet searches) indicated that it had nothing to do with a person's tenancy history or the person's occupation of residential premises pursuant to a residential tenancy agreement. He said that a court or tribunal matter could be unrelated to residential tenancy matters, as is the case with criminal proceedings or bankruptcy proceedings.
It was submitted for Ms Selvi that the information contained in the public record database impacts on the decision of a landlord or landlord's agent to enter into a residential tenancy agreement. She said that, to any learned person, it was clear that a listing related to a residential tenancy dispute due to the "RT" reference preceding the matter number. Real estate agents, who use the database, would, in Ms Selvi's submission, be likely to know what this reference meant.
We agree, particularly as the forum hearing the dispute is also identified (ie "CTTT/NCAT"). These initials obviously refer to the Civil and Administrative Tribunal of New South Wales, commonly referred to as NCAT, and to its antecedent, the Consumer, Trader and Tenancy Tribunal or CTTT. Indeed the term NCAT has statutory recognition (see ss 4 and 7 of the Civil and Administrative Tribunal Act 2013 (NSW)). Until 1 January 2014, the CTTT had jurisdiction to make orders with respect to residential tenancy disputes and since that date NCAT has exercised such jurisdiction.
There is no dispute that the public record database is made available "for use by landlords or agents of landlords," being clients of TICA. It is also clear that its purpose is to assist agents in deciding whether a residential tenancy agreement should be entered into with a person. The warning which appears on the database refers to "your applicant" and in our view this reflects that the database is used in relation to tenancy applications. In one of his statutory declarations, Mr Younnis states that the public record database is "used as a tool that allows TICA members a possible point of contact to make further enquiries about an individual they may be looking for."
The remaining question is whether the purpose of the database is the use by landlords or their agents for checking "a person's tenancy history." It is clear that some parts of the database do not give any indication of a person's tenancy history. Bankruptcy records, for example, are generally not part of a person's "tenancy history" and court listings, without more, give no information about a person's tenancy history. However, as mentioned earlier, proceedings numbers concerning residential tenancy matters in this Tribunal and the former CTTT are preceded by the letters "RT" and those letters appear in the hearing lists and in TICA's database. Accordingly, as Mr Pike SC acknowledged, it is possible to identify such proceedings as being proceedings brought pursuant to the Residential Tenancies Act.
The word "tenancy" is defined (in s 3(1) of the Residential Tenancies Act) to mean "the right to occupy residential premises under a residential tenancy agreement." The phrase "tenancy history" and the word "history" are not defined. The word "history" should be given its ordinary meaning which includes, according to the Macquarie Dictionary, "the record of past events" and "the aggregate of past events." This means that the phrase "tenancy history" refers to the aggregate or record of past events concerning a person's right to occupy residential premises under a residential tenancy agreement. In our view, the circumstance that a tenant has been involved in litigation in the Tribunal during his or her tenancy, or after his or her tenancy in proceedings relating to that tenancy, is part of that tenant's "tenancy history." That, however, is not the end of the enquiry. It is necessary to consider whether the letters "RT," when appearing in a listing of proceedings of this Tribunal or previously of the CTTT in the public record database, signify that the proceedings relate to a person's tenancy history.
There are a large number of applications which may be brought in this Tribunal under the Residential Tenancies Act. A survey of the applications which may be made to the Tribunal indicates that most but not all of them involve a tenant and landlord as parties. They are as follows: 1. the Director-General or another person may apply for an order declaring that a specified agreement is, or is not, a residential tenancy agreement to which the Residential Tenancies Act applies or that specified premises are, or are not, premises to which the Act applies (s 11); 2. a tenant may apply for an order requiring a landlord to enter into a written residential tenancy agreement (s 16); 3. a tenant under a fixed term agreement for a fixed term of 20 years or more may apply for an order concerning terms of the agreement (s 20(3)); 4. a landlord or tenant may apply for an order that a term of a residential tenancy agreement is void or partly void (s 21(2)); 5. certain persons may apply for orders in relation to holding fees (s 25); 6. a landlord or tenant may apply for orders about condition reports (s 31); 7. a tenant may apply for an order that a rent increase or that rent payable under a residential tenancy agreement or social housing tenancy agreement is excessive (ss 44(1), 141(1)); 8. a landlord or tenant may apply for an order specifying the rent payable if rent is abated (s 45(1)); 9. a tenant may apply for an order requiring the landlord to repay rent or other amounts (s 47(4)); 10. a landlord may apply for an order authorising a person to enter residential premises (s 60(1)); 11. a tenant may apply for an order limiting the entry of the landlord or agent to residential premises, or requiring the landlord or agent to pay compensation (s 61); 12. a tenant may apply for an order against a landlord concerning repairs (s 65); 13. a tenant or a landlord may apply for an order concerning renovations or fixtures (ss 68, 69); 14. a landlord or tenant may apply for an order concerning locks or security devices (s 73); 15. a person who is occupying residential premises may apply for an order recognising that person as a tenant (ss 77, 79(2)); 16. a landlord may apply for an order terminating a residential tenancy agreement (ss 84(3), 85(3), 86(4), 87(4), 89(5), 90(1), 91(1), 92(1), 93(1), 94(1), 105, 108(3), 109(5), 147(1), 151(1), 154) or for an order revoking a termination notice (s 98(4)); 17. a landlord may apply for an order for possession (s 95(2)); 18. a tenant or co-tenant may apply for a termination order or for a declaration that a termination notice has no effect (s 101(4)), 102(1), 103(1), 109(5), 115(1)); 19. a landlord may apply for an order that the premises have been abandoned, for an order that a tenant pay compensation for loss caused by abandonment and for certain other orders if the tenant abandons the premises or dies (ss 106(1), 107(1), 133(2)); 20. A landlord or tenant may apply for an order in relation to a dispute about a termination notice (s 111(1)); 21. A former tenant may apply for the repayment of certain amounts (s 122(3)); 22. A landlord may apply for an order requiring the payment by the tenant of an occupation fee (ss 123(4), 132(6), 134(2)); 23. A tenant or former tenant may apply for an order vesting a tenancy over certain residential premises in the applicant (s 125(2)); 24. A tenant or former tenant may apply for certain orders against a landlord concerning goods (s 134(1)) and a former co-tenant may also apply for orders concerning goods (s 134(2A)); 25. A landlord, tenant or other person may apply to the Tribunal for an order as to the payment of a rental bond (s 175(1)); 26. A landlord, tenant or other person may apply for a range of orders including an order restraining any action in breach of a residential tenancy agreement, an order requiring an action in performance of a residential tenancy agreement and compensation (s 187); 27. A landlord or a tenant may apply for an order in relation to a breach of a residential tenancy agreement (s 191); 28. A landlord may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of a decision of the Director-General to give a direction under Division 3 of Part 10 (s 207); 29. A person may apply for an order concerning the removal from, amendment of or non-listing of personal information about the person which has been, or is proposed to be, listed in a residential tenancy database (s 217(1)).
The making of most of these applications by a tenant, or the circumstance of being a respondent to most of these applications in the capacity of a tenant is, as we have indicated, part of a person's tenancy history. However, parties to proceedings under subparagraphs (1), (5) and perhaps (29) of the above paragraph do not necessarily include a tenant. Thus, a person's name could appear in the public record database in a list of proceedings followed by the letters "RT," which do not concern anybody's tenancy history. Subparagraph (28) can be put to one side, as administrative review matters are heard in the Administrative and Equal Opportunity Division (Civil and Administrative Tribunal Act, Sch 3, cl 3(2)(c)) so are not given the letters "RT" when they are listed.
The circumstance that a person may be listed in the TICA's public record database because he or she was involved in proceedings in the capacity of a landlord, or that a person may appear in a listing in a capacity of neither tenant nor landlord, means that the public record database does not provide reliable information about a person's tenancy history. Nevertheless, as the great bulk of the applications described above concerning the powers of the Tribunal involve applications by tenants against landlords or applications by landlords against tenants, it would be reasonable for a landlord or agent to infer that the listing concerns a dispute between landlord and tenant under the Residential Tenancies Act.
When considering whether a database is a "residential tenancy database" within s 209 of the Residential Tenancies Act, its "purpose" is to be determined objectively. That is, it is not an agent's subjective purpose which is relevant. When an agent or landlord searches the database, the person who is the subject of the enquiry (the prospective tenant) will be in our view subject to the inference drawn by the person making the enquiry (usually the agent) that the record on the database discloses, or at the very least is likely to disclose, the person's history (or an aspect of it) as a tenant. It may also be inferred that a purpose of the database is for the use by agents for checking applicants' tenancy histories, even if the database is only the first step in the verification process and further enquiries need to be made after the database has been consulted.
Notwithstanding that the public record database does not provide any definitive answers about a person's tenancy history, we are of the view that a purpose of it is "for checking a person's tenancy history." This view is fortified by the words which appear following a search of the database, encouraging the landlord or agent to make further enquiries: "There may be a chance that the person displayed above is not the same person as your applicant therefore requiring further verification from your applicant by you." The warning indicates that it is intended for agents or landlords to carry out further checks on the subject of the search, with the warning being for the purpose of reminding the enquiring party that the name recorded may not be the same person as the person the subject of the enquiry. That further verification may involve talking to the prospective tenant, or consulting another of TICA's databases such as the residential tenancy database, which may indicate that the other party to the dispute was a landlord. Where the public record database does not include the name being checked by the landlord or agent, the landlord or agent may reasonably infer that the person has not been involved in a residential tenancy dispute in this Tribunal or the CTTT during the period covered by the database. This in itself is information about a person's tenancy history.
In our view, although the purpose of the public record database is broader than "for use by landlords or agents of the landlords for checking a person's tenancy history to decide whether a residential tenancy agreement should be entered into with a person" (being the purpose identified in s 209 in respect of the definition of "residential tenancy database"), it is still the case that one purpose is the purpose identified in s 209. This view is fortified by aspects of one of the statutory declarations provided by Mr Nounnis namely:

at paragraph 26 where it is stated that the public records database allows TICA members "a possible point of contact to make further enquiries about an individual they may be looking for";
paragraph 38 which states that the information collected from various court and tribunal lists is merely categorised to set out from which court or tribunal information was collected.
paragraph 5 which states that the majority of TICA's subscribers operate within the real estate industry.

For these reasons, we have reached the conclusion that one of the purposes of the public record database is the use by landlords and agents for checking a person's tenancy history to decide whether a residential tenancy agreement should be entered into with the person. However, the public record database has a number of purposes, including allowing agents and landlords to check whether a person has been involved in bankruptcy proceedings and to check whether the person has been a party to litigation in courts and tribunals other than the CTTT or this Tribunal. We now consider whether the definition requires the purpose to which it refers to be the only or the primary purpose of the database.
The legislature has chosen to use the definite article in characterising the purpose of databases to which the Residential Tenancies Act applies: a database "the purpose of which is for use by landlords or agents of landlords…" is regulated. The use of the definite article would ordinary indicate that only one purpose was contemplated. There is no guidance within the definition itself as to how the definition applies where a database has multiple purposes.
The word "the" has many functions, the primary function of which is as the definite article, but it may also import a word such as "only," the concept of "the whole" or, in a particular context, "any" (see Mahoney JA's discussion in Tinbar Pty Ltd v W T & M E Peterie Pty Ltd (in liq) (1982) 7 ACLR 111 at 114-115, cited by Macready AsJ in Wolff v Deavin [2012] NSWSC 1315 at [25]). In Wolff v Deavin, Macready AsJ rejected the submission that the definite article in the statutory expression "a member of the household of which the deceased person was a member" meant that a person could not be a member of more than one household at a time. Thus, the use of the word "the" does not necessarily import the singular or mean "the only."
As indicated earlier, the task of statutory construction must begin with consideration of the text itself (see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27). The plain and ordinary meaning of a word is only displaced in favour of a different meaning if such a construction is dictated by the context and purpose of the legislation. There is a statutory direction that a construction that would promote the purpose or object underlying the Act is to be preferred to one which would not (Interpretation Act, s 33). Further, at common law, a statutory provision is to be construed "so that it is consistent with the language and purpose of all the provisions of the statute" (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]).
If the definition of "residential tenancy database" were construed so that a database would not be caught by it if it had a number of purposes, only one of which met the description in the definition of "residential tenancy database," then it would be possible for a database operator to avoid the application of Part 11 of the Residential Tenancies Act by establishing the database for multiple purposes. It is unlikely that the legislature intended that such a database would not be a residential tenancy database. In addition, where a database included information about tenants and their history in a number of Australian jurisdictions, and the database was created for the use of real estate agents across Australia, it would not be a database the sole or principal purpose of which is "checking a person's tenancy history to decide whether a residential tenancy agreement should be entered into with the person." This is because "a residential tenancy agreement" means an agreement in and of New South Wales. Again, it is unlikely that the legislature intended a meaning which would allow national databases to escape regulation, at least insofar as they concern tenancies in New South Wales.

PROCEDURAL FAIRNESS

In one of his statutory declarations, Philip Nounnis stated that the first time he became aware of the proceedings below was when he received the notice of order from the Tribunal. He also gave evidence that all mail addressed to TICA is brought to him each morning for his attention.
Ms Selvi did not adduce any contrary evidence or challenge Mr Nounnis's evidence.
The Tribunal's file contains a copy of the notices sent to the parties (including TICA), advising of the hearing on 17 February 2015.
We are satisfied, from Mr Nounnis's evidence that, notwithstanding the record on the Tribunal's file, TICA did not in fact receive notice of the hearing. There is no dispute that it did not appear at the hearing. It follows that TICA was not given an adequate opportunity to be heard. For these reasons, the Tribunal made an error of law by proceeding in TICA's absence and its decision should be set aside.
The proceedings are remitted to the Tribunal for another hearing for the purpose of determining whether, and if so, what compensation should be paid to Ms Selvi.

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: 08 September 2015

Residential Tenancies Act 1987(NSW)

Property, Stock and Business Agents Regulation 2003(NSW)

New South Wales (Interpretation Act 1987(NSW)

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