Vorhauer v NSW Land and Housing Corporation

Proceedings history

1. The proceedings had been listed for hearing before Harrison J on 5 December 2018. At that time, due to the failure of the plaintiff to appear, his Honour adjourned the matter and directed the first defendant to advise the plaintiff of the adjournment. He also directed that the first defendant file any application that it proposed to pursue, together with any evidence upon which it proposed to rely, and adjourned the matter to 25 February 2019.
2. Whilst a notice of motion was filed and apparently served by the first defendant, the documents served did not include any reference to a return date. I was informed by Counsel that an attempt was made to physically serve a very lengthy 700 page affidavit on Friday, 22 February 2019, the Friday before the hearing. That affidavit had been served by email the day before, although one wonders how a 700 page affidavit could properly be read by email. More importantly it was served too late to proceed with.
3. Given the lateness of its service, I indicated that I was not prepared to hear the first defendant's motion. In recognition of the inadequacy of the notice, the first defendant did not press its motion.
4. The matter proceeded to hearing on the merits of the plaintiff's appeal in her absence.
5. The summons was filed 15 months ago. This is ample time for the plaintiff to complete filing and service of the evidence upon which she relies. There were directions hearings and orders made to progress the matter in February, March, April, May, June, August and November 2018, some of which the plaintiff attended.
6. In May 2018, Button J as duty judge dealt with a Registrar's referral where there were submissions made as to the proceedings being dismissed because of the delays in prosecution by the plaintiff. The proceedings were not dismissed, but the plaintiff's need to actively pursue completion was made clear by Button J: see Vorhauer v NSW Land and Housing Corporation (Supreme Court (NSW), 7 May 2018, (unrep)).
7. I am satisfied that the plaintiff was aware that the matter was listed for hearing on 25 February 2019 and that it would be determined in her absence if she did not appear.

Evidence taken into account on the application

1. The summons included proposed orders, appeal grounds and some argumentative material which I read as submissions.
2. A Notice of a Constitutional Matter pursuant to s 68B of the Judiciary Act 1903 (Cth) was also filed.
3. Additional material I have taken into account, although really in the form of submissions rather than evidence, is the affidavit of the plaintiff filed 23 April 2018 which repeats a number of the matters set out in the summons and appends a number of documents relating to her tenancy agreement with the first defendant and the proceedings about it in NCAT.
4. Submissions filed later by the plaintiff contain a repetition of some of the earlier arguments. There is in the court papers a document styled "Amended Summons commencing an appeal" and "Amended Summons seeking leave to appeal pursuant to Pt 51B r 16". No leave has been sought in respect of the Amended Summons and neither document adds anything of substance to the plaintiff's appeal.

This appeal

1. The summons proceeds pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"): 83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. (2) A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings. (3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following: (a) an order affirming, varying or setting aside the decision of the Tribunal, (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court. (4) Without limiting subsection (3), the appropriate appeal court for an appeal against a civil penalty may substitute its own decision for the decision of the Tribunal that is under appeal. (5) Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision.
2. The effect of s 83(1) is that the plaintiff may, with leave, appeal on a question law to this Court against any decision made by the Tribunal, and this Court is then able to take a range of approaches if leave is granted namely affirming, varying or setting aside the Tribunal's decision or making an order remitting the case to be heard and decided again by the Tribunal, either with or without the hearing of further evidence.
3. Whilst the appeal grounds were difficult to follow, there were some issues identified that could comprise questions of law, although I have found on analysis that they are all misconceived.
4. The plaintiff seeks leave to appeal, (and an extension of time for filing of the appeal), an order that the whole of the judgment and orders of the Panel be set aside, that her tenancy be restored at $5 per week rental, as well as some ancillary orders about return of property left at the premises.
5. The plaintiff also seeks a declaration that: "the NCAT Tribunal do not have a judicial authority to authorise a Sheriff and NSW Housing staff to go to the premises and evict her as occurred on 11 May 2017."
6. The substance of the grounds of appeal seem to be: 1. As the NCAT Act has no date of assent, it is not an act that has any judicial authority because ss 58, 59 and 60 of the Commonwealth of Australia Constitution Act 1901 (Cth) ("the Constitution") have not been complied with; 2. The orders pursuant to which the sheriff acted to evict the plaintiff on 11 May 2017 were therefore without authority and were in effect a break and enter; and 3. NSWLHC has no legal status that can be exercised by an individual. It is not a corporation for such purposes, so the decision and orders of NCAT amount to an error of law.

Asserted Constitutional matters

1. Also filed is a Notice of Constitutional matter. The first matter appears to be based on an argument that clause one of the preamble to the Constitution, making reference as it does to the "blessings of Almighty God" and "the uniting of one indissoluble Federal Commonwealth under the Crown of the United Kingdom, establishing the Constitution", means that incorporated into the Constitution is the Holy Bible's instruction from the Parable of Christ and the Good Samaritan of helping the sick and homeless, that the first defendant has an obligation to build and pay for homes for the homeless and penniless.
2. The second constitutional argument also relied upon on Ground 1 of the Appeal is, that because the Act setting up NCAT does not have a date of assent, the only authority for an act of Parliament was not given.
3. The third constitutional argument is stated to be that because of s 77 of the Constitution, the Supreme Court cannot "overturn" the New South Wales Parliament's instructions on its website that the NCAT Act has no date of assent and therefore "is not a promulgated law." (Section 77 of the Constitution provides for the power to define jurisdiction.)
4. Fourth, this means that the sheriff issued a false instrument and acted fraudulently in removing her from the property because there has been no Court order, only a document from NCAT.
5. Fifth, the eviction based on the plaintiff having no money to live on and thus not being able to pay rent is illegal because it is in breach of policy given the Federal Attorney-General has rejected the plaintiff's Disability Support application, despite the fact that she is a disabled person, and so she should not have been evicted on 11 May 2017.
6. The relief sought was opposed by the first defendant, as was the grant of leave on the basis that the appeal does not raise a question of law and so granting leave would be futile. Whilst the grounds of appeal have a kind of internal logic, and arguably, and perhaps, tenuously raise questions of law, the grounds are not made out and the appeal must be dismissed for the reasons that follow.

Extension of time - late appeal

1. Part 50 r 3 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") requires an appeal to be filed within three months of the decision sought to be impugned. 50.3 Time for appeal (1) A summons commencing an appeal must be filed: (a) within 28 days after the material date, or (b) if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after the material date, or (c) within such further time as the higher court may allow. (2) An application for an extension of time under subrule (1) (c) must be included in the summons commencing the appeal.
2. The summons was not filed until 13 November 2017, three and a half months after the decision. The plaintiff explained her delay as follows. First, she says that she filed a Notice of Intention to Appeal in the Supreme Court on 20 June 2017. No such document could be located on the Supreme Court file or in JusticeLink. Documents tendered on the appeal include a Notice of Intention to Appeal attached to written submissions filed in NCAT in support of an application for an adjournment of the June 2017 Appeal Panel hearing. It is likely that is the document referred to in the submissions about delay. There is no evidence that it was filed in the Supreme Court.
3. Second, the plaintiff says that she has been moving from place to place since being made homeless and has pain and difficulties as a result of her injury and corrective surgery, so she was not able to prepare the necessary documents.
4. Third, she says that her mother, whom she sees as her legal representative, was having a "crisis with her diabetes" and was not well enough to attend to posting of documents. The plaintiff herself is not mobile and is dependent on a motorised wheelchair to travel to the city to post documents.
5. Fourth, the plaintiff was waiting for a subpoena (although I suspect this may actually be a reference to her summons) to be returned by post from the Court Registry. From what can be gleaned from the court file it seems that the plaintiff's summons was finally filed on 13 November 2017.
6. Fifth, the summons was returned by the Court Registry by post on 14 October 2017 with corrections that needed to be attended to and it was then sent back for filing and sealing.
7. It was argued that a failure to grant an extension of time would allow the first defendant to keep the plaintiff homeless and to keep her belongings, in circumstances where she had been evicted without proper judicial authority.
8. The first defendant argued that the explanation is inadequate and an extension of time should be refused, and also leave is futile because the matters will fail.
9. I would have granted an extension of time to the plaintiff to file her summons given her personal circumstances however, I refuse leave because the appeal is hopeless and granting leave to file out of time would be futile.

Constitutional question

1. The plaintiff claims that there are constitutional questions to be determined, the first defendant sent notices of the asserted constitutional questions to all the Attorneys-General pursuant to s 78B of the Judiciary Act. Responses were provided and tendered from each, stating that he/she did not wish to be heard on the asserted constitutional questions.
2. The plaintiff also filed a Notice that was broadly compliant with r 1.22(2) of the UCPR as it stated the nature of the Constitutional matter and the facts showing the matter is one to which subrule 1 relates, but the matters referred to in the plaintiff's Constitutional Notice are all self-evidently misconceived and I do not need to address them further.

This appeal

1. A Residential Tenancy Agreement was entered into by the plaintiff and the first defendant on 27 January 2012 for premises at Callaghan St, Wagga Wagga. Due to failure on the part of the plaintiff to pay rent, a notice of termination was served upon her on 31 October 2016. On 30 November 2016 proceedings for failure to pay rent were commenced in NCAT.
2. On 2 February 2017, NCAT proceedings confirmed that the agreement was validly terminated. NCAT made an order for possession, and suspended that order for three weeks until 23 February 2017.
3. On 23 February 2017, the plaintiff filed an application to set aside the orders that had been made on 2 February 2017. On 8 March 2017, NCAT made an order to stay the order for possession.
4. On 3 April 2017, NCAT dismissed the plaintiff's application to set aside the orders of 2 February 2017, and lifted the stay on the order for possession.
5. On 5 April 2017, the first defendant applied for an extension of time to make an application for a warrant for possession. On 20 April 2017, NCAT provided the extension. That same day, 20 April 2017, NCAT issued a warrant for possession.
6. On 3 May 2017, the plaintiff filed a notice of appeal in NCAT and sought a stay.
7. On 11 May 2017, the warrant for possession was executed and the furniture removed.
8. On 15 May 2017, the plaintiff's application for the stay was called over, and orders made for service of documents and submissions, as well as an order that the first defendant take no steps to re-let the property pending hearing of the appeal.
9. The plaintiff was provided with the opportunity to serve documents and submissions. She served a large bundle of material for the Appeal Panel ("the Panel") to consider.
10. Directions were made by the Panel on 22 May 2017 providing for preparation for the appeal and requiring the parties serve evidence including: "b. A statutory declaration or statement setting out: The rent payable under the residential tenancy agreement; The amount of rent paid and the date payments were made; The amount of rent outstanding (if any) as at 2 February 2017 and 3 May 2017 (being the date the Notice of Appeal was filed); The financial capacity of the appellant to pay any rent arrears, including a statement of income and expenses; Any evidence relevant to the exercise of any discretion to terminate the residential tenancy agreement including relating to the provisions of s 154 E of the Residential Tenancies Act, 2010 (if relevant); Evidence explaining why the appeal was lodged out of time or relating to why time should be extended"
11. The Panel also noted: "9. The Appeal Panel may, if the appeal is allowed, or in exercising any discretion applicable to the determination of the appeal, proceed to rehear or finally determine the application. Accordingly the parties should ensure that any witnesses provide written statements or statutory declarations and are available to attend (in person or by phone) to be cross examined."
12. Submissions and documents were lodged by the plaintiff in NCAT on 16, 18 and 19 May 2017. This material relied upon the plaintiff was tendered by the first defendant in these proceedings to illustrate what was in evidence before the Panel.
13. None of that material addressed the essential matters required by the Panel as clearly set out in its orders of 22 May 2017. There was nothing addressing the amount of unpaid rent, the financial capacity of the appellant to pay any rent arrears and there was no statement of income and expenses. All that was provided on the latter issue was a statement that if the appellant receives a disability pension she will be able to pay her rent arrears.
14. Other documents tendered by the plaintiff evidenced an ongoing dispute about the plaintiff's entitlement to a pension and thus raises doubt about whether and when that issue would resolve, as well as evidencing the prospect that it may well not resolve in the plaintiff's favour.

The Panel decision

1. The Panel granted leave to appeal the Tribunal's decision of 2 February 2017; Vorhauer v NSW Land and Housing Corporation [2017] NSWCATAP 159. The Panel acknowledged that the Tribunal wrongly failed to accede to an adjournment application by the plaintiff. Error was shown because the Tribunal: did not deal with the proceedings having been previously adjourned to allow further settlement discussions; no directions had been made for the filing of evidence; the appellant was in hospital and thus unable to attend and give oral evidence; and ongoing discussions between the parties as recently as 31 January 2017 about the appellant obtaining Centrelink payments were not properly taken into account [55].
2. The Panel concluded that the discretion to grant an adjournment had miscarried, because there was a conclusion made that in the absence of medical evidence to support the adjournment application, there was no adequate reason to adjourn the proceedings.
3. As concluded in [59] of the Panel's reasons, the fact that the appellant was in hospital meant that an adjournment should have been granted. The appellant was not afforded a reasonable opportunity to be heard by or to otherwise have her submissions considered in the proceedings as required by s 38(5) of the NCAT Act. That conclusion is, in my view, correct.
4. The Panel hearing proceeded with the plaintiff attending throughout by telephone. The plaintiff's mother Florence also attended by phone. The transcript of the Panel proceedings in evidence before me indicates that the issues were dealt with somewhat informally and cooperatively. The plaintiff gave oral evidence, and, in effect submissions were made by the plaintiff and also by her mother, Florence, on her behalf.
5. The Panel determined the appeal pursuant to s 81 of the NCAT Act: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
6. The Panel considered the history of the proceedings, the fact that the warrant for possession had already been executed and whether in all the circumstances there was any basis to set aside the orders made by the Tribunal [69].
7. The Panel took the view that in the absence of any evidence of capacity to pay the rent (as explored with the plaintiff in her oral evidence at the hearing before the Panel), the problem remained. No steps had been taken to seek other assistance to pay rent. The material before the Panel confirmed that the plaintiff was significantly in arrears. There was no evidence about capacity to pay or the capacity to enter into an instalment plan for payment of rental arrears [77].
8. The Panel concluded that setting aside the orders of the Tribunal of 2 February 2017 and remitting the matter for further hearing would serve no utility and would be contrary to the just, quick and cheap resolution of the real issues in dispute [84].

Decision

1. No error of law has been demonstrated. The Panel carefully reconsidered the evidence filed by the plaintiff and substituted its decision for the initial decision of the Tribunal, in circumstances where the plaintiff was given clear direction as to what issues needed to be addressed in her evidence and ample opportunity to file her evidence. The plaintiff participated in the proceedings by phone and was provided with further opportunity by the Panel to give evidence on salient matters.
2. The plaintiff's appeal grounds and her arguments articulated in her summons are wrong and misconceived and/or were not raised or argued before the Panel.
3. To the extent it needs to be said, the NCAT Act was assented to on 4 March 2013 after passage through the normal legislative channels. The plaintiff's perception that there was no assent is simply wrong. That disposes of any assertion that the Sheriff's actions were without authority.
4. The ground raised regarding the authority of individuals to act on behalf of the first defendant corporation is also misconceived, but because it was not argued before the Panel, no evidence was led at the Panel hearing about this. As submitted by the first defendant in its written submissions, had it been raised, the argument could have been met by calling evidence as to the job responsibility and seniority of the staff member who appeared as well as any instrument of delegation. To the extent that it is now raised, it should not be permitted to be argued. I agree with and accept this submission.
5. Again to the extent it needs to be said, the state legislature can and did make laws creating statutory bodies with legal personality and the first defendant is one such body pursuant to s 6(1) of the Housing Act 2001 (NSW). By virtue of s 50(1)(c) of the Interpretation Act 1987 (NSW), such a statutory body may take proceedings or be sued in its corporate name. Complaints and/or grounds of appeal now made by the plaintiff based on this asserted issue are also misconceived and so, are dismissed.

Costs

1. Rule 42.1 of the UCPR provides: 42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.
2. There is no reason to make any different order. The plaintiff's appeal has failed.

Orders

1. For the reasons given, I order: 1. Appeal is dismissed. 2. The plaintiff is to pay the first defendant's costs of the appeal.

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: 28 June 2019