Yazbeck & Yazbeck v Abreu, Abreu & Consumer, Trader & Tenancy Tribunal

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 District Court Act 1973

Dayeian v Davidson [2010] NSWCA 42 CASES CITED: Lazic v Pacey & Ors [2009] NSWDC 72 Obieta v Consumer, Trader and Tenancy Tribunal NSW (No 1) [2009] NSWCA 220 Obieta v Consumer, Tenancy and Trading Tribunal (No. 2) [2009] NSWCA 249

Maggie Yazbeck (first plaintiff) Milad Mark Yazbeck (second plaintiff) PARTIES: John Abreu (first defendant) Aida Abreu (second defendant) Consumer, Trader & Tenancy Tribunal (third defendant)

COUNSEL: Mr W Veitch (plaintiffs) Mr B Pluznyk (first and second defendants)

SOLICITORS: Joseph G Capogreco & Associates (first and second defendants)

1 As a preliminary issue the Court was required to consider whether it has the jurisdiction to grant the relief sought by the plaintiffs under s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001.

2 In the summons filed 23 February 2010, the plaintiffs relevantly seek the following relief: 2. An order in the nature of certiorari quashing the decision of the third defendant, Consumer, Trader and Tenancy Tribunal (CTTT), made on 23 November 2009. 3. An order in the nature of mandamus that the third defendant hear and determine the plaintiffs' claim.

3 This is clearly relief of a nature which falls within s 65.

4 When the matter was before me on 17 June 2010 I granted the plaintiffs' application for leave to amend the summons to include relief pursuant to s 67, being an order that the Tribunal decision be set aside or quashed on the basis of an error of law. The alleged error is referred to on p 3 of the summons.

5 The first and second defendants formally objected to the Court's jurisdiction whilst at the same time informing the Court of two authorities to which I will shortly refer which do not support their argument.

6 The CTTT was served with the summons. On 1 April 2010, the Crown Solicitor filed a submitting appearance in which it is stated that the third defendant submits to the making of all orders sought and the giving or entering of judgment in respect of all claims made save as to costs.

7 The Court indicated to the parties that the proper course was for the question of jurisdiction to be determined as a preliminary matter.

8 The two authorities to which the Court was referred were: - Obieta v Consumer, Tenancy and Trading Tribunal (No. 2) [2009] NSWCA 249 where, without actually deciding the question, the Court of Appeal considered that the question of whether the District Court can grant relief under s 65 cannot be said not to be reasonably arguable ; and - a decision of Judge Sidis of this Court, Lazic v Pacey & Ors [2009] NSWDC 72 where Her Honour considered that this Court did have jurisdiction under s 65.

65 Review by prerogative writ etc generally excluded (1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of: (a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or (b) a declaratory judgment or order, or (c) an injunction, in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter. (2) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the jurisdiction of the Tribunal to determine the matter was disputed if the ground on which the relief or remedy is sought is that: (a) the Tribunal gave an erroneous ruling as to its jurisdiction, or (b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed. (3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that: (a) the Tribunal had no jurisdiction to make the order, or (b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness. 10 Unlike s 66, which refers specifically to the Supreme Court, and s 67 which refers specifically to the District Court, s 65 simply refers to the court. There is a somewhat convoluted definition of court in s 22.

11 In Obieta v Consumer, Trader and Tenancy Tribunal NSW (No 1) [2009] NSWCA 220, Justice Basten said:

8 The CTTT Ac t preserves a right for an applicant to seek relief in the nature of the prerogative writs where the Tribunal is said to have made "an erroneous ruling as to its jurisdiction" or has denied a party procedural fairness: CTTT Act , s 65(2) and (3). Such relief is available pursuant to s 69 of the Supreme Court Act 1970 (NSW). The applicant sought to rely upon the powers referred to in s 65 of the CTTT Act and argued that they might be exercisable in the District Court. However, s 65 does not confer powers; it limits the availability of powers which are otherwise available. The applicant was not able to provide authority (by reference to the District Court Act 1973 (NSW), the Civil Procedure Act 2005 (NSW) or otherwise) for the proposition that the District Court had judicial review power and, in the absence of an identified source, it should not be assumed that that Court does have any such power. She referred to the power of the Court to grant ancillary relief, for example by way of declaration, but it is clear that that must be ancillary to some jurisdiction vested in the Court. 12 It is clear from this statement that s 65 does not confer on this Court jurisdiction which it otherwise does not have.

13 In Lazic, which preceded both Obieta decisions, Judge Sidis said:

13 Finally, in any event, I take the view that power to grant relief akin to a prerogative writ of certiorari has been conferred on this Court to permit the relief sought to be granted pursuant to s 65. Reference in that section to a court is not limited to the Supreme Court. In contrast, s 66 specifies the Supreme Court as the Court to which questions of law may be referred while proceedings continue and the District Court as the court to which appeals are to be brought. 14 Her Honour further observed in [14] that s 44 of the District Court Act 1973 confers on this Court jurisdiction in respect of actions which if brought in the Supreme Court would be assigned to the common law division of that Court.

15 In Obieta (No. 2), Justice Hodgson, with whom Justice Basten agreed, said:

9 It seems clear that applications for judicial review in the Supreme Court are assigned to the Common Law Division, except in relation to specified courts or tribunals referred to in s 48 of the Supreme Court Act 1970, which do not include the CTTT (see s 53 and cl 9 of the fourth schedule of the Supreme Court Ac t). Thus it might be argued that s 44 of the District Court Act 1973 gives the District Court jurisdiction to hear and dispose of an application for judicial review in relation to the CTTT.

10 There are some difficulties with that argument. "Action" is defined in s 4 of the District Court Act to mean action in the court, with certain exceptions; and it can be argued that it does not extend to applications for judicial review. That argument might be supported by statements in Cook v Head [1976] 1 NSWLR 176 at 180 and 185-187. Sections 76A and 77 of the District Court Act may also suggest that action in s 44 is limited to ordinary litigation of a kind that could possibly be tried with a jury.

11 On the other hand, the use of the words "if any" in relation to the amount claimed in s 44(1)(a)(ii) indicates that action is not limited to claims for money; and there is the consideration that if the District Court cannot give relief under s 65 of the CTTT Act, there are the procedural inconveniences referred to by Justice Basten in paras 6-9 of his earlier decision in these proceedings: see Obieta v Consumer, Tenancy and Trading Tribunal [sic][2009] NSWCA 220. 16 Their Honours then concluded in [12] that the question of whether the District Court can grant relief under s 65, as well as under s 67, is an important question which cannot be said not to be reasonably arguable and for that reason leave was granted to appeal strictly limited to that question. Counsel for the first and second defendants informed the Court that he had made inquiries of the Crown Solicitor's Office which indicated that no steps were ever taken pursuant to such leave.

17 After this Court reserved its decision, counsel for the first and second defendants drew the Court's attention to a more recent decision of the Court of Appeal, Dayeian v Davidson [2010] NSWCA 42. This was an appeal from the District Court which had determined under s 67 an appeal from the CTTT relating to a residential tenancy agreement.

18 Justice Campbell, with whom Justices Basten and Mcfarlane agreed, said at [38]:

38 Indeed, the bringing of an appeal under section 67(1) is inconsistent with alleging jurisdictional error in the proceedings below, (unless a jurisdictional question was raised before the Tribunal and decided by it (67(8)), which was not the case here). An appeal under section 67(1) proceeds on the basis that there has been a decision of the Tribunal with respect to a matter of law, and that the appellant contends that that decision is wrong. In contrast, an applicant for judicial review on the basis of jurisdictional error alleges that there has been a purported decision, that in the eyes of the law is not a valid decision because a legal requirement for exercise of the Tribunal's jurisdiction has been breached. When the appeal under section 67(1) lay to the Supreme Court, it was open to a litigant dissatisfied with a decision of the Tribunal to bring proceedings under section 67(1) and in the alternative seeking relief in the nature of prerogative relief, eg Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150; (2008) 72 NSWLR 44. Now that appeals under section 67(1) lie only to the District Court, which has no jurisdiction to make orders in the nature of prerogative relief, it will be necessary for a person dissatisfied with a decision of the Tribunal to analyse carefully the reasons for dissatisfaction, as those reasons will affect the choice of the appropriate forum in which to challenge the decision. 19 It follows from this statement that despite the statement of the Court of Appeal in Obieta (No 2) this Court does not have jurisdiction to grant the relief sought in [1] and [2] of the summons. The Court therefore orders that [1] and [2] of the summons be struck out.

20 The Court further orders that the matter be re-listed for hearing for determination of the relief sought under s 67. The Court also grants liberty to apply in relation to costs.

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