Andy Soames v Department of Housing Ryde

[2005] NSWSC 1233

CITATION:	Andy Soames v Department of Housing Ryde [2005] NSWSC 1233
HEARING DATE(S):	15 June 2005
JUDGMENT DATE :	15 June 2005
JUDGMENT OF:	Latham J at 1
DECISION:	The proceedings commenced by way of summons filed by the plaintiff on 29 November 2004 are dismissed pursuant to Part 13 Rule 5(1)(a); the stay granted by Justice Hulme on 28 November 2004 is set aside; the costs of this motion and of the proceedings awarded to the defendant

CATCHWORDS:	Summary Dismissal of Proceedings - Absence of Standing
LEGISLATION CITED:	Consumer Trader Tenancy Tribunal Act
CASES CITED:	Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (New South Wales) (1964) 112 CLR 125, Webster & another v Lampard (1993) 177 CLR 598.
PARTIES:	Andy Soames Department of Housing, Ryde
FILE NUMBER(S):	SC 04/13942
COUNSEL:	Plaintiff- Self-represented Defendant - Mr AR Jungwirth
SOLICITORS:	Plaintiff - Self-represented Defendant - Legal Services Branch - NSW Dept of Housing

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

15 JUNE 2005

04/13942 ANDY SOAMES v DEPARTMENT OF HOUSING, RYDE

JUDGMENT

1 HER HONOUR: In the matter of Andy Soames and the Department of Housing Ryde, the defendant moves on a Notice of Motion filed on 21 April 2005 seeking the following orders:

One, that the proceedings be dismissed under Part 13 Rule 5(1)(a) of the Supreme Court Rules 1970. Alternatively, under Part 13 Rule 5(1)(b); and alternatively under Part 13 Rule 5(1)(C).

Secondly, in the alternative to the orders sought in prayer 1 the defendant seeks that the proceedings be dismissed on the basis that the plaintiff has no standing.

Thirdly, the defendant seeks the costs of this motion and of the proceedings.

2 The proceedings, the subject of prayer 1 in the Notice of Motion are those commenced by Summons filed by the plaintiff on 29 November 2004. The plaintiff seeks a permanent stay of the orders of the Consumer Trader and Tenancy Tribunal (CTTT) made on 30 September 2004 in proceedings between the New South Wales Land and Housing Corporation and Hiam Soames, the plaintiff's wife. Those orders terminated a tenancy agreement between the defendant and the plaintiff’s wife relating to premises at 4 Desmond Street Eastwood. The orders also gave possession of the premises to the landlord as and from 21 October 2004.

3 Further, the plaintiff's wife was ordered to pay the landlord $3,230.25 and a daily occupation fee of $17.17 as and from 1 October 2004 to the date of possession. These orders were made ex parte, there being no appearance by or on behalf of the plaintiff's wife.

4 Some explanation for the tribunal's orders in the absence of the tenant resides in Annexure B to the affidavit of Jo Eccleston filed on 21 April 2005 in support of the Notice of Motion. That annexure sets out the history of the proceedings before the tribunal. It is not necessary to relate that history in full for present purposes, save to say that it discloses repeated attempts by the tribunal to resolve outstanding arrears of rent by the payment of instalments between 4 December 2003 and 15 July 2004.

5 The plaintiff's wife was given the opportunity to prosecute an appeal in respect of her level of rent subsidy to the Housing Appeals Committee. That appeal was determined against her shortly prior to 30 September 2004. The tribunal's decision of 30 September 2004 noted as follows:

“The tenant has been afforded every opportunity to appear at the Tribunal and make submissions in respect of the matter. Although the Tribunal has no jurisdiction in relation to the subsidy matters the matter was not finalised until this issue had been completed in order to ensure the Tribunal was fully aware of the arrears prior to making a determination. The tenant is in breach of the order of the Tribunal of 4 December 2003, 6 May 2004, and the interim order of 15 July 2004."

6 I have been informed by the plaintiff in these proceedings that the plaintiff represented his wife throughout the tribunal's processes and in correspondence with the defendant for the purposes of those proceedings.

7 It is not disputed that given the informal nature of the tribunal's processes the plaintiff was entitled to do so; see section 36(2) of the Consumer Trader Tenancy Tribunal Act (2001). However, it should be noted that the plaintiff is not, and never has been, a tenant or authorised resident of 4 Desmond Street, Eastwood. The plaintiff is, in fact, a tenant of the defendant at other premises in Eastwood.

8 Following the orders of 30 September 2004 the plaintiff made two applications for a rehearing pursuant to s68 of the Consumer Trader and Tenancy Tribunal Act, both of which were refused. Section 67 of the CTTT Act allows for an appeal to this court by a party in the proceedings before the tribunal on a question of law. Whatever assistance the plaintiff rendered to his wife before the tribunal, he was not a party in the proceedings before it.

9 As noted above the plaintiff filed a Summons in this Court supported by an affidavit sworn by the plaintiff on 29 November 2004 and filed that same day. The Summons is unsupported by any further affidavits. The plaintiff's affidavit traverses the history of the proceedings before the tribunal. Annexure A to the plaintiff's affidavit is a statement, unsigned and not sworn, by the plaintiff's wife. That statement confirms that the plaintiff was assisting her in the proceedings before the tribunal and the Housing Appeals Committee. Both the plaintiff's affidavit and the annexures refer extensively to the plaintiff's and his wife's ill-health and the reasons for their non-appearance before the tribunal on 30 September 2004.

10 I note that the affidavit refers to 30 August but I accept that that is an error. I interpolate from this material, and the plaintiff's oral submissions before me, that he alleges a denial of natural justice. I anticipate that the same issue was canvassed by the tribunal in the course of the two applications under section 68. I do not have the benefit of those decisions but I do not regard them as necessary to the determination of the issues raised by the defendant.

11 The Summons filed by the plaintiff does not disclose any error of law on the part of the tribunal. It merely seeks a permanent stay without more. The jurisdiction to grant such a stay is exercised sparingly and only where it is necessary to prevent an abuse of process.

12 I can discern no abuse of process on the tribunal's part on the material before me. Nor does the summons assert one. In canvassing the absence of any triable issue on the face of the Summons, I have had regard to the principles governing the summary dismissal of proceedings; see Dey v Victorian Railways Commissioners (1949) 78 CLR 62, General Steel Industries Inc v Commissioner for Railways (New South Wales) (1964) 112 CLR 125, and Webster & another v Lampard (1993) 177 CLR 598.

13 It seems to me inescapable that the material before me is such as to justify a finding that the proceedings are hopeless in that they will inevitably fail if allowed to proceed, to paraphrase their Honours in Webster at pages 611 to 612. Such a finding is sufficient to grant the defendant the relief it seeks.

14 Yet there is a further basis justifying the dismissal of the plaintiff's Summons.

15 The plaintiff clearly has no standing in any proceedings against the defendant. He was never a party to any dispute with the defendant before the CTTT. The purported appeal against the tribunal's orders sought to be pursued by the Summons may be prosecuted by the plaintiff's wife, or in another person's name on her behalf where an order under Part 1 Rule 8 or Part 63 Rule 7 of the Supreme Court Rules has been made. No such orders exist.

16 Accordingly, I make the following orders:

1. The proceedings commenced by way of summons filed by the plaintiff on 29 November 2004 are dismissed pursuant to Part 13 Rule 5(1)(a).

2. The stay granted by Justice Hulme on 28 November 2004 is set aside.

3. The costs of this motion and of the proceedings are awarded to the defendant.

17 I note, for the purposes of any future proceedings taken by the plaintiff in this court, that the plaintiff appeared before me this morning for the purposes of defending the Notice of Motion. At 11 am I indicated to the parties that I would be in a position to deliver judgment at 2pm. After some discussion, wherein the plaintiff indicated that he would be inconvenienced by any further delay, the plaintiff acceded to the suggestion that judgment would be delivered at 2pm.

18 At 2pm there was no appearance by the plaintiff. Inquiries were made, or sought to be made, by counsel for the defendant. At 2.15, there being no appearance of the plaintiff, I delivered judgment in his absence.