Boscolo v Consumer Trader and Tenancy Tribunal
[2014] NSWSC 997
•23 July 2014
Supreme Court
New South Wales
Case Title: Boscolo v Consumer Trader & Tenancy Tribunal Medium Neutral Citation: [2014] NSWSC 997 Decision Date: 23 July 2014 Jurisdiction: Common Law Before: Hamill J (as Duty Judge) Decision: (1) The application for summary dismissal of the proceedings is refused.
(2) No order as to costs.
(3) The matter be listed with a degree of expedition.
(4) Any further evidence by either party be filed by Tuesday 19 August 2014
(5) Any further written submissions by either party be filed by close of business on Monday 25 August 2014.
Catchwords: CIVIL LAW - unrepresented plaintiff - summary judgment - summary dismissed - application for summary dismissal refused. Legislation Cited: Supreme Court Act 1970 (NSW) Cases Cited: General Steel Industry v Commissioner for Railways (1964) 112 CLR 125
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256Category: Procedural and other rulings Parties: Sylvia Boscolo (Plaintiff) Consumer, Tenancy and Trader Tribunal - Newcastle (Defendant) Representation - Counsel: Counsel:
Plaintiff (In Pers)
A Cornish (Defendant)- Solicitors: Solicitors:
Plaintiff (In Pers)
Department of Family and Community Services, Legal Services Branch, Housing NSW (Defendant)File Number(s): 2013/327388 Publication Restriction: Nil
EX TEMPORE JUDGMENT
HAMILL J: There are before me four related applications. The first are proceedings under a summons filed by the plaintiff, Sylvia Boscolo on 1 November 2013. That summons seeks in effect to quash orders made by the Consumer, Trade and Tenancy Tribunal made on 16 and 30 October 2013 and that a new hearing as sought in the summons be granted.
The second application arises from an amended summons filed on 21 July 2014. That summons seeks a number of matters and in particular it seeks, inferentially at least, the quashing of an order of the Tribunal dismissing an application for re-hearing on 24 March 2014. Secondly, it seeks some form of relief in the sense that Housing New South Wales be forced to provide a property which is reasonably fit to live in and at a reasonable rent and third, that an alternative property be offered to the plaintiff.
The third application before me is an application for summary dismissal of what I take to be both of those summonses or, if the latter amended summons supersedes the first, then the amended summons. The application for summary dismissal comes before me by way of a notice of motion filed on 17 April 2013.
The fourth related application is an application made by the plaintiff this morning for an adjournment of the proceedings.
I will deal with the applications in reverse order. I have already indicated earlier today that I propose to refuse the application for an adjournment of the application for summary dismissal and I gave some reasons for that refusal.
The history of the matter is such that the application for summary dismissal, whatever be its merit, was clearly set down today to be heard and determined by the Duty Judge and I proposed to deal with it. Earlier today, I indicated an inclination to refuse to adjourn the final hearing of the summons or summonses as well. However, after coming to that conclusion, the plaintiff indicated that she was not aware that those matters were in the list today for final hearing and the defendant by its counsel, Mr Cornish, conceded that in view of the history it was likely that the plaintiff was not so aware. As a result I revised my conclusion in relation to those matters and, if the application for summary dismissal is unsuccessful, then I would propose to adjourn the final hearing of the summons.
On the other hand if the application for summary dismissal is unsuccessful, plainly that application becomes otiose because the summonses themselves will have been dismissed.
To understand the application for summary dismissal, it is necessary to put on the record the evidentiary material that has been placed before me. The evidentiary material comes in the form of two affidavits by the plaintiff dated 1 November 2013 and 21 July 2014.
The defendant relies upon two affidavits of Mr Cureton filed on 17 April 2014 and 23 June 2014. Those affidavits disclose the fact that the plaintiff has the benefit of assisted housing provided by the second defendant. She has lived in the subject premises since 2013.
The plaintiff lives with her daughter and on the evidence before me her daughter is an extremely sick person. The applicant also has some responsibility for her son. It is reasonable to say that the plaintiff has many stresses in her life.
In her affidavit filed 21 July 2014, the plaintiff sets out the circumstances in which she came to live in the subject premises. I do not propose in this judgment to give an address for those premises in the interests of the plaintiff's privacy. What she says is that she inspected the property in early January 2013 and advised the representative of Housing New South Wales that certain repairs needed to be made to the property, specifically in relation to the toilet and a broken window. She asked Housing New South Wales' representative to address those repairs before she moved in. The repairs however were not attended to. The plaintiff says that she was never advised that the property would be subject to renovation or repair after she moved in to the premises.
Against that background, the plaintiff says she is confronted by repeated attempts by Housing New South Wales to enter the premises and arrange for tradesmen whom she, the plaintiff, does not know, to enter into the premises and to effect repairs and/or renovations.
I am told by Mr Cornish that the repairs in question are relatively minor repairs to the kitchen but that Housing New South Wales also wants to inspect the premises in order to ascertain the state of repair of the premises more generally and if an urgent repair is necessary they would seek to effect such repairs.
Because of the illness of the plaintiff's daughter and other stresses in her life, the plaintiff has resisted attempts by Housing New South Wales to enter the premises and it is that matter which causes the parties before me to come into conflict. That conflict has not been capable of resolution by discussions between the parties, a matter of some considerable concern to me.
I do not understand how the plaintiff can maintain a position that she has the right to refuse entry to the defendant. Equally I cannot understand how the Public Housing Corporation does not see that she has a right to quiet enjoyment of her land and that if there is to be inspections or renovations, her convenience should be met and the illness of her daughter taken into account.
In any event it is not the jurisdiction of this Court to consider the merits of such arguments and I do not propose to enter into that debate other than to urge the parties to consider whether or not they might not sensibly negotiate an outcome rather than resorting to the Tribunal and the courts.
The defendant in this court did in fact resort to litigation when it brought an application in what I gather was still the Consumer Trade and Tenancy Tribunal and which is now the New South Wales Consumer and Administrative Tribunal for orders seeking or obtaining access to the premises. As a consequence of their application, orders were made on 16 October 2013 in the following terms:
"1. By consent the Tribunal authorised the landlord, New South Wales Land and Housing Corporation - area admin or the landlord's authorised contractor to enter the residential premises at 12 pm on 30 October 2013 for the purpose of inspecting the residential premises for maintenance, repairs or health and safety and fitting or inspecting smoke alarms.
2. By consent the tenant is not to obstruct the landlord in carrying out these orders.
3. By consent if the landlord cannot gain access to the residential premises on the date agreed or in accordance with the above order the landlord or their representative may engage a locksmith to gain entry to the premises and the locksmith alters the locking device the landlord is to provide a copy of the door opening device to the tenant immediately.
4. The applicant's name is amended, the applicant being what I have previously described as Housing New South Wales."
Those orders, as will be seen on their face, were made by consent and in the presence of the plaintiff.
Notwithstanding that they were made by consent the plaintiff subsequently sought a review of the orders. Obviously as I understand the chronology the Tribunal's name had been changed. Both parties are agreed I think at least that the name of the relevant administrative tribunal is not a matter of moment.
The application for review itself developed a chequered history and on 24 March 2014, NCAT made an order dismissing the application for review. The reasons given for that dismissal were these:
"There is no appearance of applicant by 11.35 am, no satisfactory explanation for non-attendance has been given to the Tribunal."
As best I can understand, the summons and amended summons challenge both the earlier consent orders and the refusal to adjourn and consequent dismissal of the application for review.
The plaintiff appears before me unrepresented. She has had the assistance of the Registrar in drafting some of the documentation before me. I take it that the unrepresented plaintiff is seeking orders in the nature of relief under s 69 of the Supreme Court Act1970 (NSW) and perhaps also s 65.
In any event what she seeks is a quashing of the orders and she has clearly said to me today she wants the matter to go back to the Tribunal so it seems that she is seeking orders in the nature of certiorari and mandamus.
Mr Cornish, who as I have said appears for the second defendant and has undertaken his task in the finest traditions of the bar, agrees or submits that rather than dwell on the precise nature of the summons I should consider the matter as one of substance.
Mr Cornish has filed, if I can say so with respect, helpful and compelling written submissions as to why the plaintiff's summonses should be dismissed.
He relied amongst other things on the fact that the original orders were made by consent and in the plaintiff's presence. He also relies on the fact that there is, or may be, available to her internal review processes and appeal and that any review sought by the plaintiff is of a discretionary kind and the fact that there exists other processes of review would lead the Court to exercise any discretion as to whether to grant the relief adversely to the plaintiff.
I have reached the opinion that there is considerable if not enormous force in Mr Cornish's submissions in respect of the second defendant's application for summary dismissal in respect of almost all of the grounds that I perceive the plaintiff relies upon.
However an application for summary dismissal is an application that cannot be dealt with lightly and the tests that have been formulated by the courts over the years are stringent ones.
I refer to the High Court decision in General Steel Industry v Commissioner for Railways (1964) 112 CLR 125 and Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256.
The kinds of phrases that are used are that the plaintiff's claim must be taken at its highest and must be "so obviously untenable that it cannot succeed", "manifestly groundless" and "discloses a case which the court is satisfied cannot proceed." In Batistatos v RTA the High Court reiterated that that those phrases must be given their full effect. The Court and urged upon courts exercising the kind of jurisdiction that I am here invited to invoke the proposition that cases ought not to be decided in a summary way other than in the clearest of cases.
I return then to one aspect of the amended summons which has caused me concern and which I raised with Mr Cornish in the course of the submissions this morning.
The first ground of relief, as I read the amended summons, concerns the refusal of an adjournment application by the Tribunal on 24 March 2014. I have already referred to the order made that day and I should indicate that the reason for the dismissal of that application was that "There is no appearance of applicant by 11.35 am. Unsatisfactory explanation for non-attendance has been given to the Tribunal."
The plaintiff in her affidavit of 21 July 2014 provided the court with a letter that she sent to the Tribunal which bears the date 24 March 2014 in which she asked for the matter to be adjourned on the basis of her ill-health and also seeks time to provide documents.
She also provided a receipt from Officeworks at Glebe which I am prepared to accept by inference shows that she sent that letter by facsimile between about 10 am and 10.14am on 24 March 2014.
Again Mr Cornish acting with exemplary fairness said at least for the purposes of his application for summary dismissal that he could not say that document had not been received at least somewhere in the Tribunal.
Attached to the applicant's letter were two medical certificates indicating that the plaintiff was unfit to attend the Tribunal hearing on the relevant date.
The order of the Tribunal dismissing the application for review indicates, as I have said, that there was no appearance at 11.35 am. That tends to suggest, if one accepts the Officeworks receipt as indicative of the time that the facsimile was sent, that by the time the application was dismissed the Tribunal ought to have been aware of the fact that an application had been made.
When I raised the matter with Mr Cornish he made a cogent submission that looking at the precise terms and the reasons for dismissal, one should infer that the Tribunal had taken into account the application for an adjournment and the medical certificates, and had proceeded to dismiss the matter anyway.
If that is so, the decision would not be readily amenable for judicial review. It is not for this Court on the application for judicial review simply to re-exercise a discretion which exists in the Tribunal below, let alone to entertain an exercise in parsing the language used in short reasons or to review decisions such as this with an eye attuned to error.
What is put by the second defendant in this regard is that the words "satisfactory explanation" disclose that the Tribunal was aware that there was an explanation but it concluded that it was not a satisfactory one. That submission may find favour with a judge ultimately resolving this case but, on an application for summary dismissal, I do not think I can engage in that sort of inferential reasoning.
As I said in argument, it is one thing if the Tribunal had said, "We have taken into account the medical certificate and medical history of the matter, we have decided to dismiss the application because we do not find that explanation satisfactory." As I say, it may be that ultimately a judge will take the view that an argument made by Mr Cornish should be accepted and that the application, insofar as it is based on the refusal to adjourn should also be rejected.
I say "also" because, as I have already said, much of the claim made by the plaintiff appears to me in the limited time that I have been able to assess it, to be, at the very least, difficult to sustain if not destined to fail.
In any event, because of the concerns that I have in relation to the refusal to adjourn, I am unable to come to the conclusion that the plaintiff's summons is manifestly groundless or discloses a case which cannot succeed or is so obviously untenable that it cannot succeed.
Nothing in what I have said should be misinterpreted by the plaintiff as suggesting that I think her case has any particular merit. It is simply that the test for dismissal is such a high one and I am not satisfied that that test has been met.
I would urge her to, if possible, resolve the matter with Housing New South Wales and I note that an offer has been made openly in court today and that offer appears to me, at least at first blush, to be a very reasonable one and I would urge the parties to continue discussions to come to some sensible resolution rather than to continue to engage in litigation.
As the plaintiff well knows, litigation is time-consuming and she is time poor; it is stressful and she has enough stress in her life. For those reasons, I make the following orders:
(1)The application for summary dismissal of the proceedings is refused.
(2)No order as to costs.
(3)The matter be listed with a degree of expedition.
(4)Any further evidence by either party be filed by Tuesday 19 August 2014
(5)Any further written submissions by either party be filed by close of business on Monday 25 August 2014.
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