Coe v Residential Tenancies Tribunal

[1999] NSWSC 617

CITATION:	Coe v Residential Tenancies Tribunal & Anor [1999] NSWSC 617 revised - 06/07/99
CURRENT JURISDICTION:	Administrative Law Division
FILE NUMBER(S):	30006/99
HEARING DATE(S):	22 June 1999
JUDGMENT DATE:	22 June 1999
PARTIES :	Isabell Edith Coe (Plaintiff / Respondent on Notice of Motion) Metropolitan Local Aboriginal Land Council (Second Defendant / Applicant on Motion of Motion)
JUDGMENT OF:	Dunford J

LOWER COURT JURISDICTION:	Residential Tenancies Tribunal
LOWER COURT FILE NUMBER(S) :	98/19164
LOWER COURT JUDICIAL OFFICER:

COUNSEL :	Ms Gillespie (Plaintiff / Applicant) Mr Murr SC (Second Defendant / Respondent)
SOLICITORS:	Woolf Associates (Second Defendant / Respondent)
CATCHWORDS:	LANDLORD AND TENANT - Residential Tenancy Agreement - Non-payment of rent - Powers of the Local Aboriginal Land Council.
ACTS CITED:	Residential Tenancies Act 1987 Aboriginal Land Rights Act 1983
DECISION:	Summons dismissed.

THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION
DUNFORD J
TUESDAY 22 JUNE 1999
30006/99 - Isabell Edith COE v Residential Tenancies Tribunal & Anor
JUDGMENT

1 HIS HONOUR: This is an appeal pursuant to s 107(2) of the Residential Tenancies Act1987 (the Act) from a decision of the Residential Tenancies Tribunal (the Tribunal) dated 16 December 1998. 2    By that decision the Tribunal made an order for the termination and possession of premises at 8 Porter Avenue, Marrickville, and ordered the present plaintiff to pay to the second defendant, the Metropolitan Local Aboriginal Land Council, $6,795.60 on account of rent to that date, payable by instalments of not less than $100 per week, the first payment on 30 December 1998 and a daily occupation fee at the rate of $8.57 per day from 17 December 1998 until the date on which the possession should be given. 3    The original summons was filed on 19 January this year and on 2 March an order was made that execution of the order of the Tribunal be stayed, and that order has been extended from time to time. 4    The defendant, on 23 March this year, filed a notice of motion seeking summary judgment pursuant to SCR Pt 13 r 5 and that is the motion that is before me for hearing today. 5    There have been a number of adjournments in the past because Miss Coe has not been able to arrange adequate legal representation, and on a number of occasions my Associate has received messages that the counsel then involved was not available on the particular day. Accordingly, on 1 June I indicated that the matter would proceed today irrespective of Miss Coe's representation, and today she has been represented by Miss Gillespie, who has not previously been in the matter. 6    Miss Gillespie sought an adjournment, but in view of the length of time that the matter had been outstanding and as the reasons of the Tribunal were available and the only appeal is on a matter of law, I refused the adjournment. 7    No grounds of appeal are set out in the Summons, but two affidavits have been filed by the plaintiff; one dated 12 March 1999 and the other one dated today. In her earlier affidavit the plaintiff said that she was raising two legal issues as questions of law:

"(1) Whether a victim of government genocide is entitled to a maintained dwelling for that victim and that victim's family from that government for life as immediate minimum compensation/reparation by the genocidist government for acts of genocide ...

...

(2) Whether a Local Aboriginal Land Council within the meaning of the NSW Aboriginal Land Rights Act 1983 - or any other Land Council, including the NSW State Aboriginal Land Council - has the legal jurisdiction to evict an Aboriginal Member of such a Council from her dwelling (including the jurisdiction of the Residential Tenancies Tribunal to extinguish Aboriginal people's rights to their country)."

8 One might have thought that the issues sought to be raised on the appeal were, therefore, rather clear. However, Miss Gillespie has raised a number of other points as the matter has proceeded and, without intending any disrespect to her, it appears to me that those points have been constantly changing during the course of the hearing. 9 I deal first with the two points raised in the original affidavit. The plaintiff is an Aboriginal and Mr Murr SC who appears for the second defendant, is prepared, as he must be for the purposes of this application, to concede in favour of the plaintiff, the historical facts to establish that genocide of the Aboriginal race can be made out and that the plaintiff, as a victim of such genocide, is entitled to compensation of some kind against some entity. 10 However, even having regard to those concessions, there can be no suggestion that any such alleged genocide has been the responsibility of the present defendant, the Metropolitan Local Aboriginal Land Council, or any predecessor of such Council for whom it is responsible or any Aboriginal authority whatsoever. The genocide is referred to in the plaintiff's affidavit as "government genocide"; such alleged genocide has been committed by people other than Aboriginals; namely, people of European descent or extraction, and any remedy for compensation or otherwise must be the responsibility either of the Federal or the State Government or of some people of European extraction or background, or their descendants. 11 It follows that the failure of the Tribunal to have regard to such alleged genocide in the proceedings before it did not constitute an error of law. 12 The second point raised in the plaintiff's affidavit is to the effect that a Local Aboriginal Land Council has no power to evict an Aboriginal member of such a Council from her dwelling and, therefore, the Tribunal has no power to terminate a residential tenancy of an Aboriginal person from a Local Aboriginal Land Council or to make an order for possession in respect of the premises the subject of such a tenancy agreement. 13 The plaintiff has an immediate difficulty because she has always claimed the right, and has taken proceedings in the Tribunal, which have been partly successful, to obtain a rent reduction or compensation from the defendant on account of the defective state and condition of the premises. She in fact recovered $4,530.85 in this regard. 14 Furthermore, it is clear, in my opinion, that a Local Aboriginal Land Council does have power to evict an Aboriginal member of the Council if such person is in breach of the terms of a residential tenancy agreement, particularly if in breach of the obligation to pay rent pursuant to such agreement, which was the ground on which this plaintiff's tenancy agreement was terminated and an order for possession made. 15 Section 40B(2)(a) of the Aboriginal Land Rights Act 1983 expressly provides:

"A Local Aboriginal Land Council may, subject to the provisions of any other Act and with the approval of the New South Wales Aboriginal Land Council:
(a) lease or change the use of land vested in it ...
...
but only if the lease, change of use or the grant or release of the easement has been approved at a meeting of the Local Aboriginal Land Council specifically called for that purpose at which a quorum was present."

16 In my view, the power to lease land vested in the Local Aboriginal Land Council carries with it a right to terminate such a lease if there is a breach of any of the obligations under such lease, and this power is reinforced by s 41 which provides that, subject to the Act, an Aboriginal Land Council may do or suffer in relation to its property any act or thing that it could lawfully do or suffer if it were a natural person. A natural person having an estate in fee simple with a power to lease has the power to terminate such lease on the ground of non-payment of rent; so an Aboriginal Land Council would have the same right. 17 This issue was fairly raised before the Tribunal and is dealt with in the Tribunal's Reasons. I can see no error of law in the manner in which the Tribunal has dealt with it. 18 As I say, a number of other matters were raised by Miss Gillespie on behalf of the plaintiff during the course of the hearing. She drew my attention to s 12(1)(d) of the Aboriginal Land Rights Act, which defines the functions of a Local Aboriginal Land Council as including the implementation of the wishes of its members as decided at a meeting of the Council with respect to the acquisition, management, use, control and disposal of land; and although she did not refer to it, she might also have included a reference to para (a); namely, in accordance with any regulations to acquire, hold or dispose of or otherwise deal with land vested or acquired by the Council. These provisions are in general terms setting out the functions of the Council. They do not regulate the procedure which is dealt with in ss 40B and 41, to which I have already referred. 19    Her submission was that the Council was not empowered to seek orders from the Tribunal for eviction of a Council member without agreement at a properly constituted meeting of the Council, and she submitted that the Tribunal made an error of law in not taking this relevant consideration into account because there was no resolution authorising the taking of the proceedings at a Council meeting duly called of which minutes had been taken and she informed me that the plaintiff had been unable to obtain evidence of the Council minutes. 20    In this regard she referred me to the further affidavit of the plaintiff sworn today and, in particular, to para 11 of that affidavit. But that paragraph refers to repeated requests of copies of the minutes where the resolutions to make the repairs to the house were passed and a copy of a report by the Department of Housing into the state of repairs of the premises and Miss Coe swore that she had not been given copies of those minutes; but there was no suggestion that she had requested a copy of the minutes of the meeting which authorised the taking of the proceedings. The submission was then made that there was no evidence before the Tribunal of a valid meeting of the Council. 21    At this stage there was tendered by consent a copy of the minutes of the general meeting of the defendant, the Metropolitan Local Aboriginal Land Council, of 10 June 1998 and motion 7 expressly authorised the taking of legal action against tenants who had refused to sign the new residential tenancy agreements and those who were in arrears, which latter category at least, and probably the former category also, would have included the plaintiff. 22    It was then submitted that the plaintiff had not previously been furnished with a copy of these minutes and, therefore, had not been in a position to challenge them. 23    When it was pointed out that there was no appeal except on a question of law, it was submitted that the meeting was not a duly constituted meeting because the plaintiff did not believe the procedures for calling the meeting had been properly adhered to and she had not received notice of the meeting; and an application was made to call further evidence to prove that she had not received notice of the meeting. 24    There were two difficulties that became apparent at this stage. One was that there was no evidence either way, and no one was able to inform me whether or not these minutes had been tendered before the Tribunal and I cannot find a specific reference to them in the Tribunal's Reasons. The other problem was that if I permitted the plaintiff to lead this evidence that she had not received notice of the meeting, it would be only fair to grant an adjournment to enable the defendant to call evidence, if it were available, of the sending out of notices of the meeting and the numbers of persons who attended and such-like, thereby delaying the further conduct of the proceedings. 25    More importantly, this was not the time for the adducing of fresh evidence and for considering fresh grounds of appeal. The grounds of appeal had been set out earlier in the plaintiff's first affidavit. Her complaint about the minutes had been set out in her affidavit and related to a right to inspect the minutes in relation to the resolutions relating to repairs; and now, at the heel of the hunt as it were, a fresh point was being raised which, as far as one could ascertain, had never been taken before the Tribunal. 26    Then I was informed that there were a number of other witnesses, one in particular, Ms Weldon, who had been at the Tribunal and was available there to give evidence about the existence or non-existence or conduct of this meeting of the defendant of 10 June 1998, but that the Tribunal had refused to hear her evidence on this issue. This was yet again a totally new point which had never been taken before. 27    There has been no reference that I can find of Ms Weldon being available or being proffered as a witness before the Tribunal and if the case to be sought was that there had been a denial of natural justice before the Tribunal that should have been specified long before now. 28    I, therefore, refused the application to call Ms Weldon, Ms June Coe or any further witnesses. 29    As I say, there is no evidence before me as to whether or not the minutes of the meeting of 10 June 1998, Ex 1, were tendered before the Tribunal or not, so I cannot take them into account in the resolution of this application. 30    However, it is clear that as an administrative body the Tribunal is bound to satisfy itself that it has jurisdiction. The Tribunal, in its Reasons, records the only issues that were raised before it in that regard, at p 5. It is noted as follows:

"Notwithstanding the fact that the tenant seeks an order from the Tribunal reducing the rent payable, the tenant claims that the Tribunal has no power to make orders that an Aboriginal person pay a land council rent monies. She also contends that Local Aboriginal Land Councils have no power to enter into residential tenancy agreements."

This submission was discussed and at p 8 the Tribunal went on:
"The tenant says: 'I am a member of Metropolitan Local Aboriginal Land Council. All business goes before the members to approve, amend and ratify. I don't believe that any eviction procedures have come up at any Local Metropolitan Land Council meetings. If it has then I would like to see who moved seconded and when. I would like to see it tabled'.
The tenant did not tender any further documentation on the issue."

31    The Tribunal then dealt with the case for the landlord and, after dealing with various other submissions, said at p 11:

"The documentation supplied at the hearing indicated that the termination notice was valid in all respects and signed by the person duly authorised to do so. Mr Geoff Bradford who represented the landlord was duly authorised in writing to do so.
The Tribunal is satisfied that it has the necessary jurisdiction to hear and determine both applications before it."

32 The Tribunal then considered the merits of the two applications before it and made the orders which were made. 33 Sections 63 and 64 of the Aboriginal Land Rights Act deal with the authentication of documents and the fact that proof of certain matters including resolutions of an Aboriginal Land Council are not required until evidence is given to the contrary. 34 I am satisfied that the Tribunal was conscious of the need to be satisfied that it had jurisdiction to embark on the hearing of the matter, and that it considered whatever evidence there was tendered before it on that issue, and made the findings which it did. Those findings as to the actual conferring of authority were findings of fact and are not subject to review by this Court on appeal under s 107(2). 35 There is no evidence that the defendant was denied natural justice and I am, therefore, satisfied that the defendant should have summary judgment as sought pursuant to SCR Pt 13 r 5. 36 The order will therefore be summons dismissed.

(COUNSEL ADDRESSED ON COSTS)

37    I order the plaintiff to pay the second defendant's costs of the motion and of the proceedings to date.

38    (Miss Gillespie sought a stay of execution. Discussion ensued.)

I grant a stay of execution of the order for possession to 31 July 1999 on terms that the plaintiff pay an occupation fee of $30 per week so long as she remains in possession, the first payment on Wednesday 23 June 1999.

39    I grant liberty to the second defendant to apply on two days notice to lift the stay of execution if any instalment of the occupation fee remains unpaid seven days after the due date.

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Last Modified: 07/06/1999