Couch v NSW Land and Housing Corporation

[2015] NSWCATAD 146

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Couch v NSW Land and Housing Corporation [2015] NSWCATAD 146
Hearing dates:	16 June 2015 and 2 July 2015
Decision date:	09 July 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	Mr Couch’s application for interim orders under the Anti-Discrimination Act 1977 (NSW) is refused.
Catchwords:	INTERIM ORDER in nature of prohibitory injunction -– application under Anti-Discrimination Act 1977 for interim order to prevent NSW Land and Housing Corporation from terminating applicant’s tenancy – proceedings for termination currently before Consumer and Commercial Division of Tribunal – powers of Tribunal under s 105 of Anti-Discrimination Act 1977 to adjourn or stay proceedings under the Residential Tenancies Ac 2010 – power to make orders confined to orders in the proceedings before the Tribunal -
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), s 105 Mental Health (Forensic Provisions) Act 1990 (NSW)., s 32 Residential Tenancies Act 2010 (NSW), s 87
Cases Cited:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 Cardile v LED Builders Pty Ltd [1999] HCA 18 Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63
Texts Cited:	N Rees, K Lindsay and S Rice, Australian Anti-Discrimination Law, Text, Cases and Materials (2nd ed 2014, the Federation Press)
Category:	Procedural and other rulings
Parties:	Vincent Couch (Applicant) NSW Land and Housing Corporation (1st Respondent) Department of Family and Community Services (2nd Respondent)
Representation:	Counsel: B Fogarty (Applicant) J O’Connor (1st and 2nd Respondents) Solicitors: Legal Aid NSW (Applicant) N Cureton, NSW Family & Community Services (1st and 2nd Respondents)
File Number(s):	1510322

decision

Introduction

1. Mr Crouch has applied for interim orders under the Anti-Discrimination Act 1977 (NSW). The orders he seeks are that his tenancy “remain in place” and the hearing of the proceedings in the Consumer and Commercial Division of the Tribunal terminating his tenancy be stayed until his complaint of disability discrimination is resolved. For the reasons given below, the Tribunal as constituted in these proceedings has no power to prevent other proceedings in the Consumer and Commercial Division from going ahead.

2. In 2015 Mr Crouch signed a residential tenancy agreement with NSW Land and Housing Corporation. On 15 February 2015 he was charged with assaulting a woman in a neighbouring unit. The Local Court found that Mr Crouch was suffering from a mental illness and decided that it was appropriate to dismiss the charge under s 32 of the Mental Health (Forensic Provisions) Act1990 (NSW). NSW Land and Housing Corporation had also received other complaints from two neighbours that Mr Couch had behaved in an anti-social, threatening and violent manner.

3. On 17 March 2015 NSW Land and Housing Corporation served Mr Couch with a Termination Notice under s 87 of the Residential Tenancies Act 2010 (NSW). The basis for that notice was that Mr Couch had breached certain terms of the residential tenancy agreement including “not to cause or permit a nuisance” and “not to interfere … with the reasonable peace, comfort or privacy of neighbours.” On 13 April 2015 NSW Land and Housing Corporation commenced proceedings in the Consumer and Commercial Division of the Tribunal seeking termination of his tenancy. I will refer to these proceedings as the “residential tenancy proceedings”. That matter is listed for hearing on 23 July 2015.

4. On 3 June 2015 Mr Couch lodged a complaint against NSW Land and Housing Corporation with the President of the Anti-Discrimination Board. The complaint alleged discrimination on the ground of mental illness in the provision of accommodation and the provision of services: Anti-Discrimination Act, s 49M and s 49N. A conciliation conference was held but the complaint was not resolved.

Application for interim order

5. On 10 June 2015 Mr Couch applied for two interim orders. The first was that Mr Crouch’s tenancy “remain in place” until his complaint of disability discrimination is resolved or determined. The second was that “the hearing of proceedings SH 15/16604 in the Consumer and Commercial Division” of the Civil and Administrative Tribunal “be stayed” until the complaint of disability discrimination is resolved or determined. Mr Fogarty, representing Mr Crouch, accepted that the sole aim of the application for interim orders was to prevent the residential tenancy proceedings from going ahead until the proceedings under the Anti-Discrimination Act have been resolved. Given that concession, I have not dealt with the application for an order that the tenancy “remain in place” as a separate application.

6. In Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63 at [16] (6 November 2009) the Administrative Decisions Tribunal, the predecessor to the Administrative and Equal Opportunity Division of NCAT, examined the scope of the power in s 105 and observed that it is modelled on the power of courts to make interlocutory injunctions. While the power of the Tribunal to grant interim relief is not subject to any limitation which is not strictly required by the language and purpose of the Anti-Discrimination Act, the principles applicable to interlocutory injunctions provide useful guidance: Cardile v LED Builders Pty Ltd [1999] HCA 18, per Kirby J at [110]; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 per Gummow and Hayne at [89].

7. The order sought in this case can be characterised as a prohibitory injunction, preventing the Consumer and Commercial Division of the Tribunal from hearing and determining the application to terminate Mr Couch’s tenancy. The preliminary issue is whether the Tribunal has power to stay or adjourn those proceedings or to direct that they be stayed or adjourned, pending resolution or determination of Mr Couch’s complaint under the Anti-Discrimination Act.

Power of the Tribunal to make an interim order

8. The Tribunal has such jurisdiction and functions as are conferred on it by the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) or any other legislation: NCAT Act, s 28(1). Section 105 of the Anti-Discrimination Act gives the Tribunal jurisdiction to make an interim order in relation to complaints made under that Act:

(1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order:

(a) to preserve the status quo between the parties to the complaint, or

(b) to preserve the rights of the parties to the complaint, or

(c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred,

9. The Administrative and Equal Opportunity Division of the Tribunal has the function of hearing and determining matters under the Anti-Discrimination Act: NCAT Act, Sch 3, cl 3(1). Those matters are part of the Tribunal’s “general jurisdiction”: NCAT Act, s 29(1). The Tribunal also has an administrative review jurisdiction, an appeal jurisdiction and an enforcement jurisdiction: NCAT Act, s 29(2).

10. Mr Fogarty, representing Mr Couch, submitted that there was nothing to prevent the Tribunal, when exercising its general jurisdiction in the Administrative and Equal Opportunity Division, from making an interim order “staying” or adjourning the residential tenancy proceedings in the Consumer and Commercial Division.

Reasoning and conclusion

11. The proceedings under the Anti-Discrimination Act are separate and distinct from the proceedings under the Residential Tenancies Act. That is so even though in both cases the Tribunal is exercising its general jurisdiction, the subject matter is termination of the tenancy and the same parties are involved. Only the Tribunal constituted to determine particular proceedings may make orders in those proceedings.

12. If any support were needed for that proposition, it can be found in s 29(2)(a) of the NCAT Act. That provision gives the Tribunal jurisdiction in proceedings for the exercise of its general jurisdiction “the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings.” (Emphasis added.) An “interlocutory decision of the Tribunal” is defined in s 4 to mean “a decision made by the Tribunal under legislation concerning … the granting of a stay or adjournment.” Therefore, only the Tribunal as constituted to hear a matter may grant a stay or adjournment of those proceedings.

13. Nor can the Tribunal as constituted in these proceedings direct the Tribunal as constituted in the residential tenancy proceedings to make a particular order. Section 105 of the Anti-Discrimination Act gives the Tribunal power to make an order “directing one of the parties to do, or not to do, something until a complaint has been finalised.”: N Rees, K Lindsay and S Rice, Australian Anti-Discrimination Law, Text, Cases and Materials (2nd ed 2014, The Federation Press) at 812. (Emphasis added.) In the same text, the authors identify the two overlapping purposes of s 105 (and similar provisions throughout Australia):

… first, to ensure that the processes established by law to deal with complaints of unlawful discrimination are not rendered ineffective as a result of conduct by one of the parties which may make it difficult or impossible for a court or tribunal to grant an appropriate remedy if a complaint is substantiated and, secondly, to protect or preserve those rights of a party which, in the absence of an interim restraining order, may be irreparably damaged as a result of the inevitable delay in processing a complaint. (Emphasis added.)

14. An order directing the Tribunal as constituted in the residential tenancy proceedings to stay or adjourn those proceedings is not an order directed to the conduct of a party.

15. As the Tribunal has no jurisdiction to make an order preventing the residential tenancy proceedings from continuing, the interim orders sought by Mr Couch are refused. Neither party applied for costs.

Order

1. Mr Couch’s application for interim orders under the Anti-Discrimination Act 1977 (NSW) is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 09 July 2015