Defence Housing Authority, Ex parte- Residential Tenancies Tribunal of NSW

[1996] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S75 of 1996

In the matter of -

An application for a Writ of Prohibition against THE RESIDENTIAL TENANCIES TRIBUNAL OF NEW SOUTH WALES

First Respondent

and

KRIMHILDE HENDERSON and ARVIN T. HENDERSON

Second Respondents

Ex parte -

THE DEFENCE HOUSING AUTHORITY

Prosecutor

For directions

BRENNAN CJ

(In Chambers)
TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 AUGUST 1996, AT 10.25 AM

Copyright in the High Court of Australia

______________________

MR S.J. GAGELER:   If your Honour pleases, I appear for the prosecutor.  (instructed by Bruce & Stewart)

MR A.T. HENDERSON:   If your Honour pleases, I am appearing with my wife, MRS K. HENDERSON.  (in person)

BRENNAN CJ:   You are Mr and Mrs Henderson, is that so?

MR HENDERSON:   Yes, we are.

BRENNAN CJ:   Thank you.  I gather that New South Wales is not presently represented, Mr Gageler.

MR GAGELER:   Yes, that is right, your Honour.  Mr McDonnell was to appear but has had some transport difficulties.

BRENNAN CJ:   I understand he has arrived at Canberra Airport and will be here in 15 minutes, so in those circumstances I will adjourn this until quarter to 11 so as to give Mr McDonnell an opportunity to attend.  You might mention the fog rule to Mr McDonnell, Mr Gageler.  Are you familiar with it?

MR GAGELER:   I am and that is why I am here and arrived last night.

BRENNAN CJ:   You might mention it to Mr McDonnell.  In that case we will adjourn until quarter to 11.

AT 10.26 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.47 AM:

BRENNAN CJ:   I have taken the appearances of Mr Gageler and Mr and Mrs Henderson.

MR J.K. McDONNELL:   I apologise for not being here at 10.15.  I think your Honour knows the cause and I apologise for that.  (instructed by the Crown Solicitor for New South Wales)

BRENNAN CJ:   Have you had the fog rule explained to you, Mr McDonnell?

MR McDONNELL:   It has been explained to me in some detail, yes, your Honour.  I apologise.

BRENNAN CJ:   Yes.  Perhaps you could communicate to your office that that fog rule is one which is important for observation in this Court.

MR McDONNELL:   Thank you, your Honour, yes.

BRENNAN CJ:   Mr Gageler, there is a question of directions to be given, but I wonder whether there is any question arising in this matter as to the jurisdiction of this Court.

MR GAGELER: Your Honour, we have given some consideration to that. The jurisdiction invoked is section 75(iii) of the Constitution. Obviously section 75(v) has no application in these circumstances. In my submission, your Honour, the Court has jurisdiction simply because the Commonwealth is a party and the Commonwealth being a party the Court then can give such relief.

BRENNAN CJ:   The Commonwealth is a party?

MR GAGELER: The Commonwealth within the meaning of section 75(iii) is a party, yes, the Defence Housing Authority being the Commonwealth for the purposes of that section.

BRENNAN CJ:   Yes, (a) that is not in dispute and (b) is jurisdiction conceded?

MR GAGELER: No jurisdictional point has been taken or notified to me. Your Honour, the other potential source of jurisdiction would be section 76(i) of the Constitution and section 30(a) of the Judiciary Act.  The difficulty with that is that one of the arguments I wish to put is that the Tribunal is not a court.  If, however, that argument is wrong and the Tribunal is a court, then there is the alternative basis of jurisdiction and it may well be, your Honour, that there is a third basis of jurisdiction and that is simply by raising arguable cases of jurisdiction we come within.....jurisdiction of the court.  I do not wish to necessarily rely upon that.

BRENNAN CJ:   The reason why I asked you that question - and I will ask the same, of course, of Mr McDonnell - is to endeavour to understand what will be the issues at the hearing.

MR GAGELER:   Yes.  May I say, your Honour, we did give some consideration to the jurisdictional question and in the event that it was to be seriously raised, rather than let that become a dominant feature of the litigation, we would be quite prepared to commence another action by writ in the original jurisdiction of the court seeking declaratory and injunctive relief, which will clearly be ‑ ‑ ‑

BRENNAN CJ:   Rather than proceedings in the Supreme Court of New South Wales?

MR GAGELER: Yes. Again, we would be relying on section 75(iii) but a more traditional application of 75(iii).

BRENNAN CJ:   Yes.  I think before we proceed for the further directions I will ask Mr McDonnell and also Mr and Mrs Henderson if they have anything to say about that.

MR McDONNELL:   Your Honour, the State would be prepared to concede for the purpose of these proceedings that the authority is the Commonwealth’s to enable this Court to invoke its jurisdiction under 75(iii).

BRENNAN CJ:   So that the jurisdiction of the Court will be conceded so far as New South Wales is concerned?

MR McDONNELL:   Yes, your Honour.

BRENNAN CJ:   Mr and Mrs Henderson?

MR HENDERSON:   Your Honour, we are in a rather difficult position because we originally started by asking to inspect a property because a crack had been reported and we went to the Residential Tenancies Tribunal and at this juncture we are not represented.  You are into areas where I do not think I can feel qualified to comment on, although from what I have heard before we would certainly be better off having something looked at now rather than having to go back to New South Wales and then up again like a ping‑pong ball.

BRENNAN CJ:   Yes.  You will not be raising any objection?

MR HENDERSON:   No, we will not be raising any objection.

BRENNAN CJ:   Yes, thank you, Mr Henderson.  That seems to resolve that so far as it is capable of being resolved by concession at all events, Mr Gageler.

MR GAGELER:   Yes, your Honour.  Your Honour, the position, as a result of sending out 78B notices, on my instructions, is that New South Wales and Victoria will be intervening in the proceedings; that Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory will not be intervening; and that the Commonwealth, South Australia and Queensland are still considering their respective positions.  On the basis that there will be some substantial intervention, it is my estimate that the case would - and on the basis that there would be written submissions in advance - take some two days.

BRENNAN CJ:   Yes.  Well, then, is there any reason why comprehensive written submissions should not be made by the Defence Housing Authority and by the Commonwealth, if it should see fit to intervene, by 11 November and, on the part of New South Wales, Victoria and any other State or Territory intervention, on or before 25 November?

MR GAGELER:   No, your Honour.

BRENNAN CJ:   Well, now, that would allow the matter to be listed for hearing probably on Tuesday, 3 December, and the question would then arise as to whether there should be any time limits prescribed in respect of the oral argument, assuming that two days will be allowed.

MR GAGELER:   Yes.  Well, I am likely to be led by Mr Ellicott, who does not like time limits, I believe.

BRENNAN CJ:   That sounds to me as though it is all the more reason for the prescription of time limits.

MR GAGELER:   Your Honour, I cannot speak against time limits, save that, given that we have the burden of presenting the substantial case we should receive the longest time.

BRENNAN CJ:   Yes, I see.  Yes, very well, thank you.  What do you have to say about that proposal, Mr McDonnell?

MR McDONNELL:   The last proposal about time limits, your Honour, presents no difficulties for the State of New South Wales.  The Solicitor‑General has indicated that he expects to take about two hours, your Honour. 

BRENNAN CJ:   Yes.

MR McDONNELL:   Could I just say, by way of amplification of what Mr Gageler said in relation to possible interveners that my check around yesterday of the various States suggested that Western Australia, South Australia and Queensland were most likely to be intervening.

BRENNAN CJ:   South Australia as well.

MR McDONNELL:   Yes, South Australia, Queensland and Western Australia, in addition to Victoria, which has already indicated that they will be intervening.

BRENNAN CJ:   Yes.

MR McDONNELL:   The Commonwealth was inscrutible, your Honour.

BRENNAN CJ:   Now, what about the time for the lodging of written submissions?

MR McDONNELL:   That is acceptable to the State, your Honour.

BRENNAN CJ:   Yes, thank you.  Mr Henderson, Mrs Henderson.

MR HENDERSON:   We certainly have no objection to time limits, or to the schedule that you put up for making submissions.

BRENNAN CJ:   Yes.  Well, now, if you wish to put in your submissions, I take it you would be advocating that the Tribunal in New South Wales - the Residential Tenancies Tribunal - has jurisdiction in this matter?

MR HENDERSON:   We certainly would be.

BRENNAN CJ:   And, therefore, you would be supporting the views of New South Wales.

MR HENDERSON:   Either that, or they would be supporting our views, whichever way you want to take it.

BRENNAN CJ:   Yes, that is quite right.  Now, would you wish to put in written submissions?

MR HENDERSON:   Yes, I think we would.  Our basic problem is costs and getting representation.  We have a difficulty in terms of the situation.  It is rather oppressive for us, given the origin - to go to somewhere like the Residential Tenancies Tribunal and end up here.

BRENNAN CJ:   Yes, that is understandable.  However, if there are to be written submissions put in by you, I think they should be filed with the Court and served on the other parties on or before 25 November.

MR HENDERSON:   The same day as the States.

BRENNAN CJ:   And that would be 14 days after the service upon you of the submissions of the Defence Housing Authority and of the Commonwealth, if the Commonwealth should be separately represented.

MR HENDERSON:   Thank you.

BRENNAN CJ:   Well, now, as to the time limits, you do not have any objection to the time being limited for oral submissions?

MR HENDERSON:   No, I do not have any objection to that.  As long as they apply to everybody, that is fine.

BRENNAN CJ:   Yes, but they do not apply necessarily equally so far as time is concerned.

MR HENDERSON:   Yes.

BRENNAN CJ:   What I had in mind was this:  four hours to be allocated as between the Defence Housing Authority and the Commonwealth, since they would be opening the batting, as it were; three hours for New South Wales - perhaps two in the light of the indications I have been given - but two and a half, perhaps, we will say, for New South Wales, and one and a half for the other State and Territory interveners.  Now, that would assume, however, a very short time for you and Mrs Henderson.  Now, I say that because the argument will largely be on constitutional issues which, unless you were separately legally represented, I imagine is not altogether your cup of tea.

MR HENDERSON:   We have done some work in relation to the Residential Tenancy Tribunal, so they are not foreign to us, but I do not think I would want to get up for three hours.

BRENNAN CJ:   No.  How long would you think might be adequate for you, given that your written submissions would first contain the basis of the argument that you would want to put?

MR HENDERSON:   A notional amount of time might be half an hour, but I will not guarantee to take it up.

BRENNAN CJ:   No, very well.  I think, perhaps, we will make it two and a half hours for New South Wales, one and a half hours for the other State and Territory interveners, and half an hour for Mr and Mrs Henderson.  That, in essence, will leave us nominally with half an hour to spare for reply.  It would not be any longer than that, but perhaps the easiest way to deal with that would be to indicate that if less than four hours is taken by the Defence Housing Authority and the Commonwealth in oral argument in‑chief, then any saving that is thus created can be added to the time limited for reply up to, but not exceeding, one hour.  On that basis the case can be listed for 3 and 4 December.

MR GAGELER:   Your Honour, may I just ask for a clarification?

BRENNAN CJ:   Yes.

MR GAGELER:   Does your Honour mean that the saving plus the half hour should not exceed one hour?

BRENNAN CJ:   That is right.

MR GAGELER:   Yes, thank you.

BRENNAN CJ:   There will be no incentive to be shorter than three and a half hours in‑chief, but the time as between the Defence Housing Authority and the Commonwealth will be divided amongst them, by consent.  In the absence of consen,t further directions can be applied for within that limit of three and a half hours.

MR GAGELER:  Yes.  I doubt that will be necessary, your Honour.

BRENNAN CJ:   Similarly, in relation to the interveners, they will have to agree upon the division of their times.  Are there any other matters on which directions are sought from you, Mr Gageler?

MR GAGELER:   No, your Honour.

MR McDONNELL:   No, your Honour.

BRENNAN CJ:   Any further matters ‑ ‑ ‑

MR HENDERSON:   Your Honour, one thing that does worry us no end is the matter of costs and how they would be awarded at the end.  Again, we started off with a $20 application and now we are looking at the transcript of the chamber’s hearing and all sorts of large bills are walking around the place.  One thing that has a very big bearing on our representation is what the likely is that we are going to have to pay the bills of our own.  I am wondering if it is possible at this stage for you to make any directions or indications?

BRENNAN CJ:   That is an understandable reaction.  Perhaps we can ask Mr Gageler whether he has anything to say about it.  Mr Gageler?

MR GAGELER:   No, I do not.  There has been no formal application made to my client, so far as I am aware, in relation to the costs of this matter.  I have, frankly, attempted to seek some instructions on the matter, your Honour, but was unable to do so before today.  There is a consideration, your Honour; it is this:  Mr and Mrs Henderson seek an order from the Tribunal to have access to their premises.  My client has always said that it will allow access to the premises but it will not submit to the jurisdiction of the Tribunal.  So what Mr and Mrs Henderson want is to establish the legal position that they have an entitlement under New South Wales legislation to do what they want to do.  There is no impediment to them doing what they want to do; just that they want the legal right. 

So, in those circumstances, your Honour, it is not, perhaps, the normal case of an individual being caught up in a constitutional struggle.  The constitutional struggle is very much of their own making.  I will seek some instructions, but I am really not in a position to take the matter any further now.

BRENNAN CJ:   Mr Henderson, on what Mr Gageler says, it seems as though if you want a ticket to the big league, you might have to pay for it.

MR HENDERSON:   There are a couple of things I might say.  Number one, being given access to the houses - I have a letter dated last November 13 from the.....solicitors saying that we had been in the house the previous May and there was no justification for entering now, so we are not given access.  After the Residential Tenancies Tribunal matter came up the Defence Housing Authority conceded it would give us access according to the way the Residential Tenancy Act works in New South Wales.  We have written to some Commonwealth agencies, including the Attorney‑General and the Minister for Defence, asking about the cost issue, so that it is not a case that we just stood up right now and started mentioning it.  There has been correspondence going for the last three or four months.

BRENNAN CJ:   Let me put this question to you.  If access were given to the houses by the Defence Housing Authority by consent to the same extent as would have been granted by the Defence Housing Authority, have you any further interest in the pursuit of litigation?

MR HENDERSON:   Our difficulty, of course, in terms of the Residential Tenancy Tribunal, is the next time and whatever the next issue might be.  Actually, I do not know what is on the file here, but there is on one of the Residential Tenancy Tribunal orders a record, again, that the Defence Housing Authority has already consented.  We actually have been in the house since the matter was brought up to the High Court.  So that in terms of immediate access, it is not a case that we brought this up last November 30 and have not been in the place.  It gets a little complicated.

BRENNAN CJ:   I still do not quite understand the answer to the question, that is, if the Defence Housing Authority were prepared to consent to your having access to the house now and in the future upon the same terms as might be granted by an order made under the New South Wales legislation by the Tribunal, would that exhaust your interest in the matter?

MR HENDERSON:   It would in terms of access.  There are other Residential Tenancy Tribunal questions.  It covers the whole landlord/tenant aspect.  That is only one aspect.  If, for some reason, we wanted to go to the

Residential Tenancy Tribunal on some landlord/tenant dispute that was not access but something else, that would not be covered by ‑ ‑ ‑

BRENNAN CJ:   And you would want to preserve your rights to do so.

MR HENDERSON:   We certainly would under the New South Wales legislation.

BRENNAN CJ:   Yes.  I think that is perhaps as far as we can take it because I think that you are, of course, at liberty to apply to the Commonwealth for any consensual arrangement that might be made between you and the Commonwealth or you and the Defence Housing Authority with respect to the costs of this litigation, but the costs of the litigation will be in the hands of the Full Court after the matter is heard and disposed of and there is nothing that I could presently do which would bind the hands of the Full Court in relation to whatever order they might make in respect of costs. 

No doubt the course of litigation and the participation of the respective parties in it would be relevant matters then for consideration but, I think, otherwise, I cannot take it any further than to leave it you, on the one hand, and the Defence Housing Authority and the Commonwealth on the other to see if some arrangement can be made in respect of your costs.

MR HENDERSON:   Thank you, your Honour.

BRENNAN CJ:   And perhaps you might indicate that the consideration of the matter is one which, even though that aspect of access would be agreed to and perhaps should be agreed, the question of costs is also worthy of the Commonwealth’s consideration.  When I say the Commonwealth, I mean the Commonwealth and the Defence Housing Authority.

MR GAGELER:   Yes.

BRENNAN CJ:   No further matters to raise?  In that case, we will adjourn this matter to a date to be fixed.

AT 11.09 AM THE MATTER WAS ADJOURNED