Director of Housing v Murphy and Cryan
[2002] VSC 33
•28 February 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 7352 of 2001
| DIRECTOR OF HOUSING | Appellant |
| V | |
| SANDRA MURPHY And NOEL CRYAN | Respondents |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 February 2002 | |
DATE OF JUDGMENT: | 28 February 2002 | |
CASE MAY BE CITED AS: | Director of Housing v Murphy & Cryan | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 33 | |
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APPEAL under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 – notice to vacate premises – order of possession – whether the Victorian Civil and Administrative Tribunal had jurisdiction to apply section 25 of the Retail Tenancies Act 1997 to negate the effect of the notice to vacate which was properly given by the landlord and thereby deny the landlord’s right to a possession order - the existence and nature of the discretion conferred by sections 24 and 25 of the Retail Tenancies Act.
Housing Act 1983 – sections 9(1)(a), 14(1)(g)
Residential Tenancies Act 1997 – sections 3, 24, 25, 26, 244, 322, 330, 351, 352, 472
Residential Tenancies Regulations 1998 – Regulation 8
Victorian Civil and Administrative Tribunal Act 1998 – sections 3, 43, 67, 98, 126, 148
Victorian Civil and Administrative Tribunal Rules 1998 – Rules 6.37, 6.38, 6.39
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr PJ Hanks QC | Graham Morris |
| For the Respondents | Ms A Richards QC with Ms KM Pettigrew | Tenants Union of Victoria Ltd |
HER HONOUR:
Introduction
This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) against a decision made by the Victorian Civil and Administrative Tribunal (“the Tribunal”) on 24 July 2001, in its Residential Tenancies List. Leave to appeal was granted by Master Evans on 27 September 2001.
The order of the Tribunal reads:
The Tribunal:
1.Declares that pursuant to section 25, section 330 does not apply in relation to the notices to vacate served on the tenants on or about 21 June 2001 and 02 July 2001.
2.Orders that the application for possession filed on 21 June 2001 is dismissed.
The sections to which the order refers are provisions of the Residential Tenancies Act 1997 (“the Act”).
The relevant provisions of the Act are sections 3, 24, 25, 244, 322, 330, 351 and 352 which read as follows, so far as relevant:
3.Definitions
(1)In this Act¾
.. .
“tenancy agreement” means an agreement, . . . under which a person lets premises as a residence;
.. .:
24.Application for exemption
(1)A landlord or tenant may apply to the Tribunal for an order declaring that a provision of this Act does not apply to the tenancy agreement.
.. .
25.Order of Tribunal
(1)On an application under section 24(1), the Tribunal, after hearing the landlord and the tenant, may by order declare that the provision does not apply to the tenancy agreement.
.. .
(3)the Tribunal must not make an order under sub-section (1) or (2) unless it is satisfied that in all the circumstances the application of a provision of this Act would occasion severe hardship to the applicant.
244.Danger
(1)A landlord may give a tenant a notice to vacate rented premises if the tenant or the tenant’s visitor by act or omission endangers the safety of occupiers of neighbouring premises.
.. .
322.Application for possession order by landlord
(1)A landlord may apply to the Tribunal for a possession order for rented premises if the landlord has given the tenant a notice to vacate the premises . . .
330.Order of Tribunal
(1)The Tribunal must make a possession order requiring a tenant or resident to vacate rented premises . . . on the day specified in the order if the Tribunal is satisfied¾
(a)in the case of an application where notice to vacate has been given, that¾
(i)the landlord . . . was entitled to give the notice; and
(ii)the notice has not been withdrawn; . . .
351.Issue of warrant of possession
(1).. . . , a person who obtains a possession order under this Part may apply to the principal registrar for a warrant of possession¾ . . .
352.Postponement of issue of warrant in certain cases
(1)The Tribunal may provide in a possession order under this Part in relation to rented premises that the issue of a warrant of possession be postponed for a period specified in the order, if the Tribunal is satisfied that¾
(a)the tenant would suffer hardship if the issue of the warrant were not postponed; and
(b)the hardship would be greater than any hardship that the landlord or mortgagee (as the case may be) would suffer because of the postponement.
(2)The period of postponement specified in the order must not exceed 30 days after the date that the order is made.
(3)This section does not apply to¾
(a)an order made on the application of a landlord who has given a notice to vacate the rented premises under sections 243 to 245; or
(b)an order made under Division 2.
Also relevant are sections 3, 43 and 67 of the VCAT Act, which read as follows, so far as relevant:
3.Definitions
In this Act¾
.. .
“enabling enactment” means an enactment by or under which jurisdiction is conferred on the Tribunal;
43.How is original jurisdiction invoked?
The original jurisdiction of the Tribunal is invoked¾
(a)by a person who is entitled by or under an enabling enactment to do so applying to the Tribunal in accordance with section 67; . . .
67.How to make an application to the Tribunal
(1)An application to the Tribunal¾
(a)must be in the form, and contain the particulars, required by the rules; and
(b)must be accompanied by any documents or further information required by the rules; and
(c)must be lodged in the manner specified in the rules.
.. .
The relevant “enabling enactment” in the present case is the Act; a number of its provisions, some of which are set out above, confer jurisdiction on the Tribunal.
The questions of law raised by the appellant in the Notice of Appeal filed on 1 October 2001 are as follows:
(a)Whether an application under section 24(1) of [the Act], for an order declaring that a provision of the Act does not apply to a tenancy agreement, may only be made by way of initiating a proceeding before the Tribunal; or whether such an application may be made in the course of a proceeding currently before the Tribunal for the purpose of preventing the invocation of a provision of the Act in that proceeding.
(b)Whether the application made to the Tribunal on behalf of the defendants that it not proceed to make a possession order as required by section 330(1) of the Act was an application of the type contemplated by section 24(1) of the Act.
(c)Whether the Tribunal exceeded its jurisdiction by purporting to make a declaration under section 25(1) of the Act in circumstances where no application as contemplated by section 24(1) of the Act had been made.
(d)Whether the declaration that may be made under section 25(1) of the Act is limited to a declaration that has the effect of adjusting, prospectively, the rights and obligations of the parties to a tenancy agreement.
(e)Whether section 25(1) of the Act authorises the Tribunal to make a declaration that has the effect of overriding rights and liabilities in relation to a tenancy agreement, where those rights and liabilities have already accrued.
(f)Whether the Tribunal exceeded the power granted by section 25(1) of the Act when it declared that section 330 of the Act “does not apply in relation to the notices to vacate served on the tenants”.
Mr Hanks, for the appellant, submitted that the six questions in the Notice of Appeal could be reduced to two broad questions, namely:
1.Can a tenant, the respondent to an application for a possession order before the Tribunal, invoke sections 24 and 25 of the Act so as to frustrate the effect of a notice to vacate properly given by the landlord under section 244 and deny the landlord’s right to a possession order under section 330(1)?
2.If sections 24 and 25 are available to be used by a tenant and the Tribunal for that purpose, did the Tribunal exceed the power granted by section 25(1) when it made the declaration set out in [2] above?
Both counsel dealt with the questions on that basis, and it is convenient to adopt the same approach.
The facts
The facts appear from the affidavits of Ms Mann, a solicitor employed by the Department of Human Services and Housing, and Mr Ermano, who represented the respondents before the Tribunal. The appellant (“the Director”) is the Director of Housing appointed under section 9(1)(a) of the Housing Act 1983. Section 14(1)(g) of that Act provides that the Director may:
subject to [the Act], lease any land vested in the Director to any person of not less than fifteen years of age or to any body corporate for such period and on such terms and conditions as the Director thinks fit;
In that capacity and pursuant to that provision the Director leased certain premises to the respondents by way of a tenancy agreement which was subject to the provisions of the Act.
On 20 June 2001 the Director gave to the first respondent a notice to vacate the premises in the form prescribed by Regulation 8 of the Residential Tenancies Regulations 1998 (“the Regulations”). Under the heading “Reason for notice to vacate” the notice reads:
Pursuant to section 244 of the Residential Tenancies Act 1997 you are required to vacate the rented premises for the reason that you or a visitor to the rented premises, by act or omission, have endangered the safety of occupiers of neighbouring premises, in that:
(a)you were intoxicated and causing a nuisance, threatening, violently attacking and injuring the occupiers of neighbouring premises.
For the avoidance of doubt, I note that paragraph (a) is not followed by any other paragraph.
A second notice was given to both respondents on 2 July 2001, the only change being the addition of the name of the second respondent as an additional tenant. In particular, the reason given for the second notice was expressed in identical terms to those set out here as appearing in the first notice.
There was no copy of the tenancy agreement in the material before the Court, but it is not in issue that both respondents are tenants of the premises and parties to the tenancy agreement in that capacity. I note that in its Findings and Reasons for Decision (“the Reasons”) the Tribunal makes findings as to certain behaviour of the first respondent on the basis of which the notices were served, but expressly finds that there is no complaint of the behaviour towards other tenants of the second respondent. The manner of expression of the reason for the second notice suggests that the behaviour was attributable to both respondents, which is inconsistent with the findings of the Tribunal. However, no point was made of this.
Ms Mann deposes that:
On 2 July 2001, the Plaintiff applied to [the Tribunal] under s 322(1) of [the Act] for a possession order for the premises (the amended application). The amended application noted both the First Defendant and the Second Defendant as the Respondents.
The copy of the application which appears as Exhibit MM4 to Ms Mann’s affidavit includes the words “Please refer to attached Notice to Vacate”, but there is no such notice attached to the exhibit. The application has been typed on a form, on which in the box headed “Respondent (tenant’s)” [sic] the name “Ms Sandra Murphy” is typed and the words “and Mr Noel Cryan” have been added in handwriting. However, the box headed “Date sent” is completed with the date “20 June 2001”, which is a date before the giving of the second notice, as to which see [9] above. With some hesitation, I accept the evidence of Ms Mann, and proceed on the basis that the application was made in reliance on the second notice, and that the date on the application is an error.
At the hearing before the Tribunal on 20 July 2001, Mr Ermano lodged a written submission with the Tribunal, made oral submissions in support, to the effect that there was a discretion under section 25 of the Act to defer or decline making an order of possession, and requested the exercise of that discretion on grounds of hardship.
On 24 July 2001 the Tribunal made the orders set out in [2] above. Paragraph 16 of the Reasons reads:
16.The Tribunal finds that the landlord was entitled to serve the notice to vacate and has proven the grounds for serving the notice. However, it is to be noted that the question of whether there is a continuing or ongoing threat of danger has not been addressed at this point.
The opening part of paragraph 17 reads:
17.Having made that finding the Tribunal would be required by section 330 of [the Act] to make an immediate possession order. However, I find that sections 24 and 25 of [the Act] give the Tribunal an overriding discretion in cases of severe hardship. I find that making an immediate possession order in this case would occasion severe hardship.
In that context it should be noted that the Tribunal has made a finding under section 330(1)(a)(i) that the landlord was entitled to give the notice to vacate, but has made no finding under section 330(1)(a)(ii) as to whether or not the notice has not been withdrawn. Once both those findings are made there is an obligation on the Tribunal to make a possession order, arising under section 330; the first sentence of paragraph 17 is incorrect in the absence of a finding under section 330(1)(a)(ii). However, it does not appear that there was any suggestion at the hearing that the notice has been withdrawn, and it would appear that the need to make the second finding was simply overlooked. In view of the conclusion which I have reached in this matter, there will be opportunity for that oversight to be remedied.
The Tribunal has applied section 25 of the Act to negate the effect of the notice to vacate, which it concedes in paragraph 16 of the Reasons that the landlord was entitled to give, and which conferred on the landlord, subject to what is said in the preceding paragraph, an accrued right to possession of the premises. The question is whether it had jurisdiction to do so.
Question 1 – i.e. questions (a), (b) and (c)
Mr Hanks submitted first that section 24(1) of the Act contemplates an application, in the sense of an initiating process laying the foundation for a discrete proceeding before the Tribunal, rather than a response in the course of a proceeding brought by another party. No application of that kind was made to the Tribunal, and accordingly it had assumed a power which was not available to it, which led to its exceeding its jurisdiction. He submitted that that reading of the effect of the section was consistent with the general design of the Act, and referred to a number of sections authorising applications for specific orders, which in his view contemplated that each such application would have the effect of initiating a proceeding before the Tribunal. This reading was, in his submission, also consistent with the scheme of section 43(a) of the VCAT Act, providing that the original jurisdiction of the Tribunal (which would include the jurisdiction provided for by section 24 of the Act) is invoked by a person who is entitled by or under an enabling enactment to do so applying to the Tribunal in accordance with section 67 of the VCAT Act.
He then referred to section 352 of the Act as supporting his submission that the Tribunal did not have jurisdiction to make the orders which it had made. Section 352 confers on the Tribunal the power to postpone the issue of a warrant of possession pursuant to a possession order, although only for a period not exceeding 30 days, and thus to modify the effect of section 330. But the effect of section 352(3)(a) is that that power to postpone is not available where, as here, the notice to vacate was given under section 244. If, he submitted, the Tribunal is right in finding authority in section 25 in effect to cancel the notice to vacate, then there is a power to cancel the accrued right of the landlord to obtain possession on the expiry of the notice to vacate, a right which the landlord has acquired under section 330 by the service of the notice. That power to cancel the accrued right to possession would exist in circumstances where, by virtue of section 352(3)(a) the power merely to postpone the operation of that right is expressly excluded. It would be surprising, Mr Hanks submitted, if it had been the intention of Parliament to provide a power to cancel in such circumstances.
Section 352 takes into account the balance of hardship as between the parties, being the tenant and the landlord or mortgagee; section 25 allows only for the hardship of the applicant. Thus the hardship of both parties is required to be taken into account on the consideration of the postponement for up to thirty days of the effect of the possession order. That being so, he submitted, it would also be surprising if the possession order could be effectively cancelled under section 25, which provides that the hardship of the applicant (either landlord or tenant) is to be taken into account, but not the hardship of the other party or of a mortgagee.
It is to be noted that section 352 refers only to the hardship suffered by the tenant, landlord or mortgagee. Because a possession order under section 244 based on conduct which “endangers the safety of occupiers of neighbouring premises (hereafter ‘neighbours’)” is excluded from the operation of section 352, it is not necessary to refer in section 352 to hardship suffered by neighbours. If a possession order obtained under section 244 is able to be in effect cancelled by the operation of section 25, it is to be expected, consistently with section 352, that there would be a requirement in section 25 that the Tribunal consider the possible hardship to the neighbours created by the continuation of the occupation of the relevant premises by a person who has been found to have endangered their safety. I note, by way of example only, that the Tribunal made the following findings about the relevant neighbours [1]:
It is to be observed that the 3 victims who gave evidence in support of the application are themselves vulnerable women who are not in a position to defend themselves against an attack. Understandably and not unreasonably they desire to feel safe in their own homes. They each gave evidence that they felt threatened by Ms Murphy’s presence in the flats and felt that at any time Ms Murphy could binge drink and they and their children would be at risk.
[1]At paragraph 12 of the Reasons
Ms Richards made a number of submissions in reply. She drew the attention of the Court to the absence from the Regulations and from the Victorian Civil and Administrative Tribunal Rules 1998 (“the Rules”) of any form prescribed for the making of an application under section 24. However, there is a general provision in Rule 6.37.2 of the Rules prescribing the manner of making applications to the Tribunal for the purposes of section 67(1)(a) of the VCAT Act in respect of a proceeding in the Residential Tenancies List [2]. While Rules 6.38 and 6.39 include specific provisions relating to documents to be filed and particulars to be provided in respect of applications under certain specified sections of the Act, the absence of any such specific provision in relation to section 24 does not negate the operation of the general provision in Rule 6.37.2 in respect of an application under that section. She also relied on sections 98 and 126(2)(b) of the VCAT Act and section 472 of the Act, which I have not found it necessary to set out above, as enabling the relaxation of strict procedural requirements.
[2]See Rule 6.37(1)
In any case, Mr Hanks, in response, stressed that his complaint was not lack of formality, and he accepted that Mr Ermano had brought the issue before the Tribunal as described in [12] above. He reiterated that his submission was, in effect, that an application under section 24 could not be brought in the context of a defence to another application, but must be itself an initiating process.
Ms Richards submitted that once an application is filed under the VCAT Act, the original jurisdiction of the Tribunal is invoked and also the jurisdiction under every section of the relevant enabling enactment, which here is the Residential Tenancies Act, and thus the filing of the application for a possession order brought into operation sections 24 and 25. However, that submission is manifestly incorrect; many provisions in the relevant enabling enactment will have no application to the nature of the application so filed. Whether the jurisdiction under sections 24 and 25 is available in the circumstances of this case depends on the meaning of those provisions, to be determined according to ordinary principles of statutory interpretation.
In response to Ms Richards’s submission that the point now in issue was not made by counsel for the Director at the Tribunal hearing, Mr Hanks referred to the case of Kuswardana v Minister for Immigration and Ethnic Affairs [3]. The relevant facts appear sufficiently from the passages cited. Bowen CJ said there [4] :
[3](1981) 35 ALR 186
[4]At 194-195
There is ample authority for the general proposition that an error of law arises where a Tribunal not exercising judicial power fails to consider a relevant factor in arriving at a decision or misapprehends the matters of which it has to be satisfied in reaching a decision. In this case not only is the consideration of immigrant status relevant but it is fundamental to the application and operation of the section. It is clear that the failure of the [Administrative Appeals] Tribunal to consider and decide whether the applicant was an immigrant was an understandable result of the approach of the applicant's counsel - the thrust of the latter's attack was to the merits of the decision of the Minister not its "jurisdictional" basis.
Does one, therefore, say that the Tribunal made no error because of the approach of counsel? Alternatively, is the position that the failure to consider the question was an error but because of the conduct of the case before the Tribunal the consequences of that error may not be that the decision of the Tribunal is set aside or the case remitted? . . .
In my opinion a party is not necessarily precluded by the conduct of his case before the Tribunal from arguing on "appeal" matters conceded below. If he is successful then the decision of the Tribunal may be overturned - found in some way to be wrong in law, even though that error may have been substantially contributed to by the conduct of the case by the party in question. In other words, the conduct of the party's case before the Tribunal goes to this Court's discretion as to what course it will take given that there has been an error rather than to the question as to whether the Tribunal really made an error.
And Fox J said [5] :
The other matter tending to obfuscation was that the argument [that the applicant might not be an “immigrant” and thus liable to deportation] had not been presented to the Tribunal; the point had not been taken before the learned Presidential Member. In his long and carefully prepared reasons he did not advert to the matter. There is not, however, any requirement that "the point be taken" before the Tribunal, and we should be cautious in trying to apply to procedures and practices operating in an administrative setting those which apply in a judicial setting. This is not to say that an administrative tribunal may not, subject to the regulations governing it, find it convenient or helpful to follow in some respects procedures which over the span of many years have been found by courts of law to be most conducive to the interests of justice. They plainly must be able to accept concessions of fact, but so to express the matter is to confuse their function, which is one of administrative inquiry, without rules of evidence.
[5]At 199
The Tribunal is an administrative tribunal similar to the Administrative Appeals Tribunal, the decision of which was under appeal before the Federal Court in Kuswardana. I accept the submission of Mr Hanks that, for the reasons set out by the Federal Court, the absence of challenge by counsel for the Director before the Tribunal does not inhibit the making of submissions before this Court to the effect that sections 24 and 25 did not confer on the Tribunal jurisdiction to make the orders which it made.
As to Mr Hanks’s submission on the basis of the Tribunal’s finding in paragraph 16 of the Reasons (see [13] to [16] above) that the Director had an accrued right to possession of the premises resulting from the operation of section 330, Ms Richards submitted that the effect of section 219 was that “there was no right of termination vested or accrued until the tenancy agreement was terminated in accordance with section 334 or 342”. That submission confuses the right to have the tenancy terminated at a specified future date with the actual termination itself.
Ms Richards cited two decisions of the Tribunal, differently constituted on each occasion, Director of Housing v Nicolic, [6] and Director of Housing v Hussein [7]. In each of those cases a notice to vacate had been given under section 244. In Nicolic the Tribunal referred [8] to its “wide dispensing powers under section 25 of the Act in appropriate circumstances of severe hardship” and continued:
However, in view of the specific exclusions of its postponement powers under the sections previously referred to, the Tribunal would need to be cautious and slow to invoke those powers. I would think they may be invoked only in extraordinary cases of severe hardship where no other solution may be found and where it seems obvious that the Act was not intended to have such effect on the relationship of the parties.
However, it reached its decision in that case on other grounds. That passage was approved by the Tribunal in Hussein, [9] but in that case it found the landlord to be entitled to a possession order and did not exercise the “wide dispensing powers”.
[6]Decided on 11 June 1999
[7]Decided on 18 August 1999
[8]At 10
[9]At 17
In any case, those expressions of opinion by the Tribunal, apart from being obiter in each case, cannot, of course, govern the interpretation by this Court of the operation of section 25. If Parliament had intended by sections 24 and 25 to confer on the Tribunal the kind of general overriding discretion which was perceived by the Tribunal in Nicolic and Hussein as well as in the case before me, it would have been possible to do so with unmistakable clarity. I note, for example, the wide discretion conferred on the Tribunal by clause 62 of Schedule 1 of the VCAT Act, which reads:
The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.
That provision is discussed in Rumpf v Mornington Peninsula Shire Council (2000) 2 VR 69 at [42] to [59].
Ms Richards cited the well-known passage from Minister for Immigration and Ethnic Affairs v Wu Shan Liang [10] where a majority of the High Court (Brennan CJ, Toohey, McHugh and Gummow JJ) approved a passage from the judgment of the Full Court of the Federal Court in Collector of Customs v Pozzolanic[11] to the effect that a court should not be “concerned with looseness in the language . . . nor with unhappy phrasing” of the reasons of an administrative decision-maker, and continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”. However, that passage applies to reasons for a decision, and not to the formal order of the administrative decision-maker; the case for the appellant here is that the order was made in excess of jurisdiction, and the reasons for the order are not specifically under attack.
[10](1996) 185 CLR 259 at 271-2
[11](1993) 43 FCR 280 at 287
The personal situation of the respondents, as to which Ms Richards made submissions, is not relevant to the consideration of whether the Tribunal had jurisdiction to make the orders which it made. This Court is here concerned with the existence and nature of the discretion conferred by sections 24 and 25 of the Act, not with the exercise of that direction should it exist.
I accept the submissions of Mr Hanks as to the meaning and effect of sections 24 and 25, read in the context of the Act and the VCAT Act, and accordingly find that the answer to the first question posed in [6] above is No. That finding should be sufficient to determine the appeal. However, in all the circumstances I think it appropriate that I proceed to consider the remaining question.
Question 2 – i.e. questions (d), (e) and (f)
In considering this question, I must proceed on the basis, which I have found to be not the case, that the answer to question 1 is Yes.
Section 26 of the Act provides for the prescription of a standard form of tenancy agreement, and a number of other provisions of the Act otherwise directly or indirectly prescribe the terms of tenancy agreements. Mr Hanks submitted that the plain meaning of sections 24(1) and 25(1) was apparent from the expression “does not apply to the tenancy agreement”. That expression, in the present tense, indicated a clear intention that an order under section 25 should have a prospective effect, rewriting for the future the terms of the tenancy agreement which are prescribed by the Act, but not undoing the effect of any breach of its terms as those terms had stood before the making of the order. The declaration under appeal did not, in form or in substance, have any operation or application to the tenancy agreement. It purported to remove the obligation cast on the Tribunal by section 330(1). The Tribunal had purported to exercise a power which it did not have in declaring pursuant to section 25 that section 330 “does not apply in relation to the notices to vacate”, as opposed to declaring that a particular provision “does not apply to the tenancy agreement”.
Ms Richards made submissions to the contrary effect, based on what she submitted was the plain meaning of the words of sections 24 and 25. However, having considered the words of the section and of the declaration under appeal, I find the arguments of Mr Hanks to be persuasive, and accordingly find the answer to the second question posed in [6] above to be Yes.
Conclusion
For the reasons given, there will be the following orders:
1.That the appeal be allowed.
2.That the orders made by the Tribunal on 24 July 2001 be set aside.
3.That the matter be remitted to the Tribunal for determination according to law.
Mr Hanks indicated that the Director did not seek an order for costs.
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