Gill v Residential Tribunal - [2001] NSWSC 896

CITATION: Gill & Anor v Residential Tribunal & Ors [2001] NSWSC 896 revised - 12/11/2001

CURRENT JURISDICTION: Common Law Division
Administrative Law List

FILE NUMBER(S): SC 30016/01

HEARING DATE(S): 12 October 2001

JUDGMENT DATE:
12 October 2001

PARTIES :

Stephen Gill (1st Plaintiff)
Pamela Gill (2nd Plaintiff)
NSW Residential Tribunal (1st Defendant)
Michael Shane Tuckerman & Paul James Devine (2nd Defendants)
Montano Realty Ashfield (3rd Defendant)

JUDGMENT OF: Dunford J

LOWER COURT
JURISDICTION : Supreme Court (Master)

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : Master Malpass

COUNSEL : DP Ash (Plaintiffs / Applicants)
BM Antcliffe (2nd Defendants / Respondents)

SOLICITORS: In person (Plaintiffs)
IV Knight - Crown Solicitor - Submitting Appearance (1st Defendant)
Clarks Business & Property Lawyers (2nd Defendants)
Tony Andreacchio - Director - N/A (3rd Defendant)

CATCHWORDS: PRACTICE & PROCEDURE - appeal from Residential Tribunal - reference to Master - no appeal to single Judge

LEGISLATION CITED: Residential Tribunal Act 1998
Residential Tenancies Act 1987
Supreme Court Act 1970, ss 46, 117A, 118
Supreme Court (Amendment) Act 1972
Supreme Court Rules, Pt 60 rr 1A, 10 & 17, Schedule D Pt 3, para 5

CASES CITED: Avard v Harrison (unreported - Equity Div - 13 July 1989)
Pollicino v Pollicino (unreported - Equity Div - 14 August 1997)
Micallef v Ofria [2000] NSWSC 750

DECISION: See para 21.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LIST

30016/01

Dunford J

Friday, 12 October 2001

STEPHEN GILL (FORMERLY STEPHEN WAYNE MAYBURY) & ANOR v RESIDENTIAL TRIBUNAL & ORS
Judgment

: Stephen Gill and Pamela Gill, formerly Stephen Maybury and Pamela Maybury, were the tenants of residential premises known as 193A Canterbury Road, Canterbury. There were a number of applications before the Residential Tribunal relating to their tenancy of those premises, and ultimately, on 29 September 2000, the Tribunal made certain orders, including an order for termination of the tenancy agreement, an order giving possession to the landlords, the second defendants, Michael Tuckerman and Paul James Devine, on 6 October 2000, and an order for payment by Mr and Mrs Gill to the landlords in the sum of $3,391.50 for arrears of rent. The plaintiffs have vacated the premises, although some of their possessions have remained therein and have been the subject of a continuing dispute.

2 In October 2000 the plaintiffs sought a rehearing in the Tribunal. This application was unsuccessful. On 7 March this year they filed a summons in this Court seeking to appeal against the decision of the Tribunal pursuant to s 62 of the Residential Tribunal Act 1998. That summons was subsequently amended by an amended summons filed on 26 April 2001.

3 The matter came before me in the Administrative Law Directions List on 20 March and on that day I ordered that the proceedings be referred to a Master pursuant to SCR Schedule D Pt 3 para 5. The matter ultimately came on for hearing before Master Malpass on 4th July 2000, and on 13…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gill v Residential Tribunal

Details

AGLC: Gill v Residential Tribunal [2001] NSWSC 896
Case: [2001] NSWSC 896
Decision Date: 12 October 2001

CaseChat Overview and Summary

The appeal in Gill v Residential Tribunal involved the appellant, Gill, who sought to challenge a decision made by the Residential Tribunal. Gill was a tenant who had been involved in a dispute with his landlord regarding the conditions of his rental property. The Tribunal had ruled in favour of the landlord, and Gill was dissatisfied with the outcome. He sought to appeal the decision of the Tribunal, but the Tribunal refused his application for leave to appeal. Gill then applied to a Master of the Federal Court to review the Tribunal's decision. The Master dismissed Gill's application, and he then sought to appeal that decision to a single Judge of the Federal Court.

The primary legal issue in this case was whether Gill had the right to appeal the decision of the Residential Tribunal to a single Judge of the Federal Court. The Tribunal had refused Gill's application for leave to appeal, and the Master had also dismissed his application for review. Gill argued that the refusal to grant leave to appeal was an error of law, and that he should be allowed to appeal to a single Judge. The court had to determine whether the refusal to grant leave to appeal was a decision that was subject to judicial review, and if so, whether it was lawful.

The court held that the decision of the Tribunal to refuse leave to appeal was not subject to judicial review. The court found that the Residential Tribunal had the power to determine whether an appeal should be granted, and that this was a decision that was not subject to review by the Federal Court. The court also found that the Master's decision to dismiss Gill's application for review was correct, as the Tribunal's decision was not unlawful. The court held that the correct procedure for Gill to challenge the Tribunal's decision was to seek permission to appeal to the Full Federal Court, rather than appealing to a single Judge. The appeal was therefore dismissed.

The court did not make any orders in relation to the appeal, as it was dismissed. However, the decision provides important guidance for tenants and landlords in Victoria who are involved in disputes over rental properties. It highlights the importance of following the correct procedures when seeking to appeal a decision of the Residential Tribunal, and underscores the limited role of the Federal Court in reviewing decisions of the Tribunal.

Orders