Herbert v New South Wales Land and Housing Corporation

The applicant, Herbert, appealed to the Court of Appeal of New South Wales against a Registrar's refusal to issue a subpoena. The dispute concerned the termination of a residential tenancy agreement and the effect of COVID-19 pandemic measures, specifically a moratorium on rental tenancy evictions under Part 6A of the Residential Tenancies Regulation 2019 (NSW).

The Court was required to determine whether the Registrar's refusal to issue the subpoena was an appealable question of law. Further issues included whether the applicant had failed to file a notice of appearance as required by the Uniform Civil Procedure Rules 2005 (NSW), and whether any State law was inconsistent with federal law, thereby engaging section 109 of the Constitution. The applicant also sought to vacate a hearing date.

Basten JA found that the Registrar's decision did not involve an appealable question of law. The Court noted that government policy, such as the moratorium, does not constitute a law for the purposes of section 109 of the Constitution, and that no notice had been given to the Attorneys-General under section 78B of the Judiciary Act 1903 (Cth). The applicant's failure to file a notice of appearance was also a relevant consideration.

The Court dismissed the applicant's notice of motion filed on 15 April 2020 and ordered that the costs of the motion be the respondent's costs in the application for leave to appeal.