Herring v NSW Land and Housing Corp

[2001] NSWSC 129

CITATION:

Herring v NSW Land & Housing Corp & Anor [2001] NSWSC 129

CURRENT JURISDICTION:

Administrative Law

FILE NUMBER(S):

SC 30082/2000

HEARING DATE(S):

7 March 2000

JUDGMENT DATE:

14 March 2001

PARTIES :

Cicero Herring
(Plaintiff)

NSW Land and Housing Corporation
(First Defendant)

Residential Tenancies Tribunal
(Second Defendant)

JUDGMENT OF:

Master Harrison

COUNSEL :	Mr A Jungwirth (First Defendant)
SOLICITORS:	Mr C Herring (Plaintiff in Person) Michael Callen Department of Housing (First Defendant)
CATCHWORDS:	Appeal decision of Residential Tenancies Tribunal
LEGISLATION CITED:	Residential Tenancies Act 1987 Supreme Court Act 1970 Residential Tribunal Act 1998 Judicial Review of Administract Act, 2nd ed
CASES CITED:	Kioa v West (1985) 159 CLR 550
DECISION:	(1) The amended summons filed 5 February 2001 is dismissed; (2) The plaintiff is to pay the defendants' costs.

6

THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

MASTER HARRISON

WEDNESDAY, 14 MARCH 2001

30082/2000 - CICERO HERRING v NSW LAND
AND HOUSING CORPORATION & ANOR

JUDGMENT (Appeal decision of Residential

Tenancies Tribunal)

1   MASTER: By amended summons filed 5 February 2001 the plaintiff seeks firstly, to appeal the decision of the Residential Tenancies Tribunal (RTT) dated 20 November 2000 pursuant to ss 107(1) and 109(1) of the Residential Tenancies Act 1987; and secondly, an order pursuant to s 69(1)(a) to (f) of the Supreme Court Act. The plaintiff relied on his affidavit sworn 22 December 2000. The first defendant relied on the affidavit of Michael Callen sworn 23 January 2001. The second defendant, the Residential Tribunal has filed a submitting appearance.

2   Sections 107 and 109 of the Residential Tenancies Act 1987 have been repealed. Section 69 of the Supreme Court Act 1970 states:

“Proceedings in lieu of writs

(1) Where formerly:

(a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or

(b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course,

then, after the commencement of this Act:

(c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but

(d) shall not issue any such writ, and

(e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and

(f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.”

3   Perhaps the plaintiff meant to rely upon s 62 of the Residential Tribunal Act 1998.

4   Section 62 of the Residential Tribunal Act allows for an appeal to be made to this court on a question of law. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. The onus lies on the plaintiff to demonstrate that there has been an error of law.

5   Section 62(3) of the Act provides:

“(3) After deciding the question the subject of an appeal by a party under this section, the Supreme Court may, unless it affirms the decision of the Tribunal on the question:
(a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or
(b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal.”

6   At the outset, it is helpful to set out some of the provisions of the Act. The function of the Residential Tribunal is to adjudicate disputes between landlords and tenants. The Tribunal is not constrained by the rigour of the court room. Its objects are to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner. The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 27(3)).

7   Evidence must be given on oath or statutory declaration (s 36(1)) but the Tribunal is not bound by the rules or practice of evidence and the Tribunal may inform itself on any matter in such manner as it considers appropriate (s 27(2)). The Tribunal must conform to the rules of natural justice, but broadly speaking, has control of and responsibility for its own procedures (s 27(1) and (2)). Its business is conducted in public (s 30). Normally a party to the proceedings has carriage of his or her own case and is not entitled to be legally represented (s 33(1)). The Tribunal has the power to award costs (s 47), but usually each party bears its own costs. Pursuant to s 49 of the Act the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal has a power to correct its decision (s 46) and the registrar can issue a certificate which operates as a judgment (s 47).

8   As I understand the plaintiff’s case he has two major complaints about the Tribunal member’s decision. They are firstly, that the Tribunal member listened to only one audio tape produced by him and did not listen to several other tapes of noise that he wished to play and secondly, the Tribunal member did not attempt to bring the parties to settlement. The first defendant submitted that there had been no error of law.

9   The first defendant accepted the proposition that a landlord may be in breach of his/her duty of quiet enjoyment where the landlord fails to take reasonable steps to restrain the anti-social conduct of an adjacent tenant which interferes with the quite enjoyment of another tenant of the same landlord.

10   The decision of the Tribunal member of 10 November 2000 is relatively brief so I have reproduced it in full.

“On 10/1/00 the following order was made:
1. The application is dismissed because:
The tenant is claiming the landlord is breaching the term of the Residential Trnancy (sic) Agreement provided in section 22(1)(b) of the Residential Tenancies Act 1987.
Section 22(1)(b) provides
‘It is a term of every Residential Tenancy Agreement that:
(b) the landlord or the landlord’s agent shall not interfere, or cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in using the Residential premises.’
2. The applicant complained the landlord was causing on permitting noises to be emitted from the unit below his which was disturbing his quiet enjoyment of the premises. To substantiate his claim he produced tape recordings of the noises.
3. He brought the problem of the noises to the attention of the landlord in February 2000. The landlord inspected the premises below the tenant’s and was satisfied there were no devices or machinery in the unit that could cause the noises complained of.
4. The landlord tendered evidence to show it is monitoring the situation and relationships between the applicant other tenants in the same building.
5. On the evidence before it the Tribunal is not satisfied the claims by the tenant have been made and therefore the application is dismissed.”

11   The plaintiff has stated that he is a quiet person who does not bother anyone and keeps to himself. He alleged that the types of noise that emanate from the tenant in the unit directly below him (unit 6) are from “high tech” equipment making various kinds of noises, ie. sounds of tapping and loud bangs, sucking and loud knocking noises. It is like a laboratory right underneath him monitoring his every move. He had complained that the unit below him had been using some type of gun which seemed to be of ultrasonic type, which sent out sound waves, and made noises on impact. The plaintiff does not know how the noise is made but on one occasion he heard a bang and then felt this impact to his body. The plaintiff has been working in hospitals as an enrolled nurse and he had never heard anything like this noise before. The sensation he felt was like a “calf stimulate” which sends an electrical shock to the part of the body in need of treatment. The resident of unit 6 is an elderly man who uses a wheelchair for mobility. The plaintiff has sought that this court make an order that the tenant in unit 6 be restrained from making unreasonable noise or alternatively an order that the first defendant find him alternate subsidised accommodation.

12   In relation as to whether there has been an error of law, as previously stated the Tribunal is not bound by the rules of evidence. The Tribunal member heard one of the plaintiff’s tapes and declined to listen to other tapes. There was evidence that the first defendant was monitoring the situation. Further the first defendant had inspected unit 6 and was satisfied that there were no devices or machinery in the unit that could cause the noises complained of.

13   The onus was on the plaintiff to establish his case, and the Tribunal member found that he did not do so. The Tribunal member was entitled to come to this view on the evidence. There is no error of law. There was no evidence led by the plaintiff to suggest that the Tribunal member did not make its best endeavours to settle the dispute. From the letters tendered by the plaintiff, the problem of “high tech” equipment generated noises emanating from other dwellings has dogged him because he had detailed its occurrence in his prior residences.

14   I think that the plaintiff may have submitted that he was denied procedural fairness and natural justice.

15   Section 60 of the Residential Tribunal Act 1998 provides:

“Appeals and rehearings


60. Review by prerogative writ etc generally excluded

(1) Except as provided by this section, a court of record has no jurisdiction to grant relief or a remedy by way of:


(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or

(b) a declaratory judgment or order, or

(c) an injunction,

in respect of a matter heard and determined or to be heard or determined by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter.

(2) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in which the jurisdiction of the Tribunal to determine the matter was disputed, where the ground on which the relief or remedy is sought is that:


(a) the Tribunal gave a ruling as to its jurisdiction that was erroneous, or

(b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed.

(3) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in which the Tribunal has made an order, where the ground on which the relief or remedy is sought is that:


(a) the Tribunal had no jurisdiction to make the order, or

(b) in relation to the hearing or determination of the matter, a party to the claim had been denied natural justice.”

16   The starting point in relation to natural justice, has been stated by Professor S A de Smith, Judicial Review of Administrative Act, 2nd ed. at 180-181:

“Natural justice generally required that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position: (a) to make representations on their own behalf; or (b) to appear at a hearing or inquiry (if one is to be held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet.”

17   In Kioa v West (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing such as to give it a reasonable opportunity to meet that case and to advance its own. These statements are similar to those expressed by Professor de Smith and referred to earlier. Brennan J (as he then was) at p 628 stated:

“A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interest which the repository of the power proposes to take into account in deciding upon its exercise.”

18   In relation to procedural fairness, Mason J stated in Kioa that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect the rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case (454 and 455).

19   It is my view that the plaintiff was afforded a reasonable opportunity to present his case. The duty does not extend to the Tribunal member being obliged to listen to a further hour of audio tape. There was no denial of natural justice nor was there a denial of procedural fairness. The plaintiff’s claim fails. The amended summons should be dismissed. Costs are discretionary. Costs should follow the event. The plaintiff is to pay the defendants’ costs.

20   The orders I make are:

(1) The amended summons filed 5 February 2001 is dismissed.

(2) The plaintiff is to pay the defendants’ costs.
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Last Modified: 03/20/2001