Navazi v New South Wales Land and Housing Corporation

[2015] NSWCA 308

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308
Hearing dates:	12 August 2015
Decision date:	02 October 2015
Before:	Leeming JA at [1]; Sackville AJA at [7]; Adamson J at [126]
Decision:	1. Refuse the applicant an extension of time to file the Amended Summons insofar as it seeks relief in relation to the decision of the Consumer, Trader and Tenancy Tribunal given on 6 October 2011. 2. Otherwise dismiss the Amended Summons. 3. The applicant pay the costs of the respondent of the proceedings, including the costs of the application to extend time.
Catchwords:	ADMINISTRATIVE LAW – tenant’s appeal to the District Court from a decision of the Consumer, Trader and Tenancy Tribunal (Tribunal) on a question of law dismissed – tenant seeks judicial review of both the decision of the Tribunal and the District Court on a ground not put to either – whether Tribunal committed jurisdictional error – whether District Court decision has to be set aside before challenge to the Tribunal’s decision is determined – whether principle in Port of Melbourne Authority v Anshun applies to the challenge to the Tribunal’s decision – whether District Court committed error of law on the face of the record when the argument of law was not put to it
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, Pt 3 Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 65, 67 Evidence Act 1995 (NSW), s 17 Housing Act 2001 (NSW), s 57; Pt 7; Sch 3 Residential Tenancies Act 2010 (NSW), ss 82, 87, 88, 113, 152 Residential Tenancies Act 1987 (NSW), s 64 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Cases Cited:	Achurch v The Queen [2014] HCA 10; 253 CLR 141 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 Boele v Rinbac Pty Ltd [2014] NSWCA 451; 88 NSWLR 381 Boland v Dillon [2015] NSWCA 183 Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298; 83 NSWLR 23 Burrell v The Queen [2008] HCA 34; 238 CLR 218 Craig v South Australia [1995] HCA 58; 184 CLR 163 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Forge v Australian Securities and Investments Commission (No 2) (2007) 69 NSWLR 575 Geftlic v Merhi [2011] NSWCA 241 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Muldoon v Church of England Children’s Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 Navazi v New South Wales Land and Housing Corporation (District Court, Gibb DCJ, 27 March 2015) Navazi v New South Wales Land and Housing Corporation [2013] NSWSC 138 New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431 NSW Land and Housing Corporation v Diab [2014] NSWCATAP 27 NSW Land and Housing Corporation v Bergman [2008] NSWCTTT 1201 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 Re McBain; Ex parte Catholic Bishops Conference [2002] HCA 16, 209 CLR 372 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 The Queen v Marks; Ex parte Australian Building Construction Employees Builders Labourers’ Federation [1981] HCA 33; 147 CLR 471 Thiess Pty Ltd and Hochtief AG v Industrial Court of New South Wales [2010] NSWCA 252; 78 NSWLR 94 Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 Wishart v Fraser [1941] HCA 8; 64 CLR 470
Texts Cited:	M Allars, “The Distinction between Jurisdictional and Non-jurisdictional Errors: Its Significance and Rationale” in D Mortimer (ed), Administrative Justice and its Availability, (2015, Federation Press)
Category:	Principal judgment
Parties:	Ali Navazi (also known as Nowronzali Navazihakani) (Applicant) New South Wales Land and Housing Corporation (First Respondent) District Court of New South Wales (Second Respondent) New South Wales Civil and Administrative Tribunal (Third Respondent)
Representation:	Counsel: Ms J Needham SC / GE Babe (Applicant) Ms V McWilliam / N Kelly (First Respondent) Submitting appearances (Second and Third Respondent)   Solicitors: Salvos Legal Humanitarian (Applicant) Department of Family and Community Services, Legal Services Branch (First Respondent) Crown Solicitor for New South Wales (Second and Third Respondent)
File Number(s):	2015/118320
Decision under appeal	Court or tribunal: District Court of New South WalesConsumer, Trader and Tenancy Tribunal Date of Decision: 27 March 2015 6 October 2011 Before: Gibb DCJG O’Keefe (Tribunal Member) File Number(s): 2011/366446 (District Court proceedings) SH 11/07116 (CTTT proceedings)

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was a public housing tenant pursuant to a Residential Tenancy Agreement (Lease) with the NSW Land and Housing Corporation (Corporation). In 2011, the Consumer, Trader and Tenancy Tribunal (CTTT), on the application of the Corporation, made an order terminating the Lease and requiring the applicant to vacate the premises.

In March 2015, the District Court dismissed an appeal brought by the tenant on a question of law pursuant to section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (CTTT Act). The Court of Appeal handed down its decision in NSW Land and Housing Corporation v Diab (Diab) after the District Court dismissed the tenant’s appeal. The effect of Diab was that a tenant whose rent subsidy was cancelled retrospectively did not thereby accumulate arrears of rent.

The tenant sought judicial review of the decisions of the Tribunal and District Court. The tenant’s principal complaint was that, in view of the decision in Diab, the Tribunal made a jurisdictional error in assessing arrears of rent and the District Court made a similar error of law on the face of the record. The tenant did not put the principle or issue of law addressed in Diab to the District Court.

The principal issues were whether:

(1)   the District Court decision had to be set aside before a challenge could be made to the Tribunal decision;

(2)   the applicant should be precluded from raising the issue of law addressed in Diab, which was not put to the District Court;

(3)   the District Court committed an error of law on the face of the record;

(4)   the Tribunal committed a jurisdictional error; and

(5)   in the exercise of its discretion the Court should allow an extension of time for the applicant to challenge the Tribunals decision or grant the applicant relief against the District Court decision if, contrary to the Courts view, there was an error of law on the face of the record.

Held (Sackville AJA, Leeming JA and Adamson J agreeing), dismissing the appeal:

In relation to (1)

The applicant was not necessarily required to set aside the decision of the District Court before seeking orders quashing the Tribunal’s decision. There was no direct inconsistency between the orders made by the District Court and the judicial review proceedings, insofar as the applicant sought relief on the ground that the Tribunal erred in calculating arrears of rent.

Forge v Australian Securities and Investments Commission (No 2) (2007) 69 NSWLR 575; The Queen v Marks; Ex parte Australian Building Construction Employees Builders Labourers’ Federation [1981] HCA 33; 147 CLR 471; Wishart v Fraser [1941] HCA 8; 64 CLR 470; Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531; Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298; 83 NSWLR 23; Geftlic v Merhi [2011] NSWCA 241

In relation to (2)

The applicant could and should have raised in the appeal to the District Court, the principle of law addressed in Diab. The applicant’s legal representatives, with the exercise of reasonable diligence, could have ascertained that the appeal panel decision in Diab (which pre-dated the decision of the District Court) had determined a question of law that could have been raised on the applicant’s behalf in the District Court. The applicant therefore should not be permitted to challenge the Tribunal’s decision on the ground that it incorrectly understood the effect of the Corporation’s cancellation decision on the tenant’s obligation to pay rent.

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589; Boles v Esanda Finance CorporationLtd (1989) 18 NSWLR 666; Burrell v The Queen [2008] HCA 34; 238 CLR 218; Henderson v Henderson (1843) 3 Hare 100; 67 ER 313; Achurch v The Queen [2014] HCA 10; 253 CLR 141

In relation to (3)

The District Court had jurisdiction to hear and determine the appeal and in doing so, did what it was required to do by s 67 of the CTTT Act. The alleged error of law was immaterial to the issues which were raised for determination and which the District Court addressed in its judgment. In these circumstances, the District Court did not commit an error of law on the face of the record.

Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390

In relation to (4)

Had it been necessary to decide, the Court would have held that the Tribunal’s satisfaction that the breach of the Lease was sufficient to justify termination rested on an erroneous understanding of the legal effect of the Corporation’s cancellation of the applicant’s rental subsidy. It therefore committed a jurisdictional error.

Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298; 83 NSWLR 23; Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252

In relation to (5)

The applicant had pointed to nothing to suggest that he was willing or able to pay the rent owed. He had not established an arguable basis that the ultimate outcome could be any different. Accordingly, there was no proper basis to grant the requisite extension of time to challenge the Tribunal decision or to grant relief against the District Court’s decision. (Leeming JA, Adamson J agreeing)

Judgment

1. LEEMING JA: I agree with the orders proposed by Sackville AJA, and, subject to one matter, with the entirety of his comprehensive reasons.

2. The factual and procedural background, which is complex, is reproduced in Sackville AJA’s reasons. In summary, Mr Navazi has, for many years, received a rental rebate on his community housing in the order of $350 per week. He has not been entitled to a rental rebate since 2003. Mr Navazi has known that his rebate was cancelled since no later than 2010. All avenues of appeal as to the entitlement of a rental rebate were exhausted in September 2014.

3. Even so, until this day, Mr Navazi has continued in occupation of the premises, while paying only a fraction of the rent which it is now incontrovertibly established is due each week. Mr Navazi has said that he is unable to pay the rent that is due, and has served no evidence of his willingness, or ability, to pay the rent. Every week he remains in occupation, Mr Navazi falls hundreds of dollars further in debt.

4. Mr Navazi comes to this Court seeking, nearly four years out of time, to challenge the decision of the former Consumer, Trader and Tenancy Tribunal given in 2011, and the decision of the District Court dismissing his appeal from that decision in March 2015. He does so on the basis that the termination referred, incorrectly, to an amount of unpaid rent of $110,989.35. Although Mr Navazi owed that amount to his landlord, following the retrospective cancellation of his rental rebate with effect from 2003, this Court’s decision in New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 in May 2015 confirmed earlier authority to the effect that the retrospective cancellation of the rebate did not convert the rebate into arrears of rent. Mr Navazi conceded that, at the time the termination notice was issued, he owed rent of around $11,000 which had increased to $30,378.43 when the matter came before the Tribunal. It is now considerably more.

5. Mr Navazi accepts that, in order to challenge the decision of the Tribunal, he needs a substantial extension of time. He points to the defect in the termination notice served in February 2011, which materially misstated the unpaid rent. In circumstances where even if the entirety of Mr Navazi’s challenge be allowed, he points to nothing to suggest that he is willing or able to pay the rent, there is in my view no proper basis to grant the requisite extension of time. Mr Navazi at all relevant times has been assisted by solicitors and barristers (it may be presumed, acting pro bono) yet has not established even an arguable basis that the ultimate outcome could be any different. On that basis alone I would refuse to grant an extension of time to challenge the decision of the Tribunal.

6. Mr Navazi’s application for judicial review of the decision of the District Court raises different considerations, some of which are not free from difficulty. I agree with Sackville AJA that there was no jurisdictional error or error of law on the face of the record of the District Court. However, even if there were, I would still decline to grant relief, for the reasons already mentioned. There is no utility in quashing the District Court’s dismissal of Mr Navazi’s appeal, so as to let Mr Navazi run a further appeal on a question of law not previously raised by him, whose ultimate success would lead at best to a return to the Tribunal where he will remain unable to pay the outstanding rent and be even further in debt than he is today. Once again, I regard the unusual discretionary considerations to be sufficient. Indeed, to my mind, they are overpowering.

7. SACKVILLE AJA: In 1995, the applicant, as the tenant, entered into a Residential Tenancy Agreement (Lease) with the Department of Housing of New South Wales, as the landlord. The Lease was of premises at Brookvale, New South Wales. The premises constitute “public housing” for the purposes of the Housing Act 2001 (NSW) (Housing Act).

8. The defendant (Corporation) has responsibilities under the Housing Act for public housing. It is common ground that the Corporation succeeded to the rights and obligations of the Department of Housing under the Lease. [1]

   1. See Housing Act, Sch 3 cll 3, 5(1).

9. On 6 October 2011, the Consumer, Trader and Tenancy Tribunal (Tribunal) made an order, on the application of the Corporation, terminating the Lease and requiring the applicant to give up possession of the premises. The applicant appealed to the District Court against the Tribunal’s decision with respect to a matter of law, pursuant to s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (CTTT Act). For reasons connected with the applicant’s challenge to the Corporation’s cancellation of his rental rebate, referred to below, the District Court appeal was not heard until 6 March 2015. On 27 March 2015, the District Court dismissed the appeal. [2]

   2. Navazi v New South Wales Land and Housing Corporation (District Court, Gibb DCJ, 27 March 2015).

10. The applicant now seeks judicial review, pursuant to s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act), of two decisions:

• the decision of the Tribunal; and

• the decision of the District Court.

He says that the decision of the District Court is affected by an error of law on the face of the record and the decision of the Tribunal is affected by a jurisdictional error.

11. The applicant’s complaints arise out of a decision by the Corporation in 2010 to cancel retrospectively the rental rebate he previously enjoyed. He says that the decisions of both the Tribunal and the District Court were affected by an error of law that only became apparent when this Court handed down judgment in New South Wales Land and Housing Corporation v Diab (Diab)[3] on 21 May 2015, nearly two months after the District Court dismissed the applicant’s appeal. In Diab, the Court held that the retrospective cancellation of a tenant’s rental rebate by the Corporation created a debt due by the tenant to the Corporation, but did not retrospectively cause the tenant to fall into arrears of rent. The tenant’s obligation to pay increased rent under the Lease commenced only from the date of the cancellation decision.

    3. [2015] NSWCA 133.

12. The applicant says that both the Tribunal and the District Court assumed, incorrectly in view of Diab, that the Corporation’s retrospective cancellation of the applicant’s rental rebate caused him to be in arrears with the rent due under the Lease. It was this incorrect assumption, so the applicant argues, that underpinned both the decision of the Tribunal to terminate the Lease and the District Court’s dismissal of the applicant’s appeal.

The Proceedings for Judicial Review

Procedural Issues

13. Section 67(1) of the CTTT Act permits a party dissatisfied with the Tribunal’s decision on a question with respect to a matter of law to appeal to the District Court against the decision. After deciding the question the subject of the appeal, the District Court, unless it affirms the decision of the Tribunal on the question, may make such order in relation to the proceedings as it thinks the Tribunal should have made or may remit the matter to the Tribunal. [4]

    4. CTTT Act, s 67(3).

14. Since there is no right of appeal to the Supreme Court from the decision of the District Court,[5] the only mechanism available to the applicant to challenge the District Court’s dismissal of his appeal is to seek judicial review pursuant to s 69 of the Supreme Court Act. Section 69 relevantly confers jurisdiction on the Supreme Court to grant relief in the nature of certiorari quashing the ultimate determination of a court, if the determination is based on an error of law on the face of the record. [6] For the purposes of the applicant’s application, the record of the District Court includes its reasons. [7] In order to obtain relief under s 69 in relation to the District Court’s decision, it is not necessary to show that the Tribunal committed a jurisdictional error. [8]

    5. Muldoon v Church of England Children’s Homes Burwood [2011] NSWCA 46; 80 NSWLR 282.

    6. Supreme Court Act, s 69(3).

    7. Supreme Court Act, s 69(4).

    8. Boele v Rinbac Pty Ltd [2014] NSWCA 451; 88 NSWLR 381 at [74]-[76] (Sackville AJA).

15. The applicant’s application for judicial review of the Tribunal’s decision is said to be brought pursuant to s 69 of the Supreme Court Act and s 65 of the CTTT Act. Section 65(1) of the CTTT Act is a privative clause which, subject to specified exceptions, denies jurisdiction to a court to grant relief in respect of any matter that has been determined by the Tribunal. The exceptions are stated in s 65(2) and (3) and are as follows:

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

(a)   the Tribunal gave an erroneous ruling as to its jurisdiction, 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 prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if 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 had been denied procedural fairness.”

16. It follows from s 65 of the CTTT Act that, apart from any other barriers to the grant of relief, this Court cannot set aside a decision of the Tribunal simply on the basis of an error on the face of the record. The error must be a jurisdictional error.

17. As I have noted, the applicant’s amended summons seeking judicial review of the Tribunal’s decision was not filed until nearly four years after the decision was given. The general principle is that proceedings for judicial review of a decision must be commenced within three months of the decision, but the Court has power to grant an extension of time. [9] The applicant accepts that he requires an extension of time in which to bring proceedings seeking review of the Tribunal’s decision and has filed a motion seeking such an extension. He contends that an extension is warranted because the error of law on which he relies only became apparent when judgment in Diab was delivered.

    9. Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10(1), (2).

Stay of the Tribunal’s Orders

18. On 2 December 2011, on the application of the applicant, the District Court made orders staying the enforcement of the Tribunal’s decision pending the determination of the District Court appeal. Gibb DCJ, when dismissing the appeal on 27 March 2015, set aside the stay on the enforcement of the Tribunal’s decision.

19. On 22 April 2015, orders were made in this Court by consent staying the decision and orders of Gibb DCJ, pending the determination of the applicant’s application for judicial review. The orders made on that day provided for the matter to be heard on an expedited basis on 19 May 2015. For reasons apparently connected with arranging representation for the applicant, the hearing did not take place until 12 August 2015.

20. It is not entirely clear that the consent orders have the effect of preserving the stay made by the District Court on 2 December 2011, since that stay was expressed to operate only until the determination of the District Court appeal. The present proceedings are not by way of an appeal from the decision of the District Court, but have been brought in the original jurisdiction of this Court. While the current proceedings have the potential for orders to be made quashing the District Court’s decision, the stay order made by the District Court may have expired by its own terms. In any event, the Corporation has made no attempt to enforce the Tribunal’s orders.

The Amended Summons

21. The applicant filed an amended summons in this Court on 23 June 2015 (Amended Summons). Subject to the need to obtain an extension of time, the Amended Summons seeks orders in the nature of certiorari pursuant to s 69 of the Supreme Court Act quashing the decision of the District Court and of the Tribunal. The Amended Summons also seeks an order remitting the proceedings to the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (NCAT) for determination according to law. NCAT has replaced the Tribunal as the body hearing and determining applications under the Residential Tenancies Act 2010 (NSW) (Residential Tenancies Act). [10]

    10. See Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, Pt 3.

22. The grounds stated in the Amended Summons are as follows: [11]

    11. The numbering is that in the Amended Summons.

“8   The decision of the District Court below was given prior to the decision of the Court of Appeal in New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133, which decision determined that retrospective cancellation of a tenant’s rental rebates in a social housing tenancy did not convert the amount of rebate into arrears of rent.

9   Accordingly, the parties in the District Court treated the rent arrears at the date of the termination notice of $128,293.49 (p 3 of judgment of District Court) as rental arrears, when $110,989.35 of that sum was cancelled rebated rent.

10   And further, the Consumer Trader & Tenancy Tribunal treated the rent arrears at the date of the termination notice of $128,293.49 (para 6 of the CTTT decision) as rental arrears, when $110,989.35 of that sum was cancelled rebated rent.

11 Neither the CTTT member nor the learned judge below considered the question of whether the notice of termination dated 14 February 2011 was, in the circumstances, a valid notice of termination pursuant to s 82 of the Residential Tenancies Act 2010.

12   The misstatement of the amount of ‘rent’ owing in the notice of termination was so substantial as to have the effect of misleading the tenant as to the extent of any breach of the Residential Tenancy Agreement.

13   Accordingly, the learned trial judge failed to take into account a relevant matter (ie, that the rent relied upon in the notice of termination was overstated by $110,989.35.

14   The learned trial judge took into account an irrelevant matter (ie, that the Court of Appeal in New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431 had determined the validity of the rental rebate) when determining the amount of the arrears of ‘rent’ included the sum of $110,989.35.

15   The determination on the notice of termination including the retrospectively cancelled rebates of rent was a jurisdictional error and should be subject to orders in the nature of certiorari and mandamus.”

The Anshun Issue

23. Ground 8 of the Amended Summons relies on the decision of the Court of Appeal in Diab to support the applicant’s contention that both NCAT and the District Court fell into error. The applicant’s written and oral submissions in this Court proceeded on the basis that the decision in Diab post-dated the decision of the District Court and thus the applicant could not have been expected to raise the point either before NCAT or the District Court. The Corporation’s submissions in this Court did not address whether the principle of Port of Melbourne Authority v Anshun Pty Ltd [12] (Anshun) might prevent the applicant relying on Diab in the judicial review proceedings in this Court when the point was not taken in the appeal to the District Court.

    12. [1981] HCA 45; 147 CLR 589.

24. After the hearing concluded, the Court wrote to the legal representatives of the parties as follows:

“The Court wishes to draw attention to an issue which may be significant, but which as yet has not been directly addressed by the parties.

On one view, the Amended Summons seeks to raise a question of law that could and should have been raised in the District Court Appeal but was not.

While the Court of Appeal decision in New South Wales Housing Corporation v Diab [2015] NSWCA 133 was handed down after the District Court dismissed the present applicant’s appeal, the decision of the Appeal Panel in NSW Land and Housing Corporation v Diab [2014] NSWCATAP 27 predates the hearing of the District Court appeal by some months. No explanation seems to have been provided as to why the point decided in Diab was not raised in the District Court appeal.

The Court directs the attention of the parties to the observations of Handley AJA in Geftlic v Merhi [2011] NSWCA 241 at [38], where his Honour refers to Anshun estoppel.

The issues on which the Court invites further submissions are whether the principle of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, applies in the present case and whether the principle requires the Court to refuse an extension of time in which to file the Amended Summons or to dismiss the Amended Summons.”

25. In response to this letter, the applicant’s solicitor swore and filed an affidavit stating that he was not aware of the decision of the Appeal Panel in Diab (Diab (AP)) at the time the District Court appeal was heard. The solicitor’s affidavit goes on to say that he learned of the Court of Appeal decision in Diab on about 22 May 2015, which of course was after the District Court had dismissed the applicant’s appeal. The solicitor further says that he subsequently wrote to the Corporation’s solicitor expressing concern that the Corporation had not drawn the attention of the District Court to Diab (AP). This expression of concern apparently elicited a response to the effect that the Corporation was not obliged to bring the decision to the attention of the District Court as it was irrelevant to the issues on the appeal.

26. The solicitor’s affidavit was accompanied by supplementary written submissions on behalf of the applicant. These contend that it was not unreasonable for the applicant not to have relied on the Diab (AP) before the District Court because his legal advisers were unaware of the decision and, in any event, Diab (AP) was not a decision binding on the District Court.

The Residential Tenancies Act

27. The following provisions of the Residential Tenancies Act are relevant to the issues raised by the applicant:

“87    Breach of agreement

(1)   A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement.

(2)   The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given.

(3)    The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement.

(4)    The Tribunal may, on application by a landlord, make a termination order if it is satisfied that:

(a)    the tenant has breached the residential tenancy agreement, and

(b)    the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and

(c)    the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

(5)    In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following:

(a)    the nature of the breach,

(b)    any previous breaches,

(c)    any steps taken by the tenant to remedy the breach,

(d)    any steps taken by the landlord about the breach,

(e)    the previous history of the tenancy.

(6)    The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach.

88   Termination notices for non-payment of rent

(1)    A termination notice given by a landlord on the ground of a breach of the residential tenancy agreement solely arising from failure to pay rent (a non-payment termination notice) has no effect unless the rent has remained unpaid in breach of the agreement for not less than 14 days before the notice is given.

(2)    A non-payment termination notice is not ineffective merely because of any failure of the landlord or the landlord’s agent to make a prior formal demand for payment of the rent.

(3)    A non-payment termination notice must inform the tenant that the tenant is not required to vacate the residential premises if the tenant pays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord.

113    Defects in termination notices

The Tribunal may make a termination order for a residential tenancy agreement or any other order even though there is a defect in the relevant termination notice or the manner of service of the notice if:

(a)   it thinks it appropriate to do so in the circumstances of the case, and

(b)    it is satisfied that the person to whom the notice was given has not suffered any disadvantage because of the defect in the notice or service or that any disadvantage has been overcome by the order and any associated order.

152   Termination by Tribunal of social housing tenancy agreements for breach

(1)   In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant:

(a)    any serious adverse effects the tenancy has had on neighbouring residents or other persons,

(b)    whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk,

(c)    the landlord’s responsibility to its other tenants,

(d)    whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal,

(e)    the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement.

(2)    This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act.”

Course of Events

28. The applicant was born in Iran and came to Australia in 1990. He is a paraplegic and is wheelchair bound. The Brookvale premises he has occupied pursuant to the Lease have been modified to suit his requirements.

29. The Lease required the applicant to pay rent assessed by reference to the market rent for the premises at the date of the Lease. The rent payable under the terms of the Lease has been adjusted from time to time to reflect changes in the market rent.

30. Part 7 of the Housing Act provides for the Corporation to grant rental rebates to tenants of public housing. For many years the applicant applied for and received a rental rebate, in accordance with applicable guidelines. It was held in Diab that the effect of the Corporation granting a rental rebate in this manner is to vary the rental payable to the Corporation under a residential tenancy agreement. [13]

    13. Diab at [33] (Macfarlan JA, Beazley P agreeing).

31. On 25 July 2009, the Department of Housing informed the applicant by letter that the market rent of the premises had decreased from $470.00 per week to $465.00 per week. However, the letter also informed the applicant that he should continue to pay his subsidised rent of $114.90 per week.

32. In the latter part of 2009, the Corporation investigated claims that the applicant had made false or incomplete declarations over a number of years concerning his assets. On 29 March 2010, the applicant was informed that the Corporation, acting pursuant to s 57(1) of the Housing Act, had cancelled his rental subsidy. The reason given was that he owned properties which he had not declared and thus did not meet the eligibility requirements for the rental subsidy. He was also informed that the subsidy had been cancelled as from June 2003, the date he had first purchased undeclared property. The effect of the retrospective cancellation of the rental subsidy was that the applicant incurred a debt to the Corporation of $110,989.35, presumably representing the value of the subsidy over the period of nearly seven years.

33. On 25 July 2010, the Department of Housing informed the applicant that the market rent of the premises would be increased to $500.00 per week as from 11 October 2010. The letter stated that since he no longer received a rent rebate, he was required to pay the new market rent.

34. On 10 February 2011, the Corporation issued a Notice of Termination of the Lease pursuant to s 87 of the Residential Tenancies Act. The Notice of Termination alleged that the applicant had breached the Lease by not paying rent on time. The particulars of the rental arrears were stated as follows:

“An amount of $128,293.49 is owing at 10 February 2011, which, based on a weekly rental of $500.00 is in excess of 14 days in arrears.

…

You are not required to vacate the residential premises if you pay all the rent charges owing or enter into, and fully comply with, a repayment plan agreed with the landlord.”

The Notice of Termination required possession of the premises to be given up on 4 March 2011.

35. A Notice of Termination on the ground of non-payment of rent does not of itself terminate a residential tenancy agreement. On 14 February 2011, the Corporation brought proceedings in the Tribunal seeking orders pursuant to s 87(4) of the Residential Tenancies Act terminating the Lease and requiring the applicant to give up possession of the premises.

36. On 6 October 2011 the Tribunal made orders terminating the Lease on the ground that the applicant had “persistently breached the terms of the [r]esidential [t]enancy [a]greement in relation to the payment of rent and has not paid all the rent owing”.

37. On 27 June 2012, the applicant filed a summons in the Common Law Division seeking orders quashing the Corporation’s decision to cancel his rental rebate. On 4 April 2013, Rothman J made orders quashing the Corporation’s decision. [14]

    14. Navazi v New South Wales Land and Housing Corporation [2013] NSWSC 138.

38. The Corporation appealed against the decision of Rothman J and on 12 December 2013, the Court of Appeal allowed the appeal. [15] The Court dismissed the applicant’s amended summons, thereby effectively restoring the Corporation’s retrospective cancellation of the applicant’s rental subsidy.

    15. New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431.

39. On 11 September 2014, the High Court dismissed an application by the applicant for special leave to appeal from the decision of the Court of Appeal.

40. In the meantime, the applicant filed proceedings in the District Court on 16 November 2011 seeking a stay of the orders made by the Tribunal. This application was succeeded by various motions and a summons instituting an appeal to the District Court pursuant to s 67(1) of the CTTT Act from the decision of the Tribunal. It appears that the District Court appeal (which required an extension of time) was put on hold pending the outcome of the applicant’s challenge to the Corporation’s decision to cancel the rental rebate.

41. Ultimately, on 22 January 2015, the applicant filed a Third Further Amended Summons in the District Court (3FAS) specifying the grounds of his appeal from the Tribunal’s decision. Orders were made granting the necessary extension of time and the appeal was heard on 6 March 2015. As has been noted, District Court dismissed the appeal on 27 March 2015.

42. On 21 April 2015, the applicant filed a summons in this Court seeking judicial review of the decision of the District Court. On 21 May 2015, the Court of Appeal delivered judgment in Diab, holding that the retrospective cancellation of a rental subsidy does not, of itself, create arrears of rent. The applicant’s solicitor learned of the decision shortly after it was handed down.

43. The applicant’s Amended Summons was filed in this Court on 23 June 2015. I have set out the grounds stated in the Amended Summons. [16]

The Proceedings

16. At [22] above.

The Tribunal’s Decision

44. The Tribunal’s reasons for decision recorded a number of factual findings that are not contentious. It then made the following findings:

“5.   The rent had remained unpaid for not less than 14 days on the day the notice was served or deemed served. Accordingly, the grounds for termination and possession set out in the notice of termination have been established.

6.   The tenant has persistently breached the terms of the residential tenancy agreement in relation to the payment of rent and has not paid all the rent owing. Furthermore, following the exhaustion of the housing appeal process in November 2010, the tenant has continued to pay only $230.00 per week when the market rent had been assessed at $500.00 per week. As of this month, the rent arrears total $141,367.78

…

8. The Tribunal has considered and taken into account, the tenant’s evidence as to his ill health and disability, together with his denial with respect to having received a direct benefit from his part ownership of two properties (as set out in the tenant’s affidavit sworn 5/10/10 and in his brother’s affidavit of the same date). The Tribunal has also considered and taken into account the tenant’s evidence as to his family’s financial circumstances. Having taken all of the evidence into account, both documentary and oral, the Tribunal finds that, on at least three occasions, the tenant falsely represented to the landlord that neither he nor his wife owned or part-owned any property. As a consequence of the landlord’s discovery as to the tenant’s false representation, the landlord reviewed the applicable rent subsidy and levied rent arrears that brought the provisions of s.88 in to play. Those arrears amount to a very large sum of money. Notwithstanding that he has been on notice since at least October 2010 of the new market rent, the tenant has never paid the full weekly rent due. In such circumstances, and having taken the criteria set out in s.152 into account, the Tribunal finds that the landlord has made out it [sic] case for the orders sought. In determining the date for vacant possession, the Tribunal notes that the landlord makes no submission as to a possession date, but rather invites the Tribunal to exercise its discretion to determine the appropriate date. On behalf of the tenant it has been put that he should be given 12 months to vacate. However, the tenant has been on notice of the serious allegations made against him since April 2010 and ought to have considered his options with respect to alternative accommodation. Accordingly, the Tribunal will allow one month only for the tenant to vacate the premises.

9.   The Tribunal is satisfied that, in the circumstances of the case, the breach is such as to justify termination of the tenancy.”

45. The figure of $230.00 per week recorded by the Tribunal as the amount paid by the applicant was apparently put to the Tribunal by the applicant’s counsel. It is not clear whether that figure represented an adjusted rebated weekly rental or was calculated in some other way.

The Appeal to the District Court

46. The applicant’s grounds of appeal in the District Court, in summary, were the following:

• the Tribunal erred in finding that the applicant had on at least three occasions represented that neither he nor his wife owned property;

• the Tribunal should have found that any property owned by the applicant was held on trust by him;

• the Tribunal failed to consider whether any property owned by the applicant could be a viable alternative to public housing; and

• the Tribunal failed to have regard to the matters stated in s 152 of the Residential Tenancies Act.

47. The District Court’s reasons for dismissing the appeal are lengthy and somewhat repetitive. As they are not divided into numbered paragraphs, cross-references are difficult.

48. At the outset, the District Court Judge recorded that by October 2011, the applicant’s rent was in arrears by $141,367.78, a figure derived from the Tribunal’s reasons. The District Court Judge also noted that:

“The Tribunal’s discussion about the termination of the rental subsidy was not a necessary step in the reasoning to the conclusion to terminate the tenancy by reason of rental default. The termination of the rental subsidy, and the reasons for that, were historical facts, relevant only to the history of the tenancy, and how the rental default came about.”

49. In substance, the District Court Judge accepted that the Tribunal was required to give consideration to the criteria in ss 87 and 152 of the Residential Tenancies Act, but held that the Tribunal had done so. In her Honour’s view, the applicant’s contentions amounted in many ways to a collateral attack on the decision to cancel the applicant’s rental subsidy, a decision that had been upheld by the Court of Appeal. It was not open to the Tribunal to consider whether that decision had been correct. Thus the Tribunal could not inquire and indeed had not been invited to inquire as to whether the applicant held the property acquired by him on trust for someone else.

50. The District Court Judge observed that no issue had been taken about the Tribunal’s findings that rent had been unpaid for not less than 14 days or that the grounds for termination set out in the notice of termination had been made out. Nor was there any issue about the rent being in arrears and no suggestion had been made that the applicant had attempted to remedy the breach within the meaning of s 87(5)(c) of the Residential Tenancies Act.

51. Her Honour also referred to the Tribunal adverting to the continuing nature of the breach and to the arrears amounting to a large sum of money. There had been no issue about the factual findings in that respect.

52. The orders made by the District Court Judge were not framed by reference to the language of s 67(3) of the CTTT Act. [17] Her Honour simply dismissed the appeal and noted that the consequence was that the applicant had to vacate the premises within one month.

Three Preliminary Issues

17. See at [13] above.

Jurisdictional Error by the Tribunal?

53. For reasons that I shall explain, I do not think that the applicant should be permitted in these proceedings to challenge the decision of the Tribunal on the ground of jurisdictional error. But as the foundation for the applicant’s argument is that the Tribunal committed such an error, I should briefly state my view. I do so on the assumption that the only issue is whether the Tribunal committed a jurisdictional error, and that this is to be addressed without regard to the dismissal of the District Court appeal and the lapse of time between the Tribunal’s decision and the institution of judicial review proceedings. I shall address the significance of those matters later.

54. Ms Needham SC, who appeared with Mr Babe for the applicant, identified the Tribunal’s error as its finding that the applicant was in arrears of rent in the sum of $141,367.78. This finding, so Ms Needham argued, reflected the Tribunal’s erroneous holding that the Corporation’s cancellation of the applicant’s rental subsidy retrospectively put him in arrears of rental under the Lease. She submitted that the error was jurisdictional because the Tribunal failed to recognise that the Notice of Termination was defective. The defect was that the Notice of Termination incorrectly asserted that the applicant owed $128,293.49 in rental. Thus the statement in the Notice that the applicant was not required to vacate the premises if he paid all rent owing was misleading and did not comply with s 88(3) of the Residential Tenancies Act. [18] For this reason, the Tribunal, acting reasonably, could not have been satisfied that the Notice of Termination was given as required by s 87(4)(c) of the Residential Tenancies Act. Since the Tribunal had to be satisfied of that fact before the power to make a termination order was enlivened, the Tribunal’s error was jurisdictional.

    18. See at [27] above.

55. The distinction between jurisdictional error and an error within jurisdiction is notoriously difficult to identify with clarity and may be “chimerical”. [19] Recognising the difficulty, the problem with Ms Needham’s submission is that it pays too little regard to s 113 of the Residential Tenancies Act. Section 113 empowers the Tribunal to make a termination order even though there is a defect in the relevant termination notice, if it thinks it appropriate to do so and if it is satisfied that the tenant has not suffered any disadvantage because of the defect. Section 87(4)(c) requires the Tribunal to be satisfied that the “termination notice was given in accordance with this section”. Section 87(2) requires the termination notice to specify a termination date not earlier than 14 days after the notice. However, s 87 does not specify any other requirements and in particular does not state that the termination notice must comply with the requirement in s 88(3), although non-compliance with s 88(3) could still be regarded as rendering the notice defective.

    19. Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [212] (Kirby J); see generally M Allars, “The Distinction between Jurisdictional and Non-jurisdictional Errors: Its Significance and Rationale” in D Mortimer (ed), Administrative Justice and its Availability, (2015, Federation Press) at 74.

56. When these provisions are read together, the Tribunal’s power to make a termination order is conditional upon a termination notice being served, but not a termination notice free from all defects. The very point of s 113 is to allow the Tribunal to make a termination order notwithstanding that the termination notice has a defect. It is a matter for the Tribunal to decide whether the termination notice, despite the defect, satisfies the broad criteria stated in s 113.

57. The Notice of Termination in this case was defective. But the defect did not of itself deprive the Tribunal of power to make the termination order. The failure of the Tribunal to recognise that the Notice of Termination was defective involved an error of law, but not one that deprived it of jurisdiction to determine whether a termination order should be made.

58. There may be a stronger argument that the Tribunal committed a jurisdictional error by failing to address whether it should make a termination order despite the defect in the Notice of Termination (even though it was not asked to do so). If the Notice of Termination was in fact defective because it substantially mis-stated the extent of rental arrears, the Tribunal could only make a termination order if it was satisfied of the matters specified in s 113. The failure to consider whether it was satisfied of those matters may have constituted a jurisdictional error. However, it is not necessary to resolve this question.

59. I think that the Tribunal made a jurisdictional error for a different reason. In Brennan v New South Wales Land and Housing Corporation (Brennan),[20] Basten JA construed the predecessor to s 87(4)(b) of the Residential Tenancies Act as stating a jurisdictional fact that had to be established, namely the Tribunal’s satisfaction that the tenant’s breach of the residential tenancy agreement was such as to justify termination of the Lease. [21] His Honour pointed out that a state of satisfaction may not be validly reached in law where the Tribunal is bound to take into account a factor but fails to do so. [22] Equally, the requisite state of satisfaction cannot be reached if the Tribunal takes into account an extraneous or irrelevant consideration that it should not take into account. [23]

    20. [2011] NSWCA 298; 83 NSWLR 23.

    21. Brennan at [89], referring to s 64(2)(b)(ii) of the Residential Tenancies Act 1987 (NSW). Section 64(2), unlike s 87(4) of the current Residential Tenancies Act, required the Tribunal to make a termination order if satisfied of the specified matters. But the difference is not material for present purposes.

    22. Brennan at [84], citing Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [54] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

    23. Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360 (Dixon J); Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179 per curiam.

60. In this case, the Tribunal was satisfied that the breach of the Lease was sufficient to justify termination on the basis that the arrears of rent totalled over $128,000. Although this appears to be a factual finding, it rested on an erroneous understanding of the legal effect of the Corporation’s cancellation of the applicant’s rental subsidy. The Tribunal’s state of satisfaction as to the seriousness of the breach was based on an extraneous and legally flawed consideration. It therefore committed a jurisdictional error. That the Tribunal may well have reached the same state of satisfaction even it assessed the arrears at only $20,000 or thereabouts does not alter this conclusion.

Diab

61. The affidavit read in support of the applicant’s application to extend the time for the filing of the Amended Summons recorded that Diab was decided after the District Court dismissed the applicant’s appeal. The written submissions filed on the applicant’s behalf prior to the hearing in this Court suggested that an extension of time would allow this Court “to focus upon the issues arising from the interaction of [the present] case with [the] decision in Diab”. The written submissions also suggested that the application for judicial review would give this Court an opportunity to analyse the issues freed from the constraints applicable to the District Court under s 67 of the CTTT Act.

62. Although neither the affidavit nor the written submissions said so expressly, they appear to have assumed that neither the applicant nor his advisers could have been expected to raise in the District Court appeal the issue of law decided in Diab. In effect, the applicant’s argument suggested that what is said to be the critical error in the decision of the Tribunal and repeated in the District Court’s reasons only became apparent when this Court delivered judgment in Diab.

63. The letter sent by the Court to the parties’ representatives after the hearing in effect challenged this assumption and asked for an explanation for the failure to raise the issue of law in the District Court appeal. [24] I have summarised the responses to the letter made on behalf of the applicant. [25]

    24. See at [24] above.

    25. See at [25]-[26] above.

64. The Appeal Panel that decided Diab (AP) comprised the President of NCAT (Wright J), a Deputy President and a Senior Member. The Appeal Panel delivered a reserved judgment that identified the issue before it as:[26]

“whether the retrospective cancellation of the weekly rental rebates had the consequence that the [tenant] could be found to have breached the residential tenancy agreement every week from 7 November 1993 [the date from which the cancellation was expressed to take effect] to the date of [the] cancellation [decision] by failing to pay the full amount of the market rent on time.”

26. [2014] NSWCATAP 27 at [53].

65. The Appeal Panel rejected the Corporation’s contention that the tenant was obliged retrospectively to pay the full market rent:[27]

“The later cancellation of the rebate did not, absent some term in the residential tenancy agreement to that effect or some equivalent statutory provision, convert conduct which, at the time of the conduct, discharged the respondent’s obligations under the tenancy agreement into conduct which breached those obligations at that time.”

The reasons of the Appeal Panel pointed out that this conclusion was consistent with a decision that had been given in 2008 by the Consumer Trader and Tenancy Tribunal. [28]

27. [2014] NSWCATAP 27 at [54].

28. The decision referred to was NSW Land and Housing Corporation v Bergman [2008] NSWCTTT 1201.

66. The Court of Appeal in Diab granted the Corporation leave to appeal from the decision of the Appeal Panel, but dismissed the appeal. One of the grounds of the Corporation’s notice of appeal was that:[29]

“The Civil and Administrative Appeal Panel erred in law in finding the [Corporation’s] retrospective cancellation of the rental rebate granted by the [Corporation] to the [tenant] did not give rise to rental arrears that became due and payable by the [tenant] to the [Corporation] pursuant to the Residential Tenancy Agreement … upon the cancellation of the rental rebate.”

In concluding that the Appeal Panel had not erred, Leeming JA (with whom Beazley P and Macfarlan JA agreed on this issue) observed that his reasoning substantially accorded with the reasons and conclusions of the Appeal Panel.

29. Diab at [57].

67. As previously noted, the applicant’s 3FAS was filed in the District Court on 22 January 2015, over seven months after the Appeal Panel’s reasons in Diab were handed down. The hearing in the District Court took place on 6 March 2015, nine months after the Appeal Panel’s reasons were published. The applicant was represented by counsel, as he had been in the proceedings determined by the Tribunal.

68. I accept that the applicant’s solicitor was unaware of the decision in Diab (AP) until after the District Court dismissed the applicant’s appeal. However, neither the solicitor’s affidavit nor the applicant’s supplementary submissions suggest that the applicant’s legal representatives, with the exercise of reasonable diligence, could not have ascertained that the Appeal Panel had decided a question of law that could have been raised on the applicant’s behalf in the District Court.

69. Indeed, the applicant’s legal representatives, quite independently of the decision in Diab (AP), could have raised the issue addressed in that case as a ground in the appeal to the District Court. The 3FAS filed in the District Court could have alleged that the Tribunal erred in concluding that the retrospective cancellation of the applicant’s rental subsidy caused him to be in breach of his obligation to pay rent from the date the cancellation was expressed to take effect. The argument was plainly available. The propositions accepted by the Appeal Panel and by the Court of Appeal in Diab involve the application of orthodox principles of contract law and statutory interpretation. Moreover, as the Appeal Panel pointed, there was an earlier tribunal decision that supported the argument.

70. The decision in Diab (AP) added considerable weight to the argument that could have been put to the District Court. Unless overturned on appeal or disapproved by a later appellate judgment, the decision of the Appeal Panel was clear and unequivocal authority in favour of the very proposition the applicant now wishes to agitate in the judicial review proceedings. It is not necessary to decide whether the applicant is correct to submit that, despite the presence of a Judge of the Supreme Court on the Appeal Panel, the decision in Diab (AP) was not binding on the District Court. Whether or not the submission is correct, it is not to the point. The issue of law on which the applicant seeks to rely in this Court could have been raised in the District Court appeal and, with the exercise of reasonable diligence, should have been raised on the applicant’s behalf.

A Gap in the Evidence

71. The Tribunal found that notwithstanding that the applicant had been on notice since at least October 2010 of the new market rent for the premises, he had never paid the full amount due. Specifically, the Tribunal found that following exhaustion of the internal appeal process with the Corporation in November 2010, the applicant paid only $230.00 per week in rental, when the market rent had been assessed at $500.00 per week. Since the applicant had been notified of the Corporation’s cancellation decision on 29 March 2010, these figures suggest that the arrears of rent, ignoring any retrospective element, amounted to at least $20,000.00 by the date of the Tribunal’s decision. (The Amended Summons suggests that the figure is $17,304.14, but that figure is calculated from November 2010.)

72. The applicant’s submissions in this Court appear to concede that at that date of the Tribunal’s decision he owed $30,378.43 in rent, although it is not clear how that sum is calculated and how it relates to the figures in the Amended Summons. In any event, there is no dispute that by the date of the Tribunal’s decision, the applicant was substantially in arrears of rent and had not paid the correct rent due under the Lease for about 20 months.

73. During the Tribunal hearing, the Sitting Member observed that even if the rental arrears had only been from November 2010 (one year earlier), the applicant would “be still well and truly [behind]”. The applicant’s counsel responded as follows:

“He’s in arrears now and he can’t afford a market rent. He can’t afford rent of five hundred dollars based on his Centrelink income.”

74. It is common ground that since the Tribunal’s decision, the applicant has paid only the rebated rental. Between 4 April 2013, when Rothman J made orders quashing the cancellation decision, and 12 December 2013, when the Court of Appeal set aside Rothman J’s orders, payment at the rebated rate was legally justifiable. After 12 December 2013, it was not.

75. The applicant has adduced no evidence on the current application for judicial review to explain his failure to pay the rent due under the Lease for a period that now exceeds five years. There is no evidence that the applicant has attempted, consistently with his means, to increase his rental payments to a figure closer to the amount he is legally obliged to pay, let alone pay any arrears.

76. Perhaps more to the point for present purposes, the applicant has not provided any evidence that he will in the future be willing and able to pay the rent provided for in the Lease. He has pursued a number of challenges both to the cancellation decision and the decision to terminate the Lease. It is no longer open to him to challenge the cancellation decision and it has not been open to him to do so since the decision of the Court of Appeal on 12 December 2013. [30] If he is to remain in possession of the premises pursuant to the Lease, he will be obliged to pay the rent specified in the Lease. Yet there is no evidence that he will be willing and able to do so.

Reasoning

30. The application for leave to appeal to the High Court, which was dismissed on 11 September 2014, did not relieve the applicant from the obligation to pay rent under the Lease.

The Applicant’s Submissions

77. Ms Needham SC, focussed her submissions on what was said to be the jurisdictional error committed by the Tribunal. She acknowledged, however, that the applicant, in order to set aside the Tribunal’s order terminating the Lease, must succeed in quashing both the Tribunal’s decision and the District Court order dismissing the applicant’s appeal.

78. Ms Needham submitted that the Tribunal had committed a jurisdictional error in that it had incorrectly held that the effect of the retrospective cancellation of the applicant’s rental subsidy was to place the applicant in arrears of rental as from June 2003. Instead, the Tribunal, consistently with Diab, should have held that the rental under the Lease was adjusted only from the date of the cancellation decision. Ms Needham submitted that if the Tribunal’s decision was set aside, the District Court decision would fall with it.

79. In the course of argument, it was pointed out that there might be a difficulty in challenging the Tribunal’s decision in circumstances where the District Court had dismissed an appeal from the Tribunal. Ms Needham’s attention was drawn to the decision of this court in Forge v Australian Securities and Investments Commission (No 2). [31]

    31. [2007] NSWCA 42; 69 NSWLR 575.

80. In that case, the Court of Appeal made orders on an appeal from a decision of the Equity Division. A subsequent appeal to the High Court was dismissed. The Court of Appeal dismissed as incompetent a motion to vary certain orders because:[32]

“the operative decision is now that of the High Court which has replaced the decision of this Court for all purposes. The orders of the High Court are now the source of res judicata estoppels”.

32. Forge v ASIC (No 2) at [3]. See also Boland v Dillon [2015] NSWCA 183 at [8]-[9] (McColl JA), at [19]-[20] (Gleeson JA), [77]-[79] (Bergin CJ in Eq).

81. In supplementary written submissions, Ms Needham accepted that it was not open to this Court, on an application for judicial review, to set aside the decision of the Tribunal, but leave intact the orders made by the District Court. She agreed that this followed from the proposition that orders made by an appellate court replace those made by the original decision-maker. Ms Needham nonetheless submitted that the corollary was that:

“any error underlying the [Tribunal’s] decision must have infected that of the District Court’s dismissal of the appeal to it by reason of the replacement.

Accordingly, if any error of the kind contended for by the [applicant] is identified in the decision of the [Tribunal], then it necessarily follows that this Court should set aside each of the decisions of the District Court and [the Tribunal] and remit the matter to [NCAT] for proper consideration according to law.” (Emphasis added.)

Must the District Court Decision be Challenged?

82. The Court in Forge v ASIC (No 2) referred to two decisions of the High Court. In one of those, Wishart v Fraser,[33] the applicant was convicted of an offence by a Court of Petty Sessions and the Court of Quarter Sessions affirmed the conviction. The applicant challenged his conviction in the Court of Petty Sessions, by seeking statutory prohibition against the informant and the magistrate. The High Court held that the order nisi had to be discharged on the ground that the appellate judgment:

“holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary”. [34]

33. [1941] HCA 8: 64 CLR 470.

34. Wishart v Fraser at 478 (Starke J). See also at 476-477 (Rich J), at 483 (Dixon J), at 487 (McTiernan J).

83. In the second case referred to in Forge v ASIC (No 2), The Queen v Marks; Ex parte Australian Building Construction Employees Builders Labourers’ Federation,[35] a union applied for a writ of prohibition against a second union and a Deputy President of the Conciliation and Arbitration Commission. The writ was sought to prevent the Deputy President and the second union from proceeding further with an application brought in the Commission by the second union. The orders made by the Deputy President had been confirmed on appeal by the Full Bench of the Commission.

    35. [1981] HCA 33; 147 CLR 471.

84. The applicant did not join the members of the Full Bench of the Commission as respondents to the proceedings. Mason J (with whom Murphy and Aickin JJ agreed on this point), explained why the joinder was necessary: [36]

“… the applicant sought to justify the course which had been adopted by submitting that if the challenge to the decision of Marks J succeeded on the footing that it was void, the confirmation of that decision by the Full Bench would have no operative effect. This submission does not meet the point that the Full Bench decision is conclusive while it stands. In Wishart v. Fraser [37] , it was held that an appeal as of right to the High Court from a decision of a magistrate exercising federal jurisdiction could not be maintained after it had been confirmed by a Court of Quarter Sessions. Dixon J said: ‘... we cannot ignore the order of the Court of Quarter Sessions confirming the conviction and ... unless we are satisfied that it was made without jurisdiction and is totally void, we must regard it as conclusive while it stands.’ By its decision the Full Bench confirmed the decision at first instance. Further steps to implement the decision will be steps taken pursuant to its confirmation of that decision.”

36. The Queen v Marks: Ex parte BLF at 476.

37. [1941] HCA 8; 64 CLR 470.

85. If in the present case, the effect of the District Court’s decision was that its orders replaced the Tribunal’s orders “for all purposes”, it would seem that relief in the nature of certiorari would not be available to challenge the decision of the Tribunal. The reason for this is that an order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. [38] If the Tribunal’s decision had been replaced by the District Court’s orders, presumably the Tribunal’s exercise of power has been spent.

    38. Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [25] per curiam.

86. In her written submissions in reply to the applicant’s supplementary submissions, Ms McWilliam, who appeared for the Corporation, properly referred the Court to several decisions suggesting a qualification to the principle stated in Wishart v Fraser. [39] Those decisions indicate that a distinction may need to be drawn between cases where there is an appeal by way of rehearing on both fact and law, and cases where the right of appeal is more limited. In the former, the order of the appellate court supersedes that of the court or tribunal at first instance. But if the right of appeal is limited, for example to questions of law, the orders at first instance may not be replaced or entirely replaced by orders made on the appeal.

    39. Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 at [55] (Basten JA, Ward and Emmett JJA agreeing); Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [24] (Basten JA, McColl JA and Handley AJA agreeing).

87. I am prepared to accept, without deciding, that this distinction is correct. Nonetheless, it does not determine whether a writ in the nature of certiorari is available to quash the decision of a court or tribunal at first instance, while leaving untouched the decision made on appeal. Kirk v Industrial Relations Courtof New South Wales [40] suggests that if the first instance decision is to be quashed, the appellate decision must also be quashed. In that case the High Court made orders quashing both the decision of the Industrial Court and the decision of the Full Bench dismissing the appeal from the Industrial Court. [41] The plurality in Kirk characterised the appeal to the Full Bench as a “limited appeal” because of the restrictions the Full Bench had placed on the appellants. [42]

    40. [2010] HCA 1; 239 CLR 531.

    41. Kirk at [108] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

    42. Kirk at [46]. A similar approach was taken in Thiess Pty Ltd and Hochtief AG v Industrial Court of New South Wales [2010] NSWCA 252; 78 NSWLR 94 at [71]-[77] (Spigelman CJ, Beazley P agreeing), although no jurisdictional error was found and thus no orders were made.

88. There is, however, authority against the proposition that a challenge cannot be made to a decision of the Tribunal, where an appeal to the District Court has been dismissed, unless the decision of the District Court is quashed. Although Ms Needham did not refer to the authority, Ms McWilliam did so in her supplementary written submissions.

89. In Brennan a tenant sought judicial review in the Supreme Court of a decision by the Tribunal terminating her lease. The application for judicial review was founded on a denial of procedural fairness by the Tribunal. In addition to seeking judicial review of the Tribunal’s decision in the Supreme Court, the tenant appealed on a number of grounds to the District Court against the Tribunal’s decision. Initially, the summons for leave to appeal in the District Court included the complaint about denial of procedural fairness, but that complaint was removed from the amended summons and expressly eschewed in the District Court. [43]

    43. Brennan at [104] (Basten JA).

90. Although both the summons for leave to appeal and the summons seeking judicial review were filed at about the same time, the District Court appeal was heard first. The District Court dismissed the appeal apparently on the ground that the tenant challenged only factual findings of the Tribunal and thus did not raise any question of law. [44] The application for relief in the nature of certiorari subsequently succeeded in the Common Law Division. An appeal by the Corporation to the Court of Appeal from the decision of the Common Law Division was dismissed.

    44. Brennan at [108].

91. The Corporation did not dispute before the Court of Appeal that the Common Law Division had power in the judicial review proceedings to determine the claim that the tenant had been denied procedural fairness, notwithstanding that the District Court had dismissed her appeal. Although the point had been conceded, all three members of the Court of Appeal expressed the view that the orders made by the District Court presented no impediment to the application for judicial review.

92. Basten JA accepted that:[45]

“Where a dissatisfied party seeks to appeal against a judgment on the merits, it cannot usually maintain that appeal and, at the same time, pursue proceedings by way of judicial review. That is because success on judicial review would invalidate the judgment against which the appeal had been brought and thus remove the subject matter of the appeal: see Wishart v Fraser … In these circumstances, it would be usual to put the party to his or her election. The situation is more complicated where the appeal is limited to a question of law, especially where grounds of appeal may reflect grounds available on judicial review. There is an apparent inconsistency between the judgment of the District Court that the decision of the Tribunal should not be set aside for any error of law and the conclusion of the primary judge in this Court that the decision was invalid for breach of procedural fairness.”

45. Brennan at [101].

93. Basten JA also considered[46] that there might have been an inconsistency if the “no evidence” ground had been upheld in the judicial review proceedings as that ground would have fallen within s 67 of the CTTT Act. [47] But the no evidence ground had not been upheld in the Common Law Division and the procedural fairness argument had not been run in the District Court. The judgment of the District Court rejecting the tenant’s appeal “was not inconsistent with the conclusion that the Tribunal’s decision was invalid on grounds not raised in the course of the appeal to that court”. [48]

    46. Brennan at [102].

    47. Basten JA referred to Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390, which held that a finding made without evidence is an error of law.

    48. Brennan at [107].

94. Handley AJA reached the same conclusion for this reason:[49]

“An appeal under s 67 [of the CTTT Act] and judicial review proceedings permitted by s 65 provide an aggrieved party with remedies which may overlap or be cumulative. The principle in Wishart v Fraser … does not preclude the pursuit of cumulative remedies where there is no inconsistency.” (Citations omitted.)

49. Brennan at [131].

95. In this passage, his Honour referred to his own judgment in Geftlic v Merhi, where he said that:[50]

“Sections 38 and 39 [of the Local Court Act 2007 (NSW)] permit challenges to a decision of the Small Claims Division in the District Court and the Supreme Court on some grounds, and in the Supreme Court on an additional ground … [T]he dismissal of an appeal to the District Court would not bar an application for certiorari in the Supreme Court for error of law on the face of the record. The remedies are cumulative and an aggrieved litigant has no obligation to elect. However, there could be an Anshun estoppel in an appropriate case.” (Emphasis added.)

50. Geftlic v Merhi [2011] NSWCA 241 at [38].

96. There are two distinctions between Brennan and the present case. The first is that in Brennan the District Court appeal and the proceedings for judicial review were run concurrently, not consecutively. Thus at the time the District Court appeal in Brennan was heard, the tenant’s complaint about denial of procedural fairness was before the Supreme Court. Indeed the complaint had been raised earlier in the District Court proceedings, but not pursued in those proceedings. As Basten JA pointed out,[51] the only reason the applications were not heard together was that appeals from the Tribunal under the 2008 amendments to the CTTT Act go to the District Court, which lacks the supervisory jurisdiction of the Supreme Court. Previously such appeals went to the Supreme Court.

    51. Brennan at [28].

97. The second distinction is that the District Court appeal in Brennan, was available only on questions of law but apparently did not raise any such question and was dismissed for that reason. The appeal to the District Court in the present case raised questions of law, but the applicant’s arguments were rejected.

98. Whether the second of these distinctions is important depends on how a court is to determine whether the dismissal of a District Court appeal is inconsistent with the orders sought by the unsuccessful appellant in a later judicial review proceedings. On one view, if the ground of the judicial review application raises a question of law that could have been raised on the appeal there may be an inconsistency.

99. The reasoning in Brennan suggests, however that if the appeal does not include the ground subsequently relied on in the judicial review proceedings, there is no relevant inconsistency. This view receives support from the language of s 67(3), of the CTTT Act which states that, after deciding the question with respect to a matter of law which is the subject of the appeal, the District Court may affirm the decision of the Tribunal on the question. If a question of law is not raised in the grounds of appeal, the orders of the District Court may be interpreted as simply not addressing that ground and as having nothing to say on whether the decision of the initial decision-maker was correct insofar as it dealt with that question of law. If that is correct, there may be no direct inconsistency between the orders made by the District Court in this case and the judicial review proceedings, insofar as the applicant seeks relief on the ground that the Tribunal erred in calculating the arrears of rent.

100. I am prepared to proceed on the basis that, despite Ms Needham’s apparent concession to the contrary, the applicant is not necessarily required to set aside the decision of the District Court before seeking orders quashing the Tribunal’s decision on the ground of jurisdictional error. There is, however, another obstacle in the applicant’s path arising from the fact that the proceedings seeking judicial review of the Tribunal’s decision were instituted after the District Court dismissed the applicant’s appeal.

Anshun Estoppel

101. In Brennan, Handley AJA qualified his observation that the principle of Wishart v Fraser does not preclude the pursuit of cumulative remedies by referring to “Anshun estoppel”. In Anshun [52] the High Court approved the principle stated in Henderson v Henderson [53] as follows:

“where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.” (Emphasis added.)

52. Anshun at 598, 602-603 (Gibbs CJ, Mason and Aickin JJ).

53. (1843) 3 Hare 100 at 115; 67 ER 313 at 319 (Wigram V-C).

102. The ratio of Anshun applies where the contentions not brought forward relate to claims as well as defences. [54] The test is whether it was unreasonable for the claimant in the second proceedings not to have raised the contention in the first proceedings. If it was unreasonable, the claimant will be estopped from relying on the contention in the second proceedings. The test of unreasonableness requires the court to exercise a broad discretion by reference to the circumstances of the case. [55]

     54. Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 at 673 (Samuels JA, Priestley and Meagher JJA agreeing).

     55. Boles v Esanda Finance Corporation at 673.

103. For the reasons I have given, the ground upon which the applicant relies to obtain an order in the nature of certiorari quashing the decision of the Tribunal could and should have been raised in the appeal to the District Court. The ground raises “a question [decided by the Tribunal] with respect to a matter of law” within the meaning of s 67(1) of the CTTT Act and thus could have been included in the applicant’s grounds of appeal. The ground was closely related to the other grounds of appeal which challenged the correctness of the Tribunal’s decision to terminate the Lease. The fact that the issue was apparently overlooked by the applicant’s legal representatives is not a sufficient basis for concluding that it was not unreasonable for the applicant to have raised the question of law in the District Court appeal

104. Insofar as the applicant contends that the Corporation should have drawn the attention of the District Court to the decision in Diab (AP), I do not accept the contention. The decision in Diab (AP) was irrelevant to the grounds of appeal identified in the applicant’s 3FAS. The Corporation was not obliged to draw to the attention of the District Court or to the applicant’s legal representatives a decision that might have supported a ground of appeal not identified by the applicant. (It is not necessary to consider whether there would have been any obligation had Mr Navazi not been represented by counsel.)

105. The argument of law that is the foundation for relief in the judicial review proceedings was clearly available and supported by authority at the time the 3FAS was filed in the District Court and at the time the appeal was heard. In my view, it was clearly unreasonable for the ground not to have been advanced on the applicant’s behalf in the District Court appeal.

106. This is no mere technicality. Whatever the position where a District Court appeal and judicial review proceedings are run concurrently, a party who has not brought his or her whole case forward on the appeal should not be permitted, in the absence of a satisfactory explanation for the omission, to rerun the appeal in the form of an application for judicial review of the original decision. In Burrell v The Queen,[56] the High Court observed that the principle of finality of litigation: [57]

“serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time”.

The circumstances of Burrell were different to those of the present case, [58] but the observation of the High Court is pertinent to the applicant’s attempt to rely on an argument that was available to him in the appellate process. [59] The policy reasons underlying the Anshun principle apply to that attempt.

56. [2008] HCA 34; 238 CLR 218.

57. Burrell v The Queen at [16] per curiam.

58. The issue in Burrell v The Queen was whether the Court of Criminal Appeal had power to reopen an appeal once judgment had been entered, in order to correct factual errors. The High Court held that the Court of Criminal Appeal lacked power to reopen the appeal.

59. See also Achurch v The Queen [2014] HCA 10; 253 CLR 141 at [15]-[16] (French CJ, Crennan, Kiefel and Bell JJ).

107. The consequence of applying the Anshun principle to the present case is that the applicant should not be permitted in these proceedings to challenge the Tribunal’s decision on the ground that it incorrectly understood the effect of the Corporation’s cancellation decision on the tenant’s obligation to pay rent. The application for an extension of time to file the application for judicial review, insofar as it relates to the challenge to the Tribunal’s decision, should therefore be dismissed.

The Challenge to the District Court Orders

Error of Law?

108. It is not clear whether the applicant wishes to persist in his contention that the District Court committed an error of law on the face of the record if he is not permitted to challenge the decision of the Tribunal. If, however, the challenge is maintained, I would reject it.

109. Ms Needham submitted that if the Tribunal committed a jurisdictional error, it followed that the District Court must have committed the same error. No doubt there are cases where an appellate court commits the same error as the court or tribunal at first instance. This appears to have been the situation in Kirk, where the High Court quashed both the orders made by the Industrial Court and those made by the Full Bench on appeal. But the fact that an appellate court dismisses an appeal from a court or tribunal which committed a jurisdictional error does not necessarily mean that the appellate court has fallen into the same error. Indeed an error of law committed by a tribunal may constitute a jurisdictional error (because the tribunal has no jurisdiction to decide questions of law incorrectly), but the same error committed by a court on appeal may merely constitute an error of law on the face of the record (because the Court has jurisdiction to decide questions of law).

110. The general point is illustrated by The Queen v Marks; Ex parte BLF. The applicant union in that case complained that a Deputy President of the Conciliation and Arbitration Commission had denied it natural justice. The complaint was rejected on the ground that the union had received a fair hearing on the appeal to the Full Bench and thus any denial of natural justice before the Deputy President (or jurisdictional error) was irrelevant. [60] Other illustrations can readily be given of an appellate decision affirming the original decision without being tainted by any error affecting the original decision. It is not uncommon, for example, for an appellate tribunal to hold that the original decision-maker committed an error of law, but to uphold the decision on other grounds.

     60. The Queen v Marks; Ex parte BLF at 485 (Mason J, Aickin and Wilson JJ agreeing).

111. It follows that insofar as the applicant is challenging the orders of the District Court, the question that has to be determined, subject to any discretionary considerations, is whether the District Court committed an error of law on the face of the record. Since the applicant’s submissions concentrated on the Tribunal’s decision, they said relatively little about the District Court’s decision, other than to submit (erroneously in my view) that any error committed by the Tribunal must be imputed to the District Court. In substance, Ms Needham’s remaining contention is that the District Court’s reasons show that it, like the Tribunal, acted on the mistaken view that the retrospective cancellation of the applicant’s rental subsidy placed the applicant in default on the payment of rent from June 2003.

112. The applicant was entitled to appeal to the District Court as a party dissatisfied with the Tribunal’s decision on a question with respect to a matter of law. It was incumbent on him to identify any such decision of the Tribunal with which he was dissatisfied. As French CJ observed in Kostas v HIA Insurance Services Pty Ltd:[61]

“[a]n appellant invoking s 67 [of the CTTT Act] should identify the decisions of the Tribunal of questions with respect to matters of law which are the subject of the appeal.

A decision of a question with respect to matters of law is not merely a condition of the jurisdiction conferred by s 67, it is the subject matter of the jurisdiction”. (Citations omitted.)

61. [2010] HCA 32; 241 CLR 390 at [33].

113. The applicant identified the alleged errors of the Tribunal about which he complained in the 3FAS filed in the District Court. [62] None of the grounds of appeal identified the Tribunal’s finding that the arrears of rental at the date of the hearing totalled $141,367.78, rather than a lesser figure (such as the amount of $30,378.43 the applicant appears to accept as correct). Nor did the grounds of appeal challenge the finding by the Tribunal that the applicant was in breach of the Lease and that the breach, in the circumstances of the case, was sufficiently serious to justify termination of the Lease. [63] No argument was put to the District Court that the Tribunal erred in concluding that the cancellation of the rental rebate created arrears of rent dating from 2003.

     62. See at [46] above.

     63. Residential Tenancies Act, s 87(4)(a), (b).

114. Had the applicant appealed to the District Court on the ground that the Tribunal erred in law in dating the arrears of rent from 2003 and if the District Court rejected the argument, there would be little difficulty in concluding that the District Court had committed an error of law on the face of the record. This would be so even though, on one view of the Tribunal’s reasons, it would have reached the same conclusion had it found that the arrears of rent dated only from the date of the cancellation decision and not from 2003. But the applicant put no such contention to the District Court.

115. As a general principle, it is difficult to conclude that a court or tribunal has erred in law if the question of law was neither raised before the decision-maker nor addressed in the reasons. The question posed by s 69(3) of the Supreme Court Act is whether the ultimate determination of the court or tribunal has been made on the basis of an error of law that appears on the face of the record of the proceedings. If the party invoking the jurisdiction of the appellate court has not identified the error of law made by the court or tribunal at first instance and has not asked the appellate court to correct the error, and if the appellate court for that reason has not addressed the question of law, its ultimate determination is not likely to have been made on the basis of the error of law. In the present case, the applicant’s 3FAS stating the grounds of appeal in the District Court did not identify the error of law upon which it now seeks to rely and in consequence the District Court did not address the question of law. Indeed the error of law on which the applicant relies was not, in French CJ’s phrase, “the subject matter of the jurisdiction” of the District Court.

116. The general principle I have identified is undoubtedly subject to important qualifications. In Kirk the High Court held that the Industrial Relations Court erred in law by permitting a defendant to give evidence in criminal proceedings, in contravention of s 17(2) of the Evidence Act 1995 (NSW). The Court held that this constituted both an error of law on the face of the record and a jurisdictional error. [64] The fact that the parties had agreed that the defendant could give evidence did not prevent relief in the nature of certiorari being granted.

     64. Kirk at [55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

117. The decision in Kirk establishes that certain kinds of decisions by a court or tribunal that can constitute errors of law on the face of the record even though they have not been the subject of complaint before the decision-maker. However, the error identified in Kirk was a jurisdictional error. In the view of the plurality, it involved a “substantial departure from the rules of evidence” that the Industrial Relations Court had no power to waive. [65] Heydon J in his concurring judgment said that the Industrial Relations Court lacked jurisdiction to decide whether to fine the defendants after a trial which was not conducted in accordance with the rules of evidence. [66]

     65. Kirk at [51], [53].

     66. Kirk at [114].

118. It seems to follow from Kirk that a decision by an inferior court or tribunal that involves contravention of the statutory constraints imposed on the court or tribunal constitutes an error on the face of the record even if the point was not adverted to by the parties. Whether the decision in Kirk applies to other jurisdictional errors or perhaps to serious non-jurisdictional errors is not yet clear.

119. In the present case, the error attributed to the District Court did not involve any contravention of statutory constraints governing the appeal or any other jurisdictional error. The District Court had jurisdiction to hear and determine the appeal. In doing so, the District Court did what it was required to do by s 67 of the CTTT Act. The alleged error of law was immaterial to the issues which were raised for determination and which the District Court addressed in its judgment. In these circumstances, in my opinion, the District Court did not commit an error of law on the face of the record.

120. In the preceding analysis I have assumed that if the District Court erred in law, the error was apparent on the face of the record. The only reference in the District Court judgment to the Tribunal’s holding that the cancellation of the rental subsidy had retrospective effect on the rent payable under the Lease appears to be the statement that “[by] October 2011, [the applicant’s] rent was in arrears by $141,367.78”. It is not necessary to consider whether, if the District Court erred in law, this statement is sufficient for the error to appear on the face of the record.

Discretion

121. Relief under s 69(1) of the Supreme Court Act in the nature of certiorari is a discretionary remedy. [67] Since I have concluded that the District Court did not commit an error of law, there is no need to consider whether, if the District Court had made errors of law on the face of the record, relief should be refused to the applicant on discretionary grounds. Nonetheless, I should indicate that, if error had been established, I would have refused relief.

     67. Re McBain; Ex parte Catholic Bishops Conference [2002] HCA 16, 209 CLR 372 at [95] (McHugh J); Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [33] (Gummow and Callinan JJ).

122. I would have done so for much the same reasons as I have given for refusing an extension of time to allow the applicant to challenge the decision of the Tribunal in these proceedings. The applicant could and should have raised the argument on which he now relies in the District Court appeal. The right of appeal to the District Court provided the mechanism to correct the error of the Tribunal in its assessment of the amount of rent owed by the applicant. As I have pointed out, no explanation has been proffered as to why the applicant did not take advantage of the right of appeal available to him in this respect. I would have also taken into account the applicant’s failure to make up any portion of the arrears of rent or to adduce evidence that he is willing or able to pay the rent fixed by the Lease.

123. It was unreasonable for the applicant not to put forward the whole of the case open to him in the District Court appeal. He should not be granted relief in the present proceedings to rectify the omission.

Orders

124. I would make the following orders:

1.   Refuse the applicant an extension of time to file the Amended Summons insofar as it seeks relief in relation to the decision of the Consumer, Trader and Tenancy Tribunal given on 6 October 2011.

2.   Otherwise dismiss the Amended Summons.

3.   The applicant pay the costs of the respondent of the proceedings, including the costs of the application to extend time.

125. Ms McWilliam informed the Court that if the Amended Summons was dismissed, the Corporation was prepared to agree to what she described as “a stay of 28 days”. It is sufficient to note that the Corporation does not intend to seek possession of the premises for a period of 28 days after delivery of this judgment. Thereafter, the Corporation is free to enforce the order for possession of the premises made by the Tribunal.

126. ADAMSON J: I agree with the orders proposed by Sackville AJA and with his Honour's reasons. I also agree with what Leeming JA has said about the overwhelming discretionary factors against a grant of relief, even if there were (contrary to my view) any basis for such relief.

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Endnotes

Decision last updated: 02 October 2015