New South Wales Land and Housing Corporation v Quinn

[2016] NSWDC 27

District Court

New South Wales

Medium Neutral Citation:	New South Wales Land and Housing Corporation v Quinn [2016] NSWDC 27
Hearing dates:	28, 29 May; 30, 31 July; 3, 4, 5 and 12 August 2015
Date of orders:	18 March 2016
Decision date:	18 March 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Proceedings dismissed for want of jurisdiction. (2)   Plaintiff to pay the defendant’s costs. (3)   Entry of order (2) stayed for 14 days.
Catchwords:	JURISDICTION – lease – public housing – statutory right of termination - lease terminated – cancellation of rental rebate – occupation fee - decision by a public body – enforcement of decision – recovery of subsidy or rebate – “proceedings ‘in respect of decisions of a public body’” - “in respect of”
Legislation Cited:	District Court Act 1973, s 44, s 134, s 137 Housing Act 2001, s 6, s 8, s 57 Supreme Court Act 1970, s 53 Supreme Court Rules 1970, Pt 12 r 6, Pt 14 r 2, Pt 20 r 1, Sch H Pt 1, Sch H Pt 2 Uniform Civil Procedure Rules 2005, r 36.16
Cases Cited:	Abbott v Klein [2015] NSWDC 45 Baxter v Obacelo Pty Ltd (2001) 205 CLR 635 Carter Smith, Re; Ex parte Commissioners of Taxation (1908) 8 SR (NSW) 246 Eberstaller v Poulos [2014] NSWCA 211 Flexible Manufacturing Systems v Alter [2004] NSWSC 29 Forsyth v Deputy Commissioner of Taxation [2007] HCA 8 New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 Roberts v City of Gosnells (1995) 13 SR (WA) 72 Wonall Pty Ltd v Clarence Property Corp Ltd [2003] NSWSC 497; (2003) 58 NSWLR 23 Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642
Category:	Principal judgment
Parties:	New South Wales Land and Housing Corporation (plaintiff) Robert Quinn (defendant)
Representation:	Counsel: Mr A Di Francesco (plaintiff) Mr R Dalgleish (defendant)   Solicitors: Legal Services Branch, Housing NSW (plaintiff) John Byrnes & Associates (Legal) Pty Ltd (defendant)
File Number(s):	2014/232539
Publication restriction:	None

Judgment

1. Introduction

1. Robert Quinn was a tenant of the New South Wales Land and Housing Corporation from about 6 March 1998, renting the property where he resided in Cumberland St at The Rocks. The Corporation alleges that it provided rental subsidies from 3 April 2000 in specific amounts to Mr Quinn, that on or before 22 November 2012 it cancelled those subsidies under s 57 of the Housing Act 2001 with retrospective effect from 5 July 1998, and that it gave notice to Mr Quinn to repay those subsidies in the sum of $221,062.10. Mr Quinn has not repaid any part of the subsidies.

2. On 15 May 2014 the New South Wales Civil and Administrative Tribunal terminated Mr Quinn’s lease and granted possession to the Corporation, but suspended the order for possession until 15 July 2014. Mr Quinn was ordered to pay a daily occupation fee of $80.71 per day for each day from 16 May 2014 until vacant possession was given to the Corporation.

3. Mr Quinn has not paid in full the occupation fee nor has he paid the full weekly rent alleged to be payable under the lease from 22 November 2012.

4. Mr Quinn disputes the amount of the subsidies, the validity of any purported decision cancelling the subsidies or backdating the cancellation, and whether the required notice was given. He also disputes the date of vacant possession and thus the amount of the occupation fee.

2. Section 57 of the Housing Act 2001

5. The Corporation’s entitlement to recover the subsidies under s 57 of the Housing Act 2001 is the central aspect of these proceedings. Section 57 provides:

“57 Cancellation or variation of rental rebate

(1) The Corporation may, after conducting an investigation under section 58, vary or cancel any rental rebate granted under this Part.

(2) The Corporation is to determine the date (being a date occurring before, on or after the making of the determination) on which the variation or cancellation has effect or is taken to have effect.

(3) The Corporation is to give notice in writing to a tenant of any decision to vary or cancel any rental rebate being received by the tenant and is to include in the notice the date on which the variation or cancellation takes effect or is taken to have effect.

(4) If the Corporation reduces or cancels a tenant’s rental rebate under this Part with effect from a preceding date, the Corporation may, by notice in writing to the tenant, require the tenant to pay to the Corporation:

(a) an amount equal to any rental rebate or part of a rental rebate received by the tenant on or after the date that the variation or cancellation took effect to which, because of the variation or cancellation, the tenant was not entitled, and

(b) interest (at the rate prescribed under section 101 of the Civil Procedure Act 2005 in respect of unpaid judgments) on any outstanding amount under paragraph (a) from a date specified in the notice, being a date not earlier than the date on which the notice is issued to the tenant.

(5) Any amount (together with interest) referred to in subsection (4) that is unpaid may be recovered by the Corporation as a debt in any court of competent jurisdiction.”

6. As is apparent, entitlement to recovery is dependent upon valid decisions of the Corporation cancelling the rebate and determining the date the cancellation takes effect.

3. Jurisdiction

7. The first duty of the Court is to determine jurisdiction: Eberstaller v Poulos [2014] NSWCA 211 at [1]. Unfortunately, determinations on the jurisdiction of the District Court are not a straightforward matter: see generally Abbott v Klein [2015] NSWDC 45 at [33]-[72].

8. The primary grant of jurisdiction to the District Court is found in s 44 of the District Court Act 1973. It provides:

“44 Actions

(1) Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions:

(a) any action of a kind:

(i) which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court, and

(ii) in which the amount (if any) claimed does not exceed the Court’s jurisdictional limit, whether on a balance of account or after an admitted set-off or otherwise,

…”

9. Section 44(1)(a)(i) is satisfied if actions of the kind brought by the Corporation against Mr Quinn would on 2 February 1998 have been assigned to the Common Law Division of the Supreme Court: Forsyth v Deputy Commissioner of Taxation [2007] HCA 8 at [29], [45]. That an action under s 57 of the Housing Act 2001 was not available in 1998 might raise a question about whether it is or could be of the relevant kind. For the reasons which follow, that question need not be answered. That is to say, assuming that the Corporation and its causes of action against Mr Quinn under the Housing Act 2001 existed in 1998, so that its and their creation in 2001 do not preclude the investiture of jurisdiction in the District Court by s 44(1)(a)(i), there remains a reason why jurisdiction is lacking.

Schedule H

10. Part 12 rule 6(1)(b) and Part 2 of Schedule H of the Supreme Court Rules 1970, in force on 2 February 1998, assigned certain proceedings to the Administrative Law Division. Paragraph 1 of Part 2 of Schedule H provides:

“Part 2

General

1.(a) Subject to the rules, proceedings in appeals and applications to the Court in respect of decisions of a public body or a public officer.

(b) Subject to the rules, proceedings for commanding or otherwise requiring the removal into the Court of any matter before a public body or public officer whether for the purpose of quashing or otherwise.

(c) For the purposes of this paragraph, each of the expressions ‘public body’ and ‘public officer’ has the meaning assigned to it by section 53(3C) of the Act but does not include a Judge or a master, registrar or other officer of the Court.”

Thus, subparagraph 1(a) assigned to the Administrative Law Division “proceedings in…applications to the Court in respect of decisions of a public body”.

11. This provision has been construed as assigning to the Administrative Law Division “proceedings ‘in respect of decisions of a public body’”: Forsyth at [29], footnote 45.

12. Section 53(3C) of the Supreme Court Act 1970, as it was on 2 February 1998, relevantly provided that:

“‘public body’” means a body of persons, whether corporate or unincorporate, constituted by or under an Act and required to perform or performing public duties, but does not include a prescribed tribunal”.

13. There can be little doubt that the Corporation is a public body so defined. It was constituted a body corporate under subss 6(1) of the Housing Act 2001 with functions including “to acquire land for…residential development and for public purposes” and “to develop and make available…such of the land so acquired…for residential development and for public purposes” (Housing Act 2001, subss 8(2)). The Corporation is a statutory body representing the Crown and subject to the direction and control of the Minister (Housing Act 2001, subss 6(4) and (5)).

“In respect of”

14. Are the proceedings by the Corporation against Mr Quinn proceedings in respect of a decision of the Corporation? The words “in respect of” have a wide meaning, but that meaning depends on the context: Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 at 653-4 (per Deane, Dawson and Toohey JJ), see also 646-7 (per Wilson and Gauldron JJ), Wonall Pty Ltd v Clarence Property Corp Ltd [2003] NSWSC 497; (2003) 58 NSWLR 23 at [41]-[43].

15. The context may inform whether the connection between the proceedings and the Corporation’s decision is sufficient to make the proceedings “in respect of” the decision. But the context of subparagraph 1(a) (Schedule H, Part 2, Supreme Court Rules 1970 as at 2 February 1998) provides limited guidance. Subparagraph 1(b) focuses on the form of relief sought as the relevant fact determining the assigned Division. However, that does not indicate that the residue of matters within paragraph 1 are assigned on the basis of the remedy sought.

16. Nor is the text of paragraph 1 confined to proceedings which challenge the decision. An application to enforce a decision would seem to lie comfortably within the ambit of an application “in respect of” the decision. Applications for enforcement are found within the various provisions of Part 1 of Schedule H which are also assigned to the Administrative Law Division.

17. The primary purpose of the present proceedings is to enforce that decision of the Corporation, by recovery of the subsidies or rebate in accordance with s 57(1) of the Housing Act 2001. This indicates that the proceedings are “in respect of” the Corporation’s decision.

18. The pleadings inform whether proceedings are in respect of a particular subject matter because they manifest the nature of the proceedings. The circumstance that the connection required by paragraph 1 of Part 2 of Schedule H is for the purpose of assignment to a Division might indicate that the statement of claim or other originating document is the primary source of enquiry. But other provisions in the 1998 version of the Supreme Court Rules indicate possibly a broader enquiry. Rule 2 of Part 14 determined assignment (to the Commercial Division) by the existence of underlying “commercial transactions” or by issues of commercial importance, and “issues” included any issue “raised by pleadings, agreement of the parties or otherwise”.

19. In the present case, paragraph 14 of the statement of claim pleads:

“On or before 22 November 2012, the Corporation, following conducting an investigation under section 58 of the [Housing Act], made a decision under section 57 of [that Act] to cancel the Subsidies with retrospective effect from 5 July 1998 (“the Cancellation Decision”)”. [Bold in original].

20. The defence does not admit paragraph 14 of the statement of claim. It states: “The Cancellation Decision was not lawfully made under s 57 of the Housing Act 2001 and was invalid”. Particulars to this paragraph refer to the cancellation purporting to date from February 1998, prior to commencement of the Housing Act 2001 (in that regard see New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 at [30]).

21. The defence denies that “any purported investigation conducted by the [Corporation] pursuant to Section 58 of the [Housing Act] was ever properly finalized” (see paragraph 15). At paragraph 18, Mr Quinn denied he was indebted to the Corporation, alleging that the “Cancellation Decision was void and of no effect”.

22. The validity of the decision was also challenged in submissions on the basis that it was made by an officer lacking authority or a delegation.

23. The provisions in the defence and the submissions confirm that an issue in the proceedings is the existence of a valid cancellation decision.

24. In my view, Part 12 rule 6(1)(b) and subparagraph 1(a) of Part 2 of Schedule H of the Supreme Court Rules 1970, as they existed in February 1998, require focus on the substance of the proceedings in order to determine whether the proceedings are in respect of a decision of a public body. Proceedings under subparagraph 1(a) can be distinguished from proceedings seeking orders in the nature of prerogative relief, which are assigned to the Administrative Law Division under other provisions: see Supreme Court Act 1970 s 53(3B)(b). Proceedings “for” a form of relief, such as those within subparagraph 1(b), are also likewise distinguishable.

25. In footnote 45 in Forsyth, referred to above, the High Court indicated that actions for the recovery of a taxation debt or a penalty were not proceedings in respect of decisions of a public body or public officer, unlike appeals against assessments. The relevant distinction between these two kinds of proceedings is not identified in the footnote. The issues ordinarily ventilated in proceedings for the recovery of taxation debts are not apparent: it may be that those proceedings cannot properly raise the Commissioner’s assessment decision. In any event, the footnote’s reference to two differing taxation related proceedings provides limited guidance to this Court as to whether proceedings under s 57 of the Housing Act 2001 - involving, as the primary issue, the validity of the Corporation’s decision - are proceedings in respect of a decision of the Corporation.

26. For the reasons given, I am of the opinion that these proceedings are in respect of the Corporation’s cancellation decision. It follows that in accordance with Part 12 rule 6(1)(b) and subparagraph 1(a) of Part 2 of Schedule H of the Supreme Court Rules 1970, as they were on 2 February 1998, the proceedings if brought in the Supreme Court would have been assigned to the Administrative Law Division rather than the Common Law Division. The proceedings are then not within s 44(1)(a)(i) of the District Court Act 1973 and this Court has no jurisdiction under that provision to determine them.

Related issues

27. Aspects of the proceedings may have been within the District Court’s jurisdiction if brought separately e.g. the claim for recovery of the occupation fee. However, as the occupation fee claim is part of the proceedings that “would be” assigned to the Administrative Law Division of the Supreme Court, in the circumstances of these proceedings this Court has no jurisdiction to determine that claim. This is not surprising. To hold otherwise would generate a “multiplicity of proceedings” (in the Supreme Court and this Court), something which the rules of the Supreme Court in 1998 in another context cautioned against (see Supreme Court Rules 1970 Part 20 rule 1(2)). The effect of s 44(1) of the District Court Act 1973 is to invest the Court with jurisdiction to determine the whole dispute reflected in the proceedings, or none of it, because jurisdiction under s 44(1) of the District Court Act 1973 is conferred in actions or proceedings, not in causes of action: see Baxter v Obacelo Pty Ltd (2001) 205 CLR 635 at [22]. See also generally Carter Smith, Re; Ex parte Commissioners of Taxation (1908) 8 SR (NSW) 246 at 249-250, Flexible Manufacturing Systems v Alter [2004] NSWSC 29 at [14]-[16], Roberts v City of Gosnells (1995) 13 SR (WA) 72 at 75.

28. Are there other provisions investing relevant jurisdiction? Section 44(1) of the District Court Act 1973 is “subject to this Act” and ss 134 and 137 confer upon the Court the jurisdiction of the Supreme Court in certain equity proceedings, including “any equitable claim or demand for recovery of money or damages” (see paragraph 134(1)(h)).

29. The claim by the Corporation for recovery of the amounts of the subsidies would fall within ss 134 and 137, and thus be within the jurisdiction of the Court, if the claim was “an equitable claim”.

30. In Diab, Leeming JA at [54] determined that “the obligation to repay the cancelled rebate is, or is analogous to, a quasi-contractual, or restitutionary, right to recover money paid”. While there is a restitutionary element to the claim by the Corporation, I do not understand this reference by Leeming JA to determine that the Corporation’s claim is “an equitable claim…for recovery of money”. Section 57 of the Housing Act 2001 gives the Corporation a statutory right to recover subsidies as a debt (see Diab at [37], [61]) and neither the right nor the remedy is a creature of equity but a creation of statute. Paragraph 134(1)(h) and s 137 of the District Court Act 1973 therefore do not invest jurisdiction in this Court to determine these proceedings. Nor, if it mattered, does the above reference to a “restitutionary right” indicate that the action would, if commenced in the Supreme Court in February 1998, have been assigned to the Equity Division rather than the Administrative Law Division.

31. No other provision was identified as investing this Court with relevant jurisdiction. The reference to a “court of competent jurisdiction” in s 57(5) of the Housing Act 2001 does not do so.

32. Accordingly, the proceedings should be dismissed for want of jurisdiction.

33. Costs should follow the event. I will stay entry of the costs order for 14 days to enable the Corporation to consider if it wishes to seek an alternative costs order (see rule 36.16 of the Uniform Civil Procedure Rules 2005).

4. Orders

34. The orders of the Court are:

1. Proceedings dismissed for want of jurisdiction.

2. Plaintiff to pay the defendant’s costs.

3. Entry of order (2) stayed for 14 days.

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Decision last updated: 18 March 2016