Selina Khoo v Handi Setyadi

[2023] NSWCATEN 8

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Selina Khoo v Handi Setyadi [2023] NSWCATEN 8

Hearing dates:

On the papers

Date of orders:

14 November 2023

Decision date:

14 November 2023

Jurisdiction:

Enforcement

Before:

Coleman SC ADCJ

Decision:

1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal dispenses with a hearing of the Applicant’s application.

2. The application filed on 26 April 2023 is dismissed.

Catchwords:

ENFORCEMENT- where applicant was pursuing other available remedies in the Tribunal to secure compliance with orders alleged to have been breached by the respondent on which referral application was based- whether respondent should be referred to Supreme Court for contempt of the Tribunal- where applicant failed to adduce admissible evidence capable of establishing alleged contempt

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46

Burns v Corbett [2015] NSWCATAD 188

DVI v ZTT [2021] NSWCATEN 4

Mohareb v Palmer [2017] NSWCA 281

National Australia Bank Limited v Juric [2001] VSC 375

Ros v Commissioner of Police [2020] NSWCATAP 70

Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Selina Khoo- Applicant
Handi Setyadi- Respondent

Representation:

Applicant- Self represented
Respondent- Self represented

File Number(s):

2023/00325699

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. By referral application dated 25 April 2023 Selina Khoo (Applicant) sought an order with respect to Handi Setyadi (Respondent) in the following terms:

“Contempt of Tribunal – in advance of hearing on 28/4/23, or considered soon after”

2. Attached to the referral application were orders of the Tribunal of 19 December 2022 and the reasons for those orders, a series of copies of ledger statements and emails and the purported grounds of the Applicant’s application. Although not identifying the jurisdictional basis of her application, the Applicant’s complaints appear to allege that the Respondent was guilty of contempt of the Tribunal in that he had failed to comply with, or had breached orders made by the Tribunal. Inferentially, the Applicant sought that, pursuant to the provisions of s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the Tribunal exercise its discretion to refer the Respondent to the Supreme Court to be dealt with for contempt.

3. The Applicant alleged that:

“Despite orders being made to do so by the Tribunal, the landlord (Respondent) has to this day continued to refuse to make work order repairs, and has retaliated in increasingly severe ways, as well as fabricating official tenancy documents. This has caused an incredible amount of stress as a tenant, and the landlord/rental agency, Raine & Horne seem completely unfazed by refusing to carry out repairs.”

4. The Applicant further stated that she had “included below some of the key pieces of evidence to back up my claim”, and that any “other evidence necessary is available in the extensive paperwork that I have filed across all hearings”.

5. The Applicant set out an asserted “timeline of main events”.

6. The Respondent disputed, through his agent, that he had been served with the Applicant’s application, notwithstanding that the agent was able to and did appear on behalf of the Respondent at the first Directions Hearing in the Tribunal. In accordance with its usual practice, at the first Directions Hearing the Tribunal made orders for the filing of affidavit evidence and written submissions in support of the Applicant’s case. The Tribunal made orders for the filing of submissions, and evidence if the Respondent elected to do so, in resistance to the Applicant’s case.

7. Section 38(3)(a)(i) of the CAT Act provides that the Tribunal must observe the rules of evidence in proceedings involving the exercise of its enforcement jurisdiction. The Applicant has not, either pursuant to the directions of the Tribunal or otherwise, ever filed evidence on oath or affirmation. Other than source documents, if verified on oath or affirmation, none of the Applicant’s allegations, conclusions or opinions would have been admissible evidence of the matters to which they referred.

8. The Respondent has filed no submissions. As the Applicant filed no evidence, the Respondent was entitled to adopt that course. As the Applicant filed no evidence, the Respondent had no reason to consider doing so. Through his agent the Respondent has made clear that he opposes the Applicant’s application that he be dealt with for contempt of the Tribunal.

Principles governing the referral application

9. The principles governing the Applicant’s referral application are not in doubt, and require only brief reiteration. In DVI v ZTT [2021] NSWCATEN 4 (DVI), Armstrong J, the President of the Tribunal, reviewed the relevant legal principles with respect to referral applications. Her Honour identified at [5] the two procedures for dealing with contempt of the Tribunal provided by s 73 of the CAT Act. The second of those procedures, referral in reliance upon alleged breaches of Tribunal orders, is sought to be enlivened by the Applicant.

10. In DVI at [7] her Honour referred to the decision of the Court of Appeal in Mohareb v Palmer [2017] NSWCA 281 at [19], in which it was held that the matter for determination in a referral application is whether the conduct complained of is “capable” of amounting to contempt of the Tribunal. The Tribunal accepted at [8] that, if that finding is made, the alleged contemnor must be afforded the opportunity to show why the matter should not be referred to the Supreme Court, which does not require any waiver of the right to silence, which right should be made clear to the respondent to the referral application. Those matters were made clear to the Respondent in the orders made by the Tribunal on the return date of the Applicant’s application.

11. In reliance upon the authorities to which it referred, the Tribunal in DVI accepted, at [9], that the power to refer a contempt application to the Supreme Court is discretionary, and underlined by the consideration that the power to punish for contempt is appropriately invoked “sparingly and only in serious cases”.

12. In Burns v Corbett [2015] NSWCATAD 188, at [92] the Tribunal recorded that, in considering whether to refer a contempt application based upon a breach of Tribunal orders to the Supreme Court, the Tribunal should consider whether there were alternate means of enforcing the Tribunal’s orders and, in the exercise of discretion, to take into account the availability of those alternatives, and whether any of them has already been invoked. As will be seen, if the power of the Tribunal to refer the Respondent to the Supreme Court for contempt were enlivened in this case, those considerations would militate strongly against granting the referral application.

13. As the Tribunal recorded in Burns v Corbett at [93], and the decisions of the High Court in Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited (1986) 161 CLR 98; [1986] HCA 46 and Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 confirm, there are two purposes in referring an alleged contempt based on failing to comply with orders of the Tribunal to the Supreme Court. Those purposes are, to secure enforcement of the orders for the benefit of the party entitled to that benefit, and to protect the effective administration of justice by demonstrating that orders of the Tribunal will be enforced.

14. In DVI at [11], the Tribunal referred to the common law requirements for a successful prosecution for contempt for breach of a Court order as:

1. establishing that the alleged contemnor had notice of the order;

2. the obligation imposed by the order being sufficiently clear to support enforcement of the order against the alleged contemnor; and

3. the conduct of the alleged contemnor amounted to wilful, as opposed to a “casual, accidental or unintentional” failure to comply with the order.

15. In these proceedings, despite suggestions by the Respondent to the contrary, the Tribunal is satisfied that the alleged contemnor had notice of the proceedings, and of the order(s) upon which the Applicant relies, or appears to rely. At least in accordance with the civil standard of proof, the obligation imposed by the order is sufficiently clear to be capable of supporting enforcement of the order against the alleged contemnor. In the absence of any admissible evidence to the contrary, if the Applicant adduced admissible evidence capable of establishing a breach of the order or orders of the Tribunal upon which she relies, that evidence would be capable of establishing a wilful failure to comply with the relevant order or orders.

16. The Applicant bears the onus of proving the facts, by admissible evidence, which would demonstrate that the conduct of the Respondent of which she complains is “capable” of amounting to contempt of the Tribunal (DVI at [24]-[29]). Having regard to the consequences of a finding of guilt in a contempt application, it is unsurprising that the rules of evidence apply in a referral application: CAT Act ss 33, 38(3).

17. The standard of proof required on a hearing of a contempt application by the Supreme Court being the criminal standard (National Australia Bank Limited v Juric (2001) VSC 375), there would be little utility in granting a referral application unless the evidence relied upon by the Applicant is capable of establishing contempt in accordance with the criminal standard of proof. As recorded earlier in these reasons, the Applicant having adduced no admissible evidence by affidavit, and no admissible evidence other than by source documents which she included in her application which are not capable of establishing the contempt(s) which she alleged, and submissions, the referral application could be dismissed on that basis.

18. The Applicant having represented herself in these proceedings, and not being legally qualified, or necessarily appearing to appreciate the principles which govern her application, the Tribunal has considered whether, howsoever expressed, the Applicant has adduced admissible evidence which is capable of establishing any of the grounds on which she bases her referral application (Ros v Commissioner of Police [2020] NSWCATAP 70). In the circumstances of this case, doing so involves no denial of procedural fairness to the Respondent.

Dispensing with a hearing

19. Neither party has filed submissions in opposition to an order dispensing with a hearing of the proceedings. Having regard to the nature of the present application, the Tribunal is comfortably satisfied in accordance with s 50(2) of the CAT Act, that it is appropriate to order that a hearing be dispensed with pursuant to s 50(2).

20. For the reasons which follow, the referral application will be dismissed. Having regard to the reasons why the referral application will be dismissed, an oral hearing would serve only to delay its determination. The referral application is flawed in ways which oral submissions from the Applicant could not cure.

21. The Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other documents lodged with or provided to the Tribunal by the Applicant.

22. Lest the Applicant be concerned that dispensing with a hearing means that the Tribunal will not give proper, genuine and realistic consideration to the merits of the case (Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33) in the same way as it would if there had been an oral hearing, the Applicant should have no concerns. The Tribunal will consider the matter in the way in which it would if there had been an oral hearing.

The Applicant’s case for referral

23. In her statement alleging contempt of the Tribunal by the Respondent, the Applicant referred to a “list of lies told by Ari Ladas (Respondent’s agent) in Tribunal hearings or in paperwork required by NCAT”. Mr Ladas is not a party to the proceedings. If the Applicant alleged, without evidence in support of such claim, that Mr Ladas has in some way committed contempt in the face of the Tribunal, Mr Ladas would need to be a party to the proceedings pursuant to an appropriate application, and be heard before he could possibly be referred to the Supreme Court for contempt of the Tribunal.

24. The “list of breaches of NCAT orders” alleged by the Applicant referred to orders made on 19 December 2022, which were said to have been complied with by 31 January 2023. The Applicant referred to order 4 of the Tribunal requiring the Respondent to pay $430 to her “immediately” which was alleged to not have been paid until 9 January 2023, some 22 days after the order was made and, the Applicant alleged with “no reason for their delay”.

25. The source documentation provided by the Applicant confirms that the Respondent in fact paid the sum of $430 on 9 January 2023. The Applicant adduced no admissible evidence with respect to the circumstances surrounding the payment. The absence of such evidence precludes the Tribunal from finding that the Applicant’s evidence is capable of establishing that the Respondent wilfully or intentionally disobeyed the order of the Tribunal. Moreover, even if that intention was established, the delay is not so great as to incline the Tribunal to refer the Respondent to the Supreme Court for contempt with respect to the breach of the order, particularly as any possible contempt of the Tribunal has been purged by the Respondent’s payment of the sum ordered on 19 December 2022. No more needs to be said about that allegation.

26. The Applicant further alleged that the Respondent had failed to comply with order 5 of the Tribunal of 19 December 2022, by which the Respondent was ordered to carry out seven items of work on the premises which the Applicant rented from the Respondent on or before 31 January 2023.

27. The Applicant alleged, without any evidence in support of her allegations, that the work the subject of the Tribunal’s order was not complete by 31 January 2023 “so I launched a renewal hearing. These repairs were then ordered again to be completed on 3/5/2023”. The Applicant further alleged that “some of the repairs were completed end of April (3 months after deadline of orders from the Tribunal) – and still to insufficient standard as per new evidence. Landlord also breached Tribunal who ordered use of licensed contractors – cleaning company, Protexes who does not have a licence under the NSW Fair Trading list and Mirek from Clovelly Maintenance, which does not have one either (for orders made on 19.12 originally)”.

28. Quite apart from the absence of particularity of the alleged contempts, or any evidence in support of the Applicant’s allegations, as the Applicant made clear, she took further proceedings against the Respondent with respect to the Respondent’s alleged failure to comply, or properly comply, with the orders of the Tribunal. If, which the evidence does not establish, the Respondent has done or failed to do things which are capable of constituting contempt of the Tribunal as a result of subsequent orders, that may provide the basis for a contempt referral application. Given the availability of alternate remedies, which the Applicant has availed herself of, that would provide a sufficient basis for declining to refer the Respondent to the Supreme Court for contempt.

29. Although the Applicant filed her application prior to 3 May 2023, and did not seek to vary her application after that date, the Applicant complained that the Respondent breached orders made by the Tribunal on 3 May 2023. Other than the Applicant’s allegations, the Applicant has not adduced any admissible or inadmissible evidence in support of this allegation. In those circumstances, the Tribunal could not properly refer the Respondent to the Supreme Court for contempt.

30. In any event, on 30 May 2023 the Applicant provided a copy of the Tribunal’s orders and reasons of 26 May 2023 with respect to the Applicant’s ongoing complaints about the Respondent, adjourning her application to a date to be fixed by the Registrar. What has subsequently become of that application is not known to the Tribunal. It is sufficiently clear, however, that, whatever the Respondent may or may not have done in breach of the Tribunal’s orders, whether of 19 December 2022, 28 February 2023, 3 May 2023 or 26 May 2023, the Tribunal would not refer the Respondent to the Supreme Court to be dealt with for contempt in the circumstances of this case.

31. Similar observations apply to the Applicant’s claims with respect to work allegedly done by unlicensed contractors, and the Respondent’s alleged failure to remediate mould in accordance with the Tribunal’s orders.

32. The Applicant complained that, in breach of the orders of 3 May 2023, the Respondent failed to pay compensation in the sum of $500 which the Tribunal ordered on that day. Source documentation provided by the Applicant confirms that the $500 payment was not made until on or about 22 May 2023. The delay in making the payment was minimal. If the Respondent was in breach of the Tribunal’s orders, there is no admissible evidence capable of establishing that such breach was deliberate or intentional. If the Respondent was in contempt of the Tribunal’s orders, the contempt was purged on 22 May 2034. In these circumstances, the Tribunal would not refer the Respondent to the Supreme Court for contempt of these orders.

33. The Applicant referred to paragraph 20(a) of the reasons of the Tribunal of 3 May 2023 finding that the Respondent “failed to have the carpet steam cleaned, but not of their fault because the tenant has unreasonably refused access for this order to be complied (with); the landlord’s agent is entitled to arrange their own contractor”. The Applicant complained that “the landlord only offered to use one contractor (Protexes) despite myself gaining several quotes. This contractor is unlicensed, as per below, so they have not complied with this order”.

34. The finding of the Tribunal to which the Applicant has referred clearly establishes that the Tribunal considered and rejected her claim that the Respondent had breached the orders of 19 December 2022. The Tribunal cannot go behind that undisturbed finding. Apart from the absence of any admissible evidence in support of this allegation, it could not possibly be established, even on the civil standard, in the light of the Tribunal’s decision. The Tribunal found that there was no breach of order 5(a) of the orders of 19 December 2022 and rejected the Applicant’s assertion that she was entitled to reject the contractor which the Respondent appointed to undertake the work.

35. The Applicant further alleged that the Respondent had breached order 5(c) of the orders of 19 December 2022 by failing to “replace the exhaust fan in unit 401 so that the leased premises (unit 401(a)) was not affected by the noise from the neighbouring unit 401”.

36. On 3 May 2023 the Tribunal found in that regard that the Respondent had failed to comply with order 5(c). The Tribunal found at 22(b) that it was appropriate to “extend a reduction of 5% for the noisy fan next door as found in paragraph 35 of my orders dated 19 December 2022 as I am satisfied that the issue has not been satisfactorily resolved as the fan systems are still linked and causing a nuisance to the tenant”.

37. The proceedings which were adjourned to a date to be fixed for hearing on 26 May 2023 included the Applicant’s claim for “compensation of $1,000 for disturbance of her quiet peace and enjoyment of the property”. Having regard to the decision of the Tribunal and reasons for it of 3 May 2023, it is apparent that the Applicant was pursuing a claim for relief in relation, inter alia, to the alleged failure to replace the exhaust fan. The claim not having been determined, and no order made with respect to it, this complaint fails for want of an order which the Respondent could potentially have breached.

23. The Applicant concluded her allegation with respect to this topic by confirming that she was “therefore applying for the rent reduction to be continued as it was only until 30 June as the Member could only grant it for 1 year”.

24. The orders of 3 May 2023 provided that the Respondent pay the Applicant the sum of $500 to which the Tribunal has earlier referred for “loss of quiet enjoyment”. The Tribunal further ordered on 19 December 2022 that the rent payable by the Applicant to the Respondent be reduced 5% for inadequate heating as the Tribunal had found (at [31]) and for the noise from the “next door neighbour’s bathroom exhaust fan” which the Tribunal also found (at [35]). Quite apart from the absence of any admissible evidence in support of these allegations, the Applicant is pursuing the appropriate relief in the Tribunal and, in those circumstances, the Tribunal could not properly refer the Respondent to the Supreme Court for contempt.

Disposition

40. The Applicant having failed to adduce admissible evidence capable of establishing contempt of the Tribunal, her referral application will be dismissed. The application was misconceived, and an abuse of the processes of the Tribunal. At the time the Applicant filed the referral application, she was pursuing appropriate enforcement relief in the proceedings which have been referred to above. The Applicant continued to pursue that relief whilst her referral application was pending. Fortuitously, the Respondent has not participated in the proceedings, or needed to do so. If he had, and had incurred legal fees in doing so, the Tribunal would have been likely to have ordered the Applicant to pay the Respondent’s costs.

Orders

1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal dispenses with a hearing of the Applicant’s application.

2. The application filed on 26 April 2023 is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 14 November 2023