Tang v NSW Land and Housing Corporation

[2015] NSWSC 1956

Supreme Court

New South Wales

Medium Neutral Citation:	Tang v NSW Land and Housing Corporation [2015] NSWSC 1956
Hearing dates:	10 December 2015
Date of orders:	10 December 2015
Decision date:	10 December 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I refuse the application and I dissolve the stay I previously pronounced today at 12.30 pm.
Catchwords:	PROCEDURE – application for stay from orders of NSW Civil and Administrative Tribunal – orders permitting defendant to conduct smoke alarm test – whether grounds are fairly arguable and whether plaintiff will lose her opportunity to appeal if stay not granted – application refused
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW)
Category:	Procedural and other rulings
Parties:	Hui Min Tang (Plaintiff) NSW Land and Housing Corporation (Defendant)
Representation:	J. Tang –self-represented with leave for Ms Tang (Plaintiff) T. Nedim – self-represented (Defendant)
File Number(s):	2015/361972

EX TeMPORE Judgment (REVISED)

1. Earlier today at 12 pm Ms Tang, who appears by leave for her mother, appeared in my court on referral from the Registrar seeking a stay of orders made in the NSW Civil and Administrative Tribunal permitting the defendant to carry out testing of smoke alarms in the residential premises occupied by her and her mother. The tenant is her mother.

2. An order was made by Senior Member Robertson in the Tribunal on 12 November 2015, and an internal appeal was disposed of by Principal Member Cowdery on 3 December 2015. Principal Member Cowdery dismissed the appeal under the provisions of s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) as lacking in any real substance.

3. An appeal to this Court was commenced by the filing of a summons yesterday, on 9 December 2015.

4. I should say the adjourned appointment for the smoke testing was to take place at 2 pm today and in view of the fact that it was impossible for NSW Land and Housing Corporation to appear instanter at 12.30 pm, I issued an interim stay so I could hear the argument of both sides before making a final decision upon whether the orders of NCAT should be stayed pending the final disposition of this appeal.

5. The appeal to this Court is, I apprehend, brought under s 83 of the Civil and Administrative Tribunal Act and is restricted to an appeal on a question of law.

6. When granting a stay, the Court is guided by two salient considerations: the first is the question whether the grounds of appeal are fairly arguable and the second is whether the plaintiff will effectively lose her opportunity to appeal if the stay is not granted. This second point may be equated with what is referred to as a balance of convenience test, as when the Court’s discretion is invoked in the grant of interim injunctions.

7. From the summons, the ground of appeal appears to be that the plaintiff was denied natural justice because not all of her arguments were assessed and taken seriously. In particular, she says that some employees of the defendant attempted to gain entry in an unauthorised way on 26 August 2015 and she, therefore, fears for her safety. She also says that not all of the material she sought to put before the Tribunal or the Principal Member was taken into account when the decision was made.

8. Mr Nedim, an officer of the defendant who appears by telephone by leave, points out that New South Wales Land and Housing Corporation is under statutory obligations in relation to premises of which it is a landlord to check that the fire safety detectors or smoke alarms are in good working order. He says that this is not only a statutory requirement but it is a significant matter going to public safety and, of course, the safety of the plaintiff, the other occupants of the plaintiff’s home, and of the apartment complex.

9. In his decision of 12 November 2015, Senior Member Robertson observed that, having heard all of the matters that the plaintiff wished to raise, and it seems to me looking at his decision they were pretty much in accordance with what the plaintiff wishes to agitate in this Court, he concluded that none of the matters raised provided a reason for refusing access for the important safety-related purpose of inspecting the smoke alarms. He also added, given the importance of ensuring the safety of other residents as well as the plaintiff herself, he was satisfied it was appropriate to make orders providing access to the premises for the defendant to discharge its statutory obligations.

10. Looking at those reasons, it is difficult to see, even on the limited material I have available, that an appeal based on an error of law from a decision which has that reasoning as its foundation, is fairly arguable. It is, therefore, perhaps understandable that the internal appeal was dealt with in a fairly summary fashion given the importance of the issue and the need for expedition in cases like this.

11. But, even were I to assume that there is a fairly arguable point, it seems to me that the balance of convenience is greatly against any continuation of a stay in this case.

12. I am informed that the complex in which the plaintiff and her daughter live has some 300 residents. Moreover, it is in an area of Milson’s Point which I can judicially notice is a built-up densely populated inner harbour suburb.

13. Bearing in mind, as pointed out by the Senior Member of the Tribunal, the public safety issue involved, as well as the importance of public corporations discharging their statutory obligations, I am not satisfied that the balance of convenience favours the plaintiff in this case. In fact, I am affirmatively satisfied that the balance of convenience favours allowing the orders to stand and to be carried into effect at the earliest convenient time.

14. For those reasons, I refuse the application and I dissolve the stay I previously pronounced today at 12.30 pm.

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Decision last updated: 18 December 2015