Noble v Centacare [2003] ACTSC 12 (13 March 2003)

Last Updated: 18 March 2003

JOHN NOBLE v CENTACARE [2003] ACTSC 12 (13 March 2003)

APPEAL - issues not raised during hearing - directions for further conduct of the appeal - no issue of principle.

Residential Tenancies Act 1997, s 5

No SCA 65 of 2002

Judge: Crispin J

Supreme Court of the ACT

Date: 13 March 2003

IN THE SUPREME COURT OF THE )

) No. SC 65 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JOHN NOBLE

Appellant

AND: CENTACARE

Respondent

ORDER

Judge: Crispin J

Date: 13 March 2003

Place: Canberra

THE COURT ORDERS THAT:

1. the appellant be at liberty to apply by Notice of Motion for leave to amend the Notice of Appeal to encompass an appeal against any finding made and/or judgment delivered by the Residential Tenancy Tribunal on 9 September 2002 and to include further grounds in support of any such appeal provided, however, that any such Notice of Motion be filed and served by the close of business on 27 March 2003;

2. any submissions in support of such application be made in writing and accompany the Notice of Motion when filed and served;

3. the appellant also have leave to file written submissions in support of the appeal as presently constituted and/or as foreshadowed by any proposed amendment to the Notice of Appeal including, but not limited to, submissions concerning the effect of the extemporaneous judgment, whether the Tribunal became functus officio upon its delivery, the validity and/or status of the Reasons for Judgment purportedly delivered on 12 September 2002 and the further grounds of appeal foreshadowed in the application to amend the Notice of Appeal;

4. the respondent have leave to file written submissions in opposition to any application to amend the Notice of Appeal and/or in answer to any written submissions filed and served by the appellant pursuant to the leave granted in orders 1, 2 or 3, provided that such submissions be filed and served by the respondent by the close of business on 10 April 2003;

5. the appellant have liberty to file and serve written submissions in reply to any submissions filed and served by the respondent pursuant to the leave granted in order 4, provided that such submissions be filed and served by the close of business on 17 April 2003.

1. The appellant purports to appeal against a decision of the Residential Tenancies Tribunal, said to have been made on 12 September 2002, to the effect that it had no jurisdiction to entertain a claim arising from an alleged breach of a residential tenancy agreement because he was a boarder or lodger and that the jurisdiction was effectively excluded by the provisions of s 5 of the Residential Tenancies Act 1997.

2. The matter was transferred to my list on short notice and I had no opportunity of reading the papers prior to the hearing. Counsel for both parties presented their submissions with commendable clarity but were obviously conscious of the time constraints imposed by the impending resumption of a part-heard case, the conduct of which had been only temporarily delayed. Consequently, I was able to read the full Appeal Book only after I had reserved judgment. Counsel had mentioned that whilst the Tribunal had issued a written statement of the relevant finding and the reasons for making it, the finding had in fact been made three days earlier after an extemporaneous judgment and I had assumed that the statement was an edited account of the reasons previously given. It is now clear from the Appeal Book that there are some significant differences between the extemporaneous findings and the written reasons. To take one obvious example, the extemporaneous judgment includes a finding that "possession of the premises is not exclusive". The Notice of Appeal was directed toward the written reasons for judgment delivered on 12 September 2002 and contained no ground directly challenging this finding. Yet the submissions for the appellant were based substantially upon a contention that the agreement between the parties had provided for the appellant to have exclusive possession of the premises in question.

3. Consequently, there are real issues as to whether the relevant reasons for judgment are those provided extemporaneously on 9 September 2002, whether the Tribunal then became functus officio, whether the Notice of Appeal is directed to the wrong judgment and whether, as a consequence, the parties may not have adequately addressed the real issues.

4. In these circumstances, I think it is appropriate to alert the parties to these difficulties and make directions for the further conduct of the appeal.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 13 March 2003

Counsel for the appellant: Mr T Thawley

Solicitor for the appellant: Welfare Rights & Legal Centre Limited

Counsel for the respondent: Mr P Toy

Solicitor for the respondent: Deacons

Date of hearing: 5 March 2003

Date of judgment: 13 March 2003