Holloway v Chairperson of The Residential Tribunal [2001] NSWCA 209 (5 July 2001)

Last Updated: 9 July 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: Holloway v Chairperson of The Residential Tribunal [2001] NSWCA 209

FILE NUMBER(S):

40777/00

HEARING DATE(S): 24/05/01

JUDGMENT DATE: 05/07/2001

PARTIES:

Holloway & Anor

v

Chairperson of The Residential Tribunal & 2 ors

JUDGMENT OF: Meagher JA Beazley JA Giles JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 30015/00

LOWER COURT JUDICIAL OFFICER: Harrison M

COUNSEL:

A: J Needham

R: N/A

SOLICITORS:

A: Legal Aid Commission of NSW

R: Crown Solicitor's Office

CATCHWORDS:

Residential tenancy dispute - application under Residential Tribunal Act (1998), s 63 for a rehearing - whether Chairperson of the Tribunal bound to hear both parties before making a determination under s 63 - whether absence of a party is sufficient to demonstrate that evidence not reasonably available at the hearing is now available - appeal allowed.

LEGISLATION CITED:

s10/s 60(1)(2)(3)/s 62/s 63 Residential Tribunal Act (1998)

s 16(2)(d) Residential Tenancies Act (1987)

cl 16 Residential Tribunal Regulation 1999

DECISION:

1) Extend the time to apply for leave to appeal until 18 May 2001 and grant leave to appeal

(2) Appeal Upheld

(3) Orders (1) and (2) made by Master Harrison on 30 August 2000 set aside

(4) Quash the order of the Chairperson of the Residential Tribunal of New South Wales that matters numbers 99/28238 and 99/25943 be reheard

(5) Second respondent to pay the appellants' costs of the appeal and to have a certificate under the Suitors Fund Act if otherwise qualified

(6) Liberty to the second respondent to apply within 28 days to vary the orders as to costs

(7) Direct the Registrar of the Court of Appeal to send a copy of these reasons to the second respondent's address for service.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40777/00

MEAGHER JA

BEAZLEY JA

GILES JA

Thursday, 5 July 2001

HOLLOWAY & ANOR v CHAIRPERSON OF THE RESIDENTIAL TRIBUNAL AND 2 ORS

FACTS

The appellants and one other entered a residential tenancy agreement on 25 June 1999 for premises at Whale Beach. They left the premises on 8 July 1999 due to a significant dispute with the landlord, the second respondent.

The tenants lodged an application to the Residential Tribunal for compensation for breaches by the landlord. The landlord lodged a cross-application for compensation for loss of rent and breach of the residential tenancy agreement by the tenants.

On the last day of the hearing of the landlord's application he absented himself from the proceedings. The rehearing of his application was fixed for 1 December 1999 but he did not appear. The tribunal delivered judgment in both applications that day. The tenants' application was successful and they were awarded damages. The landlord's application was dismissed.

The landlord applied to the Chairperson of the Tribunal under s 63 of the Residential Tribunal Act (1998) for a rehearing. The Chairperson did not hear oral submissions from either side, nor did she receive written submissions from the tenants before making her decision. On 21 December 1999 the application was granted. The appellants filed a summons seeking an order that the direction of the Chairperson be quashed on the basis that they had been denied natural justice. Master Harrison found that the wording of the statute entitled the Chairperson not to entertain any submission from the tenants and dismissed the summons. The appellants appealed from this decision.

HELD per Meagher JA & Giles JA (Beazley JA agreeing):

(i) In exercising the power under s 63 the Chairperson was exercising a power to affect the rights of the tenants. Subject to a contrary statutory intention the Chairperson was bound to hear the tenants. The phrase `on the face of the application' in s 63(2) cannot be construed so as to deny the parties their entitlement to natural justice. It does not entitle the Chairperson to look at the written application for a s 63 order and nothing else.

Per Giles JA (Beazley JA agreeing): s 63(2) states a threshold requirement, so that an application which on its face is hopeless can be refused without troubling the other parties to the matter already heard.

The Master erred in finding support for her conclusion in the reference to the

requirement of natural justice in s 63(3) of the Act, a reference absent from s 63(2).

The subsections deal with quite different subjects.

Per Meagher JA & Giles JA (Beazley JA agreeing):

(ii) The s 63 order was made without jurisdiction. The tribunal had no jurisdiction to make an order for rehearing on the basis that evidence has now become available which was not reasonably available at the time of the hearing, (s 63(1)(c)) unless non-available evidence is shown, at least on a prima facie basis to exist. This ground was not made out merely because the landlord was not present at the hearing on 1 December 1999.

Per Giles JA (Beazley JA agreeing):

The Chairperson was and is a proper party to the proceedings in the Supreme Court and the appeal. Presentation of substantive argument as to the exercise of the power conferred upon the Chairperson by s 63 of the Act would not endanger the impartiality of the Tribunal on the rehearing of the original application.

ORDERS

See paragraph 61

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40777/00

MEAGHER JA

BEAZLEY JA

GILES JA

Thursday, 5 July 2001

HOLLOWAY & ANOR v CHAIRPERSON OF THE RESIDENTIAL TRIBUNAL AND 2 ORS

JUDGMENT

1   MEAGHER JA: This is an appeal from a decision of Master Harrison refusing prerogative relief to certain tenants. It arises out of the application of the Residential Tribunal Act (1998) to a tenancy which arose on 25 June 1999. The landlord was a Mr Peter Gosper Griffiths, one of the respondents. The tenants were Mr Holloway (one of the appellants), Miss Sheridan (another appellant) and Mr Miles Whippy, one of the respondents. The demised premises were at 125 Whale Beach Road, Whale Beach (which is a suburb of Sydney).

2   The tenancy did not last long, as the tenants quit the demised premises on 8 July 1999. By this time, the landlord had, as it was subsequently held, committed several serious breaches of the covenant for quiet enjoyment.

3   The tenants lodged an application to the Residential Tribunal for relief against the landlord, who lodged a cross-application to the tribunal. The former was lodged on 13 July 1999, and the latter on 3 August 1999. Then began a lengthy hearing of both applications. The tenants' application was heard on 29 July, 25 August, 1 October, 17 November and 1 December 1999. The landlord's application was heard on 1 October and for a few hours on 17 November 1999. On that day at the luncheon adjournment the landlord, without reporting to or consulting anyone, withdrew from the proceedings. The re-hearing of his application was fixed for 1 December, but he did not appear before the Tribunal on that day.

4   The landlord's behaviour before the Tribunal sets a pattern to which he has adhered. He did not turn up before Master Harrison, nor did he appear before us.

5   The events of 1 December were: (a) the Tribunal heard the tenants' application for the fifth and final day, (b) the landlord's application was not further heard that day, in the unexplained absence of the landlord, (c) a decision in both applications was given by Mr Tickham, a member of the Tribunal, (d) that decision in the tenants' application was very much in the tenants' favour, awarding them each substantial sums of money, and (e) the decision in the landlord's matter was adverse to him, his application being simply dismissed. The Tribunal's decision was conveyed, as is the habit of the Tribunal, orally.

6   The Tribunal sent, on 7 December 1999, a letter to the landlord which reads as follows:

"Application to the tribunal about residential premises at 125 Whale Beach Road, WHALE BEACH NSW 2107

On 1/12/99 the following order was made:

1. The application is dismissed because:

There is no appearance of the applicant by 11:00 am. No satisfactory explanation for such non-attendance has been given to the Tribunal."

On the same day the Tribunal sent a letter to the tenants in exactly the same terms.

7   On 16 December 1999, the landlord telephoned the Residential Tribunal and notified his intention to make an application to the Chairperson (sic) of the Tribunal under s 63 of the Residential Tribunal Act (1998). That section reads as follows:

63. Rehearings

(1) In circumstances prescribed by the regulations, a party to proceedings before the Tribunal may, in the manner and within a time so prescribed, apply to the Chairperson for an order directing that the matter be reheard by the Tribunal, on the ground that the applicant may have suffered a substantial injustice because:

(a) the decision of the Tribunal was not fair and equitable, or

(b) the decision of the Tribunal was against the weight of evidence, or

(c) evidence that is now available was not reasonably available at the time of the hearing.

(2) The Chairperson is not to grant the application unless, on the face of the application, it appears to the Chairperson that the applicant may have suffered a substantial injustice.

(3) If the application is granted, the Chairperson is to determine the constitution of the Tribunal in a manner appropriate for the purposes of the rehearing, having regard to the circumstances of the case and the requirements of natural justice.

(4) The matter is to be dealt with as a hearing de novo by the Tribunal as constituted under subsection (3).

8   On 21 December 1999 a "Delegate of the Chairperson" (sic) made a decision allowing the landlord's application. On 23 December 1999 both landlord and tenants were notified of that fact. Each letter to the parties was in the same form. It said:

"Application to the tribunal about residential premises at 125 Whale Beach Road, WHALE BEACH NSW 2107.

The Tribunal received an application for a rehearing from Peter Gosper Griffiths on 21/12/99. The application seeks an order under section 63 of the Residential Tribunal Act 1998 for a rehearing. A copy of section 63 of the Act is attached for your information. The delegate of the Chairperson considered the application and has made the following decision on 21/12/99.

The delegate of the Chairperson directs that the matter numbers 99/28238 & 99/25943 be reheard as the chairperson is satisfied that the applicant may have suffered a substantial injustice because evidence that is now available was not reasonably available at the hearing.

Reasons:

The landlord was not at the hearing on the day the orders were made.

The original application will be listed for rehearing as soon as possible and a new notice of hearing will be sent to you separately."

9   On 10 January the tenants requested a copy of the landlord's written report for s 63 relief. Such a document must be in existence, but nobody seems to have seen it, (except, of course, the Tribunal). This request was declined, although a hand-written note in the Tribunal's files suggested that the tenants might be allowed to peep at it. One can hardly imagine any sensible reason for refusing to let a party to litigation inspect a s 63 application. However, things being what they are, we must assume that the letter acceding to the request faithfully mirrors that request.

10   However, it is clear that the Chairperson (sic) did not hear any oral submissions from either side before making her decision; nor did she receive any written submissions from the tenants; in fact, until the tenants were informed that a s 63 application had been granted they did not know that such an application had been made.

11   In the same letter, the tenants asked to be told the reasons for the decision to grant s 63 relief. This provoked the following response from the Acting Registrar of the Tribunal on 17 January 2000:

"Application to the tribunal about residential premises at 125 Whale Beach Road, WHALE BEACH NSW 2107

I refer to your letter to the Tribunal concerning matters no. 99/43763, 99/44029 and 99/44029 and your request for written reasons from the Tribunal for the decision to approve Mr Griffiths' s 63 application.

I advise that written reasons for this decision were provided to you in a letter to you of the 23/12/99, and I enclose a copy of that letter for your information.

The Tribunal set previous matters 99/25943 and 99/28238 down for a rehearing on the 10/1/2000. The landlord/applicant contacted the Tribunal and advised that they had advised in their s 63 application that they were not available until the 14/1/2000. On this basis, a Tribunal Member decided to adjourn the hearing set down for the 10/1/2000 and the Tribunal forwarded notification of this adjournment to all parties by Express Post on the 6/1/2000. While the notification of adjournment did not directly refer to the hearing set down for the 10/1/2000, as these were the only matters pending before the Tribunal, it is clear that these orders referred to this hearing. I apologise for the lack of clarity and for the inconvenience caused by your attendance at the Tribunal on the 10/1/2000.

The Chairperson is of the opinion that a s 63 application is an application to the Chairperson, as opposed to an application to the Tribunal and that there is no obligation to provide a copy of the s 63 application form to other parties in the matter. The s 63 application is decided on the basis of `the face of the application', and as the rehearing is a hearing de novo (a new hearing proceeds as if the previous hearing did not take place and a decision was not made). Information on the Tribunal's procedure in relation to s 63 applications is set out in the attached `Information on Section 63 Applications' sheet for your information.

I trust this answers your enquiries. As soon as a decision is made on the landlord's application for legal representation, the matters will be set down for a rehearing."

It is hardly a satisfactory answer. It (no doubt, unwittingly) creates the impression that the Tribunal is deliberately depriving the tenants of information they have a right to know.

12   On 16 February 2000 the Tribunal handed down reasons for its decision in the landlord's application for the litigation. It is in the following terms:

The application is dismissed because there is no appearance by the applicant. No satisfactory explanation for such non attendance has been given to the Tribunal.

Furthermore the Tribunal having considered the written submissions and oral evidence of the applicant the Tribunal is not satisfied that the applicant has proven the claim on the balance of probabilities.

(I might add that it is the wont of the Tribunal to give reasons for a decision after - sometimes long after - the decision itself is made).

13   On 29 February 2000 the Tribunal handed down reasons for its decision in the tenants' application in the litigation. It is a longish document, and the only part of it which is relevant in the present context is:

"This case has involved some very serious allegations being made against the landlord, Mr Peter Griffiths. The Tribunal has gone to great lengths to ensure at all times that Mr Griffiths has had extensive and ongoing opportunity to put the full details of his case before the Tribunal, and has granted adjournments which it could be argued were prejudicial to the interests of the applicants in order to ensure fairness to Mr Griffiths.

Mr Griffiths failed to respond to an opportunity for him to present himself to the Tribunal for cross examination and to present further submissions to the Tribunal after obtaining legal advice as he was invited to do."

14   It was at this juncture that the tenants filed a summons, which was heard by Master Harrison, from whose decision this appeal is brought. The main point made before the learned Master, and again before us, by Miss Needham, learned counsel for the tenants, was that they had been denied natural justice. They should have been allowed to make some sort of submissions to the Chairperson (sic) concerning the landlord's s 63 application. For the purposes of a s 63 application, the Chairperson (sic) is an administrative officer. The decision is one which affects the tenants both in their persons and in their property. On normal principles, it is difficult to see an answer to the tenants' submission.

15   Master Harrison did not find it difficult. She found that, because of the wording of the statute, the Chairperson (sic) was entitled (and, semble, obliged) not to entertain any submissions from the tenants. This conclusion is based on the words "on the face of the application" in subsection (2), which, according to the Master, imply that the Chairperson (sic) is entitled (and, semble, obliged) to look at the written application for a s 63 Order and nothing else. But this could not be the case. If, for example, the s 63 request was based on the submission that the decision "was against the weight of the evidence", the Chairperson (sic) would surely have to examine all the evidence, which could not appear "on the face of the application". In these circumstances, the phrase, "on the face of the application" could not possibly bear the meaning the learned Master ascribed to it. What exactly it does mean is another problem; perhaps it means no more than "prima facie"; but it cannot be construed so as to deny the parties their entitlement to natural justice.

16   This alone would entitle the tenants to the orders they seek. But they are entitled on another ground. The landlord based his entitlement, and the Chairperson (sic) granted the request, on the ground set out in s 63 (l) (c), viz. that evidence has now become available which was not reasonably available at the time of the hearing. It is evident from the Tribunal's letters that the Chairperson (sic) held the curious view that this ground was made out merely because the landlord was not present when the decision was handed down on 1 December 1999. The "non sequitur" is evident, particularly when the landlord's absence was due to an irrational boycott of the Tribunal by him. The Tribunal had no jurisdiction to make a s 63 Order on the grounds set out in (1)(c) unless non-available evidence is shown, at least on a "prima facie" basis, to exist. The s 63 Order was therefore made without jurisdiction.

17   In my view the tenants are entitled to all the orders they seek.

18   BEAZLEY JA: I agree with Giles JA.

19   GILES JA: Mr Peter Griffiths was the landlord and Mr Casey Holloway, Ms Lisa Sheridan and Mr Miles Whippy (collectively, "the tenants") were the tenants of premises at 125 Whale Beach Road, Whale Beach under a residential tenancy agreement entered into on 25 June 1999. On 8 July 1999 there was significant dispute between Mr Griffiths and the tenants, and the tenants left the premises.

The proceedings in the Residential Tribunal

20   On 13 July 1999 the tenants applied to the Residential Tribunal ("the Tribunal") for an order for compensation for breach by Mr Griffiths of the residential tenancy agreement (see Residential Tenancies Act 1987, s 16(2)(d)). Their application was given the file number 99/25943. On 3 August 1999 Mr Griffiths applied to the Tribunal for an order for compensation for loss of rent and breach by the tenants of the residential tenancy agreement (ibid). His application was given the file number 99/28238.

21   The applications were heard together over a number of days, the last being 1 December 1999. All parties participated without legal representation. Mr Griffiths absented himself from the hearing part-way through the penultimate day, 17 November 1999, and did not attend on 1 December 1999 although given due notice of that date. The hearing was concluded on 1 December 1999 on an ex parte basis.

22   On 1 December 1999 orders were made that Mr Griffiths pay $2,837.67 to Mr Holloway, $2,776.67 to Ms Sheridan and $2,726.67 to Mr Whippy, and that Mr Griffiths' application be dismissed. Oral reasons given at the time were not recorded. The Tribunal was later requested to prepare written statements of reasons for its decisions (see Residential Tribunal Act 1998, s 45(2)). It provided a statement of reasons in relation to Mr Griffith's application dated 16 February 2000 and a statement of reasons in relation to the tenants' application dated 29 February 2000.

23   As to the former statement of reasons, after reference to some evidence which had been given it was said that -

"The application was dismissed due to the non-appearance of the applicant and his failure to produce any explanation for non attendance.

In the absence of a Residential Tenancy Condition Report, the lack of supporting evidence and any evidence on oath from the applicant the Tribunal was unable to conclude that the landlord had proven his case on the balance of probabilities."

24   As to the latter statement of reasons, after a detailed account of the course of the hearing and evidence given it was concluded that Mr Griffiths had breached the residential tenancy agreement and that the amounts of compensation awarded were reasonable and appropriate.

25   On 21 December 1999 Mr Griffiths applied for a rehearing pursuant to s 63 of the Residential Tribunal Act. Section 63 provides -

"63 Rehearings

(1) In circumstances prescribed by the regulations, a party to proceedings before the Tribunal may, in the manner and within a time so prescribed, apply to the Chairperson for an order directing that the matter be reheard by the Tribunal, on the ground that the applicant may have suffered a substantial injustice because:

(a) the decision of the Tribunal was not fair and equitable, or

(b) the decision of the Tribunal was against the weight of evidence, or

(c) evidence that is now available was not reasonably available at the time of the hearing.

(2) The Chairperson is not to grant the application unless, on the face of the application, it appears to the Chairperson that the applicant may have suffered a substantial injustice.

(3) If the application is granted, the Chairperson is to determine the constitution of the Tribunal in a manner appropriate for the purposes of the rehearing, having regard to the circumstances of the case and the requirements of natural justice.

(4) The matter is to be dealt with as a hearing de novo by the Tribunal as constituted under subsection (3)."

26   The "circumstances prescribed by the regulations" can only be cl 16 of the Residential Tribunal Regulation 1999, although that description does not seem particularly appropriate. So far as presently relevant, an application for a rehearing must be "made in writing addressed to the Chairperson".

27   Mr Griffiths was told of the result of his application by a letter from the Registrar of the Tribunal dated 23 December 1999. From the form of the letter, it was a rote letter sent also to the tenants. This appeal was conducted on that basis. The letter read -

"Application to the tribunal about residential premises at 125 Whale Beach Road, WHALE BEACH NSW 2107

The Tribunal received an application for a rehearing from Peter Gosper Griffiths on 21/12/99. The application seeks an order under section 63 of the Residential Tribunal Act 1998 for a rehearing. A copy of section 63 of the Act is attached for your information. The delegate of the Chairperson considered the application and has made the following decision on 21/12/99.

The delegate of the Chairperson directs that the matter numbers 99/28238 and 99/25943 be reheard as the Chairperson is satisfied that the applicant may have suffered a substantial injustice because evidence that is now available was not reasonably available at the hearing.

Reasons:

The landlord was not at the hearing on the date the orders were made.

The original application will be listed for rehearing as soon as possible and a new notice of hearing will be sent to you separately."

28   The evidence did not include a copy of Mr Griffiths' application to the Chairperson. In the absence of other materials, the ground put forward by Mr Griffiths and the facts on which he relied can only be inferred from the letter of 23 December 1999.

29   The applications were listed for rehearing by the Tribunal on 10 January 2000. That date was later vacated, and a rehearing has not yet been undertaken.

The proceedings in the Supreme Court

30   By a letter to the Registrar of the Tribunal dated 10 January 2000 Mr Holloway and Ms Sheridan asked for "written reasons from the Tribunal" for the decision that there should be a rehearing of the applications. By a letter dated 17 January 2000 the Registrar informed them that written reasons were provided "in a letter to you of the 23/12/99", which I infer was in the terms of the letter to Mr Griffiths of that date earlier set out.

31   The Registrar's letter also said -

"The Chairperson is of the opinion that a s 63 application is an application to the Chairperson as opposed to an application to the Tribunal and that there is no obligation to provide a copy of the s 63 application form to other parties in the matter. The s 63 application is decided on the basis of `the face of the application', and as the rehearing is a hearing de novo (a new hearing proceeds as if the previous hearing did not take place and a decision was not made)." [sic]

32   On 13 March 2000 Mr Holloway and Ms Sheridan filed a summons in the Supreme Court, the defendants named being the Chairperson of the Tribunal, Mr Griffiths and Mr Whippy, in which they relevantly claimed -

"2. An order that the direction of the first defendant notified to the plaintiffs on 23 December 1999 be quashed on the grounds of denial of natural justice.

3. Alternatively, an order that the direction of the first defendant notified to the plaintiffs on 23 December 1999 be quashed on the grounds that the Chairperson lacked the jurisdiction to make such a direction.

4. An order that matter [sic] be remitted to the Chairperson for determination in accordance with law."

33   The summons was heard by Master Harrison on 26 June 2000. The Chairperson of the Tribunal filed a submitting appearance. Neither Mr Griffiths nor Mr Whippy appeared. In reasons given on 30 August 2000 the summons was dismissed.

34   Under s 60(1) of the Residential Tribunal Act review by prerogative relief is generally excluded "in respect of a matter heard and determined or to be heard and determined by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter", but by s 60(3) -

"(3) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in which the Tribunal has made an order, where 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 to the claim had been denied natural justice."

35   On behalf of Mr Holloway and Ms Sheridan it was submitted to the Master that the Chairperson was acting administratively when deciding that there should be a rehearing of the applications, it seems in reliance on s 10 of the Residential Tribunal Act in which the Chairperson is described as the executive officer of the Tribunal responsible for its overall operation and administration and is empowered to "give directions as to ... any matter in respect of which the Chairperson is authorised by or under this Act or any other law to give directions". The Master accepted this submission. The Master referred to s 60 of the Residential Tribunal Act, and to the further submission "that the decisions of a Chairperson are not subject to the exclusion of jurisdiction of the Supreme Court". She did not decide whether or not the submission should be accepted, and because she declined to grant relief it was not necessary for her to do so.

36   The submission that the Chairperson was acting administratively appears to have been in aid of the grant of relief by reason of denial of procedural fairness. It is not necessary that the Chairperson was acting administratively, and if the Chairperson was not acting as the Tribunal it may be that the exclusion in s 60(1) of the Residential Tribunal Act applies and that the saving in s 60(3) does not apply because the relevant order was not an order of the Tribunal. In Assi v Keung (1999) NSWSC 206 at [15] Hodgson CJ in Eq thought it probably correct that a decision of the Chairperson under s 63 is a decision of the Tribunal amenable to appeal under s 62 of the Residential Tribunal Act. I consider that a Chairperson's order directing that a matter be reheard by the Tribunal is an order made by the Tribunal within s 60(3).

37   The Master's reasons addressed whether the Chairperson's order should be quashed by reason of denial of procedural fairness, and did not deal with the alternative claim for relief on the basis that the Chairperson lacked jurisdiction to make the order. Presumably the alternative claim for relief was not maintained; that is something to which I will return.

38   With reference to Kioa v West [1985] HCA 81; (1985) 159 CLR 550, the Master held that the Chairperson's decision affected the rights of the tenants and that there was a common law duty to act fairly subject to the clear manifestation of a contrary statutory intention. But she also held that there was such a statutory intention -

"Section 63 does not make provision for the respondent in the proceedings to make written submissions or to be heard. All the Chairperson is required to do is to decide whether the applicant may have suffered a substantial injustice. Three alternatives in paragraphs 3(1)(b) to (3) [sic: ?(a), (b) and (c) of subs(1)] are stipulated. The Chairperson is not to grant the application unless "on the face of" the application, the applicant may have suffered an injustice. It is my view that "on the face" of the application limits the inquiry to be made by the Chairperson to the application alone. It was not intended that the Chairperson would embark on an inquiry which would encompass submissions by the opposing party. Further, once an application for rehearing is granted, s 60(3) specifically provides that the Chairman in deciding the constitution of the Tribunal to conduct the rehearing has to have regard to the requirements of natural justice. The section appears to have been drafted with the consideration of natural justice in mind and omitted to refer to it in s 60(2). Hence it is my view that the court should not intervene. The Chairperson does not have an obligation to hear from the affected party before a decision as to a rehearing is made. It is my view that in these circumstances contrary statutory intention has been expressed."

This appeal

39   Mr Holloway and Ms Sheridan sought to appeal. On 26 September 2000 they filed a notice of appeal without appointment, and on 22 December 2000 they filed a notice of appeal with appointment. At a late stage it was realised that leave to appeal was required. On 18 May 2001 they filed a summons seeking appropriate extensions of time and leave. The appeal was heard as an application for extensions of time and leave and, if leave were granted, a substantive appeal.

40   The appeal was confined to the question of procedural fairness, and did not raise the question of jurisdiction. The grounds of appeal were -

"1. The Master erred in her construction of section 63 of the Residential Tribunal Act:-

(a) in holding that the words `on its face' showed a statutory intention that the requirements of natural justice were excluded from the operation of the section;

(b) in holding that the words `on its face' allowed the Chairperson to make a decision based on the application alone; and

(c) in holding that the Chairperson had no obligation to hear from the tenants, being an affected party, before making a decision as to a rehearing.

2. The Master should have held that the Chairperson, in considering an application under section 63 of the Act, was required to hear from the tenants, being an affected party, before making a decision."

41   Each of the Chairperson, Mr Griffiths and Mr Whippy filed a submitting appearance in the appeal.

42   Without any disrespect to counsel for Mr Holloway and Ms Sheridan, who conducted the appeal with appropriate fairness, it can not be regarded as satisfactory that there was no contradictor to assist the Court. The absence of Mr Griffiths and Mr Whippy is perhaps understandable, as it seems they are persons of modest means. Less understandable is the absence of the Chairperson. Counsel informed us of her understanding that the Chairperson filed a submitting appearance because of observations in the decision of this Court in Offe v Tenancies Tribunal of New South Wales (29 October 1997, unreported). For the following reasons, and appreciating that we have not heard from the Chairperson, I would suggest that the Chairperson may have been incorrect in her perception of the position. In Offe v Tenancies Tribunal of New South Wales a question of law had been referred to the Supreme Court by the then Residential Tenancies Tribunal under the then s 106(2) of the Residential Tenancies Act (see now s 61 of the Residential Tribunal Act). The reference was effected by a summons in which the Residential Tenancies Tribunal was a plaintiff. It was held in the appeal that the Residential Tenancies Tribunal was not a competent plaintiff. Handley JA, with whom Cole and Beazley JJA agreed, said -

"Mrs Gilmour, who appeared for the Tribunal, submitted that it was a competent party on a reference under s106(2), and was entitled to be heard on a question as to the scope of its powers under the Act.

The Court referred the parties to R v Australian Broadcasting Tribunal ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, especially at 17 and 35-36, where the High Court held that a tribunal properly joined as a party to judicial review proceedings should not become a protagonist but ordinarily should submit to such order as the Court may make. A tribunal, of course, is a proper respondent to judicial review proceedings in respect of its decisions.

The present case is distinguishable because the proceedings arise under a reference by the Tribunal of a question of law for determination by the Supreme Court. The reference was made in inter partes proceedings before the Tribunal. It is unheard of, in my experience, for a tribunal to become involved in appellate or appellate-type proceedings arising from its own decisions.

The power to refer a question of law to a superior court is a familiar one in legislation establishing a tribunal or inferior court. The question must arise in proceedings between parties and the Tribunal is not, in my judgment, a competent party on the reference. The proceedings on the reference are of the same character as the proceedings in the Tribunal. They are proceedings in which the parties in the Tribunal are the only necessary parties. The position of a tribunal in judicial review proceedings is not relevant in cases under s106(2) or the like."

43   As is apparent from this passage, Offe v Tenancies Tribunal of New South Wales was a decision as to competency and not a decision as to participation. In the present case the Chairperson was and is a proper party to the proceedings in the Supreme Court and the appeal. The significance of Offe v Tenancies Tribunal of New South Wale in the present case is the reference to R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.

44   The Australian Broadcasting Tribunal had imposed a time limit for cross-examination in a hearing, and had required that there be what was called a panel system of cross-examination. One of the parties to the hearing applied for mandamus and prohibition on the ground that this was contrary to the obligation to investigate the subject matter of the hearing and allow a reasonable opportunity to present a case, including by cross-examination. The Australian Broadcasting Tribunal was properly a party to the proceedings. But it did not enter a submitting appearance, and appeared in order to present substantive argument on the ground that the application raised important questions about the procedures it should follow.

45   The Court questioned the assumption of this role, and permitted the presentation of submissions only "in summary form without elaboration" (at 17). The joint judgment of Gibbs, Stephen, Mason, Aickin and Wilson JJ concluded (at 35-6) -

"There is one final matter. Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal."

46   In the present case, if the Chairperson was acting administratively and determining an application to herself rather than to the Tribunal (as was the Chairperson's stance), the constraint on participation is by no means the same. Even if, as I consider to be the preferable view, the Chairperson's order is an order of the Tribunal, presentation of substantive argument as to the exercise of the power conferred upon the Chairperson by s 63 of the Residential Tribunal Act would hardly risk endangering the impartiality of the Tribunal in any rehearing of the original applications. It is true that, depending on the result in the proceedings, the Chairperson may have to reconsider Mr Griffiths' application, but there is much to be said for the view that the Chairperson would be in no different position from any other decision-maker whose decision is challenged for want of procedural fairness and who might, if the challenge succeeds, be required to readdress the matter.

47   It is unfortunate, in my opinion, that neither the Master nor this Court had the assistance of argument in support of the Chairperson's opinion as conveyed in the Registrar's letter of 17 January 2000, of the opinion that there is no obligation to provide a copy of a s 63 application form to other parties in the matter, and of the consequential course adopted in this case (as we were informed) as a matter of practice of determining an application under s 63 of the Residential Tribunal Act without notice to or hearing from the other parties to the substantive application. In other circumstances it might have been appropriate to adjourn the hearing of the appeal so that the Chairperson could be invited to present submissions. Regard to the tenant's means made it inappropriate in this case.

Decision on the appeal

48   As a result of the hearing before the Tribunal the tenants had valuable rights, namely the orders for compensation in their favour and the dismissal of Mr Griffiths' claim for compensation against them. An order under s 63 of the Residential Tribunal Act would deprive them of those rights: the hearing concluding on 1 December 1999 would be for naught, and there would be a hearing de novo in which they would be exposed to failure of their claims for compensation and to success of Mr Griffiths' claim for compensation. The Chairperson's decision was clearly one which would affect the tenants' rights; moreover, a decision to direct a rehearing would take away rights which had been achieved in a process in which the entitlement of both the tenants and Mr Griffiths to be heard was established.

49   Whether or not the Chairperson was acting administratively, in exercising her power under s 63 she was exercising a power to affect the rights of the tenants and, subject to a contrary statutory intention, was bound to hear the tenants before exercising the power: Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109; FAI Insurance Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 360, 376-7; Kioa v West at 563, 582, 628.

50   Is there a contrary statutory intention? Such an intention must be clear: the principles stated by Mason CJ and Deane and McHugh JJ in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598 apply -

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: Commissioner of Police v Tanos [1958] HCA 6; [(1958) 98 CLR 383, at pp 395-396]; Twist v Randwick Municipal Council [1976] HCA 58; [(1976) 136 CLR 106, at pp 109-110]; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; [(1977) 137 CLR 487, at pp 496, 500]; J v Lieschke [1987] HCA 4; [(1987) 162 CLR 447, at p 456]; Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; [(1990) 169 CLR 648, at p 680]. In Tanos [(1958) 98 CLR, at p 396], Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from `indirect references, uncertain inferences or equivocal considerations'. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v Parole Board of New South Wales [(1986) 5 NSWLR 338, at pp 344-345, 347, 349]. In Kioa v West [1985] HCA 81; [(1985) 159 CLR 550, at p 584], Mason J said that the law in relation to administrative decisions `has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention'. In Haoucher [(1990) 169 CLR, at p 653], Deane J said that the law seemed to him `to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making'.

51   The Master found the contrary statutory intention principally in s 63(2) of the Residential Tribunal Act. With respect, I do not think that the words "on the face of the application" limit the inquiry to be made by the Chairperson to the application alone. Section 63(2) states a threshold requirement, that it appear from what has been put forward by the applicant in the application that the applicant may have suffered a substantial injustice, so that an application which on its face is hopeless need not be further investigated and can be refused without troubling the other parties to the matter already heard. But if the threshold is passed the Chairperson may, and in many cases will have to, go beyond what is apparent on the face of the application. How can the Chairperson finally determine that there may have been substantial injustice because the decision of the Tribunal was against the weight of evidence without considering the evidence, the necessary extent and significance of which is most unlikely to be sufficiently apparent on the face of the application for a properly informed decision? How can the Chairperson finally decide in a properly informed manner whether the evidence now available is such that the applicant may have suffered a substantial injustice, without consideration of that evidence and the evidence given in the hearing of the matter when again, the necessary extent and significance of the evidence is most unlikely to be sufficiently apparent on the face of the application? And whether the applicant may have suffered a substantial injustice in one or more of the three situations described in s 63(1) involves questions on which the Chairperson is likely to receive assistance from hearing both sides to the questions - the questions are broad and the answers will not necessarily be clear.

52   That s 63(2) states a threshold requirement is further indicated by its initial words. They do not say that in determining whether the applicant may have suffered a substantial injustice in one or more of the three situations the Chairperson shall have regard only to what appears on the face of the application. Nor do they say that the Chairperson shall grant the application if it appears on the face of the application that the applicant may have suffered a substantial injustice. They deny to the Chairperson the grant of the application unless a particular conclusion is evident on the face of the application, and do no more.

53   The Master found support for her conclusion in the reference to the requirements of natural justice in s 63(3) of the Residential Tribunal Act, a reference absent from s 63(2). This invocation of something akin to the expressio unius exclusio alterius principle, usually a principle of suspect utility, was in my opinion unwarranted. The sub-sections deal with quite different subjects. A reference to the requirements of natural justice in the context of the constitution of the Tribunal for a rehearing, when the appropriateness of a rehearing by the Member of the Tribunal who had previously heard the matter would readily arise for consideration, is explicable. It carries no implications for absence of such a reference in the different context of whether a direction should be given that a matter be reheard.

54   In my opinion there is not a clear statutory intention inconsistent with the regulation of the power in s 63 of the Residential Tribunal Act by the requirements of procedural fairness, specifically that the other parties to the hearing be given the opportunity to be heard before the power is exercised. The Chairperson denied procedural fairness to the tenants, and her order made on 21 December 1999 should be quashed.

55   This appeal was heard on 24 May 2001. After these reasons had been prepared we were referred to a decision of Master Malpass in Constable v Anvic Holdings Pty Ltd (2001) NSWSC 444, a case heard on 23 May 2001 and decided on 30 May 2001. Amongst other matters, it was concerned with an application for a rehearing pursuant to s 63 of the Fair Trading Tribunal Act 1998, a provision identical to s 63 of the Residential Tribunal Act. The Master held that s 63(2) "was not intended to oust the requirements of procedural fairness" (at [34]), and "should be seen in the nature of a prohibition or threshold requirement" (at [35]). It is not necessary further to describe the reasoning. The decision of Master Harrison in the present case was referred to, but then politely passed over.

Other matters

56   The decision in the appeal is of some general importance, and leave to appeal should be granted. No complaint of prejudice from the late application for leave to appeal could be or was made, and time should be extended appropriately. The only hesitation on the grant of leave is because the appeal has been conducted without a contradictor, but Mr Griffith's means and the Chairperson's perception that she ought not present substantive argument are not a proper basis for refusing leave and having in place an incorrect decision to the detriment of the tenants' rights.

57   I do not think that an order of remittal to the Chairperson is necessary. The application to the Chairperson was not removed into the Supreme Court, but her order was challenged through the summons filed on 13 March 2000. Upon the quashing of the order, it will be necessary for the Chairperson to reconsider Mr Griffiths' application for an order directing that the substantive applications be reheard.

58   The Master reserved costs, and it seems no order has been made as to the costs of the summons. In the ordinary course Mr Griffiths would be ordered to pay the costs of the appeal, he being the person who obtained the Chairperson's order and the party concerned to uphold it. His submitting appearance was save as to costs. There are a number of possible reasons why there may be no contest over costs. The best course, in my view, is to order that Mr Griffiths pay the costs of the appeal but, because no order has been made as to the costs of the summons, say nothing as to those costs, and to give Mr Griffiths liberty to apply within 28 days if there is occasion and desire to vary that order. To ensure that he has due notice, the Registrar should be directed to send a copy of these reasons to Mr Griffith's address for service.

59   Although the alternative claim to relief in the summons on the basis that the Chairperson lacked jurisdiction to make the order appears not to have been maintained, I consider it appropriate to make some reference to it. What I say can not be regarded as a matter of decision, as it was not in issue in the appeal, but I am concerned that the Chairperson may misconceive the ground on which she appears to have acted in the present case.

60   As I have said, the ground put forward by Mr Griffiths and the facts on which he relied can only be inferred from the letter of 23 December 1999. My inference is that he relied on the fact that, because he was not at the hearing on 1 December 1999, the Tribunal did not have the evidence which he would have given had he been present, and put forward the ground in s 63(1)(c) of the Residential Tribunal Act. The Chairperson so dealt with his application, and appears to have considered that the requirement in s 63(1)(c) was met and that thereby Mr Griffiths may have suffered a substantial injustice. I am unable to see that, if a party to a matter fails to attend and give evidence, it can thereafter be said that the evidence which that party would have given is evidence now available but not reasonably available at the time of the hearing.

61   I propose the following orders -

(1) Extend the time to apply for leave to appeal until 18 May 2001 and grant leave to appeal.

(2) Appeal upheld.

(3) Orders (1) and (2) made by Master Harrison on 30 August 2000 set aside.

(4) Quash the order of the Chairperson of the Residential Tribunal of New South Wales that matters numbers 99/28238 and 99/25943 be reheard.

(5) Second respondent to pay the appellants' costs of the appeal and to have a certificate under the Suitors Fund Act if otherwise qualified.

(6) Liberty to the second respondent to apply within 28 days to vary the orders as to costs.

(7) Direct the Registrar of the Court of Appeal to send a copy of these reasons to the second respondent's address for service.

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LAST UPDATED: 06/07/2001