El-Saeidy v New South Wales Land and Housing Corporation [2009] NSWSC 1059

El-Saeidy v New South Wales Land and Housing Corporation [2009] NSWSC 1059

The application was premature and precluded by s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001. The jurisdictional objection had not been raised before the Tribunal so s 65(2) did not apply, and the Tribunal had not finally determined the tenancy matter or yet denied procedural fairness so s 65(3) did not apply. The Tribunal hearing date and any adjournment could still be addressed before the Tribunal, so the plaintiff was not presently entitled to the relief sought.

Jurisdiction
Australia
Judgment Date
18 September 2009
Procedural Posture
Application for Prerogative Relief and Declarations Concerning Consumer, Trader & Tenancy Tribunal Proceedings / Ex Tempore Judgment on Amended Summons
Outcome
Judgment for the defendant; proceedings dismissed; plaintiff ordered to pay the defendant's costs.
Legal Topics
['consumer, Trader & Tenancy Tribunal' 'prerogative Relief' 'privative Clause' 'procedural Fairness' 'natural Justice' 'right to Silence' 'privilege Against Self Incrimination' 'adjournment or Vacation of Tribunal Hearing Dates' 'overlap Between Civil and Criminal Proceedings' 'costs']
['administrative Law' 'civil Procedure' 'residential Tenancy Law'] ['consumer, Trader & Tenancy Tribunal' 'prerogative Relief' 'privative Clause' 'procedural Fairness' 'natural Justice' 'right to Silence' 'privilege Against Self Incrimination' 'adjournment or Vacation of Tribunal Hearing Dates' 'overlap Between Civil and Criminal Proceedings' 'costs']

Case Brief

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Procedural Posture

Application for Prerogative Relief and Declarations Concerning Consumer, Trader & Tenancy Tribunal Proceedings / Ex Tempore Judgment on Amended Summons

Legal Issues

  1. 1 ["Whether the Supreme Court should grant declaratory or prerogative relief in relation to the Tribunal's decision to list or not vacate the tenancy proceedings for hearing before related criminal proceedings were determined." "Whether the plaintiff had been denied procedural fairness or natural justice by the Tribunal's interlocutory decision." 'Whether s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 precluded the proceedings at this stage.' 'Whether the plaintiff could rely on the right to silence or privilege against self-incrimination to halt the Tribunal proceedings pending the criminal hearing.']

Ratio Decidendi

The application was premature and precluded by s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001. The jurisdictional objection had not been raised before the Tribunal so s 65(2) did not apply, and the Tribunal had not finally determined the tenancy matter or yet denied procedural fairness so s 65(3) did not apply. The Tribunal hearing date and any adjournment could still be addressed before the Tribunal, so the plaintiff was not presently entitled to the relief sought.

Court Disposition

Judgment for the defendant; proceedings dismissed; plaintiff ordered to pay the defendant's costs.

Orders

  • ['Judgment for the defendant.' 'Proceedings be dismissed.' "Plaintiff to pay the defendant's costs of and incidental to these proceedings, as agreed or assessed." 'Otherwise the matter is dismissed.']