Tenant's Claim for Procedural Fairness Before Tenancy Termination Dismissed

The Supreme Court of New South Wales dismissed a tenant's claim for procedural fairness before termination of a periodic tenancy under the Residential Tenancies Act 2010, finding that the balance of convenience did not favour the tenant.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v [COMPANY] [2012] NSWSC 1195 Hearing dates: 3 October 2012 Decision date: 05 October 2012 Before: Johnson J Decision:

1. The Plaintiff's Notice of Motion filed 29 August 2012 is dismissed.

2. The Plaintiff's claim for interim relief in paragraph 1 of the Statement of Claim filed 23 August 2012, as varied in paragraph 1 of the draft amended Statement of Claim, is dismissed. 3. [COMPANY] is discharged from any agreement or undertaking given by it on 11 September 2012 not to take any steps towards renting 41 [NAME], North Gosford.

4. The parties will be heard on the question of costs and the making of appropriate orders to progress this litigation. Catchwords: PRACTICE AND PROCEDURE - claim for declaratory and injunctive relief - [NAME] terminates periodic tenancy under s.85 Residential Tenancies Act 2010 - claim that tenant denied procedural fairness - application by tenant for interlocutory injunction - tenant seeks order that relevant public housing premises remain vacant until determination of claim for final relief - serious question to be tried - undertaking as to damages - balance of convenience - interlocutory injunction refused Legislation Cited: Housing Act 2001 Residential Tenancies Act 2010 Housing Regulation 2009 Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; 208 CLR 199 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1; 118 CLR 618 Y and Z v W [2007] NSWCA 329; 70 NSWLR 377 Calvin v Carr [1979] 1 NSWLR 1 Circaz Pty Limited v Manolodis [2003] NSWSC 455 Varley v Varley [2006] NSWSC 1025 Kioa v West [1985] HCA 81; 159 CLR 550 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Category: Interlocutory applications Parties: [NAME] (Plaintiff) [COMPANY] (Defendant) Representation: Counsel: [redacted] [NAME] (Defendant) Solicitors: [redacted] [NAME] (Defendant) File Number(s): 2012/263109

Judgment 1JOHNSON J: By Notice of Motion filed 29 August 2012, the Plaintiff, [NAME], seeks an interlocutory injunction in aid of proceedings which she has brought against the Defendant, [COMPANY] ("[NAME]"). 2The Plaintiff seeks interim relief in the following terms (in accordance with paragraph 1 of the draft Amended Statement of Claim): "Upon the plaintiff, by her solicitors, giving the usual undertaking as to damages, the defendant, by itself, its servants and agents, be restrained pending determination of these proceedings or further order of this Court, from taking steps to rent the premises at 41 [NAME], North Gosford NSW (being Lot 2 in Deposited Plan 626300)." 3By Statement of Claim filed 23 August 2012, the Plaintiff challenges on administrative law grounds the decision by [NAME] to terminate a periodic residential tenancy with respect to premises at 41 [NAME], North Gosford ("the [NAME] premises"). The basis of the Plaintiff's claim for relief is now contained in a draft Amended Statement of Claim, which was utilised by counsel at this interlocutory hearing as constituting the Plaintiff's cause of action.

The Interlocutory Hearing

4The Plaintiff's Notice of Motion was heard on 3 October 2012. [NAME] of counsel appeared for the Plaintiff and [NAME] of counsel appeared for [NAME]. 5Mr [NAME] read affidavits of his instructing solicitor, [NAME], affirmed on 18 July 2012, 7 September 2012 and 11 September 2012. In addition, bundles of documents were tendered in the Plaintiff's case (Exhibit CJF1, Exhibit CJF2 and Exhibit A). 6Mr [NAME] read the affidavit of [NAME] affirmed 17 September 2012 and tendered a bundle of documents (Exhibit 1). 7Neither deponent was cross-examined and the hearing proceeded by way of submissions made by reference to the affidavits and documentary evidence. Counsel had furnished detailed written submissions in advance of the hearing.

The Basic Facts

8PLH is an [COMPANY]. It is a non-profit company and a [NAME], which operates as a [NAME] managing approximately 900 residential properties in the Central Coast and Hunter regions of New South Wales. 9Approximately 505 of those properties are on the Central Coast, including 391 properties in the Gosford Local Government area. 10PLH provides social housing to eligible persons, primarily persons from socially disadvantaged backgrounds, with approximately 93% receiving government benefits as their main source of income. 11The Plaintiff is 38 years of age. She occupied, as tenant, premises at 1/[ADDRESS], East Gosford during the period March 2009 to April 2010, before that tenancy was terminated by the managing agent. Those premises were owned privately and tenanted by [NAME] to make housing available to its clients, in this case, the Plaintiff. 12The New South Wales Land and Housing Corporation ("[NAME]") is the registered proprietor of the [NAME] premises. [NAME] is created as a corporation under s.6 Housing Act 2001. 13LandCorp, as lessor, and [NAME], as lessee, have entered into a lease of 466 residential properties located in New South Wales by way of a Head Lease. The rent payable under the Head Lease was a total of $1.00 per annum for the lease of all 466 [NAME] properties, which includes the [NAME] premises. 14PLH was prohibited from subletting or licensing the [NAME] premises to a person other than an eligible person as defined under the Community Housing Eligibility Policy. Any sublease of the [NAME] premises by [NAME] was to comply with the requirements of the Residential Tenancies Act 2010. The Head Lease contained other provisions which it is not necessary to recite in this judgment. 15On 23 April 2010, the Plaintiff leased the [NAME] premises from [NAME]. On that day, the Plaintiff signed a Performance Agreement agreeing not to partake in any abusive or nuisance behaviour or interfere with the comfort and privacy of neighbours (Exhibit 1, page 42). 16During the life of the Plaintiff's tenancy of the [NAME] premises, [NAME] made several applications to the Consumer, Trader and Tenancy Tribunal ("CTTT") concerning the Plaintiff, including allegations of non-payment of rent, damage to property and antisocial behaviour. 17It appears that an application lodged by [NAME] on 22 October 2010 was withdrawn on 17 January 2011. 18On about 12 August 2011, [NAME] issued a termination notice to the Plaintiff (Exhibit 1, page 82). [NAME] then made application to the CTTT in August 2011 for vacant possession of the [NAME] premises and relief pursuant to ss.89, 90 and 92 Residential Tenancies Act 2010 (Exhibit 1, page 86). 19In about August 2011, as a result of things said to him by [NAME] staff, [NAME], the Chief Executive Officer of [NAME], issued a direction that staff were not to attend the [NAME] estate on their own, with a minimum of two staff to attend on occasions that were considered necessary ([NAME] affidavit, paragraph 32). 20On 20 September 2011, [NAME] filed an urgent application in the CTTT with respect to the Plaintiff (Exhibit 1, pages 88-92). That application sought a termination order with respect to the tenancy under ss.87, 90 and 92 Residential Tenancies Act 2010. 21It appears that the applications lodged by [NAME] with the CTTT in September 2011 were withdrawn in October 2011. There is limited evidence before the Court on this application concerning what occurred in the CTTT, and the circumstances leading to withdrawal of the applications. It appears to be the case that no contested hearing proceeded before the CTTT with respect to any of these applications. 22On 8 March 2012, [NAME] issued a notice terminating the Plaintiff's tenancy of the [NAME] premises under s.85 Residential Tenancies Act 2010. Section 85 provides: "85 Termination of periodic agreement (1) A landlord may, at any time, give a termination notice for a periodic agreement. (2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given. (3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more." 23It was accepted by the Plaintiff that it was open to [NAME] to terminate the Plaintiff's tenancy by means of a notice under s.85 Residential Tenancies Act 2010. Section 82 of that Act specifies the requisite contents of a termination notice. It was not submitted for the Plaintiff that the notice of 8 March 2012 was itself defective. 24It will be observed that s.85(3) confines the function and powers of the CTTT where termination occurs under s.85 so that the CTTT must, on application by a landlord, make a termination order if it is satisfied that the termination notice was given in accordance with the section and that the tenant has not vacated the premises as required by the notice. 25The Plaintiff's complaint in these proceedings is that she was denied procedural fairness, in that [NAME] did not comply with what are said to be its obligations to accord procedural fairness to a tenant in the position of the Plaintiff before termination under s.85 occurs. 26It was submitted for the Plaintiff that the CTTT was not empowered to consider such a procedural fairness issue at any hearing of an application under s.85(3), so that it was necessary for the Plaintiff to approach this Court for declaratory and injunctive relief. It was not submitted for [NAME] that the CTTT was the appropriate forum to deal with the issues raised in this litigation.

Accordingly, it is common ground that the present proceedings are properly before this Court. 27The termination notice dated 8 March 2012 referred to [NAME] policy with respect to the use of the s.85 procedure. Amongst other things, the Plaintiff contends that the statement of [NAME] policy in this notice does not accurately reflect what the law required of a [NAME] before the s.85 procedure was utilised with respect to a tenant in the position of the Plaintiff. 28The termination notice of 8 March 2012 required the Plaintiff to vacate the [NAME] premises by 14 June 2012. The notice stated: "We confirm that on Thursday, 16th February the Board approved that [NAME] issue you this notice based on the history of your tenancy (and past tenancy) and the continued risk of serious damage to neighbouring properties, continuing risk of serious injury to neighbours, abuse, intimidation and harassment of neighbours. If you fail to give vacant possession on or before 14/06/12, [NAME] will make an application to the CTTT for termination and possession. Section 85 requires that the CTTT MUST make a termination order and an order for possession. You are responsible to pay rent up to and including the day the keys are handed back to the property. Should you hand the keys back prior to 14 June 2012 your rent will cease this date. If you have any questions regarding this decision please do not hesitate to contact me. If you are unhappy with this outcome we recommend you contact the Housing Appeals Committee (phone: [PHONE] or [PHONE]) for advice regarding your options for an appeal of [NAME]'s decision. Please find enclosed a Housing Appeals Committee Appeal Form for your information." 29The termination notice was signed by [NAME], Executive Housing Manager with [NAME]. 30On 21 March 2012, the Plaintiff lodged an appeal to the Housing Appeals Committee ("HAC") (Exhibit CJF1, page 33). It appears that the Plaintiff received assistance from [NAME] of the [NAME] in completion of the notice of appeal, and in the subsequent HAC appeal itself. The evidence indicates that the Plaintiff did not obtain legal advice with respect to the matter until later in June 2012, after she had vacated the [NAME] premises. 31The notice of appeal to the HAC indicated that the Plaintiff contested the factual matters which had led to the eviction. 32The appeal to the HAC was heard on 3 May 2012, with a decision being made by the HAC on 28 May 2012 (Exhibit CJF1, pages 39-55). 33The HAC furnished its reasons to the Plaintiff under cover of a letter dated 28 May 2012. 34Mr [NAME] emphasised that the HAC was not exercising any statutory appeal function. He submitted that the Plaintiff's use of this avenue of appeal in no way overcame or cured what was said to be a denial of procedural fairness surrounding the issue of the termination notice on 8 March 2012. The powers and functions of the HAC will be an issue to be explored at the final hearing of the Plaintiff's claim for relief. The evidence before me indicates that the HAC exercises a type of merits review function, in accordance with procedures laid down in the Housing Appeals Committee Policy and Procedures 2004 (Exhibit 1, pages 126-127). 35The written decision of the HAC discloses the process undertaken by it, including meetings with the Plaintiff (assisted by [NAME] and [NAME] of the [NAME]) and with representatives of [NAME]. 36For the purpose of this judgment, it is not necessary to refer in detail to the HAC decision, which recounts the Plaintiff's personal history and tenancy history, and the allegations raised with respect to her tenancy of the [NAME] premises. It is apparent that the HAC engaged in a critical and extensive examination of the [NAME] decision, culminating in a number of criticisms of it, including the limited evidence in support of a number of allegations and the absence of clear reasons as to why all avenues with the CTTT had not been exhausted, or as to why [NAME] had not "followed procedural fairness in putting allegations to [NAME] separately or at the CTTT and allowing for response" (Exhibit CJF1, page 53). 37The HAC concluded that, "despite reservations related to the poor documentation and procedural fairness", [NAME] had made "a correct decision". The HAC decision explained this conclusion by reference to the strong belief of [NAME] that serious incidents of verbal abuse, injury, property damage and threats were attributable to the Plaintiff and her family, and that there was no other option but to terminate her tenancy. The HAC concluded that [NAME] had "made a correct decision within their policy guidelines" (Exhibit CJF1, pages 54-55). 38Counsel for the Plaintiff seeks to impugn this approach upon the basis that the [NAME] policy did not accurately reflect its obligations to accord procedural fairness to the Plaintiff, so that a finding in these terms was itself erroneous. 39The HAC report concluded with a number of recommendations concerning the way in which [NAME] should approach issues of this type in the future. 40The HAC report set out a number of the allegations raised against the Plaintiff and her response to them. Counsel for the Plaintiff submitted that the Court should not have regard to these factual matters for the purpose of determining the present application, as the Plaintiff was not accorded procedural fairness with respect to them. 41Allowing for the prospect of controversy with respect to matters raised against the Plaintiff, it is noteworthy that the HAC listed amongst the matters for comment, based on information gained through the appeal process, the fact that 12 residents of [NAME] had been approved for transfer and moved during the period of the Plaintiff's tenancy, with five of those persons stating reasons directly relating to incidents involving the Plaintiff or members of her household, with seven stating they were fearful about antisocial behaviour in [NAME], with one transfer request mentioning an intention to apply for an apprehended violence order against the Plaintiff's de facto partner and another related to an alleged break and enter by the Plaintiff's sons and subsequent verbal abuse (Exhibit CJF1, page 52). 42The Plaintiff vacated the [NAME] premises on 15 June 2012. Following the Plaintiff's vacation of the [NAME] premises, an inspection revealed serious damage requiring substantial repair costing $16,442.09. [NAME] accepts that some of these repair costs relate to general fair wear and tear, and has made an adjustment downwards to reflect the length of the Plaintiff's tenancy. This adjustment has resulted in [NAME] attributing $9,614.23 to damage, repairs, pest control, locksmith and cleaning costs during the occupation of the property by the Plaintiff, which could not fairly be attributable to fair wear and tear ([NAME] affidavit, paragraph 38). [NAME] is pursuing the Plaintiff for a compensation order in the sum of $11,716.20, by application to the CTTT, to recover the cost of repairs and unpaid rent for the [NAME] premises (said to be in the sum of $807.80) ([NAME] affidavit, paragraphs 42-43). 43The [NAME] premises have been ready to be leased since 6 August 2012. However, the property has not been leased by [NAME] given correspondence which has passed between the solicitors for the Plaintiff and the solicitors for [NAME] since 11 July 2012, foreshadowing the commencement of the present proceedings. 44The Plaintiff made application for housing assistance, but this was declined by Housing NSW on 29 June 2012 for the following reasons (Exhibit CJF2, page 2): "Unsatisfactory former public housing tenants are not eligible for social housing until they have demonstrated that they have been able to sustain a tenancy in the private sector for at least six months. If an unsatisfactory former tenant is unable to sustain a private tenancy, a housing provider will not approve their application for social housing." 45The evidence indicates that the Plaintiff is residing at a boarding house on the Central Coast ([NAME] affidavit, 18 July 2012, paragraph 27). 46As mentioned earlier, proceedings were commenced by the filing of a Statement of Claim on 23 August 2012.

Applicable Legal Principles

47The principles to be applied on an application such as this are not in doubt. 48In order to obtain an interlocutory injunction, the Plaintiff must identify the legal or equitable rights which are to be determined at trial and in respect to which final relief is sought: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; 208 CLR 199 at 216-218 [8]-[16], 231-232 [60] and 241 [91]. 49The Plaintiff must demonstrate that, by reference to the Statement of Claim filed 23 August 2012 and the proposed Amended Statement of Claim served on 21 September 2012, there is a serious issue to be tried. The Plaintiff must make out a prima facie case although, in practice, there is generally no significant difference between the two formulations of the test: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 at 68-69 [19], 81-84 [65]-[72]. 50In applications for interim relief, the Court will not normally attempt to resolve disputed questions of fact or difficult questions of law: Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1; 118 CLR 618 at 622. 51Next, the Plaintiff must give a sufficient undertaking as to damages. 52Finally, the Plaintiff must establish that she is likely to suffer injury for which damages will not be an adequate remedy, and that the balance of convenience favours the [NAME] of the interim injunction. 53The ultimate question to be answered in the context of an application for interlocutory relief is whether, having regard to the balance of convenience, the Plaintiff has established a sufficiently arguable case for final relief to justify the [NAME] of such interlocutory relief. The strength of the prima facie case and the balance of convenience each influence what is required on the other: Y and Z v W [2007] NSWCA 329; 70 NSWLR 377 at 383 [29].

Submissions of the Parties

54Detailed written and oral submissions were made by counsel and it is not necessary, for the purpose of determining this application, to rehearse them in detail. Reference will be made to the gist of the submissions. Serious Question to be Tried/Prima Facie Case 55Mr [NAME] outlined in some detail the legal foundation for the Plaintiff's claim for final relief. He submitted that an analysis of various provisions, including s.67N Housing Act 2001, Clause 5 and Schedule 1 (paragraphs 2 and 3) Housing Regulation 2009 and provisions of the Head Lease between [NAME] and [NAME] and the Common Terms Agreement between [NAME] and [NAME] (Exhibit 1, pages 10ff and 52ff) and the Housing NSW "Community Housing Access Policy" (Exhibit A, page 4), gave rise to a procedural fairness obligation and an internal review obligation, in the manner set out in the draft Amended Statement of Claim. 56He contended that there was a clear breach of these obligations in the circumstances surrounding the issue of the termination notice on 8 March 2012. Although accepting that s.85 Residential Tenancies Act 2010 did not itself require that [NAME] accord procedural fairness to the Plaintiff, he submitted that the particular statutory and procedural regime applicable to [NAME] and the Plaintiff's tenancy gave rise to obligations which were breached by [NAME]. 57Mr [NAME] submitted that the HAC appeal process did not assist [NAME] or detract from the Plaintiff's claim for relief. He submitted that there was no statutory foundation for the HAC to exercise its functions, and that it had no power to make an order overruling or setting aside the s.85 termination notice. He submitted that it was, at best, a type of advisory body which could make recommendations. 58Mr [NAME] identified some 33 allegations which had been made against the Plaintiff, or members of her family, and pointed to the fact that a limited number of these were referred to in CTTT applications made by [NAME], but withdrawn in 2011, with the great bulk of the allegations not having been put to the Plaintiff by [NAME]. 59Whilst submitting that the HAC process provided no assistance to [NAME] submitted that a number of comments and conclusions expressed by the HAC, in terms critical of the [NAME] process and its procedural fairness, served to assist the Plaintiff in this case. 60Mr [NAME] conceded, for the purpose of this application only, that there was a serious issue to be tried. In taking this approach, [NAME] reserved absolutely all arguments concerning the merits of the Plaintiff's substantive claim. 61PLH contends that the Plaintiff was accorded procedural fairness, with the relevant policy being properly applied with respect to the decision to terminate the tenancy under s.85 Residential Tenancies Act 2010. [NAME] will also contend that the Plaintiff was afforded an opportunity to challenge the decision to terminate her tenancy by use of the HAC process, and that the HAC decision supported [NAME]'s decision to terminate the tenancy. [NAME] flagged a submission based upon Calvin v Carr [1979] 1 NSWLR 1 at 15 that the HAC appeal process had operated to cure defects (if any) surrounding the s.85 termination notice, with the HAC confirming the correctness of the decision to terminate the tenancy. 62In response to [NAME]'s reliance upon [NAME] v [NAME] submitted that the reasoning in [NAME] v [NAME] was confined to private bodies, and not the exercise of public functions, so that the principles could not be called in aid by [NAME] in this case. Undertaking as to Damages 63Mr [NAME] submitted that the Plaintiff, through her solicitors, had given an undertaking as to damages and that this undertaking had been guaranteed to the sum of $1,000.00 by the Tenants' Union of New South Wales Co-Op Limited. Counsel submitted that the Plaintiff had paid rent, and that the rent statement in evidence did not indicate any major difficulty in this respect (Exhibit CJF2, page 1). 64Mr [NAME] submitted that, even in circumstances where an undertaking as to damages has little or no value, the Court will not conclude that an interlocutory injunction should be refused. This is particularly so, he submitted, where the Plaintiff has established a serious issue to be tried and has done her best to provide an appropriate undertaking. He submitted that the Court will not lend itself to the injustice that will be caused by the denial of a trial by reason that the Plaintiff will have no funds to litigate if she had been required to provide security: Circaz Pty Limited v Manolodis [2003] NSWSC 455 at [12]; Varley v Varley [2006] NSWSC 1025 at [35]ff. 65Mr [NAME] submitted that the Plaintiff was generally impecunious. He pointed to the fact that the [NAME] premises required extensive repairs to render the property habitable after the Plaintiff had departed. The evidence indicated that, in the usual course, the [NAME] premises would have been rented within eight to 10 days of their becoming available on 6 August 2012. 66He submitted that the Plaintiff now seeks that the property remains fallow and uninhabitable for a further period, pending determination of these proceedings. 67In these circumstances, [NAME] submitted that the Plaintiff's undertaking as to damages was manifestly inadequate, and that there is no realistic prospect that the Plaintiff would satisfy any award of damages arising under the strength of her undertaking. 68In response to the submission of the Plaintiff that the Court would not lend itself to the injustice that would be caused by the denial of a trial, [NAME] submitted that the Plaintiff would not be denied either a trial or a meaningful outcome should she ultimately succeed. He submitted that the Plaintiff had not pointed to any special, unique or otherwise discerning feature of the [NAME] premises which could not be addressed by the allocation of a suitable alternative property in the close vicinity, which [NAME] has the ability to facilitate should the Plaintiff succeed in the proceedings. Damages Not an Adequate Remedy and Balance of Convenience 69Mr [NAME] submitted that damages were not an available remedy given the Plaintiff's claim for relief upon the basis of denial of procedural fairness, so that this aspect of the test could be placed to one side. [NAME] did not advance any submission to the contrary. 70Mr [NAME] submitted that the balance of convenience favoured the maintenance of the status quo. This involved the [NAME] premises remaining vacant pending the final determination of the Plaintiff's claim for relief. He contended that [NAME] had unreasonably refused to desist from reletting the property, and had not offered to rehouse the Plaintiff elsewhere. In these circumstances, he submitted that the balance of convenience favoured the [NAME] of the interlocutory injunction as sought. 71Mr [NAME] emphasised, as well, that the claim for interlocutory relief had in mind the possibility that [NAME] would contend, at some later time, that the [NAME] of relief would be futile as the Plaintiff had vacated the [NAME] premises. 72Mr [NAME] made clear that the claim for interlocutory relief did not seek a mandatory injunction that the Plaintiff be put back in the [NAME] premises. He acknowledged that he would face a higher hurdle if that was the form of interlocutory relief sought (T24, T26). 73Mr [NAME] submitted that the balance of convenience in this case required consideration of a range of factors, including the position of [NAME] as a registered and accredited provider of community housing for the benefit of eligible persons who are primarily from socially disadvantaged backgrounds, with the majority receiving government benefits as their main source of income. 74Mr [NAME] noted that there was no affidavit from the Plaintiff which asserted any unique or otherwise special element connecting the Plaintiff to the [NAME] premises. 75He submitted further that the Court may infer readily that, should the Plaintiff ultimately succeed in her claim for relief, [NAME] is in a position to rehouse her in one of the properties owned and managed by it, in its role as a registered and accredited community housing provider. 76Although [NAME] has been prepared to date to agree to the [NAME] premises remaining vacant, [NAME] submitted that to continue this state of affairs would cause detriment to [NAME] and, in particular, would deprive an otherwise eligible person from the ability to occupy community housing. 77Mr [NAME] submitted that the balance of convenience strongly favoured the refusal of the interlocutory relief sought by the Plaintiff.

Resolution of Competing Submissions

78The Plaintiff contends, and [NAME] accepts, for the purpose of this application, that there is a serious issue to be tried in this case. As the authorities make clear, there is some overlap between the question of whether there is a serious issue to be tried and the balance of convenience. 79Without attempting any detailed analysis, let alone any factual findings or concluded views on issues of law, some observations may be made concerning the nature of the Plaintiff's claim for relief. 80At the final hearing, it will be necessary for the Court to consider what are the requirements of procedural fairness in the factual and legal circumstances of this case. The requirements of procedural fairness are flexible and will vary with the circumstances of the case: Kioa v West [1985] HCA 81; 159 CLR 550 at 584. As [NAME] observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at 13-14 [37]: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 81The Plaintiff has a viable argument, contained in the draft Amended Statement of Claim, that [NAME] had an obligation to accord her procedural fairness and that this did not happen prior to 8 March 2012. Whether that viable argument can give rise to the establishment of her claim for relief will depend upon the evidence, submissions and findings arising from a final hearing of the matter. 82An unusual feature of the case concerns the Plaintiff's appeal to the HAC and the process and decision made at that appeal. The question whether the principles in [NAME] v [NAME] have application and, if so, to what effect will arise for consideration. [NAME] foreshadowed that further evidence would be sought to be placed before the trial Judge concerning the functions and powers of the HAC, and the approach to be taken by a body such as [NAME] to a decision of the HAC. 83All of this may involve an examination of the statutory and procedural scheme, so as to inform and give content to the requirements of procedural fairness in a case such as this. 84It may be relevant to observe that the giving of a termination notice under s.85 Residential Tenancies Act 2010 is not irrevocable. The party who gives a termination notice may, at any time, revoke the notice with the consent of all the other parties to the residential tenancy agreement: s.112 Residential Tenancies Act 2010. It may be that a finding of the HAC on appeal adverse to the landlord who issued the s.85 notice may lead, as a matter of course, to withdrawal of the notice under s.112, in circumstances where the tenant would no doubt consent to such a step. 85In raising these matters, I am, of course, not purporting to determine the proceedings, or to engage in any elaborate analysis of issues arising in the case. Rather, I do so to illustrate that the process presently under consideration is not one where the decision of the original decision maker (under s.85) cannot be recalled, and can only be set aside by a body exercising powers (statutory or otherwise) on appeal or review. 86In my view, there is a serious question to be tried at the final hearing of this matter, which may be characterised fairly as a viable prima facie case. 87There is a degree of overlap as between the issues of the Plaintiff's undertaking as to damages and the balance of convenience. I keep firmly in mind that the Plaintiff's application is for an interlocutory injunction that would see the [NAME] premises left vacant until the final hearing of the matter which, realistically, even if the final hearing of the matter is expedited, is unlikely to take place until 2013. 88If the Plaintiff fails in her claim for relief, her undertaking as to damages will provide little assistance to [NAME]. The $1,000.00 guarantee provided by the Tenants' Union of New South Wales Co-Op Limited will cover but a portion of the rental lost to [NAME], which would otherwise be available if the property was tenanted. 89I approach the application upon the basis that the Plaintiff is effectively impecunious. Indeed, central to the proceedings is the Plaintiff's desire to obtain community housing due to social disadvantage and limited income. 90If all other factors favoured the Plaintiff, I would not use the effective $1,000.00 cap on the undertaking as to damages in a manner which would operate to prevent her proceeding to a hearing on the merits. However, that is not this case. 91The Plaintiff is represented by counsel and solicitor who will appear for her at the final hearing. There is no application for security for costs made by [NAME]. 92Whether interlocutory relief is granted or not, the Plaintiff will be able to proceed to a hearing on the merits, hopefully without any significant delay given the ability of her legal representatives to prepare the matter promptly for hearing. 93If interlocutory relief is refused, and if the Plaintiff succeeds in her claim for relief, the stated position of [NAME] is that steps would be taken to find her accommodation from its residential pool. Further, [NAME] has submitted that no argument will be advanced by [NAME] that the Plaintiff's departure from the [NAME] premises renders futile any claim for relief. 94There is detriment to the Plaintiff at present because she is not residing at the [NAME] premises. It has been necessary for her to find alternative accommodation. However, counsel for the Plaintiff made entirely clear that a mandatory interlocutory injunction is not sought to place the Plaintiff back into the [NAME] premises, pending the determination of these proceedings. 95There is no evidence adduced by the Plaintiff as to any special or unique feature of the [NAME] premises, previously occupied by her, which serves to explain why that property should be kept vacant for the not inconsiderable period of time which is likely to pass before the final hearing of her claim for relief. I accept that the Plaintiff has some connection to the property because she and, from time to time, various members of her family have lived there in the period between April 2010 and June 2012. But that is the extent of the Plaintiff's connection to that property. The evidence indicates that she has lived in public housing in other locations prior to then. 96Balanced against the Plaintiff's desire that the [NAME] premises remain available for her to reoccupy, in the event that she succeeds at a final hearing, is the considerable detriment to [NAME] and to the community if a valuable piece of community housing is not utilised for a significant period for the important purposes for which it is intended. 97The evidence before the Court makes clear that there is a significant need for community housing of this type in this State. Indeed, it would be a matter of irresistible inference in any event that housing of this type is sought by eligible persons, and is to be made available by [NAME] in the public interest. It is a most valuable social commodity. This is a powerful factor which operates against the Plaintiff on the claim for interlocutory relief. 98In my view, the balance of convenience points strongly against the [NAME] of interlocutory relief in this case. 99The [NAME] premises were unavailable for lease between 15 June 2012 and 6 August 2012 because of the need to undertake necessary repairs to the property. The premises have not been available since then because of the need for a ruling by the Court on the claim for interlocutory relief. 100I am entirely satisfied that, in the circumstances of this case, the interlocutory injunction sought by the Plaintiff ought be refused. 101The parties to the proceedings ought to take all necessary steps to prepare the matter for final hearing without delay. If the Plaintiff succeeds at that final hearing, the Court is entitled to expect that [NAME] will find accommodation for the Plaintiff. The refusal of interlocutory relief does not impede the ability of the Plaintiff to press her claim for final relief. No futility argument will be advanced by [NAME] as a result of her having vacated the [NAME] premises.

Conclusion and Orders

102For these reasons, I propose make orders which will: (a) discharge [NAME] from any agreement or undertaking given by it before Registrar Bradford on 11 September 2012, not to take any steps towards renting the [NAME] premises; (b) dismiss the Plaintiff's Notice of Motion filed 29 August 2012; (c) dismiss the Plaintiff's claim for interim relief in paragraph 1 of the Statement of Claim filed 23 August 2012, as varied in paragraph 1 of the draft Amended Statement of Claim. 103If the Court reached these conclusions, [NAME] sought an order that the Plaintiff pay [NAME]'s costs of and incidental to the interlocutory application, on an ordinary basis as agreed or assessed. As this hearing has proceeded as a discrete step in the proceedings, it is appropriate to consider the question of costs at this point. I will allow counsel an opportunity to make submissions on the application by [NAME] that costs should follow the event. 104As foreshadowed during the hearing on 3 October 2012, I will give further directions today with the view to progressing the litigation, including directions for the filing and service of the Amended Statement of Claim, a Defence and evidence to be relied upon by the parties at the final hearing. 105I make the following orders: (a) the Plaintiff's Notice of Motion filed 29 August 2012 is dismissed; (b) the Plaintiff's claim for interim relief in paragraph 1 of the Statement of Claim filed 23 August 2012, as varied in paragraph 1 of the draft amended Statement of Claim, is dismissed; (c) [NAME] is discharged from any agreement or undertaking given by it on 11 September 2012 not to take any steps towards renting the [NAME] premises; (d) I will hear counsel on the question of costs and the making of appropriate orders to progress this litigation.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 October 2012