Herbert v New South Wales Land and Housing Corporation

By summons filed on 19 September 2019, Stephen Herbert, the plaintiff, appeals from a decision of the Appeal Panel (the Appeal Panel) of the New South Wales Civil and Administrative Tribunal (the Tribunal) dismissing his appeal against a decision of Mr Kinsey of the Tribunal (the Original Decision): Herbert v NSW Land & Housing Corporation [2019] NSWCATAP 173. The effect of the Original Decision was to terminate the residential tenancy agreement (RTA) pursuant to which Mr Herbert resided in social housing premises provided by the New South Wales Land and Housing Corporation, the first defendant (the Corporation), in Woolloomooloo (the Premises). The Tribunal is the second defendant and has filed a submitting appearance.

Mr Herbert seeks to have the decision of the Appeal Panel set aside for jurisdictional error on the basis that the Corporation did not comply with the Residential Tenancies Act 2010 (NSW) (the Act) when it cancelled a rental rebate and purported to terminate the RTA on the basis of non-payment of the increased rent. In the alternative, Mr Herbert also relies on an alleged misstatement in the amount of rent outstanding in the termination notice.

All references to legislation in these reasons are to the Act, unless otherwise stated.

The documents variously refer to Family and Community Services Housing, the Department and the Corporation. Mr Simpson of counsel, who appeared on behalf of the Corporation, informed me that the different descriptions were not material since the Corporation was the entity representing the Crown for the purposes of the proceedings in the Tribunal, before the Appeal Panel and in this Court. Accordingly, I propose to refer to the Corporation as the relevant entity.

In his appeal to this Court, Mr Herbert has invoked this Court’s jurisdiction pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), which relevantly provides:

The relevant provisions of the Act are set out below.

Section 13(1) defines a “residential tenancy agreement” as “an agreement under which a person grants to another person for value a right of occupation of residential premises for the purposes of use as a residence”.

Section 41 provides an exclusive code for increases of rent as follows:

Section 44 confers remedies on the tenant for “excessive rent” and provides in part:

Part 5 of the Act provides for termination of RTAs. Section 81 provides that a RTA terminates only in circumstances set out in the Act. Of present relevance, a RTA comes to an end when an order to that effect is made by the Tribunal. Division 2 provides for termination by the landlord and includes ss 87, 88 and 89 which provide in part:

Section 89 of the Act prohibits the Tribunal from making a termination order if the tenant repays the whole of the outstanding rent or enters into a repayment plan.

Division 2 of Part 5 of the Act provides for termination by the tenant. The tenant may terminate a RTA by notice of 14 days in the case of a fixed term agreement (s 96); or 21 days in the case of a periodic tenancy. Fixed term RTAs for a fixed term of 2 years or more may be terminated by notice given by the tenant on the ground that the rent has been increased: s 99.

Division 6 of Part 5, entitled “Miscellaneous” provides for defects in termination notices as follows:

Part 7 of the Act deals with social housing agreements. Section 136, in Division 1 of Part 7, defines rent rebate as follows:

The Corporation is defined as a “social housing provider”: s 136.

Division 3 of Part 7 relevantly provides:

Division 5 of Part 7 deals with termination of such agreements. Subdivision 4 of Division 5 deals with breaches of such agreements. Section 154A relevantly provides:

Section 6 of the Housing Act establishes the Corporation and provides that it is a statutory body representing the Crown.

Part 7 of the Housing Act 2001 (NSW) provides for rental rebates (which are the equivalent of “rent rebates” in the Act). Section 56 empowers the Corporation to grant a weekly rebate of rent to an applicant, the amount of which is to be determined in accordance with guidelines approved by the Minister. Under s 57 of the Housing Act, the Corporation may cancel any rental rebate after conducting an investigation under s 58. The Corporation is required, by s 57(2) of the Housing Act, to determine the date (being a date occurring before, on or after the making of the determination) on which the variation or cancellation has effect or is taken to have effect. Notice is to be given to the tenant of a decision to vary or cancel a rental rebate and the date on which any such variation or cancellation is to take effect: s 57(3) of the Housing Act.

Section 57(4) and (5) of the Housing Act provide:

Section 58(1) of the Housing Act provides that the Corporation may make an investigation to determine the weekly income of a recipient of a rental rebate and any other resident of the house in which the person resides. The Corporation may, under s 58(2), require a recipient to provide evidence of his or her weekly income or that of any other resident in the house in which the person resides.

The facts are largely uncontroversial. On 14 December 2016 the parties entered into a RTA for the Premises for a term of 2 years commencing on 19 December 2016 and ending on 16 December 2018 with a rental of $565 per week (RTA 1). It was a term of RTA 1 that Mr Herbert would pay rent in advance every Monday to the Corporation: cl 3.1.

Clause 41 of RTA 1 relevantly provided:

The Corporation, under Part 7 of the Housing Act 2001 (NSW) granted a rental rebate in respect of RTA 1.

By notice dated 8 September 2017, the Corporation issued a notice of market rent increase to the plaintiff which said, of present relevance:

This notice of market increase was automatically generated and batch-posted to tenants of social housing. The Corporation did not rely on this notice in the proceedings before the Tribunal or the Appeal Panel but tendered it in these proceedings to show the provenance of the figures in the termination notice. It also relied on the notice for the purposes of its submission that I should decline relief to Mr Herbert if either of the grounds of appeal is made out. Mr Simpson informed me that, had Mr Herbert raised either of the grounds which he seeks to raise in this appeal, the Corporation would have tendered this notice and the subsequent notice of market rent increase dated September 2018 (see below).

The Corporation alleged that Mr Herbert was in breach of his obligation to pay rent under RTA 1 and commenced proceedings in the Tribunal for a termination order pursuant to s 87(4). On 22 March 2018, the Tribunal made a termination order of RTA 1 on the basis of Mr Herbert’s failure to pay rent and ordered Mr Herbert to give vacant possession of the Premises.

On 2 April 2018, the Corporation wrote to Mr Herbert and requested that he complete a rent subsidy application form for the purposes of a review of the rental rebate. There is no evidence that Mr Herbert responded to this letter. The Corporation sent a further letter on 23 April 2018, which said, of present relevance:

Mr Herbert accepted, for the purposes of this appeal, that the Court would not find otherwise than that the Corporation validly cancelled the rental rebate. The issue for present purposes is whether the Corporation was required to give a 60-day notice to Mr Herbert under s 41 when it cancelled the rent rebate.

Mr Herbert appealed to the Appeal Panel against the termination order. On 2 May 2018 the proceedings in the Appeal Panel were resolved and orders were made by consent, dismissing Mr Herbert’s appeal. Of present relevance, order (2) noted a repayment plan with respect to arrears of rent under RTA 1 and order (6) provided for rent under the new RTA. It was common ground, and the Tribunal found in the Original Decision, that the effect of the consent orders was to bring into existence a second RTA (RTA 2), which governed the parties’ relations and which superseded RTA 1.

Order (2) noted the agreement of the parties that the arrears were $4,748.90 and that Mr Herbert would pay $50 per week towards discharging the rental arrears.

Order (6) noted the agreement between the parties as follows:

RTA 1 remained relevant by reason of order (6). The weekly rental payable under RTA 2 was, as it had been under RTA 1, $645 per week. By reason of the rental rebate, Mr Herbert was obliged to pay only $200.25. The rental rebate, unless renewed, was due to expire on 13 May 2018.

On 11 May 2018 the Corporation wrote to Mr Herbert and said:

Mr Herbert continued to pay rent at the rebated rate of $200.25 per week and adhered to the repayment plan for the arrears by paying $50 per week. The Corporation considered that the expiry of the rebate had caused the weekly rent to increase to $645 per week. Accordingly, it regarded Mr Herbert as being in breach of RTA 2 and treated the difference between $645 (the rent payable) and $200.25 (the amount paid) as outstanding rent.

On 1 August 2018, the Corporation issued a termination notice under s 87. The termination notice said in part:

As Mr Herbert did not comply with the termination notice, the Corporation commenced proceedings in the Tribunal for a termination order pursuant to s 87(4).

On 8 September 2018 the Corporation sent a further notice of market rent increase to Mr Herbert which said, of present relevance:

As with the notice dated 8 September 2017, this letter was automatically generated and batch-posted to tenants of social housing. The Corporation did not rely on this notice in the proceedings before the Tribunal or the Appeal Panel but tendered it in these proceedings for the reasons given with respect to the notice dated 8 September 2017.

On 19 March 2019 the Tribunal made the Original Decision. It concluded that Mr Herbert’s breaches were sufficient to justify the termination of RTA 2; ordered that RTA 2 be terminated immediately; and suspended the order for possession of the Premises until 16 April 2019.

Mr Herbert appealed to the Appeal Panel against the Original Decision. On 11 July 2019, the Appeal Panel dismissed the appeal: Herbert v NSW Land & Housing Corporation [2019] NSWCATAP 173.

When Mr Herbert commenced the proceedings in this Court he was, as he had been previously, self-represented. However, he was referred by this Court to the pro bono scheme, through which he obtained the services of Mr Atkin, of counsel, who now appears on his behalf, and who formulated the relief sought in the summons and the grounds.

The operative decision is that of the Appeal Panel, which dismissed an appeal from the Tribunal: Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [79] (Sackville AJA, Leeming JA and Adamson J agreeing) (Navazi), citing Forge v Australian Securities and Investments Commission (No 2) (2007) 69 NSWLR 575; [2007] NSWCA 42 at [3]. However, it is necessary, for present purposes, to consider the findings made by the Tribunal since they formed the basis of the Appeal Panel’s decision.

The Tribunal made the following finding about the state of arrears as at the date of the termination notice:

The Tribunal found, in accordance with the parties’ agreement at the hearing, that “a new tenancy was created on 2 May 2018”: [37] of the Tribunal’s reasons.

The Tribunal also found as follows:

The Tribunal’s finding at [63(4)] is the subject of ground 2. The Tribunal found:

The Tribunal also found that the rent was unpaid for not less than 14 days before the termination notice was given and that the breach was “in the circumstances of the case” sufficient to justify termination of the agreement.

At [65], the Tribunal found:

The Tribunal also found, at [68]:

In dismissing the appeal, the Appeal Panel relevantly concluded, at [16]:

In his written submissions, Mr Atkin submitted that the grounds of appeal could be distilled into two grounds: first, that the termination notice was invalid because the cancellation of rental rebate required notice to be given under s 41; and second, that the termination notice was invalid because it included arrears under RTA 1, which had been the subject of a repayment plan to which Mr Herbert complied. These grounds will be addressed in turn.

The first ground depended on the following propositions.

Mr Atkin submitted that what was required to cause the expiry of the rental rebate to have an effect on the rent payable was for a notice to be given to Mr Herbert under s 41. Mr Atkin argued that because no notice under s 41 was given to him, the rent was not increased from the figure in RTA 2 of $200.25 per week, with the consequence that the termination notice given by the Corporation was ineffective: s 88.

Mr Atkin submitted that there were important policy reasons why a cancellation of a rental rebate, in the circumstances of the present case, ought be regarded as effecting an increase in rent and mandating a notice under s 41. He submitted that the 60-day notice required by s 41 was intended to provide the tenant with sufficient time either to terminate the tenancy agreement under ss 96 or 99 (before he or she breached it by being unwilling or unable to pay the increased weekly amount for rent) or to approach the Tribunal to obtain relief under s 44 from alleged excessive rent. It also appeared to be accepted that there is another avenue for a tenant, being an appeal to the Housing Appeals Committee, which is an internal review body within the Corporation.

Mr Atkin submitted that the result for which the Corporation contended could have been achieved had there been a remitter (which he described as the “legally traditional view of rebate”) rather than a waiver. He said that if Mr Herbert had been required, every week, to hand to the Corporation the sum of $645 (being the unrebated amount of rent) and the Corporation had been, as long as the rental rebate was in force, required to remit to him the amount of $444.75 (being the difference between $645 and $200.25), no s 41 notice would have been required if the rental rebate was cancelled since Mr Herbert would have remained liable to pay $645 per week but the Corporation would not have been obliged to remit the sum of $444.75. However, Mr Atkin submitted that the acceptance by the Corporation of the amount of $200.25 every week meant that, if this amount was to be increased by the cancellation of rental rebate, a notice under s 41 was required.

Mr Atkin submitted further that, because there was no effective termination notice, the Tribunal lacked the power to make a termination order under s 87(4) because it could not, as a matter of law, be satisfied that the termination notice was given in accordance with s 87. He argued that, because the Tribunal lacked the power to make a termination order, it had no jurisdiction to make the order. He contended that, in these circumstances, it could not be said that the notice was merely defective, so as to attract the operation of s 113: cf. Navazi at [57] (Sackville AJA, Leeming JA and Adamson J agreeing). Rather, he submitted that it was ineffective, by reason of non-compliance. Thus, it could not be saved by s 113.

It was common ground that Mr Herbert had not specifically referred to s 41 either before the Tribunal or before the Appeal Panel. Mr Atkin submitted that Mr Herbert had argued that he was not 14 days in arrears and that he had complied with RTA 2. I am not persuaded that his submissions in the Tribunal or the Appeal Panel raised the first ground.

The question whether a ground not raised in administrative proceedings may be raised subsequently is, for the reasons given below, a discretionary matter for the Court. As the nature of the error alleged is relevant to the exercise of the discretion, I propose to consider each of the grounds before addressing whether Mr Herbert ought be permitted to raise them.

In order to address the propositions (1)-(4) relied upon by Mr Atkin, it is necessary to consider the relationship between rent payable and a rental rebate under the Act and the Housing Act.

The starting point is the definition of “rent rebate” in s 136 which makes it clear that a rent rebate is an amount “waived or remitted” “from rent payable to a social housing provider”. Since no amount is actually “remitted” to a tenant, it being accepted that the tenant is entitled to pay the rebated amount during the currency of the rebate, the rebate is waived from the rent payable. It is important to note that, although the payments required to be made are reduced by the rebate, the Act does not provide that the rebate reduces the rent payable.

I do not accept that the distinction sought to be drawn by Mr Atkin in his submissions summarised above gives rise to a difference of result. The statutory definition of “rent rebate” in s 136 expressly includes waiver or remitter, which is a powerful indication of a legislative intention to cover both situations without distinction.

In New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 (Diab), the Court of Appeal held that retrospective cancellation of a rental rebate did not convert the (overpaid) rebate into arrears of rent. The enactment of s 154A (set out above) was designed to reverse the result in Diab. It was ultimately accepted by the parties that s 154A did not affect non-retrospective cancellations of rental rebates (such as in the present case). Although Diab was not concerned with prospective cancellation of rental rebates, the consideration by Macfarlan JA (Beazley P concurring) in Diab of the nature of a rental rebate and its relationship with rent payable is relevant to ground 1.

Macfarlan JA analysed the effect of the grant of a rebate on the agreement between the Corporation, as landlord, and the tenant as follows:

Applying this analysis to the present case, the rent payable is the amount specified in the RTA. In RTA 2, Mr Herbert was obliged, under order (6) (set out above) to pay “rent pursuant to the Residential Tenancy Agreement dated 14 December 2016 [RTA 1] currently rebated to $200.25 per week (and subject to future change in accordance with the law and the policy of the Respondent [the Corporation].”

The rent payable under RTA 1 was, for the period from 14 December 2016 until 26 November 2017, $565. By reason of the notice of market rent increase dated 8 September 2017, the rent payable under RTA 1 increased to $645 on 27 November 2017. The effect of order (6) made by the Appeal Panel was to make this amount the rent payable under RTA 2. Subject to cancellation of the rental rebate or earlier valid termination of RTA 2, this figure remained the rent payable until 26 November 2018 when, by reason of the notice of market rent increase dated 8 September 2018, the rent payable increased to $685.

On the basis of Macfarlan JA’s analysis in Diab, from the commencement of RTA 2, the Corporation, having granted a rental rebate, made an offer to Mr Herbert to accept the rebated amount of $200.25 per week in satisfaction of his rental obligations to pay the rent payable (which was $645 per week at the commencement of RTA 2). Thus, for the period until the expiry of the rental rebate, the Corporation accepted the weekly payments of $200.25 in discharge of Mr Herbert’s obligation to pay rent under RTA 2.

The effect of the Corporation’s cancellation of the rental rebate as at 13 May 2018 was that it was no longer prepared to make an offer to Mr Herbert to accept the rebated amount in satisfaction of his obligation to pay rent payable under RTA 2. The rent payable on and from 14 May 2018 was $645 per week. By not paying that amount, Mr Herbert was in breach of his obligation to pay rent under RTA 2.

The modern approach to statutory interpretation, which is both contextual and purposive, permits regard to be had to how a related statute deals with a particular topic to arrive at a coherent view of the body of law. Section 57 of the Housing Act, which is cognate legislation, empowers the Corporation to cancel a rental rebate either at the time, for the future, or for a period in the past. So much is clear from the terms of s 57(2) which provides that the Corporation is required to determine the date “being a date occurring before, on or after the making of the determination” on which the cancellation is to take effect.

It can hardly be supposed that an unfettered conferral of power such as is provided for in s 57 of the Housing Act would be read down by a provision such as s 41. If a cancellation of a rental rebate effected an increase in rent payable, any in futuro cancellation of a rental rebate would, notwithstanding the express words of s 57 of the Housing Act, require notice of 60 days to be given under s 41 of the Act. I regard such a construction as incorrect, since, among other objections, it would produce the following anomaly:

Although (a) and (b) above follow from the wording of the statute, (c) would be, as Mr Atkin accepted, a perverse result which cannot have been intended by Parliament.

I accept that from Mr Herbert’s lay perspective, the amount he had to pay to occupy the Premises increased on 14 May 2018 from $200.25 per week to $645 per week. However, this was not, as a matter of law, an increase in the rent payable, since the rent payable was, and had been since the commencement of RTA 2 (and indeed, since 27 November 2017, under RTA 1), $645 per week. Accordingly, s 41 did not apply.

Lest this consequence for a tenant be thought inconsistent with the purposes of the Act and the Housing Act, it is significant to remember that a rental rebate is a concession given to a tenant on the basis that his or her income is adjudged to warrant subsidy. Where the tenant’s income increases, or where the Corporation does not have sufficient information about the tenant’s income to assess whether the tenant’s income continues to warrant the subsidy by way of rental rebate, Parliament has expressed its intention that the Corporation be entitled to cancel the rental rebate. The cancellation can be retrospective, immediately or prospective. While such cancellation can, as I have found, have an immediate effect on the weekly amount which the tenant is obliged to pay, the relevant waiver being no longer operative, this is not per se unjust in the circumstances. Social housing is a valuable public resource which is to be allocated by the Corporation on grounds of need. Where the need of a particular tenant cannot be ascertained, it is not inappropriate for the public subsidy represented by the rental rebate to be withheld in the case of present or future cancellations, or withdrawn in the case of retrospective cancellations. These are matters for the Corporation. For these reasons, I am satisfied that the statutory construction set out above is not inconsistent with the purposes of the legislation and, indeed, is apt to promote them: s 33 of the Interpretation Act 1987 (NSW).

I should add, for completeness, that I was referred to the decision of P Taylor SC DCJ in New South Wales Land and Housing Corporation v Quinn (No 2) [2018] NSWDC 161 in which the relationship between s 41 of the Act and s 57 of the Housing Act was considered. His Honour found that the Corporation was not obliged to comply with s 41 when cancelling a rental rebate pursuant to s 57. His Honour said:

I agree with his Honour’s analysis in [248] except for one matter. I disagree that this analysis “does not appear to sit comfortably with the reasoning of the plurality in Diab”. For the reasons given above, I consider the analysis to follow from the reasoning of the plurality in Diab and from the analysis of the legal effect of a rental rebate in that decision.

As referred to above, the operative decision is that of the Appeal Panel, which dismissed an appeal from the Tribunal. No error on the basis of ground 1 has been shown in the decision of the Appeal Panel.

This legal analysis does not take into account the circumstance that the submissions by Mr Atkin on behalf of the plaintiff were put neither to the Tribunal nor to the Appeal Panel and have been put, for the first time, to this Court. Ground 1 ought to have been raised by Mr Herbert in the Tribunal and before the Appeal Panel. The compliance of the termination notice with the Act was a matter of substantial relevance to the making of the termination order by the Tribunal and the issue for the Appeal Panel whether to allow or dismiss Mr Herbert’s appeal from the termination order made by the Tribunal. Because I have found that ground 1 has not been made out, it is not necessary to consider the consequences of this circumstance further. However, the question whether leave to appeal ought be granted needs to be addressed.

The question raised in ground 1 is a question of law. The ground raised a significant question of statutory construction. While I regard the majority dicta in Diab as having determined the question adversely to the plaintiff, Diab itself concerned retrospective cancellation of a rental rebate and did not need to decide the point which arose in the present case. In these circumstances I am persuaded that it is appropriate to grant leave to appeal in respect of ground 1.

Mr Atkin alleged that the termination notice contained a substantial error in that it purported to include the amount of arrears from RTA 1 (which had been agreed to be $4,748.90) in the statement of rent arrears for RTA 2. Thus, it overstated the arrears in RTA 2 by $4,748.90. In the context of a demand for arrears of $9,434.45, Mr Atkin submitted that this was a considerable overstatement. He argued that the correct legal analysis was that (if ground 1 was not made out), the outstanding rent was the difference between $645 and $200.25 for the period from the commencement of RTA 2 on 2 May 2018 and the date of the notice of termination, being 1 August 2018.

Mr Atkin submitted that the following finding by the Tribunal at [63(4)] of its reasons was patently erroneous:

Mr Atkin argued that the inclusion of the higher figure was no mere arithmetical error. He contended that it was an error of law for the Corporation to assert a claim for an amount which was not owing, there having been a repayment plan entered into pursuant to which Mr Herbert’s obligation to repay the amount of $4,748.90 by instalments of $50 per week. It was accepted that Mr Herbert adhered to that repayment plan. Further, Mr Atkin submitted that it was impossible for Mr Herbert to be 113 days in arrears as at the date of service since RTA 2 had only commenced on 2 May 2018. He relied on what Basten JA said in Brennan v New South Wales Land and Housing Corporation (2011) 83 NSWLR 23; [2011] NSWCA 298 at [84] and [89] (cited by Sackville JA in Navazi at [59]) that the state of satisfaction necessary for the finding of a jurisdictional fact (such as in s 87(4)(c)) cannot be reached if the Tribunal takes into account a legally irrelevant consideration.

Mr Herbert’s principal objection to a termination order was summarised in the following paragraph of the Tribunal’s decision:

In effect, Mr Herbert’s submission in the Tribunal was that, notwithstanding the cancellation of the rental rebate, the Corporation was obliged to continue to accept his payments of $200.25 per week in full satisfaction of his rental obligations under RTA 2. Mr Herbert submitted in the Tribunal and the Appeal Panel that the termination notice was “false and misleading in a material particular” but did not specifically take exception to the inclusion of the amount of $4,748.90 from RTA 1.

I am not persuaded that Mr Herbert raised ground 2 in the Tribunal or before the Appeal Panel.

I accept Mr Atkin’s submission that the termination notice was defective since it included in the arrears of rent an amount which had been the subject of a repayment plan under a previous tenancy agreement (RTA 2). It overstated the amount owing since, in respect of the outstanding debt of $4,748.90, Mr Herbert was entitled to repay it in instalments of $50 per week. The sum of $4,748.90 was, accordingly, not due and payable as at the date of the termination notice. Mr Herbert was not 113 days in arrears, although he was plainly significantly more than 14 days in arrears as required by s 88. I accept Mr Atkin’s submission that error was not merely arithmetical since it involved a legal misapprehension of the terms of the agreement made on 2 May 2018. The inclusion of a legally inapplicable category of claim in the notice of termination raises a question of law for the purposes of s 83(1) of the NCAT Act.

The relevance of s 113 arose in a similar context in Navazi where Sackville AJA said:

The Anshun principle (established by Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45) applies to review of administrative decisions: S442/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1240 at [23] (Allsop J); Applicant S442 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 28 at [15] (Finn, Emmett, Selway JJ); BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669; (2001) 67 ALD 60 at [24] (Sackville J) (BC). Thus, an estoppel arises where the matter relied on in the second action was “…so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”: Anshun at 602 (Gibbs CJ, Mason and Aicken JJ).

The Anshun principle is subject to a “special circumstances” exception. In BC, Sackville J said, at [26]:

In Navazi, Sackville AJA addressed the question whether an inferior court or tribunal could be said to have erred in law if the question of law was not raised before the tribunal. His Honour referred to Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk) where relief in the nature of certiorari was granted notwithstanding that both parties had agreed that the defendant could give evidence (which was later found to be a jurisdictional error on the part of the Industrial Relations Court). Sackville AJA concluded, at [118]:

In Kirk the jurisdictional error was made by the Industrial Relations Court and the appeal against the decision of the Court was dismissed. The error which was found to be jurisdictional, that Mr Kirk had given evidence for the prosecution, was raised for the first time in the course of the hearing of the appeal before the High Court. It was not submitted by the respondent in the High Court that Mr Kirk ought not be permitted to rely on it. Thus, the consideration by the High Court was, to that extent, consensual.

In Kirk, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), in construing a privative clause said at [55]:

In Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51; (2004) 204 ALR 722, Lindgren J found special circumstances and, accordingly, permitted Mr Wong to argue that that there had been a denial of procedural fairness. His Honour said at [153]:

Whereas ground 1, if made out, would have raised a question of jurisdictional error, I am not persuaded that the Tribunal could be said to have committed a jurisdictional error by not addressing a defect in a termination notice which was not relied on in the hearing before it: see, for example, Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726; (1989) 20 ATR 1262 at 728 (Gummow J). The effect of Mr Herbert’s failure to raise the claim was significant. Had he raised the claim before the Tribunal or before the Appeal Panel, s 113 could have been considered and the decision-maker could have decided whether to make a termination order notwithstanding the defect in the notice. There would have been powerful arguments in favour of making a termination notice. First, Mr Herbert was under no illusion as to the basis on which the Corporation said that he owed the monies in the termination notice. Secondly, Mr Herbert plainly did not propose to pay rent at the rate of $645 per week, irrespective of the erroneous inclusion of the additional amount of $4,748.90. Thirdly, the Tribunal found that by 21 February 2019 (the day before the second day of the hearing before it) the rent arrears were $21,046.20. Although the rent arrears were actually $4,748.90 less than that (on the basis of the analysis set out above), the difference was not, in that context, material.

It was, as an objective matter, not in Mr Herbert’s interests to rely on such a defect before the Tribunal in any event. The Corporation did not seek an order for the rent arrears. Its claim was a claim for possession and this was the claim that Mr Herbert resisted. For Mr Herbert to propound an alternative position which accepted that he was in substantial arrears (although not to the extent of $21,046.20) would have placed him in a difficult position in endeavouring to resist a termination order. Although Mr Herbert represented himself in the Tribunal and the Appeal Panel and I accept that his skills in legal analysis were those of a layperson, he was nonetheless a relatively experienced participant in the Tribunal, which is accustomed to persons representing themselves. Whether or not the notice of termination was misleading, I am not satisfied that Mr Herbert was misled. He must have known how the figure claimed was calculated and that it included the lump sum for arrears from RTA 1.

Further, there was obvious prejudice to the Corporation: cf. NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214; [2003] FCAFC 102 at [21] (Carr, Kiefel and Allsop JJ). I accept Mr Simpson’s statement that, had Mr Herbert raised an argument in terms of ground 2, the Corporation would have run its case differently. It would have tendered and relied upon the notices of market rent increase sent in September 2017 and September 2018, each of which complied with s 41 and gave more than 60 days’ notice of an increase in rent. The Corporation would, inevitably, have cross-examined Mr Herbert on factors germane to s 113.

I am not persuaded that there are special circumstances on the basis of which I ought permit Mr Herbert to raise ground 2. Accordingly, leave will be refused in respect of ground 2. It is not, in these circumstances, necessary to consider the effect of s 41(10).

On 22 August 2019, Ierace J ordered that the execution of the writ of possession of the Premises be stayed on conditions (as to payment of rent and arrears) until further order. As the appeal has been dismissed, there is no further warrant for a stay, which should, accordingly, be dissolved. I propose to defer this order for 14 days.

The Corporation has been successful in resisting the relief claimed by Mr Herbert. Ordinarily, this would entitle it to an order for costs: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. However, as the parties asked that costs be reserved, I will defer making an order until an application is made or agreement is reached on an appropriate order.

For the reasons given above, I make the following orders: