Abou-Hamad v The Residential Tribunal

MASTER: The plaintiff was the tenant of premises known as 8/52 Birmingham Street, Merrylands pursuant to a Residential Tenancy Agreement (the agreement). She claims that during the period of her occupancy there was a burglary and that certain of her property was stolen. The loss was attributed to failure by the landlord to rectify a defective laundry window.

The burglary was said to have taken place on 13 February 2001 and the loss was quantified in a sum in the order of about $10,000.

An application for compensation was brought pursuant to s 16 of the Residential Tribunal Act 1998. The application was dated 12 June 2001 and was brought against John J Starr (Real Estate) Limited, (the landlord's agent). The court has been told that subsequently the landlord was added as a party.

During the period of her occupancy the plaintiff was engaged in legal studies. She was admitted as a solicitor on 13 July 2001. She made application to the Residential Tribunal (the Tribunal) for legal representation. This application was refused. The other parties were not legally represented.

The basis upon which the application was propounded before the Tribunal is not entirely clear but it had to be traduced from the contents of an affidavit sworn by the plaintiff. The Tribunal appears to have regarded the application as being founded on alleged breaches of the agreement. The plaintiff also says that an allegation of negligence was made.

There was a hearing on 1 February 2002. Evidence was taken and submissions were made. The court has been told that the proceedings were not recorded and accordingly no transcript is available. The Notice Of Order issued by the Tribunal contains the following:- "(1) The application is dismissed because: Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established."

An application was made for a re-hearing. The application was not granted.

The plaintiff now brings proceedings in this Court. The Summons has been the subject of amendment. The current form of it may be found in the document filed on 22 July 2002. The defendants named in these proceedings are The Residential Tribunal (as the first defendant) and John Salman Jnr (as the second defendant). The named second defendant is the landlord.

There is only a limited avenue of challenge open to the plaintiff in this Court. It is by way of appeal and restricted to error of law. It must be an error of law that justifies disturbing the decision of the Tribunal.

The appeal has been filed out of time and is presently incompetent. However, I shall put this matter aside for the moment while consideration is given to the grounds upon which the appeal is brought.

The alleged grounds of appeal may be found as part of the amended process. They are numerous and need not be repeated again in this judgment. Mostly they provide a narrative of the proceedings before the Tribunal rather than raise matters of law. Largely those matters of law that are raised relate to what happened before the Tribunal.

Before proceeding further I should digress to mention that the plaintiff did file an affidavit in these proceedings and an unsuccessful attempt was made to read a substantial part of it. If that material had been admitted, the effect would have been to introduce fresh evidence on the appeal. The appellate process involves the court in looking at what was before the Tribunal and its decision (including the reasons for the decision) for the purposes of determining whether or not there has been any error of law.

Apart from the matter already mentioned the appeal faces other hurdles. The plaintiff has not sought a statement of reasons from the Tribunal. There was a gross deficiency of evidence (including evidence as to what happened before the Tribunal). The appeal was simply not ready for hearing when the special fixture was sought and granted.

I have carefully considered the material that was before this Court together with the submissions made on behalf of the plaintiff. The plaintiff bears the onus of satisfying the court of an entitlement to relief. I am not satisfied that this onus has been discharged. Accordingly the Summons is dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned.