de Robillard v Sheriff’s Office

On 8 December 2025, the plaintiff filed a summons seeking the judicial review of orders made in the New South Wales Civil and Administrative Tribunal (NCAT), in particular orders made on 5 November 2025.

The matter before me today is a notice of motion filed by the third and fourth defendants (the applicants) on 14 January 2026, seeking a stay of the summons proceedings. The motion is supported by two affidavits of Ms Lisa Jemmeson dated 14 January 2026 and 5 March 2026. Ms Jemmeson is a solicitor acting on behalf of the applicants.

The effect of the orders in NCAT was to terminate a residential tenancy agreement between the plaintiff’s wife and the fourth defendant. The orders required vacation of the tenanted premises and the payment by the plaintiff of $15,000 to the applicants.

The plaintiff filed an appeal from the NCAT orders on 20 November 2025. The appeal will be heard by an NCAT Appeal Panel which has stayed the NCAT orders, including the possession order. The stay orders, which were conditional, were made on 12 December 2025.

The purpose of the stay is to allow the NCAT appeal to be determined. I understand the appeal is due to be heard on 15 April 2026.

The applicants submitted, that to continue with the summons notwithstanding the impending NCAT appeal, would be an abuse of process. The court has an inherent power to stay proceedings to prevent such an abuse. In addition, s 67 of the Civil Procedure Act 2005 (NSW) allows the court to stay proceedings “either permanently or until a specified day.”

The plaintiff opposes the stay sought by the applicants. His position, as expressed in an email to the court received earlier today is that:

In oral submissions the plaintiff said that he was not confident that his arguments would be well received by the Appeal Panel, and it was in the public interest for the matter to be heard by this Court.

I cannot predict the attitude that will be taken by the Appeal Panel but have no doubt it will approach the appeal on a fair and proper basis.

A better point made by the plaintiff was his concern that if the appeal was lost, the applicants would immediately seek a warrant for possession, which would be effected before the judicial review was heard. I understood that the applicants would require a fresh warrant for possession for which they could apply within 28 days of the Appeal Panel’s decision (assuming the decision was in their favour).

A similar concern expressed by the plaintiff was that the term of the lease was due to expire on 22 April 2026, giving the applicants another basis upon which to seek possession. The applicants told me that they would not move to obtain possession by reason only of the expiration of the term of the lease. I will note this statement.

The applicants have not suggested that the stay orders, made on 12 December 2025, should not remain in place. I think it obvious that there should be no interference with them.

As to the listing of the summons, this is the real issue between the parties. The applicants think the pursuit of the summons is an abuse of process. The plaintiff says it is an exercise of his right to correct the obvious mistakes made by NCAT in deciding upon the original orders.

While I am not prepared to make a positive finding that the plaintiff’s proceedings are an abuse of process, I am firmly of the view that the NCAT appeal process should be allowed to be completed. The various complaints the plaintiff has about the original NCAT proceedings can no doubt be aired before the Appeal Panel.

The hearing before the Appeal Panel is not far off, and the stay orders will remain in place protecting the plaintiff’s position, and in particular allowing the continued occupation of the tenanted premises.

I think it is a fundamental exercise of the judicial process, that where an appeal is available to an aggrieved party, that the appeal process should be allowed to be completed before alternative proceedings are instituted. This is all the more so if the appeal has been instituted, and an appeal hearing date is not far away.

Turning to the plaintiff’s concern about a possession order if the appeal was unsuccessful, I think the answer is to impose a condition upon the stay that a warrant for possession not be sought by the applicants for 21 days following the decision of the Appeal Panel. This will give the plaintiff the opportunity to approach this court to impose a stay against possession pending the outcome of the judicial review.

The applicants, in written submissions, have raised the possibility that the summons should be struck out because of s 34(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW). Section 34(1)(c) permits the Supreme Court to “refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision.”

To strike out the summons is a substantial step. It is not an order sought in the notice of motion. For that reason alone, I will not make the order but add that I think the applicants’ position is well protected by ordering the stay that they have sought.

In relation to costs, I think the costs should follow the event. I note that the costs will not be recoverable until the completion of the proceedings in this court.

Accordingly, I make the following orders: