Tanious v NSW Land & Housing Corporation

THE COURT: Mr Mofeed Tanious seeks leave to appeal from a decision of a judge sitting in the Common Law Division of this Court: Tanious v NSW Land & Housing Corporation [2021] NSWSC 807. The primary judge refused leave to him to appeal from the decision of an Appeal Panel of NCAT, itself dismissing Mr Tanious’ appeal from a decision of a member of NCAT ordering, on 4 November 2020, the issue of a warrant for possession requiring Mr Tanious to give vacant possession to the respondent, which is the owner of the social housing premises in which Mr Tanious had lived for some years.

At all stages Mr Tanious has appeared for himself. This is reflected in the formulation of the proposed grounds of appeal, which are as follows:

It may be noted that the grounds do not in terms allege any error on the part of the primary judge.

The primary judge identified the issue which had been debated before the Member and the Appeal Panel as whether proceedings commenced by Mr Tanious in the High Court of Australia had been abandoned. Mr Tanious contended before the primary judge, and seeks to contend in this Court in the event there is a grant of leave, that he has not abandoned an application for special leave to appeal. The primary judge pointed to a certificate in the following terms:

His Honour summarised the reasons of the Member and the Appeal Panel dealing with Mr Tanious’ contention that his proceedings in the High Court had not been abandoned, and observed that it was a question of fact, not of law: at [23]. His Honour noted the presumption in the Evidence Act 1995 (NSW) in relation to public documents such as the certificate reproduced above. His Honour concluded at [24]-[26]:

His Honour also addressed Mr Tanious’ submissions relating to his request that the Court contact the High Court directly. His Honour determined that there was no error in NCAT failing to make an inquiry to the High Court. His Honour added, out of an abundance of caution, that insofar as Mr Tanious invited the Supreme Court to undertake enquiries, he declined to do so.

Nothing has been advanced by Mr Tanious to call into question either aspect of the reasoning of the primary judge. The focus of Mr Tanious’ oral submissions in this Court has been his allegation that the certificate is a fake or at least that there have been suspicious circumstances attending upon it, but those submissions do not address the matter upon which Garling J relied, namely, that it did not give rise to a question of law. Both aspects of the reasoning of the primary judge are plainly correct.

Mr Tanious’ written submissions were directed principally to the circumstances in which, subsequent to the decision of NCAT, he was removed from his home, as well as his claims that the certificate reproduced above was a fake. He elaborated upon those written submissions in his oral submissions today. The submissions are, with respect, a little difficult to follow. By way of example, they include:

Mr Tanious has elaborated upon this orally before us today.

Nothing in what has been put by Mr Tanious casts any doubt upon the orders made by the primary judge. Any appeal would be hopeless.

There are two other matters which may be mentioned by way of completeness. First, at one stage in his oral submissions Mr Tanious claimed that there was a failure to accord natural justice by the primary judge. That was not articulated in any way and insofar as may be seen from the materials before this Court, there was no such failure.

The second is that paragraph 8 of Mr Tanious’ written submissions includes a sentence that Mr Tanious added to the orders sought from the primary judge:

Submissions along those lines were also advanced by Mr Tanious orally today. There are submissions of 3 paragraphs dated 26 April 2021 (in fact they are annexed to an affidavit purportedly affirmed on 23 April 2021; how that came to be need not be resolved for present purposes) and further submissions of 8 paragraphs of 8 June 2021.

Mr Tanious is correct to state that this was not addressed by the reasons of the primary judge. The materials do not disclose whether Mr Tanious made any attempt to rely on those submissions when his summons seeking leave to appeal was heard on 30 June 2021. But even if he did, they plainly fall outside the scope of an appeal from NCAT, and outside the scope of his summons.

The summons seeking leave to appeal must be dismissed for those reasons. We note that the respondent does not seek costs. The order of the Court therefore is summons seeking leave to appeal filed 9 July 2021 dismissed.