Muts v Le

HIS HONOUR: I am dealing with an application for a stay of proceedings pending in the Civil and Administrative Tribunal (“NCAT”). The stay is sought in support of a summons for judicial review which the plaintiff, Mr Muts, has filed challenging the legality of a decision of the Appeal Panel of NCAT in an interlocutory appeal made on 7 August 2025: YQM v Le [2025] NSWCATAP 205.

The appeal panel refused leave to appeal and dismissed the appeal from a decision made by General Member S Smith granting leave for the parties to be represented. Two orders were made, as Mr Muts has pointed out, each in slightly different language. On 31 March 2025, General Member Smith made an order in these terms:

Following a request for written reasons under section 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), the order does seem to have been recast, or summarised perhaps, in these terms:

Reasons for that decision were then expressed. It is important to point out that the order was made for the benefit of both parties.

The proceedings pending in NCAT are listed for hearing at Liverpool on 19 February 2025. There are two applications to be heard together. Only one of those applications involves Ms Le. The other application is brought against the legal owner of the residence the subject of the tenancy under the Residential Tenancies Act 2010 (NSW). Mr Muts is the applicant in each matter. The legal owner is not a party to these proceedings, and nor has he been served with any notice of the application for a stay and has not appeared today. An order has been made in NCAT for the pending proceedings to be heard together.

In his careful written submissions in relation to the matter, Mr Muts has accurately summarised the principles which govern the grant of a stay in support of an application for judicial review or appeal. There are two guiding principles. The first question is whether the application for judicial review or appeal, as the case may be, is fairly arguable sufficiently to justify the stay. The second principle relates to the balance of convenience. Frequently, and this case falls into this category, the question arising under the second principle is whether the failure to grant a stay will render the review or appeal proceedings nugatory. But neither is a decisive consideration.

I should say that I have given leave, without objection from Mr Muts, for Ms Le’s partner Mr Kwok to represent her today. He has informed me, in response to my question on more than one occasion, that he has not retained a lawyer to represent Ms Le on Thursday, nor will he do so in the interim, and that he will seek leave to appear for Ms Kwok, who is currently in Vietnam, in NCAT.

As Mr Muts pointed out, the order of 7 April 2025, which seems to be the operative order given the refusal of leave to appeal and the dismissal of the appeal, is couched in more general terms than the order of 31 March and refers to “representation”, not just “legal representation”.

Given the absence of the legal owner of the residence and, more importantly, the consideration that he or she is neither a party, nor have he, she or it been given notice of this hearing, it would be impossible for me, in the interests of justice, to order a stay in respect of that proceeding notwithstanding that the owner is a respondent and not an applicant. Even a respondent is entitled to have the case determined, and it should not be permitted to hang over his or her head unnecessarily.

My real concern is whether it has been demonstrated that the application for judicial review is fairly arguable. With respect, I am not persuaded that it is, at least sufficiently to justify staying proceedings in a residential tenancy dispute which has been pending in the tribunal for some time. The first thing is that matters of natural justice, which form one of the grounds which Mr Muts wishes to propose, are concerned with not some abstract concept of justice but practical justice. In some of Mr Muts’s written submissions he had suggested because Ms Le was entitled to legal representation there was an unlevel playing field, but it is notable that both orders of 31 March and 7 April were couched in terms entitling both parties, if they so choose, to obtain representation including legal representation. There can be no suggestion of any unfairness.

The second aspect which is of concern to me is the legal consideration of whether the application for judicial review has sufficient prospects of resulting in an order for certiorari. During the course of the argument this afternoon I drew Mr Muts’ attention to the decision of the High Court of Australia in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159; [1996] HCA 44 (“Hot Holdings”). A plurality of Brennan CJ, Gaudron and Gummow JJ described the scope of the Supreme Court’s power to grant certiorari. Without setting out the whole of the passage from the decision it is sufficient for me to refer to the following quote:

It is clear beyond argument I think that the decision of the appeal panel of 26 August 2025 falls into that second category and so the question becomes whether it has the necessary effect on the final or ultimate decision to sufficiently determine that ultimate decision in accordance with their Honours’ formulation. In my judgment it is not fairly arguable that the decision of 26 August 2025 falls into that category. Both parties had an equal entitlement and opportunity, if they chose, to retain legal representation for the final hearing in NCAT. As the appeal panel pointed out, it was not made compulsory for them to do so. Whether either one, or other, did so was a matter for their individual judgment after mature reflection. It is quite clear that Mr Muts has put a lot of effort into informing himself about the issues involved and the legal considerations that will ultimately inform a decision, and at no stage has he indicated a preference for legal representation. It seems to me that his main concern has been to avoid Ms Le taking that opportunity.

It is also important to bear in mind that under section 83 of the NCAT Act, an avenue of appeal, admittedly with leave and limited to a question of law, is available and that opportunity has not been taken by Mr Muts. The availability of that appeal may of itself may be a discretionary basis for leave to be refused after a final hearing of the application for judicial review. Moreover section 34 of the NCAT Act entitles the Court to refuse to determine a judicial review application where an appeal could have been brought. I am not suggesting that those factors are essential to a determination in relation to whether a stay should be granted or an assessment of the prospects on judicial review but nor are they completely irrelevant.

However, it seems to me that fundamentally the considerations arising out of Hot Holdings are very persuasive in the present situation. Moreover it is clear law that no jurisdictional error or even error of law on the face of the record is made by a tribunal unless the error could possibly have affected the ultimate determination of the tribunal, rather than the determination of an interlocutory appeal.

For the reasons I have sought to make clear it has not been shown that it is fairly arguable that the refusal of leave to appeal from the interlocutory decision of General Member S Smith is in any way possibly material to the ultimate determination of the applications pending before the tribunal for hearing on Thursday.

I appreciate that refusing a stay may lead to a determination in the tribunal before the finalisation of the judicial review proceedings in this Court (although the case management orders made by the registrar here in the present case provide for a very short timetable to prepare the matter for hearing) but for the reasons I have rehearsed I am not persuaded that the proper exercise of my discretion in the interests of justice requires me to stay the proceedings.

There is also the consideration that there is a common matrix of fact to both sets of proceedings listed on Thursday arising out of the one tenancy and it would seem to me that there would be a capacity for a stay of one and not the other to lead to unfairness to one party or another. For all of these reasons I make the following orders: