Federal Court of Australia

Chadwick v State of New South Wales [2023] FCA 945

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s notice of appeal and supplementary notice of appeal be dismissed.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    At the hearing of this matter on 8 August 2023, I made orders dismissing the present appeal on the basis that the Court lacked jurisdiction and made an order that there be no order as to the costs of the appeal. I indicated that I would publish reasons for those orders shortly. These are my reasons for those orders.

2.    BACKGROUND

2    The background to this proceeding is largely summarised in the primary judge’s (PJ) reasons from [1]-[19]: Chadwick v State of New South Wales [2022] FCA 1498. I briefly outline the following background points.

3    The appellant, Ms Chadwick, has lived in public housing in Belmont North in New South Wales since December 2005 (primary judge’s reasons (PJ) at [6]). On 21 April 2022, Ms Chadwick was given notice of termination of her social housing tenancy agreement (and that the tenancy agreement would be not be extended) under the Residential Tenancy Act 2010 (NSW). The notice was issued on the stated basis that, by reason of her income, the appellant was no longer eligible for social housing. A review of that decision was unsuccessful. On 24 June 2022, the State sent Ms Chadwick a notice of termination and advised that she was required to give vacant possession on 29 August 2022 (PJ at [15]).

4    Ms Chadwick did not give vacant possession on 29 August 2022. On 30 August 2022, the NSW Land & Housing Corporation commenced proceedings in the NSW Civil and Administrative Tribunal (NCAT) seeking the termination of Ms Chadwick’s tenancy agreement (PJ at [16]).

5    On or about Friday 18 November 2022, Ms Chadwick lodged a complaint against the Respondents in the Australian Human Rights Commission. Ms Chadwick alleges that the actions of various officers of the State and the Housing Corporation in seeking to terminate her tenancy agreement constituted unlawful discrimination as defined in s 3(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), on the basis of her sex, race and marital status. As at the date of the hearing on 8 August 2023, that complaint remains on foot.

6    On 28 November 2022, Ms Chadwick instituted proceedings in this Court attempting to restrain the State from terminating her tenancy agreement and from evicting, or taking steps to evict, her (PJ at [2]). The basis on which that relief was sought was s 46PP of the AHRC Act, which relevantly provides:

(1)    At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may grant an interim injunction to maintain:

(a)    the status quo, as it existed immediately before the complaint was lodged; or

(b)    the rights of any complainant, respondent or affected person.

(2)    The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.

(3)    The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE, paragraph 46PF(1)(b) or section 46PH.

7    On 16 December 2022, the primary judge dismissed Ms Chadwick’s application for an interim injunction on the basis that it was not in the interests of justice to grant the injunction. Specifically, the primary judge concluded that he was not persuaded that Ms Chadwick’s claim before the Commission was sufficiently meritorious to warrant the granting of an injunction (PJ at [44]). In addition, the primary judge took into account (among other things) the fact that, if the injunction were granted, it would prevent the State from pursuing its legal rights under the Tenancy Act, referring to the State’s proceedings in the NCAT seeking termination of the appellant’s social housing agreement (PJ at [37]-[40]). Specifically, the primary judge observed that the effect of such an injunction would be “at the very least, to stay the NCAT proceeding until the Commission has taken action in relation to her complaint” (PJ at [38]). The primary judge considered this to be a consideration which favoured exercising “caution” in granting the injunction sought by Ms Chadwick (PJ at [39]). The primary judge also observed that, even if no injunction was granted, it would not necessarily follow that Ms Chadwick would be evicted from her housing, as this would depend on the outcome of the NCAT proceeding (PJ at [42]).

8    Following the decision of the primary judge, on 16 January 2023 the respondents’ application to terminate Ms Chadwick’s tenancy agreement in the NCAT was dismissed: NSW Land & Housing Corporation v Chadwick [2023] NSWCATCD 11.

9    Ms Chadwick, who was unrepresented on the appeal, nonetheless lodged a notice of appeal from the primary judge’s decision on 23 January 2023, which was accepted for filing on 31 January 2023, and a supplementary notice of appeal on 1 February 2023, accepted for filing on 3 February 2023. On 17 May 2023, the respondents filed a notice of objection to competency on the ground that Ms Chadwick required leave pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) because the judgment from which she sought to appeal was an interlocutory judgment.

10    Both parties filed detailed written submissions in advance of the hearing. Those submissions addressed both the question of whether leave to appeal was required and the question of whether leave to appeal should be granted in the event that the Court accepted that leave was required. The implicit assumption underlying the detailed submissions filed by the respondent on the second issue was that, if leave was required, the Court would proceed to hear that issue, notwithstanding that no formal application for leave to appeal had been filed and served.

11    Subsequently, at the case management hearing on 21 July 2023, I explained that at the hearing then listed for the following week, the Court would hear submissions on the notice of objection to the competency of the appeal and on the question of whether leave to appeal should be granted, in the event that I was persuaded that it was necessary for her to seek leave to appeal from the decision of the primary judge.

12    When Ms Chadwick indicated that she was confused, I asked the respondents’ counsel, Mr Lee, to explain the way in which he anticipated that the hearing would proceed more clearly, which he did as follows:

What’s happening next week is there will be a hearing as to – the first stage is whether, Ms Chadwick, you do need leave to appeal and the basis upon which the respondents say you do need leave is because the interim injunction or the judgment of [the primary judge] relating to the interim injunction was interlocutory in nature. So perhaps an exact way of rephrasing that is whether it is or was not a final order in nature. And if the court finds that leave is required, then the second step of that hearing will be whether leave should be granted or not. I don’t know if I made that any more clearer.

13    It follows that, at least by the time of the case management hearing, the parties were in no doubt that the question of whether leave should be granted would be heard at the same time as the notice of objection to competency.

3.    REASONS WHY THE COURT LACKS JURISDICTION

14    As I have explained, at the start of the hearing on 8 August 2023, I raised with counsel for the respondents, Mr Lee, the question of whether the Court lacks jurisdiction to hear the appeal, in circumstances where the application to terminate her tenancy agreement has now been dismissed by NCAT:

HER HONOUR:    … the second thing is that, as I understand it – please update me if my information is wrong – NCAT has actually dismissed the application by the State to evict Ms Chadwick. So what is the current state of play? Is there anything on foot at all with respect to the eviction of Ms Chadwick? Because if there isn’t, then this whole matter is moot, and I have no jurisdiction anyway.

MR LEE:    Can I put it on two levels. (1) There is no evidence that there is anything on foot, and I can tell your Honour that I’m instructed there is not.

…

HER HONOUR:    [So] at the moment, there’s nothing on foot to evict her.

MR LEE:        No, your Honour.

…

HER HONOUR:    So all we have at the moment is a decision by NCAT … as a result of which the application by the respondent to evict [Ms Chadwick] was dismissed.

MR LEE:    Yes. Or can I colour it by saying the application to terminate the lease. Yes, your Honour.

HER HONOUR:    The application to terminate the lease was dismissed.

MR LEE:        Dismissed. Yes, your Honour.

HER HONOUR:     What’s the live issue in front of me that I could have any jurisdiction over at all?

MR LEE:        Yes. Quite. Quite, your Honour.

15    Subsequently, after explaining the issue to Ms Chadwick I asked Mr Lee “what’s the position of the respondents then with respect to the question of whether there is any live matter left in front of me”, to which he properly responded that “the respondents do say that there is no live matter in front of you…” (emphasis added).

16    At that point I raised my concern that Ms Chadwick was not given notice in advance of the hearing about the jurisdictional issue. After the difficulty was explained in the course of the hearing to Ms Chadwick, she also indicated that she did not wish to press ahead with her application but stated that she was concerned about an adverse costs order. At that point, I indicated that I would dismiss the appeal on the basis that the Court lacked jurisdiction (quite apart from the question of whether the appeal was incompetent on the basis that a grant of leave to appeal was required). Given that it was ultimately not in issue that the matter was now moot, my reasons for forming the view that the Court lacked jurisdiction can be shortly stated as follows.

17     First, it remains my obligation to be positively satisfied of jurisdiction. As Isaacs ACJ explained, “The very first duty of any Court, in approaching a cause before it, is to consider its jurisdiction”: Hazeldell Ltd v Commonwealth [1924] HCA 36; (1924) 34 CLR 442 at 446.

18    Secondly, it is well-established that a federal court will lack jurisdiction to hear a dispute unless there is “some immediate right, duty or liability to be established by the determination of the Court”: In re Judiciary and Navigations Acts [1921] HCA 20; (1921) 29 CLR 257 at 265 (Knox CJ, Duffy, Powers, Rich and Starke JJ). As the High Court in Unions NSW v New South Wales [2023] HCA 4; (2023) ALJR 150 at [14]-[15] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ) held (in a passage which I drew to the parties’ attention at the hearing):

[T]he function of the Court is not the giving of legal answers or the declaration of legal principle – it is the resolution of a controversy about a legal right, duty or liability. The giving of answers or the making of declarations is an exercise of judicial power only where the seeking and giving of those answers or declarations arise in or out of the judicial determination of the rights and liabilities in issue in the dispute. That understanding of the Court's function is reflected in the constitutional requirement that a dispute involves a "matter" for the purposes of Ch III of the Constitution.

Exceptional categories aside, there can be no "matter" within the meaning of Ch III of the Constitution unless "there is some immediate right, duty or liability to be established by the determination of the Court" in the administration of a law and unless the determination can result in the Court granting relief which both quells a controversy between parties and is available at the suit of the party seeking that relief.

19    Their Honours proceeded to observe that (at [18]);

[A] sufficient interest must continue to subsist up until the time at which relief is granted or refused. If, after the commencement of a proceeding, a party ceases to have a sufficient interest in obtaining the relief sought, that party no longer has standing to obtain that relief, the "matter" ceases to exist and, in consequence, the jurisdiction of the Court comes to an end.

(Emphasis added.)

20    In Unions NSW, the issue was whether the High Court had jurisdiction to make a declaration that a law was invalid, when the law in question had been repealed after the institution of the proceeding, given that the plaintiffs did not allege that: (1) their rights, duties or legal interests were infringed by the past application of the impugned law (at [25]); or (2) they were subject to any enforcement action for a past breach of the law in question (at [25]). In those circumstances, the Court held that (at [26]):

The only advantage that the plaintiffs would achieve from a declaration of invalidity would be the satisfaction of a statement by the Court validating their contentions of an historical wrong. The plaintiffs cannot point to any other foreseeable consequences from the grant of a declaration. There is not a justiciable controversy and not a matter [for the purposes of Ch III of the Constitution].

21    In my view, those comments apply equally to the present proceedings. There is no doubt that, at the time that the interlocutory application was heard and determined, the Court had jurisdiction to hear the appellant’s claim. The application for interim relief was sought by the applicant pursuant to s 46PP of the AHRC Act in circumstances where she sought to preserve her immediate right or interest in maintaining her tenancy agreement and remaining in her home, pending the determination of her complaint to the Commission.

22    However, that position changed following the NCAT’s decision 16 January 2023, dismissing the Housing Corporation’s application. Further, as I earlier indicated, the respondents’ counsel explained at the hearing that there is presently no further application to remove Ms Chadwick from her home, or otherwise to terminate her tenancy agreement. In those circumstances, the relief sought by Ms Chadwick (an injunction restraining the respondents from terminating her tenancy agreement) has no foreseeable legal consequence. The only basis for seeking an interim injunction under s 46PP of the AHRC Act – the respondents’ application before NCAT to terminate the tenancy agreement – has fallen away. The proceeding is thus rendered moot.

23    In those circumstances, it is apparent that no immediate right, duty or liability is now raised by the proceeding, as the parties both properly accepted at the hearing, and the appeal must therefore be dismissed on the ground that the Court lacks jurisdiction.

4.    COSTS

24    The final issue concerns my reasons for considering that the appropriate order in the circumstances is that there be no order as to costs.

25    While the Court has a broad discretion under s 43(2) of the FCA Act when determining appropriate costs orders, the discretion must be exercised judicially: Hughes v Western Australian Cricket Association (Inc) [1986] FCA 511; (1986) ATPR 40-748 at [9] (Toohey J).  Ordinarily costs follow the event, with the successful litigant being compensated in the sense of being indemnified against the expense to which she or he has been put in prosecuting or defending the action, as the case may be (often referred to as “the usual order as to costs” or “the ordinary rule”): see Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 (Ruddock (No. 2)) at [11]-[12] (Black CJ and French J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [66] (McHugh J).  However, the ordinary rule may be departed from where special circumstances connected with the case justify a different order: Ruddock (No 2) at [15] (Black CJ and French J). 

26    In oral submissions, the respondents submitted that the Court should follow the ordinary rule that costs follow the event. In this regard, the respondents accepted that they had not raised the question of whether the proceedings were moot in the context of the Court’s jurisdiction to hear and determine the matter. However, they emphasised that in their written submissions, they had submitted that no substantial injustice would result to the appellant if leave to appeal were refused because, among other things, the NCAT decision had rendered these proceedings moot. Assuming, the respondents submitted, that I accepted that submission, the result would be the same, namely, that the proceeding must be dismissed. Accordingly, the respondent submitted that the Court should make an order for costs in their favour.

27    However, in all the circumstances, I considered it appropriate to make an order that there be no order as to costs, for the following reasons.

28    First, the respondents were plainly aware that, as a result of the NCAT decision, the subject of the present proceeding had become moot, as the respondents accepted at the hearing. Indeed, the respondents must have been aware that the appeal was moot from the date on which the notice of appeal was lodged.

29    Secondly, that notwithstanding, the respondents did not file any notice of objection to the competency of the proceeding on the ground that the Court lacked jurisdiction because the proceeding had become moot. Nor was point this raised in written submissions. This was so, despite the fact that the respondents filed a notice of objection to competency on a different basis. Furthermore, despite confirming at the hearing that no notice of termination of the tenancy agreement was on foot against Ms Chadwick and no further application had been made by the Corporation to the Tribunal, the respondents did not file any evidence of that fact prior to the hearing which might also have brought the significance of this issue to the Court’s and Ms Chadwick’s attention at an earlier date.

30    Thirdly, in these circumstances, while the self-represented appellant would clearly have been aware of the outcome of the NCAT proceeding, she had no notice in advance of the consequences of that decision from a jurisdictional perspective for these proceedings. As a result, Ms Chadwick was not only deprived of the opportunity to make submissions on that issue in advance of the hearing, but more fundamentally she was prevented from considering whether she wished to press ahead with the appeal in light of that issue. Indeed, when the jurisdictional issue was explained to Ms Chadwick at the hearing on 8 August 2023, she very properly accepted that there was no utility in the matter proceeding and indicated her agreement with orders dismissing the appeal.

31    Fourthly, as earlier foreshadowed, the respondents contended at the hearing that the significance of the NCAT decision had been raised in its written submissions, albeit in support of a different issue. Specifically, in the respondents’ submissions at [9], filed on 18 July 2023 shortly before the hearing, the respondents submitted that:

In any event, it is noted that the conduct which was the subject of the complaint (amongst other things) and injunction were the proceedings commenced in the NSW Civil and Administrative Tribunal which was listed for hearing on 9 January 2023 and was dismissed on 16 January 2023. Noting that those proceedings were dismissed, it cannot be submitted that substantial injustice would result if leave was not granted as the event which is the subject of the complaint (amongst other things) [to the Human Rights Commission] and the focus of the application for an interim injunction before [the primary judge].

32    However, as the respondents accepted, this argument was made in the context of a submission by them as to the reasons why leave to appeal, if required, ought to be refused and was one of several factors relied on in this respect. Furthermore, the submissions merely “noted” the NCAT decision “in any event”, before discussing several other factors at considerable length said to militate against a grant of leave to appeal, in submissions spanning some 43 paragraphs. Bearing in mind that Ms Chadwick was self-represented, it is understandable that she may not have appreciated the significance of the NCAT decision to the present appeal from this submission. In particular, the submission could not fairly be regarded as putting her on notice as to the significance of the dismissal of the NCAT proceeding from a jurisdictional perspective, or indeed from the perspective of leave to appeal, and did not explain that the reason why this was significant was because the proceeding now lacked any utility. Quite frankly, this point was fatal from whatever perspective the issues were considered.

33    Given that the respondents rightly accepted at the hearing on 8 August 2023 that there was no utility in the proceeding and therefore no jurisdiction, the proper course, with respect, would have been for the respondents to file a notice of objection to competency raising the jurisdictional issue, accompanied by appropriate affidavit evidence as to the lack of any further action by the respondents to terminate Ms Chadwick’s tenancy agreement. The respondents did not take either step. As a result Ms Chadwick was deprived of a fair opportunity to consider whether she should withdraw these proceedings at an earlier point in time, and the Court was made aware of the issue only at a very late stage of the proceeding. In those circumstances, and for the reasons just outlined, it is appropriate that there be no order as to costs.

34    Finally, in reaching the view that this was the appropriate order as to costs, I also acknowledge that the solicitors and counsel for the respondents went to considerable lengths to assist the Court in preparing for this matter in circumstances where Ms Chadwick was unrepresented. That has included accommodating numerous requests from Ms Chadwick to include voluminous materials in the Court Book.

5.    CONCLUSION

35    For these reasons I made orders at the hearing dismissing the appeal and made an order that there be no order as to costs.

Associate:

Dated:    10 August 2023