IN A serious test to the judicial powers of the NSW Civil and Administrative Tribunal (NCAT), the Attorney General has intervened in on several cases up to the Court of Appeal.
One case includes a disagreement over the occupation of a family home in Terranora, NSW.
The Gatsby family’s dispute over the occupation of a home began in May, 2015, when Queensland woman, Berri Gatsby, sent a notice of residential termination to her daughter, Deva, under the Residential Tenancy Act 2010 (NSW).
Berri put to NCAT that Deva was only allowed to live in the house rent free if she paid council and water rates and maintained the property at her expense, and that Deva had not kept to her side of the agreement.
Deva opposed the termination and an application by her mother to take possession of the home arguing there was, in fact, no residential tenancy agreement in existence to terminate.
In November 2015, NCAT ruled in favour of Berri and a month later Deva appealed that decision.
In 2016, the NCAT Divisional Registrar said a separate “difficult legal question” had arisen over whether NCAT had the power to deal with matters where the parties involved lived in different states.
On February 14, 2018, an NCAT Appeal Panel decided the Tribunal was a ‘court of a state’ for the purposes of Chapter III of the Australian Constitution, and was thus able to deal with disputes between parties who lived in different states.
The Attorney General appealed the decision to the NSW Appeal Court, who will hear the matter in the coming weeks.
Acting for Berri Gatsby in earlier hearings, solicitor Carl Edwards said his clients have been exhausted by the dispute.
“The Gatsby v Gatsby case, which is being decided alongside the Johnson v Dibbin, raises serious questions over whether NCAT can deal with disputes arising between Qld-NSW residents,” Mr Edwards said.
“If the Attorney General is successful and NCAT is rendered toothless to deal with disputes arising between cross-border residents, it will impact on hundreds of applicants before NCAT, annually.
“It is also a test case of great importance to Australia’s Constitution, which states that it is the original jurisdiction of the High Court – and not other courts – to deal with matters between residents of different states.
“After several years of uncertainty, my clients just want to get their house back from their daughter.”
NSW has enacted an interim measure to allow courts to hear matters dismissed by NCAT, allowing recommencing of the matters in the Local or District Court without paying further fees, at the discretion of the judge.
Further references
The NSW Court of Appeal decision is available at: https://www.caselaw.nsw.gov.au/decision/58900a94e4b058596cba3975
Tribunal information: http://www.ncat.nsw.gov.au/Pages/about_us/legislation/federal_diversity_jurisdiction.aspx
Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCATAP//2018/45.html