Impartiality and independence of the judiciary were once recognised as the fundamental principles underpinning the administration of justice and were deemed essential conditions for maintaining the rule of law. However, in reality, these principles are often undermined particularly through both legislative and administrative interference in the judicial branch.
Put simply, it is impossible for equality and fairness to existing in the administration of justice, where there are two sets of laws, or in effect two legal systems. This is particularly evident in the relationship of Tenant v Landlord and is highlighted in the NCAT decision of Principal Member Harrowell, in Singh v Fobupu Pty Ltd which focused on the issue of setting off.
Section 21 of the Civil Procedure Act 2005 provides the defendant in the proceedings the right to”set off”. Under the Act, if there are mutual debts between a plaintiff and a defendant in any proceedings, the defendant may, by way of defence, set off against the plaintiffs claim any debt that is owned by the plaintiff to the defendant and that was due and payable at the time the defence set-off was filed, whether or not the mutual debts are different in nature.
This case which concerned a tenant (the Appellant) and a landlord (the Respondent), focused on two amounts, “One was an amount of $470,000 said to be a ‘refund’ due from the respondent arising from the appellant’s obligation to retain and remit to the Australian Taxation Office relevant withholding tax, said to arise in connection with the invoice issue. This claim is said to arise from the appellant’s claim that “acting in error of law”, he paid $1 million to the respondent in cash, 47% of which should have been remitted to the Australian Taxation Office as a relevant with holding amount”. With the second amount “is said to be an additional amount of $360,000 “arising from fraud, deception, and concealment by Ghulam Khan pending the final decision of Senior Member Goldstein”.
In his decision
, Principal Member Harrowell indicated that the Tribunal was not a designated “Court”pursuant to the Schedule within the Act. Principal Member Harrowell, stated “reliance on these sections of the Civil Procedure Act is misplaced. As pointed out by the Appeal Panel to the appellant’s representative in the course of oral submissions at the hearing on 23 February 2019, s 4 and Sch 1 of the Civil Procedure Act make clear that Part 3 and Part 7 in which is found subsections 21 and 96 respectively,only applies to the courts designated in Sch 1”. The Appellant, however, asserted the Tribunal is not specifically excluded in the Schedule.
The result of this judgement, particularly the exclusion by the judiciary and therefore the parliament of NSW to disallow a tenant the right to set-off pursuant to the Civil Procedure Act, certainly exemplifies that there is one rule for the rich and one rule for the poor and is a clear example of the judiciary lacking any level of impartiality.