Impartiality and independence of the judiciary were once recognized 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 Fobupo 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 defense, 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 defense of
a 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 withholding
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
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 ss 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 judgment, 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.
Chief Justice Bathurst of the Court of Appeal in his comments further acknowledges the lack of
independence and impartiality by stating “most members of the Tribunal did not have the tenure and
protection comparable to that held by judges under the Act of Settlement 1701 (UK) and its
equivalents, and lacked the necessary institutional independence and impartiality which were
required for a body to be described as a ‘court of a State’”. Surely, the people of New South Wales
deserve an institution that is capable of providing and facilitating access to justice?
Upon further reading of this judgment it can also be noted that reference is only made to the
affidavit evidence provided to the tribunal by the appellant, however makes no reference to any
evidence or any submission provided to the tribunal by the landlord, a further example of how in
modern practice the judiciary lacks any independence and impartiality and is redundant in terms of
facilitating adequate access to justice for all. Further, it is concerning and damaging to the already
eroding public trust in the justice system.