Nuisance Laws and Tenant Rights

This assignment delves into the legal ramifications of nuisance caused by tenants within strata schemes, using a case study involving Kate and Karam. It examines relevant legislation like the Apartment and Unit Obligation Act 2017 and analyzes their potential defenses against charges related to causing nuisance and conducting unauthorized business activities.

Running head: LEGAL PROCESS
Legal Process
Name of the Student
Name of the University
Author Note

1LEGAL PROCESS
Table of Contents
Part A...............................................................................................................................................1
Dietrich v The Queen 17 CLR 292..................................................................................................1
Fact of the Case...............................................................................................................................1
Legal Issues.................................................................................................................................2
Judgment......................................................................................................................................4
Part B...............................................................................................................................................4
Issue.............................................................................................................................................4
Rules............................................................................................................................................5
Application..................................................................................................................................6
Conclusion...................................................................................................................................8
Reference.........................................................................................................................................9

2LEGAL PROCESS
Part A
Dietrich v The Queen 17 CLR 292
Fact of the Case
It is important case of High Court of it Australia where it concerns with the nature of the
right to a fair trial and provided with Legal Aid by the state for the indigent defendant who is not
able to afford the legal representation1. The fact of the case is the accused who is known as a
criminal named Dietrich has came to Melbourne from Bangkok Thailand he also carrot 70 grams
of heroin which was cancelled with condoms and swallowed it2.
After arriving in mailbox along with those things the Australian Federal police have
arrested him from his flat where they found one of the condoms and some heroine in a plastic
bag. Immediately he was taken into the custody and remain of the condoms has been passed on
that night at the hospital in vintage prison3. However the accused also alleged to the police that
they have planted the drugs4. The accused was tried in the county Court of Victoria where the
court has alleged crimes for the trafficking offence under the Customs Act 19015. At the
moment of trial process he has no legal represent. Therefore he had applied for assistance under
the Legal Aid commission of Victoria6. However the assistance has ask him that if he pleaded
for guilty then they will help him but he refused to have the guilty and again apply to the
1 Flynn, Asher, et al. "Legal aid and access to legal representation: Redefining the right to a fair trial." (2017).
2 Ranieri, Stephen. "Dietrich v the queen: Affirming the right to legal representation." Bulletin (Law Society of
South Australia) 39.7 (2017): 18.
3 Flynn, Asher, et al. "Legal aid and access to legal representation: Redefining the right to a fair trial." (2017).
4 Wood, Helen. "Cultural diversity: Reflections on the role of the judge in ensuring a fair trial." Judicial Officers
Bulletin 28.4 (2016): 35.
5 Bell, Virginia. "Keeping the criminal law in." Judicial Review: Selected Conference Papers: Journal of the Judicial
Commission of New South Wales, The. Vol. 12. No. 4. Judicial Commission of NSW, 2016.
6 Flynn, Asher, et al. "Legal aid and access to legal representation: Redefining the right to a fair trial." (2017).

3LEGAL PROCESS
Supreme Court of Victoria but again he was refused. However he was again charged with
position of a quantity of heroin and convicted of the principal church in the county Court7.
Dietrich applied for an appeal in the Supreme Court where the court has denied accepting his
appeal and then he was applied for the leave to appeal on the high court of Australia8.
Legal Issues
In this case the accused work represented by David Grace, in the High Court where he
has argued about the trial which was miscarriage of Justice due to not having any legal
representation9. He also added that the accused is charged with 4 offences which were given the
seriousness of the crime. Therefore until he being able to obtain any Council for himself a court
must adjourned the trial10.
Dietrich has been added with section 397 of the Victorian crimes Act 1958 where it
defined that the accused person must admitted after the close of the case of the prosecution to
make public expense and defense should be processed by the legal practitioner11.
Dietrich was also again stated with international law which is described under the United
Nations International Convenient on Civil and Political Rights where the Article 14(3) has
stated that accused must be served with legal assistance as per the interest of the justice and in
the third source he also suggested about some similar cases of the common law of United States
and Canada in United States the 6 amendment to the United States constitution provide the
7 Ranieri, Stephen. "Dietrich v the queen: Affirming the right to legal representation." Bulletin (Law Society of
South Australia) 39.7 (2017): 18.
8 Ranieri, Stephen. "Dietrich v the queen: Affirming the right to legal representation." Bulletin (Law Society of
South Australia) 39.7 (2017): 18.
9 Bell, Virginia. "Keeping the criminal law in." Judicial Review: Selected Conference Papers: Journal of the Judicial
Commission of New South Wales, The. Vol. 12. No. 4. Judicial Commission of NSW, 2016.
10 Wood, Helen. "Cultural diversity: Reflections on the role of the judge in ensuring a fair trial." Judicial Officers
Bulletin 28.4 (2016): 35.
11 Flynn, Asher, et al. "Legal aid and access to legal representation: Redefining the right to a fair trial." (2017).

4LEGAL PROCESS
statement that in the criminal prosecution the accused must obtain the right to have the assistance
of counsel for the defense purposes but that doesn’t establishes the meaning where the Council is
bound to provide it by the state12. In Canada the Section 10 of the Canadian Charter of Rights
and Freedoms stated that where it was written and instruct Council without any delay and to be
informed of that right however it is a right to Legal Aid13.
Dietrich also stated about the miscarriage of justice where he mentioned about the use of
discretionary powers and granted an adjournment due to the unavailability of the Council himself
which has occurred for the miscarriage of Justice14. In that matter the High Court has mentioned
that the trial judge may not be able to know about the authority to add legal assistance the trial
which make the case was more complicated. The Jury has also not able to find about the charges
of the accused15. He may guilty of importing the heroine in the condoms but if they did not found
any guilty then there will be an uncertainty and it will be possible that the accused may also
acquitted of the other charges16.
However regarding this case majority of High Court and decided that the common law
has no right to provide any legal assistance to all the cases but there are some exceptions face the
assistant is needed for the sitting of appropriate ensure of a fair trial. Though the judges has not
provides any legal assistance for the accused due to not having any power to opponent council.
However it has been added that for the special cases where the accused is not went to obtain
general resistance then it will provide the assistance on the above the accused Dietrich who has
12 Wood, Helen. "Cultural diversity: Reflections on the role of the judge in ensuring a fair trial." Judicial Officers
Bulletin 28.4 (2016): 35.
13 Ranieri, Stephen. "Dietrich v the queen: Affirming the right to legal representation." Bulletin (Law Society of
South Australia) 39.7 (2017): 18.
14 Flynn, Asher, et al. "Legal aid and access to legal representation: Redefining the right to a fair trial." (2017).
15 Bell, Virginia. "Keeping the criminal law in." Judicial Review: Selected Conference Papers: Journal of the
Judicial Commission of New South Wales, The. Vol. 12. No. 4. Judicial Commission of NSW, 2016.
16 Wood, Helen. "Cultural diversity: Reflections on the role of the judge in ensuring a fair trial." Judicial Officers
Bulletin 28.4 (2016): 35.

5LEGAL PROCESS
mentioned about the right to obtain the legal assistance but in some cases the consequences in the
constitution say that the Dietrich's other argument was that the trial judge should have used
discretionary powers and granted an adjournment until Dietrich was able to provide counsel
himself, and that the failure to do so caused a miscarriage of justice and the judicial power
should be processed with judicial application and as per the best interest it must be observed17.
However due to the majority decisions finally the court has granted the appeal for the fair
trial where the conviction must be washed and start a new trial18.
Judgment
After the conversation after the conviction the accused husband charged with the illegal
conducts where he was released after sometime then he changed his name by deed poll to Hugo
Rich and again he was charged with three armed robberies and jailed for 13 years. Later he was
released and once again he arrested for firearm charges and murder of security guard Erwin
Kastenberger at the time of arms robbery in Victoria. Now he has in jail for lifetime
imprisonment of 30 years19.
Part B
Issue
According to the case study the issue has identified whether Kate and Karim has liable
for any nuisance? Whether the issued infringement notice is applicable for them for having
smoking and other nuisance?
17 Flynn, Asher, et al. "Legal aid and access to legal representation: Redefining the right to a fair trial." (2017).
18 Wood, Helen. "Cultural diversity: Reflections on the role of the judge in ensuring a fair trial." Judicial Officers
Bulletin 28.4 (2016): 35.
19 Bell, Virginia. "Keeping the criminal law in." Judicial Review: Selected Conference Papers: Journal of the
Judicial Commission of New South Wales, The. Vol. 12. No. 4. Judicial Commission of NSW, 2016.

6LEGAL PROCESS
Rules
According to the case study, the Apartment and Unit Obligation Act 2017 defines the
statues for the tenants and residential purposes where the owner or the tenants are bound to
follow the rules20. This act defines the objects for the prohibition of the offensive and other
dangerous conducts which affected the apartment and the unit resident21.
As per the Part 2 of the Apartment and Unit Obligation Act 2017 stated the facts in the
sec-3 about the offenses when any nuisance has caused due to the failure of the obligations by
the tenants or the unit residents22. If any resident of the apartments has create any nuisance which
cause any undue noise or offensive odours or annoyance which affect other apartment residents
between 10 pm or Before 6 am then it will be grated as offence to cause a nuisance23.
The Sec- 4 of the Apartment and Unit Obligation Act 2017 defines the offences to
conducts the business activities. It also describe that the apartment residents are must not involve
any conducts of business activities from the apartment in any time24. Therefore if someone has
found to involve with any conducts of offences then that resident will be punished with penalties.
Therefore according to the case study, Mrs. Granvile who is the residents of the same apartment
where Kate runs her business and when she feel disturbs due to the smoking and loud discussion
it maker the nuisance. Therefore according to the Apartment and Unit Obligation Act 2017 it
is an offence of under the Sec- 3 of where they are charged with offences to cause a nuisance. It
20 Gabe, Jeremy, and Michael Rehm. "Do tenants pay energy efficiency rent premiums?." Journal of Property
Investment & Finance 32.4 (2014): 333-351.
21 Reid, Sacha, et al. "Power, Ethopolitics and Community Relations: Complexities of Living in Multi-owned
Properties." Housing, Theory and Society (2017): 1-19.
22 Martin, Chris, Hal Pawson, and Ryan van den Nouwelant. "Housing policy and the housing system in Australia:
an overview." (2016).
23 Martin, Chris, Hal Pawson, and Ryan van den Nouwelant. "Housing policy and the housing system in Australia:
an overview." (2016).
24 Gabe, Jeremy, and Michael Rehm. "Do tenants pay energy efficiency rent premiums?." Journal of Property
Investment & Finance 32.4 (2014): 333-351.

7LEGAL PROCESS
this matter it also included that as Kate is running the business on that apartment therefore
according to the Apartment and Unit Obligation Act 2017 she also breach the terms of
Apartment and Unit Obligation Act 2017 and under the Sec- 4 of this act she has made the
offences of conduct business activities25. Now the liabilities will lies for both of Kate and
Karam26. Now the police has also issued infringement notice to them under the Sec 3 and 4 of
Apartment and Unit Obligation Act 201727.
Application
According to the case study, Kate runs her business where she teaches to newly arrived
migrants from 8-9 pm in every morning and on that day of the situation she was teaching one of
her student Karam until 10.30pm. Now as they are smoking and discussing in loud voice their
neighbor from unit 2 Mrs. Granville has been disturbed and due to the nuisance she has informed
to the police ad they are charged with the offences of sec-3 and 4 of the Apartment and Unit
Obligation Act 201728.
According to the Residential Tenancies Act the tenant are have several duties and
obligation in Australia29. As per the application of the act the tenants are obliged under several
duties where they can enjoy the possession of the property after the landlord has handover the
property under some circumstances. They have the ownership or the possession of the property
for a particular of time was they are allowed to enjoy the undisturbed possession of the tenant
25 Vols, Michel, and Marvin Kiehl. "Balancing tenants’ rights while addressing neighbour nuisance in Switzerland,
Germany and the Netherlands." European Property Law Journal 4.2 (2015): 85-114.
26 Martin, Chris, Hal Pawson, and Ryan van den Nouwelant. "Housing policy and the housing system in Australia:
an overview." (2016).
27 Reid, Sacha, et al. "Power, Ethopolitics and Community Relations: Complexities of Living in Multi-owned
Properties." Housing, Theory and Society (2017): 1-19.
28 Gabe, Jeremy, and Michael Rehm. "Do tenants pay energy efficiency rent premiums?." Journal of Property
Investment & Finance 32.4 (2014): 333-351.
29 Martin, Chris, Hal Pawson, and Ryan van den Nouwelant. "Housing policy and the housing system in Australia:
an overview." (2016).

8LEGAL PROCESS
property30. However there is a particular limitation of the property where they are entitled to
enjoy such possession under some circumstances of the tenant property. Even they can enjoy the
property against the landlord according to the terms and condition of the agreement. In the case
of Worrall v Commissioner of Housing for the Australian Capital Territory [2002]31 the court
has found that the tenants are owned to a particular of rights where the landlord has breach the
duties and interfere in the rights of the tenant and which make the breach of the tenant
agreement32.
Though the landlords are not obliged to interfere in the possession of the tenant premises
but the tenants are not also obliged to cause any nuisance in the tenant property. If they make any
conducts of nuisance in the tenant property then the neighbor of the said premises make the
interference with tenants33. Even they can complain against the activities of them due to the
nuisances34. They are allowed to create any nuisance in the tenant premises and along with the
guests of the tenants are also comes under such obligation where they are must not engaged with
any nuisance which cause disturbances towards the neighbors. In the nuisance they are also
obliged not to smoke to high which affect the neighbors or residents who are staying the
apartments or the near premises. It also consider as nuisance35.
However according to the Apartment and Unit Obligation Act 2017 defines the resident
who could be the owner, lessee or any person in charge of apartment and the business activities
30 Gabe, Jeremy, and Michael Rehm. "Do tenants pay energy efficiency rent premiums?." Journal of Property
Investment & Finance 32.4 (2014): 333-351.
31 Reid, Sacha, et al. "Power, Ethopolitics and Community Relations: Complexities of Living in Multi-owned
Properties." Housing, Theory and Society (2017): 1-19.
32 Martin, Chris, Hal Pawson, and Ryan van den Nouwelant. "Housing policy and the housing system in Australia:
an overview." (2016).
33 Gabe, Jeremy, and Michael Rehm. "Do tenants pay energy efficiency rent premiums?." Journal of Property
Investment & Finance 32.4 (2014): 333-351.
34 Vols, Michel, and Marvin Kiehl. "Balancing tenants’ rights while addressing neighbour nuisance in Switzerland,
Germany and the Netherlands." European Property Law Journal 4.2 (2015): 85-114.
35 Reid, Sacha, et al. "Power, Ethopolitics and Community Relations: Complexities of Living in Multi-owned
Properties." Housing, Theory and Society (2017): 1-19.

9LEGAL PROCESS
defines the activities where it relates with a running a commercial enterprise and customer
related activities. Therefore according to the sec- 3 and 4 of the Apartment and Unit
Obligation Act 2017 Kate and Karam has both make the offences where they can be charged
with the penalties with $400 and $2400 for the offence to cause a nuisance and offence to
conducts business activities36.
Conclusion
Therefore both of them can use the defenses where they can use the power to enjoy of the
property as the tenant who is obliged to enjoy their possession according to the agreement of
tenancy37. Therefore they are not bound to have any obligation to enjoy the property. As they are
discussing about the teaching purposes which is included as business activities therefore they can
argue on this matter where teaching is important. However according to the Apartment and
Unit Obligation Act 2017 they are liable for the offences of nuisance where they can be charged
with the penalties38.
36 Martin, Chris, Hal Pawson, and Ryan van den Nouwelant. "Housing policy and the housing system in Australia:
an overview." (2016).
37 Vols, Michel, and Marvin Kiehl. "Balancing tenants’ rights while addressing neighbour nuisance in Switzerland,
Germany and the Netherlands." European Property Law Journal 4.2 (2015): 85-114.
38 Gabe, Jeremy, and Michael Rehm. "Do tenants pay energy efficiency rent premiums?." Journal of Property
Investment & Finance 32.4 (2014): 333-351.

10LEGAL PROCESS
Reference
Australia, Western. "smoke in NSW strata schemes, and o Assisting to align NSW strata law
with the scientific evidence on the harms of." (2015).
Bell, Virginia. "Keeping the criminal law in." Judicial Review: Selected Conference Papers:
Journal of the Judicial Commission of New South Wales, The. Vol. 12. No. 4. Judicial
Commission of NSW, 2016.
Christensen, Sharon A. "Incentivising tenants to stay the term–will clawbacks be enforceable?."
Australian Property Law Bulletin 29.10 (2014): 177-179.
Flynn, Asher, et al. "Legal aid and access to legal representation: Redefining the right to a fair
trial." (2017).
Gabe, Jeremy, and Michael Rehm. "Do tenants pay energy efficiency rent premiums?." Journal
of Property Investment & Finance 32.4 (2014): 333-351.
Midford, Richard, et al. "Preventing alcohol harm: Early results from a cluster randomised,
controlled trial in Victoria, Australia of comprehensive harm minimisation school drug
education." International Journal of Drug Policy 25.1 (2014): 142-150.
Ranieri, Stephen. "Dietrich v the queen: Affirming the right to legal representation." Bulletin
(Law Society of South Australia) 39.7 (2017): 18.
Reid, Sacha, et al. "Power, Ethopolitics and Community Relations: Complexities of Living in
Multi-owned Properties." Housing, Theory and Society (2017): 1-19.

11LEGAL PROCESS
Vols, Michel, and Marvin Kiehl. "Balancing tenants’ rights while addressing neighbour nuisance
in Switzerland, Germany and the Netherlands." European Property Law Journal 4.2 (2015): 85-
114.
Ward, Margaret, and Jill Franz. "The provision of visitable housing in Australia: Down to the
detail." Social Inclusion 3.2 (2015).
Wood, Helen. "Cultural diversity: Reflections on the role of the judge in ensuring a fair trial."
Judicial Officers Bulletin 28.4 (2016): 35.
Worrall v Commissioner of Housing for the Australian Capital Territory [2002] FCAFC 127