An v Hwang [2019] NSWCATAP 94 | Case summary

NCAT Appeal Panel|2019-03-15

Introduction

This is an appeal from a decision made in the Consumer and Commercial Division (CCD) of the Tribunal on 30 August 2018, by which the current appellant, Mr An, was ordered to pay the respondent, Ms Hwang, the sum of $30,000 no later than 13 September 2018.
Mr An is a registered migration agent. As a sole trader he operates a migration agency under the name Paraview Consultancy. In brief terms, the CCD found that Mr An was liable to Ms Hwang for acts done by a third party, a Mr Kim, in circumstances that the CCD characterised as a breach by Mr An of the relevant Code of Conduct in the Migration Agents Regulations 1998 (Cth). Despite the CCD's order, Mr An has not paid the money to Ms Hwang. Ms Hwang obtained orders in the Local Court on 17 October 2018 for payment by Mr An of $30,000 and filing fees.

The appeal

Mr An received a written statement of the reasons for the CCD decision in December 2018 and lodged his Notice of Appeal on 7 January 2019.
The Notice of Appeal specifies the following five points as Mr An's grounds of appeal: 1. The hearing on 30 August 2018 was conducted against the procedural fairness. 2. I was denied my right to be heard by the member for many times during the hearing. 3. The member also intimidated me by interrupting and abruptly stopping my cross examination. 4. He also made premature accusations to me for the facts that are irrelevant to the case. 5. I felt the member did not demonstrate appropriate impartiality.

Jurisdiction

On reviewing the Tribunal file we observed that at the time of her initial application to the Tribunal in May 2018, Ms Hwang was a resident of Victoria and Mr An was a resident of New South Wales. The parties confirmed at the appeal hearing that their residency status was unchanged. That means Ms Hwang was asking the Tribunal to resolve a dispute between residents of different States. This presents a jurisdictional problem since, because of ss 75(iv) and 77(iii) of the Australian Commonwealth Constitution, and s 39(2) of the Judiciary Act 1903 (Cth), matters between residents of different States can only be dealt with in a federal court or a 'court of a State' exercising federal jurisdiction. And so, if the Tribunal is not a 'court of a State', the CCD had no jurisdiction to make the decision that is now under appeal.
At the time of the CCD hearing in August 2018 the accepted position was that the Tribunal is a 'court of a State', and could, as a result, exercise federal jurisdiction. This is because a (differently constituted) Appeal Panel of this Tribunal had concluded that way in Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45. However, the Court of Appeal has subsequently held that the Tribunal is not a 'court of a State' for the purposes of Chapter III of the Australian Constitution: Attorney General for New South Wales v Gatsby [2018] NSWCA 254 (Gatsby).
We are now bound to adhere to the Court of Appeal's conclusion that the Tribunal is not, and has never been, a 'court of a State'.
In recognition of the gap in the Tribunal's jurisdiction, Part 3A of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides a mechanism for having affected original applications and external appeals heard, with leave, in the Local Court or the District Court instead of the Tribunal. Part 3A commenced on 1 December 2017, and applied to federal jurisdiction of the kind referred to in s 75(iv) of the Constitution, that is, matters "…between residents of different States…". Amendments to Part 3A commenced on 1 December 2018, and broadened its application to jurisdiction of a kind referred to in s 75 or s 76 of the Constitution.

The appeal hearing

At the commencement of the appeal hearing we raised with the parties our concerns about the CCD's jurisdiction and our reasons for those concerns. Neither party was legally represented, although Ms Hwang was being assisted by a friend with legal qualifications, and Mr An had sought and obtained legal advice prior to the appeal hearing.
After some exploration and discussion of our concerns with the parties, we briefly adjourned the hearing to allow Ms Hwang to discuss the issues further with her friend, and Mr An to consult with his solicitor. After resuming the hearing we gave both sides an opportunity to add to their earlier comments.
We then made the following orders: 1. Applying the decision of the NSW Court of Appeal in Attorney General for New South Wales v Gatsby [2018] NSWCA 254 (6 November 2018), the Appeal Panel proposes to make the following orders in this appeal: 2. "(1) Appeal upheld and the decision made on 30 August 2018 in GEN 18/22183 is set aside. 3. (2) The matter is remitted to the Consumer and Commercial Division to be dealt with in accordance with Part 3A of the Civil and Administrative Tribunal Act 2013." 4. The parties are to provide to the Tribunal and to the other party written submissions in response to those proposed orders, on or before 25 March 2019. 5. The parties have consented to determination on the papers, and the Appeal Panel intends to dispense with a hearing and determine the orders to be made on the appeal on consideration of the parties' written submissions, after 25 March 2019.

The parties' submissions in response to the proposed orders

Mr An, the appellant, provided no written submissions at all.
Ms Hwang made two submissions.
The first submission relies on the timing of the application to the CCD and the then accepted position as to the Tribunal's jurisdiction (see [7] above). Ms Hwang submits that (a) at the time she made her application to the Tribunal in May 2018 she was entitled at law to do so; (b) the Tribunal was entitled at law to hear her application in August 2018; (c) the Tribunal was entitled at law to make the determination it did; and (d) Mr An was not entitled at law to make his application to the Tribunal (that is, his internal appeal).
The second submission invokes s 83 of the NCAT Act and suggests that the appropriate course is for Mr An to appeal to an appropriate appeal court if he wishes to have the CCD decision overturned. The submission also emphasises in some detail the chronology of the events that have occurred since the initial application was lodged, including the delay in provision of the written reasons for the CCD decision, in the absence of which (as Ms Hwang suggests) the appeal may well have been finalised before the Court of Appeal decision in Gatsby.

Consideration

We have carefully considered Ms Hwang's submissions but they have not removed our concerns about the Tribunal's jurisdiction in this matter.
Despite what may have been thought to be the position at the time, the Tribunal did not have jurisdiction to determine Ms Hwang's application. She was a resident of Victoria and Mr An was a resident of New South Wales. The consumer claim she brought to the Tribunal for consideration and determination was a 'matter … between residents of different States' which the Court of Appeal has determined cannot be dealt with in this Tribunal. The Tribunal lacked power to make the decision it purported to make, and it is our duty to say so. The amendments to Part 3A do not change that position.
We are satisfied that the orders we proposed during the appeal hearing are the proper orders to make.

Orders

Accordingly we make the following orders: 1. Appeal upheld and the decision made on 30 August 2018 in GEN 18/22183 is set aside. 2. The matter is remitted to the Consumer and Commercial Division to be dealt with in accordance with Part 3A of the Civil and Administrative Tribunal Act 2013.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2019

An v Hwang

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Judgment (8 paragraphs)

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