26 On 6 April 2004 an Originating Motion seeking leave to appeal the decision and the order were filed. On 7 April 2004 an Originating Motion seeking a Review pursuant to Order 56 was filed. On 10 May 2004, Master Wheeler refused to grant leave to appeal.
27 On 21 May 2004, an Application was made to the Practice Court seeking to restrain the Respondent from taking possession of the premises. This application was made and subsequently the matter was adjourned until 26 May 2004.
28 On the return date of 26 May 2004 in the Practice Court, an Application was made that the appeal from the decision of Master Wheeler be heard together with the Originating Motion.[29] Coldrey J ordered a stay of the Tribunal's orders of 9 March 2004.
29 The Applicants by way of appeal and judicial review challenge the decision of the Tribunal to enforce the terms of settlement by its order that the Applicants vacate the premises at Yan Yean Road on the following grounds. They submitted that the Tribunal had mis-construed the terms of settlement and had acted without procedural fairness to the Applicants in acting upon, and enforcing, the terms of settlement.
30 The ground concerning procedural unfairness was the only subject of argument. The Applicants submitted that the notified purpose of the Directions Hearing was merely to consider the reinstatement application and to give directions if the proceeding was reinstated.
31 It should be borne in mind that the initial proceedings which brought the parties to the Civil and Administrative Tribunal were proceedings seeking possession of the clinic based upon a Notice to Quit. Those proceedings were subsequently discontinued with a right of reinstatement. The parties had entered into terms of settlement. The proceedings on 9 March 2004 were a directions hearing relating to applications by both parties to reinstate the earlier proceedings. Dr Wood, the firstnamed applicant, had attended the Tribunal for that purpose alone. The Tribunal proceeded to hear the Respondent's application ore tenus to then and there enforce the terms of settlement. In proceeding as the Tribunal did, I am satisfied that Dr Wood was denied an opportunity to address the various complex legal issues that thereby arose.[30]
32 Some of the Tribunal's findings made at the conclusion of the hearing reflect the problems which arise where there is insufficient notice or opportunity given to a litigant to address complex legal or factual issues. Having read a transcript of the proceeding it is doubtful whether Dr Wood agreed, as the Tribunal found, as to the legal construction of paragraph one of the terms of settlement. I also doubt that Dr Wood conceded that the Applicants had agreed to vacate by 31 January 2004.
33 The Tribunal was required to consider why the parties were before the Tribunal, and whether it was open to the Tribunal to do anything more than deal with the application for reinstatement. An important question at the outset was whether it was open to the Tribunal to proceed at all in relation to the terms of settlement of the original proceedings or whether some separate proceeding would be required to enforce the terms of settlement. The construction of the terms of settlement called for careful consideration. The Applicants were entitled to a reasonable opportunity to make submissions as to whether they were required to vacate both premises by 31 January 2004, and whether anything had occurred since 31 January as a result of agreement between the parties which altered the rights of the Respondent under the terms of settlement. All of these questions raised issues of fact or questions of law which I am satisfied Dr Wood was unable to adequately deal with.
34 Dr Wood had attempted to explain to the Tribunal that he understood there had been an extension of his right to remain on the premises after 31 January. The Applicants, in early February, had been provided with a draft lease of the medical premises by the Respondents for a further twelve month period. Those facts alone were sufficient to raise the serious question of whether some subsequent agreement between the Applicants and the Respondent had resulted in a waiver of the Respondent's rights under the terms of settlement.
35 Where judicial review is sought on the ground of a denial of natural justice, additional material may be placed before the Court.[31] The Court is not restricted to an error of law on the face of the record.