Boyland v Commonwealth Bank of Australia

1. On 7 March 2025, Mr Boyland filed his Notice of Appeal from the Decision, which sets out why the appeal should be allowed. The grounds largely centre around the proposition that he was not afforded procedural fairness.
2. In its Reply to Appeal, the Respondent contended that the Appeal Panel does not have jurisdiction in respect of the appeal.
3. It is appropriate for the Appeal Panel to consider whether it has jurisdiction before determining any other issue in the appeal: McNally v Resolution Life Australasia Limited [2025] NSWCATAP 116 at [9]; Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [1].

1. Under s 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the Appeal Panel has jurisdiction to determine an appeal against an 'internally appealable decision', defined in s 32(4) as "a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction".
2. Section 32(1) provides:

32 Internal appeal jurisdiction of Tribunal

(1) The Tribunal has internal appeal jurisdiction over -

(a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and

(b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section.

29 General jurisdiction

(1) The Tribunal has general jurisdiction over a matter if -

(a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

(b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

Note.

The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction.

(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction -

(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

(3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction.

(4) A general application is an application made to the Tribunal for a general decision.

(5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.

1. Relevantly, s 4 of the NCAT Act defines ancillary decision as follows:

ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including -

(a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and

(b) a decision concerning the awarding of costs in proceedings.

1. Clause 15(a) of Schedule 3 to the NCAT Act provides that despite s 32 of the NCAT Act, a decision of the Tribunal made pursuant to s 96 of the ADA is not an internally appealable decision with respect to the granting of leave, for the purposes of that section. It provides as follows:

15 Division decisions that are not internally appealable

Despite section 32 of this Act, each of the following Division decisions is not an internally appealable decision for the purposes of an internal appeal -

(a) a decision of the Tribunal for the purposes of section 96 of the Anti-Discrimination Act 1977 with respect to the granting of leave for the purposes of that section ...

1. Mr Boyland submits that the Appeal Panel has jurisdiction. His written submissions centred largely around the merits of his appeal. In support of his submissions, he filed a typed transcript of the hearing, a copy of the sound recording of the hearing and a bundle of documents.
2. The grounds of appeal assert that evidence was supplied by him but totally disregarded by the Tribunal. Further, that whilst he supplied USB devices containing audio recordings, the contents were never heard in the hearing. Also, he alleges that the hearing before the Tribunal was not long enough.
3. In his written submissions, he contended that the Tribunal did not consider his evidence, did not permit him to submit reasons why his case should proceed before NCAT, and did not allow him to address the Respondent's claims. He also suggested that the Tribunal did not understand the laws regarding disability in NSW.
4. In oral argument, Mr Boyland elaborated on the written submissions essentially making two key submissions.

(1) First, he stated that he supplied to the Tribunal a folder with around 60 pages of written submissions and the like and six USB devices, but the Tribunal, in transcript, referred only to "two typed pages with some USB sticks of submissions and evidence". He contended that the Tribunal must not have had regard to, or did not have before it, all of the material he supplied to the Tribunal.

(2) Secondly, he contended that the Tribunal, along with ADNSW, misconstrued the nature of the complaint he was actually making.

1. The respondent accepts that they were served with a folder full of written material, and maintains that on a fair reading of the transcript, it was clear that the Tribunal indeed had all the material. Ultimately, due to the view we have taken on jurisdiction, this is not a matter for us.
2. The Respondent relied upon cl 15(a) of Sch 3 to the NCAT Act in support of the proposition that the Decision of the Tribunal from which Mr Boyland seeks leave to appeal is not an internally appealable decision and that the Appeal Panel does not have jurisdiction, as the Decision was made pursuant to s 96 of the ADA.

1. The Decision of the Tribunal was a decision under s 96(1) of the ADA to refuse to grant Mr Boyland leave to proceed with his Complaint before the Tribunal.
2. Here, the President of ADNSW referred the Complaint to the Tribunal as required by the appellant; however, in those circumstances, the Complaint may not be the subject of proceedings, without leave of the Tribunal: ss 93A, 95 and 96 of the ADA. In the event that leave had been given, the Tribunal may have made one of several orders: s 108 of the ADA.
3. An order concerning a complaint referred from ADNSW is a 'general decision' as defined in s 29 of the NCAT Act, as it concerns a decision which another Act (the ADA) enables the Tribunal to make and is not an administrative decision. In particular, the decision to refuse leave was an ancillary decision as it was a decision preliminary to the making of any decision determining proceedings.
4. Despite the Decision being a general decision, which would otherwise be amenable to internal appeal, cl 15(a) of Sch 3 to the NCAT Act provides that a decision of the Tribunal made pursuant to s 96 of the ADA is not an internally appealable decision with respect to the granting of leave for the purposes of that section.
5. By the terms of cl 15(a) of Sch 3 to the NCAT Act, its provisions prevail over the general provision of the internal appeal jurisdiction of the Tribunal in s 32 of the NCAT Act. Section 17(3) of NCAT Act is to similar effect.
6. By operation of cl 15(a) of Sch 3 to the NCAT Act, the Tribunal's Decision was not an 'internally appealable decision', and the Appeal Panel has no jurisdiction to review it.
7. We note that a similar conclusion to ours was reached by the Appeal Panel in Cornish v Chief Executive, Office of Local Government [2018] NSWCATAP 235 at [19]- [22] in respect of the similar provisions under cl 29 of Sch 5 to the NCAT Act. Further, Chen J in Choi v NSW Ombudsman [2022] NSWSC 1681 stated at [36]-[37]:

"36 Furthermore, the decision dated 17 March 2022 is not, in any event, an "internally appealable decision" within s 32 of the NCAT Act. That is because Schedule 3, pt 6, cl 15(a) of the NCAT Act stipulates that "a decision of the Tribunal for the purposes of section 96 of the Anti-Discrimination Act 1977 with respect to the granting of leave for the purposes of that section" is not an "internally appealable decision for the purposes of an internal appeal". That is the plain meaning of this provision, a conclusion that has been confirmed (when dealing with essentially identical wording in the repealed s 96(4) of the AD Act to the wording in cl 15(a) referred to), in Deva v University of Western Sydney [2008] NSWCA 137 at [7]- [8] and in Jones v Ekermawi [2009] NSWCA 388 at [5]- [6].

37 In these circumstances, therefore, the only entitlement that that plaintiff has to seek to challenge the decision dated 17 March 2022 is by way of judicial review."

1. Whether or not Mr Boyland has rights to seek review of the Tribunal's Decision in the Supreme Court is a matter upon which we do not think it is appropriate to express an opinion. Similarly, we do not express an opinion on whether Mr Boyland could seek to re-open the proceedings for leave to proceed before the Tribunal: see Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188 per Basten AJA at [160]-[162].

1. As discussed in Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 at [24]- [25], Cornish v Penrith City Council [2024] NSWCATAP 107 at [12] and Jeray v Information and Privacy Commission [2024] NSWCATAP 239 at [150], there is no express provision under the NCAT Act for dismissal for want of jurisdiction. The Tribunal has power to make such an order as a necessary incident of its duty to act within its jurisdiction.
2. This is consistent with what the High Court said in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [21]:

"Having a judicially enforceable duty to comply with the limits of its own jurisdiction, a court or a non-court tribunal must have power to take steps needed to ensure its own compliance with that duty. If not expressed in the legislation establishing the court or non-court tribunal or in the legislation conferring jurisdiction on it, that power is necessarily implied on the basis that 'everything which is incidental to the main purpose of a power is contained within the power itself'."

1. In the result, the Appeal Panel has no jurisdiction to hear and to determine this appeal, and the proceedings should be dismissed.
2. The Appeal Panel orders:

(1) The appeal is dismissed for want of jurisdiction.

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.