Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
[2015] HCA 46
Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 736
[1996] 3 All ER 843
Minister for Immigration & Multicultural Affairs v Bhardwaj 209 CLR 597
[2002] HCA 11
National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296
Source
Original judgment source is linked above.
Catchwords
Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482[2015] HCA 46
Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 736[1996] 3 All ER 843
Minister for Immigration & Multicultural Affairs v Bhardwaj 209 CLR 597[2002] HCA 11
National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296
Judgment (6 paragraphs)
[1]
dustry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46
Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 736; [1996] 3 All ER 843
Minister for Immigration & Multicultural Affairs v Bhardwaj 209 CLR 597; [2002] HCA 11
National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29
The Owners - Strata Plan No. 21367 v Letchford [2021] NSWCATCD 112
The Owners - Strata Plan No 82306 v Anderson [2017] NSWCATCD 85
Texts Cited: None cited
Category: Principal judgment
Parties: Tania Kathleen Anne Brown (Appellant)
The Owners - Strata Plan 82527 (Respondent)
Representation: Solicitors:
Appellant (Self Represented)
Button & Associates Pty Ltd (Respondent)
File Number(s): 2022/00225285
Publication restriction: Nil
Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales
Jurisdiction: Consumer and Commercial Division
Citation: N/A
Date of Decision: 15 July 2022
Before: D Harvey, General Member
File Number(s): SC 22/19796
[2]
Introduction
This appeal relates to orders made in the Consumer and Commercial Division of the Tribunal under the Strata Schemes Management Act 2015 (NSW) (SSMA) on 15 July 2022 (July orders).
On 4 October we made orders by consent to set aside the July orders and indicated we would provide reasons. These are those reasons.
[3]
Background
The July orders were made in application SC 22/19796 (original application) in which the Owners - Strata Plan No. 82527 (Owners Corporation) sought the following orders against the appellant, Ms Brown (the respondent to application SC 22/19796), concerning the keeping of her dogs on lot property:
An order pursuant to section 156 for removal of the barking dogs.
An order pursuant to section 158 to remove the nuisance, being the barking dogs.
An order pursuant to section 147 a monetary penalty of 10 penalty units for contravention of by-laws 1 and 16 for failure to comply with the Settlement Agreement by 1 December 2021 or at all.
The settlement agreement referred to in the application was an agreement reached through the Strata Mediation services of the Department of Fair Trading. The settlement agreement recorded the following:
1. The owner of Unit 5 [Ms Brown] will remove the dogs from the strata scheme by 1 December 2021.
2. Failing the dogs being removed by this date, the owners corporation will commence proceedings in the New South Wales Civil and Administrative Tribunal (NCAT).
3. A copy of this agreement can be supplied to all members of the owners corporation by the Strata Manager.
At the time of the settlement agreement, Ms Brown kept four dogs on her lot (although we were informed on the appeal that one of these dogs is now deceased and another apparently has cancer and was terminally ill). Despite the settlement agreement, the dogs were not removed by 1 December 2021.
On 3 December 2021, pursuant to section 146 of the SSMA, the Owners Corporation issued two notices to comply with by-laws. These were in respect of by-laws 1 and 16. The by-laws are in the following terms:
1 Noise
An owner or occupier of a lot must not create any noise on a lot or the common property likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.
…
16 Keeping of animals - Option B
(1) Subject to section 49(4) of the Act, an owner or occupier of a lot must not, without the prior written approval of the owners corporation, keep any animal (except a cat, a small dog or a small cage bird, or fish In a secure aquarium on the lot), on the lot or the common property.
(2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property.
(3) If an owner or occupier of a lot keeps a cat, small dog or small cage bird on the lot then the owner or occupier must:
(a) notify the owners corporation that the animal is being kept on the lot, and
(b) keep the animal within the lot, and
(c) carry the animal when it is on the common property, and
(d) take such action as may be necessary to clean all areas of the lot or the common property that are soiled by the animal.
[4]
Notice of Appeal and hearing of the appeal
The Notice of Appeal was filed by Ms Brown on 29 July 2022.
The Notice of Appeal challenged the order imposing a civil penalty and the conditions imposed by order 2. Ms Brown sought the "repeal" of orders 1 and 2 and that she be given more time (presumably in respect of the removal of her dogs) and that a timeline be agreed with the Owners Corporation.
In addition, in that part of her Notice of Appeal concerning leave, she said that the decision of the Tribunal was against the weight of evidence. Inter-alia, Ms Brown said:
I was cut off and told that I had broken the law and am only allowed to have one (1) dog.
…
There was no reasonable resolution offered/provided. There was no consideration as to [Ms Brown's] current mental state noting [Ms Brown] is fleeing domestic violence which meant she had to move to the villa with her 82 year old father and 3 dogs. She is primary carer for her 82 year old father. Errors in the representation of by-law 16.
The Owners Corporation filed a Reply to Appeal asserting the orders had been properly made and no errors were disclosed. The Owners Corporation contended that Ms Brown had been "given multiple opportunities to comply with Bylaws", that there was "overwhelming evidence of the breaches of the Bylaws", that there had been no procedural unfairness and that Ms Brown had agreed to the orders made.
The appeal was listed for hearing on 4 October 2022.
Having identified the documents upon which each party relied, we identified various legal issues which appeared to arise for consideration in the appeal. These included the following:
1. The original application and the consent orders related to an application for the imposition of civil penalties as well as general orders under the SSMA.
2. Different rules applied concerning receipt of evidence for the purpose of determining an application for the imposition of a civil penalty and an application for general orders. As to procedure, the parties' attention was drawn to s 38 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) which provides:
38 Procedure of Tribunal generally
(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) Despite subsection (2) -
(a) the Tribunal must observe the rules of evidence in -
(i) proceedings in exercise of its enforcement jurisdiction, and
(ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and
(b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.
Note -
Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege.
(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(5) The Tribunal is to take such measures as are reasonably practicable -
(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and
(b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
(6) The Tribunal -
(a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(b) may require evidence or argument to be presented orally or in writing, and
(c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
1. The rights of appeal from an order imposing a civil penalty and a general order made under the SSMA are different. While both a civil penalty imposed under the SSMA and a general order made under the SSMA constitute decisions made under the general jurisdiction of the Tribunal (see s 29 of the NCAT Act), the rights of appeal are as follows:
In connection with the imposition of a civil penalty, the appeal is to the "appropriate appeal court", s 83(2) of the NCAT Act providing:
(2) A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings.
Section 82(3) defines an "appropriate appeal court" as follows:
For the purpose of this Division, the appropriate appeal court for an appeal against a decision in proceedings in which a civil penalty has been imposed is -
(a) if the Tribunal was constituted by one or more senior judicial officers - the Supreme Court, or
(b) if the Tribunal was not constituted by or with any senior judicial officers - the District Court.
In connection with a general order, the appeal is to the Appeal Panel since the decision is an "internally appealable decision": see s 80 and the definition of "internally appealable decision" in s 32(4) of the NCAT Act.
Consequently, the Appeal Panel has limited appeal jurisdiction in respect of the July orders.
1. That by reason of the above there appeared to be a procedural irregularity in the Tribunal determining both an application for the imposition of a civil penalty and an application for general orders in the same proceedings that might render the decision liable to be set aside by the Tribunal under s 53(4) of the NCAT Act. The Appeal Panel drew to the attention of the parties the decision of the Court of Appeal of New South Wales in Atkinson v Crowley [2011] NSWCA 194, (Atkinson) particularly the reasons of Basten JA at [11] and following. This decision concerned the operation of a similar provision being s 32(4) of the now-repealed Consumer, Trader and Tenancy Tribunal Act, 2001 (NSW) and the power of the Tribunal to set aside its own decision if invalid.
[5]
Consideration
Following a short adjournment, both parties indicated to the Tribunal that they would consent to the orders being set aside and for the following orders to be made in connection with the original application:
By consent:
1. The orders made on 15 July 2022 in application SC 22/19796 are set aside and the application is to be listed for hearing in the Consumer and Commercial Division in the week commencing 21 November 2022.
2. The application is amended to delete the application for a civil penalty and to seek the following orders:
a) An order under s 156(1) of the Strata Schemes Management Act 2015 (NSW) (SSMA) that Tania Brown remove 2 of her 3 dogs from her lot and common property.
b) That Ms Brown nominates to the Owners Corporation one of her three dogs that is to remain (the remaining dog).
c) An order under s 158(2)(b) of the SSMA that Ms Brown take steps to ensure the remaining dog does not continue to create a nuisance or unreasonable interference.
3. On or before 11 October 2022, the Owners Corporation is to provide particulars of the action required for the purpose of an order under s 158(2)(b) of the SSMA.
4. On or before 25 October 2022, the Owners Corporation is to file and serve any further evidence in support of its application.
5. On or before 11 November 2022, Ms Brown is to file and serve any further evidence in reply.
6. On or before 18 November 2022, the Owners Corporation is to file and serve any evidence in response and a short submission, not more than 5 pages, setting out what orders should be made and why.
7. The Tribunal notes:
a) Ms Brown may lodge an application under the bylaws with the Owners Corporation to keep more than one dog, such application to be made by 11 October 2022.
b) The Owners Corporation will use its best endeavours to determine such application no later than 4 November 2022.
8. In the event the application is made as recorded in paragraph 7 of these orders and is refused, any application by Ms Brown for an order in connection with such refusal must be lodged not later than 11 November 2022 and is to be listed for hearing with these proceedings.
9. The proceedings are listed for hearing in the week commencing 21 November 2022, the Registrar to advise the exact date for hearing in that week.
10. Leave is given to both parties to be legally represented.
11. Liberty to apply.
12. Reasons:
The Tribunal will provide reasons in due course.
[6]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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: 20 October 2022
Parties
Applicant/Plaintiff:
Brown
Respondent/Defendant:
The Owners - Strata Plan No. 82527
Legislation Cited (5)
Consumer, Trader and Tenancy Tribunal Act 2001(NSW)
At this point, it should be noted that the reference in by-law 16 to "section 49(4) of the Act" is a reference to the Strata Schemes Management Act 1996 (NSW) (repealed) (1996 Management Act), which Act was replaced by the SSMA.
The notices stated that:
1. By-law 1 was breached:
By allowing [Ms Browns] dogs to constantly bark, causing a disturbance to the peace of other residents around [Ms Brown].
and
1. By-law 16 was breached:
By having 4 large dogs within [Ms Brown's] lot without seeking permission of the Owners Corporation, and allowing them to cause a disturbance to the other residents in the complex.
The proceedings were listed for hearing before the Tribunal on 15 July 2022. At that time, the July orders were made by consent. They were in the following terms:
1. Subject to the condition set out in order 2, [Ms Brown] is to pay a pecuniary penalty of $1100.00 to the [owners corporation] on or before 20 July 2022.
2. Order 1 ceases to have effect if [Ms Brown], on or before 19 July 2022 complies with By-Law 16 by removing all but one dog from the lot.
3. The respondent is to comply with By-law 1, including by way of preventing and/or reducing the dog barking.
No reasons for decision were provided by the Tribunal.
However, we note:
1. as to order 1, the penalty imposed of $1100.00, being 10 penalty units, was the maximum penalty permitted by s 147 of the SSMA for contravention of a by-law following the issue of a notice to comply under s 146 of the SSMA. In this regard the terms of order 2 suggest the penalty was imposed in connection with a breach of by-law 16, it being permissible to otherwise impose a penalty to a maximum of $1100 for a contravention of each of by-laws 1 and 16 if established: see eg The Owners - Strata Plan No. 21367 v Letchford [2021] NSWCATCD 112;
2. as to the condition recorded in order 2, this was of a type made by the Tribunal in The Owners - Strata Plan No 82306 v Anderson [2017] NSWCATCD 85;
3. order 3 appears to have been made under s 158(1)(b) of the SSMA, although it is unclear precisely what action was to be taken and/or whether the order was made under some other provision of the SSMA;
4. having regard to the terms of by-law 16, the consent orders appear to recognise an agreement by the Owners Corporation to grant permission to Ms Brown to keep one large dog; and
5. the parties do not appear to have raised, nor does the Tribunal appear to have considered, whether the operation of by-law 16 (which on its face unilaterally prevents the keeping of large dogs without permission of the Owners Corporation), is affected by s 137B of the SSMA. Section 137B(1) and (2) provides:
137B Keeping of animals
(1) Each of the following has no force or effect to the extent that it would unreasonably prohibit the keeping of an animal on a lot -
(a) a by-law,
(b) a decision by an owners corporation under a by-law.
(2) It is taken to be reasonable to keep an animal on a lot unless the keeping of the animal unreasonably interferes with another occupant's use and enjoyment of the occupant's lot or the common property.
We also noted that, in imposing a civil penalty, no reasons were given by the Tribunal in connection with the July orders and it appeared there had been a failure by the Tribunal to properly exercise jurisdiction. In this regard the parties' attention was drawn to the decision of the High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 (CFMEU Case). There the High Court considered the proper approach by a court in determining civil penalty proceedings where the parties had agreed facts and/or the amount of the penalty to be imposed. Having reviewed authorities in relation to criminal proceedings and civil penalty proceedings, the plurality said at [57]-[59] (citations omitted):
57. …, in civil proceedings there is generally very considerable scope for the parties to agree on the facts and upon consequences. There is also very considerable scope for them to agree upon the appropriate remedy and for the court to be persuaded that it is an appropriate remedy. Accordingly, settlements of civil proceedings are commonplace and orders by consent for the payment of damages and other relief are unremarkable. So are court-approved compromises of proceedings on behalf of infants and persons otherwise lacking capacity, court-approved custody and property settlements, court-approved compromises in group proceedings and court-approved schemes of arrangement. More generally, it is entirely consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate (emphasis added).
58. Possibly, there are exceptions to the general rule. There is, however, no reason in principle or practice why civil penalty proceedings should be treated as an exception. Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed (emphasis added), it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty. To do so is no different in principle or practice from approving an infant's compromise, a custody or property compromise, a group proceeding settlement or a scheme of arrangement.
59. It is true that there is a public interest in the imposition of civil penalties as opposed to the purely private interests which are in issue in many civil proceedings. But civil penalty proceedings are by no means the only civil proceedings in which the public interest is involved. Custody disputes involve the public interest. So do group proceedings and schemes of arrangement. So also do taxation, customs and social security appeals, and detention orders; and examples can be multiplied. Yet in each of those cases, it is wholly unexceptionable for a court to accept an agreed submission as to the nature and quantum of relief, provided the court is persuaded that it is an appropriate remedy (emphasis added). Once it is understood that civil penalties are not retributive, but like most other civil remedies essentially deterrent or compensatory and therefore protective, there is nothing odd or exceptionable about a court approving an agreed settlement of a civil proceeding which involves the public interest; provided of course that the court is persuaded that the settlement is appropriate (emphasis added).
That is, while facts and penalty can be agreed and effect can be given to that agreement by the court (or in the present case the Tribunal), the court or Tribunal must be sufficiently persuaded as to the facts and consequences and that the amount of the penalty is appropriate.
In the present case, the absence of reasons suggests that the Tribunal did not consider whether contraventions had been established (particularly in light of s 137B of the SSMA) or whether the maximum penalty was appropriate and therefore did not exercise jurisdiction in the required manner.
In the course of drawing these matters to the attention of Ms Brown, Ms Brown informed us that:
1. she was not in a position to pay the penalty and wanted time to pay;
2. she did not want to remove her dogs; and
3. the dogs were not causing a nuisance or barking.
We took this to be an additional basis for challenge.
Ms Brown also said, due to circumstances of domestic violence and her elderly father, that she was not coping at the time the July orders were made, from which we took her to say her consent was not freely given.
We raised with the parties whether they wished to make submissions concerning these matters, including whether the Tribunal should set aside the July orders because of procedural irregularity. We also asked the parties whether, in light of the issues we had identified, they wished to set aside the orders by consent and remit the proceedings for re-hearing on the basis that the penalty application and applications for other orders were separated or the original application was amended to delete one or other of the applications in light of the issues we raised. In this regard the Owners Corporation indicated to the Tribunal that its primary application was for an order seeking removal of all dogs bar one, the Owners Corporation saying that Ms Brown had not otherwise applied to it for permission under by-law 16 to keep more than one dog.
The power to make a consent order is contained in cl 9(1)(a) of the Civil and Administrative Tribunal Regulation 2022 (NSW) (Regulation) which provides:
9 Additional power to set aside or vary decision determining proceedings - the Act, s 90(2)(a)
(1) In addition to a power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if -
(a) all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision,
…
For the purpose of cl 9 of the Regulation, "decision" would include the orders made in the present case, including for the imposition of a civil penalty: see s 5 of the NCAT Act.
In light of the jurisdictional and procedural issues which we raised, we considered that it was appropriate to make orders in the above terms. These are the reasons for that decision.
As will be apparent from cl 9(1)(a), the Tribunal can set aside orders by consent.
However, as that clause makes clear, there is a discretion which the Tribunal has to exercise. That discretion requires the Tribunal to consider whether it is appropriate to set aside orders in the circumstances of the case.
For example, where proceedings have been finally heard and determined the Tribunal would not usually set aside orders by consent where the only reason offered by the parties is that they would like to start again and have another hearing or that they are both dissatisfied with the decision. In such a case neither the guiding principle nor a consideration of the cost to the parties and the Tribunal and the requirement to consider proportionality found in s 36 of the NCAT Act would support such an approach.
However, if there was an error which required correction and the parties recognised such an error which vitiated any decision made and warranted it being set aside and a new hearing ordered, the proper exercise of discretion may make it appropriate to set aside the erroneous decision by consent rather than require the parties to expend costs in prosecuting an appeal or taking proceedings in a court to achieve the same result. Such an approach is wholly consistent with the requirements of s 36 of the NCAT Act.
In the present case, the consent orders that we made permits the Tribunal to address the problems arising from the form of the proceedings and the decision that has been made by setting aside that decision and relisting the proceedings to determine the application in the agreed amended form.
In this regard, we are satisfied that it is inappropriate for the Tribunal in the Consumer and Commercial Division to determine an application for general orders under the SSMA and an application for the imposition of a civil penalty under the SSMA in the same proceedings or at the same time. Further, the combination of such claims in one application is impermissible and an irregularity of a type contemplated by s 53(3) and (4) of the NCAT Act.
There are a number of reasons why we hold this view.
First, as stated in s 38 of the NCAT, the Tribunal "is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". However, in the case of a mixed application seeking general orders and the imposition of a penalty under the SSMA, while both fall within the definition of "general jurisdiction" of the Tribunal found in s 29, different procedural rules apply to the Tribunal in determining such applications.
In proceedings for general orders under the SSMA, the Tribunal is not bound by the rules of evidence and may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2). In contrast, proceedings for the imposition by the Tribunal of a civil penalty in the exercise of its general jurisdiction require that the Tribunal must observe the rules of evidence: s 38(3) NCAT Act. In our view these different requirements indicate the Legislature intended separate proceedings for general orders and proceedings for the imposition of a civil penalty.
This view is supported by the fact that civil penalty proceedings under the SSMA are similar in nature to the Tribunal exercising its enforcement jurisdiction under s 33(1)(b) of the NCAT Act.
Secondly, in all proceedings, whether for a general order under the SSMA or the imposition of a civil penalty under that Act, the rules of natural justice apply. In National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29, Gibbs CJ said at 512 (Brennan J agreeing:
15. In Russell v. The Duke of Norfolk (1949) 1 All ER 109 Tucker L.J. said, at p 118: "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth." The passage has frequently been approved - for example, by this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at p 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Moreover, as Stephen J. said in Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396, at p 444, the rules of natural justice "may also vary from case to case although each be conducted before one and the same tribunal or person."
It seems to us that natural justice cannot be afforded in mixed proceedings of this type where evidence may be received for the purpose of general orders under an enquiry permitted by s 38(2) whereas the Tribunal must apply the rules of evidence in civil penalty proceedings. This is because of the different nature of the inquiry and different rules under which the Tribunal is acting in each type of claim.
Further, because:
1. a party may be entitled to claim civil penalty privilege in connection with proceedings for the imposition of a civil penalty; and
2. the manner in which civil proceeding should properly be conducted is different (it usually being appropriate to conduct a hearing on contravention then deal with the aspect of penalty), it is self-evident that a respondent would be placed at a significant disadvantage both in terms of knowing what evidence was relied upon for what purpose and what might constitute evidence to which the respondent was required to respond in connection with the different types of application. Consequently, combining such applications and hearing them at the same time is inherently unfair and/or likely to lead any decision-maker into error.
Thirdly, as indicated above, there are different appeal paths depending on the nature of the proceedings. General orders may be challenged by way of internal appeal. A decision to impose a civil penalty is appealable to the relevant court. The Legislature could not have intended that a respondent who was subject to general orders and the imposition of a civil penalty in the same proceedings would be required to lodge two appeals to different bodies. Further, the Legislature could not have intended that the different appeal bodies could make determinations about the same factual matters relevant to the making of general orders and the imposition of a civil penalty. Rather, giving effect to the guiding principle in interpreting the provisions of the NCAT Act and procedural rules (as required by s 36(2)(b) of the NCAT Act) and having regard to the objects found in s 3 and the distinctions drawn between different types of proceedings in the Tribunal when exercising different jurisdiction, in our view the combination of applications for general orders and the imposition of a civil penalty under the SSMA in one proceeding is not permitted.
Since commencement of proceedings before the Tribunal and the form by which an application is made are matters of practice and procedure, the combination of applications for general orders and for imposition of a civil penalty constitutes an irregularity in the commencement or continuation of proceedings: Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 per Lord Denning MR at 735- 6; [1996] 3 All ER 843.
In addition, there is:
1. for the reasons set out about, with such combined applications (as illustrated by the present case), a failure to afford procedural fairness; and
2. in the present case, a failure to exercise jurisdiction in connection with the imposition of a civil penalty because it does not appear the Tribunal examined the facts and made relevant determinations by reaching a level of satisfaction as required by the CFMEU Case.
In Minister for Immigration & Multicultural Affairs v Bhardwaj 209 CLR 597; [2002] HCA 11, at [52]-[53] (citations omitted) Gaudron and Gummow JJ (McHugh J agreeing) said of such errors:
52 The view that a decision involving jurisdictional error does not prevent the decision-maker from correcting that error by making a later decision has been accepted by the Supreme Court of Canada. Thus, in Chandler v Alberta Association of Architects, Sopinka J, with whom Dickson CJ and Wilson J concurred, said:
"As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances ...
To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason, I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law."
In the same case, his Lordship cited with approval a statement by McLachlin J that:
"as a matter of logic and on the authorities ... a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision".
53 In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act.
Consistent with the statement of Basten JA in Atkinson, referring to Bhardwaj, the Tribunal may also set aside a decision for such errors.
Consequently, there is a power to set aside the July orders under s 53(4) of the NCAT Act.
It follows, subject to one matter, that we are satisfied it was appropriate to set aside the July orders by consent.
That matter concerns whether, when constituted as the Appeal Panel, we can set aside all the orders by consent under cl 9 of the Regulation (or s 54(4) of the NCAT Act if there was no consent). This is because we do not have jurisdiction to deal with the appeal in respect of the imposition of a civil penalty. However, we do have internal appeal jurisdiction to deal with the appeal concerning the general order for removal of the dogs.
Under s 81(2) of the NCAT Act we are able to exercise all the functions conferred under the NCAT Act or other legislation on the Tribunal at first instance. That includes the power to set aside decisions permitted by cl 9 of the Regulation or set aside orders for procedural irregularities under s 53(4).
Since we are not determining the appeal against the penalty but, rather, dealing with the procedural irregularity in the original proceedings in the context of the application for general orders, we are satisfied we have jurisdiction to make these orders.
If we are wrong on this aspect of our reasons, since the presiding Member is the Deputy President and Head of the Consumer and Commercial Division with authority to constitute the Tribunal at first instance, he would (consistent with the guiding principle), if necessary, constitute us as the Tribunal at first instance to make the consent orders.
For these reasons we have made the consent orders on, 4 October 2022.