Bruce v Knight

Issue to be determined

1. Following publication of the Costs Decision, on 2 September 2021 the Registry received correspondence from the Respondents' solicitor submitting that the Appeal Panel had erred in ordering the Respondents to pay the Appellants' costs of the proceedings at first instance and asked that the Appeal Panel, pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), order that: 1. order number 3 of the decision of the Appeal Panel dated 31 August 2021 be "removed"; 2. the references to an award of costs in the proceedings at first instance at [2], [4], [20]-[22] and 26 of the decision of the Appeal Panel dated 31 August 2021 be deleted.
2. Following receipt of that correspondence, on 7 September 2021 we issued the following directions: "1 Order (3) of the Appeal Panel's orders of 31 August 2021 is stayed until further order. 2 On or before 21 September 2021 the Appellants are to file a response to the Respondents' application that the Appeal Panel vary its costs decision of 31 August 2021. 3 The Respondents may reply by 28 September 2021. 4 The Appeal Panel proposes to deal with the Respondent's application on the papers and without a hearing. If either party opposes that course they should address that issue in their submissions."

Respondents' position

1. In response to direction (4) above, the Respondents say that an order dispensing with a hearing of this matter would be inappropriate. They say that the issues for determination cannot be adequately determined in the absence of the parties and by way of consideration of written submissions alone by reason of the following matters: 1. the error that the Respondents seek to have rectified appears deceptively simple, but has been misconstrued by the Appellants in their submissions, resolution of which will involve "close consideration of the detailed events set out herein and shall involve reference to the key dates and documents filed in the proceedings"; 2. the Respondents are not aware of the state of the Appeal Panel's internal file, and are unsure as to whether the Appeals Panel may have all of the material in front of it; 3. the opportunity for a hearing will allow the Respondents to assist the Appeal Panel to ensure a clear understanding is achieved of what is at its essence a straightforward matter that the Appellants have sought to confuse.
2. The Respondents submit that failing an opportunity being provided for a hearing of this matter, there could be a substantial miscarriage of justice by way of the "cementing" of what is a clear error, in the form of what are currently directly two contradictory costs decisions.

Appellants' position

1. The Appellants do not oppose the present application being dealt with on the papers and without a hearing.

Consideration

1. The relevant section of the Civil and Administrative Tribunal Act 2013 (NSW) is s 50. That section provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except - (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first - (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required.
2. This section has been applied on many occasions by the Appeal Panel, particularly in relation to determining costs decision. In 2021 the Appeal Panel has done so on no fewer than 11 occasions in respect of costs decisions: Foong v Scutella [2021] NSWCATAP 294; Metrix Development Pty Ltd & Ors v Chen and Liang [2021] NSWCATAP 283; The Owners - Strata Plan No 76700 v Trentelman (No 2) [2021] NSWCATAP 268; Boughen v Kumar & Paentia (No 2) [2021] NSWCATAP 262; Kazzi v Bechara (No 2) [2021] NSWCATAP 244; Lewis v Matuck (No 2) [2021] NSWCATAP 241; Hatzigeorgiou v The Owners - Strata Plan No 71571 (Costs) [2021] NSWCATAP 238; McGrath v The Owners - Strata Plan No 13631 (No 2) [2021] NSWCATAP 215; Neighbourhood Association DP No 285853 v Kannapiran (No 2) [2021] NSWCATAP 206; Grandview Pty Ltd v Bacon (No 2) [2021] NSWCATAP 164; Maygood Australia Pty Ltd v The Owners - Strata Plan No 85338 [2021] NSWCATAP 122.
3. That said, in all of those cases save for Lewis v Matuck (No 2), the dispensing of a hearing was either expressly consented to or not opposed by the parties. In Lewis v Matuck (No 2) the position was not clear.
4. We have the benefit of detailed submissions from all parties on the present matter. We are comfortably satisfied that the issues for determination can be adequately determined in the absence of the parties by considering their written submissions. We see no substance in the Respondents' submission that their presence is required to ensure "a clear understanding is achieved of what is at its essence a straightforward matter".
5. Having regard to the guiding principle in s 36 of the NCAT Act, which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings", we are satisfied that it is appropriate to dispense with a hearing on the application for costs and we so order under s 50(2) of the NCAT Act.
6. We turn to the principal issue for determination.

Amendment of orders pursuant to s 63 of the NCAT Act

Respondent's submissions - 2 September 2021

1. The principal matter agitated by the Respondents is that on 23 April 2021 the Tribunal at first instance declined to order costs to either party. The Respondents submit that: 1. neither party referred to the costs decision at first instance in their submissions regarding the issue of costs. Nor did the Appeal Panel refer to that decision or engage in any analysis of it; 2. pursuant to s 25(4)(c) of the NCAT Act, the timeframe in which either party would have been permitted to appeal the decision of the Tribunal expired on 21 May 2021. There is no dispute that neither party enlivened their rights to appeal the decision regarding the costs order at first instance within that timeframe or at all; 3. in the premises, the fact the costs order was not the subject of the appeal, meant the Appeal Panel lacked jurisdiction to determine the matter and in doing so denied the Respondents procedural fairness who were clearly not on notice that the Appeal Panel intended to entertain and overturn an order that the Appellants elected not to appeal. The only explanation must be a clear error by the Appeal Panel in its decision of 31 August 2021, and the decision ought to be amended.
2. The Respondents then submit: "11. As an aside to the foregoing, if the Appeal Panel is minded to look into this further, we refer to the three decisions of [The Owners-Strata Plan No 74835 v Pullicin (Costs [2020] NSWCATAP 49], [Loneragan v The Owners-Strata Plan No 16519 (No 2) [2020] NSWCATAP 283] and [Gelder v The Owners-Strata Plan 38308 [2021] NSWCATAP 109] which illustrate contradictory approaches in respect of the awarding of costs in first instance proceedings on appeal. The decisions of Pullicin and Loneragan are authority for the position that the Appeal Panel lacks jurisdiction to award the costs of first instance proceedings where no decision in relation to costs was made by the Tribunal at first instance, and the decision of Gelder is authority for the opposite position. 12. Though the decision of Gelder was referred to by the Appeal Panel in its decision of 31 August 2021 regarding costs, no reference was made to Pullicin or Loneragan. In each of the three decisions, the circumstances are entirely inconsistent with the current factual matrix in these proceedings and should not have been applied. In those three proceedings the Tribunal had not dealt with costs in the proceedings at first instance while in this case, Senior Tribunal Member Thode clearly had considered them and made a final order. In the absence of an appeal brought by the Appellants regarding the costs order and the fact an order had been made at first instance, the Appeal Panel lacks jurisdiction to engage in a consideration of and ultimately determine the costs at first instance. The Appeal Tribunal's reliance on Gelder perhaps confirms that it incorrectly assumed a costs order had not been made at first instance and therefore the principles Gelder were applicable."

Appellant's submissions in response

1. The Appellants' submissions may be summarised as follows.
2. First, having delivered the Costs Decision, the Appeal Panel does not have the power to reconsider or set aside its own decision or allow a party to an appeal to reopen its case; this limitation is subject only to s 63 of the NCAT Act.
3. Secondly, s 63 is not engaged because: 1. the Appeal Panel's decision to make an award of costs in relation to the earlier proceedings at first instance is not an "obvious error in the text" of the notice of the decision or the Appeal Panel's reasons; 2. the decision to award costs is not a clerical or typographical error; an accidental slip or omission; a defect of form; or an inconsistency between the stated decision and the stated reasons; it is a deliberate and considered decision; 3. the order in fact reflects the decision of the Appeal Panel, so it is not in the nature of a correction; 4. the "error" contended for by the Respondents is not "a matter as to which no real difference of opinion exists". In fact, the Appellants contended for the order that was made and the Respondents opposed it.
4. Thirdly, s 63 is not available to a party who neglects to present a submission when it is given the opportunity to do so and belatedly thinks of a new and different point after the decision is delivered. The contentions made in the Respondents' submissions are submissions that could have been made to the Appeal Panel in accordance with order (4) made in the Costs Decision on 23 July 2021. It is too late to make those submissions now. By operation of s 61 of the NCAT Act, the Appeal Panel cannot lawfully allow the Respondents to reopen their case to consider those submissions.
5. Fourthly, in any event, the Respondents' submissions are wrong. The Appeal Panel was correct to follow the decision in Gelder v The Owners - Strata Plan 38308 [2021] NSWCATAP 109. The fact that it did not specifically mention other decisions, such as The Owners-Strata Plan No 74835 v Pullicin (Costs) [2020] NSWCATAP 49 and Loneragan v The Owners-Strata Plan No 16519 (No 2) [2020] NSWCATAP 283, is immaterial. These decisions do not stand for the proposition contended for by the Respondents and, in any event, the Appeal Panel is not bound by them. In the proceedings before the Tribunal, the Appellants did not seek an order for costs. The Respondents, having succeeded below, made an application for costs pursuant to s 60(2) of the NCAT Act. The Tribunal rejected the Respondents' application on the basis that special circumstances, within the meaning of s 60(2), did not exist. It could hardly be said that the Appeal Panel lacks jurisdiction to deal with the costs below in circumstances where it overturns the decision below and thus establishes a different factual matrix against which the question of costs below is to be assessed. However, for the purposes of this application, the short point is that these are matters in contention and are not amenable to the slip rule.
6. Fifthly, if s 63 was given the wide application contended for by the Respondents, it would give every party an opportunity to make further submissions after it has the benefit of receiving any decision of the Tribunal or the Appeal Panel if it took the view that a point had not been considered by the decision-maker. The Respondents submit "[t]hat is not rectification, it is a 'second bite at the cherry'".

Respondents' reply submissions - 28 September 2021

1. Firstly, s 61 of the NCAT Act is not relevant to the current application.
2. Secondly, the application brought by the Respondents has been mischaracterised by the Appellants. This is not a reopening of the substantive proceedings before the Appeal Panel but an application to correct an obvious error on the record of the Tribunal.
3. Thirdly, if the Respondents had been given an opportunity to be heard on the issue of costs and been alerted to the fact the Appeal Panel was contemplating making a costs order in relation to the costs at first instance, the Respondents could have drawn to the Appeal Panel's attention the fact the costs order at first instance of 23 April 2021: 1. was not the subject of the Amended Notice of Appeal; 2. was not the subject of the "decision under appeal" pursuant to s 81 of the NCAT Act; 3. had at no time been set aside, and therefore the Appeal Panel did not have power to make an order in relation to the costs at first instance, 4. and then "the obvious error" of the two inconsistent costs orders, would have been avoided. Instead, the Respondents were not on notice that the Appeal Panel was contemplating making such an order and were not heard as the issue was determined on the papers.
4. Fourthly, the Respondents' submissions in reply demonstrate the obvious error and the need for a correction to the record.
5. Fifthly, the submissions of the Appellants that the costs order regarding the costs at first instance was openly sought by the Appellants is without any proper base and contradictory to the documents before the Appeal Panel.
6. Sixthly, at no time were the Respondents given the opportunity to be heard regarding the costs at first instance.
7. Seventhly, it was "patently obvious" that the Appeal Panel made an error, as both orders "were entirely inconsistent and cannot stand".

Consideration

1. This is an application pursuant to s 63 of the NCAT Act. That section provides: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where - (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons.
2. The rule has been considered in a number of authorities. As the Appellants submitted, s 63 was considered by the Tribunal in Place v Department of Finance, Services and Innovation (No. 2) [2017] NSWCATAD 21: "9. Section 63 is a statutory version of the common law "slip rule", the purpose of which is to avoid injustice by permitting the rectification of errors or omissions in the orders or reasons of a court or tribunal: Batagol & McGill v Monk [2000] VSC 48, [17]. The test for applying it has been held to be whether, if the matter had been drawn to the tribunal's attention, a mistake or omission would have been corrected at once: Riga v Peninsula Home Improvements [2000] VCAT 56. The following passage from R v Cripps; ex parte Muldoon [1984] QB 686, 695 has often been referred to: [The slip rule] is surprisingly wide in scope. Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge. But it also authorises the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it. It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended. 10. In its primary connotation, the slip rule applies when the error, mistake, omission or slip is a matter as to which no real difference of opinion exists. It can even apply if there are different possible "corrections", provided that the choice between them is not a matter of controversy or substance or require the exercise of an independent judgment: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, 390 - 392."
3. As was noted in Yang v Oppidan Homes Pty Ltd [2016] NSWCATAP 146: "83. … the slip rule should not be used as a vehicle for the reopening of a decision which has already been published to the parties. There may be an exception in a case where all parties consent to a reopening. In our view, the slip rule mechanism should be limited to the subject matter expressly referred to in s 63 namely for the correction of obvious errors, and should not be a vehicle for revised or fresh findings of fact. 84. In this respect, we note the following. (1) In Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 McHugh JA (at 449) referred to the inherent power of the Courts of Common Law and the Court of Chancery to correct any clerical mistake or error in a judgment or order if it was the result of an accidental slip or omission (referring to Lawrie v Lees (1881) 7 App Cas 19 at 34-35). His Honour there noted that the "dividing line between a mistake or error which is the result of an accidental slip or omission and a mistake or error which is the product of a deliberate decision has often been difficult to draw". (2) In order for the slip rule to apply, the Court (here the Tribunal) must be satisfied that had the matter been drawn to its attention it would have made the correction at once: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453; Newmont Yandal Operations Pty Limited v The J Aron Corporation and the Goldman Sachs Group [2007] NSWCA 195; 70 NSWLR 411 at [137]; Wardle v Agricultural & Rural Financers Pty Ltd (No 3) [2013] NSWCA 207; (2013) 303 ALR 298 at [61]. (3) The slip rule is not applicable where it involves the exercise of an independent discretion not exercised at the time in question: Storey & Keers Pty Ltd & Anor v Johnstone (1987) 9 NSWLR 446; Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287 at [62] to [64]."
4. In Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2 the Court of Appeal stated: "35. The slip rule has been held to permit applications for variations of orders where the mistake or error requiring the change lay in a party's failure to advert to a matter at the time of the hearing. In Roads and Traffic Authority of NSW v Palmer (No 2) [2005] NSWCA 140 at [24], Giles JA (Spigelman CA and Handley JA agreeing) referred with approval to the following statement by Toohey J in Raybos Australia Pty Ltd v Tectran Corporation Ltd (1988) 77 ALR 190 at 191: In many cases the slip rule or its equivalent is invoked when, through error or oversight, a judgment or order fails to express correctly the intention of the court at the time when the judgment or order was announced. But it is clear that this power of correction extends to cases where a matter, through inadvertence, was not dealt with at the hearing. In that case the purpose of correction is not to give expression to the intention of the court at the time the judgment or order was pronounced … 36. Giles JA continued at [25] as follows: Applications under a slip rule have been entertained to vary orders by inclusion of interest in a judgment (L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; Gould v Vaggelas (1983) 157 CLR 271), ordering repayment of the judgment sum (The Commonwealth of Australia v McCormack (1984) 155 CLR 273; Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1991) 27 NSWLR 659) and making an order for costs (Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd). This has been so "regardless of whether the order has been drawn up, passed and entered" (L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) at 595; see also Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) at 661). 37. To similar effect are the observations of the Full Federal Court in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 391 where Lockhart J (Black CJ agreeing) said: It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the Court's order was made, or judgment given. It extends to the intention which the Court would have had, but for the failure that caused the accidental slip or omission: Symes v Commonwealth of Australia (1987) 89 FLR 356. The rule also extends to permit the correction of an order or decree where the omission results from the inadvertence of a party's legal representative: Fritz v Hobson at 561-562; Chessum and Sons v Gordon [1901] 1 KB [sic] 694; Tak Ming Co Ltd at 304; Shaddock per Mason ACJ, Wilson and Deane JJ at 594-5; and Gould v Vaggelas at 274-275."
5. In Lawrence v Ciantar (No 2) [2020] NSWCA 186 the Court of Appeal stated at [10]: "… the slip rule contained in … expressly applies only to the correction of errors that arise from "a clerical mistake" or "an accidental slip or omission". The slip rule has no application to alleged mistakes that are a consequence of a deliberate decision: Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) [1991] NSWCA 92. …"
6. Applying those principles, we do not consider that the "slip rule" applies and that the Respondents' application is misconceived. Our decision to make an award of costs in relation to the proceedings at first instance was just that - a decision. It was not a "clerical mistake", an "accidental slip or omission" or an "obvious error in the text" of our reasons.
7. Nor was the "error" contended for by the Respondents a matter as to which "no real difference of opinion exists"; the Appellants in fact contended for the order that was made and the Respondents oppose it.
8. We do not understand the proposition that the Respondents were not on notice that the Appeal Panel was contemplating an order for costs at first instance. That order was clearly sought by the Appellants having been successful in their appeal: see pars 2.1(b), 5.7 and 5.22 of the Appellants' submissions of 6 August 2021.
9. True it is that no appeal from the first instance costs decision was filed, but we reject the Respondents' assertion that they were not on notice that the Appeal Panel was contemplating an order regarding the costs at first instance and were not heard as the issue was determined on the papers. The issue was expressly raised by the Appellants in their submissions on costs and the Respondents were afforded the opportunity to respond, but failed to do so.
10. While it is correct that the Notice of Appeal did not seek to appeal the costs decision at first instance, the Tribunal may determine its own procedure in relation to any matter for which the NCAT Act or the procedural rules do not otherwise make provision (NCAT Act, s 38(1)), and 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 (NCAT Act, s 38(4)).

Conclusion

1. It follows that the application to amend the orders of 31 August 2021 pursuant to s 63 of the NCAT Act must be dismissed.

Orders

1. The Appeal Panel orders: 1. The Respondents' application to amend the orders of 31 August 2021 pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) is dismissed. 2. The stay of order (3) of the Appeal Panel's orders of 31 August 2021 is lifted. 3. If the Appellants seek costs: 1. they must file with the Registry and give to the Respondents submissions limited to three pages within 14 days of these reasons; 2. the Respondents may respond within a further 14 days; 3. the Appellants may reply within a further 7 days. 1. All submissions must be limited to three pages; 2. The Appeal Panel proposes to decide any application for costs "on the papers". If either party opposes this course, they should address that issue in their submissions.

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: 04 November 2021