This is our decision on two remaining issues in the proceedings: whether the remitted proceedings should be heard by the same Tribunal Senior Member from whose decision the appeal was brought; and costs.
Directions were made by the Appeal Panel on 27 October 2022 for the parties to lodge any submissions on costs at the same times as they lodged their submissions in relation to the appeal.
We made directions in our decision dated 20 February 2023 for written submissions to be made in relation to the remittal issue. Both parties lodged submissions in accordance with those directions. In those submissions both parties consented to an order that an oral hearing be dispensed with.
We are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering their written submissions and accordingly order that an oral hearing in relation to those issues be dispensed with.
[2]
Remittal
This decision assumes familiarity with our decision dated 20 February 2023, our principal decision - Chapman v Nicolosi [2023] NSWCATAP 44. In that decision we raised for consideration and further submissions whether the remitted proceedings should be heard by the Tribunal as originally constituted or by a differently constituted Tribunal.
The appellant builder submitted that the remitted proceedings should be heard by a differently constituted Tribunal because the original Tribunal had determined matters of credit in relation to one issue upon which we came to the view the Tribunal had erred.
The builder submitted that the rejection of the builder's case on credit grounds created the perception that it infected the other matters determined by the Tribunal. As a consequence, the builder submitted, it would be inappropriate to remit the matter to the originally constituted Tribunal.
The builder cited Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal & Anor (1990) 26 FCR 39; [1990] FCAFC 642, wherein Foster and Davies JJ observed at [42]:
"If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the Member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think party may think that that a rehearing before the Tribunal as originally constituted could be worthless for the Member's views have been stated."
The builder submitted that the preferable course of action was to remit the proceedings for a new hearing by a differently constituted Tribunal, relying upon the evidence adduced and any further evidence the Tribunal may allow.
The respondent owner, who is legally untrained and legally unrepresented, made submissions taking issue with various findings made in our earlier decision of 20 February 2023. Those submissions are not relevant to the remaining issues, and our earlier decision has been made. It is not now open to us to change that decision even if the owner persuaded us that we were wrong in some respect or other.
The owner submitted that she was in parlous personal circumstances, being twice-widowed, suffering from an auto-immune condition and being unable to earn income amongst other circumstances.
The owner submitted that she is not currently represented (although she was at an earlier stage of the proceedings) and she feels she has been severely disadvantaged in this matter. She submitted that she didn't know whether she was emotionally strong enough to continue without legal representation but would like to try to get someone on a pro bono or contingency basis.
Both the NSW Bar Association and the NSW Law Society, amongst other organisations, run pro bono programs and may be able to assist the owner in the remitted proceedings.
With no disrespect to the owner, her submissions are not relevant to the issues we must now determine, which costs of the appeal and whether the remitted proceedings are heard by the same Senior Member as originally heard them or by another Member. Those issues must be decided in accordance with legal principles rather than the sympathy we may feel for the owner's predicament.
In terms of the remittal, those principles are that whilst there may be significant cost and convenience advantages in remitting proceedings to the original Tribunal, proceedings should be remitted to a differently constituted Tribunal where the interests of justice require it.
The passage from Northern NSW quoted by the builder and set out above, whilst not overruled, was, in the opinion of Perram J - Glen Cameron Nominees Pty Ltd v Transport Workers' Union of Australia (No 2) [2017] FCA 1515 - heavily qualified by the Full Court's subsequent decision in Comcare v Broadhurst [2011] FCAFC 39. There, Tracey and Flick JJ, at [90], cited Northern NSW as authority for the much weaker proposition that '[t]here may be circumstances in which it is appropriate for the Tribunal to be differently constituted if justice is to be seen to be done'. Their Honours then proceeded to set out circumstances where it would be appropriate to order the tribunal to be differently constituted which included where there was an apprehension of bias and where findings of fact had been made which needed to be revisited.
In Comcare their Honours said at [90]:
"The decision in that case (Northern NSW) prompted the observation that the Court was there elaborating a 'general principle of ordinary practice': M Batskos, "Natural Justice and the Constitution of Tribunal Membership" (1998) 16 AIAL Forum 22 at 30. A helpful list of factors drawn from the cases was there also set forth as to 'factors … relevant in determining whether the tribunal should be reconstituted': (1998) 16 AIAL Forum at 31."
That "helpful list of factors" drawn from the cases in the article cited (citations omitted) was:
1. whether the member or tribunal has expressed a view or made findings on facts to be determined at the rehearing and which would be relevant to the exercise of any discretion;
2. whether views on the merits were fully and firmly expressed adverse to the appellant;
3. whether there is evidence of substantially greater costs or delay incurred by the tribunal than as originally constituted;
4. whether there is evidence that rehearing by a differently constituted tribunal would be inconvenient or unsuitable;
5. whether there are findings on the credibility of a major witness;
6. whether there are statements of strong personal views about the applicant or the applicant's evidence;
7. whether there was extensive, lengthy and far-reaching consideration of the matter by the tribunal or any inquiry process which was very detailed and protracted;
8. whether a particular member has already dealt with the matter twice;
9. if the tribunal took a partisan role in the appeal beyond making submissions about interpretation of the relevant legislation and the powers of the tribunal where no exceptional circumstances existed to justify that role;
10. whether a reasonable person in the shoes of the aggrieved party may think a rehearing before the original tribunal was worthless.
The source of the last factor was something written extra-judicially by Young J in (1994) 68) ALJ at 79. Quite what "worthless" meant was not explained. However, in the same article his Honour summarised the general issue in common-sense and short terms. His Honour wrote:
"In one sense it is obviously sensible to send the matter back to the same judge. That judge may have spent days or weeks considering the matter and has all the background facts which enable further decisions on factual matters to be made with the minimum amount of extra time and energy being expended on the case. On the other hand, there is anecdotal evidence that in Stated Cases from magistrates, when the case is returned to the magistrate with the Court's expression of opinion, it more often happens than not that the magistrate affirms a conviction on some other ground."
In New South Wales, Mason P, with whom Ipp JA agreed, held to a more restrictive approach than the Full Court did in Northern NSW in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208. His Honour said:
"[12] The power to direct a hearing by other than the original judicial officer is used sparingly and only when it appears to the appellate court that it is appropriate in the interests of justice (see Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 538[62], 556[123] and authorities there cited). Something more than error, to which all are prone, must be demonstrated. Where the proceedings below have been conducted in such a manner as to give rise to a reasonable apprehension of bias this will usually ground such an order. But the power is not limited to such a situation.
[13] There can be cases where a complicated process of fact-finding has miscarried through a combination of factors. The interests of justice, including its appearance, may require that the new trial take place before a differently constituted court or tribunal. This is particularly so where, as in the present case, the first trial resulted in a judgment turning upon credibility-based findings. To remit the matter for a new trial before a similarly constituted tribunal of fact would almost inevitably trigger an application that the judge recuse in light of the principles in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411. Instances where this Court has given a direction designed to avoid this possibility include Curnuck v Nitschke [2001] NSWCA 176 and Mkari v Meza [2005] NSWCA 136.
[14] This is not to imply that the former decision-maker might start the new trial with the disposition in favour of the party originally successful. Indeed, there may be risks of compensatory bias or its appearance (cf my paper on "Unconscious Judicial Prejudice" published in (2001) 75 ALJ 676) that may properly be taken into account. This Court's concern lies with avoiding the appearance of pre-judgment.
[15] I agree with Basten JA that the power should be exercised with caution and with respect for the authority of the judicial officer or officers in the court or tribunal below who have authority to assign cases. But where this Court is seized of a matter that persuades it as to the propriety of making a direction of this nature, the power should be used. ...."
In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 Young JA said, at [119], that his Honour could not find in the authorities any overriding principle as to when a remitter is to a different judge (or different Tribunal member) but said that there were guidelines which appeared in the authorities. Those included:
1. the power to direct a remittal to a fresh person is to be exercised sparingly - Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [12];
2. where there had already been strong findings about the credibility of a party - see eg Smith v New South Wales Bar Association (1992) 176 CLR 256 at 269 per Brennan, Dawson, Toohey and Gaudron JJ;
3. if there had been stringent criticism of the judge or tribunal member in the appeal court - Brackenreg v Comcare Australia (1995) 56 FCR 335 at 352 per Sheppard J;
4. if there is a reasonable likelihood that a judicial officer or tribunal member will be perceived to have pre-judged an issue to be remitted to him or her - Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 at 345 per Tobias JA with whom Handley and Ipp JJA agreed.
5. if the appeal hearing throws up a reasonable suggestion of bias in the original decision maker - Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 per Tobias JA at 73.
Young JA's considerations in Walker Corporation, and paragraphs [12] and [13] from Seltsam, were quoted with approval by the Court of Appeal (Bathurst CJ, Beazley P and Meagher JA) in Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 at [27]. The Court of Appeal (Allsop P, Hodgson JA, Macfarlan JA) also quoted with approval Young JA's considerations in Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 348 at [6].
Seltsam has been followed many times, including by Adamson J in BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126 at [53]-[54], a decision relied on by the Appeal Panel in Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [137]-[138].
Therefore, in accordance with Seltsam, we should only exercise the power to remit the matter to a differently constituted Tribunal sparingly, and only if the interests of justice require it. Whether the interests of justice require it will depend on the existence or otherwise of factors such as those identified in the authorities, cost and convenience factors (both for the parties and the Tribunal) and the respective weight to be given them. Particular cases may identify additional factors which the interests of justice would require to be considered.
In the present case the Tribunal decided an ultimate issue, being what amount had been paid by the owner, substantially on the basis of a credit finding adverse to the builder and his witness, Mr Plant. That ultimate issue is one issue which has been remitted to the Tribunal. The credit finding adverse to the builder is one of the classic circumstances where a remitter should be to a differently constituted Tribunal. Accordingly, and regrettably given the time and expense the parties have incurred, and the stress of litigation they have experienced, this matter must be remitted to a differently constituted Tribunal.
For completeness, we reject the builder's contention that the rejection of the builder's case on the issue identified would create a perception that it infected the other matters determined by the Tribunal and thus an apprehension of bias. There is no support for that contention in the text or context of the Tribunal's comprehensive decision, in the transcript or in any of the material lodged on the appeal. Nor did the appellant attempt to support that contention by any submissions or any references to the Tribunal's decision or the material lodged on the appeal.
[3]
Costs
The builder was successful on the appeal. The amount claimed or in dispute on the appeal was greater than $30,000 and therefore there is no requirement for the builder to establish special circumstances as a pre-condition to an order for costs - see, generally, Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25.
In those circumstances, and generally speaking, the law is that a successful party is ordinarily entitled to its costs unless it is guilty of some disentitling conduct, or some other factor exists which militates against the making of that usual order.
In Thompson v Chapman [2016] NSWCATAP 6 the Appeal Panel summarised the position as follows:
"69. The starting point in exercising such discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs in their favour: see Latoudis v Casey [1990] 170 CLR 534 per Mason CJ at 554 and Oshlack v Richmond River Council per McHugh J at 97.
70. The reason for such an order is that it is appropriate for the party who incurred costs caused by the other party in litigation to be reimbursed. Further, an award of costs is by way of an indemnity to the successful party and not as punishment of the unsuccessful party: see Latoudis v Casey per Mason CJ at 543 and McHugh J at 567 and in Oshlack v Richmond River Council per Brennan CJ at 75.
71. Where there is a general discretion for costs there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party nor is there any rule that a successful party might not be ordered to bear the costs of an unsuccessful party: see Oshlack v Richmond River Council per Gaudron and Gummow JJ at 88 and Kirby J at 121 - 123.
72. The factors to be considered in awarding costs in a particular case are not to be confined as to do so would constrain the general discretion. However it is clear from the authorities that factors that might influence whether the usual order for costs should apply and, if so, to what extent include:
(1) Whether, by reason of the relative success of the parties on different issues and the time taken to determine those that an order for costs based on issues should be made: see for example Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWSCA 304; and
(2) Whether, by reason of the nature of the proceedings the usual rule should otherwise be displaced in whole or in part: see Oshlack v Richmond River Council per Gaudron and Gummow JJ at 41 - 44."
There is no disentitling conduct identified by the owner, nor is any apparent to us. Neither is there any other factor which would militate against an order for costs in the builder's favour. Accordingly, costs should follow the event and the owner should be ordered to pay the builder's costs of the appeal as agreed or assessed.
In the circumstances, execution of that order for costs should be stayed pending the determination of the remitted proceedings (and any appeal therefrom if there be one) or further order of the Tribunal.
We regret that this decision shall heap further misery on the owner who was obviously and visibly distressed during the hearing of the appeal. However, we have no choice other than to apply the law as it is to the relevant facts that exist, the result of which are our decisions on the remaining issues set out in these reasons.
[4]
Orders
We make the following orders:
1. An oral hearing of the remaining issues is dispensed with.
2. The proceedings are remitted to a differently constituted Tribunal.
3. The respondent is to pay the appellant's costs of the appeal as agreed or assessed.
4. Execution of that order for costs is stayed pending the determination of the remitted proceedings (and any appeal therefrom if there be one) or further order of the Tribunal.
[5]
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: 15 March 2023