The District Court Proceedings
33 The grounds on which the District Court was asked to set aside the decision of the Tribunal were stated in an Amended Notice of Appeal filed 20 July 2009. They were:
"1. The CTTT on 25 June 2008 erred in law by failing to make findings on essential matters, and secondly, the findings which the CTTT did make disclose errors of law and a constructive failure to exercise jurisdiction.
2. In particular, the CTTT erred in law:
2.1 when it failed to decide what were the terms of the oral residential tenancy agreement entered into on 3 December 1998 between Greg Koumashian and the Appellant for the Premises; and/or
2.2 further or in the alternative, when it failed to decide that it was a term of the oral fixed term residential tenancy agreement for the Premises that the Appellant could reside at the Premises until the first to occur of the following events:
(a) the death of the Appellant; or
(b) the Appellant voluntarily vacating the Premises;
2.3 further or in the alternative, when it decided that there was no evidence that on 3 December 1998 Greg Koumashian and the Appellant entered into an oral fixed term residential tenancy agreement for the Premises without addressing material before it which, on its face, contradicted that conclusion; and
2.4 further or in the alternative, when it decided that the words used on 3 December 1998 by the landlord, Greg Koumashian as to the term during which the Appellant could reside at the Premises being: "for as long as you live or wish to stay" were insufficiently certain to constitute the grant of tenancy for life;
2.5 further, in deciding that agreements between a landlord and a tenant on 9 March 2000 and 16 May 2001 to increase the rent payable meant that there was no prior oral fixed term residential tenancy agreement in existence."
34 Those grounds are not expressed in terms that readily mesh with the terms of section 67 of the CTTT Act. As Basten JA said in HIA Insurance Service Pty Ltd v Kostas [2009] NSWCA 292 at [86], with the agreement of Spigelman CJ and Allsop P, concerning a right of appeal cast in such terms:
"… it is not sufficient to identify some legal error attending the judgment or order of the Tribunal; rather it is necessary to identify a decision by the Tribunal on a question of law, that decision constituting the subject matter of the appeal."
35 In the words of Basten JA in HIA Insurance v Kostas, at [104], the grounds of appeal in the District Court in the present case did not pay heed to:
"… the common exhortation in the case law that an appellant identify with a degree of precision the decision with respect to a matter of law which is sought to be challenged on the appeal: see, eg, Kalokerinos [ v HIA Insurance Services Pty Ltd [2004] NSWCA 312] at [58]; Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; 72 NSWLR 674 at [3]; see also McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55; 221 CLR 646 at [18] and [20]."
36 While section 67(8) provides, "[a] reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal", it is still necessary for the Tribunal to decide a question with respect to a matter relating to the jurisdiction of the Tribunal before the right of appeal, as extended by section 67(8), is attracted. As Spigelman CJ said in HIA Insurance v Kostas, at [6], section 67(8) extends the subject matter of the appeal to include a fact-finding exercise with respect to jurisdictional facts. It has not been suggested that section 67(8) was relevant to the appeal to the District Court.
37 In HIA Insurance Service v Kostas at [130] Basten JA said:
"With respect to matters as to which the Tribunal's reasons were silent, it will be necessary for an appellant to demonstrate that there was such an issue in dispute. Once that has been demonstrated, a further question arises, namely whether the Tribunal did in fact resolve the dispute, whether it treated the disputed matter as irrelevant or whether it simply overlooked the issue. If the Tribunal overlooked the issue, there may have been a failure to accord procedural fairness or a constructive failure to exercise jurisdiction: see eg, The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; 50 CLR 228 at 242-3 (Rich, Dixon and McTiernan JJ); Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ) and [81]-[88] (Kirby J). Such error may invalidate the decision, but may not constitute a decision of the Tribunal. To find an implied decision in such circumstances is to subvert the statutory limits of the appeal …"
38 Indeed, the bringing of an appeal under section 67(1) is inconsistent with alleging jurisdictional error in the proceedings below, (unless a jurisdictional question was raised before the Tribunal and decided by it (67(8)), which was not the case here). An appeal under section 67(1) proceeds on the basis that there has been a decision of the Tribunal with respect to a matter of law, and that the appellant contends that that decision is wrong. In contrast, an applicant for judicial review on the basis of jurisdictional error alleges that there has been a purported decision, that in the eyes of the law is not a valid decision because a legal requirement for exercise of the Tribunal's jurisdiction has been breached. When the appeal under section 67(1) lay to the Supreme Court, it was open to a litigant dissatisfied with a decision of the Tribunal to bring proceedings under section 67(1) and in the alternative seeking relief in the nature of prerogative relief, eg Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150; (2008) 72 NSWLR 44. Now that appeals under section 67(1) lie only to the District Court, which has no jurisdiction to make orders in the nature of prerogative relief, it will be necessary for a person dissatisfied with a decision of the Tribunal to analyse carefully the reasons for dissatisfaction, as those reasons will affect the choice of the appropriate forum in which to challenge the decision.
39 Mr Barnett, counsel for the Appellant, tells us that in the District Court he took the view that:
"If … there was a failure to find a fact which was required to be found, that probably was an error of law and on that basis the appeal rights under s 67 were enlivened but at no stage did I submit her Honour could simply stop at this finding and ignore anything else. I said the error of law would have to be material to affect the outcome of the proceedings …"