(e) are the powers of the appellate court limited to a remittal to the tribunal in the case of material legal error?
63 As a number of the cases discussed in B & L Linings demonstrate, the answers to these questions may require consideration of the broader context in which the statutory right of appeal is conferred: see also authorities referred to in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 at [150] and [159]. For example, this may include reference to the power conferred on the court hearing the appeal. It may also require reference to procedural provisions which give colour to the context. Thus, in relation to an appeal under the GREAT Act, s 55 provides that the appeal shall be made "within 21 days after the date of the Tribunal's decision on the question of law the subject of the appeal …". Such a provision might be thought to give weight to the view that the decision was either a final decision or one separately identified by the Tribunal as involving a question of law. However, although there is some vacillation in the jurisprudence in this Court on the question, it has now been broadly accepted that, in the words of Sheller JA in Clisdell v Commissioner of Police (1993) 31 NSWLR 555 at 559C (Handley and Cripps JJA agreeing):
"It seems to me, therefore, that 'decision' in s 54 is used to include an opinion of the Tribunal on a question of law upon which its action or decision, as generally understood, is based."
64 The reference by Sheller JA to an action or decision "as generally understood" was a reference to the view that an appeal from a decision is a challenge to a final or operative decision or order, being an act adversely affecting rights claimed by the appellant. The idea that a decision may be based on an answer to a particular question of law does not necessarily mean that the tribunal itself must have expressly so identified the question.
65 In Totalisator Agency Board (NSW) v Casey (1994) 54 IR 354 Kirby P took what appears to have been a restrictive view of the subject matter of an appeal under s 54 of the GREAT Act, as determined by Clisdell and earlier authorities: at 359. It was not, however, a matter on which the other members of the Court (Priestley and Meagher JJA) commented as they found the only possible basis of challenge was a claim of procedural unfairness and that had not been made out on the facts.
66 Some five weeks later, the Court handed down judgment in Wijesuriya v Director-General, Department of Conservation and Land Management (1994) 54 IR 384. The Court was constituted by Kirby P, Clarke and Handley JJA. Relevantly for present purposes, the Court was unanimous as to the appropriate orders, but each member of the Court gave separate reasons. In the course of his reasons, Kirby P stated at 385:
"The appeal to this Court from the Tribunal is limited to an appeal on matters of law. Moreover, the appeal must be, as the Act provides, 'against the decision of the Tribunal on a question of law'. That phrase has been given a narrow construction in this Court. Effectively, it has been held that the Tribunal must identify a question of law and decide it as such. See Metropolitan Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720 at 724; Clisdell v Commissioner of Police (1993) 31 NSWLR 555 at 558; 52 IR 395 at 397; and Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354 …. Thus, it is not enough that a question of law may arise in the course of the Tribunal's deliberations and its determination of an appeal. It is necessary that the Tribunal should have made a decision on a question of law which the appellant wishes to challenge in this Court."
67 The other members of the Court confined themselves to upholding the appeal on the basis that the Tribunal had asked itself a legally wrong question.
68 The Court returned to the construction of s 54 in August 1995 in Commissioner of Police v Donlan [1995] NSWCA 468. In that case, Clarke JA, with whom Handley JA agreed, noted that Samuels JA in Histon had concluded that a decision was not limited to the final or operative order of the Tribunal and included "any decision of the Tribunal which is a decision on a question of law". His Honour identified Hutley JA as in agreement with that view: at [11]. His Honour then noted the submission that "an appeal only lies when the Tribunal expressly refers to a question of law which it proceeds to determine". His Honour identified the high point of that submission as the judgment of Kirby P in Wijesuriya. After reference to the reasons of Handley JA in that case and the judgment of Sheller JA in Clisdell, Clarke JA concluded at [14]:
"Accordingly, I would reject the submission that it is necessary for GREAT expressly to identify a point of law and then furnish its answer to that point before an appeal will lie under s 54. In my opinion the section, properly construed, enables an appellant to appeal against the decision of GREAT whenever an error of law, as explained in Azzopardi , is raised. That will occur, as I have previously indicated, where the Tribunal has asked itself the wrong question."
69 The reference in Donlan to Azzopardi was a reference to the reasoning of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156:
"A finding of fact … may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself, i.e., has defined otherwise than in accordance with law the question of fact which he has to answer."
70 The approach accepted in Donlan is consistent with that adopted in relation to other provisions having structural similarity to s 54. Thus, under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) a right of appeal is conferred where the Tribunal "decides a question with respect to a matter of law". The structural similarity is that the phrase "question of law" qualifies the decision of the Tribunal and not the appeal: see also, with respect to s 57(1) of the Land and Environment Court Act 1979 (NSW), ISPT Pty Ltd v Valuer General [2009] NSWCA 31, at [3] (Allsop P). In that context, the Court held in Grygiel v Baine [2005] NSWCA 218 at [29], after referring to authority that an appeal was permitted from interlocutory decisions of the Tribunal:
"Further, as the judgment of Bryson JA in Kalokerinos [ v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [38]-[58]] demonstrates, the terms of s 67(1) require that an appellant must identify with precision a decision of the Tribunal with respect to a matter of law, in order to invoke the jurisdiction of the Court. It is not necessary that the matter of law be separately identified by the Tribunal and expressly addressed as such: it is sufficient that the Tribunal reaches a conclusion with respect to some matter which requires for its determination the identification of a relevant matter of law and that error is alleged with respect to that matter of law. However, as noted by Handley JA … in Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [61]:
'It does seem clear, on any view, that the section prevents a new point of law being taken for the first time on appeal.'"
71 It seems well-established that this approach is the appropriate approach to be adopted in respect of the appeal available under s 54. That approach is relevant to the determination of the present appeal. The issue raised during argument was whether questions as to errors with respect to relevant and irrelevant considerations fell within the terms of the statutory appeal. Because such questions involve assessment of the proper scope of the Tribunal's power and jurisdiction, there is an implicit decision on a question of law with respect to any consideration which is deemed relevant or irrelevant. Such a conclusion involves the view that a consideration is mandatory (relevant) or prohibited (irrelevant) as a matter of law. It follows that it was not necessary for the Director-General to invoke the judicial review jurisdiction of this Court in order to present such arguments.
72 The other matter raised in respect of the scope of the appeal was the claim by the Director-General that there had been a denial of procedural fairness in respect of the order that the respondent be reinstated "on probation". In an early decision under the Act, Connelly v Department of Local Government (1985) 11 IR 362, Hope JA (Glass and McHugh JJA agreeing) discussed the circumstances in which the refusal of an adjournment could amount to an error of law. His Honour stated at 365:
"There is firstly the case where there is no material before the Tribunal which would justify the granting of an adjournment. At the other end of the spectrum there is the position where, to deny the granting of the adjournment, would in the circumstances amount to a denial of natural justice and thus an error of law."
73 Hope JA did not expressly suggest that such an error was one which would fall within the statutory appeal and the remarks of Glass JA (at 366) may be seen as supporting a contrary approach. The issue was not dealt with expressly, no doubt because the appellant, at the suggestion of the Court, had applied at the outset of the hearing for orders in the nature of prerogative relief: at 362.
74 In the course of his judgment in Totalisator Agency Board v Casey, Kirby P expressed the view that a failure to accord procedural fairness involved an error of law, but not one coming within the statutory appeal provisions as identified in Clisdell: at 359.
75 There is something to be said for the view that, where a tribunal has exceeded the bounds of its legal authority by failing to accord procedural fairness, such an error does not constitute a decision of the tribunal on a question of law: see Seltsam at [159] and, in relation to a failure to give reasons, Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [130].
76 For reasons set out below, the Tribunal had no power to reinstate the respondent "on probation": accordingly, no question of denial of procedural fairness arises in the circumstances of the case.