Jurisdiction to hear the appeal
91Having found that there was not an express decision, her Honour enquired after an implicit decision of the Tribunal. The reasoning appears to have been -
(a) The Tribunal did not expressly decide "the issue of the liability of Ruban Edyp and Sonja Baumung".
(b) There were three possible explanations for the Tribunal failing to find whether Dr Edyp and Ms Baumung were liable.
(c) As the first possibility, the Tribunal may have implicitly decided that Dr Edyp and Ms Baumung were not parties to the contract. If so, it erroneously decided a question with respect to a matter of law because it was not open to it so to decide when the matter proceeded before the Tribunal on the basis that all three of Dr Edyp, Ms Baumung and Healthy Living were parties to the contract. The finding that the matter had proceeded on that basis flowed from rejection of the submission that it would have been clear to the Tribunal that the identity of the contracting parties was in issue, made under the heading of implied dealing with that issue.
(d) As the second possibility, the Tribunal may have implicitly decided that, although Dr Edyp and Ms Baumung were parties to the contract, they were not liable together with Healthy Living for breach of contract. If so, it erroneously decided a question with respect to a matter of law because the contract provided for joint and several liability.
(e) As the third possibility, the Tribunal may have implicitly decided that, although Dr Edyp and Ms Baumung were parties to the contract, it was not necessary for it to determine whether they were liable together with Healthy Living for breach of contract. If so, it erroneously decided a question with respect to a matter of law because it was necessary for the Tribunal to determine their liability.
(f) These three alternatives exhausted the possibilities. Whichever was the case, there was error in deciding a question with respect to a matter of law.
92Some of the grounds of review were not particularly apt. As to ground 1, her Honour did not decide that absence of reasoning was decision of a question with respect to a matter of law which enlivened an appeal under s 67. (I accept that the reference to absence of reasoning is rather obscure - I take her Honour to have meant that the absence of reasoning meant that she had to resort to the three possibilities). Further as to ground 1, her Honour did not decide that failure to decide the issue of the liability of Dr Edyp and Ms Baumung was itself a decision of a question with respect to a matter of law, although it underlay the third possibility. As to ground 4, the finding that the matter proceeded before the Tribunal on the basis that all three of Dr Edyp, Ms Baumung and Healthy Living were parties to the contract was part of her Honour's determination as to her jurisdiction, and it was open to her to make it for that purpose. The relevant ground of review was ground 3, understood as asserting jurisdictional error or error of law on the face of the record in finding that one or other of the three possible implicit decisions had been made.
93The submissions on behalf of Dr Edyp and Ms Baumung scarcely engaged with her Honour's reasons. It was accepted that an implicit decision of a question with respect to a matter of law would suffice. But it was submitted that the Tribunal had simply overlooked the role of Dr Edyp and Ms Baumung as contracting parties, and had not decided anything about their being parties to the contract. It was submitted that the overlooking could not be corrected by an appeal; any relief lay through asking the Chairperson to have the proceedings in the Tribunal reheard pursuant to s 68 of the Act, or through judicial review of the Tribunal's decision unless excluded by s 65 of the Act.
94A decision of a question with respect to a matter of law, as referred to in s 67(1) of the Act, may be implied or implicit and need not be express. In Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [60] Handley JA suggested that it was "arguable that the right of appeal extends to legal decisions where such a decision was necessarily made by the Tribunal but is not apparent on the face of the decision". The suggestion matured in a series of cases in this Court: Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [47] per Bryson JA, Santow JA agreeing; Chapman v Taylor [2005] NSWCA 11; (2005) Aust Contract Reports 90-206 at [33] per Hodgson JA, Beazley and Tobias JJA agreeing; Grygiel v Baine [2005] NSWCA 218 at [29] per Basten JA, Mason P agreeing; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [14] per Basten JA, Giles JA and Bergin J agreeing (on a slightly different form of words in s 90 of the Medical Practice Act 1992); Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150; (2008) 72 NSWLR 44 at [15] sqq per Tobias JA, Campbell JA agreeing, and at [42] per Campbell JA; Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; (2008) 72 NSWLR 674 at [3] per Basten JA and at [42] per Campbell JA, Hodgson JA agreeing; HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [26] per Allsop P and at [129]-[131] per Basten JA, Spigelman CJ relevantly agreeing.
95Campbell JA, Basten and Macfarlan JJA agreeing, said in Dayeian v Davidson [2010] NSWCA 42; (2010) 76 NSWLR 512 at [36] in relation to s 67(8) of the Act that "it is still necessary for the Tribunal to decide a question with respect to the jurisdiction of the Tribunal" before the right of appeal is attracted (emphasis included). The same goes for other questions with respect to a matter of law. But the availability of an implied or implicit decision was recognised in the High Court in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390.
96In Kostas v HIA Insurance Services Pty Ltd there was an issue in the Tribunal concerning service of two claims for extension of time (see in particular the reasons of French CJ at [42]-[45]). The Tribunal found that the claims had been served. Was there a decision of a question with respect to a matter of law?
97In the joint judgment of Hayne, Heydon, Crennan and Kiefel JJ their Honours said at [69] that s 67 permitted an appeal against the Tribunal's decision that there was material properly before the Tribunal which supported the conclusion that the claims had been served, and that "[t]he conclusion that there was material of that kind, necessarily implicit in making the finding that the disputed claims had been served, was a decision with respect to a question of law". They referred at [78] to service of the claims being "a necessary step in the Tribunal's reaching its conclusion that the appellants had repudiated the contract".
98Their Honours later observed that a taxonomy of the various expressions of appeal rights in some manner confined to errors of law was not useful, and (at [89]) that "[t]he language of the statute must be the relevant starting point". The language of s 67(1) requires a decision. Their Honours held that there was no evidence to support the Tribunal's finding, and that the Tribunal had made an error of law. It was accepted, then, that the Tribunal decided a question with respect to a matter of law, namely, whether there was any evidence to support the finding. Their Honours said at [91] that "[t]he Tribunal's factual finding in this case, that the builder had served the two relevant claims for extension of time, necessarily depended upon its first accepting that there was evidence to support the finding".
99French CJ, in a passage which I later set out more fully, said at [23] that the right of appeal conferred by s 67 of the Act "extends to decision which were necessary steps in the Tribunal's reasoning, whether or not made explicit by the Tribunal". His Honour referred in a footnote to cases the first of which were Kalokerinos v HIA Insurance Services Pty Ltd and Scicluna v New South Wales Land and Housing Corporation.
100The nature of an implied or implicit decision has been variously expressed: for example, one necessarily made; something which had to be decided in order to decide the proceedings; something required for the conclusion reached on a matter; something necessarily forming part of the decision-making process; and see HIA Insurance Services Pty Ltd v Kostas at [69], [78], [91] above. There has been some divergence in further expression of the nature such of a decision.
101One view is conveniently found in the reasons of Basten JA in HIA Insurance Service Pty Ltd v Kostas at [129]-[131]. His Honour referred to Handley JA's observation in Smith v Collings Homes Pty Ltd at [61] that "the section prevents a new point of law being taken for the first time on appeal". Basten JA continued -
"129 ... In other words, it is not sufficient that a particular finding be underpinned by a legal principle; for there to have been a decision of the Tribunal in respect of that principle, there must have been an issue in dispute between the parties requiring resolution by the Tribunal.
130 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 ...
131 There remains a question as to whether it is appropriate to imply in given circumstances that a particular dispute has been resolved by the Tribunal, sub silentio, because a decision expressly made necessarily involved the resolution of that disputed issue. Such a conclusion will be a matter to be established by an appellant seeking to invoke its statutory right of appeal."
102This view had previously been exposed in Kalokerinos v HIA Insurance Services Pty Ltd , in which Bryson JA had said at [47] that "[a] decision on 'a question with respect to a matter of law' in s 67(1) must be a decision on something which arose or was in issue or was debated in the proceedings; something which had to be decided in order to dispose of the proceedings ... ". Paragraph [130] of HIA Insurance Service Pty Ltd v Kostas was cited by Campbell JA in Dayeian v Davidson at [37], with apparent acceptance although in that case there was no question of existence of an issue in dispute.
103The other view can also be conveniently found in HIA Insurance Service Pty Ltd v Kostas , in Allsop P's qualifications of his agreement with the reasons of Basten JA. The President contemplated that there could be a decision on a question with respect to a matter of law although there had not been a relevant issue between the parties, saying -
"26 The second qualification is that the extent to which a decision on a question with respect to a matter of law is, and can be seen to be, implicit in a decision on the reasoning process of the Tribunal is not amenable to convenient definition. For instance, whether or not a finding is 'underpinned' by a legal question or whether an issue was in dispute, and the significance of the answers to such questions will often only be able to be illuminated with clarity by examination of the context and decision in question. For example, it would be possible for a decision to be made on a question with respect to a matter of law, even if the parties did not raise the issue. The lack of proffering of the issue by the parties may lead to other complaints, but it would not necessarily mean that a decision on a question with respect to a matter of law did not exist."
104The divergence is material to the present case. On her Honour's finding, it was common ground in the Tribunal that all three of Dr Edyp, Ms Baumung and Healthy Living were parties to the contract as owner. There was not an issue as to the parties contracting as owner, although there was an issue as to the liability of the owner. If the explanation for the orders made by the Tribunal was that the Tribunal decided that Dr Edyp and Ms Baumung were not parties to the contract, there would undoubtedly have been a denial of procedural fairness, that was not an issue presented in the Tribunal but there would have been a decision on that question. The other two possibilities considered by her Honour were also unlikely to have been issues overtly presented in the Tribunal. As will appear, nor would the question with respect to a matter of law which in my view underpinned the District Court's jurisdiction.
105Support for the view that a decision on a question with respect to a matter of law may be made although there was no overt issue can be seen in Kostas v HIA Insurance Services Pty Ltd .
106I have referred to the reasons of the plurality. There is no indication that their Honours thought it necessary that the parties had been at issue concerning whether there was any evidence to support the finding that the claims had been served, as distinct from whether on the evidence the finding should be made. What their Honours said at [78] and [91] suggests a necessary step or dependence regardless of the parties' stances. It could be that an issue over whether a finding should be made includes whether there is any evidence to support it, but their Honours must have declined to accept what Basten JA had described in HIA Insurance Services Pty Ltd v Kostas at [137] as artificiality in "suggesting that the Tribunal would ask itself whether there was evidence capable of supporting a particular factual conclusion, as opposed to whether the assertion should be accepted".
107French CJ at [59] accepted propositions one of which was, "The decision under appeal did not have to be a decision of a question expressly disputed before the Tribunal". His Honour did so "[f]or the reasons already given". I understand the relevant reasons, commencing with a reference to s 66 of the Act, to have been -
" [23] It is significant that s 66 not only provides for referral to the Supreme Court of a question which arises with respect to a matter of law but also empowers the Tribunal to decide such a question for itself. Referral logically requires formulation of a question. A decision of a question with respect to a matter of law by the Tribunal itself may be a decision of a question which it has expressly formulated, or it may be a decision implicit in a finding of the Tribunal. The right of appeal conferred by s 67 is therefore not limited to an appeal against explicit decisions of questions formulated in the proceedings. On its face it extends to decisions which were necessary steps in the Tribunal's reasoning, whether or not made explicit by the Tribunal. This construction of s 67 is compatible with the purpose, nature and composition of the Tribunal, which can be constituted by non-lawyer members. It is also compatible with a legislative scheme under which legal representation before the Tribunal will be the exception rather than the rule. The statutory objects of informality, expedition and inexpensiveness do not stop at the door of the Supreme Court." (footnote omitted)
108I respectfully prefer the view that a decision may be made on a question with respect to a matter of law although the question was not raised between the parties.
109Although the High Court did not think useful the taxonomy summarised by Basten JA in HIA Insurance Services Pty Ltd v Kostas at [84]-[87], common to the various forms of words in some manner restricting appeal to error of law is that fact-finding is for the Tribunal but legal error should be correctable. Legal error can arise when, indeed because, a question with respect to a matter of law is not raised between the parties, notwithstanding that it is necessary that it be determined for the tribunal to dispose of the proceedings before it. As French CJ indicated, absence of legal expertise in the Tribunal or the parties may mean that necessary matters of law are not recognised and not dealt with.
110Unless the particular language otherwise requires, it should not matter that the legal error lies in studied decision of an overt question, in an unexpressed false assumption or misunderstanding as to a question, or in coming to a conclusion without attention to a question which must be determined. For example, in Kostas v HIA Insurance Services Pty Ltd the Tribunal's first acceptance that there was evidence to support its finding, to which the plurality referred at [91], was necessary whether or not the Tribunal turned its mind to whether there was any supporting evidence. The language of s 67(1) does not otherwise require, and this view of it better promotes the purpose of enabling legal error to be corrected while leaving factual matters to a Tribunal which is not necessarily constituted by a person with legal training.
111When the matter proceeded before the Tribunal on the basis that all three of Dr Edyp, Ms Baumung and Healthy Living were parties to the contract, was there an erroneous decision on which the ultimate conclusion whereby Healthy Living alone was held liable to Brazbuild necessarily depended? The answer may not be obvious, and there may be more than one candidate or different ways of expressing the decision or levels at which the decision may be expressed. Once an erroneous decision has been identified, it must be asked whether it was a decision with respect to a matter of law - a factual decision will not do. This is an enquiry for the District Court, in order to ascertain its jurisdiction. It is not an unusual enquiry - a plea of issue estoppel requires an enquiry of broadly a similar kind.
112By s 67(1) of the Act an appeal may be brought by "a party ... who is dissatisfied with the decision". The dissatisfaction is part of identifying the decision against which an appeal may be brought. The dissatisfaction is found in the party's statement of the decision in the process by which the appeal is brought.
113Brazbuild stated alternative decisions, one that the Tribunal decided that Dr Edyp and Ms Baumung were not liable together with Healthy Living, and the other that the Tribunal decided that it was not necessary to determine whether Dr Edyp and Ms Baumung were liable together with Healthy Living.
114Orders made only against Healthy Living could be explained by an implicit decision that Dr Edyp and Ms Baumung were not parties to the contract. The form of the reasons and cover sheet, as if Healthy Living alone had contracted with Brazbuild and was the respondent to Brazbuild's application, could suggest that explanation. A more likely explanation is that the role of Dr Edyp and Ms Baumung as contracting parties was overlooked, when as found in the District Court the matter proceeded in the Tribunal on the basis that all three of Dr Edyp, Ms Baumung and Healthy Living were parties to the contract. The overlooking does not mean that there was not a decision; it brought the implicit decision, necessary to the ultimate conclusion, that the Tribunal had completed its task. This is equivalent to the decision as stated by Brazbuild that it was not necessary to determine whether Dr Edyp and Ms Baumung were liable together with Healthy Living.
115To the extent that there is artificiality, it is less artificial to see this as the implicit decision. The substance of the decision should be addressed, although it can be expressed in different ways. The decision was not on a matter on which the parties were at issue - it could not be suggested that one of the parties contended that the Tribunal should fail to complete the exercise of its jurisdiction to determine the controversy brought before it.
116In Goodwin v Commissioner of Police [2010] NSWCA 239 it was held that the judge had erred in law in that, having identified questions of causation as central to the claim, her Honour had decided the case without determining answers to those questions, and that "[i]n doing so, she impliedly decided that it was not necessary to give answers" (at [43] per Basten JA, McColl JA and Sackville AJA relevantly agreeing). This also could have been expressed as an implicit decision that the task of deciding the case had been completed although the questions had not been answered. In the present case there was not an equivalent identification of central questions. The liability of Dr Edyp and Ms Baumung was nonetheless manifestly a matter for determination, whether by finding whether they were contracting parties or on the common ground that they were on which her Honour found the proceedings in the Tribunal had been conducted. There was a similar decision of a question with respect to a matter of law in the present case - a failure fully to exercise the Tribunal's jurisdiction in determining the controversy. Since Kostas v HIH Insurance Services Pty Ltd if not before it, any artificiality in attributing to the Tribunal a decision not fully to exercise its jurisdiction, should be accepted.
117The decision was with respect to a matter of law. In Goodwin v Commissioner of Police the judge's error was described as "one of law, going to the jurisdiction of the Court", and the implied decision was held to be "a decision reached by the District Court on a point of law" (at [43]). The Tribunal failed fully to determine Brazbuild's application, and failed to fulfil the jurisdiction in law conferred on it and required to be exercised.
118Although for reasons rather differing from those of her Honour, therefore, the District Court had jurisdiction to hear the appeal.