Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd

Court of Appeal (NSW)|2022-06-23|Before: White JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT: This is an application for leave to appeal from a judgment in the Common Law Division refusing leave to appeal from a decision of the Appeal Panel of NCAT in a commercial lease dispute.
The background circumstances may be outlined as follows. The applicant, Fasako Pty Ltd, is the owner of a building in Sussex Street, Sydney. In March 2017 it entered into a lease of premises known as shop 7 with the first respondent, TianyD Beauty & Hairdressing Australia Pty Ltd ("TianyD"), a beauty salon operator. The lessee's obligations under the lease were guaranteed by Yao Zhu, the second respondent and a director of the first respondent. On 13 September 2017, the first respondent served a notice of termination on the applicant on the basis that the water pumps in the building were incapable of providing the requisite flow rate for the fire sprinkler system in the premises.

Relevant legal principles

First, it is convenient to have regard to the principles governing the Tribunal's hearings. Generally, the powers and practices of the Tribunal are found in s 38 of the Tribunal Act, which relevantly provides: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. … (4) The Tribunal 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.
Secondly, it is necessary to have regard to the powers of the Appeal Panel hearing an "internal appeal" under s 80: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note - Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
In commencing its consideration of the issues before it, the Appeal Panel noted that, pursuant to s 80(2)(b), leave was required to determine facts as to the state of the building's fire safety compliance. [5] Further, such leave was only to be granted if the Panel were satisfied that "the appellant may have suffered a substantial miscarriage of justice" because the decision under appeal was not "fair and equitable" or "was against the weight of evidence". [6] The Panel held that it was appropriate to grant leave, in part because there was doubt that the Tribunal had determined the facts necessary to dispose of the issues raised by the appeal. [7] Following that ruling, which was not challenged before the primary judge, it was open to the Appeal Panel to make findings of fact on key issues, which it did. Fasako was bound by those findings. To the extent that, either before the primary judge or in this Court, Fasako sought to challenge factual findings made by the Appeal Panel, that course was foreclosed by the limited right of appeal to the Court under s 83 of the Tribunal Act.
Thirdly, as senior counsel for the respondents submitted, this Court should be cautious in granting leave to appeal from a judgment of a single judge refusing leave to appeal. In Ritson v Commissioner of Police, NSW Police Force, [8] referring to the decision of the High Court in Collins v The Queen, [9] the Court held that a decision whether or not to grant leave to appeal "is properly classed as a matter of practice and procedure". [10] The characterisation may well be correct, although the circumstances in Collins were somewhat unusual. There the High Court rejected an application by a convicted person to appear in person to seek special leave to appeal, as a party entitled to appear personally pursuant to s 78 of Judiciary Act 1903 (Cth). The High Court held that an applicant for leave was not a party for the purposes of that provision, there being no inter partes proceedings until leave (or special leave) was granted. Whether that reasoning applies to applications for leave to appeal under s 101(2) of the Supreme Court Act 1970 (NSW) may be doubted. Nevertheless, it should be accepted that "even greater caution and restraint is justified on the part of appellate courts than that which is appropriate when considering applications for leave to appeal from interlocutory decisions …." [11] The rationale behind this dictate is that articulated by Sir Frederick Jordan in In re The Will of FB Gilbert (dec). [12] As Jordan CJ stated, it is appropriate to keep a "tight rein" on interlocutory appeals in matters of practice and procedure to avoid intolerable delays in the administration of justice.
However, to adapt an expression he used in another context, there are procedural decisions and procedural decisions. Some merely regulate the conduct of proceedings properly before the court; some prevent proceedings being commenced. Similarly, there are challenges and challenges. Some challenges raise factual matters when only questions of law may be considered; others raise matters of legal principle or potential miscarriages of justice.
Fourthly, because under s 83 of the Tribunal Act an appeal from the Tribunal to the Supreme Court lies, with leave, only on a question of law, it was necessary for Fasako to frame one or more questions which it claimed to be a question or questions of law. It would be these questions which would form the subject matter of the appeal if leave were granted. [13]

Ground 1: Allowing the respondents to rely upon cl 9.3 of the lease

The first issue involved a complaint that the respondents had been allowed, before the Appeal Panel, to rely upon cl 9.3 of the lease as justifying the termination notice. The applicant's case was that cl 9.3 had not been pleaded as a basis for terminating the lease in the proceedings before the Tribunal. The only reference in the pleadings to cl 9.3 was to be found in the cross-claim pursuant to which the first respondent sought damages for breach. The applicant submitted that it had challenged before the primary judge the Appeal Panel's failure to identify and apply the correct legal principles as to when it was appropriate to permit an unpleaded defence to be raised. Further, to the extent the matter had been pleaded, the correct approach was to consider if and how it had been addressed in the course of the hearing before the Tribunal. The applicant submitted that the primary judge, like the Appeal Panel, had failed to consider how the case had been advanced by the respondents at first instance, in order to determine whether the defence could be advanced for the first time before the Appeal Panel.
First, it is convenient to set out the terms of cl 9.3: "9.3 Structural repair The Lessor must keep the Building in sound structural condition except for structural damage caused by: (a) The Lessee; or (b) Fire, storm, tempest or similar act of nature, riot or similar event following which the Lessor must, subject to its rights under cl 11, promptly repair."
Clause 11.1 provided for rent to abate if the premises were damaged "so that they cannot be used". Clause 11.3 provided that the lessor could give notice that it considered repair of the damage to be impractical or undesirable, after which either party could terminate the lease. Clause 11.4 provided that, if the lessor did not repair the damage within a reasonable time where the lessee gives notice asking it to do so, the lessee may terminate the lease.
The first ground raised in the summons in the Common Law Division was that the Appeal Panel erred by "applying the wrong test in determining whether a party ought be entitled to raise a matter on appeal on an issue that had not been advanced at first instance". Ground 2 alleged, in the alternative, that the Appeal Panel had "mis-exercised its discretion, or exercised its discretion unreasonably, in allowing the Defendants to raise a ground of appeal concerning cl 9.3 of the Lease". Whether ground 2 raised a question of law may be doubted; in any event, it turned on an assumption that the correct test (whatever that was) had been accepted but misapplied. The first ground turned on an assumption that a failure to comply with cl 9.3 had not been relied upon by the defendants at first instance. That appeared to identify a question of fact: if there were some unarticulated question of law, it was not identified the summons nor in this Court.
The primary judge commenced her reasoning by noting that the Appeal Panel had expressly identified the submission that reliance on cl 9.3 (and another matter which is no longer relevant) raised a "preliminary issue" as to whether it could be relied upon on appeal. [14]
The Appeal Panel set out the relevant principles identified in Suttor v Gundowda Pty Ltd. [15] At least in this Court, the applicant submitted that reliance on a new ground had to be affirmatively justified, because a consequence of permitting that course was to deprive the applicant of one level of appeal. Why that rendered the application of Suttor an error of law was not explained. In any event, as the primary judge noted, [16] the Appeal Panel found that the issue had been relied on below, stating: "[75] On balance, we are satisfied that cl 9.3 was relied upon by the appellants in the proceedings at first instance and was not a new matter. It was one of the terms relied upon in support of the claims in the termination notice that: (1) The tenant was 'unable to proceed with renovation works due to the building's inadequate fire services to meet the [tenant's] intended use of the premise; (2) The landlord had 'refused to comply with the lease in fulfilling its obligations in upgrading the building water pressure system so as to allow the [tenant to proceed with the renovation works'."
On its face that was a factual finding. It was not self-evidently wrong. The Tribunal, in identifying issues raised before it, stated: "[15] TianyD maintains that the pumps and sprinklers in the building were (and still are) incapable of providing the requisite flow rate service [for] the fire sprinkler system in the premises whether it be configured as per an open plan or in accordance with TianyD's intended partition fit out. This forms the basis of the right for TianyD to terminate the Lease."
The Tribunal member had set out in his reasons extensive extracts from the evidence concerning the adequacy of the water pumps for the fire sprinkler system in the premises. At [83], the Tribunal turned to the case for each party. That section commenced with the following passage: "[83] TianyD's case is based on the termination of the Lease. In her opening address Ms Fishburn put the case as follows: 'Our particular case, in its various causes of action that have been put, is simply that the termination by TianyD was an effective one… By way of summary of how our claim is structured we seek out two remedies ie that the termination be valid as well as attended costs via the Retail Leases Act… That's effectively in the area of non-disclosure and then in terms of the other causes of action we have contractual breach causes of action under the lease, in particular cl 9.1 which is the covenant as to quiet enjoyment. Also cl 9.2A which is breached, to maintain the building. Clause 9.3 which is a covenant to keep the building in sound structural condition.'" The actual submissions referring to cl 9.3 may have been scant, but it was clearly understood to be in play and the factual material on which the defendants case turned was very much to the forefront of the consideration in the Tribunal. It is not possible to infer any material question of law in the essentially factual finding, for which there was evidential support.
To suggest that the primary judge did not address the issue ignored the fact that the applicant's submissions were summarised at [59]-[74] and its submissions in reply at [83]-[87]. In summarising the respondents' submissions, reference was made to the reliance by them on cl 9.3 in their cross-claim, statements made by counsel in opening the case before the Tribunal member (including a brief transcript reference), and references in their closing submissions. The primary judge then stated: "[90] While I agree that the Termination Notice does not specifically refer to cl 9.3 of the Lease, it does refer to upgrading the [building's] water system and that Fasako has not rectified the base building fire services after being notified of the problem. The matters raised in the Termination Notice were the very matters that were central to cl 9.3 and the proceedings in NCAT. [91] As set out earlier in this judgment, the Appeal Panel made factual findings as to whether TianyD did refer to cl 9.3 of the Lease which cannot be overturned here. Fasako's Grounds of Appeal rely on a mixed question of fact and law. Before the Tribunal Member, Counsel for TianyD made an opening statement that it was entitled to terminate the Lease for breach of cl 9.3 the terms of the Termination Notice and set out what its obligations were as Lessee and the obligations of Fasako as the lessor pursuant to cl 9.3."
Although in this Court, the applicant resisted any suggestion that it had to demonstrate prejudice or practical unfairness on the part of the Appeal Panel in permitting the respondents to rely on a breach of cl 9.3, that position disregarded the statutory obligation on the Appeal Panel to determine the dispute according to "the substantial merits of the case without regard to technicalities or legal forms". [17] As the primary judge noted in the passage set out above, the termination notice expressly identified the problem with the fire system, albeit without reference to cl 9.3. If the failure to refer to cl 9.3 caused prejudice to the applicant, it should have raised that issue before the Appeal Panel and explained why that was so. In any event, none of that matters because the Appeal Panel found, as it was entitled to do, that there was no "new matter" raised with respect to cl 9.3. [18] (By contrast, it dealt with another matter which it found was a new matter and did not permit reliance upon it.)
The determination of the Appeal Panel to allow the issue to be raised to justify the termination notice involved a matter of practice and procedure: the primary judge concluded that the Appeal Panel's discretion did not miscarry. [19]
The primary judge was correct to refuse leave to appeal with respect to grounds 1 and 2 before her: the contrary is not reasonably arguable.

Ground 2: Construction of clause 9.3

The judge dealt with ground 3 before her in greater detail. The underlying factual proposition was that the evidence (including expert evidence in relation to the fire protection system and the capacity of the water pump and pipes) before the Tribunal provided a basis for concluding that the fire sprinkler system which was to operate within the leased premises could not be supported by the water pump and piping installed in the building. The question was whether that failing meant that the building was not being maintained by the lessor "in sound structural condition".
The primary judge commenced her discussion by setting out significant extracts from the evidence, particularly from the expert report on fire protection of Mr Steven Moon, who had been cross-examined, as the primary judge described it, "strenuously". [20] The evidence was set out at [98]-[103], followed by an assessment of Mr Moon's evidence by the Tribunal member. The judge then set out key passages from the submissions of the parties before the Appeal Panel, before turning to the reasoning of the Appeal Panel which was set out at significant length. This background material covered some 14 pages of the judgment. The primary judge then summarised Fasako's submissions at [108]-[134]. There was no suggestion that this was not a fair summary of its submissions. The respondents' submissions were summarised at [135]-[169]; Fasako's submissions in reply were set out at [170]-[175].
The paragraph in ground 2 in the draft notice of appeal in this Court, alleging that the primary judge "failed to address, or failed to constructively address or to respond to the Plaintiff's arguments that the Appeal Panel erred in its construction of cl 9.3..., which failure amounted to at least a denial of natural justice", was patently unsupportable. The judge considered the text of cl 9.3, and addressed two authorities which were said to bear upon the matter. In Holus Bolus Pty Ltd v The Wicko Pty Ltd [21] Nicholas J had observed that "the determination of the question whether or not, for example, amendments or alterations are of a structural nature, is largely a matter of fact and degree". Nicholas J further stated that "the questions must be determined with regard to the whole of the works to be done rather than to the component part of the works individually". [22]
The primary judge then set out an extensive extract from the reasoning of the Appeal Panel and concluded that the approach adopted by the Panel was correct. [23] Minds might differ as to whether the judge was correct in concluding that Fasako's arguments as to the proper construction of cl 9.3 were "not more than merely arguable". [24] The question was whether the applicant's construction of cl 9.3 was more than reasonably arguable; that is, did it have some real prospect of success.
In principle, the construction of a term of a lease will involve a question of law. Often there is difficulty in determining whether what is said to constitute an error is an error as to (i) the-fact finding, (ii) the statement of legal principle, or (iii) the application of the legal principle to the facts as found. As stated by Mason J in Hope v Bathurst City Council: [25] "Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law."
On the other hand, Mason J recognised in the same passage that, where the critical term is a word bearing its ordinary meaning and the court not unreasonably finds the term is satisfied, the finding is one of fact. In Collector of Customs v Pozzolanic Enterprises Pty Ltd [26] the Full Court of the Federal Court accepted the qualification in Hope that when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. In Collector of Customs v Agfa-Gevaert Ltd [27] after noting the propositions set out above the joint reasons stated: "Such general expositions of the law are helpful in many circumstances. But they lose a degree of their utility when, as in the present case, the phrase or term in issue is complex or the inquiry that the primary decision-maker embarked upon is not clear."
As the Appeal Panel correctly noted, the question was not whether the water pump and piping were part of the "structure" of the building, but whether an inadequate fire protection system involved a breach of an obligation to "keep the building in sound structural condition". [28] The Appeal Panel held that: "[103] … In this regard, 'sound' connotes the concept of being substantially free from flaw, defect, decay or deterioration to the extent that the building or structure is capable of adequately or safely accomplishing the purpose for which it was intended or designed."
The Appeal Panel found that a fire system complying with the relevant standards was necessary, concluding: "[106] A different interpretation of cl 9.3 would mean that if the building could not be lawfully occupied because of inadequate fire safety systems and was susceptible to structural failure in the event of fire due to non-compliance with fire safety requirements, the landlord would have no obligation to provide or repair such systems and the tenant (which itself has no obligation [to] keep the building in a sound structural condition) would have no recourse."
If an applicant for leave to appeal must rely upon a question of law arising from the judgment below, it cannot usually complain if leave is refused because no such question has been identified. In the present case, ground 3 in the court below was in the following terms: "3 The Appeal Panel erred in construing cl 9.3 of the Lease by: (a) misinterpreting, or failing to properly interpret, the Lessor's obligations under cl 9.3; (b) incorrectly identifying the nature and extent of the Lessor's obligations under cl 9.3; (c) failing to interpret cl 9.3 in a manner which would give effect to cl 9.3(b); (d) imposing obligations on the Lessor falling beyond the terms of cl 9.3; and (e) finding, based on its incorrect construction of cl 9.3, that cl 9.3 was breached in 2017."
Ground 4 separately asserted: "4 The Appeal Panel erred by making findings, in the absence of any evidence that (a) the premises could not lawfully be occupied… by reason of it having a defective fire safety system (at [127]); (b) the building was structurally unsound by reason of it having a defective fire safety system (at [127]); … and (d) there was an obligation on the Lessor to carry out work in order to render the building structurally sound …."
For the purposes of construing cl 9.3 (ground 3), it may be accepted that the critical findings of fact were those challenged in ground 4. However, nowhere did Fasako spell out the implications of those findings for its construction of cl 9.3. Did it submit that there was no breach of an obligation to keep the building in a structurally sound condition if it could not lawfully be occupied? Was the building structurally sound for the purposes of cl 9.3 if it had a defective fire safety system? Was there no obligation on the lessor to carry out work to render the building structurally sound?
To determine whether a notice of appeal raises a question of law warranting leave to appeal, two propositions must be established. First, the question of law must be identified with precision; secondly, the point of departure in the decision below must be identified, otherwise it cannot be said that the question of law raises a material matter for determination on the appeal. Neither of these steps was taken in the present case.
In this Court, ground 2 had four limbs. The last, par (d), involved a challenge to a finding of fact and may be put to one side. The first, par (a), was that the primary judge failed to address or respond to the applicant's arguments that the Appeal Panel had erred. As noted above, the judge set out those arguments in detail and the passages in the Appeal Panel's reasons to which the arguments related. She then adopted those reasons, finding that there was no reasonably arguable case that the Panel had erred in relation to those matters. Failure to agree with the applicant's complaints did not involve a failure to respond to them. Whether there was, separately, a "constructive" failure to respond was not articulated in the grounds of appeal, nor in the submissions filed on the application to this Court, other than with respect to the other three matters which should now be addressed.
Particulars (b) and (c) complained about the failure of the primary judge to consider "the connection between the pumps and the building". This issue was addressed in the judge's summary of Fasako's submissions at [112]-[121]. The submissions included reference to a number of cases dealing with similar terms in contracts or regulatory instruments. Beyond that, Fasako submitted that the distinction between "structural and decorative repairs did not provide assistance and that there were six factors which should have been addressed but were not". It is difficult, if not impossible, to extract from these submissions a pithy statement of the question of law on which the Appeal Panel and the primary judge erred.
If the primary judge had commenced her consideration with the statement that "many of the propositions presented by Fasako were at best of peripheral relevance to the issue to be determined", there could have been no complaint. Yet that was implicit in the first sentence of the judge's consideration of the submissions: "[178] Returning to the text of cl 9.3 of the Lease, it states that the Lessor must keep the building in sound structural condition except for structural damage caused… which the Lessor must, subject to its rights under cl 11, promptly repair."
The question is not what is the connection between the physical elements of a fire protection system, being the pumps and piping, and the physical structure of the building; rather, it is the connection between the function of the fire protection system and the integrity of the building. The latter question was addressed by the Appeal Panel and the primary judge.
The applicant failed to identify any question of law on which the primary judge or the Appeal Panel erred in resolving that question. The specific grounds were properly rejected by the judge. Whether a case could have been made out that there was a reasonably arguable error of law involved in that rejection need not be pursued. Even if, in some innominate fashion, the primary judge underestimated the strength of the applicant's submissions, which were properly to be assessed as more than reasonably arguable, it has not been demonstrated to this Court that such an error would warrant a grant of leave to appeal.
Nevertheless, the proposition that the Appeal Panel erred on a question of law in its construction of cl 9.3, even if arguable, is unlikely to be upheld if leave to appeal were granted. It would therefore be inappropriate for this Court to grant leave to appeal from the judgment of the primary judge in this respect.

Findings in the absence of evidence

Aspects of ground 2 in the draft notice of appeal, providing particulars in relation to the challenge to the construction of cl 9.3, asserted that there was no evidence "as to the connection between the pumps and the structure of the building", and no evidence as to the internal "usability" or "lawful use" of the building. Further, ground 3 in the draft notice of appeal asserted that there was no evidence to support certain further findings set out in Fasako at [234]. This paragraph claimed absence of evidence to support findings both mirroring and extending those identified as particulars of ground 2 above. In particular, the findings in question were identified by the primary judge in the following passage: "[188] This ground of appeal is that the Appeal Panel erred by making findings, in the absence of any evidence, that: (1) the Premises could not lawfully be occupied at the commencement of the Lease by reason of it having a defective fire safety system (APD at [127]); (2) the Building was structurally unsound by reason of it having a defective fire safety system (APD at [127]); (3) baffles were required to be installed prior to or by the commencement of the Lease (APD at [130]); and (4) there was an obligation on Fasako to carry out work in order to render the Building structurally sound which existed at the commencement of the Lease (APD at [131])." [29]
Again, the primary judge set out the submissions of the parties at length at [189]-[233]. In resolving the complaint, the judge noted that she had already set out aspects of Mr Moon's evidence and the fire reports. That material was set out in dealing with the alleged error in construing cl 9.3 and has been noted above. The judge was satisfied therefore that there was evidence to support the factual findings which Fasako "impugned", and then identified specifically the factual challenges referred to at [188], set out above.
Nothing was said in this Court which demonstrated an arguable error as to that conclusion. The fact that evidence going to a particular issue was disputed did not mean that there was "no evidence" to support the factual issue unless all of the disputed evidence was rejected and there was no other material upon which to support the finding. There was no suggestion that that situation arose in this case. Ground 3 in the draft notice of appeal lacked substance. It provided no basis for a grant of leave to appeal.

Ground 4: Repudiation and termination

The allegation in ground 4 in the draft notice of appeal is that, in dismissing ground 5 of the appeal before her, the primary judge did no more than repeat the findings of the Appeal Panel, thereby repeating the errors she had made under the previous ground and failing to address Fasako's arguments.
Ground 5 before the primary judge was an allegation that the Appeal Panel had erred "in finding that [Fasako's] conduct in not upgrading the water pump was a significantly serious breach of an innominate term so as to entitle [TianyD] to terminate the lease". [30] The primary judge dealt with this issue first by setting out the relevant passages from the reasons of the Appeal Panel. [31] The judge then identified Fasako's submissions before her, at [238]-[245].
It is not necessary to repeat the submissions which were said to have been disregarded. The primary judge identified five specific reasons for alleging error on the part of the Appeal Panel which, except to the extent that they relied upon an alleged error in construing cl 9.3 and in concluding that the shop was unable to be "lawfully used", involved a challenge to factual findings. The judge dealt with these matters in the following passage: "[252] Once again, Fasako submitted that the Appeal Panel erred in law in its construction of cl 9.3 of the Lease. Both parties' submissions are repetitive and I have already addressed most of them under the earlier grounds of appeal. I need not repeat them here. Fasako submitted that the Appeal Panel was in error when it stated 'in our view, the facts prove that prior to the Termination Notice being issued there was a persistent failure of the landlord to comply with its obligations under cl 9.3' [APD 146]. In my view, there was factual evidence referred to by the Appeal Panel to support the findings that prior to the Termination Notice being issued there was a persistent failure of Fasako to comply with its obligations under cl 9.3. Particularly as at the commencement of the Lease, the sprinklers and water pumps were non-compliant."
The judge accepted that Fasako's arguments may have been reasonably arguable, but no more. [32]
It is not correct to say that the primary judge merely repeated the findings of the Appeal Panel. The Appeal Panel dealt with the same arguments which had been put to the primary judge and rejected them. If the primary judge agreed with the reasoning of the Appeal Panel she was entitled to set it out and say that she agreed with it. If there were errors of law in the reasoning of the Appeal Panel, that would affect the reasoning of the primary judge. However, if there were no reasonably arguable basis for saying that the Appeal Panel was wrong, then neither was the primary judge. There was certainly no error of law in referring to the applicant's arguments and rejecting them for the reasons given by the Appeal Panel, which the primary judge not only identified but repeated.

Conclusion

It follows that the application for leave to appeal should be refused with costs.
Two further observations are in order. First, the materials prepared for the leave application included some 2,300 pages. Given the nature of the proceedings in this Court, the Court was appropriately taken to the pleadings, the two decisions in the Tribunal and the judgment in the Common Law Division. During oral submissions the Court was taken to a handful of other pages, such as parts of the submissions before the senior member and the Appeal Panel. But most of the material was entirely unnecessary.
Secondly, the grounds of appeal in this Court purported to identify errors on the part of the primary judge in terms which were incapable of being substantiated, having regard to the careful and detailed judgment of Harrison AsJ. Greater care should have been taken to confine the grounds to that which had some basis of support in the relevant materials.

Orders

The Court makes the following orders: 1. Dismiss the application for leave to appeal from the judgment in the Common Law Division. 2. Order that the applicant pay the costs of the respondents in this Court.

Endnotes

TianyD Beauty & Hairdressing Australia Pty Ltd v Fasako Pty Ltd [2020] NSWCATAP 184 ("Appeal Panel decision").
Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd [2022] NSWSC 49 ("Fasako").
Sanofi v Parke Davis Pty Ltd [No 1] (1982) 149 CLR 147 at 153; [1982] HCA 9.
Fasako at [256].
Appeal Panel decision at [60].
Tribunal Act, Sch 4, cl 12.
Appeal Panel decision at [63]-[67].
[2020] NSWCA 5.
(1975) 133 CLR 120 at 122; [1975] HCA 60.
Ritson at [14].
Ritson at [14].
(1946) 46 SR (NSW) 318.
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22] and cases there cited.
Appeal Panel decision, at [68] and [73]; Fasako at [57].
(1950) 81 CLR 418 at 438; [1950] HCA 35; Appeal Panel decision at [70].
Fasako at [58].
Tribunal Act, s 38(4).
Appeal Panel decision at [75].
Fasako at [94].
Fasako at [97].
[2012] NSWSC 497 at [32].
Fasako at [180].
Fasako at [182].
Fasako at [187].
(1980) 144 CLR 1 at 7; [1980] HCA 16.
(1993) 43 FCR 280 at 287; [1993] FCA 456.
(1996) 186 CLR 389 at 396; [1996] HCA 36.
Appeal Panel decision at [102].
The abbreviation "APD" referred to the Appeal Panel decision.
Fasako at [236].
Fasako at [237]; Appeal Panel decision at [132]-[151].
Fasako at [255]. 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: 01 July 2022

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