Gartrell v Roth

The Appeal proceedings

1. It is appropriate to set out the procedural history of this appeal. The proceedings had a somewhat unusual commencement, in that, of the three respondents in the proceedings below, in the notice of appeal in proceedings AP 15/01097 filed 9 January 2014, only Mr Gartrell was named as an appellant.
2. Subsequently, on 9 April 2015, Mr Bannister filed an appeal (AP 15/26624). He was the only appellant named in that notice of appeal.
3. Both these proceedings were first listed for hearing before the Appeal Panel on 17 April 2015. On that occasion Mr Smith sought, and was granted, leave to appear to represent Mr Gartrell as his agent.
4. The Appeal Panel explained to Mr Gartrell and Mr Bannister that an appeal could not proceed without the involvement of all parties in the proceedings below. Logic dictates that one may be left with inconsistent decisions where the Tribunal has made an order in respect of the parties, and the Appeal Panel is being asked to reach a different conclusion in respect of only some of those parties. The respondents described this situation, in their submissions, as a "patent absurdity".
5. The proceedings were adjourned, the Appeal Panel directing that Pipeclay be joined as a party to proceedings. We note that, in any event, reg 29 of the Civil and Administrative Tribunal Rules (the Rules) provides that the parties to an internal appeal are the appellant, and any person or body (other than the appellant) who was a party to the proceedings before the Tribunal at first instance. We further note, that at this hearing Mr Bannister withdrew his separate appeal (AP 15/26624), on the basis that he would be joined as a party to this appeal.
6. The appeal was adjourned to 13 May 2015. Again, on that occasion, the matter could not proceed, principally because Pipeclay was not represented. Mr Smith advised the Tribunal that he did not have any instructions to act on behalf of Pipeclay. In addition, Mr Gartrell, who had not intended to appear, attempted to participate by his mobile telephone, and the reception was extremely poor and Mr Gartrell was unable to participate in any meaningful way.
7. At the hearing of the appeal on 23 June 2015 Mr Adams of counsel sought leave to represent Pipeclay. Mr Washington opposed that application. The Appeal Panel granted leave for Mr Adams to appear at the hearing, and indicated at the time that we would provide our reasons in writing.
8. Our reasons are as follows. Mr Washington submitted that Pipeclay's application had not been made in accordance with previous directions. That is correct. However, the history of this matter shows that the matter had been adjourned because of the failure of Pipeclay to be a party to the proceedings. Pipeclay was a necessary party and, by operation of reg 29 of the Rules, had been a party since the commencement of the appeal. Pipeclay, however, was unaware of this. Clearly, Pipeclay, a company, had to be represented by some representative, and, in circumstances where the proceedings had been adjourned twice to ensure that Pipeclay appeared, it was appropriate that Mr Adams should represent it. In all the circumstances, we considered that leave should be granted to Mr Adams to represent Pipeclay. However, we indicted at the time that his role was limited to representing Pipeclay, and not, in effect, representing the other personal appellants.

Nature of the appeal

1. The submissions filed by the parties addressed the question of whether or not leave was required for the appellants to prosecute the appeal.
2. The Act sets out the basis upon which appeals from decisions of the Consumer and Commercial Division may arise under s 80 of the Act. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other ground (s 80(2)(b)).
3. Mr Washington, who appeared for the respondents, submitted that none of the decisions made by the Tribunal was a final one, that the decision relating to the time of filing the notice of appeal should be classed as an interlocutory one, and the jurisdiction question should be classified as an ancillary one (s 4(1) of the Act). He submitted that as leave had not been sought to raise any question of fact, on both questions the only appeal is on a question of law.

Question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel considered the requirements for establishing an "error of law" giving rise to an appeal as of right. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to the following as constituting errors of law: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law has been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account a relevant (mandatory) consideration. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision was so unreasonable that no reasonable decision-maker would have made it.
2. At the commencement of the appeal hearing, Mr Smith, who appeared for Mr Gartrell, indicated that his client wished to appeal in respect of three matters, namely: 1. The issue of jurisdiction. Mr Smith indicated that this related to the money limit of the Tribunal. 2. Whether the Tribunal correctly exercised its discretion to extend time. 3. That the decision on jurisdiction was also against the weight of the evidence.
3. We are inclined to the view that the appeal in relation to the first two matters above involve questions of law, and that leave to appeal is not necessary. As to the third matter, we consider this is the jurisdiction issue expressed a different way. Again, we consider that this is question of law and that leave to appeal is not necessary.

Jurisdiction

1. The principal submission of Mr Gartrell, subsequently adopted by Mr Bannister and Pipeclay, was that: 8. The Tribunal, in the first instance, erred in finding it had jurisdiction (contrary to s 21(3) of the AT Act) to consider the matter at all, the claim being a claim in excess of its jurisdictional limit. . . . 8.3 On this basis alone, order 1, the extension of time for the making of [the] application should have been refused.
2. The submission is explained on the basis that the "claim" of the respondents was for an amount of $739,699. It is submitted that this amount substantially exceeds the jurisdiction of the Tribunal, where the jurisdictional limit for orders the Tribunal could made pursuant to the AT Act was and is $500,000.This submission must be rejected for the following reasons.
3. First, s 21(3) of the AT Act provides relevantly provides that the Tribunal must not make an order for payment of an amount that exceeds $500,000.
4. This type of limitation has been construed so as to limit the amount of monetary relief that an applicant could claim in Tribunal proceedings under the Act: see Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd [2013] NSWADT 118 (in relation to s 73(1) of the Retail Leases Act 1994); and Poat v Consumer Trader and Tenancy Tribunal [2004] NSWSC 947 and Prestige Residential Marketing Pty Limited v A & M Short Investments Pty Limited [2005] NSWSC 485 (in relation to the Consumer Claims Act 1998).
5. The effect of these authorities is that a provision of this nature is not a bar or limitation on jurisdiction; it simply prevents the Tribunal, even if a claim in excess of $500,000 is made, from making an order in excess of that amount.
6. In Brashes, the then Administrative Decisions Tribunal concluded that s 73 of the Retail Leases Act 1994 (which relevantly stated that the Tribunal had no jurisdiction to make an order in respect of a retail tenancy claim or an unconscionable conduct claim if the total of the order or orders would exceed $400,000) did not purport to limit, either expressly or by implication, the amount of monetary relief that an applicant could claim in Tribunal proceedings under the Act. The Tribunal held that s 73 imposed an upper limit on the amount that might be required to be paid, and said nothing, in its express terms, as to the amount that an applicant might claim (see par [39]).
7. In Poat v Consumer Trader and Tenancy Tribunal [2004] NSWSC 947). Master Malpass stated that s 14(3) of the Consumer Claims Act 1998 (which provided that the Tribunal had no jurisdiction to make in respect of a particular consumer claim if the order would exceed the amount prescribed by the regulations (then being $25,000)): a distinction should be drawn between lack of jurisdiction to entertain a claim and the monetary limit of the power had by the Tribunal to make an order. The Tribunal may entertain a claim in an amount that exceeds the power that it has to make an order, but it can order no more than the monetary limit on that power (in the present case, that limit is $25,000). It is open to an applicant to waive any excess.
8. To similar effect see Prestige Residential Marketing Pty Limited v A & M Short Investments Pty Limited [2005] NSWSC 485 at [15] and [16]; see further the recent decision of the Appeal Panel in IK Chemists Pty v CHOF4 Artarmon Pty Ltd [2015] NSWCATAP 144 which reviews the relevant authorities.
9. Secondly, It is to be observed that this issue, that is whether the Tribunal had jurisdiction at all, was not one of the questions stated by the Tribunal for determination as a preliminary issue. The only "jurisdictional" question posed was stated question 1, that is whether there was jurisdiction to hear and determine the application in respect of the second and third respondents, that is the guarantors of the lessee, pursuant to the AT Act.
10. The Appeal Panel raised the question whether this point had ever been taken below. Mr Washington submitted it had not, and tendered the appellant's submissions below (Exhibit 1) to support that submission. Mr Smith, who appeared as agent for Mr Gartrell, sought to file an affidavit of Mr Gartrell which, we were informed, provided evidence that Mr Gartrell raised this issue in oral submissions at some point in the proceedings before the Tribunal. This presumably was at a directions hearing as the stated questions were determined on the papers.
11. Having heard submissions, the Appeal Panel rejected the tender of Mr Gartell's affidavit. We refer to the timeline of the proceedings which we have set out above. The application was filed on 22 April 2014. Directions hearings before the Tribunal were heard on two occasions in September 2014 and November 2014, with the hearing being heard on 10 November 2014. A written decision was delivered on 5 December 2014. Mr Gartrell filed his notice of appeal on 9 January 2015. The affidavit of Mr Gartrell was served on the respondents on 22 June 2015, the night before the appeal hearing, after an an attempt to file it had apparently been made. We note that, even if it had been filed the night before the appeal hearing, it would not have been filed in accordance with previous directions of the Appeal Panel.
12. In this respect, we note that: 1. The "guiding principle" for the Act and the procedural rules is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36(1) of the Act. 2. The Tribunal must seek to give effect to the guiding principle when it exercises any power given to it by this Act or the procedural rules, or interprets any provision of this Act or the procedural rules: s 36(2) of the Act. 3. The practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: s 36(3) of the Act.
13. In those circumstances, and where there was no evidence before the Appeal Panel, either in the form of a sound recording of any of the hearings before the Tribunal, or in the form of affidavit evidence, as to what did or did not have transpire at a directions hearing, we consider that leave to file the affidavit of Mr Gartrell in the appeal proceedings should be refused.
14. Thirdly, Mr Washington submitted that Mr Gartrell's submissions to the Tribunal demonstrated that the question of jurisdiction, "generally", was not before the Tribunal. While we considered that the written submissions are not determinative of whether the point had been raised in oral submissions, we agree that a strong inference may be drawn that that precise issue was not raised.
15. Mr Adams, who appeared for Pipeclay, submitted that, essentially, jurisdiction could be raised at any time; a court or tribunal either had jurisdiction or it did not. While that principle is correct, we are not convinced that it is appropriate to be invoked in the circumstances of this appeal. That is because, what the Appeal Panel is considering is the narrower question of whether or not the Tribunal was correct in reaching the decisions it did on the stated questions. One of those questions was its jurisdiction in relation to the guarantors to the lease. There was no stated question about the Tribunal's jurisdiction generally or "at all". In those circumstances, we do not consider it appropriate to embark to determine the question of jurisdiction, generally, now.
16. For the above reasons, we do not consider that the appeal in respect of the "jurisdiction" issue should be allowed.

Whether the discretion of the Tribunal to extend time miscarried

1. Written submissions on this issue were only received from Mr Smith, on behalf of Mr Gartrell. However, we do not understand the other appellants not to be adopting those submissions.
2. Mr Gartrell advanced three main reasons in support of his proposition that the Tribunal ought not to have extended the time for the filing of the respondents' application. These reasons were: 1. The decision to extend time was unfair. 2. The Tribunal was misled as to "the real reason" for delay. 3. The Tribunal, through its case management of the proceedings allowed the adducing into evidence of confidential discussions thereby prejudicing Mr Gartrell.
3. The Tribunal considered the question of delay in commencing the proceedings at some length in its reasons at pars [30] to [40]. Whether to extend time or not is a matter in the discretion of the judicial officer. The leading authority on this issue, that is, the exercise of a judicial, or similar, discretion, has been, for many years, the decision of the High Court of Australia in House v R [1936] HCA 40. In that decision the plurality (Dixon, Evatt and McTiernan JJ) stated: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
4. Applying those principles to the materials before us, we detect no error in the Tribunal's conclusion, or in its reasoning, on its decision to extend time for the filing of the application.

Conclusion

1. For the reasons above, the appeal is dismissed.

Costs

1. At the conclusion of the hearing we reserved the question of costs, and indicated to the parties that we would give directions as to submissions on costs.
2. We direct as follows. Any application for the costs of the appeal must be filed and served, with supporting submissions, within 14 days of the date of this decision. Any opposing submissions must be filed and served within a further 14 days. Any party desiring that the question of costs should not be reserved for a decision 'on the papers', but should be the subject of a hearing, should address this matter in their submissions. Unless persuaded otherwise, the Appeal Panel will make its decision "on the papers".
3. As to the costs of the hearings of 17 April and 13 May 2015, the Appeal Panel has already received the submissions of the respondents. The Appeal Panel accepts the oral submission of Mr Washington that these costs should be determined separately from the costs of the appeal. Any submissions from the appellants in response to the respondents' submissions as to the costs of the hearings on 17 April and 13 May 2015 must be filed and served within 28 days.

Orders

1. The Appeal Panel makes the following order. 1. The appeal is dismissed. 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

Amendments 08 September 2015 - Catchwords added 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: 08 September 2015