Gaynor v Burns

NCAT Appeal Panel|2022-07-15|Before: Dr J, Community Association DP

Solicitors: Robert Balzola and Associates (Legal) Pty Ltd (Appellant) Respondent (Self Represented) File Number(s): 2021/00347150 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 324 Date of Decision: 05 November 2021 Before: L Andelman, Senior Member File Number(s): 2021/221260

REASONS FOR DECISION

Mr Gaynor seeks leave to appeal from the Tribunal's decision to dismiss Mr Burns's complaint of homosexual vilification on the ground that Mr Burns withdrew his application. He also seeks leave to appeal from the Tribunal's decision not to make a costs order in his favour.
Mr Gaynor's contends that the Tribunal should have dismissed Mr Burns's complaint on the basis that it was frivolous, vexatious or lacking in substance and should have awarded him the costs of his summary dismissal application.

Background

Mr Burns is a resident of New South Wales and Mr Gaynor is a resident of Queensland.
On 21 January 2021, Mr Burns lodged a complaint with the President of the NSW Anti-Discrimination Board alleging that Mr Gaynor had engaged in homosexual vilification.
Mr Burns' complaint was that Mr Gaynor had published on his Facebook page a link posted by a third party which opened a website with statements and images suggesting that male homosexuals are sick, perverted and dirty criminal paedophiles.
On 29 July 2021, the President's delegate decided to refer Mr Burns' complaint to the Tribunal under s 93C of the Anti-Discrimination Act 1977 (NSW) (the "AD Act").
On 26 August 2021, Mr Gaynor applied to the Tribunal for a dismissal of Mr Burns' complaint and for costs. On the same day, the Tribunal's registry emailed Mr Gaynor's solicitor, stating that the application would be dealt with on 8 September 2021. Mr Gaynor filed an affidavit in support of his dismissal application on 31 August 2021.
Mr Burns emailed the Tribunal on 1 September 2021 informing it that he wished to discontinue the proceedings.
On 2 September 2021, the Tribunal sent Mr Gaynor's solicitor an email informing him that Mr Burns wished to withdraw his complaint and inviting submissions.
On 6 September 2021, Mr Gaynor filed submissions opposing the withdrawal of Mr Burns' application. In those submissions, Mr Gaynor objected to the proceedings being withdrawn and contended that the proceedings were frivolous or vexatious or otherwise misconceived and should be dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") or s 102 of the AD Act. He submitted that the Tribunal had no jurisdiction to determine complaints about conduct that occurred outside New South Wales and that Mr Burns' complaint met that description. Mr Gaynor also sought an order for costs under s 60 of the NCAT Act.
On 8 September 2021, Mr Burns filed submissions in response.
On the same day, the Tribunal made directions that Mr Gaynor's summary dismissal application and Mr Burns' application to withdraw his complaint would be determined on the papers (see NCAT Act, s 50(2)).
On 13 October 2021, Mr Gaynor filed submissions in reply then, later that day, he filed replacement submissions in reply.
On 5 November 2021, the Tribunal ordered that the proceedings be dismissed under s 55(1)(a) of the NCAT Act and published reasons for its decision. Section 55(1)(a) provides that the Tribunal may dismiss proceedings if the applicant withdraws the application to which the proceedings relate.
The Tribunal, in its reasons, incorrectly stated that Mr Gaynor did not file any submissions in reply. The Tribunal referred to Mr Burns' claim that, had the proceedings continued, he would have sought leave under Part 3A of the NCAT Act to apply to an authorised court under s 34B of the NCAT Act for determination of the application, as it involves federal jurisdiction. The Tribunal also noted that both parties agreed that the application raised federal diversity issues (the parties being residents of different States).
The Tribunal found that it lacked jurisdiction to determine the substantial controversy between the parties, because the parties were residents of different States. However, it referred to Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 in which the Court of Appeal held that the Tribunal has jurisdiction to determine whether it has authority to decide an application brought before it and that it may make costs orders which are incidental to this ancillary jurisdiction.
The Tribunal found that it could not determine whether the complaint was lacking in substance under s 102 of the AD Act without assessing the merits of Mr Burns' complaint. However, it considered whether the proceedings were misconceived for the purposes of determining Mr Gaynor's application for costs. It found that they were not misconceived, having regard to Part 3A of the NCAT Act which meant that, even though the proceedings engaged federal jurisdiction, there was scope for an application to be made to a court to determine them. As for Mr Gaynor's costs application, the Tribunal was not satisfied that special circumstances warranting an award of costs existed within s 60(2) of the NCAT Act and determined to make no order as to costs.
On 30 November 2021, Mr Gaynor applied to set aside the Tribunal's decision. That application was unsuccessful.
On 7 December 2021, Mr Gaynor filed a Notice of Appeal, challenging the dismissal of the proceedings pursuant to s 55(1)(a) of the NCAT Act and the decision to make no order as to costs. He acknowledged in the Notice of Appeal that he required an extension of time of one day and applied for that extension of time.

Extension of time to appeal

Unless the Tribunal grants an extension under s 41 of the NCAT Act, an internal appeal such as this one must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later) (Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(c)). That required lodgement of the notice of appeal, on our calculation, by 3 December 2021 and it was not lodged until 7 December 2021.
Mr Burns did not oppose the Appeal Panel granting Mr Gaynor an extension of time to lodge the notice.
The relevant principles which generally inform the exercise of our discretion to extend time were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. Relevant factors to consider include length of the delay, the reason for the delay, whether the appellant has a fairly arguable case and the extent of any prejudice suffered by the respondent.
It may be inferred from Mr Burns' lack of opposition to an extension of time that he would not suffer any prejudice if time were to be extended. In addition, the delay is very short, being only a few days. In these circumstances, we have decided to extend time for the lodging of the appeal to the date of filing (being 7 December 2021) under s 41 of the NCAT Act.

Leave to appeal

An appeal from an interlocutory decision of the Tribunal may only be made with leave (NCAT Act, s 80(2)(a)).
The substantive decision the subject of the appeal is a decision dismissing the proceedings on the basis that the applicant withdrew the application to which the proceedings relate. That is, in our view, properly characterised as a decision concerning the summary dismissal of proceedings and so is on that basis an interlocutory decision (NCAT Act, s 4, paragraph (h) of definition of "interlocutory decision"). If we are wrong about this, then we consider that the decision is an "interlocutory decision" being a decision concerning "any other interlocutory issue before the Tribunal" within paragraph (i) of the definition of "interlocutory decision," as the rights of the parties have not been finally determined (see, for example, MBUZI v AGL Sales Pty Ltd [2016] FCA 1313 at [32] and NCAT Act, s 4).
A decision, other than an interlocutory decision, concerning the awarding of costs in proceedings is an ancillary decision (NCAT Act, s 4). In this case, the decision about costs was made in the course of making an interlocutory decision. In our view, the costs decision is either a decision concerning "the summary dismissal of proceedings" or a decision concerning "any other interlocutory issue before the Tribunal" and is therefore an "interlocutory decision" and not an ancillary decision (NCAT Act, s 4).
Mr Gaynor identified in his notice of appeal that he wished to appeal from the decision to determine the matter on the papers. However, no ground of appeal was directed to this order and no submissions were addressed to it. In addition, the material before us indicates that Mr Gaynor consented to that order. In those circumstances, we have not considered whether that order was affected by error.
In Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 the Appeal Panel set out the principles relevant to a grant of leave to appeal an interlocutory decision: "35 As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave."
The Appeal Panel's reference to "Collins" is a reference to Collins v Urban [2014] NSWCATAP 17, in which the Appeal Panel relevantly stated at [84]: "[84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; …"

Grounds of appeal

The notice of appeal identified the following ground of appeal: "Submissions in Reply filed 13 October 2021 were not considered by the Tribunal decision below in Burns v Gaynor [2021] NSWCATAD 324 at [17]. As a result, procedural fairness and natural justice was not achieved in the just determination of the matter before the Tribunal."
On 25 May 2022, the Appeal Panel gave the appellant leave to rely upon amended grounds of appeal lodged on 29 March 2022. Those grounds of appeal are as follows: 1. "Failure to consider a relevant consideration into account in the exercise of the power, specifically submissions of the applicant in reply; 2. Failure consider relevant facts or consider those facts at all; 3. Error of fact on the surface of the record; 4. Exercise of power for a purpose other than a purpose for which the power is conferred; 5. Exercise of a discretionary power at the best [sic: behest] of the complainant; 6. Exercise of power to consider that is so unreasonable that no reasonable person could so have exercised the power, particularly in regard to exercise of jurisdiction; 7. Exercise of power that is an abuse of power; 8. Exercise of power that is in bad faith; 9. Exercise of power in such a way that the exercise of that power is uncertain specifically in respect of jurisdiction. 10. Exercise of power that is an improper exercise of power, specifically entitling the complainant being entitled to lodge and withdraw complaints at will; and 11. Taking into account of irrelevant considerations; 12. There was no evidence or other material to justify the making of decisions, specifically the complainant's failure to [sic] any evidence of any medical issue for the duration of the decision at the material time."
The amended appeal grounds identify various error of law grounds but generally do not explain how those grounds apply to the facts of this case. A better understanding of the nature of the appeal may be gained from the appellant's written submissions. However, it is unsatisfactory for the respondent and the Tribunal to have to attempt to discern grounds from submissions, especially where the appellant is represented by counsel and the respondent is not legally represented. It is particularly unsatisfactory when the submissions do not clearly identify any grounds, as in this case.
Mr Gaynor's written submissions, filed on 16 June 2022, raised several alleged errors in the Tribunal's decision. Mr Gaynor had submitted before the Tribunal that the proceedings were misconceived because the conduct in question occurred outside of New South Wales, such that the Tribunal did not have jurisdiction. The Tribunal found that the proceedings were not misconceived, because the effect of s 34B of the NCAT Act was that an application involving federal jurisdiction could subsequently be made to a court. Mr Gaynor said that the Tribunal erred by failing to consider whether the Tribunal "would otherwise have had original jurisdiction" within s 34B(2)(c) of the NCAT Act. His point was that the Tribunal otherwise would not have had such jurisdiction because the relevant conduct occurred outside of New South Wales (and that the Tribunal should therefore have granted his summary dismissal application).
Mr Gaynor also contended, in his written submissions, that the Tribunal erred in deciding that, pursuant to s 55(1) of the NCAT Act, the proceedings are discontinued if the application withdraws the application. Mr Gaynor submitted that s 55(1) gives the Tribunal a discretionary power to dismiss proceedings when they are withdrawn, but does not give the applicant "the automatic power to withdraw proceedings and the Tribunal may choose not to dismiss them." Mr Gaynor submitted that the Appeal Panel should dismiss Mr Burns' complaint as misconceived for want of jurisdiction under the AD Act over conduct in Queensland, under s 55(1)(a) of the NCAT Act (we take him to have meant s 55(1)(b)) and s 108(1) of the AD Act.
Mr Gaynor also took issue, in his written submissions, with the Tribunal's finding that Mr Burns' claims were not frivolous. He submitted that Mr Burns did not allege any vilifying material on Mr Gaynor's Facebook page and did not provide any evidence of the contents of the web page linked to the Facebook page.
Mr Gaynor also submitted in writing that the Tribunal's failure to consider his submissions in reply should result in the appeal being upheld and for the matter to be reheard.
Finally, Mr Gaynor said that there were special circumstances warranting the award of costs under s 60 of the NCAT Act. Those circumstances were, according to his submissions, that this was the thirty-eighth complaint Mr Burns has brought against Mr Gaynor and it is one of twenty complaints that Mr Burns has withdrawn after commencing proceedings against Mr Gaynor. Mr Gaynor said that if he succeeded in the appeal, it would be because it is found that the proceeding was commenced without jurisdiction in circumstances where Mr Burns should have been aware of this due to previous proceedings in which he was involved.
Mr Gaynor did not identify, in his written submissions, any errors in the Tribunal's costs decision. It is unclear, from a reading of his written submissions, whether he was applying for his costs of the appeal, or contending that he should have been awarded costs below, or both. At the hearing of the appeal, however, Mr King, counsel for Mr Gaynor, indicated that his client was appealing the costs decision.
Mr King also informed the Appeal Panel at the appeal hearing that Mr Gaynor no longer "took the point" that there was procedural unfairness as a result of the Tribunal's mistaken understanding that Mr Gaynor had not filed reply submissions.

Was the Tribunal correct in finding that Mr Burns did not require leave to withdraw?

It appears to us from Mr Gaynor's written submissions, and from the oral submissions made on his behalf at the hearing, that one of the grounds on which Mr Gaynor seeks to appeal is that the Tribunal erred in finding that Mr Burns was entitled to withdraw his application without leave.
The Tribunal found (at [53]) that Mr Burns' withdrawal of his application effected a discontinuance. It stated: "Mr Burns is not required to justify or a give a reason to withdraw an application to the Tribunal pursuant to s 55(1)(a) of the CAT Act. Unlike r12.1 of the Uniform Civil Procedure Rules 2005 NSW, Mr Burns does not require leave of the Tribunal or consent of each other active party to discontinue the proceedings. Pursuant to s 55(1)(a) of the NCAT Act, the proceeding is discontinued if the applicant withdraws the application to which the proceedings relate."
Mr Gaynor submitted that the Tribunal erred in these comments because the power to dismiss proceedings under s 55(1) is discretionary. This was important to Mr Gaynor's argument that the tribunal should instead have dismissed the proceedings under s 55(1)(b) of the NCAT Act.
Section 55(1) of the NCAT Act provides as follows: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
The power to dismiss proceedings in the circumstances set out in s 55(1)(b) to (d) is plainly discretionary. The use of the word "may" is usually indicative of the conferral of a discretionary power. Accordingly, on its face, the power to dismiss proceedings when they are withdrawn, pursuant to s 55(1)(a) of the NCAT Act, is discretionary.
It is helpful to consider the common law when construing the power in s 55(1) of the NCAT Act and its effect on an applicant's entitlement to withdraw proceedings. In Tamsett v Conditionaire Engineering Pty Ltd [1978] 2 NSWLR 511, Lusher J referred to the common law position that a plaintiff had the right to a nonsuit at any time during the course of a trial, without the imposition of terms. In other words, there was a substantive right at common law in the plaintiff to withdraw from the proceedings at any time. His Honour found that this right had been taken away by the Supreme Court Rules 1970 (NSW) which provided at that time that leave was required for discontinuance after the pleadings had closed.
Underwood CJ discussed the plaintiff's right at common law to discontinue proceedings in Allan v Hocking (2005) 15 Tas R 234; [2006] TASSC 2 at [11]-[12]. His Honour commented that, at common law, a plaintiff was entitled to obtain a rule or order for leave to discontinue. His Honour explained that a plaintiff was entitled as of course to discontinue, even though an order of the court was required (at [12]).
The common law position might suggest that, although s 55(1)(a) of the NCAT Act apparently confers a discretion to dismiss proceedings, that provision does not affect an applicant's entitlement to withdraw the proceedings, and that the discretion is fairly limited in that the order for dismissal would generally follow as a matter of course.
The NCAT Act contains other provisions concerning the withdrawal of proceedings which assist in construing the power in s 55(1)(a) of that Act.
Section 11 of the NCAT Act provides for the appointment of occasional members. Pursuant to s 11(5), "[a] person who is appointed as an occasional member holds office as such until the proceedings in relation to which the member has been appointed as an occasional member have been finally determined, unless the person sooner vacates office." Subsection 11(6) provides: (6) The proceedings in relation to which an occasional member has been appointed as an occasional member are not finally determined for the purposes of subsection (5) until - (a) the proceedings are withdrawn by a party before the substantial merits of the proceedings are considered by the Tribunal, or (b) the proceedings are dismissed by the Tribunal (as constituted by or with the member) before the substantial merits of the proceedings are considered by the Tribunal (including, where required, the giving of reasons for the dismissal and the determination of costs), or (c) the Tribunal (as constituted by or with the member) has completed all the processes necessary to decide the substantial merits of the proceedings (including, where required, the giving of reasons for the decision and the determination of costs), whichever occurs first.
The circumstance that the withdrawal of proceedings has the effect of finally determining proceedings for the purposes of s 11(5) of the NCAT Act, and therefore of terminating the office of an occasional member, suggests that an order dismissing proceedings is not necessary for the withdrawal to have legal effect. It is consistent with the position that an applicant is generally entitled to withdraw proceedings without leave, at least before the substantial merits of the proceedings are considered.
Schedule 6 to the NCAT Act is concerned with the Guardianship Division. Clause 10 of Sch 6 provides: "[a]n application to the Tribunal for the exercise of a substantive Division function cannot be withdrawn except with the consent of the Tribunal." The express prohibition upon withdrawal of certain applications in the Guardianship Division without the Tribunal's consent also suggests that the Tribunal's consent to withdrawal is not needed unless express provision is made to that effect. In other words, that provision is consistent with construing s 55(1)(a) of the NCAT Act such that it does not impose a requirement for the Tribunal to consent to the applicant withdrawing an application before such withdrawal is effective.
Most relevantly for present purposes, item 10 of Sch 3 to the NCAT Act deals with complaints under the AD Act. Item 10(3) provides: "The Tribunal may remove or agree to the withdrawal of a complainant from proceedings if the Tribunal is satisfied that the complainant does not wish to proceed with the complaint." Before the enactment of the NCAT Act, the substance of item 10 of Sch 3 to the NCAT Act was contained in s 97 of the AD Act (which was repealed when the NCAT Act commenced). Section 97 of the AD Act was expressed to apply "despite s 67(1) of the Administrative Decisions Tribunal Act 1997" which made provision for the parties before the Tribunal.
The use of the words "may remove or agree" in item 10(3) of Sch 3 indicate that, in proceedings under the AD Act, the Tribunal has a discretion to allow a complainant to withdraw from proceedings which may only be exercised if the Tribunal "is satisfied that the complainant does not wish to proceed with the complaint." That is, it appears that a complainant may not withdraw without the Tribunal's agreement.
The rationale for this provision is not clear. It may reflect the circumstance that a complaint comes to the Tribunal as the result of a referral by the President of the Anti-Discrimination Board rather than as the result of the complainant making a direct application to the Tribunal. The legislature may have anticipated that a complainant may not wish to proceed with a complaint which has been referred (not having initiated the Tribunal proceedings). The provision is, however, not limited to the situation in which a complainant does not wish to proceed with a complaint at the time of referral.
For completeness, mention should also be made of s 102 of the AD Act which provides for the dismissal of proceedings. Section 102 provides: "The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b)."
Section 92 of the AD Act relevantly provides: 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint - (a) the President is satisfied that - (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or … (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.
Section 102 of the AD Act does not deal with the withdrawal of a complaint and does not affect the Tribunal's power to dismiss proceedings which have been withdrawn under s 55(1)(a) of the NCAT Act.
The Tribunal has considered the nature of the power to dismiss proceedings under s 55(1)(a) of the NCAT Act in a number of decisions.
In Ung v Golden Century Property Investments Pty Ltd [2018] NSWCATCD 56 at [27], the Tribunal stated that "[s]ection 55(1)(a) of the NCAT Act allows a party to unilaterally withdraw from proceedings in the Tribunal without the consent of the other party." In Khoury v The Owners - Strata Plan No 4115 [2020] NSWCATAP 241 at [22], the Appeal Panel cited that statement (made by the same member in a different decision) with apparent approval.
In Shoal Bay Developments Pty Ltd v Community Association DP 270468 [2020] NSWCATAP 115 at [55], the Appeal Panel commented that an order made under s 55(1)(a) is a "decision" coming within the definition of s 5(1)(a) of the NCAT Act, but did not accept that such a decision necessarily rendered a decision-maker functus, such that the Tribunal could not thereafter order costs.
In Sola v Yallah Project Homes Pty Ltd [2016] NSWCATAP 96 at [19], the Appeal Panel commented: The distinction between a final determination of, or judgment in, a matter following a hearing on the merits, as opposed to a withdrawal of a matter prior to any such hearing on the merits, is a familiar one, for example, in relation to the law of res judicata. The power in s 55(1)(a) of the CAT Act may also be contrasted with the powers in s 59 of the CAT Act when proceedings are settled, including powers to dismiss in those circumstances.
That was relevant in those proceedings because it supported the conclusion that a withdrawal of proceedings did not amount to an enforcement of statutory warranties (at [44]).
In Spicer v Owners Corporation SP 64558 [2016] NSWCATAP 11, the Appeal Panel remarked: "Section 55(1)(a) recognises an independent right of an applicant to withdraw proceedings and gives the Tribunal a discretionary power to make an order dismissing the proceedings to give effect to the withdrawal."
In our view, the following propositions are supported by the text of the NCAT Act and by authority: 1. In general, an applicant does not need the Tribunal's consent to withdraw the party's application to the Tribunal; 2. The withdrawal of an application does not effect the dismissal of the proceedings of itself. An order by the Tribunal is needed before the proceedings are dismissed; 3. The Tribunal's decision to dismiss proceedings on the ground of withdrawal is probably discretionary, although the circumstances in which the Tribunal, acting judicially, could refuse to exercise that discretion are very limited (and, except in circumstances where provision is made for the Tribunal to consent to withdrawal of particular proceedings, are more likely to be concerned with timing than substance); 4. Consent for a party to withdraw an application is required in certain applications in the Guardianship Division, where the Tribunal is exercising a protective jurisdiction; 5. The Tribunal has a discretion, in proceedings under the AD Act, to agree to the withdrawal of a complainant from proceedings if satisfied that the complainant does not wish to proceed with the complaint.
It follows that Mr Gaynor has a reasonably arguable case that the Tribunal erred in finding that "Mr Burns does not require leave of the Tribunal … to discontinue the proceedings" and that "[p]ursuant to s 55(1)(a) of the NCAT Act, the proceeding is discontinued if the applicant withdraws the application to which the proceedings relate."
Notwithstanding this, we are not inclined to grant him leave to appeal on this ground.
Mr Gaynor has not identified an error of principle resulting in substantial injustice. He does not disagree with the Tribunal's order dismissing the proceedings; his argument is that the proceedings should have been dismissed on a different ground. We are not persuaded that the dismissal of the proceedings on one ground rather than on another ground has caused him substantial injustice.
Mr King submitted, at the hearing, that an order summarily dismissing the proceedings on the ground that they were misconceived would give Mr Gaynor finality; it would mean that Mr Burns could not take the matter to another court on the basis that the Tribunal did not deal with the matter. Mr King did not explain how Mr Burns could take the matter to a court without coming first to the Tribunal; and it is difficult to see how he could reagitate the matters the subject of these proceedings in the Tribunal without another referral from the President of the Anti-Discrimination Board. Even if he could do so, however, we do not think this possibility is productive of substantial injustice to Mr Gaynor.
There are additional reasons why we are not inclined to grant leave to appeal on this ground.
The evidence before the Tribunal was that Mr Burns did not wish to proceed with the complaint. The email from Mr Burns, which is set out at [12] of the Tribunal's decision, said as much. The Tribunal's reasons indicate that it was satisfied that Mr Burns did not wish to proceed with the complaint within item 10(3) of Sch 3 to the NCAT Act, even though it did not refer to that provision. It made the following finding at [55]: "I find that the words used by Mr Burns on 1 and 2 September 2021 clearly indicated that he wished to discontinue wholly the above proceedings against Mr Gaynor."
Although the Tribunal did not consider whether to "agree" to the withdrawal, it would be a very unusual situation in which the Tribunal would exercise its discretion not to so agree. The discretion to agree to a withdrawal or not to do so must be exercised judicially. There is no principled basis which we can see on which the Tribunal could have decided not to agree to Mr Burns withdrawing his application in the circumstances of this case.
Accordingly, we have decided not to grant Mr Gaynor leave to appeal on this ground.
Having decided not to grant Mr Gaynor leave to appeal from the Tribunal's decision to dismiss the proceedings on the basis that they were withdrawn, Mr Gaynor's other submissions directed to his appeal from the dismissal decision fall away. We would not grant him leave to appeal on the basis of those other submissions or potential grounds.

Should Mr Gaynor be given leave to appeal the costs decision?

The next issue is whether to grant Mr Gaynor leave to appeal from the Tribunal's decision to make no order as to costs.
It is not clear from Mr Gaynor's notice of appeal, his amended appeal grounds or his submissions on what grounds he seeks to appeal the costs decision. We infer, however, that his position is that the Tribunal erred in failing to find that there were special circumstances warranting an order for costs, being that the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance (NCAT Act, s 60(3)(e)).
The general rule is that each party to proceedings in the Tribunal is to pay their own costs: NCAT Act, s 60(1). The Tribunal may award costs "only if it is satisfied that there are special circumstances warranting an award of costs": NCAT Act, s 60(2).
It is possible that the conduct the subject of Mr Burns' complaint occurred in Queensland, as Mr Gaynor claims, and that the Tribunal therefore would not "have had original jurisdiction … enabling it to determine the application" within s 34B(2)(c) of the NCAT Act (even if the parties were not residents of different States). However, the Tribunal was correct to find that it had no power to consider whether or not the relevant conduct occurred in Queensland. The issue of where the conduct occurred was, in our view, genuinely in controversy. As that was the case, and as the proceedings engaged federal jurisdiction, the hearing and determination of that issue was beyond the jurisdiction conferred on the Tribunal (see Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1; [2022] HCA 16 at [35], [46]).
There are other discretionary considerations against the grant of leave. As indicated above, the complaint was referred to the Tribunal by the President of the Anti-Discrimination Board on the basis that the complaint could not be resolved by conciliation. That was in circumstances where Mr Gaynor had sent an email to the President on 20 May 2021, refusing to respond to the complaint unless the President exercised her powers to require him to provide information or documents under s 90B of the AD Act. It is unlikely that a prompt withdrawal of the complaint by Mr Burns, in circumstances where he did not directly initiate the application to the Tribunal, would constitute special circumstances warranting an award of costs, even if the complaint was misconceived.
The circumstance that Mr Burns could have applied to the Local Court or the District Court for leave to make the application to the court, instead of to the Tribunal, pursuant to s 34B of the NCAT Act, also tells against the grant of leave to appeal from the Tribunal's decision not to make any order as to costs. The application to the Tribunal had utility insofar as it made such an application possible. Had such an application been made, the court could have granted Mr Burns leave if satisfied (inter alia) that the Tribunal would "have had original jurisdiction … enabling it to determine the application" if it were not exercising federal jurisdiction. Whilst acknowledging Mr Gaynor's position that the Tribunal would not have had such original jurisdiction, that would have been a matter for the court to determine (NCAT Act, s 34B(2)(c)).
Mr Gaynor has not identified any substantial injustice flowing to him from the decision not to make any order as to costs. The usual position is that each party to Tribunal proceedings is to pay the party's own costs. It would be a rare situation in which a failure to depart from that rule, where the rule applied, would cause a party substantial injustice.
For these reasons, we have decided not to grant Mr Gaynor leave to appeal from the Tribunal's decision to make no order as to costs.

Orders

We make the following orders: 1. The time for the appellant to lodge a Notice of Appeal is extended to 7 December 2021. 2. Leave to appeal is refused. 3. Appeal 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 25 November 2022 - Coversheet - Representation updated 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: 25 November 2022

is the later) (Civil and Administrative Tribunal Rules 2014(NSW)

(2020) 103 NSWLR 140

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