Gennacker Pty Ltd trading as Homestead Holiday Park v Fontainas

Judgment (6 paragraphs)

[1]

Judgment

The defendant in these proceedings Mr. Fontainas seeks an order that this Court decline to exercise jurisdiction in the proceedings pursuant to r 12.11(1)(h) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). The basis, in short, for seeking this order is that the summons that was filed by the plaintiff on 15 July 2019 is in effect an appeal from a decision of the New South Wales Civil and Administrative Tribunal ("NCAT") comprising one person, Mr. G. J. Sarginson, Senior Member ("SM Sarginson"), dated 28 June 2019.
The defendant argued that the proper place for this appeal to be heard and determined is via an appeal panel pursuant to the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act") and that the summons filed by the plaintiff is simply an effort to "leap-frog" the proper appeal process.
I have reached the view that this is indeed what is being sought by the plaintiff in the act of filing the summons seeking leave to appeal in this Court, before having pursued its right of appeal to an appeal panel under the CAT Act.
As stated by Beech-Jones J in Allan & Ors v TriCare (Hastings) Pty Ltd & Anor [2015] NSWSC 416: [1] "… it must be emphasised that, in the ordinary course, complaints of legal or factual error on the part of NCAT decisions should be agitated by the appeal mechanisms proffered by the CAT Act, including the power conferred by s 41 of the CAT Act to allow an extension of time, prior to invoking this Court's supervisory jurisdiction."

[2]

Submissions and Decision

Initially, I formed the impression based on the oral submissions made by senior counsel for the plaintiff, that there was some subtlety of argument associated with the nature of the referral to SM Sarginson by the Appeal Panel and therefore some jurisdictional basis to argue that it was in effect not a decision of the Tribunal, but part of an already determined set of Appeal Panel proceedings and in that context there was no properly available intermediary (appeal step) before coming to this Court to appeal SM Sarginson's decision.
However it became evident that the complaint was a different one and that is that rather than of SM Sarginson focusing on answers to the specific questions that were sent to him for resolution, he: "…ignored those directions from the tribunal and repeatedly says in the published reasons it doesn't matter whether it was ambiguous or reflected the intention or what the order actually required to be done or not to be done, because I have power to pretend that that consent order never existed, and to deal with the matter ab initio as if this was a whole new application for a site agreement in accordance with s109…" arguing that rather than speedier and cheaper outcomes than litigation in other courts, this proceeding demonstrates that is not invariably the case "if indeed it is at all".
Senior counsel for the plaintiff submitted that this Court could and should exercise its discretion to bring what has been a very expensive and lengthy matter to a close quickly and efficiently, by making a final determination. He argued that it was unfair to the plaintiff to "have to go" to the expense of yet another appeal panel hearing which may be unsatisfactory and may again remit questions back for determination by a Tribunal.
Counsel for the defendant however submitted, correctly, that s 80 of the CAT Act makes it clear that an appeal from a Tribunal should be made under the machinery available under the CAT Act: 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. 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
I accept the submission made by counsel for the defendant that ss 81 and 82 of the CAT Act confirm a right of appeal to a panel on any question of law and a right to seek leave to appeal on any other ground. Clearly, pursuant to s 80(3), an appeal panel can deal with an internal appeal by way of a new hearing or admit the tender of fresh evidence if it considers that is appropriate.
Additionally, s 83(1) of the CAT Act provides that only appeals against decisions of the Appeal Panel are allowed to be made to the Supreme Court with leave and only on a question of law: 83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. (2) A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings. (3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following: (a) an order affirming, varying or setting aside the decision of the Tribunal, (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court. (4) Without limiting subsection (3), the appropriate appeal court for an appeal against a civil penalty may substitute its own decision for the decision of the Tribunal that is under appeal. (5) Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision.
As correctly submitted by the counsel for the defendant, the plaintiff is not appealing the decision of the Appeal Panel made in 2018 (although there is reference to seeking relief including setting aside consent orders that it agreed to after the Appeal Panel's determination) but is really in truth, seeking to "miss a step" as the plaintiff is unhappy with the decision of SM Sarginson, which was decided entirely in the defendant's favour.
The CAT Act is clear that the structure for disputes of this nature is by hearing before a specialist tribunal, together with appeal rights to a specialist panel.
I accept the defendant's contention that the plaintiff commenced its appeal in the wrong place and that any appeal in relation to the decision of SM Sarginson should be to the Appeal Panel pursuant to s 32 of the CAT Act.
Illustrated by a number of decisions of this court, including that of Beech-Jones J in TriCare (referred to at [3] of this judgment), this Court can, pursuant to s 34 of the CAT Act, refuse to conduct a judicial review of the decision of the Tribunal if an internal appeal or an appeal to a court could be or has been lodged against the decision.
As noted in s 34(2)(a), s 34 permits but does not require the Supreme Court to refuse to conduct a judicial review of a decision on a ground referred to in subsection (1), and pursuant to s 34(2)(b), this option does not limit any power that the Supreme Court has, apart from this section, to refuse to conduct a judicial review of a decision.
I accept the submission of counsel for the defendant that these provisions confer upon this Court a discretion to refuse to entertain judicial review proceedings where there is a provision for internal review available elsewhere.
I consider it was responsible and appropriate, for this application to be made as it has been, by way of notice of motion, early in the proceedings.
I am persuaded that I should decline to exercise jurisdiction pursuant to s 12.11(1)(h) of the UCPR, as there is an available right of appeal to a specialist panel under the CAT Act, and that should be pursued before restoring to this Court.

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Judgment (6 paragraphs)

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Legislation Cited (4)

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