Giappichello and Anr v Eakin's A-1 Pools Pty Ltd

Was the Section 68 Decision a decision which could be appealed to the Appeal Panel

1. The first question for determination is whether or not the Section 68 Decision made by a "Tribunal Member" was a valid decision and, if so, whether it was a decision which could be appealed to the Appeal Panel.
2. The Section 68 Decision was published on a document entitled "Consumer, Trader and Tenancy Tribunal, notice of order." It was signed by "Tribunal Member." The rehearing decision provided as follows: "On 2−Jan−2014 the application to the Chairperson for a rehearing of matter number HB 13/05702 was not granted as the delegate of the Chairperson was not satisfied that the applicant may have suffered a substantial injustice. The application was considered under section 68 of the Consumer, Trader & Tenancy Tribunal Act 2001 (copy attached). In considering your application the delegate of the Chairperson must be satisfied that the applicant has suffered a substantial injustice because: (a) the decision of the Tribunal in the completed proceedings was not fair and equitable, or (b) the decision of the Tribunal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the completed proceedings were being heard). Written Reasons: The rehearing applicant states that the Tribunal member refused to accept further evidence in respect of the pool cleaning issue, after the decision had been made. The evidence was a photograph retrieved from the applicant's computer. The rehearing applicants do not say why that evidence was not reasonably available to them at the initial hearing, and on this basis, I cannot be satisfied that its exclusion after a decision had been made was unreasonable, nor can I find that a rehearing should be considered on the basis that evidence which was not reasonably available at the initial hearing is now available.

APPLICATION FOR A REHEARING NOT GRANTED."

1. Section 68 of the CTTT Act allowed a party in completed proceedings to apply to the Chairperson to have the completed proceedings reheard by the Tribunal. Section 68 provided: 68 Rehearings by Tribunal (1) A party in any proceedings that have been heard and determined by the Tribunal (the completed proceedings) may, in the manner and within the time prescribed by the regulations, apply to the Chairperson to have the completed proceedings reheard by the Tribunal. (2) The grounds on which such an application may be made are that the applicant may have suffered a substantial injustice because: (a) the decision of the Tribunal in the completed proceedings was not fair and equitable, or (b) the decision of the Tribunal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the completed proceedings were being heard). (8) The Chairperson's decision whether to grant or refuse the application: (a) may be made without the need for any hearing or meeting, and (b) is not to be considered to be part of the Tribunal's proceedings, and (c) is final and not subject to review of any kind.
2. It is not in dispute in this appeal that the Chairperson could delegate the power to make a decision: see section 12(5) of the CTTT Act. Further, it was not in dispute that the Member was previously a member of the CTTT to whom (prior to the abolition of the CTTT) the Chairperson could delegate the power to make a determination under section 68 of the CTTT Act.
3. In addition to the ability to provide for a rehearing of an application determined by the CTTT, a party also had a right under the CTTT Act to appeal a decision of the Tribunal on a question of law to the District Court of NSW: see section 67 of the CTTT Act.
4. The appellants submitted that an application under section 68 of the CTTT Act was, in essence, an appeal. The appellants submitted that because 1. The Principal Decision was made on 6 December 2013, the proceedings had not been finally determined (as defined by clause 2(3)(a) of Schedule 1 of the Civil and Administrative Act 2013 (NCAT Act)); 2. there was a pending or unheard appeal proceeding (being the Section 68 Application), and 3. the Section 68 Decision made by the Member on 2 January 2014 constituted a decision of NCAT 4. there was a right of appeal.
5. The appellant initially made submissions that the decision of the Appeal Panel in NSW Land and Housing Corporation v Diab [2014] NSWCATAP 8 was authority for the proposition that there was a right of appeal. The appellants also submitted that by reason of clause 14 of Schedule 1 of the NCAT Act, the order made by the Member in the Section 68 Decision dismissing the Section 68 Application was taken to be an order of NCAT and consequently there existed a right to make an internal appeal.
6. Notwithstanding the submission concerning Diab it would appear during oral submissions the appellants conceded that Diab did not in fact deal with the issue of whether or not an appeal by way of an internal appeal to the Appeal Panel was permissible in the present circumstance.
7. At the time the present appeal was heard the appellants had not provided a copy of the decision of Toner J in the District Court of New South Wales referred to above. Apparently His Honour gave oral reasons which have not been transcribed or otherwise published. However, it would appear from submissions made by the appellants that His Honour concluded that the proceedings were pending proceedings which by reason of clause 7 of Schedule 1 of the NCAT Act could be heard and determined by NCAT.
8. The appellants did not submit that the proceedings originally commenced in the CTTT were unheard proceedings or part heard proceedings as is defined in clause 6 of Schedule 1 of the NCAT Act.
9. In the opinion of the Appeal Panel, there is no jurisdiction of the Appeal Panel to hear and determine an appeal from the Section 68 Decision for a number reasons.
10. Firstly, the power to consider and grant or refuse an application for rehearing is exercisable on application by a party "in any proceedings that have been heard and determined by the Tribunal (the completed proceedings)": see section 68(1) of the CTTT Act. The power is exercisable by the Chairperson of the CTTT. As indicated above, it is a power which can be delegated by the Chairperson and there is no dispute that the Member was delegated that power.
11. However the Member did not determine the Section 68 Application before 1 January 2014 which is the establishment day of NCAT. The Section 68 Decision was in fact made on 2 January 2014.
12. Upon the creation of NCAT; 1. the CTTT was abolished: see clause 3 of Schedule 1 NCAT Act; and 2. each current Tribunal member of the CTTT ceased to hold office on the establishment day: see clause 4(1) of schedule 1 of the NCAT Act.
13. Consequently, on and from the establishment day there ceased to be any person holding the position of Chairperson of the CTTT and, upon abolition of the CTTT, any delegation ceased to operate.
14. Therefore a Member of NCAT had no power which to make the Section 68 Decision and that decision is void.
15. The second reason why the Section 68 Decision is not an appealable decision is that any decision under section 68 of the CTTT Act is not a decision of the Tribunal. In this regard section 68(8)(b) expressly provides that the Chairperson's decision "is not to be considered to be part of the Tribunal's proceedings" and "is final and not subject to review of any kind".
16. Therefore, if the CTTT had not been abolished and the Chairperson or a delegate had made the Section 68 Decision, it was not a decision of the CTTT.
17. Thirdly, as indicated in Diab at [35] and following, a decision of NCAT is an internally appealable decision if it is a decision of the Tribunal in which the Tribunal has made a general decision. A general decision of the Tribunal is defined in section 29(3) of the NCAT Act to be: "(3) a general decision of the Tribunal is a decision of the Tribunal determining a matter of which it has general jurisdiction."
18. However, there is no jurisdiction given to NCAT in the NCAT Act or in any enabling legislation to make a determination under section 68 of the CTTT Act.
19. Consequently, the section 68 Decision is not a decision of the Tribunal in its general jurisdiction and is not a decision made by the Tribunal in proceedings for a general decision for which the Tribunal has internal appeal jurisdiction: see section 32(1)(a).
20. Therefore the Appeal Panel does not have jurisdiction to determine an internal appeal in respect of the Section 68 Decision.

Was the Principal Decision a decision that could be appealed to the Appeal Panel

1. The second question is whether or not the Appeal Panel has jurisdiction to hear an appeal from the Principal Decision of the CTTT.
2. In essence, the appellants relied on the fact that the proceedings in the CTTT were pending proceedings for the purpose of Schedule 1 of the NCAT Act. The effect of the submission appeared to rely on the proposition that the Section 68 Application was a pending proceeding that was unheard or part heard at the establishment day. Reference was made to the decision in Diab as well as the decision of the Appeal Panel in Owners Corporation Strata Plan 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 9.
3. However, on page 3 of the submissions on jurisdiction dated 18 May 2015 the appellants say: "On one view as at 6 December 2013 the original application before the Court was completed in that orders and reasons for decisions had been delivered and the Application for Rehearing does not form part of the Tribunal's proceedings pursuant to section 68(8) in that subsection (8) of section 68 says that the decision to either grant or refuse a rehearing is not considered to be part of the Tribunal's proceedings and is final and not subject to review of any kind." If that be the case and the Application to rehear is not considered "pending proceedings" then as at 1 January 2014 the applicant was still within the time to appeal to the District Court on a question of law pursuant to section 67. Clause 10 of Schedule 1 deals with unexercised rights of appeal against decisions of existing Tribunals. "unexercised right" is defined in clause 6 of schedule 1 of the new Act as a right that was available to be exercised immediately before the establishment day and had not been exercised before that day. Accepting that the Application for Rehearing does not form part of the proceedings of the Tribunal then the decision made on 6 December 2013 completed the proceedings. At that time there was an existing unexercised right of appeal pursuant to section 67 on a question of law to the District Court. Clause 10 provides that such unexercised rights (being an unexercised right pursuant to clause 10(1)(b)) may continue to be exercised if appealable to a particular court then to that court." Subsection(4) provides that the Court may continue to have and may exercise all functions it would have had if the appeal had been made prior to the commencement of the new Act and the provisions of any Act, Rule or other law that would have applied continue to apply as if the new Act had not been enacted. The preferred view it is submitted that either the Tribunal had completed all the processes necessary to decide the substantial merits in the case in that there was still an application to rehear the proceedings on foot which had the capacity to alter or impact upon the decision made on 6 December 2013 OR that the Application Rehearing is an "appeal" as provided for in the definition of Pending proceedings, that is, "proceedings (including appeals) that were instituted prior to the establishment day and not "finally determined" before that day""
4. The appellants, in part, relied upon the heading of Part 6 of the CTTT Act which Part makes provision for "Appeals and Rehearings" and submitted the Section 68 Application was an appeal.
5. Pending proceedings are defined in clause 6 of Schedule 1 of the NCAT Act to mean proceedings (including appeals) that: "(a) were instituted or commenced before the establishment day, and (b) have not been finally determined before that day by the Court or existing Tribunal in which the proceedings were instituted or commenced."
6. For the purpose of Schedule 1, clause 2(3) of Schedule 1 states that proceedings are not finally determined if: "(a) any period for bringing an appeal as a right in respect of the proceedings has not expired (ignoring any period that may be available by way of extension of time to appeal), or (b) any appeal in respect of proceedings is pending (whether or not it is an appeal brought of right)"
7. While pending proceedings includes appeals, the proceedings to which the right of appeal refers are proceedings which are to be determined "by the Court or existing Tribunal in which the proceedings were instituted or commenced": see definition in clause 6 schedule 1 of "pending proceedings" paragraph (b).
8. Whether or not an application under Section 68 of the CTTT Act should be categorised as an "appeal", for the reasons set out above it is not a proceeding to be determined by a Court or existing Tribunal.
9. On the other hand, the effect of these definitions is that the original proceedings were "pending proceedings" that had not been finally determined because the period for bringing an appeal (28 days to the District Court of New South Wales) had not expired: see clause 2(3)(a) of Schedule 1.
10. However, they were not "unheard proceedings" or "part heard proceedings" because the Tribunal had already completed the hearing and published its final reasons for decision, including on the question of costs. In this regard clause 6 of Schedule 1 of the NCAT Act provides the following definitions: "part heard proceedings means pending proceedings where the court or existing tribunal in which the proceedings were instituted or commenced had begun to hear (but had not determined) the proceedings before the establishment day …. unheard proceedings means pending proceedings that had not been heard before the establishment day by the court or existing tribunal in which the proceedings were instituted or commenced."
11. Consequently, the provisions of clause 7(1) (which relates to unheard proceedings) and clause 7 (2) (which relates to part heard proceedings) do not apply and the original proceedings are not taken: 1. "to have been duly commenced in NCAT" (for the purpose of unheard proceedings); or 2. to be part heard proceedings to be heard by a person previously constituting the CTTT who is to "continue on and from the establishment day, to hear the matter, and to determine the matter, sitting as NCAT".
12. Further, there was no unexercised right available to the appellants: 1. to apply to an existing tribunal in respect of the review of a decision of another person or body; or 2. to appeal to an existing tribunal against a decision of another person or body, 3. in connection to the Principal Decision generally: cf clause 9 of Schedule 1 of the NCAT Act.
13. While: 1. orders made by the CTTT in the Principal Decision may be orders of NCAT (see clause 14(1) of Schedule 1 of the NCAT Act; and 2. there may be a residual right to apply to NCAT to renew the original proceedings exercising an "unexercised right" being the right granted in section 43 of CTTT Act, the only right that was preserved to challenge the Principal Decision was a right to appeal to a Court pursuant to section 67 of the CTTT Act.
14. In the present case, the appeal was to the District Court of New South Wales. This right was preserved by clause 10 of the NCAT Act which provides: "10 Certain unexercised rights to appeal against decisions of existing tribunals may continue to be exercised (1) This clause applies to each of the following unexercised rights (an existing unexercised appeal right): (a) an unexercised right to appeal against a decision of the Administrative Decisions Tribunal or another tribunal or body to an Appeal Panel of that Tribunal, (b) an unexercised right to appeal against a decision of an existing tribunal to a court. (2) A person who has an existing unexercised appeal right may appeal against the decision of an existing tribunal to which that right relates: …. (b) if it was originally appealable to a particular court - to that court. Note. An appeal under this clause that would have required leave before the establishment day will still require such leave. Also, any time limits under existing law for appealing will continue to apply to appeals under this clause. See subclauses (3) and (4). ……. (4) For the purposes of an appeal made to a court under this clause: (a) the court continues to have and may exercise all the functions that the court would have had if the appeal had been made to it before the establishment day (including any functions relating to the granting of leave to appeal), and (b) the provisions of any Act, statutory rule or other law (including provisions concerning the time within which to appeal) that would have applied to or in respect of such an appeal had this Act and the relevant amending Acts not been enacted continue to apply. (5) Without limiting subclauses (3) and (4), if the original powers of an Appeal Panel of the Administrative Decisions Tribunal or a court (as the case requires) would have included the power to remit the proceedings to be heard and decided again by the existing tribunal concerned, the Appeal Panel of NCAT or court may in determining an appeal under this clause: (a) remit the proceedings instead to NCAT, and (b) make such other orders as it considers appropriate to facilitate the remitting of the proceedings to NCAT.
15. No right of appeal was otherwise granted to enable an appeal to the Appeal Panel.
16. In this regard, while Clause 14 (1) of Schedule 1 of the NCAT Act provides that the order of the CTTT "is taken, on and from the establishment day, to be an order made by NCAT under the corresponding provision of that legislation (as amended by the relevant amending Act) or (the NACT) Act ", a right of appeal is not thereby given. This is because clause 14(2) of Schedule 1 of the NCAT Act provides that the clause "is subject to the other provisions of the Schedule". Therefore rights of appeal for matters heard and determined prior to the establishment day are those provided in Schedule 1 of the NCAT Act and a decision made by the CTTT is not otherwise a general decision of NCAT in its general jurisdiction for which there is a right to make an internal appeal pursuant to section 80 of the NCAT Act. This view is supported by the language of Clause 14(1) which provides that "an existing order" of the CTTT is taken to be an order of NCAT and that Clause 14 is found in Subdivision 5- Allocation of transitional proceedings and enforcement of existing orders.
17. It follows that the Appeal Panel has no jurisdiction to hear and determine an appeal from the decision of the Consumer Trader and Tenancy Tribunal made 6 December 2013 and the appeal should be dismissed.
18. Our preliminary view is that each party should pay their own costs. This is because the appellants appealed to the Tribunal following a determination of the District Court of New South Wales to dismiss an appeal to that Court and the Appeal Panel has reached a different view on the question of its jurisdiction.
19. The parties should be given an opportunity to make any application and submissions on this matter.

Orders

1. The Appeal Panel makes the following orders: 1. Appeal dismissed; 2. Any applications for costs are to be filed and served within 14 days of the date of these reasons, such applications to include any submissions. 3. Any submissions in reply are to be filed and served within 28 days of the date of these reasons. 4. Any submissions are to also address the question of whether or not the application for costs can be dealt with on the papers.

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 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: 14 July 2015