Hawken v J Emery Investments Pty Ltd

1. On 14 May 2025, the respondent (JEI) filed an application in the CCD, seeking to terminate a residential tenancy agreement, and obtain an order for payment of money against the appellant Mr Hawken (the CCD proceedings). Mr Hawken denies the existence of a residential tenancy agreement and says the Tribunal lacked jurisdiction to determine the dispute under the Residential Tenancies Act 2010 (NSW) (the RT Act).
2. By order of 28 May 2025, the Tribunal granted leave for JEI to be represented by a firm of solicitors, "Hunt & Hunt Lawyers".
3. On 12 June 2025, Mr Hawken lodged an application to set aside the order made on 28 May 2025.
4. Directions were made on 20 June 2025 for the preparation of that application for hearing, with the express notation by Principal Member de Jersey: "The only matter to be determined is the order regarding legal representation".
5. On 1 July 2025, the Tribunal set aside its order of 28 May 2025, and made an order granting leave for "each of the applicant, J Emery Investments Pty Ltd, and the respondent, Daniel Hawken, to be represented by an Australian legal practitioner". The latter order is the subject of this appeal. Mr Hawken had sought leave to be represented by a person who is not an Australian legal practitioner.
6. Mr Hawken's application for a stay of the interlocutory order the subject of this appeal was listed before the Appeal Panel on 22 August 2025 and 26 August 2025, before Principal Member Blake AM SC. Orders were made dismissing the stay application and were accompanied by written reasons: Hawken v J Emery Investments Pty Ltd [2025] NSWCATAP (Unreported, 26 August 2025) at [21]) (Hawken 1).
7. The CCD proceedings were determined after a hearing on 12 September 2025, by orders made by General Member Smith on 23 October 2025. JEI was successful, obtaining orders for termination, possession and payment of unpaid rent (23 October CCD orders). The Tribunal determined that it did in fact have jurisdiction, and in so doing disposed of the CCD proceedings.
8. After the 23 October CCD orders were made, the appellant filed a separate appeal against those substantive orders. That appeal was dismissed by the Appeal Panel on 8 December 2025. The reason given in the notice of order was that "the appellant failed to appear".
9. The appearance of Mr de Robillard in this appeal is limited to the particular circumstances of this appeal and has no bearing on any other application in any other proceedings under s 45 of the NCAT Act.

1. A decision concerning the granting of leave for a person to represent a party to proceedings is an interlocutory decision of the Tribunal: paragraph (h1) of the definition of "interlocutory decision" in s 4(1) of the NCAT Act. Appeals from interlocutory decisions may only be made with the leave of the Tribunal: NCAT Act s 80(2)(a).
2. The principles governing an application for leave to appeal under the NCAT Act are well‑established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. In summary, it would ordinarily only be appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear.
3. However, even if any of these factors are present, there must also be utility to the granting of leave to appeal: Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 at [86] citing Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 (Kassam) at [27]-[28]; NSW Land and Housing Corporation v Simeon [2021] NSWSC 325 at [7].

1. The notice of appeal sets out three grounds of appeal. These were repeated in full in Hawken 1 and it is not necessary to repeat them here. In summary the grounds of appeal are:

(1) Ground 1 - Jurisdictional Error - The Tribunal lacked jurisdiction to hear and determine the application brought by the respondent.

(2) Ground 2- No Legal Liability for Rent Arrears - The appellant had no legal obligation to pay rent in the amount of $50,000 per annum as alleged.

(3) Ground 3 - The conduct and orders of General Member Koch have resulted in a miscarriage of justice and are liable to undermine public confidence in the integrity and impartiality of the Tribunal.

1. The notice of appeal states that Mr Hawken seeks seven orders. These are also set out in full in Hawken 1 and we have not repeated them here. At the hearing of the appeal, the appellant clarified that the only orders pressed on appeal were orders 1 and 2: that is, (1) the order granting leave to the parties to be legally represented be stayed; and (2) the order granting leave for legal representation be set aside.

1. The utility of this appeal was raised squarely by the respondent at the hearing. The respondent argued that this appeal has no utility and that leave should not be granted to hear a futile appeal.
2. As the Appeal Panel said in Solaris v Health Care Complaints Commission [2025] NSWCATAP 290 at [17]: "neither the Tribunal at first instance, nor the appeal panel should entertain appeals that have no practical consequences for the parties".
3. In Joiner v Commissioner of Police (NSW) [2023] NSWCATAP 254 at [28], the Appeal Panel observed:

"... generally an Appeal Panel should not entertain an appeal if it concerns questions which have no foreseeable consequences for the parties: New South Wales Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 and Secretary of Communities and Justice v Feaney [2021] NSWCATAP 139 at [26]."

1. As noted in the chronology above, the CCD proceedings had been determined by the time of the present hearing, by the 23 October CCD orders. Those orders were the subject of a separate appeal to the Appeal Panel. It is apparent that a successful appeal in the present appeal proceeding, which would purport to have the effect of staying or setting aside the order granting the parties leave to be legally represented, serves no obvious purpose. Even if this appeal was to succeed, there would be nothing to remit back to the Tribunal for redetermination.
2. To be clear, there is no longer a controversy between the parties which can be practically served by determining the present appeal. The CCD proceedings have concluded, and a determination has been made that the Tribunal had jurisdiction to hear the matter under the RT Act. To the extent a controversy might continue to exist in relation to that decision, that was pursued in a fresh appeal against the 23 October CCD orders. That appeal, if it had proceeded to a final hearing, would have had the benefit of evidential findings from a full hearing in relation to jurisdiction, which the present appeal does not.
3. We understand the position of the appellant to be that despite the CCD proceedings having been determined finally, the determination of the present appeal would nonetheless have utility because our decision would clarify the limits of the Tribunal to make "interlocutory decisions" when asked to grant leave for legal representation, in the context of "ancillary decisions" about its jurisdiction to make the orders sought. That is, whether the Tribunal can make an interlocutory decision, such as a decision about leave to be represented, prior to the Tribunal making a determination about its jurisdiction.
4. We reject this submission. As the Court of Appeal held in Kassam:

... to grant leave in a case where there would be no utility in doing so scarcely facilitates "the just, quick and cheap resolution of the real issues in the proceedings" cf. Civil Procedure Act 2005 (NSW) s 56. Moreover, scarce judicial resources should not be deployed in resolving proceedings whose utility is either wholly lacking or extremely limited: see, for example, Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438 at [16].

Utility is, moreover, not to be measured by the interest that may lie in the particular answer of a court of a particular status on a question or questions in circumstances where any answer it gives will have no practical effect as between the parties, or at all. It is not the role of this Court to give advisory opinions on what may have become hypothetical questions. In Bass v Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9 at [47], the plurality of the High Court noted that:

"Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude." (footnote omitted).

1. In any event, the question posed by the appellant was addressed and disposed of in Hawken 1 where Principal Member Blake concluded at [21] that "there is no arguable basis for the argument that the Tribunal lacked jurisdiction to make an interlocutory order as to the determination of legal representation". In Wilson v Chan & Naylor Paramatta Pty Limited (2020) NSWCA 213 at [17] the Court of Appeal by majority determined that the Tribunal has power to determine costs relating to an argument as to its jurisdiction, which is an ancillary decision within the meaning of that expression in s 4(1) of the NCAT Act. Principal Member Blake held that this is analogous to the making of an interlocutory order (such as with regard to the determination of legal representation), prior to the determination of whether the Tribunal has jurisdiction to determine the substantive dispute. Such an interlocutory decision involves no determination of the rights of a party under the impugned source of jurisdiction, in the present case the RT Act.
2. We acknowledge that the first two orders sought in the notice of appeal and pressed on appeal were not necessarily moot from the outset. Whilst the merit of the appeal was dubious, a successful appeal could have resulted in meaningful orders which revoked legal representation to the parties, had there been no final hearing resulting in the 23 October CCD orders.
3. We do not however accept that the appeal had utility at the date of the hearing of the appeal because no orders we might make would affect the rights and interests of the parties. All rights and interests of the parties in this appeal were determined by the making of the 23 October CCD orders.
4. To the extent that the Tribunal has a discretion to hear matters which are otherwise moot, that discretion should be exercised sparingly if not rarely. Circumstances where that discretion might be exercised include where there is a live issue of costs and the resolution of an appeal on its merits might determine that issue, the appeal raises an important question of principle with ramifications for other cases, or the appeal has been brought in the public interest: New South Wales Police Force v Parish [2025] NSWCATAP 180 at [52]. None of these scenarios apply in the present case.
5. For all of these reasons the appeal has no utility and leave to appeal must therefore be refused.

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.