IK Chemists Pty v CHOF4 Artarmon Pty Ltd

IK Chemists Pty v CHOF4 Artarmon Pty Ltd - [2015] NSWCATAP 144 - NSWCATAP 2015 case summary — Zoe

[4]

Notice of appeal

On 9 October 2014 the sublessee filed a notice of appeal. The orders sought were that the decision of the Tribunal be set aside and that the sublessor pay the sublessee's costs of the appeal and at first instance. The ground of appeal was that the Tribunal erred in holding that it did not have jurisdiction to determine the amended application for original decision. Five particulars of that ground were given, two of which were in these terms: (c) treating the monetary limit on the orders that the Tribunal may make under sec.73 of the RTA as a limitation on the Tribunal's jurisdiction to hear and determine retail tenancy claims lodged with the Tribunal, contrary to case law decided by the Tribunal and the New South Wales Court of Appeal; and (d) treating the "retail tenancy claim" as including a claim by CHOF4 Artarmon Pty Ltd which had not been lodged with the Tribunal.
In its reply to appeal the sublessor stated that the Tribunal was correct in its conclusion that the Tribunal did not have jurisdiction to determine the amended application for original decision, for the reasons given by the Tribunal and for seven additional reasons, one of which was that the "retail tenancy claim" includes the sublessor's demand as formulated in the Supreme Court pleadings in keeping with the definition of "retail tenancy claim" in s 70 of the Act which applies to both lodged and un-lodged demands.
Another of the additional reasons was in these terms: The (sublessor demand) which claims damages in the sum of $582,885.05 plus GST in the sum of $58,288.51 is such that orders which would be made in respect of the 'particular retail tenancy claim' for the purposes of s 73 would exceed $400,000.
One of the submissions in the detailed written submissions filed by the sublessor was in these terms: (iii) The "particular retail tenancy claim" encompasses all claims between the parties to the dispute - both the demand lodged in the Tribunal and any un-lodged claim raised by a respondent. The language of the section makes plain that the Tribunal is not confined to considering an applicant's claim in isolation - amongst other things, the reference in s 73 to the "balance of account" and any "set-off" requires the Tribunal to consider off-setting claims available to a respondent to a lodged claim. Further or in the alternative, because of the words "in respect of", the Tribunal is obliged equally to consider what claims might be made by a respondent apropos the applicant's claim."
The sublessee filed written submissions on 15 December 2014. Included in those submissions were submissions on the following three topics: 1. Jurisdiction was regularly invoked, and was not lost by the filing of proceedings elsewhere; 2. Section 73 operates upon 'a particular retail tenancy claim'; and 3. Section 73 does not prevent the Tribunal hearing and determining a claim, it only prevents certain orders being made.
The submissions set out detailed reasons on those three topics. In doing so reference was made to two decisions of the Tribunal which were said to be directly in point and a decision of the Court of Appeal which was said to support one of the sublessee's submissions namely that the prohibition in s 73 does not operate until the Tribunal is about to make final orders.
The Tribunal decisions were decisions given by Deputy President Chesterman in Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd [2013] NSWADT118 and Curcio v AMP Warringah Mall Pty Ltd [2013] NSWADT 247. The Court of Appeal decision was PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446.

[5]

Retail Leases Act 1994

Subsection 71(1) of the Act is in the following terms: A party or former party to a retail shop lease or former retail shop lease may lodge a retail tenancy claim in respect of the lease with the Tribunal for the determination of the claim.
It is agreed between the parties that the sublease between them is or was a retail shop lease.
Section 70 of the Act relevantly provides that "retail tenancy claim" means any of the following: (a) a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being: (i) a claim for payment of money (whether or not stated to be by way of debt, damages, restitution or refund), ……. (ix) claim for a declaration of the rights, obligations and liabilities of the parties under a lease.
Subsection 63(1) relevantly provides that "retail tenancy dispute" means any dispute concerning the liabilities or obligations (including any obligation to pay money) of a party or former party to a retail shop lease or former lease, being liabilities or obligations which arose under the lease or former lease.
It can therefore be seen that leaving aside for the moment s 73(1) of the Act, the application for original decision included a retail tenancy claim in respect of which the Tribunal was empowered to make a relevant order set out in s 72(1) of the Act.
Subsection 73(1) of the Act is in the following terms: (1) The Tribunal has no jurisdiction to make an order or orders in respect of a particular retail tenancy claim or an unconscionable conduct claim if the total of: (a) the amount or amounts (if any) of money to be paid, and (b) the amount or amounts (if any) of money to be declared not to be due or owing, and (c) the value or values (if any) of the work to be done or the services to be performed, under or by virtue of the order or orders would exceed $400,000 or such other amount as may be prescribed by the regulations, whether on a balance of account or after set-off or otherwise.
We are of the view that s 73 (1) makes it clear that the lack of jurisdiction of the Tribunal referred to in the subsection, is a lack of jurisdiction to make orders, for example, for money to be paid, if the amount to be paid under or by virtue of the order would exceed $400,000. It is not a lack of jurisdiction to hear a claim, for example, for money to be paid, where the money claimed exceeds $400,000.
When the application for original decision was filed in the Tribunal by the sublessee, the only retail tenancy claims upon which the Tribunal could adjudicate, were the claims made by the sublessee in the orders sought. We understand that it is agreed that if orders were made in terms of the orders sought, the total of the money to be paid by such orders would not exceed $400,000 whether on a balance of account or after set-off or otherwise.
In our view, the fact that the sublessor subsequently filed in the Supreme Court a statement of claim claiming damages against the sublessee arising out of an alleged breach by the sublessee of the sublease, did not result in the Tribunal being asked to make an order exceeding $400,000. Accordingly, in our view, the Tribunal had jurisdiction to make the orders sought by the sublessee in the application for original decision. The amended application makes no change which is relevant to this question of jurisdiction and accordingly we are of the view that the Tribunal has jurisdiction to make the orders sought in the amended application.
In our view the construction of s 73 (1), set out in par [20] above, is supported by the three decisions referred to in par [13] above. We will now deal with those decisions.

[6]

Brashes Convenience Store Pty Limited v Pitt & Castlereagh Pty Limited

This was an application heard in the Administrative Decisions Tribunal of New South Wales by Deputy President Chesterman. One of the claims made by the respondent was that the Tribunal lacked jurisdiction because the amount claimed in the application, when calculated by reference to evidence that the applicant had filed, significantly exceeded the Tribunal's jurisdictional limit of $400,000 established by s 73 (1) of the Act.
Deputy President Chesterman rejected that claim and held that the Tribunal did have jurisdiction. In doing so he based his conclusion on the terminology of s 73 of the Act, on a comparable provision in s 14 of the Consumer Claims Act 1998 and on considerations of policy.
Deputy President Chesterman concluded that s 73 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. He held that s 73 imposed an upper limit on the amount that, under the order or orders to be made by the Tribunal with respect to a particular retail tenancy claim or unconscionable claim, might be required to be paid, declared not to be due or owing, or involved as the value of work done or services performed. He concluded that s 73 said nothing, in its express terms, as to the amount that an applicant might claim (see par [39]).
Deputy President Chesterman referred to two decisions of Master Malpass relating to s 14 of the Consumer Claims Act 1998.
The two decisions given by Master Malpass dealt with applications which had been commenced in the Consumer Trader and Tenancy Tribunal. In each case the question arose whether the Tribunal had jurisdiction to determine the claims. That question arose because of the terms of s 14(3) of the Consumer Claims Act 1998 which at that time provided as follows: 14 Limitation on Tribunal's jurisdiction to make orders (1) The Tribunal has no jurisdiction to make in respect of a particular consumer claim an order or orders in favour of the claimant, or where there are two or more claimants, in favour of those claimants if the total of: (a) the amount or amounts (if any) of money to be paid, and (b) the value or values (if any) of the work to be performed, or the services to be supplied, and (c) the amount or amounts (if any) of money to be declared not to be due or owing, and (d) the value or values of goods (if any) to be delivered or replaced, under or by virtue of the order or orders would exceed the amount prescribed by the regulations in respect of claims of that class or description. (2) The Tribunal has no jurisdiction to make in respect of a particular consumer claim an order or orders in favour of the respondent to the claim or, where there are two or more respondents to the claim, in favour of those respondents if the amount or the total of the amounts (if any) to be paid under or by virtue of the order or orders would exceed the amount prescribed by the regulations in respect of claims of that class or description.
In the first of those decisions (Poat v Consumer Trader and Tenancy Tribunal [2004] NSWSC 947), Master Malpass stated at [29]: "However, it seems to me that 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."
In the second of those cases (Prestige Residential Marketing Pty Limited v A & M Short Investments Pty Limited [2005] NSWSC 485), Master Malpass stated at [15] and [16]: "In my view, the imposition of such a jurisdictional limitation does not take away jurisdiction altogether in respect of a claim made in a sum in excess of the amount of $25,000. The Tribunal has jurisdiction to make an order so long as the quantum of the order does not exceed the prescribed amount of $25,000. A party who brings a proceeding in the Tribunal which is subject to such a jurisdictional limitation can only obtain an order in respect of a sum that does not exceed an amount of $25,000. In the present case, the defendant is not seeking an order for payment of money. It is seeking an order declaring that an amount of money is not due or owing by it to the plaintiff. If it continues with the application in the Tribunal the relief that it can obtain is restricted to the sum of $25,000."
In paragraphs [49] - [52] of the decision in Brashes, Deputy President Chesterman detailed what he considered to be the major policy considerations which militated strongly against the arguments that the Tribunal did not have jurisdiction. Those considerations included that if the arguments put forward on behalf of respondent were accepted, it would leave open for applicants under the Act who wished their matter to be heard in the District Court or the Supreme Court, instead of the Tribunal, to assert that the amount owed to them by the respondent exceeded $400,000. At that point, the Tribunal would be faced with a most undesirable set of alternatives. It would either have to accept the applicant's assertion as to the scale of the claim at face value, irrespective of whether the factual material and expert opinion adduced in support of it had any credibility, or be compelled, at a very early stage of the proceedings, to investigate the truth and significance of this evidence. That investigation would have limited utility if and when the matter went to trial. In such a situation the Tribunal would on occasions be bound to decline jurisdiction. The proceedings would then be heard in the District Court or the Supreme Court and it might then emerge that the claim had been inflated well beyond its true scale in the application and the accompanying evidence, and that it was entirely inappropriate to be brought in either of those courts. These consequences would be contrary to the policy underlying s 75(2) of the Act.

[8]

PT Ltd v Spuds Surf Chatswood Pty Ltd

This was a decision of the Court of Appeal of New South Wales. McColl and Leeming JJA agreed with the reasons of Sackville AJA.
For the purposes of these reasons, it is unnecessary to deal in detail with the facts of this case and the orders made by the Retail Leases Division or the Appeal Panel of the Administrative Decisions Tribunal.
An order had been made by the Retail Leases Division that the respondent Spuds Surf Chatswood Pty Ltd (Spuds) pay to the appellant PT Pty Ltd (PT) an amount, which with interest, amounted to $420,445.01. Spuds' amended notice of cross-appeal challenged that award on the ground that it exceeded the Tribunal's "jurisdictional limit of $400,000 applicable to a 'particular retail tenancy claim'": "R L Act, s 73(1). PT's money claim was a "retail tenancy claim": s 70(a)(i)" (see par [185] of the Court of Appeal reasons for judgment).
PT contended that the answer to Spud's jurisdictional argument was that the monetary limit imposed by s 73(1) of the Act is exceeded only if the total amount to be paid under the orders made by the Appeal Panel is greater than $400,000 "whether on a balance of account or after set-off or otherwise". Since the Appeal Panel's final orders required the damages payable by PT to Spuds to be set-off against the amount payable by Spuds to PT, the result was that the total amount payable by Spuds after set-off was less than $400,000. The Court of Appeal noted that counsel for Spuds made no oral submissions in support of this ground of appeal, presumably because he accepted PT's contention.
Counsel for PT accepted that if Spuds ultimately failed in its claim for damages against PT, the Retail Leases Division's order that Spuds pay $420,445.01 will have to be varied to $400,000 (see pars [187] - [188] of the Court of Appeal reasons).
At par [190] of those reasons, Sackville AJA said: "It is premature to reduce the amount awarded to PT to $400,000 because the final orders made by the Appeal Panel may require payment to PT of an amount less than $400,000 in a manner that does not involve the Appeal Panel's jurisdictional limit being exceeded. The Appeal Panel should address any jurisdictional issues that arise on the remitter."

[9]

The original decision made by the Tribunal

The Tribunal senior member who decided the original application, distinguished Brashes stating that in Brashes it was the applicant who potentially had the claim in excess of $400,000, whereas in this "retail dispute" it was the respondent who asserted a claim greater than the monetary limit (see par 27 of the reasons for decision). The senior member was also of the view that the policy concerns expressed by Deputy President Chesterman could be adequately covered by the procedure under the Civil Procedure Act 2005, the Uniform Civil Procedure Rules and under ss 75(1) and (2) of the Act. The senior member also noted that the statement of claim filed in the Supreme Court of New South Wales by the respondent was accompanied by an affidavit verifying that the allegations of fact in it were true in accordance with the Uniform Civil Procedure Rules. The senior member stated that that should satisfy the concern expressed by Deputy President Chesterman concerning any enquiry to be undertaken by the Tribunal or Court regarding the scale of the retail dispute between the parties (see pars [29] and [30] of the reasons for decision).
The statement of claim claimed the sum of $641,173.56. In support of the ultimate conclusion that the retail dispute between the parties was in excess of the jurisdictional limit, the senior member asked the question: why should the respondent abandon the excess and submit to the limited jurisdiction (see par [28] of the reasons). The senior member agreed with the submissions made on behalf of the respondent that the retail dispute between the parties, taking into account the amount claimed in the statement of claim, was in excess of $400,000 and that the respondent should not have to unwittingly submit to the jurisdiction of the Tribunal (see par [31] of the reasons).
We are not persuaded by any of the views or conclusions expressed by the senior member in pars [27] - [31] of the Tribunal's reasons for decision. In our view, verification of the allegation in a statement of claim is open to abuse by the unscrupulous and section 75 of the Act does not overcome the undesirable alternative of investigating at an early stage of the proceedings, the truth and significance of the evidence (see par [31] above).
The respondent submitted that the Tribunal did not have to determine whether Brashes was correctly decided and in the alternative, submitted that Brashes was either distinguishable or wrongly decided. The respondent adopted the reasons of the senior member at par [ 27] and following of those reasons.
The respondent also submitted that there was a material distinction between s 14 of the Consumer Claims Act and s 73 of the Act, which was not considered in Brashes. The point sought to be made was based on the fact that s 14 of the Consumer Claims Act denied jurisdiction to the Tribunal to make orders in favour of the claimant, which words did not appear in s 73 of the Act.
It was also submitted by the respondent that s 14 was solely concerned with making final orders.
We are not persuaded that the respondent's submissions on s 14 are correct but it is unnecessary for us to deal in detail with the submissions because it is the words in s 73 of the Act which are to be construed.
The respondent submitted that Spuds did not deal with the question that was raised before the Tribunal in this matter. We take that to be a submission that the question whether the Tribunal has jurisdiction to make an order restricted to $400,000 when the respondent has filed a statement of claim in the Supreme Court claiming in excess of $400,000 in respect of an alleged repudiation of a sublease, was not raised in Spuds.
It is true that in Spuds proceedings had not been commenced by the respondent in a court seeking damages in excess of $400,000, but we are of the view that Spuds makes it clear that there is no prohibition on a party making an application in relation to a sum of money which exceeds $400,000 and that the prohibition is restricted to making an order in excess of $400,000.
The senior member used the expression "retail dispute" to describe the dispute between: (a) the parties in this litigation (see pars [6], [27] and [31] of the reasons for decision); (b) the litigants in Brashes (see par [21] of the reasons for decision); and (c) parties in general, who appeared in the Tribunal (see par [30] of the reasons for decision). The appellant submitted that in doing so, the senior member fell into error and applied a concept of "retail dispute" which is not found in the Act. The Appeal Panel agrees with that submission and is of the view that s 73 of the Act required the senior member to identify what was the particular retail tenancy claim which was being pursued by the appellant in the Tribunal. The senior member failed to do so.

[10]

Other submissions of the respondent

The respondent submitted that the words "particular retail tenancy claim" in s 73(1) of the Act, encompassed all claims between the parties to the dispute - both the demand lodged in the Tribunal and any un-lodged claim raised by the respondent. As part of that submission it was said that the reference in s 73(1) to "balance of account" and any "set-off" required the Tribunal to consider off-setting claims available to a respondent to a lodged claim. Further or in the alternative if it was submitted that the words "in respect of" in s 73(1), obliged the Tribunal to consider what claims might be made by a respondent apropos the applicant's claim.
We are not persuaded that any of those submissions is correct.
"Retail tenancy claim" is defined in s 70 of the Act to relevantly mean a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being a claim for payment of money. The definition includes many other claims but for present purposes, it is unnecessary to go into any further detail of the definition.
Section 63(1) of the Act defines "retail tenancy dispute" to mean relevantly, any dispute concerning the liabilities or obligations (including any obligation to pay money) of a former party to a former retail shop lease, being liabilities or obligations which arose under the former lease or which arose in connection with the use or occupation of the retail shop.
In our view, when those two definitions are taken into account, the particular retail tenancy claim referred to in s 73(1) of the Act means the particular retail tenancy claim made by an applicant in the Tribunal in respect of which the applicant is seeking an order.
It was also submitted that: (a) the "retail tenancy claim" incorporates a claim of defence or set-off available to the respondent; and (b) that the reference to "balance of account" and "set-off" indicates that the legislature had in mind defences that might be availed of by a respondent and that there could be no final balance of account until the amounts in play were brought to account. It was submitted that one claim to be ventilated was the sublessor's claim for common law damages, GST and costs exceeding $600,000. We do not accept those submissions for the reasons below.
The words "whether on balance of account or after an admitted set-off or otherwise" have appeared in a number of NSW statutes since 1858 (see 22 Vic No 18 - 1858, s 7; District Courts Act 1901, s 34; District Court (Amendment) Act 1905, s6 (b); and District Court Act 1973, s 44). Each of those sections limited the jurisdiction of the District Court. They did so by limiting the amount claimed "whether on balance of account or after an admitted set-off or otherwise." Those sections allowed a plaintiff (not a defendant) to give credit when calculating the amount claimed, for a set-off admitted by the plaintiff. See for example Reynolds v Hall (1908) 25 WN (NSW) 85 at 86.
The omission of "admitted" before "set-off" in s 73 of the Act, may have been seen to be appropriate because s 73 does not speak in terms of "the amount claimed" by the applicant, but speaks in terms of (for example) the amount ordered by the Tribunal to be paid. However, whether that is the correct explanation is unimportant for present purposes. The conclusion to be drawn is that the words "whether on a balance of account or after set-off or otherwise" are speaking about the manner in which the Tribunal has found the applicant has framed its case. In other words the Tribunal has no jurisdiction to make an order if the total (for example) of the money to be paid under or by virtue of the order would exceed $400,000, no matter whether the amount ordered to be paid was based on a balance of account, or was based on giving a credit for the applicant's set-off or was based otherwise.
We share the doubt expressed by Sackville AJA in par [189] of Spuds as to whether an award in favour of one party can be set off against an award in favour of the other party.

[11]

Section 73 of the Act

We are of the view that the words "the amount or amounts (if any) of money to be paid" in s 73(1)(a) of the Act require that the Tribunal conduct a full hearing and come to a determination of how much (if any) is owing by the respondent to the applicant. Having made that determination, the Tribunal is then obliged to take into account s 73(1) so as to ensure that the order made by the Tribunal does not require payment of a sum of money which would exceed $400,000. In our view, the words "money to be paid" in s 73(1)(a) mean that the Tribunal has made a determination of what amount of money is to be paid. Those words do not mean an amount of money which might be payable
The sublessee's case is that the Tribunal's jurisdiction having been regularly invoked by it when it filed its application, that jurisdiction was not lost because the sublessor subsequently commenced proceedings in the Supreme Court of New South Wales for an amount exceeding $400,000.
The sublessor's case is that the Tribunal has no jurisdiction based upon the proper construction of ss 73 and 76 of the Act; that the particular retail tenancy claim comprised the lodged and unlodged claims and that given that the sublessor's claim exceeded $400,000, the senior member was obliged to dismiss the sublessee's claim.
The sublessor also submitted that the construction of s 73 of the Act propounded by the sublessee has incongruous and illogical consequences. One such consequence was said to be that the Tribunal could not hear and determine the sublessor's retail tenancy claim unless the sublessor obliged by reducing its claim to less than $400,000. As part of that submission it was said that ss 73 and 76 of the Act thus potentially diminished the sublessor's right to pursue claims against the sublessee and that the possibility of interference with the sublessor's rights was magnified by the doctrines of merger by judgment and res judicata. It was submitted that the principles of merger and res judicata applied to the Tribunal.
A second of such alleged consequences was that arguably no court would have jurisdiction over the sublessor's claim by dint of s 76(1) of the Act. It was submitted that ss 73 and 76 potentially diminished the sublessor's rights to pursue claims against the sublessee.
We do not accept these submissions. In our view on the facts of this case, the particular retail tenancy claim referred to in s 73(1) is the claim made by the sublessee in its application to the Tribunal. That claim will involve an issue as to whether the sublessor repudiated the sublease. If the Tribunal finds that the sublessor did not repudiate the sublease then, neither the making of the application in the Tribunal by the sublessee, nor that finding will prevent the sublessor pursuing its claim in the Supreme Court.
Further, such a finding will mean that s 76 of the Act will have no application to the facts of the case. One of the issues in the Supreme Court proceedings will be whether the sublessee repudiated the sublease. That is not an issue which arises under the retail tenancy claim made by the sublessee in its application which it lodged with the Tribunal.
For these reasons, the principles of merger by judgment and res judicata will not have any application to the dispute between the sublessee and the sublessor.
There is nothing incongruous or illogical in the sublessor being required to reduce its claim to less than $400,000 if it wishes to make application in the Tribunal. The sublessor has commenced proceedings in the Supreme Court and s 76 does not prevent the sublessor from pursuing its claim in that court and seeking to recover the full amount of its claim of $641,173.56.
The sublessor also submitted that the third incongruous or illogical consequence of the construction of s 73 propounded by the sublessee, was that the statutory bar would be aimed at all orders, no matter when they were made and their subject matter. It was said that this was clear from the words "The Tribunal has no jurisdiction to make an order or orders in respect of a particular retail tenancy claim ….". We do not agree. For the reasons stated in par [57] above, we are of the view that s 73(1)(a) requires the Tribunal to conduct a full hearing. In order to do so, it has power to make all appropriate interlocutory orders.
The sublessor submitted that the phrase "in respect of" in the words "in respect of a particular retail tenancy claim" in s 73(1) is critically and fundamentally different from the word "in", had the words in s 73(1) been "in a particular retail tenancy claim." It was submitted that orders that could be made in respect of a retail tenancy claim need not be orders made in the claim itself. An order foreshadowed by the respondent by way of declaration of right or off-setting claim would be "in relation to" an applicant's claim because, so it was submitted, they operated as a defence thereto.
We do not accept these submissions. In our view s73 is simply directed to setting a limit on, for example, the amount that the Tribunal can order to be paid to an applicant. It is not directed to and says nothing about a respondent's obtaining a declaration of right or a declaration of an "off-setting" claim.
As part of its argument that "retail tenancy claim" means the applicant's demand and the respondent's opposing demand, the sublessee submitted that the word "would" in s 73(1) did not require the Tribunal to determine that in fact and as a matter of certainty the s 73 calculation would yield a figure in excess of the threshold, because the word is itself ambiguous. We do not accept that submission for the reasons set out in par [57] above. Furthermore, we are not persuaded that the submissions based on statements made by O'Loughlin J in F v National Crime Authority (1998) 83 FCR 99, require us to come to a different conclusion.
The sublessor made submissions on public policy, for the purpose of attempting to answer the statements made by Deputy President Chesterman which are recorded in par [31] above. It is unnecessary for the Appeal Panel to deal with these submissions in the light of the views which we have expressed above.

[12]

Conclusion

The Civil and Administrative Tribunal Act 2013 sets out the basis upon which internal appeals from decisions of the Consumer and Commercial Division may arise under s 80 of the Act. Relevantly that section states that an internal appeal may be made, in the case of an ancillary decision of the Tribunal, as of right on any question of law (s 80(2)(b)) or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). "Ancilliary decision" is defined in s 4 of the Civil and Administrative Tribunal Act as including a decision concerning whether the Tribunal has jurisdiction to deal with a matter.
The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 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.
In our view, the question whether or not the Tribunal has jurisdiction to hear and determine a matter may constitute an error of law: Craig v The State of South Australia (1995) 184 CLR 163 at [10] to [15]. As Shaw J stated in Jonsson v Arkway Pty Ltd [2003] NSWSC 815 at [13]: Jurisdiction, in any controversy before a statutory tribunal, is always an issue. In most cases this issue will not arise, or be easily dealt with: it will have jurisdiction or it will not. The tribunal may commit an error of law by exceeding that jurisdiction, or by failing to exercise it. A tribunal can make a determination as to its own jurisdiction however any such determination is subject to review by a superior court.
Accordingly, no question of leave to appeal arises in this appeal.
For the above reasons we are of the opinion that the appeal must be allowed, and the matter remitted to the Consumer and Commercial Division of the Tribunal for determination.

At a glance

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Judgment (14 paragraphs)

Parties

Cases Cited (8)

Cited By (3)