The Duty to Provide Adequate Reasons
- Section 62 of the NCAT Act relevantly states:
(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.
(3) A written statement of reasons for the purposes of this section must set out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal's understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
- There is, in addition, to s 62 a common law obligation to give reasons for a decision. This obligation was extensively discussed by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [47 ]-[57]. The Appeal Panel said:
47 Section 62 establishes a regime under which the Tribunal is not under an express statutory obligation to provide reasons for a decision unless a party makes a request for reasons under s 62(2) but the Tribunal may and in many cases does prepare and give reasons for decision, whether oral or written, without a request to do so from the parties, consistently with s 62(4).
48A provision such as s 62 of the Act does not, however, define exhaustively when there is a duty to give reasons or the extent of that duty.
49 One reason why reasons are generally required, notwithstanding a provision such as s 62, is that if reasons for decision are neither sought nor prepared and an appeal or application for leave to appeal is lodged, the findings of fact and legal reasoning of the decision maker at first instance would not be available to the appellate body by way of written reasons. In many instances not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right because the appellate body does not have a statement of the findings of fact, the relevant law and explanation of how the law was applied to the facts as found, by the decision maker at first instance.
- The Appeal Panel cited the NSW Court of Appeal Decision in Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 (per Moffitt JA, Manning JA agreeing) as follows:
50 The force of the authorities, which in various ways say that the judge or magistrate at first instance in particular cases ought to have given reasons, is that, as part of his judicial duty and apart from any express requirement of any statute, he ought to have given reasons for the decision in question. I think there is duty upon a judge or magistrate, at least at first instance, in an appropriate case and in appropriate circumstances to give reasons for decision such as will facilitate a litigant, who may be aggrieved, exercising rights he may have to appeal. In Carlson v King [(1947) 64 WN (NSW) 6] Jordan CJ in delivering the decision of the Full Court said: "It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. [...]" The judgment otherwise makes it clear that this statement is directed to the general judicial duty of a judge of a court from which an appeal lies, whether or not a provision such as s. 144(3) [which in effect required a judge upon request to provide reasons] exists or not.
- Whether considered in the context of the obligation under s 62 of the NCAT Act or in the context of the common law obligation to provide reasons, in our opinion the reasons given by the Tribunal in this matter were not adequate. They do not refer to any relevant material findings of fact, or the basis or bases on which the Tribunal concluded it preferred the evidence of the respondents to that of the appellant. The reasons do not expound the reasoning process by which the Tribunal reached its conclusions on questions of fact or law. On this basis, the appeal must be allowed.
- Further, when the appellant requested written reasons in accordance with s 62(2) of the NCAT Act, it should have been apparent that the reasons given when the orders were made did not comply with that section. It was an error to refuse to provide written reasons which comply with that section and which set out the matters required by s 62(3).
- During the hearing before the Appeal Panel, the appellant sought to argue matters that were not raised expressly in the material it provided to the Tribunal. These included whether the respondents had standing to bring the application, given that they lease the chairs from a finance provider. It also complained that it did not have the chance to ask Mrs Poole questions. As the appellant chose not to attend the hearing, these are problems of its own making. It also queried how the orders referred to 111 chairs when the application only referred to 72 chairs. In relation to this particular issue, it appears that the Tribunal allowed the respondents to amend the application at the hearing to seek orders in respect to the additional 39 chairs. The appellant was not notified of this.
- Initially, the appellant sought orders that the matter be remitted to the Tribunal so that further argument could be made and additional evidence led. However, during the course of the appeal, Mr Papanicolaou accepted that there was nothing he could say against an order that the matter be remitted to the Tribunal as originally constituted so that adequate reasons can be given. We think this is the appropriate course. We do not think the appellant, having chosen not to attend the hearing, should now be allowed to attend a rehearing and lead additional evidence.
- Of course, it can be expected that in providing its reasons, the Tribunal will deal with all relevant matters, including the respondents' standing to bring the application and the basis on which the application was amended without notice to the appellant. We do not seek to prescribe the matters that the Tribunal must deal with, however, at a minimum we would expect it would deal with these matters and make appropriate findings of fact with respect to the material before it. It should properly expose its reasoning in reaching conclusions of fact and law.
- The orders we make are:
1. The Appeal is allowed
2. The matter is remitted to the Tribunal as originally constituted to provide a written statement of reasons in accordance with s 62(3) of the Civil and Administrative Tribunal Act 2013 and otherwise according to law.
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
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Decision last updated: 26 June 2015