The Notice of Contention
47In light of the above conclusion, it is not strictly necessary to address the notice of contention. However, in deference to the careful arguments made by counsel, I will address the issues raised.
48At the outset two issues were raised concerning whether Mr O'Halloran should have filed a cross appeal instead of a notice of contention. I was referred to r 50 of the Uniform Civil Procedure Rules 2005 ("UCPR") which concerns appeals to the Court (other than the Court of Appeal) particularly UCPR 50.10, 50.11 and 50.16 which provide:
"50.10 Cross-appeal
(1) If a defendant to an appeal wishes to appeal from the whole or part of a decision, that defendant must file a cross-summons.
...
50.11 Notice of contention
(1) This rule applies if the defendant wishes to contend that the decision of the court below should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of that decision.
(2) In the circumstances referred to in subrule (1), the defendant need not file a cross-summons but must instead file notice of that contention, stating, briefly but specifically, the grounds relied on in support of the contention.
...
50.16 Conduct of appeal
(1) If the decision under appeal has been given after a hearing, the appeal is to be by way of rehearing.
(2) The higher court has the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning:
(a) amendment, and
(b) the drawing of inferences and the making of findings of fact, and
(c) the assessment of damages and other money sums.
(3) The higher court may receive further evidence.
(4) Despite subrule (3), where the appeal is from a judgment after a trial or hearing on the merits, the higher court may not receive further evidence except on special grounds.
(5) Subrule (4) does not apply to evidence concerning matters occurring after the trial or hearing.
(6) The higher court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made." (emphasis added)
49The plaintiff contended that by seeking to agitate his defences based on estoppel and the Contracts Review Act Mr O'Halloran was "appeal[ing] from the whole or part of a decision" of the Local Court in so far as it either rejected or did not address those defences and he was therefore required to file a notice of cross appeal rather than a notice of contention. I reject that submission. It wrongly treats the reference to a "decision" in the opening part of UCPR 50.10(1) as a reference to the reasons of the Local Court as opposed to the orders of that court. Rule 50.10(1) should be read in conformity with the equivalent rule for the Court of Appeal, UCPR 51.40 (Penrith Whitewater Stadium Ltd v Lesvos Enterprises Pty Ltd [2007] NSWCA 131 at [14]-[18], per Basten JA). In this case Mr O'Halloran has always sought the dismissal of the plaintiff's claim. He succeeded in obtaining orders to that effect from the Local Court. To the extent necessary he seeks to uphold that "decision" of the Local Court, i.e. the dismissal, in this Court on different grounds to those relied on by the Local Court. The appropriate means of doing so is by filing a notice of contention.
50In pressing his client's notice of contention, Mr Duggan contended that, on the issues it raised, this Court could determine them de novo or at least in a manner similar to an appeal from this court at first instance to the Court of Appeal. He made this submission notwithstanding s 39 and s 40 of the Local Court Act that I have extracted above. He sought to rely on UCPR 50.16(1). Section 9 of the Civil Procedure Act 2005 enables the making of rules "necessary or convenient to be prescribed by rules for carrying out or giving effect to" that Act, which would embrace other legislation conferring jurisdiction on this Court. The making of UCPR 50.16 can be seen as giving effect to s 75A(5) of the Supreme Court Act 1970. However, s 75A(4) makes that provision "subject to any Act" which in this case is ss 39 to 41 of the Local Court Act. Thus, UCPR 50.16 cannot operate to alter the form of appeal that is created by ss 39 to 41 of the Local Court Act by giving either an appellant or respondent to an appeal either a rehearing or a hearing de novo.
51In Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [30] to [32] French CJ identified s 75A as a source of power for this Court to make at least some findings of fact, but only in circumstances where the Court determined an error of law on the part of the inferior tribunal, stating at [30]:
"Invocation of the ancillary jurisdiction and/or power conferred by s 75A(6) of the Supreme Court Act enables the court, inter alia, to draw inferences from facts found by the Tribunal or to find facts on materials before the Tribunal which were not in dispute. An occasion for the use of that power would arise, as in this case, where limited fact finding would avoid the need for a remitter to the Tribunal and the imposition upon the parties of additional expense and delay."
52This is very different form of a review to there being an appeal by way of rehearing. It only enables fact finding at the point in which the Court has found legal error and is determining the outcome of the appeal. In any event, these comments were obiter as the plurality in Kostas expressly left open this question (at [88] per Hayne, Heydon, Crennan and Kiefel JJ) as had the High Court in Amaca Pty Ltd v State of New South Wales [2003] HCA 44; 77 ALJR 1509 (at [22] per McHugh, Gummow, Kirby, Hayne and Callinan JJ). Further, the Court of Appeal before, in and after Kostas has consistently held that the establishment of legal error in the decision appealed from does not enable an appellate court to make findings of fact for the purposes of determining what orders should be made (HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [120] to [128] per Basten JA; Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 [53] per Allsop P, and [109], [124], [127] per Giles JA; Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298 at [123] to [127] per Handley JA). However, something similar to the approach outlined by French CJ in Kostas may still be appropriate in a case where the Court has granted leave under s 40(1) of the Local Court Act.
53On an appeal under s 39(1) of the Local Court Act, the issues raised by a notice of contention will only arise for consideration at a point where either an erroneous decision by the Local Court on a question of law or, if leave has been granted, on a question of mixed law and fact has been established and the question arises as to what relief, if any, should be granted under s 41. If the notice of contention raises a pure question of law which is determinative of the case and is resolved in favour of the respondent to the appeal, then the appeal should be dismissed. If it only raises a question of fact determined adversely to the respondent by the Local Court then, consistent with the above authorities, it should not be entertained. If it raises a question of mixed fact and law then the same consideration that attends a grant of leave to an appellant under s 40(1) would attend the Court in considering the exercise of its discretion to grant relief and the form of that relief pursuant to s 41.
54One matter raised by the notice of contention was a defence under the Contracts Review Act. Mr Duggan invited this Court to determine it de novo or at least as an appeal by way of rehearing. As this defence requires findings of fact, this is an invitation that must be rejected. However, if the plaintiff had succeeded on its construction argument, the fact that there was a defence that raised questions of fact that was not resolved by the Local Court would be a matter requiring the remittal to that court of at least so much of the matter as involved that issue rather than entering a verdict for the plaintiff.
55The other ground of the notice of contention concerned the manner in which the Local Court addressed Mr O'Halloran's estoppel defences, namely, issue estoppel and Anshun estoppel. In so far as the Local Court rejected his contention that the CTTT judgment raised an issue estoppel in his favour on the claim for a second commission, then I do not consider that it erred in law. It was not in dispute between the parties that a CTTT judgment can give rise to an issue estoppel (see Cachia v Isaacs (1985) 3 NSWLR 366) although the informality of its processes can mean that it is difficult to isolate a relevant "issue" that was determined (see Cachia at 368-370 per Kirby P) or facts that were assumed (Cachia at 381D per Hope JA). The claim for a second commission was not expressly raised in the CTTT proceedings. I do not read any part of the CTTT judgment as purporting to determine the entirety of the plaintiff's commission entitlements, and nor is there any matter implicit or assumed by its decision that was inconsistent with a claim to recover the second commission.
56Mr O'Halloran's Anshun defence effectively involved a contention that in the CTTT proceedings the plaintiff could have and should have brought a cross claim seeking recovery of the second commission (see Anshun pp 602 to 603). A complaint of an erroneous conclusion on that issue appears to go beyond raising a question of law and to involve a full assessment of the circumstances, including the factual context, in order to make a value judgment about whether it was unreasonable not to plead the issue in the earlier proceedings (Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245 at [3] per Allsop P). The passage that I have extracted in [15] involved a rejection of an Anshun defence. Although his Honour referred to "res judicata", that phrase embraces an Anshun (or Henderson v Henderson [1843] Eng R 917) style estoppel (Anshun at 598). Beyond inviting a reconsideration de novo or by way of rehearing, Mr Duggan did not identify any erroneous answer to a question of law on this issue, whether it be express or implicit in his Honour's reasoning (Kostas). Accordingly, I reject so much of the notice of contention that complains of an error by the Local Court in addressing and rejecting Mr O'Halloran's estoppel defences.