Kostas v HIA Insurance Services Pty Limited

For the reasons already given, propositions one, three and four should be accepted.

1. Mr and Mrs Kostas submitted that it was open to the primary judge, once his jurisdiction was established, to find that the time for completion by SCC had not been extended to September 2000, that SCC's conduct justified the giving of the default notices under cl 24 on the grounds of suspension of the works without reasonable cause and lack of diligence, and that SCC's failure to correct its conduct justified termination on 29 June 2000. Those propositions should also be accepted. Having found error of law informing the Tribunal's decision that Mr and Mrs Kostas had not validly terminated the contract, the primary judge was entitled on the factual material, which was largely uncontradicted, to make the findings he did and in so doing to bring finality to the determination of the preliminary question which had been defined by the Tribunal in November 2004.
2. The appeal should be allowed. I agree with the orders proposed in the joint judgment.
3. HAYNE, HEYDON, CRENNAN AND KIEFEL JJ. In August 1999, the appellants contracted with a builder (Sydney Construction Co Pty Ltd - "the builder") for renovation of their residence in suburban Sydney[88]. The works were to take 30 weeks and were to cost $330,000. Before the works were finished, the contract was terminated. More than 10 years later, the appellants and the first respondent, the insurer of the builder's performance of its contract[89], continue to litigate about whether it was the appellants or the builder who wrongfully terminated the contract.
4. The appeal to this Court is from orders of the Court of Appeal of the Supreme Court of New South Wales (Spigelman CJ, Allsop P and Basten JA)[90]. The Court of Appeal had allowed the insurer's appeal against orders of a judge of the Common Law Division of the Supreme Court (Rothman J)[91]. By those orders, Rothman J set aside the "findings and orders" of the Consumer, Trader and Tenancy Tribunal ("the Tribunal") made on 25 May 2005 and declared that the appellants' termination (on 29 June 2000) of the contract with the builder "was lawful and effective".
5. The central issue in this Court is about the nature of an appeal from the Tribunal to the Supreme Court. What kinds of issue can be raised in such an appeal?
6. The Tribunal determined[92] a question which the parties had agreed should be decided separately. No order was made by the Tribunal expressly directing that an issue be tried separately. Instead, directions were given for the filing and service of written submissions on a question, described in those directions as "the question of the termination of the contract", and in the Tribunal's reasons as being "whether or not the Owners [the present appellants] had validly terminated the contract with the Builder". In the course of the proceedings which led to the parties agreeing that an issue be decided separately, the issue had been described as the "repudiation issue".
7. The Tribunal found that the appellants had repudiated the contract. A step critical to the Tribunal's finding of repudiation was that the time for performance of the contract had been extended to the end of September 2000. That, in turn, depended upon finding that the builder had "served in the manner set out in the contract"[93] two claims for extension of time - one on 31 March 2000, the other on 23 May 2000 - and that the appellants had not disputed those claims in the manner required by the contract.
8. The appellants contended that there was no material properly before the Tribunal which supported the finding that the disputed claims for extension of time had been served on the appellants. Was that a question which could be raised on appeal to the Supreme Court? That depends upon what is meant by the phrase "the Tribunal decides a question with respect to a matter of law" when used in s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the Tribunal Act"). Section 67(1) of the Tribunal Act provided, at the relevant time, that a party in proceedings before the Tribunal who was dissatisfied with a decision of that kind (a decision of "a question with respect to a matter of law") may appeal to the Supreme Court against the decision. (The Tribunal Act has since been amended to provide for such appeals to lie to the District Court, rather than the Supreme Court.)
9. As the case was argued in the Supreme Court, both at first instance and on appeal, attention was also directed to what orders the Supreme Court could make if the Tribunal did decide a question with respect to a matter of law and a party dissatisfied with the decision appealed to the Supreme Court against the decision. Those arguments proceeded on the footing that to make orders of the kind sought by the appellants, it was (or may be) necessary to examine issues of law or fact, or of mixed fact and law, other than the question said to have been erroneously decided. In this Court, however, the first respondent did not dispute that if, as the appellants argued, the Tribunal in this case decided a question with respect to a matter of law erroneously, the orders made by the primary judge should stand. It is therefore not necessary to explore, in these reasons, a number of the arguments that were considered in the Supreme Court. In particular, it will not be necessary to examine whether, on an appeal alleging an erroneous decision of a question with respect to a matter of law, the Supreme Court may determine questions of fact or law, or mixed fact and law, other than the particular question erroneously decided.
10. The central issue in this Court should be resolved in favour of the appellants. Section 67(1) of the Tribunal Act permitted the appellants to appeal to the Supreme Court against the Tribunal's decision that there was material properly before the Tribunal which supported the conclusion that the disputed claims for extension of time had been served on the appellants. The conclusion that there was material of that kind, necessarily implicit in making the finding that the disputed claims had been served, was a decision with respect to a question of law.

1. Although the immediate focus of the appeal to this Court falls upon the provisions of s 67 of the Tribunal Act (governing appeals), it is necessary to set those provisions in the context of other provisions of the Act that established the Tribunal and governed its procedures.
2. The Tribunal has functions "conferred or imposed" on it[94] by or under a number of Acts including the Home Building Act 1989 (NSW) ("the Home Building Act"). Section 48K(1) of the Home Building Act provided that the Tribunal has jurisdiction to hear and determine any "building claim" brought before it (in accordance with the relevant Part of that Act) in which the amount claimed does not exceed $500,000. A "building claim" was defined in s 48A(1) in a way that included the claims made by the appellants against the builder.
3. The objects of the Tribunal Act include[95] ensuring "that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair". They also include enabling "proceedings to be determined in an informal, expeditious and inexpensive manner". The progress of this dispute both within the Tribunal, and since, has been anything but expeditious and inexpensive.
4. Subject to the Act, the Tribunal may determine its own procedure[96]. It is "not bound by the rules of evidence" and "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness"[97]. The Tribunal is "to act with as little formality as the circumstances of the case permit"[98]. It is to act "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms"[99]. It is "to act as expeditiously as is practicable"[100] and must "ensure, as far as practicable, that all relevant material is disclosed to [it] so as to enable it to determine all of the relevant facts in issue"[101]. It "must ensure"[102] that each party is "given a reasonable opportunity" to call or give evidence and present its case, and "to make submissions in relation to the issues in the proceedings". A party to proceedings has the carriage of his or her own case and is not entitled to be represented by any person except as the Act provides[103]. All of these provisions are consistent with the stated object of having the Tribunal determine proceedings informally, expeditiously and inexpensively. But the Tribunal's decisions are not necessarily final; they are subject to appeal. When does appeal lie?

"Appeal against decision of Tribunal with respect to matter of law

(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision.

(2) An appeal is to be made in accordance with the rules of the Supreme Court. The rules of the Supreme Court may provide that an appeal (or such classes of appeal as may be specified in the rules) may be made only with the leave of the Court.

(3) After deciding the question the subject of such an appeal, the Supreme Court may, unless it affirms the decision of the Tribunal on the question:

(a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or

(b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal.

(8) A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal."

1. It will be observed that s 67 referred to a question "with respect to a matter of law". Section 66(2) provided for the Tribunal to decide for itself, or to refer to the Supreme Court for decision, "a question [which] arises with respect to a matter of law". Section 67(1) provided for an appeal to the Supreme Court "[i]f, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law". The parties advanced arguments about what followed from the use of similar language in provisions dealing in one case with reference for decision by the Supreme Court, and in the other with conferral of a right of appeal. But, as will later be explained, the determination of this case does not depend upon resolving whether any of those arguments are correct.
2. Something more must be said at this point about the decisions at first instance in the Supreme Court and on appeal to the Court of Appeal.

1. The Tribunal having decided that the appellants had repudiated the building contract, the appellants appealed to the Supreme Court claiming (among other relief) orders "setting aside the orders ... by which the Tribunal found ... that the [appellants] had repudiated" the contract, and orders under s 67(3)(a) making what they contended were the determinations that the Tribunal should have made. Numerous grounds of appeal were stated in terms that would have been apposite had there been a general appeal to the Supreme Court by rehearing. The question or questions of law alleged to have been wrongly decided by the Tribunal were not distinctly identified. Nonetheless, one of the several submissions made on the appellants' behalf was that there was no evidence that the builder had served the two critical claims for extension of time. (It will be recalled that the conclusion that those two claims for extension had been validly served was a necessary step in the Tribunal reaching its conclusion that the appellants had repudiated the contract.)
2. The primary judge accepted[104] the appellants' submission that there was no evidence before the Tribunal that the builder had served either of the two critical claims for extension of time and that, accordingly, the Tribunal had made an erroneous decision with respect to a question of law. The primary judge further concluded[105] that the Tribunal had made, or must be taken to have made, several other wrong decisions with respect to questions of law. At least some of the further questions which the primary judge identified as wrongly decided were questions about the proper construction and application of the contract that arose if, as the primary judge held, the Tribunal was wrong to conclude that there had been valid extensions of time for the builder's performance of the contract.
3. Whether there was any evidence before the Tribunal that the relevant claims for extension of time had been served was a matter of controversy in the Supreme Court. The Tribunal had concluded[106] that the claims had been served but did not, in its reasons, identify the evidence relied on for that conclusion, and did not specify how or when the claims had been served. An affidavit sworn by the principal of the builder, deposing to service of the claims, had been filed in the Tribunal, but that affidavit was not part of the material which the parties put before the Tribunal for its consideration in deciding the separate issue of repudiation. The material which the parties put before the Tribunal for that purpose included documents in the form of claims for extension of time but included no material which showed whether, or how, those documents had been served.

1. The principal reasons of the Court of Appeal were given by Basten JA. Subject to some qualifications, the other members of the Court (Spigelman CJ and Allsop P) agreed with Basten JA. The central conclusion reached[109] by Basten JA was that the "preferable view is that while a 'no evidence' ground may support judicial review, it does not form a basis for a statutory appeal under s 67(1)". Allsop P accepted[110] that a "finding of fact made in the absence of supporting evidence is an error of law", but concluded[111] that "[s]uch a finding may or may not amount to or involve 'a decision on a question with respect to a matter of law'". In his Honour's view, whether a finding of fact, made without supporting evidence, amounts to a decision on a question with respect to a matter of law might depend[112] "upon the context of that aspect of the Tribunal's reasoning and approach". But what aspects of the Tribunal's reasoning or approach bear upon whether a finding of fact, made without evidence, amounts to a decision of a question with respect to a matter of law was not further explored, whether generally, or by reference to the finding made by the Tribunal in this case, that claims for extension had been made and served on the appellants.
2. Basten JA sought to identify a taxonomy of those appeals that are "restricted in some way to legal error". He identified[113] three "broad categories" of appeal provisions, although he also said[114] that "there are more variations than the categorisation would suggest". The first category (where the right of appeal is given from a decision that "involves a question of law") was identified[115] as the broadest category and exemplified by the provisions considered in Ruhamah Property Co Ltd v Federal Commissioner of Taxation[116]. The second category was said[117] to be exemplified by provisions permitting an appeal "on a question of law from a decision of" a tribunal. Reference was made to Brown v Repatriation Commission[118]. This second category of appeal was said[119] to be one where the question of law is "the sole subject matter of the appeal, to which the ambit of the appeal is confined". The third, and narrowest, class was said[120] to be "one restricted to 'a decision of a Tribunal on a question of law'". In such a case it was said[121] that "it is not sufficient to identify some legal error attending the judgment or order of the Tribunal; rather it is necessary to identify a decision by the Tribunal on a question of law, that decision constituting the subject matter of the appeal".

"There is something highly artificial in suggesting that the Tribunal would ask itself whether there was evidence 'capable of' supporting a particular factual conclusion, as opposed to whether the assertion should be accepted. The preferable view is that while a 'no evidence' ground may support judicial review, it does not form a basis for a statutory appeal under s 67(1)."

1. The appellants and the first respondent each advanced submissions about what was said to be the preferable construction of the phrase "question with respect to a matter of law". The appellants submitted that the connecting expression "with respect to" is, and should be understood in this context as, a broad expression, which permitted appeal to the Supreme Court in a wide range of circumstances. The appellants further submitted[124] that once "a question with respect to a matter of law" was identified, the Supreme Court could, on finding error in dealing with that question, "determine any other question of fact or law or mixed fact and law as would enable it to make appropriate orders" including orders of the kind contemplated by s 67(3)(a): "such order in relation to the proceedings ... as ... should have been made by the Tribunal".
2. By contrast, the first respondent submitted that s 67 does not give the Supreme Court the capacity to find facts differently from the Tribunal or to find facts not found by the Tribunal. In effect, the first respondent submitted that the task of the Supreme Court, on an appeal under s 67 of the Tribunal Act, was to determine only "the question [or questions] with respect to a matter of law" that founded its jurisdiction (including, perhaps, applying the correct legal holding to the facts, as found by the Tribunal). That conclusion was said to be supported by, even to follow from, the fact that, on reference under s 66 of "a question ... with respect to a matter of law", the Supreme Court would answer that question and none other. On such a reference, the Court could make no decision or order with respect to any other question or issue in the proceedings in the Tribunal.
3. Because the first respondent accepted that, if there was the erroneous decision of a question with respect to a matter of law, the primary judge's orders should be restored, it is not necessary to decide the issues presented by these competing submissions about what follows from a finding that the Tribunal has erred in determining a question with respect to a matter of law. Further, there are considerable difficulties presented by expressing the operation of the relevant provisions in the fashion described. First, it is not useful to attempt to chart the metes and bounds of the task given to the Supreme Court by s 67 of the Tribunal Act, and to attempt to do so is dangerous. Secondly, to attempt such a task at the level of abstraction at which the submissions of the parties were cast, or in terms divorced from the circumstances of a particular case, would invite error.

"in the legal dichotomy between questions of fact and questions of law we place under the latter head a question whether there is sufficient evidence to submit to a jury in support of a cause of action. That is because it is a question for the court to decide and not for a tribunal of fact."

A tribunal that decides a question of fact when there is "no evidence" in support of the finding makes an error of law[127]. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law. And in this case, for the reasons given by the primary judge, there was no evidence before the Tribunal, when it decided the separate question identified by the parties, upon which the Tribunal could find that the disputed notices had been served.

1. In this case, the Tribunal made a wrong decision with respect to a question of law. As already noted, the first respondent accepted that if that were so, it followed that the orders made by the primary judge should be restored. There should be orders that the appeal to this Court is allowed with costs. The orders of the Court of Appeal of the Supreme Court of New South Wales made on 16 September 2009 should be set aside and in their place there should be orders that the appeal to the Court of Appeal is dismissed with costs.

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 3(c). ↑

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67(1). The Consumer, Trader and Tenancy Tribunal Act was amended by the Courts and Crimes Legislation Amendment Act 2008 (NSW). Appeals from the Tribunal under s 67 now lie to the District Court of New South Wales. ↑

See Pt 6 of the Home Building Act 1989 (NSW), which prohibits the undertaking of "residential building work" unless a contract of insurance which complies with the Act and which is provided by an insurer approved by the Minister is in force in relation to the work: see ss 92 and 102. ↑

Kostas v HIA Insurance Services Pty Ltd trading as Home Owners Warranty [2007] NSWSC 315. ↑

HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292. ↑

Clause 42(1)(a)(i) of the Home Building Regulation 1997 (NSW) (made under s 103C of the Home Building Act) stipulated that, under an insurance contract required to be entered into under the Act, an insurer must be directly liable to a person on whose behalf residential building work covered by the contract is done. Similar provision is now made in cl 55(1)(a)(i) of the Home Building Regulation 2004 (NSW). ↑

The Tribunal decided a preliminary point, not material for present purposes, in June 2002. ↑

Their solicitors' letter of that date purported to terminate the contract as between Mr Kostas and SCC. That was consistent with the named parties to the building contract. However, when proceedings were commenced in the Tribunal, they were brought in the name of both Mr and Mrs Kostas. No point has been taken of this discrepancy. ↑

Kostas v HIA Insurance Services Pty Ltd [2005] NSWCTTT 345. ↑

Mr and Mrs Kostas also sought what they described as a "declaration in the nature of certiorari" on the ground of want of procedural fairness, presumably intending to invoke the jurisdiction of the Supreme Court under s 69 of the Supreme Court Act 1970 (NSW). The entitlement to prerogative relief was not the subject of any decision in the Supreme Court, nor was it agitated in this Court. ↑

Kostas v HIA Insurance Services Pty Ltd trading as Home Owners Warranty [2007] NSWSC 315. ↑

HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292. The appeal was not heard until 29 June 2009. The delay was due in part to HIA's filing of a second amended notice of appeal in final form on 4 December 2008 and its unsuccessful motion to strike out a notice of contention filed by Mr and Mrs Kostas: see HIA Insurance Services Pty Ltd T/as Home Owners Warranty v Kostas [2008] NSWCA 297. ↑

14. CTTT Act, s 88; New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 19 September 2001 at 16892. ↑

15. Consumer Credit Act 1981 (NSW), s 208; Commercial Tribunal Act 1984 (NSW), s 20; Residential Tribunal Act 1998 (NSW), ss 61 and 62; cf Fair Trading Tribunal Act 1998 (NSW), s 61(1) (providing for "an appeal … on a question of law"). ↑

16. CTTT Act, s 21(1); see also s 5(2). The Tribunal comprises divisions exercising jurisdiction under specific statutes: CTTT Act, s 10(1); Sched 1 cl 1. ↑

17. A term defined in s 48A(1) of the Home Building Act. ↑

20. Campbell, "Principles of Evidence and Administrative Tribunals", in Campbell and Waller (eds), Well and Truly Tried, (1982) 36 at 39-43; Rees, "Procedure and Evidence in 'Court Substitute' Tribunals", (2006) 28 Australian Bar Review 41 at 69-83; Giles, "Dispensing with the Rules of Evidence", (1990) 7 Australian Bar Review 233. ↑

22. The applicability of substantive and adjectival law (apart from the rules of evidence) appears from the mechanisms, in ss 66 and 67, for referral and appeal in relation to decisions on questions with respect to matters of law. ↑

23. See, eg, Esanda Finance Corporation Ltd v Murphy (1989) ASC ¶55-703 at 58,356 per Hunt J, an appeal from the Commercial Tribunal of New South Wales concerning s 19(9) of the Commercial Tribunal Act, a precursor to s 28(2) of the CTTT Act. ↑

25. R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J. ↑

26. Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41 per Brennan J. ↑

29. CTTT Act, s 8. By an amendment effected by the Consumer, Trader and Tenancy Tribunal Amendment Act 2008 (NSW), both the Chairperson and the Deputy Chairperson (Determinations) must now be Australian lawyers. ↑

30. CTTT Act, s 36(1) and (2). In respect of matters arising under the Home Building Act, an application for permission to be represented could only be made if the proceedings involved a claim or dispute for an amount exceeding $25,000: Consumer, Trader and Tenancy Tribunal Regulation 2002 (NSW), cl 14(a). Similar provision is now made in cl 14(a) of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW). ↑

Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [47] per Bryson JA, Santow JA agreeing; Scicluna v New South Wales Land and Housing Corporation (2008) 72 NSWLR 674 at 676 [3] per Basten JA, 685 [42] per Campbell JA; see also Custom Credit Corporation Ltd v Commercial Tribunal (NSW) (1993) 32 NSWLR 489 at 492 per Gleeson CJ; Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd [2004] NSWSC 765 at [27]-[33] per Sperling J. ↑

See, in relation to the like term "in respect of", State Government Insurance Office (Qld) v Crittenden (1966) 117 CLR 412 at 416 per Taylor J; [1966] HCA 56; Workers' Compensation Board (Q) v Technical Products Pty Ltd (1988) 165 CLR 642 at 653-655 per Deane, Dawson and Toohey JJ; [1988] HCA 49; Technical Products Pty Ltd v State Government Insurance Office (Q) (1989) 167 CLR 45 at 47 per Brennan, Deane and Gaudron JJ, 51 per Dawson J, 54-55 per Toohey J; [1989] HCA 24. ↑

O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 376 per McHugh J; [1990] HCA 16. ↑

Such questions define the grant of judicial review jurisdiction in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). ↑

HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [109]-[110] per Basten JA; cf s 51(6) of the Income Tax Assessment Act 1922 (Cth) and s 196(2) of the Income Tax Assessment Act 1936 (Cth) as considered in Ruhamah Property Co Ltd v Federal Commissioner of Taxation (1928) 41 CLR 148 at 151 per Knox CJ, Gavan Duffy, Powers and Starke JJ, 155 per Isaacs J; [1928] HCA 22 and XCO Pty Ltd v Federal Commissioner of Taxation (1971) 124 CLR 343 at 348 per Gibbs J; [1971] HCA 37, respectively. ↑

Commercial Tribunal Act, ss 5(1) and 20(3). See Esanda Finance Corporation Ltd v Murphy (1989) ASC ¶55‑703 at 58,349 per Hunt J; Canham v Australian Guarantee Corporation Ltd (1990) 20 ALD 361 at 368 per Carruthers J; Sullivan v Waltons Credit Ltd (1990) ASC ¶56-023 at 59,233 per Carruthers J; Custom Credit Corporation Ltd (in liq) v Commercial Tribunal of New South Wales (2000) ASC ¶155‑041 at 200,364‑200,365 [83]‑[90] per Greg James J. See also the discussion by Gleeson CJ in Custom Credit Corporation Ltd v Commercial Tribunal (NSW) (1993) 32 NSWLR 489 at 492‑493. ↑

42. Grygiel v Baine [2005] NSWCA 218 at [26] per Basten JA, Mason P agreeing; Bahadori v Permanent Mortgages Pty Ltd (2008) 72 NSWLR 44 at 49 [18]-[20] per Tobias JA, Campbell JA agreeing; Douglas v New South Wales Land and Housing Corporation [2008] NSWCA 315 at [16]-[17] per Tobias JA, Bell JA and Gyles AJA agreeing. See also Chapman v Taylor (2005) Aust Contract Reports ¶90-205 at 88,280 [33] per Hodgson JA, Beazley and Tobias JJA agreeing. ↑

43. Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111 at 116 [8]; [2003] HCA 8. ↑

45. Supreme Court (Amendment) Act 1972 (NSW), ss 7(d) and 9(b). The enactment of s 75A was recommended by the Law Reform Commission of New South Wales in Second Report of the Law Reform Commission on Supreme Court Procedure, Report No 14, (1971) at 42 [166]. ↑

46. As appears from the term "court, body or other person" in s 75A(6) and from other sections of the Supreme Court Act contemplating appeals from such bodies: ss 46A(1)(d), 48 and 49. ↑

48. Walsh v Law Society (NSW) (1999) 198 CLR 73 at 90 [50] per McHugh, Kirby and Callinan JJ; [1999] HCA 33; see also Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298 per Glass JA. ↑

49. Allesch v Maunz (2000) 203 CLR 172 at 180 [23] per Gaudron, McHugh, Gummow and Hayne JJ; [2000] HCA 40; see also CDJ v VAJ (1998) 197 CLR 172 at 201-202 [111] per McHugh, Gummow and Callinan JJ; [1998] HCA 67. ↑

50. The predecessor to s 75A(6), s 109(3)(b), conferred similar powers by reference to those of the "court, judge, justice or person whose decision is under appeal". ↑

52. See Osland v Secretary to the Department of Justice (2010) 84 ALJR 528 at 535 [19] per French CJ, Gummow and Bell JJ; 267 ALR 231 at 238-239; [2010] HCA 24 and authorities cited therein; and see the analogous provision of s 44 of the Administrative Appeals Tribunal Act, defined as a grant of jurisdiction in s 44(10). ↑

53. See Baird v Magripilis (1925) 37 CLR 321 at 334 per Starke J; [1925] HCA 49. ↑

B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481 at 503 [75] per Allsop P, Giles and Basten JJA agreeing; GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 at 670‑671 [98]‑[99] per Basten JA, Bell JA and Young CJ in Eq agreeing. ↑

HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [120]. ↑

McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at 653‑654 [18], 654 [20] per McHugh, Gummow and Heydon JJ; [2005] HCA 55; Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [58] per Bryson JA; Grygiel v Baine [2005] NSWCA 218 at [29] per Basten JA, Mason P agreeing; Bahadori v Permanent Mortgages Pty Ltd (2008) 72 NSWLR 44 at 47 [2] per Giles JA, 53 [33] per Tobias JA. ↑

See the like observation made by Gummow J with respect to s 44 of the Administrative Appeals Tribunal Act in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178. ↑

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 per Mason CJ (with whom Brennan J agreed), 368 per Deane J, 387 per Toohey and Gaudron JJ; [1990] HCA 33. See also Brown v Repatriation Commission (1985) 7 FCR 302 at 304. ↑

As appears from the affidavit of their solicitor which was filed in the appeal from the Tribunal to the Supreme Court. ↑

73. The grounds were also relied upon, without discrimination, to support the claim for prerogative relief under s 69 of the Supreme Court Act. ↑

81. [2009] NSWCA 292 at [129], citing Handley JA in Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [61]. ↑

88. Only the first appellant is named as a party to the contract. Throughout the proceedings both appellants have been treated as contracting parties. It is convenient to continue to act on that basis. ↑

90. HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292. ↑

91. Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315. ↑

92. Kostas v HIA Insurance Services Pty Ltd [2005] NSWCTTT 345. ↑

94. Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 5(2). ↑

124. Referring to the Supreme Court Act 1970 (NSW), s 75A and Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230 at 251‑252 [95]‑[101] per Spigelman CJ. ↑

127. Lombardo v Federal Commissioner of Taxation (1979) 28 ALR 574 at 578 per Bowen CJ; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 187 per Gummow J. ↑