Krslovic Homes v Timothy Sparkes & Ors

CITATION : Krslovic Homes v Timothy Sparkes & Ors [2004] NSWSC 374 revised - 7/05/2004 HEARING DATE(S) : 21/04/04 JUDGMENT DATE : 5 May 2004 JURISDICTION: Administrative Law JUDGMENT OF : Shaw J at 1 DECISION : 1) A declaration is made that the orders made by the third defendant on 7 February 2003 are void and of no effect; 2) Each party shall pay their own costs of these proceedings; 3) Certificates of indemnity are to be granted in accordance with the Suitors' Fund Act; 4) Proceedings determined accordingly; 5) Liberty to apply is granted to all parties, on reasonable notice, if further argument is required to finalise orders in accordance with this judgment

CATCHWORDS : Former Member of the Fair Trading Tribunal - Whether adjudication was made - Appeal against decisions - Costs against the Tribunal Anti-Discrimination Act 1997 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) , ss 3, 5, 21, 39, 40, 44, 52 Criminal Appeal Act 1912 (NSW), s 5B Fair Trading Tribunal Act 1998 (NSW), s 6(1) LEGISLATION CITED : Home Building Act 1989 (NSW) Justices Act 1902 (NSW), s 101 Residential Tribunal Act 1998 (NSW) Suitors' Fund Act 1951 (NSW), ss 2, 6, 6A, 6B, 6C, 6(1)a Supreme Court Act 1970 (NSW) ss 44, 76 Aboriginal Hotels Ltd v Fisher (SC (Vic) unreported, 27 November, 1997); Alice Springs Commercial Broadcasting Pty Limited v Australian Broadcasting Tribunal & Kim Wilson (Unreported, 14 October 1992); Anderson Stuart v Teleaven [2000] NSWSC 56; Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497; Basapa v Burton (1991) ASC 9 56; Blume; re Osborne (1958) SR (NSW) 334; Builders' Labourers Federation v Minister for Industrial Relations (1986) 7 NSWLR 372; Builders' Licensing Board v Pride Constructions Pty Limited (1979) 1 NSWLR 607; Carr v Werry [1979] 1 NSW 144; Clyne v East (1967) SR (NSW) 385; Cummins v McKenzie [1979] 2 NSWLR 803; ex parte Hebburn Limited v Kearsley Shire Council (1947) 47 SR (NSW) 416; ex parte Neville (1996) 2 NSWLR 481; ex parte Parsons (1952) 69 WN (NSW) 380; ex parte Vincent (1990) 16 WN (NSW) 215; Full Brick Homes Pty Ltd v Consumer Claims Tribunal (unreported 13 February 1997); Kable v Director of Public Prosecutions for the State of NSW (1996) 189 CLR 51; CASES CITED : Magistrates' Court of Victoria at Heidelberg v Robinson (2000) 2 VR 233; Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; MIR Bros Developments Pty Limited v Atlantic Construction Pty limited [1985] 1 NSWLR 491; Onions v GIO (NSW) (1956) 73 WN (NSW) 279; Our Town FM v Australian Broadcasting Tribunal (1987) 77 ALR 609; Portazon Pty Limited t/as Bordignon Engineering Co v Fair Trading Tribunal [1999] NSWSC 1084; Quidwai v Brown [1984] 1 NSWLR 100; R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; R v Cooke [1997] 1 Qd R 616; R v Kirby; ex parte Boilermakers' Society of Australia (1956) 94 CLR 254; Re Freehill Hollingdale and Page's Bill of Costs [1998] 1 Qd R 616; Reid v Sydney City Council (1995) 35 NSWLR 719; Sankey v Whitlam [1997] 1 NSWLR 333; The South East Queensland Electricity Board v Australian Telecommunications Commission 94 CLR 254; Trade Practices Tribunal ; ex parte Tasmanian Breweries Pty Limited (1970) 123 CLR 374; Turnett v Macquarie Stevedoring Company Pty Limited (No 2) (1956) 95 CLR 106; Walker v Law Society of Tasmania (SC (Tas) unreported, 13 December, 1991); Wentworth v Wentworth (1999) 46 NSWLR 300 Krslovic Homes Pty Ltd (Plaintiff) PARTIES : Timothy Nigel Sparkes (First Defendant) Sarah Elisabeth Sparkes (Second Defendant) Consumer Trader & Tenancy Tribunal (Third Defendant) FILE NUMBER(S) : SC 30035/2003 Mr Bellamy (Plaintiff) COUNSEL : Mr R Harper (First & Second Defendant) A. Johnson (sol) (Third Defendant) Dibbs Barker Gosling (Plaintiff) SOLICITORS : Stephen Miller (First & Second Defendants) Crown Solicitor's Office (Third Defendant)

LOWER COURT Consumer, Trader & Tenancy Tribunal JURISDICTION : LOWER COURT HB 00/83550 FILE NUMBER(S) : LOWER COURT Mr D Baker JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30035/03 Krslovic Homes Pty Ltd (Plaintiff) v Timothy Nigel Sparkes (First Defendant) Sarah Elisabeth Sparkes (Second Defendant) & Consumer Trader & Tenancy Tribunal (Third Defendant)

JUDGMENT 1 Shaw J: The amended summons, filed by the plaintiff on 23 September 2003, purports to be an appeal from the decision and/or orders of the Consumer Trader & Tenancy Tribunal (the Tribunal) made on 7 February 2003. An earlier summons had been filed on 14 April 2003 which again purports to be an appeal setting aside the costs component of the order made at first instance, but also an order in the nature of mandamus seeking to require the Tribunal to prepare and provide a written statement of reasons for the decision according to law. Background 2 A hearing had occurred before the then Fair Trading Tribunal (FTT) on 28 June 2001, and directions were given for the parties to make written submissions, which were finalised on 17 August 2001. After some delay, which is not explained by the evidence, a Mr Baker who had been a member of the FTT delivered a series of orders said to be made under the Home Building Act 1989 on 7 February 2003. 3 The nature of the proceedings involved a controversy about alleged breach of contract and rectification of building works. It was ordered, inter alia, that the issue of defective workmanship had been determined at the experts' conclave, various claims made by the applicant (the first and second defendants in the present proceedings) were dismissed and the respondent (the plaintiff in the present proceedings) was ordered to pay 10 per cent of the applicant's costs as agreed or assessed. The orders as published on 7 February 2003 did not disclose a reasoning process, and the orders were issued under the seal of the Tribunal. 4 Promptly, and within the relevant statutory period, the plaintiff sought reasons for these orders, and was then advised by the Tribunal on 7 April 2003 that reasons were not available by reason of the fact that the Tribunal member who dealt with the matter was "no longer a member of the CTTT" (the third defendant in these proceedings). On 14 April 2003, proceedings were commenced by the plaintiff in this court seeking an order, inter alia, that the Tribunal provide reasons. On 6 May 2003 the court (Adams J) made, by consent, orders that the Tribunal provide reasons, and such reasons were purportedly published on 6 June 2003. Mr Baker had apparently been requested by the Registrar of the Tribunal to provide reasons in accordance with the orders issued by this court flowing from the orders and/or decision of 7 February 2003. Although those reasons were issued under the seal of the Tribunal and under the heading "Consumer, Trader & Tenancy Tribunal, Home Building Division" nevertheless under the sub-heading "reasons for decision", Mr Baker said: I find myself in an unusual situation for the reason that I have never been a member of the Consumer, Trader and Tenancy Tribunal. I should state that I was formerly a member of the Fair Trading Tribunal and the member who determined the dispute between Mr & Mrs Sparkes and Krslovic Homes. In my capacity as a former member of the Fair Trading Tribunal I made orders on 7 February 2003 which finally determined the matters in dispute between these parties. Whether or not the Supreme Court has the power to order me to provide a written statement as requested in its orders is a moot point. However, as a solicitor practising in New South Wales and as an officer of the Supreme Court I have complied with the order.

Mr Baker describes himself, at the end of these reasons, as a "former member of the Fair Trading Tribunal." 5 This was, apparently, the first time at which the plaintiff and the first and second defendants had been informed that Mr Baker had never been a member of the Tribunal, although he had been a member of the FTT, constituted by s 6(1) of the Fair Trading Tribunal Act 1998. That disclosure precipitated a chain of correspondence directed to the Crown Solicitor's Office, which was acting for the Tribunal in relation to the Supreme Court proceedings. 6 On 30 June 2003, the solicitor for the plaintiff wrote to the Crown Solicitor putting forward the tentative view that, although the transitional provisions of the Consumer, Trader and Tenancy Tribunal Act 2001 (the CTTT Act) may have "several interpretations" it may be that Mr Baker's power to decide matters heard by him in the Fair Trading Tribunal ceased on the final closure date of that tribunal (25 August 2002). The letter goes on to argue that if Mr Baker was not a member of the Tribunal at the time when he made the orders on 7 February 2003 and was never appointed as a member of the Tribunal then "it may be that his decision was a nullity." The view of the Crown Solicitor was sought on this point, including a view as to whether the matter remained before the Tribunal "awaiting decision." 7 The Crown Solicitor replied by letter of 3 July 2003 indicating that the savings and transitional provisions of the CTTT Act were of "some complexity" and that no opinion would be expressed without sufficient opportunity to give them careful consideration, however, in any event it was said that it would be "inappropriate" for the Crown Solicitor to express such an opinion "lest the Tribunal appear to be acting in aid of your client." 8 The plaintiff's solicitor sent a further letter to the Crown Solicitor dated 29 July 2003 indicating that he was authorised to make a "joint request" on behalf of both the plaintiff and the first and second defendants for the Tribunal to provide its view on "this crucial issue." The tentative view is reiterated that: It may be that Mr Baker's power to decide matters heard by him in the Fair Trading Tribunal ceased on the final closure of the Tribunal. 9 On 21 August 2003 the Crown Solicitor wrote to the solicitor for the plaintiff, referring to earlier correspondence, and saying: My client has instructed me that it agrees with the view expressed in the letter of 30 June 2003 and it would have so advised you when the matter was re-listed before it.

An identical letter was sent to the solicitor for the defendants. I take that letter as indicating agreement with the proposition that "the matter appears to remain before the CTTT awaiting decision." In October 2003, some steps were taken by the Registrar of the Tribunal to re-list the matter before it, however, the solicitor for the plaintiff expressed the view, by letter of 24 October 2003, that since there was an appeal to the Supreme Court in relation to "the decision of the Tribunal made 7 February 2003" it would be appropriate for the Tribunal to await the determination of the Supreme Court before taking any further steps to advance the matter in the Tribunal. Legislation 10 The CTTT Act of 2001 (Act No 82 of 2001) appears plainly to be an exercise by the legislature to consolidate various consumer protection tribunals into a newly constituted tribunal designed to adjudicate consumer and commercial disputes and disputes between landlords and tenants. That legislation repealed the Fair Trading Tribunal Act 1998 and the Residential Tribunal Act 1998. The CTTT Act commenced on 25 February 2002 and provided for the phasing out and abolition of former tribunals. Schedule 6, clause 3, of the CTTT Act provided: Phasing out and abolition of former tribunals: (1) On and from the relevant date: (a) no application may be made to bring any matter before a former Tribunal, and (b) a former Tribunal continues to exist, and any person holding office as a member of the former Tribunal concerned immediately before that date continues to hold office, only for the purpose of the exercise by that Tribunal of its functions under clause 6. (2) A former Tribunal is abolished: (a) when the last of its members ceases, in accordance with an order under clause 5, to hold office, or (b) on the final closure date, which ever is earlier.

Clause 2 of the Schedule defined "relevant date" as meaning the day on which s 5 commences, and the "final closure date" is defined in the same clause as meaning "the day occurring 8 months after the relevant date." 11 Section 5 of the CTTT Act commenced on 25 February 2002, and hence the final closure date was 25 October 2002. Clause 3 of the Schedule required that, after 25 October 2002, the FTT ceased to exist and Mr Baker ceased to hold office as a member of the FTT. It appears that Mr Baker was never appointed to the Tribunal. Thus at the time when his orders were purportedly made, 7 February 2003, he was neither a member of the FTT nor of the Tribunal. 12 Clause 7(1) of Schedule 6 provides that if a former tribunal had commenced to hear (but not finally determined) a matter before the final closure date, the Tribunal is to continue to hear and determine the matter. It seems, therefore, that the matter remains extant or pending before the Tribunal but there is a fundamental difficulty in upholding the validity of either the orders, decision, or supply of reasons by a person who was not relevantly a statutory officer equipped with the requisite powers to determine the matter. Of course, if the orders and reasons had been dealt with in a more timely way, the present problems would not have occurred. Similarly, it must be said that various indicators contained in documents issued after 25 October 2002, that the decision making process was being undertaken by the Tribunal, were misleading. In particular a letter dated 7 April 2003 over the signature of the Deputy-Chairperson (determinations) of the Tribunal addressed to the solicitor for the plaintiff, which letter was a response to the request for written reasons for the decision, was regrettably misleading when it said: Mr Baker is no longer a Member of the Consumer, Trader & Tenancy Tribunal. He has moved to a private practice as a solicitor. I will be unable to therefore to request from him to provide reasons for the decision made in your matter.

The use of the expression "no longer a Member" seems to me to have contained the implication that he was once, and perhaps at material times, a Member of the Tribunal. As the facts have emerged, this is plainly not the case.

A Declaration is called for 13 In these circumstances it is understandable that the Tribunal now submits to this court that the orders purportedly made by Mr Baker on 7 February 2003 "therefore appear to be a nullity." The plaintiff and the first and second defendants agree with this proposition. Thus, by consent, this court is asked to make a declaration: that the orders made by the third defendant on 7 February 2003 are void and of no effect.

The legal basis of the declaration 14 There was some discussion as to the precise juridical basis for the court making a declaration of this kind. Given the fundamental nature of the defect in the proceedings at first instance, the parties were agreed that it was difficult to describe the proceedings brought to this Court as an appeal against a "decision" of the Tribunal with respect to a matter of law. Ordinarily such appeals can be brought pursuant to s 67(1) of the CTTT Act which provides: 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. However, counsel for the parties have submitted to the Court that there was, in truth and substance, no decision in the present case. 15 The Tribunal did not make any decision and the decision maker had no power to take any such step. Reference is made to Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. The fundamental question determined by the High Court was whether the Immigration Review Tribunal, constituted under federal legislation, could conduct a second hearing in circumstances where, because of a material error, it had failed to conduct a review in accordance with the statute, and failed to give a party the opportunity to be heard as required by the legislation. The court held that the jurisdiction of the Tribunal was enlivened so as to allow that second hearing. This lends support to the proposition of the parties in the proceedings before me to the effect that the Tribunal retains power to hear and determine the building controversy which has never been determined according to law, that is, the constructive failure to exercise jurisdiction left "the jurisdiction in law constructively unexercised": see ex parte Hebburn Limited v Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 per Jordan CJ. However, after considering Canadian authorities, Gaudron and Gummow JJ went on to determine a related point saying at 616, [ 53]:

In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed.

At 128 [50], their Honours held that: …only if the general law so requires or the Act impliedly so directs, are decisions involving jurisdictional error to be treated as effective unless and until set aside.

McHugh J, in relevant respects, expressly agreed (at 618 [63]). 16 I propose to follow this line of reasoning and regard, in accordance with the submissions put by the parties, the declaration made by this court as being the exercise of the inherent powers of this court and/or express powers to grant declaratory relief.

Costs 17 The remaining question that has been argued, is that of what is to be done about the costs of the proceedings in this court. Both the plaintiff and the first and second defendants submit that they are not at fault in the matter, but rather they have been misled by the Tribunal and that they were only alerted to the fundamental defect by the belated publication of reasons on 6 June 2003. These parties seek an order for costs against the Tribunal. Alternatively, the plaintiff seeks costs against the first and second defendants on the basis that it was ultimately successful in obtaining relief in these proceedings. The first and second defendants seek, in the alternative, costs against the plaintiff on the basis that they were brought to this court by the plaintiff, that they made proposals to be released at an earlier stage when costs would have been considerably reduced, and that the plaintiff should have agreed to that course. 18 In my view, neither the plaintiff nor the first and second defendants bear any responsibility for the unfortunate course of events that has occurred, and in the exercise of the discretion of the court pursuant to s. 76 of the Supreme Court Act 1970, I decline to make any orders to give effect to the alternative submissions that have been put by these parties. It would, in my view, be simply unjust for parties who are put in a situation beyond their control, knowledge, or reasonable expectations to make any payment as to costs to another party.

Costs to be awarded against the Tribunal? 19 The real question which was argued and upon which much greater emphasis was placed was whether the Tribunal should be required to pay the costs of one or more of the other parties. It should be said, at the outset, that on 28 April 2003 the Tribunal filed a Notice of Appearance, which indicated that it "appears and submits to the orders of the court, save as to costs." This conventional stance by an independent statutory tribunal was consistently maintained. The Tribunal was not, in truth or substance, a contradictor to the submissions of the other parties, but rather, except as to costs, was appropriately neutral. 20 Counsel for the plaintiff, Mr Bellamy, began by putting three propositions, which are virtually axiomatic: Costs are in the discretion of the court; costs can be made against the Tribunal; and costs should normally follow the event.

The plaintiff's submission accepted that it was "a serious matter" to order costs against a statutory tribunal, especially where a submitting appearance has been filed. However, the argument attempted to point to special features of the current proceedings that, as submitted by the plaintiff, justified such an exceptional order. 21 First of all, there had been excessive delay in the disposition of the matter at first instance. A gap between the closing of submissions before the FTT on 17 August 2001 and the delivery of orders of 13 March 2003 was excessive and inexplicable. Secondly, there was an initial refusal to provide reasons for the orders and/or decision, notwithstanding that the plaintiff promptly sought such reasons on 27 March 2003. On 7 April 2003, the Tribunal informed the plaintiff that reasons were not available and to obtain those reasons, proceedings had to be commenced in this court resulting in the consent orders of 6 May 2003. A month later, those reasons were provided. It is further emphasised that, in relation to the provision of reasons following the initial refusal there was "a change of heart" and reasons were provided. Thirdly, it is said that there were multiple misrepresentations of Mr Baker's status, that the Tribunal did not provide appropriate assistance to the parties or information about the status of the decision maker in a timely way. 22 Counsel for the first and second defendants, Mr Harper, essentially agreed with the thrust of the plaintiff's submissions to the effect that the Tribunal should pay the costs of the other parties. Counsel emphasised that his clients were the "least responsible" for any costs incurred, they had been brought to this court by the plaintiff, that counsel's instructing solicitors had raised the fundamental point upon which the substance of the proceedings has turned within a few weeks of the reasons being provided, that the court should have regard to the "degree of egregiousness" of the errors made by the Tribunal and that, although the Tribunal did not object to the making of orders in the nature of mandamus by Adams J, the Tribunal must have known, or should reasonably have known Mr Baker's position and yet they asked him to prepare reasons and publish those reasons in a document which expressly purported to be a document issued by the Tribunal itself. Counsel for the first and second defendants further pointed out that when the matter came before the duty judge of this court on 11 December 2003, the Crown Solicitor acting for the Tribunal indicated that there may be some argument, subject to further consideration, based upon the transitional provisions in the CTTT Act. 23 Ms Johnson, solicitor for the Tribunal, provided a comprehensive rebuttal to these submissions in opposing the proposition that the Tribunal should pay costs, whilst making fair and appropriate concessions in relation to some of the considerations. In relation to the complaints made about delay, the Tribunal argued that such matters were the responsibility of the individual member of the FTT and not of the current Tribunal, of which Mr Baker has never been a member. The Tribunal was not liable for costs on the basis of that delay. As to the initial refusal to provide reasons, that was a matter essentially within the remit of the FTT, and again not the responsibility of the Tribunal, as presently constituted. It was argued that the Tribunal was placed in a somewhat awkward position, newly constituted by the legislature, in the context of somewhat complicated transitional provisions, with appointments expiring and new appointments being made to the embryonic Tribunal. It was emphasised that no one had alleged deliberate misleading conduct against the Tribunal, and nor could any such proposition be properly put. I would draw the inference in the light of all of these matters that there was an element of confusion and error, which was regrettable, but that there was no lack of good faith on the part of those administering the Tribunal. Ms Johnson candidly admitted that elements of the correspondence and documents issued by the Tribunal had the effect of misleading other parties to the proceedings and that elements of this conduct were "unfortunate" but, for all that, they represented administrative errors in the context of the transitional period. 24 I accept that the thrust of submissions made on behalf of the Tribunal. I agree that the errors and delays of the FTT cannot, in point of law, be attributed to the Tribunal. In my view, it is significant that the Tribunal has not played an active role in the proceedings before this court save to provide assistance when required to facilitate the implementation of the orders made by the court and has acted consistently with the principle in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35 - 36. Whilst it is regrettable that greater clarity was not cast on this matter at an earlier date, it must be said that the high water mark of the indication that steps were being taken by the Tribunal to finalise the adjudication of this dispute, that is to say the reasons for decision given on 6 June 2003 (with the misleading heading and seal of the Tribunal), also contained the unequivocal statement that the purported decision maker had never been a member of the Tribunal, a statement which should have and did in fact cause warning bells to ring in the minds of the respective legal advisers. I accept, also, that what was involved was a number of unintentional administrative and communication errors made in the context of a complicated and changing legislative environment and accept that in a number of respects the Tribunal was placed in an awkward position. 25 Ms Johnson sought to draw an analogy between a case such as the present involving an application for costs against an independent tribunal and the high barrier which the courts have set indicating a reluctance to make costs orders against magistrates. In Sankey v Whitlam [1977] 1 NSWLR 333 at 363 Hutley JA took the view that the established case law meant that only where a magistrate has been guilty of "serious misconduct, corruption, gross ignorance or has been perverse" should a costs order be made against the magistrate. 26 In ex parte Vincent (1990) 16 WN (NSW) 215 the Full Court held that, although a magistrate had made "an extraordinary and astounding blunder …" that nonetheless he had not been guilty of such perverseness as to render him liable to an order for costs. The court noted that it was hard on the applicant that she should have to pay the costs of the application but with regret came to conclusion that the circumstances did not justify such an order. 27 In Cummins v McKenzie [1979] 2 NSWLR 803, Sheppard J was faced with the situation where a magistrate had been dealing with an offence of failure to stop and declined to hear evidence from the defendant. His Honour referred to earlier cases including ex parte Blume; re Osborn (1958) SR (NSW) 334 at 339 and Carr v Werry [1979] 1 NSWLR 144 and 147 in holding that in order to justify an order for costs against the magistrate there must be "a clear case of serious misconduct" and that an "astounding blunder" is not sufficient to lead to the conclusion that a magistrate has acted perversely. Though there was a denial of natural justice in Cummins, there was not demonstrated a "gross ignorance or perversity in the relevant sense" (p 810). These and other cases were distilled and applied by Brooking JA in the Victorian Court of Appeal, which judgment was approved of by Charles and Buchanan JJA in the Magistrates' Court of Victoria at Heidelberg v Robinson (2000) 2 VR 233. After referring to the case law, his Honour formulated the test as to the award of costs against an inferior court as requiring the commission of "some serious misconduct or serious impropriety, including a failure to observe some fundamental principle of justice…." But a mere blunder would not attract an award of costs. The approach should be benign, or reasonably so, where a bona fide mistake has been made ([10] - [11]). However, in that case, the Court of Appeal found the requisite circumstances to justify a costs order; there had been an overbearing and bullying threat to deal with an advocate for contempt, amounting to serious misconduct on the part of a magistrate. (per Charles JA at 244 [24]). 28 In Our Town FM v Australian Broadcasting Tribunal (1987) 77 ALR 609 Wilcox J, of the Federal Court of Australia, was asked to make an order against the relevant tribunal. At 612 his Honour held that it was relevant in considering such an application that the role of the tribunal had been "circumscribed", and that the tribunal had not actively intervened to support its decisions. His Honour held that it was "somewhat hard" for the courts to require tribunals not to actively intervene and "at the same time, to order the Tribunal to pay costs…." His Honour declined to lay down any categorical rule but thought generally that "only in an unusual case should the court order that the Tribunal pay costs …" [49]. As Santow J said in Wentworth v Wentworth (1999) 46 NSWLR 300 at [49]:

It would be unfair to maintain the Hardiman principle if the public official or tribunal were vulnerable to costs orders or damages. 29 The analogy with the magistrates' cases is certainly not perfect, but I think I should have some regard to the tests formulated by the courts in those cases. Although, in reply, counsel for the plaintiff asserted that the conduct of the Tribunal had been "perverse" within the adjectival tests formulated in the magistrates' cases, I think its conduct could more accurately be described, in the context of that case law, as a number of blunders, unfortunate, but innocent mistakes. Whilst not endorsed with the title of a court, the Tribunal is required to exercise quasi-judicial functions, in determining rights and liabilities between parties: It makes coercive orders (s 52, CTTT Act); The constituting statute provides protection for advocates and witnesses in the same way as is provided for in the Supreme Court (s 44); The Tribunal is protected by contempt provisions (s 44); It has the power to issue summonses (s 40); hear evidence on oath (s 39) and has other statutory powers of practice and procedure akin to those which one would expect to find vested in a court. Accordingly, I propose to have regard to all of the case law which I have cited in determining this discretionary question, whilst accepting the arguments of counsel for the plaintiff and the first and second defendants, that there are points of distinction. I note and give weight to the submissions made for the plaintiff that at least some of the proceedings concerning costs against magistrates may have resulted in the judicial officer being held personally liable for those costs, whereas in the present case the costs are sought against the statutory Tribunal generically.

30 Those seeking costs against the Tribunal place reliance upon two unreported judgments in the Federal Court of Australia. The first is the judgment of Pincus J in re The South East Queensland Electricity Board v Australian Telecommunications Commission (unreported, Fed Ct, 10 February 1989). This was a case in which a statutory board reversed its decision, changing its policy, after an appeal had been instituted. Apparently this reversal of view was as a result of an attempt to "accommodate an imminent change in the law" and was occasioned as a result of a ministerial statement. His Honour thought that a mere change of mind, having reconsidered the matter, would "ordinarily" require the decision maker to pay the costs of incomplete proceedings, whereas if a decision maker was "obliged" to reach a new and opposite conclusion by a change in external circumstances, the decision maker would not necessarily be required to pay costs. This judgment was cited and applied by O'Loughlin J in re Alice Springs Commercial Broadcasters Pty Limited v Australian Broadcasting Tribunal & Kim Wilson (unreported, 14 October 1992) in which judgment his Honour said that he balanced: the encouragement that should be given to tribunals to act appropriately at all times against the fact that in this case the admitted mistake of the Tribunal incurred the applicant in substantial expenses ….

And his Honour thought that justice would be done if the tribunal paid a part of the applicant's costs up until the date when the tribunal advised that it would be reconsidering the application for a supplementary licence. Thereafter each party was ordered to pay its own costs. 31 In my view, the present case does not fit neatly within either of the categories defined by these two Federal Court judgments. The judgments are carefully and precisely directed to the circumstances confronting the judges in those cases and do not, in my opinion, purport to prescribe any universal rule. They do not deal with innocent misleading conduct or even delay, which factors lay at the heart of the argument before me. If it can be said that the Tribunal changed its mind in this case, it did so, one can reasonably infer, as a result of the consent orders made by this court directing the provision of reasons. That, in the course of attempting to give effect to these orders, it made errors does not mean that it was inappropriate in a difficult situation to endeavour to give effect to both the earlier request and directions of this court as to the provision of reasons. As I have said earlier, in the course of providing those reasons the fundamental defect was uncovered. 32 In all of these circumstances, I decline to make an order for the Tribunal to pay the costs of the other parties in the proceedings.

Suitors' Fund Act 1951 33 However that determination does not conclude the matter because there are still questions as to whether certificates can be granted to the parties, or any of them, pursuant to s 6 of the Suitors' Fund Act 1951. The Suitors' Fund Act is designed to make provisions in respect of the liability for costs of certain litigation and to establish a fund to meet such liability.

34 The alternative of reliance on this fund to do justice to the parties in the absence of a costs order against the Tribunal was not comprehensively argued in these proceedings, however the plaintiff did make it clear that it was very much an alternative submission that the Suitors' Fund Act should be invoked and its counsel helpfully provided, after the conclusion of oral argument, some case references indicative of broad and liberal construction of the statutory scheme. The first and second defendants point to some difficulties with the application of the Act to the present litigation and complained that they would be unfairly "out of pocket" by reason of the statutory maximum payment of $10,000. However, that latter point is (if as a matter of law, it is applicable to those parties) an inevitable consequence of the legislative prescription of an arbitrary ceiling to circumscribe quantum whenever legal costs exceed it. An appeal? 35 Section 6(1)(a) of the Suitors' Fund Act applies to a successful "appeal" to the Supreme Court on a question of fact or law and empowers the court to grant an "indemnity certificate" in respect of the appeal to the respondents.

36 Section 2(1) contains an expansive definition of the term "appeal" making it clear that, in the context of this statutory scheme, it includes any "proceeding in the nature of an appeal." As I have said earlier the matter before the court is not an appeal stricto sensu, although I think that the application for a declaration as to the legal effect of the Tribunal's purported determination is sufficiently akin to an appeal to put it within the extended statutory definition. It has been held that the term "appeal" in this statute includes an application to the Supreme Court for an order in the nature of the prohibition in relation to an error made in the local court: ex parte Parsons (1952) 69 WN (NSW) 380. It also includes a case stated under s 101 of the Justices Act 1902: Builders' Licensing Board v Pride Constructions Pty Limited (1979) 1 NSWLR 607; a case stated on a question of law under s 5B of the Criminal Appeal Act 1912: ex parte Neville (1966) 2 NSWLR 481 and a reference from a prothonotary: Onions v GIO (NSW) (1956) 73 WN (NSW) 279. The definition of "appeal" in this statute extends its normal meaning "to encompass what in some respects bears some of the elements of an appeal": Wentworth v Wentworth (1999) 49 NSWLR 300 at 320 per Santow J. 37 Some inter-State cases have considered the application of the expression "in the nature of an appeal", in the context of remedial legislation of this character. In Queensland, White J referred the purpose of the analogous legislation as being to: relieve litigants from the costs of an appeal where the tribunal below acted on a mistaken view of the law not encouraged or urged upon it by the party seeking the relief.

Bearing in mind this purpose, her Honour held that 2 general references from a taxing officer to the Supreme Court concerning the officer's jurisdiction was sufficiently in the nature of an appeal: R v Cooke [1997] 1 Qd R 15 at 23; see also Re Freehill Hollingdale and Page's Bill of Costs [1998] 1 Qd R 616 at 627 per Lee J. 38 In Tasmania, a like view was taken of an application for an order to review a taxation: Walker v Law Society of Tasmania (SC (Tas), unreported, 13 December, 1991 per Crawford J). 39 In Victoria, a proceeding to have the order of the Residential Tenancies Tribunal set aside was in the nature of an appeal: Aboriginal Hotels Ltd v Fisher (SC (Vic), unreported, 27 November, 1997 per Hedigan J). 40 In Western Australia, White AJ held that proceedings before the Full Court of the Supreme Court by way of prerogative writ constituted an appeal under the relevant statutory definition, which contained the expression "in the nature of an appeal, but also a more extensive catalogue of "appeals" than is to be found in the NSW equivalent: Basapa v Burton (1991) ASC 9 56 - 049 at 56 - 725, 56 - 726. 41 In the Full Brick Homes Pty Ltd, v Consumer Claims Tribunal (Rolfe J, 13 February 1997, unreported) an application seeking relief against the relevant consumer protection tribunal, in particular, a declaration that an order it had made was void for want of natural justice, constituted an "appeal" for the purposes of the Suitors' Fund Act; this judgment was referred to by Santow J in Wentworth v Wentworth (1999) 46 NSWLR 300 at 320 [70] with qualified approval. 42 In all of these circumstances, I am of the view that there is adequate foundation for regarding the proceedings before this court as in the nature of an appeal for the purposes of the Suitors' Fund Act.

Is the Tribunal a court for relevant purposes? 43 A second question which arises as to the application of the Suitors' Fund Act is whether the proceedings before this court constituted constitute proceedings "against the decision of a court" within s 6 of the Suitors' Fund Act. Can the Tribunal be regarded as a court for the purposes of this legislation? No party has asserted that it is a tribunal or body which is prescribed within the definition of "court" in s 2 of the Act. Accordingly, one needs to refer to ordinary principles and to decided cases which, generally speaking, give an expansive meaning to the word "court" in the context of remedial legislation of this kind. 44 In Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497, the Court of Appeal considered whether the Equal Opportunity Tribunal, hearing complaints about sexual discrimination in employment under the Anti-Discrimination Act 1997 (NSW) was a "court" for the purposes of the Suitors' Fund Act. As Kirby P pointed out (at 512) it is not the name of the tribunal, that is to say whether it is called a court or not, which is determinative, rather it is "the nature of the tribunal". As his Honour said about the Tribunal in that case: " It would seem unlikely, given the history and the purpose of the Suitors' Fund Act 1951, the increase since its enactment in the number and kind of statutory tribunals and the relationship established between the Tribunal and the Supreme Court, that appeals should lie on questions of law but not attract the protection of Suitors' Fund Act because the Tribunal is not a court.

In the result, Kirby P said that the better view was that the Equal Opportunity Tribunal was a "court" for relevant purposes. Samuels JA agreed with the reasons of Kirby P (at 514). McHugh JA agreed generally with the reasons of Kirby P but added, in relation to the question as to whether the Equal Opportunity Tribunal was a court, that remedial legislation should be given a beneficial construction and held that bearing in mind the general purposes of the relevant Act, Parliament must be taken to have intended that Tribunal should qualify as court (at 515, 516). 45 The Government and Related Employees' Appeal Tribunal has been held to be a court for relevantly identical purposes that arise in this case: Reid v Sydney City Council (1995) 35 NSWLR 719 at 723 - 4, Mahoney and Meagher JJA, concurring with Kirby P. Other statutory tribunals have similarly been regarded as courts for analogous purposes: The Medical Disciplinary Tribunal: Quidwai v Brown [1984] 1 NSWLR 100 at 102 per Hutley JA; Anderson Stuart v Teleaven [2000] NSWSC 536. More directly in point is the unreported judgment of Sully J of 4 November 1999 in Portazon Pty Limited t/as Bordignon Engineering Co v Fair Trading Tribunal [1999] NSWSC 1084. As I have pointed out, the Fair Trading Tribunal was a statutory predecessor, at least in part, of the present amalgamated Tribunal constituted in 2001. His Honour was directly considering the question as to whether a defendant in the proceedings should have the benefit of an order under the Suitors' Fund Act. After referring to the text of s 6 of the Act, his Honour posed the question as to whether the Fair Trading Tribunal is correctly to be understood as exercising judicial power, and referred to the well-known passage on this question from the judgment of Kitto J in R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Limited (1970) 123 CLR at 374 - 375. To the effect that judicial power generally involves a decision settling for the future a dispute between defined parties, and inquiry as to the law as it is under facts as they are followed by an application of the law as determined of the facts as determined. The judgment goes on to consider the objects of the Act constituting the Fair Trading Tribunl, and the statutory framework generally, which objects are broadly comparable with those contained in s 3 of the Consumer, Trader & Tenancy Tribunal Act 2001. His Honour also pointed to other attributes of that predecessor Tribunal that again, generally speaking, are applicable to the Tribunal in question in the present case. Section 21 of the 2001 Act states the jurisdiction of the Tribunal in general terms as having "such jurisdiction to decide matters, and such powers to make orders and otherwise exercise any function in connection with any such decisions, as is conferred on it by this or any other Act." This provision is in pari materi with the foundational, jurisdictional provision, which with Sully J was concerned. His Honour also had regard to the broad purposes of a statute which is designed to relieve a party who incurs or becomes liable for costs, not through his own decision or conduct, but because of some error of law of the court appealed from: Mir Bros Developments Pty Limited v Atlantic Constructions Pty Limited [1985] 1 NSWLR 491 per Kirby P and Samuels JA at 494C - D. In the end his Honour concluded that the Fair Trading Tribunal is a "court" for the purposes of s 6 of the Suitor's Fund Act. Although Sully J referred to the federal concept of "judicial power" it seems to me that the position of the present Tribunal is a fortiori given that it is constituted under State law. 46 A strict separation of powers between judicial and administrative functions which is implied in Chapter III of the Commonwealth Constitution (R v Kirby; ex parte Boilermakers' Society of Australia (1956) 94 CLR 254) is inapplicable to State constitutions, courts and tribunals: Clyne v East (1967) SR (NSW) 385; Builders' Labourers Federation v Minister for Industrial Relations (1986) 7 NSWLR 372; Kable v Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51 at 65 per Brennan CJ; at 77 per Dawson J; at 92 per Toohey J; at 103, 104 per Gaudron J; at 109 per McHugh J; at 132 per Gummow J. It would be anomalous if its statutory predecessor was not so regarded, and hence as a matter of principle, applying the established indicia, and also as a matter of judicial comity proposed to hold that the Tribunal relevant in this case is a "court" for the purposes of the Suitors' Fund Act.

47 Bearing in mind that the first and second defendants are in no way at fault in the proceedings which have led to a successful result for the plaintiff, in the sense that a declaration as sought by the plaintiff is being made by the court and having regard to the unfortunate position of the parties in the way that I have described, and to all the other circumstances of the case set out in this judgment, it is my view that in the discretion of the court an indemnity certificate should be granted pursuant to S 6(1) of the Suitors' Fund Act. The exercise of this power is quintessentially a matter for discretion: see Turnett v Macquarie Stevedoring Company Pty Limited (No 2) (1956) 95 CLR 106.

48 Although s 6 of the Act is directed to the position of respondents to a successful appeal, the position of the plaintiff may be able to be accommodated pursuant to s 6C of the Act. That section deals with "a party to an appeal or other proceedings" who incurs or is liable to pay costs in the appeal or proceedings which expression would plainly include the plaintiff. It is the Director General of the Attorney General's Department or his delegate (see definition of "Director General" in s 2 of the Act) who is required to form the opinion that a payment from the fund in respect of the costs, although not strictly authorised by other sections of the Act, "would be within the spirit and intent of those sections." If that opinion is formed then, with the concurrence of the Attorney General, and subject to assessment by the Director General as to the amount of such costs an amount not exceeding $10,000 may be payable to the party. 49 Although accepting that these decisions are essentially for the Director General of the Department and for the Attorney General, it follows from that all I have said in this judgment that it would be unfair for the plaintiff to have to bear all of its costs, in the unusual circumstances of the case, and that in my opinion it would be within the spirit and intent of the other provisions of the Act (s 6, 6A or 6B) for an appropriate payment to be made from the fund to the plaintiff. I recommend this course. Orders 50 I propose to order the following: 1 A declaration is made that the orders made by the third defendant on 7 February 2003 are void and of no effect; 2 Each party shall pay their own costs of these proceedings; 3 Certificates of indemnity are to be granted in accordance with the Suitors' Fund Act; 4 Proceedings determined accordingly; 5 Liberty to apply is granted to all parties, on reasonable notice, if further argument is required to finalise orders in accordance with this judgment.

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