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[2014] NSWCA 308
Court of Appeal (NSW)
2014-08-27
Basten JA, Meagher JA, White J
Original judgment source is linked above.
The application for leave to appeal 12The summons seeking leave to appeal identifies the decision appealed from as the decision of the primary judge of 11 December 2013. It also refers to the notice of appeal filed on 6 January 2014. In the circumstances, it is to be understood as an application for leave to appeal from each of the primary judge's decisions. Leave is required to appeal from the first of 10 December 2013 because, although a final judgment or order in proceedings in the Supreme Court, it is not one where the amount in issue is or exceeds $100,000: Supreme Court Act 1970, s 101(2)(r). The second judgment is said to be a judgment or order of the Court in a Division or a decision or determination of the Court in a Division on a stated case: Supreme Court Act 1970, s 101(1)(a), (b)(i). It is best described as being an interlocutory judgment or order in the proceedings which are the subject of the first judgment. That being the case, leave is required in relation to any appeal from that judgment or order: Supreme Court Act 1970, s 101(2)(e).
Principles relevant to the application for leave 13The primary purpose of the requirement for leave to appeal is to restrict the availability of the appeal procedure to appropriate matters, thereby promoting the availability, speed and efficiency of justice in those appeals which are appropriate to proceed to a full hearing. It also operates as a justifiable constraint upon the overall cost of litigation by protecting parties, particularly respondents, from the costs of a full hearing of appeals which should not properly be entertained by the relevant Court including when they have little or no realistic prospects of success: per Deane and Gaudron JJ in Coulter v The Queen [1988] HCA 3; 164 CLR 350 at 359. 14At the outset, it is necessary for the applicant to demonstrate arguable error. Ordinarily, it is also necessary to show that there is an issue of principle, a question of general importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. The relevant principles are collected by Basten JA in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[39].
The prospects of success of the proposed appeal 15There are eight grounds of appeal relied upon. Those grounds raise four arguments. 16The first is made by grounds of appeal 2 and 3. They are that in deciding whether the applicant had been denied procedural fairness before the Tribunal the primary judge erred in taking into account not only the events of 29 November 2013 but also the fact that the applicant was entitled to make and had made an application for the rehearing by the Tribunal of the completed proceeding. That application was made under s 68 of the CTTT Act. 17His Honour concluded at [55]: "In substance the Tribunal had a process that is analogous to the process available in the courts. When the Tribunal refused to adjourn the matter on 29 November 2013 having before it only the plaintiff's email of that morning, it had to take [into] account not only the fact that it would be determining the proceeding in the plaintiff's absence, but also of the need for expedition. It was also entitled to take into account the lack of detail as to the plaintiff's illness and the lack of corroboration. The CTTT Act provided a mechanism for any injustice that that course might have occasion[ed] to be remedied if the plaintiff could demonstrate that the decision was not fair and equitable and he had suffered a substantial injustice. The plaintiff invoked that procedure, but failed. Having regard to his failure to adduce evidence to show what his defence would have been, I do not think that he can be heard to complain that the process was unfair." 18This conclusion does not involve any error. The relevant decision-making process is to be viewed in its entirety when addressing whether there has been procedural unfairness: see, for example, albeit in a different context, the approach adopted by Mason CJ (Murphy, Aickin and Wilson JJ relevantly agreeing) in South Australia v O'Shea [1987] HCA 39; 163 CLR 378 at 389. In some cases the original or primary decision-making process may involve a staged consideration before the making of the operative decision. In other cases, such as this one, the operative decision may be subject to an opportunity for reconsideration or rehearing by the decision-maker. That is a process distinct from one of appeal or review by another administrative body or a court. Here the decision-making process included the right to apply to the Chairperson of the Tribunal for a rehearing of the completed proceeding. The applicant exercised that right and by doing so was given the opportunity (and indeed was requested) to explain why a rehearing would achieve a different decision, and one favourable to him. The fact that he did not take advantage of that opportunity when requested did not itself involve any procedural unfairness. 19The primary judge's conclusion can also be justified on an alternative basis. Even if the applicant was denied procedural fairness in relation to the hearing and determination on 29 November 2013, he had and exercised that right of review, which gave him the opportunity to put any argument as to why the earlier determination was wrong. This circumstance justified the refusal of relief in the exercise of the Court's discretion: see Calvin v Carr [1980] AC 574 at 595-596; and R v Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1981] HCA 33; 147 CLR 471 at 484-485. 20The second argument, made by ground 3, is that the primary judge did not give proper consideration to s 35 of the CTTT Act. That section required the Tribunal to ensure that each party was given a reasonable opportunity to present its case. Although his Honour addressed this provision, in the way he decided the applicant's claim, he did not need to determine whether the applicant had been denied procedural fairness or whether there had been any failure to comply with s 35: [2013] NSWSC 1890 at [26]-[30]. For these reasons this ground of appeal is irrelevant, and, to the extent that it asserts that the primary judge did not consider the operation of s 35, it is not correct. 21Next, the applicant argues that the decision of Truss DCJ was wrong (ground 6) and that the primary judge should have referred the application for hearing by a judge sitting in the Common Law Division instead of proceeding to hear it as a judge sitting in the Equity Division (ground 7). As to the former argument, the decision of Truss DCJ was not the subject of any application before the primary judge. Accordingly, the ground is irrelevant. As to the latter argument, nothing turns on the fact that the application should have been brought or dealt with in the Common Law Division. Section 41(2) of the Supreme Court Act provides that any judge of the Court may exercise its jurisdiction in any Division, with all the power and authority of a judge appointed or nominated to act in that Division. 22Finally, grounds of appeal 1 and 5 do not present any additional arguments to those already considered. It is said that the applicant suffered a substantial or further denial of procedural fairness as a result of his Honour's decision to dismiss the application to quash the judgment and orders of the Tribunal. Neither ground is to be understood as contending that there was any denial of procedural fairness in the way the proceedings were conducted before the primary judge, as distinct from the Tribunal.
Conclusion 23As the applicant has not demonstrated that either of the decisions of the primary judge is arguably wrong, there is no utility in granting the adjournment to permit his application to be dealt with on a later occasion. For that reason, the application for an adjournment should be refused. Because the proposed grounds of appeal do not identify any arguable error, the application for leave to appeal should be dismissed. It follows that the appeal must also be dismissed as incompetent. 24The consequence is that the following orders will be made in the applicant's absence. The Rules provide that the applicant may seek to set aside or vary those orders although they may have been entered: UCPR, r 36.16(2). 25The orders I propose are: (1)Application for an adjournment of the hearing of the application for leave to appeal refused. (2)Application for leave to appeal from the judgments and orders of White J of 10 and 11 December 2013 dismissed. (3)Appeal brought by notice of appeal filed on 6 January 2014 dismissed as incompetent. (4)Order the applicant to pay the respondents' costs of that appeal and application for leave, in the case of the first respondent up to 4 March 2014, and in the case of the second respondent up to 25 June 2014.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2014
Kyriakou
Long
The proceedings in the Supreme Court 8Three days later, on 9 December 2013, the applicant brought proceedings under s 69 of the Supreme Court Act 1970 (NSW) for an order quashing the Tribunal's decision of 29 November 2013. (Given the recent application to the District Court, there might have been an issue as to whether these proceedings were an abuse of process, but that point was not taken and they were addressed on their merits.) The Supreme Court proceedings were heard by the primary judge, sitting in the Equity Division, on 9 and 10 December 2013. His Honour dismissed that application: Kyriakou v Long [2013] NSWSC 1890. He did so on the basis that, taking into account the whole of the decision-making process before the Tribunal, including the application for rehearing under s 68, the applicant had not been denied procedural fairness in relation to the determination of the proceedings before the Tribunal. 9On 11 December 2013 the primary judge heard and dismissed a separate notice of motion brought by the applicant. That motion sought an order that he be allowed to continue to reside in the leased premises for a period of two weeks from that date. His Honour dismissed the motion on the basis that, having dismissed the applicant's claim in relation to the alleged denial of procedural fairness, he had no jurisdiction to grant the relief sought: Kyriakou v Long (No 2) [2013] NSWSC 1891.
[1987] HCA 39