Livanis v Corner Office Carlingford Pty Ltd

Livanis v Corner Office Carlingford Pty Ltd - [2009] NSWDC 38 - NSWDC 2009 case summary — Zoe

[14]

75 Determination of appeals (2) The District Court may determine an appeal made under section 73 (2): (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Court for determination in accordance with the District Court' s directions, or (d) by dismissing the appeal. 76 Appointment of, and qualifications for, Assessors (1) The Minister may appoint any qualified person to be an Assessor . (2) The appointment of an Assessor may be on a full-time or part-time basis. (3) A person is qualified to be appointed as an Assessor if the person is an Australian lawyer. (4) If appointed on a full-time basis, an Assessor is to devote the whole of his or her time to the duties of the office of an Assessor . (5) Schedule 2 has effect with respect to Assessors . SCHEDULE 2 - PROVISIONS RELATING TO ASSESSORS [Parts of the Schedule not relevant to this matter are omitted] (Section 76) Term of office 1 Subject to this Schedule, an Assessor holds office, for such period (not exceeding 7 years) as may be specified in the Assessor 's instrument of appointment, but is eligible (if otherwise qualified) for re-appointment. Remuneration 2 An Assessor is entitled to be paid: (a) remuneration in accordance with the Statutory and Other Offices Remuneration 1975, and (b) such travelling and subsistence allowances as the Minister may from time to time determine in respect of the Assessor . Effect of certain other Acts . . . 3 (2) If by or under any Act provision is made: (a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or (b) prohibiting a person from engaging in employment outside the duties of that office, that provision does not operate to disqualify the person from holding that office and also the office of an Assessor appointed on a part-time basis or, subject to subclause (3), from accepting and retaining any remuneration payable to the person under this Act as an Assessor appointed on a part-time basis. (3) Subclause (2) does not operate to authorise an officer of a Local Court to accept or retain any remuneration payable to the officer as an Assessor .

[26]

12 In Kioa v West (1985) 159 CLR 550, Mason J (as he then was) said (at 584-5): "31. The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn L.C. understood that this was the law when he spoke of the obligation to "fairly listen to both sides" being "a duty lying upon every one who decides anything" ( Board of Education v. Rice (1911) AC 179 , at p 182). But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. . . 32. . . . What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting ( Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546 , at pp 552-553; National Companies and Securities Commission v. The News Corporation Ltd. [1984] HCA 29 ; (1984) 58 ALJR 308 , at pp 314, 318; [1984] HCA 29 ; 52 ALR 417 , at pp 427-428, 434). 33. In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations (cf. Salemi (No. 2) , at p.451, per Jacobs J.). 34. When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned."

[54]

Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern." 26 This decision was applied by McCallum J in a case concerning the Small Claims Division of the Local Court, Arnoldus-Lewis v Murphy [2008] NSWSC 1103.

[58]

Although the notion of constructive failure to exercise jurisdiction developed in relation to the grant of prerogative relief and, later, the grant of relief under s 75(v) it is one that has some bearing on statutory schemes for judicial review of administrative decisions of the kind set out in . . . the Act. For example, it may be that the failure of the Tribunal to take a particular matter into account indicates that, in the circumstances, the Tribunal has misunderstood its duty or applied itself to the wrong question and has, on that account, failed to conduct a review as required by s 414 of the Act." Mc Hugh, Gummow and Hayne JJ said, at [82] (omitting references): "It is necessary, however, to understand what is meant by 'jurisdictional error' under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia , if an administrative tribunal (like the Tribunal) 'falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.' 'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig , is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterization of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law."

[61]

a. She simply failed to have any regard to or to give any legal effect to several plain and formal and contemporaneous admissions of liability for the contract debt between the plaintiff and the [sic] each of the defendants below as were in evidence before her (see for example at BB1 at page 56-58; 64 (at [21]) and 80); b. She failed to have any regard for or in fact determine the actual terms of the relevant contracts and/or the terms and conditions based on the uncontested long standing course of trade and commerce between the parties and was evident before her; and/or, c. She misdirected herself by impermissibly directing her attention solely or primarily to the question of whether the defendants each acted as "agents" of various or numerous properly owners who were clients or customers of the defendants from time to time. This distracted her from her true task that was before her, namely, establishing what were the terms of the contractual arrangements as existed between the parties in circumstances where it was not contested that the plaintiff undertook the work at the request of the defendants and who had paid him over the course of many years. 27. Close consideration of the reasons for the Assessor's decision (at BB2 at transcript page 19. line 40 to page 23) reveals that she plainly allowed herself to be fundamentally distracted from her real duty by largely irrelevant concepts of agency, instead of determining the matter based on contract and long established arrangements. 28. The uncontested evidence before her (BB1 at page 47 at [14]) was that the subject invoices were all sent to the defendants ' identifying the work done and the address details' (of where the handyman work was undertaken) and the defendants ' would pay my invoice' . 29. Instead of accepting this (and the significant admissions made by the defendants before legal proceedings had commenced), the Assessor became fixated on the law of agency. 30. Incredibly, and without any evidence before her, she made the surprising finding that agents who act for disclosed principles [sic] 'operate trust accounts because they are not personally liable' (reasons - transcript page 21 line 45). 31. Further, she made a fundamental error in "assuming" (and thereby finding) (at reasons - transcript page 22 line 26) that the one work order that was in evidence before her (at BB1 page 81) was:

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