MACARTHUR v WALTON

The application for costs heard and rejected by the Judge on 27 April was supported by an affidavit from the complainant's solicitor, Mr David Swain, in which he said that on 16 December the counsel he was instructing on behalf of the complainant made an application for costs. The arguments before the Tribunal on that day were not recorded. The official transcript does not show that such an application was made but is not inconsistent with this having been done. The judicial member stated in his reasons of 27 April that he could not recall such an application but he did not assert the contrary. No evidence was led on behalf of the practitioner on this issue and the solicitor for the complainant was not cross-examined.

In these circumstances the complainant must be taken to have established that an application for costs was made on 16 December. The Tribunal, for whatever reason, failed to determine that application. It is not necessary to decide whether the Tribunal has a power, analogous to that available to courts under their inherent or implied jurisdiction or an express slip rule, to deal with errors and omissions in the formal orders after the proceedings as a whole have come to an end. In the present case, with respect, the Tribunal failed to deal with all the matters properly before it according to law and this failure constitutes an error of law. See Yates Property Corporation v Darling Harbour Authority (1991) 24 NSWLR 156 at 186. In appropriate proceedings this Court could make an order in the nature of mandamus requiring the Tribunal to hear and determine the outstanding application for costs according to law but relief of this kind can also be granted in appellate proceedings limited to errors of law. See Hill v King (1993) 31 NSWLR 654.