[1995] HCA 58
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
[2003] HCA 26
Frost v Kourouche (2014) 86 NSWLR 214
[2014] NSWCA 39
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
[2011] NSWCA 46
Re Minister for Immigration and Multicultural and Indigenous Affairs
Source
Original judgment source is linked above.
Catchwords
[1995] HCA 58
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088[2003] HCA 26
Frost v Kourouche (2014) 86 NSWLR 214[2014] NSWCA 39
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531[2011] NSWCA 46
Re Minister for Immigration and Multicultural and Indigenous AffairsEx parte Lam (2003) 214 CLR 1[2003] HCA 6
Re Refugee Review Tribunal
Ex parte HB (2001) 179 ALR 513
[2001] HCA 34
Sing Kian Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Limited [2017] NSWSC 234
Wende v Horwath (No 2) (20156) 91 NSWLR 588
Judgment (6 paragraphs)
[1]
Judgment
Mr and Mrs Macdonald have long been divorced. After their property settlement, Mrs Macdonald continued living with their daughter, rent free, at a property at Tempe of which Mr Macdonald was the sole registered proprietor, following the transfer of Mrs Macdonald's interest in the property to him. Mr Macdonald eventually brought proceedings in the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal, to terminate a written residential tenancy agreement which he and Mrs Macdonald had entered in 2013. The proceedings were resolved at conciliation by Mr and Mrs Macdonald entering a conciliation agreement, which they and the Conciliator signed. Thereby Mrs Macdonald agreed to vacate the premises on 11 June 2016. Consent orders reflecting the agreement were also then entered.
Mrs Macdonald did not, however, vacate the premises even after service of a notice to evict. She lodged caveats over the Tempe property and another property at Marrickville, which Mr Macdonald also owned. In August 2016, Mr Macdonald filed a request for a warrant for possession of the Tempe property. Mrs Macdonald also commenced proceedings in this Court in relation to the caveats, after service of lapsing notices upon her.
On 28 August, Mrs Macdonald also filed a notice of appeal against the consent orders by which, amongst other things, she claimed not to be a tenant and that the Tribunal had no jurisdiction to make the consent orders which had been entered. She also complained that she had been denied procedural fairness at the conciliation.
Tongan is Mrs Macdonald's first language. She had no interpreter at the conciliation, or on the hearing of the motion, but she did have the assistance of an interpreter at the hearing before the Appeal Panel. Both Mr and Mrs Macdonald were unrepresented at the conciliation, as was Mrs Macdonald at the hearing before the Appeal Panel and in these proceedings.
There was no objection to Mrs Macdonald's appeal being brought out of time. The Appeal Panel, which ultimately rejected her appeal on 28 November 2016, received evidence on the matters raised by the appeal and granted Mrs Macdonald the necessary leave: Macdonald v Macdonald [2016] NSWCATAP 252.
These proceedings were commenced in December 2016, under Part 50 of the Uniform Civil Procedure Rules 2005 (NSW). The orders there sought were:
"1. #Leave to appeal from the whole of the decision below.
2. Appeal allowed.
3. Plaintiff seeks to set aside and dismiss decision made by Appeal Panel on the 28 November 2016
4. Plaintiff seeks to set aside and dismiss orders made by NSW Civil & Commercial Division on the 23 March 2016 made by the NSW Civil and Administrative Tribunal.
5. Plaintiff seeks repossession of residence at 1 William Street Tempe NSW 2044
6. Plaintiff seeks a new hearing date to be listed at NSW Civil and Administrative
7. Tribunal, with a Tongan interpreter provided for the plainti"(sic)
The grounds relied on raised complaints as to the proceedings at which the consent orders were made, including as to the Tribunal's failure to:
Provide or conduct a fair hearing;
Notify Mrs Macdonald of the hearing date;
Explain to Mrs Macdonald that if she entered the agreement, she would have to surrender possession of the property;
Provide her with an interpreter;
Provide her with fairness, by failing to speak to her separately from Mr Macdonald;
Observe the severe duress to which she was being subjected to make decisions and to prevent her from communicating with NCAT staff; and
Acknowledge that Mr Macdonald sitting close to her was unusual or questionable, in the context of a tribunal dispute.
It was also pleaded that Mr Macdonald had misinformed and misled Mrs Macdonald and had not permitted her to communicate with, or ask questions of Tribunal staff. Nor had he informed the Tribunal of their prior marriage, that had only been raised by Mrs Macdonald.
There were no complaints advanced about the conduct of the proceedings before the Appeal Panel. Nor was it alleged that it had erred in the conclusions it had reached about the matters over which the parties had joined issue on the appeal. Nevertheless, it is implicit in the case which Mrs Macdonald advanced in her summons, as she later explained in her affidavit, that she considered that the Appeal Panel had erred in the conclusions which it had reached, the grounds advancing as they did, complaints as to the lack of procedural fairness at the earlier conciliation proceedings.
By motion filed in May 2017 by Mr Macdonald, leave, if required, to extend time under r 50.16A of the Uniform Civil Procedure Rules was sought, as well as orders under s 34(1) of the Civil and Administrative Tribunal Act 2013 (NSW), refusing leave and dismissing the summons on the grounds that:
"(a) The NSW Civil and Administrative Tribunal made adequate provision for an internal review within the meaning of section 34 (1)(a) of the Civil and Administrative Tribunal Act 2013.
(b) The NSW Civil and Administrative Tribunal determined an internal appeal of the original decision within the meaning of section 34 (1)(c) of the Civil and Administrative Tribunal Act 2013.
(c) The subject matter of the appeal, that is, the plaintiff's tenancy at X XXXXXXX Street, Tempe, has been extinguished as the plaintiff vacated from the premises at X XXXXXXX Street, Tempe on voluntarily pursuant to the decision of the NSW Civil and Administrative Tribunal made on 28 November 2016; and
(d) The property is listed for auction on 27th May 2017."
Mrs Macdonald was accompanied by a friend at the hearing of the motion, but an application to have the friend speak on her behalf was objected to and refused, in circumstances where I took the view, given the nature of the matters raised on the motion and the submissions advanced for Mr Macdonald, that rather than calling on Mrs Macdonald to present her case orally, the hearing should be adjourned, so that she could have an opportunity to consider what had been argued, to seek advice and to put her own submissions in writing.
It had emerged that on 9 December 2016, at a contested hearing, Darke J had refused to order the further extension of the caveat which Mrs Macdonald had lodged over the Tempe property. His Honour also released Mr Macdonald from an undertaking he had given in relation to the matrimonial property. The Tempe property was later sold. Settlement is due in July.
On 29 May 2017, at an ex parte hearing, Robb J extended another caveat which Mrs Macdonald had filed over the Tempe property. It appears that Darke J's orders, to which no reference was made in his Honour's reasons, may not have been drawn to his attention: see Macdonald v Macdonald (Supreme Court (NSW), Robb J; 31 May 2017, unrep).
Mrs Macdonald later filed an affidavit to which was annexed various documents, by which she sought to advance her submissions. Thereby Mrs Macdonald denied that she had been served with the motion, but confirmed that she had been represented by a solicitor on 26 May, when the matter had been listed before the Registrar and the motion had been listed for hearing on 1 June. She also denied, however, that either she or her solicitor had then been served with a copy of the motion.
Mrs Macdonald there said that she suffers from a medical condition, Moyamoya disease, the symptoms of which are similar to those of a stroke, which affected her ability to make judgments and that she had had surgery to her brain in 1998, the same year as she had been involved in Family Court proceedings. Mrs Macdonald also said that she had not consented to Family Court orders made in 1998.
Mrs Macdonald also explained how she came to commence these proceedings, after making enquiries of the Tribunal. She claimed that it was only last year, that she had discovered that the transfer of the Tempe property 20 years ago had "two different signatures from two different people". She also advanced serious allegations of fraud in relation to other documents which she claimed not to have signed, even though her signature had been witnessed by a JP.
Mrs Macdonald also referred to the proceedings in relation to the caveats lodged on the Tempe property, the second of which she had filed in February 2017, which she said was now being dealt with by Darke J.
Mrs Macdonald denied having vacated the premises at Tempe, claiming that it was Mr Macdonald who had had the locks changed, after the Tribunal had made orders in his favour. The result, on her case, was that she and their daughter were homeless.
Mrs Macdonald also explained that she sought to have both the conciliation orders and the Appeal Panel's orders set aside, advancing submissions as to the procedural unfairness of the March 2016 conciliation proceedings, at which she still contended that she had not consented to the orders made. She claimed they had first came to her notice when she was provided with a copy by Tribunal staff in June 2016. Mrs Macdonald also explained that she had received some advice about that appeal from a Legal Aid Solicitor and at the hearing, had been assisted by a Tongan interpreter.
Mrs Macdonald also said that she had applied to the Family Court to have orders made in 1998 in relation to the Tempe property set aside. That application is listed on 11 July 2017. Mrs Macdonald also submitted that the auction of the property should not have proceeded, as it did, in May, when it was sold, on her case despite Mr Macdonald then being aware of her caveat.
The orders Mrs Macdonald now seeks to pursue were identified to be:
"1. … orders to set aside and withdraw decision made by NCAT Tribunal for the Judgement order on the 28/11 /16.
2. … orders to set aside and withdraw orders made on the 23/3/16
3. … order to remit the case to be heard and decided again by the Tribunal in accordance with the direction of the court.
4. … orders to set aside and withdraw orders made by the NCAT Tribunal on the 28/11/16 and to allow access and take possession of the property until further orders of the court.
5. … orders to allow access and take possession of the property until further order of the court under Family Law Act SECTION 79A to challenge 1998 File SYF 6832/1998 consent orders and set aside
6. … orders to not allow settlement of property to proceed, as auction took place of the knowledge that the caveat was in place.
7. … orders not to allow exchange of contracts to proceed as auction took place of the knowledge that the caveat was in place."
The case pressed for Mr Macdonald in written submissions in reply, considerably expanded what had earlier been advanced. There it was also submitted that s 83 of the Civil and Administrative Tribunal Act had been considered in Sing Kian Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Limited [2017] NSWSC 234 in the context of an application for security for costs, but that the conclusions reached were distinguishable.
It was there also submitted that the procedural failures about which Mrs Macdonald complained were not questions of law, but hinged on questions of fact, which had been addressed and determined by the Appeal Panel. The submissions then addressed Mrs Macdonald's appeal grounds in detail, in a way in which they had not been addressed at the hearing, with the result that Mrs Macdonald has not yet had an opportunity to respond to those submissions.
It was also argued that the Court should not permit an appeal from an appeal and that to allow the appeal to proceed, in order to prevent the sale of the Tempe property, would cause gross injustice to Mr Macdonald, for reasons then explained.
What was argued in respect of that application was that the Court's discretion under s 34 should be exercised, there being no questions of law raised by Mrs Macdonald's appeal; that she had had a fair hearing before the Appeal Panel; that she had provided no evidence to show why its decision was wrong; that it would be unjust to prevent Mr Macdonald from dealing with his property, when Mrs Macdonald's tenancy had been properly terminated in circumstances where, even if there had not been a residential tenancy agreement in existence, she had a bare licence to occupy the Tempe property, which was terminable at will.
Mrs Macdonald had been lawfully evicted and Mr Macdonald had no legal obligation to reinstate her occupation of the Tempe property. In the result, it was argued that these proceedings were futile.
[2]
The Appeal Panel's decision
The Appeal Panel observed that there was no dispute that Mrs Macdonald's signature appeared on the Conciliation Agreement, but noted that she contended that at no time had she been a tenant; that no residential tenancy agreement existed; that she had never paid rent; that she had been forced and pressured into giving a date to vacate the premises; that the Tribunal had been given false and misleading information at conciliation, which had allowed it to make an unfair decision, on an occasion when she had no knowledge that she was at a hearing. The Tribunal ought to have recognised that she was being misled and ought to have explained her situation and the orders she was consenting to, separately: [15] - [16].
The Tribunal considered that in the result, the question of the existence of the agreement founding the consent orders, raised a question of law: [19]. As did the question of the Tribunal's power to make the consent orders: [21]. That depended on evidence necessarily not before the Tribunal and so fresh evidence was permitted to be led: [23] - [24].
The documentary and oral evidence which Mrs Macdonald gave was then explained. The Appeal Panel then turned to consider the question of whether a residential tenancy agreement existed, failing which the Tribunal considered it had no power to make the consent orders: [46]. A residential tenancy agreement was found to have come into existence, despite Mrs Macdonald's evidence that she had never paid rent: [48]. Mrs Macdonald's evidence that she had not signed the Tenancy Agreement was not accepted, with the result that this aspect of her case failed: [49] - [53]. The Tribunal also noted that the tenancy agreement had not been brought to an end for failure to pay rent, but as the result of Mr Macdonald giving 90 days' notice of termination.
The Tribunal then turned to the question of the agreement founding the consent orders, which included an agreement that the residential tenancy would be terminated. After noting the provisions of s 59 "Powers when proceedings settle" of the Civil and Administrative Tribunal Act and r 37 "Matters that may be taken into account when exercising settlement powers" of the Civil and Administrative Tribunal Rules 2014 (NSW), the Tribunal turned to what it identified to be the "real question". That was identified to be "whether there is any basis to go behind the agreement as embodied in the Conciliation Agreement Form signed by the appellant, respondent and the conciliator": [58].
[3]
The application under s 34 "Inter-relationship between Tribunal and Supreme Court" of the Civil and Administrative Tribunal Act cannot be granted
Mrs Macdonald has not been legally represented, either before the Tribunal or in respect of her application to this Court, except when Mr Macdonald's motion was listed for hearing before the Registrar, when it appears she received limited pro bono assistance. Mr Macdonald was.
In the result, it is necessary to take some care in considering the case advanced for Mr Macdonald, the Court not having been assisted by an opposing legal representative, in relation to the matters of statutory construction raised by the arguments advanced for Mr Macdonald.
At the hearing I raised with Mr Macdonald's solicitor the nature of the proceedings which Mrs Macdonald has commenced in this Court. That necessarily arose because of the provision made in s 34(3) of the Civil and Administrative Tribunal Act. Section 34 provides:
"(1) The Supreme Court may:
(a) refuse to conduct a judicial review of an administratively reviewable decision if it is satisfied that, in all the circumstances, adequate provision is made for an internal review of the decision or an administrative review of the decision by the Tribunal under the Administrative Decisions Review Act 1997, or
(b) refuse to conduct a judicial review of a decision of an external decision-maker if it is satisfied that, in all the circumstances, adequate provision is made for the review of the decision by the Tribunal by way of an external appeal, or
(c) refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision.
(2) This section:
(a) permits, but does not require, the Supreme Court to refuse to conduct a judicial review of a decision on a ground referred to in subsection (1), and
(b) does not limit any power that the Supreme Court has, apart from this section, to refuse to conduct a judicial review of a decision.
(3) In this section:
internal review of an administratively reviewable decision means an internal review of the decision conducted by or on behalf of an administrator under:
(a) the Administrative Decisions Review Act 1997, or
(b) any other Act instead of the Administrative Decisions Review Act 1997.
judicial review does not include an appeal to the Supreme Court under this or any other Act."
[4]
Should leave to appeal be refused at this stage of the proceedings?
The Appeal Panel's decision is thus one which, in respect of which Mrs Macdonald is entitled to seek this Court's leave to appeal on a question of law under s 83 of the Civil and Administrative Tribunal Act. That section provides:
"(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.
(2) A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings.
(3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following:
(a) an order affirming, varying or setting aside the decision of the Tribunal,
(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.
(4) Without limiting subsection (3), the appropriate appeal court for an appeal against a civil penalty may substitute its own decision for the decision of the Tribunal that is under appeal.
(5) Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision."
Mrs Macdonald's summons seeks the Court's leave, as s 83 requires. The motion seeks an order refusing that leave on the ground that Mrs Macdonald's tenancy was extinguished, when she vacated the premises voluntarily, after the Appeal Panel's decision. That is also in issue.
It appears that Mrs Macdonald's application for leave to appeal raises matters which have not previously arisen to be considered by this Court.
Contrary to the case advanced for Mr Macdonald, Mrs Macdonald's appeal does not only raise questions of fact, which were determined by the Appeal Panel on the evidence led before it. Undoubtedly the questions of law which her appeal raises arise to be resolved in the context of the evidence which the parties led before the Appeal Panel. Even so, her appeal raises both questions of jurisdiction and procedural fairness, which both involve questions of law.
[5]
Orders
For these reasons, I am satisfied that Mr Macdonald's motion must be dismissed. The matter will return to the Registrar's list on 30 June 2017.
[6]
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: 21 June 2017
Parties
Applicant/Plaintiff:
Macdonald
Respondent/Defendant:
Macdonald
Legislation Cited (9)
Civil and Administrative Act 2013(NSW)
Consumer, Trader and Tenancy Tribunal Act 2001(NSW)
After referring to authorities in which consent orders had been considered, the Appeal Panel concluded that the applicable principles did not permit the agreement contained in the Conciliation Agreement Form which underpinned the consent orders to be set aside: [60]. The principles identified at [59] included "contumelious conduct on behalf of the respondent", such as duress and undue influence.
That conclusion rested on Mrs Macdonald's evidence, which it was observed included that "the conciliator explained to her, and that she understood, the effect of the agreement she was making, namely that the residential tenancy agreement for the premises would be terminated and that she would have to give possession of the premises to the respondent": [61]. That understanding was held to reflect "the clear and unequivocal language in the Conciliation Agreement Form that "the tenancy agreement between the parties will end today and the Tenant will vacate the premises on 11/06/2016": [61].
The Tribunal concluded at [62] - [63] that Mrs Macdonald's:
"62 ... explanation that she trusted the respondent does not explain why, when she understood the nature of the agreement she was signing as it was explained by the conciliator, she did not question either the respondent or the conciliator and seek to understand why she was agreeing to give possession of the premises to the respondent when she apparently thought they could continue to live there. We do not accept her evidence in this regard. It must be remembered that the Tribunal member also explained the nature of the orders about to be made and the appellant accepts that she was asked whether she understood and agreed to them.
63 There is no evidence of pressure, threats, or influence which made the appellant's agreement as reflected in the Conciliation Agreement Form involuntary so as to have been made under duress or to be the subject of undue influence. We do not accept that there was any relevant mistake by the appellant in signing the conciliation agreement. The appellant was not at a special disadvantage at the time she made the agreement and had it explained to her by the conciliator. Nor was she of impaired faculties. On the evidence before us, she has not established any circumstance to enable her to seek to set aside the agreement as embodied in the Conciliation Agreement Form and which formed the basis of the consent orders."
On what is in evidence it is apparent that Mrs Macdonald pursued an internal appeal to the Appeal Panel, in respect of the orders made in conciliation as s 32 of the Civil and Administrative Tribunal Act permitted. There is, however, no internal appeal provided for, in respect of the decision of the Appeal Panel: s 32(3)(a).
Mrs Macdonald's summons refers on its face to an appeal brought under Part 50 of the Uniform Civil Procedure Rules. Rule 50.1 specifies that Part applies to:
"... any appeal, other than:
(a) an appeal to the Supreme Court that, under the Supreme Court Act 1970, is assigned to the Court of Appeal, or
(b) an appeal to the Supreme Court under Part 5 of the Crimes (Appeal and Review) Act 2001, or
(c) an appeal to the Supreme Court to which the provisions of Part 80A rule 32 (1) of the Supreme Court Rules 1970 or rule 14.1 of the Supreme Court (Corporations) Rules 1999 apply."
The way in which Mrs Macdonald's appeal is drafted makes it clear that she seeks to take issue with the conclusions which the Appeal Panel reached in relation to the jurisdictional and legal questions which were raised by her appeal, including as to matters of procedural fairness.
The concept of procedural fairness is concerned with questions of practical justice: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] per Gleeson CJ and Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [41].
Failing to respond to a substantial, clearly articulated argument, relying upon established facts, can involve a denial of natural justice: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24]. A failure to accord procedural fairness can also involve jurisdictional error: see Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60] and Re Refugee Review Tribunal; Ex parte HB (2001) 179 ALR 513; [2001] HCA 34 at [10].
The Appeal Panel is a part of an administrative tribunal which cannot "authoritatively" determine questions of law, as this Court can: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at [96] - [105]. Hence the right of appeal to this Court, granted by s 83 of the Civil and Administrative Tribunal Act. That right is made subject to the requirement that the Court's leave be obtained, as Mrs Macdonald has sought.
The conclusion reached by Campbell J in Sing Kian Gan at [2], which was sought to be distinguished on the case advanced for Mr Macdonald, was correct. By s 83(1) of the Civil and Administrative Tribunal Act a party to an "internal appeal" to an Appeal Panel is granted the right to appeal to this Court, with leave, on a question of law.
The Court's power to refuse to conduct judicial review of an Appeal Panel decision, only arises under s 34(1) of the Civil and Administrative Tribunal Act if it is "an administratively reviewable decision" in respect of which "adequate provision" is made, either for an "internal review", or for an "administrative review of the decision by the Tribunal under the Administrative Decisions Review Act 1997", in respect of which judicial review is sought. Such an application may be made under s 69 of the Supreme Court Act 1970 (NSW).
Under s 34(3) of the Civil and Administrative Tribunal Act judicial review can be refused by this Court, if it is satisfied that there has been an internal review, as there has been in this case. But there it is also provided that this power does not arise to be exercised, if what is pursued is an appeal to this Court.
Such appeals are regulated by s 83 of the Civil and Administrative Tribunal Act. As discussed in Altaranesi v Sydney Local Health District [2012] NSWCA 69 at [8] - [10], that right of appeal is distinct from the exercise of review in the original jurisdiction of the Court, or under s 69 of the Supreme Court Act.
In so far as Mrs Macdonald's summons seeks to raise the merits of the Appeal Panel's decision, there is no further internal review available in respect of that decision. Nor is the Appeal Panel's decision an "administratively reviewable decision", that term being defined in s 30 by reference to s 7 of the Administrative Decisions Review Act to mean:
"(1) …. a decision of an administrator over which the Tribunal has administrative review jurisdiction.
(2) For the avoidance of doubt (and without limiting subsection (1) or section 6):
(a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and
(b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct."
"Administrator" is defined in s 8 to mean:
"(1) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.
Note. There are a number of circumstances in which a person or body is taken to have made a decision. See, for example, subsection (2) and sections 6 (2)-(5) and 9 (3) and (4).
(2) The person or body specified by enabling legislation as a person or body whose decisions are administratively reviewable decisions is taken to be the only administrator in relation to the making of an administratively reviewable decision even if some other person or body also had a role in the making of the decision."
Given what was raised by Mrs Macdonald's internal appeal, namely a challenge to the Tribunal's jurisdiction to make the consent order, in the circumstances about which Mrs Macdonald complained were procedurally unfair, given the undue pressure she complains Mr Macdonald subjected her to, there was, it appears, adequate provision made for such an internal appeal. It would seem that Mrs Macdonald was also given a fair opportunity to advance the case on which she wished to be heard, including by being given the opportunity to advance evidence before the Appeal Panel.
Even so, in so far as Mrs Macdonald contends that the Appeal Panel erred in its conclusion that the Tribunal did have jurisdiction to enter the consent orders, given the complaints she advanced as to having been denied procedural fairness, the summons raises questions of law which she is entitled to pursue by way of appeal under s 83. Section 34 does not apply to such an appeal.
Contrary to the case advanced for Mr Macdonald, it is also not apparent that Mrs Macdonald had a right to appeal to this Court from the conciliation order which was originally entered by the Tribunal, either under the Civil and Administrative Tribunal Act, or the Supreme Court Act. She did pursue her right to an internal appeal to the Appeal Panel from the consent order, which on her case, she had not consented to and had been entered after proceedings which had been procedurally unfair. Such an appeal lay under s 80(2) of the Civil and Administrative Tribunal Act.
Under that Act, parties to proceedings before the Tribunal are not also given a right of appeal to this Court from orders made by the Tribunal. Section 83 only gives parties to either internal or external appeals, a right of appeal to this Court, on a question of law, with leave, or in respect of a civil penalty.
The Tribunal's jurisdiction is dealt with in Part 3 "Jurisdiction of Tribunal" of the Civil and Administrative Tribunal Act. Section 28 deals with the Tribunal's general jurisdiction; administrative review jurisdiction; appeal jurisdiction, external and internal jurisdiction and its enforcement jurisdiction. Under s 29 the Tribunal is given general jurisdiction over a matter if:
"(a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and
(b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal."
There is also power under s 29(2) to make "ancillary and interlocutory decisions" and other functions conferred or imposed in connection with the conduct or resolution of proceedings in which the Tribunal has jurisdiction. Under s 32(1)(a) the Tribunal is granted "internal appeal jurisdiction" over "any decision made by the Tribunal in proceedings for a general decision".
Thus, Mrs Macdonald was obliged to pursue an internal appeal to the Appeal Panel against the consent orders which she claims were wrongly entered. Thereby she was entitled, as of right, to pursue any questions of law, including as to the Tribunal's jurisdiction to deal with Mr Macdonald's application: s 80(2)(d).
It follows that, contrary to the case advanced for Mr Macdonald, Mrs Macdonald's application for leave to appeal from the Appeal Panel's decision on questions of law is not one to which s 34 of the Civil and Administrative Tribunal Act, or s 69 of the Supreme Court Act apply. That is notwithstanding that an application for judicial review is one in which the Court has power to correct an error of law on the face of the record and/or jurisdictional error: Wende v Horwath (No 2) (2015) 91 NSWLR 588; [2015] NSWCA 416 at [15] - [17].
Reliance was placed for Mr Macdonald on clause 29 "Certain professional decisions to be appealed directly to Supreme Court or Land and Environment Court", of Schedule 5 "Occupational Division" to the Civil and Administrative Tribunal Act. Clause 29 refers to s 32, which regulates the Tribunal's "internal appeal jurisdiction" over decisions made by the Tribunal in proceedings for a general decision or administrative review decision and its jurisdiction to make ancillary and interlocutory decisions.
Clause 29 specifies that s 32 does not apply to particular "professional decisions" made under identified statutory schemes. In those cases, appeals do not lie to an Appeal Panel, but rather to either this Court, or to the Land and Environment Court. As was accepted for Mr Macdonald, no such provision is made in relation to the residential tenancy proceedings in which Mr and Mrs Macdonald were involved before the Tribunal.
It is Schedule 4 "Consumer and Commercial Division" which is applicable to proceedings to which the Residential Tenancies Act 2010 (NSW) applies. That Schedule does not contain a provision of the kind made in clause 29 of Schedule 5.
Reliance was also placed for Mr Macdonald on Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46. That decision is of no assistance to his case. There an appeal from a decision of the District Court was dismissed, in circumstances where an appeal lay from a predecessor tribunal, the Consumer, Trader and Tenancy Tribunal, to the District Court, through the combined operation of s 9(1)(b) of the District Court Act 1973 (NSW) and s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). It was there concluded that there was no appeal from the District Court to the Court of Appeal, under s 127 of the District Court Act, because the litigation was not an "action", as defined by s 4(1) of that Act.
It follows that what was there decided sheds no light, at all, on what here arises for determination. The Civil and Administrative Tribunal Act does not make similar provision to that then made in the District Court Act. Nor was the submission as to the "principal that an appeal should be final and that once a party has availed themselves of their rights to appeal, the claim should be exhausted, and that the appellant should not be able, in effect, to go forum shopping" of assistance, given the rights granted parties to proceedings before an Appeal Panel, by s 83 of the Civil and Administrative Tribunal Act.
It does have to be accepted that various of the orders which Mrs Macdonald seeks to have the Court make, may not fall within the Court's power, on such an appeal. There is obvious difficulty with the grant of the relief which she is ultimately pursuing, namely, her restoration to occupancy of the Tempe property.
It was thus contended for Mr Macdonald that these proceedings are now futile, given the sale of the property. That appears to depend on both the proceedings now on foot in the Family Court and in the Equity Division of this Court.
It must also be considered, however, that what is also raised by Mrs Macdonald's appeal goes to the Tribunal's jurisdiction, given what was required by way of procedural fairness in the conciliation on which its jurisdiction depended.
Section 37(1) of the Civil and Administrative Tribunal Act empowers the Tribunal, where it considers it appropriate, to use or require parties to use "any one or more resolution processes" and s 59 empowered the Tribunal to give effect to a settlement reached by the parties, following the use of such process. Section 37(2) provides:
"A resolution process is any process (including, for example, alternative dispute resolution) in which parties to proceedings are assisted to resolve or narrow the issues between them in the proceedings."
The term "alternative dispute resolution" is not defined. Nor is any reference there made to the "conciliation", at which the Appeal Panel found that a binding agreement on which the Tribunal's jurisdiction to enter orders as it did rested. By s 26 of that Act the President of the Tribunal is empowered to give "procedural directions" in relation to the practice and procedures to be followed in, and to the actual conduct of, proceedings in the Tribunal.
Those directions arose to be considered in Lee v Imad [2017] NSWCATAP 128. There the requirements of the Consumer and Commercial Division Procedural Direction Number 3 of 24 December 2013, which governs conciliation proceedings before the Tribunal, were considered. It was held that those procedures were mandatory, s26(4) requiring that both Tribunal members and the parties "must comply with any applicable procedural directions": Lee v Imad at [42].
As to conciliation, it was noted at [41] that the Direction provides:
"Conciliation
(1) Conciliation is an informal process to produce agreed outcomes that are lawful and acceptable to both parties.
(2) Where there is no Tribunal Member or Deputy Divisional Registrar allocated to assist parties to reach an agreement, the Member hearing the list will explain the conciliation process to the parties in accordance with Tribunal procedures.
(3) The Member will establish with the parties that there are no serious impediments to attempting to resolve the matter by conciliation.
(4) The Member may facilitate discussions to assist resolution but will not provide legal advice or opinion to the parties. Legal questions and issues may however be canvassed with the parties.
(5) Should the parties reach an agreed settlement by conciliation, the Member will establish that the agreed settlement is one which is within the powers of the Tribunal to make. The Member will also confirm the agreement is voluntary and that the parties understand the agreement.
(6) The Member will explain to the parties that the agreed settlement will be made into legally binding orders as it thinks fit to give effect to the agreed settlement reached by the parties."
These requirements were not referred to by the Appeal Panel in Mr and Mrs Macdonald's case, nor in the cases which the parties advanced on this motion. They appear to be highly relevant to the questions of law which are raised by Mrs Macdonald's appeal, given the complaints of lack of procedural fairness which she pursued before the Appeal Panel and which she seeks to advance on this appeal.
In the result, I consider that it is not appropriate, at this stage of these proceedings, for Mrs Macdonald to be refused the leave to appeal which she seeks.
It may be that her pursuit of the right to re-occupy the Tempe property proves to be futile. Nevertheless, her complaint that she was denied the procedural fairness which the Civil and Administrative Tribunal Act required that she be given at the conciliation, with the result that the Tribunal was not empowered to enter orders which bound her, raises important questions as to the lawful conduct of proceedings before the Tribunal.
I consider that Mrs Macdonald should not be deprived of the opportunity of pursing the questions of law in respect of which she seeks leave at this point, particularly without having a fair opportunity of being heard on the submissions advanced for Mr Macdonald on the question of leave, only in reply submissions.