Moloney v Taylor

Court of Appeal (NSW)|2016-08-02|Before: McColl JA, Simpson JA, Ball J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT: The applicant sought leave to appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act") from part of the decision of an Appeal Panel of the New South Wales Civil and Administrative Tribunal ("the Appeal Panel") in which the Appeal Panel refused to remit to the first instance Tribunal the applicant's claim for compensation under the Holiday Parks (Long-term Casual Occupation) Act 2000 (NSW) ("the Act"). [1]
The application for leave to appeal was heard concurrently with the substantive appeal. At the conclusion of the hearing, the Court made the following orders: 1. Grant leave to appeal. 2. Direct the appellant to file a Notice of Appeal in the form of the Amended Notice of Appeal in the White Book subject to what is directed in relation to Order 3 within 7 days. 3. Vary Order 3 made by the Appeal Panel of the Tribunal by substituting the following order: the proceedings, including the question whether the claim for compensation should be ordered under s 33, are remitted to a Member for determination. 4. Order the respondent to pay the costs of the application for leave to appeal and of the appeal. It indicated that it would deliver its reasons for doing so later. These are those reasons.

Background

The appellant is the operator of a holiday park known as "Charlie's Place Caravan Park" in Lower Mangrove. The respondent, who filed a submitting appearance before this Court, occupied until 1 May 2015 a structure or structures on site 63 at the park pursuant to an agreement between the parties.
On 11 March 2015, the Tribunal (Member Ross) held that the Act applied to the agreement on the basis that there was no dispute that the respondent's original occupation was governed by the Act and the Tribunal was not satisfied that the basis of occupation had changed as a result of subsequent events. In exercise of powers granted by the Act, the Tribunal also made orders for termination of the contract and for possession of the site in favour of the appellant.
Subsequently, the appellant made an application for further orders from the Tribunal under the Act. That application was made on a form supplied for that purpose by the Tribunal. The appellant ticked a number of boxes on the form indicating the orders he sought. One of those orders was an order under s 33 of the Act for compensation for loss caused by abandonment of the site. In addition, the appellant attached to the application an annexure identifying other orders he sought including an order under s 34(2)(b) of the Act "that the Respondent is to pay the Applicant, the Applicant's costs of and incidental to the removal, destruction or disposal of all goods left by the Respondent on site number 63". The "goods" in question formed part of the structure in which the respondent had lived.
Section 33(1) of the Act provides: "If an occupant under an occupation agreement abandons the site, the occupant is liable to pay compensation to the park owner for any loss (including loss of occupation fees) caused by the abandonment."
Section 34(2) relevantly provides: "The Tribunal may, on application under this section by the person who was the park owner under an occupation agreement, make any one or more of the following orders: (a) … (b) an order authorising the sale of abandoned goods, … (f) any ancillary order that the Tribunal, in the circumstances, thinks appropriate."
On 5 January 2016, the Tribunal (again constituted by Member Ross) made a number of the orders sought by the appellant including an order that the respondent pay the appellant the sum of $19,412.80 immediately in respect of the costs of removal of the abandoned structure from site 63. The order was expressed to be made under s 34(2)(b) of the Act. The Tribunal did not refer to s 33. It appears that the Tribunal overlooked the fact that the appellant had sought orders in addition to those set out in the annexure to the application. The Tribunal also ordered the respondent to pay the appellant $2,335.30 in respect of site fees.
The CAT Act provides for what is described as "an internal right of appeal" in certain circumstances. Section 80 of the CAT Act relevantly provides: "Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."
Section 81(1) of the CAT Act provides: "In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel."
By a notice of appeal filed on 12 February 2016, the respondent lodged an internal appeal against Member Ross's decision delivered on 5 January 2016. A number of grounds were raised in the notice of appeal. None concerned the jurisdiction of the Tribunal to make an order under s 34(2)(b) of the Act for the payment of removal costs. The Appeal Panel (Marks ADCJ and Senior Member Goldstein) who heard the appeal proceeded on the basis that the notice of appeal raised questions of law for its determination and that consequently leave to appeal was unnecessary. No issue is taken with its decision to do so.
The Appeal Panel identified the respondent's first ground of appeal as one challenging the Tribunal's jurisdiction on the basis that because the structure the respondent occupied was not a "moveable dwelling", the Act did not apply. [2] The second was a complaint about the quantification of site fees which involved a "small discrepancy". Despite the challenge to the Tribunal's jurisdiction, the respondent did not appeal against the Tribunal decision of 11 March 2015, which had, as we have noted, proceeded on the basis the parties accepted the occupation was covered by the Act.
The Appeal Panel delivered its judgment on 15 April 2016. It quashed the decision at first instance on the ground that the Act only applied to an occupation agreement "under which the occupant installs the occupant's own moveable dwelling on the site" (to quote from s 5 of the Act). The Appeal Panel observed that there was no finding at first instance that the structure the respondent had erected on the site was a "moveable dwelling" as that expression was defined in the Act. Nor was there sufficient evidence before the Appeal Panel to determine that question for itself. Consequently, it remitted the proceedings to the Tribunal for determination having regard to its reasons for decision.
Despite the fact, as noted, that the respondent had not challenged in her appeal the Tribunal's jurisdiction to make the s 34(2)(b) order, it is apparent that that issue arose in the course of the Appeal Panel hearing. The Appeal Panel concluded (correctly) that the Tribunal did not have jurisdiction under s 34(2)(b) to make an order that the respondent pay the appellant the costs of the removal of the structure from the site.
The transcript of the Appeal Panel hearing was not before this Court. However, it appears from the Appeal Panel's reasons that when this issue was raised, the appellant submitted that the compensation order the Tribunal had made could be supported by the application of s 33 of the Act and that the Appeal Panel should so hold. [3] The Appeal Panel accepted that s 33 could have founded the compensation order. However, it refused to remit the appellant's claim for compensation to the Tribunal under that section. It gave the following reasons for that decision: "[30] The respondent submitted that the order for the payment of compensation made by the Member could be supported by the application of section 33, and that we should so hold. We are unable to determine whether it would be appropriate for the Member to have made the order for the payment of compensation under this provision. Firstly, the application of the respondent was made under section 34, the Member did not mention section 33 anywhere in her reasons for decision, and she only purported to apply the provisions of section 34. Secondly, whether and to what extent an order may be made under section 33 would require an examination of the provisions of that section in the context of the factual circumstances which applied in the proceedings. We do not have access to the transcript of the proceedings before the Member, nor to all of the evidentiary documentary material provided by the parties ... [31] In these circumstances it would have been impossible for us to deal with the appeal by way of a new hearing under section 80 (3) of the Civil and Administrative Tribunal Act unless an adjournment was granted, and it would certainly have been inappropriate for us to consider whether any order for the payment of compensation should be made under section 33 of the Act." And later: "[51] It remains necessary to determine the further course of the proceedings between the appellant and the respondent. In having held that the decision of the Member should be quashed, the result is that there has been no determination of the proceedings between the parties, especially as they concern the claim for unpaid site fees brought by the respondent against the appellant. In the circumstances it would appear that the appropriate course is to refer the matter back to the Member for determination of the proceedings in accordance with the jurisdiction and power invested in the Tribunal by the relevant legislation. However, such remission should exclude the order for payment of compensation as sought by the respondent, because it was based on sec 34, and we have determined that that provision does not permit such an order to be made. We shall proceed accordingly."

Reasons for the Court's decision

Under s 83(1) of the CAT Act, an appeal lies to this Court from a decision of an Appeal Panel with leave on a question of law.
It is not entirely clear from the reasons of the Appeal Panel why it refused to remit the question of compensation. One possibility is that it considered that it did not have power to make such an order because the Tribunal did not consider the sections of the Act under which such an order might be made. The other possibility is that the Appeal Panel in the exercise of its discretion did not consider it appropriate to remit the question because the Tribunal had not considered the correct sections of the Act.
Either process of reasoning involved an error of law. The Appeal Panel clearly had power pursuant to s 81(1) to make an order requiring the first instance Tribunal to reconsider a matter having regard to the correct provisions of the Act; and the conclusion that it did not was a conclusion of law. Similarly, the fact that the first instance Tribunal made an error of law could not provide a discretionary reason for refusing to remit the compensation claim. On the contrary, the error provided a reason for remitting the matter if the error could not be corrected on appeal. An error concerning what was relevant to the exercise of a discretion was also an error of law.
It may be that the Appeal Panel thought that it did not have power, or it was inappropriate, to remit the question of compensation under provisions other than s 34(2)(b) because the right to receive compensation under other provisions of the Act was not before the Tribunal. The question before the Tribunal was whether an order should be made under s 34(2)(b).
However, if that is the basis of the Appeal Panel's decision, it was not correct.
The appellant had sought an order under s 33 of the Act. It was an error of the Tribunal, and the Appeal Panel, not to deal with that application.
But even if the appellant had not specifically raised s 33 of the Act, that would not affect the outcome.
As a result of the Appeal Panel's decision, the appellant was left in the following position. The orders the Tribunal made in March 2015 which proceeded on the parties' acceptance that the respondent's occupation of site 63 was governed by the Act had not been set aside. The second Tribunal hearing clearly proceeded on the same basis, that is to say, that the respondent's occupation of site 63 was governed by the Act. However, the respondent successfully challenged that agreed position before the Appeal Panel with the consequence that the Appeal Panel quashed the second Tribunal decision and remitted the "proceedings" for determination. To the extent the remitter related to disputed monetary liability, the site fees issue involved a claim of $2,335.30. [4] Although the respondent did not challenge the Tribunal's jurisdiction to make the $19,412.80 compensation order, the Appeal Panel having concluded (as we have said, correctly) that the Tribunal did not have jurisdiction under s 34(2)(b) to make that order, nevertheless refused to remit the appellant's compensation claim for determination. This is despite the fact that in the light of its decision to quash the decision at first instance, it had (again correctly) concluded that the appellant's application for further orders had not been determined. That application, of course, included the compensation claim.
In our view, the Appeal Panel's approach misconceives the manner in which the Tribunal's powers should be exercised.
Pursuant to s 3, the objects of the CAT Act include: "(c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and … (g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members."
Section 36 of the CAT Act provides: "(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act … … (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings." (Emphasis in original)
Section 38(4) of the CAT Act provides: "The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."
Under s 45 of the CAT Act, a party to proceedings in the Tribunal has the carriage of the party's own case and is not entitled to be represented except in certain limited circumstances or with leave of the Tribunal.
A provision such as s 38(4) takes its colour from its statutory context. [5] In circumstances where s 83(1) permits an appeal to this Court with leave on a question of law, it appears that s 38(4) does not release the Tribunal from the obligation to apply rules of law in arriving at its decisions. [6] It is apparent that the Appeal Panel was seized of this proposition.
Nevertheless, as is apparent from the provisions of s 36 to which we have referred, a body such as the Tribunal (which expression includes the Appeal Panel) is not expected to conduct its proceedings with the formality of a court of law. [7] Rather, it is required to conduct itself with minimum formality and to reach decisions according to the substantive merits of the case, and not by reference to legal form or technicalities. Further, it is to exercise its powers speedily and economically. [8]
On appeal, the question for the Appeal Panel was whether in substance the Tribunal had made an appealable error and, if so, what orders should be made which would best achieve justice between the parties having regard to that error and the provisions of the Act. That question was not addressed, or not properly addressed, simply by asking the question whether the Tribunal had power to make the orders sought under the provision relied on by the Tribunal.
Whether the appellant had identified the correct section or not, it was plain that he sought to recover from the respondent compensation for the costs of removing the structure left behind by the respondent on site 63 in the caravan park. The CAT Act required both the Tribunal at first instance and the Appeal Panel to address the question whether the appellant was entitled to recover the amount claimed as a matter of substance, not in terms of legal form and technicalities, redolent of pre-Judicature Act formalism.
On appeal, the first question for the Appeal Panel was whether the Tribunal had power to make the order sought by the appellant and, if so, in what circumstances. [9] That question was not to be answered simply by asking whether the Tribunal at first instance had identified the correct basis for such a power. By concluding that the Tribunal had relied on the wrong section and giving that as a reason for why the order could not be made and the decision not be reconsidered, the Appeal Panel put legal form and technicalities ahead of the substantive issue with which it was concerned. It also involved the Appeal Panel relying on the error of the Tribunal as a ground for refusing relief in respect of that error.
In fact, the Appeal Panel identified other bases on which the Tribunal did have power to make an order for compensation, including s 33 of the Act. It concluded that it did not have sufficient information before it to determine whether the requirements of those provisions, and of s 33 in particular, had been satisfied. That conclusion raised the question what should be done and, in particular, whether the claim for compensation under the provisions identified by the Appeal Panel should be remitted to the Tribunal for determination.
The Appeal Panel contemplated conducting a new hearing but concluded that would necessitate an adjournment and that, in any event, it could not "in [those] circumstances" entertain the compensation claim under s 33. [10] Quite why the prospects of an adjournment which might lead to disposition of the proceedings was regarded as a greater evil than remitting the matter for yet another Tribunal hearing was not apparent.
Further, in circumstances where the other issues concerning the appellant's claim were remitted, it is difficult to see on what basis the claim for compensation should not be remitted.
The amount in issue in this appeal was $19,412.80. However, the Court accepted the appellant's submission that the appeal raised an important question of principle concerning how the Appeal Panel should approach an appeal before it. It erred in the approach that it took. It was for those reasons that the Court gave leave to appeal and allowed the appeal.
As we have said, the respondent filed a submitting appearance. In that, as permitted by Uniform Civil Procedure Rules 2005 (NSW) (UCPR), 6.11(1), she submitted to the making of all orders the appellant sought and the giving or entry of judgment in respect of all claims save as to costs. The reservation of the costs position does not immunise a submitting respondent from a costs order. Rather the general rule in UCPR 42.1 applies so that costs follow the event. [11] Whether the general rule should be displaced in any particular case turns on the circumstances. [12] In this case the respondent was an active party in the proceedings before the Appeal Panel. She did not consent to the relief the appellant sought, leaving him in the position of having to prove his case. [13] Accordingly, the general rule should apply. However, we are also of the view that the respondent should have a certificate under the Suitors' Fund Act 1951 (NSW) if qualified.
As the failure to advert to the submitting appearance was a slip on the part of the Court, we have corrected the costs order made on 2 August 2016 to reflect the appropriate outcome. [14]

Endnotes

See Taylor v Moloney [2016] NSWCATAP 89.
Cf the Act, s 5(1)(b); Appeal Panel (at [6]).
Appeal Panel (at [30]).
It might be assumed that the "proceedings" which were remitted, was the appellant's application for further orders consequent upon the first Tribunal decision, albeit not, of course, his application for compensation.
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 (at 30) per Gleeson CJ and Handley JA.
Ibid (at 29).
Italiano v Carbone [2005] NSWCA 177 ("Italiano") (at [8]) per Spigelman CJ.
Cf Italiano (at [12]).
Zhang v Zemin [2010] NSWCA 255; (2010) 79 NSWLR 513 (at [39] - [41]) per Spigelman CJ.
Appeal Panel (at [31]).
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) [2014] NSWCA 317; (2014) 86 NSWLR 645 (Kisimul) (at [11]).
Kisimul (at [14]).
Cf Kisimul (at [16]).
UCPR 36.17. 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: 10 August 2016

Suitors' Fund Act 1951(NSW)

Holiday Parks (Long-term Casual Occupation) Act 2000(NSW)

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