APPEAL - whether the Tribunal erred in interpreting ss 120C and 128 of the Retirement Villages Act 1999 (NSW) - no question of law and appeal dismissed - application for leave to appeal dismissed
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APPEAL - whether the Tribunal erred in interpreting ss 120C and 128 of the Retirement Villages Act 1999 (NSW) - no question of law and appeal dismissed - application for leave to appeal dismissed
Judgment (27 paragraphs)
[1]
Summary
The appellant Mr Murphy brings appeals from two decisions of the Consumer and Commercial Division of the Tribunal (the Tribunal), each dated 8 August 2018.
Mr Murphy is a resident of Vaughan Village, a retirement village operated by the respondent (the Village). The Village has 34 residential units that are predominantly occupied by retirees with "Village contracts" with the respondent.
The first decision was in matter RV 17/28737 (the Decision). Relevantly, the Appeal Panel had remitted the matter to the Tribunal for a rehearing limited to the question of whether the Tribunal should make an order that the deficit of $23,960.00 in respect of the 2013/2014 financial year, paid from an account variously described as the "Village special account" or "the reparation account", be repaid by the respondent to that account. The remitted matter was heard by the Tribunal on 21 December 2017. The Tribunal dismissed the matter as Mr Murphy did not prove to the Tribunal's satisfaction that there were any grounds for the orders claimed.
The second decision was in matter RV 14/43869. That matter was the renewal of proceedings RV 14/43869 and the purported renewal of AP 16/39068. Those proceedings had been listed for renewal on the basis that the respondent had failed to undertake works ordered by the Tribunal on 20 August 2015. The Tribunal was not satisfied that the respondent had failed to comply with that order. Therefore, the Tribunal dismissed the application.
For the following reasons, we have decided to dismiss the two appeals.
[2]
Definitions
As with other decisions of the Tribunal and the Appeal Panel, we will refer to the respondent as "the Operator".
We will refer to the following legislation as follows:
the Civil and Administrative Tribunal Act 2013 (NSW) as the NCAT Act;
the Retirement Villages Act 1999 (NSW) as the RV Act;
the Retirement Villages Regulation 2017 (NSW) as the 2009 Regulation;
the Retirement Villages Regulation 2017 (NSW) as the 2017 Regulation.
[3]
Appeal filed out of time
The Notice of Appeal was filed on 6 September 2018. As the two Tribunal decisions were published on 8 August 2018, the appeal was filed approximately two days late. At the hearing, the Operator did not oppose the time for filing the Notice of Appeal being extended. Accordingly, we extend the time for the filing of the Notice of Appeal to 6 September 2018.
[4]
Late submissions - prejudice to Mr Murphy
At the commencement of the appeal proceedings, Mr Murphy complained about the provision of a proposed agreed bundle of documents sought to be provided to the Appeal Panel by the Operator. The two volume bundle had been served as required by earlier directions, but Mr Murphy said that he had insufficient time to see if he agreed with the documents in the bundle. As it happens, of the 11 documents in the bundle, six were his own documents (namely submissions, responses, notices of appeal and a notice of renewal of proceedings), three were submissions of the Operator in proceedings RV 17/28737 and RV 17/44236, one was the Operator's Reply to Appeal in the present appeal, and the final document was a decision of the Tribunal.
We see no substance in the submission that Mr Murphy had insufficient time to decide whether or not these documents should be included in a proposed appeal bundle.
Mr Murphy also submitted that he had been prejudiced by the late receipt of the Operator's submissions on or about 30 November 2018. As we discussed at the appeal hearing, these submissions were served in accordance with a direction of the Appeal Panel.
Nevertheless, at the appeal hearing the Operator suggested, and the Appeal Panel agreed, that Mr Murphy should be given the opportunity to provide further written submissions responding to the respondent's submissions. We allowed Mr Murphy until 9 January 2019 to do so. Those submissions were received on that day, and responded to by the Operator on 23 January 2019.
[5]
Nature of an appeal
As we explained at the hearing, s 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Consumer and Commercial Division arise. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).
[6]
A question of law
As to questions of law, in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel considered the requirements which give rise to an appeal as of right. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to the following as constituting errors of law:
1. whether there has been a failure to provide proper reasons;
2. whether the Tribunal identified the wrong issue or asked the wrong question;
3. whether a wrong principle of law has been applied;
4. whether there was a failure to afford procedural fairness;
5. whether the Tribunal failed to take into account a relevant (mandatory) consideration;
6. whether the Tribunal took into account an irrelevant consideration;
7. whether there was no evidence to support a finding of fact;
8. whether the decision was so unreasonable that no reasonable decision-maker would have made it.
We also note that in Prendergast the Appeal Panel stated at [12] that where an appellant is not legally represented, it is apposite for the Tribunal to approach the appeal by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any procedural fairness considerations that might arise to the respondent).
[7]
Leave to appeal
We note that cl 12 of Sch 4 of the NCAT Act states that an Appeal Panel may grant leave only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
1. the decision of the Tribunal under appeal was not fair and equitable, or
2. the decision of the Tribunal under appeal was against the weight of evidence; or
3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows:
[71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . .
[79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred."
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel of the Tribunal conducted a review of the relevant cases at [65]-[79] and concluded at 84 that:
(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
As was further explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]:
Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
[8]
Structure of Reasons
We will deal with each decision under appeal separately. In relation to each, we will summarise the procedural background, the Tribunal's reasons for decision, the grounds of appeal, the competing submissions of each party and then set out our consideration of the issues.
[9]
Procedural background
The starting point is application RV 14/43869. Mr Murphy had sought nine orders from the Tribunal. These were as follows:
1. Order 1: that the Operator enforce the Village rules and prevent changes detrimental to the residents' future;
2. Order 2: that the Operator comply with the RV Act and 2017 Regulation and specifically that monies drawn from the Village special account to balance the 2013/14 budget be repaid;
3. Order 3: that the Operator refund (unspecified) amounts allegedly charged for capital works and renovation of units and for provision of security in the financial year 2013/14;
4. Order 4: that the Operator carry out capital replacement works, specifically a fountain;
5. Order 5: that the Operator comply with the RV Act in relation to presentation of budgets and obtaining consent to them and an order for a refund of overpaid recurrent charges for the financial year 2013/14;
6. Order 6: that the Operator amend the licence agreement in place with Mr and Mrs Murphy so as to be consistent with the disclosure statement and to compensate the applicant by reduction in the departure fee and the time over which the percentage is charged;
7. Order 7: that the Director-General investigate and report on whether the Village will be able to pay departure fees from the ingoing contributions and whether the operator has given false and misleading information;
8. Order 8: that the Operator "disregard" the Residents Committee as being invalidly constituted;
9. Order 9: Lastly, Mr Murphy sought orders refusing any costs application that may be made by the Operator and further to ask the Minister to fund advisory and advocacy services to the applicant and to appoint an investigator to determine whether the operator has acted in accordance with the RV Act.
In the Decision, the Tribunal ordered that the Operator repair or replace the fountain within 90 days, ordered the Operator to pay $3,117.00 into the Village operating account, and directed the Operator to comply fully with its obligations under RV Act specifically in regard to the notice of proposed annual budget and changes to recurrent charges. The application was otherwise dismissed.
Mr Murphy appealed in respect of all matters: Murphy v Trustees Catholic Aged Care Sydney [2017] NSWCATAP 139. Following concessions of the Operator, the Appeal Panel remitted the application back to the Tribunal for a rehearing limited to the question of whether the Tribunal should make an order that the deficit of $23,960.00 in respect of the 2013/2014 financial year paid from the account variously described as the village special account or the reparation account be repaid by the Operator. The Appeal Panel also ordered that, in respect of the remittal, the parties could file fresh evidence.
[10]
The Tribunal's Decision
The remitted matter was heard by the Tribunal on 21 December 2017 as RV 17/28737. The Tribunal dismissed the matter because Mr Murphy did not prove to its satisfaction that there were any grounds for the orders claimed.
The written reasons for decision, published on 8 August 2018, are lengthy and detailed. At par [88] the Tribunal concluded that the Operator did not breach the RV Act, or the 2017 Regulation, by obtaining the residents' consent to make the expenditure set out in the proposed budget for the 2014 financial year, and then by using the proceeds in the Fund (as defined in the Decision and variously described as 'the Residents Special Fund', a 'Capital Works Fund', 'the Vaughan Village Special Reparation Account', a 'Deferred Maintenance Fund', or as constituting 'Reserve Funds': see [7]), to pay for the shortfall in expenditure during the 2014 financial year. In doing so, the Tribunal:
rejected Mr Murphy's submissions that the Operator's 'reparation payments' were to make up for the Operator's 'fraudulent claims' in the promotional material: [35] and [36];
did not accept that the discrepancies referred to in Mr Murphy's submissions cast reasonable and legitimate doubt on the Village's signed audited accounts. The Tribunal found that the audited accounts gave the best available picture of the Village's financial position at the relevant time, and accepted that the signed and audited accounts for the 2014 financial year as the most reliable and accurate financial reporting of the Village's actual income and actual expenditure for the that financial year: [48];
did not accept Mr Murphy's submission as to the operation of s 112(1) of the RV Act. The Tribunal found that s 112(1) of the RV Act and cl 17 of the 2009 Regulation relate to the required form and content of an annual proposed budget, to provide transparent information to the residents of a retirement village specifically geared to the expenditure of the residents' periodic payments, or the primary source of the Village's revenue. The Tribunal further found that there was nothing in s 112(1) of the RV Act expressly, or implicitly, which limited what items or revenue or income must be brought to account in the audited financial accounts of a retirement village: [66];
found that, to the extent that a deficit existed in the 2014 financial year accounts, that deficit was $12,823 as recorded in the income and expenditure statement in the accounts, and not $23,960 as Mr Murphy submitted: [69];
considered that there is no basis for the Tribunal to find that the recurrent charges referred to in the approved annual budget were not expended by the Operator as it was authorised to do under the approved budget: [76];
concluded that the Operator did not breach the RV Act, or the 2009 Regulation by obtaining the residents' consent to make the expenditure set out in the proposed budget for the 2014 financial year, and then by using the proceeds in the Fund to pay for the shortfall in expenditure during the 2014 financial year: [88];
declined to make the order for which Mr Murphy applied by application RV 17/28737 and which the Appeal Panel remitted to the Consumer and Claims Division for rehearing: [89].
[11]
Grounds of Appeal - Appellant's submissions
The grounds of appeal are stated as follows:
RV 17/28737 Rehearing limited to question Order 2
RV 17/44236 Renewal proceedings
Cl 8 of Schedule of NCART Act
(5) This clause does not apply if: (b) The order is or has been subject of internal appeal
These grounds are not intelligible. Any grounds of appeal must be determined by examination of Mr Murphy's submissions, namely:
the six pages of submission accompanying the Notice of Appeal;
the 19 pages of submissions filed on 12 October 2018; and
the further 41 pages of submissions filed on 16 November 2018. We note that in this bundle there are 17 pages of submissions concerned with "the Renewal Proceedings". The first ten pages of these submissions are (virtually) identical to the ten pages of submissions also titled "the Renewal Proceedings". However, the final six pages (commencing with the words "The Appellant takes the opportunity to open the Tribunal's decision to a detailed understanding of how the decision was made"), are additional submissions.
In total therefore, there are approximately 66 pages of submissions. There is considerable justification in the Operator's observations that Mr Murphy's grounds of appeal take the form of a commentary on aspects of the decision of the Tribunal, and otherwise lack precision. However, it would not be correct to say that Mr Murphy has not articulated any question of law. In relation to RV 17/28737, we can see that Mr Murphy claims that the Tribunal:
"misread" s 128 of the RV Act; and
"ignored" s 120C of the RV Act.
Both these matters raise questions of law, namely the misapplication of s 128 of the RV Act, or the failure of the Tribunal to apply s 120 of the RV Act.
Other matters which appear from the submissions are Mr Murphy's claims that:
1. the Tribunal erred by dealing with matters RV 17/28737 and RV 17/44236 together;
2. the Tribunal did not deal with the question remitted to it by the Appeal Panel;
3. the Tribunal ignored the Appeal Panel's direction, in that it dealt with matters "not remitted back".
In addition to these matters, Mr Murphy takes particular umbrage at the statement of the Tribunal in par [92] that, even if the Tribunal's analysis of the relevant provisions was not correct, it would have exercised its discretion to decline the make the order that Mr Murphy applied for (that is, that the Operator to repay $12,823 to the Fund). Mr Murphy says that this matter is "perhaps the greatest and telling error", "discredits the finding of an Appeal Panel" and is "an absurdity of the first order".
There was some debate at the hearing as to whether or not the Tribunal exercised its discretion at all. As we indicated at the hearing, we are not satisfied that, in this respect, the Tribunal exercised its discretion. What the Tribunal was doing was indicating what it would have done, and what factors it would have taken into account, were it to exercise its discretion.
[12]
The Operator's Submissions
There is no need to reproduce the Operator's submissions in any detail. As we noted above, the Operator submitted at a high level that Mr Murphy's submissions were more a commentary on the Tribunal's reasons and reasoning than substantive grounds of appeal. In summary, the Operator submitted:
despite the volume of material served, it was difficult to discern any grounds of appeal;
in respect of proceedings RV 17/44236, Mr Murphy seeks to introduce new matters.
[13]
Consideration
We shall in deal with Mr Murphy's principal grounds of appeal in turn. As we have already noted, at least two grounds raise question of law for which leave is not required. These grounds are the misapplication of s 128 of the RV Act, and the failure of the Tribunal to apply s 120 of the RV Act.
We again note the reasons of the Tribunal were lengthy (totalling 42 pages). In our view, they were detailed, and persuasive.
[14]
The failure of the Tribunal to apply s 120 of the RV Act
These issues can be deal with together.
In his submissions of 12 October 2018, Mr Murphy refers to pars [90] and [91] of the Decision. At par [90] of the Decision, the Tribunal sets out s 128 of the Act. At par [91] of the Decision, a passage relied on by Mr Murphy, the Tribunal stated (in part):
"If the use of the Fund was in breach the RV Act, as Mr Murphy submitted, the Tribunal considers the following factors are relevant to the exercise of the Tribunal's exercise of its discretion as to whether to make an order under s 128 of the RV Act to require the Operator to make the deficit in the 2014 FY good from its own money".
The Tribunal then set out eight factors that it considered to be relevant to the exercise of his discretion, including that:
1. the Operator's use of the Fund to offset a deficit in the residents' total expenditure over the total residents' income was authorised by the residents of the Village;
2. the Operator used funds for the benefit of the residents for Village maintenance. The use of retained surplus meant that the residents were able to achieve an amenity by the authorised expenditure which they approved, without the necessity for paying for that expenditure by an increase in the payment of recurrent charges;
3. an order requiring the Operator to make good the deficit in the 2014 financial year from its own funds would effectively make the Operator liable to pay for expenditure that the residents wanted, and authorised, and punish the Operator for then following the requirements of s 116 (3);
4. the Tribunal was not satisfied that no part of the $12,823 could not have been carried forward into the 2015 financial year under cl 33 of the 2009 Regulation;
5. the residents agreed to the Scheme, and accepted that the payment of the share of departure fees was for use in 'Village maintenance', and accordingly the residents suffered no loss or disadvantage because the funds were used as intended, conversely, the Operator would be prejudiced by having to pay its own money to make up a deficit which was not the product of the Operator's mismanagement of expenditure;
6. a finding requiring the Operator to make good the deficit in the 2014 financial year accounts from its own funds, in circumstances where the residents had authorised the use of the Fund for that purpose, would effectively emasculate the ability of the residents to authorise the use of proceeds available to them and require funding of any desired maintenance from only one particular source of the Village's available funds.
The Senior Member accepted the Operator's submissions that:
1. if the Tribunal were to make an order requiring the Operator to repay the deficit in the 2014 financial year to the Fund, the repayment would give the residents of the Village a windfall gain to the Operator's detriment; and
2. the Operator did not receive some unfair advantage or gain by using the Fund to offset a deficit in the proposed and authorised expenditure over the total residents' income.
Mr Murphy submits the Senior Member "misread" s 128 "to imply" that the Tribunal was not limited by the orders it may make. He submits that:
"The Act, however, limits the orders it can make as they have to comply with the Act. To read this as the Tribunal has, would do away with the Act, an[d] allow the Tribunal to use its discretion un encumbered by the Act."
Mr Murphy, in substance, repeats the same submission in relation to par [91]. He then asserts, in relation to discretionary factor (1), that "the Tribunal errs in law". This assertion appears to be based on the Tribunal's misinterpretation of s 120, which sub-section (1) of which, Mr Murphy submits, is "dogmatic", namely "a deficit is to be made good by the operator of a retirement village".
In relation to the subsequent discretionary factors, Mr Murphy invokes both ss 120(1) and 120(2). Over some three and a half pages of submissions, Mr Murphy amplifies his argument. This culminates in his criticism of par [92] of the Decision, which he submits is the Tribunal's "greatest and telling" error. In par [92] the Tribunal states:
For these reasons, even if the Tribunal's analysis of the relevant provisions of the RV Act is not correct, and the Tribunal had accepted Mr Murphy's submission that the Operator's use of the Fund was not authorised by the legislation, the Tribunal would have exercised its discretion in declining to make the order which Mr Murphy has applied for to require the Operator to repay the amount of $12,823 to the Fund.
Mr Murphy submits that:
Neither the appellant nor the Appeal Panel ever mentioned a sum of $12,823.00 being required to be repaid so the Tribunal has dismissed a matter which was not before it. That the Tribunal claims to have a power to exercise its discretion and discredit the finding of an Appeal Panel is an absurdity of the first order.
The Tribunal has claimed that regardless of whether the appellant's submission was correct and whether the analysis of the relevant provisions of the RV Act was not correct the Tribunal would have exercised its discretion in declining to make an order.
The Tribunal is clearly stating that the appellant's application was a complete waste of time and has been virtually ignored by the Tribunal. The Tribunal is saying that it can use its discretion and ignore the [RV Act], which has not become, if that is so, superfluous and meaningless.
These matters are further amplified in Mr Murphy's submissions of 16 November 2018. We do not consider that these submissions advance the matter. To take two examples, as noted, at par [90], the Tribunal simply sets out the terms of s 128. However, Mr Murphy submits:
Nothing in this section limits the orders that the Tribunal may make under this Act. The Tribunal has taken it upon itself to interpret this to mean that the Tribunal has a Carte Blanc to amend the Act as it sees fit and even to ignore the Act.
This it cannot mean as it would usurp the right of Parliament to make laws.
The Appellant sees this to mean discretion can be used but only under the Act.
Judicial Discretion was dealt with in a speech by Lloyd Babb SC, Director of Public Prosecutions (NSW) at that time at the University of Wollongong, 27 April 2012. Judicial discretion is exercised when a judge is granted a power under either a statute (statutory discretion) or common law that requires a judge to choose between several different, but equally valid, courses of action.
The legal concept of discretion implies power to make a choice between alternative courses of action. If only one course can lawfully be adopted, the decision taken is not the exercise of discretion but the performance of a duty. To say that somebody has discretion presupposes that there is no uniquely right answer to his problem.
In relation to par [92] (incorrectly referred to as par [93] in the submissions), Mr Murphy submits:
If ever there was a blatant denial of justice then this declaration of the Tribunal must be it.
The Tribunal has taken on the power of Parliament and has withdrawn the Retirement Villages Act 1999 from relevance. While admitting that the appellant might be right the Tribunal puts that to one side and insists it can make an Act during a hearing and ignore the matter referred to it.
This must be challenged all the way to the High Court if necessary.
With all due respect, we consider that Mr Murphy's submissions on these matters are misconceived. We are not persuaded that he has identified any arguable question of law, and we would dismiss the appeal in relation to these grounds.
[15]
The Tribunal erred in dealing with matters RV 17/28737 and RV 17/44236 together
We deal with this matter below. In summary, as Mr Murphy did not raise the issue before the Tribunal, it is inappropriate to raise it on appeal.
[16]
The Tribunal did not deal with the question remitted to it by the Appeal Panel
[17]
The Tribunal ignored the Appeal Panel's direction in that it dealt with matters "not remitted back"
These two grounds can be considered together. The basis of the first ground appears to be the submission that the Tribunal erred in stating:
even if the Tribunal's analysis of the relevant provisions of the RV Act is not correct, and the Tribunal had accepted Mr Murphy's submission that the Operator's use of the Fund was not authorised by the legislation, the Tribunal would have exercised its discretion in declining to make the order which Mr Murphy has applied for to require the Operator to repay the amount of $12,823 to the Fund
in circumstances where the Appeal Panel had remitted the matter to the Tribunal for a rehearing limited to the question of whether the Tribunal should make an order that the deficit of $23,960.00.
We make two observations. The first is that in framing the issue on remitter as it did, the Appeal Panel was not precluding the Tribunal from finding that the deficit was some figure other than $23,960.00. The second is that, even if the Tribunal was persuaded that it should make an order in respect of $12,823, it did not in fact make such an order.
The second ground arises in relation to discretionary factor (6). Mr Murphy submits:
Order (6) The application is remitted back to the Consumer and Commercial Division of the Tribunal for a rehearing limited to the question of whether the Tribunal should make an order that the deficit of $23,960.00 in respect of the 2013/2014 year paid from the account variously described as the village special account or reparation account be repaid by the Operator to that account, and in respect of the remittal, the parties may file fresh evidence.
Why the Tribunal is ignoring the Appeal Panels direction and dealing with other matters not remitted back, must surely be an error at law.
We consider that this submission is misconceived.
Finally, we note a further submission of Mr Murphy that he was "denied justice", as the matter remitted back by the Appeal Panel had been "totally ignored". There is simply no basis to this submission.
[18]
Conclusion
In summary, to the extent that Mr Murphy identified any questions of law, the appeal is dismissed.
To the extent that leave is required in respect of any other matters, we would not grant leave. We are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
[19]
Procedural background
The renewal application largely relates to the Tribunal's order in matter RV 17/44236 in relation to the fountain. While this matter had also been the subject of appeal in AP 16/39068, as the Tribunal noted at [108] to [109] of that decision:
108. In the appeal hearing before the Appeal Panel, Mr Murphy made submissions on the fountain repair order made by the Tribunal. The Appeal Panel's decision records:
84 During the appeal hearing, Mr Murphy agreed that he had no complaint concerning the order made for the fountain to be repaired or replaced. Rather, his complaint is that the Operator has not fully complied with that order. We informed Mr Murphy that if he maintains the view that the order has not been complied with, he needs to lodge a fresh application with the Tribunal. His remedy is not one that can be dealt with by way of an appeal.
109. It was presumably as a result of the Appeal Panel's comments, that Mr Murphy filed Application RV 17/44236 and seeks an order now for the replacement of the fountain.
To understand what was sought by Mr Murphy it is necessary to refer to the renewal application filed 17 November 2017 (see Appeal Bundle at p 178). Mr Murphy states that he is seeking to renew:
proceedings RV 14/43869, and the order of 22 September 2015; and
proceedings AP 16/39068, and the order of 23 June 2017.
We shall deal with each in turn.
[20]
Application RV 14/3869
Application RV 14/3869 has been referred to above. It is in that matter that the Tribunal made order (4) requiring the Operator to repair or replace the fountain within 90 days. Leaving aside the question of whether Mr Murphy filed the Notice of Renewal within the 12 months required by cl 8 of Sch 4 of the NCAT Act, this appears to have been a properly constituted Notice of Renewal, in that the appellant was seeking to have renewed proceedings for compliance of a Tribunal order.
We have examined Mr Murphy's submissions. We are unable to identify any error of law in the Tribunal dismissing the renewal application in respect of RV 14/3869. Accordingly leave to appeal is required.
As best we understand Mr Murphy's submissions, the crux of his complaint is that the Operator replaced the fountain with "a tank". The "tank" issue appears to be the only relevant component of the renewal proceedings which the appellant was legitimately entitled to agitate (putting aside the time issue).
In addition, Mr Murphy submits that:
There has been no order of the Tribunal that the Operator has not failed to respect and, further, by these actions has held the Tribunal in contempt.
With respect to Mr Murphy, we are not satisfied that he has raised any question of law. Accordingly, he requires leave.
Putting aside the time issue, we would not grant leave to appeal on any of these matters. We are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
[21]
Application AP 16/39068
Application AP 16/39068 is an appeal matter. To our mind there is a question whether orders of the Appeal Panel were properly the subject of a renewal application at all. That is because cl 8 of Sch 4 of the NCAT Act (referred to by the Tribunal at [94]), states
Renewal of proceedings in respect of certain Division decisions
(1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.
(2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.
(3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.
(4) When proceedings have been renewed in accordance with this clause, the Tribunal:
(a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or
(b) may refuse to make such an order.
(5) This clause does not apply if:
(a) the operation of an order has been suspended, or
(b) the order is or has been the subject of an internal appeal.
The Appeal Panel, in considering internal appeals, is not exercising a "Division function". That term is defined in Sch 4 of the NCAT Act as "Division function" means a function of the Tribunal allocated to the Division by this Schedule": see cl 8(5).
As the Appeal Panel noted in Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98:
26. The Appeal Panel has held that cl 8 of Sch 4 is an additional, simple and practical method of enforcing, and promoting timely compliance with, Tribunal orders - Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [83].
27. The renewal procedure is often used where there has been non-compliance with an order requiring work to be done or repairs to be made. In the context of orders requiring work to be done in performance of a contract, cl 8 of Sch 4 can be seen as analogous to the power that a Court with equitable jurisdiction has to make alternative orders, including awarding damages, where there has been non-compliance with an order for specific performance of a contract. As to these powers see Spry ICF, The Principles of Equitable Remedies 9th Ed 2014 (Law Book Co, Sydney) (Spry) at pp 329-30 and 677-8. The High Court also touched upon these issues in Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245; [1988] HCA 11 (Sunbird) at 260-1 as did the Court of Appeal in Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 at [53]; [2007] NSWCA 104, quoting a passage from Riltang Pty Ltd v L Pty Ltd [2004] NSWSC 977 at [51].
The only orders of the Tribunal in AP 16/36908 were:
(1) The appeal is upheld for the purpose of making the orders below but is otherwise dismissed;
(2) Orders 1, 2 and 3 made in the proceedings below are affirmed;
(3) Orders 5 and 6 made in the proceedings below are set aside;
(4) The Operator is directed to take all reasonable steps to ensure residents comply with village rule 4 (in the form it was in immediately prior to 17 November 2014);
(5) Pursuant to s 128(c)(ii) of the RV Act, the Operator is ordered to take all reasonable steps to ensure that the occupants of unit 20 comply with the following rules:
8(b): you must not obstruct or permit the obstruction of walkways, entrances, stairways, corridors, fire escapes, light, windows or other parts of the common areas (for example, pot plants, hoses, brooms, racks and other items may present a hazard if left on common areas).
9(a): you must not hang any washing, towels, bedding, clothing or other article on any balcony or other part of your unit in such a way as to be visible from the outside. Such items may be hung on any lines provided in the common areas but only for a reasonable period.
(6) The application is remitted back to the Consumer and Commercial Division of the Tribunal for a rehearing limited to the question of whether the Tribunal should make an order that the deficit of $23,960.00 in respect of the 2013/2014 year paid from the account variously described as the village special account or the reparation account be repaid by the Operator to that account, and in respect of the remittal, the parties may file fresh evidence.
It is unclear how any of these orders of the Appeal Panel is a function of the Tribunal allocated to the Consumer and Commercial Division by Sch 4 to the NCAT Act.
Be that as it may, in addition to the fountain, the Tribunal dealt with three other matters in the renewal proceedings:
the balanced budget order;
visitor car parking arrangements;
payment of $1,600.
It is unclear the basis on which the Tribunal dealt with any of these matters, as they were not orders of the Tribunal which had not been complied with. As to the payment of $1,600, Mr Murphy does state in his submissions that:
Pursuant of the Decision in the matter Murphy v Trustees Catholic Aged Care clause 83 the amount of $1,600 be returned to the village.
This appears to be a reference to par [83] of the reasons of the Appeal Panel in AP 16/48369. That paragraph reads:
During the hearing of the appeal, the parties reached an agreement to the effect that the Operator would pay $1,600.00 into the village account in respect of security obligations and that Mr Murphy agreed to drop any requirement for an order under order 3.
This is not an order of the Tribunal. It is simply an observation or comments that the parties had reached this agreement. Accordingly, it is not a proper matter to be revisited in a renewal application. In any event, as the Senior Member noted at [131] of the Decision, the Operator had complied with what he described as "the Tribunal's order".
As to the fountain, the Tribunal's reasons for dismissing the renewal application were as follows:
110. The Operator is correct to submit that Mr Murphy raised his complaint concerning the Operator's repair of the fountain with the Appeal Panel. However, it is clear that in doing so Mr Murphy was not challenging the Repair Order at all, but raising his complaint as to the breach of the Repair Order. The exclusion in Schedule 4, Clause 8(5)(b) of the RV Act is intended to deal with Tribunal orders that are the subject of a challenge in an internal appeal.
111. The Repair Order was not the subject of a challenge in an internal appeal. Accordingly, the Tribunal rejects the Operator's submission that the order for the replacement of the fountain was the subject of an internal appeal, and therefore excluded by way of renewal proceedings.
112. It is correct to submit that if the Operator breached the Repair Order, it did so by failing to repair or replace the fountain within the 90 period stipulated by the Tribunal. As the Operator unsuccessfully applied to extend that 90 day period by application to the Tribunal on 7 December 2015 (see paragraph [10] of the Operator's 15 December 2017 submissions), Application RV 17/44236 was filed more than '12 months after the end of the [relevant] period' relating to the Repair Order. However, other orders were made by the Tribunal in the earlier proceedings, and the renewal proceedings relate to those other orders. There is an issue as to whether the 12 month period in cl 8(2) of Sch 4 of the NCAT Act can be made referrable to the period any one order of the Tribunal, if the Tribunal makes more than one order, or whether it must relate to the particular order which an applicant is seeking to revisit in the renewal application. It is unnecessary for the Tribunal to decide that question in the present proceedings because the Tribunal finds that there is no other order of the Tribunal which the Operator failed to comply with "within the period specified by the Tribunal' within the meaning of Cl (1) of Sch 4 of the NCAT Act which Mr Murphy can rely on to come within the 12 month period.
113. For these reasons, the Tribunal declines to make any order requiring the Operator to replace the fountain, as Mr Murphy has claimed.
that the "money taken from the Residents Reparation Fund to finance this be returned to the Residents and not the renters";
that the Appeal Panel order "the Trustees and the Principal Officer to only use names defined in the Act, for clarity, and those names must comply with the definitions in the Act or Regulations"; and that
"the same amount, taken from the Residents Reparation account be returned to the residents and other monies paid to the appellant, under the Operators' undertaking to the Appeal Panel be likewise returned to the Residents only, and not the renters".
The seeking of this relief, on appeal from the decision of the tribunal to dismiss the renewal proceeding RV 17/44236, is entirely misconceived, and should be dismissed. They are not matters the subject of those proceedings and cannot be agitated on appeal: Coulton v Holcombe [1986] HCA 33. We make further comments about this below.
Moreover, those matter could not even have been the subject of the renewal proceedings, not being matters arising from non-compliance with at Tribunal order.
In summary, we have examined the appellant's submissions. We are unable to identify any error of law in the Tribunal dismissing the renewal application in respect of application RV 14/39068. Accordingly leave to appeal is required.
We would not grant leave to appeal on any of these matters. We are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
The appeal in relation to RV 17/44236 is dismissed.
[22]
Conclusion
We have not, in terms, dealt with all the matters asserted by Mr Murphy in his submissions. However, as noted, his submissions appear in three sets of submissions, totalling some 66 pages. Generally, they are prolix, generalised, apt to confuse and frequently misconceived. As the Appeal Panel has previously remarked (see CEU v University of Technology Sydney [2018] NSWCATAD 13 at [79]), it is not necessary to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, and are often unsupported by any evidence at all. In the circumstances we have not done so: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443.
A further challenge was that various matters were raised by Mr Murphy for the first time in his appeal submissions, and were not the subject of evidence before the Tribunal constituted by Senior Member Smith, the Tribunal as constituted by Senior Member Corsaro SC, or the Appeal Panel.
We will however comment on two particular submissions.
The first is Mr Murphy's claim that he was prejudiced by the two matters being heard together. This point was not taken at the hearing before the Tribunal, although Mr Murphy does seem to have raised the issue of the order in which the two matters should be heard.
There is no substance to this submission.
To the extent that any of the matters raised by Mr Murphy were not previously raised before the Tribunal, we see no reason why this Appeal Panel should deal with them. As the Appeal Panel noted in Palm Homes Pty Ltd v Kav's Constructions Pty Ltd [2015] NSWCATAP 113, where an issue was not raised at the hearing before the Tribunal, it is not appropriate to consider it on appeal. As the plurality of the High Court of Australia noted in Coulton v Holcombe at [9]:
". . . in a recent decison of six Justices of this Court - University of Wollongong v. Metwally (No. 2) [1985] HCA 28; (1985) 59 ALJR 481, at p 483; [1985] HCA 28; 60 ALR 68, at p 71 - the Court said:
"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so".
The second matter was the submission that Senior Member Corsaro SC should have withdrawn from conducting the hearing. Mr Murphy states that he:
is not insinuating claims as to the integrity of the Member, but in hindsight, believe[s] t[that] the Member should have withdrawn himself from the hearing because of the complexities of the matters and his familiarity with the Operator and its legal team".
At the hearing the Senior Member, at the instigation of Mr Walsh, disclosed that he knew Mr Walsh because Mr Walsh had been his "junior". The Senior Member also disclosed that he had been instructed by Ms Limon (who also instructed Mr Walsh at the appeal), and Mr Andrews of Makinson d'Apice. Mr Corsaro SC expressly stated that he was disclosing those matters in order for Mr Murphy to assess his position and to indicate whether he had any objection to Mr Corsaro SC hearing the matter.
The transcript records Mr Murphy as immediately stating "I've got no objection".
It is sufficient to comment that there is no basis to this submission.
[23]
Post-hearing submissions with leave
We noted above that at the conclusion of the hearing we allowed Mr Murphy to provide some additional written submissions. These submissions were approximately 105 pages in length, being approximately 27 pages of submissions and 51 pages of annexures (with Mr Murphy including the submissions twice). His submissions deal with a range of topics, some of which were also referred to in his previous submissions. Regrettably, they suffer from similar problems identified above at [83].
The bulk of these submissions are a further commentary on the reasons for decision. They are interspersed with reflections which identify no error of law, or any reason why leave to appeal should be granted.
Again, Mr Murphy makes serious if not scandalous allegations, about the Senior Member including that:
his statement at [35] of his reasons that:
"[s]ometimes, the submissions of a self-represented litigant will stray into areas that an experienced lawyers would not, and ethically should not, enter the same areas. The Tribunal considers Mr Murphy's submissions referring to 'fraudulent claims' is such a submission"
was "a lie";
he was "ignorant and careless"; and
he made "prejudiced, denigrating and biased remarks" during the hearing.
While Mr Murphy apologies for these remarks, he also states that they are warranted to protect future litigants from "a belittling in open court and calumny in a published decision" which demonstrate an "obvious neglect of the Tribunal of not reading the submissions without the prejudice so clearly demonstrated" in the Decision.
Suffice it to say, the Operator submits, with some justification, that these additional submissions of Murphy lack clarity. In the circumstances, the Operator limits its response to three broad matters it submits it can understand.
The first is Mr Murphy's allegation that the Operator failed to produce documents. This is denied by the Operator, which submits that Mr Murphy did not at any time in the remitted hearing or the renewal proceedings to which this Appeal relates, file and serve a summons seeking production of documents by the respondent.
The Operator's submission is clearly correct, and Mr Murphy's complaint is rejected.
The second is that Mr Murphy was disadvantaged by the Operator preparing a bundle of documents. This submission too should be rejected, as it was during the course of the appeal hearing. As the Operator submits, a proposed Bundle of Documents was provided to Mr Murphy prior to the hearing of the appeal on 30 October 2018, and Mr Murphy has failed to identify how he has been disadvantaged. In any event, as the Operator rightly submits, the bundle of documents was uncontroversial. Mr Murphy had substantial opportunity to raise any issue with the bundle between 30 October 2018 and the hearing, and in fact filed further evidence and submissions on 16 November 2018.
The third matter is the inclusion of new evidence in the materials provided by Mr Murphy. In his submissions, Mr Murphy seeks leave to rely on this evidence which he says was not reasonably available.
Clause 12(c) of Sch 4 of the NCAT Act provides that an Appeal Panel may grant leave if it is satisfied the appellant may have suffered a substantial miscarriage of justice because significant new evidence has arisen, being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. As the Appeal Panel stated in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111, something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c), and that the issue was whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.
We make two comments about this application. The first is that there is no material to suggest that this evidence could not have been obtained at an earlier time.
Secondly, at the conclusion of the appeal hearing, we made it clear to Mr Murphy that the purpose of making orders for his reply submissions was to allow him the opportunity to respond to the written submissions of the Operator of 30 November 2018 and oral submissions of 4 December 2018. Mr Murphy was told that this was not an opportunity to raise new issues. Nevertheless, Mr Murphy now seeks to rely on an additional 36 pages of new evidence in the Annexures to his submissions. We do not think that this is appropriate. If leave is granted to make submissions on a limited issue, the submissions must not go beyond the grant of leave: Notaras v Waverley Council (2007) 161 LGERA 230 at 267.
In conclusion, we see nothing in the lengthy additional submissions of Mr Murphy as raising a question of law or warranting a grant of leave.
[24]
Post-hearing submissions without leave
On 26 January 2019, the Registry received from Mr Murphy by email a response to the Operator's post-hearing submissions. We did not grant leave to Mr Murphy to file any reply submissions, and do not know whether these materials were sent to the Operator. Accordingly, we have paid no regard to those materials in its reasons for decision.
As Mason J noted in Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 at [29]:
The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.
To similar effect, see Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 per McHugh J at [29] (with whom Gleeson CJ agreed):
Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing - ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.
See, too, the powerful guidance of a unanimous Court of Appeal in Bale v Mills [2011] NSWCA 226 at [57] to [61], which we relevantly paraphrase as follows:
the High Court, intermediate courts of appeal and other courts have deprecated in strong terms the filing of material after an appeal without leave being given;
not only have the parties and their legal representatives no right (whether they agree among themselves to do it or not) to place before the court (or a tribunal) without prior leave further material after an appeal has been heard, it is wrong. It undermines and derogates from the principle of the open administration of justice;
the consequence of this is not only that sending submissions without leave to the court (here the Appeal Panel) is wrong, but also the court (here the Appeal Panel) may and generally will ignore what has been sent.
For these reasons we have paid no regard to the submissions of Mr Murphy provided to the Registry on 26 January 2019.
[25]
Costs
Mr Murphy has been unsuccessful. If the Operator seeks an order as to costs, it should give to Mr Murphy and to the Appeal Panel any submissions as to costs within 14 days of the publication of these reasons. Mr Murphy may respond within 28 days of the date of these reasons.
We propose to deal with the question of costs, if costs are sought, on the papers and without a hearing. Any party who thinks otherwise should address that issue in their submissions.
[26]
Order
For the above reasons, we make the following orders:
1. The time for filing the Notice of Appeal is extended to 6 September 2018.
2. In respect of RV 17/28737, the appeal is dismissed. Leave to appeal on a ground other than a question of law is refused.
3. In respect of RV 17/44236, the appeal is dismissed. Leave to appeal on a ground other than a question of law is refused.
4. If the respondent seeks costs, it should give to the appellant and the Tribunal any submissions as to costs by 20 February 2019.
5. The appellant may respond by 6 March 2019
[27]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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: 07 February 2019
We referred above to the "time issue". To the extent that there could have been a renewal of proceedings RV 14/43869, any application for renewal should have been filed by 22 September 2016, whereas the Notice was filed on 17 November 2017, more than a year out of time. This does not seem to have been referred to before or by the Tribunal.
All matters considered, we are doubtful that there was any proper basis for the renewal to be before the Tribunal. In these circumstances, but given that the Member did hear and determine all renewal applications in respect of the fountain, the balanced budget order, the car parking arrangements and the payment of $1,600, we will not disturb the orders of the Tribunal.
Finally, in this appeal, Mr Murphy sought to raise new matters, by the seeking of the following orders: