NSW Land and Housing Corporation v Diab

Procedural History 5The proceedings were commenced on 2 January 2013 in the Consumer, Trader and Tenancy Tribunal (CTTT). A hearing in the CTTT took place on 22 and 23 October 2013 and the parties' representatives made oral submissions in the matter on 12 December 2013 but the CTTT's decision was reserved and had not been delivered by 31 December 2013. On 1 January 2014, NCAT was established and on its establishment the CTTT was abolished: see s 7 of the Act and cl 3 of Schedule 1 to the Act. 6In accordance with the transitional provisions of the Act, found largely in Division 3 of Part 2 of Schedule 1 to the Act, cll 6 to 14, the Senior Member of the CTTT who had heard the matter prior to 1 January 2014 continued on to determine it sitting as NCAT. She dismissed the appellant's application. 7A copy of the reasons for decision dated 31 January 2014 was received by the appellant on 4 February 2014. The appellant lodged its Notice of Appeal under s 80 of the Act on 14 February 2014.

The Appeal Panel's Concerns 8When the appellant's Notice of Appeal was lodged, the Appeal Panel was concerned as to the operation, if any, of the transitional provisions in relation to the appellant's right of appeal from the decision in the proceedings. In particular, the concern was whether the transitional provisions required the appellant to appeal to the District Court rather than the Appeal Panel of NCAT. 9The concern arose in this way. The proceedings at first instance appeared to fall within the description of "part heard proceedings" in cl 7 of Schedule 1. In that case, they would be determined in accordance with cl 7(2) and under cl 7(3)(b), "the provisions of any Act, statutory rule or other law ... that would have applied to or in respect of the proceedings ... had [the NCAT legislation] not been enacted continue to apply". The question which concerned the Appeal Panel was whether the provisions of any Act, which would have applied in respect of the proceedings had the NCAT legislation not been enacted and which continued to apply by operation of cl 7(3)(b), included the appeal provisions found in s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the CTTT Act). If this was so, it could be argued that the appeal in the present matter should be heard by the District Court and the Appeal Panel of NCAT would not have jurisdiction to hear and determine the appeal. 10Further, the Appeal Panel was concerned that the definitions of "internally appealable decision" and "general decision" in the Act might have the consequence that the decision at first instance was not an "internally appealable decision" within the meaning of ss 80 and 32 of the Act. Consequently, on this basis as well, it could be argued that the Appeal Panel did not have jurisdiction. 11Because of these concerns, the Appeal Panel gave directions on 21 February 2014 as follows: 1. The appellant file and serve written submissions including submissions on the following questions: (a) Does NCAT have jurisdiction to hear and determine this appeal? and in particular: (b) Was the decision appealed from made in "part heard proceedings" within the meaning of cl 7(2) of Schedule 1 to the Civil and Administrative Tribunal Act 2013 (the Act)? (c) If the answer to (b) is: Yes, does cl 7(3) of Schedule 1 to the Act have the effect that any appeal from a decision made in "part heard proceedings" such as the decision in the present matter is to be made under the legislation which would have been applicable had the NCAT legislation not been enacted? (d) Was the decision appealed from an "internally appealable decision" within the meaning of ss 80 and 32 of the Act? on or before 7 March 2014. 2. The respondent file and serve written submissions including submissions on the questions referred to in the preceding direction on or before 14 March 2014. 3. The parties have leave to approach the Registrar to obtain a date for a hearing on the question of whether the Tribunal has jurisdiction to hear and determine this appeal for half a day in either the week commencing 17 March 2014 or the week commencing 24 March 2014. 12The parties filed written submission in accordance with those directions and a hearing on the preliminary question of whether the Appeal Panel of NCAT has jurisdiction to hear and determine this appeal took place on 24 March 2014.

The Tribunal has Jurisdiction to Determine whether it has Jurisdiction 13It is well established that a tribunal may decide the question of whether or not it has jurisdiction to hear and determine a matter - Griffin v Ingram [2014] NSWCATAP 5, citing Bailey v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293 at [55]. 14Furthermore, even though it may be the case in many instances that it is more appropriate not to determine jurisdiction as a preliminary question, in the present case the Appeal Panel is of the view that the interests of the parties and the administration of justice are better served by determining the question of jurisdiction as a preliminary question rather than leaving it unresolved until the final hearing. This is an appeal and not a case where the existence of jurisdiction depends upon findings of fact which are the subject of contested evidence. Furthermore, if NCAT did not have jurisdiction, the parties might well have been required to lodge an appeal or take other action in the District Court or the Supreme Court, which might have been delayed if the question of jurisdiction was not determined as soon as possible.

Two aspects to the question of jurisdiction 15From the concerns identified above, it follows that there are two aspects to the preliminary question that need to be addressed: (1)whether the transitional provisions, and in particular cl 7(3)(b), require the appeal in this matter to be brought under "the provisions of any Act ... that would have applied ... in respect of the proceedings had [the NCAT legislation] not been enacted"; and (2)whether the decision at first instance was an "internally appealable decision" within the meaning of ss 80 and 32 of the Act.

Was Any Right of Appeal Governed by cl 7(3)(b) of the Act?

Summary of first issue 16The first issue is whether the transitional provisions, and in particular cl 7(3)(b), require the appeal in this matter to be brought under "the provisions of any Act ... that would have applied ... in respect of the proceedings had [the NCAT legislation] not been enacted". This turns, in part, on whether the proceedings in which the decision appealed from was made were "part heard proceedings" within the meaning of cll 6 and 7 of the transitional provisions and in part upon the proper construction of cl 7(3).

Overview of transitional provisions 17The transitional provisions which apply in respect of NCAT and the tribunals which were abolished on NCAT's establishment are largely set out in Division 3 (cll 6 to 14) of Part 2 of Schedule 1 to the Act. They are structured as follows: (1)Subdivision 1 - Interpretation: Cl 6 - definitions of "part heard proceedings", "pending proceedings", "unexercised rights" and "unheard proceedings"; (2)Subdivision 2 - Determination of Pending Proceedings: Cl 7 - how pending proceedings in abolished tribunals, whether unheard or part heard, are to be dealt with by NCAT;Cl 8 - how pending proceedings in a Court relating to a decision of an abolished tribunal are to be dealt with, including the power to remit to NCAT instead of the abolished tribunal; (3)Subdivision 3 - Exercise of Certain Unexercised Rights:Cl 9 - applications or appeals based upon an "existing unexercised application or appeal right" may be made to NCAT for the exercise of the same functions that could have been exercised by the relevant abolished tribunal and how they are to be dealt with;Cl 10 - appeals based upon an "existing unexercised appeal right" to an Appeal Panel of the ADT or to a court may be made to an Appeal Panel of NCAT or the court in question and how they are to be dealt with; (4)Subdivision 4 - Reviews of certain existing Orders and Renewal of certain Proceedings:Cl 11 - in effect, certain orders made by the Guardianship Tribunal can be reviewed by NCAT;Cl 12 - in effect, proceedings can be renewed in respect of certain CTTT decisions as if the decisions had been made by the Consumer and Commercial Division of NCAT; (5)Subdivision 5 - Allocation of Transitional Proceedings and Enforcement of existing Orders:Cl 13 - allocating various types of transitional proceedings to divisions of NCAT or to an Appeal Panel of NCAT and how the Tribunal should be constituted in those cases;Cl 14 - orders made by abolished tribunals are taken after 1 January 2014 to be orders of NCAT. 18What can be observed from this summary of the structure of the provisions is that appeals from decisions made under the transitional provisions are not expressly dealt with. This might be taken as an indication, albeit somewhat equivocal, that once a decision has been made by NCAT, any appeal from that decision should be dealt with in NCAT's internal appeal jurisdiction rather than under the transitional provisions.

Were the Proceedings Below "Part Heard Proceedings"? 19The proceedings below were commenced on 2 January 2013 in the CTTT and the evidence and submissions had been completed by 12 December 2013 when the CTTT reserved its decision. No decision had, however, been made as at 1 January 2014 when the CTTT was abolished, by operation of cl 3 of Schedule 1 to the Act, and NCAT came into existence, under s 7 of the Act. 20Clause 6(1) of Schedule 1 to the Act contains a definition of "pending proceedings" as follows: pending proceedings are proceedings (including appeals) that: (a) were instituted or commenced before the establishment day, and (b) have not been finally determined before that day by the court or existing tribunal in which the proceedings were instituted or commenced. Note. See clause 2 (3) as to the meaning of finally determined proceedings. 21The proceedings below had been commenced before 1 January 2014, that is "the establishment day" referred to in cl 6(1) and as defined in s 7(2)(a) of the Act (no proclamation having been made under s 7(2)(b)). In addition, they had not been finally determined by the CTTT before 1 January 2014 because no decision had been made by that date. Accordingly, they are "pending proceedings" within the definition in cl 6(1). 22"Part heard proceedings" are defined in cl 6(1) as "pending proceedings where the ... existing tribunal in which the proceedings were instituted or commenced had begun to hear (but had not determined) the proceedings before the establishment day." The proceedings at first instance: (1)were pending proceedings; (2)the CTTT had begun to hear those proceedings before the establishment day, 1 January 2014; and (3)the CTTT had not determined the proceedings by making a decision before the establishment day. 23Mr O'Connor, of counsel, who appeared for the appellant submitted that the proceedings at first instance could not be said to be part heard proceedings. It was argued that this followed because not only had the CTTT begun to hear, but it had also finished hearing, those proceedings before 1 January 2014. The evidence and submissions had been completed by that date. Accordingly, they were not part heard but fully heard. Whilst this may be correct when considering the ordinary English meaning of the expression "part heard proceedings", that ordinary meaning has been displaced, for the purposes of Part 2 of Schedule 1 to the Act, by the definition in cl 6(1). The proceedings at first instance fell within that definition and thus they were "part heard proceedings" for the purposes of the transitional provisions of the Act, if not for other purposes. 24Furthermore, if the proceedings at first instance were not "part heard proceedings" for the purposes of the transitional provisions there would be no mechanism under those provisions whereby such proceedings could be determined by NCAT. The proceedings below were not "unheard proceedings" within the meaning of cl 7(1) and cl 6(1) of that expression because they had been heard before 1 January 2014 by the CTTT. Nor did they fall within any of the other clauses of Division 3 of Part 2 of Schedule 1 to the Act. To adopt a construction of cll 6 and 7 which had the effect of leaving proceedings where the evidence and submissions had been completed but the decision had not been made by the CTTT as at 1 January 2014 unable to be dealt with by NCAT would be most unsatisfactory and is unlikely to have been the intention of the legislature. 25Consequently, it should be concluded that the proceedings below were "part heard proceedings" for the purposes of the transitional provisions, and in particular cl 7.

Application of cl 7 to "Part Heard Proceedings" 26Clause 7 of Schedule 1 establishes how "part heard proceedings" such as the present proceedings at first instance are to be dealt with. That clause relevantly provides: 7 Pending proceedings before existing tribunals transfer to NCAT ... (2) In relation to part heard proceedings in an existing tribunal, the person or persons constituting the tribunal for those proceedings: (a) are to continue, on and from the establishment day, to hear the matter, and to determine the matter, sitting as NCAT, and (b) are taken to have been duly appointed as members of NCAT for the purposes of determining the matter even if the person or persons have not been appointed as members of NCAT by or under another provision of this Act, and (c) may have regard to any record of the proceedings before the existing tribunal, including a record of any evidence taken in the proceedings before the existing tribunal. (3) For the purposes of subclauses (1) and (2): (a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and (b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply. 27This clause permitted Ms Rosser, the Senior Member of the CTTT who heard the matter in 2013, to continue to determine the matter sitting as NCAT after 1 January 2014 - cl 7(2)(a). She was taken to have been duly appointed a member of NCAT - cl 7(2)(b). She was entitled to have regard to the record of proceedings and evidence in the CTTT - cl 7(2)(c). And, sitting as NCAT, she had and could exercise all the functions the CTTT had immediately before its abolition - cl 7(3)(a). Finally, the law which would have applied "to or in respect of the proceedings" had the NCAT legislation not been enacted continued to apply - cl 7(3)(b). 28The question that arises for decision is whether cl 7(3)(b) applies only to the determination of the proceedings at first instance or whether it governs the appeal rights in relation to any decision in those proceedings. One basis for concluding that the clause might apply to appeal rights was the use of the words "in respect of those proceedings" in cl 7(3)(b). 29In Griffin v Ingram [2014] NSWCATAP 5 at [56] the Appeal Panel tentatively suggested (in comments not necessary for the decision in that case) that the provision in cl 9(3)(b), which is substantially the same as cl 7(3)(b), would govern the appeal rights in respect of proceedings that fell within the operation of cl 9 of Schedule 1 to the Act. There the Appeal Panel said: That is not to say, however, that there would be no appeal rights in that case. For the purposes of proceedings under cl 9(2), cl 9(3)(b) provides that "the provisions of any Act, statutory rule or other law ... that would have applied to or in respect of the application had [the Act] and the relevant amending Acts not been enacted continue to apply". Thus, the appeal rights in such a case would seem to be those available under the CTTT Act, as if it had not been repealed by the Civil and Administrative Legislation (Repeal and Amendment) Act. Section 67 of the CTTT Act provided for an appeal in limited circumstances to the District Court. 30Having had the benefit of specific submissions on this question, the Appeal Panel is of the view that the tentative view expressed in Griffin should not be adopted. 31The preferable construction of cl 7(3) is that it is limited in its operation to the determination of the part heard or unheard proceedings. This follows from at least 3 considerations. First, the chapeau to the subclause is in the following terms "For the purposes of subclauses (1) and (2)". The purposes of subcll 7(1) and (2) are indicated by the contents of those subclauses which are limited to providing the machinery by which proceedings commenced in an abolished tribunal can be determined by NCAT if they had not been determined by the abolished tribunal before its abolition. Subclauses 7(1) and (2) do not deal with what should occur once NCAT has decided the matter. When proceedings have been determined under subcll 7(1) or (2), the chapeau indicates that cl 7(3) should have no further role to play. 32Secondly, if the internal appeal provisions under s 80 of the Act can be invoked by a party to unheard or part heard proceedings determined under cl 7 of Schedule 1, there is no need to have the appeal provisions of pre-NCAT legislation available in order for the party to be able to appeal. Below, we conclude that the appellant in the present appeal can rely upon s 80 of the Act. 33Thirdly, the objects of the Act include establishing NCAT to "provide a single point of access for most tribunal services in the State" - s 3(a) and "to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible" - s 3(d). In addition, s 36(1) specifies the "guiding principle" which the Tribunal must, under s 36(2)(b), seek to give effect to in interpreting any provision of the Act. That guiding principle is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". Resolution of the real issues in proceedings includes resolution of those issues on appeal. The Appeal Panel of NCAT was established so that parties would have the ability to have any errors of law in a final or ancillary decision at first instance corrected, justly, quickly and cheaply without having to go to a Court either by way of appeal or judicial review. In addition, errors other than errors of law could be similarly dealt with on appeal to NCAT's Appeal Panel if leave were obtained. Requiring parties to proceedings determined under the transitional provisions to appeal to an external Court instead of being able to avail themselves of an appeal to the Appeal Panel does not appear to be entirely consistent with the objects of the Act, the guiding principle identified in s 36 or with the purpose for which NCAT, including its Appeal Panel, was established. This conclusion is reinforced by the consideration that the appeal rights to the District Court under s 67 of the CTTT Act are significantly more limited than the appeal rights available under s 80 of the Act. 34For these reasons and having regard to the wording, scope and purpose of the Act, the Appeal Panel concludes that the ability to appeal from a decision of NCAT in part heard or unheard proceedings falling within cl 7 of Schedule 1 is not governed by "the provisions of any Act, statutory rule or other law ... that would have applied to or in respect of the application had [the Act] and the relevant amending Acts not been enacted" under cl 7(3)(b). In the present case, the parties were not required to avail themselves of the appeal rights, such as they were, under s 67 of the CTTT Act.

Was the Decision Appealed from an "Internally Appealable Decision" within the Meaning of ss 80 and 32 of the Act? 35Having concluded that cl 7(3)(b) did not govern the parties' appeal rights in the present matter, it is necessary now to consider whether the decision at first instance was an "internally appealable decision" within the meaning of ss 80 and 32 of the Act so that the parties could appeal to the Appeal Panel. 36NCAT's internal appeals jurisdiction is established by s 32 of the Act and the right of a party to appeal against an "internally appealable decision" is conferred by s 80. Section 80(1) states: (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. 37An "internally appealable decision" is defined in s 32(4) as "a decision of [NCAT] or a registrar over which [NCAT] has internal appeal jurisdiction". 38Section 32(1) provides: (1) The Tribunal has internal appeal jurisdiction over: (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section. 39The present appeal concerns a decision of NCAT under the RT Act, relying upon the transitional provisions in cl 7 of Schedule 1 to the Act. It does not involve a registrar's decision or an administrative review decision. Consequently, the decision will be an "internally appealable decision" if it can properly be characterised as a "general decision" within the meaning of that expression in the Act. 40Section 29(3) provides: (3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction. 41Section 29(1) provides: (1) The Tribunal has 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. 42The matter before the Tribunal at first instance, concerning as it did termination and possession orders under the RT Act, did not fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of NCAT (see ss 30, 32 and 33 respectively). 43Thus, the decision under appeal will be a "general decision" within s 29(1) if "legislation (other than this Act or the procedural rules)" enabled NCAT "to make decisions or exercise other functions ... of a kind specified by the legislation in respect of" the matter in question. 44The RT Act (in its pre-NCAT form) enabled the CTTT to make certain decisions and exercise other functions including making an order terminating a residential tenancy under s 87(4) and a termination order or an order for possession under s 187(1)(i). By operation of cl 7 of Schedule 1 of the Act, NCAT had and could exercise all the functions that the CTTT had under the RT Act in its pre-NCAT form. 45As Mr Stafford, of counsel, who appeared for the respondent, submitted, there is an argument that the decision at first instance was not a "general decision" and thus not an "internally appealable decision" because: (a)NCAT would not have had power to make the decision without cl 7 of Schedule 1 to the Act; and as a consequence (b)it was cl 7 of Schedule 1 to the Act and not "legislation (other than this Act or the procedural rules)" which enabled NCAT to make the decision. 46Mr Stafford went on, however, to submit that this argument should not be accepted and that the better view was that NCAT was enabled, in the relevant sense, to make the decision and exercise the functions that it did by the RT Act which is "legislation (other than this Act or the procedural rules)". Thus, the decision was a "general decision" and an "internally appealable decision" for the purposes of the Act. The Appeal Panel is of the view that this submission of Mr Stafford should be accepted. 47NCAT's ability to determine the proceedings at first instance and to make the decision it did, depended upon both the transitional provisions in cl 7 of Schedule 1 and the RT Act, ss 87 and 187. Nothing turns on the fact that the Tribunal decided to refuse rather than to grant relief under those sections. Accordingly, it is correct to say in relation to the matter before the Tribunal at first instance that the RT Act enabled NCAT "to make decisions or exercise other functions ... in respect of that matter". Indeed, without the RT Act, neither the CTTT nor NCAT would have been able to hear and determine the matter at all. There being no dispute that the matter did not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal, it should be concluded that the decision at first instance was a "general decision" within the meaning of the Act. 48The specific wording in s 29(1)(a) also supports this conclusion. Section 29(1)(a) establishes a condition that must be fulfilled if a decision in a matter is to be characterised as a "general decision", namely, "if legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions ... of a kind specified by the legislation in respect of that matter" (emphasis added). The words "the legislation" refer back to "legislation (other than this Act [etc])". The condition therefore envisages that it has to be the other legislation which specifies the kind of functions or decisions that can be exercised or made. No kinds of functions or decisions that NCAT could make or exercise are "specified" in the transitional provision. It was the RT Act (in, for example, ss 87(4) and 187(1)(i)) which in the present case specified the kinds of orders that could be made or the kinds of functions that could be exercised. As a result, it should be concluded that the RT Act relevantly enabled NCAT to make decisions or exercise other functions of the kind specified in the RT Act in respect of the present matter. The RT Act is manifestly legislation other than the Act or the procedural rules. On this basis, the condition in s 29(1)(a) has been fulfilled. 49The Appeal Panel also accepts Mr Stafford's submission that the purpose of the words "other than this Act or the procedural rules" in the context of s 29(1)(a) and (b) can be understood as being to ensure that the general jurisdiction of the Tribunal is only enlivened by a decision making power or other function conferred under legislation other than the Act, the procedural rules or an enactment which enlivens the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. The Tribunal has no general jurisdiction at large in respect of any matter. The jurisdiction must be relevantly conferred by another enactment. Since the decision making and other functions relevant to the present matter were derived from the RT Act, it should be concluded that the decision in question was made in a matter over which NCAT had general jurisdiction. 50Finally, s 29 should not be construed as establishing that a decision in a matter would be a "general decision" only if no provisions in the Act or the procedural rules were necessary ingredients in NCAT's being able to make decisions or exercise other functions in respect of the matter. Such a construction would have the unsatisfactory consequence that very few if any decisions of NCAT could be "general decisions". This would be inconsistent with the scope and purpose of s 29 in particular and the Act as a whole. 51The tentative view expressed in Griffin at [54] in relation to the operation of cl 9 of the transitional provisions, to the extent that it contrary to the analysis above, should not be accepted. 52For these reasons, the Appeal Panel concludes that the decision of Senior Member Rosser at first instance was a "general decision" within s 29 of the Act and thus was also an "internally appealable decision" within ss 32 and 80 of the Act.

Conclusion on jurisdiction 53Consequently, the Appeal Panel of NCAT has jurisdiction to hear and determine this appeal.

Costs 54Neither party sought costs in relation to this hearing but the respondent did expressly submit that there should be no order as to costs. In these circumstances and in light of s 60 of the Act, there will be no order as to costs.

Directions for Further Conduct of the Appeal 55Having announced at the hearing on 24 March 2014 its decision that it had jurisdiction to hear and determine the appeal, the Appeal Panel went on, after hearing further from the parties, to make directions for the preparation of the appeal for hearing. The following directions were made: (1)The appellant file and serve any amended notice of appeal on or before 31 March 2014. (2)The appellant file and serve any written submissions on or before 7 April 2014. (3)The respondent file and serve any written submissions on or before 14 April 2014. (4)The matter be listed for a half day hearing on Monday 28 April 2014 at 10 am. (5)The Appeal Panel dispenses with the requirement for the respondent to file and serve a reply. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 02 April 2014