Sakkara Investment Holdings Pty Ltd as trustee for Sakkara Landings Trust v The Residents Committee, The Landings and The Consumer Trader and Tenancy Tribunal of New South Wales

Supreme Court of NSW|2014-05-16|Before: Sackar J, Mr P

Proceedings 1The proceedings before me concern two Notices of Motion. The first motion filed on 28 March 2014 by Sakkara Investment Holdings as trustee for the Sakkara Landings Trust (Sakkara or the applicant) seeks leave pursuant to rule 59.10 of the Uniform Civil Procedure Rules 2005 (UCPR) to extend the time period in which proceedings for judicial review are to be commenced to the date that the summons was filed by the applicant, being 20 December 2013. The applicant also seeks leave to amend that summons to correct what are described as typographic errors, and costs. 2The second Notice of Motion filed on 2 April 2014 by the Residents Committee of the Landings (the residents or the first respondent) seeks an order that the summons is out of time and that time not be extended, and costs on an indemnity basis. 3The proceedings of which judicial review is sought concern orders made by the Consumer, Trader and Tenancy Tribunal (the CTTT or the second respondent), who filed a submitting appearance dated 10 March 2014.

Legal principles 19It is necessary to set out the legal principles in relation to two issues, namely the principles relating to the proper exercise of the discretion to grant an extension of time, and a brief examination of the avenues of appeal that are available to a party who is dissatisfied with the outcome of CTTT proceedings. 20Part 59 rule 10 of the UCPR provides: 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required. 21This rule was inserted by the Uniform Civil Procedure Rules (Amendment No 58) 2013 on 15 March 2013. As yet, there has been no substantial judicial consideration, either because the point has not been taken (see, for example, Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290 at [4]) or because the rule was not retrospective and simply perhaps to "inform and bolster the legal principles with regard to delay" that are already established (Mauger v Wingecarribee Shire Council [2013] NSWSC 1587 at [16]). 22The applicant submitted that it should be read in conjunction with UCPR r 1.12, which provides for the extension of time generally: (1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court. (2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires. 23The respondent drew my attention to the consideration of this area of the law in Krishna v Lovett [2011] NSWCA 354. In considering whether to grant an extension of time, McColl JA (Tobias AJA agreeing) observed: ...that in order to persuade the Court that an extension of time ought be granted, the Court has to take into account the length of the delay, the reason for the delay, the extent of any prejudice suffered by the respondent and, having regard to the admitted prejudice that they have demonstrated by reason of their evidence, that the proposed appeal has more substantial merit than only being fairly arguable: see Blackmore v Browne [2011] NSWCA 114 (at [18 - [19]) per Campbell JA referring to Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61. 24The respondent also relies on Hickey v Australian Telecommunications Commission (1983) 72 FLR 291 to support the proposition that the onus of proof is on the applicant to prove that an extension of time should be granted and that it is not for the respondent to establish that the applicant does not have a case for extension. That would appear to be uncontroversial. 25The applicant submits that there is no requirement for a detailed assessment of the merits of the parties' positions and an impressionistic assessment is the most suitable manner in considering the merits aspect of the case. In Jackmarra v Krakouer (1998) 195 CLR 516, the High Court considered the relationship between the prospects of success of an appeal and the granting of an extension of time. Brennan CJ and McHugh J observed at 521-522: One reason that an appellate court does not go into' 'much detail on the merits" in considering whether the time for an appeal should be extended is because ordinarily it only has "limited materials and argument". Unless motions to extend time for appeals are to tum into full rehearsals for those appeals, appellate courts can only assess "the merits" in a fairly rough and ready way. In most cases, that assessment will be made from the statement of the applicant's case rather than from the opposing arguments or any detailed examination of the proofs of the argument. The merits are merely one of the factors that must be considered in determining whether the discretion to extend time should be exercised. No doubt there will be cases - this was obviously one - where instinctively the court feels that, given the apparent strength of the judgment under appeal, the arguments supporting the appeal will fail. In that case, however, an appellate court needs to remind itself "that one story is good until another is told" and that, if the court is inclined to act on the apparent strength of the judgment, the applicant for an extension of time should have a full opportunity to tell his or her story in rebuttal of the judgment. The court needs to remind itself also that the parties do not expect to argue the merits issue as elaborately as if they were arguing the appeal itself. [footnotes omitted] 26Gummow and Hayne JJ also observed, in relation to delays, at 526: Delays in the courts are a major cause of disquiet not only among those who resort to the courts but also among judges and all others associated with the courts. Delay will almost always impede the proper disposition of any case that does not come to trial promptly. Memories fade; records may be lost. The impediments are many, varied and obvious. Those impediments may be overcome but their presence is an added burden for both the litigants and the court that must try the case. Delay in a case will almost always add to the costs. The case takes longer to prepare and to try because the events are no longer fresh in the minds of those who will give evidence. Costs, therefore, increase. Delay in a case also adds to the overall burden on the judicial system. The case that has been delayed in coming to trial and therefore takes a day longer to try than otherwise would be needed, keeps another case out of the lists for that day. Or, as happened here, the case that has been delayed occupies the courts by applications to remedy some failure to comply with prescribed time limits. Each day's delay in bringing a case to trial and final judgment simply prolongs the uncertainty and worry felt by the litigants. No doubt there are other reasons for the disquiet felt by both litigants and lawyers about delay but the matters we have mentioned indicate why it is so important to avoid delays wherever possible. 27In State Water Corporation v Civil Team Engineering Pty Ltd [2013] NSWSC 1879, although in the context of an alleged failure by an adjudicator to accord procedural fairness in making a determination under the Building and Construction Industry Security of Payment Act 1999, I observed at [72]: I note additionally, though strictly unnecessarily, that the remedy Civil Team seeks is discretionary. The delay in seeking to quash Mr Wilson's determination, the absence of an explanation for such delay, and, if I may say so, the obvious and overwhelming inference arising from the circumstances in which Civil Team's application is brought (namely that it is a forensic move to remove one of the grounds of State Water's attack on Mr Sive's adjudication determination), are factors which, taken together, would in any event have led to my refusal, as a matter of discretion, to quash Mr Wilson's adjudication determination (Victims Compensation Fund Corporation v District Court of New South Wales & Ors [2001] NSWCA 241 at [9]-[10] per Heydon JA with whom Handley and Stein JJA agreed; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, (2000) 204 CLR 82 from [52] per Gaudron and Gummow JJ). 28There are a number of avenues by which a party who is dissatisfied with the outcome of CTTT proceedings can seek to have that outcome reviewed. 29Section 65 of the Consumer Trader and Tenancy Tribunal Act 2001 provides: 65 Review by prerogative writ etc generally excluded (1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of: (a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or (b) a declaratory judgment or order, or (c) an injunction, in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter. (2) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the jurisdiction of the Tribunal to determine the matter was disputed if the ground on which the relief or remedy is sought is that: (a) the Tribunal gave an erroneous ruling as to its jurisdiction, or (b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed. (3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that: (a) the Tribunal had no jurisdiction to make the order, or (b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness. 30The rights set out in section 65 of the CTTT Act are not exercisable in the District Court. In Obieta v Consumer Trader and Tenancy Tribunal NSW [2009] NSWCA 220, Basten JA held at [8]: [8] The CTTT Act preserves a right for an applicant to seek relief in the nature of the prerogative writs where the Tribunal is said to have made "an erroneous ruling as to its jurisdiction" or has denied a party procedural fairness: CTTT Act, s 65(2) and (3). Such relief is available pursuant to s 69 of the Supreme Court Act 1970 (NSW). The applicant sought to rely upon the powers referred to in s 65 of the CTTT Act and argued that they might be exercisable in the District Court. However, s 65 does not confer powers; it limits the availability of powers which are otherwise available. The applicant was not able to provide authority (by reference to the District Court Act 1973 (NSW), the Civil Procedure Act 2005 (NSW) or otherwise) for the proposition that the District Court had judicial review power and, in the absence of an identified source, it should not be assumed that that Court does have any such power. She referred to the power of the Court to grant ancillary relief, for example by way of declaration, but it is clear that that must be ancillary to some jurisdiction vested in the Court. 31However, section 67 of the Consumer Trader and Tenancy Act 2001 provides for an appeal to the District Court with respect to a matter of law: 67 Appeal against decision of Tribunal with respect to matter of law (1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the District Court against the decision. (2) An appeal is to be made in accordance with the rules of the District Court. The rules of the District Court may provide that an appeal (or such classes of appeal as may be specified in the rules) may be made only with the leave of the Court. (3) After deciding the question the subject of such an appeal, the District Court may, unless it affirms the decision of the Tribunal on the question: (a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or (b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal. (4) If such a rehearing is held, the Tribunal is not to proceed in a manner, or make an order or a decision, that is inconsistent with the decision of the District Court remitted to the Tribunal. (5) If a party has appealed to the District Court against a decision of the Tribunal on a question with respect to a matter of law, either the Tribunal or the District Court may suspend, until the appeal is determined, the operation of any order or decision made in respect of the proceedings. (6) If the Tribunal suspends the operation of an order or a decision, the Tribunal or the District Court may terminate the suspension or, where the District Court has suspended the operation of an order or a decision, the District Court may terminate the suspension. (7) If a rehearing is held, fresh evidence, or evidence in addition to or in substitution for the evidence on which the original decision was made, may be given on the rehearing. (8) A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. (9) The regulations may exclude the making of an appeal under this section in such classes or description of cases as may be prescribed. 32Finally, it is also necessary to set out the objects of the Consumer, Trader and Tenancy Tribunal Act 2001. Section 3 provides: 3 Objects of Act The objects of this Act are as follows: (a) to establish a Consumer, Trader and Tenancy Tribunal to determine disputes in relation to matters over which it has jurisdiction, (b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, (c) to enable proceedings to be determined in an informal, expeditious and inexpensive manner, (d) to ensure the quality and consistency of the Tribunal's decision-making.

Discussion 33It is clear, from both the relevant rule and the various authorities, that the Court undertakes a balancing exercise in deciding whether to exercise its discretion to grant an extension of time. This exercise focuses on the reasons for delay, the strength of the underlying action and the relative prejudice to the parties. 34Sakkara submits that the proper exercise of the discretion in relation to an extension for time will justify an extension being granted where no significant prejudice can be demonstrated and orders can be made as to costs or other matters that would protect the residents from disadvantage. 35In my mind, any application must be brought promptly, and in circumstances where there is a non-existent or unsatisfactory explanation as to the reasons for a delay, any delay in seeking relief is a potent factor in the exercise of a discretion to extend time or otherwise. 36Sakkara seeks to explain the delay on the basis that "it rightly discontinued the appeal in the District Court to pursue remedies more readily and appropriately addressed in this Court", and therefore reduced duplication, and that settlement discussions were taking place. 37In response, the residents submit that the justification put forward by Sakkara lacks the required integrity to grant an extension. The residents characterise the justification as being founded on the wrong initial choice of venue and notes that settlement proposals occurred well after the 3 month time period allowed. 38On the other hand Sakkara submits that an impressionistic assessment is the most suitable method for determining the merits aspects of the case. That is clearly the correct approach. It is also important in my view however to consider the practical utility, particularly in a case where the issues largely relate to budgets from previous years which on one view are now of historical interest only. As the first respondent points out, by the time the proceedings were heard in November 2012 and the orders were made in June 2013, the budget years of 2010/2011 and 2011/2012 were well over. I am inclined to accept the submission of the residents at [17] of their submissions to that effect and that the Tribunal had made orders in a practical and expedient way to resolve the issues between the parties in relation to historical budgets. 39Another factor of course to consider is the prejudice occasioned to the parties by granting an extension of time. 40Sakkara submits that it will suffer prejudice by reason of what it says are errors made by the Tribunal. 41Sakkara submits that any prejudice suffered by the residents is obviated by the fact that the appeal to the District Court was commenced within time, those District Court proceedings provided notice to the residents that the orders would be challenged and that the pleadings in the current Supreme Court proceedings are on exactly the same issues as the pleadings in the District Court proceedings (namely, a challenge to orders 25-27). Therefore, no forensic gain is said to arise in favour of Sakkara if an extension of time was to be granted. 42The residents respond that the Court should have regard to prejudice suffered by them namely it should take into account the context of the respondent as a small group of elderly volunteers who face not only age and health challenges but also an imbalance of resources between themselves and the applicant. In my view, these factors are relevant in the exercise of my discretion. 43There is some force in this latter submission, especially in light of the comments of the High Court in the context of the late amendment of pleadings in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [100]-[101] per Gummow, Hayne, Crennan, Kiefel and Bell JJ: [100] The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corp Aust French J said of Bowen LJ's statements in Cropper v Smith: "... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary." [101] In Ketteman Lord Griffiths recognised, as did the plurality in J L Holdings, that personal litigants are likely to feel the strain more than business corporations or commercial persons. So much may be accepted. [footnotes omitted] 44The passage referred in Ketteman v Hansel Properties Ltd [1987] AC 189 at 220, albeit again in relation to exercising a discretion to grant an application for an amendment to plead a limitation defence that was made at the stage of closing submissions, are relevantly as follows: Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear upon the exercise of this discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other. Furthermore to allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence. Another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. We can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of the lawyers to fall upon their own heads rather than by allowing an amendment at a very late stage of the proceedings. 45There is a public interest in proceedings such as these being determined informally and expeditiously, as reflected in the objectives of the CTTT Act. Given those objectives, any challenge of whatever kind but certainly one seeking judicial review must be brought promptly. There is no doubt that the applicant seeks to place itself in the most desirable strategic position forensically as it now sees it. If parties belatedly regard the District Court as an inappropriate venue to gain the remedies they seek, that is a matter for them. The applicant wants to shift the venue to this Court, with it seems similar arguments and challenges to certain orders made, but with arguably a wider scope of arguments and remedies. It seems to me that the applicant's "flip-flopping" should be brought to an end. I say that for a number of reasons. 46First, I do not regard the explanation for the delay as adequate if non-existent. One can reasonably draw the inference that the applicant on advice thought its interests were initially best served by commencing in the District Court. The discontinuance in the District Court, I infer, was implemented by reason of a change in strategy and a fresh assessment of prospects of success. 47Secondly, at an impressionistic level, to have debates years later regarding the appropriateness of budgets as opposed to actual expenditure would appear to me to lack utility. Whether the budgets were right or wrong, I am not persuaded that debate on a historical basis is likely to benefit the parties in this case. More to the point as the matter was developed in argument before me the real complaint levelled at the CTTT appears to be that it seems to have come to a wrong assessment of the facts, namely whether items in the budget should be treated as capital or income. On the face of it, this would appear even if it were wrong to be an error within jurisdiction. This raises the utility in such a process. 48To simply say that there can be no prejudice to the respondent because the applicant has persistently pursued the litigation is to misconceive the nature of prejudice. It is not in the public interest in circumstances such as these (or more generally) that litigation be pursued persistently in alternative jurisdictions, especially when there are serious doubts about its practical utility. 49In any event, the particular orders in respect of which judicial review is sought on their face indicate that the particular matter was not finally determined as the parties were invited to reapproach the Tribunal if agreement could not be reached on certain matters. This is abundantly plain from the terms of order 26 set out at [15] above. 50Order 25 provided that Sakkara supply the residents with reconciled audited accounts representing the income, liability and expenditure for the revised 2010/2011 and 2011/2012 budgets. That order it seems to me is entirely unexceptionable. One would have thought such would be an obligation that would be described as de rigueur. If there was a dispute about the auditor chosen to perform the task the parties were invited to relist the matter (order 27). 51The parties were then directed to hold discussions and agree on the correct accounting baseline for future budgets or "failing agreement have the matter listed for further submissions". That was it seems to me a clear indication the senior member would finally resolve the issues if no agreement could be reached. 52Sakkara did not seek to avail itself of the clear invitation to return to the CTTT if problems arose. 53There is in these circumstances a broad analogy to authorities where judicial review is sought before the processes of the administrative body are exhausted. 54In Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501, Kirby P (as his Honour then was) observed at 508: It has long been a principle in the provision of relief by way of the prerogative writs that the relief will commonly be withheld if there is another "equally effective and convenient remedy". This much was said by Lord Widgery CJ in the case of certiorari in R v Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] QB 720 at 728. It was also said by Wilson J and Dawson J (in respect of a claim for prerogative relief against the Family Court of Australia before appeal to the Full Court was exhausted) in R v Ross Jones; Ex parte Green (1984) 156 CLR 185 at 214. 55Sir John Donaldson MR said in R v Epping & Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257 at 262 that "it is a cardinal principle that, save in the most exceptional circumstances, [the judicial review] jurisdiction will not be exercised where other remedies were available and have not been used". 56Certainly in my mind, the explicit invitation of the Tribunal Member for the parties to make further submissions if agreement could not be reached on orders 26 and 27 is a factor which militates against permitting judicial review, especially as there has been no attempt to informally resolve the issues in that manner. 57I consider, in addition, that the applicant adopted what may be described as a somewhat relaxed view in relation to the formal motion seeking an extension of time against the backdrop of the history of the litigation. While it is recognised that the Summons does contain an order seeking an extension, the current motion before me was only filed in response to a competing motion filed by the residents. In the context of a clear limit of three months it is imperative that a party seeking an extension moves promptly to obtain it and does not assume that such an extension will be granted as almost a formality as part of the substantive proceedings. 58In all the circumstances, I do not think I should exercise my discretion to extend the time under rule 59.10(2). 59In respect of costs, I indicated at the hearing that the motion of the applicant dated 28 March 2014 would be dismissed with costs. Since the motion of the respondent dated 2 April 2014 was not strictly necessary, I make no order as to costs in respect of the latter motion. 60I invite the parties to provide short minutes to give effect to my reasons.

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