Consequences of legal error
20 The next question is whether the erroneous answer, constructively identified by reference to a question of law, requires that the matter be remitted to the Tribunal for further consideration and determination according to law. In the course of submissions, it was contended that such an order was not necessary and that the power existed in this Court under s 75A of the Supreme Court Act 1970 (NSW) to consider the material before the Tribunal and reach its own conclusion as to the appropriate order.
21 That submission raises a large question as to the role of s 75A in respect of an appeal on a question of law. Section 75A has a number of inter-related functions. Where it operates, it defines the appeal as one "by way of rehearing": s 75A(5). Consistent with the general connotations of that classification, the Court has power to receive further evidence, but, except in respect of evidence concerning matters occurring after the hearing, it can only do so on special grounds: s 75A(7)-(9). With respect to its powers on a rehearing, the section further provides:
"(6) The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning:
(a) amendment,
(b) the drawing of inferences and the making of findings of fact, and
(c) the assessment of damages and other money sums.
…
(10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires"
22 Section 75A, however, is not a section of general application. It does not apply to appeals from jury trials: s 75A(2). Otherwise, the section "has effect subject to any Act": s 75A(4). That express limitation raises the question whether the scope and operation of s 75A is limited or excluded by the terms of s 67 of the CTTT Act.
23 Where an appeal is limited to a decision on a question of law, the powers required on a rehearing are inappropriate. Accordingly, a right of appeal limited by the terms of s 67, would seem to displace the operation of s 75A: see Loudoun-Shand v Jadasi Investments Pty Ltd [2007] NSWCA 316; 13 BPR 24,855 at [50], in relation to s 73 of the Local Courts Act 1982 (NSW). Nevertheless, two questions remain: first, is the displacement complete, or can s 75A be displaced in part? Secondly, even if the displacement is complete, can a power for this Court to substitute its own findings be located in s 67 itself?
24 With respect to the first question, it is necessary to start from the proposition that a statutory conferral of judicial power should not be read down by reference to implied limitations: see Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421 and see Costa v Public Trustee of New South Wales [2008] NSWCA 223 at [57]. Nevertheless, that approach does not permit the Court to ignore the express subjugation of s 75A to any other statutory provision. Nor should the Court arrogate to itself a power to make findings of fact and draw inferences, if those functions have, in a particular context, been expressly vested in a tribunal, subject only to correction for jurisdictional error (s 65) and an erroneous decision on a question with respect to a matter of law (s 67). If the CTTT Act does not itself permit this Court to make findings of fact and draw inferences, then it follows that such powers in s 75A, together with consequential powers to hear further evidence and to make appropriate orders, are inapplicable. The appropriate conclusion is that, pursuant to s 75A(4), that section has no operation or effect.
25 That is not to say that there may not be circumstances in which the Court can make orders which the Tribunal should have made. If, for example, the Tribunal has addressed all relevant matters and made findings favouring a particular order, but has declined to make the order because it erroneously thought its power was discretionary, or because it took into account the absence of an additional factor, which was legally not relevant, then this Court might either direct the Tribunal to make the appropriate order, or make it itself: see, in relation to judicial review proceedings, Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 579 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) and 598-600 (Kirby J); Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at [41]-[42] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) and [82] (Kirby J agreeing), reinstating the order made by French J directing the outcome in the Refugee Review Tribunal. Nevertheless, the relevant preconditions are not met in the present case.
26 In Guo, more extensive reasons were provided in the judgment of Kirby J for treating the approach of a court exercising powers of judicial review as limited to correcting legal error. At 598-599, his Honour stated:
"Had legal error of the kind found been established, the proper course would have been to remit the proceedings for redetermination by the Tribunal consistently with the Federal Court's elucidation of the law. The provision of a declaration such as the Full Court felt entitled to make was, at the least, not appropriate.
The powers of the Federal Court are expressed in very broad terms in the Administrative Decisions (Judicial Review) Act (s 16). It would be undesirable to give the broad mandate there stated a narrow construction. However, it is important to distinguish the procedure of judicial review from that of an appeal where, typically, a court enjoys larger powers. … Whereas on appeal a court will often enjoy the power and responsibility of substituting its decision for that under appeal, judicial review is designed, fundamentally, to uphold the lawfulness, fairness and reasonableness (rationality) of the process under review. It is thus ordinarily an adjunct to, and not a substitution for, the decision of the relevant administrator. This is why, as Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [[1986] HCA 40; 162 CLR 24 at 40]:
'It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.'
No course would be more likely to undermine the legitimacy and acceptability of judicial review than a usurpation by the courts, where this is not warranted, of the ultimate functions committed by law to the decision-maker."
27 The reference in those remarks to an appeal where, typically, a court enjoys larger powers, may be understood as referring to an appeal by way of rehearing, or even an appeal in the strict sense, but not an appeal limited to a question of law. Where such an "appeal" can be brought from an administrative tribunal, it may be said that "the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review": see Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Victoria) [2001] HCA 49; 207 CLR 72 at [15] (Gaudron, Gummow, Hayne and Callinan JJ) in relation to an appeal limited to a question of law, provided by the Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(1). Thus, although each statutory provision should properly be understood in its own context, as the joint judgment in Roy Morgan recognised, there is a degree of similarity between such a limited "appeal" from an administrative tribunal and judicial review.
28 There is an issue as to whether the restricted approach is consistent with dicta in this Court in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 156 LGERA 150. That case involved a question as to whether, having found error on the part of the Land and Environment Court in making an order with respect to costs, this Court could dispose of the matter by making the order it thought appropriate. The comments were obiter for present purposes, because, as Spigelman CJ noted, "no question of making any findings of fact arises": at [89] and [104] (Mason P, Beazley, Giles and Ipp JJA agreeing). The limited nature of the Court's conclusion (expressly addressed by Giles JA at [150]-[152]) was also noted in B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [71]-[72] (Allsop P, Giles JA agreeing). In particular the President noted that the statements of the Chief Justice in Thaina Town with respect to the operation of s 75A were not part of his Honour's reasoning: at [73]. The Chief Justice noted in Thaina Town that the operation of s 75A was invoked by counsel for the appellants in both appeals and apparently not challenged: at [94]. Nevertheless, significantly for the argument set out above, after referring to the plenitude of power conferred on the Court generally by s 23 of the Supreme Court Act, his Honour continued at [97]:
"Nor can the words 'subject to any Act' be found to be satisfied save by clear statutory provision to that effect."
29 As was noted in Thaina Town itself a different approach had been adopted in Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78; 51 NSWLR 673, though without reference to s 75A of the Supreme Court Act. Other cases in which a different view had been taken prior to Thaina Town and by express reference to s 75A(4), included Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [7]-[8] (Bryson JA, Santow JA agreeing) in relation to s 67 of the CTTT Act; Golden Harvest (Aust) Pty Ltd v Paing Pty Ltd [2004] NSWCA 85 at [57] (Bryson JA, Beazley and Ipp JJA agreeing) in relation to s 119 of the Administrative Decisions Tribunal Act 1997 (NSW); Affinity Health Limited v Chief Commissioner of State Revenue [2005] NSWSC 663 at [54] (Gzell J), in relation to s 101 of the Taxation Administration Act 1996 (NSW) Re Jay-O-Bees Pty Ltd (in liq); Rosseau Pty Ltd (in liq) v Jay-O-Bees Pty Ltd (in liq) [2004] NSWSC 818; 50 ACSR 565, at [46]-[49] (Campbell J) in relation to s 1321 of the Corporations Act 2001 (Cth).
30 Since Thaina Town, the application of s 75A has been addressed in Loudoun-Shand (above at [23]) and in B & L Linings at [75] (Allsop P) and [144]-[150].
31 However, the making of a discretionary order, based on facts which have been fully found, may not in any event be inconsistent with the power conferred by s 57 of the Land and Environment Court Act 1979 (NSW) discussed in Thaina Town. That gives rise immediately to the second question noted above, namely whether s 67 of the CTTT Act would permit this Court to determine the present case for itself.
32 The answer to the second question depends upon the construction of s 67(3):
"(3) After deciding the question the subject of such an appeal, the Supreme 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."
33 On the authority of Thaina Town, this provision would permit the Supreme Court to make an appropriate order in the exercise of a discretionary power, and would also permit the Court to make an order in the circumstances referred to above at [25], where the preconditions to the exercise of the power had been satisfied and only one result is open. Nevertheless, the language is not consistent with a power in the Supreme Court to make findings of fact, draw inferences or otherwise take steps which would be appropriate on an appeal by way of rehearing. It is at least implicit in the terms of par (b) that any rehearing will be conducted by the Tribunal itself. That conclusion is also consistent with the apparent purpose of s 65 of the CTTT Act, which is to limit the relief which might have been available in the nature of prerogative relief, declaratory judgments or orders and injunctions, to circumstances of jurisdictional error or denial of procedural fairness.
34 On the basis that the Tribunal member misconstrued the statutory conferral of jurisdiction, the result was a failure to consider all the relevant considerations, make appropriate findings of fact and draw the necessary inferences. In those circumstances, it is not open to this Court to reach its own conclusion with respect to the proper order to be made under the Residential Tenancies Act. It follows that the matter must be remitted to the Tribunal for reconsideration.