Shapkin v The University of Sydney

Court of Appeal (NSW)|2024-06-21|Before: Meagher JA, Campbell J

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

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Shapkin (the applicant) commenced proceedings in the NSW Civil and Administrative Tribunal (NCAT) against the University of Sydney (the University) in relation to a student accommodation agreement between the parties. He was unsuccessful and appealed against the Tribunal's decision to the Appeal Panel of NCAT pursuant to s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), which appeal was limited to the determination of questions of law. The Appeal Panel dismissed the appeal. On 6 February 2023, the applicant filed an application for leave to appeal against the Appeal Panel's decision under s 83(1) of the NCAT Act (the Appeal Proceedings). On 28 April 2023, the applicant commenced separate proceedings against the University and NCAT by filing a judicial review summons (the Judicial Review Proceedings), which challenged the decisions of both the Tribunal at first instance and the Appeal Panel. The Appeal Proceedings and the Judicial Review Proceedings were heard together by Campbell J on 7 December 2023. As to the Appeal Proceedings, the primary judge reserved his judgment, which remains the case today. The Judicial Review Proceedings were stayed by the primary judge. On appeal, the principal issues were: (i) Whether leave to appeal should be granted. (ii) Whether the primary judge erred in refusing under s 34(1)(c) of the NCAT Act to conduct judicial review proceedings where there was also on foot an application for leave to appeal under s 83(1) of the NCAT Act. (iii) Whether the primary judge erred in misapplying the principle in Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8, in reaching his conclusion that the first instance Tribunal decision and the Appeal Panel decision cannot both be the subject of an application for judicial review, and should have followed Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308. (iv) Whether the primary judge erred in staying the applicant's judicial review summons. (v) Whether the primary judge denied the applicant procedural fairness. The Court (Griffiths AJA, Meagher JA agreeing) held, refusing leave to appeal, with costs: As to issue (i) (1) Leave to appeal was refused: at [4]. The proposed appeal grounds did not raise any issue of principle or question of public importance, nor have sufficient prospects to warrant the grant of leave to appeal: at [40]-[41]. As to issue (ii) (2) No arguable error of the kind in House v The King (1936) 55 CLR 499; [1936] HCA 40 was identified: at [42]. It was open to the Court to decline to grant relief under s 34 where there was an equally effective and convenient remedy which could be pursued. The applicant did not identify any issue sought to be raised by him in the Judicial Review Proceedings which was not capable of being raised in the Appeal Proceedings: at [43]. Fong BHNF Fong v Weller [2024] NSWCA 46, considered. (3) The primary judge's reasons for applying s 34(1)(c) to the Appeal Panel decision also apply to the first instance Tribunal decision. Even though the primary judge did not expressly rely upon s 34(1)(c) in refusing to conduct a judicial review of the first instance Tribunal decision, it was well open for him to have done so: at [44]. Allen v TriCare (Hastings) Pty Ltd [2015] NSWSC 416, considered. As to issue (iii) (4) It was not necessary to determine this issue because there was an alternative basis for the refusal to conduct a judicial review of the decisions of either the Tribunal at first instance or the Appeal Panel, namely s 34(1)(c): at [47]. As to issue (iv) (5) No error of the kind in House v The King was established. Staying the Judicial Review Proceedings implemented the primary judge's decision declining to conduct a judicial review of the decision of either the Tribunal or Appeal Panel: at [48]. As to issue (v) (6) The applicant's complaint of procedural fairness concerning the s 34(1)(c) issue below lacked sufficient merit having regard to the history of the matter: at [49]. The University's failure to file and serve a notice of motion was not fatal in the circumstances: at [50].

JUDGMENT

MEAGHER JA: I agree with Griffiths AJA.
GRIFFITHS AJA: The applicant seeks leave to appeal from orders made by Campbell J on 7 December 2023 (Shapkin v The University of Sydney [2023] NSWSC 1534 (PJ or primary judgment)).
The following four broad issues are raised by the six grounds in the draft notice of appeal: 1. Whether the primary judge erred in refusing under s 34 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to conduct judicial review proceedings where there was also on foot an application for leave to appeal under s 83(1) of the NCAT Act. 2. Whether the primary judge erred in misapplying the principle in Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8, in reaching his conclusion that the first instance Tribunal decision and the Appeal Panel decision cannot both be the subject of an application for judicial review, and whether his Honour should have followed Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308. 3. Whether the primary judge erred in staying Mr Shapkin's judicial review summons. 4. Whether the primary judge denied Mr Shapkin procedural fairness.
For the following reasons, leave should be refused, with costs.

(a) The proceedings in the Tribunal and the Appeal Panel

At the relevant time, Mr Shapkin was a student in the LLM program at the University of Sydney (the University). He has represented himself in all the proceedings concerning his dispute with the University. He had entered into an agreement with the University for student accommodation. After learning that the University intended to evict him from that accommodation, Mr Shapkin commenced proceedings in the NSW Civil and Administrative Tribunal (NCAT) seeking a declaration that his accommodation agreement was subject to the provisions of the Residential Tenancies Act 2010 (NSW) (RT Act). At first instance, in reasons for decision dated 4 October 2022 and amended on 24 and 25 October 2022 (Shapkin v The University of Sydney (NCAT Consumer and Commercial Division, 4 October 2022, unrep)), the Tribunal found that the RT Act did not apply to the agreement between the parties because, for the purposes of s 8(1)(c) of the RT Act, it was an agreement pursuant to which a person "lodges" with another person (the Tribunal decision). The Tribunal also found that the premises the subject of the agreement were exempt from the RT Act because they constituted a "hall of residence" within the meaning of reg 31 of the Residential Tenancies Regulation 2019 (NSW) (the RT Regulation).
On 9 January 2023, the Appeal Panel of NCAT determined an appeal by Mr Shapkin from the Tribunal's decision (Shapkin v The University of Sydney [2023] NSWCATAP 2 (the Appeal Panel decision)). The appeal was brought under s 80(2) of the NCAT Act, which permits an appeal as of right on a question of law and on any ground with the leave of the Appeal Panel.
The Appeal Panel concluded that the Tribunal did not err in its construction and application of the relevant provisions in the RT Act and RT Regulation. It also found that Mr Shapkin had failed to establish any of the three grounds specified in cl 12(1) to Sch 4 of the NCAT Act with the consequence that the Appeal Panel's discretion to grant leave to appeal on any ground beyond a question of law was not enlivened. The Appeal Panel also declined to refer a question of law to the Supreme Court and dismissed Mr Shapkin's appeal.
Before summarising the Appeal Panel's reasons, it is well to set out s 8(1)(c) of the RT Act and reg 31 of the RT Regulation respectively. 8 Agreements to which Act does not apply (1) This Act does not apply to the following agreements - … (c) an agreement under which a person boards or lodges with another person, … 31 Residential colleges and halls of residence in educational institutions (1) Residential premises used, or intended for use, principally as a residential college or hall of residence for students of an educational institution are exempt from the operation of the Act if the premises are - (a) located within the institution, or (b) owned by the institution, or (c) provided for that use by a person or body that provides the premises under a written agreement with the institution to provide accommodation to students of the institution. (2) Despite subclause (1), a part of residential premises referred to in subclause (1) is not exempt from the operation of the Act if - (a) the landlord and the tenant agree in writing that the part of the residential premises is to be subject to the Act, or (b) allocations for the part of the residential premises have been applied for, or provided, under the National Rental Affordability Scheme Act 2008 of the Commonwealth, unless the application is withdrawn or is unsuccessful. (3) In this clause - educational institution means premises used for education, that are - (a) a school, or (b) a tertiary institution that provides formal education and is constituted by or under an Act.
The Appeal Panel summarised as follows the principles which it viewed as relevant concerning the construction and application of s 8(1)(c) of the RT Act: [90] The principles set out above in relation to the construction and application of s 8(1)(c) can be summarised as follows: (1) For an occupant to be a boarder or lodger the owner must remain in possession and retain his quality as "master of the house", reserving to him or herself the general control and dominion over the whole, although the owner may have agreed to give to the other exclusive enjoyment of the occupation of part: Pupuke at [23]. (2) The lack of provision of food or meals is not determinative of the issue although a boarder, as opposed to a lodger, is more likely to be provided with food or meals as part of the living arrangement. (3) Labels are not determinative of, nor relevant to, the process of characterising the agreement. Determination of the character of the parties' relationship requires an evaluation of the parties' rights and obligations: Personnel at [63]-[64]. (4) A physical presence is not a requirement of a lodging arrangement. It is the legal right to possession, not the physical fact of exclusive "possession" or occupation, that is decisive: Swan v Uecker (2016) 50 VR 74 at [36] (Croft J quoting McHugh J in Western Australia v Ward (2002) 213 CLR 1 at [502]-[504]). (5) If the parties' rights and duties are comprehensively committed to a written contract, the legal rights and obligations established by the written contract will determine the character of the relationship between the parties: Personnel at [43]-[44]. The exception to this will be where the validity of the written contract is challenged as a sham, or where there is an assertion that the terms of the contract have been subsequently varied or waived or are the subject of an estoppel: Personnel at [43]. (6) An agreement may be a lodger arrangement even if the lodger has exclusive enjoyment over part of the premises. What is relevant is whether the owner reserves to him or herself the "general control and dominion" over the whole of the premises, even if the other person has exclusive enjoyment of part of the premises: Pupuke at [23].
Applying those principles to the facts as found, the Appeal Panel agreed with the Tribunal that Mr Shapkin's agreement with the University was one under which he was a lodger for the purposes of s 8(1)(c).
As to the proper construction and application of reg 31 of the RT Regulation, the Appeal Panel concluded that the expression therein of "[r]esidential premises used, or intended for use, principally as a … hall of residence for students of an educational institution" means residential premises which (at [97]): (1) have been designated by the owner or operator of the premises specifically for the purpose of accommodating students of an educational institution; and (2) are administered in such a way that the primary use of the premises is to accommodate such students.
After noting and adopting the findings of fact made by the Tribunal at first instance at [109], the Appeal Panel concluded that those facts were sufficient to find that Mr Shapkin's residence was exempt from the RT Act by virtue of reg 31 of the RT Regulation.
The Appeal Panel made the following orders: 1. Application to refer a question of law to the Supreme Court refused. 2. Application for the issue of a summons refused. 3. Leave to appeal refused. 4. Appeal dismissed.

(b) The proceedings in the Supreme Court

On 6 February 2023, Mr Shapkin filed an application for leave to appeal against the Appeal Panel's decision under s 83(1) of the NCAT Act (which provides that a party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision of the Tribunal made in the proceedings). For convenience, I will refer to these proceedings as the Appeal Proceedings. They were given file number 2023/45445.
On 28 April 2023, Mr Shapkin commenced separate proceedings against the University and NCAT by filing a judicial review summons pursuant to r 59.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). For convenience, I shall refer to these proceedings as the Judicial Review Proceedings. In those proceedings, Mr Shapkin challenged both the Tribunal decision and the Appeal Panel decision. They were given file number 2023/135575.
On 16 May 2023, the Court ordered that the Appeal Proceedings and the Judicial Review Proceedings be heard and managed concurrently. On 16 August 2023, Mr Shapkin filed an amended summons in the Appeal Proceedings and an amended summons in the Judicial Review Proceedings. The amended summons in the Appeal Proceedings omitted a paragraph from the original appeal summons which claimed that a jurisdictional fact which was an essential precondition to the Tribunal's jurisdiction was missing. This was said to include the need for the Tribunal to satisfy itself that the terms of the accommodation agreement were sufficiently certain so as to constitute a "residential tenancy agreement". A similar jurisdictional fact contention was raised in ground 1 of the amended summons in the Judicial Review Proceedings.
The Appeal Proceedings and the Judicial Review Proceedings were heard together by Campbell J on 7 December 2023.
In view of Mr Shapkin's procedural unfairness complaint, it is desirable to trace the history of the University's reliance on s 34(1)(c) of the NCAT Act leading up to and including the hearing below on 7 December 2023. By way of introduction, however, the relevant terms of s 34 should be noted: 34 Inter-relationship between Tribunal and Supreme Court (1) The Supreme Court may - … (c) refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision. (2) This section - (a) permits, but does not require, the Supreme Court to refuse to conduct a judicial review of a decision on a ground referred to in subsection (1), and (b) does not limit any power that the Supreme Court has, apart from this section, to refuse to conduct a judicial review of a decision.
Mr Shapkin was first put on notice that the University relied on this provision when he was served with the University's response to the amended summons seeking judicial review, which response was filed on 31 August 2023. The University said that the Court should exercise its discretion under s 34(1)(c) of the NCAT Act to refuse to conduct a judicial review of either of the Tribunal or Appeal Panel decisions in circumstances where appeal proceedings against the Tribunal decision had failed and the appeal to the Supreme Court against the Appeal Panel decision was pending.
Secondly, in its written submissions filed on 26 October 2023, the University submitted that the Court should refuse to conduct the Judicial Review Proceedings having regard to the discretion in s 34(1)(c).
The third thing to note is that Mr Shapkin addressed the s 34(1)(c) issue in his written submissions in reply at [20], prior to the Court's hearing on 7 December 2023.
Fourthly, the issue was raised by his Honour at the outset of the hearing below on 7 December 2023. His Honour referred to several relevant authorities, including Wishart, Meagher v Stephenson (1993) 30 NSWLR 736, and Hill v King (1993) 31 NSWLR 654. The primary judge asked Mr Shapkin whether he was able to deal with the University's reliance on s 34(1)(c), in circumstances where, although the authorities had not previously been mentioned, the issue was raised in the University's written submissions. Mr Shapkin responded to this question by saying "Yes, your Honour".
Fifthly, after a brief discussion in which Mr Shapkin said that he had not had the opportunity to look at the cases, he said that he might do so during the break. The s 34 issue was then deferred until after the luncheon adjournment. In the meantime, the parties made detailed submissions in respect of the Appeal Proceedings.
Sixthly, after the luncheon adjournment, the primary judge acknowledged that the s 34 issue had been raised "at short notice". He asked Mr Shapkin whether he had had a chance to look at the authorities over the luncheon adjournment. Mr Shapkin said that he had "glanced" at them. Without making any objection, Mr Shapkin then proceeded to make detailed oral submissions as to why the Court should not exercise the discretion under s 34 in the manner sought by the University. In the course of making those submissions, Mr Shapkin referred to [20] of his written submissions in reply. Mr Shapkin described his main argument as being that "s 34 is not designed to oust judicial review, specifically for jurisdictional error" and that it was only dealing with an error of law. Mr Shapkin acknowledged that the Court had a discretion whether or not to conduct judicial review.
This history relating to the raising of the s 34(1)(c) issue contradicts Mr Shapkin's complaint of procedural unfairness.

The primary judge's ex tempore reasons summarised

It is important to appreciate that, after having heard full argument from both parties regarding the Appeal Proceedings (2023/45445), the primary judge reserved his judgment in those proceedings. That remains the position today.
His Honour proceeded, nevertheless, to give ex tempore reasons on 7 December 2023 as to why he considered that the Judicial Review Proceedings should not progress and should be stayed.
I shall now briefly summarise the primary judge's reasons. First, his Honour considered that the issue of whether the first instance Tribunal decision and the Appeal Panel decision can both be the subject of an application for judicial review had been authoritatively decided, against Mr Shapkin's contention, by the High Court in Wishart. His Honour said: [8] The principle for which Wishart v Fraser stands, may simply be stated by reference to the headnote, which is in the following terms: An order of a court…of New South Wales, confirming on appeal a conviction by a magistrate exercising federal jurisdiction is, while it stands, a bar to any appeal from a magistrate's decision, direct to the High Court. [9] The principal [sic] is frequently applied, not only in appellate law, if I may express myself that way, but also, in the exercise of the Court of Appeal's original supervisory jurisdiction. The principal [sic] was best expressed by Dixon J (as the Chief Justice then was). His Honour defined the question to be whether the Court could ignore the decision of a competent court confirming an order of conviction of a court below it. His Honour said (at p 482): To that question there can, I think, be only one answer. It is not denied that the order of the Court of Quarter Sessions was within its jurisdiction and was validly made. While it stands it is a judicial declaration by a competent court exercising federal jurisdiction establishing the order of the magistrate and preventing it being called into question. If this Court made an order setting aside the conviction, there would be two inconsistent judicial orders in operation at the same time, that of the Court of Quarter Sessions confirming the conviction and that of this Court discharging it. That principle requires me as a matter of binding precedent, to refuse to entertain any application for judicial review of NCAT's first instance decision.
Thus, the primary judge considered that he was bound by Wishart to decline to conduct a judicial review of the first instance Tribunal decision.
His Honour then turned his attention to the question whether he should exercise his discretion under s 34 of the NCAT Act to refuse to conduct a judicial review of the Appeal Panel decision because of the parallel Appeal Proceedings.
In support of his decision to exercise the discretion so as to refuse to conduct a judicial review, the primary judge referred to this Court's decision in Meagher v Stephenson, where the Court refused to entertain an application for judicial review whilst entertaining an appeal. He noted that that decision was later followed by this Court in Hill v King and was referred to with approval in Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 at [8] (per Basten JA). In Hill v King, the Court (Clarke, Handley and Sheller JJA) said at 659: Where the same court has both appellate and supervisory jurisdiction in respect of the same order and the grounds for challenging that order, if established, would support the grant of either prerogative or appellate relief the court must decide which form of relief will be granted. If the order were set aside on the appeal there would be nothing left for the court to prohibit or quash and vice versa. The case would be one where the party aggrieved had alternative and inconsistent remedies. Accordingly, proceedings in the nature of prohibition and certiorari directed to the Licensing Court in circumstances where appellate relief is or was also available are necessarily discretionary. In our opinion, therefore, a judge hearing an appeal under s 146 of the Liquor Act who is faced with claims for prerogative relief has a discretion to refuse that relief, even where jurisdictional error is alleged. Ordinarily, a second summons claiming prerogative relief should be struck out as an abuse of process.
The primary judge addressed Mr Shapkin's contentions that the avenue of appeal under s 83 of the NCAT Act was insufficient to enable him to ventilate before the Court "objective jurisdictional facts" arising under various statutory instruments concerned with planning law, which Mr Shapkin argued ought to have informed the exercise of the Appeal Panel's powers under the RT Act. Contrary to Mr Shapkin's contentions, the primary judge was unpersuaded that these matters were "highly relevant" to the questions which arose under reg 31 of the RT Regulation, or laid down any legal requirement necessary for the proper exercise of NCAT's jurisdiction or power under that provision.
Mr Shapkin also argued that there was no evidence before the Tribunal or the Appeal Panel that no residential tenancy agreement was in force. The primary judge considered that this no evidence ground raised by Mr Shapkin, properly formulated, could have been advanced as a question of law in the Appeal Proceedings.
Having refused to conduct a judicial review of the Appeal Panel decision, his Honour concluded that, out of an abundance of caution, the Judicial Review Proceedings (which, as noted above, challenged the decisions of both the Tribunal at first instance and the Appeal Panel) should be stayed.

Consideration and determination

It is convenient to deal at the outset with the applicant's contention that, although he seeks leave to appeal, leave is not in fact required. Relying on Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267, the applicant contended that s 101(2)(r) of the Supreme Court Act 1970 (NSW) did not apply because the matter at issue in the proceedings exceeded $100,000. The basis for this claim is that the University may be liable to pay a maximum penalty of $4.18 million based upon what are said to be 1900 separate contraventions of s 219 of the RT Act. The figure of $4.18 million seems to be based on the applicant's assertion that approximately 1900 students have entered into agreements on similar terms to those which apply to him.
The applicant's claim that he does not require leave to appeal is misconceived. The proceedings initiated by him in NCAT concerned an application for a declaration under s 11 of the RT Act. No proceedings seeking penalties against the University have been brought by the applicant under s 219 of the RT Act. Accordingly, no issue of penalties or monetary compensation arises in the Judicial Review Proceedings.
For similar reasons, Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178 does not assist the applicant. The relevant facts there which underpin the reasons of Payne JA at [44]-[46] are plainly distinguishable. In that case there was a claim for compensation concerning the issue of whole person impairment, which, if established, was valued at $220,000.
Without doubt, the applicant requires leave to appeal.
Generally, this Court will only grant leave to appeal where the proposed appeal raises an issue of principle, a question of public importance, or seeks to address a reasonably clear injustice arising from a misapprehension of fact or law which goes beyond something that is merely arguable (see, for example, Islam v Australian Real Estate Relations Pty Ltd [2023] NSWCA 131 at [27] per Ward P and Griffiths AJA; Mohareb v Office of the Director of Public Prosecutions NSW [2024] NSWCA 93 at [17] per Ward P and Payne JA and the cases cited therein).
I am not persuaded that the proposed appeal grounds raise any issue of principle or question of public importance. Grounds 1 to 4 of the draft notice of appeal appear to relate to Mr Shapkin's contention that s 34 of the NCAT Act does not oust judicial review for jurisdictional error. He contends that this constitutes an issue of principle or a question of public importance. I accept the University's submission that this issue simply does not arise because nothing said by the primary judge in his ex tempore reasons suggests that he considered that s 34 ousts judicial review for jurisdictional error. The primary judge's reasons for judgment relating to s 34 make plain that his Honour viewed that provision not as an ouster provision, but as conferring on the Court a discretion whether or not to refuse to conduct a judicial review.
The applicant plainly considers that he has suffered a clear injustice but for the following reasons I am not satisfied that any of the six proposed grounds of appeal, which relate to the four broad issues identified at [3] above, have sufficient prospects to warrant the grant of leave to appeal.
As to the first of those issues, as noted above, the primary judge's decision concerning s 34 of the NCAT Act was a decision made in the exercise of discretion. Accordingly, it is necessary for the applicant to demonstrate that he has more than a merely arguable complaint concerning the exercise of that discretion, which requires him to identify an error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40. No such error has been adequately identified.
His Honour's refusal to allow the Judicial Review Proceedings to progress is supported by recent authority in this Court. In Fong BHNF Fong v Weller [2024] NSWCA 46, Kirk JA observed at [29] that it was open to a Court to decline to grant relief in judicial review cases where there is an equally effective and convenient remedy which could be pursued. Section 34 of the NCAT Act provides a statutory source for that discretion. Mr Shapkin has not identified any issue sought to be raised by him in the Judicial Review Proceedings which was not capable of being raised in the Appeal Proceedings. The Appeal Proceedings provide an equally effective and convenient remedy to any available in the Judicial Review Proceedings.
There is authority to support the proposition that the reference to "Tribunal" in s 34(1)(c) refers to both a Tribunal at first instance and an Appeal Panel (see Allen v TriCare (Hastings) Pty Ltd [2015] NSWSC 416 per Beech-Jones J; Makowska v St George Community Housing Ltd [2022] NSWCA 5 at [28]-[30]). The primary judge's reasons for applying s 34(1)(c) to the Appeal Panel decision also apply to the Tribunal decision. Even though the primary judge did not expressly rely upon s 34(1)(c) in refusing to conduct a judicial review of the Tribunal decision, it was well open for him to have done so. As Ms Rao (who appeared for the University together with Mr Pen) pointed out, if leave to appeal were granted, the University would again rely upon s 34(1)(c) and it was highly probable that the discretion would be exercised to refuse to conduct a judicial review of the Tribunal's decision. There is no warrant for granting leave to appeal in these circumstances.
As to the issue whether the primary judge erred in misapplying Wishart, the fundamental principle to be borne in mind is that an appeal relates to orders or a judgment and not reasons for judgment (see Australian Competition and Consumer Commission (ACCC) v Valve Corp (No 4) [2016] FCA 382 at [16] per Edelman J and BP v State of New South Wales [2019] NSWCA 223 at [11]-[12]).
Mr Shapkin contended that the primary judge erred in preferring Wishart to Navazi, which he contends supports his position. In Navazi at [86], Sackville AJA referred to the fact that the respondent counsel had drawn the Court's attention to several decisions which suggested a qualification to the principle stated in Wishart. His Honour described those decisions as indicating: … that a distinction may need to be drawn between cases where there is an appeal by way of rehearing on both fact and law, and cases where the right of appeal is more limited. In the former, the order of the appellate court supersedes that of the court or tribunal at first instance. But if the right of appeal is limited, for example to questions of law, the orders at first instance may not be replaced or entirely replaced by orders made on the appeal.
Sackville AJA made clear in Navazi at [87] that he was "prepared to accept, without deciding", that this distinction was correct. As noted above, the Appeal Panel here refused Mr Shapkin leave to appeal on grounds which were not limited to a question of law. Accordingly, the distinction which Sackville AJA referred to inconclusively in Navazi may operate to qualify Wishart. But the point need not be determined in the proceedings here because there is an alternative basis for the refusal to conduct a judicial review of the decisions of either the Tribunal or the Appeal Panel, namely s 34(1)(c). For the reasons given above, Mr Shapkin has insufficient prospects to warrant a grant of leave to appeal in relation to the exercise of the Court's discretion under s 34(1)(c).
The third issue relates to whether the primary judge erred in staying the Judicial Review Proceedings (which related to both the Tribunal and Appeal Panel decisions). Since this also involved an exercise of the primary judge's discretion, Mr Shapkin needs to establish on more than a merely arguable basis that the discretion miscarried by reference to one or more of the kinds of error identified in House v The King. No such error has been identified. To the extent that his complaint of procedural unfairness relates to this particular matter and not merely the primary judge's exercise of discretion under s 34(1)(c), that complaint has no merit. Staying the Judicial Review Proceedings implemented the primary judge's decision declining to conduct a judicial review of the decision of either the Tribunal or Appeal Panel. This leaves open the possibility that final orders may be made in the Judicial Review Proceedings after the Appeal Proceedings have been finalised.
Mr Shapkin's complaint of procedural unfairness relating to the s 34(1)(c) issue is also without sufficient merit having regard to the history of the matter, as set out at [19]-[24] above.
Finally, notwithstanding the requirements in r 18.2 of the UCPR for the filing and service of a notice of motion, I do not consider that the University's failure to file and serve a notice of motion regarding the s 34(1)(c) issue to be fatal. As explained above, Mr Shapkin was aware more than 3 months before the hearing of the University's reliance on that provision and he responded to it both in writing and orally. At no stage of the proceedings below did he take the point which he now belatedly raises. Nor did he ever seek an adjournment.

Conclusion

For all these reasons, I consider that the summons seeking leave to appeal should be dismissed. As to the issue of costs, the applicant opposed an order for costs in favour of the University. He pointed to the fact that the University had failed to file a notice of motion raising the s 34(1)(c) issue "so that it could be properly defended". This submission is rejected for the reasons given above. The applicant had ample notice of the University's reliance upon this statutory provision. As the unsuccessful party he should bear the University's costs.

Orders

The orders of the Court are: 1. The summons seeking leave to appeal is dismissed. 2. The applicant pay the first respondent's costs.

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: 27 June 2024

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