SULLIVAN v ST GEORGE COMMUNITY HOUSING LIMITED

CATCHWORDS: ADMINISTRATION LAW - judicial review - whether District Court failed to accord procedural fairness - APPEAL - civil - whether appeal from District Court exercising appellate jurisdiction from Consumer, Trader and Tenancy Tribunal - jurisdiction arising under another Act - District Court Act 1973, ss4, 9, 44, 127 - PROCEDURE - amendment - leave to amend summons seeking leave to appeal to seek judicial review - whether arguable case of jurisdictional error - WORDS & PHRASES - "action" - District Court Act 1973 (NSW), ss 4, 9, 44, 127

Children (Care and Protection) Act 1987 (NSW), s 81 Children and Young Persons (Care and Protection) Act 1998 (NSW) Commercial Agents and Private Inquiry Agents Act 1963 (NSW) Compensation Court Repeal Act 2002 (NSW) LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 67, 68 Courts and Crimes Legislation Amendment Act 2008 (NSW), Schedule 5 [1] District Courts Act 1912 (NSW), s 142 District Court Act 1973 (NSW), ss 4, 9, 44, 127, 142N; Pt 3 Supreme Court Act 1970 (NSW), ss 69, 75A Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 4.15

Allesch v Maunz [2000] HCA 40; 203 CLR 172 Chand v Lifestyle Homes NSW Pty Ltd [2010] NSWCA 135 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Cook v Head [1976] 1 NSWLR 176 Dayeian v Davidson [2010] NSWCA 42 Druett v Director-General of Community Services [2001] NSWCA 126 CASES CITED: Fraser Credits Pty Ltd v Osterberg-Olsen [1978] 1 NSWLR 121 Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWSC 312 Kostas v HIA Insurance Services Pty Ltd [2010] HCA Trans 57 Martin v O'Reilly (1914) 14 SR(NSW) 277 Platz v Osborne [1943] HCA 39; 68 CLR 133 Samuel v Blackwood (1920) 20 SR(NSW) 317 Spruill v Director-General of the Department of Community Services [2001] NSWCA 413

TEXTS CITED: Second Reading Speech, Parliamentary Debates, NSW Legislative Council (24 June 2008), p 9008 at 9012

PARTIES: Owen Noel Sullivan - Applicant St George Community Housing Limited - Respondent

COUNSEL: S Blount - Applicant A Fernon - Respondent

SOLICITORS: R G Christie - Applicant Gibara & Soubris Lawyers - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/45059

27 September 2010 SULLIVAN v ST GEORGE COMMUNITY HOUSING LIMITED Judgment 1 BASTEN JA: The applicant, Mr Owen Sullivan, is a tenant of the respondent, St George Community Housing Limited. Pursuant to a residential tenancy agreement dated 6 June 1996, he is the occupier of a unit at premises in Hampton Court Road, Carlton. Prior to March 2009, he had, for some time, been in dispute with the respondent in respect of the condition of the premises and the failure of the respondent to carry out certain works which the applicant considered necessary. 2 On 25 March 2009 the applicant commenced proceedings in the Social Housing Division of the Consumer, Trader and Tenancy Tribunal ("the Tribunal"). 3 On 7 September 2009 the Tribunal dismissed the application. The applicant sought a rehearing by the Tribunal, under s 68 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act"). That application was refused. 4 There is a statutory right of appeal to the District Court from a decision of the Tribunal with respect to a matter of law: CTTT Act, s 67(1). On 15 October 2009 the applicant filed an appeal in the District Court. The respondent filed a motion seeking to have the proceedings struck out pursuant to rr 13.4 and 4.15 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"). 5 On 29 January 2010, Elkaim DCJ heard the motion and granted the relief sought, dismissing the summons, apparently under r 13.4. 6 On 19 February 2010, the applicant filed a notice of intention to appeal to this Court from the judgment of the District Court. 7 The applicant failed to file a summons seeking leave to appeal within three months of the judgment below. He has provided an affidavit explaining various difficulties with his health, in explanation of the delay. (Medical certificates have also been provided.) For present purposes, however, it is not the delay which is of concern, but the right to appeal, with or without leave. 8 The summons seeking leave to appeal was originally filed on 11 May 2010. It asserted that the application for leave was brought pursuant to s 142N of the District Court Act 1973 (NSW). An amended summons, which may or may not have been filed, but is contained in the white folder, asserts that the source of jurisdiction in this Court is s 127 of the District Court Act. 9 In a written submission filed on 11 June 2010, the respondent asserted that the application should be dismissed with costs, on the basis that there was no statutory right of appeal to this Court from the District Court in a matter which came to the District Court under s 67 of the CTTT Act. 10 The matter was listed before me on 6 September 2010. On that occasion, Mr R Christie appeared for the applicant and sought an adjournment to allow the applicant to obtain legal advice. He sought the adjournment on the basis of counsel's advice that it was necessary to obtain a transcript of the hearing before the Tribunal. He was unable to explain why that was likely to be useful, let alone necessary. 11 On that occasion I ordered that "the further hearing of the application to extend time and whether to summarily dismiss the summons" would be adjourned until 24 September 2010. I directed that any further written submissions and any motion to be filed by the applicant, addressing the issues raised in the first order, be filed by 5pm on 20 September 2010. 12 Those issues included the possibility of the applicant, if so advised, seeking leave by notice of motion to amend the summons to permit a claim for relief under s 69 of the Supreme Court Act 1970 (NSW), in relation to the proceedings in the District Court: Tcpt, 6/9/10, p 2. Jurisdiction: appeal 13 Section 142N of the District Court Act grants a right of appeal with respect to proceedings in the "residual jurisdiction" of the District Court. That jurisdiction involves matters transferred to the District Court upon the disestablishment of the Compensation Court pursuant to the Compensation Court Repeal Act 2002 (NSW). There can be no suggestion that the appeal under s 67 of the CTTT Act formed part of that jurisdiction. 14 At the hearing on 24 September, the applicant was represented by counsel. Quite properly, no reliance was sought to be placed on s 142N of the District Court Act. Rather, counsel submitted that a right of appeal arose under s 127 of the District Court Act. That section provides: " 127 Right of appeal to Supreme Court (1) A party who is dissatisfied with a Judge's or a Judicial Registrar's judgment or order in an action may appeal to the Supreme Court." 15 The term "action" is defined in s 4(1): " 4 Definitions: general (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: action means action in the Court, but does not include any proceedings under Division 8 of Part 3 or under Part 4." 16 Section 9 of the District Court Act provides: " 9 Jurisdiction of the Court generally (1) The Court shall have a civil jurisdiction, consisting of: (a) its jurisdiction conferred by Part 3, and (b) the jurisdiction conferred by or under any other Act or law on the Court, not being its jurisdiction referred to in subsection (2). (2) The Court shall have a criminal jurisdiction, consisting of: (a) its jurisdiction conferred by Part 4, and (b) the jurisdiction conferred by or under any other Act or law on the Court in its criminal jurisdiction 17 Part 3 is entitled "The civil jurisdiction of the Court". Division 2 is entitled "Actions: jurisdiction". Section 44 reads: " 44 Actions (1) Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions: (a) any action of a kind: (i) which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court, and (ii) in which the amount (if any) claimed does not exceed the Court's jurisdictional limit …." 18 An appeal from the Tribunal cannot be brought in the Supreme Court. The jurisdiction conferred on the District Court to hear appeals from the Tribunal arises under s 67 of the CTTT Act. That section provides in part: " 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. … (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. … (8) A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal." 19 The application of s 127 of the District Court Act with respect to statutory appeals has a long history, indeed its origins pre-date the 1973 Act. However, it is sufficient for present purposes to commence reference to authority with the judgment of this Court in Cook v Head [1976] 1 NSWLR 176 (Moffitt P, Glass and Mahoney JJA). 20 The case was an appeal from a refusal by the District Court to award costs against an unsuccessful applicant for a commercial agent's licence under the Commercial Agents and Private Inquiry Agents Act 1963 (NSW) ("the Agents Act"). The application was dismissed by a stipendiary magistrate, from which decision an appeal lay to the District Court under the provisions of the Agents Act. The appeal was dismissed. The central issue raised in this Court was whether the District Court judge had been correct in holding that he had no jurisdiction to award costs. The case did not directly concern the right of appeal to this Court, as the applicant had sought relief in the nature of mandamus, presumably pursuant to s 69 of the Supreme Court Act. However, the term "action" was to be found, not only in s 127, but also in the relevant costs provision. 21 Moffitt P did not address the scope of the term "action", but expressed his general agreement with the other judgments: p 177. Mahoney JA noted earlier decisions in which it had been assumed that the term "action" would not, without an expansive definition, have included a statutory appeal. His Honour held that the relevant appellate jurisdiction did not arise under Pt 3 of the District Court Act, for the purposes of s 9(1)(a), but rather was conferred by another Act, as reflected in s 9(1)(b) of the District Court Act: p 185. His Honour continued: "This appellate jurisdiction is, in my opinion, not jurisdiction conferred by Pt III of the 1973 Act. The jurisdiction conferred by Pt III, with exceptions not here relevant: cf Div 8, Pt III, consists of jurisdiction in 'actions' of the particular kinds. An appeal under the [Agents] Act is not an action of the kind referred to in Pt III. Nor, in my opinion, is it an 'action' at all, in the sense in which that term is used in the relevant portions of the 1973 Act. The term 'action' according to its ordinary meaning, may have a wide scope …. However, its meaning in a particular case must depend essentially upon its context …." 22 In Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86, a five judge bench of this Court considered whether the Court had jurisdiction to entertain an appeal from the refusal by a District Court judge of an application for an extension of a limitation period. The question did not turn, primarily, on the phrase "in an action", but on whether the decision was made in "a proceeding ancillary to an action". Nevertheless, in the course of undertaking a comprehensive review of the structure and content of the 1973 Act and similar provisions in earlier legislation, Gleeson CJ (with whom Samuels and Priestley JJA and Hope AJA agreed) concluded that the term "action" was used to refer to the conferral of civil jurisdiction contained in Pt III, stating at 94E: "The concept of an 'action' in the District Court as being a claim for a money sum, which in relation to the ordinary or primary jurisdiction of the Court was, and subject to qualification still is, of pervasive jurisdictional significance, is reflected in the provision to which reference has just been made." 23 A similar view had been taken with respect to the phrase "in an action" as it appeared in s 142 of the District Courts Act 1912 (NSW), as discussed by Cullen CJ in Martin v O'Reilly (1914) 14 SR(NSW) 277 at 279, in a passage repeated with implicit approval in Clutha at 98. 24 The elements of the reasoning which are persuasive, in favour of a conclusion that the words "in an action" in s 127 do not extend to a statutory appeal arising from other legislation, are three-fold. First, the definition of "action" in s 4(1) identifies actions in the Court in exercise of its civil jurisdiction conferred by Pt 3, but not extending to proceedings for possession of land and in which equitable relief is sought, which are not indeed referred to as actions in their own terms, but as "proceedings". Secondly, the confined approach is reflected in the terms of s 9 which separates civil and criminal jurisdiction and separates the civil jurisdiction into that conferred by Pt 3 and that conferred by or under any other Act or law. Thirdly, the term "action" is the central concept in the primary conferral of civil jurisdiction under Pt 3 (other than equitable jurisdiction), namely s 44. 25 This reasoning from the content and structure of the 1973 Act is supported, as noted in Clutha, by similar provisions in the predecessors of the 1973 Act. 26 The respondent submitted that -

(a) there was authority binding on this Court in favour of the view that s 127 did not provide a right of appeal in respect of statutory appeals to the District Court, (b) the Court should not disturb long-standing practice in this State which favours that approach - relying upon comments in Platz v Osborne [1943] HCA 39; 68 CLR 133 at 137 (Latham CJ) and 147 (Williams J), and (c) there is no authority which favours a contrary view. 27 The applicant submitted that -

(a) there was no binding authority for the proposition that no appeal lay from a statutory appeal to the District Court, (b) this Court had in fact recently entertained such an appeal, (c) the right of appeal arose from s 75A of the Supreme Court Act, and (d) s 127 should not be construed so as to deprive a litigant of existing rights of appeal. 28 Each of the applicant's propositions requires consideration, but ultimately none is persuasive. 29 First, while there is, as yet, no binding authority with respect to the specific legislation, that is hardly surprising, because the amendment by which jurisdiction was conferred on the District Court did not commence until 1 September 2008: Courts and Crimes Legislation Amendment Act 2008 (NSW), Schedule 5 [1]. On the other hand, the form of the provision is not materially different from other forms of statutory appeal from the Local Court and other tribunals. In particular, the conclusion that no appeal lay under s 127 was reached in respect of an appeal under s 81 of the Children (Care and Protection) Act 1987 (NSW) in Druett v Director-General of Community Services [2001] NSWCA 126 at [11]-[13] (Hodgson JA, Giles JA and Ipp AJA agreeing), which was followed by Beazley JA in Spruill v Director-General of the Department of Community Services [2001] NSWCA 413 at [24], dealing with the equivalent provision in the Children and Young Persons (Care and Protection) Act 1998 (NSW). 30 These cases apply to legislation which is not relevantly distinguishable. As a single judge, I would not depart from this line of authority even if I thought it were wrong, which I do not. 31 Secondly, the applicant referred to the decision of this Court in Dayeian v Davidson [2010] NSWCA 42, in which the Court entertained an appeal from the District Court, exercising its statutory jurisdiction under s 67 of the CTTT Act. Campbell JA (with whom Macfarlan JA and I agreed) stated at [11]: "If leave to appeal is granted, the appeal to this Court from the District Court will, pursuant to section 75A(5) Supreme Court Act 1970, be by way of rehearing. The rehearing will be of the matter that was brought before the District Court pursuant to section 67(1) CTTT Act ." 32 The question of jurisdiction was not raised in that case and was not addressed. (The judgment in Dayeian was handed down on 23 March 2010: the jurisdictional issue appears to have been first adverted to in Chand v Lifestyle Homes NSW Pty Ltd [2010] NSWCA 135, handed down on 7 June 2010.) 33 Counsel for the applicant did not submit that this Court was bound to determine that it had jurisdiction, on the basis of the decision in Dayeian, where the issue was not raised. However, he did seek to rely on the proposition that jurisdiction was conferred by s 75A of the Supreme Court Act, being his third proposition. 34 That submission should not be accepted. Section 75A(1) states that "this section applies to an appeal to the Court and to an appeal in proceedings in the Court". Further, it has effect "subject to any Act": s 75A(4). It is not in terms a provision which confers a right of appeal: rather, it confers powers on the Court in cases in which the Court has jurisdiction with respect to "an appeal". As Gleeson CJ stated in Clutha, "a criticism that can properly be addressed to the reasoning in Fraser Credits [Pty Ltd v Osterberg-Olsen [1978] 1 NSWLR 121] is that the Court went to undue lengths to dispose of the proposition that the Supreme Court Act, 75A, operated to extend the right of appeal from the District Court". His Honour continued: "Section 75A is a general provision dealing with this Court's powers on appeal. It was enacted in 1972, and if it operated to amplify rights of appeal from the District Court, then it did so before the District Court Act 1973 was enacted …. That seems to be an improbable conclusion." 35 Fourthly, the applicant submitted that s 127 should not be construed in such a way as to deprive litigants of a right of appeal from a judgment or order of the District Court. However, that submission cannot be accepted in those terms, because to do so would misconceive the effect of the amending legislation. The amendment did not withdraw the right of a dissatisfied litigant to appeal from a decision of the CTTT, but merely transferred the jurisdiction from the Supreme Court to the District Court. Nor did the amendment effect any change to s 127 of the District Court Act. 36 A consequence of the amendment was that a litigant in the CTTT was deprived of one avenue by which he or she could ultimately seek relief from this Court and, as occurred in one recent matter, from the High Court: see, Kostas v HIA Insurance Services Pty Ltd [2010] HCA Trans 57. 37 So far as it goes, that description of the consequence of the amendment, may be accepted. However, whether to grant a statutory right of appeal, and on what terms, was a matter for Parliament. The fact that statutory rights do not arise under the District Court Act, on appeals from tribunals and the Local Court, was well known to the Parliament at the time of amending s 67. It may be noted that the purpose of the legislation was to remove appeals in cases involving small claims or proceedings where the subject matter is of "very limited monetary value" from the Supreme Court to "a more appropriate and less expensive forum for resolving smaller matters": Second Reading Speech, Parliamentary Debates, NSW Legislative Council (24 June 2008), p 9008 at 9012. There was no reference to rights of further appeal, but it is clear from the statement of policy that appeals from the CTTT were not being treated in isolation, but rather as one of a class of cases where it was thought that the appeal should properly be taken to the District Court. 38 Nor is it true to say that no further relief can be granted from a judgment and orders of the District Court. This Court retains its supervisory jurisdiction, pursuant to s 69 of the Supreme Court Act. Indeed, as has been recognised in this case, that provides an alternative source of jurisdiction in the event that it is found that the applicant has no appeal from the District Court.

39 I am not satisfied that there is a right of appeal under s 127 from a decision of the District Court exercising appellate jurisdiction under s 67 of the CTTT Act. Such appellate proceedings are not proceedings "in an action" for the purposes of s 127 of the District Court Act. 40 There being no legal basis for asserting a right of appeal, it is inappropriate to grant an extension of time within which to seek leave to appeal. On that basis the summons should properly be dismissed. Supervisory jurisdiction 41 There remains the question as to whether the summons may otherwise stand, so as to allow the applicant to invoke the jurisdiction of this Court under s 69 of the Supreme Court Act. In its terms, the amended summons seeks no more than leave to appeal from the decision in the District Court. That order is not available. However, the grounds set out in a draft "notice of appeal" were expressed in the following terms: "The judge asked me to make up my mind whether I should: 1. give verbally some outline of the matter to the Court or: 2. should give evidence along with annexures at the same time I presented my case. I said that I would choose the first option because at the time I thought that my time at Court was being limited for a hearing. I had 25 annexures to be submitted along with photographs and the subject was the matter of overflowing of human effluent 37 times from my unit block at Carlton between 1996 and 2009. I was denied a right to present my evidence which I considered an unfair denial of natural justice." 42 The exercise of this Court's supervisory jurisdiction in relation to the District Court must be considered by reference to the terms of the appeal to the District Court and the summary relief sought by the respondent. As noted above, the CTTT Act provides for an appeal to the District Court where "the Tribunal decides a question with respect to a matter of law": s 67(1). That may include a matter relating to the jurisdiction of the Tribunal: sub-s (8). A ground asserting that the applicant was denied procedural fairness in the Tribunal would invite consideration of the nature of the proceedings in the Tribunal, 43 In respect of a similar statutory appeal, Gleeson CJ stated in Clutha, after referring to a passage in the judgment of Gordon J in Samuel v Blackwood (1920) 20 SR(NSW) 317, at 92 in Clutha: "His Honour went on to refer to the position which similarly obtained in England, where the scheme of the legislation was that there should be no appeal from a County Court except upon questions of law, and only on those questions of law which had been brought to the attention of the judge, and on which he had been asked to decide. Considerable importance used to attach to the obligation of counsel to request the District Court judge to make a note of questions of law raised at the hearing, and of the decision in relation to such questions." 44 It was the apparent failure of the applicant, in his summons in the District Court, to provide any guidance in relation to the grounds of appeal, which gave rise to the application for summary dismissal of the summons. 45 In this case, Elkaim DCJ stated in his judgment (p 1): "The defendant says that the summons commencing the appeal does not raise any matter of law which would permit the appeal to proceed pursuant to s 67. The defendant in fact goes somewhat further and says that the summons, like other aspects of the proceedings which have been pursued by Mr Sullivan, simply do[es] not make sense and is unintelligible." 46 His Honour then set out the claims which the applicant had made in his application to the CTTT and his understanding of the way in which the Tribunal had dealt with the claims. He continued: "A reading of the Summons to Appeal does not identify any question of law decided by the Member which would trigger the right to appeal. Mr Sullivan appeared for himself both before me and before the Tribunal. For this reason I went out of my way to give Mr Sullivan the opportunity to identify his concerns, both in a practical sense, and in a manner which might identify an area of validity in his appeal. I was mindful throughout the hearing that if he had at least some arguable point of law, even if only identified by me in examining his submissions, then I should not take the effectively draconian step requested by the defendant." 47 The applicant, despite providing to this Court a volume of material in the white folder, did not provide the summons to appeal filed in the District Court, the respondent's notice of motion to strike out the summons, or the annexures which he claimed he had not had the opportunity to tender in the District Court. He did, however, include a set of photographs of the premises which were said to demonstrate drainage problems at the premises. Those were marked as Exhibit B in the proceedings in this Court. Although the primary judge clearly had a copy of the reasons for determination in the Tribunal, that document was not before this Court either. 48 In the course of submissions in this Court, counsel for the respondent sought to identify the issues which had been raised in the appeal in the District Court and noted that there was an affidavit which appeared to raise a factual issue not addressed in the grounds: Tcpt, 29/01/10, p 9(30). There was then a discussion in that Court as to whether the applicant sought to rely upon the affidavit. There may have been some early confusion as to the purpose of the proceedings because the applicant noted that he thought the case was set down for 15 February: p 10(15). His Honour then sought to explain that the respondent was saying that he "shouldn't be allowed to have" his case: p 10(26). The applicant said in response, "That's right, yes, I realise that, yes." He was then invited to give the Court the affidavit without the annexures "for the moment": p 10(30)-(40). 49 At this point, counsel for the respondent was addressing the District Court and his Honour was seeking to clarify as to whether there was evidence which might be of assistance in identifying the issues which the applicant sought to raise. The applicant was neither invited to give his evidence, nor was he denied that opportunity. On the following page, after further explanation from counsel for the respondent, his Honour stated (pp 11-12): "Now, the problem [Mr Sullivan's] got is how to turn what the member did, his complaint with what the member did into an error of law. So should I just ask Mr Sullivan to tell me what the error of law is and if he can, he can; if he can't he can't. But I'm just a bit concerned with attaching too much significance to words and documents where his intent is clear." 50 Mr Sullivan said he understood what had just been explained (p 12(6)-(15)), but his Honour continued to explain the issue and seek to extract an answer from the applicant. With what would appear to be a high level of patience his Honour proceeded, between pp 11-26 of the transcript, to seek to identify the substance of the applicant's complaint. Having identified a number of errors, he then said, at p 26(31): "Are there any other errors of law that the member made?" 51 The applicant's response proceeded, without interruption, over almost two pages. His Honour then expressed some concern to counsel for the respondent as to the brevity of the reasons given by the Tribunal member, which may not have done justice to the issues identified by the applicant. He invited counsel for the respondent to consider his position over a short adjournment: Tcpt, p 30. 52 In the course of argument, his Honour was taken to the decision of this Court in Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312. He asked counsel for the respondent if that case provided a definition of "a question of law": Tcpt, p 32(40). His Honour continued: "The reason I ask you is because I'd like to put to Mr Sullivan a definition and ask him to come within it." 53 After further submissions, his Honour stopped counsel for the respondent and said to the applicant, "Do you want to say anything else?": Tcpt, p 35(50). At several points, the applicant referred to documents and in each case the Court attempted to identify the specific document being addressed. The following discussion took place (Tcpt, p 40): "HIS HONOUR: I don't know, if you want me to look at something tell me what it is. PLAINTIFF: I've got it later on - what I'm trying to say- HIS HONOUR: No, if there is a document - PLAINTIFF: I didn't bring it with me. HIS HONOUR: Did the CTTT Member have this document? PLAINTIFF: I don't know. I don't know - HIS HONOUR: It's important. Mr Sullivan, what Mr Fernon [counsel for the respondent] has told me, is that the material that was before the CTTT is the material in this folder, under the tabs A, B and C. And that's all. Is this document [your are] referring to in that section, or not? Because you can't complaint that the CTTT Member didn't take something into account if he didn't have it." 54 Shortly before the completion of the hearing, the following exchange occurred: HIS HONOUR: Just finish off that sentence. 'All I'm asking for is' what, is that St George have this properly investigated. Is that completing that sentence fairly? … PLAINTIFF: I'm saying that St George approach the owners of the property to have it independently assessed by a professional person of that field, that's into the sewerage, and the ceiling as well, and report back to the Court. … HIS HONOUR: Mr Fernon, how about getting someone to go and have a look? FERNON: Are you talking about an order to that effect? HIS HONOUR: No order. … HIS HONOUR: I can't make that order. I'm just trying to get a situation where you walk away without your having to face unnecessary expense and Mr Sullivan, who hopefully feels a little more at peace. … PLAINTIFF: May I address you sir? HIS HONOUR: You want to say some more? PLAINTIFF: I only want to say I appreciate what you've just said to - all I'm worried about is the other part, the garden(?), the kitchen and the moss and the pathway. HIS HONOUR: Well - I will give my decision at 3.30. We will adjourn to 3.30, I will let you know what I decide at 3.30. PLAINTIFF: On those other subjects? HIS HONOUR: No, this is - Mr Sullivan, all I am deciding today - you've got to understand, what I am deciding today is the application by St George that you not be allowed to have your appeal because, in summary, it's hopeless. Okay, that's what I'm deciding. Do you understand that? PLAINTIFF: Only to the point I don't know what the alternative is. HIS HONOUR: I'm not deciding whether there is an alternative, I'm deciding whether, under the rules of the Court, whether you're allowed to have the appeal. It's not necessarily saying that you don't have a real complaint. It's just whether the rules, the laws, say you can have an appeal or not. It's not a finding about whether you're correct, or incorrect on the sewerage - are you with me? PLAINTIFF: Yes I'm with you." 55 Once it is understood that the issue in the District Court, as clearly appreciated by Judge Elkaim, was whether the applicant had identified any decision on a question of law, made by the Tribunal, which was erroneously determined, questions of evidence became largely irrelevant. In particular, his Honour was anxious to distinguish, correctly, the material to which he was being taken which had been before the Tribunal, and that which had not. 56 In submitting that there had been no lack of opportunity to be heard in the District Court, counsel for the respondent drew the Court's attention to a passage in Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [38] where Kirby J noted that the principle of procedural fairness "does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected". His Honour continued: "Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require." 57 Whether a proper opportunity has in fact been accorded will often depend upon the circumstances of the case and the ability of a party, especially if unrepresented, to understand what is happening. In the present case, the putative problem lay not in failing to give the applicant an opportunity to respond to adverse material, but in the applicant's failure to identify errors of a kind which were relevant to the proceedings which he had commenced. In that context, the opportunity to call evidence was of limited, if any, relevance. In any event, the applicant was afforded (and indeed grasped) numerous opportunities to provide such material to the Court as he considered relevant. More importantly, he was told that what he needed to do was resist the summary dismissal application and he was led by the primary judge through the kind of exercise which would be necessary in order to fulfil that task. On the basis of the material before this Court, the opportunity, encouragement, explanations and assistance provided by the primary judge went far beyond the minimum requirements necessary to avoid procedural unfairness. The complaint which it is said might form the basis of proceedings for the exercise by this Court of its supervisory jurisdiction in relation to the District Court are, in my view, without substance. 58 It is not necessary for the applicant to obtain an extension of time in respect of proceedings under s 69 of the Supreme Court Act. Nevertheless, it is necessary for him to obtain leave to amend the summons so as to join the District Court and plead new grounds. Because I can see no merit in any such claims as have so far been proposed, the summons should be dismissed. The applicant must pay the respondent's costs in this Court. Conclusions 59 The Court makes the following orders:

(1) refuse to extend the time within which to file an application for leave to appeal from the judgment of the District Court delivered on 29 January 2010;

(2) refuse leave to the applicant to amend his summons in order to seek relief under s 69 of the Supreme Court Act in relation to the proceedings in the District Court;

(4) order the applicant to pay the respondent's costs of the proceedings in this Court. **********

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