The Trust Company Ltd v Diamond Certification Laboratory of Australia Pty Ltd

NCAT Appeal Panel|2015-10-20

Background

The appellant, The Trust Company Limited (the Trust Company), is the landlord of premises at 133 Castlereagh Street, Sydney. The premises comprise an office tower known as the Piccadilly Tower, a shopping complex, known as the Piccadilly Plaza, and professional offices, known as Piccadilly Court. The respondent, Diamond Certification Laboratories of Australia Pty Ltd (DCLA), was from 2005 until October 2014 a tenant operating a diamond certification and gold-buying business from Suite 1.01. While there is controversy as to whether the leased premises were located in the Piccadilly Tower or whether they were in the shopping centre, there is no dispute that the premises were physically situated on level I near the Piccadilly Tower lifts but on the same level as the adjoining shopping complex.
On 29 May 2015, DCLA commenced proceedings against the Trust Company in the Consumer and Commercial Division of the Tribunal seeking compensation under the Retail Leases Act 1994 (NSW) (the RLA) for, amongst other things, unconscionable conduct.
It is common ground that jurisdiction for the Tribunal to determine the application is dependent on DCLA establishing that its claim is a "retail tenancy claim" and that its lease was a "retail shop lease" within the meaning of the RLA.
The Trust Company made an application for the Tribunal to determine the question of jurisdiction as a preliminary issue. This application was heard on 30 June 2015.
The Tribunal refused to list the matter for preliminary hearing of the question and determined that jurisdiction be decided as part of the substantive hearing. Directions were made for the filing of evidence and the matter was adjourned to a date to be fixed.
The Trust Company filed an appeal against this decision on 22 July 2015 seeking orders that the directions made by the Tribunal be set aside, the hearing date be vacated, the proceedings be dismissed on the basis that the Tribunal does not have jurisdiction to hear the claim, the orders made on 30 June 2015 be stayed pending determination of the appeal and the Trust Company be given leave to rely new evidence.

Interlocutory decision under appeal

The Tribunal below provided the following reasons for refusing to determine the question of jurisdiction as a preliminary issue: The respondent today asserts that the Tribunal does not have jurisdiction to hear and determine this claim because: (1) the subject business was not listed in Schedule 1 to the Retail Leases Act 1994; and (2) the subject business is excluded from the Act pursuant to s 5(d) of the Act. It appears clear the business is, or was, included in Schedule 1. The s 5(d) issue appears to include some complex factual and historical issues. It seems clear the parties have engaged in considerable correspondence in relation to this claim, and the applicant states that the respondent has been provided with the bulk of his evidence already. I am not persuaded that the interests of justice or of the quick and cheap disposal of matters before this Tribunal will be assisted by a separate preliminary hearing which, if decided against the respondent, will greatly delay the final determination of the matter and result in increased costs and time on the part of the parties and the Tribunal. In my opinion the jurisdictional issue should be decided as part of the substantive hearing. The application for a preliminary hearing was therefore refused.

Statutory framework

The claim which is the subject of the appeal was made under ss 71 and 71A of the RLA.
Section 71 provides that a "party or former party to a retail shop lease or former retail shop lease may lodge a retail tenancy claim in respect of the lease with the Tribunal for determination of the claim." Section 71A provides a "lessor or lessee, or former lessor or lessee, under a retail shop lease or former retail shop lease may lodge an unconscionable conduct claim with the Tribunal for determination of the claim."
Section 3 includes the definitions for a "retail shop lease" and a "retail shop." A "retail shop lease" means "any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop." Relevantly, s 3 provides as follows: "retail shop" means premises that: (a) are used, or proposed to be used, wholly or predominantly for the carrying on of one or more of the businesses prescribed for the purposes of this paragraph (whether or not in a retail shopping centre), or (b) are used, or proposed to be used, for the carrying on of any business (whether or not a business prescribed for the purposes of paragraph (a)) in a retail shopping centre. Note 1 : Section 5 limits the retail shops to which this Act applies. Note 2 : Clause 17 of Schedule 3 provides that the businesses specified in Schedule 1 are taken to be prescribed for the purposes of paragraph (a) of this definition until regulations prescribing businesses and repealing Schedule 1 are made.
Section 5 provides that certain retail shops are excluded from the operation of the RLA. Relevantly, s 5(d) provides that the RLA does not apply to "any premises in an office tower that forms part of a retail shopping centre".
Schedule 1 contains an alphabetical list of businesses said to be "retail shop businesses," which include "jewellery shops," "second hand goods shops," "precious stones shops" and "pawnbroking shops."
In summary, the Tribunal has jurisdiction to hear claims in respect of a lease where the premises the subject of the lease were used or proposed to be used wholly or predominantly for carrying on one or more of the Schedule 1 businesses or for the carrying on of any business in a retail shopping centre and the premises are not excluded from the operation of the RLA under s 5. The question of jurisdiction therefore turns on questions of mixed fact and law.
The Tribunal has discretion under s 38(1) of the Act to determine its own procedure but in so doing the Tribunal must seek to give effect to the guiding principle when it "exercises any power given to it by the Act of the procedural rules" (s 36(2)). The "guiding principle," which is set out in s 36(1), is to "facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings." Relevantly, s 36(4) provides: In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
In furtherance of these principles, each Division of the Tribunal uses case management procedures to manage its workload through identifying the issues in dispute, making directions for the conduct of the hearing and, from time to time, directing that preliminary or discrete issues be determined at a separate hearing.
The Trust Company made an application for the question of jurisdiction to be determined as a preliminary threshold issue and the Tribunal below, after hearing submissions from the parties and considering the material filed, refused the application. There is no dispute that this decision is an "interlocutory decision" under s 4(1) of the Act.
Section 80(2)(a) of the Act provides that an internal appeal may be made in respect of an interlocutory decision with the leave of the Appeal Panel.
In determining an internal appeal, the Appeal Panel has broad powers under s 81(1) of the Act and may make such orders as it "considers appropriate in light of its decision" on the appeal. Those orders include, but are not limited to, orders that the appeal be allowed or dismissed, the decision under review be confirmed, affirmed or varied, the decision under appeal be quashed or set aside, the decision under appeal be quashed or set aside for another decision to be substituted or that the whole or part of the case be reconsidered by the Tribunal, either with or without further evidence, according to the directions of the Appeal Panel.

Grounds of appeal and submissions of the parties

The grounds of appeal of the Trust Company can be summarised as follows: 1. The Tribunal made an error of law by making findings of fact without supporting evidence. 2. The Tribunal made an error of law in failing to give adequate reasons for the conclusion that it "appears clear" that the subject business is or was listed in Schedule 1. The Tribunal also failed to give adequate reasons for its conclusion that "the s 5d issue appears to include some complex factual and historical issues." 3. The Tribunal erred in law and denied the Trust Company procedural fairness by deciding the application on matters that were not argued before him or put to the appellant at hearing. 4. The Tribunal erred at law in concluding that a preliminary hearing on jurisdiction would result in increased costs and time on the part of the parties and that the issue should be decided as part of the substantive hearing. The Tribunal misunderstood and misdirected itself as to the nature of the preliminary hearing on jurisdiction in circumstances when a finding in favour of the Trust Company could have been wholly determinative of the proceedings. The reasoning was illogical, irrational and illegally unreasonable in failing to have sufficient regard to the time and cost that would be incurred if the matter proceeded to a substantive hearing even though there may be no jurisdiction to hear the claim. 5. The decision, when considered as a whole, was illogical, irrational and legally unreasonable. 6. The Tribunal member failed to comply with requirements of procedural fairness in providing written reasons for decision which were different to the reasons provided at the time the orders were made 7. This is a case where there are special circumstances warranting an order for costs because the application made by DCLA had no tenable basis in fact or law and the applicant was put on notice by way of written prior correspondence that it had commenced proceedings in the wrong jurisdiction. 8. This is a case where it is readily apparent, by reference to the legislation and the facts, that there is no jurisdiction for the Tribunal to hear this claim. The Appeal Panel should therefore allow the appeal and dismiss the application under s 81(d) of the Act.
The Trust Company did not advance ground (6) at the hearing of the appeal and provided no transcript of the oral reasons. Nor did the Trust Company provide particulars of the matters in respect of which it was alleged that the Tribunal decided the application but which were not argued at the hearing (ground (3)). The principal grounds advanced were those matters as summarised in (1), (2), (4), (5) and (8). The critical complaint was the Tribunal should have determined jurisdiction as a preliminary issue because DCLA's claim was without foundation, the Tribunal did not have jurisdiction to determine the claim, and it was unreasonable, illogical, and irrational to put the Trust Company to the expense of defending the claim. Jurisdiction was fundamental to the claim, needed to be argued in any event and therefore no additional costs or delay would be incurred. The Trust Company contended that the Tribunal therefore miscarried in the exercise of its discretion.
Given the importance of ground (8) to the Trust Company's appeal, the balance of its submissions related to the question of whether the lease between the Trust Company and DCLA was a "retail shop lease." The Trust Company contended that the permissible use of "Commercial Offices" referred to in the lease was conclusive evidence of the use. The lease was therefore not a "retail shop lease." Even if this was not conclusive, having regard to the characterisation of the DCLA business operated from the subject premises, it was not a "retail shop." If the premises were found to be a retail shop, they were nonetheless excluded from the operation from the RLA because the subject premises were in the Piccadilly Tower and were part of the Piccadilly Plaza shopping centre.
DCLA contended that the Tribunal had not erred in deferring the issue of jurisdiction to the substantive hearing but accepted that if the appeal was going to be allowed, it would be preferable for the members of the Appeal Panel to hear the preliminary question on jurisdiction. DCLA further contended that irrespective of the permissible use, there were a number of factors that supported the conclusion its business was a "retail shop." The subject premises were not in the Piccadilly Tower. The Tribunal therefore had jurisdiction to hear its claim.

Should leave to appeal be given?

The Trust Company requires leave to appeal. As noted by the NSW Court of Appeal in Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWCA 274 at [6] and more recently in Young v Hones (No 2) [2014] NSWCA 338 at [14] (and the authorities cited) challenging discretionary interlocutory decisions "is a difficult task" because (at [14] to [15]), 14…..Ordinarily, it is appropriate to grant leave to appeal from such decisions only where there is an issue of principle involved or a question of general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. 15 What must be shown is error in the House v R sense (House v R [1936] HCA 40; (1936) 55 CLR 499 at 505), namely that the primary judge: made an error of legal principle; made a material error of fact; took into account some irrelevant consideration; failed to take into account, or to give sufficient weight to, some relevant matter; or arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred (even though the error in question may not explicitly appear on the face of the reasoning). It is not sufficient merely to show that the primary judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]. Nor is it to the point that the appellate Court might have arrived at a different result had it exercised the relevant discretion at first instance (House v R at 504-505).
The Tribunal below refused the application for the issue of jurisdiction be determined as a preliminary question, in essence, because the Tribunal was "not persuaded" it would be in the interests of justice or that a preliminary hearing would assist in the quick and cheap disposal of matters.
The question is whether there was an error of law by the Tribunal in the exercise of this discretion such that leave to appeal should be granted.
The Trust Company contended that the Tribunal erred in making factual findings about the business of DCLA and in concluding there were "some complex factual and historical issues" about the nature of DCLA's lease when there was no evidence to support the findings. The Trust Company also contended that the Tribunal erred by failing to give adequate reasons for these findings. [Grounds (1) and (2)]
We accept that both these issues, if established, would be an error of law. However, we do not accept that the Tribunal made any error in this regard.
First, the Tribunal did not make a factual finding about the nature of the DCLA business but merely an observation at a preliminary stage which was not intended to be final or binding. We accept that, with the benefit of detailed submissions by the Trust Company in this appeal, the issue of whether the DCLA business was included in Schedule 1 is far from clear. Ultimately, this is not material but it does tend to highlight that there are disputed factual matters relevant to the question of jurisdiction, which would tend to weigh against the exercise of discretion to order a preliminary hearing.
Secondly, we do not accept the Tribunal made findings about the existence of "some complex and factual issues" that were without evidentiary foundation. It was apparent during the hearing of the appeal, and we accept this would have been apparent from the material and submissions before the Tribunal at first instance, that the issue of whether the exclusion in s 5(d) of the RLA was applicable involved disputed and possibly complex factual issues. This was one of the reasons the Trust Company submitted it would be efficient and timely for the Appeal Panel to determine the question of jurisdiction if the appeal was allowed. It was submitted that jurisdiction centred on the construction of the RLA but it was conceded that, if the permitted use in the lease was not determinative of the question, factual matters (albeit in a narrow compass) would be relevant. The Trust Company and DCLA both filed several lengthy affidavits on which they relied at the hearing of the appeal.
In summary, we are satisfied that there were significant factual matters relating to the jurisdictional issue that were in dispute and that this conclusion was open to the Tribunal at first instance.
The Trust Company also complains about the adequacy of the reasons in respect of these matters. We accept that the reasons were brief and the Tribunal did not set out the basis for its observations about the nature of the business or for its conclusions about the existence of complex factual and historical issues. However, this is not of itself fatal.
The critical issue before the Tribunal was whether a preliminary hearing would advance the objectives set out in s 36 of the Act for the jurisdiction question to be determined as a preliminary issue, separated from the hearing of the substantive matter. It was clear from the written reasons that one of the matters the Tribunal considered was the existence of disputed factual matters relevant to the question of jurisdiction. As already noted, this was a finding open to the Tribunal and, having regard to the way in which the appeal was prosecuted, was not seriously in dispute. The Trust Company did not challenge the adequacy of the reasons other than on these matters. The reasons as a whole should be considered rather than any isolated part (O'Brien v Repatriation Commission (1984) 1 FCR 472). When read as a whole, it is clear that the Tribunal also had regard to the costs and delay in directing a preliminary hearing. This was another finding challenged by the Trust Company, which we deal with below in considering the balance of the grounds of appeal.
The decision, while brief, discloses sufficient detail about the critical findings and matters considered by the Tribunal in the exercise of the discretion for the parties, and the Appeal Panel, to form an assessment about whether the discretion has miscarried. It is also relevant to note that the application was made by the Trust Company as part of a case management directions hearing on which the Tribunal adjudicated immediately. We are therefore satisfied that the reasons are adequate.
We therefore reject grounds (1) and (2).
It is convenient to deal with grounds (4), (5) and (8) because the submissions about these matters are interrelated.
The thrust of the submissions of the Trust Company is that determination of the jurisdictional issue would, given the strength of the legal argument, have been determinative of the proceedings. DCLA's claim was likely to cover extensive evidence dealing with factual disputes about the conduct of the Trust Company, dealings between the parties, damages claimed for loss of business and, potentially, expert evidence. The factual issues relating to jurisdiction could be easily separated from the factual issues likely to be agitated in the substantive claim. It was therefore submitted it was appropriate for the Tribunal to determine jurisdiction as a preliminary issue and the failure to do so was unreasonable, illogical, and irrational. The Tribunal was said to be in error in concluding that a separate preliminary hearing, if decided against the Trust Company would "greatly delay the final determination of the matter and result in increased costs and time on the part the parties and the Tribunal." According to the Trust Company, this was not the case. The Tribunal failed to have regard to the fact the parties would incur the cost of preparing and running the jurisdictional argument at the substantive hearing. As such, it was said that no additional costs would be incurred but significant costs would be saved for both parties if the Trust Company succeeded. It was contended that both these matters were relevant considerations.
In determining whether leave should be given to appeal against the interlocutory decision, the Appeal Panel heard lengthy submissions and reviewed affidavit material from the parties about the nature and scope of the business of DCLA, the terms of the lease, the strength of the jurisdictional arguments, the scope of the factual disputes between the parties, and the relevant legislative provisions.
It was apparent from this material that the determination of the jurisdictional issue may have disposed of the proceedings in their entirety if the Trust Company had succeeded but, if not, it would have at least been determinative of an issue that was critical to the proceedings. The determination therefore would have narrowed the issues in dispute to be litigated at the substantive hearing and may have promoted resolution. While it is difficult to see how this would have added to the overall costs of the proceedings (the costs would need to have been incurred in any event), we accept there may have been some delay. The issues of fact and law on jurisdiction were not "intertwined" with those issues in respect of liability and damages nor was it apparent that issues of credit would be tested.
To describe the decision of the Tribunal as unreasonable, illogical, and irrational, as the Trust Company submitted, goes too far. On one view, the decision to defer all issues to the substantive hearing was defensible because, as a general principle, listing matters for the hearing of preliminary or threshold issues, particularly when the evidence may be interrelated, is not only less efficient but is likely to be more costly and may place one party at a forensic disadvantage. This is illustrated by the decision of Harrison J in Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 66, which was considered by the Court of Appeal as noted above.
In the first instance decision, Harrison J decided to revoke an earlier order made by him for separate hearings on liability and damages after accepting there would be "extensive cross-over" in the evidence on the two issues and "potential forensic disadvantages to the first defendant, as well as the potential for conflicting determinations upon the credit of witnesses." His Honour cited Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215, in which Einstein J summarised the principles applicable to the separate determination of issues at [6] to [8] and in particular at [7] as follows: (1) The power of the Court to order the separate determination of an issue is a discretionary power which must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 699 at 670 per Young CJ and Jenkinson J. (2) In exercising the power under Part 31, Rule 2, the Court is now enjoined to give effect to the overriding purpose of the Supreme Court Rules; namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings and cannot be stated in a more confined way: Part 1, Rule 3 (1), (2) Supreme Court Rules. (3) The Court begins with the proposition that it is ordinarily appropriate that all issues in a proceeding should be disposed of at the one time: Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141 per Giles CJ in Comm D, Hadid v Australis Media Ltd (unreported, Supreme Court of NSW, 29 March 1996 per Rolfe J). Accordingly, it is for the party who wishes to have a question separately determined to show that it is desirable for that to occur. (4) Without being exhaustive, the separate determination of an issue may prove to be an appropriate procedure in at least the following sets of circumstances: (a) where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of litigious controversy: CBS Productions Pty Ltd v O'Neil [1985] 1 NSWLR 601 at 606 per Kirby P, Dunstan v Simmie & Co Pty Ltd (supra, at 671 per Young CJ and Jenkinson J); (b) where the resolution of that separate issue carries with it a strong prospect that the parties will thereafter be able to resolve their dispute themselves and thus avoid further litigation: Tallglen v Pay TV Holdings (supra, at 141 - 142 per Giles CJ in Comm D); (c) where there is a clear demarcation between that issue and all other issues in the case, including issues going to the credit of witnesses: CBS Productions Pty Ltd v O'Neil (supra, at 606 per Kirby P), Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Rajski v Carson (1988) 15 NSWLR 84 at 88 per Kirby P and Hope JA. (5) Conversely, the separate determination of an issue will rarely be an appropriate procedure where: (a) there are intertwined issues of fact or law between the separated question and the other questions such that the determination of the separate question will not have any substantial effect upon the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation: Law Society of NSW v Bruce (unreported, Supreme Court of NSW, 23 April 1996, per Rolfe J), Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J). (b) where there is a commonality of witnesses and issues of credit as between the separate issue and other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witness, thus possibly precluding that same judicial officer from again dealing with the matters going to the credit of the common witness in accordance with the decision of the Court of Appeal in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 441: Story of Sydney Pty Ltd v Ling (unreported, Supreme Court of NSW 15 November 1994, per Rolfe J), Century Medical v THLD [2000] NSWSC 5; (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J). (c) there is a possibility that the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings: Story of Sydney Pty Ltd v Ling (supra), Century Medical v THLD (supra). (6) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Parramatta Stadium Trust v Civil and Civic Pty Ltd (supra), Century Medical v THLD (supra).
We accept that the Tribunal wrongly concluded that the determination of jurisdiction would increase costs and delay without taking into account the issue needed to be determined in any event, the issues relating to jurisdiction and liability and damages were sufficiently separate to warrant a preliminary hearing and significant costs could be saved for both parties if the Tribunal determined there was no jurisdiction to hear the claim at an early stage. This exposes a material error of fact and the failure of the Tribunal to take into account a relevant consideration.
We therefore find that the Tribunal miscarried in the exercise of its discretion under s 38 of the Act not to order that the question of jurisdiction be determined as a preliminary issue. Accordingly, leave to appeal is given and the appeal is allowed.

What order should be made?

The Trust Company contended that the Appeal Panel should set aside the decision and, rather than remit the matter to the Consumer and Commercial Division for determination, hear the question of jurisdiction and "substitute" another decision.
The source of the power to hear and determine this issue was said to be s 81(1)(d) of the Act.
Section 81 provides as follows: (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.
We reject this submission. The decision under appeal is the interlocutory decision to refuse the application made by the Trust Company for the question of jurisdiction be determined as a preliminary issue. If this decision is set aside, the only decision that could be made in substitution is another interlocutory decision, the most obvious being a decision that jurisdiction be determined as a preliminary issue. In our view, s 81(1)(d) does not give the Tribunal an unfettered discretion to make any decision in respect of the proceedings. The reference to "another decision" must be confined to a decision that would have been open to the Tribunal at first instance in making procedural directions at a directions hearing.
The Tribunal, at the directions hearing in which the interlocutory decision appealed from was made, was not determining the question of jurisdiction. That question was not the subject of the appeal, nor could it be, as no decision had been made on that question.
The Appeal Panel may rehear a matter under s 80(3) but it is clear that the matter being reheard is the application in relation to the decision under appeal, not an application in relation to a decision that has not yet been made. The Appeal Panel is not empowered under this section to hear part of a proceeding which was not the subject of the appeal.
Notwithstanding this, and having regard to the preference of the parties that the Appeal Panel hear and determine the question of jurisdiction given it had heard much of the evidence and legal argument, the Appeal Panel determined to set aside the decision and substitute a decision that jurisdiction be heard as a preliminary issue (under s 81(1)(d)) and remit the matter to the Consumer and Commercial Division for hearing of the preliminary issue with directions (under s 81(1)(e)) that the Tribunal, sitting as the Consumer and Commercial Division, constituted by the same Members as those who constituted the Appeal Panel and that the evidence and submissions before the Appeal Panel in relation to jurisdiction should be evidence and submissions in the remitted proceedings to avoid duplication and expense.
This is not the usual approach that would be taken by the Appeal Panel but was warranted given the special circumstances of the case, the guiding principle under the Act and the preferences of the parties.

Conclusion and orders

The Appeal Panel gives leave to appeal the interlocutory decision, sets aside the decision made on 30 June 2015 and remits the matter to the Consumer and Commercial Division for hearing of the preliminary issue with the directions that the Tribunal, sitting as the Consumer and Commercial Division, be constituted by the same Members as those who constituted the Appeal Panel, and that the evidence and submissions before the Appeal Panel in relation to jurisdiction should be evidence and submissions in the remitted proceedings.
The Trust Company sought an order for costs but did not address the issue in its written or oral submissions.
Should either party wish to apply for costs, written submissions are be provided within 14 days of delivery of this decision. In this event, the other party or parties may respond in written submissions within 14 days thereafter.
In the event that costs are sought by any party, and submissions are provided by either party, that party or both parties are to state whether an oral hearing on costs is required, otherwise the Tribunal will determine costs on the submissions provided.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 08 February 2016 - Pursuant to Section 63 of the Civil and Administrative Act 2013 orders published on 1 December 2015 are amended to read as follows:

BEFORE: D Cowdroy, ADCJ, Principal Member 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: 08 February 2016

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (2)

Cases Cited (12)

Cited By (2)