[2018] NSWCA 254
Burns v Corbett [2018] HCA 15353 ALR 386
Burns v Corbett (2017) 96 NSWLR 247[2017] NSWCA 3
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Judgment (3 paragraphs)
[1]
[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.]
[2]
Judgment
THE COURT: These are our reasons for ordering, immediately following the conclusion of an oral hearing, that there be a limited grant of leave, confined to the questions whether NCAT had power to make orders as to costs in a proceeding based on a claim under federal law, and, if not, what order should be made.
Mr Stephen Wilson seeks leave to appeal from a decision of the Supreme Court constituted by an Associate Justice dismissing two separate proceedings brought by him seeking (a) to appeal from, and (b) judicial review of, certain orders made by NCAT: Wilson v Chan & Naylor Parramatta Pty Ltd [2019] NSWSC 1598. The orders challenged by Mr Wilson included costs orders made by NCAT constituted as an Appeal Panel on 20 December 2018 and as a Senior Member on 14 January 2019. An appeal to the Supreme Court, confined to questions of law, lies from the former, but not the latter: Civil and Administrative Tribunal Act 2013 (NSW), ss 82 and 83.
Mr Wilson acknowledged, in his written and oral submissions, that he had not taken the point, either before NCAT or before the Associate Justice, that NCAT lacked power to make those orders. In part, that is a consequence of timing: at the time of the hearing before the Appeal Panel, the Court of Appeal's decision in Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 was reserved. In this Court, Mr Wilson submits that there was a matter in federal jurisdiction, which could not be heard and determined by NCAT for the reasons given in Burns v Corbett [2018] HCA 15; 353 ALR 386. Mr Wilson submits that NCAT accordingly lacked power to make the orders. Mr Wilson also pointed to the provisions in s 34C(4)(g) of the Civil and Administrative Tribunal Act which, in his submission, tended to confirm the absence of power on the part of NCAT, as opposed to the authorised court to which the proceeding should be remitted, to make orders as to costs.
In many cases, leave would not be granted to raise a point not taken at first instance. However, Mr Elliott, who appeared for the respondent, conceded, in our view correctly, that it was an important and generally applicable question of principle in those cases in federal jurisdiction in which NCAT makes costs orders. It is a pure question of law, which does not turn on evidence: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35. Further, the issue if not decided now will likely arise between the parties at some stage, if and when the costs orders which have been made are sought to be enforced (it was common ground that this had not as yet occurred). There is much to be said for that question being determined now, in proceedings pending in this Court, rather than having the parties incur time and expense enforcing costs orders which on one view are beyond power.
For that reason, we considered that there should be a grant of leave in order to resolve that issue.
One part of Mr Wilson's proceedings before the Associate Justice sought judicial review of a costs order made by NCAT constituted by a Senior Member, after Gatsby had been delivered. Mr Elliott said that an internal appeal was available from that order to the Appeal Panel, and the fact that Mr Wilson had chosen not to exercise that right was a sufficient basis to refuse relief, as a matter of discretion. The Associate Justice had relied on that consideration as part of the basis for dismissing the application for judicial review: at [110]. The second question in the grant of leave will permit that issue, if it arises, to be resolved by the Court of Appeal.
Mr Wilson's draft notice of appeal raised numerous other grounds. Many were undeveloped either in writing or orally. Aside from the question of power mentioned above, the grounds to which greatest attention were devoted concerned Mr Wilson's claims against the legal practitioners who had acted for the first respondent so as to prolong the proceedings in NCAT in the knowledge of an absence of jurisdiction. As advanced in his oral submissions, that submission was based on the fact that the same firm had at one stage acted for Mr Gaynor in litigation involving Mr Burns. However, Mr Wilson did not point to anything which suggested that the firm had acted for Mr Gaynor in relation to the constitutional litigation in which the point on which he now relied was taken (in particular, the record states that a different firm acted for Mr Gaynor in the proceedings in this Court Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3). There are other difficulties with this aspect of the submissions, not least of which are (as was pointed out during the hearing) the parties to the litigation and the absence of findings. Further, the essence of Mr Wilson's submissions on these factual matters was a complaint that NCAT had failed to make certain findings favourable to him and adverse to the first respondent and its lawyers. There is, to our mind, a difficulty in reconciling that with Mr Wilson's primary position, which is that NCAT had no jurisdiction or power to deal with the dispute between the parties at all. For all those reasons, there is no basis for a grant of leave to extend to those grounds.
Mr Wilson submitted that the Appeal Panel and the Senior Member erred in their application of s 60 of the Civil and Administrative Tribunal Act in finding that there were special circumstances justifying the making of the costs orders. He submitted that he had had a measure of success before the Appeal Panel not reflected in the costs order made. This was because the proceeding which invoked federal jurisdiction was transferred to the Local Court whereas the first respondent had sought dismissal of the proceeding. Mr Wilson made other particular submissions as to the Tribunal's exercise of its costs discretion. We do not consider that his complaint that the primary judge erred in her consideration of these matters raises a question of principle or suggests an error going beyond what is merely arguable that warrants a grant of leave.
Mr Wilson also contended that the Tribunal proceedings ought to have been transferred to the Supreme Court rather than to the Local Court, apparently on the ground that the power exercised by the Tribunal (cl 6 of Sch 4 to the Civil and Administrative Tribunal Act) was not available to it where it had no jurisdiction to hear the principal claim. No submissions were made about this either before the Appeal Panel or the primary judge. If correct, it would prima facie be a reason either for the Tribunal to have dismissed the proceeding for want of jurisdiction or, more likely, to have made no order so as to allow Mr Wilson to apply to an "appropriate court" under s 34B for leave to make his application to the court instead of the Tribunal. Mr Wilson submitted that this Court should remit the proceeding to the Tribunal for the Tribunal to deal with the proceeding under Pt 3A of the Act. But Pt 3A does not empower the Tribunal to transfer proceedings to a court, but for an "appropriate court" to grant leave to a party who has made an original application in the Tribunal to make that application in the court, whereupon the proceeding commenced in the Tribunal becomes a substituted proceeding in the court. As this ground was not argued below and its resolution would not have the practical consequences for the parties that attend the validity of the costs orders of the Tribunal, we decline to grant leave for this ground to be argued.
The balance of the proposed grounds, insofar as they were developed in Mr Wilson's submissions, principally related to a complaint about the adequacy of reasons and a denial of procedural fairness in failing to provide sufficient assistance to an unrepresented litigant. We did not consider that there was any question of general principle, or public importance, or injustice going beyond the merely arguable, warranting any larger grant of leave to appeal.
Thus, in order to be clear, the grant of leave does not extend to a complaint that because of some misconduct by the first respondent or its lawyers, the costs orders should not have been made. The grant is on the pure question of law as to the power of NCAT in proceedings arising under a federal statute.
For the benefit of Mr Wilson, we note that in a case such as this where there has been a grant of leave, it will be necessary for him to file a notice of appeal which reflects the terms of the grant. It may be expected that the materials necessary to be included in the appeal books are significantly less than those provided in connection with the application for leave. The Registry will communicate with the parties in due course as to the filing of appeal books and submissions, and the date of the hearing of the appeal.
[3]
Amendments
16 April 2020 - [9]: 'jurisdiction rather than transferring it to any court' changed to 'jurisdiction or, more likely, to have made no order so as to allow Mr Wilson to apply to an "appropriate court" under s 34B for leave to make his application to the court instead of the Tribunal'.
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Decision last updated: 16 April 2020