Wu v Fairfield City Council

Decision under appeal

1. In Wu v Fairfield City Council, Senior Member Molony considered whether to determine the jurisdictional issue without a hearing. At [4], Senior Member Molony referred to the note made by Senior Member Little at the directions hearing on 27 January 2023 of the parties having consented to that course. Having reviewed the materials, Senior Member Molony was satisfied that the jurisdictional issue could be determined in the absence of the parties by considering the materials lodged by them (see NCAT Act, s 50(2)). The senior member determined to dispense with a hearing.
2. The senior member referred to the four decisions identified by the applicant in submissions, being: 1. Permission for neighbours to obstruct/ restrict their driveway entrance which is the essential flow path to access the inter-allotment Stormwater drainage easement; 2. Allowing the neighbours, on 15 October 2022, to construct a brick wall at the front of their property which blocks the flow of stormwater, undermines existing retaining walls, and causes stormwater to accumulate on the applicant's property, with resultant damage; 3. Allowing the neighbours to attach a metal screen to a boundary fence - which interferes with the appellant's access to natural light - on the basis that it is a privacy screen; 4. Deciding on 27 November 2020, to allow a structure that the neighbours had built over the sewerage easement in their backyard to remain in place.
3. The Tribunal stated that the appellant had identified s 68 of the Local Government Act and s 2.12 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) as provisions which were breached by the Council's conduct. However, it found that there was no enabling legislation giving the Tribunal jurisdiction to review the Council's decisions.
4. Accordingly, the Tribunal dismissed the appellant's application under s 55(1)(b) of the NCAT Act on the grounds that it was frivolous, misconceived and lacking in substance.
5. The Tribunal made orders for the filing of written submissions on costs. The Council filed an application for costs. That application had not been determined on 23 February 2023 when the appellant lodged her notice of appeal.

Grounds of appeal

1. The appellant set out what she described as her grounds of appeal in 39 paragraphs annexed to her notice of appeal. Many of these paragraphs were not grounds of appeal but a narrative of the background to the Tribunal application.
2. The appellant's main complaints about the Tribunal's decision, which are recorded in her Notice of Appeal, appear to be: 1. Certain documents and copies of legislation and policies were omitted from her submission after she handed them to the Tribunal on 22 December 2022; 2. The Tribunal incorrectly stated that she had not indicated any applicable enabling legislation, whereas in fact she had indicated that she relied upon ss 88A, 88B and 88C of the Conveyancing Act 1919 (NSW); 3. The Tribunal made an error of law by disregarding relevant evidence/ material which led it to dismiss her case without a hearing; 4. The Tribunal made an error of law by relying on irrelevant material provided by the Council's lawyer. The lawyer ignored the indisputable facts and the weight of evidence of her legal documents; 5. The appellant did not consent to her case being decided on the papers. This was not explained to her and if she had understood she would have rejected this course, because English is her second language and face to face communication would assist her to understand better. She says she was disadvantaged by this order without her knowledge; 6. The appellant says that her submission was not taken into account by the Tribunal; 7. The appellant was deprived of a fair hearing and natural justice, and the Tribunal failed to take such measures to ensure that the parties understand the nature of the proceedings or, if requested to do so, explain to the parties its decision (NCAT Act, s 38); 8. There were several factual errors, including a reference to a sewerage easement, whereas the appellant had not written anything in her submission about a sewerage easement.
3. The appellant filed another document entitled "Supplementary Grounds / Materials of Appeal" on 8 March 2023. That document was largely in the nature of submissions. In the document, the appellant requested the Appeal Panel to listen to the sound recording of the directions hearing in which the presiding member determined that the jurisdictional issue should be heard on the papers. She stated that the member did not explain to her the meaning of "decide on the papers." The appellant contended that she did not consent to the matter being decided on the papers.
4. In her "Supplementary Grounds / Materials of Appeal," the appellant made additional complaints about the conduct of the Council's solicitor. She stated that she had identified five pieces of enabling legislation and the Tribunal had not recognised this. She also made submissions as to why the neighbour's conduct was unlawful and why the Council should have taken action against them.
5. The Council opposed the appeal. Its position was that there was no provision in any enabling legislation that would enliven the Tribunal's jurisdiction to hear and determine the appellant's application. It sought its costs at first instance and its costs of the appeal.
6. The Council provided the Appeal Panel with its application for costs and accompanying submissions in the Tribunal and with the appellant's submissions on costs.

Hearing of the appeal

1. At the hearing of the appeal, the appellant focused on two main issues. The first was that she had not understood what Senior Member Little meant at the directions hearing when she referred to the matter being determined on the papers. The appellant said English is not her first language (which we accept) and that she thought it was impolite to interrupt, so she remained silent.
2. The appellant said that she had not understood that there would be no hearing. She told us that she had been very nervous at the directions hearing and her mind had been blank.
3. The second issue the appellant focused upon at the appeal hearing was her contention that the Tribunal had jurisdiction in the matter because the enabling legislation conferred such jurisdiction on it.

Decision to dispense with a hearing

1. The decision to dispense with a hearing is an interlocutory decision. An appeal from an interlocutory decision may only be made with the leave (or permission) of the Appeal Panel (NCAT Act, s 80(2)(a)).
2. The principles governing leave to appeal from an interlocutory decision were considered by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35]. They include that leave should only be granted where there are substantial reasons to allow an appellate review and that where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal.
3. After Senior Member Little had made an order dispensing with a hearing at the directions hearing, Senior Member Molony made a further order dispensing with a hearing on 27 January 2023 in the context of determining the jurisdictional issue. An extension of time is not required to appeal from Senior Member Molony's order and we have considered that order as being the operative one.
4. The decision to dispense with a hearing was made under s 50(2) of the NCAT Act. Subsections 50(1) to (3) of the NCAT Act provide as follows: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except - (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first - (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account.
5. The opportunity to make submissions must, we consider, be a reasonable opportunity (see, for example, Shrestha v Migration Review Tribunal (2015) 229 FCR 301 at [37]-[38]; Boensch v Somerville Legal [2021] FCAFC 79, at [85]).
6. The appellant failed to comply with the order made by the Appeal Panel on 10 March 2023 to provide a transcript of the relevant parts of any hearing, if she intended to rely upon what happened at that hearing. We have, however, listened to the sound recording of the directions hearing held on 15 November 2022 at the appellant's request.
7. At the beginning of the directions hearing, the Council's legal representative said that the Tribunal did not have jurisdiction. The senior member suggested, in discussion with that representative, Mr O'Connor, that the matter be determined on the papers, because that would be a quicker way of proceeding. The Tribunal member expressed the view that this would be advantageous to the appellant. She then explained to the appellant that there was a need, as a preliminary issue, to decide whether the Tribunal had jurisdiction to hear and determine her application. The senior member explained the jurisdictional issue and the procedure for filing submissions and evidence. She did not ask the appellant whether she consented to the matter being determined without a hearing and did not invite the appellant to make submissions about that.
8. The senior member explained to the appellant later in the directions hearing that Mr O'Connor could put in writing the Council's point of view, then the appellant could put in writing her point of view, then the Tribunal would make a decision based upon the written submissions. She explained that if the Tribunal had jurisdiction it would proceed. She then asked the appellant if she understood. The appellant responded to that question by explaining why she said the Tribunal had jurisdiction, but without engaging with the procedural issues or demonstrating that she understood that there would not be a hearing.
9. The appellant spoke quite extensively in the directions hearing about why she said the Tribunal had jurisdiction and asked about the procedure for filing material. At the end of the directions hearing, the senior member confirmed that the decision would be made on the papers. The appellant spoke further to the senior member about several matters but did not make any submissions about the matter being determined without a hearing.
10. We accept that the appellant did not understand what the senior member meant by determining the jurisdictional issue "on the papers". The senior member adequately explained the proposed procedure to the appellant during the directions hearing (without explaining that that procedure was what she meant by determining the matter "on the papers"). However, the decision not to hold a hearing was presented as a fait accompli. The senior member did not expressly invite the appellant to make submissions about whether or not there should be a hearing or make it plain to the appellant that she was entitled to be heard about whether there would be a hearing.
11. In these circumstances, we find that the Tribunal did not afford the appellant an opportunity to make submissions about the proposed order dispensing with a hearing, as it was required to do under s 50(3) of the NCAT Act. That is an error of law which vitiates the Tribunal's decision (CLD v Children's Guardian [2017] NSWSC 936 at [17]).
12. The second decision made to dispense with a hearing (which was made by Senior Member Molony on 27 January 2023) was made on the erroneous basis that the appellant had had an opportunity to make submissions about dispensing with a hearing and had consented to that course. It was therefore infected by error.
13. For these reasons, we find that there are substantial reasons to allow an appellate review and we have decided to grant leave to appeal from the interlocutory decision made on 27 January 2023 to dispense with a hearing. We have also decided to allow that appeal.
14. We note that if the Tribunal was correct to find that it did not have jurisdiction (as we have found that it was), then the other issues the appellant has raised fall away.

New hearing

1. As the appellant has been successful on this ground of appeal, we could remit the matter to the Tribunal to re-determine the Council's summary dismissal application. However, we consider that determining the jurisdictional issue ourselves better facilitates the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1)).
2. We informed the appellant at the hearing of the appeal that we could decide to deal with the question of jurisdiction at the hearing. We invited her to make oral submissions about it, which she did. She had already made extensive written submissions about this issue as it constituted one of her grounds of appeal.
3. We consider that the ground of the appeal concerning the Tribunal's jurisdiction warrants a new hearing and have decided to deal with the appeal by way of a new hearing (see NCAT Act, s 80(3)(a)).

Tribunal's jurisdiction

1. The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the NCAT Act or any other legislation (NCAT Act, s 28(1)). Section 29(1) of the NCAT Act provides for the Tribunal's general jurisdiction. It provides: 29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if - (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.
2. Section 30(1) of the NCAT Act provides for the Tribunal's administrative review jurisdiction. It provides that the Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.
3. Section 9(1) of the Administrative Decisions Review Act provides: 9 When administrative review jurisdiction is conferred (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation.
4. The term "enabling legislation" is defined in s 4(1) of the NCAT Act as follows: enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that: (a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.
5. The effect of these provisions is that the Tribunal does not have jurisdiction to hear the appellant's application unless such jurisdiction is conferred by legislation.

Enabling legislation relied upon by appellant

1. The appellant relied upon a number of statutory provisions which she said gave the Tribunal jurisdiction to hear her application. Those were: 1. ss 68, 439, 440, 440AAA, 478 and 482 of the Local Government Act; 2. s 2.12 of the State Environmental Planning Policy (Exempt and Complying Development Codes); 3. ss 140, 143, 144, 154 and 155 of the Evidence Act 1995 (NSW); and 4. ss 88A, 88B and 88C of the Conveyancing Act.
2. The appellant said that she had complained about particular council officers, although she did not name them in her application, and submitted that we should infer that her application concerned their misconduct. The appellant explained that the reason she did not name the relevant Council officers in her application is that she did not know the procedure.
3. Sections 439, 440 and 440AAA of the Local Government Act deal with codes of conduct and conduct obligations applicable to councillors, members of staff of councils, delegates of councils and administrators of a council. The appellant claimed that those provisions had been breached by the Council (or possibly by its officers). However, those provisions do not confer jurisdiction on the Tribunal.
4. The appellant placed particular emphasis, at the hearing of the appeal, on ss 478 and 482 of the Local Government Act as relevant sources of the Tribunal's jurisdiction. Section 478, entitled "Additional Complaints," broadly allows the Tribunal to deal with an additional complaint about a person in proceedings before it and s 482 provides for action the Tribunal may take if it finds a complaint to be proved.
5. Sections 478 and 482 are located in Division 4 of Part 3 of Chapter 14 of the Local Government Act. Chapter 14 is entitled "Honesty and disclosure of interests." Part 3 of Chapter 14 is entitled "Complaints concerning non-disclosure and proceedings before NCAT." Division 4 of Part 3 must be understood in its statutory context.
6. Division 1 of Part 3 of Chapter 14 of the Local Government Act provides for the making and investigation of complaints. It provides that a person may make a complaint to the Departmental Chief Executive that a person has or may have contravened a pecuniary interests duty (s 460) and that the Departmental Chief Executive may investigate the complaint (s 462) and notify the Tribunal of the investigation (s 465). A pecuniary interest is defined to mean an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person (s 439AA). In turn a pecuniary interests duty is an obligation imposed on a person by the provisions of a code of conduct that relate to the disclosure of pecuniary interests (s 439AA). The Departmental Chief Executive must present a report to the Tribunal of an investigation into a complaint (s 468).
7. Division 2 of Part 3 of Chapter 14 confers on the Tribunal the power to decide to conduct proceedings into the complaint after receiving the report (s 469).
8. Division 3 of Part 3 of Chapter 14 confers on the Tribunal the power to decide to conduct proceedings into a referred matter after receiving a report under s 438HA or s 440J of the Local Government Act. Section 438HA empowers the Minister to request the Departmental Chief Executive to refer a matter concerning a councillor's failure to comply with a performance improvement order to the Tribunal for consideration. Section 440J provides that the Departmental Chief Executive may refer a matter concerning alleged councillor misconduct to the Tribunal.
9. Division 4 contains ss 478 and 482. Section 478 provides: 478 Additional complaints (1) The Civil and Administrative Tribunal may in proceedings before it deal with one or more complaints about a person. (2) If, during any such proceedings, it appears to the Civil and Administrative Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the person concerned - (a) whether instead of or in addition to the complaint which was made, and (b) whether or not by the same complainant, the Civil and Administrative Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings. (3) If another complaint is taken to have been referred to the Civil and Administrative Tribunal under subsection (2), the complaint may be dealt with after such an adjournment (if any) as is, in the opinion of the Civil and Administrative Tribunal, just and equitable in the circumstances. (4) If another complaint is taken to have been referred to the Civil and Administrative Tribunal under subsection (2), the Tribunal may do either or both of the following - (a) reconsider any decision under section 470 to determine proceedings on the original complaint without a hearing and, if appropriate, recommence proceedings in relation to that complaint, or that complaint and any additional complaint, by way of hearing, (b) decide, in accordance with section 470, to determine proceedings, in relation to the original complaint, any additional complaint or all complaints, without a hearing. (5) This section does not apply to proceedings in relation to a matter referred to the Civil and Administrative Tribunal under section 440J.
10. Section 482 provides: 482 Decision of NCAT - pecuniary interests matters not involving councillors or administrators (1) This section applies to complaints relating to breaches of pecuniary interests duties by persons other than councillors, former councillors, administrators or former administrators. (2) If it finds a complaint against an employee of the council is proved, the Civil and Administrative Tribunal may - (a) counsel the employee, or (b) reprimand the employee, or (c) recommend that the council take specified disciplinary action against the employee (including counselling or reprimanding the employee), or (d) recommend dismissal of the employee. (3) The Civil and Administrative Tribunal may, if it finds a complaint against a member of a council committee is proved - (a) counsel the member, or (b) reprimand the member, or (c) suspend the member from office as member of the committee for a period not exceeding 6 months, or (d) disqualify the member from holding office as a member of any committee of that council for a period not exceeding 5 years. (4) The Civil and Administrative Tribunal may, if it finds a complaint against an adviser to a council is proved - (a) counsel the adviser, or (b) reprimand the adviser, or (c) suspend the adviser from office as adviser for a period not exceeding 6 months, or (d) disqualify the adviser from holding office as an adviser to that council for a period not exceeding 5 years. (4A) The Civil and Administrative Tribunal may, if it finds a complaint against a delegate of a council (other than the general manager of a council) is proved - (a) counsel the delegate, or (b) reprimand the delegate, or (c) suspend the delegate from acting as a delegate for a period not exceeding 6 months, or (d) disqualify the delegate from being a delegate of that council for a period not exceeding 5 years. (5) In determining which action, if any, to take against a person under this section, the Tribunal may take into account any previous complaints proved against the person, any action previously taken against the person and any other relevant matters. (6) (Repealed)
11. It is plain that the Tribunal in this case does not have power to make any of the orders referred to in s 482 and that neither s 478 nor s 482 confer jurisdiction on it to determine the appellant's application. Section 478 is premised upon there being "proceedings before" the Tribunal at the time an additional complaint is made. There were no relevant proceedings before the Tribunal when the appellant made her application. Further, although it is not necessary to decide this, the "proceedings" to which s 478(1) refers are probably proceedings into a complaint referred to in Division 2. That is, the "proceedings" which must be on foot are likely proceedings into a complaint that a person has or may have contravened a pecuniary interests duty. There were no such proceedings before the Tribunal when the appellant made her application to it.
12. For these reasons, ss 478 and 482 do not confer jurisdiction on the Tribunal to hear and determine the appellant's application.
13. The Tribunal was correct to find that s 68 of the Local Government Act is not a source of jurisdiction for the Tribunal to hear the appellant's application. Subsection 68(1) provides: 68 What activities, generally, require the approval of the council? (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval.
14. The provision does not refer to the Tribunal or confer any jurisdiction on it.
15. Sections 140, 143, 144, 154 and 155 of the Evidence Act, which the appellant relied upon on appeal, have no bearing on the Tribunal's jurisdiction. They do not confer any jurisdiction on the Tribunal.
16. Sections 88A, 88B and 88C of the Conveyancing Act do not give the Tribunal power to hear and determine the appellant's application to the Tribunal. Those provisions are concerned with easements and restrictions and do not purport to confer jurisdiction on the Tribunal.
17. Similarly, the State Environmental Planning Policy (Exempt and Complying Development Codes) does not confer jurisdiction on the Tribunal. The provisions upon which the appellant relies are raised by her in relation to the lawfulness or otherwise of her neighbour's conduct, and do not have any bearing on the question of whether the Tribunal has power to consider and determine her application.
18. The appellant has not identified any other statutory provision which confers jurisdiction upon the Tribunal to hear and determine her application and we are not aware of any.
19. For these reasons, we conclude that the Tribunal was correct to find that it had no jurisdiction to determine the appellant's application and to dismiss that application. Accordingly, we have decided to confirm the Tribunal's decision to dismiss the appellant's application (NCAT Act, s 81(1)(b)).

Costs

1. The Council sought its costs under s 60(2) of the NCAT Act of the Tribunal hearing at first instance and of the appeal. It said that there were special circumstances warranting an award of costs. It relied upon s 60(3)(c), (e) and (g) of the NCAT Act.
2. The Tribunal made a decision, after the appellant had appealed from its decision dismissing her application, ordering the appellant to pay the respondent's costs in a fixed sum (Xiao Qing Wu v Fairfield City Council No 2 [2023] NSWCATAD 112). Since the decision was made, an appeal has been lodged by the appellant against that decision.
3. We consider that it would be convenient to deal with the Council's costs application in this appeal, and the appellant's appeal from the Tribunal's costs decision, together. We have listed the matter for directions for the purpose of making a timetable to deal with those matters.

Orders

1. For the reasons given above, we make the following orders: 1. The appellant is granted leave to appeal from the decision to dispense with a hearing. 2. The appeal from that decision is allowed. 3. The appeal from the decision dismissing the appellant's application is to be dealt with by way of a new hearing. 4. The Tribunal's decision to dismiss the appellant's application is confirmed. 5. The matter is listed for directions at 9.15am on 3 November 2023.

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 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: 26 October 2023