Ms Yuen (the appellant) has appealed against consent orders made by the Consumer and Commercial Division of the Tribunal. The background to the dispute may be shortly stated. Mr Thom (the respondent) was, at the relevant time, trading as Baulkham Hills Travel (Sydney) ABN 48 774 647 526. The appellant was preparing for a family holiday to celebrate her father's 69th birthday and booked and paid for an overseas trip through the respondent. The appellant paid over $9000 to the respondent from her savings. Unbeknownst to the appellant, the flights were either not booked or cancelled, yet the respondent did not refund the amount paid by the appellant. So much does not seem to be in dispute.
At the hearing before the Tribunal, at first instance, the parties were requested to conciliate their dispute. Pursuant to that conciliation, a document was signed by both parties stating, in effect, that they had agreed to settle their dispute with the respondent paying the full amount claimed in instalments of at least $20 a month. The Tribunal made orders in accordance with the written document. The question for this appeal is whether those orders were properly made and in particular whether they were made by consent.
[2]
Jurisdiction and notice of appeal
Pursuant to s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) an appeal lies to the Appeal Panel as of right on any question of law. The subject matter of the appeal is the question of law: see Ferella v Chief Commissioner of State Revenue (NSW) [2014] NSWCA 378 at [22]. The orders that the Appeal Panel may make pursuant to s 81 of the Act are confined to issues arising in respect to the subject matter of the appeal: i.e., the question of law. Leave to appeal, on any other ground, may also be given in appropriate circumstances. In the event leave is granted, the subject matter of the appeal reflects the grounds upon which leave was granted.
In essence, the appellant contends that there was no agreement or that the agreement process was flawed such that any putative agreement was vitiated. If correct, the consent orders could not be made.
To the extent that leave is necessary, the appellant applied for leave to appeal and contended that the Appeal Panel ought to be satisfied that the appellant had suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable. In order to grant leave to appeal, the Appeal Panel must have regard to Sch 4, cl 12 of the Act and in particular, whether there may have been a substantial miscarriage of justice due to one of the factors outlined in clause 12(1)(a), (b) or (c) of Sch 4. This clause was considered at length by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [65] to [84]. Here, the appellant relies on cl 12(1)(a) of Sch 4 and contends that it is not fair or equitable for the order to stand, for the reason that had the matter gone to hearing such an order could not or would not have been made. The appellant points to the fact that it will take 37 years for the debt to be repaid and that, on any view, the decision was not reasonable.
The Appeal Panel must be satisfied that a question of law arises with respect to the grounds of appeal. Alternatively, the Appeal Panel must consider whether to grant leave to appeal on some other ground.
The Tribunal is only empowered to make consent orders when, relevantly, there is an "agreed settlement" by the parties and where "the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement": s 59 of the Act. Absent an agreement and power to make the type of orders made, the orders of the Tribunal would have been made without power. This case therefore turns on whether or not there was an agreement and whether the Tribunal had power to make the type of orders it did make.
In Roney v NSW Land and Housing Corporation [2015] NSWCATAP 269, the Appeal Panel, in considering an appeal to set aside a purported consent order, described the existence of an agreement as a jurisdictional fact and therefore treated that appeal as raising a question of law (at [41]). On the other hand, generally, whether or not there is an agreement is a question of fact or mixed question of fact and law: S & G Homes Pty Ltd (t/as Pavilion Homes) v Owen [2015] NSWCATAP 190, [24], citing Haritos v Commissioner of Taxation [2015] FCAFC 92, [68]. However, as explained in Haritos (at [194]) the distinction between a question of law and a mixed question of fact and law can be distracting. The relevant question in relation to an appeal on a question of law is whether or not the error relied upon is an error of law: Haritos at [200].
The Appeal Panel is satisfied that the question of whether the Tribunal had power to make the supposed consent order raises a question of law; and so, the appellant may appeal as of right on the question of whether the Tribunal had the power to make the orders made. Even if that were not the case, there may have been a substantial miscarriage of justice if there was, in fact, no agreement and yet the Tribunal made the orders as if by consent. Had the matter not been purportedly resolved by consent, the Tribunal may not have made the order for payment by instalment. The Appeal Panel has arrived at that last mentioned conclusion having had regard to the rather extraordinary term of the purported settlement agreement (at $20 a month, it would take 37 years for the respondent to repay the debt and there is no provision for interest) and the fact that the respondent does not deny the proposition that he ought to repay the monies to the appellant. Accordingly, in the event it is necessary, the Appeal Panel grants leave to appeal.
[3]
Nature of the orders sought
The notice of appeal does not identify the orders which the appellant says the Appeal Panel should make, if the appellant is successful. However, this may be discerned from orders of the Tribunal made on 16 August 2016 concerning the filing of submissions and setting the matter down for hearing. The written orders contain the following notation:
NOTE: the appeal relates to the correction of an order by consent that the Respondent pay a debt of $9040 by instalments of $20 per month. The amendment is sought in respect of the instalment repayment.
Irrespective of whether the appeal is limited to a question of law or extended by leave, this is not a case where the consent order could be amended. Having reviewed the evidence and the appellant's submissions, there is no suggestion that the orders of the Tribunal, at first instance, do not reflect the purported agreement between the parties. This is not a case where it is alleged that there is an error that may be corrected under section 63 of the Act (when there is an obvious error in the text of a notice of decision such as a clerical error, an accidental slip, a defect in form or an inconsistency between the stated decision and the stated reasons). The appellant's case is, in effect, that there was no consent, no true agreement and thus no power for the Tribunal to make consent orders. The appellant is dissatisfied with the consent order, but does not suggest that the terms of the consent order do not reflect the purported agreement. The complaint is that the putative agreement was not truly consensual, as it was not the product of a genuine bargaining process; and so, was not an agreement.
In this case the Appeal Panel's task is to determine whether the consent order should be set aside: if not, the consent order must stand. There is no possibility of the Appeal Panel varying, amending or rectifying either the supposed agreement or the consent order. Even in the event of an appeal on grounds wider than the question of law, the question is whether or not there is an agreement to ground the consent order. There is no general warrant for the Appeal Panel to amend the "bargain". Either there was a bargain or there was not. Either the Tribunal had power to make the type of orders it made or it did not.
In the event it is determined that the consent order should be set aside, the Appeal Panel may then exercise all the functions of the Tribunal at first instance (s 81(2) of the Act), or determine that the matter should be reconsidered by the Tribunal, either with or without further evidence (s 81(1)(e) of the Act). In either case, that would not involve amending the putative bargain between the parties: it would constitute a hearing of the substantive claim where new orders could be made.
[4]
Additional evidence and the nature of the appeal
The appellant sought to rely on additional evidence at the hearing of the appeal, in order to establish her ground of appeal. We turn to consider the basis upon which the further evidence may be received on an appeal under s 80 of the Act. This necessitates consideration of the nature of an appeal under the Act.
In Lacey v Attorney-General (Qld) (2011) 242 CLR 573, the High Court of Australia identified the differences between various types of appeals as follows (at [57], citations omitted):
Appeals being creatures of statute, no taxonomy is likely to be exhaustive. Subject to that caveat, relevant classes of appeal for present purposes are:
1. Appeal in the strict sense - in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance.
2. Appeal de novo - where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.
3. Appeal by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance.
In Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [59] to [61] McColl JA noted as follows (footnotes omitted):
[59] An "appeal" is always a creature of statute. The words "appeal" and "rehearing" may be used in a number of senses. Further, the word "rehearing" has been used in statutes, or employed in construing statutes, to indicate, in differing senses, the nature of the task to be performed by an appellate court. The variable usage of these terms is such that the precise nature of the statutory remedy of appeal afforded to a dissatisfied litigant, and the procedures attendant upon it, will ultimately depend upon the provisions of the statute creating the right of appeal. However the context of the term, the history of the legislation and the surrounding circumstances will also be relevant.
[60] Broadly speaking, there is a recognised distinction between first, appeals in the strict sense - in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given, secondly, appeals de novo - where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error (appeal de novo), and, thirdly, appeals by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error and, in some cases, has power to receive additional evidence (error based appeal). In the latter case, although the appeal is described as being "by way of rehearing", it does not "call for a fresh hearing or hearing de novo [and] the court does not hear the witnesses again."
[61] One of the indicia of a rehearing function is the conferral of a discretion on an appellate body to admit further evidence. Such a power is of a remedial nature conferred "to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures."
Subsection 80(3) of the Act provides that the Appeal Panel may, if the grounds so warrant, determine the appeal by way of a new hearing and in such a case, receive further evidence (including evidence additional to or in substitution for the evidence at first instance). Section 80(3)(b) gives the Appeal Panel the widest possible latitude for the receipt of evidence. This together with the use of the expression "new hearing" suggests that s 80(3) is contemplating a hearing de novo, as referred to in the extracts above. However, such an appeal is conducted on such a basis only where, in its discretion, the Appeal Panel decides to conduct it as a "new hearing" because it is satisfied that "the grounds of appeal warrant a new hearing": s 80(3)(a) of the Act. Otherwise, internal appeals to the Appeal Panel are not determined by way of a new hearing
The ground here is that the Tribunal proceeded to make consent orders without the power to do so. The Appeal Panel is not satisfied that such a ground warrants a new hearing. It does not "call for a fresh hearing or hearing de novo [or to] hear the witnesses again" (Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620; [1976] HCA 62 as extracted in Engelbrecht at [60]).
The question then arises as to the nature of an appeal that is not being determined by way of a new hearing. Having regard to s 36 of the Act and that the guiding principle of the Act is to facilitate "the just, quick and cheap resolution of the real issues in the proceedings" and that this principle is to be employed when construing any provision of the Act (s 36(2)(b) of the Act), we have concluded that an appeal in the strict sense would be unduly constraining on the Tribunal and not facilitate the guiding principle. Having regard to the guiding principle, an appeal under s 80(1) (that is not to be determined by way of a new hearing) is one that would facilitate an Appeal Panel to "[avoid] errors which cannot be otherwise remedied by the application of the conventional appellate procedures" (CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67 (at [109]) per McHugh, Gummow and Callinan JJ as extracted in Engelbrecht at [61]). This is an appeal that admits of the receipt of further evidence where applicable. This conclusion is supported by, s 38(1) which provides that the Tribunal may determine its own procedure, where the procedural rules do not otherwise make provision. Further still, sch 4, cl 12(1)(c) expressly contemplates the receipt of significant new evidence on an appeal (i.e., evidence that was not reasonably available at first instance) and it would not seem to be necessary to determine an appeal by way of new hearing in every case where an appeal was by leave due to the emergence of such significant new evidence.
The ability to receive further evidence is a hallmark of a rehearing (Engelbrecht at [60]). Accordingly, we are satisfied that in an appeal that is not being determined by way of a new hearing, the Appeal Panel would conduct an appeal akin to a rehearing, with the ability to receive further evidence.
An appeal on a question of law would rarely warrant the receipt of new evidence. There may nevertheless be circumstances where the particular question of law warrants the receipt of additional evidence to prove the error. In Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [13], in the context of an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975, it was stated that it is generally inapposite to receive new evidence on an appeal on a question of law. However, an exception may be made where the evidence is necessary to prove the circumstances to prove a breach of procedural fairness; and so, the receipt of evidence that was not before the decision maker may be appropriate (such as evidence that a hearing notice was not received: see, for example, Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127 at 129).
This case constitutes another exception. Here the question of law (if it be a question of law) is whether the Tribunal had jurisdiction to make the consent order. That question turns, in part, on the existence or not of an agreement and the relevant evidence must logically include evidence, not necessarily before the original decision maker, that goes to whether or not there was an agreement. To the extent that this is an appeal by leave on the basis that the decision was not fair or equitable, in the sense that it would not have been made had the matter gone to a contested hearing, it also warrants the receipt of the evidence going to whether or not there was an agreement.
[5]
The additional evidence
The Appeal Panel had before it an affidavit of the appellant dated 16 August 2016 and a letter addressed to the Tribunal dated 26 July 2016. The primary matters relied upon from the affidavit included the following: that the appellant did not understand the conciliation process, that she was not aware that repaying the debt in $20 instalments meant that the debt would be paid in full after 37 years and that the appellant thought the respondent would walk away without having to repay if she refused the offer. In summary, the appellant contended that she was unaware that she could refuse to accept the respondent's offer and that she only agreed on the basis that she had no other option.
The appellant sought to supplement her evidence orally. For the reason that the Tribunal had not ordered that all the evidence be filed prior to the hearing of the appeal and for the reason that the respondent consented, the Appeal Panel determined to receive this evidence too.
The oral evidence that the appellant gave was consistent with her affidavit. She maintained that before the hearing the parties were asked to try to resolve the dispute as between themselves. The parties waited in a room for the invigilator (as described by the appellant). The invigilator then explained what the proceedings were about and that they were here to try to agree a settlement. The respondent then put his offer to pay $20 a month on the basis that he could not afford to pay more. The invigilator repeated that offer and then asked the appellant "okay?" The appellant accepts that she said "okay" and signed a document purporting to set out the agreement. The parties then went back before the Tribunal and the Tribunal asked them if they had reached an agreement and the appellant said "yes". Nevertheless, she contended that at no stage had she understood that she was allowed to negotiate or that she could say no to the offer that the respondent had made.
The appellant accepted that she understood the dispute resolution process before the hearing had been engaged in to try to resolve the dispute and to try to reach an agreement. Nevertheless, she maintained that she was overwhelmed by the process occurring at the Tribunal at first instance and did not understand that she could negotiate; albeit she did understand that they were trying to reach an agreement. Unfortunately, at the time, her solicitor was overseas and did not attend the hearing at first instance with her.
The appellant accepted that both parties had signed a document purporting to set out the terms of the agreement and she did not cavil with the terms of that document. She also accepted that the Tribunal member had sought her confirmation that a bargain had been struck and outlined the terms of the agreement before making the orders.
The appellant holds a responsible job and gave her evidence coherently and articulately. Whilst the Appeal Panel accepts that the appellant was giving her evidence honestly, doing the best that she could to recall precisely what happened, there is some disconnect between the proposition on the one hand that she knew she was trying to reach an agreement with the respondent and on the other hand, that she did not believe she was entitled to negotiate or entitled to say no to his offer.
The respondent, who was unrepresented, was invited by the Appeal Panel to provide oral evidence. He said that he accepted that the matters had transpired much as the appellant had recounted. He reiterated that he could not afford to pay more. The respondent also provided to the Appeal Panel some documents. The documents identified that the respondent is suffering from terminal prostate cancer and has reduced cognitive function, has ongoing medical bills, is now living in housing provided by New South Wales Family and Community Services, has no income other than his old age pension and his only assets are furniture in storage which he cannot afford to get out of storage. He also has a car worth approximately $1300.
The appellant did not object to us receiving these documents, but highlighted that if she had had advance notice of it she may have sought to traverse some of the matters in the documents: in particular the fact that he had medical bills and whether or not he had a source of income other than his pension. The Appeal Panel determined to accept the documents on the basis that we would allow the appellant's solicitor to cross examine the respondent on the documents. The documents were marked exhibit A. Under cross-examination the respondent confirmed the matters we have just recited. The appellant's solicitor asked the respondent about an email that he had sent to the appellant wherein he indicated he may soon be in part-time employment, up to 3 days a week. The respondent acknowledged that he had sent the email, but said that the job did not come about and he is not fit to work and could not, for instance, answer phones. The Appeal Panel accepts that the respondent was giving his evidence honestly.
[6]
Consent orders
As mentioned above, the appellant does not rely on section 63 of the Act (correcting errors). The issue is whether there is, underlying the consent orders, a true agreement resulting from a bargain between the parties. At first instance, the Tribunal relied on the powers under s 59 of the Act.
That section relevantly provides:
59 Powers when proceedings settled
(1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if:
(a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and
(b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.
(2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.
Further, rule 37 of the Civil and Administrative Tribunal Rules 2014 (NSW) requires the Tribunal, in deciding whether to give effect to a settlement, to take into account the interests of a "vulnerable person" as defined. A vulnerable person is a minor, or a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal due to a disability. The appellant is not a vulnerable person.
Relevant to this case, to make a consent order, the Tribunal must be satisfied that it had power to make the type of orders that it made. Here the order was for the payment of monies by instalment. The Tribunal could be satisfied it had power to make such orders.
The real issue turned on whether there was an agreed settlement which had been reduced to writing. The Appeal Panel did not have before it a copy of a written agreement. However, during the course of the oral evidence it was accepted by both parties that they had each signed a document outlining the terms of the agreement or purported agreement. So, the narrow issue is whether there was an agreement.
At common law, a consent order may be set aside on the same basis that the underlying agreement may be set aside. This was considered by the Appeal Panel in Loch v New South Wales Land and Housing Corporation [2014] NSWCATAP 110. The Appeal Panel said at [27]:
At common law, the grounds for setting aside a consent order are the same as those for setting aside the agreement on which it is based: Bernard Cairns, Australian Civil Procedure (8th ed, 2009 Law Book Co) at 418. In Harvey v Phillips (1956) 95 CLR 235, the High Court said, at 243-4, that:
The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.
To set aside a consent order on one of the above bases, it must be possible to point to some contumelious conduct on behalf of the respondent. For instance, in the case of duress it must be shown that illegitimate pressure was placed on the appellant such that there was no reasonable alternative for her but to submit: Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, 46A. There is no suggestion that illegitimate pressure was brought to bear, the complaint here is that the appellant did not fully understand the process.
With respect to undue influence one must point not only to a source of power to deprive another person of free voluntary consent, but also the result of the actual influence: Johnson v Buttress (1936) 56 CLR 113, 134. This is not a case where one of the presumed relationships of undue influence arises such as for a parent and child or solicitor and client: White v Wills [2014] NSWSC 1160, [64], [75]. Here, no actual influence was pointed to.
In relation to mistake, the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract: Clasic International Pty Ltd v Lagos (2002) 60 NSWLR 241, [39], [42]-[43]. Assuming for the purposes of argument, that the appellant was mistaken as to whether or not she could refuse the respondent's offer, the question is whether that mistake was of a type that vitiates her consent. A common mistake arises when the mistaken belief is held by both parties: Clasic International Pty Ltd v Lagos (2002) 60 NSWLR 241, [41], applying Solle v Butcher [1950] 1 KB 671, 693. That does not arise here. A unilateral mistake is where one party is mistaken but the other party should have been aware of the mistake: Taylor v Johnson (1983) 151 CLR 422, 432. The appellant does not contend that the respondent ought to have known of any mistake upon which she was operating. A mutual mistake arises where both parties are mistaken, but their mistakes are different such that there is no meeting of minds: Charitou v The Owners of Strata Plan 10394 [2015] NSWSC 1059, [22]. Here, the parties both understood the bargain that was made; there is no misapprehension about the terms of the purported agreement. The issue is, was there an agreement reached even though the appellant did not understand the bargaining process. The Appeal Panel is of the view that the answer is yes because a reasonable observer would have concluded that an agreement was reached: see N Seddon, R Bigwood and M Ellinghaus, Cheshire & Fifoot Law of Contract (LexisNexis, 10th Aus ed, 2012) at [3.9].
Other factors might arise such as non est factum (not my deed). The defence of non est factum is available to a limited class of persons who through no fault of their own, such as by blindness or illiteracy, are unable to have any understanding of the meaning of a particular document and sign the document in the belief that it was radically different from what was in fact signed: Petelin v Cullen (1975) 132 CLR 355, 359-60. However, the appellant is not suggesting she did not understand the document she was signing.
In summary, the appellant does not suggest that the respondent was responsible for her agreeing to a bargain she would not otherwise have agreed to. There is no conduct or circumstance that can be pointed to, to vitiate the purported consent.
The appellant does, however, cavil with one aspect of the respondent's conduct. The respondent mentioned, at the conciliation, his incapacity to pay more than $20 a month. It was on the basis of this circumstance that the offer was put. The appellant challenged this assertion and as mentioned above, the respondent was cross-examined on this issue. The Appeal Panel is not satisfied that the respondent has excess capacity. In any event, if the Appeal Panel is wrong, this could not alter the outcome for the reason that the appellant does not suggest that because of his representation (that he could not pay more than $20 a month) she agreed to the bargain. A material misrepresentation, if relied upon by the appellant in agreeing to the bargain, may well be something that could operate to set aside the agreement: Alati v Kruger (1955) 94 CLR 216, 222.
Here, it is not alleged that the misrepresentation was relied upon. The appellant does not suggest that if she had known he had more capacity to pay she would have bargained for more. The appellant's case is that she did not know she could negotiate - no matter what the respondent had said about his ability to pay. Her case is that she did not understand the bargaining process. It is not suggested that the respondent somehow misled her about the bargaining process.
[7]
Conclusion
The Appeal Panel accepts that the appellant gave her evidence honestly, in the sense that, looking back, she now feels that, at the time, she did not understand the process, did not understand that she could reject the offer made by the respondent and that she was overwhelmed. The Appeal Panel is nonetheless satisfied that at the time, the appellant understood that the conciliation was undertaken in order to give the parties an opportunity to resolve the dispute, as between themselves. In light of the appellant's evidence, the Appeal Panel is satisfied that she made a bargain with the respondent. In particular her evidence of the interchange between her and the invigilator is telling. The invigilator put the respondent's offer to her and said "okay?", the appellant understood the invigilator to be asking her a question, to which she answered in the affirmative. Further, in her evidence, the appellant accepted that when the parties went back before the Tribunal member, the Tribunal outlined the bargain. At that time she again indicated her assent. Whilst it is readily acceptable that a settlement which could take up to 37 years to the performed, may, in hindsight have been unwise, it is not for the Appeal Panel to renegotiate or assist the parties to renegotiate any bargain. The Appeal Panel's role is to determine whether or not the consent orders should be set aside. The appellant's case was put on the very limited basis that there was, in truth, no agreement because the appellant had not understood the bargaining process. For the reason that the Appeal Panel is satisfied she understood she was making a bargain and that there is no vitiating error in the underlying agreement, there is therefore no basis upon which to set aside the consent order. Further, the Tribunal had power to make a money order payable by instalments, so the type of order made was not ultra vires. Accordingly, there was no error of law.
There is also no basis to set aside the consent order on the ground for which leave was given: that the decision is not fair or equitable because the Tribunal would not have made those orders had the matter gone to a hearing. Where the parties have struck a bargain and approach the Tribunal to make consent orders, it is not for the Tribunal to dissuade the parties from their bargain. The Tribunal need only be satisfied that there is an agreement, it has been reduced to writing, signed by the parties and that the Tribunal has power to make the types of orders sought: s 59 of the Act. Where those factors are established, as here, it is not unfair or inequitable to make orders to reflect the agreement.
[8]
Orders
The Appeal Panel orders as follows:
1. Leave to appeal, if necessary, is granted.
2. The appeal is dismissed.
[9]
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: 11 November 2016