Boele v Rinbac Pty Ltd & Ors

[2015] HCATrans 156

[2015] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S22 of 2015

B e t w e e n -

PIETER BOELE

Applicant

and

RINBAC PTY LTD

First Respondent

CONSUMER TRADER AND TENANCY TRIBUNAL

Second Respondent

DISTRICT COURT OF NEW SOUTH WALES

Third Respondent

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JUNE 2015, AT 12.31 PM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MS Z.C. HEGER, for the applicant.  (instructed by Fox & Staniland Solicitors)

MS M.N. ALLARS, SC:   May it please the Court, I appear for the first respondent.  (instructed by Landerer & Co)

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours will have seen from the papers that the application was filed late, in circumstances explained in an affidavit.  We seek leave by way of an extension of time.

FRENCH CJ:   Is that application opposed, Ms Allars?

MS ALLARS:   Your Honour, our position is simply we say that it is a matter for the Court.

FRENCH CJ:   We will grant the necessary extension of time, Mr Walker.

MR WALKER:   If it please the Court.

FRENCH CJ:   It is a pretty unattractive and messy case to ask us to inflict on our colleagues, Mr Walker.

MR WALKER:   It is difficult to imagine, your Honours, a less prepossessing prehistory in terms of bringing an issue to this Court.

FRENCH CJ:   I remember discussing this in Kostas.  There is some statutory injunction about efficiency and economy, is there not, in relation to the commercial tribunal?

MR WALKER:   Yes.  I am not quite sure this is ‑ ‑ ‑

FRENCH CJ:   I think that case also took about 13 years.

MR WALKER:   May I say, I am not sure this case is one that will be other than a deadset example.  Can I seek to persuade your Honours that, notwithstanding what we have in terms described as regrettable history, there is something raised here which is important.  To spend just a little bit more time on necessary concessions so as to allow that point through, your Honours know how, as it were, artificially, the jurisdictional character of the alleged error is the point that was decisive below.  Artificially or not, it was decisive – there is nothing moot about that.  It, as it were, was unfortunate that error on the face of the record was not able to be argued or perceived to be able to be argued.

Be that as it may, there is, of course, the constitutionally entrenched jurisdiction in relation to jurisdictional error, and that is my first point as to the importance.  We do not say Kirk was new, but we do say that post‑Kirk, it cannot be doubted that the understanding of the limits of power, as well as the necessary compulsion to appreciate the limits of power, is of abiding importance.  In other words, the point we seek to raise before this Court of whether the error of the District Court – I stress, the error of the District Court – was jurisdictional is a matter which necessarily involves, and its decision one way or the other would cast valuable light on, what is now a constitutionally critical distinction.

It so happens that it raises it in an area where both this Court’s authorities and the plethora of scholarship circling like satellites around your Honours makes clear is an extremely important area of problematic doubt.  Of course, I refer to the very point that has been identified in the combination of Craig and Kirk as producing particularly a line between jurisdictional error and mere error in the exercise of jurisdiction which may be particularly difficult to discern.  Here, I talk about errors of interpretation – let me call it misinterpretation – of a statute by an appellate court, that is, an inferior court, susceptible to Supreme Court review for jurisdictional error.

FRENCH CJ:   That all focuses in this particular case on the circumstances element of the discretion?

MR WALKER:   Unquestionably, the premise is that, in particular, the so‑called loss of premium – the irrecoverability or no recognition of the loss of the premium – whether that was or was not a matter which, having not been taken into account because the statute was misinterpreted, showed jurisdictional error.  I stress, in the District Court, it seems common ground that it did so at the level of the lay Tribunal; that was jurisdictional error there.  But we accept, and I hope it is now clear common ground – and part, I hope, of my endeavour to clear away the lumber – it is clear that we need to identify jurisdictional error in the District Court.

This case, with respect, is doctrinally interesting for this reason.  It poses in the vying reasons of Justice Basten and the other two judges this choice.  Where an appellate court, an inferior court with an statutory appellate jurisdiction, invited to correct a jurisdictional error derived from statutory misinterpretation fails to do so, is that to be seen as, by transfer, as it were – that is, by equality of character – a jurisdictional error in that appellate tribunal?

KEANE J:   To accept that it is would mean, would it not, that Craig was no longer the law?

MR WALKER:   I would need to add as well, you have got to consider Coal and Allied’s rather more empathic rejection of that simple notion.  The answer to your Honour’s question is “yes”, with the kicker that I have added.  But, in our submission, if it is not that – and for the purposes of my argument, we would actually pose that proposition in order really to say that cannot be right or completely right – one then comes to the question, does that mean that there is no jurisdictional error, as it were, ever when, performing its appellate role, the inferior court detects a statutory misinterpretation which has produced a jurisdictional error in the original decision?  That is, the appellate role is to detect errors, jurisdictional or otherwise, and you act within jurisdiction when you purport to do so, whether you do it rightly or wrongly.  That would be the other extreme.

Now, are those two poles the only two available choices?  The authority of this Court in Craig and Kirk is very plain, that you cannot say categorically that an appellate jurisdiction, such as the District Court had here, exercised with a particular outcome in relation to a jurisdictional error by the decision‑maker below by reason of statutory misinterpretation is not a jurisdictional error.  Why is that true?  Because Craig and Kirk, in the passages to which we have drawn attention – I do not want to go to them ‑ page 100 of the application book, our paragraph 23.  Your Honours are well familiar with it.  The non‑exhaustive list or illustrations of jurisdictional error include, of course, the misconstruction – we have numbered it (c) at about line 25 in our paraphrase:

[the] misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.

What we say is that when the appellate jurisdiction is engaged to check whether there has been a decision by the administrative decision‑maker, and the argument concerns the scope of that administrative decision‑maker’s powers, including what are or are not relevant considerations – that is this case, the circumstances in relation to the breach – then there is, in our submission, on the authority of Kirk and Craig, the un‑excluded possibility

that that is a jurisdictional error.  One then looks to Coal and Allied and says that would weigh against the proposition.  There, in our submission, is the puzzle on the face of the Court’s authorities.  Jurisdictional error and non‑jurisdictional error are so important as categorical differences – they after all affect State legislative powers, among other things – in relation to the privative clauses by which commercial efficiency can be lent, it is thought, to administrative tribunals but, in our submission, clarity should be brought.

FRENCH CJ:   Assuming the correctness of that, is this the right vehicle?  One has to demonstrate, of course, that there is a viable argument of statutory misconstruction at the base of it, or misapplication.

MR WALKER:   We have the better of that in terms of what I will call the primary statute, that is, that the circumstances include the threatened loss of any value for the premium.  We have got, as it were, 2‑1 on that.  With respect to their Honours below, we simply point to the fact that two of three justices thought so, and it is viable, yes.

With respect, our learned friend does not set out to show that there is no merit whatever – that is, no arguable prospect – in relation to what I will call the primary statute.  In relation to what is in fact the central statute ‑ that is the appellate jurisdiction statute in the District Court ‑ in our submission, no such crux arises.  There is no difficulty.  It is a relatively straightforward and common form provision of a kind that makes this an appropriate vehicle.  It is for those reasons, in our submission, that this is a case which, notwithstanding the initially rebarbative appearance it gives for special leave, is nonetheless an ideal one to attend to a particularly important issue.

If your Honours will forgive me, there is also, in our submission, an appropriate reference to what might be called ad misericordiam and highly particular individual circumstances.  Here is a person whose investment is to be completely gone, and where, at first reading, your Honours might have thought, well, he made his bed in an odd way, failing to take up the demand to occupy, until one reminds one of the fact that the commercial circumstances of the history meant there was no retirement village with facilities to occupy.  Not only the trust fund failed, which meant that the money could no longer be paid back, but it was totally fictitious, this idea of moving into retirement accommodation and, in our submission, there is individual merit in the interests of justice in the particular case to be allied with the very important question of jurisdictional error.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.  Yes, Ms Allars.

MS ALLARS:   May it please the Court.  On the first special leave point we say that the doctrinal vandalism, rather than interest generated by this application, is found in the way the first point is expressed.  It claims the Court of Appeal erred in refusing to issue certiorari for error of law.  It does not claim an error by reason of failing to issue certiorari for jurisdictional error.  Therein lies the lack of merit in this appeal point.

His Honour Justice Rein applied, in a perfectly regular way, principles that are well known from Craig and from Kirk, and his Honour Justice Sackville found it unnecessary to deal specifically with the jurisdictional error point.  The dissenting judge, his Honour Justice Basten, held that the tribunal had made a constructive jurisdictional error by failing to address a particular argument.  His Honour then concluded that if the CTTT had made a jurisdictional error, the District Court must also have made a jurisdictional error in failing to conclude that the CTTT made a jurisdictional error.

In our respectful submission, this reasoning involved some fundamental flaws in the context of the well‑known principles.  The first was that assumed that the function of the District Court was to engage in judicial review.  Quite plainly, the function of the court was an appellate one to consider the questions with respect to a matter of law within section 67(1) of the CTTT Act that were grounds of appeal before it.

It was also flawed because it assumed that one of the categories of jurisdictional error, or one of the examples of jurisdictional error, that we find set out in Craig and in Kirk is to ask whether the tribunal below made a jurisdictional error.  That simply is not a category of jurisdictional error, and for good reason.  It may not be the function of the inferior court to determine whether there was a jurisdictional error by the tribunal below.  That certainly is true in this case.  It was not the function of the District Court to make such a determination.

In reply, the applicant seeks to distance itself from the reasons of Justice Basten and frame the first special leave point differently.  It is framed in about three different ways in the application and in the reply.  Its first framing, if you like, is the label that is applied to it at paragraph 22 of the summary of argument, page 100 of the application book.  It is said that there is a jurisdictional error by an inferior court if it misconstrues a provision that was the source of the jurisdiction of the tribunal below.  Put this way, the label simply is a different one for describing the same reasoning as that of his Honour Justice Basten.  It is still a complaint which rests on confusion of the source of the CTTT’s jurisdiction, when the real issue should be the jurisdiction of the District Court, and whether the District Court misconceived its own jurisdiction.

The second label that is deployed is found at paragraph 25 of the summary of argument, and that is that an inferior court errs in performing its sole task; in that kind of case, it must have made a jurisdictional error.  This version of the point extends the claim category of jurisdictional error even beyond that advanced in the reasoning of Justice Basten.

In any event, the construction of section 134(3)(a) of the CTTT Act was not the sole task of the District Court.  It understood, properly, that it had dual tasks.  The first was to satisfy itself as to its own jurisdiction, and it did that very clearly.  It looked at the opening words of section 67(1) of the CTTT Act, and asked itself whether there was a question with respect to a matter of law that had been decided by the CTTT.  Those words state a precondition to a valid application to the District Court to appeal.  They also become a precondition to the District Court’s jurisdiction.  That is plain from section 67(3).

The District Court carefully considered this question, and satisfied itself that there was a question with respect to a matter of law.  It then identified three questions with respect to matters of law, that is, it turned to exercise its own jurisdiction which it properly had.  That task of identifying the four questions was a difficult one because of the problems in the pleading of the applicant, and a lenient approach was taken by the court, but it did identify the questions.  It then proceeded to answer them.

The “loss of premium” point was the fourth question before the District Court.  It considered and answered that question.  Any legal error made by the District Court in answering that question must be a non‑jurisdictional error.  The District Court did not misconceive its own function.

Turning to the established context of case law on jurisdictional error, the applicant’s first special leave point is dramatically inconsistent with the very well‑established distinction between jurisdictional and non‑jurisdictional errors of law.  That distinction was correctly appreciated by his Honour Justice Rein.  The applicant’s approach simply ignores the distinction.  On the applicant’s approach, judicial review for jurisdictional error by an inferior court becomes equivalent to an appeal on any error of law, and one might try to confine it to misconstruction of a statutory provision, but it is tantamount to any error of law made by the inferior court.

The distinction between jurisdictional and non‑jurisdictional errors of law was emphatically reaffirmed in Kirk at paragraph 65 on page 571 of the CLR report.  In that context, in the note to that emphatic reaffirmation, Coal and Allied is cited in support.  That reaffirmation reflects the approach of this Court over many decades.

FRENCH CJ:   The question arises in relation to jurisdictional error by the District Court in a sense unnecessarily because the applicant confined himself to jurisdictional error when section 69(4) extended the face of the record to the reasons.  I think was a point made at paragraph 6 in the Court of Appeal judgment.

MS ALLARS:   Non‑jurisdictional error of law on the face of the record could have been argued, but it was not.

FRENCH CJ:   So it arises in a rather artificial way, I suppose, from that point of view.  It defines the question.

MS ALLARS:   Well, had non‑jurisdictional error of law on the face of the record been argued then, in our respectful ‑ ‑ ‑

FRENCH CJ:   Simply an argument of misconstruction of the statute.

MS ALLARS:   It would have been on the table, that is true, your Honour, but despite the comment made by my learned friend as to the 2‑1 majority on the construction of 134(3)(a), we have notified the applicant that in the event that special leave were granted, we would file a cross‑appeal seeking variation of that part of the judgment, and we did not see it to be necessary to argue that point in our summary of argument.

Your Honour, there is a broader version of the label and it seems to be that which has been advanced just now by the applicant, and that is found at paragraph 7 of the reply, and that is a new category of jurisdictional error.  Wherever there is misconstruction by an inferior court of a power whose exercise is the subject of appeal, there will be a jurisdictional error.

Now, that would cover not just jurisdiction conferring provisions relating to the tribunal below, but also a range of other powers; in fact, simple procedural powers.  So it would mean that jurisdictional error potentially could be established simply on the basis of failing to correct an error made by a tribunal relating to its procedure.

A third label placed on the first special leave point made in reply ‑ paragraph 5 – is that an error which is so fundamental must be a jurisdictional error.  This proposition is so broad that it would overarch and replace the existing categories of errors that constitute jurisdictional error set out in Craig and Kirk and it would mean any non‑jurisdictional error would amount potentially to a jurisdictional error regardless of whether it appears on the face of the error, and that the failure to plead error of law on

the face of the record ought not to be a basis for encouraging or allowing this special leave point to be a sensible one.

Coal and Allied perfectly illustrates the same kind of scenario as the one we see here.  It was not necessary for this Court to even consider whether an error had been made by the Commissioner of the Australian Industrial Relations Commission.  The Full Federal Court intervened on the basis that it believed the Commissioner did not misconstrue a particular statutory section and concluded that the Full Bench of the Commission had made a jurisdictional error in finding otherwise.  But the whole issue really for the Full Federal Court was whether the Full Bench of the Commission misconceived its own jurisdiction, and it had not done so.

Little has been said by the applicant about its second special leave point.  It turns purely on a factual question as to whether a particular matter was a question of law before the District Court.  Their Honours Justices Sackville and Rein held that it was not.  His Honour Justice Basten was to the contrary.  This factual dispute arises partly out of the poor pleading of the applicant below but the District Court very clearly identified four questions of law which it derived from the summons seeking appeal and from clearly identified paragraphs of the applicant’s submissions – paragraphs 22 through to 25.  It did not regard paragraph 26 as anything other than a submission.  Nonetheless, his Honour Justice Basten drew from paragraph 26 an additional error of law which retrospectively is said to be one the District Court should have included as a fifth error – a fifth question.  We say that is purely a factual question, not a suitable matter to be determined by this Court.

So, your Honours, so far a suitable vehicle is concerned, your Honour the Chief Justice has referred to the objective of the then CTTT of providing efficient and quick and cheap mode of resolution of disputes.  The background to this case is complicated, unfortunate and for this matter to be the vehicle for consideration of what is, as I said, a somewhat vandalistic challenge to Craig and Kirk would be extremely unfortunate and the complications of the background to the case add to the unsuitability of the case as a vehicle.  If the Court pleases.

FRENCH CJ:   Thank you, Ms Allars.  Mr Walker, you have been called a vandal.  Do you want to reply?

MR WALKER:   That may not be the worst thing I have been called this week, your Honour.  Your Honours, far from vandals, we have come to admire the construction at Rome but to point out that there could be a bit more fine carving on some of it.  There are no fixed easily applied categories in this aspect of jurisdictional error.  It has been identified as probably the one that gives rise both as a matter of the policy of the law and at a deep constitutional level, as well as understanding published judicial discussions on it, as probably the most difficult.

Now, that might be – I put this facetiously – a reason never to grant special leave.  But in truth, if an appropriate case comes along that does present, as this case does, neatly the question is Justice Basten right?  The jurisdictional error at first instance carries through as a character, as it were, pervading the failure to detect it.  We do not think, with respect, that could be right.  We do not and would not submit that that was right.

But the opposite pole, namely, that never is, is one which leaves totally inexplicable ‑ indeed, would rather tend to contradict – the care with which both in Craig and Kirk the possibility of the inferior court mistaking a statute which is the subject matter of the inferior court’s exercise of jurisdiction; I stress, the subject matter of its exercise of jurisdiction.  That is left open as raising a difficult case as to whether it is on one side of the limit or the other.

So, far from being radical in an undesirable fashion, we, with respect, point respectfully to the fact that what our learned friend blandly calls today existing categories were avowedly and explicitly in both those authorities non‑exhaustive illustrations and the particular one in question deliberately described as one which had further problems to be worked out.

How are they to be worked out?  Not by academic discussion, but by case‑by‑case determination applying the principles to facts as cases present themselves.  We present this case, with respect, as one which is ideal for that purpose.  The fact that it would permit hanging on, as it were, by the fingernails, my client, the capacity to ameliorate his pitiful position is one which, in our submission, adds to its merits.  May it please the Court.

FRENCH CJ:   The Court will adjourn briefly to consider what course it should take.

AT 1.00 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.01 PM:

FRENCH CJ:   The question of the extent of jurisdictional error by inferior courts and tribunals is a matter of some importance which may fall for further consideration by this Court at a future time.  In our opinion, however, the merits of this case and its complex history render it an unsuitable vehicle for the grant of special leave in relation to the questions of principle about jurisdictional error said to arise from it.  Special leave will be refused with costs.

The Court will now adjourn to reconstitute.

AT 1.02 PM THE MATTER WAS CONCLUDED