HIA Insurance Services Pty Ltd v Kostas

HIA Insurance Services Pty Ltd (the appellant) appealed to the Supreme Court of New South Wales against decisions made by the Consumer, Trader and Tenancy Tribunal (the Tribunal) during interlocutory proceedings. The dispute concerned whether certain decisions made by the Tribunal at this preliminary stage were capable of forming the subject matter of an appeal to the Supreme Court.

The central legal issues before the Supreme Court were whether the Tribunal's decisions, made during interlocutory proceedings and concerning questions of fact or mixed law and fact, constituted "a decision of the Tribunal with respect to a matter of law" for the purposes of an appeal under section 67(1) of the *Consumer, Trader and Tenancy Tribunal Act 2001* (NSW). The Court also considered whether an appellate court was entitled to determine questions of fact once an error of law had been identified, and whether the Tribunal was required to expressly identify a question of law for decision.

The Supreme Court, comprising Spigelman CJ, Allsop P, and Basten JA, allowed the appeal. The Court reasoned that the Tribunal's decisions, which involved the application of legal principles to factual circumstances, were indeed decisions with respect to a matter of law. The Court held that the interlocutory nature of the proceedings did not preclude an appeal, and that the Tribunal did not need to explicitly label a question as one of law for it to be appealable. The Court found that the Tribunal had erred in law in its approach to the interlocutory applications.

Consequently, the Supreme Court set aside the orders and declarations made in the Common Law Division, dismissed the plaintiffs' summons, and ordered the plaintiffs to pay the first defendant's costs in the Common Law Division. The respondents were ordered to pay the appellant's costs in the Supreme Court, and were granted an indemnity certificate under the *Suitors’ Fund Act 1951* (NSW) in respect of the appeal.