Kostas & Anor v HIA Insurance Services Pty Limited t-as Home Owners Warranty & Anor
[2010] HCATrans 121
[2010] HCATrans 121
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S84 of 2010
B e t w e e n -
PETER KOSTAS
First Appellant
CHRISTINE KOSTAS
Second Appellant
and
HIA INSURANCE SERVICES PTY LIMITED T/AS HOME OWNERS WARRANTY
First Respondent
CONSUMER, TRADER AND TENANCY TRIBUNAL
Second Respondent
FRENCH CJ
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 19 MAY 2010, AT 10.20 AM
Copyright in the High Court of Australia
MR J.T. GLEESON, SC: May it please the Court, I appear with MR R.J. CARRUTHERS for the appellants. (instructed by Pryor Tzannes & Wallis)
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MS F.R. CLARK and MS E. RAPER, for the first respondent. (instructed by Mills Oakley Lawyers)
FRENCH CJ: Yes, Mr Gleeson.
MR GLEESON: Your Honours, could I commence with the statutory framework which brought this matter before the Tribunal and ultimately the Supreme Court. Under the Home Building Act 1989 (NSW), section 48A, a building claim is defined relevantly to include a claim for a payment of a specified sum of money arising from a supply of building services, including in respect to residential building work. That was met in the present case.
Under subsection (2) a building claim extends to an appeal against the decision of an insurer under a relevant contract in respect to the building work. That also was satisfied. The conferral of jurisdiction was found in section 48K and it was a jurisdiction to hear and determine in this case two building claims provided the amount did not exceed $500,000. We emphasise that these were claims under the general law of contract that were being determined. They were substantial in amount and in the issues of factual and legal difficulty involved.
Could I then ask your Honours to go to the Tribunal Act, that is the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). Section 21 confers a jurisdiction to decide matters. Although this is a case in State jurisdiction, the concept used is that of a matter and I will seek in a moment to identify what the scope of the matter was, and also jurisdiction and power to make orders and exercise functions under this or any other Act, in the present case the Home Building Act. Section 22 is a fairly draconian privative clause. It does not raise any constitutional issues on the facts of our case.
Could I now identify what the matter was in the present case and ask your Honours to go to volume 1 of the appeal book at page 3 in what is described as a second amended points of claim, in effect, the application or the quasi pleading document of Tribunal. The relevant ascertains by my clients included paragraph 6, a breach of certain statutory warranties, paragraph 7, a wrongful failure to complete the work and, importantly, in paragraph 8 an allegation that under the general law of contract there was a valid termination of that contract on the ground of a wrongful failure or refusal to complete and there was specific reliance placed on clause 24 of the contract.
In the defence by the insurer, pages 8 to 9, one sees between paragraphs 7 and 9 a denial of those allegations and in paragraph 9(a) a specific allegation that no relevant loss or damage was suffered by reason of wrongful termination of the building contract by the appellants. In paragraph 14 that is again relied upon as a complete answer to the whole of the claim. Accordingly, we would submit that the matter in which the Tribunal had jurisdiction included the question whether the appellants were entitled to a payment from the insurer in circumstances where the builder’s alleged wrongful conduct justified the appellants in bringing that contract to an end. Your Honours that in turn reflects the separate question which the Tribunal considered.
Could I ask your Honours to go to volume 2 at page 431. The separate question is recorded in paragraph 2 of the reasons of the Tribunal. The answer to that question is found at paragraph 38 on page 438 with a finding that the purported termination by the appellants was, in fact, a repudiation at general contract law and that is reflected in the order at page 430, Order 1. As your Honours know, that separate question came to be heard because of an agreement between the parties that it should be heard. I will simply give the reference AB 373 to 383 and the order for the separate question is at volume 2, AB 428.
Could I then return to the Tribunal Act to some of the other relevant provisions. In section 8, in terms of qualifications there is no requirement that the member deciding a case like the present have legal qualifications. He or she may well have other skills in relation to a building matter. Section 24 requires a written application to invoke the jurisdiction of the Tribunal, and I have identified that. Section 28, which is of importance in this matter, subsection (2) indicates that while the Tribunal is not bound by the rules of evidence and may inform itself as it thinks fit, it must act subject to the rules of procedural fairness. We would ask your Honours to consider that statutory obligation together with section 35, a more specific duty to afford a reasonable opportunity to call or give evidence, present the case and make submissions.
When we come to the relevant matters of law in respect of section 67, we submit that a question whether the Tribunal has complied with its obligations under section 28(2) and section 35, raises a matter of law. That is one example of a relevant matter of law. Your Honours, section 28(3) goes on in familiar terms to provide the Tribunal Acts with informality and according to equity, and so on. Could I simply give a reference without going to it to a Court of Appeal decision, which is on our list, Qantas Airways v Gubbins (1992) 28 NSWLR 26 at 31A where Chief Justice Gleeson and Justice Handley held that this section does not relieve the Tribunal from the duty to apply the law, in that case, to apply the general law of equitable release in relation to deeds; Justice Kirby dissented.
FRENCH CJ: Just going back for a moment to the Tribunal’s order on the preliminary question – that was in the nature of a sort of an interlocutory declaration, I suppose. What is the source of the power to make such an order?
MR GLEESON: Section 28(1) permits the Tribunal to “determine its own procedure”.
FRENCH CJ: Yes, I know.
MR GLEESON: In the present case, the decision was to identify a separate question which the parties considered would most likely resolve the entirety of their dispute and then to provide a finding on that question.
FRENCH CJ: The only relevant power under the Home Building Act, so far as I can see, is to hear and determine the claim.
MR GLEESON: The claim, and then in this case we would submit the method of doing that can properly include an approach such as the present. We have provided your Honours with an authority that interlocutory decisions within the Tribunal can be made and, indeed, can be the subject of appeal under section 67 – that is Custom Credit Corporation Ltd v Commercial Tribunal of New South Wales (1993) 32 NSWLR 489 and Justice Basten agreed with that approach in the present case.
Section 28(4) is an obligation to ensure that parties are informed of certain matters. I refer to subsection (5) also. Section 32 is a broad power to permit amendments, and section 49, of relevance in this case, requires that reasons are not always mandatory but must be given if requested, and a statement of reasons must deal with three matters, subsection (3) - the decision, the findings of fact, and critically the evidence upon which it is based.
The second matter of law which we submit arose in the present case was whether the reasons complied with the obligation under section 49(3)(c) by identifying the evidence upon which the Tribunal came to the conclusion that the two “extension of time” notices had been served. That is a second matter of law we would identify. Could we also refer, your Honours, generally without going to it, to established authority that a failure to provide reasons where required is an error of law. That is Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 and 389. In further answer to your Honour Chief Justice French’s question, could I refer to section 29(1) and (4)?
I then come to Part 6 commencing with section 65 critical to this case. It operates by three legal mechanisms. Firstly, section 65 itself purports to take away from a court jurisdiction to grant a range of prerogative equitable and possibly common law relief in respect of the matter, save in two cases. Subsection (2) is an exception for erroneous rulings as to jurisdiction and subsection (3)(b) in particular refers to a denial of procedural fairness.
Our submission is that the ability in an appropriate case to pursue in a court prerogative relief in relation to procedural fairness does not prevent a failure to comply with sections 28 and 35 being a matter of law within an appeal in section 67 that I am coming to.
Your Honours, then we come to sections 66 and 67 which do have a symmetry. In section 66 where a question arises with respect to a matter of law, the Tribunal has the discretion to either decide the question or refer it to the court for decision. If it is referred, we accept that under subsection (3)(b) the court’s mandate is to decide that question and to remit the decision. It can decide nothing other than the question. It would, however, in our submission have all of the powers otherwise available to it under, for instance, section 75A of the Supreme Court Act to enable it to decide that question in accordance with law.
HAYNE J: In a reference under section 66 what factual base would the court have?
MR GLEESON: Your Honour, there are various possibilities. In some cases, where the facts were agreed between the parties or had been determined by the Tribunal prior to the formulation of the question, it may simply be a matter of identifying the law and applying it to those facts. In such a case the question of law might be, on that material was only one conclusion available in law, a conclusion which the Tribunal wrongly rejected. So that would be an example of the interrelation between the fact base and the law. We would not, however, confine the fact base in that manner.
FRENCH CJ: It might be a question of law arising out of pleaded facts, I suppose.
MR GLEESON: Out of pleaded facts as well, it could be done in that sense.
HAYNE J: Absent agreement finding or assumption of facts, how could the question of law be identified?
MR GLEESON: In the second case I am postulating, the fact base would be confined at least by the material which was before the Tribunal. That material together with findings of fact which the Tribunal had made on that material but depending upon the question of law, that being the base, the court in an appropriate case would be able to consider that material, consider the findings of fact and consider any further inferences that may be required to be drawn by law from that fact base.
HAYNE J: Is that consistent with what the Court said in Bass v Permanent Trustee?
MR GLEESON: In Bass v Permanent Trustee, the Court cautioned strongly that there are dangers in the formulation of questions for declaratory relief, absent either an agreement on the fact base or findings upon it and ‑ ‑ ‑
HAYNE J: I think the Court went a little further than that. It spoke of the difficulty of dealing with preliminary questions of which this would be a particular species, would it not? Section 66 would be a particular species of preliminary question?
MR GLEESON: Yes.
HAYNE J: Without there being either agreement, finding or declared assumption of the facts upon which the question proceeds.
MR GLEESON: Yes. That being so, your Honour, nevertheless returning to the wording of 66(3)(b), the basic mandate is to decide the question. In the present case, the question ‑ ‑ ‑
HAYNE J: No, the question with respect to a matter of law ‑ ‑ ‑
MR GLEESON: With respect to a matter of law.
HAYNE J: ‑ ‑ ‑ and that becomes the area for debate, does it not?
MR GLEESON: Yes, it does. Can I then just identify the symmetry in section 67 and then come to that question. In section 67, if the Tribunal has decided to decide the question rather than refer it, at the stage that it comes to the Court, one will have the decision of that Tribunal on the question which must meet the description of “with respect to a matter of law”. Our first submission at that point is ‑ ‑ ‑
HAYNE J: Sorry, interrupting you again, if the Tribunal has decided it, the Tribunal can only have decided it, can it not, upon either agreed facts, found facts, or assumed facts?
MR GLEESON: I hesitate with one aspect of your Honour’s question. That would describe broadly the three sets of fact base which might be available. As the circumstances of this case show, one of the aspects of the matter of law agitated by the appellants was that one could not tell clearly from the Tribunal’s reasons whether it had regarded as part of the fact base, the affidavit of the builder. That raised a section 49 question. If it had had regard to it, it was impermissible to have regard to it because of sections 28, 35 and the way the matter ran.
So even in relation to those two matters, in identifying what was the fact base, the error may have occurred at the very step of the Tribunal either impermissibly having regard to material which should not have been before it, ignoring material which was before it or, as in this case, failing to give adequate reasons which identified under section 49(3)(b) what was “the evidence or . . . material on which the findings of fact were based.” Subject to that, one ought to see findings of fact under section 49(3)(b) and I can agree with your Honour that that will provide material which will then ground the assertion of jurisdiction in the Court. The first matter then I wish to observe about section ‑ ‑ ‑
FRENCH CJ: Can I just take an example from the grounds of appeal, which I think appear at 449 and following in volume 2? Now, I know that you have formulated a broad question and so I have seen these sub‑questions as in a sense argumentative, but if you look at paragraph (p) on 451:
The Tribunal’s finding . . . was against the incontrovertible evidence available to the Tribunal –
et cetera. Whether you look at that kind of ground or a no evidence ground, which I think are also scattered throughout the grounds, how does that class of error fit in to the category of a decision with respect to a question on a matter of law?
MR GLEESON: A decision of a question with respect to a matter of law?
FRENCH CJ: Yes.
MR GLEESON: Our starting point is that the words “with respect to” are very broad words and they connote some connection between a question identified in the proceedings and something which meets the description of “matter of law”. Just as authority on that probably uncontroversial point I hand to your Honours some supplementary cases. The authority on that point is the first case I have handed up, Henderson v Pioneer Homes Pty Ltd (1980) 29 ALR 597 at pages 610 to 611, in the judgment of Justice Smithers, which whom Justice Northrop agreed.
The width of the words “in respect to” are emphasised on page 610 at about point 5. At the foot of the page, his Honour says that:
if anything, the words “with respect to” . . . may very well be somewhat broader than the words “in respect of” –
which itself have been given a broad scope. Could I just indicate on page 611, between lines 35 to 40, his Honour held that a “statement” in that case could meet the description of being “with respect to securities”, even though it referred to a whole variety of matters. So:
It may equally refer to profits, and not cease to be a statement ‘with respect to securities’
So from that we would submit that it does not need to be a singular indivisible, exclusive connection.
HAYNE J: Accepting the breadth of the expression, do you say that a question with respect to a matter of law includes the factual substrate which yields the question of law?
MR GLEESON: I submit that it can, it will not always but it can, and coming back to your Honour the Chief Justice’s question, in what is described as a shorthand as a no evidence point, the matter of law that is there involved is, was there a factual base from which a conclusion was capable in law of being drawn as the Tribunal did? So it relates to the factual base. It says, was there material ‑ ‑ ‑
HAYNE J: It relates to the evidentiary base, was there evidence?
MR GLEESON: Was there evidence from which it was open in law to come to a particular conclusion? Now, the specific example of that here is with the builder’s affidavit, the position being that it was not identified as material before the Tribunal. It was not open in law for the Tribunal to treat that as evidence from which to reach conclusions and once it was excluded, there was no other evidence from which it was open to infer that the two notices were served. That was the reasoning of Justice Rothman and we seek to defend that reasoning on that question.
FRENCH CJ: So this is really in the category, is it, of an implicit decision on the question?
MR GLEESON: This has moved from our primary point, which is one is capable of identifying this question once it was framed as one which met the description, conferred the jurisdiction and the court had its ample powers under section 75A to decide it. If one is required to take a further narrower approach, then that is the first type of matter of law which has a connection with a relevant question which was decided. Could I come to the other aspect of paragraph (p) which your Honour referred to. It has within it two propositions, that the finding was against the incontrovertible evidence available from persons not called or cross examined together with the link proposition of no evidence.
So that on that particular topic, which occurred at stage two of the matter, Justice Rothman’s finding was that once it was concluded in law that the date for completion had not been extended beyond the end of June or early July and one had to assess repudiation or termination against that fact, one then had to consider whether the notices issued by the appellants validly invoked clause 24, and if in law on the evidence only one conclusion was available, that would be a matter of law.
Your Honours, taking those grounds of appeal and in the context that they take a place in our argument that I have identified, the groups they really fall into are no evidence or related grounds, in particular, paragraphs (a), (b), (d), (e), (f), (l) and (p). The second group of grounds is what are described as onus of proof grounds, paragraph (g). The question in paragraph (g) was, if the insurer has called no evidence to prove the extension of time notices were served, if the proposition is nevertheless put to the appellant and the appellant also denies they were served and that is all there is, is it open in law to say “Because I reject the credit of the appellant on an unrelated matter, my rejection of him converts into positive proof he got the notice”?
Now that, we submit, is a second category of matter of law which could properly ground an appeal. Thirdly, the failure to give adequate reasons is identified in paragraph (q) and fourthly, what I have described as the ultimate issues of repudiation or termination and the findings of law available on the material are paragraphs (i) and (j).
FRENCH CJ: There are complaints of misconstruction of the contract as well, I think.
MR GLEESON: There were additional complaints of misconstruction of the contract and that particularly involved the proposition that clause 24 allowed for a notice by the appellants in four circumstances. The Tribunal wrongly read there as being only one circumstance and ignored a notice which asserted the other three.
HAYNE J: Is that a fifth species of complaint or is it falling within one of the other four?
MR GLEESON: No, that would be a fifth, your Honour. So our submission is that having regarded the width of “with respect to”, and having regard to the manner in which matters of law have been identified in the cases in a variety of areas and statutes, provided a connection can be shown, the court has jurisdiction. There is a strong strand in the Court of Appeal’s judgment which is reading this section as if it said an appeal on a question of law, that is giving no expansive work to the words “with respect to”, giving no attention to the word “matter” and reading it as if it was an appeal on a question of law alone. Now, that type of language, an appeal on a question of law alone is one we are familiar with in a context of criminal appeals. We have given a reference to Williams v The Queen 1986.
FRENCH CJ: The term “with respect to” like terms such as “in connection with” or “related to” really has to be understood in its context, does it not, and given perhaps a purposive construction and you spoke of it as expansive but here we are dealing with a tribunal, appeals from a tribunal or judicial review of a tribunal’s decision which the objective of the tribunal or of the Act which sets it up is to enable proceedings to be determined in an informal, expeditious and inexpensive manner. Now, I am wondering whether that does not rather suggest a more limited approach to “with respect to”, that we are not meant to get bogged down in factual review even if associated with questions of law in the Supreme Court.
MR GLEESON: Well, your Honour, a number of answers. Firstly, although this is described as an appeal it is of course a grant of original jurisdiction.
FRENCH CJ: Yes, although you would want to call it an appeal for the purposes of section 75A, would you not?
MR GLEESON: Yes, and section 75A in terms does use that broader language of appeal because it says “appeal to the Court” or “appeal within the court”. So it is the first grant of jurisdiction to a court to exercise judicial power over what is a dispute under the general law of the land. That would be the first part of the answer. The second is that bearing in mind all the perceived advantages of giving a lay Tribunal with presumed experience the primary decision‑making functions, nevertheless in a number of cases there will be matters of law which will arise.
As this Court has indicated in, for instance, Maurici, in the valuation of land context, often the matter of law might be viewed as a mixed matter of fact and law because the question may so present itself. So it would be unsurprising that there will be cases where the link between the correct identification of the law and the application of it to the factual material will be a close and inseparable one, and nothing surprising, we submit, that in circumstances where that has arisen, Parliament would say you may have the rights otherwise accorded to citizens to jurisdiction of a court. Nothing surprising at all that that grant of jurisdiction would be given. We have referred your Honours to the well‑established line of authority, the grants of jurisdictions to a court are not to be read narrowly and implications are not to be read in.
HAYNE J: But does this part of your argument depend upon identifying the question in the court as identical with the question before the Tribunal? Let me explain the difficulty that lies behind my question so that you may deal with it directly. May not the question before the Tribunal be a mixed question of fact and law; who did what, who wrote what to who when? What is the legal consequence of those communications? Whereas the question in the court may be, may it not, on the facts as found, what is the legal consequence?
MR GLEESON: Could I put my answer directly. We submit it is the same question because it is the question which having been identified in the Tribunal, can be referred to the court or can be decided. When it has been decided, it is likely, as your Honour says, that that will involve an application of law to fact. When that question comes before the court – could I refer your Honour to section 67(3), the opening words – what the court does is to decide the question the subject of the appeal and that question is one which meets the description of “with respect to matter of law”. If the question is being so formulated, the court’s job is to decide that question. That is our primary answer to your Honour’s question.
The alternative answer, which is why we have our narrower case which descends into the types of issues that arose, was, to take your Honour’s example, the court is not inevitably and ineluctably bound by the fact findings if the process of finding them has of itself miscarried in law. In a case where ‑ ‑ ‑
HAYNE J: Consequence of that conclusion by the court, namely, want of procedural fairness, no evidence to support or, if you like, insufficiency of reasons, would be to remit, would it not, rather than substitute?
MR GLEESON: Under many statutes it would be solely a power to remit. One of the expansive features of section 67(3) is that in a case where the appeal on the question has succeeded, what the court does at stage two, it has the power at least to make the order, and here we have the expansive words “in relation ‑ ‑ ‑
FRENCH CJ: These are fairly typical provisions, are they not, though, even on judicial review, say, from the AAT to the Federal Court and so forth, but they are subject to a constraint. The constraint is the nature of the jurisdiction, which is judicial review rather than substitutive fact finding.
MR GLEESON: Your Honour, they are often familiar provisions. Not all of them are as expansive as this, which has the disjunctive ability to either remit and order a rehearing on the one hand or, on the other hand, to make the order, and we emphasise, in relation to the proceedings. Now, that bit of the language which says it is not just ‑ ‑ ‑
FRENCH CJ: What informs the discretion to choose between those courses? Is there no constraint?
MR GLEESON: Yes, of course, your Honour, there are constraints. Could I mention one of them, which is in subsection (7). If it is a case where a party has an available ground to bring more evidence to bear on the question, then that may be done on the rehearing before the Tribunal. There would be an implication there, perhaps, that one may not be receiving fresh evidence if the court simply proceeds to dispose of the matter, but it indicates that one consideration at least would be this. On the material which was before the Tribunal and brought up to the court, is the court able to make the broader order in relation to the proceedings which ought to have been made had the Tribunal not erred in law?
Now, that, consistent with the purpose of the Act, has a valuable purpose which is that in a case where there is one answer available in law on the material after proper direction, the court may go ahead and decide the proceedings. In the materials we have handed up this morning we have given the Court the original provision in the Judicature Act Order 58 rule 5, which subsequently became Order 58 rule 4, which is the origin of provisions like the present and like, indeed, section 75A.
That purpose of enabling the court to bring the matter to a conclusion, if available, is one emphasised in the case we provided, Allcock v Hall (1891) 1 QB 444. Now, I will come in a moment to the question of how section 75A sits with section 67(3), but just for the moment returning to your Honour’s question, this not being judicial review, this being a grant of original jurisdiction to the court, once the question has been decided ‑ ‑ ‑
FRENCH CJ: It does not have the character of judicial review of the decision of the Tribunal to the extent that it has referred to questions of law. I think a similar characterisation has been applied to the original jurisdiction of the Federal Court with respect to AAT decisions.
MR GLEESON: Yes. Where I am differing from your Honour is that I wish to submit that as a grant of original jurisdiction its terms are here to be found and what the court focuses on is, do I have a question, does it meet the characterisation test? If so, I decide that question in accordance with law. Now, I will take into account the material from the Tribunal, I will take into account the fact findings and I will take into account errors of law made in that process. So the words we place some reliance on in subsection (3) are “in relation to the proceedings” and also “the nature of the opinion”.
Your Honours, the fact that those powers have been provided as alternative was a matter which the Chief Justice of New South Wales referred to in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230. Could I just refer to a couple of paragraphs - firstly, in paragraph 36, a reference to the principle that grants of jurisdiction will be read broadly. Then the error of law was identified in paragraph 66.
The relevant provision there is in paragraph 83. It is narrower than the present in that it is an appeal against a decision of the court on a question of law, narrow in the respects we have identified. Then the powers available on the subsection (2) are remit a power or a power to make any “such other order in relation to the appeal as seems fit”. Our power is broader because it is any order in relation to the proceedings.
In paragraph 84, his Honour refers to an aspect of the Maurici decision in the New South Wales Court of Appeal which limited the power of the court in the context of a workers compensation statute and the statute is set out at paragraph 85. The distinction the Chief Justice is referring to is that in subsection (32) (2) of the Compensation Court Act, the primary grant of power is to remit and the power to make other orders is consequential. What his Honour then did was to disagree with earlier authority in the court which read down the scope of those powers. The distinction which his Honour referred to is in paragraphs 90 and 91 and accordingly his Honour held the court could re-exercise the cost discretion of the Land and Environment Court under the “any other order” power.
His Honour then turned to the question of section 75A in paragraph 94 which this Court left open in Vetter and the proposition which he expressed in paragraph 97 we commend. The words in section 75A, “subject to any Act” ought not “be found to be satisfied save by clear statutory provision to that effect” and the authorities are there cited. Our submission is that one does not find clear statutory effect to obliterate the section 75A powers in the appeal under section 67. On the question of whether in this other context the court can reconsider factual findings, his Honour left that open in paragraph 101.
HAYNE J: If that is right – and it may be that this is a point that you need to come to at a later point in your submissions – if 75A is engaged, what sets this appeal off from an appeal by way of rehearing? The need to identify one question of law, is that right?
MR GLEESON: The need to identify one or more questions with respect to a matter of law.
HAYNE J: Once you have done that, you are effectively into an appeal by way of rehearing, are you? Is that the consequence of the application of 75A?
MR GLEESON: Our primary submission is that the rehearing power within 75A has to be tailored to the more specific mandate to decide a question properly identified, and there is no clear language within the Tribunal Act to completely exclude section 75A. Your Honour, could I then deal with the following provisions of 75A. There is then a reference in subsection (6) to the power to make findings of fact and draw inferences of fact. We would submit that there is nothing in section 67 which precludes that being available as a matter of power to be exercised only in an appropriate case, of course.
When one proceeds through to subsection (10) one finds it is actually very similar to section 67(3), it is the grant of the power to make the order which ought to have been made and in some senses reflects section 37 of the Judiciary Act also. So the reconciliation we see is – our primary submission is section 75A has not been obliterated by section 67, but the two can be accommodated by being more confined in the sense I have sought to identify.
Before I come to consider Justice Basten’s judgment, could I simply give the Court a reference to a couple of the authorities which I have not so far referred to which identify questions of law or matters of law. The decision of Justice Dixon in Gurnett v Macquarie Stevedoring Co (1956) 95 CLR 106, although in dissent on the scope of section 37 of the Judiciary Act in relation to suitors’ fund orders, nevertheless on page 113 we submit is of assistance in identifying what is in fact narrower language decision upon a question of law. At about point five his Honour indicates that the:
successful appeal [must be] against a decision upon a question of law . . . In the present case no question was involved as to any principle of law or any application of principle or as to the meaning or effect of any statutory provision. It is true that in the legal dichotomy between questions of fact and questions of law we place under the latter head a question whether there is sufficient evidence to submit to a jury in support of a cause of action. . . . In the present case no considerations of law affected the matter at all.
That simple phrase we would commend as illuminating on sections 66 and 67. Is it a case where no considerations of law affect the matter at all? If so, one is left with the decision of the lay Tribunal. Where considerations of law affect the matter, then the court’s task is to decide the relevant question and then proceed to make the appropriate orders. Where we respectfully differ from the Court of Appeal is that it seems that in the court’s view all one can ever do under section 67 is to decide a legal aspect of what may be a larger question.
As authority that no evidence grounds are available under similar provisions, could I refer to Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26. I referred to this case this morning for another purpose. What is interesting on page 29 between letters A to D is that the Chief Justice was identifying the matter between the parties in relatively broad terms. The matter was whether Qantas could propound a deed of release in answer to what was otherwise a good claim of discrimination and the parties had fought that matter on a narrower legal ground than it could have been fought, namely, estoppel and waiver as opposed to Grant v John Grant, whose Chief Justice made some comments about that. But he indicated at letter C that it would have been within the power of the tribunal to entertain and determine the relevant argument, including Grant v John Grant].
I hasten to add for completeness that notwithstanding that salutary warning, his Honour proceeded to dismiss the appeal on the narrower waiver and estoppel grounds and when one comes to page 32, the test which his Honour put was a no evidence test. Could one say there was no evidence of reliance by the stewards upon representations made by Qantas? If there was evidence – this is letter E – upon which the tribunal was entitled to infer, the representations reached them indirectly, one could go on to infer reliance.
So the conclusion was no error of law which would vitiate the decision of the Tribunal. Justice Kirby, while he took a narrower view on whether one could appeal on certain matters, took the same view as to whether no evidence grounds were available. Could I just give the references. It is 45D, 46F, 48B and 50B. The way his Honour put it at 46F is perhaps of assistance. The court’s task was to “examine the evidence to see whether facts were proved or inferences lawfully available to the tribunal to sustain its conclusion” of reliance. I can add to your Honour Justice Hayne’s questions this morning, when I have indicated that we submit that is part of what the court can do, including examining what inferences are lawfully available, we would rely upon that passage.
At page 50, letter E to F, his Honour expressed it that one would need to have a total absence of evidence or findings of fact which demonstrated “a clear misapprehension as to the legal test to be applied”. A further authority in relation to no evidence grounds is the decision of TNT Skypak International v Federal Commissioner of Taxation 82 ALR 175, Justice Gummow. This was on section 44 of the AAT Act which is in some respects narrower than the present. At page 187, line 40, his Honour said:
If such a finding had been made, it would have been contrary to other findings of fact and made on “no evidence” in the sense described by Bowen CJ . . . as giving rise to an error of law.
The reference to Chief Justice Bowen is found at page 182 at about lines 20 to 25. His Honour there also cites Justice Brennan in Waterford. Without going to Waterford, Justice Brennan indicated that an error of law could arise in a factual context, either – and he gave three types of errors – on the facts as found by the Tribunal, where the error vitiated the findings of fact or where the error led the Tribunal to omit to make a finding required to be made. All of that we would embrace under the broad banner of no evidence.
FRENCH CJ: The jurisdiction conferred by 67(1) is a jurisdiction, on your submission, to review the decision of the Tribunal for error of law.
MR GLEESON: Yes.
FRENCH CJ: No narrower than that.
MR GLEESON: No narrower than that. Could I then proceed to how the errors emerged in the Tribunal and were identified as grounding jurisdiction by Justice Rothman and then come finally to the Court of Appeal’s judgment.
At volume 1, page 374, on 10 November 2004, the separate question was identified between the parties as an “issue of repudiation” – that is line 15. Between lines 28 to 44, it was indicated that the evidentiary contest would therefore be confined. The cross-examination of Mr Kostas was being cut short. The other witnesses for the appellants were not to be cross‑examined and, significantly it turned out no evidence was to be tendered by the insurer.
At 375, 10 to 15, there was the concept of the parties providing further submissions which would focus on the repudiation issue, and at line 22, that the parties would have to identify what evidence, which had already been served, which was relevant to this question. The question is again referred to on 376 at line 12. At 377, line 26, the insurer made a considered decision not to ask any further questions of Mr Kostas and at the foot of 379 there is discussion of a bundle of documents being identified which would be relevant to the question and, subject to the identification of that further evidence and that tender bundle, the Court sees that the evidence closed at page 383.
CRENNAN J: It is that bundle, is it, that has in it the applications for extensions of time?
MR GLEESON: The two notices, but not the builder’s affidavit.
CRENNAN J: But not the builder’s affidavit.
MR GLEESON: Yes. The matter which one cannot detect from the Tribunal’s reasons, but was correctly identified by Justice Rothman was this, that on 10 November, the insurer did not state it was relying upon Mr Turisi’s affidavits, did not identify him as a witness relevant to the termination question and did not make him available for cross‑examination. Could I ask your Honours next ‑ ‑ ‑
CRENNAN J: How does the power under section 28(2), dealing with procedure, to “inquire into and inform itself on any matter in such manner as it thinks fit” – does that have any relevance in relation to Mr Turisi’s affidavit?
MR GLEESON: Your Honour, it is subject to the rules of procedural fairness ‑ ‑ ‑
CRENNAN J: Yes, I know that.
MR GLEESON: The matter identified by Justice Rothman was that it did not permit – and we defend this reasoning – the Tribunal member to simply, if he did, look at some material on the file which had not been identified by the two remaining parties as material upon which one was relying because had it been so identified, there would then have been the opportunity under section 35 to present one’s case in response to it, which would have involved, most simply, cross-examination of Mr Turisi and submissions upon whether the Tribunal ought to accept Mr Turisi in the light of that cross‑examination.
CRENNAN J: That is the answer.
MR GLEESON: That is the answer.
HAYNE J: This proceeding from the earlier premise that we do not know the reasons of the Tribunal member on this aspect of the matter, is that right?
MR GLEESON: Yes.
HAYNE J: Did anybody ask the Tribunal member to give further reasons?
MR GLEESON: I would expect not. What was taken in the appeal was the ground in its two or three aspects. The first ground was one cannot tell from the reasons whether Mr Turisi was relied upon. The second ground, which was more fundamental, was, but even if it was, that would have been a breach of sections 28 and 35 in the circumstances in which the parties joined issue before the Tribunal. The third ground, if it was not relied upon, there was nothing else which was capable in law of sustaining the conclusion. Fourth ground, you cannot convert a denial into positive proof.
HAYNE J: Now, all of that proceeds from application to this Tribunal of a judicial paradigm, that is to say, that the proceedings in the Tribunal are to be treated as though they had been conducted in a court. Now, that assumption may be right, but that is the underlying premise, is it not? What I am struck by is this notion that (a) the Tribunal is dispensed from certain procedural requirements but subject to procedural fairness, plus you have, at least in some provisions of the Act, the notion, well, if they do not get it right the first time go back and do it again, including the power of the Supreme Court on appeal to remit at which there can be a complete retrial.
MR GLEESON: Yes.
HAYNE J: Now, it seems that the premise from which both sides proceed I think before us is that what I have described as the judicial paradigm should inform our understanding of what occurred before the Tribunal, but is that an assumption you assert to be made by both sides in this Court?
MR GLEESON: Well, I would accept the assumption that it applies to the issues we have joined. I am, of course, not submitting that the Tribunal in every case must attempt to replicate a court, but in the manner in which this issue was joined, those four answers I sought to put to Justice Crennan and Justice Hayne’s questions, which do speak in language of judicial paradigm, I contend for. As to the other side, we know this much. They now concede that no evidence grounds are available under section 67. That is paragraph 85 of their written submissions. We then have an argument, was it open to Justice Rothman to find that a no evidence ground was sufficiently engaged by the application of the appeal to allow him to look at it? So that is one area where there is common ground, I submit.
As to our proposition, which we have developed in writing, that it was impermissible to have regard to Mr Turisi, if the Tribunal did, for the reasons Justice Rothman outlined, it is not clear what the respondent’s response to that is, and as to the failure to give reasons, likewise. So that is my attempt to answer that question.
HAYNE J: But the relief you seek in this Court includes the relief that Justice Rothman’s orders which are determinative of the dispute between the parties in your client’s favour should stand.
MR GLEESON: Yes. Can I rush to add that the approach Justice Rothman took was a narrower one than some of the submissions I am making. At each step in the process Justice Rothman said not only have I got the big question of “in respect of a matter of law”, termination or repudiation, but have I in respect to each step in the legal process of reasoning got something which answers the description “matter of law”.
He did not at any point exercise a section 67 (3) power to say I am now free to step in, look at all the evidence and come to what I think would be the preferable finding. That is in part for good reason because he did not have observation of any witnesses. So if credit issues were alive of course he could not do it but the approach he took, which I will come to in a moment, was to focus on error of law at each step in his reasons and that is a process which would correctly lead to his conclusion.
Can I add at that point in Justice Basten’s reasons, although in places he strays into whether the ground was made out, that is paragraph 138 which looks a little like there is jurisdiction but no error, his ultimate conclusion is that the jurisdiction of the court was never engaged. That is in paragraph 160, page 699. His ultimate conclusion is that the trial judge’s attempt to identify questions of law decided by the Tribunal from which an appeal could lie failed.
Now, if we are able to defend the approach taken by Justice Rothman there is no separate argument we face that he made an appealable error within jurisdiction in the manner he dealt with the appeal. That is the ultimate reason why we seek a restoration of his orders. The combination of those two matters, that he can find himself at each step to matters of law and, secondly, his conclusion is not challenged as containing appealable error beyond jurisdiction.
Your Honours, the second step after 10 November was to confirm the nature of the submissions which the parties then put on. Could I ask the court to go to volume 2. Commencing at page 397 were the appellant’s submissions. The shortest place to see the no evidence point taken is on page 399 in paragraph 2. It is taken in clearest of terms that the builder’s evidence has not been tendered and therefore cannot be considered by the Tribunal.
The second matter I would advert to in the submissions is on page 403. The specific no evidence point in relation to the two extension of time notices is taken – for instance, paragraph 21(a) and 23(a). The third matter I would go to is that at pages 406 to 407 the submissions assert that the notices given by the appellants invoked three grounds of default under clause 24; that is found at the top of page 407 and in paragraph 35. That clause 24 that is invoked is found on page 57 of volume 1. So that the legal contention being made was that the two notices in May adequately invoked in law grounds of unwillingness to complete, suspension, and failure to proceed diligently, giving 10 days to remedy default, and failing remedy, a right to end a contract.
FRENCH CJ: Incidentally, the 12 May notice, is that reproduced anywhere in the appeal books?
MR GLEESON: Yes, in volume 1 the 12 May notice is at page 206. The 4 May notice which preceded it is at page 196.
FRENCH CJ: Thank you.
MR GLEESON: One sees at 196 an invocation of the first three grounds of clause 24 and one sees at the end of the 12 May letter at page 209 an assertion that the 4 May notice is continuing and those three grounds are still relied upon, and the appropriate warning is given.
The final matter in the insurer’s submissions I wish to go to, the fourth matter is on pages 411 and 412 and at 48 and 49 the no evidence point is taken at the final stage, namely the insurer had not put forward material from which it was open in law to conclude that the builder would remediate as per the notices. That is 48 and then 49 which is where one sees this language of uncontrovertible evidence is a reverse submission that the evidence which was put on and was unchallenged through any cross‑examination was the builder had done nothing since 30 April and the footnote 17 invoked not only Mr Kostas but the expert, Paul Rappoport, and Mr Zakos.
Just to conclude that point on page 412 various submissions by the insurer which refer to the builder’s evidence were squarely said to be not before the Tribunal and required to be ignored. So the point was taken in the clearest of terms. That material has not been placed before you for the separate issue. The Tribunal is bound in law to ignore it. The third step in this chronology is to show that the insurer did nothing to remedy that gap. That is the affidavit of Ms Nott which commences at 454.
FRENCH CJ: Incidentally, does the term “incontrovertible evidence” as it appears in the grounds attached to the summons mean anything other than unchallenged evidence?
MR GLEESON: It does, it has two connotations. One, unchallenged and second, evidence which, because there is no answering evidence, becomes the only body of positive evidence on the question and that is needed at stage two of the argument which is to say that if the notices by the appellants were valid there was a suspension or a failure to carry out the work which grounded them, there was a failure to do any of the remediation called for. That is what the evidence shows. Only one conclusion was open.
So in this affidavit, without reading it between paragraphs 15 to 17, there was an identification of which witnesses would be required for cross‑examination on the appellant’s side and they were not. At 21, no evidence was tendered on 10 November by the insurer or at any time afterwards. Paragraph 25 identifies what evidence was before the Tribunal and 31, although there was an opportunity to do so, no submissions in reply were put on by the insurer and there was no attempt to tender evidence in reply to those submissions.
So the insurer was content to leave the matter before the member on the ground that the point had clearly been taken. Turisi was not allowed to be looked at. The insurer had no submission and did not wish to rely upon his evidence and make him available for cross‑examination. Your Honours, with that third step in the factual background, could I then go to the Tribunal’s reasons and show the errors. The reasons divide into three sections.
HEYDON J: This was delivered six months after the close of argument?
MR GLEESON: Yes.
HEYDON J: This is what they call quick, is it?
MR GLEESON: Not quick, cheap and efficient and a set of reasons which did not address that point that had just been most squarely raised by the appellants and not challenged by the insurers. It divides into three sections. Paragraphs 5 to 13 deal with the extension of time notices from the builder. Paragraphs 14 through to 25, the second section, deal with the validity of the appellant’s notices. Paragraphs 26 to the end deal with a more general ground of repudiation by the builder.
As to the first, 6 refers to the contract, 8 refers to certain clauses, 9 ‑ ‑ ‑
HEYDON J: Paragraph 8 should have referred to clause 27, should it not?
MR GLEESON: It should have referred to clause 27.
HEYDON J: Was Mr Durie taken to that?
MR GLEESON: From my inspection of the record, no, he was not specifically taken to it on this point. It was referred to by a party in another context, but he should have and he was not taken to it. Paragraph 9:
The Owners deny service of those extensions of time.
That is a reference to Mr Kostas’ evidence in affidavit and confirmed in cross‑examination. The builder says they were served in the manner set out in the contract. The builder has gone from the case. That can only be, it would seem, a reference to the submission by the builder commencing at 385 which had been put on a year earlier. The submission appears to be at 388, the first complete sentence. So the builder, even at that point, made a submission, did not identify any evidence upon which that finding could be made, at that stage had not relied upon Mr Turisi’s affidavit. Returning to 432:
The Builder says that they were served in the manner set out in the contract –
That understanding of the submission sufficiently engaged an appreciation of the whole of the contract relevant to service, including clause 27, even if not specifically adverted to –
and relies upon the failure of the owners to dispute the extensions –
That is an encapsulation of what is said to be the factual dispute. Paragraph 10 is the credit finding against Mr Kostas on the irrelevant matter which Justice Rothman found to be almost perverse but did not utilise as a ground for an error of law. The conclusion is at 411, “I won’t accept them on anything unless corroborated”, and one can see that the reasons, consistent with the way the parties conducted the matter, are attempting to observe the judicial paradigm. Paragraph 11 is where the massive problem emerges:
I am satisfied on the evidence that the Builder sent the time claims to the Owners, and I am not satisfied that they did not receive them. I conclude that the notices were validly served and that the Builder’s time under the varied contract to complete was extended . . . It is a finding of service, despite the evidence of the Owners.
HEYDON J: Who bore the burden of proving that they were received?
MR GLEESON: The insurer in circumstances where under the contract the date for completion, on page 44 of volume 1, was fixed and the relevant obligation on page 44, clause 6, set out a stepped process. If work was delayed by certain events, there was an entitlement to an extension:
If the contractor wishes to claim an extension of time, the contractor must notify the owner in writing of the cause and estimated length of the delay within 10 working days of the occurrence –
Then if there is no response within 10 days, there is a deemed extension of the completion date. So our submission is the central legal issue the Tribunal was required to focus on was, have I got evidence which would permit me in law to conclude that the builder did notify the owner in writing, in relevant terms, within 10 days of the occurrence so that I can then find triggered the deemed completion date?
Even if one takes the view that clause 27, which is on page 60, cannot be relied upon in the Supreme Court, which we dispute, that leaves the insurer in this position. It does not have any proof that the builder did any of the things in clause 27.
CRENNAN J: I suppose you could have a substantial compliance argument in relation to the notices - showing of address, I presume, that is the relevant address for the service of notices.
MR GLEESON: Justice Rothman addressed it on several levels. One level was you have not proved any of the four methods in clause 27, but he then went on to deal with it on an actual receipt doctrine - “Have I got evidence from which one could conclude ‑ ‑ ‑
CRENNAN J: But is it receipt that is important or sending?
MR GLEESON: It is receipt, your Honour.
HEYDON J: It is notify.
MR GLEESON: Notify because of that word in clause 6. If they do not have clause 27, if that is not relied upon, which is for their benefit in a sense, clause 27 both sets out the methods, but also enables sending in certain circumstances to be notification.
CRENNAN J: Yes.
MR GLEESON: They do not have clause 27, so one asks what evidence material was there from which one could, in law, conclude a notification. All one is left with once Turisi is properly excluded is the fact that the tender bundle has two documents, which are the documents your Honours will find at pages 192 and 193 to 194. The question in respect to a matter of law then was could one conclude from the tender of those two documents anything more than the first document was brought into existence and apparently signed by the builder and the second document was brought into existence by someone and signed by no one, neither document having an acknowledgement by the owner.
HAYNE J: So far as revealed by the reasons, the Tribunal appears to have proceeded, does it not, by the following steps? Paragraph 9, the builder says that the documents were served – see page 388 is what you say is to be understood as lying behind that proposition, but proposition one, the builder said they were served. Step two, so far as revealed by the reasons, seems to be “Mr Kostas was not a witness of truth. I do not believe anything he says, except where corroborated” – see paragraph 10. Paragraph 11 seems to be “The builder said it was so. I do not believe Mr Kostas. I conclude that what the builder said was so was so”. Now, is that the reasoning so far as it is, or the steps in thinking so far as they are revealed in the reasons?
MR GLEESON: So far as revealed, that is all one sees.
HAYNE J: Then your proposition you cast as a no evidence proposition, that has to be understood against the statutory requirements of 28(2), does it not ‑ ‑ ‑
MR GLEESON: Yes, and 35.
HAYNE J: ‑ ‑ ‑ and 35.
MR GLEESON: The question is does that permit a tribunal, as your Honour has analysed it, to say “I received a written submission a year ago from a party no longer in the proceedings, a submission which referred of itself to no evidence, a submission which has not been supported by evidence tendered by the remaining party. The factual proposition is denied in sworn evidence. Can I get from those two facts a positive finding it was served?” We would submit that offends sections 28, 35 plus all forms of rational reasoning processes which even the Tribunal would be expected to observe. The essential gap is manifest.
So, your Honour, completing that first part of the reasons, at the end of paragraph 13 we have the critical finding that the date for completion was extended by three to four months because the notices were served. That conclusion infected by the erroneous approach to law was a critical linchpin of the way in which the Tribunal approached the next issue, not the only linchpin but a critical issue.
Can I show the paragraphs where the fact the contract still had four months to run was relied upon as a basis that the builder had not been so slack that one could infer repudiation? Your Honours see that at the end of paragraph 14, the beginning of paragraph 17 and it may be in further places. So that is one strand where the matter of law we have identified at stage one has infected the stage‑two analysis.
The second strand is that this is the point at which the Tribunal member never addresses the four limbs of clause 24 as invoked by the notices. Your Honours have clause 24 on page 57. I have been to the notices by the appellants which invoke the first three grounds. The whole of the reasons go off on a different point, which is would the notice validly invoke the fourth ground of failure to remedy defective work if it is not sufficiently particular? The Tribunal member never sets out clause 24 and never addresses the first three grounds.
MR GLEESON: If one looks at paragraph 18, for instance, which deals with the 12 May notice, at about line 40:
The only reasonable conclusion from the notice is that the Owners were of the opinion that there were some defective works in addition to those they had previously enumerated.
But what are they? We do not know. Brenmar v University of Newcastle can be distinguished because that was a different notice:
it was a notice on the ground of failing to proceed diligently. Lack of diligence is a general concept, not capable of particularisation.
So at that point the member has distinguished a case apparently directly in point because it is a case about notices on failing to proceed diligently which is one of the grounds these notices invoke. So he simply never paid attention to clause 24. At the foot of that paragraph is the conclusion:
I find that the notice of 12 May was not a valid notice.
So the matter of law there is rather stark. Was that a letter which activated the process under clause 24 such that if default was not remedied in time, there was a legal right to terminate the contract? If one goes forward to 25, which is the conclusion of this section, the notice of termination by the owners of 29 June was not a valid notice under clause 24 because they had not given a valid preliminary notice to rectify default, so that the legal question critically underpins that finding.
The third section of the reasons goes on to deal, between 26 and following, with what appears to be a general law ground of repudiation. Can I indicate that in paragraph 26, in the third sentence, the error about the date of completion re‑emerges. Similarly in 27 and at the top of 437, as I read it, this is the first time the Tribunal member has recognised that any form of no evidence submission is being made in respect to the builder and this was the submission near the end of Mr Corsaro’s submissions on this stage two question. So the submission is referred to, and it is referred to again in 31. One cannot find what the Tribunal member has done with the no evidence submission at this part of the case.
Your Honours, could I then go second lastly to Justice Rothman’s reasons? He identifies the questions which ground the jurisdiction in a number of places. He refers to the issue at paragraph 23 and paragraph 26. He refers to the matters raised in the notice of appeal at 29 to 30, and the decision of the Tribunal he identifies between paragraphs 62 and 71.
His first critical identification of a matter of law can be found at paragraphs 85 and 87, which is whether under the statute and in the manner in which this matter ran it was open to the Tribunal to place any reliance upon the affidavit of Turisi; absent information by the insurer it was relied upon. His Honour finds in answer to that question it was impermissible. That, we submit, is a matter of law, and the answer was one available to the trial judge.
The second matter of law that he deals with is whether the fact that the two letters were in the tender bundle of itself could enable a factual conclusion to be drawn of service. He deals with that in two senses, firstly, the clause 27 point between 93 to 94, and between 95 to 97 he deals with it in the no evidence sense that I have sought to identify. They are two matters of law that are raised and because his Honour dealt with those two matters of law he ultimately did not need to decide whether the Tribunal relied upon Mr Turisi – that is paragraph 166. If the Tribunal did it was wrong in law. If it did not there was no material capable of supporting the conclusion.
So thus far the date for completion has not been extended, it is end of June, early July. He then moves to the notices by the appellants and in paragraph 102 makes an assessment that – coming back to your Honour Chief Justice French’s question about incontrovertible – that:
uncontested and uncontradicted evidence (and not subject to cross‑examination) was that –
there was in fact a suspension, and he refers to the evidence. He then, at 104, near the end, draws a legal conclusion that the fact that the builder took his partly‑finished work off the site, was properly characterised as “reversing the progress”, not accelerating it, and thus available evidence only consistent with suspension. In 105, he had a third conclusion from the evidence that on any view, three items of work had not been attended to, and the conclusion in 106, there was no evidence the builder was attending to the items.
So in that part of the reasons his Honour has identified a matter of law, which was whether on the available material was the only conclusion open in law that the builder had suspended works in a manner justifying a clause 24 notice. He does a similar exercise on the 12 May letter and then he comes to the period after the notices. Could I just observe, the issue about Brenmar being distinguished wrongly by the Tribunal is apparent from 116 to 119 and that, we submit, is a matter of law whether an authority was wrongly distinguished because of a misunderstanding of the terms of a notice. On the final stage of the process, at 124, he says that the last warning came from the appellants on 21 June and they enclosed Mr Rappoport’s report listing 51 separate items. Summaries of the report are set out. At 127, this was:
read without objection, there was no cross‑examination of Mr Rappoport and there was no expert evidence otherwise adduced.
So on the available material the only conclusion which could be drawn was that by 21 June there remained substantial evidence of suspension failure to complete and failure to act diligently such that the notices were still operative. They had not been answered by conduct. At 129, as his Honour phrases it, on that evidence, only one conclusion in law was open. So the final step in the analysis was simply, in 129, the builder needed to evince an intention to comply with this contract, in particular, Mr Rappoport’s requirements. He did nothing. Clause 24 justified a termination. Then paragraph 144, we submit, reflects an approach certainly within section 67 where his Honour has not drawn his own conclusions on the evidence but approached it from what was open to be drawn.
Then finally at pages 606 to 607, he frames the questions of law in what we have described as the specific way - 160, the various specific ways, and 164 to 165, the more general way, and 165 is reflective of the approach of Justice Dixon in Gurnett that I went to this morning, namely there is a question and it is clearly being affected by material considerations of law. Your Honours, in the Court of Appeal, in our submission Justice Basten commenced to go wrong on page ‑ ‑ ‑
HEYDON J: Is there any reason why it took 23 months between the time of Justice Rothman’s decision and the time of the Court of Appeal’s decision? Was just the state of the list in the Court of Appeal? The actual period of reservation does not seem to have been very long in the Court of Appeal, less than three months.
MR GLEESON: Not unless I am told something in a moment, your Honour. So at page 658, where paragraph 32 of Justice Rothman is repeated, in one sense our argument at its simplest is that that is a proper way of identifying a relevant question. Within section 67, jurisdiction was engaged and there is no appealable error in Justice Rothman’s exercise of jurisdiction or orders.
However, what his Honour does at 37 is to reject that as a correct identification of the matter. We submit this is where error commences to creep in because that is a fair characterisation of the questions involved and to commence to say one must always look for sub-questions. Each sub‑question being a pure question of law, which seems to be his Honour’s approach, unduly restricts section 67.
Then, the second place I wish to go to is the taxonomy, pages 673 to 674. We criticise the taxonomy, but contend it was critical to his Honour’s decision, the respondent vacillates on whether they defend the taxonomy or not. The first category of appeal is familiar with the original tax statutes. The second category which is said to be narrower would be reflected by the AAT provisions. Why is this third category (a) narrower than the second and (b) relevant in the present case?
His Honour seems to consider that because the word “decision” is included in the grant of jurisdiction one now has a narrower approach where it cannot even be a question of law. It must be, it seems, a pure question of law posed and separately decided by the Tribunal. Accordingly, a failure to observe the law in the manner required by sections 28 or 35 will not give you an appeal because ordinarily, as here, the Tribunal will not identify the question which it is required by law to identify.
That leads to this fundamental problem with the narrowness of Justice Basten’s approach. A failure to comply with sections 28 or 35, or section 49, may not be the subject of any available review to a court. There may be prerogative relief if it is purely procedural fairness, but that is the only possibility. So, your Honours, it is the step in paragraph 86 that we contend is the erroneous one.
HEYDON J: When you say section 67, is it within the first category or an even broader category?
MR GLEESON: At least the first category. Now, your Honour, one difference between the parties is the respondent says the taxonomy is not critical to the reasoning. We submit it is for two reasons. The first is that the focus on the decision as somehow narrowing what can be considered is apparent from - each time his Honour paraphrases the statute he focuses on decision and leaves out part of the statutory test. In paragraph 93 he summarises the insurer’s submission, that they:
failed correctly to identify decisions actually made –
omission – “on a question”, continuance –
with respect to matters of law.
Paragraph 103 at the end:
As already noted, a final order will routinely involve the application of legal principle to facts as found and is thus not a decision purely with respect to a matter of law.
So that the word “question” has been omitted and it has been replaced by “purely”. In the next paragraph the same problem occurs, his Honour speaks of the:
degree of precision the decision –
omit “on a question” –
with respect to a matter of law –
requires. His Honour contemplates “with respect to” might be broad, paragraph 108. He ultimately rejects that and in 110 says:
Secondly, the real issue is . . . whether the subject matter of the appeal is any decision –
omit “on a question”, continue –
which “involves” a matter of law, or is limited to that matter of law.
Then at page 683, line 20, the reason his Honour ultimately rejects the broader meaning “with respect to” is:
once it is accepted that the subject matter of the appeal is a “decision”, and not necessarily a final order –
then the broader argument collapses. We submit that nothing in the word “decision” allows one to give a restricted meaning to the words “with respect to”. Finally, if your Honours come to 113, first sentence, the illusion is complete:
the subject matter of the appeal be limited to the “matter of law”.
So the decision is not referred to there, but presumably it is the lynchpin of the paraphrase. The question has gone, “with respect to” has gone, the appeal is limited to the matter of law or, as his Honour had said back at 103, is purely with respect to a matter of law. In effect, he has read this as the appeal statute in criminal acquittal matters; the only thing a court can ever look at is a legal question.
Your Honours, there is then a review of a series of authorities in New South Wales Court of Appeal prior to our matter. Without going to them, my short submission is that it was an incremental process by which error crept in which needs to be corrected in this case. Your Honours, just finally, when one comes to the specific reasons of his Honour at paragraphs 132 to the end, could I just in bullet point form identify errors by his Honour. In 132, contrary to what Justice Hayne put to me about the reasons, Justice Basten is reading paragraph 9 of the reasons as reference to “evidence from the builder that he had made claims.” So his Honour has not ever addressed the question if the builder’s affidavit was relied upon, was that a course which was permissible in law.
Secondly, in paragraph 135 an approach is taken that no new legal point, even if arising inevitably and inseparably out of the question which grounds jurisdiction, is available and we submit that the powers of amendment of the Tribunal are available to the court to allow any amendment if necessary. Next, at 137 there is the paragraph we understand the insurer does not defend that a no evidence ground is not available. Your Honours, the last sentence of 137 we submit is problematical. His Honour says you raise your no evidence grounds in judicial review. Question, how can you raise them in judicial review when section 65 does not allow for anything other than jurisdictional procedural fairness?
The fourth matter is in the first sentence of 138. His Honour says the ground was not made out if the affidavit of the builder was available to the Tribunal. That appears to be not a finding of no jurisdiction, but an attack upon the way Justice Rothman exercised the jurisdiction. Then there is the finding, well, because the documents were in the tender bundle and Mr Kostas was cross‑examined on them, it was open to the Tribunal to rely upon the affidavit notwithstanding neither the insurer nor it put that position clearly to the appellants. Now, that again seems to be not a finding as to jurisdiction because the matter of law is there. His Honour is, it would seem, purporting to answer the matter of law differently to Justice Rothman.
The next sentence, it is clear from the reasons that he treated the evidence as being before him, comes back to Justice Hayne’s question and we respectfully do not know where that is in the reasons. The last sentence says judicial review would fail, which has the same problem as 137. Justice Basten is criticised for the way he dealt with Mr Turisi. I think his reasons speak for themselves. Paragraph 140 says it was a diversion to speak to clause 27 whereas in fact clause 27 was intimately bound up in the matter I have mentioned. That deals with the first stage of the matter.
When one comes to the notices issued by the appellants, at 145 his Honour says it is unclear to him what role the owners placed on Mr Rappoport’s material, and the role is clear. I took the court to the submissions. The Court of Appeal only had three pages of the report, Justice Rothman had the whole of it, and notwithstanding that foundation, the court was prepared to conclude there was no matter of law in paragraph 146.
We respectfully do not understand how Justice Rothman’s decision on Mr Rappoport could be interfered with in law without the court considering the whole of Mr Rappoport’s evidence. At 147, in the third sentence, one sees this concept of the decision implicitly narrowing the appeal:
On the bases on which the Tribunal dealt with notices, the questions raised appear to have been largely, if not entirely, questions of fact.
That is true, but it dealt with it on the wrong basis because it misconstrued clause 24. So the misconstruction in law argument his Honour would not appear to allow within the scope of this appeal. Could I come in the same vein to 157.
HAYNE J: Just before you do that and going back to what is said between 142 and perhaps into 147, I am, I suspect, not grasping quite the way in which the case is being put in the Court of Appeal. The Tribunal’s first step was to say time has been extended, is that right?
MR GLEESON: Yes.
HAYNE J: There is five months to go, delay and the like should not be inferred because you have still got five months to complete?
MR GLEESON: Yes.
HAYNE J: That is putting it very loosely. What was Mr Rappoport’s evidence and the notices given dependent on Mr Rappoport’s views founded upon? There are various defects in the work and failures to complete to work, are there?
MR GLEESON: There has been a suspension of work.
HAYNE J: Yes.
MR GLEESON: There is a failure to complete and there is a failure to proceed diligently.
HAYNE J: Yes. If as the Tribunal held – you say wrongly – there was still five months to go in the contract, a necessary premise for Mr Rappoport’s conclusions was falsified, was it not?
MR GLEESON: No, as in, to the extent he said these are – he did not purport to express the ultimate question ‑ ‑ ‑
HAYNE J: Of course.
MR GLEESON: ‑ ‑ ‑ about whether these were matters that could lead to termination, but as to him saying, “On 21 June I have inspected, there are 51 items incomplete ‑ ‑ ‑
HAYNE J: Still undone.
MR GLEESON: That part of it is not falsified, I accept that.
HAYNE J: But they have got five months to go if the Tribunal were right?
MR GLEESON: If the Tribunal were right and they had five months to go and a valid clause 24 notice had not been issued, then it may well be that it could be open to a tribunal in law to say, “Without more I do not yet infer repudiation by the builder.” There may be explanations for why he has not dealt as promptly with the 51 as he should, I accept that, but on the alternative premise that there is a relevant error of law in respect to the date for completion, the next question which arose was, were the notices of the 4 and 12 May valid notices which set time running under clause 24?
HAYNE J: The reason I raise it at this level of the argument is that understanding that you first attack the Tribunal’s conclusion that there was five months to go, that was the premise for what the Tribunal ultimately ordered, was it not, and the Tribunal never got to the point of considering, did it, the Rappoport issues because of what it had found about five months still to go, or do I misunderstand it?
MR GLEESON: It is not quite that simple. Stage one is five months to go or not. Stage two is, do the notices of 4 and 12 May have any effect in law to set a period of time running under clause 24? In answering that question the Tribunal relied upon two matters. The first was the five months still to run, so it carried over into stage two, and the second was a failure to look at the notices in terms of any ground other than defective work.
Now, they were two conjoined errors of law which led to a finding, “Your notices have not set time running”. If there were no error in any of that process then, as I have said, one might accept that even if Rappoport was uncontradicted in fact, if one is simply viewing this through the common law of repudiation it might be open to conclude there is not yet sufficient intention to repudiate.
HAYNE J: Repudiate. Was that not the separate issue that was segregated by the parties? Had there been repudiation?
MR GLEESON: The separate issue was whether when the appellants issued their notice on 29 June terminating the contract, relying upon clause 24 and a general assertion of repudiation by the builder, they were entitled in law to do so. So, at a risk of simplification, your Honours, the three matters of law which were identified and corrected by Justice Rothman were, number one, contract due for completion now, not three months time; number two, notices of 4 and 12 May validly set a time period running under clause 24; number three, the builder’s affidavit not being before the Tribunal for any purpose the only conclusion available on the evidence, including Rappoport, was that at 29 June there remained a suspension, failure to complete, failure to act diligently, therefore termination could occur. Now, Justice Rothman having reached those three conclusions made the ultimate orders in the case.
Your Honours, I just wish to finish on 147 in that third sentence. We see again the approach that on the bases upon which the Tribunal dealt with the notices the questions were largely questions of fact. So, in other words, a tribunal by a wrong construction of a notice and a failure to attend a clause 24 can eliminate a right to appeal and there is no other means to get that question before a court because it is outside section 65. To similar effect, 157, which is perhaps the most stark version of it, the reliance placed on the suspension ground was not referred to in the Tribunal’s reasons. That is true because the Tribunal misconstrued clause 24. It was referred to
in the judgment of Justice Rothman; it was one of the key reasons upon which he found the error of law.
Your Honours, there are some authorities apparently which support the view that section 75A, in its rehearing power, can be tailored to the more specific provisions of a statute. If I could identify them over the adjournment, give them to the Court. Unless your Honours have any questions, those are our submissions.
FRENCH CJ: Thank you, Mr Gleeson. Yes, Mr Walker.
MR WALKER: Your Honours, could I start with the statutory position concerning the appeal to the Supreme Court. The Court of Appeal was correct, we submit, in regarding the particular wording – and I stress “the particular wording” – of section 67 in the context supplied both by the Act as a whole – section 28 has been referred to, for example – but in particular, the provisions of sections 65, 66 and 68, as restricting what was called in the reasons of Justice Basten, the subject matter of the appeal to the Supreme Court.
At the outset it is an error, we submit, in the approach taken by the appellant today to regard the multifarious judicial statements about the breadth of connection permitted by a phrase such as “with respect to” as authorising, let alone requiring, a reading of subsection (1) as if it were not a restriction, but rather imparted or imported a breadth comprehending the substrate of facts, or the consequential facts in the one case founding, in the other case made relevant by, a decision on a question with respect to a matter of law.
If that were the approach which were followed, and it is certainly that which is argued for by our learned friends, then lo and behold, the expression “with respect to a matter of law” would be a phrase which required to be read and imposed a duty, not a discretion, on the Supreme Court to entertain cases about decisions of questions with respect to matters of law and matters of fact which have some connection to those matters of law.
When one then as a matter of, we think, doctrine, common ground at the Bar table, contemplates what decisions and reasoning in this Court such as Bass show, then of course relevant facts – that is those which are the contending states of affairs factually, championed respectively by the parties to the dispute, will always bear a relevant connection to the law, which having been understood properly, is then to be applied to those questions of fact.
By these several steps of reasoning, each one false, in our submission, the conclusion is reached that section 67(1), far from restricting an appeal, has produced an appeal which is indistinguishable, once one understands that the only matters of fact are those to which the relevant law gets to be applied, from an appeal by way of rehearing in the technical sense of that expression, characterised by the jurisdiction generally stipulated in section 75A of the Supreme Court Act.
That we are not overstating the consequences of the argument and its basic premise from the other side is demonstrated by the argument to that very effect, that section 75A operates alongside and apparently unqualified by section 67. In our submission, that is a submission which is, as it were, the bridge too far. Section 75A, of course, as my friend made clear, he appreciated, includes subsection (4) stipulating that it “has effect subject to any Act”. At that point the appellant enlists again the multifarious case law references to the need to read amply or generously or liberally grants of jurisdiction, particularly to superior courts.
In our submission, it is to be understood that although it is original jurisdiction in the Supreme Court in a manner familiar, for example, to the way in which it is original jurisdiction in the Federal Court in relation to tax matters, nonetheless, the way in which the matter is brought to the Supreme Court is described by the legislature as an appeal. There is no doubt that for our learned friend’s argument its character as an appeal is critical to the plenitude that they would attach to the powers of the Supreme Court derived from section 75A of the Supreme Court Act because that, of course, is premised upon it being an appeal.
MR WALKER: As an appeal, however, being subject to any Act, the next step in the argument is to say that it is not to be seen from section 67 within its context but the statute in which appears, the Consumer, Trader and Tenancy Tribunal Act 2001, has subjected any of the provisions of section 75A to contrary, different or inconsistent provision so as to render the effect of section 75A either non-operative or qualified accordingly.
FRENCH CJ: Now, does the focus on “subject to this Act” perhaps run the risk of distracting attention from the important distinction that is to be made between a grant of jurisdiction and powers to be exercised in aid of the jurisdiction, the primary question then being what is the scope of the jurisdiction, which is, in a sense, an important aspect of the debate today?
MR WALKER: Yes. We submit that one really starts and finishes with the statutory wording and that if one is to call in aid what I might call biases or presumptions of statutory interpretation then one thing is clear from the Consumer, Trader and Tenancy Tribunal Act is that the legislature has intended to restrict, that is to define, rather than to open up generally, the role of the Supreme Court with respect to proceedings in the Tribunal. That is the first thing.
The second thing we submit is that appeals, generally speaking, particularly in superior courts being creatures of statute, leaving aside previous forms of judicial review in relation to error, that one must start and finish with the words of the statute and that the grant of jurisdiction involves the notion of limits and that is, after all, how the critical rule of law requirement of staying within jurisdictional and its sanction to detect jurisdictional error operates.
Next we say that section 75A is, of course, a provision of a familiar kind, but not identical around this country, but they are in sufficiently common form to attract the technical expression “appeal by way of rehearing”. Your Honours will recall that the provisions, in particular, not only of subsection (5), but of subsection (6) as to the powers of the court and subsection (7) as to the powers of the court, regarded in the authorities in this Court as the badge of an appeal by way of rehearing rather than appeal in a strict sense.
It is impossible, in our submission, to understand how the mandatory terms of subsection (6), “the court shall have the powers and duties”, et cetera, or the clear permission of subsection (7), “the court may receive further evidence”, can sit alongside the scheme which is illustrated by sections 65, 66 and 67 of the Consumer, Trader and Tenancy Tribunal Act. In particular, in our submission, if one compares – and giving due weight to what our learned friends correctly see as the symmetry between sections 66 and 67 – if one compares what the actual words of 66 and 67 say, in particular, about remitter, it is impossible to see how that is on all fours with, consistent with or can operate alongside the powers given by 75A(6) and (7) of the Supreme Court Act. Now that in our submission ‑ ‑ ‑
HEYDON J: Is that really correct? There might be some inferences which an appellate court or the Supreme Court might be prepared to draw on, there might be some findings of fact it might be prepared to make, but others of a more specialist character it might regard as appropriate for remitter.
MR WALKER: Your Honour, there is, in our submission, no doubt that in relation to section 67 that is a question that I have to deal with, but in relation to section 66, that is, with respect, just not a possibility, on deciding the question the Supreme Court is to remit its decision to the Tribunal and its decision on the question which has been referred, and that is a question that has arisen with respect to a matter of law, the one which has been referred by the Tribunal to the Supreme Court. In our submission, there is nothing in the wording of section 66 which says anything about the drawing of inferences, the making of findings of fact.
HEYDON J: Yes, but there is in section 75A. I thought you were trying to indicate that 75A, as it were, had to give way to the Consumer, Trader and Tenancy Tribunal Act. You were saying there was something inherent in the structure of the latter Act which prevented 75A operating?
MR WALKER: I am actually saying there is something explicit in the words, the limited expressions in sections 66 and 67 which is inconsistent with the extent of power in section 75A(6) and (7). Where there is that difference – which I need to make good – where there is that difference, section 75A(4) provides the manner of resolving the way in which one reads the two Acts together. The Supreme Court Act provision is subject to the Consumer, Trader and Tenancy Tribunal Act provision.
It is not inherent, but explicit in our submission, that the power under section 66, that is the jurisdiction I should say, under section 66 of the Supreme Court Act is to decide a referred question. It is the Tribunal that frames the question and has a discretion whether or not to refer it. It is a question which must answer a description of having arisen and having arisen with respect to a matter of law. It is that, and that only, which is within the jurisdiction of the Supreme Court to decide and, of course, it has all the powers necessary for the decision of that question with respect to a matter of law.
There are no words in section 66, including in subsection (3), there are no words at all which include the notion of making findings of fact or even the more restricted appellate notion of drawing inferences from found findings of fact made, for example, by the Tribunal already. It is for those reasons, in our submission, that in the absence of any words in section 66 providing a power to make findings of fact, and there being no, in our submission, possibility of it being regarded as inherent in the decision of a question with respect to a matter of law, that you will make findings of fact or hear evidence, or entertain cross-examination, that that which is remitted by way of decision to the Tribunal will be shorn of any findings of fact by the Supreme Court, including findings of fact by way of inferences from primary found facts.
If that is right about section 66 and if there is the symmetry which we submit there is between sections 66 and 67, then the same considerations apply subject to the reading that is appropriate of subsection (3), both provisions and particularly of section 67(3), to which I will come in a moment.
The symmetry is made good, with respect, when one considers section 66(2), which is not as it were confined to section 66 but which looks forward to and is picked up by section 67. Section 66(2) poses two alternatives. A tribunal may decide a question that has arisen with respect to a matter of law or it may refer it. The provisions of section 66(3) and (4) have to do with the latter alternative. Subsection (5), your Honours will note, whether for more abundant caution or whether necessarily in order to expand the reference, includes within the notion of “the matter of law”, a matter relating to the jurisdiction of the Tribunal.
Whether the Tribunal decides the question – the first of the alternatives in section 66(2) – or it is referred to the Supreme Court, the decision eventually comes back to the Tribunal. One sees that in paragraph 66(3)(b) if the second alternative is followed and in section 67(3)(b) if that alternative is followed under the referral to the Supreme Court.
Section 67(1) then picks up that first alternative contemplated in 66(2), namely that the Tribunal has decided a question with respect to a matter of law, one that has arisen. It is that decision of a question with respect to a matter of law which may be appealed to the Supreme Court. If we are right about the absence of any references providing either jurisdiction or requisite power in section 66 for findings of fact to be made, or evidence received, then one would expect, unless there is something in the text to the contrary, that the same will be true of section 67.
The symmetry is made good, with respect, when one considers section 66(2) which is not, as it were, confined to section 66 but which looks forward to and is picked up by section 67. Section 66(2) poses two alternatives. A tribunal may decide a question that has arisen with respect to a matter of law or it may refer it. The provisions of section 66(3) and (4) have to do with the latter alternative. Subsection (5), your Honours will note, whether for more abundant caution or whether necessarily in order to expand the reference, includes within the notion of a matter of law:
a matter relating to the jurisdiction of the Tribunal.
Now, whether the Tribunal decides the question, the first of the alternatives in section 66(2), or it is referred to the Supreme Court, the decision eventually comes back to the Tribunal. One sees that in paragraph 66(3)(b), that the second alternative is followed, and in section 67(3)(b), if that alternative is followed under the referral to the Supreme Court.
Now, 67(1) then picks up that first alternative contemplated in 66(2), namely that the Tribunal has decided a question with respect to a matter of law, one that has arisen. It is that decision of a question with respect to a matter of law which may be appealed to the Supreme Court and if we are right about the absence of any references providing either jurisdiction or requisite power in section 66 for findings of fact to be made or evidence received, then one would expect, unless there is something in the text to the contrary, that the same will be true of section 67.
It would be particularly odd, in our submission, for this to be so, bearing in mind what we know from provisions such as section 28 and the objects provisions as well, if the discretion to decide in the Tribunal or to refer it to the Supreme Court were somehow to present radically different propositions with respect to the capacity of the Supreme Court to make findings of fact. If there is no capacity under section 66, a referral, it would be odd if there were a capacity by way of an appeal, section 67.
When we come to subsection (2), the provision that the appeal is to be in accordance with the rules of the Supreme Court are not, however, in our submission, and my friend, I think, does not rely on this, enough to obviate the effect of section 75A(4) of the Supreme Court Act. One then comes to the critical provisions of section 67(3) where there is a decision contemplated to fall into one of two possible classes. There is the affirming the decision of the Tribunal on the question or there is not. Now, presumably that means overturning or vary but is not affirming.
In that case where it has not affirmed the wording of paragraph (a) as we have put in our written submission, particularly the phrase “should have been made”, is one which, in our submission, confines – to use the language of Justice Basten in the Court of Appeal – the subject matter of the appeal and the order made to determine the appeal to that which arises from the correction, that is, that thing done by a Court of Appeal – or by a court on appeal, I should say – that thing done when you are not affirming a decision.
We are detecting error or a need to correct, and the expression “should”, the word “should”, supplies the requirement and according to the fact that they are alternatives here, the discretion to choose which of these you will do either to make good the error or deficiency – paragraph (a) – or to send it back so that there may be a decision made consistent with the Supreme Court’s decision under paragraph (b).
Nothing in the words of subsection (3), and particularly in paragraph (a) which is the place one would have to find them, does anything more than do the words of section 66(3) to give jurisdiction or correlative power to the Supreme Court to receive evidence, consider witnesses, make findings of fact or draw different factual inferences from found facts in the Tribunal.
It is for those reasons, in our submission, that bearing in mind that there is a grant by defined terms which describes the nature of the power and the jurisdiction in section 66 and section 67 we have a difference between that jurisdiction and power under the Consumer, Trader and Tenancy Tribunal Act and that which is contemplated as possible under section 75A of the Supreme Court Act. That difference is enough to invoke the provisions of section 75A(4), rendering the effect of section 75A, with its appeal by way of rehearing, the capacity to receive evidence, et cetera, subject to, and in this case unavailable in, the jurisdiction defined by section 67.
FRENCH CJ: That might be a convenient moment, Mr Walker.
MR WALKER: If it please the Court.
FRENCH CJ: The Court will adjourn till 2.15.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
FRENCH CJ: Yes, Mr Walker.
MR WALKER: Your Honours, the next point I wish to make in relation to the reconciliation of section 75A of the Supreme Court Act with section 67 of the Consumer, Trader and Tenancy Tribunal Act is to draw to attention the traditional wording of section 75A(6), namely:
The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought –
et cetera. That, in our submission, of course, can apply to as much an Administrative Tribunal as to a first instance court. There is no problem about that. However, when one considers the scheme in sections 66 and 67 of the CTTT Act whereby the subject matter of the Supreme Court’s jurisdiction is the decision on a question with respect to a matter of law either for the first time under section 66 or by way of appeal to see whether the Tribunal’s decision should be affirmed or not under section 67, it is difficult to see where the comprehensive powers and duties, et cetera, of the first instance body under section 75A(6) can play any part. Rather, it is focused entirely on the question of those powers and duties with respect to deciding a question of law that has arisen.
In particular, the argument for the appellant proposes no way from the text of either 75A or 67 of detecting which are the fact‑finding powers and duties of the Tribunal which are or are not available in the Supreme Court under section 67. It all comes back, in our submission, ultimately to the fact that section 67 bestows jurisdiction of a kind which, by the words used to grant the limited power or jurisdiction, includes nothing with respect to the finding of facts.
Could I now move to the notion of what it means for a question to arise because that has to be connected with the fact of there having been a decision and, with respect, the strictures expressed by my learned friend with respect to some of the paraphrases or references to the statute by Justice Basten are well made. We might as well say, though there are elisions of the notion of question in some of those paraphrases in the Court of Appeal reasons, so it must be said that there is elision of the notion of a question arising in part of the argument against us. May I elaborate that.
First of all, the expression in section 66 and section 67 with respect to a question comes back in section 66(2) to the notion of a question that has arisen, if a question arises, a fact in the narrative of proceedings in the Tribunal, then the Tribunal may decide it or may refer it. So the arising of a question has to be something sufficiently explicit or palpable that it may be the subject of (a) a decision or (b) a reference.
It is true that the well‑established notion of something which is implicitly decided in a determination of a tribunal or court, as to the first of those the Tribunal may decide the question, may not be particularly decisive in today’s argument, but the notion of a reference surely means that there has to be something sufficiently explicit and perceived by the Tribunal to permit there to be something called a reference; there cannot be an implicit reference nor can there be something referred which is not sufficiently spelled out so as to cease to be merely implicit.
This is not the only place where one finds the need to have the notion of issues or questions arising in some kind of explicit fashion in the Tribunal. My learned friend took you to section 22 in his opening, described as a privative provision. If I may, with great respect, suggest another way, perhaps to be preferred, of characterising section 22. It is a form of exclusive jurisdiction provision, though as you will see it is a kind of first come first serve – not served – provision, that is, depending upon whether a court as defined or the Tribunal is first seized of a matter in the particular way the provisions describe, that place and not the other place, has exclusive jurisdiction. One sees that, for example, in subsection (3), the first of those provisions:
If, at the time when an application was made to the Tribunal in accordance with this Act, no issue arising under the application was the subject of a dispute in proceedings pending before a court –
which I stress is a defined term –
a court has no jurisdiction –
So if it gets first to the Tribunal, but if what gets first to the Tribunal? It is an issue and it has to be something arising under an application and you have to be able to see that that is not an issue that is the subject of a dispute, and a dispute means obviously rival contentions in proceedings pending before a court.
In subsection (7), the other side of the coin, there is a correlative provision with respect to the Tribunal’s jurisdiction ceasing if, at the time when an application is made to the Tribunal, an issue arising under the application was the subject of a dispute, et cetera. So it is critical to something as bright line and fundamental as jurisdiction of the Tribunal and of courts, including the Supreme Court, to be able to identify whether an issue arises under an application and whether an issue is in dispute in proceedings.
Next, I add that in the Tribunal itself, section 28(4), another provision my learned friend drew to your attention, you will see that the Tribunal’s non‑judicial paradigm behaviour includes ensuring that the parties understand the nature of the assertions made – the legal implications of those assertions. That, in our submission, again accords with the expectation that there will be a manner of application being made and dealt with in proceedings and the answer to an application being apprehended in proceedings so as to understand what there is in the nature of so‑called assertions made as well as legal implications.
Those provisions, we submit, combine with the ordinary colloquial English of the notion of a question arising and the notion of a tribunal deciding the question or the Supreme Court entertaining an appeal against the decision of the question in such a way as to require identification from the record of the question as posed and as in dispute calling for a decision.
Now, we do not need to rehearse what is adequately set out both in the Supreme Court and in the Court of Appeal and in the parties’ respective written submissions about the various ways and the different levels of generality at which, particularly Justice Rothman, responding to a very comprehensive summons in the Supreme Court, sought to focus and distil what the questions were.
In our submission, that is not the first port of call when one is on the journey to find out the jurisdictional question for the Supreme Court. The first port of call is to see what question has arisen in the proceedings in the Tribunal, then to see what the decision on that is, and then to see whether that answers the requisite character of being with a decision of a question with respect to a matter of law. That sequence of inquiry may well involve choice of a level of generality at which the question has been framed.
Our friends go to the extremity, as we would put it, of suggesting that it could have been framed at that high level of generality, in effect, was their client’s position, lawful, in the sense of being in accordance with their rights under the contract. In our submission, in most cases that will be far too high a level of generality to either factually reveal itself to be a question arising, let alone to have been something upon which a decision has been made but there may be a case in which that will turn out to be the appropriate way to frame the question.
In this case, there was a preliminary question posed by the Tribunal, though that does not necessarily and did not have to be, of course, framed so as to be and be only with respect to a matter of law. There are, of course, matters of law potentially – and I stress “potentially” – involved in every question asking whether somebody has lawfully, that is validly, terminated a contract in accordance with its terms, and the last phrase in particular usually requires at least some matters of law in the sense that my learned friend, with respect, appropriately argued this morning.
FRENCH CJ: There was not a great deal of precision relevant to that proposition in the way the Tribunal formulated the consent order.
MR WALKER: No, that is correct.
FRENCH CJ: It talked of the question of the termination of the contract as the question which it was to consider and then in its reasons, I think at 431, it talked about the question, a vital point to be decided for whether or not the owners had validly terminated. So one takes it that that is the way it is proceeding on that ‑ ‑ ‑
MR WALKER: With respect, we adopt what the Chief Justice has just said, and in particular we go to the end point. Your Honours would be, in our submission, entitled to proceed on the basis that the parties and the Tribunal had posed a question, have the owners validly terminated the contract with the builder, and I accept, as is obvious, if only because of the word “validly” and “contract”, that that must have involved consideration of some matters of law. Of course, we then have to come to the decision. I will come to that in a moment. But in our submission, the matter which is first of all critical is to discern what it is in the complaints made in the Supreme Court, and the slightly different or truncated way in which they were then presented in the Court of Appeal on behalf of the owners, to what extent they may fit within this notion of a decision of a question which has arisen, with respect to a matter of law.
There are two in particular I want to single out at the outset. The first has to do with procedural fairness and to that end, could I remind your Honours of what section 65 of the CTTT Act says. My learned friend has gone to it. In the course of an otherwise very comprehensive privative provision I draw to attention, for example, the explicit elimination of mandamus. One has in subsection 3(b) an express and ample exclusion for the case of denial of procedural fairness in relation to the hearing or determination of the matter.
Now, there no doubt may be conceptual overlap and one can see that from subsection 3(a), the Tribunal had no jurisdiction to make the order. That is also one which is clearly and amply excluded from the privative provision, that is, there may be a remedy of a prerogative kind sought and granted in relation to no jurisdiction to make the order or denial of procedural fairness in relation to the hearing or determination. A question arose to which my learned friend gave one answer and I will give the opposite as to the implication of that provision in this statutory scheme with respect to the appeal right under section 67.
Is there an appeal right under section 67(1) based on the proposition that there has been a denial of procedural fairness? Now, of course it may be that a question arises in the course of a hearing as to whether, for example, somebody must be allowed to cross‑examine a witness or must be allowed to call some evidence in answer to a contention raised. It may well be that that would very easily answer the description of a question arising upon which a decision is made with respect to a matter of law, namely, the content and the circumstances that arose and have been found of the requirements of procedural fairness.
In such a case, there could either be a referral or an appeal if by someone aggrieved by a decision on the matter. If it has not so arisen so that there was a question framed with a capacity to identify the facts upon which it arose, be they found facts, assumed facts or agreed facts, and, in particular, if there has not been a decision on the matter, the Tribunal has not done something which can be the subject of a grievance during proceedings, section 66, then, in our submission, there is and can be no appeal under section 67. That does not lead to an unsatisfying gap in the scheme because there is, of course, the remedy under section 65(3) and the availability expressly of the remedy ‑ ‑ ‑
FRENCH CJ: That just leaves space for the remedy. You have to find the jurisdiction elsewhere as in section 69 of the Supreme Court Act.
MR WALKER: Yes, I am so sorry. That then leaves space by the exclusion from the privative clause and, yes, in New South Wales it is section 69 of the Supreme Court Act for the prerogative relief.
HAYNE J: The question may not have arisen in the proceeding but has the Tribunal decided a question with respect to a matter of law when it decides the issue tendered without affording ‑ ‑ ‑
MR WALKER: Unfairly, yes.
HAYNE J: Yes.
MR WALKER: The short answer is, when that happens, the remedy is under section 69 of the Supreme Court Act permitted by section 65(3) of the CTTT Act.
HAYNE J: If that remedy is available, it does not follow inevitably, does it, that appeal is not available?
MR WALKER: No, I accept. This is not a logical matter, this is a matter of schematic and textual argument.
HAYNE J: But your argument in part proceeds from the equation of 66 and 67.
MR WALKER: There is no doubt about the fact that I draw the symmetry, yes.
HAYNE J: In particular, injecting into 67 the concept of arising.
MR WALKER: Unquestionably.
HAYNE J: When it does not appear.
MR WALKER: No. May I try and make that good by 66 (2) though? I accept that. Section 67(1) does not use the word. That is why I have to use 67(2). Section 67(2) posits two cases. They are two cases that arise in the situation where a question arises. There are two possibilities. The Tribunal may decide it or it may refer it. The next two subsections deal with what happens if it refers it. Section 67 then, surely not co‑incidentally, in the same scheme starts with the language “if the Tribunal decides a question with respect to a matter of law”, that being the first of the two alternatives posited in 66(2).
Now, the step I have to take is to submit that 67(1) is related to decisions which are sufficiently explicit that they can be seen to have been a decision of a question which has arisen as well as being a question with respect to a matter of law. If I were wrong in that, all the weight of this part of my argument concerning what I will call the relative explicitness of the decision with respect to a matter of law will fall not on the idea of a question arising but on the idea of a question being decided. These are, for all the language of informality in the statute, adversarial proceedings. They are preternaturally proceedings which will have to do with contract and contract rights. Contract rights are, of course, the kind of rights which between private parties may be waived. They may be waived knowingly or unknowingly.
Contracts in the building industry notoriously contain exemption clauses, clauses governing the way in which rights may be triggered or lost, including with respect to formalities observed. Building sites are notoriously not places replete with observance of formalities. In our submission, it is to be expected as a way of understanding this statute that parties will choose the issues or questions which may arise in relation to the terms of the contract that one or the other seeks to enforce against the other. There may be good reason why both sides to a contract, for example, decline to pull the trigger of some exemption clause, source for the goose, source for the gander.
For those reasons which entirely accord with the jurisdictional need between a tribunal and a court to determine what issues have arisen or what is in dispute at the language of an adversarial party autonomous selection of issues to be determined, it is not enough that one can see in the Supreme Court that there were terms of a contract which the parties for whatever reason or lack of reasons seemed good or did not appear at the time or the Tribunal did not appreciate or was not asked to consider. Obviously, in our submission, that was the case in relation to clause 27. It is both easy and correct to say that clause 27 was unavoidably relevant to consideration of notification under clause 6. I cannot say anything to alleviate that position from my present brief; there it is.
On the other hand, there was reference to clause 27 but in a quite different context, as my learned friend put it, and no reliance on clause 27 by the parties contending, as they did, about what had happened under clause 6 with a second and third extension of time claims. For those reasons, in our submission, there is not to be found in the finding or reasons of the Tribunal anything that answers the statutory description of a decision about clause 27 and there certainly had not been a question arising in the sense I have argued with respect to clause 27 any more than that, in relation to a contract, there could be an argument about whether there was good consideration or where there had been past consideration, whether there had been Statute Of Frauds observance, if that was relevant, whether there was a term, perhaps a special condition added to a contract such as this that was sufficiently certain in its terms to be enforceable with consequential questions arising as to severability, for example.
Those are matters which after the event, disappointed by an outcome, a party may well re‑think the matter and decide that there was another way of putting things which would have a radically different and more favourable outcome.
FRENCH CJ: Do you accept that a decision for the purposes of section 67 can be a finding in the course of reason?
MR WALKER: I think it would be impossible to proceed otherwise and cleave to what I want, namely, symmetry between 66 and 67, yes. So it will include what I might call interim or transitional matters to a final outcome. That must be so as well, bearing in mind the two possibilities that section 67(3) contemplates, that is, it may be it is so final that you can finish it all off because there are no findings of fact outstanding. The findings of fact are all made and it is simply a question of the matter of law being determined or there is still something to be done or reconsidered, the remitter.
FRENCH CJ: Because, in fact, what emerged in a formal sense from the Tribunal’s determination in this case, was a finding that the applicants had repudiated their contract. On the way to that, it answered adversely to the applicants the proposition that they had validly terminated the contract and then went on to, say, repudiation.
MR WALKER: Yes. I would not take a point.
FRENCH CJ: No.
MR WALKER: I could not take a point that the preliminary question as stated eventually, at the outset of the reasons, somehow prevents looking at any matters of law if they were the subject of decision on a question arising which would go further to, for example, the question of repudiation. It not following inexorably that an invalid termination is a repudiation and there being, in fact, some matters of law not ventilated in these proceedings that cast some doubt upon the Tribunal’s approach in that regard, we accept that those are differences, but we would not and could not take a point. It is still simply a question, can you find a question which has arisen? Can one find a decision?
The first one I have dealt with then is procedural fairness, that is, it may fall within section 67 appeal but it certainly may not, in which case section 65 is there. The same thing is true with jurisdiction. Under section 66(5) jurisdiction is explicitly included within the reference to a matter of law and there could well be, indeed, when jurisdiction arises it almost inevitably is the subject of a question raised in the proceedings upon which there is a decision.
FRENCH CJ: It appears in 67(8) too, does it not?
MR WALKER: Quite. I will come to that in a moment. Under 66(5) there can be a reference and, as the Chief Justice has pointed out, under 67(8) there can be within a matter of law, referred to in 67(1), again a matter relating to the jurisdiction. There has to be a decision about it, of course. However, there is also the question under 65(3)(a), does that cover cases not covered adequately by 66(5) and 67(8) and, in our submission, the text suggests the answer, yes, it does cover cases where there is an assumption rather than a decision about jurisdiction and it is wrong. Many an error or jurisdiction, in our submission, is made by assumption.
One could have said that there is always a decision of jurisdiction when one acts as if one has jurisdiction because that involves the logically anterior determination or satisfaction that you have jurisdiction. That would be an available form of argument. It is, however, in our submission, dispelled by the wording between 65, 66 and 67 to which we have drawn attention, remembering that in 66(5) we are talking about a question arising.
Your Honours, the other provision that I need to draw to attention in Part 6 which provides some context is of course the very broad but monetary limited second go provision in section 68. You will have observed the very broad grounds by which the discretion is enlivened for the chairperson to grant a second hearing before the Tribunal. In our submission, that goes some way to suggesting that this is a scheme in which the Supreme Court has a legal visitorial role and not the same role as the Court of Appeal, for example, has in relation to divisions of the Supreme Court in an appeal by way of rehearing.
HAYNE J: What is the monetary limit that you said 68 engaged?
MR WALKER: It is in subsection (13).
HAYNE J: Yes, I see. Thank you.
MR WALKER: It might be called a small claim provision, your Honour. There is also a probably deserved singling out of corporation misgiving consumer credit. Your Honours, the notion of a taxonomy of appellate provisions, to be seen in Justice Basten’s reasons in the passages to which my learned friend has drawn attention is, in our submission, not central to the issues in this case. As his Honour observes, a tripartite taxonomy is in any event too crude to deal with the semantic and textual variations that he himself observes.
In one sense, it is putting the cart before the horse. The taxonomy is performed after you have seen all of the provisions. The question is not whether a provision fits within a certain category, but what does the provision mean. When one has worked out what the provision means, it may or may not have – for what purpose one would ask the question is not clear – a similar character to some other provisions. It simply does not matter in our submission. As observed by the Chief Justice in the Court of Appeal, it is a source of potential error to follow, as it were, authorities on different forms of appellate provision.
In this case, in our submission, one way of summarising the major difference between the parties before your Honours is this. In truth, the argument for which the appellants contend is one that produces no difference whatever between the particular wording shown in section 67(1) in the context of section 66(2) and a provision which provided for an appeal on an error of law or on a matter of law. It may be that after all the argument and consideration the words in section 67(1) have that effect. It would be surprising, however, because those are very familiar ways to describe appellate – and give appellate jurisdiction, and they have not been availed of.
In our submission, the key is the need to find a question and the need to find a decision. In each case, particularly in the case of a decision, there has to be a quality of relative explicitness in order to meet the requirement of the jurisdictional grant to the Supreme Court. Can I then elaborate that further as follows? Does a question arise which falls to be decided when a tribunal considers the evidence in a case and makes the implicit anterior decision that there is evidence about a certain matter, shown by the fact that the Tribunal goes on to make a decision of fact on that matter.
That might be, in the absence of the kind of provisions to which I have already referred, a possible outcome so that one can say there is always the decision on a question which always, in the nature of things, will have arisen. Whenever a Tribunal considers the available evidence and goes on to make a fact that there is always of necessity the anterior decision there is some evidence. So that there will always be, for every finding of fact, a no evidence possibility under 67(1).
In our submission, that would be, to borrow the language of Justice Basten, overly artificial in relation to what is, we would submit, evidently an intention to limit rather than to broaden the appellate role of the Supreme Court. But in this case that is a somewhat academic matter because, as my learned friend has shown you, there was raised in very clear terms, which I will not seek in any way to qualify, the question whether there was any evidence of clause 6 notification. It was plainly raised in the argument before the Tribunal.
Thus, this is a case where the somewhat academic question does not matter because I concede – and this is the content of our concession in paragraph 85 of our written submission, explained in paragraph 86, to which reference has been made – that of course there can be raised in the Tribunal the question, which is definitely one with respect to a matter of law, is there any evidence that such‑and‑such has happened?
FRENCH CJ: So far as what you call the explicitness, if you like, of the identification of the question of law in the Tribunal, suppose one has to take a practical approach to the interpretation of the statute having regard to the range of qualifications that are possible for members of the Tribunal and that it is certainly not a requirement that members other than the chairperson have legal qualifications and that one might not, therefore, expect routinely questions of law to be defined with precision and decisions identified with respect to them.
MR WALKER: Yes. Although I have already drawn to attention 28(4), the duty:
to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand:
(a)the nature of the assertions made in the proceedings and the legal implications of those assertions.
Maybe that expression “as is reasonably practicable” may encompass ‑ ‑ ‑
FRENCH CJ: Can go and get advice.
MR WALKER: ‑ ‑ ‑ the fact that architects either are very good bush lawyers or are not, for example.
CRENNAN J: Are you suggesting that in terms of your paragraph 86 the notices of application for an extension of time, two of which were in the bundle, constitutes some evidence in relation to the relevant issue?
MR WALKER: Yes, that is right. I am about to come to that.
CRENNAN J: About to come to that, yes.
MR WALKER: Let me summarise it immediately as follows. It is the next but one part of my argument. It will be to this effect, that as observed by Justice Rothman himself and as held in the Court of Appeal, the presence in the tender bundle, which definitely was before the Tribunal without any dispute about that fact, provided some material from which an inference could be drawn. I suppose it runs along these lines, people do not keep copies of correspondence that they did not send. I hope your Honours will not ask me ‑ ‑ ‑
HAYNE J: What do you think bottom drawers are for in desks, Mr Walker?
MR WALKER: I hope your Honours will not ask me to assume one or other role of counsel to a jury about that matter. I suppose that is what lies behind that observation. It is not further explained. Justice Rothman says so himself.
HEYDON J: I think that is a very foolish proposition, if I may be so blunt. We know how bundles are put together.
MR WALKER: Your Honour, may I add, there is a remark by Justice Basten which is difficult to defend. That is the remark about – paragraph 138 to be found in volume 2 of the appeal book 693 at line 22:
It would have been entirely artificial to have material before the Tribunal (tendered by consent) which could have no relevance to the outcome of the proceedings.
As, with great respect, Justice Heydon has pointed out, in the Tribunal, as alas in other places as well, bundles are put together which are very often treated as quarries of material, some of which will turn into statues, some of which will turn into rubble, and it does not follow, I would not be able to say emphatically, do not put, that the inclusion in a bundle conveys an admission or concession that material achieved any particular status. It went further in this case, though ‑ ‑ ‑
CRENNAN J: Or is even relevant.
MR WALKER: Yes, it follows, your Honour, yes. Without being facetious it is clearly the case and this must be so in a tribunal with the procedural liberality of this Tribunal. It must be so that the touchstone of sections 55 and 56 of the Evidence Act provides no ground for making inferences about or extrapolating from the inclusion of a document in a bundle. Alas it does not even provide that very much in a tribunal where sections 55 and 56 apply, such as the court.
However, doing the best I can, what I have offered as the explanation for why his Honour Justice Rothman, and it appears the Court of Appeal, regarded that as potentially constituting some evidence is presumably that the existence of copy correspondence alongside correspondence – the first of the three claims that had been sent and agreed with – was some evidence, however slim, that it had been sent.
Now, it is at this point that one comes up against the procedural fairness matter. I know I am arguing about no evidence at the moment, but they go together. In essence, my friends say, if it is not no evidence it was certainly denial of procedural fairness and my argument on the latter of those simply has to point out the course that has been followed at the stages below in these proceedings. It had been, as one knows from prayer 2(1) at page 447 of volume 2 of the appeal book, it had been the case within the Supreme Court, relief was sought under section 69 of the Supreme Court Act as permitted by section 65 of the CTTT Act.
FRENCH CJ: On all the grounds set out in the schedule?
MR WALKER: On all of the grounds set out in the schedule. I think it requires a very hefty application of mutatis mutandis, your Honour, and I do not know that any will survive the change. However, the point is that was not decided by Justice Rothman because the plaintiffs were successful on other grounds; page 607, paragraph 166, and then the history noted at page 700 in the Court of Appeal, paragraphs 162 and 163 shows that there was no keeping alive of that matter by cross‑appeal or notice of contention. There would have been a cross‑appeal, we suspect, in the Court of Appeal.
Now, to put it mildly, if there was a denial of procedural fairness, that is unfortunate. On the other hand, these are adversarial proceedings, and a prerogative relief is not a section 67 appeal, and the issue came down to the competence of the section 67 appeal in the Court of Appeal, and for those reasons, in our submission, if it be the case that there was a denial of procedural fairness, then that is a matter that had been ventilated, but is not available in this Court.
How could there have been a denial of procedural fairness? My friend has supplied the obvious answer to that. The perception, to put it at its lowest, the fact as my friends would put it, that Mr Turisi’s affidavits were not, to use the jargon “before the Tribunal” or to use the language of their written submission “in evidence”. It is as if the passage in the transcript to which my learned friend took you amounted to, if you will forgive the invention, the “un-reading” of Mr Turisi’s affidavits. There has been, you will find in the material, assertions to the effect that the affidavit was “never read” to use the language of the Equity Division in Sydney. The other jurisdictions use the word “tendered”, as I understand it, for affidavits.
It is certainly true that one does not find anywhere a record of tendering or reading in that formal sense. One has rather better than that, to which I am about to come, but it is equally true that one does not find Mr Turisi, as it were, falling off the back of the truck, at the transcript pages to which my learned friend refers.
CRENNAN J: In that affidavit, did he make reference to the notices in relation to an extension of time by reference to the bundle numbers?
MR WALKER: He does, indeed, quite explicitly. If your Honours will forgive me, I need to go in order through these references to trace exactly that process. It picks up the matter that Justice Crennan has just asked me about. Could I start, please, in volume 1 - to go to the bundle - page 190. That is the first – that is the uncontested one. Could I just draw to attention you will see that the handwritten numerals in a circle in the bottom right‑hand corner of that and page 191. Those are the bundle page references that you will find in the affidavit.
The next one, page 192, that is at 245 on our understanding, rather than 249, and the next one, 301, page 193, those are the two contested EOT claims and, as my learned friend accurately put it, the first of them is signed by the builder but not by the owner, and in fact the builder gave evidence that it had not been agreed. There was not an allegation that it had been agreed. There was an allegation it had not been disputed properly.
The second one, as my friend points out, see page 194, is not even signed by the builder, though, if one is proceeding on the basis of the existence of such documents is some evidence that they were sent, whether there is any difference to the cogency or lack of cogency of such material by the presence or absence of the signature has not been explored and we will not say anything further.
There was cross-examination that I do not need to dwell on, that you will find in the same volume - page 228, lines 10 to 13 which had to do with the first of those three claims. I stress not one of the two relevant contested ones. I suppose that was available, obviously in terms of the fact that in the past, at this address which is the building site, the residence was being rebuilt, but at this address the first of them had been received.
In relation to the Mr Turisi affidavits being read, and I am using that in the ordinary English sense of the word rather than a legal sense, could I take you in the same bundle to page 221 in the transcript, same volume 1, where when all three parties were before the Tribunal, at the top of page 221, there is a reference by counsel for the insurer to:
a significant volume of evidence and I don’t know if you intend to read it first or read it as you were going along.
So “evidence”, “read”, and Mr Durie says:
It’s going to be a lot easier if I read it first, isn’t it?
MS CLARK: Yes.
Then there is that reference to the “tender bundle” at line 14, and then at line 34:
MEMBER DURIE: Is there anything that I should have ready to read when you do that?
that is, open a case –
I mean, I’ve got Mr Kostas’s affidavit.
MS CLARK: Mr Turisi has filed three affidavits –
then there is a reference to the August and October 2003 affidavits which are the ones in question referring “directly to our tender bundle”, and indeed they do, by reference to those page numbers concerning the making of those claims. Then the member says he will have to find those affidavits. In our submission, there it is, they were read. This is not a tribunal where you have the formality of marked exhibits, et cetera, but here is on the record quite plainly in play. That is why when I said earlier, how could there have been a denial of procedural fairness, this is not an incredulous question, it is a genuine question, there are two possibilities.
The first was that in fact it was not before the Tribunal. We submit that is not true for the reason that I have just made good. But a perception that it was not before the Tribunal made explicit in the written submission at the end of proceedings, which it was, and if I may so, with respect to those then appearing, understandably. That perception may well have been enough to trigger a requirement of procedural fairness that the Tribunal say, “You say it is not before me, but it is before me and I have read them. Do you need to adjust your submission or do we need to meet again in order to deal with that?”
I raise these matters because it is a disquieting matter on the face of the record to see these affidavits being read and then – and there is no criticism of counsel, bearing in mind the fact that the builder had dropped out – counsel then saying, that material, absence of cross‑examination, is not in evidence. However, in our ‑ ‑ ‑
HEYDON J: There was a Supreme Court judge in New South Wales some years ago who delivered a judgment that relied on documents that had been filed but not tendered as exhibits and the Court of Appeal reversed its decision. This is rather analogous, is it not, because a sea change took place after these events that you have been referring to on page 220 and 221.
MR WALKER: Yes. Your Honour, we would resist the analogy but not, with great respect, I think the point you are making for me to consider. I will resist the analogy only because the notion of the difference between filing and serving disappears when the record here shows that Mr Turisi’s affidavits were read by the member during the course of argument. However, the rest of what Justice Heydon has raised with me, with great respect, does provide some disquieting element because there was a sea change; the builder not only was no longer represented but the builder’s claims were gone.
On the other hand, as is explicit in the same transcript to which my learned friend took you, there was the wholesale borrowing of the builder’s contentions, part heard, they did not go back to scratch, by the insurer. In fact, as can be seen in passages to which I will go – one can neatly go to page 411, for example – I am sorry, your Honours, I have taken you not at all neatly to page 411. I should not have gone there first. Could I first go to 374 and 375 in volume 1. That is the passage where counsel were discussing what happened after the sea change, as it were. At the top of page 375 counsel for the owner, line 6:
You will recall that the insurer’s position in relation to that was essentially to add nothing to what Ms Clark had said.
That was for the builder.
HEYDON J: We need to remind ourselves, this is more than a year since debates between Mr Kerr and Ms Clark and the member, on page 221.
MR WALKER: Yes, that is correct, with respect. It is disquieting. At page 388 in volume 2 there is the passage you have already seen, to pick up that observation of Justice Heydon’s, that distant past submission, which was still in play by reason of that adoption, my learned friend says and, with respect, accurately, that there is no identification of the evidence there, but, after all, the reader, the Tribunal member reading this submission knows that there are Mr Turisi’s affidavits.
FRENCH CJ: There is a statement back at page 375, is there not, by Mr Corsaro that we will not:
need to trouble you further by dealing with the mass of evidence which has already been served ‑
et cetera?
MR WALKER: Yes. The notion of there being an unreading, in some sense, in our submission, should be put to one side.
FRENCH CJ: It was the preliminary question he was going forward on, whatever was necessary to determine it.
MR WALKER: On the other hand, it would be quite wrong of me to doubt in any way, by implication or otherwise, the sincerity of the statement that the material was not in evidence which you will find and you were shown in the submissions. There was a perception that it was not in evidence. My point is, this does not give rise to a decision of a question with respect to a matter of law so as to be amenable to a section 67(1) appeal, whatever else it may have done.
HEYDON J: It is not just a sort of bona fide perception. It is an accurate perception, is it not?
MR WALKER: It is not accurate that those affidavits were no longer being relied on. What passes between counsel and the Tribunal is nowhere near clear enough to that effect. It is not merely bona fide, it is also reasonable, your Honour, but I cannot say it is accurate because things are left too obscure, that is it would have been reasonable for people to have another view as well.
HEYDON J: Accepting that you make that submission, let us say it did not succeed. Is there not an erroneous decision on a question of law when reasoning is based on material that is not before the Tribunal?
MR WALKER: No.
HEYDON J: What is the nature of the error then? You can win an appeal from a criminal trial. It is an error of law to not admit evidence or to admit evidence wrongly.
MR WALKER: Your Honour, my argument is that – I was about to say a narrow one. I think that is a bad word. I will say it is more focused. It is this. Yes, accepting everything, particularly the characterisation as an error of law in the criminal appellate statutes of such a miscarriage, given the language of 65, 66 and 67 and the other matters to which I have drawn attention in the context of the CTTT Act, it is, in our submission, not a decision of a question with respect to a matter of law when the matter of procedural fairness has never been raised and has never been decided by the Tribunal. If it had been, that is, are Mr Turisi’s affidavits before the Tribunal so that they can be relied upon, then depending upon what the record showed concerning that question having arisen and whether there was a decision on it, then that may have been a decision itself. That may have been a decision falling within 67(1).
HEYDON J: Yes.
MR WALKER: In the same way as one could say that with respect to no evidence.
HEYDON J: Making this Tribunal very invulnerable.
MR WALKER: Yes.
HEYDON J: You talked about the rule of law this morning. I am not too sure that we are getting much of the rule of law if you have a non‑lawyer who tarries for a great deal of time, as this one did, and who then arrives at certain conclusions that may well rest on errors of law, but this cannot be attacked because there was not a question 5(a) which said is the builder’s affidavit in evidence.
MR WALKER: Your Honour ‑ ‑ ‑
HEYDON J: Is it properly before me?
MR WALKER: The proper answer to what your Honour has raised with me is yes, we are putting an argument that this is a tribunal where there is a degree of tolerance for non‑lawyers’ decisions, particularly on questions of fact, which tolerance expires only at the point where the same Tribunal has made a decision on a question with respect to a matter of law, and has arguably got it wrong.
In short, there is to be observed, if we are right on the reading, there is to be observed a signal difference in the toleration of possible error by this Tribunal on the part of the legislature than there is for error in a division of the Supreme Court or in the District Court or in even the Local Court. Whether one regards that as good or a sufficiently nuanced policy, manifest in the statute, it is nonetheless one to be seen and the familiar, if problematical definitions which have been used to render this different scope of appellate review refers to a question, we say a question arising, certainly a question being decided with respect to a matter of law.
Once one discards the notion that “with respect to” means that it can be with respect to a matter of fact as well, then it follows that there can be very considerable errors made and subject only to questions of jurisdictional procedural fairness including their overlap, they will be immune.
HEYDON J: A prerogative writ could have been obtained under section 65 for this little problem.
MR WALKER: Under 69 of the Supreme Court Act because of section 65(3) you could get a prerogative writ if there has been a stepping outside jurisdiction or a denial of procedural fairness.
HEYDON J: …..medieval. You have to get into the right little category and if you do not ‑ ‑ ‑
MR WALKER: It is medieval only in the sense that these are longstanding and venerable, though evergreen remedies for keeping people within jurisdiction and for ensuring that part of the rule of law but section 65 explicitly recognises that, just that. That is what it is doing.
I should, by the way, at this point point out that it is not clear if it matters what is the position in relation to section 49, the duty to give reasons.
Now, I raise it because in the summons before Justice Rothman there is, as you will recall, some invocation of a failure to give reasons and the learned friend has expatiated rather more on that. It is not clear with respect how that fits within the notion of a decision on a question with respect to a matter of law, particularly, as there has been no request for more or further reasons and there has been no allegation of a breach of section 49 in any formal sense. I think there has been such an allegation in argument today.
I need to draw this to attention, though not with any satisfaction, but it may be that section 65(1) prevents section 49 from being enforced by mandamus. I need to draw that to attention because if we are talking about a scheme then one needs to understand that because the section 49 duty, of course, includes a very familiar recitation of rudimentary aspects of judicial reasons, not just quasi judicial reasons, and no doubt for fundamental reasons. However, there it is. Nonetheless, our case is that one cannot push the words of section 67 far enough to encompass within it a complaint about a breach of section 49. Alas, I cannot say but you could go off somewhere else because it is not clear given 65 (1) that you can.
HAYNE J: Can I take you back to 374, lines 8 to 15, particularly lines 11 to 15, the Tribunal:
to determine those issues which were raised on the pleadings and which have been agitated during Mr Kostas’s cross‑examination –
The appeal book suggests that we have only extracts from the cross‑examination of Mr Kostas.
MR WALKER: That is correct.
HAYNE J: Is there any cross‑examination by Ms Clark, who I think seems to have the carriage of this, that was directed to the two disputed claims for extension of time?
MR WALKER: Yes, page 312. These are the disbelieved denials about which my learned friend, I think, to which he drew attention in relation to him onus of proof points, reversed onus.
HEYDON J: At line 24, “the builder gave you a copy” – “No.”
MR WALKER: That is right. There are no admissions, your Honour, there are none at all.
HEYDON J: Yes, and what is the other one? Which answer relates to the other document?
MR WALKER: At the foot of the page, your Honour, line 43. It goes up to line 6 on 313.
HEYDON J: Are you going to offer any argument as to how one can reason from a failure to accept the denials, the positive assertion?
MR WALKER: No. It is impossible. I think it goes no further than this. It could not possibly go any further than, you have whatever you have with this material of Mr Turisi and the bundle on the one hand, and you have the sworn evidence of Mr Kostas on the other hand. You disbelieve Mr Kostas. That says nothing about what happened, except that you do not find on the basis of his evidence that he did not receive it. The onus being, relevantly so far as the builder is concerned – I stress “so far as the builder is concerned” – the onus would be to show notification under clause 6. It may be different between the owner and insurer, of course, but as between the builder and – the builder would then rely upon the material of Mr Turisi and the tender bundle.
FRENCH CJ: Incidentally, just back for a moment to your 49 point in relation to a remedy. If the Tribunal were requested to provide reasons and refused on the basis that it did not have to or if it were asked to provide better reasons on the basis that it had not complied with the requirements of the section, that might well raise a question on, with respect, a matter of law which would come in under 67 without having to resort to mandamus, which is, as you have pointed out ‑ ‑ ‑
MR WALKER: If it was raised with the Tribunal, yes.
FRENCH CJ: Well ‑ ‑ ‑
MR WALKER: In this case, there has been no raising ‑ ‑ ‑
FRENCH CJ: Yes, I agree. I am sorry.
MR WALKER: Yes, just like no evidence and just like procedural fairness. If the question is raised, do I have to give reasons for – does section 49 require me to say more than I have said about such‑and‑such a topic? If there is a determination of that question by the Tribunal, then yes, it will go on to 67(1). Alternatively, the Tribunal may refer that off to the Supreme Court. In effect, do I have to, under section 66?
FRENCH CJ: I suppose if it covers implicit decisions, then if there are inadequate reasons given, one could argue perhaps that there is an implicit decision about adequacy in terms of compliance with the requirements of ‑ ‑ ‑
MR WALKER: Yes. If that mode of reasoning is adopted, then we really must lose, because that is a form of attributing implicit decisions to implicit questions, or inherent questions that will cover everything that has to be decided in a case, everything. As I say, every finding of fact will first have this anterior question “is there any evidence to permit this fact being found?” Our submission is that this will anti-purposively collapse the distinction which is evidently intended to render relatively immune the findings of fact and the procedures of this Tribunal. It is only if there is a jurisdictional breach or a procedural fairness breach that the method of proceeding is to be arrested, and otherwise, it requires something, as I say, relatively explicit rather than the universal inherent and implicit question which will enable everything to be put before the Supreme Court always, and I should say without any leave requirement. It will always go there.
Could I refer to, in relation to the termination of the contract – the builder’s submissions which were adopted in the fashion I have pointed out, the extract starts at 385. Could I point out, not merely with respect to notices being served but also matters about work being done, et cetera, there was reliance on that, see page 390 in appeal book 2 at about line 40 and footnote 15.
At page 404 in volume 2, the owners’ termination submissions – this is one of the pages where there is a no evidence submission and a submission that the Turisi material was not in evidence - you will see a reference to Mr Kostas’ affidavit of 10 October 2003 in footnotes 8 and 9. Those are references to where he explicitly responds to Mr Turisi’s assertions concerning service, which you will find at appeal book 171. The same 10 October affidavit which joins issue with and responds in terms to Mr Turisi’s affidavit is to be found on page 411, footnote 17.
In that affidavit, page 121 of volume 1 of the appeal book, you have the reference in paragraph 31 to the first, that is the undisputed of the three notices and you will see the expression in this evidence is paragraph 31 - “I made a claim”. That can be compared with what one finds in the same affidavit on page 127, for the first of the two disputed notices – “On 31 March 2000 I made a claim”. A copy of that claim is at page 245 of the bundle, which I have shown your Honours.
At page 132, paragraph 83 for the second of the disputed notices – “23 May I sent a letter . . . claiming an extension”. A copy is at those pages to which I have already taken your Honours. Then there is reference to the fate of those matters – page 153, paragraph 23. You will see about lines 10 and lines 20 respectively the assertion by Mr Turisi that the applicants, that is the owners, would not agree. That is how the issue came out. They did not agree, but neither did they dispute in writing, within the requisite time, hence the argument and the ultimate findings under clause 6, for supposed extension.
HEYDON J: On page 132, where Mr Turisi said that on 23 May he sent a letter claiming an extension of time, we are to understand that as meaning handed to Mr Kostas on site, are we? I think the cross‑examination put it that there had been a receipt of the letter, findings had been handed over on site and he said he had never seen it before.
MR WALKER: I am sorry, your Honour. You are asking me things that I cannot answer in relation to what instructions may have intervened between paragraph 83 and the cross-examination. I do not know.
HEYDON J: So we are to take 83 at whatever its face value is and the cross‑examination at its face value?
MR WALKER: Yes, that is, I cannot for the insurer, say anything more than what appears in the record. In light of that approach, in our submission, in light of what had happened, therefore, returning to the no evidence question, in our submission it would be artificial in the manner that Justice Basten considered the matter, it would be artificial to see the finding as necessarily involving the posing of a question which is decided concerning whether there was any evidence. That reference to Justice Basten’s reasoning is found at page 693 in volume 2 at paragraph 137.
The last sentence of that paragraph has his Honour referring to a “preferable view”, an expression suggesting that this may not be critical to his reasoning:
That while a “no evidence” ground may support judicial review –
that is of administrative action a general law –
it does not form a basis for a statutory appeal under s 67 (1).
Your Honours are aware that Justice Allsop expressed explicit qualification of his otherwise agreement concurrence with those reasons. At page 654 is the relevant qualification which, we respectfully submit, might be preferred. The third qualification his Honour says:
is that the question whether a “no evidence” ground falls within the expression “a decision on a question with respect to a question of law” –
and that is a misquote, that should be “matter of law” –
may depend upon the circumstances. A finding of fact made in the absence of supporting evidence is an error of law. This will usually support judicial review proceedings to the extent that an error of law is a ground for such review. Such a finding may or may not amount to or involve “a decision on a question with respect to a matter of law”. Whether it does or not may depend upon the context of that aspect of the Tribunal’s reasoning and approach.
Particularly if “approach” includes the manner by which one moves from the beginning to the end of the proceeding, as we have seen in this case, then, in our submission, it does turn upon questions as to whether or not the Tribunal regarded these matters as before the Tribunal.
FRENCH CJ: So if the Tribunal member said in published reasons, “A submission was put that there was no evidence to support conclusion X, I reject that contention and reach conclusion X”, then that would satisfy the 67(1) description for your purposes?
MR WALKER: Yes.
HAYNE J: And equally, if the Tribunal member said, “The evidence before me permits the following findings of fact A to ZZZ.” It is death by a thousand cuts, Mr Walker.
MR WALKER: It is, your Honour. I am approaching the brink. Your Honour, I think I am bound to say that that formulation permits – might get to 67(1), but if it is simply a finding of fact – it is not every argument about fact, indeed, it is probably not ordinary, at least in my experience, that one argues facts by saying there is no evidence of something. One normally accepts that there is evidence on both sides and you are arguing about what ought to be preferred and what is the better inference to be drawn, the more secure inference.
FRENCH CJ: Are we running into the risk of jurisdiction defined by accidents of expression?
MR WALKER: Indeed. On the other hand, the greater risk is jurisdiction which is not actually different in any way from an appeal by way of rehearing on all matters – on all matters – because once one has the no evidence matter, then the Supreme Court must – there is no leave requirement – the Supreme Court must entertain good, bad and indifferent challenges to the adequacy of the factual record before a Tribunal composed and conducted like this Tribunal as to whether the material before it, answering the broad description of evidence, did in law amount to evidence of fact X. That, in our submission means that there is really very little to be gained in terms of the supposed benefit evident on the face of the statute of having this Tribunal’s findings of fact by and large immune from judicial review, except, as I say, where there has been decision of a question with respect to a matter of law.
HEYDON J: The requirement, of course, either universally or at least in its standard operation, relates to attempts to appeal from judges, not tribunals.
MR WALKER: Yes.
HEYDON J: Secondly, I have a recollection that Justice McHugh propounded a theory of statutory construction to the effect that the rights of the citizen to access to the courts was not to be cutdown except by clear words. If I find that authority, you will not mind me mentioning it in my judgment, will you?
MR WALKER: Thank you, your Honour, procedural fairness is served.
HEYDON J: I take it you say that the words are clear anyway, it is not a question of some delicately poised ambiguity?
MR WALKER: Yes. As I tried this morning to put as well, it is not simply a matter of saying the words are clear enough, it is also that this is, on the face of section 67, a provision creating by definition a jurisdiction. It is not taking away a jurisdiction, that is what section 65 does, but section 67 is creating a jurisdiction, an appeal. Appeals are statutory creatures.
HEYDON J: The statute as a whole takes away jurisdiction.
MR WALKER: There is no question of it. Section 65 is very plain in that regard, so is section 22. But section 67, in my submission, ought to be seen as a right to appeal, that is, a right to approach the courts for relief which would not exist but for section 67. You ask, what has been created? Look to the definition by the words. The words palpably try to define by drawing this distinction, not always satisfactory, we accept, between law and fact, and the point I am labouring about, the no evidence argument, is that there is a danger that that attempted distinction entirely miscarries, entirely miscues as soon as one has the shuffling towards the brink by degrees that Justice Hayne has illustrated by his question to me.
In our submission, there has to be a limit. That there are borderline cases really only shows that there is a line. The fact that there is a line is in the nature of a definition. There is a line, it has to be a question on which there is a decision and it has to be a question with respect to a matter of law.
KIEFEL J: Assuming for present purposes that there is an appeal under section 67 because there is no evidence on the question of law, what do you say the Supreme Court should do on the appeal faced with, when it comes to the conclusion, that their decision is vitiated? For that reason, does it remit, and if it does remit, is there a rehearing, and if there is a rehearing, do you go back to the evidence?
MR WALKER: Can I start at the backend? Yes, section 67 makes it clear that if there is a remitter – I will come back to whether there is one – if there is remitter on that rehearing, there may be evidence in addition to and in substitution for evidence that had been at the first hearing. That has to marry up with the provision that the decision on the rehearing cannot be inconsistent with the Supreme Court.
KIEFEL J: You would say, as I understand it, that consistent with your submissions, the Supreme Court does not answer the question based upon the evidence. It identifies the error, then remits it.
MR WALKER: If the question was, is there evidence for fact X and it is held in the manner that is being debated, that that gives rise to a section 67(1) appeal, and the Supreme Court decides that there was no evidence of fact X, then the choice – it is a discretion – would arise, and if being exercised judicially, obviously a judge would be very concerned that such a case – particularly if it had been raised, as we suggest that it needs to be, explicitly at first instance – be very concerned that the looser, as it were, gets a second go. It would be difficult I would have though, to argue against the judicial exercise of the discretion to make the order which ought to have been made having corrected the error, the error found in the answer to the decision. If you find there is no evidence of fact X, then you simply record that fact X does not exist.
KIEFEL J: But, as you say, the matter is discretionary.
MR WALKER: Yes.
KIEFEL J: The court could take account of the passage of time and the way in which the evidence was dealt with between the parties as potentially creating some confusion.
MR WALKER: Yes, the interest of the administration of justice would certainly mean that those factors, and no doubt others, would be taken into account. In a particular case, it may mean that a remitter for a rehearing is appropriate. It may be that the lack of evidence is for reasons that are entirely understandable and do not, as it were, reflect well on the successful appellant.
KIEFEL J: While we are on the question of the rehearing, what do you say is the effect of the order of Justice Rothman at appeal book 610(vi), remitting the matter for determination in accordance with the reasons? I suppose in the first place that must likely hark to paragraph 171 of his Honour’s reasons where he finds there is a termination.
MR WALKER: Yes.
KIEFEL J: So is the remitter limited to some ‑ ‑ ‑
MR WALKER: To think everything that would follow, be they damages or claims under the policy or whatever, from valid termination, as opposed to invalid termination, and the insurer had made that a decisive question. There are things that the Tribunal still gets to do.
KIEFEL J: But you say that even if, on the approach that his Honour took, that point should not have been reached because his Honour was undertaking. In relation to the question of termination, his Honour was undertaking the role of the Tribunal itself.
MR WALKER: Yes.
KIEFEL J: So at some point, it should have been remitted for the termination issue to have been determined.
MR WALKER: Yes, that is right. For example, was the builder dilatory? Did defects have to be fixed?
KIEFEL J: All of that had to be determined by the Tribunal ‑ ‑ ‑
MR WALKER: They are matters of fact that have to be determined on the face of evidence.
KIEFEL J: In most events, the question for the court was if it did not determine for itself and have the matter turn solely on the question of the no evidence point, if it proceeded further, there had to be remitter.
MR WALKER: Yes. Your Honours, in relation to the no evidence point, I had already made reference to the remark by Justice Rothman, page 586, paragraph 91, line 15:
One may therefore infer, as was submitted . . . that each claim was sent.
That was the reference I made earlier. Justice Basten, pages 692 to 694, finds that Mr Turisi’s affidavit was properly resorted to – my expression. It will have been noted, of course, that although Justice Rothman at page 585, paragraph 87, a passage to which my learned friend took you, concludes that:
Reliance on the affidavit of Mr Turrisi . . . was impermissible -
there is also the observation that that is a matter of assumption that it has been done, see paragraph 88. In our submission, the approach by Justice Basten is in light of the factual matters to which I have taken your Honours this afternoon to be preferred.
In relation to what I will call the clause 24 issue to which my learned friend went, in our submission, a reading of the Tribunal’s reasons shows, for example, that rather than something being unassailable or incontrovertible, as Justice Basten held in the passages my learned friend took you to before the break, rather the Tribunal made findings against Mr Rappoport’s list of defects. These are matters of fact quintessentially
for this Tribunal, and surely not in reply, because that will be the first time it will be done, elevated into a no evidence question having arisen and having been decided.
In our submission, when somebody says of evidence that it is unassailable or incontrovertible it conceals rather than reveals the true nature of what is being said, namely, you should have accepted this evidence. That is a world away from the notion of saying there is no evidence about something. That is a spurious matter of law for there to be any question with respect to, let alone for one about which there was any decision. Nothing arose about the interpretation of clause 24 at all. It is for those reasons, in our submission, that there is nothing in those parts of the argument against us.
HAYNE J: If, contrary to your chief submission, Mr Walker, the judgment of the Court of Appeal were to be set aside, what consequential orders would follow from that?
MR WALKER: Your Honours, I do not think there is anything that would – in the event of our failure, I do not think there is anything other than restoring Justice Rothman’s orders.
HAYNE J: Very well.
MR WALKER: May it please the Court.
FRENCH CJ: Thank you, Mr Walker. Yes, Mr Gleeson.
MR GLEESON: Just a couple of points, your Honours. In relation to the last question of Justice Hayne and Justice Kiefel’s earlier related questions, that is our submission, that the sole basis of the Court of Appeal’s decision was a lack of jurisdiction. There was no additional alternative basis that a discretion miscarried under section 67(3). There being no notice of contention, Justice Rothman’s order should be reinstated. Secondly, Justice Heydon asked this morning about the delay. The answer I have ascertained is that it took 13 months for the insurer to do two things; one, to get its notice of appeal in the form it finally was in, and, secondly, to unsuccessfully challenge the notice of contention before Justice Bell. The final notice of appeal was not filed until December 2008, page 619. Thirdly, in relation to implicit decisions, could I refer the Tribunal to Custom Credit v Commercial Tribunal?
FRENCH CJ: You are not confusing us with a tribunal, I hope.
MR GLEESON: I apologise, your Honour.
HAYNE J: Good luck, Mr Gleeson.
MR GLEESON: Your Honours are still listening to my reply thus far, so I am doing well, I think. Could I refer your Honours to Custom Credit v Commercial Tribunal 32 NSWLR 489 where Chief Justice Gleeson in New South Wales at 492G referred to the fact of the decision may often:
merely be implicit in the final decision of the Tribunal.
Next, in relation to the interrelation between section 75A and the Tribunal Act, we have not found any case other than Thaina Town that I referred to this morning discussing how one reads “subject to any other Act” within section 75A(4). We simply commend Chief Justice Spigelman’s approach, the language needs to be clear because one is cutting down the powers of a court, and there is no clear language here.
FRENCH CJ: There is a discussion, I think, in Walsh v The New South Wales Law Society 198 CLR - that is about the relationship of 75A and a provision of the Legal Profession Act, but I think there is a footnote which simply talks about the range of appeals to which it may apply.
MR GLEESON: Yes, if your Honour pleases. Could we say in relation to that debate that to the extent that any process of examination of the facts was involved in this case, it was only looking at the facts through the two prisms I have mentioned this morning – on the one hand the no evidence point, on the other hand, was all the evidence one-way. Coming back to your Honour Justice Kiefel’s question, we rely upon both of those in Justice Rothman’s reasons as available to him, both no evidence and on some points the evidence being all one-way, which is how his Honour dealt with the clause 24 issue. On that question and the related question whether it is a rational form of reasoning to conclude that because there is a document on a file, even if unsigned it was delivered to a person in order to activate a substantial right under a contract, an inference we say is simply unavailable.
On those two questions, could I just remind the Court in Hocking v Bell 71 CLR 430 at 441 to 442, there is a useful statement by Chief Justice Latham of two things. One is a proposition which many practitioners get the wrong way around. If the evidence is a mere scintilla that is not evidence from which a conclusion is available to be drawn. It needs to be more than that, and Mr Walker’s line of reasoning, I suggest, is at best a scintilla. Secondly, in that passage the Chief Justice explains that where the evidence is all one-way, then the jury’s function no longer applies, and as a matter of law, the Court can give the result. That we submit is appropriate to apply in this case.
Your Honours, there is one matter Mr Walker raised in relation to section 67(2) which is whether it has any role to play in the argument. It hinges on the word “made” – the appeal must be “made” in accordance with the rules of, in our case, the Supreme Court and today the District Court.
In our reply submissions at paragraph 17 we have noted that the District Court is governed by the UCPR which effectively replicates section 75A. We have found one authority of this Court which would entitle one to read the words “the appeal is to be made” as including such provisions, that is including the provisions which we see now in the District Court and we previously saw in section 75A. Could I simply give that authority – Da Costa v Cockburn Salvage (1970) 124 CLR 192 at 208. I provided Mr Walker with a copy of that case earlier.
Next, in relation to the scope of section 67(3)(a) we would urge those expansive words “orders in the proceedings”, which did not receive much attention in the respondent’s argument. Your Honours, stepping back a little, in the end the respondent’s argument tends towards the conclusion that there are a range of errors of law which are not reviewable by any process under the scheme of this Act. That is a conclusion the court would not readily come to unless the language was clear.
In summary, on the no evidence ground, the respondent said it preferred Justice Allsop’s comments at paragraph 27. Even in that paragraph Justice Allsop assumed that judicial review could be available, in some cases in no evidence grounds. That would appear to conflict with section 65(1) which removes all forms of relief characteristic of judicial review, save in the two areas mentioned, so that the proposition that no evidence can never be reviewed by a court is a surprising one and the place to review it, we submit, is section 67.
Secondly, in relation to section 49, the answer to the dilemma Mr Walker raised is that that is the very sort of matter to be dealt with under section 67. Thirdly, in cases where the Tribunal, through error, fails to properly identify a construction issue, on the respondent’s approach there is no basis to review that in a court. In terms of the final few points, Mr Walker referred you to section 22 as indicating a first choice provision thereby indicating that, depending upon speed, the full exercise of judicial power in the court may be available in such a matter. We would also refer to section 23 which provides for transfer of the matter to the court.
It would be surprising that in those circumstances where it is available for the court to exercise its full judicial power one would reach the opposite conclusion in a section 67 appeal where it seems the Tribunal is allowed to err in law without being subject to any form of review.
FRENCH CJ: …..a transfer, for example, of a law‑heavy case, if I can put it that way.
MR GLEESON: Exactly, and perhaps a case like the present with some significant issues of difficulty at various points along the way might have been an appropriate case. So it is not surprising that the court might have to, in some sense, grapple with what can be drawn from the facts in a section 67 appeal. We would submit that there are rule of law issues if one takes the respondent’s argument to its extreme, bearing in mind the vast jurisdiction this Tribunal has over the affairs of citizens in New South Wales.
Your Honours, in relation to Mr Turisi’s affidavit, the ground is covered on both sides. At the end of the day it was made perfectly clear on 10 November, if anyone wanted to rely upon material on the separate question, they had to identify it and if it was a witness, make the person available for cross‑examination. It never occurred. The appellants took the point in the clearest of terms and the respondents responded with silence. In those circumstances, this is not just a denial of procedural fairness, it is a more fundamental error of a tribunal proceeding to determine a matter on material that it is not permitted to have regard to. May it please the Court, they are the matters we wish to raise in reply.
FRENCH CJ: Thank you, Mr Gleeson. The Court will reserve its decision. The Court adjourns until 10.15 tomorrow morning.
AT 3.59 PM THE MATTER WAS ADJOURNED
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