Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited

[2015] NSWSC 289

Supreme Court

New South Wales

Medium Neutral Citation:	Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289
Hearing dates:	27 February 2015
Decision date:	25 March 2015
Jurisdiction:	Equity Division
Before:	White J
Decision:	Refer to para [112] of judgment
Catchwords:	EQUITABLE REMEDIES – relief against forfeiture – whether claim for relief against forfeiture is a “defence” within s 6 of the Law Reform (Law and Equity) Act 1972 (NSW) – whether and to what extent the Civil and Administrative Tribunal has power to award relief analogous to equitable relief against forfeiture pursuant to ss 20 and 21 of the Agricultural Tenancies Act 1990 (NSW) – held that the Tribunal can give effect to a defence to a claim for possession that tenant under an agricultural lease is entitled to relief against forfeiture pursuant to s 6 of the Law Reform (Law and Equity) Act and that the Tribunal has power under ss 20(1)(b) and 21(1)(a) of the Agricultural Tenancies Act to make orders in the nature of relief against forfeiture COURTS AND TRIBUNALS – jurisdiction of Supreme Court and Civil and Administrative Tribunal – plaintiff and defendant are lessee and lessor respectively under an agricultural tenancy – defendant commenced proceedings in the Tribunal seeking possession of the land – plaintiff sought to have Tribunal proceedings transferred to Supreme Court – plaintiff then commenced proceedings in Supreme Court seeking relief against forfeiture – application for transfer dismissed by Tribunal – appeal dismissed by Appeal Panel – plaintiff sought leave to appeal to Supreme Court – defendant applied to have proceedings for relief against forfeiture dismissed or stayed – whether Supreme Court has jurisdiction to hear claim for relief against forfeiture where the Tribunal proceedings were commenced before the Supreme Court proceedings – whether there was an “issue arising under the application was the subject of a dispute in proceedings pending before a court” within clause 5(3) of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW) – held, dismissing the claim for relief against forfeiture and staying the claim for damages: where a claim for possession of land is made in the Tribunal and subsequent Supreme Court proceedings are commenced seeking relief against forfeiture, the Supreme Court has no jurisdiction in relation to that issue
Legislation Cited:	Agricultural Tenancies Act 1990 (NSW) Building and Construction Industry Security of Payment Act 1999 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) County Courts Act 1959 (UK) Interpretation Act 1987 (NSW) Law Reform (Law and Equity) Act 1972 (NSW) Residential Tenancies Act 1987 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Advance Earthmovers Pty Ltd v Fubew Pty Ltd [2009] NSWCA 337 Attorney-General (NSW) v X [2000] NSWCA 199; (2000) 49 NSWLR 653 Australian Executor Trustees Limited v Steak Plains Olive Farm Pty Limited [2014] NSWCAT 248 Click here to enter text.Australian Executor Trustees Ltd v Steak Plains Olive Farm Pty Ltd [2014] NSWCATCD 143 Be Financial Pty Ltd v Das [2012] NSWCA 164 Boyd v Halstead; ex parte Halstead [1985] 2 Qd R 249 Bushby v Dixon Holmes du Pont Pty Ltd [2010] NSWSC 234; (2010) 78 NSWLR 111 Cachia v Isaacs (1985) 3 NSWLR 366 Cohen-Hallaleh v Cyril Rosenbaum Synagogue Pty Ltd [2003] Craig v South Australia (1995) 184 CLR 163 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 Ken Wolf Real Estate Pty Ltd v O’Halloran [2012] NSWSC 993 Kingswood Estate Co Ltd v Anderson [1963] 2 QB 169 Rushton v Smith [1976] QB 480 Lambidis v Commissioner of Police (1995) 37 NSWLR 320 Tiufino v Warland [2000] NSWCA 110; (2000) 50 NSWLR 104 Morris v Riverwild Management Pty Ltd [2011] VSCA 283; (2011) 38 VR 103 Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146; (2003) 57 NSWLR 282 Permanent Mortgages Pty Ltd v Garton [2008] NSWSC 497 teak Plains Olive Farm Pty Limited v Australian Executor Trustees Limited [2014] NSWCATAP 85 The Age Co Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; (2006) 66 NSWLR 77 Zavodnyik v Alex Constructions Pty Ltd [2005] NSWCA 438; (2005) 67 NSWLR 457
Texts Cited:	R P Meagher, J D Heydon & M Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies, 4th ed (2002), Chatswood, LexisNexis Butterworths Law Reform Commission of New South Wales on Law and Equity ([1971] NSWLRC 13)
Category:	Procedural and other rulings
Parties:	Steak Plains Olive Farm Pty Ltd (Plaintiff) Australian Executor Trustees Limited (Defendant)
Representation:	Counsel: E Holmes (Plaintiff) J Stoljar SC with I Archibald (Defendant) Solicitors: Bradbury Legal (Plaintiff) Sparke Helmore (Defendant)
File Number(s):	2014/176409; 2014/358386

Judgment

1. HIS HONOUR: The parties are in dispute about an agricultural lease of a farm called “Steak Plains” near Hillston. The parties entered into a lease for a term of 18 years that commenced on 1 October 2012. The defendant, (Australian Executor Trustees Limited) (“AET”) is the lessor. The plaintiff, Steak Plains Olive Farm Pty Ltd (“SPOF”) is the lessee. The permitted use of the property is for the growing of olives. There is an olive grove on the property.

2. On 12 February 2014 AET commenced proceedings in the NSW Civil and Administrative Tribunal (“the Tribunal”) against SPOF seeking orders under the Agricultural Tenancies Act 1990 (NSW) for possession of the farm and compensation for alleged breaches of the lease and a related agreement.

3. On 10 June 2014 SPOF filed an application in the Tribunal seeking orders that the proceedings in the Tribunal be transferred to this Court.

4. On 13 June 2004 SPOF filed a summons in the Equity Division of this Court seeking a declaration that AET had not validly terminated the lease, a declaration that it was entitled to remain in possession of the property (there is a typographical error in the summons that refers to the wrong party as being entitled to remain in possession), an order restraining AET from relying upon the notice of termination of the lease, an order restraining AET from taking possession of the property, and in the alternative an order for relief against forfeiture and consequential orders restraining AET from relying on the notice to terminate the lease and taking possession of the property. The summons also included a claim for damages. These are proceedings 2014/176409.

5. The Tribunal refused to transfer the Tribunal proceedings to this Court. SPOF seeks to reverse that decision. AET seeks the dismissal or stay of SPOF’s proceedings in this Court. The applications raise issues concerning the Tribunal’s jurisdiction to entertain a defence by a tenant under an agricultural lease to a claim for possession by seeking relief against forfeiture and concerning its jurisdiction to grant statutory remedies to give effect to such a defence. The applications also raise an issue whether this Court lacks jurisdiction to deal with all or part of SPOF’s proceeding because AET had commenced proceedings in the Tribunal before SPOF brought proceedings in this Court.

Procedural history

6. In the proceedings in the Tribunal SPOF initially pleaded that it should be granted relief against forfeiture as a defence to AET’s claim. AET accepted that the Tribunal had jurisdiction to determine a claim for relief against forfeiture of the lease, but SPOF advised the Tribunal on 30 May 2014 that it was counsel’s view that the Tribunal did not have power to grant such equitable relief. Hence it commenced proceedings in this Court and applied for the transfer of the Tribunal proceedings to this Court.

7. On 13 August 2014 the Tribunal (Mr M Harrowell, Principal Member) dismissed the application for transfer (Australian Executor Trustees Ltd v Steak Plains Olive Farm Pty Ltd [2014] NSWCATCD 143). The learned Principal Member held in substance that the Tribunal did not have power to grant an equitable remedy to relieve against forfeiture of the lease, but that its statutory powers were sufficient to enable it to resolve the dispute if it were determined that SPOF should be relieved against forfeiture of the lease. The learned Principal Member considered that to transfer the proceedings in the Tribunal to the Supreme Court would be inconsistent with the guiding principal in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) that the Tribunal act to ensure the just, quick and cheap resolution of the real issues in the dispute. The proceedings in the Tribunal were ready for final hearing, or could be made ready shortly. If the proceedings were transferred to the Supreme Court there would be delay and additional costs, due, in part, to the parties having to prepare evidence in a different form, (the Tribunal not being bound by the rules of evidence).

8. On 10 September 2014 SPOF filed a notice of internal appeal to the Appeal Panel of the Tribunal against the Principal Member’s decision of 13 August 2014 and additionally sought leave to appeal from that decision.

9. On 15 October 2014 SPOF filed points of defence to amended points of claim that had been filed by AET. In its points of defence of 15 October 2014 SPOF deleted the paragraph that had appeared in its previous pleading in which it claimed that it should be granted relief against forfeiture.

10. The application to the Appeal Panel was heard on 7 November 2014. On 17 November 2014 the Appeal Panel (the Hon DA Cowdroy and S Higgins, Principal Members) dismissed the appeal (save as to a question of costs) (Steak Plains Olive Farm Pty Limited v Australian Executor Trustees Limited [2014] NSWCATAP 85).

11. In the Supreme Court proceedings the Registrar had ordered that the proceeding continue on pleadings. On 21 November 2014 SPOF filed its statement of claim in which, for the first time, it gave particulars of the damages it claims as a result of breaches of the lease that it alleges were committed by AET.

12. On 27 November 2014 Mr Harrowell made orders in the Tribunal for the Tribunal proceeding to be readied for hearing, and fixed the proceeding for hearing for three days commencing on 16 February 2015. On the same day SPOF made a second application to Mr Harrowell for the proceedings to be transferred to the Supreme Court. In support of the second application SPOF submitted that the damages claimed in the Supreme Court were well in excess of the jurisdictional limit of the Tribunal of $500,000 and that the proceedings should be transferred because the Supreme Court was the only forum in which all of the issues both parties sought to raise could be determined as the Tribunal did not have jurisdiction to hear SPOF’s claim for equitable relief against forfeiture or for damages in excess of $500,000.

13. On 28 November 2014 AET filed a notice of motion in the proceedings in this Court seeking orders that SPOF’s claims for relief be dismissed or stayed.

14. On 5 December 2014 SPOF filed a summons in this Court in proceedings 2014/358386 purporting to appeal or seeking leave to appeal from the Appeal Panel’s decision of 17 November 2014.

15. On 24 December 2014 Mr Harrowell dismissed the second application for transfer (Australian Executor Trustees Limited v Steak Plains Olive Farm Pty Limited [2014] NSWCAT 248). There was no appeal to the Apeal Panel from the second decision because an application was pending in this Court from the Appeal Panel’s decision on the first appeal. Mr Harrowell also dismissed an application SPOF had made for a stay of the proceedings in the Tribunal.

16. On 16 January 2015 SPOF filed a notice of motion in proceedings 2014/358386, an amended version of which was filed on 5 February 2015, in which SPOF sought an injunction restraining the Tribunal from hearing and/or determining the proceedings before it until the Supreme Court proceedings were determined.

17. On 11 February 2015 Button J stayed the proceedings in the Tribunal that were due to commence on 16 February 2015 until the hearing of SPOF’s application for leave to appeal from the Appeal Panel’s decision of 17 November 2014.

18. SPOF’s application for leave to appeal from the Appeal Panel’s decision was heard on the basis that if leave to appeal were given the appeal would also be decided. The application for leave to appeal was also heard concurrently with AET’s application for the dismissal or stay of SPOF’s claims.

Leave to appeal on questions of law

19. SPOF’s application for leave to appeal from the decision of the Appeal Panel is brought pursuant to s 83(1) of the Civil and Administrative Tribunal Act. Section 83(1) provides:

“(1)   A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.”

20. The appeal for which leave may be given is an appeal “on a question of law”. The question or questions of law is or are the subject matter of the appeal (Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [3]-[6], [22] and cases there referred to). SPOF’s summons seeking leave to appeal did not identify such questions. Pursuant to a direction I made in chambers that SPOF specify what is the question of law, or what are the questions of law, that is or are the subject matter of the appeal for which leave is sought, SPOF identified nine questions which are dealt with below.

21. In approaching the question of leave, I apply the principles summarised by Basten JA in Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[38] and by Bathurst CJ in The Age Co Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 at [13]. To quote Bathurst CJ in the latter case:

“Generally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable.”

22. Only the eighth question identified by SPOF raises a matter of principle or public importance. No error leading to even arguable injustice is raised by the other questions.

First question

23. The first question of law on which SPOF sought leave to appeal was in substance:

1.   Whether SPOF was denied procedural fairness by the Appeal Panel because the Appeal Panel allegedly ignored one of four “overarching grounds of appeal”, being that, to the extent the Principal Member was right in taking into account the extent to which the Tribunal could grant remedies to relieve against forfeiture, he erred in the manner in which he did so.

24. Under s 80(2) of the Civil and Administrative Tribunal Act an internal appeal to the Appeal Panel could be made with the leave of the Appeal Panel in the case of an interlocutory decision of the Tribunal at first instance. In the case of any other kind of decision, including an “ancillary decision”, which is defined in the Act to include a decision concerning whether the Tribunal has jurisdiction to deal with a matter, an appeal lies as of right on a question of law, or with leave of the Appeal Panel on any other grounds. The Appeal Panel noted that leave to appeal would not have been opposed if it had been required ([13]). It did not require SPOF to identify specific questions of law. SPOF’s notice of appeal to the Appeal Panel alleged that:

“The Principal Member erred in:

failing to hold that the correct procedure, in the event the respondent was successful in respect of its application, was the postponement of relief pending an application by the appellant to the Supreme Court;

holding that the question of relief against forfeiture is ‘a dispute arising from, or relating to, an agreement creating a tenancy or any other dispute (not being a dispute referred to in paragraph (a)) arising from, or relating to, a tenancy’;

finding that the Tribunal has the power to make orders to resolve a dispute in consequence of a determination that Steak Farms should be relieved against forfeiture;

holding, if and to the extent he so held, that section 21(1)(a) of the Agricultural Tenancies Act 1990 gives the Tribunal the power

(a) to grant relief against forfeiture; and/or

(b) to make orders equivalent to providing relief against forfeiture.

holding, if and to the extent he so held, that section 21(1)(d) of the Agricultural Tenancies Act 1990, together with section 21(a) of that Act, gives the Tribunal the power

(a) to grant relief against forfeiture; and/or

(b) to make orders equivalent to providing relief against forfeiture;

holding that, in any event, and generally, an order to transfer the proceedings to the Supreme Court should not be made; and

ordering the appellant to pay the respondent’s costs.”

25. SPOF’s written submissions provided in advance of the hearing before the Appeal Panel had two principal themes. The first was that following the Principal Member’s determination that the Tribunal did not have jurisdiction to grant equitable remedies to provide relief against forfeiture, SPOF would press its application for such relief in the Supreme Court. SPOF also submitted that it intended to bring a claim for damages in the Supreme Court for an amount exceeding $500,000. Its first and principal submission was that, because there were proceedings in the Supreme Court in which it sought relief, the Tribunal could not give (namely, equitable relief against forfeiture and damages in excess of $500,000) the proceedings in the Tribunal should be transferred to the Supreme Court which would be the only forum that would have jurisdiction to deal with all issues.

26. The second principal ground in its written submissions was that the Principal Member was wrong in finding that the Tribunal could deal with a defence raising an entitlement to relief against forfeiture using the powers in s 21 of the Agricultural Tenancies Act.

27. At the hearing before the Appeal Panel counsel for SPOF concentrated on the first ground. Thus in oral submissions counsel for SPOF told the Appeal Panel that it was “not even an issue” whether the Tribunal had the power to grant relief against forfeiture. Counsel submitted that SPOF was “seeking relief against forfeiture come what may in the Supreme Court as well as pursuing its claim for damages. So left in this Tribunal is my learned friend’s client’s claim for damages and various other orders.”

28. At least at times in oral address before the Appeal Panel, counsel did not abandon the ground that the Principal Member erred in finding that the Tribunal had statutory powers that could provide just relief if SPOF were entitled to relief against forfeiture. Thus, counsel said:

“In the alternative as the next ground it is our submission that the Tribunal does not have power to grant relief against forfeiture but we say we’re not asking the Tribunal to exercise it in any event …

… and in the other grounds of appeal, we say the learned member erred in finding that this Tribunal did have the power to grant relief against forfeiture. … the difficulty we have is that we’re not asking this Tribunal to grant relief against forfeiture.”

29. The Appeal Panel sought to understand what was the issue that was being presented for its consideration. Mr Cowdroy OAM, one of the two Principal Member on the Appeal Panel, said that he thought that the pivotal issue was whether the Tribunal Member was wrong not to transfer the proceedings because of his finding that the Tribunal had the power to make orders in the nature of relief against forfeiture. He said “I thought the whole thrust of the submissions came down to the question of whether this Tribunal had power to grant relief against forfeiture.” In response counsel for SPOF said that whilst the Principal Member had focused his reasons on relief against forfeiture, “That’s not the application”. Counsel said that:

“the question of the [T]ribunal’s jurisdiction to determine it we say is of no consequence, is not important. We have grounds of appeal that deal with that but they are I guess formulated and I’d hope the written submissions set it out like this they’re in the alternative to the principal submission which is that there is no claim for relief against forfeiture in the [T]ribunal, it is in the Supreme Court.”

30. After considerable debate in which counsel for SPOF said that even if the Tribunal decided that the proceedings should remain in the Tribunal, SPOF would never ask the Tribunal for relief against forfeiture it was put to counsel for SPOF by Mr Cowdroy that if that relief were not to be sought it was not relevant whether the Tribunal had jurisdiction to grant such relief. As I read the transcript of oral submissions whilst counsel for SPOF at certain points did not abandon the appeal on that ground, the debate appears to have concluded with the following exchange:

“PRINCIPAL MEMBER COWDROY: Can I clarify it, can I get unequivocal acknowledgement that that’s the issue you want raised because I don’t want to go off the bench and make a decision which doesn’t raise the issue you want.

HOLMES:   I’m having trouble, what I’m having trouble with is the problem with it [sic] being in the alternative because we are not asking this Tribunal to decide whether or not it has jurisdiction to deal with relief against forfeiture because we are not asking this Tribunal to exercise jurisdiction to relie[ve] against forfeiture.”

31. In its reasons the Appeal Panel said (at [14]):

“[14]    Counsel for the appellant refined the issues for determination to essentially claim that the Tribunal Member erred in the exercise of his discretion, and wrongly exercised his discretion by refusing the application. The errors are said to be three, namely:

(a)    Firstly, that the Tribunal Member ought to have concluded that it was appropriate to order the transfer, taking into consideration the fact that the Supreme Court has jurisdiction to determine all the issues arising in the application; that such course would have avoided waste of time, cost, and duplication;

(b)    The appellant submits that the Principal [Tribunal] Member should not have given lengthy consideration to the question of whether the Tribunal could grant relief against forfeiture, and gave undue weight to such issue;

(c)    It was not a relevant factor that the Tribunal may have had power to deal with all issues arising in the proceedings.”

32. SPOF complains that this was a denial of procedural fairness because it omitted what was called the fourth “overarching ground”, namely that the Principal Member erred in his conclusion as to the width of the Tribunal’s statutory powers to provide a just remedy if SPOF were entitled in equity to relief against forfeiture.

33. But it is clear that there was no denial of procedural fairness. SPOF had “refined the issues” so that they did not include what appeared from the grounds of appeal to the Appeal Panel and from SPOF’s written submissions to the Appeal Panel to be the principal issue. Nonetheless, the Appeal Panel went on to consider that issue. It noted (at [20]) that the question whether the Tribunal could grant relief against forfeiture was the essential reason relied upon by SPOF before Mr Harrowell as justifying an order for transfer. The Appeal Panel approved of the conclusion of the Principal Member that the power to resolve disputes provided by ss 20 and 21 of the Agricultural Tenancies Act invested the Tribunal with power to resolve the present dispute and to grant necessary relief in favour of SPOF if it were entitled to it (at [28] and [29]).

34. The claim of denial of procedural fairness is so weak that it does not justify the grant of leave.

Second question

35. The second question of law identified by counsel for SPOF was in substance:

2.   Whether the Appeal Panel failed to consider or ignored a relevant consideration, namely that the Principal Member failed to consider issues such as wasted costs, duplication and the impact on the just administration of justice of the two hearings progressing separately.

36. It was implicit in SPOF’s submissions to the Tribunal, and in this Court, that this Court does have jurisdiction to decide SPOF’s claim for equitable relief against forfeiture notwithstanding that AET instituted proceedings in the Tribunal for possession of the property before the claim for relief against forfeiture was filed in this Court. That assumption was not the subject of any debate before the Tribunal either before Mr Harrowell or before the Appeal Panel. I deal with it later in these reasons in dealing with AET’s application to dismiss or stay the proceedings in this Court.

37. Having concluded that the Tribunal had jurisdiction to determine a dispute about whether a party to an agricultural tenancy should be relieved against forfeiture and that it had statutory powers to resolve a dispute in consequence of such a determination, Mr Harrowell said:

“[93]    Notwithstanding this conclusion, should the proceedings be transferred to the Supreme Court because the respondent has commenced proceedings seeking relief in the Court?

[94]    The fact that a party asserting an entitlement to relief subsequently commences proceedings in a court does not deprive the Tribunal of jurisdiction. No provision of the Act suggests such consequence.

[95] An object of the Act is to provide a mechanism for settling disputes in the Tribunal. Section 36 of the NCAT Act provides the Tribunal is to apply the ‘guiding principle’ in determining any application, namely to ensure the quick, cheap and just resolution of the real issues in dispute. Parties and their representatives have a duty to assist the Tribunal: section 36(3) NCAT Act.

[96]    No submission was made that if the Tribunal has jurisdiction, it is not a convenient forum. No reason has been put forward as to why the applicant’s choice of forum is otherwise inappropriate.

[97]    Evidence has already been filed and any transfer to the Supreme Court will cause a waste of cost, in part due to the parties having to prepare evidence in a different form. The proceedings are otherwise at a stage where they are ready for final hearing, or could be made ready shortly.

[98]    Accordingly the Tribunal is not satisfied an order to transfer the proceedings to the Supreme Court should be made and the application should be dismissed.”

38. SPOF’s submission is that the Principal Member did not explicitly consider such matters as that a decision not to transfer the Tribunal proceedings would mean that there would be two separate hearings, one in the Tribunal and one in the Supreme Court; that there would be a duplication of the evidence adduced in each proceeding in relation to the alleged breaches by SPOF and AET; that it was likely that there would be concurrent findings of fact in relation to those matters; and there could be conflicting conclusions as to SPOF’s entitlement to relief against forfeiture if the breaches alleged by AET were established.

39. It is true that those matters were not specifically referred to in the reasons of the Principal Member or the Appeal Panel. However, that is not a sufficient basis for the grant of leave to appeal on this question. It is not reasonably clear that any injustice has occurred by reason of the Tribunal’s not having explicitly referred to those matters, or that the result would have been different if the Tribunal had explicitly referred to those matters. Assuming, without yet deciding, that this Court does have jurisdiction to entertain the claim for relief against forfeiture notwithstanding the commencement of proceedings in the Tribunal, it does not follow that there would be a duplication of the hearing on questions of breach and relief against forfeiture, or a risk of inconsistent concurrent findings on those questions if the matter continued in the Tribunal. The proceedings in the Tribunal were well advanced. If, as the Tribunal found, it had jurisdiction to determine the dispute about forfeiture of the lease and to grant appropriate statutory remedies to resolve the dispute in consequence of such a determination, then there would be little scope for such duplication. The findings of the Tribunal would give rise to issue estoppels in respect of those issues which were essential for the Tribunal’s determination (Cachia v Isaacs (1985) 3 NSWLR 366 at 368 per Kirby P, 383 per Hope JA; Lambidis v Commissioner of Police (1995) 37 NSWLR 320 at 323-324 per Kirby P, 332-333 per Priestley JA; Tiufino v Warland [2000] NSWCA 110; (2000) 50 NSWLR 104 at [34]; Morris v Riverwild Management Pty Ltd [2011] VSCA 283; (2011) 38 VR 103 at [84]-[85] per Weinberg JA; Ken Wolf Real Estate Pty Ltd v O’Halloran [2012] NSWSC 993 at [55]; Zavodnyik v Alex Constructions Pty Ltd [2005] NSWCA 438; (2005) 67 NSWLR 457 at [25] (a case of cause of action estoppel)). It is not shown that SPOF would suffer any injustice if the proceedings in this Court and those in the Tribunal were not heard together. It might suffer a disadvantage if, because of its refusal to pursue a claim for relief against forfeiture in the Tribunal, it was not permitted to raise in the Tribunal the matters that it would seek to raise by way of relief against forfeiture. But if that were so, it would only be because of a tactical decision it made as to how it would advance its claims.

40. No question was raised before the Principal Member on the hearing on 18 June 2014 that SPOF had a claim for damages that exceeded the Tribunal’s jurisdictional limit. Hence the Principal Member could not have failed to consider issues of duplication that might arise from SPOF’s claim for damages in this Court. The Appeal Panel could not have erred in failing to consider whether the Principal Member failed to consider issues of duplication arising from SPOF’s claim for damages.

Third and fourth questions

41. The third and fourth questions of law identified by counsel for SPOF were in substance:

3.   Whether there was no evidence to support a finding made by the Appeal Panel that the risk of duplication of findings was not raised before the Principal Member;

4.   Whether SPOF was denied procedural fairness by the Appeal Panel’s finding that the risk of duplication of findings was not raised before the Tribunal Member;

42. The third and fourth questions of law relate to a statement made by the Appeal Panel that:

“[19]    As to the duplication of findings, we are informed that this issue was not raised before the Tribunal Member. In any event, it is obvious from the above that the Tribunal considered that the Tribunal would be the most convenient forum.”

43. SPOF says that the issue of duplication of findings was raised before the Principal Member. The Appeal Panel did not make a finding to the contrary. In any event, for the reasons given in relation to the second question, it would not be appropriate to grant leave to appeal in respect of these asserted questions of law.

Question 5

44. The fifth asserted question of law identified by counsel for SPOF was:

5.    “Did the Appeal Panel err in law by making a finding of fact with no evidential basis or which constitutes an erroneous finding or mistaken conclusion not open to it on the face of the NCAT [f]irst [i]nstance [d]ecision?”

45. Question 5 relates to ground 4 of the summons seeking leave to appeal. That ground asserts that:

“The Appeal Panel erred in law in finding that ‘it is apparent that [the Tribunal Member] carefully considered that the Tribunal was the appropriate forum for the determination of the dispute’ and that ‘it is obvious ... that the Tribunal considered that the Tribunal would be the most convenient forum.”

46. The ground of appeal also asserts that there was no reasonable basis for that conclusion.

47. SPOF submits that the Appeal Panel ignored the fact that the refusal to transfer the proceedings would lead to two sets of proceedings. In support of this ground counsel submitted that there was nothing on the face of the reasons of the Principal Member that made it apparent that he had carefully considered that the Tribunal was the appropriate forum for the determination of the dispute, but rather focused on whether the Tribunal could grant what he regarded as satisfactory relief in respect of relief against forfeiture.

48. Except in so far as SPOF asserts there was no evidence for the Tribunal’s finding, this ground does not raise a question of law. As the Principal Member stated at [94], the fact that proceedings were pending in a superior court did not deprive the Tribunal of jurisdiction to determine AET’s claim (see generally Boyd v Halstead; ex parte Halstead [1985] 2 Qd R 249 at 252; Tiufino v Warland at [10]-[14]). The balancing of interests in the exercise of a discretion whether to transfer proceedings, as distinct from a decision-maker’s exercising the discretion on a wrong principle, or by reference to irrelevant matters, or without consideration of a matter the decision-maker was required to consider, does not involve a question of law (Attorney-General (NSW) v X [2000] NSWCA 199; (2000) 49 NSWLR 653 at [55] per Spigelman CJ).

49. The assertion that there was no evidence to support the Tribunal’s finding is manifestly groundless.

50. In any event, for the reasons above it would not be appropriate to grant leave in respect of such a question which substantially repeats questions 2, 3 and 4.

Question 6

51. The sixth question of law identified by counsel for SPOF was in substance:

6.   Whether the Appeal Panel failed to take into account the fact that two sets of proceedings would result from a failure to transfer the proceedings in the Tribunal to the Supreme Court.

52. Question 6 is repetitious of the earlier questions.

Question 7

53. The seventh question of law identified by counsel for SPOF was in substance:

7.   Whether the Appeal Panel failed to take into account “the fact” that SPOF was entitled to seek equitable remedies for relief against forfeiture, which remedies the Tribunal accepted were not available in the Tribunal, and/or in implicitly misdirecting itself that SPOF could be prevented from pursuing equitable remedies for its equitable claim for relief against forfeiture in a court with equitable jurisdiction.

54. Question 7 contains two questions. The first is repetitious of the earlier questions. The second question does not arise. Neither the Principal Member nor the Appeal Panel made an implicit direction that SPOF could be prevented from pursuing equitable remedies for its equitable claim for relief against forfeiture in a court with equitable jurisdiction. There is a real question, not addressed before the Tribunal or in SPOF’s written submissions, as to whether the Supreme Court does have jurisdiction to entertain the claim for equitable remedies for relief against forfeiture. But irrespective of that question, the Tribunal did not suggest that SPOF could be prevented from pursuing such remedies. Rather, it held that it had jurisdiction to decide whether SPOF would be entitled to relief against forfeiture and in that event to grant appropriate statutory remedies. SPOF said that it would not seek such relief in the Tribunal. But the Tribunal did not attempt to prevent it from seeking such relief either before the Tribunal or elsewhere.

Question 8

55. The eighth question of law identified by counsel for SPOF was in substance:

8. Whether the Appeal Panel erred in holding that the power to resolve disputes provided by ss 20 and 21 of the Agricultural Tenancies Act 1990 invested the Tribunal with the power to resolve the parties’ dispute and to grant the necessary relief.

56. This question is to be understood as referring to the parties’ dispute as to whether an order for possession should be made in favour of AET and whether SPOF was entitled to relief against forfeiture. It was that dispute that was the subject of Mr Harrowell’s decision. The dispute as to whether SPOF is entitled to the damages it has claimed in this Court did not arise at that time.

57. The eighth question raises one of two substantial issues in the proceeding. The issue is of public importance. AET submitted that leave should not be given in relation to this question because of the way the question was addressed by SPOF in its oral submissions before the Appeal Panel. It is likely that the Appeal Panel dealt with this ground more briefly than it would otherwise have done had the ground been the principal focus of the appeal. Nonetheless, the Appeal Panel did deal with the question and I think there should be a grant of leave to appeal in respect of it, having regard to its importance for the jurisdiction of the Tribunal in dealing with disputes under the Agriculture Tenancies Act.

Question 9

58. The ninth question of law identified by counsel for SPOF was:

9.   Whether the Appeal Panel erred in law in dismissing the appeal in respect of the seventh ground of appeal contained in SPOF’s notice of appeal to the Tribunal (which related to costs) when that ground of appeal was upheld.

59. This asserted question of law is captious. SPOF’s grounds of appeal to the Appeal Panel included an appeal against an adverse costs order made against it by the Principal Member. The Appeal Panel considered that question and upheld that ground of appeal (at [34]-[37]). The orders of the Appeal Panel included:

“(1)    The appeal be dismissed;

(2)    Order number 2 made on 13 August 2014 that the appellant pay the applicant’s costs of the application be set aside”.

60. Clearly, order 1 is to be read as subject to order 2. So read, there was no error in order 1 by reason of the making of order 2.

Conclusion on grant of leave

61. For these reasons there should be a grant of leave to SPOF to appeal on the following question of law, namely whether the Appeal Panel erred in holding that ss 20 and 21 of the Agricultural Tenancies Act invested the Tribunal with power to resolve the dispute and to grant the necessary relief. Leave to appeal in respect of the other questions should be refused.

The eighth question: Jurisdiction of the Tribunal

62. The long title to the Agricultural Tenancies Act is that it is “An Act to regulate the rights of agricultural landowners, tenants and sharefarmers and to provide for the resolution of disputes between them …”.

63. The objects of the Act include:

“to provide a mechanism for settling disputes between parties to agricultural tenancies through applications to the Civil and Administrative Tribunal.” (s 3(c))

64. Part 2 of the Agricultural Tenancies Act stipulates terms of agricultural tenancy agreements. The terms required by the statute include the right of a tenant to carry out certain kinds of improvements as specified in schedule 1 to the Act without the consent of the owner and the right of a tenant to carry out other improvements without the owner’s consent if the Tribunal has first determined that the improvements are suitable and desirable in the circumstances (s 7). The Act requires payment of fair compensation by the owner to a tenant for improvements carried out by the tenant (and vice-versa) and provides that the Tribunal can determine the amount of such compensation (ss 6, 7, 8, 9, 15-17 and 21(1)(f)). Section 18 provides that the owner must pay fair compensation to the tenant if there has been a general improvement to the farm by the adoption of better farm management by the tenant that is normally practised on farms of the same character and in the same neighbourhood as the farm concerned, or than is required by any agreement (s 18(1)). These are matters that could be relevant if a tenant claimed relief against forfeiture and provide some indication that the Tribunal is to have power to determine such an issue.

65. Part 4 is headed “Dispute resolution and remedies”. It relevantly provides:

“20Applications to Tribunal relating to disputes

(1)    An owner or tenant may apply to the Tribunal for determination of any of the following:

(a)    a dispute relating to a right or obligation conferred by this Act,

(b)    a dispute arising from, or relating to, an agreement creating a tenancy or any other dispute (not being a dispute referred to in paragraph (a)) arising from, or relating to, a tenancy,

(c)    any other matter that may be determined by the Tribunal under this Act.

(2)    An application to the Tribunal must be made not later than 3 months after the relevant dispute or other matter arises or the end of the tenancy, whichever is the later.

21Orders that may be made by Tribunal

(1)    The Tribunal may, on application by an owner or tenant under this Act, or in any proceedings under this Act, make one or more of the following orders:

(a)    an order giving effect to a determination that may be made by the Tribunal under this Act,

(b)    an order that a record of the condition of a matter under section 12 must be amended or is not required to be amended,

(c)    an order that restrains any action in breach of a term of a tenancy,

(d)    an order that requires an action in performance of a tenancy,

(e)    an order for the payment of an amount of money,

(f)    an order as to compensation,

(g)    an order that an owner or tenant perform such work or take such other steps as the order specifies to remedy a breach of a term of the tenancy,

(h)    an order directing an owner, an owner’s agent or a tenant to comply with a requirement of this Act or the regulations,

(i)    an order terminating a tenancy or an order for the possession of a farm,

(j)    an order directing an owner or owner’s agent to give a former tenant or a person authorised by the former tenant access to a farm for the purposes of recovering goods or fixtures that the former tenant is entitled to remove.

(2)    An order under subsection (1) (c) or (d) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available.

(3)    The Tribunal must not make an order for:

(a)    the payment of an amount that exceeds $500,000 or such other amount as may be prescribed by the regulations for the purposes of this section, or

(b)    the performance of work or the taking of steps the cost of which is likely to or will exceed $500,000 or such other amount as may be prescribed by the regulations for the purposes of this section.

(4)    The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders:

(a)    an order that varies or sets aside, or stays or suspends the operation of, any order made in proceedings or earlier proceedings,

(b)    any ancillary order the Tribunal thinks appropriate,

(c)    an interim order.

(5)    A provision of this Act that enables an owner or tenant to apply for a determination by the Tribunal and the Tribunal to determine a matter or make an order also applies, where appropriate, to a former owner or former tenant.

(6)    This section does not limit the Tribunal’s powers under the Civil and Administrative Tribunal Act 2013.”

66. Sections 6 and 7 of the Law Reform (Law and Equity) Act 1972 (NSW) are also relevant to the Tribunal’s jurisdiction. Those sections provide:

“6Defence in inferior court

Every inferior court shall in every proceeding before it give such and the like effect to every ground of defence, equitable or legal, in as full and ample a manner as might and ought to be done in the like case by the Supreme Court under the Supreme Court Act 1970.

7Jurisdiction as to relief not enlarged

This Act does not enlarge the jurisdiction of any court as regards the nature or extent of the relief available in that court, but any court may, for the purpose of giving effect to sections 5 and 6, postpone the grant of any relief, or grant relief subject to such terms and conditions as the nature of the case requires.”

67. The Principal Member first considered whether a claim for relief against forfeiture could be raised by way of equitable defence in the proceedings in the Tribunal. He concluded that the Tribunal was an “inferior court” within the meaning of the Law Reform (Law and Equity) Act. In reaching that conclusion he considered the indicia identified by the Court of Appeal in Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; (2006) 66 NSWLR 77 and Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146; (2003) 57 NSWLR 282 as to whether a tribunal exercising judicial power should be characterised as a court. He concluded that the Civil and Administrative Tribunal is an inferior court for the purposes of the Law Reform (Law and Equity) Act (at [54]-[62]). There was no challenge to that conclusion at the hearing before the Appeal Panel, nor on the present application.

68. The Principal Member then considered whether pursuant to s 6 of the Law Reform (Law and Equity) Act the Tribunal could give effect to a tenant’s claim for relief against forfeiture as an equitable defence to the owner’s claim for possession. He concluded that a claim for relief against forfeiture was not a “defence” for the purpose of s 6, and that the grant of equitable remedies by a court having power to do so was required in order for relief against forfeiture to be given (at [67]-[68]). He observed that this was consistent with the views expressed by the authors R P Meagher, J D Heydon & M Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies, 4th ed (2002), Chatswood, LexisNexis Butterworths at [2-245] where the learned authors said:

“the term ‘equitable ground of defence’ is referable to an equity such as unclean hands or laches which was developed in equity as a disentitlement of the plaintiff from relief in that jurisdiction, whereas the ‘defence’ in Walsh v Lonsdale is essentially a claim asserted by the defendant to independent relief which must be made out before he can defend the action of the plaintiff in the current proceedings.”

69. In its submissions to the Appeal Panel AET contended that this was too narrow an interpretation of the Law Reform (Law and Equity) Act. In its written submissions before the Appeal Panel AET referred to the Second Reading Speech of the then Attorney-General in introducing the Law Reform (Law and Equity) Bill and to the report of the Law Reform Commission of New South Wales on Law and Equity ([1971] NSWLRC 13). The Attorney-General said:

“The bill accordingly makes comprehensive provision for the relevant principles to be applied in all courts, thereby enlarging the competence of courts to give effect to equitable matters of defence.” (New South Wales Legislative Assembly (Hansard), 14 March 1972 at 5181)

70. In its report the Law Reform Commission said (at [14]-[16]):

“14. The draft section 6 is based on part of section 202 of the Supreme Court of Judicature Act 1925, which itself had its origin in section 89 of the Supreme Court of Judicature Act 1873. The relevant provisions of the English section of 1925 may, for the purpose of the present consideration, be broken up as follows-

‘Every inferior court which the jurisdiction in equity, or at law and in equity, …

(a)    shall, as regards all causes of action within its jurisdiction for the time being, grant in any proceedings before it such relief, redress or remedy, or combination of remedies, either absolute or conditional, and

(b)    shall in every such proceeding give such and the like effect to every ground of

(i) defence or

(ii) counterclaim,

equitable or legal …,

as ought to be granted or given in the like case by the High Court and in as full and ample a manner.’

15.   The confinement of the courts to which the English section applies to courts having jurisdiction in equity, or at law and in equity, appears to us appropriate to the provisions of paragraphs (a) and (b) (ii) in the above break-up: those provisions extend the positive relief available in inferior courts. But the confinement is inappropriate to paragraph (b) (i): the availability of an equitable defence ought not to depend on the power of the court to grant positive equitable relief.

16. Since the draft section 6 is concerned only with defences, we see no need for, and some harm in, confining the section to courts with power to give equitable relief. The harm in so confining the section is that, if the section does not apply to all inferior courts, the substantive rights of the parties may depend on the plaintiff’s choice of the court in which he sues.”

71. The Law Reform Commission referred to two particular kinds of case in which it envisaged that s 6 would operate and which called for special mention. One was if a landlord sued for possession in the District Court or a court of petty sessions and the tenant claimed that he was in occupation under an agreement for lease of which equity would decree specific performance. The Law Reform Commission said of such a case:

“23. If the landlord sued for possession in a district court or in a court of petty sessions, the tenant would have to bring proceedings in the Supreme Court for specific performance of the agreement and for an injunction to restrain the prosecution of the proceedings for possession. In the absence of the draft section 6, the position would be the same whether the proceedings were brought before or after the commencement of the Supreme Court Act. The draft section 6, however, would enable the tenant to rely on the agreement by way of defence in the district court or court of petty sessions. Circuity, delay and expense would be avoided.”

72. This was the very type of case to which the learned authors of the 4th edition of Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies opined (at [2-245] that s 6 would not apply. However, even in such a case the learned authors said that the correct procedure was as indicated by s 7, namely for the inferior court to postpone the grant of relief to which the plaintiff was entitled at law in order to allow the defendant to apply for the grant of equitable relief in a court that had jurisdiction to grant it to give effect to the equitable defence.

73. The second particular example of the intended operation of the provisions given by the Law Reform Commission concerned the principle of promissory estoppel. The Commission said that the proposed s 6 “would enable, and require, the principle [of promissory estoppel] to be applied defensively in an inferior court in the same way as it may be held to be applicable in the Supreme Court under the Supreme Court Act” (at [25]). In Bushby v Dixon Holmes du Pont Pty Ltd [2010] NSWSC 234; (2010) 78 NSWLR 111 Rein J held that where the defendant asserted promissory estoppel, that was an equitable defence to which the District Court was empowered and required by s 6 to give full effect (at [32]). His Honour said that s 6 should not be read narrowly (at [31]).

74. It is true that equity’s jurisdiction to grant relief against forfeiture is a jurisdiction the exercise of which requires the grant of positive remedies. At one time it was held that a tenant that had been put out of possession could not in the same proceeding deny that he was in breach of the lease, or deny the landlord’s entitlement to determine the lease for the tenant’s breach, and at the same time seek relief against forfeiture. This was because a claim for relief against forfeiture only arises if the lease has been forfeited. It is now settled that a tenant can raise such matters in the alternative, but that does not alter the fact that where equity relieves against forfeiture of the lease it grants positive remedies after a determination or concession that the lease has in fact been forfeited. The positive remedies may include an injunction restraining the landlord from taking possession and an order for the grant of a new lease (although under s 73 of the Supreme Court Act 1970 (NSW) the Supreme Court may give relief against forfeiture without the need for a new lease). The relief will be conditioned upon the lessee’s remedying the breach.

75. In my view, irrespective of the extent of the Tribunal’s power to grant statutory remedies, it has jurisdiction under s 6 of the Law Reform (Law and Equity) Act and would be required to consider a defence to the owner’s claim for possession that the lessee was entitled to relief in equity against forfeiture. Section 6 was drafted so as to apply to all courts, including those that did not have jurisdiction to grant equitable remedies. What is a “defence” for the purpose of s 6 does not depend on the power of the court in which the defence was raised to grant positive equitable relief. That that was the legislative intention appears clearly from the Minister’s Second Reading Speech and the Report of the Law Reform Commission that led to the Act. Regard can be had to that extrinsic material in order to determine the meaning of the expression “… every ground of defence, equitable or legal, …” where that expression is ambiguous (Interpretation Act 1987 (NSW) s 34(1)(b)(i)).

76. Relief against forfeiture operates both as a positive claim and as a defence to the owner’s claim for possession. The availability of the defence by way of relief against forfeiture is analogous to the availability of a defence to a claim at law for possession that the tenant is entitled to possession by way of specific performance of an agreement for lease. Sections 6 and 7 of the Law Reform (Law and Equity) Act were drafted to permit such a defence to be raised in the inferior court even though the inferior court might not have jurisdiction to grant the appropriate equitable remedy to give effect to that defence, but could postpone the grant of relief to which the owner having the legal right to possession would otherwise have been entitled to permit the lessee to obtain the appropriate remedies in a court of equitable jurisdiction so as to give effect to the equitable defence.

77. In Kingswood Estate Co Ltd v Anderson [1963] 2 QB 169 and Rushton v Smith [1976] QB 480 the Court of Appeal in England construed the equivalent provision in s 74 of the County Courts Act 1959 (UK) as permitting and requiring the County Court to give effect to an equitable defence to a claim for possession that although a lessee held only under a periodical tenancy at law it was entitled to specific performance of an agreement for the grant of a long-term lease, notwithstanding that the County Court did not have jurisdiction to make a decree for specific performance. It is clear from the New South Wales Law Reform Commission report that s 6 of the Law Reform (Law and Equity) Act was intended to have a similar operation. In Bushby v Dixon Holmes du Pont Pty Limited Rein J, although not deciding whether Kingswood Estate was correctly decided, did consider that it provided support for his view that s 6 should not be read narrowly.

78. Accordingly, the Tribunal would have jurisdiction to determine the availability of a defence to the landlord’s claim for possession that the tenant was entitled to relief against forfeiture even if its power to grant statutory remedies did not extend to granting appropriate relief to give effect to that determination. If an entitlement to relief against forfeiture were established, it should stay the proceeding to allow the tenant to pursue appropriate relief in the Supreme Court.

79. However, I agree with the conclusion of the Principal Member that ss 20(1) and 21(1)(a) of the Agricultural Tenancies Act confer power on the Tribunal to make orders to give effect to a determination of a dispute as to whether a party to an agricultural tenancy should be relieved against forfeiture. Such a dispute would be a dispute falling within s 20(1)(b), being a dispute arising from or relating to a tenancy or an agreement creating a tenancy. Section 21(1)(a) provides that the Tribunal may make an order “giving effect to a determination that may be made by the Tribunal under this Act”. Thus, if the Tribunal determines that a tenant under an agricultural tenancy should be relieved from forfeiture of the agricultural tenancy, it has power under s 21(1)(a) to give effect to that determination. That power would include refusing to make an order for possession, notwithstanding that it was found that the owner had terminated the tenancy, restraining the owner from itself taking possession, ordering the owner to take necessary steps to grant a new tenancy to give effect to a determination that the tenant was entitled to relief against forfeiture, and imposing any necessary conditions on the grant of such relief, such as that the tenant remedy the breach by reason of which the tenancy was determined. That appears to me to follow from the express terms of s 20(1)(b) and 21(1)(a). Such a construction is consistent with the object in s 3(c) that the Act provide a mechanism for settling disputes between the parties to agricultural tenancies through applications to the Tribunal.

80. I agree with the view of the Principal Member that s 21(1) is not to be read as if the only power to make an order to give effect to a determination that may be made by the Tribunal under the Act is by making one or more of the orders described in paras 21(1)(b)-(j). It may well be the case that each of the more specific orders of the kind set out in s 21(1)(b)-(j) could in any event be made under s 21(1)(a). But it does not follow that the general power in s 21(a) should be read down because more specific orders are also provided for. Thus, the fact that s 21(1)(c) confers an express power to make an order restraining action but the power under s21(1)(c) is confined to an order restraining action that is in breach of a term of a tenancy does not mean that an order restraining other action could not be made under s 21(1)(a) to give effect to a determination of a dispute arising from or relating to a tenancy. There is no indication in s 21 that the particular orders described in s 21(b)-(j) form some genus to which the general words in s 21(1)(a) are to be limited.

81. Nor does s 21(2) indicate that the power under s 21(1)(a) does not extend to making orders to give effect to a determination that a tenant was entitled to relief against forfeiture. Counsel for SPOF submitted that s 21(2) demonstrated that except under s 21(1)(c) or (d), no order in the nature of an injunction or order for specific performance could be made, they being remedies that, except under s (1)(c) or (d) would not otherwise be available to the Tribunal. I do not accept this submission. The effect of s 21(2) is that orders in the nature of an injunction or an order for specific performance can be made under s 21(1)(c) or (d) even if the circumstances were such that such remedies would not otherwise be available: for example, an order in the nature of an order for specific performance could be made even if it required continuous supervision of the Tribunal, or required the performance of personal services. An order in the nature of an injunction could be made restraining an action in breach of a term of a tenancy even if damages would be an adequate remedy.

82. The fact that under subs 21(4) the Tribunal can also make any ancillary order it thinks appropriate indicates that there is no legislative intention to confine the scope of orders that can be made under s 21(1)(a).

83. For these reasons I agree with the conclusion of the Appeal Panel (at [29]) that there was no error in the Principal Member’s conclusion that the power to resolve disputes provided by ss 20 and 21 of the Agricultural Tenancies Act invested the Tribunal with power to resolve the present dispute, and to grant relief sufficient to resolve the dispute between the parties, including relief in the nature of relief against forfeiture.

84. It follows that whilst leave should be given to SPOF to appeal on the question of law identified at para [55] above, that appeal should be dismissed.

General discretion

85. Counsel for SPOF submitted that in determining whether leave to appeal should be granted the Court should take into account “the current state of play in respect of all proceedings between the parties”. Counsel submitted that because the Tribunal could not grant all relevant remedies, and because SPOF could not pursue its damages claim anywhere except in this Court, the “inevitable conclusion” was that the interests of justice required that the proceedings be heard together in the Supreme Court. In support of this submission counsel relied on r 50.16 of the Uniform Civil Procedure Rules which provides that if leave is given the appeal should proceed by way of rehearing and allows the Court to take into account matters which occurred after the hearing which gave rise to the decision the subject of the appeal. Those matters included the filing of the statement of claim in the Equity proceedings that particularised the claim for damages and was filed four days after the decision of the Appeal Panel.

85. I understood the effect of the submission to be that in substance this Court should determine for itself the merits, as they now appear, of the dispute between the parties being resolved in this Court and not in the Tribunal and that an order should be made for the transfer of the Tribunal proceedings to this Court.

86. That submission is flawed for a number of reasons. First, clause 6 of Schedule 4 to the Civil and Administrative Tribunal Act provides that proceedings before the Tribunal can be transferred to a Court only if the parties so agree or the Tribunal so directs. It does not confer a general power on this Court to exercise a like discretionary power. The Tribunal’s decision to refuse the application for transfer cannot be reviewed, except (in the circumstances of the present case) if there is a successful appeal on a question of law.

87. Rule 50.16 of the Uniform Civil Procedure Rules does not affect this conclusion. Rule 50.16(6) provides that:

“(6)   The higher court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made.”

89. The effect of this rule is that if there were a successful appeal on a question of law, this Court could make an order that the Tribunal ought to have made had it answered the question of law correctly. In this case the Tribunal did answer the question of law correctly, but even if it had not, I doubt that the power to receive further evidence concerning matters occurring after the trial or hearing before the Tribunal would justify taking into account the terms of the statement of claim filed after the Appeal Panel’s decision. That event could not affect the order or direction that the Appeal Panel ought to have made.

90. In any event, for the reasons below this Court is deprived of jurisdiction to decide the issue of whether AET should be given possession of the property by clause 5(3) of Schedule 4 to the Civil and Administrative Tribunal Act. Although that ground was not raised in the decision of the Tribunal that was the subject of the application for leave to appeal, it provides an independent reason as to why the proceeding should remain in the Tribunal.

Dismissal or stay of Supreme Court proceedings

91. The next question is whether the claims brought by SPOF in the proceedings in the Equity Division should be stayed or dismissed.

92. Clause 5 of Schedule 4 to the Civil and Administrative Tribunal Act provides:

“5Relationship between Tribunal and courts and other bodies in connection with Division functions

(1)   Meaning of ‘court’

For the purposes of this clause, court means any court, tribunal, board or other body or person (other than one referred to in subclause (2)) that:

(a)    is empowered under any other Act, or

(b)    by consent of, or agreement between, 2 or more persons has authority,

to decide or resolve any issue that is in dispute, whether through arbitration or conciliation or any other means.

(2)    However, court does not, for the purposes of this clause, include:

(a)    a court, tribunal, board or other body or person that, in relation to a particular matter, is empowered by law to impose a penalty, admonition or other sanction for a contravention of a law or for misconduct or breach of discipline proved to have been committed in connection with that matter but is not empowered to award or order compensation or damages in respect of that matter, or

(b)    the Fair Trading Administration Corporation constituted under Part 7 of the Home Building Act 1989, or

(c)    the Ombudsman, or

(d)    any person exercising the functions of an ombudsman under any law of the Commonwealth, or

(e)    any person authorised, under a law of the State or of the Commonwealth or of another State or a Territory, to make decisions or orders, or give directions, that are binding only on one party to a dispute.

(3)    Effect of application to Tribunal or court

If, at the time when an application was made to the Tribunal for the exercise of a Division function, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue.

(4)    Subclause (3) ceases to apply to the extent to which the application concerned is dismissed for want of jurisdiction or withdrawn.

(5)    Subclause (3) does not prevent a court from hearing and determining any proceedings in which it is claimed that any order, determination or ruling of the Tribunal in exercise or purported exercise of a Division function is invalid for want of jurisdiction or from making any order as a consequence of that finding.

(6)    For the purposes of subclause (3), an issue arises under an application made to the Tribunal for the exercise of a Division function only if the existence of the issue is shown in the applicant’s claim or is recorded in the record made by the Tribunal in accordance with this Act.

(7)    Effect of pending court proceedings on Tribunal

If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.

(8)    Subclause (7) ceases to apply to the extent to which the proceedings concerned are dismissed or quashed by the court, or by another court, for want of jurisdiction or without deciding the issue on its merits, or withdrawn.

(9)    Evidence from court proceedings

In proceedings on an application to the Tribunal for the exercise of a Division function, a finding or decision made by a court, tribunal, board, body or person referred to in subclause (2) is admissible as evidence of the finding or decision.

(10)    Clause prevails over other law

This clause has effect despite Part 3 of this Act or any other Act or law to the contrary.”

93. The Supreme Court is a “court” within the meaning of clause 5, having jurisdiction under s 23 of the Supreme Court Act to do what may be necessary for the administration of justice in New South Wales. The question raised by clause 5(3) is what is the issue, or what are the issues, arising under the application made to the Tribunal and whether the same issue is sought to be raised by SPOF in the Equity Proceedings. Because no proceedings were pending before the Court when AET made its application to the Tribunal this Court has no jurisdiction to hear or determine an issue that arises under AET’s application.

94. A “Division function” is defined in clause 1 of Schedule 4 to mean a function of the Tribunal allocated to the Consumer and Commercial Division of the Tribunal. The functions of the Tribunal in relation to the Agricultural Tenancies Act are allocated to the Consumer and Commercial Division (clause 3 of Schedule 4).

95. Clause 5(6) is relevant. The Court is only deprived of jurisdiction to hear or determine an issue arising under AET’s application if the existence of the issue is shown in AET’s claim or is recorded in the record made by the Tribunal in accordance with the Civil and Administrative Tribunal Act. The Act does not prescribe what records of its proceedings the Tribunal is to maintain. Because the Act provides for internal appeals from decisions of the Tribunal to the Appeal Panel and provides for limited rights of appeal to the Supreme Court or the District Court, the Tribunal is under an implied obligation to give reasons for decisions and to make a record of its decisions and of the reasons for them.

96. I was not referred to any authorities on the effect of clause 5 of Schedule 4 to the Civil and Administrative Tribunal Act or cognate legislation and I am aware of only three relevant decisions, each of which concerned s 22 of the former Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) that was in materially the same terms as clause 5 of Schedule 4 to the Civil and Administrative Tribunal Act. In Cohen-Hallaleh v Cyril Rosenbaum Synagogue Pty Ltd [2003] NSWSC 395 Barrett J (as his Honour then was) dealt with an argument that arose under s 22(7) of the Consumer, Trader and Tenancy Tribunal Act that was in materially the same terms as clause 5(7) of Schedule 4. The question was whether the Consumer Trader and Tenancy Tribunal (CTTT) lacked jurisdiction to make an order for termination of a residential lease and an order for possession under the Residential Tenancies Act 1987 (NSW) where there were pending proceedings brought by the plaintiff (the occupier of the premises) in the Industrial Relations Commission in which he sought an order declaring void or varying a contract of employment between him and his employer. The plaintiff was employed as a Rabbi in the synagogue and it was submitted on his behalf that it was open to the Industrial Relations Commission to vary his contract of employment to confer on him a right to continue to occupy the subject premises (that were owned by the synagogue) even in circumstances where the employment relationship had been terminated. The claim in the Industrial Relations Commission did not include any reference to the plaintiff’s occupation of the relevant premises. Barrett J rejected the plaintiff’s contention that the CTTT lacked jurisdiction. His Honour said (at [36]-[38]):

“[36] Mr Lucarelli [counsel for the synagogue] emphasised that s22(7) does not deprive the CTTT of jurisdiction generally where there are associated or related proceedings in a ‘court’ - an expression which, in light of s22(1) and s22(2) extends to the Industrial Relations Commission. The most s22(7) does is to deprive the CTTT of jurisdiction to hear and determine a particular ‘issue’, being an ‘issue’ arising under the application before the CTTT that, when that application was made to the CTTT, ‘was the subject of a dispute in proceedings pending before a court’.

[37] Mr Lucarelli submitted that ‘issue’ here must be taken to refer to a justiciable issue, that is, an issue properly within the jurisdiction of both the CTTT and the particular court. Mr Lucarelli also submitted that there were no common issues (justiciable or otherwise) before the CTTT and the Commission. He pointed out that it was common ground before the CTTT that the employment contract had been terminated: the plaintiff's solicitor submitted to the CTTT that the termination was unlawful, therefore acknowledging the termination itself. Because the contractual right to occupy the subject premises was an incident of the employment contract, it is submitted that the question whether that right was still on foot was not before the CTTT. Nor, by definition, was any question whether the employment contract should be declared void or varied or whether it was unfair, harsh, unconscionable or contrary to the public interest.

[38] I accept Mr Lucarelli's submissions. The purpose of s22(7) is to avoid the risk of concurrent findings by the CTTT and a ‘court’ (as defined by ss22(1) and 22(2)) with respect to a particular ‘issue’. For the section to operate, more must be shown that [sic] that the proceedings in the respective forums concern the same subject. It must be seen that disposition of each will require determination of the same question. In this case, the plaintiff points to common general subject matter but has not identified the particular ‘issue’ that presented itself to the CTTT and was also thrown up by the Industrial Relations Commission proceedings.”

97. This decision was applied by Harrison AsJ in Permanent Mortgages Pty Ltd v Garton [2008] NSWSC 497. That case concerned a dispute between a lender (Permanent Mortgages) that had a registered mortgage over property of the defendants to secure repayment of moneys lent. The borrowers commenced proceedings in the CTTT seeking orders, amongst others, that the credit contract and mortgage were subject to the Consumer Credit (New South Wales) Code, that the terms of the credit contract and the conduct of the lender were in breach of the Code, that the credit contract and mortgage were unjust at the time they were entered into within the meaning of s 70 of the Code, and that the credit contract and mortgage be reopened under the Code. When those proceedings were pending before the CTTT the lender instituted proceedings in this Court for possession. Harrison AsJ observed that in determining the borrowers’ application, the CTTT did not have power to grant possession to the lender. Harrison AsJ observed (at [19]-[21]) that neither forum had power to grant complete relief, but nonetheless the same issues arose in both proceedings and the Supreme Court did not have jurisdiction to hear the proceedings commenced in it.

98. In Advance Earthmovers Pty Ltd v Fubew Pty Ltd [2009] NSWCA 337 the applicant (Advance Earthmovers) had done earthmoving work for the respondent (Fubew) in connection with the proposed construction of a residence. Fubew brought proceedings in the CTTT against Advance Earthmovers for allegedly overcharging it. Two days later Advance Earthmovers filed a statement of claim in the District Court claiming moneys allegedly due for a breach of contract or as a quantum meruit, and also making a claim under the Building and Construction Industry Security of Payment Act 1999 (NSW). Summary judgment was given in the District Court in favour of Advance Earthmovers on its claim under the Building and Construction Industry Security of Payment Act. It had made a payment claim under that Act and Fubew had not served a payment schedule. Fubew applied to the District Court to have the judgment set aside. The judgment was set aside on the ground that the District Court had no jurisdiction to hear the matter by reason of s 22(3) of the Consumer, Trader and Tenancy Tribunal Act. That section was in materially the same terms as clause 5(3) of Schedule 4 to the Civil and Administrative Tribunal Act.

99. The Court of Appeal allowed Advance Earthmovers’ appeal on the ground that the issue arising under Advance Earthmovers’ claim for judgment under the Building and Construction Security of Payment Act was not the same issue as arose under Fubew’s claim in the CTTT (at [42]-[43] per Young JA, [95], [105]-[109] per Sackville AJA (Tobias JA agreeing with both Young JA and Sackville AJA)). This was because the claim based on s 15 of the Building and Construction Security of Payment Act raised different questions from those presented by Fubew’s claim in the Tribunal. The claim under the Building and Construction Security of Payment Act was to enforce a statutory right to an interim or progress payment which did not determine or otherwise affect the legal obligations of the parties. If Fubew were entitled to relief in the Tribunal, the Tribunal had power to allow for and make orders for restitution of any moneys previously paid by Fubew to Advance Earthmovers, including moneys paid pursuant to a judgment in the District Court (Building and Construction Security of Payment Act, s 32(3) and see at [93]-[95] per Sackville AJA and at [40]-[41] per Young JA). On the other hand, the claims in the District Court for damages for breach of contract and on a quantum meruit did raise the same issues as raised in the CTTT (at [45), but the judgment was not entered on those claims.

100. Only Sackville AJA considered s 22(6) of the CTTT Act. It was in materially the same terms as Clause 5(6) of Schedule 4 of the Civil and Administrative Tribunal Act. His Honour did not express a final view on the scope or effect of s 22(6), but did say (at [103]) that the relevant time for determining what documents formed part of the record of the Tribunal appeared to his Honour to be the date on which Fubew made its application. His Honour implied that “the record” for the purposes of s 22(6) might be determined in the same way as the record of an inferior court is determined for the purposes of an order in the nature of certiorari to quash an error of law on the face of the record.

101. For the reasons which follow it is unnecessary to decide whether the Tribunal’s “record” is only that which existed at the time of filing the application, although I would observe that such a construction does not sit easily with the view of Young JA (Tobias JA agreeing) in Advance Earthmovers Pty Ltd v Fubew Pty Ltd at [40] that an issue is identified as the point on which the parties are in dispute. Nor is it necessary to decide whether the “record made by the Tribunal in accordance with this Act” is to be characterised in the same way as the record of an inferior court or tribunal is characterised for the purpose of deciding a claim for the grant of an order in the nature of certiorari for error of law on the face of the record where, ordinarily, in the absence of a statutory provision to the contrary, the record will comprise no more than the document initiating the proceedings, the pleadings (if any) and the order or ruling, but not the reasons for decision (Craig v South Australia (1995) 184 CLR 163 at 180-182). Given the different context in which the questions arise, it is by no means self-evident that the record of the Tribunal for the purpose of clause 5(6) is to be given the narrow meaning used for determining the record of an inferior court for the purposes of determining whether there was an error of law on the face of the record. In the transitional provisions in clause 7(2)(c) of Schedule 1 of the Civil and Administrative Tribunal Act it is evident that the phrase “… any record of the proceedings in the existing tribunal” would extend to all records of the existing tribunal in proceedings that had been commenced but not heard in that tribunal and were transferred to the Civil and Administrative Tribunal. However, I need not decide the question of what is the “record made by the Tribunal in accordance with this Act.”

102. If regard is had only to the application filed by AET in the Tribunal it is clear that issues arising under the application include whether SPOF was in breach of the lease, and if so, whether an order should be made that AET have possession of the farm. Although the statement of claim filed in the Equity proceedings does not raise as an issue whether SPOF was in breach of the lease, SPOF does plead that if the NCAT proceedings are not transferred to the Court and it is found in the NCAT proceedings that SPOF breached the lease entitling AET to terminate the lease, it is entitled to an order for relief against forfeiture of the lease. On that basis SPOF seeks an order for relief against forfeiture, a declaration that it is entitled to remain in possession of the property and order that AET be restrained from taking possession of the property. Thus, the question of whether AET is entitled to and should be granted possession of the property is an issue that arises in both proceedings.

103. Counsel for SPOF submitted that the same issue did not arise in both proceedings. Only the Supreme Court had jurisdiction to grant the equitable remedies sought by way of relief against forfeiture. No issue arose under the application filed by AET as to whether SPOF was entitled to equitable relief against forfeiture. If it were relevant, although SPOF had initially sought to defend AET’s claim in the Tribunal on a ground that included that it was entitled to relief against forfeiture, following the amendment of its points of defence, it did not pursue that ground in the Tribunal.

104. I think this is too narrow an approach to the definition of the relevant issue. I accept that if the issue is characterised as being whether SPOF is entitled to equitable relief against forfeiture, that is a different issue from the issue that arises under AET’s application in the Tribunal. On the other hand, if the issue is characterised as being whether an order for possession should be made in favour of AET if it establishes the alleged breaches, then that is the same issue as that which arises in the Supreme Court. For the reasons previously given, the Tribunal has power to determine whether an order for possession should not be made on the ground that SPOF is entitled to relief against forfeiture of the lease and the Tribunal could give appropriate statutory relief to give effect to a determination of that question. Whether SPOF should now be permitted to raise that ground of defence and to seek statutory relief having regard to the course taken to date in the Tribunal is a different question and would be a matter for the Tribunal to decide if an application were made by SPOF in the Tribunal. But the issue of whether AET should be given possession of the farm arises directly from the terms of its application, irrespective of the course taken by SPOF in the Tribunal.

97. In Cohen-Hallaleh v Cyril Rosenbaum Synagogue Pty Ltd Barrett J said (at [38]) that the purpose of the relevant provisions is to avoid the risk of concurrent findings by the Tribunal and a court with respect to a particular issue. This was approved by Sackville AJA in Advance Earthmovers Pty Ltd v Fubew Pty Ltd at [108]. The characterisation of the issue should be made with that statutory purpose in mind. That purpose would not be advanced by the adoption of a narrow characterisation of the issue as being whether SPOF is entitled to equitable relief against forfeiture. In furthering the statutory purpose of clause 5, Parliament has provided, in effect, that if an issue arising under the application can be dealt with either by a court or the Tribunal, the issue should be determined by the court or tribunal in which proceedings are first commenced.

98. For these reasons I conclude that by reason of clause 5(3) of Schedule 4 to the Civil and Administrative Tribunal Act this Court does not have jurisdiction to determine the issue of whether AET should or should not be given possession of the property. The claims for relief in paras 1, 2 and 3 of the “Relief Claimed” in the statement of claim and paras 1, 2, 3 and 4 of the summons are all directed to that issue. Those claims for relief should be dismissed.

99. In its submissions AET also sought the stay or dismissal of SPOF’s claim for damages. It did not submit that this Court does not have jurisdiction to hear and determine that claim. In my view the Court does have such jurisdiction. SPOF’s claim for damages does not arise “under” AET’s application in the Tribunal. Indeed, the Tribunal does not have jurisdiction to award more than $500,000 in damages and SPOF claims substantially more than that sum.

100. AET submitted that the damages claim should be dismissed because SPOF, so it was submitted, does not have a realistic or seriously arguable claim for damages that exceeded the jurisdictional threshold in the Tribunal and the claim for damages, if it were to be raised, should be raised in the Tribunal. The reason AET submitted that it was not seriously arguable that SPOF could maintain a claim for damages in excess of $500,000 was that AET could have no liability for most of the damages claimed by reason of clause 12.2 of the lease. It provides:

“12.2   Consequential loss

Despite any other provision of this Lease, neither Prty is liable to the other for:

loss of revenue;

loss of reputation;

loss of profit;

loss of business opportunity;

consequential, indirect or special loss; or

any Claim, including loss or damage (including economic loss in connection with such a claim) made by third parties.”

109. Clause 1.2(c) of the lease provides that headings are inserted for convenience only and do not affect the interpretation of the lease.

110. It is not appropriate to determine the effect of clause 12.2 on the present application. AET has not filed a defence to the statement of claim. If by way of defence it pleads clause 12.2 as an answer to SPOF’s claims for damages, it is not at present known what, if any, issue might arise in relation to that clause. SPOF might seek rectification. Or it might be argued that irrespective of the heading, when the clause is read in context with other provisions, including clause 12.1(d) (which provides that “the Parties indemnify and will at all times keep the other Party indemnified against all Claims … (d) arising as a direct result of a breach by the Party of this Lease”) clause 12.2 should be construed as applying only to consequential loss. Counsel for SPOF submitted (albeit without reference to clause 12.1) that clause 12.2 was so limited and that the damages claimed were not in the nature of consequential loss. These are not issues that should be decided on the present application.

111. The hearing in the Tribunal might well result in the determination of issues relevant to SPOF’s claim for damages. If those issues are essential to whatever orders the Tribunal makes then issue estoppels may well arise. The damages claim should not proceed in this Court whilst the proceedings in the Tribunal continue. There should be a stay of that claim until the final determination of the proceedings in the Tribunal or further order.

112. For these reasons I make the following orders:

Proceeding 2014/358386

Grant leave to the plaintiff to appeal from the decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (“the Tribunal”) in proceedings COM 2014/09217 on 17 November 2014 on the question of whether ss 20 and 21 of the Agricultural Tenancies Act 1990 (NSW) invested the Tribunal with power to resolve the dispute between the plaintiff and the defendant as to whether an order for possession should be made in favour of the defendant, or the plaintiff should be relieved against forfeiture of its lease, and to grant necessary relief.

Order that the application for leave to appeal from the decision of the Appeal Panel of 17 November 2014 be otherwise dismissed.

Order that the appeal on the question referred to in order 1 be dismissed.

Discharge the order made on 11 February 2015 and extended on 27 February 2015 that proceedings in the Tribunal be stayed.

Order that the summons be otherwise dismissed.

Proceeding 2014/176409

Order that the claims for relief in paras 1-4 of the summons and in paras 1-3 under the heading “Relief Claimed” in the statement of claim be dismissed.

Order that the balance of the proceedings be stayed pending the final determination of the proceedings between the plaintiff and the defendant in the Tribunal proceedings COM 2014/09217 or further order of this Court.

Order that the defendant’s notice of motion filed on 28 November 2014 be otherwise dismissed.

Grant liberty to the parties to apply and to restore the proceedings on seven days’ notice.

113. Prima facie the plaintiff should pay the defendant’s costs of proceeding 2014/358386 and should pay the defendant’s costs of the defendant’s notice of motion filed on 28 November 2014 in proceeding 2014/176409. I will hear the parties on costs.

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Decision last updated: 25 March 2015