Treloar v Commissioner for Consumer Affairs
[2021] SASCA 60
•9 June 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
TRELOAR v COMMISSIONER FOR CONSUMER AFFAIRS
[2021] SASCA 60
Reasons of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Livesey and the Honourable Justice Bleby)
9 June 2021
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
The applicant sought leave to appeal against the decision of a Presidential Member of the South Australian Civil and Administrative Tribunal (SACAT) to refuse to grant permission to proceed with a “review” under s 70(1) of the South Australian Civil and Administrative Tribunal Act 2013 (SA). The applicant sought a review of the refusal by a Senior Member to grant a 12-month adjournment of disciplinary proceedings brought by the Commissioner for Consumer Affairs concerning alleged breaches of the Second-hand Vehicle Dealers Act 1995 (SA).
The applicant sought the adjournment to allow him to raise funds to secure legal representation.
Held, refusing the application for leave to appeal:
1.The appeal is not reasonably arguable and it is not in the interests of justice to grant leave to appeal.
South Australian Civil and Administrative Tribunal Act 2013 (SA) s 3, s 70, s 71; South Australian Civil and Administrative Tribunal Regulations 2015 (SA) regulation 4; Uniform Civil Rules 2020 (SA) r 212.3, referred to.
Dietrich v The Queen (1992) 177 CLR 292; Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641; Hegarty v Keogh [2021] SASCA 46; Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Pix v South Australian Housing Trust (2016) 125 SASR 10; Re AKS [2016] SACAT 19; Rose v South Australian Housing Authority [2021] SASCA 9, considered.
TRELOAR v COMMISSIONER FOR CONSUMER AFFAIRS
[2021] SASCA 60
Court of Appeal – Civil: Doyle, Livesey and Bleby JJA
THE COURT:
This is an application for leave to appeal from a decision of a Presidential Member of the South Australian Civil and Administrative Tribunal (the Tribunal).
Leave to appeal is required by s 71(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act). By s 71(1) of the SACAT Act and r 212.3(1)(a)(ii) of the Uniform Civil Rules 2020 (SA), the appellate jurisdiction of the Supreme Court is to be exercised by the Court of Appeal because the proposed appeal is against a decision of a Presidential Member of the Tribunal.
By Notice of Appeal filed on 19 March 2021, the applicant seeks leave to appeal against the President’s refusal to grant permission to proceed with a “review” under s 70(1) of the SACAT Act. The applicant sought a review of the refusal by a Senior Member to grant a 12-month adjournment of disciplinary proceedings brought by the Commissioner for Consumer Affairs concerning alleged breaches of the Second-hand Vehicle Dealers Act 1995 (SA).
The grounds relied on by the applicant, who is unrepresented, are to the effect that he is without funds for legal representation, having spent “many thousands of dollars defending these proceedings in the District Court prior to jurisdiction being transferred to SACAT”. The applicant seeks a 12-month adjournment so as to raise funds to secure legal representation. His attempts to raise funds have been thwarted by his bankruptcy.
The decision of the President delivered on 16 March 2021 followed a hearing on 12 March 2021 and sets out in some detail the history of this litigation. The disciplinary proceedings were set down for a full hearing in the Tribunal over four days, commencing 15 February 2021. The applicant sought an adjournment. As it transpired, the Commissioner also sought an adjournment.
The Senior Member granted an adjournment for a period of some weeks, but not the 12 months sought by the applicant. The Senior Member referred to authority for the proposition that there was no principle that a party who cannot afford legal representation must have Tribunal proceedings adjourned.[1]
[1] Dietrich v The Queen (1992) 177 CLR 292 and Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641.
After the Tribunal registry set new hearing dates, the applicant sought a review of the decision to refuse the 12-month adjournment. A review pursuant to s 70(1) of the SACAT Act is known as an “internal review”.
In the hearing before the President, her Honour questioned whether there was jurisdiction. An applicant may only seek permission for an internal review under s 70 where there is “a decision of the Tribunal”, which is defined by s 3 of the SACAT Act as “a direction, determination or order of the Tribunal but, in prescribed circumstances, does not include an interlocutory direction, determination or order”.
Regulation 4 of the South Australian Civil and Administrative Tribunal Regulations 2015 (SA) lists various interlocutory decisions which are excluded from the s 3 definition. These include “the refusal of the Tribunal to adjourn proceedings …”. The President relied upon Re AKS for the proposition that regulation 4 precluded the Tribunal from internally reviewing interlocutory decisions such as the refusal to grant an adjournment.[2]
[2] Re AKS [2016] SACAT 19.
Accordingly, the President found that she lacked jurisdiction but, even if that were not so, she would not have granted permission to proceed with the internal review. She found that the applicant had not shown that the interests of justice warranted an internal review because there was no arguable case of error and no principle or interest was at stake which would warrant the grant of permission. Finally, the President explained to the applicant that it remained open to him to request a further adjournment of the disciplinary proceedings. That application would be considered on its merits.
When this matter was called over in the Court of Appeal on 16 April 2021,[3] the applicant sought a stay of the Tribunal proceedings. The stay was refused. The Court explained to the applicant that it understood that he was in a difficult position, but he was warned that he would need to move quickly to secure legal representation. He was also warned that seeking leave to appeal to the Court of Appeal was unlikely to achieve his objective. The applicant was advised that leave to appeal would be considered by the Court of Appeal.
[3] Hegarty v Keogh [2021] SASCA 46, [32].
The requirements for seeking leave to appeal against a decision of a Presidential Member of the Tribunal were recently considered in Rose v South Australian Housing Authority:[4]
Whether permission or leave to appeal to this Court should be granted is ultimately determined by the interests of justice.[5] Typically, that requires that it be shown that the appeal is reasonably arguable and of sufficient substance to justify consideration by the Court of Appeal.
[4] Rose v South Australian Housing Authority [2021] SASCA 9, [15] (Doyle and Livesey JJA).
[5] Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1, [19] (Parker J); Pix v South Australian Housing Trust (2016) 125 SASR 10, [3] (Kourakis CJ).
With all respect to the applicant, the proposed appeal is not reasonably arguable and it is not in the interests of justice to grant leave to appeal.
The application for leave to appeal is refused.
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