Walls v Coutts

[2019] ACAT 104

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WALLS v COUTTS (Appeal) [2019] ACAT 104

AA 22/2019 (XD 159/2019)

Catchwords:  APPEAL – civil dispute – defamation – removal application – interlocutory decision – legislation provides limited range of decisions which may be subject to internal appeal – application for appeal incompetent

Legislation cited:     ACT Civil and Administrative Tribunal Act 2008 ss 3, 9, 17, 48, 79, 83

Evidence Act 2011 s 128

Justice and Community Safety Legislation Amendment Act 2012

Legislation Act 2001 ss 155, 156

Cases cited:  Burow v The Queen [2015] ACTCA 61

Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246

CIC v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96

Commonwealth v Bank of New South Wales (Bank Nationalisation Case) (1949) 79 CLR 497

Coutts v Walls [2019] ACAT 66

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478

GP v McKenzie and Ors [2018] ACAT 96

Hall v Nominal Respondent (1966) 117 CLR 423

Licul v Corney (1976) 180 CLR 213

R v Ireland (1970) 126 CLR 321

Re Will of Gilbert (1946) 46 SR (NSW) 318

State of Victoria v Turner (2007) 17 VR 217

The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (Stephen Stubbs) [2010] ACAT 19

List of

Texts/Papers cited:  Beazley, Tout and Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (Lexisnexis Butterworths, 2014)

Tribunal:  Presidential Member MT Daniel

Senior Member B Meagher SC

Date of Orders:  1 November 2019

Date of Reasons for Decision:        21 November 2019AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL         )          AA 22/2019

BETWEEN:

SCOTT WALLS

Appellant

AND:

BRETT COUTTS

Respondent

APPEAL TRIBUNAL:     Presidential Member MT Daniel

Senior Member B Meagher SC

DATE:  1 November 2019

ORDER

The Tribunal orders that:

1.           The application for appeal is dismissed as incompetent.

2.           The oral application for costs by the respondent is refused.

3.           The stay of proceedings XD 159/2019 imposed by the orders of 26 August 2019 is lifted.

………Signed…………………..

Presidential Member MT Daniel

REASONS FOR DECISION

1.           Mr Walls brought an appeal within the tribunal from a decision to refuse an application by him to remove a civil dispute matter to the Supreme Court (the removal decision). In the civil dispute proceedings Mr Coutts brought an action for defamation against Mr Walls.

2.           A full history of the facts and background is set out in the removal decision.

3.           On 1 November 2019, after hearing from the parties, the Appeal Tribunal decided that the appeal was incompetent, and it was dismissed. These are the reasons for that decision.

Background to the incompetence issue

4. The power to remove matters to the Supreme Court is contained in section 83(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). Section 83 is as follows:

83  Removal of applications from tribunal to Supreme Court

(1)     If the parties to an application or an appeal (a matter) jointly apply to have the matter removed to the Supreme Court, the tribunal must order that the matter be removed to the Supreme Court.

(2)     If a party to a matter applies to have the matter removed to the Supreme Court, the tribunal may, if it considers it appropriate, order that the matter be removed to the Supreme Court.

5. The power to appeal within the Tribunal is set out in section 79 of the ACAT Act:

79 Appeals within tribunal

(1) This section applies if—

(a)          the tribunal has decided an application (the original application); and

(b)          the original application was not an appeal from a decision by the tribunal.

(2)     However, this section does not apply to an application for review of a decision under the Freedom of Information Act 2016, the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005.

(3)  A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.

6.           In advance of the hearing on 1 November 2019 it occurred to the Appeal Tribunal that the appeal may be incompetent, and we referred the parties to the decision of GP v McKenzie and Ors [2018] ACAT 96 (GP) on this point. We requested that the parties be prepared to make submissions on this issue at the commencement of the hearing on 1 November 2019.

7.           In GP, Presidential Member Symons was considering appeals from decisions in the course of a defamation claim in relation to de-identification of the appellant, non-publication orders and orders for a private hearing. At [56]-[59] Presidential Member Symons referred to the earlier decision of The Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2010] ACAT 19 (the Legal Practitioner decision) to the effect that there was no appeal under section 79 of the ACAT Act from a ‘finding’ by the tribunal in the course of hearing an application, because a ‘finding’ was an interlocutory decision. After considering this issue, the Appeal Tribunal in GP came to the same conclusion. It was thought that the various sections of the ACAT Act dealing with appeals when interpreted on the ordinary meaning of the words could only have referred to a final decision of the initiating application, and that there was no express power to appeal interlocutory decisions. Presidential Member Symons concluded at [68]:

The question is whether the consequence of the order or orders, as made on 21 June 2018 and 25 July 2018 finally determine the rights of the parties in a principal cause of action. (emphasis in original)

and at [68] and [69]:

… [the] decisions did not finally determine the parties’ rights in the principal causes of action, namely the defamation claims. His decisions are interlocutory decisions and no appeal lies from them.

GP submitted (see [53] above) that if her submissions about the orders being final orders were not correct then leave should be granted to appeal an interlocutory order because of the potential of harm to her if the suppression order was not extended to her address or if there is not a non-publication order. GP did not refer to any power in the ACAT Act that would permit the Appeal Tribunal to do what she asks. The Appeal Tribunal finds that this submission is without merit.

Submissions of the parties

8.           It was common ground that the removal decision was an interlocutory decision.

9.           The appellant submitted, in short, that on the authority of GP and for the reasons set out in that decision, the appeal was incompetent and should be dismissed.

10. The respondent argued that the word ‘application’ in section 79 of the ACAT Act included an application for removal under section 83. He submitted that whether the decision under section 83 was ‘interlocutory’ or not was not the test, rather the test was what was meant by the word ‘application’ appearing in section 79. The respondent pointed out that the Legal Practitioner decision was delivered in 2010, before an amendment to the ACAT Act to define the word ‘application’. It was also submitted that the decision in GP did not address all of the defined terms in the Dictionary to the ACAT Act which are drawn upon for section 79.

Consideration

11.         In other jurisdictions, it is commonly the case that a final decision can be the subject of an appeal, and ‘interlocutory’ decisions are either not appellable in their own right or appellable in their own right only with leave. This position and the reasons for it are explained as follows:

It is important to determine whether a judgment or order is final or interlocutory since, almost uniformly, leave of the first instance decision maker or appellate court is required to appeal against interlocutory judgments and orders. The policy behind this restriction is to promote the expeditious and economical determination of the substantive proceeding. A multiplicity of interlocutory appeals have not only the capacity to delay the resolution of disputes, it may also assist parties with ‘a long purse or a litigious disposition’ to financially exhaust their opponents before the matter is heard; …

A judgment or order is final if it (any appeal aside) finally determines the rights of the parties in a principal proceeding. It is the legal, rather than the practical, effect of a judgment or order that determines whether the judgment or order is final or not. For example, where an application for an order to set aside a default judgment in default of defence and to permit the filing of a defence has been dismissed, the order dismissing the application is not final since the respondent can, at least in theory, make another application for that relief. It matters not that, as a practical matter, the second application is, in the absence of some additional relevant facts, doomed to failure.

…

Nevertheless, a judgment or order in an interlocutory application may finally determine the issues contested in that application without finally determining the rights of the parties in the principal proceeding.

12.         In Burow v The Queen [2015] ACTCA 61 at [11] the ACT Court of Appeal explained:

As is trite law, appeals are creations of statute: “Accordingly it is always important... to identify the ... powers of the court or tribunal conducting [them]”: Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [50]; Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 at [57].

What is the extent of the right of appeal in section 79?

13. The use of the expression ‘original application’ in section 79 is not determinative as it seems, merely, to distinguish the application from the appeal application.

14. The key terms used in section 79 are ‘decided/decision’ and ‘application’.

15. Section 3 of the ACAT Act provides a Dictionary of terms used in the ACAT Act. The word ‘application’ is defined in the dictionary to the ACAT Act:

application—

(a)       for this Act generally—means an application under section 9; and

(b)       for parts 5 to 9 includes—

(i)      a matter referred or appealed to the tribunal under any authorising law; and

(ii) a matter heard or dealt with by the tribunal on its own initiative.

Examples—authorising laws under which a matter may be referred to the tribunal

1 Crimes Act 1900, s 331 (Referral to ACAT)

2 Human Rights Commission Act 2005, s 53A (Referral of discrimination complaints)

16. Section 9 of the ACAT Act says:

9   Applications under authorising laws

A person may apply to the tribunal if an authorising law provides that the application may be made.

17. Section 9 of the ACAT Act is the linchpin by which an authorising law and the ACAT Act are generally brought together to enliven the tribunal’s jurisdiction in a matter.

18. It is apparent from the Dictionary definition of ‘application’, and particularly the reference to section 9 of the ACAT Act, that ‘application’ means the originating process by which the tribunal’s jurisdiction is enlivened, be it by:

(a) application made to the ACAT under an authorising law;

(b) a matter referred to the ACAT as provided by an authorising law;

(c) a matter appealed to the ACAT as provided by an authorising law; or

(d) a matter heard or dealt with by the Tribunal on its own initiative.

19.         The Explanatory Statement to the legislation inserting the definition of ‘application’ in 2012 said as follows:

Applications

The term ‘application’ is used throughout the ACAT Act to mean an originating process lodged by a person, although many matters heard in the ACAT are referrals made to it under various enactments or have been heard by the ACAT on its own initiative. The Bill inserts a definition of ‘application’ that means an originating application under section 9, and for parts 5 to 9 of the ACAT Act a matter referred or appealed to the ACAT under an authorising law or a matter heard or dealt with by the tribunal on its own initiative.

20. It was submitted on behalf of the respondent that an application for removal under section 83 is an application within the terms of section 9, because it is an application to the tribunal provided for by an authorising law (the ACAT Act).

21. However, the Dictionary to the ACAT Act provides a specific definition of ‘authorising law’ which is inconsistent with the interpretation submitted by the respondent:

authorising law means—

(a)     a territory law that provides that an application may be made to the tribunal; and

(b) for a civil dispute—includes this Act.

22. The presence of sub-paragraph (b) in the definition of ‘authorising law’, providing expressly that the ACAT Act is an ‘authorising law’ for a civil dispute, means that the ACAT Act is not otherwise within the scope of sub-paragraph (a).

23.         It would be incorrect to argue that due to subparagraph (b) in the definition of authorising law, an interlocutory application in a civil dispute proceeding falls within the definition of ‘application’, as well as the civil dispute application itself. The consequences of this interpretation would be that interlocutory decisions in civil disputes would be internally appellable, but interlocutory decisions in other sorts of matters would not be. This is a perverse consequence, for which there is no support in the extrinsic material. It was not suggested by the respondent.

24. In our view, applying the defined terms to section 79, only final decisions of the originating process can be appealed within the tribunal.

25. The word ‘application’ does occur elsewhere in the ACAT Act where it does not conform with the definition imposed by section 3. Notwithstanding the Explanatory Statement to the 2012 amendments, ‘application’ is not always used as a reference to an originating process. However as noted in section 3, the Dictionary definition does not apply where the contrary intention appears. This is the effect of sections 155 and 156(1) of the Legislation Act 2001. This means that when the word ‘application’ appears in the ACAT Act one should apply the Dictionary definition, unless it is clear from the context that a different meaning is intended to apply. Clearly, in the examples we have cited below, the contrary intention is apparent. In section 79, however, there is no manifest contrary intention.

26. Further, we note the Tribunal had interpreted section 79 in this way before the definition of ‘application’ was inserted. The legislature must be taken to have been aware of that approach and in adding the definition must be taken to have affirmed this view.

27. If ‘application’ in section 79 is limited to the originating process – then it follows that decisions on every other sort of application are simply not amenable to internal appeal. So, for example, an application for a private hearing, or for interim orders, or for costs are applications in a proceeding and would not be internally appellable. Decisions about how the matter should progress, and how the hearing should be conducted, would be appellable only in the context of an appeal from the final decision on the substantive application. A party dissatisfied with the outcome on such an interlocutory point must take their concerns to the Supreme Court, if an immediate review is sought.

28. The other key term in section 79 is the word ‘decision’. The parties did not make submissions on this point; it was not disputed before us that the accepted meaning of ‘decision’ which excludes interlocutory findings or reasons, should be adopted:

An appeal lies from a judgment or order of a court and not the reasons for that judgment or order since the latter is not an operative judicial act. Reasons may explain the judgment or order and may form a precedent but they are not the order or judgment. Similarly a finding or ruling by a court or tribunal will not be appealable if no judgment or order is made in consequence thereof.

29.         This was the approach taken in both the Legal Practitioner decision and GP, with which we agree.

30. In conclusion, then, we consider that on its correct interpretation section 79 of the ACAT Act permits an internal appeal to be brought from a final decision on an originating process. It needs to be a decision – not merely a reason or ruling on the way to a decision – and it needs to determine the rights of the parties in the substantive application.

31.         It was for these reasons that the Appeal Tribunal dismissed the appeal.

Other matters

32. The appellant sought an order for costs relying on section 48 of the ACAT Act. It is clear that the Tribunal is bound by the decision of Penfold J that limits the power to order costs to the circumstances in section 48(2). It was not argued that any provision in section 48(2) applied and it did not appear to us to have any application.

33.         The costs application was therefore dismissed.

34. The respondent also signalled an intention to make a fresh application orally under section 83, directly to the Appeal Tribunal, limited to an argument that the matter should be removed to the Supreme Court because the Tribunal had no power to issue a certificate under section 128 of the Evidence Act 2011.

That application was opposed by the appellant. However, after some discussion, the respondent did not proceed with that foreshadowed application.

………………………………..

Presidential Member MT Daniel

for the Appeal Tribunal

HEARING DETAILS

FILE NUMBER:

AA 22/2019

PARTIES, APPELLANT:

Scott Walls

PARTIES, RESPONDENT:

Brett Coutts

COUNSEL APPEARING, APPLICANT

Mr Larkings

COUNSEL APPEARING, RESPONDENT

Mr Moffett

SOLICITORS FOR APPELLANT

Aulich Civil Law

SOLICITORS FOR RESPONDENT

David Healey Solicitors

TRIBUNAL MEMBERS:

Presidential Member MT Daniel

Senior Member B Meagher

DATES OF HEARING:

1 November 2019