Wilson v Brisbane; Wilson v Chan and Naylor Parramatta Pty Ltd

[2019] NSWSC 1598

Supreme Court

New South Wales

Medium Neutral Citation:

Wilson v Brisbane; Wilson v Chan & Naylor Parramatta Pty Ltd [2019] NSWSC 1598

Hearing dates:

23 October 2019

Date of orders:

21 November 2019

Decision date:

21 November 2019

Jurisdiction:

Common Law - Administrative Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The plaintiff’s applications for an extension of time to file an appeal in relation to both appeals are refused.

 

(2) The plaintiff’s applications for judicial review in relation to both decisions are dismissed.

 

(3) The amended summonses in relation to both proceedings are dismissed.

 (4) The plaintiff is to pay the first defendants’ costs in both proceedings on an ordinary basis.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Civil and Administrative Tribunal of NSW – Decisions of an Appeal Panel and Senior Member of the New South Wales Civil and Administrative Tribunal – Refusal to conduct judicial review under s 34 of the Civil and Administrative Tribunal Act 2013 (NSW)

PRACTICE AND PROCEDURE – Civil procedure – Application for leave to appeal from the decisions of an Appeal Panel and Senior Member of the New South Wales Civil and Administrative Tribunal as to costs – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Where the decision of the Senior Member does not involve an “external or internal appeal” – Inappropriate exercise of discretion – Failure to provide adequate reasons – Failure to afford procedural fairness

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 34, 38, 50, 60, 80, 82, 83
Fair Trading Act 1987 (NSW), s 79L
Judiciary Act 1903 (Cth), s 39
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 50.3, 59.10

Cases Cited:

Abdel-Messih v Marshall [2018] NSWSC 648
Attia v Health Care Complaints Commission [2017] NSWSC 1066
Attorney General for New South Wales v Gatsby [2018] NSWCA 254
Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; (2003) 202 ALR 450
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41
Coulter v R [1988] HCA 3; 164 CLR 350
Davis v NSW Land and Housing Corporation [2016] NSWCA 325
Gallo v Dawson [1990] HCA 30; 93 ALR 479
House v The King (1936) 55 CLR 499
Jackamarra v Krakouer (1998) 195 CLR 510
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262
McGinn v Ashfield Council [2012] NSWCA 238
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Mrjana v Imagine Education Australia Pty Ltd [2016] NSWCATAP 232
Nominal Defendant v Saleh [2011] NSWCA 16
Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24
Plath v Snowy Monaro Regional Council [2019] NSWCATAP 212
Qantas Airways Limited v Lustig [2015] FCA 253
s 39(2) of the Judiciary Act 1903 (Cth)
Tomko v Palasty (No 2) [2007] NSWCA 369
Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118
Wilson v Tetley [2003] NSWCA 124
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; (2013) 303 ALR 64
Zenden Sewell Henamast Pty Ltd [2011] NSWCA 56
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58

Category:

Principal judgment

Parties:

2019/83190
Stephen Wilson(Plaintiff)
Henry Carl Brisbane (First Defendant)
NSW Civil and Administrative Tribunal (Second Defendant)

  2019/83349
Stephen Wilson (Plaintiff)
Naylor Parramatta Pty Ltd AFT Chan & Naylor Parramatta Trust (First Defendant)
NSW Civil and Administrative Tribunal (Second Defendant)

Representation:

Counsel:
2019/83190
C P O’Neill (First Defendant)

 

2019/83349
D F Elliott (First Defendant)

 

Solicitors:
2019/83190
Self-Represented (Plaintiff)
Carter Newell Lawyers (First Defendant)

  2019/83349
Self Represented (Plaintiff)
Lander & Rogers Lawyers (First Defendant)

File Number(s):

2019/83190; 2019/83349

Publication restriction:

Nil

Judgment

1. HER HONOUR: The plaintiff seeks both a judicial review and an appeal against two decisions of the NSW Civil and Administrative Tribunal (“NCAT”) relating to costs in two proceedings. It is convenient that I write one judgment in relation to both decisions, as they concern similar matters and were both dealt with together at NCAT.

2. By notice of motion filed 11 October 2019, the plaintiff seeks firstly, an order that an extension of time be granted for leave to appeal the decision on costs made by the NCAT Appeal Panel Members S Westgarth and R Perrignon on 20 December 2018 pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the CAT Act”); and secondly, an order that the Appeal Panel and Tribunal reconsider the exercise of their discretion in a new hearing on costs, or granting that discretion be re-exercised by the Supreme Court, if special circumstances are found to exist contrary to NCAT principles in Mrjana v Imagine Education Australia Pty Ltd [2016] NSWCATAP 232 and Plath v Snowy Monaro Regional Council [2019] NSWCATAP 212 at [11].

3. In proceedings No. 2019/83190 (“the Brisbane proceedings”), the plaintiff is Stephen Wilson. The first defendant is Henry Carl Brisbane. The second defendant is NCAT.

4. In proceedings No. 2019/83349 (“the Chan & Naylor proceedings”), the plaintiff is Stephen Wilson. The first defendant is Chan & Naylor Parramatta Pty Ltd ATF Chan & Naylor Parramatta Trust. The second defendant is NCAT. In both proceedings, the second defendants have filed submitting appearances.

5. For ease of understanding in light of the long history of these proceedings, I will where convenient refer to the plaintiff by name and to the first defendants respectively as “Mr Brisbane” and “Chan & Naylor”.

6. Further, by two amended summonses filed 24 April 2019, one in respect of each matter, the plaintiff seeks firstly, an order that leave to appeal the decision on costs made on 20 December 2018 by the Appeal Panel and decision on costs made on 14 January 2019 by the Tribunal be granted and each party be order to bears its own costs before the Tribunal and Appeal Panel; secondly, an order that the appeal be allowed, and the decision on costs made on 20 December 2018 by the Appeal Panel and the decision on costs made on 14 January 2019 by the Tribunal be declared invalid and set aside; thirdly, an order that the Brisbane proceedings and the Chan & Naylor proceedings be heard together; and fourthly, an order granting an extension of time. The proceedings were heard together.

7. The amended summonses state under the heading “type of claim”:

“Appeal with leave under s 83(1) of the Civil and Administrative Tribunal Act and Review under Part 59 of Uniform Civil Procedure Rules 2005 (NSW) in respect of costs decision of NCAT Appeal Panel made on 20 December 2018 and costs decision of Tribunal Member L Wilson made on 14 January 2019.

8. I take this to mean that the plaintiff is seeking both leave pursuant to s 83(1) of the CAT Act to appeal on a question of law, as well as judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) in relation to the two decisions, namely, that of the Appeal Panel dated 20 November 2018 and of Senior Member L Wilson dated 14 January 2019. As previously stated, these decisions both relate to costs.

Background

9. On 2 November 2015, the plaintiff commenced proceedings against Chan & Naylor in NCAT for loss and damage arising out of alleged negligent advice concerning the establishment of a self-managed superannuation fund. The plaintiff joined Mr Brisbane as a second respondent to the NCAT proceedings on 17 October 2017. The plaintiff alleged that Mr Brisbane incorrectly advised him that he was in compliance with superannuation industry regulations, and failed to alert him and/or the Australian Taxation Office of the non-compliance.

10. On 29 June 2018, the Senior Member dismissed the NCAT proceedings brought against the respondents on the basis that the claims were statute barred under s 79(1)(a) of the Fair Trading Act 1987 (NSW), as they had been brought out of time. The Senior Member also found that the Tribunal did not have jurisdiction to hear and determine the dispute, as it required the application of federal legislation. Both Chan & Naylor and Mr Brisbane sought their costs against the plaintiff in respect of the NCAT proceedings. However, as the plaintiff commenced an appeal against the Senior Member’s decision, the Tribunal deferred its costs decision until after the Appeal Panel had heard the internal appeal.

11. On 20 December 2018, the NCAT Appeal Panel held that the Tribunal lacked jurisdiction to determine the issues in dispute and ordered that the proceedings against Chan & Naylor and Mr Brisbane be transferred to the Local Court. The NCAT Appeal Panel also ordered the plaintiff to pay both Chan & Naylor’s and Mr Brisbane’s costs of the appeal proceedings.

12. On 14 January 2019, in relation to the original proceedings, the NCAT Senior Member ordered that the plaintiff pay Chan & Naylor’s costs for the period of 8 September 2017 to date, and Mr Brisbane’s costs for the period of 17 October 2017 to date.

The legislation

13. It is convenient that I first set out the relevant provisions of the CAT Act here.

14. Section 38 of the CAT Act relevantly reads:

“38 Procedure of Tribunal generally

(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) Despite subsection (2):

(a) the Tribunal must observe the rules of evidence in:

(i) proceedings in exercise of its enforcement jurisdiction, and

(ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and

…

(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(5) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

(6) The Tribunal:

(a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(b) may require evidence or argument to be presented orally or in writing, and

(c) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.”

15. Section 50 of the CAT Act relevantly reads:

“50 When hearings are required

(1) A hearing is required for proceedings in the Tribunal except:

(a) in proceedings for the granting of leave for an external or internal appeal, or

(b) in connection with the use of any resolution processes in proceedings, or

(c) if the Tribunal makes an order under this section dispensing with a hearing, or

(d) in such other circumstances as may be prescribed by the procedural rules.

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

…”

16. Section 60 of the CAT Act relates to costs. It relevantly reads:

“60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),

(g) any other matter that the Tribunal considers relevant.”

17. Sections 80 of the CAT Act provides for internal appeals from a decision of the Tribunal at first instance to an Appeal Panel. It reads:

“80 Making of internal appeals

(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.

Note: Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1).

(2) Any internal appeal may be made:

(a) in the case of an interlocutory decision of the Tribunal at first instance--with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance--as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

(3) The Appeal Panel may:

(a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and

(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.”

The decision of the Senior Member dated 29 June 2018

18. On 29 June 2018, Senior Member Wilson (“the Senior Member”) dismissed Mr Wilson’s application and published reasons for her decision. This decision is not subject to judicial review or appeal. However, it is necessary that I briefly outline the decision of 29 June 2018 to contextualise the two related decisions which are the subject of these proceedings.

19. In her reasons, the Senior Member determined that Mr Wilson’s claim was statute barred under s 79L(1)(a) of the Fair Trading Act. Section 79L(1)(a) states that the Tribunal does not have jurisdiction to determine a consumer claim if the cause of action first accrued more than three years before the date of lodgement. However, the Senior Member continued:

“Even if I am wrong about that, there is no doubt the fact that [Mr Wilson] argues that the advice was negligent/a breach of the [Australian Consumer Law] because it did not comply with the [Superannuation Industry (Supervision) Act 1993 (Cth) (‘SISA’)] or [Superannuation Industry (Supervision) Regulations 1994 (Cth) (‘SISR’)] or lead [Mr Wilson] to contravene the SISA or SISR, means that the Tribunal cannot hear and determine this dispute as to do so would require the Tribunal to consider and apply federal legislation over which the Tribunal has no jurisdiction.”

20. At the hearing of these proceedings, counsel for Chan & Naylor stated that although the Senior Member did not refer to the authority she relied upon by name, her statements concerning the jurisdiction of the Tribunal were in reference to Qantas Airways Limited v Lustig [2015] FCA 253 (“Qantas Airways”).

21. The Senior Member dismissed the applications in relation to costs of the proceedings pending the outcome of Mr Wilson’s appeal of her decision to the Appeal Panel.

The decision of the Appeal Panel dated 20 December 2018

22. On 20 December 2018, the Appeal Panel, comprised of Deputy President S Westgarth and Senior Member R Perrignon (“the Appeal Panel”), handed down the reasons for its decision in relation to Mr Wilson’s appeal.

23. In its decision, the Appeal Panel summarised the decision of The Senior Member dated 29 June 2018, including her application of the principles of summary dismissal as follows at [10(3)]:

“(3) The application of the respondents seeking summary dismissal of the appellant’s applications must be determined by reference to the test to be applied in summary dismissal applications as stated in the decision of Shaw v State of New South Wales [2012] NSWCA 102. This involves determining that the claims are so obviously untenable or groundless that there is a high degree of certainty they will fail. In the particular context in which the applications for dismissal are raised, the issue does not concern the merit of the claims alleged against the respondents, but rather whether the claims may fail in the Tribunal by reason of the jurisdictional limits imposed by s 79L of the [Fair Trading] Act. In other words, the claims may succeed in a Court which is not restricted by s 79L.”

24. The Appeal Panel then stated that the Senior Member had determined that the Tribunal had no jurisdiction to consider and apply Commonwealth legislation. At [22] of its decision, the Appeal Panel referred to Attorney General for New South Wales v Gatsby [2018] NSWCA 254, in which the Court of Appeal held that NCAT is not a Court of a State within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution, with the consequence that NCAT cannot exercise federal jurisdiction. At [23]-[25], the Appeal Panel further referred to Qantas Airways, in which the Federal Court arrived at the same determination. At [26]-[27] of its decision, the Appeal Panel stated:

“[26] In our view, the allegations involve the assertion of a duty held by the respondents (or some of them) owed by the appellant to give advice concerning Federal law (in particular the law concerning Federal taxation and the management of superannuation entities which are regulated by Federal law). A consideration of the duty involves a consideration of Federal law.

[27] As a consequence, the points of claim involve the exercise of Federal jurisdiction and the Tribunal is not, in our view, vested with power to determine such a dispute.”

25. Under the heading “Appropriate Order”, the Appeal Panel noted that cl 6 of Sch 4 of the CAT Act enables NCAT to transfer proceedings to a court of proper jurisdiction. That power arises if the parties agree to the proposed transfer, or if the Tribunal, of its own motion or on the application of a party, so directs. Mr Wilson had argued if the Tribunal had no jurisdiction, it should transfer the proceedings to an appropriate court. At [72], the Appeal Panel stated:

“[72] …The respondents opposed that course but, in our view, offered no good reason for their opposition. If we simply dismiss the appeals, effectively affirming the orders made below, the appellant will be required, should he wish to continue with his claims, to commence proceedings in a Court. That would potentially expose him to an assertion that he has brought proceedings out of time prescribed by the Limitations Act. In our view, justice and fairness requires that the appropriate order should be one by which the proceedings are transferred to a Court and the appellant can thereafter determine whether he wishes to continue to prosecute his claims. In view of the amount claimed, the appropriate Court is the Local Court.”

26. As the Appeal Panel had determined that NCAT lacks jurisdiction, there was no need for the Appeal Panel to determine whether the Senior Member was correct in her consideration of s 79L of the Fair Trading Act.

27. As to the issue of costs of the appeal, the Appeal Panel stated at [59]:

“Costs of the Appeal

[59] Given that the appeal is in substance to be dismissed, the further question is whether we should order the respondents’ costs of the appeal to be paid by the Appellant. The respondents seek an order for costs. The Appellant has provided submissions opposing an order that he pay the respondents’ costs. In particular, the Appellant says that if the Tribunal transfers the proceedings to a Court of competent jurisdiction, costs should not be allowed as he has been, in effect, successful. We reject that submission. In our view, it cannot be said that the Appellant has been successful against the three respondents (i.e. those in respect of whom the Appellant withdrew his claim) and those respondents have been put to further unnecessary expense in being involved in this appeal. In our view, there are special circumstances of the kind contemplated by s 60 of the NCAT Act justifying an order for the costs of the appeal incurred by those three respondents to be paid by the Appellant. In particular, the appeal has unreasonably prolonged the time taken to complete the proceedings against those three respondents, and the appeal has lacked substance. Accordingly, given our finding of special circumstances, we propose to make an order that the costs of the three respondents in the appeal be paid by the Appellant.”

28. At [74], the Appeal Panel ordered that Mr Wilson’s application against Chan & Naylor and Mr Brisbane was to be transferred to the Local Court to be dealt with in accordance with that court’s rules and directions. Mr Wilson does not challenge the decision to transfer the proceedings to the Local Court. The Appeal Panel also ordered Mr Wilson to pay the costs of the respondents in relation to the appeal. Except in relation to those two orders, the Appeal Panel dismissed the plaintiff’s appeal.

The decision of the Senior Member as to costs dated 14 January 2019

29. On 14 January 2019, the Senior Member determined the costs application foreshadowed on 29 June 2019, and published reasons for her decision.

30. In her reasons, the Senior Member began by stating:

“[1] On 29 June 2018, the Tribunal made orders dismissing the application and inviting any costs application. The Tribunal directed any party making or opposing a cost application to include in those:

(1) Whether rule 38 of the Regs [sic] should apply

(2) If no, what are the special circumstances that justify an order for costs

(3) Whether the party consents to the application being determined on the papers.

[2] The first bullet point should have said ‘whether rule 38 of the Rules should apply’. However it appears all parties understood what they were to address and did so.”

31. The Senior Member then addressed the submissions of the parties, detailed the history of the proceedings and set out Rule 38(2)(b) and s 60 of the CAT Act reproduced earlier in this judgment. When considering whether special circumstances existed in the period of 8 September 2017 to the present, which would justify an order for costs, she stated at [67]:

“[67] As to the consideration in s. 60(3)(a), the Tribunal concludes that the applicant has conducted these proceedings in a way that unnecessarily disadvantaged the first and second respondents. I find the applicant served extensive material in support of his claim which the respondents’ solicitors had to spend time reviewing which would have been saved if they had been presented in an orderly, logical and concise manner. The Tribunal appreciates that, as at 29 June 2018, the applicant was self-represented. But he is an intelligent man who has been heavily involved in these proceedings for several years and has been legally represented for part of that history. He could have conducted the proceedings in a way that did not disadvantage the respondents to the extent that he has, with many amendments, changes of parties, filing of multiple proceedings some of which were withdrawn, others dismissed and other transferred, only to be transferred back to the Tribunal. The applicant has joined respondents, then sought the removal of those respondents, and served a Points of Claim document which did not clearly identify what he was claiming from each other numerous respondents.”

32. As to s 60(3)(b) of the CAT Act, she concluded that “despite being legally represented at times, and having a thorough understanding of the facts in issue, if not the law, the applicant has been responsible for prolonging unreasonably the time taken to complete the proceedings”.

33. The Senior Member considered that although the Tribunal cannot conclude that Mr Wilson’s application had no tenable basis in fact or law anywhere, it had no tenable basis in law in the Tribunal. She stated that it was misconceived to commence proceedings in the Tribunal, and to bring them back to the Tribunal in 2017.

34. Having considered the parties’ submissions and the evidence before her, the Senior Member made orders that Mr Wilson pay Chan & Naylor’s costs from 8 September 2017 to date on an ordinary basis, and that he pay Mr Brisbane’s costs from 17 October 2017 to date on an ordinary basis.

The appeal to this Court

35. Mr Wilson seeks an appeal in relation to the decisions of the Appeal Panel dated 20 December 2018 and of the Senior Member on 14 January 2019 pursuant to s 83(1) of the CAT Act.

36. Section 83 of the CAT Act reads:

“83 Appeals against appealable decisions

(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.

(2) A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings.

(3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following:

(a) an order affirming, varying or setting aside the decision of the Tribunal,

(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.

(4) Without limiting subsection (3), the appropriate appeal court for an appeal against a civil penalty may substitute its own decision for the decision of the Tribunal that is under appeal.

...”

37. Section 82 of the CAT act relevantly states:

“82 INTERPRETATION

(1) Each of the following kinds of decisions of the Tribunal is an ‘appealable decision’ of the Tribunal for the purposes of this Division:

(a) any decision made by an Appeal Panel in an internal appeal,

(b) any decision made by the Tribunal in an external appeal,

(c) any decision made by the Tribunal in proceedings in which a civil penalty has been imposed by the Tribunal in exercise of its enforcement or general jurisdiction.

…

(4) A reference to the Tribunal in another provision of this Division is to be read as a reference to an Appeal Panel if the appealable decision of the Tribunal concerned is a decision of an Appeal Panel.

…”

38. Section 83(1) of the CAT Act provides for “a party to an external or internal appeal” of the Tribunal to appeal to the Supreme Court. Although the drafting of ss 82 and 83 is “opaque”, the provisions have been found to operate to confine the scope for appeal under s 83(1) to the decision of an Appeal Panel, not of the Tribunal at first instance: see Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41 (“Bronze Wing”) per Basten JA at [10]; Abdel-Messih v Marshall [2018] NSWSC 648 (“Abdel-Messih”) per Walton J at [24]. This is because the decision of the Appeal Panel is an “internal appeal” under s 32(1) and (5) of the CAT Act, while the decision of a Tribunal member, such as the Senior Member in these proceedings, is neither an internal appeal nor an “external appeal” under s 31(3) and (4).

39. In Bronze Wing, Basten JA stated at [11]:

“[11] It would be a rare case in which the Supreme Court would grant leave to appeal on a question of law which had not been raised before the Appeal Panel and which, accordingly, had not been the subject of ‘any decision made by [the Appeal Panel] in the proceedings.’ No such ground for leave was invoked in the present case. Accordingly, the grounds available before the primary judge in the Common Law Division were limited to matters of law which had been raised before the Appeal Panel.”

40. For these reasons, Chan & Naylor submitted that the plaintiff does not have a right of appeal to the Supreme Court against the decision of the Senior Member on 14 January 2019 as to costs. It is my view that this submission must be correct. However, I will consider the plaintiff’s grounds of review in relation to the decision of the Senior Member on costs, as that decision is amenable to judicial review under s 69 of the Supreme Court Act, which the plaintiff also seeks. I will return to the plaintiff’s application for judicial review later in this judgment.

Extension of time to appeal

41. Proceedings by way of statutory appeal under s 83(1) of the CAT Act must be instituted within 28 days of the decision in accordance with r 50.3 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The plaintiff filed his summons in relation to both appeals on 15 March 2019. As such, the plaintiff has filed his appeals in relation to both decisions out of time.

42. The principles which apply to an extension of time to appeal are well established. Mr Wilson bears the onus of demonstrating that strict compliance with the timeframe would work an injustice upon him: see Gallo v Dawson [1990] HCA 30; 93 ALR 479. Relevant considerations include the length of the delay and any reasons for it, as well as the strength of Mr Wilson’s case and whether the respondents would be prejudiced by granting the application: see Jackamarra v Krakouer (1998) 195 CLR 510 at [3]-[5]; Tomko v Palasty(No 2) [2007] NSWCA 369 at [55].

43. Mr Wilson (Aff, 11 October 2019) deposed that he did not know that the time limit for filing the summons for leave to appeal was less than three months (Aff, [4]). He is unrepresented in these proceedings. As I am to consider the strength of his case when determining whether leave should be granted to appeal, I will first turn to consider that application before making my determination as to whether or not to grant an extension of time in relation to it.

44. For the reasons which follow, I refuse the plaintiff’s application for leave to appeal. As such, I refuse his application to extend time to appeal.

Leave to appeal

45. Section 83(1) of the CAT provides that Mr Wilson requires leave from the Supreme Court and may only appeal on a question of law. Chan & Naylor and Mr Brisbane oppose the granting of leave.

46. Two cases which deal with the principles governing leave to appeal are Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (“Das”) and Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 (“Lee”).

47. In Das, the Court of Appeal set out the principles to be considered in deciding whether leave to appeal should be granted. At [32], [33] and [35], Basten JA stated:

“[32] The principles governing cases such as these have recently been restated in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. As Campbell JA noted (with the agreement of Young JA) at [22]:

‘It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute.’

[33] In Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Campbell JA, with the agreement of Young and Meagher JJA, expanded on his summary of Carolan, noting that Kirby P had recognised ‘that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable’: at [46].

…

[35] In Coulter v The Queen [1988] HCA 3; 164 CLR 350, dealing with a challenge to a refusal of the South Australian Full Court to grant leave to appeal in a criminal matter, the majority noted that a leave requirement was a preliminary procedure ‘recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention’: at 356 (Mason CJ, Wilson and Brennan JJ). That statement is clearly applicable to civil, as well as criminal, appellate jurisdiction.”

48. Similarly, in Lee, Bathurst CJ at [12] outlined the principles relevant to the granting of leave as follows:

“12 The principles upon which leave to appeal is granted are well established. Ordinarily it is only appropriate to grant leave concerning matters that involve issues of principle, questions of general public importance or where it is reasonably clear there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34].”

49. In Coulter v R [1988] HCA 3; 164 CLR 350 at 359, Deane and Gaudron JJ noted the requirement for leave:

“... represents a constraint upon the overall cost of litigation by protecting parties, particularly respondents, from the costs of a full hearing of appeals, which should not properly be entertained by the relevant court either because they are hopeless or, in the case of a civil appeal to the second appellate court, because they do not possess special features which outweigh the prima facie validity of the ordinary perception that the availability of cumulative appellate processes can, of itself, constitute a source of injustice.”

50. The authorities referred to above are equally applicable in these proceedings.

51. One relevant but discretionary factor to consider when determining whether to grant leave to appeal under s 83 of the CAT Act is the size of the claim. Although there is no minimum amount specified, the Court has refused to grant leave in matters involving a small amount where the Court considers the grant of leave to be unwarranted having regard to the appropriate allocation of court resources and the disproportionate costs to the parties: see Wilson v Tetley [2003] NSWCA 124; Zenden Sewell Henamast Pty Ltd [2011] NSWCA 56. However, even when relatively small amounts are involved, leave ought not to be denied where there has been a clear injustice: see He v Yeung [2015] NSWCA 392 at [49] per Bergin CJ (Beazley P and Meagher JA agreeing).

52. The other relevant factors I am to consider are those set out by Campbell JA (Young and Meagher JJA agreeing) in Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. Specifically, these are whether the present proceedings concern an issue of principle, a question of general public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable, that the primary decision was in error: see also Bathurst CJ (Macfarlan and Barrett JJA agreeing) in Lee. As such, I will consider whether the plaintiff’s amended summons raises questions of law which are more than merely arguable.

Grounds of appeal

53. An appeal on a question of law is not merely a qualifying condition to the right of appeal, but the question of law is the subject matter of the appeal: see Davis v NSW Land and Housing Corporation [2016] NSWCA 325 per McColl JA at [77]. Questions of law are not to be distilled from the grounds of appeal itself, but should be clearly identified: see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 per French CJ, Gummow and Bell JJ at [21]. Questions of law should not simply be statements to the effect that the Tribunal made legal errors, but should state questions of law to support the orders sought on appeal: see Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; (2003) 202 ALR 450 per Branson J at [47].

54. In his amended summons dated 24 April 2019, the plaintiff identified the following grounds of review:

“1. [The Appeal Panel/Tribunal] erred in finding that there was no error on the part of the Tribunal or [the first defendants’] conduct and failed to consider in the exercise of [its] discretion that Stephen Wilson must not be ordered to pay costs beyond 3 November 2016…

2. [The Appeal Panel/Tribunal] erred in all its findings for special circumstances and discretion to order costs.

3. [The Appeal Panel/Tribunal] failed to consider with adequate reasons in [the] exercise of [its] discretion legal principles for awarding costs based on issues and factors that militate awarding costs to [the] successful party.

4. [The Appeal Panel/Tribunal] failed to consider in [the] exercise of [its] discretion principles of Calderbank offers.

5. [The Appeal Panel/Tribunal’s] findings [were] inconsistent with the findings in Mrjana v Imagine Education Australia Pty Ltd [2016] NSWCATAP 232.”

55. These grounds of review fall into three main areas: firstly, that the Appeal Panel and/or the Senior Member inappropriately exercised their discretion in relation to their awards of costs (grounds 1, 2 and 5); secondly, that they failed to provide adequate reasons for their decisions (ground 3); and thirdly, that the Senior Member denied the plaintiff procedural fairness (grounds 1 and 4).

56. Mr Wilson has not clarified in his submissions how these grounds of review relate to s 83 of the CAT Act and/or his judicial review. For the purposes of his appeal under s 83(1) of the CAT Act, I will now turn to consider whether these grounds raise questions of law which are more than merely arguable. It is convenient that I begin with grounds 1, 2 and 5 together, followed by grounds 1 and 4, and finally ground 3.

Grounds 1, 2 and 5 – Inappropriate exercise of discretion

Mr Wilson’s submissions

57. The plaintiff submitted that in reaching their decisions, the Appeal Panel and Senior Member erred in finding that there existed special circumstances which merited an award of costs.

58. As to the Appeal Panel’s decision, he submitted that it awarded both the applicant and the first defendants a measure of success. Mr Wilson was successful in that the Appeal Panel rejected the first defendants’ application for summary dismissal, and transferred the proceedings to the Local Court. The first defendants were successful in establishing that NCAT had no powers to exercise federal jurisdiction. He also submitted that the Appeal Panel failed to provide adequate reasons for its decision.

59. As to the decision of the Senior Member as to costs, Mr Wilson submitted that she failed to properly consider that Mr Brisbane’s legal representatives had filed an unreasonable application for summary dismissal that improperly increased costs. Mr Wilson submitted that this application was incorrectly granted by the Senior Member at first instance, but was correctly rejected by the Appeal Panel. He argued that previous Tribunal members, including Senior Member Boyce in 2016, and the first defendants, had contributed to the delay in the proceedings being transferred to the Local Court by failing to make or apply for such orders. By failing to properly consider the shared responsibility for delay, Mr Wilson submitted that the Senior Member committed errors in the Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 and House v The King (1936) 55 CLR 499 sense.

The first defendants’ submissions

60. Both Chan & Naylor and Mr Brisbane submitted that as the plaintiff’s appeal relates to a discretionary decision, he must demonstrate that the Appeal Panel [and Senior Member] erred in the proper exercise of their discretion: see House v The King. Namely, such an error would involve: (1) an error of legal principle, or a material error of fact; (2) the decision maker taking into account some irrelevant matter, or failing to take into account or afford sufficient weight to a relevant matter; or (3) the decision maker arriving at a result so unreasonable or unjust that some such error must have been made.

61. The first defendants submitted that the appeal fails at every hurdle. The plaintiff has failed to demonstrate a House v The King error. Further, there is no issue of principle or significant injustice that is likely to result if leave is not granted. The plaintiff has not shown any injustice, let alone one that is reasonably clear. Chan & Naylor and Mr Brisbane submitted that a grant of leave in these circumstances is not warranted, having regard to the appropriate allocation of court resources and the disproportionate costs to the parties.

Consideration

62. Sections 60(1) and (2) of the CAT Act state that each party to proceedings in the Tribunal is to pay its own costs, unless the Tribunal determines that special circumstances warrant an award of costs. In determining whether special circumstances exist, the Tribunal may have regard to the factors in s 60(3) (my emphasis). Those include whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party; whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; the relative strengths of the parties’ claims; their nature and complexity; whether the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance; whether a party has refused or failed to comply with the duty imposed by s 36(3) of the CAT Act to cooperate with the Tribunal to give effect to the just, quick and cheap resolution of the real issues in the proceedings; or any other matter the Tribunal considers relevant.

63. In its consideration of costs at [59], the Appeal Panel addressed the issue of whether special circumstances existed to merit an award of costs, reproduced earlier in this judgment at [27].

64. At [74] of its decision, the Appeal Panel made an order for Mr Wilson’s application against the respondents to be transferred to the Local Court. It also ordered Mr Wilson to pay the respondents’ costs of the appeal. Except in relation to those two orders, the Appeal Panel dismissed Mr Wilson’s appeal. At the hearing of these proceedings, counsel for Chan & Naylor characterised the Appeal Panel’s decision as stating that, “effectively, the appeal was meritless” (T 25.48).

65. Discretionary decisions can be challenged on appeal only on the bases outlined in House v The King as follows at 504-505:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

66. The plaintiff’s case is that because he was not singularly responsible for the delay to the proceedings, the Appeal Panel erred in finding that there were special circumstances under s 60 of the CAT Act. He sought to rely on the NCAT case of Mrjana v Imagine Education Australia Pty Ltd (2016) NSWCATAP 232 (“Mrjana”), which concerned a self-represented plaintiff whose case was also determined not to fall under the jurisdiction of NCAT. In Mrjana, the NCAT Appeal Panel exercised its discretion to find that special circumstances did not exist such as to make an award of costs against her. Amongst other considerations, the Appeal Panel in Mrjana stated at [65] that it reached its decision because “at all times it seems to us that [the plaintiff] acted reasonably in the conduct of the proceedings having regard to what she understood to be legal rights.” In these proceedings, Mr Wilson submitted that the Appeal Panel and Senior Member erred in failing to reach the same conclusion in respect of his conduct.

67. There are several reasons why Mr Wilson’s submissions in relation to Mrjana are misconceived. Firstly, the issue of whether the Tribunal in Mrjana had jurisdiction to hear the claim was complicated by a factual and legal dispute concerning the place of formation of the contract in issue. It was not a case, as this is, where the original decision of the Senior Member on 29 June 2018 made clear that the Tribunal lacked jurisdiction due to the very nature of the claim brought under Federal legislation. It was open to the Appeal Panel in these proceedings to conclude that Mr Wilson’s decision to appeal the decision led to further unnecessary expense and inconvenience to the parties.

68. Secondly, the Appeal Panel in this case (and for that matter, the Senior Member) were not bound to exercise their discretion in the same manner as the Appeal Panel in Mrjana. Again, it was open to the Appeal Panel in these proceedings to consider on the facts before them that the plaintiff’s appeal unreasonably prolonged the time taken to complete the proceedings against Chan & Naylor and Mr Brisbane, and that the appeal lacked substance, as the Appeal Panel lacked jurisdiction for the same reasons given by the Senior Member.

69. For these reasons, the plaintiff has failed to demonstrate that the Appeal Panel acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect it, mistook the facts, or failed to take into account some material consideration as required. It is my view that this ground of appeal in relation to the Appeal Panel’s decision is not more than merely arguable.

70. As to the decision of the Senior Member, these proceedings are an appeal from the Appeal Panel’s decision only (see Bronze Wing at [10]; Abdel-Messih at [24]). As such, this ground of review in relation to the Senior Member’s decision must fail. However, I will consider the merits of this ground as the Senior Member’s decision as to costs is amenable to judicial review, which the plaintiff also seeks.

71. The Senior Member addressed the issue of costs at [67] of her decision, reproduced earlier in this judgment at [31]. The Senior Member concluded at [70] of her decision that “despite being legally represented at times, and having a thorough understanding of the facts in issue, if not the law, the applicant has been responsible for prolonging unreasonably the time taken to complete the proceedings” (see s 60(3)(b)) of the CAT Act).

72. Again, in order to challenge the discretionary decision of the Senior Member, Mr Wilson must demonstrate that she acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistook the facts, or did not take into account some material consideration as required. In her decision, the Senior Member traversed the history of the proceedings, the submissions of each party and the application of s 60 of the CAT Act. Although she acknowledged that the plaintiff was not legally qualified, she ultimately determined that his conduct in commencing multiple proceedings, making amendments, and joining parties unnecessarily disadvantaged the other parties to the proceedings and merited an award of costs. For the reasons given above in relation to the Appeal Panel, the Senior Member was not bound in the exercise of her discretion to arrive at the same determination reached in Mrjana. I discuss the Senior Member’s decision in greater detail when I discuss procedural fairness. However for these reasons, in relation to this ground of review, it is my view the plaintiff has raised no questions of law which are more than merely arguable.

Grounds 1 and 4 – Procedural fairness

73. At the hearing of these proceedings, the plaintiff stated that he was denied procedural fairness in relation to the Senior Member’s decision as to costs on 14 January 2019 because written submissions on costs were not ordered and his oral submissions on costs were not considered (T 17.48-50). When asked in this Court what input he had been given into costs, Mr Wilson stated, “Zero” (T 18.12). He said that if all of his oral and written submissions had been considered, the Senior Member would have reached a different outcome.

74. As stated earlier, these proceedings are an appeal from the Appeal Panel’s decision, not that of the Senior Member (see Bronze Wing at [10]; Abdel-Messih at [24]). This ground of review must fail. However, I will consider the merits of this ground, as I have already stated that the Senior Member’s decision as to costs is amenable to the judicial review he also seeks.

Mr Wilson’s submissions before the Senior Member

75. Despite the plaintiff’s statement that he was given no input before the Senior Member in relation to her decision on costs, he in fact made numerous submissions to the Senior Member. They are as follows.

76. On 9 August 2018, Mr Wilson filed submissions with NCAT opposing costs in relation to the decision of the Senior Member 29 June 2018 (Ex 3). His submissions were headed, “No Special Circumstances or Discretion Not to Be Exercised Assuming Special Circumstances”.

77. In his submissions, Mr Wilson addressed the considerations to which the Tribunal may have regard under s 60(3)(a)-(g) of the CAT Act when determining whether special circumstances warrant an award of costs. As to s 60(3)(a), he submitted that he acted reasonably in the conduct of the proceedings, having regard to what he understood to be his legal rights: see Mrjana. He further submitted that he did not unreasonably prolong the time to complete the proceedings, and that his claim had a tenable basis in fact or law (ss 60(3)(b)-(c)).

78. As to s 60(3)(d), he submitted that the issue involved in the case, namely whether the Tribunal had jurisdiction, was not complex. He further submitted that the proceedings were not frivolous, vexatious or otherwise misconceived or lacking in substance (s 60(3)(e)). As to whether or not a party has refused or failed to comply with the duty to facilitate the just, quick and cheap resolution of the real issues in the proceedings under s 60(3)(f), Mr Wilson submitted that the respondents had breached the Tribunal’s timetable by not serving submissions in date, and by “conceal[ing]” their knowledge of that the Tribunal did not have jurisdiction at the first hearing. Finally, as to s 60(3)(g), he submitted that “a self-represented person seeking to pursue [his] rights of appeal could not be said to be unreasonable”: see Mrjana.

79. At the end of his submissions, Mr Wilson responded, paragraph by paragraph, to Mr Brisbane’s submissions.

80. In addition to his written submissions, Mr Wilson filed a statutory declaration with NCAT dated 30 August 2018. In that document, he set out detailed submissions as to why he should not be ordered to pay costs, including a list of objections to specific costs of sought by Chan & Naylor, with paragraph references to the affidavit of its solicitor, Jonathan Hunt (CB 153-155).

81. Attached as an annexure to the statutory declaration of 30 August 2018, Mr Wilson included an email to NCAT dated 12 August 2018. In the email, he wrote that the District Court order of 8 September 2017 to transfer the proceedings to NCAT was null and void, as NCAT lacked jurisdiction to hear the proceedings. As such, the proceedings were still in the jurisdiction of the District Court. Mr Wilson then continued (CB 156):

“I made the below reasonable offer to the Respondents to avoid further incurring of costs which they all REJECTED without reasons. Hence, [I] respectfully request no order as to costs or each party to bear their own costs since all the above was known to all the Respondents joined since the judgment of Senior Member Boyce on 5 April 2016 or at least from 8 September 2017 but they continued to incur costs in the Tribunal unreasonably and for their own financial benefit to the detriment of District Court and Tribunal by breaching the guiding principle of ‘just, cheap and quick’.”

82. The reasonable offer to which Mr Wilson referred was attached in an email dated 9 August 2018 to Jonathan Hunt, Craig Hyde and Wendy Bure, solicitors for the respondents. In that email, Mr Wilson stated (CB 157):

“…All of you knew [NCAT lacked jurisdiction to hear the proceedings] since before Senior Member Boyce and thereafter because all of you are legally trained and qualified yet you continued to incur costs in Tribunal and Appeal Panel for your own financial benefit.

To avoid breaching the guiding principle ‘just, cheap and quick’ any further would any respondent/s individually or joint and severally like to consent to set aside orders of District Court made on 8 September 2017 to continue with the proceedings in District Court? Please feel free to let me know by 5 pm tomorrow 10 August 2018. I will rely on this email at any hearing.

…”

83. On 14 January 2019, Mr Wilson sent an email to NCAT and addressed to the Senior Member and Registrar. The email reads:

“…

In addition to my e-mail below, I seek leave for you/Tribunal to consider my below submissions:

I was successful before [the] Appeal Panel on the issue of transfer of proceedings from NCAT to Court. Respondents were unsuccessful in opposing the transfer on various grounds.

I was unsuccessful before[the] Appeal Panel on the issue of [the] Tribunal’s jurisdiction – whether [the] Tribunal had or did not have jurisdiction. Respondents were successful in establishing NCAT is not a Court and therefore [the] Tribunal did not have jurisdiction.

Based on the below Court of Appeal principles, each party must be ordered to pay its own costs

21. Where there are separable issues, the Court of Appeal summarised the relevant principles in Bostik at [38] as follows:

If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ord (No 2) [2006] NSWCA 374 at [27].

A separable issue can relate to ‘any disputed question of fact or law’ before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

…”

84. Attached to the email was another, addressed to the Senior Member and dated 10 January 2019. That email reads:

“…

On 20 December 2018 in [2018] NSWCATAP 311 [the] Appeal Panel wrote in paragraph 50 of this judgment judgment [sic] ‘the NCAT Act expressly gives power to the Tribunal to determine whether it has jurisdiction: see ss 4 and 29(2) of the NCAT Act’ and in paragraph 54 ‘We are of the view that the appellant seeks to invoke Federal jurisdiction and that therefore the Tribunal has no power to determine the dispute. There is no need to determine whether the 20 June Decision was correct in its consideration of s 79L of the FT Act.

The above means that on 3 November 2016 in [2016] NSWCATAP 236 [the] Appeal Panel no powers and erred in not transferring proceedings to local court on its own motion by seeking oral and/or written submissions. If [the] Appeal Panel had transferred proceedings to local court then there could be no proceedings in [the] Tribunal and no costs would have been incurred.

ONCE AGAIN Tribunal Senior Member Vrabac failed to transfer proceedings on its own motion to the local court at the hearing on 17 October 2017 by seeking oral submissions and Tribunal Barrister Ringrose failed to transfer proceedings on its own motion to the local court at the hearing on 19 January 2018 by seeking oral submissions. Hence Stephen Wilson must not be ordered to pay costs BEYOND 17 OCTOBER 2017 OR 19 JANUARY 2018.

Stephen Wilson respectfully requests for the above submission to be considered in the exercise of the Tribunal’s discretion ON COSTS.

…”

The Senior Member’s consideration

85. In her decision under “Submissions and evidence”, the Senior Member summarised the costs applications of Chan & Naylor and Mr Brisbane. She then stated at [5]:

“[5] On 9 August 2018 the applicant provided submissions opposing any cost order against him. There were two sets of submissions; the first were in relation to the costs sought by [Chan & Naylor] and the second were in relation to the costs sought by Henry Brisbane. On Saturday 12 August 2018 the applicant sent an email which he asked the Tribunal to consider as part of his cost submissions. On 30 August 2018 the applicant filed a statutory declaration in support of his cost submissions opposing any cost order against him which annexed, among other things, the email of 12 August 2018.”

86. The Senior Member continued at [7]:

“[7] In making a decision in relation to the costs application, the Tribunal has considered:

(1) The applicants’ submissions and evidence on costs…”

87. The Senior Member determined to dispense with a hearing. Her reasons for doing so are set out at [14]-[15] as follows:

“[14] The Tribunal makes an order dispensing with a hearing as it is satisfied that the issues for determination, namely costs, can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged or provided to the tribunal: s 50(2) NCAT Act.

[15] In so ordering the Tribunal took into account the submissions of the parties which the Tribunal had specifically requested should include submissions about determining the question of costs on the papers. The second respondent supported such an order. The first respondent and applicant made no comment about it but filed substantial submissions and evidence in support, with the assumption they did not expect the Tribunal to hold a further hearing in person.”

88. The Senior Member then addressed Mr Wilson’s submission that the respondents rejected his reasonable offer(s) at [71]-[72] as follows:

“[71]…It is difficult to assess whether the rejection of the offers of settlement were reasonable or unreasonable in the circumstances that the proceedings are yet to be finally determined [in the Local Court].

[72] The Tribunal considers the rejection of the applicant’s open offer to the respondents in email sent 9 August 2018 not such as would prevent the Tribunal from ordering costs against him. The offer was to transfer the proceedings back to the District Court, after the Tribunal on 20 and 29 June 2018 had already determined the Tribunal had no jurisdiction to hear the matter and it has not been transferred back to that Court in any event. It has been transferred to the Local Court. This ‘offer’, if that is what it is, would best have been relied on by the applicant opposing costs in the Appeal proceedings, and cannot be taken into account in deciding the costs of 29 June 2018 as tat hearing had concluded by 9 August 2018.”

Consideration

89. The question of procedural fairness was considered in Nominal Defendant v Saleh [2011] NSWCA 16, where McColl JA (with Beazley and Giles JJA agreeing) held at [17]:

“[17] ‘Procedural fairness’ is a convenient description of the appellant’s complaint and the primary judge’s approach denied it a fair trial. The appellant’s complaint may also be expressed as raising a ‘question of practical fairness and justice’ (Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 (at [4] per Giles JA) or a requirement of ‘fair play and commonsense’: Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492 (at [32]) per Chernov JA (Warren CJ agreeing) citing Jobst v Inglis (1986) 41 SASR 399 per Jacobs J.”

90. More recently in Attia v Health Care Complaints Commission [2017] NSWSC 1066, Walton J stated at [174]:

“[174] It is a fundamental rule of the common law that, generally speaking, when an order is to be made which will deprive the person of some right or interest he is entitled to know the case that is sought to be made against him and to be given an opportunity of replying to it: Kioa v West (1985) 159 CLR 550 at 582 (per Mason J)”.

91. At the hearing in this Court, after Mr Wilson was referred to his written submissions and to the references made to them by the Senior Member in her decision, Mr Wilson conceded that he “suppose[d] it was an opportunity” to be heard (T 20.48). Nevertheless, he argued that the Senior Member at least had not properly considered his submissions nor provided adequate reasons for dismissing his application.

92. Mr Wilson submitted that the Senior Member’s alleged failure to consider his submissions was in breach of s 50 of the CAT Act. I do not agree. Mr Wilson had ample opportunity to provide written submissions before the Senior Member. At the date of her decision, the Senior Member had before her his detailed submissions, statutory declaration and multiple emails. She was satisfied that the issue of costs could be adequately determined in the absence of the parties by considering their written submissions and documents: s 50(2) CAT Act. Mr Wilson was not entitled to a hearing under the CAT Act in respect of those proceedings.

93. In her decision, the Senior Member addressed the substance of Mr Wilson’s submissions as to costs. She acknowledged that the proceedings had involved a long and unfortunate history of transfer between jurisdictions. However, in determining whether special circumstances existed to warrant an award of costs, she acknowledged that it was Mr Wilson who was in part responsible the fact that the proceedings had been unreasonably prolonged. Moreover, she was not willing to determine that the respondents’ rejection of Mr Wilson’s offer for compromise was unreasonable, as the proceedings have yet to be finally determined in the Local Court. The Senior Member stated that Mr Wilson’s offer of 9 August 2018, which he sent to the respondents after her decision of 29 June 2018, was not relevant to a determination of costs in relation to that decision.

94. For these reasons, Mr Wilson has failed to demonstrate that he was denied procedural fairness. It is my view that this question of law is not more than merely arguable.

Ground 3 – Failure to provide adequate reasons

95. Mr Wilson submitted that the Senior Member and Appeal Panel failed to provide adequate reasons for their decisions to dismiss his applications as to costs.

96. In considering whether to grant leave to appeal, I adopt the approach that this Court should not read the Senior Member’s or the Appeal Panel’s reasons “with an eye finely tuned for error”: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [67] per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291.

97. I also bear in mind that what constitutes sufficient reasons for a Senior Member and Appeal Panel differs from that of a court. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; (2013) 303 ALR 64 (“Wingfoot”), the High Court stated at [54]-[56]:

“[54] The objective, within the scheme of the Act, of requiring the medical panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the medical panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.

[55] The standard required of a written statement of reasons given by a medical panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.

[56] The Court of Appeal considered that a higher standard was required of a written statement of reasons given by a medical panel under s 68(2) of the Act. On the premise that Brown held that the opinion of a medical panel must be adopted and applied for the purposes of determining all questions or matters arising under or for the purposes of the Act, the Court of Appeal analogised the function of a medical panel forming its opinion on a medical question to the function of a judge deciding the same medical question. Accordingly, it then equated the standard of reasons required of a medical panel with the standard of reasons that would be required of a judge giving reasons for a final judgment after a trial of an action in a court. The application of that judicial standard in circumstances where an affected party had provided to the medical panel opinions of other medical practitioners and had sought in submissions to rely on those opinions, and where the opinion formed by the medical panel itself did not accord with those opinions, meant that “it was incumbent on the [P]anel to provide a comprehensible explanation for rejecting those expert medical opinions or, if it be the case, for preferring one or more other expert medical opinions over them”. Rejection of the premise and the analogy, for reasons already stated, entails rejection of the conclusion that the higher standard is required. A medical panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.”

98. While Wingfoot refers to a medical panel under the Accident Compensation Act 1985 (Vic), the standard for written reasons set out at [54]-[56] above apply equally to the Senior Member and Appeal Panel under the CAT Act in this case.

99. I have already outlined in detail the decisions of the Appeal Panel and Senior Member as to costs in my consideration of the previous two grounds. In its decision, the Appeal Panel canvassed the conduct of the Mr Wilson, Chan & Naylor and Mr Brisbane in the long history of the proceedings. When considering the relevant factors under s 60 of the CAT Act, the Appeal Panel concluded that Mr Wilson’s decision to appeal in circumstances where the Tribunal lacked jurisdiction unreasonably prolonged the time taken to complete the proceedings against Chan & Naylor and Mr Brisbane, and that the appeal lacked substance. As such, it found that special circumstances existed such as to merit an award of costs.

100. In her decision as to costs, the Senior Member also detailed the conduct of the parties and the considerations under s 60 of the CAT Act. She provided detailed reasons as to why she was not persuaded by Mr Wilson’s submissions, and why she did not determine that his offers of compromise were not unreasonably rejected by the first defendants.

101. In order to meet the legal standard outlined in Wingfoot at [55], the Appeal Panel and Senior Member’s reasons were required to explain their actual path of reasoning in sufficient detail to enable a court to see whether their opinions involved an error of law. It is my view, for the reasons given, that both the Appeal Panel and Senior Member have met this standard. This ground of appeal is therefore not more than merely arguable.

102. I have considered the questions of law outlined in the plaintiff’s amended summons. In my view, none of them are more than merely arguable. In these circumstances, the plaintiff has failed to demonstrate that these proceedings concern an issue of principle or a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable, that the primary decision was in error.

103. Having taken these matters into account, in the exercise of my discretion, I refuse to grant leave to appeal.

Judicial review

104. In addition to his application to appeal, Mr Wilson seeks judicial review in relation to both the decision of the Appeal Panel dated 20 December 2018 and the Senior Member on 14 January 2019 on the same grounds set out at [54] of this judgment.

105. This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal, including decisions of both the Appeal Panel and Senior Member of NCAT, if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act.

106. Proceedings for judicial review of a decision must be commenced within three months of the decision: see UCPR 59.10(1). The plaintiff’s summons was filed on 15 March 2019. As such, he commenced his proceedings in relation to both decisions in time.

107. Section 34 of the CAT Act contemplates certain circumstances in which the Supreme Court may refuse to conduct a judicial review of a Tribunal decision. Section 34 relevantly reads:

“34 Inter-relationship between Tribunal and Supreme Court

(1) The Supreme Court may:

(a) refuse to conduct a judicial review of an administratively reviewable decision if it is satisfied that, in all the circumstances, adequate provision is made for an internal review of the decision or an administrative review of the decision by the Tribunal under the Administrative Decisions Review Act 1997 , or

(b) refuse to conduct a judicial review of a decision of an external decision-maker if it is satisfied that, in all the circumstances, adequate provision is made for the review of the decision by the Tribunal by way of an external appeal, or

(c) refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision.

(2) This section:

(a) permits, but does not require, the Supreme Court to refuse to conduct a judicial review of a decision on a ground referred to in subsection (1), and

(b) does not limit any power that the Supreme Court has, apart from this section, to refuse to conduct a judicial review of a decision.

…”

108. As to the decision of the Appeal Panel, counsel for Chan & Naylor submitted that s 34(1)(b) permits this Court to refuse to conduct a judicial review of the Appeal Panel’s decision (T 31.1-4). However, for the reasons I have given in relation to the plaintiff’s appeal under s 83 of the CAT Act, the Appeal Panel is not an external decision-maker, nor did it conduct an external appeal. As such, the Appeal Panel’s decision is not caught by s 34(1)(b) of the CAT Act. Nevertheless, for the reasons I have given in relation to the plaintiff’s appeal, it is my view that the Appeal Panel’s decision was not based on an error of law on the face of the record of the proceedings.

109. Section 34(2)(b) states that nothing in that section limits the power of this Court to refuse to conduct a judicial review. In the exercise of my discretion, I refuse to conduct a judicial review in relation to the decision of the Appeal Panel pursuant to s 69 of the Supreme Court Act.

110. As to the decision of the Senior Member, s 34(1)(c) states that the Supreme Court may refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal could be lodged against the decision. The plaintiff could have lodged an internal appeal of the Senior Member’s 14 January 2019 decision, but did not. Moreover, for the reasons I have given in relation to the plaintiff’s appeal, is my view that the Senior Member’s costs decision was not based on an error of law on the face of the record of the proceedings. Therefore, in the exercise of my discretion, I refuse the plaintiff’s application for judicial review of the decision of the Senior Member as to costs pursuant to s 69 of the Supreme Court Act.

Result

111. The plaintiff’s applications for an extension of time are refused. The plaintiff’s applications for leave to appeal the decisions of the Appeal Panel dated 20 December 2018 and of the Senior Member dated 14 January 2019 pursuant to s 83 of the CAT Act fails. The plaintiff’s application for judicial review pursuant to s 69 of the Supreme Court Act also fails. The result is that the plaintiff’s amended summonses filed 24 April 2019 are dismissed.

Costs

112. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first defendants’ costs on an ordinary basis.

The Court orders that:

1. The plaintiff’s applications for an extension of time to file an appeal in relation to both appeals are refused.

2. The plaintiff’s applications for judicial review in relation to both decisions are dismissed.

3. The amended summonses in relation to both proceedings are dismissed.

4. The plaintiff is to pay the first defendants’ costs in both proceedings on an ordinary basis.

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Decision last updated: 21 November 2019