Supreme Court New South Wales Medium Neutral Citation: Rowe v Kincumber Nautical Village Pty Ltd [2022] NSWSC 533 Hearing dates: 14 February 2022 Date of orders: 4 May 2022 Decision date: 04 May 2022 Jurisdiction: Common Law Before: Rothman J Decision: (1) The appeal is to be treated as a representative proceeding; (2) The appellant is to file short minutes of order regarding directions needed to be made in accordance with the provisions of Part 10 of the Civil Procedure Act; (3) Pursuant to the Uniform Civil Procedure Rules 2005, Part 49 Rule 49.19, the order of the Registrar of 17 November 2021 in these proceedings as to payment of costs be set aside; (4) Costs of these proceedings and the costs of the directions hearings relating thereto be costs in the cause. Catchwords: CIVIL PROCEDURE – REPRESENTATIVE PROCEEDINGS – APPEAL AGAINST NCAT – 52 respondents to NCAT appeal proceedings – application for appeal to be representative proceeding – meaning of "claim" – broad meaning – overriding purpose of Civil Procedure Act. COSTS – Review of Registrar's order in light of result of application – Registrar's costs order set aside – costs be costs in the cause. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 83 Civil Procedure Act 2005 (NSW), ss 3, 56, 155, 157, 162, 175, 176 and 177 Residential Land Lease Communities Act 2013 (NSW), ss 65 and 66 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Attorney-General v Sillem (1864) 10 HLC at 724 Kincumber Nautical Village Pty Ltd v Morris [2020] NSWCATAP 275 Land Mortgage and Agency Co Ltd v The King (1922) 30 CLR 523 Marbury v Madison (1803) 5 US 137 Morris & Ors v Kincumber Nautical Village Pty Ltd [2014] NSWCATCD Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 1 R v Gray; Ex parte Marsh (1981) 157 CLR 351 Read v Brown (1888) 22 Q.B.D 128 Tomko v Palasty (No 2) (2008) 71 NSWLR 61; [2007] NSWCA 369 Texts Cited: Quick & Garan, The Annotated Constitution of the Australian Commonwealth Category: Procedural rulings Parties: Daryl Rowe (Plaintiff) Kincumber Nautical Village Pty Ltd (Defendant) Representation: Counsel: P. Batley (Plaintiff) A. Hochroth (Defendant) Solicitors: Tenants' Union of NSW Co-Op Ltd (Plaintiff) Corrs Chambers Westgarth (Defendant) File Number(s): 2021/293591 Judgment 1. HIS HONOUR: By motion filed 30 November 2021, the plaintiff, Daryl Rowe, seeks orders the effect of which is that the Court would direct that the substantive proceeding, commenced by summons in the Administrative Law List on 12 October 2021, be conducted as representative proceedings. 2. The plaintiff seeks to appeal a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (hereinafter "NCAT" or "the Tribunal"). The Appeal Panel decision, delivered on 14 September 2021 (hereinafter "the Appeal Panel Decision"), overturned the decision of a single member of NCAT (hereinafter "the first instance decision"). 3. The substantive proceedings before the Court raise the issue of the applicability of the Residential Land Lease Communities Act 2013 (NSW) (hereinafter the RLLC Act) to the plaintiff. The applicability of the RLLC Act depends upon a determination that the plaintiff (and other putative group members) has a "site agreement" with the defendant within the meaning of the RLLC Act and, if so, the appropriate method of fixing an amount of increase in site fees. Tribunal Proceedings 1. In 2020, 52 homeowners in the Kincumber Nautical Village (hereinafter "the Village"), which is run by the defendant, Kincumber Nautical Village Pty Ltd (hereinafter "Kincumber"), commenced representative proceedings in NCAT in relation to a site fee increase purportedly issued on 16 November 2018. The first instance decision held that the method of increasing the site fees employed by the defendant was not a "fixed method" in accordance with ss 65 and 66 of the RLLC Act. [1] 2. As already stated, the defendant appealed against the first instance decision, to which the 52 homeowners of the Village were respondents. The Appeal Panel allowed the appeal and set aside the first instance decision. [2] 3. The Appeal Panel decision held that the first instance decision was in error in its construction of the relevant RLLC Act provisions. It held that the "fixed calculation" employed by the defendant to calculate the site fee increase was, relevantly, a "fixed method" and was not in breach of the RLLC Act. Supreme Court Proceedings 1. On 12 October 2021, the plaintiff commenced proceedings in this Court, under its Administrative Law List arrangements. The summons sought leave to appeal from the Appeal Panel Decision pursuant to the provisions of s 83 of the Civil and Administrative Tribunal Act 2013 (NSW), which relevantly provides: 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. 1. The nature of these interlocutory proceedings is that the plaintiff seeks orders that the appeal be treated in this Court as representative proceedings pursuant to Part 10 of the Civil Procedure Act 2005 (NSW) and that each of the homeowners, being the respondents to the Appeal Panel decision, be treated as members of the class. The defendant neither consents to, nor opposes, orders that would treat the proceedings as representative proceedings. 2. The summons seeking leave to appeal was styled as an originating process commencing a representative proceeding pursuant to the provisions of Part 10 of the Civil Procedure Act and naming the group members as the respondents in the NCAT appeal proceedings. 3. At the directions hearing on 26 October 2021, the Registrar of the Court directed that the file be referred to the judge of the Court responsible for representative proceedings. By email dated 28 October 2021, the parties were informed that the aforesaid List Judge, before whom the file had been placed, had taken the preliminary view that the proceedings may not be representative proceedings but were an appeal and that the proceedings should be dealt with in the usual way, being in the Administrative Law List of the Common Law Division. 4. On 2 November 2021, again by email, the Registrar of the Court informed the plaintiff that if there were a desire for the Court to case manage proceedings as "representative proceedings", a motion, on notice, should be filed with a supporting affidavit. 5. On 17 November 2021, at a directions hearing, the Registrar determined, contrary to the orders sought by the plaintiff, that it was not appropriate for the plaintiff to have the judge hearing the summons for leave to deal with the procedural issues of a representative action. As a consequence, the Registrar issued formal directions that, if the plaintiff sought to have the matter proceed as a representative proceeding, the plaintiff was required to file a notice of motion and, secondly, the plaintiff should pay the defendant's costs of the directions hearing. 6. As a consequence of the foregoing process, the plaintiff filed the motion required by the Registrar and the proceeding was allocated to the Court, as presently constituted, and heard on 14 February 2022. Legislation 1. The Court has already referred to the provisions of s 83 of the Civil and Administrative Tribunal Act and it is unnecessary to deal with that provision in any greater detail. The directions that are sought depend upon the application of s 155 (or part thereof), and, more particularly, s 157 of the Civil Procedure Act. 2. The terms of s 157(1) of the Civil Procedure Act are as follows: 157 Commencement of representative proceedings (1) Subject to this Part, where— (a) 7 or more persons have claims against the same person, and (b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances, and (c) the claims of all those persons give rise to a substantial common question of law or fact, proceedings may be commenced by one or more of those persons as representing some or all of them. (2) Representative proceedings may be commenced— (a) whether or not the relief sought— (i) is, or includes, equitable relief, or (ii) consists of, or includes, damages, or (iii) includes claims for damages that would require individual assessment, or (iv) is the same for each person represented, and (b) whether or not the proceedings— (i) are concerned with separate contracts or transactions between the defendant in the proceedings and individual group members, or (ii) involve separate acts or omissions of the defendant done or omitted to be done in relation to individual group members. 1. Section 155 of the Civil Procedure Act defines proceedings as "proceedings in the Court other than criminal proceedings". The term "claim" is not defined in the Civil Procedure Act, but s 3 of the Civil Procedure Act defines the term "claim for relief". 2. The definition of "claim for relief" is inclusive, not exhaustive. In this regard, it may be contrasted with other definitions in s 3 of the Civil Procedure Act, including the definitions of "civil proceedings", "costs", "criminal proceedings", "cross-claim", "defendant", "judgment creditor", "judgment debtor", "judicial officer", "jurisdictional limit", "local rules", "minor", "motor accident claim", "ordinary basis", "originating process", "person under legal incapacity", "plaintiff", "trial", "tutor", "uniform rules", "Uniform Rules Committee" and "workplace injury damages claim". Thus, the legislature has differentiated between exhaustive definitions utilising the term "means", or referring to a definition contained in other legislation, and inclusive definitions such as the definition for claim for relief. [3] 3. It would seem that the reference to "claims" in s 157 of the Civil Procedure Act must at least include any claim for relief as that term is defined in the Civil Procedure Act and may include claims that are not "claims for relief", if there be such claims. At the heart of the issue agitated by the plaintiff is whether an appeal under s 83 of the Civil and Administrative Tribunal Act is a "claim" within the meaning of s 157(1) of the Civil Procedure Act. 4. As earlier indicated, the term "claim for relief" is defined inclusively and includes, amongst other matters: claims for declaratory relief; a claim for the determination of any question or matter that may be determined by the Court; and, if it were not otherwise included in the immediately preceding category, any other claim (whether legal, equitable or otherwise) that is justiciable in the Court. The use of the descriptor, "otherwise", referable to a claim that is not legal or equitable, must include a statutory claim for relief. Plaintiff's submissions 1. In his submissions of 22 December 2021, the plaintiff submitted, regarding orders 1 to 4 of the motion, that the plaintiff's summons for leave to appeal satisfies the requirements of a "representative proceedings" as provided by s 157(1) of the Civil Procedure Act. 2. Further, the plaintiff has submitted that s 175 of the Civil Procedure Act, as a consequence of the satisfaction of the foregoing requirement as to representative proceedings, requires the Court to fix a date before which a group member may opt out of the proceedings. The plaintiff submits that the Court must order the manner and form in which a notice is to be given to the members of the said group. [4] 3. As to order 5 of the motion, which seeks a review of the costs order made by the Registrar on 17 November 2021, the plaintiff submitted that the orders proposed by the plaintiff were not unreasonable in the circumstances. The plaintiff submitted, in this regard, that the plaintiff did not require the proceedings to be case managed as a representative proceeding; that the plaintiff would propose a timetable which would work to a hearing date with any procedural matters arising from the case being a representative proceeding to be addressed by the judge at the hearing; that the Court had the power to dispense with the requirements of s 162 and s 175 of the Civil Procedure Act, given that the plaintiff was proposing informally to provide the required notices; and, that the aforesaid unusual circumstances warranted the matter of costs of the directions hearing either to be reserved, pending resolution of the representative proceedings question, or, at the hearing of the plaintiff's summons. 4. The plaintiff relies on three affidavits of Paul Francis Smyth affirmed, respectively, 30 November 2021, 20 December 2021, and 22 December 2021. Those affidavits were read without objection. There was no cross-examination or oral evidence. Defendant's submissions 1. First, and importantly, the defendant neither consents to, nor opposes, orders 1 to 4 in the motion and does not oppose, nor consent to, the proceedings being conducted as representative proceedings. The defendant notes, for the attention of the Court, that the issue in the motion is whether the appeals may be "representative proceedings" within the meaning of Part 10 of the Civil Procedure Act. 2. The defendant, notwithstanding its attitude to the representative proceeding application, has acted as a contradictor. The Court is grateful for that assistance. 3. The defendant has submitted that it is open to the Court to conclude that "claims" in s 157(1) of the Civil Procedure Act does not include a situation where a number of persons have a statutory right to seek leave to bring an appeal in respect of a tribunal's decision. Further, the defendant submitted that it is open to the Court to conclude that it is unlikely to have been the intention of Parliament that these proceedings be encompassed by Part 10 of the Civil Procedure Act. 4. Over and above the foregoing, the defendant has submitted that it is open to the Court to conclude that the provisions of the Civil and Administrative Tribunal Act, with respect to how NCAT appeals are to be brought, are intended to prevail over Part 10 of the Civil Procedure Act and that the rules provide the appropriate regime for case management. It is open, according to the defendant's submissions, for the Court to consider that the proceedings are more appropriate before the Court of Appeal. 5. As to the review sought of the order for costs, the defendant submitted that the Court should refuse the plaintiff's application for review of the costs order made on 17 November 2021. The defendant submitted that: the Registrar's exercise of discretion was plainly open; and, the Registrar's exercise of discretion was plainly correct, given the communications between the Registrar and the parties and that the plaintiff failed to comply with them. Consideration 1. The relevant terms of s 157 of the Civil Procedure Act have been recited and extracted above. Further, the Court, in these reasons, has summarised the effect of the other relevant provisions. 2. Over and above those provisions, the terms of ss 175 and 176 of the Civil Procedure Act provide for notice to be given to members of the group or purported members of the group and allow for a member of the group to opt out of the representative proceedings upon being given such notice. Time limits are applicable. 3. It is also necessary to note the terms of s 177 of the Civil Procedure Act, which provides for orders of the kind that may be made in determining representative proceedings. Those orders include the determination of any question of law; the determination of any question of fact; declarations of liability; the grant of any equitable relief; the awarding of damages for group members or any subgroup members or individual group members, being persons or a member of the class involved in the representative proceedings; and, over and above the foregoing, the awarding of damages in an aggregate amount without specifying the amounts payable to individual group members. 4. Thus, the Court's power to determine issues that arise in representative proceedings is broad, but there are limitations. An appeal lies from a judgment of a single judge in representative proceedings to the Court of Appeal. [5] 5. Apart from the provisions of the Civil Procedure Act that have already been mentioned in these reasons, it is appropriate to note the terms of s 56 of the Civil Procedure Act and the provisions that follow it, particularising some of its aspects. The overriding purpose of the Civil Procedure Act, as described in s 56, is the facilitation of "the just, quick and cheap resolution of the real issues in the proceedings". That "overriding purpose" is required to be given effect by the Court, legal representatives and parties. Further, by the operation of s 56(2) of the Civil Procedure Act, the Court is required to give effect to the foregoing overriding purpose when it interprets the provisions of the Act or any of the rules. 6. Notwithstanding the prescription just summarised, the Court is not at liberty to substitute its view of that which is just, quick and cheap for the express provisions of the legislation. The duty of the Court is to construe the terms of the legislation, which, as has now been reiterated on a number of occassions, requires the Court to give effect to the legislative purpose evidenced by the terms of the legislation and to seek to achieve harmonious goals in so doing. [6] The terms of s 56 of the Civil Procedure Act merely express that which is the purpose of the legislation itself. Where a provision may be open to different constructions, that which achieves the overriding purpose should be given effect. Of course, more than one such interpretation may be in that category. 7. It is necessary to deal with the nature of an appeal. In that regard, the Court is not currently concerned with the different kinds of appeal that may be taken, depending upon the legislative provisions that give rise to an appeal. Rather, the nature and concept of an appeal is that which is relevant. 8. Historically, under the common law, appeals did not exist. Appeals are a creation of statute. Previously, the correction of judicial error (or error of law in administrative processes) was, under the common law, effected by the issue of writs. Other remedies, depending upon the nature of the error and the nature of the proceedings in which it arose, may have been available. 9. Thus, prior to statutory intervention, there was no appeal from the judgment of the Court entered after a verdict of a jury. The remedy was an application for a stay of the entry of the judgment and for a retrial. A writ of error, or certiorari, would issue for a failure to stay the judgment or order the retrial. 10. While not directly relevant, writs of error and certiorari error were seen to be part of the appellate function. On the other hand, mandamus and prohibition were not appellate functions, but functions within the original jurisdiction of the superior courts. [7] The distinction between the original jurisdiction of mandamus and the appellate jurisdiction of certiorari form the basis for the inclusion in the Constitution of the provisions of s 75(v). [8] 11. As explained by the High Court and in historical writings, an appeal is the right of entering a superior court and invoking its aid and interposition to redress the error of the Court below. [9] It is a process of civil law origin and removes a cause entirely; subjecting errors of fact, as well as the law, to review and retrial. The writ of error was a process of common law origin and removed nothing for re-examination except the law. [10] 12. Further, an appeal from court to court was not known under the common law and did not take place until the fusion of law with equity in 1875. [11] Equity courts and Admiralty courts adopted it earlier. As a consequence, the High Court determined in South Australian Land Mortgage and Agency Co Ltd v The King, supra, that in all but the ancient cases, the right of appeal depended on the grant of such a right by the legislature. [12] 13. Generally, the term "claim" is a term that includes a wider class of applications for remedy than would the term "cause of action". It would seem to include the assertion of an existing right that is sought to be enforced and the material facts that would give rise to a right enforceable by the Court. 14. In Read v Brown [13] part of the cause of action was said to arise within the jurisdiction of the Mayor's Court because it relied upon an assignment which occurred within that jurisdiction, and the assignment was a material fact necessary to be proved in order to obtain judgment. A claim, therefore, would be the combination of material facts giving rise to the legal right enforceable in the Court. In the context of s 157, it is at least as wide as a "claim for relief", and is an application for the enforcement of a right or an application for remedy recognised at law that is within the jurisdiction of the Court. 15. This Court, by virtue of its inherent jurisdiction, and as a consequence of the provisions of s 69 of the Supreme Court Act 1970 (NSW), possesses the jurisdiction to grant the remedy of certiorari and the remedy of mandamus and/or prohibition, or, more accurately, orders in the nature thereof. A claim for an order in the nature of certiorari, mandamus or prohibition would be, in terms of the definition of claim for relief in s 3 of the Civil Procedure Act, a claim for the determination of any question or matter that may be determined by the Court or a claim — whether legal, equitable or otherwise — that is justiciable in the Court. There is no good reason to limit the term "claim" in s 157 of the Civil Procedure Act to exclude such claims. 16. If certiorari, being an appellate remedy, is a claim caught by the term "claim for relief" and the term "claim" in s 157 of the Civil Procedure Act, then there is no reason to suggest that a statutory right of appeal is not also such a claim. 17. There are two fundamental reasons why such an interpretation should be determined. First, all appeals are a form of statutory relief. The definition of claim for relief — particularly the extension of the term to include claims that are not legal or equitable, if they were justiciable in the Court — would, on its ordinary construction, include a claim for a statutory remedy if that claim is justifiable in the Court. Further, given that the statutory remedy of an appeal from NCAT is a claim for the determination of a question or matter that may be determined by the Court, it is also caught by the definition of claim for relief by virtue of paragraph (e) thereof. 18. Secondly, the overriding purpose of the Civil Procedure Act, outlined above, would support a broad definition of the term "claim". Thus, an inclusion of a statutory right of appeal as a claim, assuming the other aspects of Part 10 of the Civil Procedure Act are satisfied, should be able to be categorised as a representative proceeding. In so categorising the appeal brought by a number of members of a class, as in this case — all of whom are in the same position and appealing against the same judgment made in proceedings that were either representative or which applied to each of them by reference — the Court would be facilitating the "just, quick and cheap resolution of the real issues in the proceedings". 19. Such a course would avoid costs to the parties by reducing filing fees; reducing representation of multiple parties; requiring the defendant in the statutory appeal to participate in one only proceeding, instead of 52 that would otherwise need to be filed; and, in resolving the real issue between the respondents to the NCAT appeal, as a class, and the appellant in the NCAT appeal. 20. It seems there is every reason to progress the appeal as a representative proceeding in achieving the overriding purpose and no reason not to do so, particularly where the NCAT proceedings have been treated, if not formally then in practice, as representative proceedings. 21. For the foregoing reasons, I consider that the appeal is capable of being a representative proceeding and, if there be a discretion, the Court would exercise that discretion in favour of treating the appeal in that way. The exercise of such a discretion would necessarily protect any member of the class, being the respondents bound by the NCAT appeal decision, by their capacity to opt out of the proceedings in accordance with the directions that are required to be made pursuant to the Civil Procedure Act. 22. One final matter needs to be dealt with, being the issue of the order for costs made by the Registrar. Given that the order now made and sought to be made before the Registrar will result in a significant saving of costs to the defendant, who needs now to file only one defence instead of 52, and participate in only one proceeding (notwithstanding the non-compliance of the appellant with initial directions given by email) there is merit in the review of the costs order. 23. Costs are in the discretion of the Court and are compensatory, not punitive. Ordinarily, the Court would be reluctant to interfere with the costs order made at any level in relation to directions hearings. 24. Nevertheless, given the nature of the issue and its complexity, together with the cost savings associated with the result that has now obtained, it would appear that the discretion to order costs has miscarried. It has miscarried because the Registrar has failed to take into account a relevant consideration, being that the proceedings are capable of being conducted as representative proceedings and that the order sought by the appellant is one that saves both the defendant and the members of the class of appellants significant expenditure. It is unnecessary, in a review of the order of the Registrar, to discern error of the kind otherwise required in an appeal from an exercise of discretion. [14] I would exercise the discretion differently in light of the result and the savings that it will effect. 25. The Court makes the following orders: 1. The appeal is to be treated as a representative proceeding; 2. Direct the appellant to file short minutes of order regarding directions needed to be made in accordance with the provisions of Part 10 of the Civil Procedure Act. 3. Pursuant to the Uniform Civil Procedure Rules 2005, Part 49 Rule 49.19, the order of the Registrar of 17 November 2021 in these proceedings as to payment of costs be set aside; 4. Costs of these proceedings and the costs of the directions hearings relating thereto be costs in the cause. ********** Endnotes 1. Morris & Ors v Kincumber Nautical Village Pty Ltd [2014] NSWCATCD; Annexure A to the affidavit of P. Smyth, filed 30 November 2021. 2. Kincumber Nautical Village Pty Ltd v Morris [2020] NSWCATAP 275; Annexure B to the affidavit of P. Smyth, filed 30 November 2021. 3. R v Gray; Ex parte Marsh (1981) 157 CLR 351 at CLR 364-365 (Gibbs CJ, with whom relevantly on this issue Mason, Wilson, Brennan, Deane and Dawson JJ agreed); [1985] HCA 67 at [18]. 4. Civil Procedure Act, s 176. 5. Civil Procedure Act, s 180. 6. Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 1. 7. Marbury v Madison (1803) 5 US 137and the cases cited therein. 8. Quick & Garan, the annotated Constitution of the Australian Commonwealth at 778 at [325]. 9. South Australian Land Mortgage and Agency Co Ltd v The King (1922) 30 CLR 523 (Isaacs J) citing with approval Attorney-General v Sillem (1864) 10 HLC at 724 (Lord Westbury). 10. ibid, citing with Wiscart v. Dauchy (2) (1796) 3 D a l l. 321 at 327 (Ellsworth CJ). 11. Ibid. 12. ibid at 553 (Isaacs J). 13. Read v Brown (1888) 22 Q.B.D 128. 14. Tomko v Palasty (No 2) (2008) 71 NSWLR 61; [2007] NSW CA 369. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 May 2022