Reported Decision : 63 NSWLR 557 New South Wales Court of Appeal CITATION: ATTORNEY GENERAL OF NEW SOUTH WALES v WORLD BEST HOLDINGS LIMITED & ORS [2005] NSWCA 261 HEARING DATE(S): 17, 18 May 2005 JUDGMENT DATE: 11 August 2005 JUDGMENT OF: Spigelman CJ at 1; Mason P at 143; Tobias JA at 182 DECISION: 1 Leave to appeal granted; 2 Appeal dismissed; 3 Appellant to pay the First Respondent's costs of the proceedings; 4 No order as to the Second Respondent's costs; 5 Grant leave to both Claimants to appeal; 6 Vary Order 3 in the orders of Patten AJ of 3 December 2004 by deleting the words "the First Defendant, Mr Abdul Sarker" and inserting the words "the Defendants"; 7 Set aside Order 3 of Patten AJ of 10 December 2004 CATCHWORDS: COURTS AND TRIBUNALS - Administrative Decisions Tribunal - Retail Leases Division - Unconscionable Conduct Claims - Whether Tribunal validly constituted - Whether decision of Tribunal invalid because of participation of non-judicial members - Whether invalidity saved by s81(3) Administrative Decisions Tribunal Act 1997 - STATUTES - Validating Acts - Retrospectivity - Application of retrospective Act to pending proceedings the subject of an appeal by way of rehearing - RETAIL LEASES - Unconscionable Conduct Claims - Unconscionability under s62B Retail Leases Act 1994 Administrative Decisions Tribunal Act 1997: Ch 6 Pt 2; Sch 2 Pt 3; Sch 2 Pt 3B; Sch 5 Pt 9 cl 40; ss 13, 14, 15, 17, 19, 21, 22, 70, 75, 81, 81(3), 113, 114, 115, 118, 118D, 119(1), 122, 123 Courts Legislation Amendment Act 2005: Sch 1 cll 1, 3 District Court Act 1973: s159 Interpretation Act 1987: ss30, 52(1)(e) Migration Act 1958 (Cth), s474 LEGISLATION CITED: Retail Leases Act 1994: Part 7A, Part 8 Div 3; ss 62B, 76, 76A, 77 Retail Leases Amendment Act 1998 Suitors' Fund Act 1951 Supreme Court Act 1970: ss 75A(5), 81(1) Trade Practices Act 1974 (Cth): ss 51AA, 51AB, 51AC, 52A A v Hayden (1984) 156 CLR 532 Allianz Australian Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 215 ALR 385 Amalgamated Engineering Union v Alderdice Pty Ltd; In re Metropolitan Gas Co (1982) 41 CLR 402 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Attorney General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485 Attorney-General (Vic) v The Warehouse Group (Australia) Pty Ltd [2002] VSCA 76 Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 Australian Competition and Consumer Commission v 4WD Systems Pty Ltd [2003] FCA 850; 200 ALR 491 Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [2000] FCA 1376; ATPR 41-778 Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51 Australian Competition and Consumer Commission v Keshow [2005] FCA 558 Australian Competition and Consumer Commission v Oceana Commercial Pty Ltd (2004) Aust Contract R §90-193 Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Ltd (2000) 104 FCR 253 Bawn Pty Ltd v Metropolitan Meat Industry Board (1970) 72 SR (NSW) 466 Boghossian v Warner [2000] NSWCA 27 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 Dai Xing Yao v Minister for Immigration and Ethnic Affairs (1996) 46 ALD 273 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 24 ALR 577 Esber v The Commonwealth of Australia (1992) 174 CLR 430 Fitzgerald v Muldoon [1976] 2 NZLR 615 G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 Harrington v Lowe (1996) 190 CLR 311 Hatton v Beaumont [1977] 2 NSWLR 211 CASES CITED: Hewitt v Lewis [1986] 1 WLR 444 Independent Commission Against Corruption v Chaffey (1993) 30 NSWLR 21 Italiano v Carbone [2005] NSWCA 177 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 L'Office Cherifien Des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486 Lauri v Renad [1892] 3 Ch 402 MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 Magrath v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121 Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414 Muschinski v Dodds (1985) 160 CLR 583 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 476 R v Young (1999) 46 NSWLR 681 Reid v Reid (1886) 31 Ch D 402 Rust v Barnes [1980] 2 NSWLR 726 Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712 Sharpe v Goodhew (1990) 33 IR 238 Smith v Budandan Enterprises (2002) 55 NSWLR 367 Tasker v Fullwood [1978] 1 NSWLR 20 Victoria v Robertson (2000) 1 VR 465 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 Waugh v Kippen (1986) 160 CLR 156 Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 World Best Holdings Limited v Sarker [2004] NSWSC 935 Zainal bin Hashim v Government of Malaysia [1980] AC 734 Attorney General (Appellant/First Cross Respondent) World Best Holdings Ltd (First Respondent/Second Cross Respondent) PARTIES: Abul Sarker (Second Respondent/Cross Appellant) Administrative Decisions Tribunal (Third Respondent/Third Cross Respondent) FILE NUMBER(S): CA 41216/04 M Allars (Appellant/First Cross Respondent) RJ Ellicott QC, MR Ellicott (First Respondent/Second Cross Respondent) COUNSEL: M Ashurst, S Docker (Second Respondent/Cross Appellant) Crown Solicitor (Appellant/First Cross Respondent, Third Respondent/Third Cross Respondent) Philip Anthony Biber (First Respondent/Second Cross Respondent) SOLICITORS: Kemp Strang (Second Respondent/Cross Appellant) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 30052/2004 LOWER COURT JUDICIAL OFFICER: Patten AJ - 41 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41216/04 SPIGELMAN CJ MASON P TOBIAS JA Thursday 11 August 2005 ATTORNEY GENERAL OF NEW SOUTH WALES v WORLD BEST HOLDINGS LIMITED & ORS World Best Holdings Pty Ltd ("World Best") and Mr Sarker were parties to an unconscionable conduct claim in the Retail Leases Division of the Administrative Decisions Tribunal (the "Tribunal"). Clause 4 of Part 3B of Schedule 2 to the Administrative Decisions Tribunal Act 1997 (the "ADT Act") prescribes the manner in which the Tribunal is to be constituted when exercising functions in relation to unconscionable conduct claims made pursuant to the Retail Leases Act 1994. The Tribunal was constituted by Mr B Donald, and assisted by Messrs Fagg and Griffiths. Following an adverse decision, World Best appealed to the Supreme Court asserting that the Tribunal's decision was invalid on two bases. First, that Mr Donald did not meet the qualifications required by cl 4(1) of the ADT Act to constitute the Tribunal; and secondly, that Messrs Fagg and Griffiths had participated in the adjudication of the Tribunal in violation of cl 4(3). Patten AJ allowed the appeal on both grounds. His Honour ordered Mr Sarker to pay World Best's costs in the appeal, remitted the matter to the Tribunal for re-hearing, and ordered that the award of costs for the first hearing be determined at the discretion of the Tribunal member constituting the Tribunal at second hearing. His Honour made an order restraining Mr Sarker from proceeding in the Tribunal before repaying World Best a sum of $10,000 made in part payment of the original order of the Tribunal. The Attorney appealed to this Court on the two substantive issues relating to the validity of the Tribunal's decision. World Best cross-appealed, seeking costs for the original hearing in the Tribunal. Mr Sarker sought leave to appeal the order restraining him from proceeding in the Tribunal. After submissions had been heard by this Court, the Courts Legislation Amendment Act 2005 (the "Amending Act") was enacted, which purported to retrospectively validate the constitution of the Tribunal when exercising its functions under the Retail Leases Act in relation to unconscionable conduct claims. The Court sought and received further submissions on the application of the Amending Act to the proceedings. HELD 1 Constitution of the Tribunal (per Spigelman CJ, Mason P and Tobias JA agreeing) (a) The Appeal is by re-hearing and is to be determined in accordance with the law as it is now. [29], [152], [183] Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 followed. (b) The Amending Act operates retrospectively, and applies to the present proceedings. [43], [66], [152]–[154], [183] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; L'Office Cherifien Des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486; R v Young (1999) 46 NSWLR 681; Reid v Reid (1886) 31 Ch D 402 ; Lauri v Renad [1892] 3 Ch 402 followed. Zainal bin Hashim v Government of Malaysia [1980] AC 734; Victoria v Robertson (2000) 1 VR 465 ; Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816; Bawn Pty Ltd v Metropolitan Meat Industry Board (1970) 72 SR (NSW) 466; MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355; Hewitt v Lewis [1986] 1 WLR 444 considered. Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712; Dai Xing Yao v Minister for Immigration and Ethnic Affairs (1996) 46 ALD 273 at 279; Attorney General (Qld) v Australian Industrial Relations Commissio n (2002) 213 CLR 485 referred to. Esber v The Commonwealth of A ustralia (1992) 174 CLR 430 distinguished. (c) The Tribunal was validly constituted by Mr Donald. [33], [67], [152]–[154], [183] 2 Participation Issue (Per Spigelman CJ, Tobias JA agreeing) (a) Patten AJ's finding of fact that Messrs Fagg and Griffiths had participated in the adjudication was fully justified. (Per Spigelman CJ, Mason P and Tobias JA agreeing) [75], [155], [183] (b) The impermissible participation was not saved from causing invalidity by: (i) Clause 40(2) of Part 9 of Schedule 5 to the ADT Act. (Per Spigelman CJ, Mason P and Tobias JA agreeing) [69], [153], [183] (ii) Section 52(1)(e) of the Interpretation Act 1987. (Per Spigelman CJ, Mason P and Tobias JA agreeing) [82], [155], [183] (iii) Section 81(3) of the ADT Act. (Per Spigelman CJ and Tobias JA) [83]–[100], [199] Magrath v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121 followed. Rust v Barnes [1980] 2 NSWLR 726; Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 referred to. Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 distinguished. (c) The participation rendered the decision of the Tribunal invalid. (Per Spigelman CJ and Tobias JA) [127], [199] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Tasker v Fullwood [1978] 1 NSWLR 20; Muschinski v Dodds (1985) 160 CLR 583; Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414 followed. Hatton v Beaumont [1977] 2 NSWLR 211 considered. (d) (Per Mason P, dissenting) By operation of s81(3) of the ADT Act, the participation did not render the decision invalid. [178] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied. Amalgamated Engineering Union v Alderdice Pty Ltd; In re Metropolitan Gas Co (1928) 41 CLR 402; G J Coles Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503; Boghossian v Warner [2000] NSWCA 27; Smith v Budandan Enterprises (2002) 55 NSWLR 367; Harrington v Lowe (1996) 190 CLR 311; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Waugh v Kippen (1986) 160 CLR 156; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; Italiano v Carbone [2005] NSWCA 177; Fitzgerald v Muldoon [1976] 2 NZLR 615; A v Hayden (1984) 156 CLR 532; Sharpe v Goodhew (1990) 33 IR 238 considered. 3 Appeal on the Costs Order (per Spigelman CJ, Tobias JA agreeing) Cross-Appeal allowed in part. (a) The Attorney General was added as a party, and the interests he represented were engaged. As such, he was properly exposed to an order for costs. [132], [200] (b) It was within Patten AJ's discretion not to make any order for costs with respect to the first hearing in the Tribunal. [136], [200] (per Mason P) The Cross-Appeal should be dismissed. [181] 4 Restraint Order (per Spigelman CJ, Tobias JA agreeing) Order set aside. (a) The restraint order has the substantive effect of an injunction based on the existence of a simple debt. It is not an order that is appropriate to be made under s120 of the ADT Act. [141], [200] (per Mason P) The application for leave should be dismissed. [181] IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41216/04 SPIGELMAN CJ MASON P TOBIAS JA Thursday 11 August 2005 ATTORNEY GENERAL OF NEW SOUTH WALES v WORLD BEST HOLDINGS LIMITED & ORS Judgment 1 SPIGELMAN CJ: The First Respondent, World Best Holdings Limited ("World Best") is the owner of a shopping centre in which the Second Respondent ("Mr Sarker") was to become a tenant. Difficulties in the relationship led to an application to the Administrative Decisions Tribunal ("the Tribunal") constituted pursuant to the Administrative Decisions Tribunal Act 1997 ("the ADT Act") for relief under the Retail Leases Act 1994. I will set out the relevant provisions of the two Acts below. The Tribunal upheld the application and made various orders. In accordance with the relevant provisions of the ADT Act an appeal was brought to the Supreme Court on a number of grounds said to be questions of law. An application was made to the Supreme Court for leave to appeal on the merits. The latter application was rejected by Sully J (World Best Holdings Limited v Sarker [2004] NSWSC 935). Save in so far as that application may have relevance for the order as to costs, the matters considered by Sully J are not before this Court. 2 The appeal on questions of law under s77(2) of the Retail Leases Act came before Patten AJ who first heard submissions on two only of the issues. Each concerned the constitution of the Tribunal. With respect to one of these matters the Attorney General's conduct was directly involved. The Attorney successfully sought leave to be joined as a Defendant to the proceedings before Patten AJ. His Honour upheld the case of World Best on each of the two grounds argued before him. The Attorney appeals from that judgment and has joined the original Defendant below as Second Respondent. 3 The case proceeded before Patten AJ as an appeal. Some of the orders sought in the summons could have been regarded as appropriate to proceedings by way of judicial review. There is authority to support the proposition that an issue concerning the constitution of a tribunal can be dealt with in an appeal on a question of law. (See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 24 ALR 577.) Alternatively, the view has been expressed that such a challenge should be mounted in proceedings for judicial review. (See Attorney-General (Vic) v The Warehouse Group (Australia) Pty Ltd [2002] VSCA 76 at [22]): As in the latter case (see at [23]), the proceedings before Patten AJ included a list of other alleged errors of law although, in the event, his Honour did not need to deal with them. 4 The Attorney has not challenged the orders of Patten AJ on the basis that he was not entitled to make the orders in proceedings by way of appeal. It is not necessary to determine any issue in this respect. 5 The Court also has before it an application for leave to cross-appeal by World Best seeking modification of the orders made by Patten AJ as to costs. Finally, the Court has before it an application for leave to appeal by Mr Sarker with respect to an order made by Patten AJ restraining him from proceeding further with the matter in the Tribunal, unless certain amounts paid to him are repaid to World Best. 6 The primary issue before the Court is his Honour's holding that, on either of two alternative grounds, the proceedings before the Tribunal miscarried. First, that the Retail Leases Division of the Tribunal was not constituted by a person with qualifications required by the ADT Act, which has special requirements for an application in which an unconscionable conduct claim is made. Secondly, that the decision by the Tribunal was defective because of the extent and nature of the participation of the two non-judicial members of the Tribunal, contrary to the express requirements of the ADT Act. 7 Leave to appeal is required because the amount in issue is less than $100,000. Significant legal issues have arisen. At the time the appeal was heard, before the retrospective legislation to which I will refer below, the proceedings had implications for persons other than the immediate parties to the proceedings. To a lesser degree they may still do so. Leave should be granted. The Statutory Scheme 8 The Tribunal is invested with statutory powers under a number of different Acts. The ADT Act makes separate provision as to how the Tribunal should be constituted in different fields. Pursuant to s19 of the ADT Act, the Tribunal exercises its functions in Divisions. The relevant Division for present purposes is the Retail Leases Division. Pursuant to s22(4) of the ADT Act the constitution of the Tribunal is determined by such special provision, if any, as is made in Sch 2 of the ADT Act. Part 3B of that Schedule makes provision for the Retail Leases Division. 9 Part 3B provided, at the time the Tribunal was constituted: "1 Division members (1) The Retail Leases Division is to be composed of the following members: (a) a Divisional Head appointed in accordance with subclause (2), (b) such other members as may be assigned to the Division in accordance with subclause (3) or otherwise by or under this Act. (2) A Deputy President is to be appointed as the Divisional Head by the Governor. (3) The following members are to be assigned to the Retail Leases Division of the Tribunal in their instruments of appointment or by subsequent instrument of the Minister: (a) at least 1 member who is a retired judge of the Supreme Court or the Federal Court or who has equivalent experience or qualifications, (b) at least 1 member who has experience as a lessor, or working on behalf of lessors, under retail shop leases, (c) at least 1 member who has experience as a lessee, or working on behalf of lessees, under retail shop leases. 2 Functions allocated to Division The functions of the Tribunal in relation to the following enactments are allocated to the Retail Leases Division of the Tribunal: Retail Leases Act 1994. 3 Retail Leases Act 1994 (retail tenancy claims) (1) For the purposes of exercising its functions under the Retail Leases Act 1994 in relation to retail tenancy claims the Tribunal is to be constituted by: (a) the Divisional Head, or, if the Divisional Head is not available, a judicial member, and (b) if requested by a party to the proceedings, 2 other members, consisting of a member of a kind referred to in clause 1(3)(b) and a member of a kind referred to in clause 1(3)(c). (2) If proceedings relate partly to an unconscionable conduct claim and partly to a retail tenancy claim, for the purposes of hearing and determining those claims the Tribunal is to be constituted in accordance with clause 4. 4 Retail Leases Act 1994 (unconscionable conduct) (1) For the purposes of exercising its functions under the Retail Leases Act 1994 in relation to unconscionable conduct claims the Tribunal is to be constituted by a Division member referred to in clause 1(3)(a). (2) The Tribunal is to be assisted by 2 other members, in an advisory capacity only, consisting of a member of a kind referred to in clause 1(3)(b) and a member of a kind referred to in clause 1(3)(c). (3) A member assisting the Tribunal under this clause is not to adjudicate on any matter before the Tribunal. (4) The Tribunal may commence or continue to determine the proceedings or any part of the proceedings: (a) without the assistance of a member who is not available or has ceased to be available to assist in the proceedings, and (b) without the assistance of the members generally if, in the opinion of the Tribunal, the proceedings or part of the proceedings concern or concerns a question of law only." 10 The first issue that arises in the proceedings is the proper construction of cl 4(1), referring as it does to cl 1(3)(a). The proceedings before the Tribunal between World Best and Mr Sarker did involve an unconscionable conduct claim. The issue is whether or not the person appointed, purportedly pursuant to cl 1(3)(a), was in fact a person who answered the description "a retired judge of the Supreme Court or the Federal Court or who has equivalent experience or qualifications". It was common ground that the person so appointed was not a retired judge. The issue was whether or not the person had "equivalent experience or qualifications". 11 The second and alternative ground upon which Patten AJ determined these proceedings concerned the participation of the two advisory members in the decision-making process. The issue is whether or not they participated in a manner beyond anything that could be regarded as 'assistance' "in an advisory capacity only" within cl 4(2), to the extent that it involved 'adjudication' on matters before the Tribunal, contrary to the prohibition in cl 4(3). 12 Part 3B of Sch 2 of the ADT Act draws a clear distinction between the jurisdiction of the Retail Leases Division with respect to retail tenancy claims, for which provision is made in cl 3, and unconscionable conduct claims, for which provision is made in cl 4. Parliament gave careful attention to the distinction between the two kinds of jurisdiction and mandated a differently constituted Tribunal wherever a claim of unconscionable conduct is made, either alone or (pursuant to cl 3(2)) in conjunction with a retail tenancy claim. 13 This special treatment is reinforced by other provisions of the legislative scheme that impose distinctive incidents when dealing with an unconscionable conduct claim, being incidents which are not applicable to a retail tenancy claim or, indeed, to other fields in which the Tribunal exercises jurisdiction. 14 First, with respect to the retail tenancy jurisdiction of the Tribunal, separate provision for retail tenancy claims and unconscionable conduct claims is made in Part 8 Div 3 of the Retail Leases Act 1994. Section 76 of that Act purports to remove from a court the jurisdiction to hear or determine retail tenancy claims or unconscionable conduct claims, where such claims have been lodged with a Tribunal. However, s76A makes provision relating only to unconscionable conduct claims in the following terms: "76A Removal of proceedings to Supreme Court (1) A party to proceedings before the Tribunal for an unconscionable conduct claim may apply to the Tribunal to have the proceedings transferred to the Supreme Court. (2) The Tribunal must transfer the proceedings if the Tribunal is satisfied that: (a) the nature of the claim is such that it may be more effectively and appropriately dealt with by the Supreme Court, and (b) the interests of justice do not require the matter to be continued to be dealt with by the Tribunal. (3) The Supreme Court has jurisdiction to hear and determine proceedings for an unconscionable conduct claim transferred to it under this section and may make any orders and do anything that the Tribunal may do in determining an unconscionable conduct claim. (4) The Supreme Court may exercise all the functions that are conferred or imposed by or under this or any other Act on the Tribunal to determine the unconscionable conduct claim." 15 Secondly, the legislative scheme makes distinctive provision for appeals in unconscionable conduct claims. Generally, appeals from decisions of the Tribunal go to an Appeal Panel of the Tribunal. Appeals on questions of law are as of right, but appeals on the merits require leave of the Appeal Panel (ss113, 114 and 115 of the ADT Act). A question of law may be referred by an Appeal Panel to the Supreme Court pursuant to ss118 and 118D. Section 119(1) of the ADT Act authorises appeals to the Supreme Court on questions of law against decisions of the Appeal Panel. In the case of other claims, including retail tenancy claims, there is no provision for an appeal on the merits, even by leave of the Supreme Court. 16 Different provision is made with respect to appeals in unconscionable conduct claims by s77 of the Retail Leases Act, including an appeal on the merits by leave, as follows: "77(1) A party to any proceedings (other than a party to proceedings for an unconscionable conduct claim) in which the Tribunal makes an order or other decision under this Act may appeal to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 . (2) A party to any proceedings for an unconscionable conduct claim may appeal to the Supreme Court, on a question of law, against any decision of the Tribunal in those proceedings. … (4) A party to any proceedings for an unconscionable conduct claim may appeal to the Supreme Court, with the leave of the Supreme Court, for a review of the merits of a decision by the Tribunal in those proceedings. … (6) If proceedings relate partly to a retail tenancy claim and partly to an unconscionable conduct claim, subsections (2)–(5) apply to those proceedings. …" 17 The Tribunal was given jurisdiction to make decisions on the basis of "unconscionable conduct" by amendment of both the ADT Act and the Retail Leases Act effected by the Retail Leases Amendment Act 1998. The new Pt 7A inserted by that amendment enacted for the first time, by express provision in s62B, a requirement that lessors and lessees must not "engage in conduct that is, in all the circumstances, unconscionable" in connection with a retail shop lease. 18 The unconscionable conduct scheme in the Retail Leases Act finds its origins in the Trade Practices Act 1974 (Cth) provisions on unconscionability. Such a provision has long existed in that Act. Originally it was found as s52A, introduced in 1986. In 1992, s52A was renumbered as s51AB and an additional provision, s51AA, was inserted. 19 Section 51AA, which expressly confines the concept of unconscionability to the concept of the equitable doctrine, was considered and applied to the case of a retail lease by the High Court in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51. The case indicates the difficulties that may arise when determining whether or not conduct is "unconscionable" in that sense. 20 In 1998 a further provision was introduced as s51AC. The new section was based on a Parliamentary Committee Report, referred to as the Reid Report, which gave particular attention to the position of small retail tenants in shopping centres. (See House of Representatives Standing Committee on Industry, Science and Technology, Parliament of Australia, Finding a Balance: Towards Fair Trading in Australia (1997) Ch 2, 181-182; Phillip Tucker, "Too Much Concern Too Soon? Rationalising the Elements of s51AC of the Trade Practices Act" (2001) 17 J of Contract Law 120 esp at 121-125.) 21 Whether or not the concept of unconscionability is different in s51AB and s51AC has not been authoritatively determined. There is considerable first instance authority to support the proposition that the list of relevant considerations identified in s51AC is such as to involve a concept of unconscionability that is broader than equitable doctrine would permit. (See ACCC v C G Berbatis Holdings Pty Ltd [2000] FCA 1376; ATPR ¶41-778 at [2]; ACCC v Simply No-Knead (Franchising) Pty Ltd (2000) 104 FCR 253 at [31]-[35]; ACCC v 4WD Systems Pty Ltd [2003] FCA 850; 200 ALR 491 at [183]; ACCC v Oceana Commercial Pty Ltd (2004) Aust Contract R ¶90-193 at [336]; ACCC v Keshow [2005] FCA 558 at [97]).) 22 It was s51AC, however, that was the model for s62B of the Retail Leases Act. The two sections contain the same list of relevant considerations. By s51AC, judges were given a statutory jurisdiction of a character that, it appears, is not necessarily confined by traditional equitable doctrines. The scope of this new jurisdiction, and the manner in which it was to be exercised, was still to be determined by judicial decision when the cognate provisions were introduced into the Retail Leases Act. Constitution of the Tribunal 23 In purported compliance with cl 1(3)(a) and cl 4(1) of Pt 3B of Sch 2 to the ADT Act in their original form, as set out above, the Tribunal hearing the proceedings between World Best and Mr Sarker was said to be constituted by Bruce Gordon Donald, a non-presidential judicial member of the Tribunal. Section 22(2) of the ADT Act provides that a President or Head of Division may give "directions as to the members who are to constitute the Tribunal for the purposes of any particular proceedings". No such "direction" was tendered. No issue arose with respect to that decision. The focus was on the relevant assignment by the Minister pursuant to cl 1(3)(a). 24 By a communication dated 17 September 2003, the Attorney General of New South Wales informed the Tribunal that: " … I have assigned Mr Bruce George Donald as a member of the Retail Leases Division of the Administrative Decisions Tribunal of New South Wales, pursuant to clause 1(3)(a) of Part 3B of Schedule 2 to the Administrative Decisions Tribunal Act 1997 for the purpose of exercising the Tribunal's functions under the Retail Leases Act 1994 in relation to unconscionable conduct claims." This is a "subsequent instrument of the Minister" within cl 1(3). 25 Mr Donald had never been a judge. His academic credentials are of high order. He was first admitted as a solicitor in 1969 and had a broad range of legal experience. Between 1973 and 1979 he was a solicitor with Stephen Jacques and Stephen, the last three years as a partner. Between 1979 and 1984 he was a partner of Allen, Allen & Hemsley. He practised in commercial and corporate law. From 1984 to 1986 he was Director of Legal Services of the Central Land Council. Between 1986 and 1992 he was the head of legal and copyright services at the ABC. He has subsequently practised in various capacities, since 1986 as a sole practitioner, with particular emphasis in media law. 26 Between 1999 and September 2003 Mr Donald had participated in 58 matters in the Retail Leases Division and five appeals from the Division. Since September 2003 he has been involved in two unconscionable conduct decisions judgment in which is reserved, as well as the case the subject of these proceedings. 27 The issue before the Court was whether or not Mr Donald had the "qualifications" or the "experience or qualifications" called for by cl 1(3)(a). Patten AJ held that he did not. He concluded that the Tribunal was not duly constituted. 28 The appeal from this aspect of the decision originally involved two issues. First, the proper construction of the relevant provisions of the ADT Act. Secondly, the application of the de facto officer principle. In the event, it will not be necessary to consider these matters. Retrospective Legislation 29 Nine days after this Court heard oral submissions in these proceedings there was introduced into the Parliament of New South Wales the Courts Legislation Amendment Bill 2005. The Bill was passed and the Act was assented to on 15 June 2005 (hereafter the "2005 Act"). The Court sought and received submissions about the effect of this Act on the proceedings. The Attorney and Mr Sarker assert that the legislation retrospectively validates the constitution of the Tribunal by Mr Donald. By s75A(5) of the Supreme Court Act 1970, this appeal is by way of rehearing. Accordingly, the appeal is to be determined in accordance with the law as it is now. (See Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107-108.) 30 Clause 1 of Sch 1 of the 2005 Act omitted cl 1(3)(a) in Pt 3B of Sch 2 to the ADT Act by deleting the previous alternative requirement of a member who has equivalent experience or qualifications of a retired Supreme Court of Federal Court judge and substituting, with future effect, the following: "(a) at least 1 member who is a current, retired or acting judge of any court of this State or of the Commonwealth, another State or a Territory or who is a Deputy President." 31 Clause 3 of Sch 1 inserted a new Pt 9 into Sch 5 to the ADT Act which added a new cl 40 as follows: "40 (1) The constitution of the Tribunal before the relevant day, for the purposes of exercising its functions under the Retail Leases Act 1994 in relation to unconscionable conduct claims, by any of the following members, and the assignment of any such member to the Retail Leases Division of the Tribunal, is validated: (a) a member who would have satisfied the requirements of clause 1 (3) (a) of Part 3B of Schedule 2, if the amendments made by the amending Act had been in force at the time of the assignment, (b) a member who, at the time of the assignment, had substantial experience or qualifications in commercial law. (2) Anything done or omitted to be done before the relevant day by the Tribunal as so constituted, that would have been validly done or omitted if the Tribunal had been properly constituted, is also validated. (3) In this clause: amending Act means the Courts Legislation Amendment Act 2005. relevant day means the date of commencement of Schedule 1 to the amending Act." 32 The relevant day for purposes of this Section is 15 June 2005 being after the whole of the proceedings at first instance in this case, indeed after oral submissions in this Court, had concluded. 33 It is not suggested that the amendment to cl 40(1)(a) is applicable to Mr Donald. However, cl 40(1)(b) is capable of applying to him. There is not before the Court any formal finding of fact that Mr Donald satisfied the description in the new cl 40(1)(b). World Best contends that he would not necessarily satisfy the requirements of this section. It submits that the evidence that was before Patten AJ does not establish that his experience or qualifications in commercial law were "substantial". The evidence in this respect was admitted without objection or cross-examination before Patten AJ. There is no suggestion by World Best that it wishes to have an opportunity to test the issue. It would be wasteful to remit this factual issue when there is no real controversy about the facts. In my opinion, the evidence, to which I have referred above, establishes that Mr Donald's experience in commercial law was "substantial". 34 The purpose of cl 40 is clear and was, it appears, prompted by the judgment of Patten AJ in these proceedings. A validating act is obviously intended to have retrospective effect. 35 The Attorney relies on each of the three validating components of cl 40: (i) the assignment; (ii) the constitution of the Tribunal; and (iii) anything done by a Tribunal so constituted. 36 In my opinion the first has no application. Validation of the Assignment 37 The ADT Act employs three terms with respect to the identification of persons who exercise powers under the Act: appointment, assignment and constitution. · Persons are appointed as members of the Tribunal whether as President, Deputy President, judicial member or non-judicial member (ss13, 14, 15 and 17). Furthermore, the President may coopt a "judicial officer" with the approval of the head of jurisdiction, including a Supreme Court judge, under s14(2). · Persons are "assigned" to particular Divisions created by the Act either by the Act (s21(1) and (2)) or by the President (s21(3)) or by the Minister (Sch 2 Pt 3 cl 1(2) and Pt 3B cl 1(3)). · With respect to the exercise of powers in the respective Divisions, the Tribunal is to be "constituted" in the manner specified, relevantly in Pt 3B cl 4(1), with similar provisions appearing in each other part of Sch 2 generally in the same terminology of "for the purposes of exercising its functions … the Tribunal is to be constituted …" either "by" or "so as to include" or "as follows". Sometimes the formulation is that particular "applications … are to be determined by …". 38 There is no provision in the legislative scheme for the Minister to determine directly the "constitution" of the Tribunal for a particular decision-making process. This is understandable as this would be detrimental to the appearance of the independence of the Tribunal. It is one of the objects of the Act in s3(a) "to establish an independent Administrative Decisions Tribunal". The Court should be slow to adopt a construction which has the consequence that, in substance, the Minister decides who can sit on a particular case. 39 The only provision for determining the "constitution" of the Tribunal in a particular case is found in s22(2) of the ADT Act, which states: "22(2) The President, or relevant Divisional Head (subject to any direction of the President), may give directions as to the members who are to constitute the Tribunal for the purposes of any particular proceedings (including proceedings in relation to an external appeal)." 40 Section 22(3) identifies a list of considerations to which the President or Divisional Head is to have regard when making a direction under s22(2). Section 22(4) relevantly provides: "22(4) … [T]he Tribunal is to be constituted subject to the provisions for the constitution of the Tribunal specified in Schedule 2 in relation to the classes of matters specified in that Schedule." 41 Clause 4(1) which was the critical provision in the present case is concerned, and concerned only, with the "constitution" of the Tribunal. However, neither before Patten AJ nor in this Court, was attention directed to the decision by the President or Divisional Head to have Mr Donald constitute the Tribunal. Indeed, the direction so constituting the Tribunal was not in evidence. 42 In my opinion, the focus on the Attorney's assignment was misplaced. He cannot rely on that part of cl 40(1) that purports to validate the assignment. Validating the Tribunal 43 The opening words of cl 40(1) are, in my opinion, applicable. They validate "the constitution of the Tribunal" "before the relevant day". This expressly gives the 2005 Act retrospective effect to validate the constitution of the Tribunal if it had, at the relevant time, been constituted by a member who, relevantly, satisfied the description in cl 40(1)(b). This retrospective effect is reinforced by cl 40(2) which validates, again "before the relevant day", the conduct of proceedings and decisions of a Tribunal as so constituted. 44 The purpose of the amendments, including their retrospective operation, was expressed by the Attorney in the Second Reading Speech for the Bill when, making a reference to the judgment of Patten AJ in this case, he said: "The present provisions allow only a member who is a retired judge of the Supreme Court or Federal Court or who has equivalent experience or qualifications. A recent interpretation of this provision is a decision by the Supreme Court meant that only one current member of the Tribunal could meet the criteria. The amendment will extend the class of members entitled to determine these cases to include any current, retired or acting judge or a deputy president. The amendment is designed to ensure that members who have previously determined these cases can continue to do so. The amendments will also validate previous decisions made by these members." (New South Wales, Parliamentary Debates , Legislative Assembly, 27 May 2005, 16330 (Bob Debus – Attorney General).) 45 Notwithstanding the patent intention to enact a law with retrospective effect, World Best submits that this Court should limit the retrospectivity so as not to apply to pending actions, particularly where, as here, the action has resulted in a court order. 46 World Best also invokes the principles of statutory interpretation reflected in s30 of the Interpretation Act 1987, specifically: "30(1) The amendment or repeal of an Act … does not: … (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or … (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, … and any such … legal proceeding or remedy may be … continued or enforced, as if the Act … had not been amended." 47 However, these principles operate subject to any indication to the contrary. The Parliament's intention to validate past decisions is clear. The issue is whether the language Parliament adopted can be read down so as not to apply to the present proceedings. 48 The common law presumption against retrospectivity, and the operation of the particular subrules set out in s30 of the Interpretation Act, are not spent when it is clear that Parliament intended a statute to operate retrospectively. Such a statute will only be given retrospective operation to the extent necessitated by the words of the statute, construed in their full context and in accordance with the legislative purpose, but no greater extent. (See Reid v Reid (1886) 31 Ch D 402 at 408-409; Lauri v Renad [1892] 3 Ch 402 at 421.) 49 The unfairness associated with retrospective laws is greater the more that citizens have relied upon the pre-existing law. Parliament will not readily be taken to have disappointed the legitimate expectations of citizens who have exercised their legal rights to such a degree as World Best has done in these proceedings. Nevertheless, whether by express words or necessary intendment, Parliament can and has enacted legislation which retrospectively affects pending actions, including in cases where a citizen has had the benefit of a court order. 50 World Best invokes the test propounded by the Privy Council in Zainal bin Hashim v Government of Malaysia [1980] AC 734, a case in which the statute was passed between trial and appeal, where their Lordships said at 742: " … for pending actions to be affected by retrospective legislation, the language of the enactment must be such that no other conclusion is possible than that that was the intention of the legislature." 51 A test of "possibility" appears to state the presumption too highly. It is virtually always "possible" to read down general words. In Victoria v Robertson (2000) 1 VR 465 at [21] the Court employed the formulation that "no other conclusion is open". Again, in my opinion, this may be too wide. 52 The contemporary approach to the determination of parliamentary intention – in the objective sense of intention employed in the law of statutory interpretation – is no longer formulaic in the manner sometime suggested by lists of "canons" or "principles" of statutory interpretation. A "test" as to whether or not a construction is "possible" or "open" or "reasonably open" or, alternatively, that the language is "intractable", is generally a mode of expressing a conclusion rather than an independent test applied in the particular circumstances. 53 The issue must be determined in accordance with the full range of relevant factors that are employed to determine the intention of Parliament, in the same way as the High Court identified the approach to determining whether there was a legislative purpose to invalidate conduct that was undertaken without compliance with a legislative stipulation: "The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the conditions. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue." ( Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]). 54 Where, as here, legislation is plainly intended to have a retrospective effect, it is appropriate when determining the extent to which Parliament intended retrospectivity to operate, to proceed on an assumption that Parliament intended to act fairly. 55 In L'Office Cherifien Des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486 Sir Thomas Bingham MR (as his Lordship then was) said at 494: "… Maxwell on Interpretation of Statutes, 12th ed. (1969), at p. 215, states the principle in a way described by Scarman J. in Carson v. Carson and Stoyek [1964] 1 W.L.R. 511, 516, as 'so frequently quoted with approval that it now itself enjoys almost judicial authority:' 'Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.'" 56 His Lordship then said at 495G-H: "… [T]he general law rule or presumption … is itself based on considerations of fairness and justice, as shown by the passage in Maxwell … and recently emphasised by Staughton L.J. in Secretary of State for Social Security v. Tunnicliffe [1991] 2 All E.R. 712, 724: 'In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.'" 57 On appeal, the principal speech in the House of Lords was delivered by Lord Mustill. His Lordship referred with approval to the judgment of Sir Thomas Bingham MR and also quoted the same passage from the judgment of Staughton LJ in Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712 at 724. His Lordship emphasised that matters of this character were to be determined by the application of a presumption that the legislature did not intend to act unjustly or unfairly and went on to reject any formulaic approach to the determination of the intention of Parliament with respect to the retrospectivity of a particular legislative scheme. 58 Lord Mustill said at 524-525: "… I must own up to reservations about the reliability of generalised presumptions and maxims when engaged in the task of finding out what Parliament intended by a particular form of words, for they too readily confine the court to a perspective which treats all statutes, and all situations to which they apply, as if they were the same. This is misleading, for the basis of the rule is no more than simple fairness, which ought to be the basis of every legal rule. True it is that to change the legal character of a person's acts or omissions after the event will very often be unfair; and since it is rightly taken for granted that Parliament will rarely wish to act in a way which seems unfair it is sensible to look very hard at a statute which appears to have this effect, to make sure that this is what Parliament really intended. This is, however, no more than common sense, the application of which may be impeded rather than helped by recourse to formulae which do not adapt themselves to individual circumstances, and which tend themselves to become the subject of minute analysis, whereas what ought to be analysed is the statute itself. … Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by Parliament cannot have been intended to mean what they might appear to say. My Lords, whilst the approach which I propose involves a single indivisible question, to be answered largely as a matter of impression, it is convenient … to look separately at the various factors." See also Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 at [19], [153], [186], [193]-[198], [200]-[201], [219]. 59 This approach requires the Court to determine the scope and degree of the unfairness or injustice that is applicable in the particular case. The greater the unfairness or injustice, the less likely it is that Parliament intended the Act to apply. Where Parliament has used general words, the courts will apply the well-established technique of reading them down. (See R v Young (1999) 46 NSWLR 681 at [23]-[31].) Referring to the presumption that Parliament did not intend to affect pending proceedings, Lord Rodger of Earlsferry said in Wilson v First County Trust supra at [198]: "Since the potential injustice of interfering with the rights of parties to actual proceedings is particularly obvious, this … presumption will be that much harder to displace." 60 It is of significance for present purposes that the degree of injustice involved in retrospective applications to pending actions was not regarded as a significant injustice by this Court in Bawn Pty Ltd v Metropolitan Meat Industry Board (1970) 72 SR (NSW) 466. 61 In Bawn, Mason JA said at 487: "Once it is accepted that the general principle of construction recognizes that a statute may operate retrospectively so as to disturb and alter substantive rights which accrued before the commencement of the statute, provided that the statutory intention in that behalf is manifested with sufficient clarity, it is not easy to see why any different rule should be applied to the possible operation of the statute on rights which have already accrued, but are the subject of pending proceedings, at the time when the statute commences to operate. True it is that in the latter case an added element of injustice may arise in the form of a liability to costs in circumstances in which the award of costs lies not in the discretion of the court, but follows automatically the result of the litigation. Nevertheless, it does not seem that the injustice which will or may result from an interference with substantive rights in pending suits is in general so much greater that a stronger presumptive rule should be applied in such a case, in particular a rule which, according to its formulation, insists on a specific or explicit reference to rights in pending actions as an essential preliminary to the application of the new statute to those rights." 62 The present case is higher on the scale of unfairness or injustice than the factual situation in Bawn. This is not a mere pending action. In the present case the steps taken before the Parliament intervened extended to actually pursuing the proceedings through trial and receiving a formal order of the court, albeit one subject to an appeal to this Court. Nevertheless, in just such a case the Privy Council decided in Zainal that Parliament did intend the retrospective provisions to apply. (See esp at 742-743.) So did the Full Bench of the Supreme Court of Western Australia in MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 and the English Court of Appeal in Hewitt v Lewis [1986] 1 WLR 444. Each legislative scheme must be interpreted in the light of the language used and its purpose. 63 In the 35 years since Bawn was decided there may have been a change in judicial attitudes to the degree of injustice associated with interference with accrued rights. I refer in this respect particularly to the problematic judgment of the High Court in Esber v The Commonwealth of Australia (1992) 174 CLR 430. That case did not involve expressly retrospective legislation and is probably best explained as turning on the interpretation of the transitional provisions in the Act. (See Dai Xing Yao v Minister for Immigration and Ethnic Affairs (1996) 46 ALD 273 at 279; Attorney General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485 esp at 504, 528.) 64 There is force in World Best's submission that where, as is clear from the Second Reading Speech, the Parliament must be taken to have had this very case in mind, it would be reasonable to expect the Act to use words directly applicable to the case. Bearing in mind that the Tribunal's decision had already been formally set aside by the order of the Court, there was no extant "act" to which cl 40(2) could apply. That subsection does not refer to "act or former act". However, I am unable to identify any equivalent approach with respect to the reference to the constitution of the Tribunal in cl 40(1). 65 The purpose of the 2005 Act was, in my opinion, to validate the constitution of the Tribunal in all previous cases. In this regard, I attach weight to the fact that for the future the constitution of the Tribunal is still subject to qualifications which would not apply to Mr Donald. The new cl 1(3)(a), picked up by cl 40(1)(a) does not apply to him. The constitution of the Tribunal by him is validated only because he falls within cl 40(1)(b) which itself has only retrospective effect. As cl 40(1)(b) refers only to a member who, at the time of the relevant decision of the Tribunal, had substantial experience or qualifications in commercial law, and given that Mr Donald (who was found by Patten AJ not to have the equivalent experience or qualification of a retired Supreme Court or Federal Court judge) would be so qualified, it is clear that cl 40(1)(b) was intended by the Parliament to validate the constitution of the Tribunal prior to the Act coming into force by a member such as Mr Donald. 66 The Parliament intended to validate all past decisions. I therefore do not believe it is possible to read down the general words Parliament has used. There is an element of unfairness but, as suggested by Mason JA in Bawn, it is an unfairness which can be cured in large measure by an order for indemnity costs, which World Best seeks if it were otherwise to fail. There is no suggestion that World Best has otherwise suffered prejudice, particularly as an appeal was pending. 67 For these reasons, the appeal on the first ground should be allowed. The Participation Issue 68 In his further written submissions the Attorney sought to invoke the new cl 40 of Sch 5 to the ADT Act with respect to the second basis upon which Patten AJ set aside the decision, namely the participation in the decision by the non-judicial members. His submissions sought to distinguish between subcll (1) and (2) of cl 40 to the effect that the latter should be construed as extending to validate proceedings and decisions by reason of a defect of any character in the constitution of the Tribunal. He submits that the words "so constituted" in cl 40(2) refer to the opening words of cl 40(1) which he submits "introduced the notion of the actual historical constitution of the Tribunal before 15 June 2005". 69 This submission should be rejected. I do not understand what effect should be given to the "introduction" of a "notion". In any event, the first few words of cl 40(1) have no work to do on their own. They do not "introduce" any kind of "notion". They are part of an operative clause which reads: "The constitution of the Tribunal before the relevant day … by any of the following members … is validated". The members are those referred to in cl 40(1)(a) and (b). It is to persons answering either description that the words "Tribunal as so constituted" in cl 40(2) refers. This section has no application to the participation issue. 70 There is no ambiguity in this and I do not find it necessary to refer to the Second Reading Speech. However, I have quoted it above. It contains a reference to this very case and explains cl 40 exclusively by reference to the issues of the constitution of the Tribunal. There is not even an oblique reference to inappropriate participation in decision-making by non-judicial members. The Attorney said that only one member of the Tribunal had the qualifications on the basis of the interpretation of the ADT Act by Patten AJ. The practical significance of the retrospective amendment was to validate a large number, probably the overwhelming bulk, of the decisions taken by the Tribunal in the exercise of the jurisdiction with respect to unconscionability. There is nothing to suggest that inappropriate participation by non-judicial members had occurred in any other case and that, therefore, there was anything like the same practical implications arising from the alternative basis upon which Patten AJ found in favour of World Best. 71 The issue before Patten AJ as to the involvement of the non-judicial members was an issue of fact. His Honour held that the two non-judicial members participated in the decision in a manner prohibited by the Act. In my opinion, his Honour made no error in his analysis of this issue. 72 His Honour first drew attention to par [5] of the reasons of the Tribunal which asserted that the Tribunal was in fact constituted by all three members, as distinct from only being constituted by the presiding member, with the others assisting. That paragraph read: "[5] All claims are clearly within the jurisdiction of the ADT under the Retail Leases Act and the Tribunal was duly constituted for hearing unconscionability claims under Pt 7A with a Judicial Member presiding and two Members expert in retail commercial business and dealings." The use of the word "presiding", to describe the role of the judicial member, reinforces this express statement that all three members constituted the Tribunal. 73 His Honour went on to set out at some length the numerous references in the reasons for decision of the Tribunal which indicated that every decision and determination made by the Tribunal was in fact made by all three of its members. His Honour said: "[48] Throughout the reasons, which comprised 106 paragraphs, there were numerous references in the first person plural and none in the first person singular. The following quotations are illustrative, the numbers corresponding with numbered paragraphs in the reasons: '6 … In those circumstance, the Tribunal was not assisted with WBH's version of much of what transpired and subject to ensuring we have been properly satisfied on the evidence, we have been guided by the documents and the Lessee Sarker's evidence as finalised during and after cross-examination. 20 We here note that despite much argument during interlocutory proceedings as to whether India is part of Asia, this was not an issue pressed at final hearing and for what it is worth, we are of the firm opinion that it simply cannot be contended that 'Asian Grocery' as a permitted use description does not include Indian food products … 26 … On balance we accept Ling's evidence and conclude that the WBH lawyers on their behalf did not express any particular urgency about the guarantee while not in any way suggesting it was not required. 35 We note there was no evidence from WBH on the basis of which its lawyer could have asserted 'many of which have been previously expressed to you'. We find no concerns had previously been expressed. 46 … We think the assertion is plainly wrong in the context of the Court's order in proceedings to restore a right to trade in a shop which must include restoring stock removed in the dispossession. 68 In ordinary commercial terms and based on our respective experience of commercial dealings we summarise what has happened in the following way. We are satisfied on all the evidence that: (a) … (b) … (c) … (d) We do not think it can seriously be contended that India is not part of Asia and that Indian goods do not fall within the generic description of Asian Groceries Shop as permitted trading items. Accordingly we consider it was commercially astonishing for WBH to have tried to fix the problem by sticking with that proposition. … 69 Accordingly, as commercial people, we consider the conduct of WBH to be quite unacceptable in the ordinary management of a retail shopping centre having regard to usual industry standards and practices. The question is whether under the law governing the rights and obligation between these two parties, WBH was entitled to pursue the course it did. 79 The factual inquiry we therefore must make should have regard to the whole situation, not merely whether certain terms may have been declare "essential" terms entitling termination. 80 We are firmly of the view that no reasonable lessor in these circumstances could have regarded Sarker's conduct at the time of either the first or second notice as a complete disavowal of the lease or his obligations under it … 81 Therefore we do not accept WBH's contention that Sarker has repudiated his lease such that it can terminate that lease … 82 On the other hand, we do think WBH has repudiated the lease by its relentless campaign beginning with a surprise lock out and proceedings over six months of the most intensive legal war … 83 Therefore we consider Sarker was entitled to terminate the lease. 86 We also consider that WBH had engaged in unconscionable conduct in terms of Part 7A of the Retail Leases Act. The parts of s 62 which we think apply are:- 88 In our assessment, WBH was exploiting its own loose management of both the fit out system and the security by way of bank guarantee … 89 In our opinion this entitles Sarker to recover compensation under s. 72AA of the Retail Leases Act and also to an ancillary order that he is entitled to terminate the Lease … 91 … His lack of working capital had given us concern in that regard but we do not need to determine this issue. 93 … we consider that as between the parties the proper award of rent would be for three such rent payments i.e. $12, 127.50. 94 We agree that the security deposit should be refunded to Sarker in the same amount, $12,127.50 95 … Accordingly we would not be satisfied that more than $20,000 should be allowed for lost or damaged stock during the July – January period. We allow $20,000. 97 … Accordingly we think the insurance claim should be reduced by one-third. We allow $1006.94. 98 There is no evidence from Mr Sarker as to why this was necessary for him to establish sources of supply or that he actually used any such sources when trading. We do not allow this claim. 102 In summary we assess the total loss at $80,630.77. 105 In all of those circumstances we think it would be seriously unfair for costs not to be awarded to Sarker'." 74 His Honour concluded: "[49] … paragraph 5 of the reasons of the Tribunal, on its face, indicates a fundamental misapprehension as to the constitution of the Tribunal. It was not constituted by 3 persons, but by one person alone, namely Mr Donald. The other members did not constitute the Tribunal, but were there to advise and assist it, pursuant to clause 4 (2). Of course, the misapprehension, which I think was evidenced by paragraph 5 of the reasons, was not necessarily fatal, but I have looked in vain throughout them for some indication, however slight, that Messrs Fagg and Griffiths were not participating in the adjudication. I have found none, but to the contrary, all the relevant references indicate, to my mind, that all three regarded themselves as constituting the Tribunal and participated in its adjudicary functions. In the circumstances, I would regard any presumption of regularity as rebutted. [50] I reject the argument that the use of the first person plural was merely a figure of speech, the so-called 'royal plural'. As a matter of plain English, I do not think this to be so. Unless Mr Donald believed that he was including Messrs Fagg and Griffiths in the decision making process, there was, in my view, no apparent reason to write in the first person plural." 75 These findings of fact were fully justified. The detailed and precise references to a joint decision-making process which permeate the Tribunal's reasons are quoted by Patten AJ. Indeed, there is no suggestion anywhere in the reasons of any other character. 76 I draw particular attention to par [69] from the decision of the Tribunal which asserts: "[69] Accordingly, as commercial people, we consider the conduct of WBH to be quite unacceptable …" The reference to "as commercial people" is clearly a reference to all three members of the Tribunal. It cannot be construed in any other way. 77 Similarly, par [68] contains the following introduction to the Tribunal's conclusions: "… based on our respective experience of commercial dealings". Again, this reinforces his Honour's conclusion. 78 With respect to the involvement by the two non-judicial members in the decision-making process, in my opinion, Patten AJ was correct for the reasons he expressed. The Tribunal proceeded on the basis that all three members were entitled to, and did, involve themselves in every aspect of the decision-making process. The express statement as to the constitution of the Tribunal, and the numerous references to each relevant decision being taken in the name of all three members of the Tribunal, as set out above in the lengthy extract from the judgment of Patten AJ, is quite sufficient to establish the proposition and to discharge the onus of proof that World Best had as a plaintiff to overcome the presumption of regularity. Indeed, it does so overwhelmingly. 79 There was no attempt by Mr Sarker, nor by the Attorney, after he was joined as a party, to establish, by means of adducing evidence from the Tribunal that the words of the decision did not accurately reflect the decision-making process. In the absence of any attempt to adduce such evidence, there was no basis for the submission made by the Attorney that the numerous statements, in clear and unambiguous terms, about the involvement of non-judicial members of the Tribunal were in some sense made in error, by oversight or involved the use of a rhetorical royal plural. If the clear, indeed overwhelming, implications of the reasons for decision were to be contested, then direct evidence needed to be adduced. There was none. The Statutory Defences 80 The Attorney sought to support the order of the Tribunal, notwithstanding the participation in the adjudication by the two non-judicial members, on the basis of s52(1)(e) of the Interpretation Act 1987 and, alternatively, s81(3) of the ADT Act. 81 Section 52(1)(e) of the Interpretation Act 1987 provides: "Any act or proceeding of a statutory body shall not be called into question merely because of … (e) the presence or participation at any meetings of the body of any persons not entitled to be present or to participate at those meetings." 82 This provision does not avail the Attorney. Participation in the adjudication, contrary to the provisions of cl 4(3) of Pt 3B of Sch 2 of the ADT Act, is not "participation at a meeting" of the Tribunal. What was involved was not a "meeting", but the formal exercise of a statutory power by a person not entitled to exercise the power. 83 Alternatively, the Attorney relies on s81(3) of the ADT Act which must be considered in its full context: "81(1) The Tribunal may, in any proceedings before it, make any amendments to the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings (including the commencement or purported commencement of proceedings), and (b) on such terms as the Tribunal thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Tribunal is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings before the Tribunal, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings or any decision in the proceedings. (4) For the purposes of subsection (3), the Tribunal may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings." 84 This section is clearly derived from longstanding provisions in rules or legislation of courts, which find their origins in the concern of the Judicature Acts to ensure that litigants were not defeated by mere technicalities. (See e.g. Supreme Court Act 1970 s81 and District Court Act 1973 s159; see the analysis in Rust v Barnes [1980] 2 NSWLR 726 at 729-731; Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 at 752-753.) 85 Such provisions in statutes affecting courts have been interpreted as directed to matters of practice and procedure. They do not operate as some kind of privative clause. Section 81(3) of the ADT Act has the same purpose. 86 Originally such provisions were contained in Rules of Court when, clearly, they could not extend to a failure to comply with an act. When transferred to the relevant statute, the provision was necessary wherever the statute included procedural stipulations, as is often the case, as in the ADT Act. However, the transfer to the Act did not change the effect and operation of the provision from its procedural origins. 87 In the case of a superior court like the Supreme Court, the decisions of which are never a nullity, the word "nullify" - which does appear in s81(1) of the Supreme Court Act - could not be intended to perform the function of a privative clause. The position is no different in the case of statutory courts and tribunals which adopt the model established by the Supreme Court Act. 88 Section 81(3) is contained in Ch 6 of the ADT Act – entitled "Procedure of Tribunal Generally" – specifically Pt 2 thereof – entitled "Other Procedural Matters". All of the surrounding sections are clearly procedural. In particular, the immediate statutory context of the other subsections of s81 emphasise the limited scope of subs (3). Subsections (1) and (2) give the Tribunal power to make amendments. More significantly, subs (3) and (4) must be read together. 89 Subsection (4) suggests that subs (3) is, like subs (1) and (2), directed to the Tribunal. The introductory words of subs (4), that the Tribunal is empowered to take certain steps "for the purposes of" mean, in this context, "by reason of the operation of". The subsection empowers the Tribunal, and only the Tribunal, to take steps where non-compliance has been declared to constitute an irregularity and not a nullity. 90 It is in this context that the scope of the words of subs (3) which are to be construed must be understood. What is meant by the words "in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings before the Tribunal"? 91 The first thing to note is that the words used are narrower than the longstanding Judicature Act formulation reflected, for example, in s81(1) of the Supreme Court Act 1970 and s159 of the District Court Act 1973, which extend to non-compliance "… in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings". The words of s81(3) are much narrower than this. 92 It is sufficient for present purposes to construe the terminology of "conduct of proceedings before the Tribunal" so as to apply to steps taken by the parties to the application in relation to the conduct by them of the proceedings. The final act of 'adjudication' by the Tribunal is not something that is 'conducted' "before the Tribunal". On this basis alone, the appeal should be rejected on the participation issue. Nevertheless, it is not appropriate to do so on so narrow a basis. The construction for which the Attorney contends has radical implications. 93 Section 81(3) states that deficiencies to which it applies are to be treated as an "irregularity". All this means is that they are voidable rather than void. The section goes on to state that the deficiency "does not nullify … any decision" but this does no more than reinforce the effect of the word "irregularity", i.e. that the deficiency does not of itself have the effect of "nullification". The decision remains voidable. Section 81(4) makes it clear that the Tribunal can avoid the proceedings. It is contrary to s122 of the ADT Act to suggest that the Court cannot do so. 94 Section 81(3) cannot be construed so as to cut down the conferral of an appellate jurisdiction on the Supreme Court by s119 of the ADT Act or, relevantly, s77(2) of the Retail Leases Act and, particularly, the clear words of s122 of the ADT Act which provides: "122 Nothing in this Act (except Section 123) affects the power of the Supreme Court, in the exercise of its original jurisdiction, to review decisions of the Tribunal." 95 Section 123 confers a discretion on the Supreme Court and is not pertinent. Section 122 is clearly inconsistent with the use which the Attorney seeks to make of s81(3). It reinforces the proposition advanced above on the basis of reading s81(3) and (4) together – that s81(3) is directed to the Tribunal only. 96 The words relied on cannot be construed to constitute a privative clause. To do so would tear the words "does not nullify" from their procedural context and give them a literal interpretation contrary to the contemporary approach to statutory interpretation. 97 The scope and purpose of this provision is confined to procedural irregularities. The word "decision" in the final clause of the subsection, identifying what kinds of matters are not "nullified", must be read in the context that something is to be classified as a mere "irregularity" so as not to nullify either a "step taken" or a "decision in" the proceedings. This, in my opinion, means steps or decisions of a procedural character. It does not, in my opinion, relate to the ultimate decision when made by a decision-maker who does not have the capacity to exercise the statutory power. Whilst the terminology of "advisory capacity" may often suggest procedural matters, what happened in this case was that a statutory power was exercised by persons who had no authority of any character to do so. This is a jurisdictional error of a fundamental kind. It is not a procedural irregularity. 98 Indeed, even if the subsection were to be treated as some kind of privative clause, it would be read down so as not to extend to jurisdictional error of the character asserted in this case. A privative clause is to be construed in accordance with the principle frequently affirmed and expressed by Dixon J in Magrath v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121 at 134: "The general rule is that statutes are not to be interpreted as depriving superior Courts of power to prevent an unauthorized assumption of jurisdiction unless an intention to do so appears clearly and unmistakably." 99 On the Attorney's submission as to the meaning of s81(3) this principle must be applied. 100 On this basis the words "failure to comply" in s81(3) would not extend to an error of a jurisdictional kind. The word "decision" would not extend to a "purported decision". However, by reason of the history and context of s81(3), it is not necessary to invoke the rules of construction applicable to privative clauses. 101 The Attorney relied on the judgment of Bowen CJ in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338. In that case the court was concerned with s25 of the Administrative Appeals Tribunal Act 1975 (Cth) which relevantly stated: "An enactment may provide that applications may be made to the Tribunal … for review of decisions made in the exercise of powers conferred by that enactment …" Similar terminology was used throughout s25 with respect to the jurisdiction of the Administrative Appeals Tribunal. 102 In Brian Lawlor at 346 Bowen CJ held that: "… an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong." 103 A provision such as that found in s25 of the AAT legislation is not comparable to s81(3). The former confers a jurisdiction to undertake merits review. The latter purports to declare procedural defects to be irregularities. The word "decision" takes its colour from its surroundings. Section 25 is not relevantly analogous to s81(3). The Issue of Validity 104 The Attorney submitted that the participation by the non-judicial members in contravention of cl 4(3) of Part 3B was not such as to render the decision invalid. He relied on the test authoritatively established for this purpose in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. Parliament always intends that its procedural stipulations should be complied with. That does not mean that it intends that every failure to comply with such a stipulation has the consequence that the ultimate decision is invalid. It is necessary to identify a legislative intent that that be so. 105 In Project Blue Sky, the High Court said: "[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the conditions. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied ( Howard v Bodington (1877) 2 PD 203 at 211, per Lord Penzance); there is not even a ranking of relevant factors or categories to give guidance on the issue." 106 The High Court reiterated the test, after criticising the use of the terminology of "mandatory" and "directory" requirements, and said: "[93] … The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'." 107 There is a slight difference between the two formulations. The passage at [91] refers to a legislative intention "to invalidate any act that fails to comply". The second at [93] refers to a purpose to invalidate "an act done in breach". I do not understand the word "any" to be used in the sense of "every". The word "an" in [93] indicates that a court must look at what Parliament intended to be the consequences of the particular breach under consideration. 108 There may, of course, be legislative requirements with respect to which it is appropriate to conclude that Parliament intended every breach to lead to invalidity. (See, e.g., Hatton v Beaumont [1977] 2 NSWLR 211 at 266.) There are other requirements where it is appropriate to consider the particular circumstances of the case when determining what are the consequences of the defective compliance. The decisions of this Court, to which the High Court referred with approval, support this conclusion. 109 In Tasker v Fullwood [1978] 1 NSWLR 20, the judgment stated at 23-24: "The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done … The intention being sought is the effect upon the validity of the act in question , having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirements." [Emphasis added.] 110 I have indicated above the way in which the unconscionability provisions were adapted from the Trade Practices Act 1974 (Cth). The origins of the scheme indicate the significance which Parliament attached to the composition of the Tribunal which was to determine these issues. 111 The Second Reading Speech for the Retail Leases Amendment Act 1998 made express reference to the national benchmark of s51AC as the model for retail leases in New South Wales. Of particular significance for present purposes is the recognition in that speech that the test of unconscionability could significantly undermine existing property relationships and that the restriction of the jurisdiction to persons with a high level of judicial experience was designed to appease apprehension in this regard. 112 The Minister said: "… [T]he greatest achievement of the bill is the draw down of the unconscionable conduct provisions of the Federal Trade Practices Act into the Retail Leases Act. This will provide affordable access, particularly for small business, to justice on matters of unconscionable conduct. The intention of this bill is to enable the protection afforded to both lessees and lessors against the misuse of power in their business relationships by section 51AC of the Federal Trade Practices Act to be available under New South Wales law. This is not so much about putting sanctions in place for those who act unconscionably in retail leasing transactions. It is primarily aimed at behaviour change. Establishing an acceptable framework within which leasing transactions can occur and changing the culture from one of confrontation and disputation to one of communication and commercially advantageous co-operation. … The adoption of the unconscionable conduct provisions into the retail leases legislation provides a mechanism which will enable both merchants and landlords to pursue their commercial interests in respect to retail leasing, as long as they comply with the legislation and do not behave in an unconscionable manner in their dealings with one another. In proposing the incorporation into New South Wales law of the concept of unconscionable conduct, the Government has been mindful of the rights and responsibilities of property owners and managers in relation to the use of the property they own or manage on behalf of others. Nothing in this bill is intended to diminish the property rights of lessors. Under this section of the legislation failure to renew a lease or issue a new lease is not sufficient grounds for an unconscionable conduct claim and a person is not taken to have engaged in unconscionable conduct simply by instituting legal proceedings in relation to a retail lease or referring a leasing matter for arbitration. … The Tribunal will continue to provide a forum for dealing with retail tenancy claims and will also ensure that matters of commercial contract law dealt with under the unconscionable conduct provisions are heard in a jurisdiction with the appropriate degree of legal expertise. To this end, these amendments provide for unconscionable conduct matters to be heard in the retail leases division by a retired judge of the Supreme Court or the Federal Court, or a lawyer of equivalent experience and qualification, who will be appointed by the Government after appropriate consultation with the retail and property industries. This judicial member will determine whether unconscionable conduct has been proven and will be assisted, in an advisory capacity only, by two other members of the division who will be appointed by the Government, after due consultation with the industry, on the basis of their experience working for lessor and lessees respectively. The amendments also provide for reference of unconscionable conduct matters to the Supreme Court. This can be done in the first instance on the application of a party to the proceedings to have the proceedings transferred to the Supreme Court. The Administrative Decisions Tribunal must transfer proceedings to the Supreme Court if it is satisfied that the claim can be more effectively and appropriately dealt with by the Supreme Court and the interest of justice do not require the matter to continue to be dealt with by the tribunal. In the second instance, there is a right of appeal against decisions of the tribunal. On matters dealing with unconscionable conduct, there will be an unfettered right of appeal to the Supreme Court on questions of law. There is also a right of appeal to the Supreme Court, by leave of the Court, for a review of the merits of a decision by the tribunal. The appointment of a judicial member with Supreme Court or equivalent experience to determine unconscionable conduct matters combined with the right to have unconscionable conduct matters removed to the Supreme Court, either by reference or by appeal, will ensure that the important issues of legal judgment that are inherent in the concept of unconscionable conduct will be dealt with at an appropriate judicial level with proper regard for the rights of the parties to the case. It is recognised that as the unconscionable conduct provisions established through this bill are based on the Trade Practices Act their application is, to a certain extent, dependent on issues in relation to coverage within the ambit of the Commonwealth. " [Emphasis added.] (New South Wales, Parliamentary Debates , Legislative Assembly, 28 October 1998, 9168 (Sandra Nori).) 113 The Minister expressly recognised that the difficult, indeed novel, issues that would arise under the new regime, applying as it was to do as a national benchmark, should be determined or adjudicated upon by a person with experience and qualifications of a higher order than appropriate in other retail tenancy claims. Furthermore, a national benchmark should lead to the same decision being made irrespective of the Court or Tribunal in which proceedings are brought. The Parliament was well aware that cases involving retail tenancy disputes can almost always be brought in the Federal Court as readily as in the Tribunal. 114 The inclusion of a reference to a Federal Court judge in the old cl 1(3)(a), the only such reference in the Retail Leases Act, emphasises both the fact that it was a national standard to be developed and the level of expertise required. Although the District Court does have jurisdiction in Trade Practices Act claims, the body of case law is primarily to be found in the Federal Court and in the State Supreme Courts. 115 I have set out Pt 3B of Sch 2 to the ADT Act above. Clause 1(3)(a) and cl 4(1) constitute a requirement that the Tribunal be constituted by a person with a particular qualification. A special provision is retained even after the 2005 amendments. There are other such provisions in Sch 2 with respect to different areas of the Tribunal's jurisdiction, most relevantly cl 3 of Pt 3B with respect to retail tenancy claims. However, significantly, there is no other such provision which relegates non-judicial members to a mere advisory role as does cl 4(2). 116 Furthermore, the Parliament reinforced the position by enacting an actual prohibition against participation in adjudication in cl 4(3). The element of redundancy thus introduced emphasises the significance of a failure to comply with the stipulation. 117 The significance which the Parliament attached to the composition of the Tribunal is clearly indicated by the addition of cl 4(3). Sufficient work would have been done by cl 4(1), establishing that the Tribunal is to be "constituted" by a particular member, and by cl 4(2) stating that the non-judicial members are only to act "in an advisory capacity". However, the Parliament went further. It went on in cl 4(3) to enact a specific prohibition against "adjudication". That last step was unnecessary, save to emphasise that unconscionable conduct claims would be determined in the manner prescribed and in no other manner. 118 The special decision-making process for unconscionable conduct claims represented a recognition by Parliament of the difficulties that arise with the variation of substantive legal rights based on so amorphous and ambiguous a concept as "unconscionability". 119 Section 70 of the Retail Leases Act contains a definition of "retail tenancy claim" which is of much more definite character. Such a claim extends to the specific rights and obligations arising under a lease and to such well established, but narrow, concepts impinging on the relationship of landlord and tenant, as claims for relief against forfeiture and claims for rectification. In these areas the relevant principles are well defined and capable of ready application. That is far from the case with a concept such as "unconscionable conduct". Over recent decades legislatures have authorised courts to rearrange the legal rights of persons on the basis of vague general standards which are clearly capable of misuse unless their application is carefully confined. Unconscionability is such a standard. 120 Unconscionability is a well-established but narrow principle in equitable doctrine. It has been applied over the centuries with considerable restraint and in a manner which is consistent with the maintenance of the basic principles of freedom of contract. It is not a principle of what "fairness" or "justice" or "good conscience" requires in the particular circumstances of the case. As Deane J put it in Muschinski v Dodds (1985) 160 CLR 583 at 616: "… [P]roprietary rights fall to be governed by principles of law and not by some mix of judicial discretion …, subjective views about which party 'ought to win' … and 'the formless void of individual moral opinion' … Long before Lord Seldon's anachronism identifying the Chancellor's foot as the measure of Chancery relief, undefined notions of 'justice' and what was 'fair' had given way in the law of equity to the rule of ordered principle which is of the essence of any coherent system of rational law. The mere fact that it would be unjust or unfair in a situation of discord for an owner of a legal estate to assert his ownership against another provides, of itself, no mandate for a judicial declaration that the ownership in whole or in part lies, in equity, in that other …" To similar effect are the observations of Dean J, with whom Gibbs CJ, Mason, Wilson and Dawson JJ concurred, when rejecting the proposition that the common law recognised a tort of unfair competition. His Honour described the concept as "a cause of action whose main characteristic is the scope it allows, under high sounding generalisations, for judicial indulgence of idiosyncratic notions of what is fair in the market place." ( Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414 at 445-446.) 121 The Ministerial Second Reading speech, quoted above, indicates a similar concern to distinguish what is unconscionable from what is merely unfair or unjust. Even if the concept of unconscionability in s62B of the Retail Leases Act is not confined by equitable doctrine, as the decisions under s51AC of the Trade Practices Act suggest, restraint in decision-making remains appropriate. Unconscionability is a concept which requires a high level of moral obloquy. If it were to be applied as if it were equivalent to what was "fair" or "just", it could transform commercial relationships in a manner which the Minister expressly stated was not the intention of the legislation. The principle of "unconscionability" would not be a doctrine of occasional application, when the circumstances are highly unethical, it would be transformed into the first and easiest port of call when any dispute about a retail lease arises. 122 The original statutory scheme recognised that judges who have had the experience of serving on the Supreme Court or the Federal Court are used to approaching questions of "unconscionability", including in a statutory context, with an appropriate level of restraint. Others, including legal practitioners, whose primary experience is the representation of the interests of particular parties, could well be seen as likely to approach the task of determining unconscionability by a principle of what is "fair" or "just" in all of the circumstances of the case. Non-judicial members with industry backgrounds could readily be so regarded. 123 There is a suggestion that the Tribunal in the present case may have adopted an unacceptably low standard. After setting out its conclusions, the Tribunal found: "we consider the conduct of WBH to be quite unacceptable … having regard to normal industry standards and practices" (at [69]). It then proceeded to determine what were called "the legal issues", including unconscionability, by identifying which of the considerations in s62B(3) of the Retail Leases Act were applicable without further analysis of matters of fact and degree that need to be considered when applying a test of unconscionability. If, as appears likely, a test of "unacceptable conduct" were adopted, this is a far lower standard than unconscionability. 124 The matters to be considered under a retail tenancy claim, turning on the contract and well-established doctrine, were intended by Parliament to continue to have considerable scope. The Parliament was careful to ensure that the amorphous and ambiguous term, "unconscionability", did not come to completely override the legal rights and obligations created by the lease relationship. Parliament did not intend that "unconscionability" claims could be made so readily as to virtually take the place of retail tenancy claims. They needed to meet a high standard of moral obloquy. 125 The best way of ensuring that this eventuality did not occur was, it appears, the vesting of the jurisdiction in persons whose cast of mind is such that they would not be tempted to take the easy course of avoiding the complexities of the legal rights and obligations of a situation and resorting, virtually in the first instance, to what has appropriately been called the formless void of a general discretion. For these reasons, the composition of the Tribunal was a critical element of the legislative scheme. 126 The Parliament intended that the new powers would be exercised by a person with a considerable body of judicial experience and by only such a person. In my opinion, it was a purpose of the legislation that an act done in contravention of the requirement that the non-judicial members do not participate in adjudication was intended by the Parliament to be invalid. Nothing in the 2005 Act affects this conclusion. 127 In my opinion, the Project Blue Sky test is satisfied. The appeal should be dismissed. Appeal on the Costs Order 128 World Best has instituted a cross-appeal challenging the decision of Patten AJ as to costs. His Honour made two orders. First he ordered Mr Sarker to pay World Best's costs. Secondly, with respect to the costs of the hearing before the Tribunal, his Honour ordered those costs be "at the discretion of the member constituting the Tribunal at the second hearing". His Honour had ordered that the case be remitted to the Tribunal to be heard and decided again by a Tribunal constituted according to law. 129 World Best seeks to challenge each of these orders. First, it seeks an order extending the order as to costs of the appeal to the Attorney General of New South Wales. Secondly, it seeks an order for costs of the original hearing before the Tribunal. 130 With respect to the costs of the appeal, his Honour said: "The Attorney General intervened on the day of the hearing of the appeal, by leave, and was there represented by counsel Ms Allars who argued the two matters upon which, in the result, the appeal has been determined. They involved both the constitution of the Tribunal and what I held to be an error appearing on the face of its decision. However, Ms Allars I think correctly points out that the Attorney General's intervention in no way added to the cost of the appeal. It arose only on the actual day of hearing and for the most part her submissions supported those of counsel for the first defendant. I think in the circumstances it would be wrong to make an order for costs against the Attorney General and I think the proper order in respect of the Attorney General is that there be no order as to his costs." 131 His Honour approached the issue on the basis of whether or not the Attorney's intervention added to the costs of the appeal. It was wrong to characterise the Attorney's participation merely as an "intervention". On his own motion, the Attorney was added as a party in order to uphold his own decision to assign Mr Donald as a member of the Retail Leases Division for purposes of exercising the Tribunal's function in relation to unconscionable conduct claims. The Attorney also intervened to support the operations of the Tribunal, in a case which challenged the participation of the non-judicial members in the decision-making process. Although the latter did not directly involve the Attorney's own conduct, it nevertheless was a matter of broader interest for the administration of the Tribunal, beyond the interests of the particular parties to the specific dispute. 132 The Attorney was added as a party. The interests he represented were directly engaged. As such he was properly exposed to an order as to costs. 133 The cross-appeal should be allowed. 134 I should note that an issue was raised in the submissions in this Court as to whether the Court's orders with respect to costs should extend to the costs of the application heard by Mr Justice Sully seeking an order that leave to appeal to the Supreme Court be extended to encompass a merits review. His Honour dealt with that issue and made a discrete order as to costs. The ultimate success of the Attorney on the jurisdictional issues does not impinge on that separate discrete issue. 135 With respect to costs before the Tribunal, Patten AJ said: "In relation to the costs below, I provisionally ordered that they be disposed of by the member constituting the Tribunal at the second hearing, and I see no reason to vary that order. I doubt if I have jurisdiction to order that the Attorney General pay the costs of those proceedings but even if I did, as a matter of discretion I do not think that I should do so. The practical difficulties and perhaps injustice to the plaintiff as a consequence of that is perhaps manifest. However, the plaintiff will have its rights in relation to the proceedings below, particularly, I assume, including the right to have the matter terminated for want of prosecution or in other circumstances which might cause injustice if nothing is done to bring the matter forward. The plaintiff could then seek the benefit of, in effect, the reserved order for costs. As I understand the practice, when a new trial is ordered, as in effect has happened in this case, it is not uncommon to order that the costs of the first trial should abide the result of the second trial or be in the discretion of the judicial officer hearing the second trial." 136 In my opinion, it was well within his Honour's discretion, whether exercising the general cost discretion of the Supreme Court, or a discretion more confined by the statutory regime in the ADT Act, for his Honour not to make any order as to the costs of the first hearing. It is not necessarily the case that the time and effort involved in the first hearing is entirely wasted. A second hearing will not necessarily require everything to be repeated. In this regard the cross-appeal should be dismissed. 137 Neither of the participants in the Tribunal hearing was in any way to blame for the fact that at least some part of the costs of that hearing have been wasted. The 50-year-old Suitors' Fund Act 1951, notwithstanding its limitations, exists to provide some compensation in the case of a successful appeal, but only in the case of a respondent. Mr Sarker, the First Defendant to the statutory appeal below was granted a certificate by Patten AJ with respect to the proceedings before his Honour. Although he was a Second Respondent in this Court, he supported the Attorney in submissions and no such order or any other as to his costs is appropriate for this appeal. The Restraint Order 138 Mr Sarker seeks leave to appeal from an order made by Patten AJ with respect to the repayment of the sum of $10,000 made as part payment of the order originally made by the Tribunal. In this regard his Honour said: "I think that only leaves the question of the amount of 10,000 paid by the plaintiff in effect as part payment of the order made by the Tribunal. Such payment was made pursuant to an order of Kirby J and it is accepted by counsel for the first defendant that the sum should be repaid. In my view it should be repaid forthwith and until repayment should carry interest at the rate prescribed by the rules of the Supreme Court. I think there is some force in Mr Ellicott's submission that until repayment the first defendant should be restrained from taking any further proceedings in the tribunal. … … I order that the first defendant repay to the plaintiff forthwith the amount of $10,000 paid by the plaintiff pursuant to the order of Kirby J. I direct that the first defendant also pay to the plaintiff interest upon such payment from the date it was paid until the date of repayment at the rate of nine per cent per annum, which as I understand it, is the rate presently payable under the Supreme Court recommended scale. And I further order that until the repayment of that sum the first defendant be restrained from taking any further proceedings in this case before the Tribunal." 139 Mr Sarker challenges the order that he be restrained from taking further steps until payment. There is evidence before the Court that Mr Sarker is now impecunious. 140 In an appeal of the character of the present matter before the Supreme Court, s77(3) of the Retail Leases Act states that s120 and s121 of the ADT Act apply. Section 120 of the ADT Act empowers the Court to "make such orders as it thinks appropriate in light of its decision". The amount of $10,000 was a part payment under the Tribunal's order, set aside by Patten AJ. It was paid over under a condition imposed by Kirby J on the grant of a stay of the Tribunal order. The stay and the condition were made in the exercise of this Court's jurisdiction to render effective its appellate jurisdiction. 141 If any limitation were to be placed on subsequent events in this regard, they should have been imposed as part of the conditional release of funds at the time Kirby J made the order. After judgment the order has the substantive effect of an injunction based on the existence of a simple debt. This is an inadequate equity for such relief. It is not an order that is "appropriate" to be made under s120 of the ADT Act. 142 This issue took very little time. It does not require a separate order as to costs. Orders 1 Leave to appeal granted. 2 Appeal dismissed. 3 Appellant to pay the First Respondent's costs of the proceedings. 4 No order as to the Second Respondent's costs. 5 Grant leave to both Claimants to appeal. 6 Vary Order 3 in the orders of Patten AJ of 3 December 2004 by deleting the words "the First Defendant, Mr Abdul Sarker" and inserting the words "the Defendants". 7 Set aside Order 3 of Patten AJ of 10 December 2004. 143 MASON P: I have had the benefit of reading in draft the reasons of the Chief Justice. I adopt their summary of the facts and legislation. Decision of Patten AJ 144 Patten AJ held that the Tribunal was not properly constituted to hear and determine the particular unconscionable conduct claim raised by the second respondent. Contrary to Schedule 2, Part 3B, cl 4(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act), Mr Donald was not qualified to exercise the Tribunal's function under the Retail Leases Act 1994 in relation to unconscionable conduct claims, because he was not a Division member referred to in cl 1(3)(a) of that Part as it then stood. 145 Mr Donald had been duly appointed a non-presidential "judicial member" of the Tribunal. There was no impediment to his assignment to the Retail Leases Division by the President of the Tribunal. However, it was held to be not open to the President or the relevant Divisional Head to override cl 4 by constituting a Tribunal to hear and determine an unconscionable conduct claim with Mr Donald as the member. Because Mr Donald was not a member referred to in cl 1(3) (a), the generality of the power to constitute the particular Tribunal was found to be relevantly circumscribed. 146 Patten AJ also held that two members (who were apparently qualified according to cl 1(3) (b) and (c)) went beyond assisting "in an advisory capacity only" and actually purported to "adjudicate" on the matter before the Tribunal. This contravened cl 4(2) and (3) of Part 3B. 147 Each "contravention" found by Patten AJ involved non-compliance with a statutory boundary that was clearly expressed and based on readily discernible policies discussed in the reasons of the Chief Justice. Appeal to this Court 148 The Attorney General's appeal to this Court challenged the order of Patten AJ setting aside the decision of the Tribunal in favour of the second respondent that was published on 25 June 2004. The Attorney submitted that Patten AJ erred in each "contravention" found by his Honour. The Attorney also invoked the de facto officers doctrine in support of the broad submission that, if Mr Donald was not qualified to be assigned under cl 1(3)(a), the doctrine would apply to validate his acts. The learned trial judge had rejected this submission on the basis that the statutory policy evidenced by cl 4(1) was too clear to be defeated by the common law doctrine. 149 The Attorney focused upon the capacity of the doctrine to save the validity of the Tribunal decision as regards "the assignment of Mr Donald to hear unconscionable conduct claims". This concentrated the arguments upon the impact of the doctrine upon invalidity stemming from the Attorney General's assignment of Mr Donald to the retail leases division purportedly "pursuant to clause 1(3)(a) of Part 3B of Schedule 2". 150 Ministerial assignment was, however, neither necessary nor sufficient to arm Mr Donald with the authority that he in turn purported to exercise when he constituted the Tribunal to hear the particular unconscionable conduct claim. The statutory provision directly involved was s22(4) of the ADT Act which relevantly provides that: ...the Tribunal is to be constituted subject to the provisions for the constitution of the Tribunal specified in Schedule 2 in relation to the classes of matters specified in that Schedule. That power of constituting the Tribunal in a particular matter resides in the President or Divisional Head, not the Minister. Courts Legislation Amendment Act 2005 151 Several important issues concerning the scope and application of the de facto officers doctrine were addressed at the hearing of the appeal to this Court. These issues were, however, swept away by the validating provisions of the Courts Legislation Amendment Act 2005. That Act also removed the need to consider the challenged correctness of Patten AJ's decision that Mr Donald was not lawfully assigned to hear the instant case having regard to him not being "a retired judge of the Supreme Court of the Federal Court or [someone] who has equivalent experience or qualifications". 152 I agree with the Chief Justice as to the impact of this recent statute, with one qualification. 153 I am troubled with the invocation of "unfairness" or a "scale of unfairness or injustice" (cf Spigelman CJ at [62]) as part of the exercise of construing a retrospective enactment. There is a categorical distinction between procedural and substantive unfairness (see generally Independent Commission Against Corruption v Chaffey (1993) 30 NSWLR 21 at 27-29 per Gleeson CJ; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 37-8 per Brennan J). Courts have no mandate to construe legislation by reference to perceptions of morality that are not already firmly embedded in fundamental common law doctrines or the statute itself (Allianz Australian Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26, 215 ALR 385, esp per Callinan J). For what it is worth, I see nothing unfair in validating the instant decision, so far as Mr Donald's participation was concerned, given that no objection was raised about it until the appeal was brought to the Supreme Court. 154 In my view, the validating provision was clear in its expressed purpose and scope. There is no ground for carving out an exception for the instant decision merely because its validity had already been tested at first instance. The appeal to this Court was by way of rehearing. The participation issue 155 I turn from the constitution of the Tribunal to the consequence of the unlawful extent of the participation of the non-judicial members. I agree with the Chief Justice about the findings of fact made by Patten AJ and also with the Chief Justice's conclusion that this participation crossed the clearly drawn statutory lines between assistance and adjudication. I also agree with the Chief Justice's reasons for concluding that s52(1)(e) of the Interpretation Act 1987 has no application to the matter at hand. 156 Were it not for s81(3) of the ADT Act I would have no difficulty in concluding that the excessive participation of the non-judicial members produced the consequence that the ensuing decision must be set aside. The language of cl 4(2) and (3) is very emphatic and the reasons for precluding an adjudicative role for the non-judicial members are clearly apparent from the parliamentary history to which the Chief Justice refers. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 enjoins a court to inquire whether it was a purpose of the legislation that an act done in breach of the provision should be invalid; and requires regard to be had to the language of the relevant provision and the scope and object of the whole statute (see at 390-1). Approaching the matter this way (and disregarding s81(3)) I would be comfortably satisfied that the order setting aside the Tribunal decision may rest independently on this ground. Unsurprisingly, there is little authority dealing with the validity of administrative decisions made by more than the statutorily appointed number of decision makers. However, the judgment of Higgins J in Amalgamated Engineering Union v Alderdice Pty Ltd; In re Metropolitan Gas Co (1928) 41 CLR 402 at 430-2 does support this conclusion, albeit in a particular statutory context. See also G J Coles Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 513-4. 157 But on what proper principle may s81(3) be disregarded or even read down? The matter at issue is not whether the two members of the Tribunal contravened cl 4(2) and (3): they clearly did. What is at issue is the consequence as regards the validity of the Tribunal decision. 158 Section 81 provides: 81 Amendments and irregularities (1) The Tribunal may, in any proceedings before it, make any amendments to the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings (including the commencement or purported commencement of proceedings), and (b) on such terms as the Tribunal thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Tribunal is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings before the Tribunal, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings or any decision in the proceedings. (4) For the purposes of subsection (3), the Tribunal may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. 159 The primary judge's attention does not appear to have been drawn to this provision. 160 The Chief Justice has stated a number of reasons why s81(3) cannot be availed of in the present case. I think that matters are finely balanced, but I respectfully disagree with his Honour for the reasons that follow. 161 Section 122 states that: Effect of Act Nothing in this Act affects the power of the Supreme Court, in the exercise of its original jurisdiction, to review the decisions of the Tribunal. 162 Section 122 preserves inviolate the Supreme Court's jurisdiction to review the decisions of the Tribunal, but it is silent as to the applicable principles. The corpus of administrative law, including Part 5 of the Supreme Court Act 1970, applies according to its terms. If a statute saves from invalidity a decision of an inferior body that is vitiated by procedural or substantive error then that statute will be applied in the exercise of the Supreme Court's power of judicial review. 163 Section 81(3) rescues from nullity, inter alia any decision in proceedings in the Tribunal in which the Act was not complied with in relation to the conduct of the proceedings before the Tribunal. I read the expression "proceedings before the Tribunal" as synonymous with proceedings in the Tribunal. On this basis, there is in my view no reason for confining "failure(s) to comply" to failures by the parties. To do so would fail to give effect to the remedial function of s81 as a whole, without statutory mandate for the limitation. Courts and tribunals are as capable as parties of committing procedural defaults (cf Boghossian v Warner [2000] NSWCA 27). Sometimes responsibility is shared, eg when an informal document is accepted for filing. The passive voice of s81(3) speaks without relevant qualification. 164 Whether or not s81(3) is to be confined to procedural defaults, the character of the present defect is procedural. That is why I am untroubled by invocation of principles concerning the restrictive interpretation of provisions that are privative in nature or that purport to immunise contravention of clearly expressed substantive commands found elsewhere in the statute. It is because the participation default was procedural in nature, that s81(3) is clearly engaged. 165 I do not agree that s81(3) speaks only to the Tribunal and for the Tribunal's purposes. This is to read in words that are not there. The provision is part of an Act that constitutes the Tribunal and regulates its proceedings. This Court must construe the Act as a whole when its supervisory jurisdiction is engaged. The mere fact that s81(4) arms the Tribunal with power to set aside its own decision "for the purposes of subsection (3)" does not contradict this (cf s122). In Smith v Budandan Enterprises (2002) 55 NSWLR 367, this Court construed and applied a corresponding provision in the District Court Act 1973 in relation to a decision of the District Court. Nothing turned on the fact that we were there exercising appellate jurisdiction. 166 In the present case the Act was not complied with in relation to the conduct of proceedings before the Tribunal. The decision itself is "in the proceedings" as the subsection itself implies. Parliament has decreed that the failure to comply is to be treated as an irregularity (scil, a mere irregularity) that does not nullify the proceedings or any decision in the proceedings. This Court must recognise and obey that command. 167 No question is raised about the Tribunal adjudicating upon a matter beyond its statutory competence or committing legal errors of such a quality as to represent a constructive failure to address the matter at issue. The area of discourse is that of procedural ultra vires. The Tribunal is shown to have not arrived at its decision in the manner mandated by Parliament (see Harrington v Lowe (1996) 190 CLR 311 at 341-2; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 542[99]). 168 The dissatisfied party must still persuade the Court that Parliament intended that invalidity would be the product of breach of its proscription (see eg Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454.) Search for such "intent" may be difficult, even illusory (Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 458-9). But it is unavoidable in the present context. 169 Here Parliament has made its view plain, in my opinion. 170 Parliament is free to sanction non-compliance with its commands in a range of ways including criminal punishment, exposure to penalty or civil remedy such as damages. Why is Parliament not free to spell out its intent as regards the application of the common law principles of judicial review? Project Blue Sky provides guidance for discerning Parliament's "purpose" as regards the question whether an act done in breach of a provision should be invalid. It does not sanction disregard of the "purpose" by reference to some supra-legislative principle based upon upholding the rule of law. 171 There are analogies to the matter presently at hand. Legislation may decree that "substantial compliance" with a statutory provision will suffice for validity. A privative clause may qualify the consequences that would otherwise flow from a proved contravention of substantive provisions in an Act. In these situations, courts will grapple with the tension of reconciling Parliament's ambiguities of expression, recognising that in the final result "the legislature cannot speak with a forked tongue" (Waugh v Kippen (1986) 160 CLR 156 at 165 per Gibbs CJ, Mason, Wilson and Dawson JJ). The tension is particularly acute when, as here, rule of law considerations are in play. 172 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 addressed a particular privative clause (Migration Act 1958 (Cth), s474), holding it to be inapplicable as a matter of interpretation to the decision at hand. This was because that decision was not made "under" the Act, due to the presence of jurisdictional error. The facts were therefore quite removed from the present context. Nevertheless, there is extensive discussion about the role and scope of privative clauses that offers guidance to the matter at hand. 173 Gleeson CJ cautioned against construing the reasons of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 as if they were confined to a federal context (see at 586[17]-[22]). His Honour referred to several cases discussing the "process of statutory construction described as reconciliation" (at 488[19]). Immediately after reference to Project Blue Sky, the Chief Justice said (at 489[21]): Later again, in R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [(1951) 82 CLR 208 at 248], Dixon J referred to "imperative duties or inviolable limitations or restraints" which may be imposed by legislation, contravention of which would not be protected by a privative provision. To describe a duty as imperative, or a restraint as inviolable, is to express the result of a process of construction, rather than a reason for adopting a particular construction; but it explains the nature of the judgment to be made. Because what is involved is a process of statutory construction, and attempted reconciliation, the outcome will necessarily be influenced by the particular statutory context. 174 The joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ recognised that privative clauses are to be strictly construed (at 505[72]. See also Gleeson CJ at 484[11]). 175 The joint judgment warned against reading Hickman as a legislative code for construing each and every form of privative clause (see at 502[64]. See also Gleeson CJ at 491[26]). Significantly for present purposes, their Honours (at 504[69]) said that, even in the federal context: …some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of a decision. However, that is a matter that can only be determined by reference to the requirement in issue in a particular case. Earlier authorities were cited. 176 What happened in the present case should not have happened and if it knowingly happened again now that the problem has been exposed then the issue of invalidity would call for determination in a completely different context. But I see nothing incongruous in Parliament choosing to rescue from invalidity a breach of what is nothing more than its command expressed in a later provision of the same enactment. One is not dealing with contravention of some fundamental principle of the common law such as procedural fairness that would require very clear language to displace it (cf Italiano v Carbone [2005] NSWCA 177). 177 From time to time one encounters legislation validating conduct that a court has or may be about to hold went beyond that which was previously authorised. In principle, there is no difference with a prospective statement of intent as to consequences. This is not tantamount to the Executive purporting to authorise unlawful conduct in the future (contrast Fitzgerald v Muldoon [1976] 2 NZLR 615, A v Hayden (1984) 156 CLR 532). The modern principles of judicial review are a precious inheritance of the common law. Some have or may yet achieve constitutional status. But short of that, "a sovereign legislature is not bound to respect legal orthodoxy" (Sharpe v Goodhew (1990) 33 IR 238 at 243 per Pincus J). 178 This is a clear case in my view. I simply do not know what the hypothetical legislature might have thought if confronted with an innocent supererogation of adjudicators who were required to assist and advise but not adjudicate. Nothing indicates that Mr Donald was swayed from his own adjudication by his fellow members going beyond an advisory role and joining with him in the unanimous decision of the Tribunal. But these speculations are irrelevant, because it is Parliament's expressed intention that is paramount and I detect no ambiguity in it as regards the application of s81(3) to the matter at hand. Disposition 179 For these reasons the appeal should be allowed. The orders made by Patten AJ should be set aside and the appeal from the Tribunal to the Supreme Court should be dismissed. 180 The first respondent should pay the costs of the second respondent in this Court and the Court below. 181 World Best's cross-appeal relating to the costs orders of Patten AJ and Mr Sarker's application for leave to appeal relating to the $10,000 part payment fall away if the appeal is allowed. Each should be dismissed. 182 I have expressed no view as to the necessity for the validating Act to have been passed. However, its belated passage means that considerable costs have been wasted by the parties at first instance and in this Court in addressing the de facto officers doctrine issues. I would therefore accede to the first respondent's application for its costs to be paid by the appellant on an indemnity basis, both in the Supreme Court and in this Court. This should include the costs payable by the first respondent to the second respondent. 183 TOBIAS JA: I have had the benefit of reading in draft the judgments of the Chief Justice and the President. There is general agreement between them, in which I join, on all issues except that relating to the impact of s 81(3) of the ADT Act upon the failure of the non-qualified members (as I shall refer to them without intending any discourtesy) of the Tribunal to comply with cl 4(3) of Pt 3B of Sch 2 of the Act. Those members were empowered by cl 4(2) of Pt 3B to assist or advise the Tribunal as constituted by a member who was qualified in terms of cl 1(3)(a) of the same Part but enjoined by cl 4(3) from adjudicating on any matter before the Tribunal as so constituted. 184 In essence, the view of the Chief Justice (at [85] and [97]) is that s 81(3) is confined to practice and procedural non-compliances in relation to the commencement or purported commencement of proceedings and the conduct of proceedings before the Tribunal. His Honour is of the view that the non-compliance in the present case was, firstly, not procedural in character and, secondly, did not relate to the conduct of the proceedings before or, as the President observed (at [163]), in the Tribunal. 185 The Chief Justice further considers (at [92]) that s 81(3) is concerned only with the conduct of the parties before the Tribunal and not with that of the Tribunal itself or its constituent member(s). Even if this were not so, his Honour concludes (at [92]) that the final act of "adjudication" by the Tribunal did not form part of the "conduct of proceedings" in or before the Tribunal. Accordingly, s 81(3) did not apply to save the Tribunal's decision from invalidity due to the participation of the non-qualified members in its substantive decision. 186 The President on the other hand, considers firstly (at [163]) that there is no basis for confining s 81(3) to a non-compliance by the parties in the conduct of the proceedings, and secondly (at [164]) that whether or not s 81(3) is to be confined to procedural defaults, the character of the present defect was procedural and, therefore, the provision was engaged. 187 As to the first of the areas of disagreement between the Chief Justice and the President, the latter expressed the view (at [166]) that the Tribunal's decision was itself "in the proceedings" as s 81(3) implies. I have assumed that the implication to which the President refers is in the last part of subsection (3) which provides that the relevant failure to comply does not nullify "any decision in the proceedings". 188 I tend to agree with the President that s 81(3) is not confined, as the Chief Justice has suggested, to steps taken by the parties in relation to the conduct of proceedings before the Tribunal. There is no logical or textual reason so to confine the perpetrator of the relevant non-compliance. Certainly, a non-compliance which relates to the commencement or purported commencement of proceedings is likely to lie exclusively at the door of the moving party. But that is because of the specific nature of the subject matter of the non-compliance. But the Tribunal is as responsible for the conduct of proceedings as are the parties. Thus, there are obligations imposed by the ADT Act upon the Tribunal such as that referred to in s 75(2)(b) and (2A). 189 Like the President, I do not find it necessary to determine finally whether s 81(3) is confined to non-compliances of a procedural character although I tend in favour of the conclusion of the Chief Justice that it is for the reasons he has espoused. Thus it would be odd if s 81(3) could be engaged to save a decision where the Tribunal has failed to comply with s 70 of the ADT Act which, in effect, requires it to accord the parties procedural fairness. Such a decision could well be void for want of jurisdiction: cf [100] of the judgment of the Chief Justice. Critically, the question which I am called upon to decide due to the disagreement between the Chief Justice and the President is whether the adjudication by the non-qualified members on the matter in issue in the proceedings in contravention of cl 4(3) of Pt 3B was, as the President concludes, a decision "in the proceedings" and, therefore, in the conduct of proceedings before the Tribunal or, as the Chief Justice concludes, an act outside the conduct of those proceedings. 190 In my opinion, I consider the conclusion of the Chief Justice on this issue to be the correct one. There are several reasons for this. Firstly, contrary to the view of the President, it seems to me, with respect, that the reference in the last part of s 81(3), that a relevant failure to comply does not nullify "any decision in the proceedings", in fact draws a distinction between the conduct of proceedings before or in the Tribunal on the one hand and the decision of the Tribunal in the proceedings on the other. 191 In other words, the effect of s 81(3) is that the decision of the Tribunal in the proceedings is not nullified where the non-compliance is in relation to the conduct of the proceedings in the Tribunal. The distinction to which I have referred assumes that there is some act or omission contrary to the Act, the rules or the regulations which occurs in the conduct of the proceedings and which, but for s 81(3), would nullify the ultimate decision of the Tribunal. 192 Secondly, the act of adjudication logically occurs after the conduct of the proceedings has concluded. The President in [166] of his judgment speaks correctly of the decision itself being "in the proceedings". But that is not the vice to which the subsection is directed. That vice must occur not just "in the proceedings" but in "the … conduct of proceedings". If the subsection related to non-compliances "in the proceedings" there would be force in the President's conclusion but, in my respectful opinion, it is the requirement that the non-compliance be in relation to the "conduct" of the proceedings which creates the relevant, and critical, distinction and which narrows the reach of the subsection: cf [91] of the Chief Justice's judgment. 193 Thirdly, a consideration of cl 4(2) and (4)(a) of Pt 3B directs one to the role of the non-qualified members assisting the Tribunal in the proceedings in an advisory capacity only. That role obviously includes assisting the Tribunal not only in the conduct of the proceedings such as during the hearing but also in the decision-making process itself after the hearing has concluded. The latter assistance would be "in the proceedings" but would not, in my opinion, be in the "conduct" of the proceedings or in the course of the conduct of the proceedings. 194 Fourthly, the Chief Justice, when considering the issue of the validity of the Tribunal's decision in the context of the High Court's decision in Project Blue Sky, refers in [112] to the relevant parts of the Minister's Second Reading Speech. Relevantly, emphasis was placed by the Minister on a special decision-making process for adjudicating unconscionable conduct claims. Although s 81(3) is, of course, general in its application, no other provision of the ADT Act, rules or regulations has been identified which is equivalent to cl 4(3) of Pt 3B. 195 In other words, no provision has been identified which could involve a non-compliance by the Tribunal with a matter going only to the actual adjudication upon, or determination of, a matter before the Tribunal as distinct from a non-compliance by the Tribunal going to, or occurring in the course of, the conduct of the proceedings before it: see, eg, s 75(2)(b) and (2A). Subject to the procedure/substance issue, a non-compliance by the Tribunal itself with a provision of the ADT Act, rules or regulations which was directed to the conduct of the proceedings before the Tribunal would, in my view, engage s 81(3) so as not to nullify the Tribunal's ultimate decision. 196 But the present case is, in my opinion, different for the reasons I have attempted to explain. The act of adjudication engaged in by the non-qualified members did not occur "in relation to the … conduct of the proceedings before the Tribunal" but after the conduct of the proceedings had concluded. The non-compliance did not, therefore, engage s 81(3) to save the Tribunal's decision from invalidity. 197 Fifthly, if as I think he is, the Chief Justice is correct in his conclusion that s 81(3) is directed only at non-compliances which are procedural in character, I find myself in respectful disagreement with the President's view (at [164]) that the participation of the non-qualified members in the adjudication of the issues before the Tribunal was merely procedural in nature. As the Chief Justice concludes in [125] of his judgment after analysing the Parliament's reasons for, or objective in, enacting cl 4(2) and (3) of Pt 3B, the composition of the Tribunal in unconscionable conduct claims was a critical element of the legislative scheme and, in my opinion, for that reason went well beyond a mere matter of procedure. 198 Furthermore, again as the Chief Justice observes in [97] of his judgment, the decision in the present case was made by two of its three members who, firstly, did not even constitute the Tribunal (cl 4(1)) and, secondly, had no authority or capacity to exercise the statutory power to make the decision. Accordingly, the non-compliance by the non-qualified members with cl 4(3) of Pt 3B was more than a procedural irregularity: it went to the very heart of the Tribunal's jurisdiction to render a decision in the particular matter. As the Chief Justice concludes, it was a jurisdictional error of a fundamental kind. 199 Finally, I note and agree with the observations of the President in [169]-[177] insofar as they refer to general principles. Where we part company is that in my opinion the Parliament has made its intention clear but not so as to engage s 81(3) in this particular case. 200 I therefore agree with the orders proposed by the Chief Justice. ********** 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.