New South Wales Court of Appeal CITATION: OBIETA v CONSUMER, TRADER AND TENANCY TRIBUNAL NSW [2009] NSWCA 220 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 23 July 2009 JUDGMENT DATE: 23 July 2009 JUDGMENT OF: Basten JA at 1 EX TEMPORE JUDGMENT DATE: 23 July 2009 (1) Direct that the application for leave to appeal be listed separately from the hearing of the appeal (if any); (2) refuse the application for a stay of the proceedings in the District Court; DECISION: (3) the application for an order that reasons for the decision of the Judicial Registrar be provided is refused but the applicant has leave to provide a copy of these reasons to the District Court; (4) direct that the application for leave to appeal be listed as soon as convenient and that the parties be notified of the date of that hearing; (5) reserve the costs of today. CATCHWORDS: APPEAL - statutory appeal - limited to decision on question of law - availability of judicial review - bifurcated jurisdiction - PROCEDURE - application for leave to appeal - order removing Tribunal as party to statutory appeal - PROCEDURE - application for stay pending leave application - whether application had reasonable prospects of success - PROCEDURE - jurisdiction of District Court - power to grant relief by way of judicial review Civil Procedure Act 2005 (NSW), ss 3, 140, 144 LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 65, 67 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), rr 6.29, 50.5 B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2009] NSWCA 55 CASES CITED: Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 Dobell v Blue Haven Pools and Spas Pty Ltd [2009] NSWCA 77 Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277 PARTIES: Lina Socorro Obieta (Applicant) Consumer, Trader and Tenancy Tribunal NSW (Respondent) FILE NUMBER(S): CA 40192/09 COUNSEL: In person (Applicant) A C Johnson (Respondent) SOLICITORS: Self-represented (Applicant) I V Knight, Crown Solicitor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 108/09 LOWER COURT JUDICIAL OFFICER: Judicial Registrar McDonald LOWER COURT DATE OF DECISION: 29 May 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40192/09 BASTEN JA 23 July 2009 Lina Socorro OBIETA v CONSUMER, TRADER AND TENANCY TRIBUNAL NSW Judgment 1 BASTEN JA: On 10 October 2008 the Women's Housing Company Ltd ("WHC") sought an order from the Consumer, Trader and Tenancy Tribunal ("the Tribunal") in Sydney allowing it access to conduct an inspection of premises occupied by the applicant at Leyland Parade, Belmore. The applicant resisted such an order. The Tribunal made the order on 12 January 2009. 2 On 15 January 2009 the applicant commenced proceedings in the District Court seeking to appeal against the decision of the Tribunal. WHC and the Tribunal were each joined as a defendant to those proceedings. 3 On 14 May 2009 the Tribunal sought an order that it be removed as a party to the proceedings. It sought to rely upon the decision of this Court in Dobell v Blue Haven Pools and Spas Pty Ltd [2009] NSWCA 77 at [19] for the proposition that the Tribunal was not a proper party to the statutory appeal. The applicant argued that it was a proper party and was required, pursuant to various rules, to be joined. 4 It appears that her Honour gave some brief reasons for making the order and, according to submissions made by the Tribunal in this Court, noted that the removal of the Tribunal as a party would not affect the relief sought by the applicant. Those reasons having been given orally, the applicant does not have a copy of any judgment. The orders made are within the Court file but the reasons for the orders are not. She complains that neither the Judicial Registrar nor the transcript service has been either willing or able to provide her with an original copy of the reasons for decision. Neither party has filed an affidavit putting forward any note of the reasons. 5 The applicant commenced proceedings in this Court by way of summons seeking leave to appeal against the decision of the Judicial Registrar removing the Tribunal as a party to the proceedings in the District Court. That course appeared to be both unnecessary and misconceived. Although the Court was told that WHC had been told of the proceedings in this Court, it is not a party to the application. 6 Underlying the applicant's concern is a procedural difficulty arising from a recent amendment to the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act"). Section 67 of the CTTT Act provides a right of statutory appeal from a decision of the Tribunal with respect to a matter of law. As this Court has noted in a number of recent judgments, both in relation to the CTTT Act and in relation to other similar provisions, the subject matter of such an appeal is a decision of the Tribunal on a matter of law; it is not sufficient that there may have been some error of law, such as procedural unfairness, in the manner in which the Tribunal determined the case before it: see Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2009] NSWCA 55. A failure to accord procedural fairness may not, depending on the circumstances, constitute an erroneous "decision" on the part of the Tribunal, whether the decision is implicit in the course followed by the Tribunal or not: Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [75]. However, in some circumstances such a procedural error may involve a decision on the part of the Tribunal as, for example, where the Tribunal has been invited to grant an adjournment and has declined to do so, in circumstances said to amount to procedural unfairness. 7 Whether the applicant's claim in the present case falls within one or other of these categories is not easy to determine from the material contained in the Court's file. As Lambert illustrates, the precise limits of a statutory right of appeal may not be easy to determine prior to the consideration of the argument sought to be presented by the applicant. This gives rise to a difficulty in the present case. 8 The CTTT Act preserves a right for an applicant to seek relief in the nature of the prerogative writs where the Tribunal is said to have made "an erroneous ruling as to its jurisdiction" or has denied a party procedural fairness: CTTT Act, s 65(2) and (3). Such relief is available pursuant to s 69 of the Supreme Court Act 1970 (NSW). The applicant sought to rely upon the powers referred to in s 65 of the CTTT Act and argued that they might be exercisable in the District Court. However, s 65 does not confer powers; it limits the availability of powers which are otherwise available. The applicant was not able to provide authority (by reference to the District Court Act 1973 (NSW), the Civil Procedure Act 2005 (NSW) or otherwise) for the proposition that the District Court had judicial review power and, in the absence of an identified source, it should not be assumed that that Court does have any such power. She referred to the power of the Court to grant ancillary relief, for example by way of declaration, but it is clear that that must be ancillary to some jurisdiction vested in the Court. 9 Until recently, statutory appeals from the Tribunal were taken to the Supreme Court and were heard in the Common Law Division. Were it necessary to invoke the jurisdiction of this Court under s 69 of the Supreme Court Act, that course could be taken with a minimum of procedural inconvenience. However, since the amendment of s 67 of the CTTT Act by the Courts and Crimes Legislation Amendment Act 2008 (NSW) statutory appeals now go to the District Court. There is no reason to doubt the appropriateness of such a change in jurisdiction, but a difficulty then arises it if is necessary to invoke a judicial review jurisdiction, which is not vested in the District Court. The result is now an added degree of procedural complexity in relation to what should be minor matters requiring cheap and expeditious resolution. 10 A statutory resolution of this dilemma may be to vest the review jurisdiction retained by s 65 of the CTTT Act in the District Court or, and perhaps preferably, to give the District Court jurisdiction to consider a statutory appeal for any error of law on the part of the Tribunal. That is a matter which can not be pursued here. The appropriate resolution of the difficulty or dilemma is not a matter for the Court. If this Court could order the transfer of the proceedings in the District Court to the Supreme Court, pursuant to s 140 of the Civil Procedure Act, it should not do so in the absence of the principal defendant, WHC. (The powers of the District Court to order a transfer under s 144 of the Civil Procedure Act do not apply.) 11 The applicant maintains, following discussion of these issues, her entitlement and right to pursue her application for leave to appeal from the decision of the Judicial Registrar in the District Court. Such an application must be dealt with by two or more judges of this Court. She also seeks a concurrent hearing of the leave application and the proposed appeal. In addition, she seeks a stay of the District Court proceedings pending disposal of her application for leave to appeal. She seeks expedition of the proceedings in this Court and she seeks an order that reasons for decision, given by the Judicial Registrar, be prepared and provided to her. 12 In relation to the question of concurrent hearings, in my view, the basis upon which the applicant seeks leave to appeal does not give rise to reasonable prospects that an appeal would ultimately be successful. The Tribunal is, at least on the face of it, not an appropriate party to the statutory appeal in the District Court. If some other form of relief is sought, such as judicial review, to which the Tribunal is an appropriate party, that relief would appear not to be available in the District Court. In those circumstances, it would not be appropriate to grant concurrent hearings. The matter should be dealt with in the first instance as an application for leave to appeal only, in which case each party will be limited to a twenty minute time constraint in presenting her or its case. I therefore direct that the application for leave to appeal be listed and heard separately from any proposed appeal. 13 Secondly, I do understand why it is desirable that this matter be dealt with expeditiously. If there were to be concurrent hearings, the listing would have been subject to significant delay. As it is only a leave application, I will direct that it be listed as soon as possible. 14 Thirdly, a stay is sought of the District Court proceedings. Because, for the reasons I have given, I am not persuaded that the present application has reasonable prospects of success or that the applicant will suffer any prejudice if the matter proceeds in the District Court, it would be inappropriate to direct that there be a stay of the District Court proceedings. That request is refused. 15 In relation to the reasons for decision of the Judicial Registrar, it is not clear to me why the transcript service, which appears to have taken a full transcript of the hearing in the District Court on the day on which the orders were made, has not been able to provide a copy of the oral reasons given by the Judicial Registrar. I understand why they are not included in the transcript of argument. It is normal for them to be prepared separately and made available to the Judicial Registrar for correction of errors before they are provided to the parties. It may be that that has caused some delay. 16 Detailed reasons would not be expected in relation to an interlocutory motion of this kind. The basis upon which the Judicial Registrar acted is clear, namely making an order under r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"). It may be that there was some discussion in the reasons as to the operation of UCPR, r 50.5(2), and the question as to whether the reference to a "court" in that rule included the Tribunal. None of these matters is of any difficulty. The term "court" is defined in the Civil Procedure Act, s 3, to include a tribunal and addressing that issue would not have given rise to any lengthy reasoning on the part of the Registrar. 17 If the reasons have not been transcribed that should be done forthwith. It would be appropriate, if the Judicial Registrar has a draft of the reasons, that they should be provided promptly to the applicant so that the leave application can be dealt with. This Court would no doubt be assisted by having a copy of the Judicial Registrar's reasons. However, I do not intend to give any direction in that regard. If the applicant wishes, a copy of these reasons can be provided by her to the Judicial Registrar of the District Court. 18 The costs of today will be reserved and will form part of the costs of the application for leave to appeal. There is no other order which this Court can or should make at this stage. 19 The orders of the Court are as follows: (1) direct that the application for leave to appeal be listed separately from the hearing of the appeal (if any); (2) refuse the application for a stay of the proceedings in the District Court; (3) the application for an order that reasons for the decision of the Judicial Registrar be provided is refused but the applicant has leave to provide a copy of these reasons to the District Court; (4) direct that the application for leave to appeal be listed as soon as convenient and that the parties be notified of the date of that hearing; (5) reserve the costs of today. ********** 05/08/2009 - Typographical error "or" to "of" - Paragraph(s) Par 6 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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