Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gaynor v Burns [2015] NSWCATAP 184 Hearing dates: On written request from the appellant Date of orders: 27 April 2015 Decision date: 01 September 2015 Jurisdiction: Appeal Panel Before: Boland JADCJ (Deputy President) Emeritus Professor M Chesterman (Principal Member) L Robberds, QC, Senior Member Decision: The application under s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) is dismissed. Catchwords: APPEAL allowed by consent. Request for reasons. Whether appropriate to give reasons where orders made by consent. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Category: Procedural and other rulings Parties: Bernard Gaynor (Appellant) Garry Burns (Respondent) Representation: Solicitors Robert Balzola and Associates (Appellant) K & L Gates (Respondent): File Number(s): AP 15/05125 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2015] NSWCATAD 24 Date of Decision: 20 January 2015 Before: Hennessy LCM, Deputy President File Number(s): 1410372 reasons for decision Introduction 1. On 27 April 2015 the Appeal Panel made orders by consent granting leave to appeal, and allowing an appeal against an interlocutory order made by Hennessy LCM and Deputy President of the Tribunal and gave directions for the remitting of the matter for rehearing. 2. At the same time, the Tribunal made directions for the filing of written submissions in respect of costs. Submissions were subsequently received from the parties on costs and the appeal panel published its reasons for decision in respect of costs on 23 July 2015. 3. On 27 July 2015 the appellant's solicitors, Robert Balzola and Associates, wrote to the Tribunal. In that letter the appellant's solicitors assert "[u]ntil the conclusion of the matter on 23 July 2015 this matter was not complete". It is further asserted that the decision published by the appeal panel only deals with Orders 6 and 7 (being the directions made on 27 April 2015 in respect of filing written submissions in respect of costs). The solicitors state:"[t]he Decision Record of the Decision of 23 July 2015 for the substantive Orders 1 to 5 inclusive have no published reasons. 4. The solicitors go on to request "written reasons for Orders 1 to 5 inclusive be published being within 28 days from date of notification of decision from the Decision Date of 23 July 2015". Orders and directions made on 27 April 2015. 1. On 27 April 2015 a Minute of Proposed Orders and Directions signed by the parties' legal representatives was handed to the Tribunal. The Minute sought the Tribunal should make three orders by consent. The Minute also proposed certain directions be made to enable the interlocutory application to be re-heard. 2. For ease of understanding, we now set out the orders and directions made on 27 April 2015: BY CONSENT: 1.Leave is granted to appeal the decision of N Hennessy, LCM, Deputy President of 20 January 2015 (reasons for decision published 27 February 2015) 2.The appeal is allowed and the decision of N Hennessy made 20 January 2015 is set aside. 3.The other matters between the appellant and the respondent before the Tribunal (being matters no. 1410625, 1570160 and A/P 15827) are stayed pending the hearing and determination of the interlocutory application filed on 8 December 2014 and any internal or external appeal from that application. IT IS ORDERED AND DIRECTED: 4. The interlocutory applications filed on 8 December 2014 are remitted for reconsideration before the Tribunal. 5.The interlocutory applications filed on 8 December 2014 are to be listed for directions in the Administrative and Equal Opportunity Division of the Tribunal at a date and time to be notified to the parties by the Registrar. 6.The respondent shall file with the Registrar, Appeal Unit, NCAT, and serve on the appellant written submissions in respect of costs within twenty-one (21) days of obtaining the CD (sound recording) of the transcript of 20 January 2015. 7.The appellant shall file with the Registrar, Appeal Unit, NCAT and serve on the respondent written submissions in reply in respect of costs within 14 days of receipt of the submissions referred to in order 6 of these orders. 1. Subsequently, the parties agreed that the proceedings number referred to in Order 3, being matter 1570160, contained a typographical error and should read 1510160. It is not in dispute this typographical error could be amended under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Thus, it is clear that the orders made on 27 April 2015 were orders that reflected a settlement of the substantive issue before the appeal panel, and the remaining paragraphs of the Notice of Decision were directions to enable the interlocutory application to be re-heard and for the parties, if they wished to do so, to pursue any costs application they may wish to make. Relevant provisions of the Civil and Administrative Tribunal Act 1. There are several provisions of the Civil and Administrative Tribunal Act potentially relevant to the present request. 2. Section 62 requires parties are given notice of any decision that the Tribunal makes. Section 62(2) enables a party, within 28 days, to request a written statement of the Tribunal's reasons for its decision. It is useful that we set out s 62 in full. It provides as follows: 62 Tribunal to give notice of decision and provide written reasons on request (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party. 1. Also relevant are s 5 and s 59. Those sections respectively provide as follows: 5 Meaning of "decision" (1) In this Act, "decision" includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing. (2) For the purposes of this Act: (a) a decision is made under enabling legislation or this Act if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation or this Act, and (b) a decision that purports to be made under enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act even if the decision was beyond the power of the decision-maker to make, and (c) a refusal of a decision-maker to make a decision under enabling legislation or this Act because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act to refuse to make the decision requested, and (d) a failure by a decision-maker to make a decision within the period specified by enabling legislation or this Act for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision. 59 Powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if: (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. (2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement. Discussion 1. We are satisfied that, by letter dated 30 April 2015, the delegate of the Principal Registrar wrote to the appellant's solicitors and set out the orders and directions made by the Tribunal in terms we have reproduced above. Thus s 62 (1) was satisfied insofar as it applied to Order 4 of the orders. 2. We do not accept that, if it was appropriate to ask for reasons (which we do not concede), the time did not commence to run under s 62 (2) until the publication for our reasons awarding costs. It is clear from the Tribunal's records that the orders and directions were made on 27 April 2015 and time for requesting reasons, if appropriate and necessary to do so, ran from that date. We note that the appellant's solicitor was present in the hearing room when the Tribunal's orders and directions were orally pronounced. 3. Even if we are wrong about the appellant's request for reasons being outside the time period, we do not think in this case it is either necessary or appropriate, or in accordance with practice, for the Tribunal to give reasons for making orders 1 to 3 by consent. We accept that in some limited circumstances a Tribunal may wish to give reasons why it is prepared to make, or to decline to make, orders by consent. But those matters are the exception to the general practice in respect of consent orders. 4. We are satisfied that we were asked to make orders that effectively ":settled" the appeal, and were within our power to make under s 59. We are fortified in our view having regard to the discussion found at 362.20 of Ritchie's Uniform Civil Procedure. There the learned authors note that "as a general proposition there is no requirement for a court to give reasons for the determination of merely procedural applications". Among the named applications is an application for leave to appeal. Further, although discussing the consent orders in a superior court, the learned authors at [36.1A.3] note "ordinarily a court ought to make consent orders requested by competent and interested parties to the proceedings if the orders are within the court's jurisdiction and otherwise appropriate". We see no reason to depart from this approach in the Tribunal. 5. We accept Order 4 of the orders made on 27 April 2015 required the re-hearing of the interlocutory application. We made that order because a large amount of material was filed by the appellant shortly prior to the hearing making impractical for the matter to be heard in the allocated time and to avoid procedural unfairness to the respondent to the appeal. 6. Order 5 is a purely administrative direction which needs no explanation. 7. In summary we are satisfied that the Tribunal is not required to give reasons for the orders made on 27 April 2015 and declines to do so. ORDER The application under s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2015