Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gaynor v Burns [2016] NSWCA 44 Hearing dates: 24 February 2016 Date of orders: 16 March 2016 Decision date: 16 March 2016 Before: McColl JA, Emmett AJA Decision: (1) Grant leave to appeal. (2) Applicant to file the draft notice of appeal appearing in the White Book, but excising paragraphs 8-10, within 7 days of the date of this judgment. (3) Dispense with the requirement to prepare the appeal books referred to in UCPR 51.27 - 51.30. (4) Refer the appeal to the Registrar of the Court of Appeal to make directions concerning the filing of written submissions addressing the construction point and to determine what, if any, additional materials need to be included in the White Book. (5) Costs of the leave application to be costs in the appeal. Catchwords: ADMINISTRATIVE LAW – Statutory appeals from administrative bodies – Civil and Administrative Tribunal – Appeal Panel – Appeals from – Where Appeal Panel included Acting District Court judge – Appeal to Court of Appeal – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Supreme Court Act 1970 (NSW) s 48 – District Court Act 1973 (NSW), s 18 PROCEDURE – application for leave to appeal – costs – Civil and Administrative Tribunal Act 2013 (NSW), s 60 Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil Procedure Act 2005 (NSW) District Court Act 1973 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Legal Profession Uniform Conduct (Barristers) Rules 2015 Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481 Daykin v SAS Trustee Corporation [2001] NSWSC 58; (2001) 51 NSWLR 328 House v R [1936] HCA 40; (1936) 55 CLR 499 Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298; (2001) 52 NSWLR 350 Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 Category: Principal judgment Parties: Bernard Gaynor (Applicant) Garry Burns (Respondent) Representation: Counsel: P King (Applicant) K Nomchong SC and D Chitty (Respondent) Solicitors: Robert Balzola and Associates (Applicant) K&L Gates (Respondent) File Number(s): 2015/251109 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: [2015] NSWCATAP Date of Decision: 23 July 2015 Before: Boland J, ADCJ, Deputy President,Emeritus Professor M Chesterman, Principal Member and L Robberds QC, Senior Member File Number(s): AP15/05125 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: By Summons seeking leave to appeal filed on 16 September 2015 (Summons), the applicant, Bernard Gaynor, sought leave to appeal pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) from a decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales (Boland J, ADCJ, Deputy President, Emeritus Professor M Chesterman, Principal Member and L Robberds QC, Senior Member). In that decision, the Appeal Panel ordered the applicant to pay the respondent, Garry Burns', costs of and incidental to an appeal before it and that those costs be payable within 14 days of agreement or assessment. [1] 2. The applicant commenced proceedings seeking to challenge the Appeal Panel's decision by Summons filed in Common Law Division of the Supreme Court on 11 August 2015. It appears that on 24 August 2015 a Common Law Registrar directed that the matter be transferred to the Registrar's list in the Court of Appeal. On 26 August 2015, the matter was relisted before the Court of Appeal Registrar who transferred the proceedings to the Court of Appeal List. The Registrar presumably made that order on the premise that an application to challenge a decision of the Appeal Panel, sought to impugn a decision of a "specified tribunal" within the meaning of s 48 of the Supreme Court Act 1970 (NSW) (SCA), and accordingly ought to have been commenced in this Court. 3. Thereafter the applicant filed a Summons in the Court of Appeal, paragraphs 2 and 3 of which substantially recounted the matters to which we have referred above. Under the heading "Orders Sought", the Summons sought "leave to appeal from the part of the decision below in relation to Orders 1 and 2 made 23 July 2015 as to costs." 4. On 6 October 2015 the applicant filed an Amended Summons. The Amended Summons omitted paragraphs 2 and 3 of the Summons. Paragraph 1 sought substantially the same relief as had paragraph 1 of the Summons, namely an order pursuant to s 83(1), CAT Act seeking leave to appeal from the Appeal Panel's decision. Paragraph 2 sought an order pursuant to s 83(3), CAT Act setting aside the Appeal Panel's orders. 5. Section 83(1) of the CAT Act enables a party, relevantly to an internal appeal, with the leave of the Supreme Court, to appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. [2] The appeal grounds set out in the draft notice of appeal to be relied upon in the event leave to appeal is granted, seek to identify in a variety of ways questions of law concerning the proper construction of s 60 (Costs) of the CAT Act. 6. It appears that at some stage a question arose whether the applicant was pursuing judicial review pursuant to s 69 of the SCA or only leave to appeal pursuant to s 83 of the CAT Act. On 16 November 2015, the applicant was directed to file and serve an amended summons, if necessary, seeking the former relief. 7. No further amended summons was filed. Rather, on 23 November 2015, the applicant's solicitor wrote to the Registrar of the Court of Appeal and the respondent's solicitor referring to the orders made on 16 November 2015. The letter advised that the applicant did not press any claim in the supervisory jurisdiction of the Court and that "to put this matter beyond doubt, the application is an application for leave to appeal solely under s 83(1) of the Civil and Administrative Tribunal Act on a question of law." The applicant's written submissions had sought to complain about the referral of the matter to the Court of Appeal. Relying on the 23 November 2015 letter, the respondent confined his written submissions to matters going to leave to appeal. 8. When the matter was called on for hearing Mr King, who appeared for the applicant, identified the two points he sought to raise as being first, a matter of due process and second, one concerning House v R. [3] 9. Mr King's submission concerning the first proposition was that the Court of Appeal did not have jurisdiction to hear the leave application. He submitted that the Registrar erred in referring the Summons to the Court of Appeal as this court was not a "specified tribunal" within the meaning of s 48(1)(a) of the SCA. 10. As the Court pointed out to Mr King, no point arose on the Amended Summons concerning the jurisdiction of the Court of Appeal to entertain the leave application. Further, any attempt to raise such a point had apparently been abandoned when the Amended Summons was filed omitting paragraphs 2 and 3 of the Summons. As will be apparent, the only order sought in the draft notice of appeal related to the orders made by the Appeal Panel. Mr King ultimately appeared to accept the force of these observations but, nevertheless, sought to persist with his jurisdictional submission by way of a "speaking application" as a preliminary matter for consideration. 11. In his written submissions dated 18 October 2015, Mr King submitted that the fact that one of the members of the Appeal Panel which made the costs orders the applicant sought to challenge, was, at the material time, an Acting District Court Judge did not of itself make the Tribunal a "specified tribunal" within the meaning of s 48, SCA. 12. Mr King submitted that s 48, SCA prescribed a list of "specified tribunals" and not "specified judicial or quasi-judicial officers". He contended that the specificity found in s 48(1)(a)(iv): "the District Court or a Judge of the District Court" is subject to the rule of ejusdem generis and meant to be read contextually to the performance of a District Court judge in his or her ex officio powers when sitting as a judge in that Court. He argued that, at all other times, a Judge of the District Court does not perennially remain a "specified tribunal" simply by virtue of holding that ex officio position. 13. Next, Mr King contended Acting District Court Judge Boland J was not acting as a District Court Judge when her Honour sat on the Appeal Panel which made the costs order, but was a "Presiding Member" of the Tribunal. Hence s 48(1)(a)(iv) was not invoked to compel referral to the Court of Appeal at first instance. 14. Mr King accepted that the Appeal Panel was a "tribunal or other body" within s 48(1)(a)(vii), but contended an Acting Judge of the District Court was not a "judge" as defined in s 48(1)(b), SCA. 15. Next, Mr King submitted that the referral of the matter to the Court of Appeal in the first instance created a precedent whereby all appeals against any Tribunal decision in which a Presiding Member happened also to be a Judge of the District Court would immediately thrust the appeal into a more costly and complex appeals process, thus undermining the just, quick and cheap purpose of the CAT Act. [4] He argued that s 48, SCA did not reveal a legislative intent to restrict an appeal from a Tribunal decision in this way. Such an interpretation of s 48 would not only radically increase costs to the appellant as well as deny him a substantive layer of appeal rights in the hands of a person aggrieved by a decision of the Tribunal. 16. Finally, in his written submissions, Mr King contended that a finding that the Appeal Panel as here constituted was a "specified tribunal" would lead to the "practice of the Tribunal deliberately empanelling sitting District Court judges with the intention of placing a significant barrier of appellate rights to require the aggrieved party to file application to the full bench of the Court of Appeal in each occasion where a District Court Judge sits." 17. Accordingly, Mr King submitted the Court should make an order remitting the matter to the Common Law Division. 18. Ms Nomchong SC, who appeared for the respondent with Mr Chitty, submitted that the applicant had not sought either to appeal from, or seek a review of, the decision of the Registrar transferring the leave application to the Court of Appeal. Any oral application to do so was out of time. 19. Secondly, Ms Nomchong argued that Boland ADCJ was a "judge" for the purposes of s 48(1)(b)(ii), SCA and, therefore, the Appeal Panel of the Civil and Administrative Tribunal of New South Wales (NCAT), [5] was a "specified tribunal". Accordingly, the leave application was within the Court of Appeal's jurisdiction. Consideration 1. Mr King's jurisdictional submissions ought not to have been placed before the Court in the informal manner he adopted. His true complaint was about the Registrar's decision to transfer the matter from the Civil List to the Court of Appeal. A challenge to that decision by way of review [6] ought to have been brought before the Court prior to the hearing of the leave application. Instead, to all intents and purposes, as the background we have recounted reveals, the applicant abandoned any proposal to advance any such jurisdictional point. Mr King's submissions were made not only with no notice to the Court or the respondent, but in circumstances where the respondent's written submissions had made it clear that, relying upon the applicant's solicitors' letter of 23 November 2015, the respondent understood the case to be confined to the s 83(1) leave application. 2. The Court is entitled to expect legal practitioners to take appropriate procedural steps to bring issues before the Court. The jurisdictional point was raised in circumstances where no such steps had been taken and, indeed, the applicant's solicitor had advised the Court that no jurisdictional point would be advanced. It was highly inappropriate in such circumstances for Mr King to raise such an argument. [7] 3. The informal manner in which Mr King made the jurisdictional submission means that the respondent did not have an appropriate opportunity to assist the Court, although as will be apparent Ms Nomchong's succinct substantive submission was sufficient. It was nevertheless necessary for the Court to consider the submission as, if it was correct, the Court would have had to determine whether to remit the matter to the Common Law Division, or allow it to continue and dispose of it. [8] 4. However, in our view, as we pronounced in Court, Mr King's jurisdictional submission should be rejected. These are the reasons for that decision. 5. Part 3, Division 1, SCA deals with the "Distribution of Business between the Court of Appeal and Divisions." Pursuant to s 48(2), which appears in Division 1, there are assigned to the Court of Appeal proceedings in the Court, relevantly (f) "on an appeal from a specified tribunal" and (g) "for otherwise reviewing a decision of a specified tribunal". 6. "Specified tribunal" is defined in s 48(1)(a) to mean, relevantly: "(iv) the District Court or a Judge of the District Court, … (vii) a tribunal or other body (not including the State Parole Authority) that was constituted by one or more judges or members when exercising the functions, or purporting to exercise the functions, to which the proceedings in the Court relate, …" 1. "Court" in s 48(1)(a)(vii) means the Supreme Court of New South Wales. [9] 2. Section 48(1)(b) provides: "In paragraph (a) (vi) and (vii), "judge or member" means: (i) a Judge or associate Judge, or (ii) a judge or member of any body referred to in paragraph (a) (i)-(iv)." 1. "Judge" in s 48(1)(b)(i) means a Judge of the Supreme Court of New South Wales. [10] 2. Section 18 of the District Court Act 1973 (NSW) relevantly provides: "Acting judges (1) The Governor may, by commission under the public seal of the State, appoint any qualified person to act as a judge for a time not exceeding 5 years to be specified in the commission. (2) … (3) The person so appointed, for the time and subject to the conditions or limitations specified in the person's commission, shall have the powers and authorities and fulfil the duties of the Judge and shall, for the purposes of this or any other Act (other than the Statutory and Other Offices Remuneration Act 1975), be deemed to be a Judge." (Emphasis added) 1. It appears clear that the word "deemed" in s 18(3) was used in the sense of removing doubt which might otherwise exist. [11] 2. The Appeal Panel from which the application for leave to appeal was brought was presided over by Acting District Court Judge, Boland J. Accordingly Boland ADCJ, was a "judge" for the purposes of s 48(1)(b)(ii), SCA as her Honour was a judge of the body referred to in s 48(1)(a)(iv), the District Court of New South Wales. When her Honour presided over the Appeal Panel, she was also exercising, or purporting to exercise, the functions of the Appeal Panel (which, as we have said, Mr King accepted was a "tribunal or other body" for the purposes of s 48(1)(a)(vii)), to deal with the costs issues which are those to which the proceedings in the Supreme Court relate. [12] 3. The Appeal Panel was, accordingly, a "specified tribunal". The consequence is that on the proper construction of the relevant statutory provisions the Registrar properly transferred the leave application to the Court of Appeal. 4. Mr King did not refer the Court to any authorities dealing with the jurisdictional question. 5. However, there are cases in which it has been accepted that an appeal from the Tribunal's predecessor, the Appeal Panel of the Administrative Decisions Tribunal, when constituted by either a District Court judge or an Acting District Court judge were properly assigned to the Court of Appeal. [13] 6. The Courts in B & L Linings and Puglisi both referred with apparent approval to Dunford J's decision in Daykin v SAS Trustee Corporation. [14] In that case, his Honour considered the question whether proceedings by way of an appeal from a decision of the Appeal Panel of the Administrative Decisions Tribunal brought pursuant to s 119 of the Administrative Decisions Tribunal Act 1997 (NSW) [15] were properly instituted in the Administrative Law List of the Common Law Division or, rather, should have been commenced in the Court of Appeal having regard to s 48, SCA. 7. At the time Daykin was decided, the apparently relevant provision of s 48(1)(a), SCA defining "specified tribunal" was in somewhat similar terms to s 48(1)(vii) as it now appears, while the definition of "judge or member" in s 48(1)(b) focused specifically on judges or members of identified courts. Nevertheless, in our view, those differences do not detract from the force of the reasoning which led Dunford J to conclude that an appeal from a decision of the Appeal Panel presided over by a judge of the District Court should have been commenced in the Court of Appeal. [16] 8. In this respect, his Honour said: "16 It appears to me that s 48 conveys a clear legislative intention that appeals from judges of superior or what might be described as middle tier courts, are to be heard by a bench of three judges such as one finds in the Court of Appeal, whereas appeals from bodies which do not comprise or include such judges are to be heard and determined by a single Judge of the Supreme Court in the Administrative Law List. 17 This may…be capricious in one sense, but it is consistent with the general structure of appeals in judicial, as opposed to administrative, matters in that appeals from the District Court, whether from trials on indictment or in civil proceedings, or from the Compensation Court are heard in the Court of Appeal or Court of Criminal Appeal as appropriate, consisting in each case of more than one judge, whereas appeals from magistrates pursuant to Part 5 of the Justices Act 1902 are heard by single judges of the Common Law Division…" 1. There is, in our view, much force in Dunford J's reasoning which has, as we have said, been implicitly endorsed in B & L Linings and Puglisi. 2. We would add that the submission Mr King made recorded in [16] above should not have been made. It could not have been justified on the basis of any material available to him, nor was it appropriate for the advancement of the applicant's case. [17] Application for leave 1. The application for leave to appeal should, however, in our view be successful. Section 60(1) of the CAT Act provides that "each party to proceedings in the Tribunal is to pay the party's own costs". The Tribunal is nevertheless empowered to award costs "in relation to proceedings before it" if satisfied special circumstances warrant such an order. [18] Section 60(3) sets out matters to which the Tribunal may have regard in determining whether there are "special circumstances" warranting an award of costs. 2. The Appeal Panel determined that there were "special circumstances" warranting a costs order in the respondent's favour. One of the two matters the Appeal Panel identified as constituting "special circumstances" related to the "conduct of the proceedings before Hennessy LCM, Deputy President" from which the appeal had been brought. [19] Mr King's essential submission was that that was an error of law in that the Appeal Panel misapplied s 60, in having regard to matters other than those which related to "the proceedings before it". 3. In our view the issue the applicant seeks to raise concerning the proper construction of s 60 of the CAT Act involves an issue of principle warranting a grant of leave to appeal. 4. The draft notice of appeal is unnecessarily prolix and, in particular, as presently drafted includes proposed grounds of appeal which seek to agitate issues of fact, rather than the question of law Mr King identified. Accordingly we would not grant leave to appeal in respect of draft grounds 8-10. 5. As the point sought to be argued is one of construction, it does not appear to us that any additional papers should be required to be added to the White Book other than the notice of appeal as filed in accordance with the orders we propose to make and, too, the parties' submissions addressing the point of construction. Accordingly, in order to minimise costs, we propose to exempt the applicant from the obligation to file the appeal books referred to in UCPR 51.27 – 51.30. However, the Registrar should ensure that such papers as will be necessary for the hearing of the construction point are included in the White Book. 6. Although the jurisdiction point took a substantial part of the time allocated for the leave application, it does not prima facie appear to us that any additional costs would have been incurred by it being raised. If the respondent wishes to contend otherwise, he should file a notice of motion with supporting affidavit within 7 days of the date of this judgment. The Registrar of the Court of Appeal should make directions concerning the filing of any written submissions not to exceed 5 pages on this issue. The Court will deal with any such notice of motion on the papers, unless either party advances a substantive reason why an oral hearing should be conducted. 7. We make the following orders: 1. Grant leave to appeal. 2. Applicant to file the draft notice of appeal appearing in the White Book, but excising paragraphs 8-10, within 7 days of the date of this judgment. 3. Dispense with the requirement to prepare the appeal books referred to in UCPR 51.27 - 51.30. 4. Refer the appeal to the Registrar of the Court of Appeal to make directions concerning the filing of written submissions addressing the construction point and to determine what, if any, additional materials need to be included in the White Book. 5. Costs of the leave application to be costs in the appeal. ********** Endnotes 1. Gaynor v Burns [2015] NSWCATAP 150. 2. It was common ground that the orders the applicant sought to challenge were made on an internal appeal within the meaning of s 83(1). 3. House v R [1936] HCA 40; (1936) 55 CLR 499. 4. CAT Act, s 36(3); Civil Procedure Act 2005 (NSW) (CPA), s 56. 5. CAT Act, s 7(1). 6. cf Uniform Civil Procedure Rules 2005 (NSW) (UCPR), 49.19. 7. cf s 56, CPA. 8. SCA, s 51(2)(c) and (d). 9. SCA, s 19(1). 10. SCA, s 19(1). 11. Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 (at 207) per Gleeson CJ (Cripps JA agreeing). 12. "Tribunal" in s 83(1) of the CAT Act "means the Civil and Administrative Tribunal of New South Wales established by [the CAT] Act". ""Appeal Panel" means an Appeal Panel of the Tribunal". 13. See B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481 (B & L Linings) (at [2]) per Allsop P (Giles and Basten JJA agreeing); Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298; (2001) 52 NSWLR 350 (Puglisi) (at [1]) per Heydon JA (Foster AJA and Studdert J agreeing); Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 (at [5]) per Leeming JA (McColl and Meagher JJA agreeing). 14. Daykin v SAS Trustee Corporation [2001] NSWSC 58; (2001) 51 NSWLR 328 (Daykin). 15. Section 119 was, in substance, in like terms to s 83(1) of the CAT Act. 16. Daykin (at [18]). 17. Legal Profession Uniform Conduct (Barristers) Rules 2015, r 60. 18. CAT Act, s 60(2). 19. Primary judgment (at [57]). 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: 16 March 2016