Shapkin v The University of Sydney

Earlier today I heard Mr Shapkin’s application for leave to appeal from a decision of the Appeal Panel of the Civil and Administrative Tribunal (“NCAT”) and I have reserved my decision.

Mr Shapkin also brought, or purported to bring, an application for judicial review. In his amended summons filed on 6 August 2023 (CB 112), he purportedly seeks orders in the nature of certiorari against not only the Appeal Panel’s orders but also in respect of the orders made by the Consumer and Commercial Division of NCAT at first instance.

There is an objection raised by the defendant, the University of Sydney, to me considering this application for judicial review. That opposition is principally based upon s 34 of the Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’). So far as is relevant, s 34 is in the following terms:

Obviously, the power conferred on the Supreme Court by s 34 to refuse to conduct a judicial review must be exercised judicially and not arbitrarily or capriciously.

The ground upon which the University proceeds is twofold. The first is that as the first instance decision has been taken on appeal, which is the condition which activates the statutory power (s 34(1)(c)), the field is now occupied, if I may put it that way, by the Appeal Panel’s decision. Secondly, it is argued that so far as the Appeal Panel is concerned, given that there is a full right of appeal albeit restricted to a point of law after the grant of leave, there would be duplication, in the circumstances of the case, by permitting judicial review concurrently with an appeal.

Mr Shapkin joins issue with these arguments. He argues that there is no legal objection to review of both the first instance decision and of the appeal panel decision, notwithstanding that he has brought an application for leave to appeal under s 83 of the NCAT Act. He relies principally upon the decision of Harrison AsJ in Wallace v NSW Land and Housing Corporation [2020] NSWSC 142. With respect, it is quite clear from the orders her Honour made that her Honour purported to call up both the decision at first instance and of the Appeal Panel, making orders quashing each of them under s 69 of the Supreme Court Act 1970 (NSW) and remitting the matter to be determined according to law. It is also quite obvious from her Honour’s decision that no point was taken, or application made, under s 34 of the NCAT Act before her; nor, were authorities I consider relevant to the question cited before her or developed in argument. For this reason, I regard her Honour’s decision as distinguishable and for the reasons I am about to give, I respectfully decline to follow it.

The question about whether the first instance decision and the appeal panel decision can both be the subject of an application for judicial review has been authoritatively decided, against Mr Shapkin’s contention, by the High Court of Australia as long ago as 1941, in Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8. I might observe that authoritative decisions of the High Court of Australia do not wither on the vine, nor do they expire from old age, as Mr Shapkin seemed to imply. They remain binding precedents on a judge in my position, unless and until the High Court itself, overturns them and creates new precedent.

The principle for which Wishart v Fraser stands, may simply be stated by reference to the headnote, which is in the following terms:

The principal is frequently applied, not only in appellate law, if I may express myself that way, but also, in the exercise of the Court of Appeal’s original supervisory jurisdiction. The principal was best expressed by Dixon J (as the Chief Justice then was). His Honour defined the question to be whether the Court could ignore the decision of a competent court confirming an order of conviction of a court below it. His Honour said (at p 482):

So far as the application for a judicial review of the Appeal Panel’s decision is concerned, I acknowledge that an appeal and an exercise of the Court’s supervisory jurisdiction, are different species of judicial remedy. They are not coextensive, nor are they necessarily inconsistent. However, as is frequently said, the making of orders in the nature of the prerogative writs is discretionary. Even in a case where the legal basis for an order in the nature of certiorari is made out, the Court empowered to make the order may, on discretionary grounds, withhold it. A common basis for withholding the remedy, is when there is an available appeal, covering more or less, the same ground. This is of course, at best, a general rule, to which there may always be exceptions.

To my mind, the decision of the Court of Appeal in Meagher v Stephenson (1993) 30 NSWLR 736, is relevant to the exercise of my powers under s 34. That concerned an appeal from a decision of the former Licensing Court of NSW under s 146 of the Liquor Act 1982 (NSW). The appellant before the Court of Appeal, also sought to join in the proceedings, an application for orders in the nature of certiorari and mandamus. While entertaining the appeal, the Court refused to entertain the application for judicial review. Their Honours said (at p 738):

Their Honours having reviewed other authorities went on to say (at p 739):

Their Honours acknowledged that there may be cases where it is appropriate to take proceedings of the prerogative kind rather than an appeal. They commented, there is no justification to take both simultaneously. That decision was followed and applied in the matter of Hill v King (1993) 31 NSWLR 654. The same principle was referred to with approval by the Court of Criminal Appeal in Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 at [8] (Basten JA). His Honour, as I understand him, did contemplate scenarios where there may be exceptions to this general rule.

The present case is an even stronger one for refusing relief by way of judicial review given the clear statutory mandate provided in that regard by the provisions of s 34.

I should say that Mr Shapkin sought to outflank these decisions by arguing that the avenue of appeal of s 83 of the NCAT Act was insufficient to enable him to ventilate before this Court what he referred to as jurisdictional questions of fact which he argued ought to have informed the exercise of the Appeal Panel's powers under the Residential Tenancies Act 2010 (NSW). Those jurisdictional facts which he would describe as objective jurisdictional facts, were said to arise, as he developed in his written submissions, under various statutory instruments concerned with planning law, including zoning regulation. I was unpersuaded, first, that those matters, notwithstanding his argument that they were highly relevant to the questions which arose under clause 31 of the Residential Tenancy Regulation 2010 (NSW), laid down any legal requirement necessary for the proper exercise of the tribunal's jurisdiction or power under that provision. Secondly, this material was not before me, nor was any evidence before me from which I could be satisfied that there was any real question of jurisdictional fact to be decided in these proceedings.

Mr Shapkin also argued that there was no evidence that there was no residential tenancy agreement in force either before the first instance tribunal or before the appeal panel. As I explained to him during argument, I thought this was a logical fallacy of the kind exposed by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, which remains a seminal decision on the meaning of - or the scope of - a question of law appeal, particularly in relation to a no evidence ground which equally informs appellate practice and the exercise of the Court's original supervisory jurisdiction. To state the obvious, a no evidence ground, properly formulated, could have been advanced as a question of law in the appeal.

For these reasons, under s 34 of the Civil and Administrative Tribunal Act 2013, I refuse to conduct a judicial review of the decision of the Appeal Panel of the Civil and Administrative Tribunal on the ground that an appeal from that decision has been brought to this Court under s 83(2) of the said Act. For the abundance of caution, I stay the matter of Vasiliy Shapkin v University of Sydney, matter number 2023/00135575.