Gennacker Pty Ltd trading as Homestead Holiday Park v Fontainas

1. [1]

   The defendant in these proceedings Mr. Fontainas seeks an order that this Court decline to exercise jurisdiction in the proceedings pursuant to r 12.11(1)(h) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The basis, in short, for seeking this order is that the summons that was filed by the plaintiff on 15 July 2019 is in effect an appeal from a decision of the New South Wales Civil and Administrative Tribunal (“NCAT”) comprising one person, Mr. G. J. Sarginson, Senior Member (“SM Sarginson”), dated 28 June 2019.

2. [2]

   The defendant argued that the proper place for this appeal to be heard and determined is via an appeal panel pursuant to the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”) and that the summons filed by the plaintiff is simply an effort to “leap-frog” the proper appeal process.

3. [3]

   I have reached the view that this is indeed what is being sought by the plaintiff in the act of filing the summons seeking leave to appeal in this Court, before having pursued its right of appeal to an appeal panel under the CAT Act.

4. [4]

   As stated by Beech-Jones J in Allan & Ors v TriCare (Hastings) Pty Ltd & Anor [2015] NSWSC 416: [1]

Background

1. [5]

   The plaintiff is the owner of a residential park at Chinderah, New South Wales.

2. [6]

   In 2015 the defendant purchased a dwelling in the park and sought a long term site agreement pursuant to the Residential (Land Lease) Communities Act 2013 (NSW) (“RLLC Act”). He had purchased a dwelling from the previous owner who held a long term agreement and his plan was to live in it as his principal place of residence.

3. [7]

   Pursuant to s 109(2) of the RLLC Act the plaintiff must enter into a new agreement with the defendant unless certain matters, specified in subparagraph (2), apply:

4. [8]

   Section 12 of the RLLC Act provides that contracting out of the obligations under this legislation is prohibited.

5. [9]

   Initially, the plaintiff offered the defendant a short term agreement but this required him under the legislation to have a principal place of residence elsewhere and restricts his occupation of the site to no more than 180 days in any 12-month period. [2]

6. [10]

   The plaintiff sent a letter to the defendant in September 2015 offering to further consider the request if he attended to certain matters, the details of which are not relevant to the matters I need to consider to determine this application.

7. [11]

   The defendant commenced proceedings in NCAT in relation to the dispute over the site agreement.

8. [12]

   The Tribunal made consent orders on 11 December 2015 that provided for certain things to occur which included that within three working days of the defendant providing to the plaintiff the information described in order 2 of the consent orders, the plaintiff (who was the respondent in the NCAT proceedings) was to provide to the applicant a residential site agreement under the RLLC Act.

9. [13]

   The fourth order was that the parties have leave to relist the matter before the Tribunal at short notice to determine any disputes that may arise in carrying out those orders.

10. [14]

    That did not occur despite those optimistic consent orders not ultimately quelling the dispute between the plaintiff and the defendant. The defendant contends that he provided all the documents in line with the timetable but the plaintiff failed to provide the site agreement and so the defendant sought to enforce the consent order by commencing other proceedings (RC 16/54883).

11. [15]

    At the early 2018 hearing, Member Harris ruled that the defendant (who was the plaintiff in the NCAT proceedings) had not complied with two matters.

12. [16]

    Pursuant to s 80 of the CAT Act, the defendant made an internal appeal to an Appeal Panel. The defendant says that the Appeal Panel heard the matter on 20 June 2018 and that the appeal was allowed and the previous orders made by Member Harris were set aside.

13. [17]

    Consent orders were then made, which are in evidence before me, which provided for the matter to be remitted to the Tribunal to decide a number of specific questions.

14. [18]

    It was these remitted questions that were dealt with in the decision and orders made by SM Sarginson on 28 June 2019. After a hearing, he ordered that the plaintiff give the defendant a site agreement within 14 days.

15. [19]

    The defendant did not give a site agreement to the plaintiff within 14 days, did not pursue its rights under s 80 of the CAT Act to make an internal appeal to the Appeal Panel, but instead, filed a summons in this Court.

The proceedings commenced in this Court

1. [20]

   The summons filed on 15 July 2019 in this Court appears to be seeking leave to appeal the decision of SM Sarginson, as well as seeking orders setting aside the consent orders made by the Appeal Panel in mid-2018 as well as the consent orders entered into by the parties back in 2016.

2. [21]

   None of the previous consent orders were the subject of any complaint when the matter was heard by SM Sarginson. What seems to have occurred is that the plaintiff was first, unhappy with the outcome and second, felt that SM Sarginson had stepped outside the specific questions referred to him and made a general determination of the matter.

3. [22]

   There is no purpose in me going any further into the grounds of the proposed appeal or their prospects of success.

4. [23]

   The issue before me is limited to whether I should make the orders sought in the notice of motion, in circumstances where the available avenue of appeal under the CAT Act has deliberately not been taken.

Submissions and Decision

1. [24]

   Initially, I formed the impression based on the oral submissions made by senior counsel for the plaintiff, that there was some subtlety of argument associated with the nature of the referral to SM Sarginson by the Appeal Panel and therefore some jurisdictional basis to argue that it was in effect not a decision of the Tribunal, but part of an already determined set of Appeal Panel proceedings and in that context there was no properly available intermediary (appeal step) before coming to this Court to appeal SM Sarginson’s decision.

2. [25]

   However it became evident that the complaint was a different one and that is that rather than of SM Sarginson focusing on answers to the specific questions that were sent to him for resolution, he:

3. [26]

   Senior counsel for the plaintiff submitted that this Court could and should exercise its discretion to bring what has been a very expensive and lengthy matter to a close quickly and efficiently, by making a final determination. He argued that it was unfair to the plaintiff to “have to go” to the expense of yet another appeal panel hearing which may be unsatisfactory and may again remit questions back for determination by a Tribunal.

4. [27]

   Counsel for the defendant however submitted, correctly, that s 80 of the CAT Act makes it clear that an appeal from a Tribunal should be made under the machinery available under the CAT Act:

5. [28]

   I accept the submission made by counsel for the defendant that ss 81 and 82 of the CAT Act confirm a right of appeal to a panel on any question of law and a right to seek leave to appeal on any other ground. Clearly, pursuant to s 80(3), an appeal panel can deal with an internal appeal by way of a new hearing or admit the tender of fresh evidence if it considers that is appropriate.

6. [29]

   Additionally, s 83(1) of the CAT Act provides that only appeals against decisions of the Appeal Panel are allowed to be made to the Supreme Court with leave and only on a question of law:

7. [30]

   As correctly submitted by the counsel for the defendant, the plaintiff is not appealing the decision of the Appeal Panel made in 2018 (although there is reference to seeking relief including setting aside consent orders that it agreed to after the Appeal Panel’s determination) but is really in truth, seeking to “miss a step” as the plaintiff is unhappy with the decision of SM Sarginson, which was decided entirely in the defendant’s favour.

8. [31]

   The CAT Act is clear that the structure for disputes of this nature is by hearing before a specialist tribunal, together with appeal rights to a specialist panel.

9. [32]

   I accept the defendant’s contention that the plaintiff commenced its appeal in the wrong place and that any appeal in relation to the decision of SM Sarginson should be to the Appeal Panel pursuant to s 32 of the CAT Act.

10. [33]

    Illustrated by a number of decisions of this court, including that of Beech-Jones J in TriCare (referred to at [3] of this judgment), this Court can, pursuant to s 34 of the CAT Act, refuse to conduct a judicial review of the decision of the Tribunal if an internal appeal or an appeal to a court could be or has been lodged against the decision.

11. [34]

    As noted in s 34(2)(a), s 34 permits but does not require the Supreme Court to refuse to conduct a judicial review of a decision on a ground referred to in subsection (1), and pursuant to s 34(2)(b), this option does not limit any power that the Supreme Court has, apart from this section, to refuse to conduct a judicial review of a decision.

12. [35]

    I accept the submission of counsel for the defendant that these provisions confer upon this Court a discretion to refuse to entertain judicial review proceedings where there is a provision for internal review available elsewhere.

13. [36]

    I consider it was responsible and appropriate, for this application to be made as it has been, by way of notice of motion, early in the proceedings.

14. [37]

    I am persuaded that I should decline to exercise jurisdiction pursuant to s 12.11(1)(h) of the UCPR, as there is an available right of appeal to a specialist panel under the CAT Act, and that should be pursued before restoring to this Court.

    1. (1)

       This Court declines to exercise jurisdiction in the proceedings pursuant to Rule 12.11(1)(h) of the UCPR.

    2. (2)

       The plaintiff is to file and serve written submissions of not more than 4 pages in length by Friday 18 October 2019 as to the costs order for which it contends given my conclusion in respect of order 1, noting that the defendant seeks a costs order that the “plaintiff pay all of the defendant’s costs in relation to and incidental to the proceedings and the notice of motion”.

    3. (3)

       The defendant is to file and serve written submissions in response, not more than 4 pages in length by Friday 25 October 2019.