Wilson v Brisbane; Wilson v Chan & Naylor Parramatta Pty Ltd

1. [1]

   HER HONOUR: The plaintiff seeks both a judicial review and an appeal against two decisions of the NSW Civil and Administrative Tribunal (“NCAT”) relating to costs in two proceedings. It is convenient that I write one judgment in relation to both decisions, as they concern similar matters and were both dealt with together at NCAT.

2. [2]

   By notice of motion filed 11 October 2019, the plaintiff seeks firstly, an order that an extension of time be granted for leave to appeal the decision on costs made by the NCAT Appeal Panel Members S Westgarth and R Perrignon on 20 December 2018 pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the CAT Act”); and secondly, an order that the Appeal Panel and Tribunal reconsider the exercise of their discretion in a new hearing on costs, or granting that discretion be re-exercised by the Supreme Court, if special circumstances are found to exist contrary to NCAT principles in Mrjana v Imagine Education Australia Pty Ltd [2016] NSWCATAP 232 and Plath v Snowy Monaro Regional Council [2019] NSWCATAP 212 at [11].

3. [3]

   In proceedings No. 2019/83190 (“the Brisbane proceedings”), the plaintiff is Stephen Wilson. The first defendant is Henry Carl Brisbane. The second defendant is NCAT.

4. [4]

   In proceedings No. 2019/83349 (“the Chan & Naylor proceedings”), the plaintiff is Stephen Wilson. The first defendant is Chan & Naylor Parramatta Pty Ltd ATF Chan & Naylor Parramatta Trust. The second defendant is NCAT. In both proceedings, the second defendants have filed submitting appearances.

5. [5]

   For ease of understanding in light of the long history of these proceedings, I will where convenient refer to the plaintiff by name and to the first defendants respectively as “Mr Brisbane” and “Chan & Naylor”.

6. [6]

   Further, by two amended summonses filed 24 April 2019, one in respect of each matter, the plaintiff seeks firstly, an order that leave to appeal the decision on costs made on 20 December 2018 by the Appeal Panel and decision on costs made on 14 January 2019 by the Tribunal be granted and each party be order to bears its own costs before the Tribunal and Appeal Panel; secondly, an order that the appeal be allowed, and the decision on costs made on 20 December 2018 by the Appeal Panel and the decision on costs made on 14 January 2019 by the Tribunal be declared invalid and set aside; thirdly, an order that the Brisbane proceedings and the Chan & Naylor proceedings be heard together; and fourthly, an order granting an extension of time. The proceedings were heard together.

7. [7]

   The amended summonses state under the heading “type of claim”:

8. [8]

   I take this to mean that the plaintiff is seeking both leave pursuant to s 83(1) of the CAT Act to appeal on a question of law, as well as judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) in relation to the two decisions, namely, that of the Appeal Panel dated 20 November 2018 and of Senior Member L Wilson dated 14 January 2019. As previously stated, these decisions both relate to costs.

Background

1. [9]

   On 2 November 2015, the plaintiff commenced proceedings against Chan & Naylor in NCAT for loss and damage arising out of alleged negligent advice concerning the establishment of a self-managed superannuation fund. The plaintiff joined Mr Brisbane as a second respondent to the NCAT proceedings on 17 October 2017. The plaintiff alleged that Mr Brisbane incorrectly advised him that he was in compliance with superannuation industry regulations, and failed to alert him and/or the Australian Taxation Office of the non-compliance.

2. [10]

   On 29 June 2018, the Senior Member dismissed the NCAT proceedings brought against the respondents on the basis that the claims were statute barred under s 79(1)(a) of the Fair Trading Act 1987 (NSW), as they had been brought out of time. The Senior Member also found that the Tribunal did not have jurisdiction to hear and determine the dispute, as it required the application of federal legislation. Both Chan & Naylor and Mr Brisbane sought their costs against the plaintiff in respect of the NCAT proceedings. However, as the plaintiff commenced an appeal against the Senior Member’s decision, the Tribunal deferred its costs decision until after the Appeal Panel had heard the internal appeal.

3. [11]

   On 20 December 2018, the NCAT Appeal Panel held that the Tribunal lacked jurisdiction to determine the issues in dispute and ordered that the proceedings against Chan & Naylor and Mr Brisbane be transferred to the Local Court. The NCAT Appeal Panel also ordered the plaintiff to pay both Chan & Naylor’s and Mr Brisbane’s costs of the appeal proceedings.

4. [12]

   On 14 January 2019, in relation to the original proceedings, the NCAT Senior Member ordered that the plaintiff pay Chan & Naylor’s costs for the period of 8 September 2017 to date, and Mr Brisbane’s costs for the period of 17 October 2017 to date.

The legislation

1. [13]

   It is convenient that I first set out the relevant provisions of the CAT Act here.

2. [14]

   Section 38 of the CAT Act relevantly reads:

3. [15]

   Section 50 of the CAT Act relevantly reads:

4. [16]

   Section 60 of the CAT Act relates to costs. It relevantly reads:

5. [17]

   Sections 80 of the CAT Act provides for internal appeals from a decision of the Tribunal at first instance to an Appeal Panel. It reads:

The decision of the Senior Member dated 29 June 2018

1. [18]

   On 29 June 2018, Senior Member Wilson (“the Senior Member”) dismissed Mr Wilson’s application and published reasons for her decision. This decision is not subject to judicial review or appeal. However, it is necessary that I briefly outline the decision of 29 June 2018 to contextualise the two related decisions which are the subject of these proceedings.

2. [19]

   In her reasons, the Senior Member determined that Mr Wilson’s claim was statute barred under s 79L(1)(a) of the Fair Trading Act. Section 79L(1)(a) states that the Tribunal does not have jurisdiction to determine a consumer claim if the cause of action first accrued more than three years before the date of lodgement. However, the Senior Member continued:

3. [20]

   At the hearing of these proceedings, counsel for Chan & Naylor stated that although the Senior Member did not refer to the authority she relied upon by name, her statements concerning the jurisdiction of the Tribunal were in reference to Qantas Airways Limited v Lustig [2015] FCA 253 (“Qantas Airways”).

4. [21]

   The Senior Member dismissed the applications in relation to costs of the proceedings pending the outcome of Mr Wilson’s appeal of her decision to the Appeal Panel.

The decision of the Appeal Panel dated 20 December 2018

1. [22]

   On 20 December 2018, the Appeal Panel, comprised of Deputy President S Westgarth and Senior Member R Perrignon (“the Appeal Panel”), handed down the reasons for its decision in relation to Mr Wilson’s appeal.

2. [23]

   In its decision, the Appeal Panel summarised the decision of The Senior Member dated 29 June 2018, including her application of the principles of summary dismissal as follows at [10(3)]:

3. [24]

   The Appeal Panel then stated that the Senior Member had determined that the Tribunal had no jurisdiction to consider and apply Commonwealth legislation. At [22] of its decision, the Appeal Panel referred to Attorney General for New South Wales v Gatsby [2018] NSWCA 254, in which the Court of Appeal held that NCAT is not a Court of a State within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution, with the consequence that NCAT cannot exercise federal jurisdiction. At [23]-[25], the Appeal Panel further referred to Qantas Airways, in which the Federal Court arrived at the same determination. At [26]-[27] of its decision, the Appeal Panel stated:

4. [25]

   Under the heading “Appropriate Order”, the Appeal Panel noted that cl 6 of Sch 4 of the CAT Act enables NCAT to transfer proceedings to a court of proper jurisdiction. That power arises if the parties agree to the proposed transfer, or if the Tribunal, of its own motion or on the application of a party, so directs. Mr Wilson had argued if the Tribunal had no jurisdiction, it should transfer the proceedings to an appropriate court. At [72], the Appeal Panel stated:

5. [26]

   As the Appeal Panel had determined that NCAT lacks jurisdiction, there was no need for the Appeal Panel to determine whether the Senior Member was correct in her consideration of s 79L of the Fair Trading Act.

6. [27]

   As to the issue of costs of the appeal, the Appeal Panel stated at [59]:

7. [28]

   At [74], the Appeal Panel ordered that Mr Wilson’s application against Chan & Naylor and Mr Brisbane was to be transferred to the Local Court to be dealt with in accordance with that court’s rules and directions. Mr Wilson does not challenge the decision to transfer the proceedings to the Local Court. The Appeal Panel also ordered Mr Wilson to pay the costs of the respondents in relation to the appeal. Except in relation to those two orders, the Appeal Panel dismissed the plaintiff’s appeal.

The decision of the Senior Member as to costs dated 14 January 2019

1. [29]

   On 14 January 2019, the Senior Member determined the costs application foreshadowed on 29 June 2019, and published reasons for her decision.

2. [30]

   In her reasons, the Senior Member began by stating:

3. [31]

   The Senior Member then addressed the submissions of the parties, detailed the history of the proceedings and set out Rule 38(2)(b) and s 60 of the CAT Act reproduced earlier in this judgment. When considering whether special circumstances existed in the period of 8 September 2017 to the present, which would justify an order for costs, she stated at [67]:

4. [32]

   As to s 60(3)(b) of the CAT Act, she concluded that “despite being legally represented at times, and having a thorough understanding of the facts in issue, if not the law, the applicant has been responsible for prolonging unreasonably the time taken to complete the proceedings”.

5. [33]

   The Senior Member considered that although the Tribunal cannot conclude that Mr Wilson’s application had no tenable basis in fact or law anywhere, it had no tenable basis in law in the Tribunal. She stated that it was misconceived to commence proceedings in the Tribunal, and to bring them back to the Tribunal in 2017.

6. [34]

   Having considered the parties’ submissions and the evidence before her, the Senior Member made orders that Mr Wilson pay Chan & Naylor’s costs from 8 September 2017 to date on an ordinary basis, and that he pay Mr Brisbane’s costs from 17 October 2017 to date on an ordinary basis.

The appeal to this Court

1. [35]

   Mr Wilson seeks an appeal in relation to the decisions of the Appeal Panel dated 20 December 2018 and of the Senior Member on 14 January 2019 pursuant to s 83(1) of the CAT Act.

2. [36]

   Section 83 of the CAT Act reads:

3. [37]

   Section 82 of the CAT act relevantly states:

4. [38]

   Section 83(1) of the CAT Act provides for “a party to an external or internal appeal” of the Tribunal to appeal to the Supreme Court. Although the drafting of ss 82 and 83 is “opaque”, the provisions have been found to operate to confine the scope for appeal under s 83(1) to the decision of an Appeal Panel, not of the Tribunal at first instance: see Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41 (“Bronze Wing”) per Basten JA at [10]; Abdel-Messih v Marshall [2018] NSWSC 648 (“Abdel-Messih”) per Walton J at [24]. This is because the decision of the Appeal Panel is an “internal appeal” under s 32(1) and (5) of the CAT Act, while the decision of a Tribunal member, such as the Senior Member in these proceedings, is neither an internal appeal nor an “external appeal” under s 31(3) and (4).

5. [39]

   In Bronze Wing, Basten JA stated at [11]:

6. [40]

   For these reasons, Chan & Naylor submitted that the plaintiff does not have a right of appeal to the Supreme Court against the decision of the Senior Member on 14 January 2019 as to costs. It is my view that this submission must be correct. However, I will consider the plaintiff’s grounds of review in relation to the decision of the Senior Member on costs, as that decision is amenable to judicial review under s 69 of the Supreme Court Act, which the plaintiff also seeks. I will return to the plaintiff’s application for judicial review later in this judgment.

7. [41]

   Proceedings by way of statutory appeal under s 83(1) of the CAT Act must be instituted within 28 days of the decision in accordance with r 50.3 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The plaintiff filed his summons in relation to both appeals on 15 March 2019. As such, the plaintiff has filed his appeals in relation to both decisions out of time.

8. [42]

   The principles which apply to an extension of time to appeal are well established. Mr Wilson bears the onus of demonstrating that strict compliance with the timeframe would work an injustice upon him: see Gallo v Dawson [1990] HCA 30; 93 ALR 479. Relevant considerations include the length of the delay and any reasons for it, as well as the strength of Mr Wilson’s case and whether the respondents would be prejudiced by granting the application: see Jackamarra v Krakouer (1998) 195 CLR 510 at [3]-[5]; Tomko v Palasty (No 2) [2007] NSWCA 369 at [55].

9. [43]

   Mr Wilson (Aff, 11 October 2019) deposed that he did not know that the time limit for filing the summons for leave to appeal was less than three months (Aff, [4]). He is unrepresented in these proceedings. As I am to consider the strength of his case when determining whether leave should be granted to appeal, I will first turn to consider that application before making my determination as to whether or not to grant an extension of time in relation to it.

10. [44]

    For the reasons which follow, I refuse the plaintiff’s application for leave to appeal. As such, I refuse his application to extend time to appeal.

11. [45]

    Section 83(1) of the CAT provides that Mr Wilson requires leave from the Supreme Court and may only appeal on a question of law. Chan & Naylor and Mr Brisbane oppose the granting of leave.

12. [46]

    Two cases which deal with the principles governing leave to appeal are Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (“Das”) and Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 (“Lee”).

13. [47]

    In Das, the Court of Appeal set out the principles to be considered in deciding whether leave to appeal should be granted. At [32], [33] and [35], Basten JA stated:

14. [48]

    Similarly, in Lee, Bathurst CJ at [12] outlined the principles relevant to the granting of leave as follows:

15. [49]

    In Coulter v R [1988] HCA 3; 164 CLR 350 at 359, Deane and Gaudron JJ noted the requirement for leave:

16. [50]

    The authorities referred to above are equally applicable in these proceedings.

17. [51]

    One relevant but discretionary factor to consider when determining whether to grant leave to appeal under s 83 of the CAT Act is the size of the claim. Although there is no minimum amount specified, the Court has refused to grant leave in matters involving a small amount where the Court considers the grant of leave to be unwarranted having regard to the appropriate allocation of court resources and the disproportionate costs to the parties: see Wilson v Tetley [2003] NSWCA 124; Zenden Sewell Henamast Pty Ltd [2011] NSWCA 56. However, even when relatively small amounts are involved, leave ought not to be denied where there has been a clear injustice: see He v Yeung [2015] NSWCA 392 at [49] per Bergin CJ (Beazley P and Meagher JA agreeing).

18. [52]

    The other relevant factors I am to consider are those set out by Campbell JA (Young and Meagher JJA agreeing) in Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. Specifically, these are whether the present proceedings concern an issue of principle, a question of general public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable, that the primary decision was in error: see also Bathurst CJ (Macfarlan and Barrett JJA agreeing) in Lee. As such, I will consider whether the plaintiff’s amended summons raises questions of law which are more than merely arguable.

Grounds of appeal

1. [53]

   An appeal on a question of law is not merely a qualifying condition to the right of appeal, but the question of law is the subject matter of the appeal: see Davis v NSW Land and Housing Corporation [2016] NSWCA 325 per McColl JA at [77]. Questions of law are not to be distilled from the grounds of appeal itself, but should be clearly identified: see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 per French CJ, Gummow and Bell JJ at [21]. Questions of law should not simply be statements to the effect that the Tribunal made legal errors, but should state questions of law to support the orders sought on appeal: see Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; (2003) 202 ALR 450 per Branson J at [47].

2. [54]

   In his amended summons dated 24 April 2019, the plaintiff identified the following grounds of review:

3. [55]

   These grounds of review fall into three main areas: firstly, that the Appeal Panel and/or the Senior Member inappropriately exercised their discretion in relation to their awards of costs (grounds 1, 2 and 5); secondly, that they failed to provide adequate reasons for their decisions (ground 3); and thirdly, that the Senior Member denied the plaintiff procedural fairness (grounds 1 and 4).

4. [56]

   Mr Wilson has not clarified in his submissions how these grounds of review relate to s 83 of the CAT Act and/or his judicial review. For the purposes of his appeal under s 83(1) of the CAT Act, I will now turn to consider whether these grounds raise questions of law which are more than merely arguable. It is convenient that I begin with grounds 1, 2 and 5 together, followed by grounds 1 and 4, and finally ground 3.

5. [57]

   The plaintiff submitted that in reaching their decisions, the Appeal Panel and Senior Member erred in finding that there existed special circumstances which merited an award of costs.

6. [58]

   As to the Appeal Panel’s decision, he submitted that it awarded both the applicant and the first defendants a measure of success. Mr Wilson was successful in that the Appeal Panel rejected the first defendants’ application for summary dismissal, and transferred the proceedings to the Local Court. The first defendants were successful in establishing that NCAT had no powers to exercise federal jurisdiction. He also submitted that the Appeal Panel failed to provide adequate reasons for its decision.

7. [59]

   As to the decision of the Senior Member as to costs, Mr Wilson submitted that she failed to properly consider that Mr Brisbane’s legal representatives had filed an unreasonable application for summary dismissal that improperly increased costs. Mr Wilson submitted that this application was incorrectly granted by the Senior Member at first instance, but was correctly rejected by the Appeal Panel. He argued that previous Tribunal members, including Senior Member Boyce in 2016, and the first defendants, had contributed to the delay in the proceedings being transferred to the Local Court by failing to make or apply for such orders. By failing to properly consider the shared responsibility for delay, Mr Wilson submitted that the Senior Member committed errors in the Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 and House v The King (1936) 55 CLR 499 sense.

8. [60]

   Both Chan & Naylor and Mr Brisbane submitted that as the plaintiff’s appeal relates to a discretionary decision, he must demonstrate that the Appeal Panel [and Senior Member] erred in the proper exercise of their discretion: see House v The King. Namely, such an error would involve: (1) an error of legal principle, or a material error of fact; (2) the decision maker taking into account some irrelevant matter, or failing to take into account or afford sufficient weight to a relevant matter; or (3) the decision maker arriving at a result so unreasonable or unjust that some such error must have been made.

9. [61]

   The first defendants submitted that the appeal fails at every hurdle. The plaintiff has failed to demonstrate a House v The King error. Further, there is no issue of principle or significant injustice that is likely to result if leave is not granted. The plaintiff has not shown any injustice, let alone one that is reasonably clear. Chan & Naylor and Mr Brisbane submitted that a grant of leave in these circumstances is not warranted, having regard to the appropriate allocation of court resources and the disproportionate costs to the parties.

10. [62]

    Sections 60(1) and (2) of the CAT Act state that each party to proceedings in the Tribunal is to pay its own costs, unless the Tribunal determines that special circumstances warrant an award of costs. In determining whether special circumstances exist, the Tribunal may have regard to the factors in s 60(3) (my emphasis). Those include whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party; whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; the relative strengths of the parties’ claims; their nature and complexity; whether the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance; whether a party has refused or failed to comply with the duty imposed by s 36(3) of the CAT Act to cooperate with the Tribunal to give effect to the just, quick and cheap resolution of the real issues in the proceedings; or any other matter the Tribunal considers relevant.

11. [63]

    In its consideration of costs at [59], the Appeal Panel addressed the issue of whether special circumstances existed to merit an award of costs, reproduced earlier in this judgment at [27].

12. [64]

    At [74] of its decision, the Appeal Panel made an order for Mr Wilson’s application against the respondents to be transferred to the Local Court. It also ordered Mr Wilson to pay the respondents’ costs of the appeal. Except in relation to those two orders, the Appeal Panel dismissed Mr Wilson’s appeal. At the hearing of these proceedings, counsel for Chan & Naylor characterised the Appeal Panel’s decision as stating that, “effectively, the appeal was meritless” (T 25.48).

13. [65]

    Discretionary decisions can be challenged on appeal only on the bases outlined in House v The King as follows at 504-505:

14. [66]

    The plaintiff’s case is that because he was not singularly responsible for the delay to the proceedings, the Appeal Panel erred in finding that there were special circumstances under s 60 of the CAT Act. He sought to rely on the NCAT case of Mrjana v Imagine Education Australia Pty Ltd (2016) NSWCATAP 232 (“Mrjana”), which concerned a self-represented plaintiff whose case was also determined not to fall under the jurisdiction of NCAT. In Mrjana, the NCAT Appeal Panel exercised its discretion to find that special circumstances did not exist such as to make an award of costs against her. Amongst other considerations, the Appeal Panel in Mrjana stated at [65] that it reached its decision because “at all times it seems to us that [the plaintiff] acted reasonably in the conduct of the proceedings having regard to what she understood to be legal rights.” In these proceedings, Mr Wilson submitted that the Appeal Panel and Senior Member erred in failing to reach the same conclusion in respect of his conduct.

15. [67]

    There are several reasons why Mr Wilson’s submissions in relation to Mrjana are misconceived. Firstly, the issue of whether the Tribunal in Mrjana had jurisdiction to hear the claim was complicated by a factual and legal dispute concerning the place of formation of the contract in issue. It was not a case, as this is, where the original decision of the Senior Member on 29 June 2018 made clear that the Tribunal lacked jurisdiction due to the very nature of the claim brought under Federal legislation. It was open to the Appeal Panel in these proceedings to conclude that Mr Wilson’s decision to appeal the decision led to further unnecessary expense and inconvenience to the parties.

16. [68]

    Secondly, the Appeal Panel in this case (and for that matter, the Senior Member) were not bound to exercise their discretion in the same manner as the Appeal Panel in Mrjana. Again, it was open to the Appeal Panel in these proceedings to consider on the facts before them that the plaintiff’s appeal unreasonably prolonged the time taken to complete the proceedings against Chan & Naylor and Mr Brisbane, and that the appeal lacked substance, as the Appeal Panel lacked jurisdiction for the same reasons given by the Senior Member.

17. [69]

    For these reasons, the plaintiff has failed to demonstrate that the Appeal Panel acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect it, mistook the facts, or failed to take into account some material consideration as required. It is my view that this ground of appeal in relation to the Appeal Panel’s decision is not more than merely arguable.

18. [70]

    As to the decision of the Senior Member, these proceedings are an appeal from the Appeal Panel’s decision only (see Bronze Wing at [10]; Abdel-Messih at [24]). As such, this ground of review in relation to the Senior Member’s decision must fail. However, I will consider the merits of this ground as the Senior Member’s decision as to costs is amenable to judicial review, which the plaintiff also seeks.

19. [71]

    The Senior Member addressed the issue of costs at [67] of her decision, reproduced earlier in this judgment at [31]. The Senior Member concluded at [70] of her decision that “despite being legally represented at times, and having a thorough understanding of the facts in issue, if not the law, the applicant has been responsible for prolonging unreasonably the time taken to complete the proceedings” (see s 60(3)(b)) of the CAT Act).

20. [72]

    Again, in order to challenge the discretionary decision of the Senior Member, Mr Wilson must demonstrate that she acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistook the facts, or did not take into account some material consideration as required. In her decision, the Senior Member traversed the history of the proceedings, the submissions of each party and the application of s 60 of the CAT Act. Although she acknowledged that the plaintiff was not legally qualified, she ultimately determined that his conduct in commencing multiple proceedings, making amendments, and joining parties unnecessarily disadvantaged the other parties to the proceedings and merited an award of costs. For the reasons given above in relation to the Appeal Panel, the Senior Member was not bound in the exercise of her discretion to arrive at the same determination reached in Mrjana. I discuss the Senior Member’s decision in greater detail when I discuss procedural fairness. However for these reasons, in relation to this ground of review, it is my view the plaintiff has raised no questions of law which are more than merely arguable.

21. [73]

    At the hearing of these proceedings, the plaintiff stated that he was denied procedural fairness in relation to the Senior Member’s decision as to costs on 14 January 2019 because written submissions on costs were not ordered and his oral submissions on costs were not considered (T 17.48-50). When asked in this Court what input he had been given into costs, Mr Wilson stated, “Zero” (T 18.12). He said that if all of his oral and written submissions had been considered, the Senior Member would have reached a different outcome.

22. [74]

    As stated earlier, these proceedings are an appeal from the Appeal Panel’s decision, not that of the Senior Member (see Bronze Wing at [10]; Abdel-Messih at [24]). This ground of review must fail. However, I will consider the merits of this ground, as I have already stated that the Senior Member’s decision as to costs is amenable to the judicial review he also seeks.

23. [75]

    Despite the plaintiff’s statement that he was given no input before the Senior Member in relation to her decision on costs, he in fact made numerous submissions to the Senior Member. They are as follows.

24. [76]

    On 9 August 2018, Mr Wilson filed submissions with NCAT opposing costs in relation to the decision of the Senior Member 29 June 2018 (Ex 3). His submissions were headed, “No Special Circumstances or Discretion Not to Be Exercised Assuming Special Circumstances”.

25. [77]

    In his submissions, Mr Wilson addressed the considerations to which the Tribunal may have regard under s 60(3)(a)-(g) of the CAT Act when determining whether special circumstances warrant an award of costs. As to s 60(3)(a), he submitted that he acted reasonably in the conduct of the proceedings, having regard to what he understood to be his legal rights: see Mrjana. He further submitted that he did not unreasonably prolong the time to complete the proceedings, and that his claim had a tenable basis in fact or law (ss 60(3)(b)-(c)).

26. [78]

    As to s 60(3)(d), he submitted that the issue involved in the case, namely whether the Tribunal had jurisdiction, was not complex. He further submitted that the proceedings were not frivolous, vexatious or otherwise misconceived or lacking in substance (s 60(3)(e)). As to whether or not a party has refused or failed to comply with the duty to facilitate the just, quick and cheap resolution of the real issues in the proceedings under s 60(3)(f), Mr Wilson submitted that the respondents had breached the Tribunal’s timetable by not serving submissions in date, and by “conceal[ing]” their knowledge of that the Tribunal did not have jurisdiction at the first hearing. Finally, as to s 60(3)(g), he submitted that “a self-represented person seeking to pursue [his] rights of appeal could not be said to be unreasonable”: see Mrjana.

27. [79]

    At the end of his submissions, Mr Wilson responded, paragraph by paragraph, to Mr Brisbane’s submissions.

28. [80]

    In addition to his written submissions, Mr Wilson filed a statutory declaration with NCAT dated 30 August 2018. In that document, he set out detailed submissions as to why he should not be ordered to pay costs, including a list of objections to specific costs of sought by Chan & Naylor, with paragraph references to the affidavit of its solicitor, Jonathan Hunt (CB 153-155).

29. [81]

    Attached as an annexure to the statutory declaration of 30 August 2018, Mr Wilson included an email to NCAT dated 12 August 2018. In the email, he wrote that the District Court order of 8 September 2017 to transfer the proceedings to NCAT was null and void, as NCAT lacked jurisdiction to hear the proceedings. As such, the proceedings were still in the jurisdiction of the District Court. Mr Wilson then continued (CB 156):

30. [82]

    The reasonable offer to which Mr Wilson referred was attached in an email dated 9 August 2018 to Jonathan Hunt, Craig Hyde and Wendy Bure, solicitors for the respondents. In that email, Mr Wilson stated (CB 157):

31. [83]

    On 14 January 2019, Mr Wilson sent an email to NCAT and addressed to the Senior Member and Registrar. The email reads:

32. [84]

    Attached to the email was another, addressed to the Senior Member and dated 10 January 2019. That email reads:

33. [85]

    In her decision under “Submissions and evidence”, the Senior Member summarised the costs applications of Chan & Naylor and Mr Brisbane. She then stated at [5]:

34. [86]

    The Senior Member continued at [7]:

35. [87]

    The Senior Member determined to dispense with a hearing. Her reasons for doing so are set out at [14]-[15] as follows:

36. [88]

    The Senior Member then addressed Mr Wilson’s submission that the respondents rejected his reasonable offer(s) at [71]-[72] as follows:

37. [89]

    The question of procedural fairness was considered in Nominal Defendant v Saleh [2011] NSWCA 16, where McColl JA (with Beazley and Giles JJA agreeing) held at [17]:

38. [90]

    More recently in Attia v Health Care Complaints Commission [2017] NSWSC 1066, Walton J stated at [174]:

39. [91]

    At the hearing in this Court, after Mr Wilson was referred to his written submissions and to the references made to them by the Senior Member in her decision, Mr Wilson conceded that he “suppose[d] it was an opportunity” to be heard (T 20.48). Nevertheless, he argued that the Senior Member at least had not properly considered his submissions nor provided adequate reasons for dismissing his application.

40. [92]

    Mr Wilson submitted that the Senior Member’s alleged failure to consider his submissions was in breach of s 50 of the CAT Act. I do not agree. Mr Wilson had ample opportunity to provide written submissions before the Senior Member. At the date of her decision, the Senior Member had before her his detailed submissions, statutory declaration and multiple emails. She was satisfied that the issue of costs could be adequately determined in the absence of the parties by considering their written submissions and documents: s 50(2) CAT Act. Mr Wilson was not entitled to a hearing under the CAT Act in respect of those proceedings.

41. [93]

    In her decision, the Senior Member addressed the substance of Mr Wilson’s submissions as to costs. She acknowledged that the proceedings had involved a long and unfortunate history of transfer between jurisdictions. However, in determining whether special circumstances existed to warrant an award of costs, she acknowledged that it was Mr Wilson who was in part responsible the fact that the proceedings had been unreasonably prolonged. Moreover, she was not willing to determine that the respondents’ rejection of Mr Wilson’s offer for compromise was unreasonable, as the proceedings have yet to be finally determined in the Local Court. The Senior Member stated that Mr Wilson’s offer of 9 August 2018, which he sent to the respondents after her decision of 29 June 2018, was not relevant to a determination of costs in relation to that decision.

42. [94]

    For these reasons, Mr Wilson has failed to demonstrate that he was denied procedural fairness. It is my view that this question of law is not more than merely arguable.

43. [95]

    Mr Wilson submitted that the Senior Member and Appeal Panel failed to provide adequate reasons for their decisions to dismiss his applications as to costs.

44. [96]

    In considering whether to grant leave to appeal, I adopt the approach that this Court should not read the Senior Member’s or the Appeal Panel’s reasons “with an eye finely tuned for error”: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [67] per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291.

45. [97]

    I also bear in mind that what constitutes sufficient reasons for a Senior Member and Appeal Panel differs from that of a court. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; (2013) 303 ALR 64 (“Wingfoot”), the High Court stated at [54]-[56]:

46. [98]

    While Wingfoot refers to a medical panel under the Accident Compensation Act 1985 (Vic), the standard for written reasons set out at [54]-[56] above apply equally to the Senior Member and Appeal Panel under the CAT Act in this case.

47. [99]

    I have already outlined in detail the decisions of the Appeal Panel and Senior Member as to costs in my consideration of the previous two grounds. In its decision, the Appeal Panel canvassed the conduct of the Mr Wilson, Chan & Naylor and Mr Brisbane in the long history of the proceedings. When considering the relevant factors under s 60 of the CAT Act, the Appeal Panel concluded that Mr Wilson’s decision to appeal in circumstances where the Tribunal lacked jurisdiction unreasonably prolonged the time taken to complete the proceedings against Chan & Naylor and Mr Brisbane, and that the appeal lacked substance. As such, it found that special circumstances existed such as to merit an award of costs.

48. [100]

    In her decision as to costs, the Senior Member also detailed the conduct of the parties and the considerations under s 60 of the CAT Act. She provided detailed reasons as to why she was not persuaded by Mr Wilson’s submissions, and why she did not determine that his offers of compromise were not unreasonably rejected by the first defendants.

49. [101]

    In order to meet the legal standard outlined in Wingfoot at [55], the Appeal Panel and Senior Member’s reasons were required to explain their actual path of reasoning in sufficient detail to enable a court to see whether their opinions involved an error of law. It is my view, for the reasons given, that both the Appeal Panel and Senior Member have met this standard. This ground of appeal is therefore not more than merely arguable.

50. [102]

    I have considered the questions of law outlined in the plaintiff’s amended summons. In my view, none of them are more than merely arguable. In these circumstances, the plaintiff has failed to demonstrate that these proceedings concern an issue of principle or a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable, that the primary decision was in error.

51. [103]

    Having taken these matters into account, in the exercise of my discretion, I refuse to grant leave to appeal.

Judicial review

1. [104]

   In addition to his application to appeal, Mr Wilson seeks judicial review in relation to both the decision of the Appeal Panel dated 20 December 2018 and the Senior Member on 14 January 2019 on the same grounds set out at [54] of this judgment.

2. [105]

   This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal, including decisions of both the Appeal Panel and Senior Member of NCAT, if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act.

3. [106]

   Proceedings for judicial review of a decision must be commenced within three months of the decision: see UCPR 59.10(1). The plaintiff’s summons was filed on 15 March 2019. As such, he commenced his proceedings in relation to both decisions in time.

4. [107]

   Section 34 of the CAT Act contemplates certain circumstances in which the Supreme Court may refuse to conduct a judicial review of a Tribunal decision. Section 34 relevantly reads:

5. [108]

   As to the decision of the Appeal Panel, counsel for Chan & Naylor submitted that s 34(1)(b) permits this Court to refuse to conduct a judicial review of the Appeal Panel’s decision (T 31.1-4). However, for the reasons I have given in relation to the plaintiff’s appeal under s 83 of the CAT Act, the Appeal Panel is not an external decision-maker, nor did it conduct an external appeal. As such, the Appeal Panel’s decision is not caught by s 34(1)(b) of the CAT Act. Nevertheless, for the reasons I have given in relation to the plaintiff’s appeal, it is my view that the Appeal Panel’s decision was not based on an error of law on the face of the record of the proceedings.

6. [109]

   Section 34(2)(b) states that nothing in that section limits the power of this Court to refuse to conduct a judicial review. In the exercise of my discretion, I refuse to conduct a judicial review in relation to the decision of the Appeal Panel pursuant to s 69 of the Supreme Court Act.

7. [110]

   As to the decision of the Senior Member, s 34(1)(c) states that the Supreme Court may refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal could be lodged against the decision. The plaintiff could have lodged an internal appeal of the Senior Member’s 14 January 2019 decision, but did not. Moreover, for the reasons I have given in relation to the plaintiff’s appeal, is my view that the Senior Member’s costs decision was not based on an error of law on the face of the record of the proceedings. Therefore, in the exercise of my discretion, I refuse the plaintiff’s application for judicial review of the decision of the Senior Member as to costs pursuant to s 69 of the Supreme Court Act.

Result

1. [111]

   The plaintiff’s applications for an extension of time are refused. The plaintiff’s applications for leave to appeal the decisions of the Appeal Panel dated 20 December 2018 and of the Senior Member dated 14 January 2019 pursuant to s 83 of the CAT Act fails. The plaintiff’s application for judicial review pursuant to s 69 of the Supreme Court Act also fails. The result is that the plaintiff’s amended summonses filed 24 April 2019 are dismissed.

Costs

1. [112]

   Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first defendants’ costs on an ordinary basis.

   1. (1)

      The plaintiff’s applications for an extension of time to file an appeal in relation to both appeals are refused.

   2. (2)

      The plaintiff’s applications for judicial review in relation to both decisions are dismissed.

   3. (3)

      The amended summonses in relation to both proceedings are dismissed.

   4. (4)

      The plaintiff is to pay the first defendants’ costs in both proceedings on an ordinary basis.