Donohoe v Albulario (No 2)

1. [1]

   BASTEN AJ: On 4 February 2025, the Court delivered judgment allowing an appeal from orders made by an appeal panel (the Appeal Panel) of the Civil and Administrative Tribunal (NCAT) and setting those orders aside. The defendants were ordered to pay the plaintiff’s costs in this Court. Following the delivery of that judgment, the defendants sought a certificate under s 6(1) of the Suitors’ Fund Act 1951 (NSW) in respect of the costs of the appeal.

2. [2]

   The orders by this Court were based on the conclusion that the Appeal Panel had erred in law in concluding that an allegation of denial of procedural fairness did not raise a question of law. [1] As a result, the plaintiff’s appeal to the Appeal Panel from a decision of the Tribunal ordering that he pay the defendants an amount of $399,050 (an amount which should have been $389,050) had not been determined. Although the defendants sought to reserve their position as to whether there had been procedural unfairness, thus requiring the matter to go back to the Appeal Panel, there was no basis to deny them a certificate under the Suitors’ Fund Act, if a certificate were available.

3. [3]

   There are three criteria to be satisfied by an applicant for a certificate, namely that:

   1. (1)

      the proceeding was an “appeal”;

   2. (2)

      the appeal was brought from the decision of a “court” to the Supreme Court; and

   3. (3)

      the applicant was unsuccessful on the appeal.

Was there an appeal?

1. [4]

   There is little doubt that the answer to this question should be in the affirmative. The term “appeal” is defined to include “any motion for a new trial and any proceeding in the nature of an appeal”. [2] An appeal is a statutory procedure and the term is clearly intended by the definition to extend to similar procedures seeking to redress error on the part of an inferior court, such as by way of stated case or, as has been accepted in this State, judicial review. [3]

2. [5]

   Section 19(2) of the Supreme Court Act 1970 (NSW) accepts that a proceeding is an appeal for the purposes of that Act if the Act under which it was made describes it as an appeal, but not if not so described. Although that approach is not adopted in the Suitors’ Fund Act, at least where, as in the present case, the statutory source of the right uses the term “appeal”, it would be surprising if this Court were to determine otherwise. However, there is, as noted under the second criterion, a circularity in the understanding of what constitutes an appeal.

3. [6]

   For present purposes, an appeal to this Court from an appeal panel of NCAT has been held to be an appeal for the purposes of the Suitors’ Fund Act and the Court should follow that authority. [4] I accepted this conclusion with respect to NCAT in Council of the Law Society of New South Wales v Bouzanis, [5] though without reasoning. I accept the proceeding in this Court is an appeal for the purposes of s 6(1).

Is the Appeal Panel a court?

1. [7]

   The second criterion is that the appeal be from a “court”. The term “court” is defined to include “such tribunals or other bodies as are prescribed”. [6] There is a clear implication from that definition that court means court, unless regulations expand the class of court.

2. [8]

   The issue of circularity noted above may be seen in the statement of Lord Westbury LC in Attorney-General v Sillem, [7] to the effect that:

3. [9]

   In substance, an appeal refers to a proceeding in the exercise of judicial power, but for a second (or further) stage. By contrast, where the intervention is sought with respect to a body which is not a court, the proceeding is in the original jurisdiction (that is the first occasion for the exercise of the judicial function).

4. [10]

   The constructional difficulty was identified in 1994 by Kirby P in Reid v Sydney City Council. [8] However, it was only addressed after considering earlier cases, including Australian Postal Commission v Dao (No 2). [9] Kirby P accepted that a tribunal exercising a quasi-judicial function could qualify as a court for the purposes of the Suitors’ Fund Act and, in accordance with the predominant authority at that time, should be held to do so.

5. [11]

   In Lou v IAG Ltd t/as NRMA Insurance, [10] Payne JA accepted that judicial review of the decision of a claim’s assessor under the Motor Accidents Compensation Act 1999 (NSW) constituted an appeal from the decision of a “court or tribunal”. The authority of Lou on this point is limited for two reasons. First, the reasoning was not dispositive and, secondly, identifying the definition of “court” as “court or tribunal” elided the constructional choice created by the definition of “court” in the Suitors’ Fund Act.

6. [12]

   Despite that, Lou is another link in a chain of authority which precludes this Court from refusing to treat the Appeal Panel as a “court” for the purposes of the Suitors’ Fund Act. That conclusion is supported by the inference which may be drawn from the lapse of 30 years since the issue was identified in Reid, without the Legislature seeking to amend the Act, or the Executive clarifying the situation by regulations, despite the government having a clear financial interest in doing so if it thought the Courts’ approach to be wrong.

Unsuccessful party

1. [13]

   The third criterion is that the defendants have been unsuccessful on the appeal. That criterion was misunderstood by a plaintiff who was unsuccessful, in Bucca v QBE Insurance (Australia) Ltd. [11] There is no such difficulty in the present case.

Order

1. [14]

   In conclusion, the defendants should have the order they seek, namely: