Eliezer v The Council of St Andrew’s Cathedral School

PAYNE JA: I agree with Stevenson J.

WHITE JA: I agree with Stevenson J.

STEVENSON J: The applicants are the parents of a child who attended St Andrew’s Cathedral School in Sydney between August 2014 and August 2016.

The respondent is the Council of the School or, perhaps more accurately, the members of that Council from time to time. There is no issue as to the Council's status or its entitlement to commence the proceedings that have led to the matter now before this Court. I will refer to the respondent as "the School".

By summons filed on 19 February 2021 the applicants seek orders in the nature of certiorari quashing, on the bases of jurisdictional error and errors of law on the face of the record, orders made in the:

On 6 April 2021, the applicants circulated a proposed Amended Summons which included particulars of the asserted jurisdictional errors and errors of law on the face of the record. Dr O’Shea, who appeared for the School, objected to the applicants having leave to rely on the Amended Summons on the basis it was served outside the three-month period prescribed by the rules. [3] As the proposed Amended Summons was served only a day or two outside that three-month period, and as Dr O’Shea did not suggest that the School had been thereby prejudiced, the Court granted the applicants leave to file the Amended Summons in Court. Argument proceeded on the basis of the Amended Summons.

The applicants' case was conducted in person by the first applicant, Ms Supriya Eliezer. The second applicant, Mr Joseph Eliezer has signified his consent in writing to that course. I will refer simply to Ms Eliezer, unless the context otherwise requires.

By Notice of Motion filed on 5 July 2021, three business days before the hearing date of 9 July 2021, the applicants sought:

The Court refused to make the orders sought and on 9 July 2021 dismissed the Notice of Motion with costs.

These are the reasons of the Court for taking that course.

In an email that Ms Eliezer sent to the Registrar on 5 July 2021, Ms Eliezer gave these reasons for seeking the vacation of the hearing:

The paragraphs of the applicants’ Summary of Argument to which Ms Eliezer referred contained allegations as to the procedure adopted in the District Court in the course of the applicants’ appeal against the orders of the Local Court. As I set out below, [4] for the purposes of dealing with the Amended Summons, and assuming they could be relevant, I am prepared to assume in the applicants’ favour the truth of these matters. Accordingly, there was no utility in granting an adjournment to enable the applicants to prove the matters asserted.

As to the application to issue a subpoena, as the presiding judge explained to Ms Eliezer on 9 July 2021, on an application for judicial review the Court may only consider the material that was before the judicial officer whose decision is being reviewed, other than in exceptional circumstances. Ms Eliezer did not identify any circumstance giving rise to the need to permit additional evidence to be tendered on this application.

In any event, Ms Eliezer offered no explanation as to why the applicants had not earlier sought to issue the subpoena. Further, the granting of leave would inevitably have involved vacating the hearing date. In those circumstances, the Court was not persuaded that leave should be granted.

The declarations sought in the paragraph of the Notice of Motion referred to at [8(c)] above raised new claims. Those claims could not properly be raised by notice of motion in the applications for judicial review of the decisions of the District Court and the Local Court. A notice of motion cannot be used to seek relief outside the scope of the proceeding in which the notice of motion is filed [5] . In any event, the School was successful in the proceedings in the District Court and the Local Court so they could not be characterised as vexatious or an abuse of process.

On 17 May 2019, the School commenced proceedings against the applicants in the Small Claims Division of the Local Court seeking to recover the fees and ancillary amounts to which I have referred.

The Local Court sitting in its Small Claims Division has jurisdiction to hear any money claim that does not exceed the jurisdictional limit of $20,000.00. [6]

Thus, plainly, the Local Court had jurisdiction to hear the School’s claim.

In proceedings in the Small Claims Division of the Local Court:

As Leeming JA said in Tonab Investments Pty Ltd v Optima Developments Pty Ltd: [11]

On 17 June 2019 Ms Eliezer, on behalf of the applicants as defendants below, filed a Defence:

The Court directed that evidence be filed and served by 2 October 2019.

On 2 October 2019 Ms Eliezer filed and served an affidavit made by her that day in which she deposed to:

On 3 October 2019, the School served a statement by its then Relationships Officer, Ms Aileen Soria. The statement was served one day late, a matter that Ms Eliezer complained about before the Assessor, [13] and evidently one reason she sought leave to issue a subpoena to the School. The statement annexed the documents on which the School relied, being an “Acceptance of Enrolment”, invoices, a statement of account and letters of demand.

The matter was heard by Assessor Keir on 27 November 2019.

There having been no order for cross-examination, the matter was dealt with “on the statements”. [14] The Assessor heard submissions from Ms Eliezer and the solicitor for the School, following which the Assessor delivered an ex tempore judgment, to which I will return, in favour of the School.

An appeal from a decision of the Local Court sitting in its Small Claims Division to the District Court is available as of right, but only on the ground of “lack of jurisdiction or denial of procedural fairness”. [15]

The applicants filed an Amended Summons Commencing an Appeal in the District Court seeking to invoke both of the available grounds of appeal and alleging that the Assessor:

The appeal was heard by Hatzistergos DCJ on 19 November 2020.

His Honour delivered a 12 page judgment, evidently ex tempore, dismissing the appeal with costs. I will return to the judgment below.

As the decision of the District Court was to dismiss the appeal from the Local Court, the District Court decision is the operative decision, [16] I turn to it first.

There is no right to appeal to this Court from a decision of the District Court dismissing an appeal to that Court from the Local Court. [17]

However, an unsuccessful party to such an appeal can invoke this Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) to seek to impugn such a decision on the basis of either jurisdictional error or error of law on the face of the record. [18]

In the Amended Summons, Ms Eliezer particularised the applicants’ contentions as to both jurisdictional error and error of law on the face of the record in the same terms.

Thus, Ms Eliezer contended that the trial judge made jurisdictional error and an error of law on the face of the record by:

I shall deal with each of these grounds in turn.

This ground of review appears to proceed on a misapprehension by Ms Eliezer that an appeal was available to the applicants from the Local Court to the District Court on the grounds of jurisdictional error, as opposed to lack of jurisdiction.

This is not correct. An appeal was only available, relevantly, for “lack of jurisdiction”. [20]

Ms Eliezer’s misapprehension is revealed in this submission that she made to the District Court:

Similarly, before this Court, Ms Eliezer submitted that the trial judge committed “error of law on the face of the record/jurisdictional error” because:

This was a correct recitation of the view that the District Court judge expressed.

His Honour was correct.

Ms Eliezer has elided the concepts of:

The District Court judge recognised the distinction when he said, correctly in my opinion:

The District Court judge was not thereby proceeding under any “misapprehension” about the distinction between lack of jurisdiction and jurisdictional error. His Honour recognised the distinction. Unfortunately, it is Ms Eliezer who has misapprehended the position.

As I have said, there is no doubt that the Local Court had, by reason of s 30(2) of the Local Court Act, jurisdiction to hear the School’s claim against the applicants.

The Assessor correctly pointed this out to Ms Eliezer: [23]

This ground of review fails.

Ms Eliezer’s written and oral submissions did not, directly, address this ground of review.

Ms Eliezer submitted that:

Assuming that these matters are correct, the question of whether the trial judge made a “bona fide assessment of the grounds of appeal” must also be considered by reference to his reasons.

Although his Honour’s judgment was evidently given ex tempore, and was succinct, it was comprehensive. The reasons appear to me to demonstrate that the trial judge gave careful attention to the grounds of appeal and to the submissions Ms Eliezer made in support of those grounds of appeal. The trial judge dealt with all those submissions in a logical and systematic way.

I see no basis on which it could be concluded that the District Court judge did not give the grounds of appeal bona fide consideration.

This ground of review also fails.

In relation to this ground, Ms Eliezer submitted:

Ms Eliezer then cited a number of authorities concerning the duty to give reasons, including Hunter v Transport Accident Commission, [24] and Singh v Minister for Immigration and Multicultural Affairs. [25]

Recently, the President reviewed the relevant principles in New South Wales Land and Housing Corporation v Orr. [26]

The President drew attention [27] to the observation of Samuels JA in Strbak v Newton [28] which are apt here:

The District Court judge’s reasons, although succinct, extend over 11 pages. His Honour set out the School’s claim, the matters raised by the applicants by way of defence to that claim and the matters to which Ms Eliezer deposed in her supporting affidavit. His Honour then dealt with Ms Eliezer’s submissions concerning jurisdiction and concluded, essentially for the reasons I have set out above, that none of the matters raised by Ms Eliezer bespoke a lack of jurisdiction of the Local Court. His Honour then dealt with each of the grounds on which Ms Eliezer contended that the applicants had been denied procedural fairness in the Local Court and set out his reasons for rejecting those contentions.

His Honour did give a “basic explanation of the fundamental reasons” he reached his conclusions.

This ground of review also fails.

At the conclusion of his reasons, his Honour announced that the appeal would be dismissed with costs.

His Honour did not invite submissions as to what costs order should be made. The School accepted in this Court that it had made no oral or written submissions to his Honour on costs.

However, costs follow the event unless it appears to the Court that some other order should be made, [29] and as the appeal was to be dismissed I cannot see that his Honour erred in ordering that it be dismissed with costs.

Ms Eliezer did not address this ground in her written or oral submissions.

This ground of review also fails.

No jurisdictional error or error on the face of the record has been established in relation to the decision in the District Court. The applicants’ challenge to the orders of the District Court fails.

The applicants also seek to challenge the decision of the Local Court on the basis of jurisdictional error and error of law on the face of the record.

To the extent that the applicants’ challenge in this Court to the decision of the Local Court seeks to agitate the questions the subject of the applicants’ appeal to the District Court, that is lack of jurisdiction and denial of procedural fairness, the decision of the District Court (not having been quashed) created estoppels which bind this Court and prevent it from quashing the decision of the Local Court on those grounds. [30]

To the extent that the applicants’ challenges to the Local Court decision range more widely, the question arises as to whether, as a matter of discretion, they should be entertained.

One matter relevant to the exercise of that discretion is that the challenge is brought out of time. As I have mentioned, proceedings for judicial review must be commenced within three months of the date of the decision, although the court may, at any time, extend time. [31]

The decision of the Local Court was made on 27 November 2019. The period within which the challenge should have been brought expired on 28 February 2020. The applicants’ Summons was filed almost a year later, on 19 February 2021.

Before us, Ms Eliezer explained that the applicants had not earlier sought to challenge the Local Court decision because of their appeal to the District Court and Ms Eliezer’s understanding that “I can file an appeal or judicial review”. [32]

Another matter potentially relevant to the matter of discretion is the fact that the applicants have in the meantime sought to challenge the Local Court decision by appeal to the District Court. That appeal failed, and the applicants’ challenge in this Court to that decision also fails.

The fact that the grounds of appeal to the District Court were limited to lack of jurisdiction and denial of procedural fairness raises the question of whether these matters, alone, provide a basis for this Court, as a matter of discretion, to decline to entertain the application for review. [33]

These matters were not explored before us.

I find it unnecessary to resolve this potentially difficult question because, for the reasons that follow, I have concluded that the applicants have not made out a case for judicial review of the Local Court decision.

In the Amended Summons, the applicants particularised the alleged jurisdictional error by the Local Court as follows:

The applicants particularised the alleged error of law on the face of the record as follows:

The material from the Local Court that the applicants have included in the Court Book comprises:

The “record” of the Local Court included the pleadings, the impugned order [34] and the Assessor’s reasons. [35]

It is arguable that the “record” did not include the transcript of argument before the Assessor as this was not referred to in the reasons of the Assessor, or the Notice of Orders Made whether by being incorporated “as an integral part” [36] of the reasons or orders, or otherwise. However, it is not necessary to decide what is the scope of the record of the Local Court for the purposes of certiorari because, for the reasons that follow, no error of law is revealed even if regard can be had to all of the material from the Local Court included in the Court Book.

I turn to the grounds of review propounded by the applicants.

As particularised at par 1.2a of the Amended Summons, the “jurisdictional facts” that the applicants contend that the Assessor failed to take into account were matters relevant to the applicants’ pleaded case in the Local Court that the School had “failed to substantially perform its contractual obligations and further expressly repudiated the agreement” and which “entitled [the applicants [37] ] to treat the agreement as discharged due to the [School’s] breach”. [38]

An objective jurisdictional fact is one which must exist as a precondition to the engagement of a statutory power. Whether legislation creates a jurisdictional fact of the kind to be objectively ascertained by the Court is a question of statutory construction. [39]

The alleged “jurisdictional facts” comprised, in substance, the alleged facts that:

These matters were not capable of being “jurisdictional facts”.

In addition, as to the allegation of an agreement for part payment of fees, this was not pleaded in the applicants’ Defence and, assuming contrary to my tentative view that it is permissible on this application to look at the transcript, was not referred to by Ms Eliezer in her submissions to the Assessor.

Otherwise, the Assessor did deal with the applicants’ contentions concerning these alleged “jurisdictional facts”.

Thus, the Assessor found:

Ms Eliezer’s submissions were, in effect, that the Assessor reached the wrong conclusion about these matters. But, even if that were so, that is not jurisdictional error, let alone a failure to take into account jurisdictional facts. The Assessor’s decision is not open to review for jurisdictional error merely because it was wrong. [40] Incorrectly deciding something that the decision maker is authorised to decide is an error within jurisdiction. [41]

As set out at par 1.2b of the Amended Summons, the applicants’ contention is, in effect, that the Assessor entered judgment against them despite having notice that the applicants contended they had a “consumer complaint” that could be pursued by counter-claim or set-off and thereby “failed to address the whole of the controversy between the parties”.

The applicants did not plead or otherwise refer to any set-off in their Defence in the Local Court and did not bring a Cross-Claim.

Further, and again assuming it is permissible on this application to look at the transcript of proceedings before the Assessor, this question was raised during argument during which Ms Eliezer said:

Thus, it appears Ms Eliezer’s attention was drawn to the need to make any “compensation claim” separately. Ms Eliezer accepted that: “I will have to do that”.

In any event, the Assessor took these matters into account in her reasons: see [90] above.

Again, Ms Eliezer’s submissions were, in effect, that the Assessor was wrong to conclude that the applicants’ “complaints about the [S]chool” were not “particularly relevant to the issue of payment of fees” and not “necessarily an excuse for not paying school fees to which she is obligated to pay under the contract”.

As I have said, even if this were so, it does not provide a ground for review of the basis of jurisdictional error.

By this ground of review, set out at par 1.2c of the Amended Summons, the applicants in effect allege a denial of procedural fairness by contending that the Assessor:

These complaints are, in effect, those the applicants raised before the District Court as being a denial of procedural fairness. The District Court judge rejected those contentions and as the challenge to the trial judge’s decision has failed, this created estoppels which bind this Court and prevent it from quashing the decision of the Local Court on those grounds [44] .

In any event, and again assuming it is permissible for this purpose to have regard to the transcript before the Assessor, I can see no basis for any of the applicants’ contentions. In my opinion, a fair reading of the transcript shows that the Assessor treated Ms Eliezer courteously and conducted the proceedings neutrally and fairly.

In relation to the service by the School, one day late, of the Statement by its Relationships Officer, the Assessor was particularly patient and could not be seen as taking up the School’s case, or advocating for the School or taking advantage of Ms Eliezer by accepting the School’s evidence.

Thus, the following exchanges took place between the Assessor and Ms Eliezer:

Argument then proceeded without further reference to that question.

This ground of review is not made out.

For these reasons, my conclusion is that the applicants have failed to establish any jurisdictional error on the part of the Local Court.

This ground, which was not developed in Ms Eliezer’s written or oral submissions, appears to proceed on the assumption that it was not open to the Assessor to give judgment against the applicants without first striking out their Defence.

That is a misapprehension on the part of the applicants. What has happened is that the Assessor did not accept that the matters in the applicants’ Defence amounted to a defence to the School’s claim.

That was not an error of law, let alone one on the face of the record.

Again, this ground was not developed by Ms Eliezer.

No doubt the Assessor did decide the School’s case on the balance of probabilities. There is no evidence to suggest the School advanced any evidence that was “false”.

No error of law is established.

This asserted error of law appears to be directed to the evidence adduced by the School from its Relationships Officer, Ms Soria, the point apparently being that Ms Soria was not employed by the School at the date of the contract between the applicants and the School [45] and that the Assessor’s reliance on her evidence was thus somehow misplaced.

Ms Soria’s Statement did no more than annex the business records of the School that I have described. It was not necessary for that purpose that Ms Soria be shown to have been employed by the School at any particular time. In any event, in the Small Claims Division of the Local Court, the rules of evidence do not apply and the Assessor was entitled to inform herself of any relevant matter in any manner she thought fit. [46]

No error of law is established.

For these reasons, my conclusion is that the applicants have failed to establish any error of law on the face of the record on the part of the Local Court.

There is no substance to the applicants’ challenge to the decision of the Local Court.

As I have concluded that the applicants’ challenge to the orders of the District Court fails, and that the applicants’ challenge to the orders of the Local Court also fails, I propose that the Amended Summons be dismissed with costs.

The School has foreshadowed that, in that event, it would seek an order that its costs be specified as a gross sum under s 98(4) of the Civil Procedure Act 2005 (NSW).

As the School only foreshadowed that application on the eve of the hearing, and as Ms Eliezer was not in a position to deal with the question at the hearing, I also propose that Ms Eliezer be directed to file and serve any evidence or submissions (such submissions to be limited to no more than 5 pages) she wishes to make in reply to the School’s submissions on this question within 10 business days. The Court will decide the application on the papers.