Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46
• Hearing dates: 27 August 2010
• Decision date: 11 March 2011
• Before: Campbell JA at [1]; Macfarlan JA at [45]; Young J at [46]

Decision

Appeal dismissed with costs.

Execution of the order for possession extended for 21 days after the date of delivery of reasons, writ of possession may issue at the expiration of that period.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEALS- Procedure- Jurisdiction- Appellate jurisdiction of NSW Court of Appeal from District Court- Avenues of appeal from District Court- District Court Act 1973 (NSW) s 127- Meaning of "action"- Statutory appeal to District Court not an "action".
• Legislation Cited: Bankruptcy Act 1966 (Cth), s 66; Children and Young Persons (Care and Protection) Act 1988, s 91; Children (Care and Protection) Act 1987, s 81; Commercial Agents and Private Inquiry Agents Act 1963, s 14; Compensation Court Repeal Act 2002; Consumer Trader and Tenancy Tribunal Act 2001, s 67; Contracts Review Act 1980, s 134B; Corporations Act 2001 (Cth) ss 127, 128; Courts Legislations Further Amendment Act 1995, Sch 1; District Courts Act 1912; District Court Act 1973, ss 4, 9, 44, 46, 47, 48, 51, 127, 128, 132, 133, 139, 142G, 142H, 142N, 199, 201; Fair Trading Act 1987, s 135; Frustrated Contracts Act 1978, s 134A; Interpretation Act 1987, s 35; Local Government Act 1919, s 224; Property (Relationships) Act 1984, s 134; Residential Tenancies Act 1987, s 3; Supreme Court Act 1970, s 48; Victims Compensation Act 1987, s 29
• Cases Cited: Archer v Howell (1992) 7 WAR 33; Baker v The Queen [1975] AC 774; Chand v Lifestyle Homes NSW Pty Ltd [2010] NSWCA 135; Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86; Cook v Head and Arneman [1976] 1 NSWLR 176; CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1; Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45; Dayeian v Davidson [2010] NSWCA 42; Druett v Director General of Community Services [2001] NSWCA 126; Edwards v Sydney Building Group Pty Ltd [2010] NSWCA 185; Eurobrokers Holdings Ltd v Monecor (London) Ltd [2003] 1 BCLC 506; Fraser Credits Pty Ltd v Ostenberg-Olsen [1978] 1 NSWLR 121; Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; Gosford Christian School Ltd v Totonjian (2006) 201 FLR 424; Hudson v South Sydney Municipal Council (1981) 46 LGERA 128; In re Sly, Spink & Co [1911] 2 Ch 430; Jalmoon Pty Ltd v Bow [1997] 2 Qd R 62; Markisic v Commonwealth of Australia [2007] NSWCA 92; 69 NSWLR 737; Radley v Nominal Defendant [1974] 1 NSWLR 135; R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955; Re Duomatic Ltd [1969] 2 Ch 365; Richardson v Landecker (1950) 50 SR (NSW) 250 (FC); Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059; Singh v Singh [2008] NSWSC 386; Spruill v Director General of the Department of Community Services [2001] NSWCA 413; Sullivan v St George Community Housing Ltd [2010] NSWCA 248; Victims Compensation Fund Corp v District Court of New South Wales (1997) 92 A Crim R 224
• Category: Principal judgment
• Parties: Paul Muldoon (Appellant); Church of England Children's Homes Burwood (First Respondent); Consumer Trader and Tenancy Tribunal (Second Respondent)
• Representation: Counsel: Appellant in person; A J Tudehope (First Respondent); Solicitors: Appellant self represented; Cameron Gillingham Boyd (First Respondent)
• File Number(s): CA 2010/105869

Decision under appeal

• Date of Decision: 2010-04-09 00:00:00
• Before: Robison DCJ
• File Number(s): DC 3739/2009

Judgment

1 CAMPBELL JA: I have had the advantage of reading in draft the judgment of Young JA. While I agree with the conclusion at which his Honour has arrived, I would prefer to state my own reasons why the Court of Appeal has no jurisdiction to decide the present purported appeal from the District Court.

Jurisdiction of District Court to Hear Appeal from CTTT

2 The proceedings in the District Court were an appeal from the Consumer, Trader and Tenancy Tribunal (" CTTT ").

3 The District Court had jurisdiction to hear an appeal from the CTTT through the combined operation of section 9(1)(b) District Court Act 1973 (" DC Act ") and section 67(1) Consumer, Trader and Tenancy Tribunal Act 2001 (" CTTT Act "). Section 9(1) DC Act provided:

(1) The Court shall have a civil jurisdiction, consisting of:

(a) its jurisdiction conferred by Part 3, and

(b) the jurisdiction conferred by or under any other Act or law on the Court, not being its jurisdiction referred to in subsection (2)."

(Section 9(2) provides for the Court to have a criminal jurisdiction, which is not presently relevant.)

4 Section 67 CTTT Act, so far as relevant, provided:

"(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the District Court against the decision.

...

(3) After deciding the question the subject of such an appeal, the District Court may, unless it affirms the decision of the Tribunal on the question:

(a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or

(b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal."

5 The statutory right of appeal from the CTTT to the District Court is "jurisdiction conferred by ... any other Act" , within the meaning of section 9(1)(b), not jurisdiction conferred by Part 3 DC Act . That has an important bearing on why there is no appeal to this court from the District Court's decision in such a statutory appeal.

Rights of Appeal from District Court to Court of Appeal

6 Section 127(1) DC Act is the basis upon which the Appellant seeks to establish that the Court of Appeal has jurisdiction to hear the present matter. Section 127 is found in Part 3 Division 7 of the DC Act , which runs from sections 125 to 129. That Division is headed "Actions: new trial and appeal" . Section 127(1) provides:

"A party who is dissatisfied with a Judge's or a Judicial Registrar's judgment or order in an action may appeal to the Supreme Court."

Section 48 Supreme Court Act 1970 allocates such appeals to the Court of Appeal.

7 Whether the Court of Appeal has jurisdiction to hear the present appeal thus depends upon whether the decision against which the appeal is sought to be brought is a "judgment or order in an action" .

8 Various previous cases have held that a proceeding in a District Court pursuant to a jurisdiction conferred by a statute on a District Court to hear an appeal from some other court, tribunal or administrative decision-maker is not an "action" . Statutory appeals to a District Court that have been held not to be an "action" include:

- an appeal pursuant to section 14 Commercial Agents and Private Inquiry Agents Act 1963 against a decision of a Court of Petty Sessions to dismiss an application for a commercial agent's licence ( Cook v Head and Arneman [1976] 1 NSWLR 176 at 180 per Glass JA, 185-187 per Mahoney JA, with both of whom Mofffit P agreed generally).

- an appeal to the District Court pursuant to section 81 Children (Care and Protection) Act 1987 against a decision of the Children's Court ( Druett v Director-General of Community Services [2001] NSWCA 126).

- an appeal to the District Court pursuant to section 91 Children and Young Persons (Care and Protection) Act 1998 ( Spruill v Director-General of the Department of Community Services [2001] NSWCA 413 at [24]).

- an appeal to the District Court pursuant to section 224(3)(b) Local Government Act 1919 against a council's service of a notice of intention to take over a road left in a subdivision of private lands ( Hudson v South Sydney Municipal Council (1981) 46 LGERA 128).

- an appeal to the District Court pursuant to section 29 Victims Compensation Act 1987 concerning the amount of compensation awarded by the Victims Compensation Tribunal ( Victims Compensation Fund Corp v District Court of New South Wales (1997) 92 A Crim R 224). (That decision remains correct even when one recognises that Cole JA was mistaken in thinking that such an appeal fell within the special civil jurisdiction of the District Court - Druett v Director-General at [13] per Hodgson JA, with whom Giles JA and Ipp AJA agreed.)

9 Those cases are not necessarily determinative of the present case. The provisions that govern the jurisdiction of a District Court have altered significantly over the years, as have the provisions permitting an appeal to the Court of Appeal from a District Court. The District Court of New South Wales that now exists was created by section 8 DC Act when that Act came into operation on 1 July 1973, and is a different court to the various District Courts that operated under the District Courts Act 1912. Thus, decisions about what constituted an "action" in the courts that operated under the 1912 legislation cannot be assumed to be applicable under the present legislation. Even since the DC Act came into operation, the types of proceeding that the District Court has jurisdiction to hear have altered, and the terms of the section creating a right of appeal to the Court of Appeal from the District Court have altered. At one time the right of appeal arose under section 128 (amended significantly after its initial enactment, then replaced so that the present section 128 refers to the power of the District Court to stay proceeding on appeal to the Supreme Court), which in all its manifestations used language quite different to the present section 127.

10 In Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Gleeson CJ (with whom Samuels and Priestley JJA and Hope AJA agreed) and Kirby P set out the history of the changes to the right of appeal from the District Court to the Court of Appeal up to 1989. Each version of the former section 128 contained a statement (absent from the present section 127) of the remedies that the Court of Appeal could grant upon an appeal. That statement of available remedies in the former section 128 entered into the reasoning of this Court that no appeal lay to the Court of Appeal from certain decisions of the District Court (eg Fraser Credits Pty Ltd v Ostenberg-Olsen [1978] 1 NSWLR 121 at 123, upheld by Clutha Developments v Barry ). The present version of section 127 was introduced in to the legislation by Schedule 1 [10] Courts Legislation Further Amendment Act 1995 , which entirely replaced the content of the former section 128, and commenced on 8 March 1996.

11 When there have been all these legislative changes, it may well be a useful rule of thumb that a statutory appeal to the District Court is not an "action" , but the decision in the present case must depend upon considering the particular legislation that creates the statutory appeal from the CTTT that is in question, and the provisions of the DC Act at the time as at which one is enquiring whether the statutory appeal in question is an "action" .

Variety of Rights of Appeal from District Court

12 Many types of litigation can occur in the District Court in relation to which either no right of appeal to the Court of Appeal exists at all, or the right of appeal does not arise under section 127.

13 There can be litigation in the District Court from which no appeal lies under section 127 because that litigation is not an "action" , as defined by section 4(1) DC Act .

14 Section 4(1) DC Act provides:

"(1) In this Act, except in so far as the context or subject matter otherwise indicates or requires:

action means action in the Court, but does not include any proceedings under Division 8 of Part 3 or under Part 4.

15 The first type of litigation that is excluded by section 4(1) from being an "action" is litigation under Division 8 of Part 3 DC Act . Division 8 runs from sections 132 to 142F inclusive. That Division is headed "Miscellaneous jurisdiction" . Subdivision 1 of Division 8 is headed "General" . It consists of a single section, section 132, which provides:

"Subject to this Act and the rules, nothing in Divisions 2 to 7 (inclusive) applies to or in respect of any proceedings under this Division."

16 Because section 127 is in Part 3 Division 7 DC Act , one effect of section 132 is to underline that the right of appeal under section 127 does not, of its own force, apply to the type of proceedings that appear in Division 8.

17 Subdivision 2 of Division 8 is headed "Possession of land, equity and other proceedings" . That subdivision confers on the District Court jurisdiction concerning various topics that are of considerable practical importance. Subdivision 2 confers the Court's jurisdiction in proceedings for possession of land (section 133), its powers under the Frustrated Contracts Act 1978 (section 134A), the Contracts Review Act 1980 (section 134B), and its powers under the Fair Trading Act 1987 (section 135). The subdivision also confers the Court's limited jurisdiction in equity proceedings (as opposed to its power to grant ancillary equitable relief in an action, under section 46), and its authority to exercise statutory powers concerning testators' family provision or under the Property (Relationships) Act 1984 (section 134). A separate provision is made for a right of appeal concerning those topics, by section 139:

"Division 7 applies to and in respect of proceedings under this Subdivision in the same way as if they were an action."

18 The effect of section 139 is to confer a right of appeal to the Court of Appeal concerning the types of litigation that are listed in Subdivision 2, on the same terms as section 127 grants a right of appeal to the Court of Appeal concerning "actions" , but to make clear that none of the litigation that falls under Subdivision 2 is regarded as being an "action" .

19 Subdivision 3 of Part 3 Division 8 DC Act confers on the District Court a limited jurisdiction to grant temporary injunctions. No provision of DC Act or the Supreme Court Act 1970 creates a right of appeal from such a decision of the District Court.

20 It might in some circumstances (I suspect limited circumstances) be possible eventually to question on appeal a decision to grant or refuse a temporary injunction, under the principle whereby on appeal from a final order an appellate court can correct any interlocutory order which affected the final result: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 483, [6]. Apart from that, the only control on the District Court's exercise of its power to grant temporary injunctions would be by an order in the nature of prerogative relief, if the departure from principle involved in any particular grant or refusal of interlocutory relief was so great that the District Court had exceeded its jurisdiction or wrongly failed to exercise its jurisdiction or possibly for error of law on the face of the record.

21 Subdivision 4 is the last of the Subdivisions of Part 3 Division 8 DC Act . It confers on the District Court its "special civil jurisdiction" , which section 142B identifies as "the same civil jurisdiction as each Court of Quarter Sessions had immediately before 1 July 1973" . No specific provision is made for a right of appeal concerning that jurisdiction: Victims Compensation Fund Corp v District Court of New South Wales .

22 The other Part of DC Act under which proceedings are excluded from the definition of "action" , Part 4, is one of the sources of the criminal jurisdiction on the District Court. It has no bearing on the present case. In any event it contains no provision relating to appeals. (Other legislation creates certain rights of appeal to the Court of Criminal Appeal from the District Court's exercise of its criminal jurisdiction.)

23 The District Court also has jurisdiction that is regulated under Part 3 Division 8A DC Act , referred to as the Court's "residual jurisdiction" . "Residual jurisdiction" is defined by section 142G as "the jurisdiction conferred on the District Court by the operation of the Compensation Court Repeal Act 2002 ". The Compensation Court Repeal Act 2002 abolished the Compensation Court, and transferred one part of its jurisdiction in pending proceedings to the Workers Compensation Commission, and another part of that jurisdiction to the District Court. The jurisdiction that the District Court was exercising in the present case was not part of its "residual jurisdiction" .

24 However, it is relevant that section 142H DC Act specifically excludes Division 7 (the Division in which section 127 lies) from applying to or in respect of any proceedings under Division 8A. (Section 142H applies "subject to this Act and the rules" , but nothing in the Act or Rules has the effect of making Division 7 applicable to proceedings under Division 8A.) A special provision concerning appeals in proceedings under Division 8A is found in section 142N DC Act , which provides:

"(1) If a party to any proceedings before the Court in its residual jurisdiction is aggrieved by an award of the Court in point of law or on a question as to the admission or rejection of evidence, that party may appeal to the Court of Appeal."

25 The District Court has certain powers under section 199 DC Act to deal with contempt committed in the face of the Court or in the hearing of the Court. Section 201 creates a right of appeal to the Supreme Court concerning any such decision of the District Court.

What is an "action" ?

26 The definition of "action" in DC Act is poorly drafted, in so far as it itself contains the word "action" . " Action " is a word whose meaning can change depending on the context in which it is used. For example, though it has been said that its "normal and generally accepted sense" is "proceedings in which a verdict is the appropriate termination" ( Radley v Nominal Defendant [1974] 1 NSWLR 135 at 139 per Hardie JA), it has also been recognised that "' action', according to its ordinary meaning, may have a wide scope . " ( Cook v Head at 185 per Mahoney JA), and the statutory stay of "an action commenced by a person who subsequently becomes a bankrupt" , pursuant to section 66(2) Bankruptcy Act 1966 (Cth) has been held to extend to litigation seeking prerogative relief ( Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45).

27 Consideration of the context in which it is used in the DC Act shows that the meaning of "action" in that Act does not extend to an appeal under section 67 CTTT Act .

28 One indication that DC Act uses "action" in a narrow sense is that the various types of proceeding that the definition of "action" in section 4(1) DC Act excludes include many types of litigation that could in other contexts be referred to as an "action" , in the ordinary sense of the term. Another is that the creation of various specific rights of appeal by sections 139, 142N and 201 would be unnecessary if "action" had a broad meaning.

29 A further indication arises from the structure of the DC Act , and the headings to the various constituent Parts in to which it is subdivided.

30 Part 3 DC Act is headed "The civil jurisdiction of the Court" . Division 1 of Part 3 is of no present relevance (it makes provision for the appointment of various officers to the court, and for regulating the places at which the Court sits).

31 Division 2 of Part 3 DC Act runs from section 44 to section 51 inclusive. It is headed "Actions: jurisdiction" . Subdivision 1 of that Division runs from section 44 to 48 and is headed "General jurisdiction in relation to actions" . The Interpretation Act 1987 provides, in section 35(1):

"Headings to provisions of an Act or instrument, being headings to:

(a) Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, or

(b) Schedules to the Act or instrument,

shall be taken to be part of the Act or instrument."

32 Thus, the headings of Part 3, Division 2 and Subdivision 1 of Division 2 DC Act all assist in concluding that an "action" , within the meaning of the DC Act , is the type of litigation in relation to which jurisdiction arises under Part 3 Division 2 DC Act .

33 Section 44(1) provides:

"Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions:

(a) any action of a kind:

(i) which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court, and

(ii) in which the amount (if any) claimed does not exceed the Court's jurisdictional limit, whether on a balance of account or after an admitted set-off or otherwise,

other than an action referred to in paragraph (d) or (e),

(b) (Repealed)

(c) any action brought to recover an amount not exceeding $20,000, which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of the distributive share under an intestacy or of a legacy under a will,

(d) any motor accident claim, irrespective of the amount claimed,

(d1) any work injury damages claim, irrespective of the amount claimed,

(e) any proceedings transferred to the Court under section 146(1) of the Civil Procedure Act 2005 , irrespective of the amount (if any) claimed in those proceedings."

34 Section 45 has been repealed. Section 46 confers power on the District Court "in any action" to grant an injunction, and exercise certain incidental powers concerning the granting of an injunction. However, because those powers can only be exercised "in an action" section 46 does not expand the meaning of "action" . Section 47 (conferring extraterritorial jurisdiction) and section 48 (imposing certain limits on jurisdiction) are each dependent upon their subject matter being "an action" , and so cannot expand the meaning of that expression.

35 Sections 49 and 50 have been repealed.

36 Section 51 expands the jurisdiction of the court in certain circumstances where parties consent, but that section applies only "to an action or cross claim" , and so likewise cannot expand the meaning of "action" .

37 Section 44 does not result in an appeal to the District Court under section 67 CTTT Act being an "action" within the meaning of DC Act , because an appeal under section 67 is not an action which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court. That is because there is nothing in the CTTT Act , or within the legislation regulating the Supreme Court, which enables such an appeal to be brought to the Supreme Court at all. Thus, such an appeal does not fall within section 44(1)(a). Nor, manifestly, does it fall within any of section 44(1)(c)-(e). In those circumstances, it is not an "action" within the meaning of section 127 DC Act .

Dayeian v Davidson

38 At [65] Young JA refers to a case when "this court did decide an appeal when its attention was not drawn to the precise wording of s 127" , but tactfully refrains from identifying it. It is preferable, for the proper operation of the system of precedent, that it be identified. The case in question was Dayeian v Davidson [2010] NSWCA 42, a decision in which I wrote a judgment with which Basten and Macfarlan JJA agreed. Importantly, Dayeian was a case where the jurisdiction of the Court of Appeal was assumed, not decided.

39 Reasons for judgment are not authority for a matter that has been assumed, rather than actually decided, in the course of those reasons for judgment: Baker v The Queen [1975] AC 774 at 788; Archer v Howell (1992) 7 WAR 33 at 46; Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059 at [32]-[33]; R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955 at [20]-[25], [33]-[39], 962-963, 965-966; Markisic v Commonwealth of Australia [2007] NSWCA 92; 69 NSWLR 737 at [56].

40 In CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [13] Gleeson CJ, Gummow and Heydon JJ said:

"... where a proposition of law is incorporated into the reasoning of a particular court, that proposition, even if it forms part of the ratio decidendi, is not binding on later courts if the particular court merely assumed its correctness without argument. '[T]he presidents [sic], ... sub silentio without argument, are of no moment.' R v Warner (1661) 1 Keb 66 at 67 [83 ER 814 at 815]."

By a footnote to the first sentence just quoted, their Honours added:

" Baker v The Queen [1975] AC 774 at 787-789 per Lords Diplock, Simon of Glaisdale and Cross of Chelsea and Sir Thaddeus McCarthy (holding the Court of Appeal for Jamaica not bound by a Privy Council decision in which 'the Board were doing no more than assuming for the purpose of disposing of the particular case, and without any further consideration on their own part, that the proposition of law relevant to the issue of fact in dispute between the parties to the appeal had been formulated correctly by counsel for both parties in agreement with one another'). See also National Enterprises Ltd v Racal Communications Ltd [1975] Ch 397 at 405-406 per Russell LJ; at 407 per Cairns LJ; at 408 per Sir John Pennycuick; Barrs v Bethell [1982] Ch 294 at 308 per Warner J; In re Hetherington [1990] Ch 1 at 10 per Sir Nicolas Browne-Wilkinson V-C".

41 Thus, Dayeian v Davidson provides no authority for this Court having jurisdiction to hear and determine an appeal from a decision of the District Court that decided a statutory appeal under section 67 CTTT Act . Similarly, in Fraser Credits Pty Ltd v Ostenberg-Olsen this court held that an appeal brought from the District Court was incompetent, and observed, at 123:

" ... this Court has, in the past, entertained an appeal such as the present without passing upon its competence, in the absence of submissions or argument: see Langford Concrete Pty Ltd v Finlay [1978] 1 NSWLR 14. This case [ie Langford ] should not be regarded as an authority on the matter which is presently in question."

42 Since Dayeian v Davidson was decided, the question of whether there was an appeal to this Court from a decision of the District Court under section 67 of the CTTT Act has been mentioned three times in this court. In Chand v Lifestyle Homes NSW Pty Ltd [2010] NSWCA 135 Basten JA at [6] said there was "some doubt as to whether an appeal lies to this Court from a decision of the District Court under s 67 of the CTTT Act" . In Edwards v Sydney Building Group Pty Ltd [2010] NSWCA 185 at [6] Basten JA made a similar remark, though in slightly stronger language, describing the doubt as "a real doubt" . Then in Sullivan v St George Community Housing Ltd [2010] NSWCA 248 Basten JA upheld a submission that "there was no statutory right of appeal to this Court from the District Court in a matter which came to the District Court under s 67 of the CTTT Act" .

43 In Sullivan Basten JA was sitting as a single judge, so his decision does not bind me. However, in my respectful view, it is right.

44 I agree with other aspects of the reasons of Young JA, and with the order his Honour proposes.

45 MACFARLAN JA: I agree with Young JA and also with the elaboration by Campbell JA of the reasons why no appeal lay from the District Court in the present proceedings.

46 YOUNG JA: Church of England Children's Homes Burwood is a corporation limited by guarantee incorporated under the Companies Act 1899 to which the Governor has given a licence to dispense with the word "Limited" from its name.

47 The corporation owns property known as "Weldon" at 23 Weldon Street Burwood. In 2005, Joanne Rowell, the then General Manager of the corporation, on behalf of the corporation, signed a document called "Collaborative Agreement between the Church of England Children's Home and Paul Muldoon" which, inter alia, provided Mr Muldoon with a tenancy to a then unused upstairs area at 23 Weldon Street comprising the old bathroom block, self-contained corner room, small pantry cupboard, front and side upper verandah area and two adjoining rooms to the verandah. The document said that the agreed rental value of the tenancy is $190 per week, but was to be paid by work as a computer consultant and caretaker.

48 Omitting other attempts to terminate Mr Muldoon's tenancy, on 21 January 2009 Mr Muldoon was given a notice of termination of lease for 7 April 2009. The document said that it was signed pursuant to s 121 of the Corporations Act 2001 (which, I assume, was a typographical error for s 127) by two people who purported to be directors of the corporation, a Mr Gluskie and a Mrs Ploughman.

49 Because the Residential Tenancies Act 1987 applied to the premises, it was necessary for the corporation to apply to the Residential Tenancy Division of the Consumer Trader and Tenancy Tribunal (CTTT) for an order terminating the tenancy. It would seem that the Tribunal did make an order for termination on 18 May 2009, but Mr Muldoon applied for a rehearing and his application was granted.

50 At the rehearing, Mr T Atkinson, solicitor of the firm Cameron Gillingham Boyd appeared for the corporation and on the first day Ms P Van Dyke, a tenancy advocate (not a qualified lawyer) represented Mr Muldoon. On the second day, a Mr C Wainwright, another tenancy advocate, appeared for Mr Muldoon.

51 The procedure before the CTTT was relatively informal. However, Mr Atkinson called Ms Daphne Drew, who gave evidence that she was the General Manager of the corporation. She swore an affidavit which does not appear to have been the subject of cross-examination.

52 The point taken by Mr Wainwright and Mr Muldoon, was that under the constitution of the corporation, its governing council must consist of not less than 12 nor more than 24 members, but ASIC records show that it currently only had 7 directors (one was supposed to have resigned since that return was made) and only had 17 members. This was factually correct.

53 Mr Muldoon submitted that the management of the corporation was unlawfully elected and that the decision of Neville J in In re Sly, Spink & Co [1911] 2 Ch 430, meant that as there were not 12 directors, there could never be a valid directors' meeting and accordingly there could never be any proper authority to either issue a notice of termination or to represent the corporation at the hearing.

54 The Tribunal gave its decision on 11 August 2009. It ordered that the tenancy agreement be terminated and that the corporation be given possession on 25 August 2009. In its brief reasons, the Tribunal said:

"The Tribunal is satisfied that there is a valid residential tenancy agreement between the parties. Both parties and the Tribunal acknowledge and raise no issue with prior findings of the Tribunal in respect of this issue.

The applicant served a 'no grounds' termination notice and the Tribunal is satisfied as to the validity of that notice.

The proceedings were commenced within the prescribed time.

The applicant raises the issue of the ability of the council of the applicant to make the determination to terminate the tenancy and in fact their capacity to conduct the business affairs.

The articles of association of the applicant state that the council should be comprised of 12 to 24 members. The ASIC data base states that the applicant has 7 current directors but the evidence is that one of those directors has resigned.

The respondent submits that the members of the Council are the Directors of the corporation and therefore there is only 6 current council members and the applicant is operating in conflict with its articles of association and in contravention of the Corporations Act.

The applicant submits a list of 17 members of the Church of England Childrens Home Burwood and states that this is the council and the directors are elected from the council. The respondent states that these are members of the 'Homes' and the council is elected from these members.

The Tribunal is satisfied that the list provided is the list of members of the 'Homes' as asserted by the respondent and that this list of persons is also the 'Council' of the Church of England Children's Homes Burwood. The council has vested certain members to be directors of the corporation.

The decision was made to commence termination proceedings by six members of the council and I am satisfied that the determination was valid."

55 Mr Muldoon appealed to the District Court against that decision. The notice of appeal does not appear to be in the appeal book. The reason probably is that there was a relatively formal notice of appeal and the grounds were in an affidavit which was rejected. However, the point made by Mr Muldoon was the same as made before the Tribunal, that is, that the corporation could not evict him because there was no valid management of the corporation in place.

56 The only appeal permitted to the District Court is an appeal under s 67 of the Consumer Trader and Tenancy Tribunal Act 2001. The appeal is limited to an appeal from a "decision" of the CTTT "with respect to a matter of law".

57 The appeal was heard before his Honour Judge Robison on 8 and 9 April 2010 and his Honour gave judgment on 9 April. His Honour quoted the grounds of appeal as follows:

Para 1: "The tenant raised the issue of the ability of the council of the landlord to make the determination to terminate the tenancy. The articles of associate [sic] of the landlord state that the counsel [sic] should be composed of twelve to twenty-four members. The tenants submitted that there are only six current council members and that the landlord is operating in conflict with its articles of association and in contravention with the Corporations Act . The landlord submitted a list of seventeen members of the Church of England Children's Homes Burwood and stated that this is also the council. The Tribunal was satisfied that the list of members is also the council. The plaintiff asserts that it is a provable fact that the list of seventeen members submitted is not the council and that the Tribunal made an error of law in its determination."

58 Appeal ground 2 was cited as follows:

"The Tribunal had a responsibility to consider the circumstances of the case in making its determination. The tenant submitted substantial medical evidence indicating the difficulties he would face in relocating and requested a period of some months should possession be ordered. The Tribunal ordered possession two weeks from the date of the hearing. The plaintiff asserts that this determination did not adequately take into consideration the circumstances of the case."

59 Judge Robison then noted that Mr Muldoon had in effect expanded these grounds by adding five more, viz:

(1) The Tribunal failed to show procedural fairness when it refused his request to adduce evidence consisting of documents in possession of the corporation.

(2) The Tribunal failed to act in accordance with s 128(4) of the Corporations Act 2001.

(3) The Tribunal failed to act in accordance with s 3 of the Residential Tenancies Act because the natural persons who made the application to the Tribunal were not the "landlord" nor an assignee of the landlord as defined by s 3 by virtue of the body of law applicable to "agency".

(4) The Tribunal failed to take into account the tenant's health and psychiatric condition.

(5) The Tribunal made its decision on the basis of evidence tendered irregularly, illegally or against good faith.

60 The primary judge pointed out in his judgment that s 67(1) of the CTTT Act provided that it was the decision of the CTTT which is the subject of the appeal where the appeal raised a question with respect to a matter of law. He said at 467:

"It is not a matter for the court to hunt around and look for matters of law which constitute error. It is incumbent upon a party who moves the court to grant the significant orders which the plaintiff seeks here, to specifically point out with a high degree of precision and clarity the specific areas which form the basis of the appeal. ... I have done my best to distil from the many and broad ranging submissions made by the plaintiff which would appear to me to be the specific issues upon which he relies."

61 The primary judge said that the list of members of the corporation was put in evidence by the corporation without any objection and that the Tribunal was able to reach the decision it did on the evidence before it. The judge indicated that he considered that Mr Muldoon's construction of s 128(4) of the Corporations Act 2001 was not appropriate, but in any event, that section did not assist in resolution of the dispute. Accordingly, the judge dismissed the appeal with costs.

62 Mr Muldoon has filed a notice of appeal to this Court. The grounds of appeal are:

"The first defendant was not lawfully constituted on the date of the District Court hearing and the judgement was obtained by fraudulent representation on behalf of the first defendant (first respondent)."

63 There are only limited avenues of appeal from the District Court to the Supreme Court. The usual route is via s 127 of the District Court Act 1973 which in subsection (1) says:

"A party who is dissatisfied with a Judge's or a Judicial Registrar's judgment or order in an action may appeal to the Supreme Court."

64 There is another right of appeal in s 142N where the District Court is exercising jurisdiction in what is called the residual jurisdiction, but that is not this case. The third gateway for appeals is sometimes provided by the specific legislation which gives a statutory right of appeal to the District Court, but again there is nothing in the CTTT Act which comes into this category. Accordingly, the only way in which an appeal can be brought in this case is if it is covered by s 127.

65 The authorities show that the matter is clearly not covered by s 127, though it must be recognised that on at least one occasion, this Court did decide an appeal when its attention was not drawn to the precise wording of s 127. Section 127 provides that there is only an appeal where a judge makes a judgment or order in an action . The authorities show that a statutory appeal to the District Court is not an action within the meaning of this section; see eg Cook v Head and Arneman [1976] 1 NSWLR 176; Druett v Director General of Community Services [2001] NSWCA 126, and more recently, Edwards v Sydney Building Group Pty Ltd [2010] NSWCA 185. The proposition that this is not an appeal from a decision in an action is clearly established by those cases, and indeed, there is nothing in the submissions from the parties which would incline me to take any other view.

66 Accordingly, the alleged appeal is incompetent and must be dismissed with costs.

67 This point had not occurred to the parties prior to the hearing and the Court decided to listen to the argument and then stood the appeal over for written submissions on the point. The Court also floated the idea that it may be possible to convert the appeal into an application for an order in the nature of prerogative relief under s 69 of the Supreme Court Act 1970.

68 Mr Muldoon, in his submissions of 21 September 2010 said he assumed that the outcome contemplated was an outcome resulting from the hearing of an appeal as an appeal per se, and not the outcome of judicial review. His submissions seemed to imply that he intended to pursue each option he considered might be available to him seriatim rather than have the whole matter concluded now. In view of Mr Muldoon's election against conversion of the proceedings to a s 69 application, no more need be said about that.

69 It follows that there is no jurisdiction to deal with the appeal on the merits. Accordingly I will content myself with a few comments which may be of value to the parties.

70 First, there is a lot to be said for the respondent's submission that none of the interesting questions on the corporations law vented by Mr Muldoon have any relevance because, as a matter of fact, both the Tribunal and Robison DCJ took the view that there was sufficient evidence to show that the notice to terminate was given by a person with sufficient authority to do so on behalf of the corporation.

71 Cases such as Richardson v Landecker (1950) 50 SR (NSW) 250 (FC) show that if a person with general authority within a corporation gives a notice to terminate a tenancy, it is not necessary for the landlord to show that its governing board has authorised that notice. In the present case it was quite clear from Mrs Drew's evidence, which was accepted, that she was the General Manager and that she considered herself to have authority to sign the notice and nothing was said against this.

72 Secondly, Mr Muldoon relied on the decision of Neville J in Re Sly, Spink & Co [1911] 2 Ch 430. Whilst the decision in that case has been followed in Australia, see eg Singh v Singh [2008] NSWSC 386 [95] and Gosford Christian School Ltd v Totonjian (2006) 201 FLR 424, 440 [54] and see Jalmoon Pty Ltd v Bow [1997] 2 Qd R 62, the Sly, Spink case might not have been sufficient for Mr Muldoon's purposes. This is because it is possible that s 1322 and other sections of the Corporations Act might come into play (though see the Gosford Christian School case at [445] to [446]). Also the principle in Re Duomatic Ltd [1969] 2 Ch 365 may well be relevant in a case where all the corporators by themselves or a committee of their delegates exercise the powers of the board; see eg Euro Brokers Holdings Ltd v Monecor (London) Ltd [2003] 1 BCLC 506.

73 Accordingly, although in one sense Mr Muldoon has lost this case on appeal on what he might think is a technicality, he should not assume that had it not been for the technicality he necessarily would have succeeded.

74 It is most regrettable that a charitable organisation such as the respondent has allowed its governance provisions to fall into such a disorganised mess. It is to be hoped that this will be remedied as quickly as possible.

75 Both parties were asked what this Court should do about the order for possession made below. The date fixed by Judge Robison has well and truly passed. Mr Muldoon submitted that he should be given sufficient time to make other challenges to the order including a possible application for prerogative relief or possible application (which he seemed to favour) to the Legal Services Commissioner. He suggested that the time for vacation be postponed sufficiently long for him to do this.

76 To my mind, this matter has been delayed long enough. The original notice to terminate was given over a year ago and I do not consider that justice to the parties generally can justify us postponing possession for more than 21 days.

77 Accordingly I propose that the appeal be dismissed with costs but that the execution of the order for possession made in the District Court be extended for 21 days after the date of delivery of these reasons and a writ of possession may issue at the expiration of that period.

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Decision last updated: 05 March 2012