Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298
• Hearing dates: 8 June 2011 and 11 July 2011
• Decision date: 20 September 2011
• Before: Giles JA at 1; Basten JA at 21; Handley AJA at 110

Decision

(1) In respect of the Housing Corporation's application for leave to appeal from the judgment of Hoeben J delivered on 2 November 2010:

(a) grant leave to appeal;

(b) direct the Housing Corporation to file a notice of appeal in the form of the draft notice contained in the while folder;

(c) dismiss the appeal.

(2) Dismiss Ms Brennan's application for judicial review of the judgment of the District Court delivered on 30 June 2010.

(3) Order the Housing Corporation to pay 90% of Ms Brennan's costs in this Court.

[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: ADMINISTRATIVE LAW - judicial review - procedural fairness - reasonably opportunity to be heard -a failure to be notified of proceedings - whether statutory scheme deems notice to have been given - Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 25(2), Consumer, Trader and Tenancy Tribunal Regulations 2009 (NSW), cl 50(2); STATUTORY INTERPRETATION - effect of regulation providing means of service - inconsistency between provisions - which provisions prevails - reading which permits an opportunity for party to be heard preferred over a reading which denies such an opportunity - Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 78(4); Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW), cl 50; Interpretation Act 1987 (NSW), ss 5, 76; TENANCY LAW - statutory grounds for termination of leave - Residential Tenancies Act (NSW), s 64
• Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 3, 11, 25, 28, 30, 34, 35, 65, 67, 78, 86; Pt 4; Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW), cll 30, 50; Interpretation Act 1987 (NSW), ss 5, 76; Migration Act 1958 (Cth), ss 51A, 501; Migration Regulations 1994, reg 2.55; Residential Tenancies Act (NSW), s 64; Supreme Court Act 1970 (NSW), ss 64, 69; Uniform Civil Procedure Rules 2005 (NSW), r 50.3
• Cases Cited: Abebe v The Commonwealth [1999] HCA 14: 197 CLR 510; Amaba Pty Ltd v Booth [2010] NSWCA 344; Amaca Pty Ltd v New South Wales [2003] HCA 44, 77 ALJR 1509; B&L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, 74 NSWLR 481; Buck v Bavone [1976] HCA 24; 135 CLR 110; Chand v Lifestyle Homes NSW Pty Ltd [2010] NSWCA 135; Eastman v The Queen [2000] HCA 29, 203 CLR 1; Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Geflic v Merhi [2011] NSWCA 241; HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292; The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531; Kioa v West [1985] HCA 81; 159 CLR 550; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390; Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 44, 263 ALR 556; Mickelberg v The Queen [1989] HCA 259, 167 CLR 259; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24; Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91; 138 FCR 450; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611; Minister for Immigration and Multicultural and Indigenous Affairs v George [2004] FCAFC 276; 139 FCR 127; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402; Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657; 135 FCR 550; Obieta v Consumer, Trader and Tenancy Tribunal [2009] NSWCA 220; Osborne v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1113; 124 FCR 416; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165; Salemi v MacKellar [No 2] [1977] HCA 26; 137 CLR 396; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252; Shanahan v Scott (1957) 96 CLR 245; Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 230, 71 NSWLR 230; Vetter v Lake Macquarie City Council [2001] HCA 12, 202 CLR 439; Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 19, 46 CLR 73; VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134; 136 FCR 407; Wishart v Fraser [1941] HCA 8; 64 CLR 470
• Texts Cited: M Leeming, Resolving Conflicts of Laws (Federation Press, 2011), p 51; Spencer Bower & Handley Res Judicata 4th ed pp 260, 262
• Category: Principal judgment
• Parties: In matter no 2010/243838: Melissa Alison Brennan - Applicant; NSW Land and Housing Corporation -First Respondent; District Court of NSW - Second Respondent; In matter no 2010/157974: NSW Land and Housing Corporation -Applicant; Melissa Alison Brennan - First Respondent; Consumer, Trader and Tenancy Tribunal - Second Respondent
• Representation: Counsel: J P Knackstredt - Melissa Brennan; J D Smith/V McWilliam - NSW Land and Housing Corp; S Ohnesorge - Consumer, Trader and Tenancy Tribunal and District Court of NSW; Solicitors: Peter Baker Solicitors - Melissa Brennan; NSW Land and Housing Corporation - Applicant/First Respondent; I V Knight, Crown Solicitor - Second Respondent in both matters
• File Number(s): CA 2010/243838; CA 2010/157974

Decision under appeal

• Citation: Brennan v Consumer, Trader and Tenancy Tribunal [2010] NSWSC 1240
• Before: Hughes DCJ; Hoeben J
• File Number(s): DC 2009/338832; SC 2010/157974

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant Housing Corporation is the owner of premises in Macquarie Fields, part of which is let, pursuant to a tenancy agreement, to Ms Melissa Brennan, the respondent. At a hearing conducted on 19 November 2009, in the absence of Ms Brennan the Consumer, Trader and Tenancy Tribunal ("the Tribunal") made an order terminating the agreement. Ms Brennan appealed to the District Court from a decision of the Tribunal on a question of law, pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act "). She also brought proceedings in the supervisory jurisdiction of Supreme Court, seeking to have the decision of the Tribunal set aside. She gave evidence that she had not received any notification of the date fixed for the adjourned hearing. Her appeal to the District Court was dismissed by Hughes DCJ on 30 June 2010. Her proceedings in the supervisory jurisdiction were heard by Hoeben J on 25 October 2010. On 2 November 2010 his Honour delivered judgment quashing the decision of the Tribunal and directing that the proceedings be returned to the Tribunal to be determined according to law: Brennan v Consumer, Trader and Tenancy Tribunal [2010] NSWSC 1240.

In this Court, Ms Brennan seeks review under s 69 of the Supreme Court Act 1970 (NSW) of the decision of the District Court dismissing her appeal on a question of law. The Housing Corporation seeks leave to appeal from the judgment of Hoeben J, setting aside the decision of the Tribunal.

The issues for determination on appeal were:

(i) whether Ms Brennan was denied procedural fairness in the conduct of the hearing in her absence;

(ii) whether findings were made by the Tribunal in the absence of relevant evidence; and

(iii) whether the District Court erred in dismissing the appeal and ordering Ms Brennan to pay costs.

The Court held dismissing the appeal from Hoeben J and setting aside the costs order in the District Court:

In relation to (i)

(per Giles JA)

1. Evidence demonstrated that Ms Brennan had not been served because she had not received the letter from the Tribunal. A regulation which purports to provide that service had been effected when it had not would be beyond power: [11] and [15] Clause 50(4) of the Regulation, while providing for additional means of service, in accordance with s 78(4) of the CTTT Act, should not be read as providing that service is effected when evidence proves otherwise: [16].

Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402; Shanahan v Scott (1957) 96 CLR 245 applied.

(per Basten JA, Handley AJA agreeing)

2. There is a practical inconsistency between the terms of cl 50(4) of the Consumer, Trader and Tenancy Regulation 2009 (NSW) and s 76(1)(b) of the Interpretation Act 1987 (NSW), because the former implicitly excludes that which is permitted by the latter, namely evidence to raise a doubt as to service having been effected. Three factors require that the Interpretation Act should prevail: (i) the intention found in cl 50 itself, that the clause is to have effect subject to the provisions of any Act; (ii) the absence of a contrary intention appearing in the Regulation for the purpose of s 5(2) of the Interpretation Act; and (iii) a reading which permits a person an opportunity to demonstrate why they should be heard in response to a claim is to be preferred over a reading which denies such an opportunity, other things being equal.

3. The accommodation of cl 50 of the Regulation to general law principles of procedural fairness does not involve circularity. It requires one to start with the general law principle that a party is entitled to a reasonable opportunity to be heard in particular circumstances. The statutory context will identify the subject-matter of the proceedings, the nature of the body by which the powers are being exercised and, the procedures to be followed.

Kioa v West [1985] HCA 81; 159 CLR 550; Salemi v MacKellar [No 2] [1977] HCA 26; 137 CLR 396 followed.

4. Ms Brennan was not accorded a reasonable opportunity to appear at and present her case at the hearing fixed by the Tribunal. The decision of the Tribunal was properly set aside by the primary judge.

In relation to (ii)

5. The primary judge's statements in relation to s 64 of the Residential Tenancies Act 1987 (NSW) were problematic. In relation to s 64(2), it reversed its purpose, which was to require the Tribunal to make an order terminating the agreement if affirmatively satisfied of certain matters. In addition, s 64(4) did not create a state of satisfaction as a condition precedent to the exercise of the power, but only matters to be considered. Accordingly, his Honour's conclusions cannot stand on the basis which he identified.

6. None of the findings made by the Tribunal were jurisdictional facts, absent a finding as to which the Tribunal lacked power to terminate the agreement. The relevant jurisdictional fact was the satisfaction of the Tribunal that the breach of the agreement justified termination.

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118; R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407; Abebe v The Commonwealth [1999] HCA 14: 197 CLR 510; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; Amaba Pty Ltd v Booth [2010] NSWCA 344 applied.

In relation to (iii)

(per Basten JA, Giles JA agreeing)

7. No error was demonstrated in the judgment of the District Court, in rejecting an appeal under s 67 of the CTTT Act. Although the District Court affirmed a decision of the Tribunal, now set aside as a result of judgments in this Court, it did so on a limited basis, which did not include the ground upon which the decision of the Tribunal was set aside by the Supreme Court and now upheld on appeal. The judgment of the District Court should not be set aside.

Wishart v Fraser [1941] HCA 8; 64 CLR 470; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 distinguished.

Abebe v The Commonwealth [1999] HCA 14: 197 CLR 510 applied.

(per Handley AJA)

8. Although originally pleaded, the ground of denial of procedural fairness was not pursued at the hearing of the appeal in the District Court. The correctness of the decision of the District Court rejecting the other grounds has been affirmed by this Court. The District Court was not entitled to make findings of fact for the purpose of determining an appeal under s 67 of CTTT Act. The remedy available in the Supreme Court was thus not available in the District Court. Nor was the judgment in the District Court relied upon to establish a res judicata estoppel in the Supreme Court.

Abebe v The Commonwealth [1999] HCA 14: 197 CLR 510; B&L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, 74 NSWLR; Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218 applied.

Wishart v Fraser [1941] HCA 8; 64 CLR 470; Kirk v Industrial Court of New South Wales [2010] HCA 1, 239 CLR 531 distinguished.

Judgment

1 GILES JA : The application for leave to appeal and the application for relief under s 69 of the Supreme Court Act 1970, and the circumstances in which they arise, are described in the reasons of Basten JA. With the advantage of those reasons, I can briefly explain my agreement with the orders proposed by his Honour. I will not unnecessarily repeat the provisions to which his Honour refers.

Appeal from the decision of Hoeben J

2 For the reasons given by his Honour, leave to appeal should be granted.

3 My path to a conclusion differs from that of Basten JA, although it is consistent with it and within the broad area of reconciling provisions concerning service of documents. It was not the subject of specific submissions. Since Basten JA and Handley AJA are in agreement and their Honour's reasons will represent the ratio, I think that I can nonetheless take the path next described without putting the parties to the additional expense and delay of further submissions.

4 There is no doubt that Ms Brennan was entitled to procedural fairness in the disposition of the Housing Corporation's application to the Tribunal. There is also no doubt that in fact, although not appreciated by the Tribunal, she did not have it, because on the primary judge's findings she did not receive notice of the hearing of 19 November 2009.

5 The Housing Corporation's submissions came down to reliance on cl 50(4) of the Consumer, Trader and Tenancy Tribunal Regulation 2009 ("the CTTT Regulation"), providing -

"(4) Service by post is taken to have been effected on a person at the end of the fourth working day after the date on which the document was posted to the person."

6 On the doubtfully proved but unchallenged basis that the letter of 22 October 2009 was posted to Ms Brennan, the Housing Corporation submitted that service of it was "taken to have been effected" on her, and that the statutory deemed service satisfied the procedural fairness to which she was relevantly entitled.

7 Section 25 of the Consumer, Trader and Tenancy Tribunal Act 2001 ("the CTTT Act") is in terms of giving notice to a party, not of service of a document upon a party. Section 78 is concerned with giving notice or giving a document and with service of a document on a person, distinguishing between them, and cl 50 is in terms of service of a document. No doubt service of a document is a way of giving notice of a hearing, see s 30(1) of the CTTT Act, and it was not questioned that cl 50 of the CTTT Regulation would extend to the letter of 22 October 2009. What does it dictate for service by post?

8 Section 78 of the CTTT Act is the principal provision concerning service by post, enabling such service amongst other ways but not saying anything about service taking effect. Section 78 is supplemented in this respect by s 76 of the Interpretation Act 1987, which raises a rebuttable presumption of service at a stated time after the date on which the document was posted. In the Housing Corporation's submission, cl 50(4) performs the same function save that the presumption is not rebuttable, and the presumption is as to the fact of service and the time of service.

9 I do not think that cl 50(4) dictates the fact of service. It is not necessary to decide as to the time of service.

10 So far as cl 50(4) might be authorised by s 78(4) of the CTTT Act, it can provide only for "additional means" of serving any notice or document. Clause 50 does provide for additional means of service of documents, for example service by post addressed to an address for service, leaving a copy in an appropriate box in a document exchange, or what amounts to substituted service. Perhaps it provides a means of service so far as cl 50(4) prescribes a time for service where it is necessary to establish service at a particular time.

11 But means of service is not fact of service: although personal service will establish the fact of service, when there is service by a means such as post addressed to an address for service the fact of service is another matter. Clause 50(4) can be acted upon in the absence of evidence that there had not in fact been service, but if it went further and prescribed service when there had not in fact been service, it could not be said to provide for a means of serving a document - rather, it would provide for something which was not serving a document.

12 It is then necessary to consider the general regulation making power in s 86 of the CTTT Act. Regulations may be made, not inconsistent with the CTTT Act, for or with respect to "any matter ... that is necessary or convenient to be prescribed for carrying out or giving effect to this Act" (s 86(1)), with specific instances none of which would support cl 50(4) (s 86(2)).

13 The scope of a regulation-making power in these terms was described in Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 at 410, in the joint judgment of Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ. Their Honours said -

" A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned.

In an Act of Parliament which lays down only the main outlines of policy and indicates an intention of leaving it to the Governor-General to work out that policy by specific regulation, a power to make regulations may have a wide ambit. Its ambit may be very different in an Act of Parliament which deals specifically and in detail with the subject matter to which the statute is addressed. In the case of a statute of the latter kind an incidental power of the description contained in s 164 cannot be supposed to express an intention that the Governor-General should deal with the same matters in another way."

14 In Shanahan v Scott (1957) 96 CLR 245 at 250 Dixon CJ and Williams, Webb and Fullagar JJ described the regulation-making power as "strictly ancillary", and said that -

"It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends."

15 The CTTT Act in s 78 deals specifically and in detail, including by the particular regulation-making power in s 78(4), with notices and service. It also emphatically recognizes that parties shall have a reasonable opportunity to present their case and make submissions (s 35), and must be given notice of the time and place fixed for a hearing (s 25). In these circumstances an irrebuttable presumption of the fact of service by post would go beyond more effective administration of the CTTT Act within its "field of operation". It is not necessary for carrying out or giving effect to the CTTT Act, nor could it be said to be convenient for carrying out or giving effect to the CTTT Act; there might be convenience, but there would be failure to carry out or give effect to these aspects of the CTTT Act.

16 Clause 50(4) should be construed so as to be within power, as a presumption on which the Tribunal may act unless the contrary appears. Thus in my view it should be construed as open to proof that service by post had not been effected.

17 It may be noted that the clause does not distinguish between delivery of the postal article and its receipt by the person to whom it is addressed, cf Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, so that the primary judge's finding that Ms Brennan did not receive the letter of 22 October 2009 is proof that service by post was not effected. Accordingly, cl 50(4) does not overcome the want of procedural fairness occasioned through Ms Brennan not receiving notice of the hearing of 19 November 2009.

18 Although it does not arise, and it is unnecessary to consider their status as jurisdictional findings, I respectfully share Basten JA's opinion that the findings identified by the primary judge as demonstrating jurisdictional error did not do so. This is not to say, if in the future the Tribunal has the same materials before it, what findings should or should not be made.

Review of the decision of Hughes DCJ

19 As explained by Basten JA, the decision of Hughes DCJ has not been shown to be attended by jurisdictional error or error of law on the face of the record, nor is its maintenance inconsistent with the decision of this Court.

20 I agree with the orders proposed by Basten JA.

21 BASTEN JA : The applicant Housing Corporation is the owner of premises in Macquarie Fields, south-west of Sydney, part of which is let, pursuant to a tenancy agreement, to Ms Melissa Brennan, the respondent. At a hearing conducted on 19 November 2009, the Consumer, Trader and Tenancy Tribunal (Social Housing Division) ("the Tribunal") made an order terminating the agreement and requiring that possession be given to the landlord on 10 December 2009. The reasons for decision are dated 2 February 2010.

22 Ms Brennan appealed to the District Court from a decision of the Tribunal on a question of law, pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act "). She also brought proceedings in the supervisory jurisdiction of this Court (in the Common Law Division), seeking to have the decision of the Tribunal set aside. Her appeal to the District Court was heard on 30 June 2010 and dismissed by Hughes DCJ. Her proceedings in the supervisory jurisdiction were heard by Hoeben J on 25 October 2010. On 2 November 2010 his Honour delivered judgment quashing the decision of the Tribunal and directing that the proceedings be returned to the Tribunal to be determined according to law: Brennan v Consumer, Trader and Tenancy Tribunal [2010] NSWSC 1240.

23 Ms Brennan originally sought leave to appeal from the judgment and orders in the District Court. The proposed appeal was incompetent, but she was given leave to amend her application to seek review under s 69 of the Supreme Court Act 1970 (NSW) of the decision of the District Court dismissing her appeal on a question of law. The Housing Corporation seeks leave to appeal from the judgment of Hoeben J, setting aside the decision of the Tribunal.

24 If the decision of Hoeben J stands, the subject-matter of the appeal to the District Court (namely a valid decision of the Tribunal) no longer exists and the need to review the decision on the appeal is arguably removed. However, Ms Brennan pressed her challenge on the basis that she remains liable to pay the costs of her unsuccessful proceedings in the District Court. It is appropriate to consider first the application for leave to appeal brought by the Housing Corporation.

(1) Leave to appeal

25 For reasons explained below, the issues raised by the Housing Corporation involve matters of principle, having an element of public significance in the proper administration of justice, extending beyond the circumstances of the present case. Further, the concerns raised by the Housing Corporation in respect of some of the reasoning of the primary judge are clearly arguable. For these reasons leave to appeal should be granted.

(2) Jurisdiction of Supreme Court

26 The primary judge upheld the challenge to the decision of the Tribunal on two grounds. The first, involving a denial of procedural fairness, resulted from a finding that Ms Brennan had not received notice of the listing of the hearing before the Tribunal, at which the relevant orders were made. The second ground involved findings on the part of the primary judge that there was "no evidence" to support three separate findings of fact made by the Tribunal. It is necessary first to set out the limits of the jurisdiction of the Supreme Court in reviewing the decision of the Tribunal.

27 Prior to 1 September 2008, where "the Tribunal decide[d] a question with respect to a matter of law" an appeal could be brought to the Supreme Court against the decision: CTTT Act , former s 67(1). In addition, the Supreme Court had (and has) a supervisory jurisdiction with respect to decisions of the Tribunal generally, pursuant to s 69 of the Supreme Court Act . The exercise of the latter jurisdiction was (and is) subject to the constraints imposed by a privative clause, namely s 65(1) of the CTTT Act .

28 In September 2008, s 67(1) was amended so that appeals under that provision now go to the District Court. The District Court does not have the supervisory jurisdiction of the Supreme Court. As this Court has noted on several occasions, the bifurcated jurisdiction can give rise to difficulties for individuals who commenced proceedings in a Tribunal which is required to be "accessible" and to determine matters in "an informal, expeditious and inexpensive manner" ( CTTT Act , s 3) and who, wishing to challenge a decision of the Tribunal, find themselves enmeshed in jurisprudential technicality (and concomitant delay and expense): see Obieta v Consumer, Trader and Tenancy Tribunal [2009] NSWCA 220 at [6]-[10] and Chand v Lifestyle Homes NSW Pty Ltd [2010] NSWCA 135.

29 Section 65 of the CTTT Act restricts the supervisory jurisdiction of this Court to circumstances where the jurisdiction of the Tribunal to determine the matter was disputed (s 65(2)) and, relevantly for present purposes, where the ground of relief sought is that the Tribunal "had no jurisdiction to make the order", or that the applicant for relief "had been denied procedural fairness": s 65(3). Despite the judgment in the District Court, it was not in dispute that the primary judge had power to determine a claim that Ms Brennan had been denied procedural fairness in the Tribunal, thus rendering invalid the decision of the Tribunal upheld in the District Court. The primary issue she raised was whether there was a breach of the obligation of the Tribunal to notify her of the hearing date. In addition, jurisdictional error was asserted in making findings of fact in the absence of any supporting material.

(3) Background to appeal

30 The circumstances underlying the termination of Ms Brennan's lease commenced on 31 July 2008, when police executed a search warrant at her premises, seizing quantities of cannabis, cocaine and methamphetamine and a set of electronic scales; they also seized three cameras and some money believed to have been stolen. Ms Brennan was not charged with any offence relating to the illegal drugs, but was charged and pleaded guilty to offences of having 'goods in custody'. Mr Colquhoun, who was on the premises at the time of the search, was charged with possession of the drugs.

31 On 9 September 2008 the Housing Corporation served a notice of termination, asserting that Ms Brennan had breached a clause of her residential tenancy agreement requiring that she not use the premises, or cause or permit them to be used, for any illegal purpose.

32 Proceedings were commenced in the Tribunal by the Housing Corporation, seeking an order terminating her lease. Those proceedings did not go smoothly and, after they concluded adversely to her, she sought and obtained a rehearing. She attended the Tribunal on two occasions and arranged for a barrister to attend for her on the third, when she was required to appear before the Campbelltown Local Court in relation to the offences of goods in custody. On that occasion, being 19 October 2009, the matter in the Tribunal was adjourned.

33 For administrative reasons, which do not appear from the material before this Court, no further date was set whilst the parties were before the Tribunal. However, the appeals papers contained an unsigned document on the letterhead of the Tribunal, entitled "Notice of Hearing", addressed to Ms Brennan at the premises the subject of the proceedings and bearing a typed date of 22 October 2009. The notice advised that the matter had been listed before the Tribunal at its premises in Liverpool on Thursday, 19 November 2009 at 1:15pm. It contained the following additional notification:

" For formal hearing - Bring Witnesses

If you do not appear at this time and place, the Tribunal may decide the matter in your absence. The decision made will be binding on you."

34 The copy of the notice came to be in evidence before the primary judge as an exhibit to an affidavit of Ms Brennan, she identifying it as a document shown to her by her solicitor which she had not previously received or seen: affidavit, 6 August 2010, par 32.

35 It is perhaps only a curiosity, but there does not appear to have been any evidence before the primary judge, and certainly none was identified by him, which indicated in express terms that the notice was sent, nor by whom, nor when. His Honour made a finding that Ms Brennan did not receive the notice: at [42]. He continued, at [43]:

"From the Tribunal's point of view, it complied as best it could with the procedures for notification prescribed by the Act. It is clear that a letter was sent on 22 October 2009 addressed to the plaintiff at her residential address advising her of the hearing date."

36 The finding that the letter was sent was a matter of some importance: without it, the argument presented for the Housing Corporation was factually untenable. The language used by the primary judge as to the position of the Tribunal in deciding to proceed ex parte was imprecise on critical points.

37 There is some suggestion that, in complying "as best it could" the Tribunal had not in fact complied with the procedures for notification prescribed by the CTTT Act . An alternative reading is that although it complied, notification was not achieved. As will be seen below, it was only if satisfied that notice of the hearing was duly served that a discretionary power to proceed ex parte was enlivened. Apart from the equivocal statement of satisfaction that there had been due service, there was no recognition on the part of the Tribunal that there was a further discretionary question to be determined. However, no point was taken in respect of these issues below and, when raised in the course of argument, counsel for the Housing Corporation objected to their consideration on the basis that they might have been met by evidence (presumably as to what happened in respect of notice, rather than in explanation of the reasons given by the Tribunal). In any event, no complaint was pursued on that basis in this Court and the matter should be put to one side. The Housing Corporation relies on the finding of the primary judge that the letter was sent, but also accepts the finding that Ms Brennan did not receive notice of the hearing on 19 November 2009. Nor does it challenge the conclusion that, absent some statutory provision to the contrary, for the Tribunal to proceed on 19 November and to make final orders adverse to her interests, involved procedural unfairness which could lead to the order being set aside.

38 The Housing Corporation's contention was that the specific statutory provisions, where complied with, satisfied the obligation to accord procedural fairness.

(4) Procedural fairness

(a) statutory provisions relating to notification

39 The Tribunal is constituted by a Member nominated by the Chairperson for the purposes of a particular proceeding or proceedings: s 11(2). The procedures to be followed are primarily found in Part 4 of the CTTT Act . These permit a hearing to be dispensed with, with the consent of the parties and if the Tribunal is satisfied that the issues can be determined in the absence of the parties: s 34(1). Section 25 provides:

" 25 Notice of proceedings

(1) If any proceedings are to be determined by a hearing, the Registrar must cause notice of the time and place that is fixed for the hearing to be given to each party in the proceedings.

(2) If a party who has been notified under subsection (1) fails to attend at the time and place notified, the proceedings may be held in the absence of the party."

40 There is power to adjourn the proceedings to any time and place: s 28(5)(f). The Housing Corporation accepted that there was a distinction between the power of the Tribunal to adjourn proceedings and the obligation of the Registrar to cause notice to be given of the time and place fixed for hearing. Thus, there may be circumstances where the adjourned hearing is fixed in the presence of the parties and there is no need for notification under s 25. Whether or not that is so, such circumstances did not arise in the present case. Notification was required.

41 The provision of notice is governed by s 78, which relevantly provides:

" 78 Notices, service and lodgment of documents

(1) For the purposes of this Act, a notice or document may be given to a person (and a document may be served on a person):

(a) in the case of a natural person-by:

(i) delivering it to the person personally, or

(ii) leaving it at, or by sending it by post to, the residential ... address ... of the person that was last known to the person giving or serving the document ...

...

(3) Nothing in this section affects the operation of any provision of any law or the rules of a court authorising a document to be served in a manner not provided for by this section.

(4) The regulations may:

(a) provide for additional means of serving, giving or lodging any notice or document ...."

42 There was no suggestion that any "rules of court" had relevance for the purposes of s 78(3). There are further provisions relating to service of documents in the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) ("the Regulation"), which commenced on 1 September 2009. Clause 50 provided (and now provides):

" 50 Service of documents

[Sub-clauses (1) and (2) deal with service of an application and a summons respectively.]

(3) Service of any other document may be effected in any manner provided by section 78 of the Act or in any of the following ways:

(a) if the person has an address for service on record with the Registry:

(i) by pre-paid ordinary post addressed to the person's address for service ...

(b) in such other manner as may be directed by the Chairperson, a Deputy Chairperson or the Registrar in a particular case.

(4) Service by post is taken to have been effected on a person at the end of the fourth working day after the date on which the document was posted to the person.

...

(7) This clause has effect subject to the provisions of any Act or law or of any directions of the Chairperson under section 24(3) of the Act."

43 The Regulation also provides for the consequence of failure to attend:

" 30 Ex parte proceedings

(1) The Tribunal may proceed to hear a matter in the absence of a party who has failed to attend the hearing:

(a) if it is satisfied that notice of the hearing was duly served on the party, or

(b) if:

(i) being satisfied that service of notice of the hearing has been duly attempted, or

(ii) having given directions under clause 50(6),

the Tribunal considers that justice requires that the matter be dealt with in the absence of the party concerned.

(2) If a matter is adjourned by the Tribunal in the absence of a party, the Registrar is to give notice of the time and place of the adjourned hearing to the absent party. If the party who is so notified fails to attend the hearing, the matter may be dealt with in the absence of the party."

44 Although not initially referred to in submissions, provisions relating to service of documents are also to be found in the Interpretation Act 1987 (NSW):

" 76 Service by post

(1) If an Act or instrument authorises or requires any document to be served by post (whether the word 'serve', 'give' or 'send' or any other word is used), service of the document:

(a) may be effected by properly addressing, prepaying and posting a letter containing the document, and

(b) in Australia ... - is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted ...."

(b) procedural steps taken

45 On 19 November 2009 the matter appears to have been called before the Tribunal (constituted by Member Schipp) and adjourned briefly. When the Tribunal reconvened (Tcpt, p 3) the Member ascertained that the representative of the Housing Corporation wished to proceed and said:

"OK. Now, I note formally that there's no attendance of the respondent, Ms Brennan, at 1.30pm and a notice of hearing has been forwarded to Ms Brennan on 22 October or by letter dated 22 October."

46 In its reasons, after noting that the original hearing date (19 October 2009) had been vacated at the request of her barrister, because Ms Brennan was due to appear in the Local Court, and noting that the matter had been adjourned for further hearing on 19 November, the Tribunal stated:

"9 On 19 November 2009, the Tribunal conducted the hearing. Mr Jungwirth appeared for the applicant Landlord. There was no appearance by or on behalf of the Respondent. The Tribunal noted that the Tenant had formally complied with the direction to notify the identity and address for service of her legal representative. Accordingly, the Notice of Hearing for 19 November 2009 was sent to her home address - the address of the residential premises.

10 There was no request for an adjournment. The Tribunal was satisfied that the Tenant had been properly notified of the hearing. Mr Jungwirth indicated that he had received no formal notification of the identity of the Tenant's legal representative. The Landlord's witness had been summonsed to appear, and he was in attendance."

47 The basis on which the Member was satisfied as to notification does not appear from the record, nor from the reasons of the Tribunal. In any event, it was not contended on behalf of Ms Brennan that, on the material before it, the Tribunal was not or should not have been satisfied that the notice was "duly served", in the sense that the notice was posted in accordance with s 78(1)(a)(ii), nor that the Member could not have been satisfied that justice required that the matter be dealt with in the absence of Ms Brennan: Regulation, cl 30(1).

(c) issues on appeal

48 The Housing Corporation submitted that the procedure adopted in the Tribunal satisfied the requirements of procedural fairness in the statutory context outlined above. Evidence that Ms Brennan did not in fact receive the notice was irrelevant and, the evidence having been admitted before the primary judge, apparently without objection, the finding in that respect was irrelevant. Support was sought from provisions to similar effect as cl 50(4) of the Regulation, in the Migration Act 1958 (Cth), identifying the time at which a person is "taken to have received" a document for the purposes of that legislation. In Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657; 135 FCR 550 Spender J held at [69]:

"The person is 'taken to have received the document', in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only 'until the contrary is proved'."

49 These submissions require consideration of three issues: first, does the language of cl 50(4) permit the Tribunal to make valid orders in the absence of actual notification, in the light of s 76 of the Interpretation Act ? Alternatively, does the scheme of the CTTT Act permit the Tribunal validly to determine a matter in the absence of one party who has been duly served, pursuant to s 25(2) and Regulation cl 30? Finally, is the statutory regime provided by the Migration Act , and therefore the authorities based on that regime, distinguishable?

(d) identifying the operative provision

50 The Regulation must be construed in the context of the statutory scheme. Section 25 of the CTTT Act does not provide a mechanism for giving notice, nor does it deem notice to have been effected where a particular procedure has been followed. Section 78 provides for a means of service of a document, but does not identify the consequence of service in accordance with its provisions. It must follow that the Housing Corporation's argument depends upon the deeming provision in the Regulation, cl 50(4). However, to the extent that the terms of that provision render irrelevant any evidence that the document was not in fact delivered or received, it has effect "subject to the provisions of any Act": cl 50(7). To the extent of any inconsistency, another Act will prevail. The Interpretation Act , s 76, is inconsistent, because it allows for evidence to be adduced to the contrary of its presumption that service has been effected by adopting the specified procedure.

51 The Housing Corporation resisted this conclusion, submitting that the Interpretation Act should not take precedence. Accepting that the Regulation was an "instrument", reliance was placed on s 5(2) of the Interpretation Act , which states:

" 5 Application of Act

...

(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned."

52 It has often been remarked that hierarchical words, such as "subject to" have often been overused, a factor which at least poses the risk realised in the present case, of circularity. Further, such words are "neutral on the question whether there is a conflict in the first place": M Leeming, Resolving Conflicts of Laws (Federation Press, 2011), p 51. In response to the first difficulty, namely circularity, one approach is to accept that the legislation has failed to provide which is to have precedence. The question of which is to take effect must then be determined by reference to established principles of statutory construction, including those that prefer the specific over the general and the later over the earlier. However, such rules should not divert attention from the need to consider the statutory schemes as a whole, in the light of any conflict which has been identified.

53 Section 78 of the CTTT Act , providing for some forms of service, is expressly stated not to affect other laws authorising service of documents: s 78(3). It excludes affectation, not merely in respect of a form of service authorised by another law, but also in respect of "the operation of any provision of any law ... authorising a document to be served in a manner not provided for by this section". That provision would be good to protect a provision of another law which states the effect of service. Subsection (4) permits the Regulation to provide for additional means of service: it does not, however, in terms authorise the Regulation to provide for the effect of service in accordance with the mechanisms authorised. On the other hand, it only operates where the other law provides for service in a manner not provided for by s 78 itself. Arguably s 76 of the Interpretation Act is not such a provision, because, in providing for service by post, while adopting different language, it probably has no different effect from s 78(1)(a)(ii), in relation to natural persons.

54 These matters are not conclusive. On the other hand, there is a practical inconsistency between the terms of cl 50(4) of the Regulation and s 76(1)(b) of the Interpretation Act , because the former implicitly excludes that which is permitted by the latter, namely evidence to raise a doubt as to service having been effected on a particular day or, presumably, at all. There are three factors which suggest that the Interpretation Act should prevail. The first is the intention found in cl 50 itself, that the clause is to have effect subject to the provisions of any Act: cl 50(7). Secondly, and consequentially upon that fact, there is no contrary intention appearing in the Regulation for the purposes of s 5(2) of the Interpretation Act . In other words, the Regulation in its own terms gives precedence to the Interpretation Act (and any other relevant legislation). The only way that a contrary intention can be identified is by reference to the inconsistency between the two provisions. That inconsistency does not, however, demonstrate an intention that the Interpretation Act not apply, nor could it in circumstances where the clause itself is inconsistent with such an implied intention. Thirdly, and merely by way of support for the conclusion which is inescapable on the language discussed above, a reading which permits a person an opportunity at least to demonstrate why he or she should be heard in response to a claim is to be preferred over a reading which denies such an opportunity, other things being equal.

55 In the course of argument it was suggested to counsel for the Housing Corporation that cl 50 of the Regulation, which is to have effect "subject to" the provisions of "any Act or law" (sub-cl (7)), might also require accommodation to general law principles of procedural fairness. Counsel submitted that that approach would involve an element of circularity, because general law principles must, in their terms, accommodate and derive their content from the statutory context in which they operate.

56 In Kioa v West [1985] HCA 81; 159 CLR 550 at 585, Mason J stated that a statutory power must be exercised fairly, that is "in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations", referring to similar remarks of Jacobs J in Salemi v MacKellar [No 2] [1977] HCA 26; 137 CLR 396 at 451. This exercise does not involve any element of circularity. For example, one may start with the general law principle that a party is entitled to a reasonable opportunity to be heard in particular circumstances; the statutory context will identify the subject-matter of the proceedings, the nature of the body by which the powers are being exercised and, at least in part the procedures to be followed. These characteristics will inform the content of the duty.

57 As with the law of negligence, there is no bright line to be drawn between identification of the content of the duty and determining whether there has been breach. In any event, so far as the content of the duty was concerned, it was not necessary to go beyond s 35 of the CTTT Act , set out at [61] below.

(e) statutory scheme - procedural fairness

58 The foregoing discussion considered the terms of the CTTT Act and the Regulation, relating to giving or serving notices, without reference to other aspects of the CTTT Act . The conclusion reached above by reference only to the specified provisions is confirmed by reading those provisions in their broader statutory context.

59 The contention, drawn from a reading of those provisions in isolation, is that they provide a statutory alternative to the general law requirement of procedural fairness that a person must be given notice of a hearing. That conclusion is flawed. The provisions to which reference has not so far been made suggest that general law principles of procedural fairness are not to be deprived of content in the way suggested.

60 The general section dealing with procedure in the Tribunal includes the following:

" 28 Procedure of Tribunal generally

(1) The Tribunal may, subject to this Act, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness."

61 Amongst the obligations imposed on the Tribunal by statute, is the following provision:

" 35 Opportunity for parties to present case

The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:

(a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and

(b) to make submissions in relation to the issues in the proceedings."

62 In conformity with the obligation to comply with requirements of procedural fairness, s 65, to which reference has been made in passing above, relevantly states:

" 65 Review by prerogative writ etc generally excluded

(1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of:

(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or

(b) a declaratory judgment or order, or

(c) an injunction,

in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter.

...

(3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that:

(a) the Tribunal had no jurisdiction to make the order, or

(b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness."

63 There was discussion in the course of the hearing of the appeal as to whether the content of procedural fairness might be affected by the circumstances of the particular case. Although there are statements in the authorities which might be read as supporting such a view, in principle, the requirements of procedural fairness are identified as a matter of law depending upon the institutional setting in which decision-making is to operate, the relevant statutory scheme, the subject matter of the decision and, as part of that analysis, the seriousness of the potential consequences of an adverse decision.

64 If, for example, procedural fairness requires that reasonable steps be taken to notify a person of a proposed decision, that will adequately define the content of the obligation. Whether or not it has been satisfied will depend upon the factual circumstances in which breach is alleged.

65 For this reason, the unchallenged finding of the primary judge that Ms Brennan did not receive the notice is relevant and takes her case outside the scope of s 25(2), because she is not a party "who has been notified".

66 No different conclusion can flow from the terms of cl 30, or that clause would be inconsistent with the provisions in the Act. In any event, absent reliance on cl 50(4), the evidence accepted by the primary judge demonstrated that the notice had not in fact been "duly served". Accordingly, in its terms, cl 30(1)(a), was not engaged. Alternatively, if, the matter properly falls within cl 30(2), Ms Brennan was not a party who had been "so notified".

67 There may also be doubt as to whether a person who has not in fact been notified of the time and place of a hearing can be said to have "fail[ed] to attend", for the purposes of s 25(2) or cl 30(2). Under the Migration Act, a person is to be notified of the Minister's intention to cancel a visa, a step which may be carried out where "the person does not satisfy the Minister that the person passes the character test": s 501(2). In Osborne v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1113; 124 FCR 416, French J held that "prior notice to the visa holder is to be implied as a necessary condition of the power": at [19]. A similar conclusion may be inferred in respect of a power conditioned on a failure to attend. It is at least an awkward use of language to say a person "fails" to do something of which he or she has no notice.

(f) Migration Act 1958

68 Thirdly, in support of its argument that posting a notice in compliance with s 78 was sufficient notification, whether or not the notice was delivered and whether or not it was received by Ms Brennan, the Housing Corporation relied upon a line of authority in the Federal Court dealing with the operation of the Migration Act . In its written submissions, reference was made to a decision of the Full Court (Sundberg, Hely and Gyles JJ) in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134; 136 FCR 407. The issue was whether the Tribunal had properly notified an applicant for a protection visa of the hearing and taken the necessary steps to invite the applicant to appear before it. In the course of oral argument, reference was made to two further Full Court decisions, namely Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91; 138 FCR 450 (Dowsett, Jacobson and Bennett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v George [2004] FCAFC 276; 139 FCR 127 (Black CJ, Emmett and Selway JJ). In each case, the question was whether the Minister had taken necessary steps to notify the applicants of her intention to cancel their visas on account of criminal activities in Australia.

69 Under s 501 of the Migration Act , the Minister has power to cancel a visa where he or she "reasonably suspects that the person does not pass the character test". That may arise in a variety of circumstances: s 501(6). The first limb, where "natural justice applies", requires for engagement of the power a reasonable suspicion on the part of the Minister that the person does not pass the character test and the person does not satisfy the Minister that he or she does pass the test: s 501(2). The second limb, where the section states that natural justice does not apply, operates where there is a combination of reasonable suspicion and satisfaction that the cancellation is in the national interest: s 501(3). Section 501(5) provides:

"(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3)."

70 It is inferred that "the code of procedure" does apply in relation to a decision under s 501(2). The code of procedure "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule": s 51A. There was also provision in the Migration Regulations 1994 (Cth) in respect of giving documents relating to a proposed cancellation: reg 2.55. Where that regulation applied, it required that the document be given in one of a number of ways, including posting it to the person's last known residential address: reg 2.55(3)(c). Where that course was taken, the person was "taken to have received the document" within a specified period of days: reg 2.55(7).

71 This line of authority appears to commence with the decision of French J in Osborne : above at [67]. Given the terms of s 501(2), his Honour held that prior notice was a necessary condition of the exercise of the power, but further found that the implied condition was not absolute, for otherwise "a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers": at [20]. He inferred that the condition required only that "reasonable steps" be taken to notify the visa holder: at [20]. Regulation 2.55 was held not to operate because there was no "last residential address" known to the Minister: [15].

72 In Ball , the notice was sent, but returned undelivered before the decision was made. Dowsett J applied the "reasonable steps" test, without referring to reg 2.55: at [18]-[23]. Jacobson and Bennett JJ appear to have accepted that reg 2.55 did apply and was followed, but was not conclusive of the question, which was to be determined according to the "reasonable steps" test adopted in Osborne : at [104]-[105].

73 In George , two notices were sent, to different addresses: the first was returned, but the second was not. It was nevertheless accepted that the person did not receive either of the letters and was not aware of their contents when the decision was made: at [8]. However, because the second letter was not returned, steps were taken to cancel on the basis that it had been received: at [9]. In George , the reasoning was more closely aligned with that of French J in Osborne , the Full Court holding that reg 2.55 was not engaged because the notification was not sent to the person's last address known to the Minister: at [36]. It was therefore necessary to consider whether reasonable steps had been taken, in circumstances where it was not suggested that the visa holder was avoiding service. The Court stated:

"52 Where a decision is based on information or material that, unbeknownst to the decision-maker, is false or incorrect, that may not give rise to jurisdictional error, even though the decision may be objectively unfair, so long as there was in fact information or material before the decision-maker on which the decision could be based.

53 However, different considerations arise where, for whatever reason, a visa holder has not in truth been afforded the right to be heard. Where the Minister believes, erroneously, albeit on reasonable grounds, that a visa holder has been notified and proceeds on that untrue basis, there will be an error. The question is whether that error is a jurisdictional error. In order to determine whether a particular order [error?] is jurisdictional, it is essential to consider the relevant statutory context: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 374, 389-391 and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [2 5 ]-[26], [37], [69] and [76]-[78]."

74 The Court held that the error was jurisdictional because of the potentially serious consequences of losing an opportunity to persuade the Minister not to exercise a discretionary power, even though clearly engaged, and because of the significant consequences of cancelling a visa.

75 Because the scope and operation of cl 50(4) of the Regulation are not critical to the resolution of this case, the approach of the Federal Court to similar provisions in the Migration Act has no direct application. However, the following principles may be derived from the line of authority in the Federal Court discussed above:

(a) a deeming provision ("service ... is taken to have been effected") is apt to operate in circumstances where actual service has not resulted;

(b) it is, therefore, necessary to view the provision in its statutory context, to ensure that its intended effect was to replace or qualify an important aspect of procedural fairness;

(c) if that is its effect, careful attention must be paid to the circumstances to ensure that the provision is engaged, according to its terms, and

(d) if it is not engaged, it will be necessary to identify the requirements of general law principles of procedural fairness, in the relevant statutory context.

(g) procedural fairness: conclusions

76 The outcome in the present case depends on the answer to two related questions. These are, first, who is to determine whether a party has been given a "reasonable opportunity" to be heard and, secondly, on what material is that question to be answered. The inter-relationship is obvious: if the question is to be determined in the first instance, subject to appeal or review, by the Tribunal, it must, presumably, be on material available to the Tribunal. If it is appropriate to determine the question by reference to other material, the Tribunal's decision cannot be determinative. The answer to these questions is critical in the present case: on the material before the Tribunal, it would be difficult to challenge the conclusion that s 35 had been satisfied, and therefore procedural fairness had been accorded. A different result may follow from the evidence of Ms Brennan that she did not receive the notice, but that information was not before the Tribunal.

77 There is authority which would favour the proposition that, although the assessment may need to be that of the court exercising supervisory jurisdiction, the relevant material is that which was before the decision-maker. Thus, in Kioa v West at 627, Brennan J stated:

"What the principles of natural justice require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known. The repository of a power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonably and fairly."

78 Subsequent authority is inconsistent with that proposition, if treated as a general rule. In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82, a tribunal wrongly assured the applicant that it had copies of certain material, which it did not in fact have before it. As explained by Gleeson CJ at [4]:

"As a result of the conduct of the Tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to his credibility. The circumstance that this resulted from an innocent mis-statement does not alter the position. The question concerns the nature and extent of the statutory power exercised by the Tribunal, and the condition that the power be exercised in a manner which was procedurally fair; not the good faith of the Tribunal."

79 To this last statement it may be added that the answer to the question did not depend on an assessment of whether the Tribunal had taken all reasonable steps to assure itself that it understood the nature of the material to which the applicant was referring and the nature of the material on the file: see also at [70] (Gaudron and Gummow JJ).

80 On this basis, it was open to Ms Brennan to give evidence that she did not in fact receive the notice, evidence which was given before the primary judge without objection, on the basis that it might be relevant if the principal argument of the Housing Corporation, based on cl 50 of the Regulation, was not a complete answer to the complaint. The matter was dealt with in this Court on the same basis, which should be accepted as correct, as a matter of law.

81 This was a case in which, as a matter of fact, Ms Brennan was not accorded a reasonable opportunity to appear at and present her case at the hearing fixed by the Tribunal. For that omission, neither the parties nor the Tribunal were in any relevant sense at fault. Nevertheless, there was a breach of the obligation to accord procedural fairness and, for that reason, the decision of the Tribunal was properly set aside by the primary judge, although without due consideration of the operation of the statutory scheme.

(5) Findings without evidence

(a) legal principles

82 Because, for the reasons indicated above, the primary judge was correct to set aside the decision of the Tribunal on the ground of procedural unfairness, it is not strictly necessary to address the second set of submissions made by the Housing Corporation, challenging three aspects of the decision of the Tribunal which were held by Hoeben J to have been made in the absence of relevant evidence. Nevertheless, as the matter will need to be reconsidered by the Tribunal, although potentially on a different factual basis, it is desirable to address these additional grounds.

83 Although there was reference to "error on the face of the record" before his Honour, he correctly noted that Ms Brennan needed to establish jurisdictional error, in the light of the privative provisions of s 65 of the CTTT Act : at [54]. His Honour first concluded that certain findings made by the Tribunal were jurisdictional because the Tribunal "only had power to make the orders which it did provided it was satisfied as to the matters which it had to consider under s 64(2) and 64(4) [of the Residential Tenancies Act 1987 (NSW)]": at [62]. The relevant parts of s 64 state:

" 64 Application to Tribunal by Landlord for termination and order for possession

...

(2) The Tribunal, on application by a landlord under this section, is to make an order terminating the agreement if it is satisfied:

...

(b) in the case of a notice given by a landlord on the ground referred to in section 57, relating to a breach of the agreement:

(i) that the landlord has established the ground, and

(ii) that the breach, in the circumstances of the case, is such as to justify termination of the agreement ....

...

(4) Without limiting the obligations of the Tribunal under subsection (2)(b) ..., in considering the circumstances of a case concerning social housing premises under that provision, the Tribunal, in addition to having regard to the circumstances of the tenant and other circumstances of the case, is to have regard to such of the following matters as may be relevant:

(a) any serious adverse effects the tenancy has had on neighbouring residents or other persons,

(b) whether any breach of the residential tenancy agreement was a serious one ...."

84 Section 64(2) identified a particular kind of 'jurisdictional fact', namely the state of satisfaction of the Tribunal. A state of satisfaction may not be validly reached in law, where the Tribunal "is bound to take a factor into account but does not": Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [54] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

85 Section 64(4) had a different function: it imposed on the Tribunal an obligation to have regard to the matters which it identified. Failing to have regard to considerations which were mandatory so far as relevant, would constitute jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [39] (Mason J). However, the primary judge did not suggest that the Tribunal failed to give consideration to those factors; rather, it made findings about them which were said to be unsupported by the evidence: at [57]-[60]. There may be circumstances in which taking a mandatory consideration into account in an erroneous manner can demonstrate jurisdictional error, but that possibility was not explored.

86 His Honour stated that the Tribunal "only had power" to make a possession order if "satisfied as to the matters which it had to consider under s 64(2) and s 64(4)": at [62]. This statement was problematic. First, in relation to s 64(2), it reversed its purpose, which was to require the Tribunal to make an order terminating the agreement if affirmatively satisfied of certain matters. In other words, if so satisfied arguably the Tribunal had no discretion as to the proper order. It may have followed, but did not necessarily follow, that if not so satisfied, the Tribunal had no power to terminate the agreement. This possibility was not discussed.

87 Secondly, s 64(4) did not create a state of satisfaction as a condition precedent to the exercise of the power, but only matters to be considered. Accordingly, his Honour's conclusions cannot stand on the basis which he identified.

88 There are further difficulties. His Honour accepted that it was open to the Tribunal to characterise the breach of lease by the plaintiff as "serious, this being a normative assessment on which minds might differ": at [57]. He then held that there was no evidence before the Tribunal that:

(a) any drugs were on the premises other than on the specific occasion when the police attended - at [59];

(b) the premises had been used for the storage of drugs for some time - at [59];

(c) the small quantity of drugs found on the premises could affect persons outside the premises who are tenants of the Corporation - [59];

(d) "there are a large number of other tenants of the landlord who could be significantly affected by the illegal activities occurring in her premises" - at [58];

(e) the conduct of the plaintiff "had the potential for very serious social consequences" - at [58], and

(f) Ms Brennan would be able "to relocate to suitable accommodation at the same locality" - at [60].

89 None of these findings was itself a jurisdictional fact, absent which the Tribunal lacked power to terminate the agreement. The relevant jurisdictional fact was the satisfaction of the Tribunal that the breach of the agreement justified termination: s 64(2)(b)(ii). As recently noted by Gummow ACJ and Kiefel J, "the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 of the terms 'arbitrary, capricious, irrational' as well as 'not bona fide' to stigmatise the formation of an opinion upon which a statutory power was enlivened": Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23]. Their Honours continued:

"Subsequently, for the Supreme Court of Canada, Iacobucci J spoke of decision making upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open. [ Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 776-777]."

90 In that case Crennan and Bell JJ referred to "findings or inferences of fact which were not supported by some probative material or logical grounds", as a basis of jurisdictional error: at [103] referring to Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [147] (Gummow J); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [4] (Gleeson CJ, noting one of the grounds of challenge); and see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [37]-[38] (Gummow and Hayne JJ). However, their Honours also referred to a line of authority, which included Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118, where Gibbs J referred to the elements derived from Hetton Bellbird and added the possibility of manifest or Wednesbury unreasonableness constituting a sufficient ground for jurisdictional error: at [122]; see also Abebe v The Commonwealth [1999] HCA 14: 197 CLR 510 at [116] (Gaudron J).

91 After consideration of the various discussions of similar issues in Australian authority, their Honours held at [130]:

"In the context of the Tribunal's decision here, 'illogicality' or 'irrationality' sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65 [of the Migration Act ], is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case."

92 The established principle with respect to the high bar for intervention required by reference to manifest unreasonableness was affirmed in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 85 ALJR 306.

93 As this Court has noted in the past, there is a link between illogicality and the "no evidence" principle: see Amaba Pty Ltd v Booth [2010] NSWCA 344 at [23]:

"Implicit in the statement that there is no evidence to 'support' a particular finding, is the characterisation of a relationship between the evidence and the finding. It is the same relationship inherent in the concept of "relevance", on which the laws of evidence depend. That relationship depends on a process of reasoning which must be logical or rational. Thus, evidence is relevant which, if accepted, 'could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding': Evidence Act 1995 (NSW), s 55(1). As explained by Gleeson CJ, Heydon and Crennan JJ in Washer v Western Australia [2007] HCA 48; 234 CLR 492 at [5]:

'The word 'rationally' is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury's assessment of the probability of the existence of a fact in issue at the trial.'"

(b) application of principles

94 Because the matter will need to go back to the Tribunal, it is undesirable to deal in detail with the material which was before the Tribunal when it made its order. However, some comment is desirable in respect of these grounds, lest it be thought that the Tribunal would be bound on the same material as was before it at the hearing on 19 November 2009, to reach different conclusions in respect of the matters set out at [89] above.

95 In respect of the presence of drugs on the premises and the storage of drugs - [88](a) and (b) - it seems likely that his Honour's conclusion was reached on the basis of the matters outlined in the reasons of the Tribunal. However, if there were evidence to support the findings made by the Tribunal, the fact that it was not set out in detail in the reasons does not allow a finding that there was no evidence to support the Tribunal's conclusions. In particular, the Tribunal heard oral evidence from Constable Jenkins, who was stationed at Macquarie Fields Police Station and took part in the search of the premises on 31 July 2008. That evidence provided a basis, adequate in law, for the conclusion that Mr Colquhoun was involved in drug dealing and that Mr Colquhoun had been living on the premises with Ms Brennan "for years now": Tcpt, 19/11/09, p 10(20). If a finding of dealing in drugs at the premises were to be made, the small quantity found by the police on one occasion would not be the sole basis on which finding [88](c) might be available. Further, the finding that other tenants might be significantly affected by illegal activities would also have been open - see [88](d).

96 Once some adverse effects of the tenancy on neighbouring residents or other persons is an available finding, whether the effects could be described as "serious", for the purposes of s 64(4)(a), is very much an evaluative judgment to be made by the Tribunal, as his Honour recognized. It may be that such a finding could be challenged as manifestly unreasonable, depending upon the circumstances, but that was not the basis upon which his Honour dismissed the conclusion as unavailable.

97 The final finding, [88](f), misstates the finding actually made by the Tribunal, which was in the following terms (Reasons at [45]):

"There is very little in the personal circumstances of the Tenant or her family which the Tribunal can weigh up against the objective seriousness of the breach. She is a young woman, apparently with limited income, supporting three young children. Other than the usual upheaval associated with a move, there was nothing to suggest that the Tenant would be unable to relocate to suitable accommodation in the same locality as she currently resides, if the order was made to terminate her tenancy."

98 There was no statutory requirement that the Tribunal not make an order terminating the tenancy unless satisfied that the tenant would be able to relocate: rather, the statutory requirement was to take account of the circumstances of the tenant.

99 In these circumstances, it could not be said that any of the findings identified by the primary judge demonstrated jurisdictional error. Whether or not the findings were the preferable findings in the circumstances, is not a matter for this Court.

(6) Challenge to District Court judgment

100 It remains to consider Ms Brennan's application for judicial review of the judgment in the District Court. On one view, she having succeeded before Hoeben J and that decision having been upheld, the District Court proceedings have no continuing relevance. From Ms Brennan's point of view, they remain relevant to the extent that she was unsuccessful and was ordered to pay the costs of the Housing Corporation in that Court. She seeks to have that costs order set aside.

101 Where a dissatisfied party seeks to appeal against a judgment on the merits, it cannot usually maintain that appeal and, at the same time, pursue proceedings by way of judicial review. That is because success on judicial review would invalidate the judgment against which the appeal had been brought and thus remove the subject matter of the appeal: see Wishart v Fraser [1941] HCA 8; 64 CLR 470. In these circumstances, it would be usual to put the party to his or her election. The situation is more complicated where the appeal is limited to a question of law, especially where grounds of appeal may reflect grounds available on judicial review. There is an apparent inconsistency between the judgment of the District Court that the decision of the Tribunal should not be set aside for any error of law and the conclusion of the primary judge in this Court that the decision was invalid for breach of procedural fairness.

102 There might, in the outcome, also have been inconsistency between the two judgments if the "no evidence" ground had been upheld in this Court, as that ground would have fallen within s 67 of the CTTT Act : see Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390. However, that ground has not been upheld.

103 The procedural fairness ground which was upheld by Hoeben J, and now by this Court, may well have been open to Ms Brennan in the District Court. As explained by Spigelman CJ in Kostas in this Court, a "reference ... to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal": HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [6]. So much followed from the express terms of s 67(8) of the CTTT Act. However, Ms Brennan did not give evidence in the District Court and the proceedings were not run on that basis.

104 Her appeal to the District Court was brought by way of a summons seeking leave to appeal. (Leave may have been necessary because the appeal was brought some two weeks out of time.) In each of its first three emanations, the primary ground alleged in the summons was a failure to comply with s 35 of the CTTT Act and provide Ms Brennan with a reasonable opportunity to call witnesses, present evidence and argue her case before the Tribunal. That ground was removed in the second further amended summons, and was expressly eschewed at the hearing before Hughes DCJ.

105 It is true that in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531, having identified jurisdictional error on the part of the trial judge, the High Court set aside the decision of the Full Bench in the Industrial Court (which heard the appeal from the trial judge) even though the jurisdictional error ultimately identified was not dealt with by the Full Bench, nor was it the subject of the leave application to the Full Bench.

106 The circumstances of Kirk differed in two respects from the present case. First, the original (invalid) judgment in Kirk was that of a court exercising criminal jurisdiction. The original (invalid) decision in the present case is one of a tribunal exercising a specialist civil jurisdiction. Secondly, although there was an independent application for leave to appeal from two appellate judgments of the Industrial Court in Kirk , the High Court appears to have treated the judgments of the trial court, the Full Bench and on review this Court as a chain, so that if the first judgment were invalid, those following should also be set aside. In the present case, the District Court appeal may be seen to stand outside the direct line of challenge, which goes from the Tribunal to the Common Law Division of this Court. Accordingly, there is no necessity to set aside the judgment in the District Court and, in the absence of relevant error on the part of the District Court, that course should not be taken.

107 As explained by Gleeson CJ and McHugh J in Abebe v The Commonwealth at [39], "it is beyond argument that the Constitution authorises the Parliament to invest State courts with jurisdiction to determine only part of an actual controversy between parties". That case was concerned with the limited powers of review conferred on the Federal Court in respect of migration decisions. It was thought to be anomalous that the Federal Court "could be required to affirm the legality of a decision which had been unlawfully made": at [53]. The majority rejected that contention on the basis that the judgment of the Federal Court merely affirmed that the appeal should be dismissed, not that the decision under review was valid for reasons not within the power of the Federal Court to consider. In the same sense, the judgment of the District Court rejecting Ms Brennan's appeal, was not inconsistent with the conclusion that the Tribunal's decision was invalid on grounds not raised in the course of the appeal to that Court.

108 The grounds argued before the District Court being in substance challenges to the factual findings of the Tribunal which, it has been suggested above, did not demonstrate jurisdictional error, the judgment of the District Court has not been shown to demonstrate error of law on the face of the record. Accordingly, the application for an order setting aside the judgment in the District Court should be refused with costs. As the matter took very little time in this Court, beyond that engaged by the arguments addressed on the appeal from Hoeben J, the respective successes of each party may be reflected in an order that the Housing Corporation pay 90% of Ms Brennan's costs in this Court.

(7) Conclusions

109 The Court should make the following orders:

(1) In respect of the Housing Corporation's application for leave to appeal from the judgment of Hoeben J delivered on 2 November 2010:

(a) grant leave to appeal;

(b) direct the Housing Corporation to file a notice of appeal in the form of the draft notice contained in the white folder;

(c) dismiss the appeal.

(2) Dismiss Ms Brennan's application for judicial review of the judgment of the District Court delivered on 30 June 2010.

(3) Order the Housing Corporation to pay 90% of Ms Brennan's costs in this Court.

110 HANDLEY AJA : I have had the benefit of reading the reasons for judgment of Basten JA in draft. I agree substantially with his reasons in paras [21]-[99] and do not wish to add anything. I will give my own reasons on the other issues.

111 The proceedings comprised an appeal by leave from a decision of Hoeben J of 2 November 2010 and a summons to judicially review a decision of Hughes DCJ of 30 June 2010. The former exercised the supervisory jurisdiction of the Supreme Court, recognised in s 65 of the CTTT Act, to quash an order the Tribunal had no jurisdiction to make because Ms Brennan had been denied procedural fairness (s 65(3)).

112 Hughes DCJ, exercised the appellate jurisdiction of the District Court under s 67(1) limited to questions of law, and dismissed Ms Brennan's appeal.

113 The Corporation did not rely on the judgment of Hughes DCJ as a bar to the judicial review proceedings heard by Hoeben J. A party entitled to the benefit of a res judicata estoppel, who fails to take the point and prove the record relied upon, waives the estoppel and the matter is then at large. It will be too late to raise the question for the first time on appeal: Spencer Bower & Handley Res Judicata 4 th ed pp 260, 262.

114 The Tribunal made its order for possession on 19 November 2009 after an ex parte hearing. Ms Brennan's summons for leave to appeal to the District Court was filed on 31 December, outside the 28 day time limit in UCPR Pt 50 r 50.3(1)(a). One of the grounds was denial of procedural fairness. The Tribunal was joined as a respondent, but there was no claim for judicial review.

115 The denial of procedural fairness ground was maintained in the amended summons of 28 January 2010 when the Tribunal was removed as a respondent. It was also maintained in the further amended summons of 1 June 2010. However it was abandoned at the start of the hearing before Hughes DCJ when counsel for Ms Brennan sought (black 14) and was granted (black 20) leave to file a second further amended summons.

116 The sole remaining ground of appeal was a claim that the Tribunal erred in law in finding that Ms Brennan's breach of the residential tenancy agreement was "such that it justified [its] termination".

117 On 24 June 2010 Ms Brennan commenced proceedings for judicial review in the Supreme Court.

118 The timing is significant. The amendment in the District Court on 30 June may have been sought to avoid a possible res judicata estoppel if an appeal on the procedural fairness ground failed. There may also have been concerns in an appeal limited to "a question with respect to a matter of law", that evidence that Ms Brennan did not receive notice of the adjourned hearing date may not be admissible.

119 The denial of procedural fairness upheld by Hoeben J was not apparent from the record in the Tribunal. It could only be established by a new finding based on evidence from Ms Brennan.

120 A denial of procedural fairness by a court or tribunal of limited jurisdiction deprives it of jurisdiction and raises a question of law: s 67(8), HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 [6] per Spigelman CJ. However in my opinion that question will not be within s 67(1) if it does not arise on the findings of the Tribunal or the evidence before it. This difficulty does not arise in judicial review proceedings.

121 The full ambit of the right of appeal conferred by s 67 and cognate provisions has not been finally determined although, as will appear, some matters are now settled. Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32, 241 CLR 390 ( Kostas ) established [23], [69], and [90] that such an appeal extends to implicit decisions and those that are a necessary step in the reasoning below even if the point was not in contention or articulated.

122 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 230, 71 NSWLR 230 established that an appellate court that finds a discretionary judgment vitiated by legal error can re-exercise the discretion where the relevant facts are agreed or have been fully found.

123 This Court has held that legal error in the decision appealed from does not authorise the appellate court to make findings of fact for the purpose of determining what orders should be made: B&L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, 74 NSWLR 481 [65], [66], [68], [69], [78] per Allsop P, [139], [150] per Basten JA; Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218 [53] per Allsop P, and [109], [124], [127] per Giles JA ( Edyp ).

124 The High Court on three occasions has refrained from expressing a view on this question: Vetter v Lake Macquarie City Council [2001] HCA 12, 202 CLR 439 in the joint reasons of Gleeson CJ, Gummow & Callinan JJ, and per Hayne J in concurring reasons; Amaca Pty Ltd v New South Wales [2003] HCA 44, 77 ALJR 1509, 1513 [22] in the joint reasons of McHugh, Gummow, Kirby, Hayne and Callinan JJ, and Kostas in the joint reasons of Hayne, Heydon, Crennan and Kiefel JJ at 412 [68].

125 There are dicta from French CJ in Kostas that an appellate court can find facts for the purpose of determining what orders should be made following a finding of legal error.

126 In Edyp (above) Allsop P at [34], and Giles JA at [126], [127] adhered to the earlier course of authority in this Court which denies the appellate court power to make additional findings of fact, once legal error has been identified, for the purpose of determining what orders should be made. I respectfully agree.

127 There is no support in the decisions of this Court or in the decisions or dicta of the High Court for the proposition that an appellate court acting under s 67 or its equivalent can make new findings of fact for the purpose of determining whether there has been legal error: Edyp (above) per Allsop P at [53], and per Giles JA at [124]. If the appellate court cannot make findings of fact for that purpose it cannot receive additional evidence for that purpose.

128 The power to receive and act on additional evidence on appeal involves an exercise of original, not appellate jurisdiction: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 19, 46 CLR 73, 110 per Dixon J; Mickelberg v The Queen [1989] HCA 259, 167 CLR 259; Eastman v The Queen [2000] HCA 29, 203 CLR 1.

129 Section 67 does not purport to confer original jurisdiction on the District Court unlike s 75A of the Supreme Court Act.

130 In my opinion therefore evidence from Ms Brennan that she did not receive notice of the adjourned hearing date was not admissible in the s 67 appeal to the District Court.

131 An appeal under s 67 and judicial review proceedings permitted by s 65 provide an aggrieved party with remedies which may overlap or be cumulative. The principle in Wishart v Fraser [1941] HCA 8; 64 CLR 470 does not preclude the pursuit of cumulative remedies where there is no inconsistency: Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 44, 263 ALR 556; Geflic v Merhi [2011] NSWCA 241 [38]-[39].

132 In Abebe v The Commonwealth [1999] HCA 14, 197 CLR 510 the majority upheld the validity of s 476 of the Migration Act which restricted the grounds for judicial review by the Federal Court of decisions of the Refugee Review Tribunal. The original jurisdiction of the High Court under s 75(v) of the Constitution was not, and could not be affected.

133 The Federal Court had dismissed Ms Abebe's application for judicial review and there was no appeal. It was suggested that this had "affirmed" the decision of the Tribunal and that s 476 was therefore unconstitutional because it purported to bar judicial review in the High Court on other grounds. The Court held that the dismissal of judicial review proceedings available on limited grounds did not affirm the legality of the decision for other purposes [54], [55].

134 Gleeson CJ and McHugh J said at [39], [49]:

"... it is beyond argument that the Constitution authorises the Parliament to invest State courts with jurisdiction to determine only part of an actual controversy between parties ... Thus the subject matter for decision by a federal court may embrace the whole controversy between the parties or part of it. The law defining the jurisdiction of the Court may provide limited remedies to the successful party or every remedy that is necessary to do justice between the parties and which is appropriate to the exercise of judicial power by any federal court. The choice is one for the Parliament."

Kirby J and Callinan J agreed in separate reasons.

135 The position in State jurisdiction must be a fortiori. The State Parliament could therefore invest limited appellate jurisdiction in the District Court under s 67 and limit the Supreme Court to review for jurisdictional error and denial of procedural fairness.

136 In my opinion the decision in Kirk v Industrial Court of New South Wales [2010] HCA 1, 239 CLR 531 is not relevant here. The appellants had been convicted in the Industrial Court by the trial Judge and the Full Bench dismissed their appeals. Since the Industrial Court lacked jurisdiction to convict the Full Bench had no jurisdiction to confirm the convictions. Its decision to dismiss their appeals could not confer the necessary jurisdiction even if the correct point was not taken.

137 The dismissal of the District Court appeal because error of law on the face of the record of the Tribunal was not established could not immunise its invalid order from judicial review for a latent defect of jurisdiction.

138 The decision of Hughes DCJ that the decision of the Tribunal could not be challenged for error of law in the District Court (Red 21) is therefore not inconsistent with the decision of Hoeben J, based on evidence in the Supreme Court, that Ms Brennan was denied procedural fairness.

139 Ms Brennan's summons in this Court filed on 30 September 2010 sought leave to appeal from the decision of Hughes DCJ. It was amended by leave granted by Allsop P on 8 December 2010 and became a summons for judicial review. There is no right of appeal to this Court from an order under s 67.

140 Hughes DCJ had jurisdiction to decide the appeal on the only ground argued and his decision was not vitiated for error of law on the face of the record. This Court has come to the same conclusion: per Basten JA at [87]-[89], [94]-[99].

141 I agree with the orders proposed by Basten JA.

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Amendments

13 October 2011 - Adding second day of hearing
Amended paragraphs: Coversheet

25 July 2013 - Typographical errors in 32, 42, and 107Amending cross-references in 57, 71, 95, 97 and 140
Amended paragraphs: 32, 42, 57, 71, 95, 97, 107, 140

Decision last updated: 25 July 2013