Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Abdishou v Hardy [2021] NSWCATAP 55 Hearing dates: On the papers Date of orders: 10 March 2021 Decision date: 10 March 2021 Jurisdiction: Appeal Panel Before: Armstrong J, President D Robertson, Senior Member Decision: (1) Application for an extension of time for the filing of the appeal refused. (2) Appeal dismissed. Catchwords: APPEALS - Extension of time refused - Principles as to extension of time - Procedural fairness - No error of law - No ground on which leave to appeal should be granted Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Conway v Brady [2018] NSWCATAP 51 Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 Category: Principal judgment Parties: Youel Abdishou (Appellant) Ben Michael Hardy (Respondent) Representation: N/A File Number(s): 2020/00371163 (AP 20/47785) Publication restriction: nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 10 September 2020 Before: F Holles, Tribunal Member File Number(s): HB 20/17709 REASONS FOR DECISION Background 1. This is an internal appeal against a decision of the Consumer and Commercial Division of the Tribunal (the Decision) dismissing an application brought by the appellant, Mr Abdishou, against the respondent, Mr Hardy, who trades under the business name "Need a Fencer". By his application Mr Abdishou sought orders that Mr Hardy "remove, fix and re-install" a fence which Mr Hardy had constructed. Mr Abdishou asserted that the fence contained multiple defects, in particular that the panels did not overlap, the fence was not installed straight and a big gap was left at the bottom of the fence. 2. Mr Abdishou filed his application on 21 April 2020. He attached to the application a number of documents including an invoice from "Need a Fencer" dated 24 August 2019 for the construction of fences to the left and rear boundaries of Mr Abdishou's property, a total length of 40.5 metres. The invoice records payment of a sum of $4,000, leaving a balance of $456. The invoice also records the payment of a deposit of $1,114 so that the total value of the work carried out by Mr Hardy was $5,570. 3. It is thus apparent that the work carried out by Mr Hardy qualified as "residential building work" within clause 2(3)(a) of Schedule 1 to the Home Building Act 1989 (NSW) (HBA) and clause 12 of the Home Building Regulation 2014 (NSW) and that the Tribunal had jurisdiction to determine Mr Abdishou's application pursuant to section 48K of the HBA. 4. Mr Hardy commenced his own application on 3 July 2020 seeking the amount of $456, being the amount recorded in the invoice as remaining due and payable. 5. Mr Abdishou's application was heard on 10 September 2020, by telephone in accordance with the procedures adopted by the Tribunal during the Covid-19 pandemic. Mr Abdishou's claim was dismissed. It appears that Mr Hardy withdrew his application after the Tribunal had dismissed Mr Abdishou's application. 6. The Tribunal published short written reasons for the decision on the day of the hearing. It is convenient to set out the reasons for decision in full. 1. The application is dismissed because: Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established. 2. Reasons for decision: This is an application by a home owner in relation to a claim against a fencer. Firstly the applicant demanded a "face to face" hearing. He sent a letter to the Tribunal, without first checking in current Covid situation, whether that was possible. It is not. There are currently no face to face hearings in the Consumer and Commercial Division of NCAT. He then demanded an Assyrian interpreter; however, on his original application, he crossed the "NO" box as to whether or not he needed an interpreter. From my perspective, his English was more than adequate. He had a firm of solicitors engaged early on in the matter. I could see no application for legal representation by the applicant. He did not provide a report from a fencer which complied with the principle in Makita v Sprowles [2001] NSWCA 305 as to the alleged defects in the fence, relying solely upon a quotation for its replacement. Apart from his assertions, there was no evidence before the Tribunal of any defects in the work. The respondent provided a succinct and persuasive response to the applicant's claim. He claimed that he had a report and wanted another period of time to find the report. In the circumstances, given his indecision, and the failure to produce a report in a timely manner, and in accordance with the orders made on 30th of July 2020, I considered the future conduct of the matter. If he were to produce a report at a later time, it would have to be viewed by the respondent creating further delay. I consider that he has had ample opportunity to meet the requirements set out in the orders referred to above. In the circumstances I believed that little would be achieved by permitting him to withdraw the matter. Accordingly, given his failure to meet the civil standard of proof, the matter is dismissed. 1. Mr Abdishou filed a Notice of Appeal against the Decision on 13 November 2020. 2. On 27 November 2020 the Appeal Panel made directions for the filing of documents by the parties to the appeal. Mr Abdishou was required to lodge with the Tribunal and give to Mr Hardy by 24 December 2020: all evidence given to the Tribunal below on which he intended to rely; any evidence not provided to the Tribunal in making the decision under appeal on which he intended to seek leave to rely; written submissions in support of the appeal; and "the sound recording or transcript of the hearing at first instance, if … what happened at the hearing is being relied on, and a typed copy of the relevant parts". 3. Mr Abdishou sought an extension of time for the filing of his material. That application was refused by the Appeal Panel on 10 December 2020. 4. On 29 January 2021 the Appeal Panel made orders to dispense with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and directed that the appeal is to be decided on the papers without an oral hearing. We are satisfied that the issues arising from the appeal can be determined adequately in the absence of the parties on the basis of the material and submissions lodged by them, and that therefore this matter can be appropriately dealt with on the papers. Extension of Time 1. As we have noted above, Mr Abdishou filed his Notice of Appeal on 13 November 2020, which was well outside the period of 28 days after receiving notice of the decision, fixed by rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) as the time within which an appeal against the Decision was required to be lodged. Accordingly, Mr Abdishou requires an extension of time within which to lodge his appeal. 2. The Appeal Panel has power pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to grant an extension of time. 3. In Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel considered the principles which govern the granting of an extension of time. The Appeal Panel stated, at [22]: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 416 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. 1. Mr Abdishou explained the delay in lodging his appeal on the basis that "I could not possibly appeal within the time frame of 28 days because of Covid". Mr Abdishou also asserted that he was trying to secure legal advice. He stated that he had contacted "all the legal entities listed on the NCAT website". Mr Abdishou listed a number of entities including community legal centres. Mr Abdishou stated that "finally the Macarthur Legal Centre in Campbelltown gave some verbal advice yet refused to help with completing the appeal". Mr Abdishou stated that he had finally had to seek a private solicitor for advice and assistance. Mr Abdishou stated that "the wait was so long because all the solicitors were too busy with other matters". 2. Mr Hardy opposed the grant of an extension of time. Mr Hardy noted that "although Mr Abdishou claims to have been seeking legal advice … he still appears not to have any representation". 3. Mr Hardy stated that he looked forward to being able to put this matter behind him and that the "entire process has been stressful for both my family and I". Mr Hardy did not identify any other prejudice which would flow from an extension of time. 4. For the reasons which follow, we have decided not to grant Mr Abdishou an extension of time and accordingly the appeal will be dismissed. 5. The appeal was filed 36 days after the expiry of the time fixed by the Rules. That is a substantial delay. 6. Mr Abdishou's explanation for the delay, that he was delayed while seeking legal advice, was not supported by any evidence either in the form of a statement or documentation. 7. Moreover, regardless that Mr Abdishou claims to have been delayed through seeking legal advice, the content of the Notice of Appeal does not suggest that Mr Abdishou had received any legal assistance in its preparation. 8. Although the prejudice to Mr Hardy is not substantial and Mr Hardy has not suggested that he has sustained any financial detriment through the delay, he has nevertheless been required to deal with Mr Abdishou's application which we accept has caused him stress. 9. Finally, for reasons which we will address briefly below, we do not consider that Mr Abdishou's appeal has sufficient prospects of success to warrant an extension of time. 10. It is appropriate to set out the documents which the Appeal Panel has before it in considering the appeal: 1. The original home building application filed by Mr Abdishou in the Consumer and Commercial Division of the Tribunal on 21 April 2020 with attachments, which included a Business Name Search for "Need a Fencer"; a notice from Fair Trading recording that a complaint had been lodged with Fair Trading and that the dispute could not be resolved at mediation; the invoice dated 24 August 2019 from Need a Fencer to Mr Abdishou; and six photographs of the fence, three of which bear annotations referring to the alleged defects of which Mr Abdishou complained. 2. The application lodged in the Consumer and Commercial Division by Mr Hardy on 3 July 2020; 3. The Decision. 4. Mr Abdishou's Notice of Appeal filed on 13 November 2020, with attachments, being: 1. A copy of the Decision; 2. An email from Mr Abdishou to the Tribunal dated 18 September 2020 in which Mr Abdishou raised his concerns about the Decision and stated he was seeking legal advice. We note that this document does not appear to have been forwarded to Mr Hardy before Mr Abdishou filed his Notice of Appeal; 3. An email dated 3 September 2020 from Mr Abdishou to the Consumer and Commercial Division of the Tribunal and Mr Hardy seeking that the hearing on 10 September 2020 be face-to-face and suggesting that Mr Abdishou might require an interpreter at the time of the hearing; 1. The Reply to Appeal filed by Mr Hardy on 25 November 2020; 2. An email from Mr Hardy to Mr Abdishou and the Tribunal attaching "tracking information", confirming that Mr Hardy's Reply to Appeal was delivered to Mr Abdishou; 3. A document forwarded to the Tribunal by Mr Hardy on 20 January 2021 attaching and responding to a document dated 16 December 2020 which Mr Hardy stated was sent by email by Mr Abdishou to Mr Hardy and the Tribunal on 16 December 2020. Mr Abdishou's document is headed "Reply to NCAT letter rejecting the appellant's request for extension of time". 4. A copy of the directions made by the Appeal Panel on 30 November 2020, 10 December 2020 and 27 January 2021. The Scope and Nature of Internal Appeals 1. By virtue of s 80(2) of the NCAT Act, internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable; or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Grounds of Appeal 1. Mr Abdishou's Notice of Appeal listed nine grounds of appeal as follows: (1) I was not given adequate opportunity to put my case in the manner the NCAT required. (2) I believe my case failed due to the conduct of the Tribunal Member. (3) The Telephone Hearing was absolutely inconvenient for me due to bad connection, language barrier, also my industrial deafness. (4) I was basically bullied by the Tribunal Member, constantly referring to withdraw my Application. (5) The photos presented and the explanation of fence defects installed by the respondent were clear evidence. It does not require fence expert report. But the judge did not spare time to browse and give fair judgment. (6) I was unaware the Tribunal member will ask me to produce Fence Expert Report. Since I already have two quotations from specialised fencers who inspected the fence and advised that it should be rectified or removed and replaced with a standard one. (7) Asked the Tribunal Member I need time to get the Expert Report and my request was denied by the Member. (8) The Tribunal Member at one stage said to me "Mr Abdishou what makes you so unique? We have thousands of cases to look at so it is not only your case?" (9) On 18/9/2020, I appealed the Dismissal in an email sent to NCAT Tribunal. I know it was NOT a Formal Appeal but I was trying at this time to secure Legal Advice beyond the Time Frame of the appeal. 1. In his Notice of Appeal Mr Abdishou also sought leave to appeal on the basis that the Decision was not fair and equitable, that the Decision was against the weight of evidence and that there was significant new evidence now available that was not reasonably available at the time of the hearing. 2. In respect of his application for leave to appeal on the basis that the Decision was not fair and equitable Mr Abdishou repeated the grounds of appeal. Mr Abdishou also asserted that he was not given procedural fairness and stated: (9) On 3/9/2020 I called NCAT asked if I can have an Assyrian interpreter and to have the hearing face-to-face. The NCAT staff told me to put that in writing and submit by email and I should receive a reply in two days. (10) NCAT did not reply to my email/request so I assumed that the hearing will not take place as scheduled on 10/09/2020. (11) I was not expecting when I received a call from "Unknown Number", it was the Tribunal Member who started the Hearing on the phone. (12) I told the Member I was not ready for this hearing but waiting for the NCAT reply to my email of 3/9/2020. (13) The Member ignored me and said "Mr Abdishou you should have known that because NCAT did not reply, this means that the hearing is going ahead." 1. In his application for leave to appeal on the basis that the Decision was against the weight of evidence Mr Abdishou stated: "The applicant has an expert report, but was misplaced at the time of the hearing. The applicant sought to adjourn the hearing to locate and provide that expert report but the request for the adjournment was refused." 1. Mr Abdishou repeated that statement in relation to his application for leave to appeal on the basis that there is significant new evidence. Mr Abdishou identified the expert report referred to in the above passage as being the additional new evidence. We note that Mr Abdishou did not provide a copy of any such expert report to the Appeal Panel. 2. As the Appeal Panel held in Cominos v Di Rico [2016] NSWCATAP 5 at [13]: 13 It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice." 1. We have followed this approach in considering Mr Abdishou's Notice of Appeal. The only potential error of law which we can identify in Mr Abdishou's Notice of Appeal is the assertion that the Tribunal failed to accord Mr Abdishou procedural fairness. Failure to accord procedural fairness would be an error of law. However, to establish such a failure in this case, it would be necessary for the Appeal Panel to be provided with the recording or transcript of the hearing at first instance to enable the Appeal Panel to assess whether Mr Abdishou's complaints in relation to the conduct of the hearing were justified. 2. A number of matters raised by Mr Abdishou in his Notice of Appeal might, had they been established, have constituted a denial of procedural fairness. If he was not given an adequate opportunity to put his case, if he was bullied by the Tribunal Member and constantly asked to withdraw his application, if he was unreasonably denied an adjournment (see Conway v Brady [2018] NSWCATAP 51 at [13]), Mr Abdishou could legitimately assert that he was denied procedural fairness. The denial of an interpreter or other assistance necessary to enable a party to fully participate in a hearing may also constitute a denial of procedural fairness. (See SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at [44]-[45]). 3. However, Mr Abdishou has not put before the Appeal Panel a transcript of the hearing or even the recording of the hearing and has not established even a prima facie case that he was denied procedural fairness. 4. We note that, in a document attached to Mr Hardy's Reply to Appeal, Mr Hardy stated: "the hearing was conducted in a fair manner" and that he did not "witness any poor behaviour as alleged against the Tribunal Member". 5. The Tribunal, along with other courts and tribunals in Australia, has had to conduct hearings by telephone or video-link during the course of the Covid-19 pandemic. The Tribunal has long experience conducting telephone hearings and it cannot be said that, other than in extraordinary circumstances, a party will have been denied procedural fairness merely through not being able to have a face-to-face hearing. 6. As the Tribunal noted, Mr Abdishou had not sought an interpreter in his original application to the Tribunal. Mr Hardy stated in his Reply to Appeal that he had found Mr Abdishou's English to be "more than sufficient". If an interpreter is not provided when a party has requested an interpreter and their English is not adequate to enable them to participate adequately in the proceedings, that may constitute a denial of procedural fairness. However, Mr Abdishou has not put forward any material, beyond the bare assertion in his Notice of Appeal, from which the Appeal Panel might draw the conclusion that he was denied procedural fairness through not having an interpreter at the hearing. 7. The Tribunal declined to grant Mr Abdishou an adjournment to obtain an expert report for the reasons set out in the three paragraphs of the Decision preceding the final paragraph. Those reasons were proper and appropriate. Mr Abdishou had had "ample opportunity" to provide an expert report and had failed to do so. It cannot be said that Mr Abdishou was denied procedural fairness through the refusal of his request for an adjournment. 8. Other than the asserted denial of procedural fairness, all of Mr Abdishou's grounds of appeal relate to the fact that the Tribunal rejected Mr Abdishou's assertions that the fence was defective in the absence of any expert evidence to that effect. 9. To succeed on his application Mr Abdishou needed to establish on the balance of probabiliies that the work carried out by Mr Hardy was defective in the sense that it was not carried out with due care and skill or was otherwise carried out in breach of the statutory warranties implied into a contract for residential building work by s 18B of the HBA. In the absence of independent evidence from an appropriately qualified person that the fence was defective in that sense, the Tribunal made no error in dismissing Mr Abdishou's application on the basis that Mr Abdishou had not established his case to the "civil standard of proof", that is the balance of probabilities. 10. To the extent Mr Abdishou sought leave to appeal on the basis that there was new evidence not reasonably available at the time of the hearing, he did not put any such new evidence before the Appeal Panel and accordingly it would not be appropriate to grant leave to appeal on that ground. 11. For the above reasons, if an extension of time were granted, Mr Abdishou's appeal would have no prospects of success and, accordingly, as we have indicated above, we decline to extend the time for filing of the appeal. 12. Our orders will be: 1. Application for an extension of time for the filing of the appeal refused. 2. Appeal dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2021