Civil and Administrative Tribunal New South Wales Medium Neutral Citation: My Energy Group Pty Ltd v Doan [2021] NSWCATAP 265 Hearing dates: 31 August 2021 Date of orders: 10 September 2021 Decision date: 10 September 2021 Jurisdiction: Appeal Panel Before: Cowdroy ADCJ AO QC, Principal Member D Goldstein, Senior Member Decision: (1) The proceedings be adjourned part heard for further hearing on a date to be fixed by the Registrar; (2) The appellant is to order the sound recording and to provide a transcript of the recording before the appeal is to be relisted for hearing; (3) The Registrar is to notify the parties that unless the appellant indicates by 1 November 2021 that he is ready to proceed with the appeal, and that the sound recording and transcript have been made available, the respondent may apply for dismissal of the appeal. (4) The Registrar is to note a request of the respondent that the appeal be set down on a date suitable to him due to his work commitments and that the respondent will inform the Registrar of dates which are unsuitable to him during November 2021. Catchwords: APPEAL - – procedure – directions requiring production of audio recording – audio recording and transcript not available for hearing – inability of appeal to be heard in the absence of reasons – appellant unable to access audio due to Covid limitations – hearing adjourned subject to conditions until audio recording is available. Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Al Bisher v Sabbagh [2021] NSWCATAP 100 Collins v Urban [2014) NSWCATAP 17 Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 Texts Cited: None cited Category: Principal judgment Parties: My Energy Group Pty Ltd (Appellant) Huy Doan (Respondent) Representation: A Li (Authorised Officer) (Appellant) Respondent (Self Represented) File Number(s): 2021/00153527 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: N/A Date of Decision: 29 April 2021 Before: M Eftimiou, General Member File Number(s): HB 21/12490 REASONS FOR DECISION 1. By amended notice of appeal filed on 3 June 2021 the appellant ("My Energy") appeals a decision of the Tribunal made on 29 April 2021, the notice of decision being received by the appellant on 14 May 2021. Facts 1. "My Energy" sued the respondent (Huy Doan hereafter referred to as "Doan") in respect of the cost of supply and installation of solar panels upon the roof of the respondent's rented shop the premises. By invoice number 1617 0693 issued by My Energy on 28 November 2018 the appellant claimed the amount of $14,288. 2. It appears from the Tribunal file that Doan responded, asserting that that there was a gross overcharge by My Energy and that he (Doan) had paid $5,500 towards the cost of installation which was a price agreed which was "under $10,000". Doan referred his assertion to NSW Fair Trading. Having investigated Doan's claim, NSW Fair Trading wrote to Doan on 4 August 2020. Such letter states that the offer made by My Energy of $14,000 to settle the difference was still available. 3. Thereafter, a Home Building Application was made to this Tribunal on 17 March 2020 by Doan disputing the claim. It was asserted by Doan that the price for the installation was agreed to be under $10,000; that following completion of the work, the above invoice was sent to the respondent. Tribunal Findings 1. The Tribunal made the following orders: Huy Doan appellant is to pay the respondent the amount of $3000 on or before 13 May 2021. Reasons: $3000 balance of money owed under the contract The Tribunal declares that the sum of $6,288 is not due and owing by Huy Doan of [address] to My Energy Group Pty Ltd [address] in respect of Invoice 1617 0693". 2. The respondent's name My Energy, is amended to My Energy Group Pty Ltd. Oral reasons given at the hearing of the matter.' The Appeal 1. The grounds of appeal assert that the decision of the Tribunal: 'was "based on faules (sic) and fake statement by the original applicant (respondent). Telephone issue happened during the phone call with the Tribunal member, she hung up the call and did not leave a number I can call back.' 1. The Orders sought on this appeal state as follows: 'The original applicant Huy Doan should pay the full amount of outstanding balance, plus the interest incurred by owing the debt more than 18 months which we did not count on him before.' Reply 1. The reply asserts that the original findings were correct; that there were employees who could witness the installation. Observations 1. It is apparent that the appeal is based upon the fact that the decision is not fair and equitable. As such, since this is an internal appeal within section 80 (1) of the Civil and Administrative Tribunal Act 2013 ('NCAT Act'), leave is required as referred to in s 80(2)(b). The decision in Collins v Urban [2014) NSWCATAP 17 states at (84] the circumstances in which leave will be granted. The Appeal Panel there held: '(1) in order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision-maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily is appropriate to grant leave to appeal only matters that involve: (a) issues of principle; (b) questions of public importance or matters of administrational policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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…" 1. The Orders do not reveal the reasons why they were made and the oral reasons which were given at the hearing of the matter are not available to the Appeal Panel. Directions were made by the Tribunal on 25 June 2021 requiring the parties to provide, inter alia, the sound recording or transcript of the hearing of first instance if the reasons were to be relied upon together with a typed copy of the relevant parts. 2. A further order was made on 26 July 2021. This order resulted from an application for an extension of time which was refused. The order made is as follows 'The practice of the Tribunal is to accept email applications for the sound recording and also to accept payment over the phone by taking credit card details. The current orders are affirmed.' The Hearing 1. When the hearing of this appeal commenced, it became apparent that the appellant did not possess a copy of the sound recording of the reasons, nor a transcript of the reasons. The appellant explained that when he made application for the sound recording, he was informed that it would take at least four weeks for it to be supplied. Accordingly, since the appeal was fixed for hearing within four weeks, he took no steps thereafter to obtain it. The appellant also claimed that the COVID 19 restrictions prevented him from applying in person, and that it was not possible to order the sound recording by telephone. 2. The Appeal Panel explained to the appellant that, in the absence of reasons, it could not proceed to determine the appeal, nor determine whether leave to appeal should be granted, and invited the appellant to seek an adjournment in which to obtain the sound recording and to have a transcript prepared. The appellant stated that he wished to apply for such an adjournment. 3. Mr Doan opposed such application. Mr Doan explained that it was necessary for him to take time off work and that he was busy. An adjournment would necessitate another hearing day. It was explained that the hearing was listed for half day only. Consideration 1. The provision of reasons for consideration by an Appeal Panel is fundamental to the conduct of an appeal. Without such reasons, it is quite impossible for an Appeal Panel to understand the basis of the decision and to understand the challenges made to the decision. It is the obligation of an appellant to supply a written transcript of the sound recording to the Tribunal in advance of the hearing of any appeal so that the Appeal Panel can consider the appeal. 2. There have been instances where an Appeal Panel has dismissed an appeal where the reasons were not available: in Al Bisher v Sabbagh [2021] NSWCATAP 100 such a course was adopted. The Appeal Panel said at [18): 'The Appeal Panel cannot fulfil the guiding principles set out ins 36 (1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings if it has to review for itself a lengthy sound recording of the hearing at first instance in circumstances where it has directed a party who is relying on what happened at the hearing to prepare a typed copy of the relevant parts of the oral reasons. Section 36 (3) of the NCAT Act makes it plain that the parties to proceedings in the Tribunal have a duty to co-operate with the Tribunal and comply with directions and orders of the Tribunal to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings.' 1. Similar observations were made in Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123. In that appeal the appellant had not provided the sound recording nor the transcript. Instead the appellant sought, by way of substitution, to make oral submissions. The Appeal Panel said at [28]: 'We also explained to the appellant more than once how an appeal was different to a hearing, how she needed to demonstrate error by the Tribunal, that an error was not simply the result arrived at by the Tribunal (with which she might disagree), but the error made in the Tribunal's reasoning process which caused the Tribunal to arrive at a wrong result.' 1. The same considerations apply in the matter now before the Appeal Panel. It needs to know what was the reasoning process which led to the decision which is now challenged. Such reasons need to state the findings on material questions of fact, referring to the evidence or other material on which those findings are based; the Tribunal's understanding of the applicable law, and the reasoning process that led to the Tribunal's conclusions: see s 62 (3) of the NCAT Act. 2. The Appeal Panel takes note of the restrictions that have been imposed as a result of the Covid pandemic and accepts that the appellant has had difficulty for this reason in accessing the reasons. For this reason, it considers that, in the interests of justice, an adjournment is warranted. An adjournment will be granted subject to the following conditions. Orders 1. The Appeal Panel orders: 1. The proceedings be adjourned part heard for further hearing on a date to be fixed by the Registrar; 2. The appellant is to order the sound recording and to provide a transcript of the recording before the appeal is to be relisted for hearing; 3. The Registrar is to notify the parties that unless the appellant indicates by 1 November 2021 that he is ready to proceed with the appeal, and that the sound recording and transcript have been made available, the respondent may apply for dismissal of the appeal. 4. The Registrar is to note a request of the respondent that the appeal be set down on a date suitable to him due to his work commitments and that the respondent will inform the Registrar of dates which are unsuitable to him during November 2021. ********** 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 September 2021