Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Batemans Bay Carwash Pty Ltd v Suntech Solar Pty Ltd [2021] NSWCATAP 277 Hearing dates: 26 July 2021 Date of orders: 15 September 2021 Decision date: 15 September 2021 Jurisdiction: Appeal Panel Before: T Simon, Principal Member D Ziegler, Senior Member Decision: (1) Extension of time to appeal the decision of 1 March 2021 refused. (2) Appeal of decisions of 1 March 2021 and 23 April 2021 dismissed. (3) Appellant to pay the respondent's costs in these proceedings. Catchwords: CONSUMER CLAIM - jurisdiction of Tribunal – amendment of claim – submission to Tribunal's jurisdictional limit – procedural fairness - order dispensing with a hearing – hearing on the papers. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Fair Trading Act 1987 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Batemans Bay Carwash Pty Ltd Suntech Solar Pty Ltd trading as Ausuntech Energy Representation: Solicitors: Mr Cartright for the Appellant Mr Fuenzalida for the Respondent File Number(s): 2021/00140131 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 1 March 2021 23 April 2021 Before: L Wilson, Senior Member File Number(s): GEN 20/40923 REASONS FOR DECISION 1. The appellant has appealed two decisions of the Tribunal. The first is a decision made on 1 March 2021 dismissing an application brought by the appellant for lack of jurisdiction. The second is a decision made on 23 April 2021 ordering the appellant to pay the respondent's costs. Background 1. The appellant runs a carwash business and the respondent operates a business of supplying and installing solar panels. 2. This dispute involves a solar panel system installed by the respondent at the appellant's business premises in 2019. On or about 1 November 2019 the respondent issued an invoice for $49,995 in respect of the installation. 3. On 25 September 2020 the appellant made an application to the Tribunal seeking relief from payment of the $49,995. 4. The application form lodged with the Tribunal stated that the appellant sought an order not to have to pay the respondent an amount of $49,995. The appellant alleged, among other things, that the respondent had engaged in misleading and deceptive conduct, that the system installed was not consistent with that ordered, and that the system installed was defective. 5. On 17 November 2020 the matter came before the Tribunal for a conciliation and group list hearing. At that hearing the question of jurisdiction was raised. The directions made by the Tribunal included a direction that: The Applicant is to advise by 24 November 2020 whether it consents to the jurisdictional limit of the Tribunal and if not, whether the application is to be transferred to the Local Court. 1. On 23 November 2020 the appellant' solicitors wrote a letter to the Tribunal which stated: We write this letter to confirm that the applicant consents to the jurisdictional limit of the Tribunal. 1. On 18 January 2021 the matter came before the Tribunal for a directions hearing. The Tribunal made directions for the parties to exchange documents in preparation for a hearing in relation to whether the Tribunal had jurisdiction to hear and determine the dispute. The directions made by the Tribunal included the following notation: The Tribunal notes that that [sic] parties have consented to a determination as to jurisdiction being made on the papers without the need for a hearing pursuant to section 55 of the Civil and Administrative Tribunal Act 1. On 1 March 2021 the matter came before the Tribunal for a hearing on the papers on the question of jurisdiction. The Tribunal made orders dismissing the application and provided written reasons (the "Jurisdictional Decision"). That is the first decision the subject of this appeal. 2. Following a written request by the respondent for a costs order to be made in its favour, further directions were made by the Tribunal on 12 March 2021, 29 March 2021 and 12 March 2021. On 23 April 2021 the Tribunal made the following orders and provided written reasons (the "Costs Decision"): 1. A hearing on costs is dispensed with pursuant to s.50 of the NCAT Act. 2. The applicant must pay the respondents costs, on the ordinary basis, as agreed or assessed, pursuant to rule 38 of the NCAT Rules. 1. The Appeal Panel understands that since publication of the Jurisdictional Decision the respondent has commenced Local Court proceedings to seek recovery of the allegedly outstanding debt from the appellant. Scope and nature of internal appeals 1. Decisions of the Tribunal are internally appealable decisions and an appeal can be made from them as of right where there is an error of law and with the leave of the Appeal Panel on specified grounds: see s 80(1) and (2)(b) of Civil and Administrative Tribunal Act 2013 (NCAT Act). 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 on the basis that: 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. Extension of time 1. The Notice of Appeal in relation to the Jurisdictional Decision was not lodged within the 28-day time period specified in cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules) and the appellant will require an extension of time pursuant to s 41 of the NCAT Act for the lodging of the appeal. 2. The Appeal Panel has power to extend time under s 41 of the NCAT Act. 3. The principles on which an extension of time to bring an appeal would be granted were set out by the Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]-[22], drawing on early orthodox principle and authority: "Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice." 1. The criteria for assessing an extension application can be summarised from Jackson as follows: 1. the appellant must demonstrate that strict enforcement of the time limit will work an injustice on the appellant; 2. the respondent, having obtained a favourable primary decision, can be thought of as having a "vested right" to retain the benefit of that decision after the normal time for appeal has expired; 3. Consistent with the foregoing, the factors to be considered are the length of the delay, the reason for the delay, the prospects of success ("that is usually where the applicant has a fairly arguable case"), and the extent of any prejudice suffered by the respondent to the appeal; 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". 1. In this case, applying the factors identified in Jackson: 1. The appeal in respect of the Jurisdictional Decision was lodged some 50 days (ie over seven weeks) out of time. 2. We find that 50 days is not an insignificant delay in circumstances where it was the appellant who made the application to the Tribunal in the first place, it was provided with the decision promptly, and has provided no explanation for the delay in lodging the appeal. 3. For the reasons set out below we are of the view that the appellant has little prospects of success in the appeal. 1. We shall deal below with each of the grounds of appeal raised by the appellant. Ground 1 - The finding that the Tribunal has no jurisdiction to determine the application 1. The appellant's submissions in this regard are in two parts: 1. The Tribunal incorrectly applied section 79S(2) of the Fair Trading Act 1987 (the "Fair Trading Act"). 2. The Tribunal failed to take account of the following submissions in which the appellant says the quantum of the order sought was reduced to $33,995: 1. Correspondence with NCAT dated 23 November 2020; 2. Submissions made at the directions hearing on 18 January 2021; and 3. The appellant's written submissions dated 16 February. 1. This ground raises errors of law, namely whether the Tribunal applied the wrong principle of law, and whether there had been a denial of procedural fairness. Did the Tribunal take account of the appellant's submissions regarding amendment of its claim? 1. We shall deal with the second limb of this submission first. The crux of the appellant's argument is that the appellant had, in the various submissions referred to above, "amended its claim to reduce the quantum of order to $33,995". The appellant says that the Tribunal failed to consider these submissions and more specifically, that when making its decision about jurisdiction, the Tribunal failed to take into account that the appellant had sought to amend its claim. 2. Before dealing with the submissions in question, we would make some observations in relation to the process for amending a Tribunal application. It is appropriate in this context to make reference to sections of the NCAT Act which we regard as particularly relevant: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (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 natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note. Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases. 1. Once Tribunal proceedings are commenced, the application is as set out in the application. The applicant cannot subsequently amend its claim simply by asserting it is doing so. In accordance with section 38 of the NCAT Act and consistent with the Tribunal's guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings as set out in section 36 of the NCAT Act, an application, once lodged, can only be amended with the leave of the Tribunal. The reason for this is to ensure orderly case management and procedural fairness. The Tribunal may refuse to grant leave to an applicant to amend its claim for various reasons. These might include that it would be a denial of procedural fairness because the respondent has not had sufficient opportunity to consider and respond to the amended claim, that the amendment will unduly delay the finalisation of the dispute, or that the proposed amendment is outside the jurisdiction of the Tribunal. 2. For these reasons, when an applicant to Tribunal proceedings asserts it has amended its claim in circumstances where no prior leave has been given, the Tribunal must consider the request and determine whether to allow the amendment. 3. As detailed in the subsequent paragraphs, we find that the appellant only asserted that it wished to amend its claim in its written submission dated 16 February 2021. The appellant's solicitor was unable to take us to any earlier correspondence containing a request to amend the claim. We are satisfied for the reasons set out below that the Tribunal considered those submissions and the amendment request and for reasons which we consider to be entirely appropriate, refused to allow the appellant permission to amend the claim. The 23 November 2020 letter 1. The appellant firstly relies on a letter to the Tribunal dated 23 November 2020. That letter states: "We write this letter to confirm that the applicant consents to the jurisdictional limit of the Tribunal". 1. There is nothing in the letter which refers to a request by the appellant to reduce the quantum of its claim to $33,995.00. Consenting to the Tribunal's jurisdictional limit (which in consumer claims before the Tribunal is $40,000) is quite a different matter to amending a claim. By consenting to the jurisdictional limit, a party agrees that even though the claim is for an order which exceeds the Tribunal's monetary jurisdictional limit, the party accepts that the Tribunal cannot make an order beyond that limit, but wishes to proceed in the Tribunal nonetheless. It is clear from the Tribunal's reasoning that the Tribunal did indeed take account of the 23 November letter. On page 3 of the decision the Tribunal stated: From what the Tribunal could derive, the applicant submits the respondent is only pressing $33,995.00 so the claim was accordingly reduced to $33,995 on 23 November 2020 … 1. The assertion that the Tribunal failed to take account of the 23 November 2021 letter is therefore rejected. We shall deal with how the Tribunal dealt with that submission in further detail below in para [34] – [43] Submissions made at 18 January 2021 hearing 1. The appellant also submits that it made submissions in relation to amendment of the claim at the earlier hearing on 18 January 2021. The senior member who decided the matter was not the member who had made the directions at the hearing on 18 January 2021. The appellant's solicitor conceded that neither a transcript nor an audio recording of what was said at that hearing was provided to the Tribunal in advance of the 1 March 2020 decision on jurisdiction (and nor has such material been provided to the Appeal Panel). Moreover, the directions made by the Tribunal at the 18 January 2021 hearing do not refer to any submissions which may have been made by the appellant regarding amendment of its claim. For these reasons the Appeal Panel does not know, and the Tribunal, when making the Jurisdictional Decision cannot have known, what was said at the 18 January hearing. 2. The appellant's ground that the Tribunal failed to take account of submissions made at the 18 January hearing is therefore rejected. Submissions dated 16 February 2021 1. Finally, the appellant relies on the written submissions dated 16 February 2021 to establish that it amended the application. In particular the appellant refers to the following submission: considering the respondent was willing to accept $33,995.00, not on a without prejudice basis, we reduced the value of our claim to $33,935.00. 1. The Tribunal clearly considered the submissions of 16 February and proceeded on the basis that the appellant was seeking to amend its claim to a claim for relief from payment of $33,995.00. 2. On page 3 of the decision the Tribunal stated: From what the Tribunal could derive, the applicant submits the respondent is only pressing $33,995.00 so the claim was accordingly reduced to $33,995 on 23 November 2020 … 1. The Tribunal went on to say later on the same page: There appears [sic] to be two questions for determination today; the first is whether the claim for relief from payment is, as the applicant submits, $33,995 or remains a claim for relief from paying $49,995 as the respondent submits. 1. The Tribunal proceeded to consider the parties' respective submissions and concluded: The Tribunal finds the applicant never accepted the respondent's offer to discount the contract sum from $49,995 to $33,995 and therefore the claim for relief from payment must be as it has been lodged, that is for an order that the applicant is not bound to pay $49,995 to the respondent. 1. In effect, the Tribunal refused the applicant leave to amend its claim to a claim for relief from $33,995, and therefore reached the conclusion that the claim was beyond the Tribunal's jurisdictional limit. 2. The reasons given by the Tribunal for refusing leave to amend the claim to a claim for relief from payment of $33,995 included: 1. Having reviewed the chain of correspondence submitted by the parties the Tribunal was not satisfied that the respondent' offer to reduce the claim to $33,995 had been accepted by the appellant and therefore the Tribunal was not satisfied that there had been a concluded variation of the contract price; and 2. If the offer had been accepted, the appellant would not have been permitted to commence these proceedings on the basis of settlement estoppel. That is, if the offer had been accepted, the dispute would have been resolved and the matter would not have been in the Tribunal. Instead, the appellant proceeded to lodge a claim for relief from payment for the full amount of $49,995.00. 1. It is therefore quite apparent that the Tribunal considered the appellant's submissions regarding amendment of the claim in some detail. It was also quite proper in the circumstances in relation to the jurisdictional issue that the Tribunal refused leave to amend the claim and proceeded to make its decision on the issue of jurisdiction on the basis of the claim as filed. 2. The appellant's assertion that the Tribunal failed to take account of the 16 February 2021 submission is therefore rejected. Did the Tribunal incorrectly apply section 79S(2)(c) of the Fair Trading Act? 1. The assertion that the Tribunal incorrectly applied section 79S(2)(c) of the Fair Trading Act is misconceived. 2. Section 79S relevantly states: (1) The Tribunal has no jurisdiction to make, in respect of a particular consumer claim, an order or orders in favour of the claimant (or, where there are two or more claimants, in favour of those claimants) if the relevant total under or because of the order or orders would exceed the prescribed amount. (2) For the purposes of subsection (1), the "relevant total" is the total of-- (a) the amount or amounts (if any) of money to be paid, and (b) the value or values (if any) of the work to be performed, or the services to be supplied, and (c) the amount or amounts (if any) of money to be declared not to be due or owing, and (d) the value or values of goods (if any) to be delivered or replaced. 1. The "prescribed amount" for the purposes of section 79S is $40,000.00: section 79S(7). 2. There is nothing in the Tribunal's reasoning which supports the appellant's submission that the Tribunal incorrectly applied section 79S(2)(c). The Tribunal found that it had no jurisdiction as the claim was for relief from payment of an amount in excess of the jurisdictional limit. 3. The Tribunal also noted: … given the applicant wants an order that money be declared not due or owing, in the amount of $49,995, it is difficult to see how the applicant could submit to jurisdiction in this case: see s 79S(2)(c)." 1. This point was reiterated later in the decision when the Tribunal said: The applicant cannot submit to jurisdiction by seeking an order that it not have to pay the respondent $40,000 as this would leave liability of $9.995.00 outstanding and the applicant has never offered to pay this amount to the respondent to relieve that part of the outstanding debt. 1. An applicant can quite easily submit to the Tribunal's monetary jurisdictional limit in matters involving a claim for payment of monies because in such a situation it is at the election of the applicant as to whether it wishes to waive its right to claim any amount in excess of the jurisdictional limit. The situation is quite different in claims for relief from payment. In such cases the respondent will have claimed from the applicant, usually via rendering an invoice, an entitlement to a specified dollar amount, and the applicant seeks relief from the obligation to pay, generally on some equitable or statutory ground. 2. It is not for the applicant to unilaterally reduce the amount claimed by the respondent so as to fit within the Tribunal's monetary jurisdictional limit. Doing so would leave the status of the balance of the respondent's claim outstanding and unresolved. 3. The appellant's sixth ground of appeal relates to the same issue. The appellant contends that the Tribunal's reasoning was incorrect when it observed that if the appellant were to submit to the $40,000 jurisdictional limit, this would leave liability of $9.995.00 outstanding and the applicant has never offered to pay this amount to the respondent to relieve that part of the outstanding debt. For reasons explained we do not agree that this statement by the Tribunal was incorrect. 4. The appellant has pointed to no error of law or substantial miscarriage of justice in connection with the Tribunal's reasoning in this regard. 5. For these reasons we do not consider that the appellant has made out the first or sixth grounds of appeal. Ground 2 and Ground 5 - Incorrect findings regarding the respondent's offer dated 12 February 2020 1. There is some overlap between ground 2 and ground 5 both of which relate to a letter from the respondent to the appellant dated 12 February 2020 in which the respondent made an offer to resolve the dispute for the sum of $33,995.00. 2. The appellant's arguments are somewhat difficult to understand but we have distilled the appellant' contentions in this regard as follows: 1. the Tribunal erred when it said that the respondent's offer to settle the dispute dated 12 February 2020 was a "without prejudice" offer. 2. the Tribunal incorrectly found that the offer contained in that letter had subsequently been withdrawn by the respondent. 3. the Tribunal asserted that the respondent's settlement offer of 12 February 2020 could only be relied upon if it was accepted by the appellant and that this is a "fundamental error of law". 1. This ground involved questions of both fact and law. 2. With regard to the Tribunal's statement that the 12 February 2021 letter contained a "without prejudice offer", as best as we can understand the appellant's arguments, it seems the appellant's concern is that by finding the offer to have been "without prejudice", the Tribunal therefore found the offer to have been inadmissible and did not consider the contents of the letter when making its decision. 3. We reject this argument. There is nothing in the Jurisdictional Decision which supports the contention that the Tribunal found the 12 February 2020 letter to have been inadmissible. Indeed, it is patently clear from the decision that the Tribunal considered the contents of the letter. 4. The key issue which the Tribunal considered in relation to the letter was whether the offer contained in the letter had been accepted by the appellant. The Tribunal reviewed the letter and subsequent correspondence and concluded that the offer had not been accepted and therefore that there was no agreement to vary the contract price. The appellant's solicitor conceded during the hearing of the appeal that the offer contained in the 12 February 2020 letter was never accepted by the appellant. 5. For the same reason the suggestion that the Tribunal declined to allow the 12 February letter to be relied upon is rejected. It is clear from the Tribunal's reasoning that the Tribunal allowed the appellant to rely on the letter. 6. It is not relevant whether or not the Tribunal was incorrect in finding that the offer contained in the 12 February 2021 letter had been withdrawn as the relevant finding (being that the offer contained in that letter was never accepted) is not disputed. 7. Therefore, no substantial miscarriage of justice has been identified and we see no error of law in the Tribunal's approach to the 12 February 2021 letter. Therefore leave to appeal on this ground would have been refused. Ground 3 - The finding that section 50(3) had been complied with 1. It appears that this ground relates only to the Costs Decision and not the Jurisdictional Decision. However, for the sake of completeness, we will deal with this ground in relation to both decisions. The ground involves an alleged failure by the Tribunal to afford procedural fairness which is an error of law and therefore leave to appeal would not be required. 2. Section 50(3) of the NCAT Act provides that the Tribunal may not make an order dispensing with a hearing unless it has first afforded both parties an opportunity to make submissions about the proposed order, and has taken any such submissions into account. The Jurisdictional Decision 1. The directions made by the Tribunal at the directions hearing on 18 January 2021 directed the parties to exchange documents and submissions in relation to the question of jurisdiction. The directions included the following notation: The Tribunal notes that parties have consented to a determination as to jurisdiction being made on the papers without the need for a hearing pursuant to section 55 of the Civil and Administrative Tribunal Act 2013. 1. There is no suggestion that this notation was at any stage objected to by either party. 2. In the Jurisdictional Decision the Tribunal stated: On 18 January 2021 … the Member concluded in Direction 7 "The Tribunal notes that [the] parties have consented to a determination as to jurisdiction being made on the papers…" 1. It is apparent from the 18 January directions that the parties were afforded an opportunity to make submissions regarding a hearing on the papers and had consented to a hearing on the papers. It is also apparent from the reasoning in the Jurisdictional Decision that the Tribunal was aware of this fact and took it into account when making that decision. It can therefore be inferred that the Tribunal dispensed with a hearing for the purposes of section 50(1)(c) and was satisfied that the issues for determination could be adequately determined without a hearing, for the purposes of section 50(2). 2. Accordingly the assertion that the Tribunal failed to comply with section 50(3) in relation to the Jurisdictional Decision is rejected. The Costs Decision 1. The appellant complains that the four day period between the directions made on 12 April 2021 in relation to costs, and the deadline for submissions on 16 April 2021, was insufficient. However, it is apparent from the documents before the Appeal Panel that from as early as 12 March 2021 the parties were given numerous opportunities to exchange submissions regarding costs, and specifically whether the matter should be determined on the papers without the need for a hearing: 1. The directions dated 12 March 2021 required the parties to exchange directions on costs and included a direction for each party to "state if it agrees the question of costs should be determined on the papers". 2. An extension of time for submissions about the costs order was made in directions dated 29 March 2021 which included the following notation "Having afforded the parties an opportunity to make submissions on the proposed order – to dispense with the hearing - there is again no legal impediment in making the order. Both parties in this case chose not to make submissions about the proposed order". There is no suggestion that either party objected to this notation. 3. A further extension of time was granted on 12 April 2021. The deadline for both parties to provide submissions on costs was extended to 16 April 2021. 1. It is therefore apparent that the parties were given several extensions of time between 12 March 2021 and 12 April 2021 for making submissions on costs, and on the issue of whether the matter could be determined on the papers. The suggestion that the appellant was given only four days to make submissions on these issues is palpably incorrect. 2. In any event, no explanation was given by the appellant as to why the four day period allowed in the third extension of time was insufficient, what submissions would have been made had more time been given, or why the appellant did not make an application for a further extension of time if there was a genuine reason that more time was required. 3. Accordingly the submission that the Tribunal did not comply with section 50(3), or that there has been a failure to afford procedural fairness, is rejected. Ground 4 - The determination that the onus of proof in regards to the jurisdictional issue was with the applicant 1. This ground of appeal is misconceived. The applicant in any proceedings is responsible for ensuring that the Tribunal has jurisdiction to hear and determine the applicant's claim. 2. Regardless of whether the question of jurisdiction was first raised by the respondent, it is in any event the responsibility of the applicant to satisfy the Tribunal that it has jurisdiction to hear and determine its application. 3. The appellant has identified no error of law or substantial miscarriage of justice in connection with this issue. Conclusion in relation to Jurisdictional Decision 1. Having considered the delay in the making the Appeal, the failure by the appellant to provide any explanation for the delay, the potential prejudice to the respondent, and in particular the weak prospects of success we refuse to grant an extension time to lodge the appeal in relation to the Jurisdictional Decision. 2. Accordingly the appeal in relation to the Jurisdictional Decision is dismissed. Costs 1. The appeal against the Costs Decision was made within time and therefore no extension is required. We have already dealt above with the ground of appeal in relation to the Costs Decision and have rejected it. Namely, we are not satisfied that the Tribunal failed to afford the parties an opportunity to make submissions as to whether a hearing on the issue of costs should be dispensed with. 2. No other error of law or miscarriage of justice has been identified by the appellant in relation to the Costs Decision and therefore we are not satisfied that there is any basis on which the Costs Decision should be reversed. 3. Accordingly the appeal in relation to the Costs Decision is dismissed. 4. Both parties' representatives agreed during the hearing of the appeal that the costs of this appeal should follow the event and therefore we are making an order for the appellant to pay the respondent's costs of these appeal proceedings. Orders 1. Extension of time to appeal the decision of 1 March 2021 refused. 2. Appeal of decisions of 1 March 2021 and 23 April 2021 dismissed. 3. Appellant to pay the respondent's costs in these proceedings. ********** 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: 15 September 2021