Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shen v The Site Foreman (NSW) Pty Ltd [2022] NSWCATAP 70 Hearing dates: 7 March 2022 Date of orders: 16 March 2022 Decision date: 16 March 2022 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member G Ellis SC, Senior Member Decision: 1. In relation to the denial procedural fairness ground of appeal, the appeal is dismissed. 2. In relation to any other error, leave to appeal is refused. Catchwords: APPEALS - denial of procedural fairness – other errors – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) - s 80 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Category: Principal judgment Parties: Ya Nan Shen (Appellant) The Site Foreman (NSW) Pty Ltd (Respondent) Representation: Appellant: self-represented A Saad, Project Manager (Respondent) File Number(s): 2021/00364348 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 30 November 2021 Before: P Smith, Member File Number(s): GEN 21/31322 REASONS FOR DECISION Summary 1. The appellant appeals from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) of 31 November 2021 in matter GEN 21/31322 (Decision). 2. The Tribunal dismissed the appellant's application. 3. For the following reasons, the appeal should be dismissed, and leave to appeal refused. Background 1. The appellant had entered into an agreement with the respondent for architectural design services. By application filed 21 July 2021, the appellant sought orders that the respondent pay him $9,000. The reasons for seeking that order were stated as follows: 1. The Site Foreman failed to complete the work as per agreement. 2. The Site Foreman over charged me. The service quality provided does not match what I paid them. 3. I had to pay extra fees to amend the architectural plan and re-apply council approval ($3090 - architectural plan redesign and associated document $991 ??? S4.55 application fee). 4. I had to take time off work between 11-25/01/2021 (income loss $3544). 1. In written reasons published after the hearing, the Tribunal relevantly stated: The applicant and respondent entered an agreement for architectural design services for premises at [XXXXX] Street, Strathfield NSW 2135. On 21 July 2021 the applicant has lodged application for a money order for refund of fees paid to the respondent and compensation for loss of income. It i[s] an agreed fact that original design lodged with Council overlooked a Sydney Water asset on the site. The respondent acknowledged this issue and advised that this could have been easily rectified with 3 hours work. The applicant then obtained the services of another building consultant rather than continue with the respondent. The applicant states this caused unnecessary delays in the the [sic] Development Application causing him loss of income. The respondent submits that the the [sic] inclusion in the plan is only a minor variation and the final approved Development Application had numerous amendments at the volition of the applicant and any delays were not due to the alterations required due to the Sydney Water asset. The applicant claims half of the cost of the design package in the sum of $9401.00 Refund of the charges for storm water design. Extra fees incurred to Council for Section 4.55 application Time off work between 11 - 25 January, 2021 The Tribunal finds that the work on the design package was substantially performed up to the stage that it was initially submitted to Council and the agreed scope of works for the design package had been prepared. The package included stormwater design and part of this design should have taken into account this Sydney Water asset but could have easily been rectified and there is no evidence that the respondent required any payment [to] rectify this issue. The amended plans included other significant factors and amendments and the sewerage design was only one factor to be amended by the time the final plan went to Council There are no particulars provided of loss of income for the specified period. On the material provided the Tribunal is not satisfied that the applicant has established the grounds for a money order to refund a portion of the fees paid and compensate the applicant for any loss of income. Grounds of Appeal 1. The appellant claims that the Decision was not fair and equitable, and against the weight of the evidence. 2. In relation to the Decision not being fair and equitable, the appellant states: The reasons for decision in the tribunal order were largely incorrect. The respondent successfully misled the member by changing the direction from my claim for s.4.55 to the "claim for modifying the drawing". The member misjudged that the respondent's negligence caused minor impact by comparing the changes in the final plan instead of consideration for overall design quality. The member misjudged that "The applicant then obtained the services of another building consultant rather than continue with the respondent". The member misjudged that "there is no evidence that the respondent required any payment rectify this issue"[.] The decision acknowledged the respondent's mistakes, but respondent was not required to compensate my finical [sic – financial] loss as per Australia Consumers Law. All the errors above were clearly proved in the supporting document that l submitted to the tribunal. I wasn't able to present these evidences in the hearing because of the very bad quality voice quality in the phone conference. I couldn't clearly hear the members [sic – Member's] voice. Especially someone talked while another person was flipping the papers, I [sic – it] was very difficult to hear the conversation. 1. In relation to the Decision being against the weight of the evidence, the appellant states: During the hearing, I could not hear and understand the member's questions properly due the voice quality issue cause by the phone coference [sic – conference]. I focused to explained how the respondent did not search the Sydney Water access and check survey report as the contract that I signed. I present most of the evidences [sic – evidence] such as the Sydney Water requirement (my supporting document page 71), survey report (page 18), Sydney Water tap-in report (page 23-26) and the modified planed (page 27). I also present the evidences [sic – evidence] that support my claim such as invoices (page 100). Reply to Appeal 1. In its Reply to Appeal, the respondent states: 1. The proceedings were conducted by telephone conference but that did not impact on the fairness of the hearing. All evidence that the [appellant] relied upon was tendered. The Tribunal gave the [appellant] considerable latitude when it came to submissions and allowed the [appellant] to put forward what seemed to be all his points. 2.The [appellant] did not make complaint during the hearing that he was disadvantaged by the limitations of a telephone conference. 3. The [appellant] has not particularised the alleged facts which caused the hearing to be conducted unfairly. 4. The grounds of appeal largely restates the [appellant's] case at first instance. 5. The [appellant] has no relevant qualifications or experience in building design and regulatory compliance and did not produce relevant expert evidence at the hearing. The applicant has made numerous comments on design matters in his grounds. 6. The [appellant]'s grounds are not separately itemised and contain fresh evidentiary material by the [appellant] about expert matters. 1. In its Reply to Appeal, the respondent opposes leave to appeal being granted because: 1. The [appellant] has not identified what was unfair or inequitable about the decision. 2. The [appellant] has provided argumentative grounds including evidence and submissions but has not indicated how that was against the weight of evidence. These grounds largely restate his case at first instance. 3. The [appellant] complains of procedural unfairness in that he had communication difficulties in the telephone conference. This complaint is not particularised and the applicant has not sought to rely on a transcript of the hearing. Nature of an appeal 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). A question of law 1. A failure of the Tribunal to afford procedural fairness raises a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13](4). 2. The appellant is clearly identifying that there was a failure to afford procedural fairness, in that he states: I wasn't able to present these evidences [sic – evidence] in the hearing because of the very bad quality voice quality in the phone conference. I couldn't clearly hear the members voice. Especially someone talked while another person was flipping the papers, I [sic – it] was very difficult to hear the conversation. … During the hearing, I could not hear and understand the member's questions properly due [to] the voice quality issue caused by the phone coference [sic – conference] conference setup. … I could not properly present all my grounds of evidence during the hearing because of the bad quality phone conference. I could not clearly hear the members voice even he read out the cool. I prefer the face-to-face hearing or by a Zoom session if the tribunal require me to attend hearing again". 1. Accordingly, he does not require leave to appeal on this ground. Leave to appeal 1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if 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. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or 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. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. A denial of procedural fairness? 1. In support of his submissions in relation to this ground of appeal, the appellant provided a transcript of the hearing together a copy of the sound recording on a USB file. 2. We have read the transcript of the hearing provided by the appellant. We have also listened to the sound recording, as a result of which we can say that the transcript is not a complete or accurate reproduction of the hearing. That said, it is by and large representative of what occurred at the hearing. 3. We accept that from time to time the appellant indicated a difficulty in hearing what the member was saying. However, the appellant's own transcript reflects his oral submissions to the Tribunal in which he explained his case. Here we refer specifically to pp 110, 112, 113, 114 and 115 of the materials (all being his version of the transcript) he provided. 4. On this issue the respondent submitted, in summary, that: 1. while the appellant has provided examples of the appellant telling the member that he did not hear or could not understand what the member was saying, on these occasions the member has repeated himself and ensured that the appellant understood what was being said or asked and on each occasion the appellant has replied in a manner which was appropriately responsive; 2. there is no evidence of any replies by the appellant that are irrelevant or seem to be non-responsive or otherwise inappropriate; and 3. there is no evidence that the telephone difficulties which are complained of caused the hearing to miscarry. 1. We consider that there is substance in these submissions, and we reject the appellant's arguments to the contrary. 2. As the Appeal Panel stated in Prendergast at [13](4), procedural fairness concerns the fairness of the proceedings and not the decision. We do not accept that there is any substance in the appellant's submission that he was denied procedural fairness in the conduct of the Tribunal hearing. 3. Accordingly, we dismiss that ground of appeal Other errors 1. The other errors claimed by the appellant are errors of fact and are as follows. 2. The first claimed error was that "the respondent successfully misled the member by changing the direction from my claim for s.4.55 to the "claim for modifying the drawing". 3. The second claimed error was that the member erred in finding that the respondent's negligence caused only minor impact by comparing the changes in the final plan instead of consideration for overall design quality. 4. The third claimed error was that the member erred in finding that "the applicant then obtained the services of another building consultant rather than continue with the respondent". 5. The fourth claimed error was that the member erred in finding that "there is no evidence that the respondent required any payment [to] rectify this issue". 6. The fifth and final error was that while the Tribunal acknowledged the respondent's mistakes, the respondent was not awarded any compensation. Respondent's Submissions 1. The respondent provided two pages of written submissions. In summary, it submits: 1. although the appellant says he is not seeking leave to reduce fresh evidence, this is in fact what he has done by reciting "many alleged facts" which were not mentioned at the hearing at first instance. Here the respondent points to pages 1 to 7 of the appellant's bundle of materials (ABOM); 2. at p 14 of the ABOM the opinion impermissibly expresses further expert opinions; 3. p 100 of the ABOM contains fresh evidence; 4. the appellant clearly does not agree with the decision that is merely repeating and trying to improve his original case 5. there was no material identified by the appellant which suggests the decision is against the weight of the evidence. 1. Overall, the respondent submits that the appellant has failed to produce a notice of appeal or submissions which are of assistance to the Appeal Panel. It says that the intermingling of new facts and opinions on various documents relied upon by the appellant and that the confusing state of the Notice of Appeal has prejudiced its ability to respond to the appeal. Consideration 1. An appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And, as the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states, "an appeal is not an opportunity to have a second go at a hearing". 2. We consider that there is substance in the respondent's submission that the appellant is simply attempting to conduct his case all over again, this time with the benefit of additional evidence. No acceptable explanation was given to warrant the appellant being allowed to rely on any evidence which was not before the Tribunal. 3. We have set out above at [26] to [30] the errors of Tribunal as claimed by the appellant. As many are unclear, we invited the appellant to address these errors orally. The appellant did so, and provided references to the evidence on which he relied. In relation to first claimed error, namely that the respondent "successfully misled the member by changing the direction from my claim for s.4.55 to the claim for modifying the drawing", the appellant said that the "key issue" was that the respondent did not follow his instructions, relying on p 64 of the AOBM. That page is a copy of a letter from Archplan Consulting Pty Ltd to "To Whom It May Concern" in which the appellant has highlighted the following passage: The S4.55 was mainly to resolve the vent shaft but minor changes such as window size and building material selection were also added to the application as they were the conditions in the original DA that needed council's further approval. 1. We do not find that this passage or the letter clarifies the error claimed by the appellant or supports a finding that the Decision was not fair and equitable and against the weight of the evidence. Nor do we find that the submissions attached to the Notice of Appeal assist the appellant. 2. The second claimed error was that the member erred in finding that the respondent's negligence caused only minor impact by comparing the changes in the final plan instead of consideration for overall design quality. Again, as this error was also unclear, we asked the appellant to explain it further. Here he relied on pp 1 to 4 of the AOBM, which he says was his written evidence to the Tribunal. We have carefully reviewed that document, and indeed all the materials provided by the appellant, but we see nothing that gives substance to this ground of appeal. In particular, we reviewed pp 9 to 14 of the AOBM which the appellant specifically relied on. These are emails between the appellant and the respondent. We did not observe any material which supports a finding that the Decision was not fair and equitable and against the weight of the evidence. Again, we do not find that the submissions attached to the Notice of Appeal assist the appellant. 3. The third claimed error was that the member erred in finding that "the applicant then obtained the services of another building consultant rather than continue with the respondent". This ground of appeal is without substance as the appellant told us at the appeal hearing that this was in fact what happened. 4. The fourth claimed error was that the member erred in finding that "there is no evidence that the respondent required any payment [to] rectify this issue". There does not appear to be any substance in this ground either as the appellant states in his submissions attached to the Notice of Appeal: There is no evidence that the respondent required any payment for rectifying the issue, because the respondent never even offered to fix the mistake. I have prepared by supporting documents with many evidences that proved the respondent denied their mistakes and rejected my requests to rectify the issue themselves. 1. The fifth and final error was that while the Tribunal acknowledged the respondent's mistakes, the respondent was not awarded any compensation. 2. We do not regard this an error. It is the logical conclusion applying the relevant law to the facts as found by the Tribunal. Conclusion 1. In conclusion, to the extent that the appeal raises errors other than errors of law, we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. 2. Leave to appeal in relation to the alleged errors is refused. Orders 1. The Appeal Panel orders: 1. In relation to the denial of procedural fairness ground of appeal, the appeal is dismissed. 2. In relation to any other alleged error, leave to appeal is refused. ********** 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: 16 March 2022