Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gebrael v Champion [2022] NSWCATAP 310 Hearing dates: 15 September 2022 Date of orders: 27 September 2022 Decision date: 27 September 2022 Jurisdiction: Appeal Panel Before: C P Fougere, Principal Member G Ellis SC, Senior Member Decision: (1) The time for lodging the Notice of Appeal is extended to 11 July 2022. (2) The appeal is dismissed. (3) As a result, the stay order is lifted. Catchwords: APPEAL – No question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 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 Texts Cited: None cited. Category: Principal judgment Parties: Elie Gebrael (Appellant) Amy Champion and Steuart Bonser (Respondents) Representation: Appellant (Self-represented) A Champion (Respondents) File Number(s): 2022/00201934 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 9 June 2022 Before: A Tibbey, Senior Member File Number(s): HB 22/12776 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 9 June 2022. The application to the Tribunal was brought by the respondents against the appellant. 2. The issues in the appeal are (1) whether there was an error of law, (2) whether the decision was against the weight of the evidence, and (3) whether there was fresh evidence, being evidence not reasonably available at the time of the hearing of the application. 3. For the reasons set out below, we have decided to extend the time for the Notice of Appeal to be lodged but to dismiss the appeal. Background 1. The respondents are homeowners who commenced proceedings against the appellant who is a builder who undertook work on the balcony of their unit in the Sydney suburb of Cromer. They sought full recovery of the amount of $15,200 which they paid on the basis that the work would need to be redone. Tribunal proceedings and decision 1. The application to the Tribunal was lodged on 23 March 2022 and was listed for final hearing on 9 June 2022. The Tribunal's reasons for decision were published later that day. The Tribunal relevantly found in favour of the respondents and awarded them the amount they claimed, namely $15,200. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) 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 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 Sch 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: 12 Limitations on internal appeals against Division decisions … (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) 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 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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 Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of that Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. 2. In Collins, the Appeal Panel stated at [84] 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. In an appeal where the appellant is self-represented and does not have the benefit of legal advice, it should be noted that, in Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel stated at [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. In the NCAT Act, s 41 provides that the Tribunal may grant an extension of time. The relevant considerations as to the exercise of the discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] and they are as follows: 1. Is there proof that strict compliance with the rules will work an injustice on the applicant? 2. In the context of a pending appeal, the expiration period for the appeal gives a vested right to retain the decision in question with the consequence that the time for appealing should not be extended unless the proposed appeal has prospects of success. 3. It will usually be necessary to consider: 1. the length of the delay, 2. the reason(s) for the delay, 3. the applicant's prospects of success, i.e., whether there is a fairly arguable case, and 4. the extent of any prejudice suffered by the opponents. 1. If the explanation for the delay is less than satisfactory and/or if the opponent as a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable. Submissions and evidence 1. In deciding the appeal, we have had regard to the following documents which have been provided to the Tribunal by the parties to this appeal on the dates indicated: 1. the Notice of Appeal received on 11 July 2022, 2. the appellant's submissions received on 24 August 2022, 3. the appellant's submissions received on 29 August 2022, 4. the Reply to Appeal received on 3 August 2022, 5. the respondents' submissions received on 3 August 2022, and 6. the respondents' submissions received on 30 August 2022. Notice of Appeal 1. The Notice of Appeal was lodged on 11 July 2022, which is just outside of the 28-day period specified in cl 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). For an appeal from a decision made on 9 June 2022, the Notice of Appeal should have been lodged by 7 July 2022. In this case, the Notice of Appeal was dated 5 July 2022 but was not received by the Tribunal until 11 July 2022. Grounds of Appeal 1. The grounds of appeal specified in the Notice of Appeal are quoted below: "* Tiling work – insufficient evidence + no photos submitted * No evidence of tiles being drilled and broken * No evidence of insufficient falls * Need to show Tribunal of further evidence of tiles with glue" 1. As to what orders the appellant suggested the Appeal Panel should make, the Notice of Appeal said: "* Want NCAT to review decision based on further evidence and photos, possibly further reports from tiler, engineer. * Seeking NCAT to reduce amount to be paid to Amy Champion." Matters requiring leave 1. As to the basis upon which it was suggested leave should be granted, the Notice of Appeal indicated: "there was a couple of matter that I did right and now I have the new evidence for the tiling work and the timber that was installed" 1. There were two claims made which required leave to appeal. The first claim was that the decision was against the weight of the evidence. It was the appellant's contention that at first instance, he showed photos of the timber work that was done and that the respondents had a report from the builder who had redone the work on the balcony. On the question of what was the evidence to which the Tribunal should have given more weight and why, the appellant's case was expressed as follows: "The tiling work that was done by the tiler a second time with photos showing a lot of glue and also the glue behind the tile (where [the respondents] do not have any photo of the drilling and the tile breaking" 1. The second claim was that significant new evidence is now available that was not reasonably available at the time of the hearing. That fresh evidence was described as follows: "Photos of tiling work done the second time around showing full glue and an engineer's report about the front timbers" 1. As to why that evidence was not available at the time of the hearing, it was said that the tiler was not answering calls. The appeal hearing 1. The appellant was self-represented. Ms Champion spoke on behalf of the respondents. After identifying the documents upon which the parties relied and ensuring that a copy had been provided to the other party, an opportunity was provided for oral submissions to be made as to what should be the outcome of the appeal and why. 2. The usual sequence of appellant then respondent then appellant in reply was followed so that each party had an opportunity to speak not only in support of their own case but also in response to the case of the other party. Appellant's submissions 1. The appellant said he carried out the work honestly and carefully. He also maintained that there were matters claimed in relation to work he did not carry out. He referred to the lack of photos of the drilling which he said would help determine whether it was drilling that was the cause of any cracked tile. He referred to the photos said to support the claim there was a lack of glue and noted that some work was done a second time, with the proper amount of glue added but the tile broke a second time. 2. It was the appellant's claim that there should have been testing and a report from an inspector and that the respondent's expert was biased because he was the person who had carried out work at the premises. The appellant said he now had an engineer's report. He also indicated that he consulted a lawyer prior to the hearing but was not legally represented at that hearing. 3. When his attention was directed to the question of whether there was an error of law, the appellant said he relied on what his lawyer had said to him and that if he had known the respondent was going to rely on evidence from a builder then he would have given more consideration to the hearing. He repeated his claim that there was not enough evidence, including that the evidence did not show the drilling. 4. As to the basis for claiming the decision was against the weight of the evidence, the appellant said he thought that what he said was not taken into consideration and that the view was taken that the respondent's builder knew more. 5. On the question of fresh evidence, the appellant said he relied on what he was told by a lawyer and that he thought what he had done was the correct way to handle the matter. He said he had to go and seek evidence from the right people. Respondents' submissions 1. For the respondents, it was contended there was no error of law, that the decision was based on all the evidence that was presented, and that the evidence upon which the appellant wished to rely was not fresh evidence. Submissions in reply 1. The appellant did not wish to add anything in reply. Consideration 1. It is important to note, as was pointed out at the commencement of the hearing of the appeal, that 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]. As indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website): "… an appeal is not an opportunity to have a second go at a hearing". 2. Recognising that it is difficult for self-represented parties who are not familiar with the Tribunal's processes to identify and deal with errors of law, we have borne in mind what was said in Cominos, quoted above. It would plainly be lacking impartiality for an Appeal Panel to look at the reasons published following the hearing to see if there was an error of law that could be raised by the appellant. However, it is permissible to look at what the appellant has raised and express those matters in a way that enables a consideration of whether his complaints raise a question of law. 3. That exercise suggests the appellant's case could only be framed as being that (1) there was no evidence to support a finding of fact, and (2) the decision was unreasonable. There is no need for there to be photos showing the actual drilling and it would be unusual to have such evidence. There were photos of tiles with a lack of glue and of cracked tiles. It therefore cannot be said there was no evidence to support the findings that were made. 4. The reasons for the decision that were published on 9 June 2022 do set out the basis for the decision sufficient to prevent a finding that the decision was unreasonable. It does not appear that any error of law was made. In reaching that view we have been assisted by the provision of a CD and transcript of the hearing which has provided the ability to listen to and read what occurred during the hearing. 5. To assess whether the decision was against the weight of the evidence, it would be necessary for the Appeal Panel to be provided with the evidence upon which both parties relied at the hearing. 6. Neither party did so, despite directions being made on 3 August 2022 which included that the parties should provide to the Tribunal: "All the evidence given to the Tribunal at first instance on which it is intended to rely". 7. When asked, the appellant indicated that he had provided a copy of a builder's licence and a document prepared for him by a lawyer. The transcript of the hearing suggests the appellant was permitted to provide evidence despite not having provided a witness statement or statutory declaration prior to the hearing. The respondents provided some of the evidence upon which they relied at the hearing, but a copy of their expert's report was not provided. 8. Clearly, to consider whether the Tribunal reached a decision that was against the weight of the evidence, it is necessary for the Tribunal to have the evidence to be able to consider whether the claim can be considered correct. As we have been unable to do so, this claim has not been established. 9. Having considered the evidence upon which the appellant now wishes to rely, that evidence appears to be additional evidence rather than fresh evidence. It is evidence that the appellant could and should have obtained prior to the hearing. As a result, the Tribunal is not persuaded that the evidence upon which the appellant now wishes to rely for the first time was not reasonably available at the time of the hearing at first instance: see Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. 10. Since neither of the two claims that require leave have been established, it is not necessary to consider whether leave to appeal should be granted. 11. It is also necessary to consider the question of an extension of time. We have noted that the reasons for the decision, which were dated 9 June 2022, were sent by mail with the result that the appellant would not have received them until sometime after that date. Secondly, it must be observed that the Notice of Appeal was dated 5 July 2022, within time, but was not received by the Tribunal until 11 July 2022: out of time by only four days. 12. When this aspect was raised with Ms Champion, she indicated that she did not seek to rely on what may be called a time technicality. In view of that concession, the preferable course is to grant an extension of time for the Notice of Appeal to be lodged. 13. However, as the appellant has not persuaded us that there was an error of law made in the decision published 9 June 2022, and as there is no basis for a grant of leave to appeal, it follows that the appeal must be dismissed. 14. As it appears that the order for the payment of money to the respondents was stayed on 7 September 2022, the decision to dismiss the appeal means that stay should be lifted. Conclusion 1. For the reasons indicated above, the following orders are made: 1. The time for lodging the Notice of Appeal is extended to 11 July 2022. 2. The appeal is dismissed. 3. As a result, the stay order is lifted. ********** 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 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: 27 September 2022