Supreme Court New South Wales Medium Neutral Citation: Raffie v JIH Building Design Pty Ltd [2022] NSWSC 1533 Hearing dates: 9 November 2022 Decision date: 10 November 2022 Jurisdiction: Common Law Before: Adamson J Decision: (1) Refuse leave to appeal. (2) Order the plaintiff to pay the defendant's costs of the proceedings. Catchwords: APPEALS — Leave to appeal — appeal from NCAT refusing extension of time — whether breach of procedural fairness — where no explanation for delay in filing — leave to appeal refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 41, 83 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Fair Trading Act 1987 (NSW), s 79E Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: JIH Building Design Pty Ltd & Anor v Raffie [2021] NSWCATAP 32 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Category: Principal judgment Parties: Abiedah Raffie (Plaintiff) JIH Building Design Pty Ltd (Defendant) Representation: Counsel: Self-represented (Plaintiff) M Isaac (Defendant) Solicitors: N/A (Plaintiff) Willis & Bowring (Defendant) File Number(s): 2021/113433 Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: JIH Building Design Pty Ltd & Anor v Raffie [2021] NSWCATAP 32 Date of Decision: 17 February 2021 Before: S Westgarth, Deputy President P H Molony, Senior Member File Number(s): AP20/45460 and AP21/02500 JUDGMENT Introduction 1. Abiedah Raffie (the plaintiff) seeks leave to appeal pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) against the decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (the Tribunal) constituted by Deputy President Westgarth and Senior Member Molony, to refuse an extension of time to the plaintiff to lodge a notice of cross-appeal. The Appeal Panel's decision was made on 17 February 2021. 2. The summons commencing these proceedings was filed on 23 April 2021. An amended summons was filed on 21 June 2021. On 2 July 2021, JIH Building Design Pty Ltd (the defendant) filed a notice of motion seeking that various paragraphs of the amended summons be struck out as incompetent. The defendant was largely successful. What remains of the amended summons is as follows: "Details of Appeal 1. This application seek leave to appeal under Section 83 of the Civil and Administrative Tribunal Act 2013 No 2 [NSW]. Orders Sought 1. Leave to appeal from the whole of the decision of order made on 17 February 2021 by the Appeal Panel constituted by S Westgarth, Deputy President, P H Molony, Senior Member: 2. [Struck out.] 3. Order for a full refund of all moneys paid to JIH Building designs 4. Order for costs to be paid by the respondent in full. Appeal Grounds 1. The Appeal Panel failed to show procedural fairness in rejecting my cross appeal. 2. [Struck out.] 3. The appeal panel failed in showing procedural fairness by not hearing the cause of the delay in lodgement time was not only that I was informed by NCAT that the decision was final and binding but also that JIH continued to may countless applications for Stay, which was rejected twice, applied for instalment payments and informed the Sheriff department of his intention to pay. 4. The appeal panel did not show procedural fairness by ignoring the fact that we were made to believe that JIH Building designs was going to pay therefore had no reason to continue with court applications or lodge an appeal." Relevant statutory provisions 1. This Court's jurisdiction in the present matter arises from s 83 of the Act, which relevantly provides that a party to an internal appeal may, with this Court's leave, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. 2. Part 6A of the Fair Trading Act 1987 (NSW) confers jurisdiction on the Tribunal in relation to consumer claims, which are relevantly defined by s 79E of the Fair Trading Act as meaning a claim by a consumer that arises from a supply of services by a supplier to the consumer for certain relief, including the payment of a specified sum of money. It was common ground that the plaintiff's claim against the defendant was a consumer claim. 3. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) provides that, unless the Tribunal extends time, the time for lodgement of an internal appeal is 28 days from the date of the decision. 4. Section 41(1) of the Act confers power on the Tribunal (including the Appeal Panel) to extend time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction. Section 41(2) provides that such an application may be made even though the relevant time period has expired. The factual background The dispute and the proceedings before the Tribunal 1. The plaintiff engaged the defendant to perform design work. There was a dispute between them, which led to the plaintiff commencing proceedings against the defendant in the Consumer and Commercial Division of the Tribunal under Part 6A of the Fair Trading Act. 2. On 1 October 2020, the Tribunal, which was constituted by Member Ash, ordered the defendant to pay the plaintiff the sum of $6,780. 3. By email sent at 10.23am on 1 October 2020, the Tribunal sent the Tribunal's reasons for decision to the parties and said: "Please find attached correspondence relating to the above mentioned matter." 1. At 12.32pm on 1 October 2020, the plaintiff sent an email to the Tribunal in which she wrote in part: "Please advise how this matter can be appealed. I don't believe the decision is correct. … Please advise the steps required to lodge an appeal." 1. At 12.40pm on 1 October 2020, the Tribunal responded by email to the plaintiff: "NCAT orders are final and binding. You may consider visiting our website for information on your rights and obligations. For more information, visit https://ncat.nsw.gov.au/ncat/how-ncat-works/after the hearing/rights-and-obligations.html." 1. According to the plaintiff, she accessed the website and saw that there were various potential avenues (for redress). She also saw a reference to "error of law" (see below where her responses to the Appeal Panel are set out). 2. The plaintiff sought to enforce the decision of Member Ash by obtaining a certificate from the Tribunal (which she obtained and was dated 2 October 2020) which she registered as a judgment in the Local Court. She applied for a garnishee order, which was issued on 23 October 2020, but did not result in a payment as the bank account to which it was directed had no funds. On 16 October 2020, the plaintiff applied for a writ for levy of property, to be enforced by the Sheriff of the Local Court. The appeal and the application for extension of time to cross-appeal to the Appeal Panel 1. On 29 October 2020, the defendant lodged an appeal against the Tribunal's decision. As it was lodged within 28 days, it was within time. As soon as the plaintiff received the defendant's appeal, she rang someone in the Appeals Division of the Tribunal and was told that she could lodge an appeal at the same time as she lodged her reply to the defendant's appeal. 2. On 2 November 2020, the Registrar of the Tribunal sent to the parties, including the plaintiff, a notice to inform her of the appeal and that it had been listed for call-over on 13 November 2020 at 11am. The plaintiff was also informed that she must file a reply to the appeal two days before the call-over. The plaintiff lodged a reply to the defendant's appeal on 7 November 2020. 3. The Appeal Panel (constituted by Deputy President Westgarth) conducted the call-over on 13 November 2020 by telephone. He made directions for the lodgement of written submissions and directed that the plaintiff lodge her written submissions by 8 January 2021. He refused the defendant's application for a stay and listed the hearing of the appeal for 2.15pm on 1 February 2021 for half a day. He directed that it take place by telephone. It was not suggested that the plaintiff had raised her intention to appeal at the call-over. 4. On 23 November 2020, the defendant again applied for a stay of Member Ash's decision. Directions were made concerning the stay application, which was listed for hearing on 9 December 2020, at which there was also to be a further call-over of the appeal. The defendant sought to expedite the stay application, which was heard by Deputy President Westgarth on 27 November 2020. Deputy President Westgarth ordered that, in so far as the Tribunal's order required payment by Jason Harb, the principal of the defendant, the decision was stayed but that in so far as it required payment by the defendant, the stay was refused. It was not suggested that the plaintiff had raised her intention to appeal at this hearing. 5. On 2 December 2020, the Local Court refused the defendant's application to pay the judgment debt by instalments on the basis that the defendant could afford to increase his offer. Later that day, his application was approved on the basis that he would pay $2,000 per month, with the first payment due on 11 December 2020. 6. On 3 December 2020, a writ for levy of property was issued by the Local Court in respect of the amount owing pursuant to the Tribunal's order. 7. The plaintiff's "Appeal response" was dated 12 January 2021 and her notice of appeal (cross-appeal) was dated 15 January 2021. In her notice of appeal, the plaintiff claimed the following relief: "1. Full refund of $24,720.00 for the fixed price agreement for service that was not provided. 2. Full refund of the $11,534.43 for fees and payments made above the Fixed price agreement 3. Full refund of all court costs, lodgement fees for enforcement orders and filing fees. 4. Payment due to Allan Tinker (project Manager) for time spent on responding to JIH's countless applications. @ and hourly rate. Total $3840.00 5. Payment due to Abiedah Raffie (Senior project Manager) for time spent of responding to JIH's countless applications. @ and hourly rate. Total $6250.00 6. Payment of lost interest of moneys yet to be refunded, currently at $1166.40." 1. The plaintiff accepted that the relief in paragraphs 4, 5 and 6 had not been claimed in the original proceedings in the Tribunal. 2. On 15 January 2021, the plaintiff lodged a her appeal. It was common ground that the applicable time limit for appeals was 28 days from 1 October 2020: r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). Accordingly, the plaintiff required an extension of time. 3. According to the plaintiff, she lodged both documents together on 15 January 2021. Thus she was approximately 10 weeks out of time. The plaintiff did not indicate in her notice of appeal that she required an extension of time. The plaintiff accepted that she had not claimed items 4, 5 or 6 in the hearing before Member Ash. 4. As referred to above, the defendant's appeal and the plaintiff's application for an extension of time were listed for hearing before the Appeal Panel on 1 February 2021. 5. It would appear that the plaintiff was unaware that she needed an extension of time for her appeal. Shortly after the hearing had commenced, Deputy President Westgarth said: "Mr Malony and I think that we should stop your appeal, Mr Harb, at about 3.30. The reason for that is that Ms Raffie has filed a cross-appeal and it's filed out of time by a considerable amount of time, and we will need to hear from you, Ms Raffie, as to why we should extend the time for the lodgement of your appeal. You don't have to respond to that now, but at 3.30. That will be your opportunity to tell us why we should accept your cross-appeal out of time. I note that in your cross-appeal document, I believe that you did not ask for an extension of time. However, let's deal with that at 3.30." 1. After submissions relating to the defendant's appeal had concluded, the Deputy President asked the plaintiff why the Appeal Panel should extend time. He said as follows: "DEPUTY PRESIDENT WESTGARTH: I would like to briefly explain this to you. You filed a cross-appeal. It was received by the Tribunal on 15 January or thereabouts. Your appeal is from a decision made on 1 October. The deadline for lodging appeals was 1 November and therefore you were a month and a half out of time. Why should we extend the time in your favour to enable your cross-appeal to be considered?" 1. The plaintiff responded by saying that when she received the Tribunal's decision on 1 October 2020, she had sent an email to the Tribunal to ask how she could appeal the decision. 2. The plaintiff told the Appeal Panel that when she had received the email response from the Tribunal (set out above), she had gone to the Tribunal's website but, because of the "different avenues and errors of law", she had believed that the Tribunal's decision was final and binding and that she could not do anything about it. I infer from the plaintiff's reference to "errors of law" that she had read enough of the Tribunal's website to appreciate that she only had a right of appeal to the Appeal Panel from a decision of the Consumer & Commercial Division of the Tribunal on a question of law and would need leave in respect of other questions: s 80(2)(b) of the Act. 3. When asked about her reaction to receiving the defendant's appeal, she said that she was "shocked". The plaintiff explained that she had asked someone from the Tribunal's Appeal Division, who had said that she should lodge her cross-appeal at the same time as she was required to lodge her reply to the defendant's appeal. She said, in effect, that, in reliance on this information she had lodged both her reply and her cross-appeal on 15 January 2021. (This was not correct: the plaintiff lodged her reply to the appeal on 7 November 2020.) 4. The Deputy President put to the plaintiff that she had included in her cross-appeal matters which had not been considered by the Tribunal, such as her claim for Local Court costs and solicitors' costs (extracted above). The plaintiff accepted that to be the case but maintained that she should be able to argue her cross-appeal: namely, that the Tribunal was in error in requiring her to pay in the order of $36,000 for a Development Approval rather than in the order of $24,000. 5. At the conclusion of the hearing, the Appeal Panel reserved its decision on the defendant's appeal and the plaintiff's application for an extension of time. Deputy President Westgarth then asked Mr Harb whether he had any final questions. Mr Harb, in substance, asked whether, if the plaintiff's appeal were allowed to proceed (if an extension of time were granted), the orders for payment would be stayed. Deputy President Westgarth then told him that it was a matter that the Appeal Panel would have to consider. Mr Harb then sought to "comment on my processes with regards to the orders", which I understand to mean his stay applications. He sought to explain that the plaintiff had been "quite active" in going to the Local Court and getting the orders. Deputy President Westgarth then stopped Mr Harb and adjourned the hearing. 6. On 17 February 2021, the Appeal Panel gave its reasons for allowing the defendant's appeal (and ordering it to pay the plaintiff $3,700 instead of $6,780) and refusing the plaintiff's application for an extension of time to lodge a cross-appeal: JIH Building Design Pty Ltd & Anor v Raffie [2021] NSWCATAP 32. 7. The Appeal Panel's reasons for refusing the extension of time were as follows: "The Cross-Claim 16 At the hearing of the appeal we only considered whether the cross appeal should be refused on the basis that it had been filed out of time, or accepted upon the basis that we should extend time for filing that Notice of Appeal. We indicated to the parties that if we were of the view that time should be extended, then there would need to be further directions and a further hearing concerning the merits of the cross-appeal. In support of her contention that time should be extended the Respondent (i.e. Cross-Appellant) said that she initially thought that the orders were binding and that she had no further redress. She was not able, in our view, to adequately explain why on receipt of the Appellant's Notice of Appeal on or shortly after 29 October 2020 she did not then file a Notice of Appeal. During the hearing she said that she made some enquiries on the Tribunal's website and found the issue too complicated. 17 A review of the Notice of Cross-Appeal reveals that it includes claims which were not the subject of the proceedings at first instance. For example, it includes claims for the cost of post-hearing enforcement proceedings in the Local Court We have decided not to extend time for the lodgement of the cross appeal and to dismiss it. Our reasons are set out in [29] below." … Cross-Appeal 29 We are of the opinion that the cross-appeal should be dismissed on the basis that it has been filed out of time. In coming to this view, we have had regard to the length of the delay (about 6 weeks [sic]) which is excessive having regard to the requirement to lodge an appeal within 28 day from receipt of the Decision: see cl 25 of the Civil and Administrative Tribunal Rules 2014 NSW. We have had regard to the reason for the delay, which was largely due to the Respondent not making adequate enquiries as to what she needed to do. A further factor we have taken into account is that the Cross Appeal includes claims which have arisen since the first hearing and do not relate to the merits of the Decision itself. Finally it is not apparent that an injustice will arise by refusing to extend time." Whether leave ought be granted 1. This Court's power to grant leave is limited to appeals on a question of law. An alleged denial of procedural fairness raises a question of law: Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, at [17], [41] (Gaudron and Gummow JJ, Gleeson CJ agreeing); [132], [151]–[152] (Kirby J); and [169]–[171] (Hayne J). Each of the three grounds raised by the amended summons alleges a denial of procedural fairness and thus amounts to an appeal on a question of law. 2. In the grounds alleged in the amended summons, the plaintiff relied on two further matters which were not put to the Appeal Panel in support of her application for an extension of time: first, that the defendant applied unsuccessfully for a stay of the decision; and secondly, that he applied to be permitted to pay by instalments, which indicated (to the plaintiff) that he intended to pay the money outstanding. 3. In the oral hearing in this Court, the plaintiff complained that the Appeal Panel had not listened to her arguments on the defendant's appeal and had cut her off and told her to be quiet. She said that the defendant's appeal had taken up almost all of the available time and that she had been rushed in having to explain why she needed an extension of time. The plaintiff also took umbrage at the Appeal Panel asking Mr Harb whether he had any questions after it had reserved its decision. She also resented being told to keep quiet. 4. It is convenient to address the plaintiff's general complaints before moving to the specific complaint that she had been denied procedural fairness with respect to her application for an extension of time. As noted above, the defendant's appeal was set down for half a day, commencing at 2.15pm on 1 February 2021, and was to be conducted by telephone. When the appeal was set down, it was not known that the plaintiff wished to appeal or that time would have to be allowed (within the half day allocated to the defendant's appeal) to permit her to make an application for an extension of time. At the commencement of the hearing, the Appeal Panel outlined the procedure which would be adopted and the approximate division of time which would be allocated to the appeal and the application for an extension of time. 5. Because the plaintiff's leave application in this Court is confined to the Appeal Panel's refusal to extend time for her appeal, it is not necessary to address any alleged denial of procedural fairness in the hearing of the defendant's appeal, since this is not the subject of challenge in this Court. However, having regard to the plaintiff's criticism of the Appeal Panel, it is necessary to say something about the processes undertaken by the Appeal Panel. 6. It is a matter of common experience, as a result of the COVID-19 pandemic, that telephone hearings tend not to run as smoothly as hearings in person. One reason for this is that various speakers might inadvertently speak over, or interrupt, each other. This is reflected in the transcript. Further, the decision-maker may be required to be blunter over the telephone in stopping a litigant from giving a non-responsive answer in order to move the hearing along and have it finish within the allocated time period. The transcript which covered the defendant's appeal contained examples of these two matters. Such matters do not necessarily indicate a denial of procedural fairness since they are an almost inevitable consequence of telephone hearings. 7. I turn now to address the gravamen of the leave application and the allegation that the Appeal Panel denied procedural fairness to the plaintiff in her application for an extension of time. As the transcript recorded, the Appeal Panel gave the plaintiff an opportunity to be heard as to why the extension of time ought be granted. She availed herself of that opportunity. 8. In support of her application for an extension of time, the plaintiff relied on two matters before the Appeal Panel: first, that she had been told in the email from the Tribunal that the decision was final and binding; and, secondly, that she had been told by someone associated with the Appeal Panel that she should lodge her appeal when she lodged her reply to the defendant's appeal. Although the Tribunal had, in its email, informed the plaintiff that its decision was final and binding, it referred her to the portion of its website which set out the avenues of appeal. As referred to above, the plaintiff accessed the website. Further, the plaintiff did not lodge her appeal on 7 November 2020 when she lodged her reply to the defendant's appeal. Nor did she raise her intention to appeal at any of the call-overs or the stay applications. 9. When addressing the Appeal Panel, the plaintiff did not make submissions to the effect of all the matters set out in her grounds of appeal. In according procedural fairness, the Appeal Panel was bound only to give the plaintiff an opportunity to be heard and to consider the arguments which she put on her own behalf. There can be no denial of procedural fairness to omit to address an argument which was not put. 10. In any event, it is difficult to see what difference it would have made to the Appeal Panel's decision had the plaintiff put to the Appeal Panel what she has now included in her grounds. Whatever misapprehension under which she was labouring before the defendant lodged its appeal on 29 October 2020 must be taken to have been dispelled on that date. It must have been plain to the plaintiff on that date that the Tribunal's decision was not final and binding since the defendant had lodged an appeal and was challenging its obligation to pay the amount of $6,780 to the plaintiff. 11. Thus, while the plaintiff's explanation covered the period from 1 until 29 October 2020, the only explanation for the delay between 29 October 2020 and 15 January 2021 was that she had been told by an unidentified person in the Appeals Division of the Tribunal that she could lodge her cross-appeal with her reply to the defendant's appeal. Even if it was accepted that such a communication had occurred, there was no explanation as to why the plaintiff lodged her reply to the defendant's appeal on 7 November 2020 but did not lodge her cross-appeal until 15 January 2021. Her failure to explain the delay (notwithstanding the number of occasions on which the matter was before the Appeal Panel, including Deputy President Westgarth, in that period) was plainly germane to the Appeal Panel's refusal, as is apparent from its reasons, particularly in [16], extracted above. 12. Further, when the Appeal Panel refused the plaintiff's application for an extension of time, it had already heard the defendant's appeal. Thus, it was in a position to assess, at least in a preliminary way, whether granting an extension of time would be likely to make any difference to the result. By observing that it was not apparent that any injustice would result from declining the application for extension, the Appeal Panel was, appropriately, considering the merits of the plaintiff's appeal, in so far as they could be discerned. 13. The Appeal Panel accorded procedural fairness to the plaintiff by providing her with a fair hearing and an opportunity to put whatever she wanted to put in favour of her application for an extension of time. It was not alleged that it was not open to the Appeal Panel to refuse an extension of time. As long as procedural fairness has been accorded and the decision was not legally unreasonable (and there was no such allegation), it is for the Tribunal (including the Appeal Panel) to decide such discretionary procedural matters. There is no question of public policy or significant legal principle which would warrant the intervention of this Court in what is, in essence, a procedural decision of a discretionary nature. 14. For these reasons, I am not persuaded that leave under s 83 of the Act ought be granted. Costs 1. Mr Isaac, who appeared for the defendant, contended that there was no reason to depart from the general rule that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. The plaintiff submitted that it would be unfair if she had to pay the defendant's costs as the amount of its costs may well be more than the money which the defendant was originally ordered to pay her. On this basis, she submitted that each party should pay her or its, as the case may be, own costs. 2. The defendant has expended costs in obtaining legal representation for these proceedings. It has been successful. I am not persuaded that there is any reason why costs ought not follow the event. Orders 1. For the reasons given above, I make the following orders: 1. Refuse leave to appeal. 2. Order the plaintiff to pay the defendant's costs of the proceedings. ********** 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 November 2022