Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Harris v White [2022] NSWCATAP 395 Hearing dates: 12 December 2022 Date of orders: 20 December 2022 Decision date: 20 December 2022 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member P H Molony, Senior Member Decision: 1. The appeal is allowed. 2. The order made on 23 September 2022 in proceedings HB 22/3185 is set aside. 2. The proceedings are remitted to the Consumer and Commercial Division for rehearing, with new evidence allowed. Catchwords: APPEAL – procedural fairness – notice of hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Home Building Act 1989 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: John Harris (Appellant) Brian White (Respondent) Representation: Appellant (Self-represented) Respondent (Self-represented) File Number(s): 2022/00313608 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 23 September 2022 Before: P Zammit, General Member File Number(s): HB 22/31855 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 23 September 2022. 2. The Tribunal's decision concerned an application brought by the respondent (Mr White) against the appellant (Mr Harris) under the Home Building Act 1989 (the HB Act), in relation to a contract to carry out earthworks and to supply and install a fence and a gate. An earlier application by Mr White, HB 22/22145, was dismissed on 8 July 2022 as Mr White failed to appear at the hearing. 3. The application that is the subject of this appeal was lodged on 15 July 2022 and was listed for final hearing on 23 September 2022. The Tribunal ordered Mr Harris to pay Mr White the sum of $6,500, in accordance with a quote for rectifying the fence. The hearing was conducted in Mr Harris' absence and the Tribunal gave oral reasons for decision. 4. Mr Harris appeals this decision. The substance of the appeal concerns Mr Harris' claim that he was unaware of the application and of the hearing because Mr White provided an incorrect address to the Tribunal. Mr Harris claims that he was therefore unable to defend the application. 5. For the reasons set out below, we have decided to allow the appeal and remit the proceedings to the Consumer and Commercial Division for rehearing. Background 1. From the material before us, which includes the material lodged in support of and in opposition to the appeal and the notices of hearing and material lodged by the parties in HB 22/22145 and HB 22/31855, the background to the dispute between the parties can be summarised as follows: 1. The parties contracted for the supply and installation of a fence and gate and the removal of soil in February 2021. 2. The work was completed in June 2021, with a final payment made on 7 July 2021. 3. In or about September 2021, Mr White perceived defects in the work performed by Mr Harris. 4. Mr White complained to NSW Fair Trading, who advised him that Mr Harris had not responded to contact. 5. On 19 May 2022, Mr White commenced proceedings HB 22/22145. He did not provide an address for service for Mr Harris. Instead, he provided the email address used by Mr Harris, which includes the words "avid timber fencing". 6. At the first hearing of HB 22/22145, Mr White was told to provide an ASIC business names search for Mr Harris. This is standard practice. The Tribunal made procedural directions and the hearing was adjourned to 8 July 2022. 7. The Registry sent the hearing notice for the next hearing to Mr Harris at the email address Mr White provided. This appears to have been because at the time the notice of hearing was sent, Mr White had not yet provided an ASIC search. 8. The ASIC search provided by Mr White showed that Mr Harris had previously operated under the business name "Avid Timber Fences". The search showed that the business name was cancelled. It also provided a historical place of business / service of notice address in North Rocks. 9. The matter was listed for final hearing on 8 July 2022. Mr White lodged documents in response to procedural directions made by the Tribunal. Mr Harris also lodged documents, even though no directions were made requiring him to do so. At the appeal hearing, Mr White agreed that he had received documents from Mr Harris by email, although he could not open all the attachments. 10. Mr Harris attended the hearing on 8 July 2022. Mr White failed to appear, being in South Australia at the time and having apparently been confused by the time difference. HB 22/22145 was dismissed because of Mr White's failure to appear. 11. Mr White elected not to apply to have HB 22/22145 reinstated. Instead, he commenced new proceedings as he was entitled to do, the previous proceedings having not been determined on the merits and there being no time limitation period preventing him from doing so. 12. In the new application (HB 22/3185), Mr White provided the North Rocks address for Mr Harris. The notice of hearing was sent to Mr Harris at that address. Mr Harris appeared at neither the first hearing of that application on 11 August 2022, nor the final hearing on 23 September 2022. 13. At the appeal hearing, Mr White conceded that among the documents he had received from Mr Harris before the 8 July 2022 hearing was a copy of Mr Harris' contractor licence, which includes his address. Mr Harris' address is in Baulkham Hills. Mr White stated that not providing the address on Mr Harris' licence was "an oversight". 14. The Tribunal heard the proceedings in Mr Harris's absence and made an order in favour of Mr White. 1. Contrary to procedural directions made at call over, Mr Harris has not provided a transcript of the Tribunal's decision. We conclude that the Tribunal accepted Mr White's uncontested evidence and made a money order consistent with the evidence provided by Mr White concerning the cost of rectification of works the Tribunal found to be defective. Given that the Tribunal conducted the hearing in the absence of Mr Harris, the Tribunal's reasons for decision are not central to the merits of the appeal. 2. During the appeal hearing, Mr White confirmed that he did not advise the Tribunal at the 23 September 2022 hearing that there had been previous proceedings between the parties and that Mr Harris had provided documents in response to the previous application. 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. The list includes whether there was a failure to afford procedural fairness. 3. 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 (Collins v Urban), 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. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided on the appeal 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: see Cominos v Di Rico [2016] NSWCATAP 5 at [13]. Submissions and evidence 1. In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal lodged on 20 October 2022; 2. The Reply to Appeal lodged on 4 November 2022; 3. Mr Harris's written submissions lodged on 18 November 2022; 4. Mr White's written submissions received on 2 December 2022; 5. The procedural directions made by the Tribunal in HB 22/22145 and HB 22/31855; 6. The notices of hearing sent to Mr White in HB 22/22145 and HB 22/31855; 7. The material filed in connection with HB 22/22145 and HB 22/31855; 8. The Tribunal's Notice of Order; 9. The procedural directions made at the appeal callover; 10. The applications to the Tribunal; and 11. The oral submissions made by the parties at the appeal hearing. Notice of Appeal 1. The Notice of Appeal was lodged on 20 October 2022, which is within the 28 day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules). Grounds of Appeal 1. Mr Harris is self-represented and, unsurprisingly, has not articulated grounds of appeal in a conventional manner. Consistent with the principle articulated in Cominos v Di Rico, we have examined the material generally to discern when a question of law or a basis for leave to appeal is raised. 2. It is clear from the notice of appeal – and confirmed at the appeal hearing – that the basis for the appeal is Mr Harris's claim that he was unaware of the hearing, the notice of hearing having been sent to an address at which he no longer resides. Mr Harris's position is that, not being aware of the hearing, he did not have an opportunity to defend the application brought by Mr White. 3. If established, being deprived of the opportunity to present a case in defence of the application may amount to a denial of procedural fairness, which is a question of law. Mr Harris also seeks leave to appeal. However, because we are satisfied that a question of law is raised on the appeal, it is unnecessary for us to consider whether to grant leave to appeal. Issues 1. The issues to be decided in this case are: 1. Did Mr Harris have a reasonable opportunity to present his case? 2. If so, what orders should be made in the appeal proceedings? Consideration Did Mr Harris have a reasonable opportunity to present his case? 1. Section 38 (5) of the NCAT Act relevantly provides: 5) The Tribunal is to take such measures as are reasonably practicable: …. (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 1. Whether Mr Harris had a reasonable opportunity to present his case turns on whether he was notified of the hearing. As noted above, we have considered the material filed in both Tribunal proceedings. This material includes the original application in HB 22/22145, in which no address was provided and the ASIC search which provided a historical North Rocks address associated with the business name Avid Timber Fences, which has been deregistered since 2015. 2. Given that Mr Harris uses the phrase "avid timber fencing" in his email address, it is not surprising that Mr White thought that he was dealing with the person who had owned a similar business name. Such a conclusion is also consistent with the signature block on Mr Harris' letter to Mr White apparently attaching Mr Harris' quote (on page 12 of the attachments to the Reply to Appeal). This document sets out Mr Harris' name, phone number, licence number, an ABN (which is not the ABN for Avid Timber Fences) and an insurance number and otherwise states: Kind regards John Harris Avid Timber Fencing 1. Mr Harris's documents filed in HB 22/31855 also contain a similar signature block in several locations, including on a page containing a photograph of Mr Harris's Fair Trading licence. The licence shows Mr Harris's address, which is an address in Baulkham Hills and not the historical address on the ASIC search relating to the business name Avid Timber Fences. A search of home building licence numbers on Fair Trading's website also indicates that Mr Harris has a Baulkham Hills address. That address is a matter of public record. 2. As noted above, Mr Harris appeared at the 8 July 2022 hearing of HB 22/2145 and Mr White failed to do so, resulting in the application being dismissed. We conclude that the only reason Mr Harris was aware of that hearing was because a notice of hearing was sent to his email address. As noted above, it appears that Mr Harris was notified of the 8 July 2022 hearing by email because at that time the email address was the only address either the Registry or Mr White had. 3. In any event, the notice of hearing for the hearing of HB 22/3185 on 23 September 2022 was not sent to Mr Harris by email. Rather, it was sent to the address Mr White had provided in the application, which was the historical Avid Timber Fences address. There was nothing unusual or untoward about this, particularly in the absence of evidence of a more up to date address for service. There was also nothing unusual or untoward about the Tribunal proceeding to hear HB 22/3165 in Mr Harris's absence. The Tribunal cannot be criticised for having done so. 4. We consider that Mr Harris has contributed to the confusion about his address by continuing to identify himself as associated with a business name which is no longer registered and not having a business address on his quotes or other correspondence. We consider that Mr White has also contributed to the problem by not providing the address on Mr White's licence when he lodged the second application and by not advising the Tribunal of the earlier application and the fact that Mr Harris had provided documents in defence of that application. 5. We are satisfied based on the material before us that Mr Harris' address is not the North Rocks address to which the 23 September 2022 hearing notice was sent. It follows that we are satisfied that Mr Harris was unaware of the hearing on 23 September 2022. The fact that Mr Harris lodged documents in defence of proceedings HB 22/22145 and attended the hearing of that matter on 8 July 2022 demonstrates that he would have attended the hearing on 23 September 2022 if he had been aware of the application and the hearing. At the appeal hearing, Mr White did not dispute that this is the case. 6. We note Mr White's submissions that he sent a text message to Mr Harris asking for the address to which he should send documents for that hearing. Mr Harris denies having received any such message. Regardless of whether the text message was sent or received, the notice of hearing was sent to an incorrect address through no fault of the Tribunal. In the absence of receiving a notice of hearing, there was no basis for Mr Harris to attend. 7. As Mr Harris was not notified of the hearing, he did not have an opportunity to present evidence, make submissions and question Mr White's witnesses. We therefore conclude that Mr Harris did not have a reasonable opportunity to be heard or otherwise have his submissions considered in the proceedings. In the circumstances of this case, we are satisfied that this amounts to a denial of procedural fairness. 8. We have considered whether Mr Harris has any defence to Mr White's application. If he has no defence to the case, being denied an opportunity to attend the hearing to defend the application may have resulted in no practical injustice. 9. Mr Harris has filed a significant amount of material that is either irrelevant or marginally relevant to the case he would have put in defence of Mr White's claim. This includes material in respect of events that occurred after the hearing, such as material concerning what Mr Harris describes as harassment by Mr White in his attempt to enforce the Tribunal's money order. The irrelevant material also includes positive reviews by other customers and explanations for the delay in completing the works. 10. However, at the appeal hearing, Mr Harris confirmed that his defence to the claim that his work is defective is essentially that: 1. He supplied materials in accordance with the agreement with Mr White; and 2. Damage to the fence or gates was not present at the time he finished the work. Rather, it is likely to have been caused by contractors who undertook building works after his work was complete. 1. Mr White opposes the appeal being granted. He submitted that the Tribunal hearing was fair and that he had a very strong case. Mr White submitted that if Mr Harris had been present at the hearing it would have made no difference to the outcome. 2. While we make no finding as to the merits of Mr Harris' case opposing Mr White's application, we are satisfied that he has arguable defences that were not put to and considered by the Tribunal. The appeal is therefore allowed. What orders should be made in the appeal proceedings? 1. While we have the power to rehear Mr White's application, it is not practical for us to do so. Mr White's application is strongly contested and requires a hearing at which evidence is presented and witnesses possibly cross-examined. That is not something that can be done in the context of the appeal hearing. Arranging for us to conduct another hearing presents logistical difficulties. In these circumstances, we conclude that it would be more expeditious for the matter to be remitted to the Consumer and Commercial Division to be reheard, with new evidence allowed. Orders 1. The appeal is allowed. 2. The order made on 23 September 2022 in proceedings HB 22/3185 is set aside. 3. The proceedings are remitted to the Consumer and Commercial Division for rehearing, with new evidence allowed. 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: 20 December 2022