Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Angar Group Services Pty Ltd v Murray [2024] NSWCATAP 56 Hearing dates: 13 November 2023 Date of orders: 9 April 2024 Decision date: 09 April 2024 Jurisdiction: Appeal Panel Before: S Thode, Principal Member D Goldstein, Senior Member Decision: The appeal is dismissed. Catchwords: APPEALS – Denial of procedural fairness Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulation 2022 Cases Cited: Cominos v Di Rico [2016] NSWCATAP 5 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Sedghi v Liew [2024] NSWCATAP 6 Texts Cited: None Cited Category: Principal judgment Parties: Angar Group Services Pty Ltd (Appellant) David Murray (Respondent) Representation: Angar Group Services Pty Ltd (Appellant) Respondent (self-represented) File Number(s): 2023/00290496 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: N/A Date of Decision: 25 August 2023 Before: J Ringrose Tribunal Member File Number(s): HB 23/26883 Decision Under Appeal REASONS FOR DECISION 1. The appellant appeals against a decision given in the Consumer and Commercial division of the Tribunal on 25 August 2023 which required it to pay the respondent $10,000.00. Procedural history 1. The background to the proceedings at first instance and the appeal is that in December 2022 the present respondent commenced proceedings (the 'original proceedings') against the appellant claiming $10,000.00 as damages for breaches of a kitchen renovation contract entered into by the parties. A decision was made in the respondent's favour in the amount claimed on 15 May 2023 for the cost of rectification of defective work. The appellant was not present at the hearing. 2. The appellant applied for and on 9 June 2023 obtained an order under clause 9 of the Civil and Administrative Tribunal Regulation 2022 (the 'set aside proceedings') setting aside the 15 May 2023 decision on the basis that the decision was made in the absence of the appellant and the Tribunal was satisfied that the appellant's absence had resulted in its case not being adequately put to the Tribunal. 3. The respondent's case was reinstated and reheard as HB 23/26883, (the 'rehearing proceedings') the proceedings appealed from. Grounds of Appeal 1. The appellant's Ground of Appeal was: 'The Tribunal process was conducted in an unprofessional manner by' the Member 'and the mix-up of paperwork, due to the creation of multiple NCAT file numbers as part of the process was determined to be a fault of my own and was to my disadvantage. Upon the hearing, I was prepared and had personal physical copies of my form and evidence that I was to present.' The member 'had queried me regarding my paperwork, as he didn't have it on his end, which ultimately led to a ruling against me.' 1. The appellant stated in its Notice of Appeal that it was not seeking leave to appeal. We will proceed on the basis that the appellant has raised a question of law for which leave is not required. Reply 1. In his Reply the respondent stated that: 1. he supported the decision appealed against; 2. The appeal did not identify a question of law; 3. The appeal did not seek leave to appeal. 4. The appeal did not explain the procedural fairness not provided to the appellant, given that its claim was heard twice, first in May 2023, and then before the Tribunal Member on 25 August 2023, 5. the appellant had ample time to present his case, and 6. the appellant has been afforded procedural fairness, and chose not to attend the first hearing, and not to present his case at the second hearing. Documents on Appeal 1. Apart from its Notice of Appeal and an application for a stay of the original decision the appellant filed: 1. On 21 September 2023, a bundle of documents consisting of the respondent's 'Outline' in the original proceedings, what appears to be Mr Niazy's statutory declaration in the set aside proceedings together with annexures, including the appellant's set aside application; 2. On 27 October 2023, an 'Evidence Table' attaching documents which were not tendered before the Tribunal Member. One of the documents was an 'Overview' which was in the form of a statement of facts with submissions. The balance of the attachments were screen shots of text messages, photographs and emails; and 3. USB sticks containing WhatsApp and mp4 videos of the work the subject of the proceedings at first instance. 1. The respondent filed its submissions on 1 November 2023. 2. We have not had regard to the videos referred to above because the appellant has not sought leave to appeal on the basis of the decision in the rehearing proceedings being against the weight of evidence, or new evidence now being available that was not reasonably available at the time of the hearing. Self-represented parties 1. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') at [12] an Appeal panel stated: 'In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.' 1. Such an approach was confirmed in Cominos v Di Rico [2016] NSWCATAP 5 where an 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. However, this must be balanced against the obligation to act fairly and impartially' 1. It will be necessary for us to approach the appellant's Notice of Appeal in the way described above. Nature and scope of appeal 1. The decision of the Tribunal at first instance is an internally appealable decision and an appeal can be made from that decision as of right upon a question of law, and otherwise with leave of the Appeal Panel: see, s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 ('NCAT Act'). 2. The following questions of law were identified in Prendergast at [13] citations and quotes omitted: 'Whether there has been a failure to provide proper reasons; Whether the Tribunal identified the wrong issue or asked the wrong question; Whether a wrong principle of law had been applied; Whether there was a failure to afford procedural fairness; Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; Whether the Tribunal took into account an irrelevant consideration; Whether there was no evidence to support a finding of fact; Whether the decision is so unreasonable that no reasonable decision-maker would make it.' 1. In our view the appellant's Notice of Appeal and the Grounds of Appeal stated therein make it plain that the basis of the appeal is that the appellant asserts that there was a failure to afford procedural fairness. We find that the appellant has raised a question of law which, if established, allows the appeal as of right under the NCAT Act. 2. At a directions hearing on 1 November 2023 in the Appeal Panel the following was noted in orders of that date: 'The Appeal Panel notes the appellant confirmed today that it does not rely on what was said at the hearing at first instance in the appeal and so does not intend to lodge the sound recording or transcript.' 1. At the hearing of the Appeal we stated to the appellant that its prospects of success in the appeal were poor unless it provided a transcript of those parts of the hearing that it relied on. We made the following orders at the conclusion of the Appeal. '1. Not later than 27 November 2023, the appellant must file in the Registry of the Appeal Panel and give a copy to the respondent a typed transcript of the relevant parts of the hearing and a transcript of the Member's Reasons for Decision. 2 If the respondent disagrees with the transcript provided by the appellant he must, not later than 4 December 2023, file a copy of what he states is the proper version of the transcript in the Registry of the Appeal Panel and give a copy of that transcript to the appellant. 3 The decision is reserved.' 1. The appellant filed a typed transcript as ordered. On 1 December the respondent filed a number of documents in the registry of the Appeal Panel, including a typed transcript which he incorrectly described as the transcript of the hearing before Tribunal Member Briggs who heard the original proceedings. The respondent also provided an eight paragraph submission which addressed the hearing before us on 13 November 2023 and a copy of a letter dated 28 November 2023 written to the Appeals Division of the Tribunal. In Sedghi v Liew [2024] NSWCATAP 6 an Appeal Panel considered the position where submissions were sent to it after the finalisation of the appeal where no order had been made allowing the additional submission. The Appeal Panel referred to authorities which stated that additional material was not to be accepted. 2. At [64] and [65] the Appeal panel stated: 'In Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37, the Appeal Panel at [106] – [110] explained in detail why submissions are not accepted after the hearing has been concluded. It is sufficient for us to set out what was stated at [109]: See, too, the powerful guidance of a unanimous Court of Appeal in Bale v Mills [2011] NSWCA 226 at [57] to [61], which we relevantly paraphrase as follows: ● the High Court, intermediate courts of appeal and other courts have deprecated in strong terms the filing of material after an appeal without leave being given; ● not only have the parties and their legal representatives no right (whether they agree among themselves to do it or not) to place before the court (or a tribunal) without prior leave further material after an appeal has been heard, it is wrong. It undermines and derogates from the principle of the open administration of justice; ● the consequence of this is not only that sending submissions without leave to the court (here the Appeal Panel) is wrong, but also the court (here the Appeal Panel) may and generally will ignore what has been sent. We agree with what was said at [106] – [110] in Murphy v Trustees of Catholic Aged Care Sydney including the extract in the preceding paragraph. On that basis we find that the material sent to the Appeal Panel by the builder after the conclusion of the hearing should not be taken into account.' 1. In accordance with the passages that we have extracted above, we will not have regard to the respondent's eight paragraph submission or his letter dated 28 November 2023. The decision under appeal 1. The Tribunal Decision which was published on 25 August 2023 stated that detailed oral reasons were provided to the parties at the hearing. The Reasons for Decision were stated in a single paragraph which was: 'The respondent did not provide evidence to address the claims brought by the applicant for rectification work but he appeared to suggest that the respondent company (which was not licensed as a building contractor) may have a cross claim against the applicant. As the original orders made on 15 May 2023 were set aside, the Tribunal was not prepared to stand the matter over so that the respondent could file a cross claim if so advised. The owners claim should be concluded and the respondent may file a cross claim at a later stage.' 1. The transcript material lodged by the appellant indicates that the Tribunal Member made a number of findings and statements at the end of the hearing, dealing with the history of the proceedings, including the 15 May 2023 Tribunal decision and the appellant's set aside application. We will set out what we consider to be the most relevant findings which constitute Reasons for Decision including making necessary amendments to correct what we consider to be transcribing errors. In doing so we observe that the transcripts provided by the parties are similar, have extensive transcribing errors, but the transcript provided by the appellant has less transcribing errors. 'It is clear that the respondent Angar Group Services did not file any evidence disputing the claim which has been made for $10,000 that being the cost of rectification of defective work. It is clear from what Member Briggs said and his decision on 15 May that the respondent could not have done rectification work because it was in breach. There were a number of sections of the Home Building Act which I had referred to earlier. When the respondent arrived today, he claimed that he had put in all of his evidence. In this matter, he refused to accept the evidence filed, went to anything other than a cross claim. Nothing was filed in terms of this matter. In the original claim the only submissions filed were claims from the applicant, David Murray and the other applicant Building Zone Construction. The Tribunal allowed the respondent to raise issues. Mr Nazia, on behalf of the respondent raised issues in relation to the claim. It is apparent that he did not have evidence to address the findings that have been made by member Briggs on the present claim and he was told on several occasions that if he wishes to bring a cross claim, he would be at liberty to do so, but the Tribunal would not today allow him to ventilate those other claims, without a cross claim. He was told that the orders would be made on the present claim in the same terms has been made by Member Briggs in May. He was told that if he claimed to be owed money through his own licensed company, he was he was at liberty to bring that cross claim as a separate item. I should note on the record that Mr Niazy was given about an hour to discuss this. He kept on repeating matters, and he wanted to continue to interrupt while I was endeavouring to give reasons for this decision. Ultimately, a sheriff's officer came to see what was happening in the room, and as Mr Niazy had invited me to have him removed, I did so. Having regard to the evidence and considering the findings made by Member Briggs earlier, I am satisfied that I should make again the order that the respondent pay the applicant sum of $10,000 and I'll allow 14 days for that to be paid. I will note that I have given detailed oral reasons for my decision.' Failure to provide procedural fairness 1. The substance of the appeal is that the appellant asserts first, that there was a mix up of paperwork which was determined to be his fault and worked to his disadvantage. 2. Secondly, the appellant's representative stated at the hearing he had physical copies of his 'form and evidence' which we understand to mean the set aside application and the documentary evidence he relied upon and which he intended to present, but the Tribunal Member did not have those documents, and this ultimately led to the ruling against the appellant. 3. The transcript provided by the appellant indicates that the appellant arrived late at the Tribunal. We have reproduced the transcript provided by the appellant with what we consider to be necessary editorial amendments which do not alter what is recorded as the dialogue between the Tribunal Member and Mr Niazy on behalf of the present appellant: 'Mr Niazy (respondent) How you going, sir? Tribunal Member: Good. I take it you are speaking for the respondent, are you? Mr Niazy: No, I am the respondent, sir. Tribunal Member: You are the respondent? You are Angar Group Services Pty Ltd Mr Niazy: That's correct, sir. Tribunal Member: Well, you have a name, sir? What is your surname? Mr Niazy: Niazy N-I-A-Z-Y Tribunal Member: N-I-A-Z-Y? Mr Niazy: Yes, sir. I called in. I was just stuck in traffic. Tribunal Member: Mr Niazy, I have got no documents filed in the tribunal on your behalf or on behalf of the company registry here. Mr Niazy: I, uh.. Can I approach? Tribunal Member: No, you can't. Mr Niazy: I forwarded the documents through NSW services. Tribunal Member: Well, the method of serving documents is not through NSW Services. Documents are served through posting them or delivering them to registry, here. Mr Niazy: Okay Tribunal Member: And you haven't done that? Mr Niazy: Well, wasn't.. Tribunal Member: And you haven't done that, sir? Mr Niazy: No, I have not done that, sir Tribunal Member: There's no real excuse for that. Mr Niazy: Well, so when I was at the New South Wales Services, they took the papers and they said, we're going to post them and I'll pay for the postage and all of that. Tribunal Member: Sir, I've only been part time in this tribunal for 16 and a half years. Mr Niazy: Yes, sir. Tribunal Member: And I have never, ever heard an excuse like that. Mr Niazy: It's my first time being here, sir. Tribunal Member: Well, it might be your first time here, sir, but you should have been here before. You had certainly applied to have the application set aside before. Mr Niazy: Yes, sir. Tribunal Member: but how did you expect that you'd be able to say anything if you hadn't got any paperwork before the tribunal? Mr Niazy: Obviously, I misunderstood what they were saying to me. Apologies for my…. Tribunal Member: Well, sir, this matter has been listed today. Mr Niazy: Yes, sir. Tribunal Member: To be heard? Mr Niazy:Yes, sir. Tribunal Member: And the allegations that were made on the first occasion. I know you apparently weren't there, but the allegations made were thoroughly looked at by a very experienced building member of this tribunal. Mr Niazy: Yes, sir. Tribunal Member: He had no difficulty in making the orders that he made. Mr Niazy: Yes, sir. Tribunal Member: And you, when you put your application in to have this set aside, didn't have any trouble getting that to a tribunal, did you? Mr Niazy: No, sir. I just… Tribunal Member: *Muffled* You... in here, didn't you? Mr Niazy: I didn't what, sir? Tribunal Member: You filed it in here, didn't you? Mr Niazy: No, no, through the New South Wales Service. I've got the receipts and all that here. Tribunal Member: Sir, New South Wales services have not sent anything to this tribunal. You've got.. Mr Niazy: I've got the papers here, sir. Tribunal Member: You've got an application. Mr Niazy: They took photocopies of everything and they said they were going to post it. Tribunal Member: Well, the application was put in with your address at Guildford. The payment was made, apparently, through a visa credit card, you put your application in with an address at Church Street, Parramatta. Mr Niazy: Yes, sir Tribunal Member: And short of apart from providing that, you put in apparently you put in the separate sheet and you then put nothing else in to the tribunal. Mr Niazy: Well, the case. the response we gave to get this set aside, it was all filed and given to NSW services. Tribunal Member: Response you filed to get this set aside, that's arrived, that's got nothing to do with evidence to prove your case. Mr Niazy: Oh. I thought that was my case. Yeah. I'm very naive. Tribunal Member: Well, If you've been in business Mr Niazy: yeah, I've never been here. Tribunal Member: Do you have a builder's license or not? Mr Niazy: Do I have a builder's license? I'm not a builder, sir. I'm not a builder. Tribunal Member: So you are running a business, getting people doing building. Mr Niazy: that's correct, sir. Not building' 1. Soon after the above exchanges the following exchange occurred: 'Tribunal Member: The position is this, I've got nothing from you. Now we've clarified it. Yes. Service, New South Wales. Put the other thing in. There's been no evidence of anything on your part. Mr Niazy: Well, the evidence speaks for itself, sir. Tribunal Member: Well, it does when I read it. Mr Niazy: Yeah. Mr Niazy: And if you read it. Tribunal Member: let me read it. Mr Niazy: See what the whole case is about. Tribunal Member: Let me read what the minister (sic) ordered. (Member) 1. The transcript that we have set out above establishes that the Tribunal Member was of the view that the appellant had not filed evidence in the rehearing proceedings in response to the owner's claim. The transcript also establishes that the appellant was of the view that he had filed documents through NSW services. 2. We find that the exchange between the Tribunal Member and Mr Niazy which we have set out below relates to documents filed in support of the appellant's set aside application, not its evidence in the rehearing application. The reason for this is that the details the Tribunal Member refers to accords with the information on the appellant's set aside application and other documents which the appellant filed with his 21 September submissions. 'Mr Niazy: I've got the papers here, sir. Tribunal Member: You've got an application. Mr Niazy: They took photocopies of everything and they said they were going to post it. Tribunal Member: Well, the application was put in with your address at Guildford. The payment was made, apparently, through a visa credit card, you put your application in with an address at Church Street, Parramatta. Mr Niazy: Yes, sir Tribunal Member: And short of apart from providing that, you put in apparently you put in the separate sheet and you then put nothing else in to the tribunal. Mr Niazy: Well, the case.. the response we gave to get this set aside, it was all filed and given to NSW services. Tribunal Member: Response you filed to get this set aside, that's arrived, that's got nothing to do with evidence to prove your case. Mr Niazy: Oh. I thought that was my case. Yeah. I'm very naive.' 1. Section 38(6)(a) of the NCAT Act states: 'The Tribunal— (a) is to ensure, as far as practicable, 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,' 1. Pursuant to section 36(6)(a) of the NCAT Act we have reviewed the NCAT website and the electronic records of the Tribunal in connection with the proceedings the subject of this appeal. On 8 June 2023 the Tribunal in the rehearing proceedings made directions to prepare the proceedings for hearing. The following procedural directions were made and sent to the appellant at its registered address, which we note is the same address it used in its set aside application: 'The applicant is to provide to the respondent at its registered address for service of documents 2905/330 Church Street Paramatta all documents that the applicant seeks to rely upon at the hearing on or before 16 June 2023. The respondent is to provide to the applicant and the Tribunal (in person or by post) all documents in reply on or before 30 June 2023.' 1. On the same day the Tribunal in the rehearing proceedings sent the appellant a Notice of Hearing informing it that the hearing was on 25 August 2023. 2. The NCAT website under the heading 'Prepare for you hearing – Evidence and witnesses' states under the heading 'Submissions': 'Submissions are documents or items sent to NCAT which a party intends to rely on at a hearing. This may include: Witness statements Experts reports Replies Affidavits or statements. In some NCAT cases, a Tribunal Member may ask you to file submissions to support your case or to file submissions in response to a directions hearing.' 1. Under the heading 'How to file a submission' the NCAT website states: 'Submissions must be provided in printed copies either by post or in person at an NCAT Registry.' 1. We have referred to the orders made on 8 June 2023 which required the appellant to provide the respondent and the Tribunal its documents in reply to the respondent's case by 30 June 2023. The NCAT website made it clear that submissions which included witness statements, experts reports, replies or affidavits or statements were to be provided at a NCAT Registry which are identified in the NCAT website. 2. Having regard to the transcript extracts that we have set out, and having read the transcript provided by the appellant, we find that the appellant has not established its ground of appeal that there was a mix up of paperwork due to the creation of multiple NCAT files which was determined to be its fault and to its disadvantage. It is true that there were the original proceedings in which the present respondent commenced his proceedings and obtained a decision in his favour on 15 May 2023. It is also true that the appellant filed the set aside proceedings which had a different NCAT number and which was successful. It is also true that the rehearing proceedings were assigned yet a different NCAT number. 3. We find that these matters were known to, or should have been known to the appellant because it received Tribunal documents in the three sets of proceedings. We also find that the transcript that we have extracted above does not establish that there was a mix up of paperwork. The Tribunal Member was not confused between the original proceedings, the set aside proceedings or the rehearing proceedings which were before him. The Tribunal Member was asking the appellant what evidence it had filed in the rehearing proceedings. We find that the extracts from the transcript set out above do not establish or even suggest that the creation of multiple NCAT files was determined to be the fault of the appellant. We do not accept the appellant's assertion that the multiple NCAT files (which we observe are an inevitable element of a successful set aside application under regulation 9 of the of the Civil and Administrative Tribunal Regulation 2022) was to its disadvantage. It is apparent to us that the cause of any disadvantage that the appellant may complain of was the fact that it did not pay adequate regard to, or give effect to the Tribunal's direction of 8 June 2023 that it was to provide to the applicant and the Tribunal (in person or by post) all documents in reply on or before 30 June 2023. 4. The appellant also relies on the assertion that: 'Upon the hearing, I was prepared and had personal physical copies of my form and evidence that I was to present.' The member 'had queried me regarding my paperwork, as he didn't have it on his end, which ultimately led to a ruling against me' 1. As we have explained above, the form and evidence that the appellant had was the documentation that it had relied upon in the set aside proceedings. The fact that the Tribunal Member did not have the appellant's evidence from the set aside proceedings is explicable given that he was dealing with the rehearing proceedings, not the set aside proceedings. The transcript establishes that on numerous occasions the Tribunal Member stated words to similar effect at 14.08.24: 'When you come here today, because this is listed today for hearing it is expected that you produce documentary evidence to establish all of the things that you want to say and we don't have any of that.' 1. The Tribunal Member's oral reasons for decision given at the hearing and also his written reasons for decision make it clear that the ruling against the appellant was made because it did not have evidence to address the respondent's claim for the costs of rectifying defects in its work, not because the Tribunal Member did not have the appellant's set aside documents. 2. We have reviewed the material that the appellant filed in this appeal on 21 September 2023 which included its application to set aside the Tribunal decision of 15 May 2023 and the documents attached to that application. We find that there is no material in those documents that amounts to persuasive evidence that the defects of which the present respondent complained of were not present, or were not the responsibility of the appellant, or could be rectified at a cost less than $10,000.00. As stated by the Tribunal Member, this material did raise a claim by the appellant for $17,550.00 which the Tribunal Member stated could be the subject of a separate application in the Tribunal. The Tribunal Member stated that he was not prepared to delay the present respondent's claim to accommodate the appellant's claim for $17,750.00. There is no appeal against that aspect of the Tribunal Member's decision. Nor was the matter raised before us at the appeal. We also observe that the Tribunal Member's decision not to delay determination of the present respondent's claim before him to address the appellant's claim for $17,750.00 was a conventional decision when the present respondent had not been put on notice of an intention on the part of the appellant to pursue such a claim in the rehearing proceedings and thereby to file a response. We would further note that the appellant has not been deprived of his remedies in respect of any cross claim and that any claim for debt recovery that may be agitated by the appellant remains well within time. 3. We have considered the appellant's Grounds of Appeal. We find that the appellant has failed to establish that he was denied procedural fairness at the hearing. 4. Accordingly we make the following orders: 1. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. 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: 09 April 2024