Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Stojonoff v Webber [2024] NSWCATAP 71 Hearing dates: On the papers Date of orders: 03 May 2024 Decision date: 03 May 2024 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member P Durack SC, Senior Member Decision: (1) On the issue of whether Luke Webber should be joined as a respondent to the appeal: (a) the appellant is to file and serve written submissions limited to one page within 21 days of this decision; (b) the respondent is to file and serve written submissions limited to one page within 42 days of this decision. (2) Order 4 made on 13 February 2024 as corrected on 16 February 2024 is revoked so far as the issue of whether the Tribunal failed to afford procedural fairness to the appellant by reason of the Tribunal member allegedly falling asleep during the hearing. (3) The appeal is to be the listed for a callover on a date fixed by the Registrar for the purpose of fixing a hearing date as soon as practicable after the elapse of 49 days after this decision. (4) The appellant is to serve a copy of the sound recording of the hearing on 7 September 2023 on the respondent within seven days of this decision. (5) On the issue of whether the Tribunal failed to afford procedural fairness to the appellant by reason of the Tribunal member allegedly falling asleep during the hearing: (a) the appellant is to file and serve a statement identifying the evidence relied upon, any further evidence which is to be by signed witness statement, statutory declaration or affidavit, and written submissions limited to three pages within 21 days of this decision; (b) the respondent is to file and serve a statement identifying the evidence relied upon, any further evidence which is to be by signed witness statement, statutory declaration or affidavit, and written submissions limited to three pages within 42 days of this decision; (c) the appellant and the respondent are to give written notice to the other specifying any witness who is required for cross-examination within 49 days of this decision. Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Procedural fairness – Whether Tribunal member fell asleep during hearing APPEALS — Revocation of order dispensing with hearing of appeal Legislation Cited: Australian Consumer Law (NSW), ss 60, 61 Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 80, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Fair Trading Act 1987 (NSW), s 79N Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10 Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; (2007) 230 FLR 185 Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Commonwealth of Australia v Davis Samuel Pty Ltd (No 4) [2008] ACTSC 112; (2008) 221 FLR 151 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16 Inventbuild Pty Ltd v Tulemis [2024] NSWCATAP 49 Italiano v Carbone & Ors [2005] NSWCA 177 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Rogers v Vinoly [2016] NSWCATAP 2 Steelbond Australia Pty Ltd v Wein [2024] NSWCATAP 20 Texts Cited: NCAT Procedural Direction 3 - Expert Evidence Category: Procedural rulings Parties: Judith Stojonoff (Appellant) Mala Webber (Respondent) Representation: Appellant (self-represented) Respondent (self-represented) File Number(s): 2023/00461437 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 22 November 2023 Before: A Lynch, General Member File Number(s): 2023/00392132 (previously GEN 23/25193) REASONS FOR DECISION Overview 1. This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 22 November 2023 in proceedings under the Fair Trading Act 1987 (NSW) (FT Act) concerning a dispute between Judith Stojonoff (Ms Stojonoff), and Mala Webber (Ms Webber) and Luke Webber (Mr Webber) (collectively the Webbers). In the decision, the Tribunal made a money order in favour of Ms Stojonoff. 2. The Appeal Panel made an order dispensing with a hearing of the appeal. Subsequently, Ms Stojonoff raised the issue of whether the Tribunal failed to afford procedural fairness to her by reason of the Tribunal member falling asleep during the hearing. 3. As we are satisfied that this issue cannot be properly determined without a hearing, we have revoked the order dispensing with a hearing of the appeal so far as the issue of whether the Tribunal failed to afford procedural fairness to Ms Stojonoff by reason of the Tribunal member allegedly falling asleep during the hearing and made procedural orders in relation to the hearing. We also have made procedural orders on the issue of whether Mr Webber should be joined as a respondent to the appeal. The factual background 1. Ms Stojonoff carries on the business of the supply of cosmetic products under the name Lilipani. 2. The Webbers carry on the business of the design and development of web services under the name The Site Coach. 3. On 15 November 2022, the parties entered into a contract for the Webbers to develop a modern e-commerce website for Ms Stojonoff's business for $5,280.00 plus GST (the contract). 4. On 28 November 2022, the parties varied the contract by the inclusion of additional services for the total price of $9,435.00 inclusive of GST (the varied contract). 5. Disputes arose the parties as to the quality of the services provided by the Webbers under the varied contract. The history of the proceedings between the parties in the Consumer and Commercial Division of the Tribunal 1. On 30 May 2023, Ms Stojonoff as the applicant commenced proceedings GEN 23/25193 in the Consumer and Commercial Division of the Tribunal against The Site Coach as the respondent by filing an application in which she claimed a money order for $9,435.80 (the Stojonoff application). 2. On 22 June 2023, the Tribunal relevantly made orders amending the name of the respondent to the Webbers, for the provision of documents by the parties and for the following amendment of the Stojonoff application: "4. The application is amended to also allege a breach of the Australian Consumer Law (NSW) ("ACL") s60 guarantee as to due care and skill, and s61 ACL s61 (Guarantees as to fitness for a particular purpose etc) with a claim for damages under s236; a breach of an agreement to which the Fair Trading Act ("FTA") provides for a remedy under s 79N." 1. On 5 July 2023, Ms Stojonoff filed a bundle of documents (the 5 July 2023 Stojonoff documents). 2. On 16 August 2023, the Webbers filed a bundle of documents (the 16 August 2023 Webber documents). 3. On 7 September 2023, the first day of the hearing took place. 4. On 21 September 2023, Ms Stojonoff filed a bundle of documents (the 21 September 2023 Stojonoff documents). 5. On 22 September 2023, the Webbers filed a bundle of documents (the 22 September 2023 Webber documents). 6. On 17 October 2023, the second day of the hearing took place. 7. On 22 November 2023, the Tribunal made a money order for the payment of $2,417.80 by the Webbers to Ms Stojonoff on or before 4 December 2023 (the 22 November 2023 order), and published reasons for its decision (the 22 November 2023 reasons). The 22 November 2023 reasons 1. In the 22 November 2023 reasons, the Tribunal: 1. found the Tribunal had jurisdiction to determine the matter ([1]-[8]); 2. set out the procedural history ([9]-[11]); 3. set out the evidence and issues in dispute between the parties ([12]-[19]) which relevantly included: 1. sworn oral evidence by Ms Stojonoff, the 5 July 2023 Stojonoff documents and the 21 September 2023 Stojonoff documents; 2. sworn oral evidence by Ms Webber, the 16 August 2023 Webber documents and the 22 September 2023 Webber documents; 3. there was no issue that Ms Stojonoff was entitled to a refund of $2,417.80; 4. the sums in dispute were $6,138.00 for website design and $880.00 for one month of Facebook and Instagram management; 1. summarised the evidence of Ms Stojonoff by setting out a chronology of events between 7 December 2022 and 30 December 2022, and the following complaints about the website ([20]-[34]): 1. the Webbers failed to deliver a modern look and the new webpage was just a replica of her applicant's original website; 2. there were only 4 products on the redesigned website and she had 8 products in total and all should have been included; 3. the Webbers failed to consult with her as she had expected; 4. she was not given an opportunity to give input into the design; 1. summarised the evidence of the Webbers by setting out a chronology of events between 2 December 2022 and 30 December 2022, and the following response to Ms Stojonoff's complaints ([35]-[58]): 1. they completed one month of the social media and Instagram management; 2. she failed to provide the appropriate feedback to allow them to finalise the product; 1. set out ss 60 and 61 of the ACL, the legal principles to be applied including that the applicant bears the onus of proof, and the issue in dispute ([59]-[63]): "[63] The issue in dispute is whether the respondents have delivered a website in accordance with the agreement between the parties and that it is fit for purpose." 1. set out the applicable principles and the following findings ([64]-[74]): 1. as to the applicable principles: "[71] In determining whether services were provided with due care and skill, it is relevant to consider whether there is any evidence that a reasonable provider of equivalent services would have done things differently. This is because the Tribunal has to be satisfied that, objectively, the work was not performed with due care and skill (see, e.g. Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 at [46]; Duran and Duran v Tafra Pty Ltd [2015] NSWCATCD 110 at [39]). …" 1. as to the website design: 1. it would appear from the correspondence between the parties that the Webbers were on track to deliver with the agreed 4 to 6 week timeline under the varied contract; 2. it accepted the Webbers' evidence that the "placeholding text" is not a large issue and can easily be updated, as most of the work is in building the functionality. It therefore was not satisfied that the Webbers had not delivered the bulk of the work on the website; 3. Ms Stojonoff had not provided any evidence from a website professional to establish the quality or the quantity of the work done was not in accordance with the varied contract. She bore the burden of proof and mere assertion that the work is not of sufficient quality is not sufficient basis to find in her favour; 4. while Ms Stojonoff gave evidence that she had a different experience with the other contractor and there was more consultation, there was no evidence from the new website designer commenting on the Webbers' work or whether the consultation was sufficient; 5. there was no evidence to contradict the evidence of the Webbers that the design looked very similar and many of the product shots and similar were from her original landing page because they were placeholder images until the final design was agreed; 1. as to Facebook and Instagram management, it was satisfied that the Webbers were entitled to be paid for one month because other than one post all the other posts went out and were in accordance with the discussions between and as agreed by the parties; 1. set out the 22 November 2023 order ([75]). The history of the appeal 1. On 20 December 2023, Ms Stojonoff as the appellant commenced proceedings 2023/00461437 against Ms Webber as the respondent by filing a notice of appeal in which she relevantly: 1. in section 5A challenges the 22 November 2023 order; 2. in section 5B attaches 5 pages setting out the grounds of appeal; 3. in section 5C seeks an order that Ms Webber is to pay her the sum of $9435.80; 4. in section 6A ticks the box "No" in answer to the question "Are you asking for leave (to appeal)?"; 5. in section 6B ticks the box "Yes" in answer to the question "Are you asking for leave (to appeal)?"; 6. in section 6Bi attaches 4 pages setting out why the decision of the Tribunal was not fair and equitable; 7. in section 6Biii attaches 9 pages setting out why the decision of the Tribunal was against the weight of evidence; 8. in section 6Biv attaches 1 page setting out significant new evidence that is now available that was not reasonably available at the time of the hearing and provides an explanation for its non-availability; 9. in section 7 ticks the box "No" in answer to the question "Do you require an extension of time?" 1. On 20 December 2023, the Registrar sent a notice to the parties advising that the appeal was listed for a callover on 19 January 2024. 2. On 15 January 2024, Ms Webber filed her reply to appeal in which she relevantly: 1. in section 3A supports the 22 November 2023 order and attaches two pages of reasons; 2. in section 3b attaches 17 pages responding to Ms Stojonoff's grounds of appeal in the notice of appeal; 3. in section 4 ticks the box "No" in answer to the question "Do you say the Appellant requires leave to appeal?"; 4. in section 4 ticks the box "The respondent accepts that the appeal was lodged with time". 1. On 19 January 2024, the Appeal Panel constituted by a Principal Member dismissed the appeal because Ms Stojonoff failed to appear. 2. On 24 January 2024, Ms Stojonoff filed an application to reinstate the appeal. 3. On 9 February 2024, the Appeal Panel constituted by a Principal Member reinstated the appeal. 4. On 13 February 2024, the Appeal Panel constituted by a Principal Member made procedural orders for the hearing of the appeal (the 13 February 2024 orders) including: "1 The Appellant is to lodge with the Appeal Registry and give to the Respondent by 22 February 2023: … (d) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing. … The Appeal is listed for HEARING on 16 April 2024 at 10:15 AM in Parramatta for a half day. …" 1. On 16 February 2024, the Appeal Panel constituted by a Principal Member corrected order 4 of the 13 February 2024 orders to provide that a hearing of the appeal is dispensed with. The hearing of the appeal on the papers 1. Ms Stojonoff relies on: 1. the letter of Sheila Capodanno (Ms Capodanno) dated 2 February 2024 addressed to "To Whom It May Concern" described as "Expert report on the Evaluation of LILIPANI Website" (the Capodanno report); 2. the following documents comprising 105 pages which were provided to the Registry on 1 March 2024: 1. a table of contents (2 unnumbered pages); 2. the 5 July 2023 Stojonoff documents (pages 1-2, 5-33); 3. the 21 September 2023 Stojonoff documents comprising: 1. the document headed "Final Submission" (the Stojonoff primary submissions) (pages 33-46); 2. attached documents (pages 47-55); 1. a bundle of documents comprising: 1. submissions for appeal (the Stojonoff appeal submissions) (pages 56-71); 2. documents attached to the Stojonoff appeal submissions (the Stojonoff appeal documents) (pages 72-103) which relevantly includes: 1. the letter of Alessandro Nobbs (Mr Nobbs) dated 15 February 2024 (the 15 February 2024 Nobbs letter) (page 102); 2. the email of Ms Stojonoff to the Appeal Panel sent on 6 January 2024 (the 6 January 2024 Stojonoff email) (page 103); 1. a sound recording of the hearing on 7 September 2023; 1. the following documents comprising 11 pages which were provided to the Registry on 6 March 2024: 1. a table of contents (2 unnumbered pages); 2. additional submissions for appeal (the additional Stojonoff appeal submissions) (1 unnumbered page); 3. the email of Ms Stojonoff to The Site Coach sent on 7 December 2022 (the 7 December 2022 Stojonoff email); 4. 7 photographs of Ms Stojonoff's original website (the Stojonoff photographs). 1. Ms Webber relies on the following documents which were provided to the Registry on 21 March 2024: 1. a bundle of documents described as "All the evidence provided to the Tribunal at first instance on which it is intended to rely"; 2. a bundle of documents described as "any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely"; 3. the document described as "The Respondent's written submissions in opposition to the appeal" (the Webber appeal submissions) in which she contends that she did not receive a copy of the sound recording of the hearing on 7 September 2023 as required by order 1(d) of the 13 February 2024 orders. The scope and nature of internal appeals 1. Internal appeals against an internally appealable decision may be made in the case of an interlocutory decision with leave of the Appeal Panel, and in the case of any other kind of decision (including an ancillary decision) as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds: s 80(1) and (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are where it is satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable, or the decision of the Tribunal under appeal was against the weight of evidence, or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with): cl 12(1)(a), (b) and (c) of Sch 4 of the NCAT Act. 3. 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 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." (emphasis in original) 1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. 1. The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 (Al-Daouk) at [23]. 2. 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 the NCAT Act. 3. In Collins, the Appeal Panel at [84] summarised the general principles which govern the granting of leave to appeal: "[84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there." 1. The Appeal Panel may decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances: s 80(3)(a) and (b) of the NCAT Act. 2. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13], the Appeal Panel stated that 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 to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act, 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 issues for determination in the appeal 1. We are satisfied that the appeal was commenced within the time of 28 days prescribed under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). 2. Having regard to the principles in Cominos at [13], we have given consideration to the 22 November 2023 reasons, the notice of appeal and the documents relied on by Ms Stojonoff in the appeal as to whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. 3. In the Stojonoff primary submissions Ms Stojonoff in substance made the following submissions: 1. she was entitled pursuant to s 79N of the FT Act to a refund of $9,435.80 paid under the varied contract for the following reasons: 1. the Webbers had breached the varied contract in the following respects: 1. the failure to deliver a completed custom built website; 2. the failure to consult with her; 3. the poor standard of work; 4. the failure to deliver on lnstagram/Facebook management services; 1. by reason of these breaches: 1. the Webbers contravened ss 60 and 61 of the ACL; 2. there was a total failure of consideration; 1. Ms Webber made several false statements. 1. The notice of appeal and attached pages are difficult to summarise because of their length, their mixture of references to the 22 November 2023 reasons, evidence before the Tribunal and submissions, and their repetitive nature. In substance Ms Stojonoff has repeated the Stojonoff primary submissions under the headings "Grounds of Appeal", "Decision was not fair and equitable" and "Decision against the weight of evidence". She also made submissions under the heading "Significant new evidence is now available that was not reasonably available at the time of the hearing". 2. In the Stojonoff appeal submissions Ms Stojonoff: 1. for the first time has contended that the Tribunal member fell asleep during the hearing on 7 September 2023; 2. has made a detailed commentary on paragraphs {49], [53], [60], [61], [63], [65], [68], [70] and [71] of the 22 November 2023 reasons. 1. We have discerned that the following questions of law are raised by the contentions of Ms Stojonoff: 1. whether the Tribunal failed to afford procedural fairness to Ms Stojonoff by reason of the Tribunal member allegedly falling asleep during the hearing on 7 September 2023; 2. whether the Tribunal failed to determine the issues of whether the Webbers were in breach of the varied contract and there was a total failure of consideration paid under the varied contract. 1. As to these questions of law we note the following established principles: 1. the question of whether the Tribunal has failed to afford procedural fairness to a party by conducting the hearing in accordance with the proper procedure raises a question of law: Italiano v Carbone & Ors [2005] NSWCA 177 at [85]-[87] (Basten JA); Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 (Resource Pacific) at [9] (Basten JA with Beazley P at [1] agreeing); Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 (Fisher) at [39] (Kirk JA with Meagher JA at [1] and Simpson AJA at [149] agreeing). This principle has been applied by the Appeal Panel: see for example Inventbuild Pty Ltd v Tulemis [2024] NSWCATAP 49 at [18]; 2. where a ground asserting an infringement of the rules of natural justice is raised, it is appropriate for the court to consider it first and in advance of other grounds because if established the ground may necessitate a remittal for rehearing in any event: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [116]-[117] (Gummow ACJ). This principle has been applied by the Appeal Panel: see for example Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10 at [32]. 3. the term 'constructive failure to exercise jurisdiction' is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked: Resource Pacific at [9] (Basten JA with Beazley P at [1] agreeing). If there has been a constructive failure to exercise jurisdiction there will have been error of law which can be addressed on an appeal limited to a question of law: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [22] (Basten JA); see also Fisher at [39] (Kirk JA with Meagher JA at [1] and Simpson AJA at [149] agreeing). This principle has been applied by the Appeal Panel: see for example Steelbond Australia Pty Ltd v Wein [2024] NSWCATAP 20 at [59]-[60]. 1. We have discerned that the following bases for leave to appeal are raised by the contentions of Ms Stojonoff: 1. whether the decision of the Tribunal was not fair and equitable because the Tribunal misapplied the law in finding that ss 60 and 61 of the ACL had not been contravened; 2. is whether the findings of the Tribunal that she had not established a breach of the varied contract by the Webbers in the following respects were against the weight of evidence: 1. the failure to deliver a completed custom built website; 2. the failure to consult with her; 3. the poor standard of work; 4. the failure to deliver on lnstagram/Facebook management services; 1. whether there is significant new evidence that was not reasonably available at the time of the hearing. 1. As to the question of whether the Tribunal misapplied ss 60 and 61 of the ACL law we note the following established principle that when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288 (Neaves, French and Cooper JJ) citing Hope v Bathurst City Council (1980) 144 CLR 1 at 8; [1980] HCA 16 (Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed). This principle has been applied by the Appeal Panel: see for example Rogers v Vinoly [2016] NSWCATAP 2 at [11]-[14]. 2. It follows that the following issues arise for determination in this appeal or may arise for determination depending on the outcome of anterior issues: 1. issue 1: whether the Tribunal failed to afford procedural fairness to Ms Stojonoff; 2. issue 2: whether the Tribunal constructively failure to exercise its jurisdiction; 3. issue 3: whether Ms Stojonoff should be granted leave to appeal. 1. If any of the issues are determined in favour of Ms Stojonoff, then the question will arise as to whether the appeal should be allowed and the 22 November 2023 order should be set aside. 2. However, before turning to these issues, it is necessary to consider the following two preliminary issues: 1. whether Mr Webber should be joined as a respondent to the appeal; 2. whether it is appropriate for the issue of whether the Tribunal failed to afford procedural fairness to Ms Stojonoff by reason of the Tribunal member allegedly falling asleep during the hearing to be decided on the papers. Whether Mr Webber should be joined as a respondent to the appeal 1. Our preliminary view is that Mr Webber should be joined as a respondent to the appeal as he was a party in the proceedings at first instance. 2. We have decided to make procedural orders of this issue providing for: 1. the filing and service by Ms Stojonoff of written submissions limited to one page within 21 days of this decision; 2. the filing and service by Ms Webber of a written submissions limited to one page within 42 days of this decision. Whether it is appropriate for the issue of whether the Tribunal failed to afford procedural fairness to Ms Stojonoff by reason of the Tribunal member allegedly falling asleep during the hearing to be decided on the papers 1. Before considering this issue, it is appropriate to set out the evidence relied on by Ms Stojonoff and the submissions of the parties. The evidence relied on by Ms Stojonoff 1. The evidence relied on by Ms Stojonoff comprises the 6 January 2024 Stojonoff email and the 15 February 2024 Nobbs letter. The 6 January 2024 Stojonoff email 1. In the 6 January 2024 Stojonoff email Ms Stojonoff relevantly states: "It should also be noted that Member Lynch fell asleep several times in our in person Hearing on 7 September 2023 and therefore missed some of the evidence presented under oath." The 15 February 2024 Nobbs letter 1. In the 15 February 2024 Nobbs letter Mr Nobbs relevantly states: "I am writing to formally report an incident that I witnessed during the in person Hearing between Judith Stojonoff and Mala Webber on 7th September 2023, at 3.l5pm on level 14, 56 Goulburn Street Sydney. As a concerned observer, I noted with great concern that the presiding Member Lynch fell asleep on three separate occasions during this proceeding." The submissions of the parties The Stojonoff appeal submissions 1. In the Stojonoff appeal submissions Ms Stojonoff has relevantly made the following submissions: "I wish to formally report an incident that occurred on 7th September 2023 at the in-person hearing on Level 14, 66 Goulburn Street Sydney with Member Lynch presiding over our case. It must be noted with great concern that I saw Member Lynch fall asleep on several occasions during the proceeding between myself and Mrs Webber. This incident most definitely had an impact on the outcome of this case as critical evidence was missed by Member Lynch. Please refer to the attached statement made by Mr Alessandro Nobbs who was present at the in-person hearing on 7th September 2023 and also witnessed Member Lynch falling asleep on several occasions during this hearing. … I mentioned this is an email to the Appeals committee on 6th January 2024. … I also reported this in the Appeals hearing to Member Suthers on 9th February 2023. … I was rather shocked and did not know how to respond to this incident at the time, therefore my action was to make a note of this, as I did not know what to do in this situation. I was unsure if it was appropriate to say something, what does one say in this instance? I have never been in a hearing before and I did know how to respond to this incident. In hindsight I should have spoken up and asked Member Lynch to please wake up so that this could be heard on the audio of the hearing. However your Team will be able to view this footage in the form of CCIV footage, as I noticed that there are cameras in every room at NCAT." The Webber appeal submissions 1. In the Webber appeal submissions Ms Webber has relevantly made the following submissions: "Ms. Stojonoff has made a formal & disturbing accusation in her Submissions for Appeal letter … against a Member of NCAT stating that Member Lynch fell asleep on several occasions during the hearing. I was there, she did not fall asleep. This is a lie. Stojonoff's boyfriend Alessandro also submitted a letter ... She also accused Member Lynch at the Appeals hearing in front of Member Suthers orally however: Stojonoff has not provided any evidence to support this accusation of what happened at the hearing at first instance. There is no typed transcript of the relevant parts of the hearing, no sound recording of the entire hearing was provided either as requested in the Order by AD Suthers on Feb 13/24" (bold text in original) Consideration 1. In Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 (Cesan) the High Court allowing the appeals and ordering new trials in circumstances following an 11-day jury trial in the District Court of New South Wales, the appellants were convicted of conspiracy to import a commercial quantity of ecstasy and sentenced to substantial terms of imprisonment. On appeal to the New South Wales Court of Criminal Appeal, the appellants claimed that their trial had miscarried by reason of the fact that the trial judge was frequently asleep on the bench (according to some witnesses, for periods of up to 20 minutes) and moreover, was asleep during significant points in the progress of the trial, notably during parts of the first appellant's evidence. The Court of Criminal Appeal after receiving written evidence and hearing oral evidence of several witnesses, found that the judge was "nodding off" and on other occasions, notably when he was heard to snore, was asleep in a real and practical sense: Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; (2007) 230 FLR 185 at [63] (Basten JA); at [189] (Grove J with Howie J at [216] agreeing). 2. In the High Court French CJ at [72], [93] relevantly made the following observations: "[72] The appearance of a court not attending to the evidence and arguments of the parties and control of the conduct of the proceedings is an appearance which would ordinarily suggest to a fair and reasonable observer that the judicial process is not being followed. That is not to say that every minor distraction, inattention, sign of fatigue or even momentary sleepiness constitutes a failure of the judicial function. The courts are human institutions operated by human beings and there must be a margin of appreciation for human limitations. Otherwise the judicial system would be rendered unworkable by the imposition of unachievable standards. Nevertheless, it would be an unnecessarily narrow view of the judicial duty to say that appeal courts are to judge such lapses solely by reference to their effects upon the outcome of the case. …" "[93] If, by reason of sleep episodes or serious inattention, the reality or the appearance exists that a trial judge has substantially failed to discharge his or her duty of supervision and control of the trial process in a trial by jury, then enough has been made out to establish a miscarriage of justice. … 1. The other members of the High Court (Gummow J, Hayne J, Heydon J, Crennan J, and Kiefel J) allowed the appeals for similar reasons. 2. In Commonwealth of Australia v Davis Samuel Pty Ltd (No 4) [2008] ACTSC 112; (2008) 221 FLR 151 (Davis Samuel (No 4)) Refshauge J considered an application that he terminate a trial on the ground that he had fallen asleep. His Honour dismissed the application because he found that the party who alleged he was asleep had been mistaken. His Honour at [46]-[47] relevantly made the following observations: [46] … There is an obvious unsatisfactoriness in a trial judge having to decide whether he or she has fallen asleep. It is much easier if all parties agree on the position or there is some objective fact such as snoring (see Cesan v Director of Public Prosecutions) or where the judge's associate awakens the judge by touching him or her and offering a glass of water: see Stathooles v Townsville Demolitions Pty Ltd (unreported, Qld Ct of App, 3/9/1995) at [6]. [47] It is much more difficult where the principle indicium is that the judge has his or her eyes shut. This can be quite ambiguous: R v Grant [1964] SASR 331 at 338. Even other aspects of demeanour can be misconstrued: R v Langham [1972] Crim LR 457. …" 1. We are satisfied that the principles in Cesan at [72], [93] as appropriately adapted to civil proceedings apply equally to proceedings in the Tribunal. 2. In the light of the disagreement of the parties and having regard to the observations in Davis Samuel (No 4) at [46]-[47], we are satisfied that it is not appropriate for the issue of whether the Tribunal failed to afford procedural fairness to Ms Stojonoff by reason of the Tribunal member allegedly falling asleep during the hearing to be decided on the papers. As this issue raises a question as to the integrity of the hearing, the administration of justice in the Tribunal and conflicting evidentiary material from the parties, we have decided that we should conduct a hearing on this issue. It follows that we have decided to revoke the order dispensing with a hearing of the appeal so far as this issue. We note that it has only become necessary to take this course because Ms Stojonoff raised this issue for the first time on 1 March 2024 when she filed the Stojonoff appeal submissions and the Stojonoff appeal documents. Ms Stojonoff should have raised this issue in her notice of appeal. 3. We have also decided to make procedural orders for the hearing providing for: 1. the listing of the appeal for a callover for the purpose of fixing a hearing date as soon as practicable after the elapse of 49 days after this decision; 2. the service of the sound recording of the hearing on 7 September 2023 by Ms Stojonoff on Ms Webber within seven days of this decision; 3. the filing and service by Ms Stojonoff of a statement identifying the evidence relied upon, any further evidence which is to be by signed witness statement, statutory declaration or affidavit, and written submissions limited to three pages within 21 days of this decision; 4. the filing and service by Ms Webber of a statement identifying the evidence relied upon, any further evidence which is to be by signed witness statement, statutory declaration or affidavit, and written submissions limited to three pages within 42 days of this decision; 5. the giving of written notice by the parties to the other specifying any witness who is required for cross-examination within 49 days of this decision. Orders 1. We make the following orders: 1. On the issue of whether Luke Webber should be joined as a respondent to the appeal: 1. the appellant is to file and serve written submissions limited to one page within 21 days of this decision; 2. the respondent is to file and serve written submissions limited to one page within 42 days of this decision. 1. Order 4 made on 13 February 2024 as corrected on 16 February 2024 is revoked so far as the issue of whether the Tribunal failed to afford procedural fairness to the appellant by reason of the Tribunal member allegedly falling asleep during the hearing. 2. The appeal is to be the listed for a callover on a date fixed by the Registrar for the purpose of fixing a hearing date as soon as practicable after the elapse of 49 days after this decision. 3. The appellant is to serve a copy of the sound recording of the hearing on 7 September 2023 on the respondent within seven days of this decision. 4. On the issue of whether the Tribunal failed to afford procedural fairness to the appellant by reason of the Tribunal member allegedly falling asleep during the hearing: 1. the appellant is to file and serve a statement identifying the evidence relied upon, any further evidence which is to be by signed witness statement, statutory declaration or affidavit, and written submissions limited to three pages within 21 days of this decision; 2. the respondent is to file and serve a statement identifying the evidence relied upon, any further evidence which is to be by signed witness statement, statutory declaration or affidavit, and written submissions limited to three pages within 42 days of this decision; 3. the appellant and the respondent are to give written notice to the other specifying any witness who is required for cross-examination within 49 days of this decision. ********** 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 Amendments 15 May 2024 - "Principal judgment" is replaced with "Procedural rulings" as the Category 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: 15 May 2024