Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Stojonoff v Webber (No 2) [2024] NSWCATAP 137 Hearing dates: 26 June 2024 Date of orders: 16 July 2024 Decision date: 16 July 2024 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member P Durack SC, Senior Member Decision: (1) Luke Webber is joined as a respondent to these proceedings. (2) Leave to appeal is refused. (3) The appeal is dismissed. (4) The application of the appellant in the application for miscellaneous matters filed on 19 June 2024 that this decision is not published on the NSW Caselaw website is dismissed. Catchwords: APPEALS — Constructive failure to exercise jurisdiction — Appeal dismissed APPEALS — Leave to appeal — Principles governing — Leave to appeal refused APPEALS — Procedural fairness — Evidence does not establish Tribunal member fell asleep during hearing — Appeal dismissed CIVIL PROCEDURE — Non-publication order — Application dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64, Sch 4, cl 12 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Commonwealth of Australia v Davis Samuel Pty Ltd (No 4) [2008] ACTSC 112; (2008) 221 FLR 151 Stojonoff v Webber [2024] NSWCATAP 71 Treadgold-Svir v Dynamik Constructions Pty Ltd (No 2) [2023] NSWCATAP 271 Texts Cited: NCAT Procedural Direction 3 - Expert Evidence Category: Principal judgment Parties: Judith Stojonoff (Appellant) Mala Webber (First Respondent) Luke Webber (Second Respondent) Representation: Appellant (self-represented) First Respondent (self-represented) Second 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. On 3 May 2024, we made procedural orders relating to two issues in the appeal and revoked order 4 made on 13 February 2024 as corrected on 16 February 2024 dispensing with a hearing 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: Stojonoff v Webber [2024] NSWCATAP 71 (the 3 May 2024 appeal decision). 2. We have decided that Mr Webber should be joined as a respondent to the appeal, leave to appeal should be refused, the appeal should be dismissed and the application of Ms Stojonoff that this decision is not published on the NSW Caselaw website should be dismissed. 3. These reasons for decision should be read with, and use the same abbreviations as in, the 3 May 2024 appeal decision. The history of the appeal 1. The history of the appeal up to 3 May 2024 is set out in the 3 May 2024 appeal decision at [19]-[26]. 2. On 16 May 2024, Ms Stojonoff filed an application for miscellaneous matters that a hearing be dispensed with 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 (the 16 May 2024 Stojonoff application). 3. On 22 May 2024, Ms Stojonoff filed a bundle of documents (the additional Stojonoff appeal documents) which included her statutory declaration made on 6 May 2024 (the 6 May 2024 Stojonoff declaration). 4. On 27 May 2024, we dismissed the 16 May 2024 Stojonoff application and decided to provide our reasons at later date. 5. On 29 May 2024, the Appeal Panel constituted by a Principal Member decided that the parties could appear at the hearing by audio visual link (AVL). 6. On 13 June 2024, Ms Webber filed a bundle of documents (the additional Webber appeal documents) which included her statutory declaration made on 8 June 2024 (the 8 June 2024 Webber declaration). 7. On 19 June 2024, Ms Stojonoff filed an application for miscellaneous matters that this decision is not published on the NSW Caselaw website (the 19 June 2024 Stojonoff application) and documents in support (the 19 June 2024 Stojonoff documents). 8. On 24 June 2024, Ms Webber filed her response to the 19 June 2024 Stojonoff application (the 24 June 2024 Webber response). The hearing of the appeal 1. On 26 June 2024, the hearing of the appeal took place by AVL. Each of Ms Stojonoff and Ms Webber represented themselves. 2. At the commencement of the hearing, we indicated that the oral hearing was limited to the issues 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 the 19 June 2024 Stojonoff application. The remaining issues would be dealt with on the papers as provided in order 4 made on 13 February 2024 as corrected on 16 February 2024. 3. Ms Stojonoff relied on the following documents which were admitted into evidence without objection: 1. the 6 May 2024 Stojonoff declaration which was marked as exhibit A1; 2. the 15 February 2024 Nobbs letter which was marked as exhibit A2; 3. the sound recording of the hearing on 7 September 2023 (the 7 September 2023 sound recording) which was marked as exhibit A3. 1. Ms Webber relied on the 8 June 2024 Webber declaration which was admitted into evidence without objection and marked as exhibit R1. 2. Each of Ms Stojonoff and Ms Webber gave oral evidence and made submissions. 3. At the conclusion of the hearing, we reserved our decision. The issues for determination in the appeal 1. As set out in the 3 May 2024 appeal decision at [47]-[49(1)], 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 Mr Webber should be joined as a respondent to the appeal; 2. issue 2: whether the Tribunal failed to afford procedural fairness to Ms Stojonoff; 3. issue 3: whether the Tribunal constructively failed to exercise its jurisdiction; 4. issue 4: whether Ms Stojonoff should be granted leave to appeal. 1. If any of the issues 2 to 4 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. It will then be necessary to determine the 19 June 2024 Stojonoff application. 3. However, before turning to these issues, it is appropriate to set out our reasons for dismissing the 16 May 2024 Stojonoff application. The 16 May 2024 Stojonoff application 1. In support of the 16 May 2024 Stojonoff application, Ms Stojonoff relied on the fact that she was travelling overseas on 31 May 2024 and would be away until about October 2024. 2. Ms Webber consented to the 16 May 2024 Stojonoff application. 3. We dismissed the 16 May 2024 Stojonoff application for the same reasons that we revoked order 4 made on 13 February 2024 as corrected on 16 February 2024 dispensing with a hearing 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 as set out in the 3 May 2024 appeal decision at [63]. Issue 1: whether Mr Webber should be joined as a respondent to the appeal 1. In the additional Stojonoff appeal documents, Ms Stojonoff submits that Mr Webber should not be joined as a respondent to the appeal because she did not enter into the contract with him, but exclusively with Ms Webber. 2. In the additional Webber appeal documents, Ms Webber submits that Mr Webber should not be joined as a respondent to the appeal. She states that they have a partnership, he is not involved with The Site Coach websites, and only made a personal introduction of Ms Stojonoff. 3. We are satisfied that it is appropriate that Mr Webber should be joined as a respondent to the appeal. He was a party to the proceedings between the parties in the Consumer and Commercial Division of the Tribunal. Neither party advanced a persuasive reason why he should not be a respondent to the appeal. His joinder will ensure that all issues between the parties arising out of the contract are disposed of in this appeal. Issue 2: whether the Tribunal failed to afford procedural fairness to Ms Stojonoff Introduction 1. Before considering this issue, it is necessary to set out the evidence and submissions of the parties. The evidence of Ms Stojonoff The 6 May 2024 Stojonoff declaration 1. Ms Stojonoff gave the following evidence in the 6 May 2024 Stojonoff declaration: "At the in person hearing on 7th September 2023 between myself & Mala Webber that Member Lynch fell asleep on several occasions during this proceeding. As a result this incident has impacted the fairness and integrity of this case." The oral evidence of Ms Stojonoff 1. In cross-examination Ms Stojonoff gave the following evidence: 1. she could not specify at what time the Tribunal member fell asleep during the hearing because there was only a sound recording which contained "silences" throughout; 2. there was CCTV footage of the hearing in the possession of the Tribunal; 3. she agreed in hindsight she should have raised this issue earlier. It was referred to in the notice of appeal; 4. the head of the Tribunal member dropped several times during the hearing. 1. In response to our questions Ms Stojonoff gave the following evidence: 1. she had listened to the sound recording, but it was difficult to determine when someone falls asleep; 2. she had a clear memory of the Tribunal member falling asleep after about 40 minutes and about three quarters through the hearing; 3. the Tribunal member fell asleep once when she was speaking and once when Ms Webber was speaking; 4. she was unable to give a specific time when the Tribunal member fell asleep which occurred several times; 5. she noticed that the Tribunal member was typing for a significant part of the hearing while the parties were speaking; 6. there were definitely two times, and perhaps three times, when the Tribunal member fell asleep. On the first occasion when she was speaking, she noticed that the head of the Tribunal member dropped to an angle of greater than 45 degrees for about one or two minutes. On the second occasion when Ms Webber was speaking, she noticed that the head of the Tribunal member was lowered for perhaps 30 seconds; 7. she was shocked at the time to see the Tribunal member fall asleep. The 15 February 2024 Nobbs letter 1. The 15 February 2024 Nobbs letter is set out in the 3 May 2024 appeal decision at [55]. The 7 September 2023 sound recording 1. We have listened to the 7 September 2023 sound recording and detected the following matters: 1. the hearing had a duration of 1 hour 28 minutes 52 seconds and was conducted in the following seven stages: 1. the first stage: conciliation (from the commencement to 9 minutes 39 seconds); 2. the second stage: the evidence and submissions of Ms Stojonoff who spoke throughout this stage except when the Tribunal member asked questions or made comments (from 9 minutes 39 seconds to 32 minutes 40 seconds); 3. the third stage: the evidence and submissions of Ms Webber who spoke throughout this stage except when the Tribunal member asked questions or made comments (from 32 minutes 40 seconds to 58 minutes 37 seconds); 4. the fourth stage: the submissions in reply of Ms Stojonoff who spoke throughout this stage except when the Tribunal member asked questions or made comments (from 58 minutes 40 seconds to 1 hour 15 minutes); 5. the fifth stage: the submissions in reply of Ms Webber who spoke throughout this stage except when the Tribunal member asked questions or made comments (from 1 hour 15 minutes 25 seconds to 1 hour 22 minutes 15 seconds); 6. the sixth stage: the further submissions in reply of Ms Stojonoff who spoke throughout this stage (from 1 hour 22 minutes 15 seconds to 1 hour 26 minutes 30 seconds); 7. the seventh stage: wrap up by the Tribunal member (from 1 hour 26 minutes 38 seconds to 1 hour 28 minutes 52 seconds); 1. in each of the second to fifth stages the Tribunal member asked questions and made comments. There is the sound which is consistent with the sound of typing and occurred frequently throughout each of the second to sixth stages. There is also a small number of silent periods for short periods of up to approximately 30 seconds. The evidence of the Webbers The 8 June 2024 Webber declaration 1. Ms Webber gave the following evidence in the 8 June 2024 Webber declaration: "At the in person hearing on 7th September 2023 between myself, Mala Webber & Judith Stojonoff Member Lynch did not fell asleep once during the hearing. I did not on any occasion see this take place. She was asking questions and speaking to us, interrupting us on multiple occasions throughout the hearing." The oral evidence of Ms Webber 1. In cross-examination Ms Webber gave the following evidence: 1. she accepted that it is possible that she did not see the Tribunal member fall asleep; 2. she was looking at the Tribunal member the whole time and at no time did she see the Tribunal member fall asleep, let alone for as long as 30 seconds or more. The submissions of Ms Stojonoff 1. Ms Stojonoff made submissions in the Stojonoff appeal submissions which are set out in the 3 May 2024 appeal decision at [56]. Ms Stojonoff substantially repeated these submissions in the additional Stojonoff appeal documents and her oral submissions. She submitted that the Tribunal member falling asleep occasioned a miscarriage of justice. The submissions of the Webbers 1. Ms Webber made submissions in the Webber appeal submissions which are set out in the 3 May 2024 appeal decision at [57]. Ms Webber did not make submissions in the additional Webber appeal documents or address this issue in her oral submissions. Conclusion 1. The Tribunal does not make video recording of hearings. The cameras in the hearing rooms of the Tribunal at Sydney are used to facilitate online hearings by AVL. 2. The evidence of Ms Stojonoff was unsatisfactory in the following respects: 1. her evidence in the 6 May 2024 Stojonoff declaration was in general terms and expressed in the form of a conclusion that the Tribunal member "fell asleep". It was only in cross-examination that she said that the head of the Tribunal member dropped several times; 2. she did not specify in the 6 May 2024 Stojonoff declaration when or during what stage of the hearing the Tribunal member fell asleep by reference to her own memory and the opportunity to refresh her recollection with the benefit of the 7 September 2023 sound recording. Nor was she able to provide any time frame for when this occurred when asked the open question in cross-examination by Ms Webber as to what time during the hearing the Tribunal member fell asleep. It was only in response to our questions that she said this happened after about 40 minutes and about three quarters through the hearing; 3. she did not specify in the 6 May 2024 Stojonoff declaration for how long the Tribunal member fell asleep and who was speaking. It was only response to our questions that she said that on the first occasion when she was speaking it was for about one to two minutes, and that on the second occasion when Ms Webber was speaking it was for perhaps 30 seconds; 4. her evidence in the 6 May 2024 Stojonoff declaration that the Tribunal member fell asleep "on several occasions" was inconsistent with her evidence in response to our questions that the Tribunal member fell asleep "definitely two times, and perhaps three times"; 5. her evidence that the Tribunal member fell asleep fell after about 40 minutes when she was speaking is inconsistent with the 7 September 2023 sound recording as at this time Ms Webber was speaking, being approximately one third of the way through her evidence and submissions. The sound recording also reveals an alert Tribunal member around this time with questions, comments and typing. 1. We are not satisfied that Ms Stojonoff has established that the Tribunal member fell asleep during the hearing for the following reasons: 1. notwithstanding that she was shocked at the time to see the Tribunal member fall asleep, she made no reference to this in the notice of appeal; 2. the unsatisfactory aspects of Ms Stojonoff's evidence that we have referred to; 3. the sound recording reveals that the Tribunal member was alert and an active participant throughout the entirety of the hearing, particularly by asking questions and making comments, and by typing during its second to sixth stages; 4. the generalised conclusionary nature of the contents of the 15 February 2024 Nobbs letter, which was not supported by a statutory declaration despite our direction for the evidence to be provided in this manner; 5. we found Ms Webber's evidence to the effect that she would have noticed of the Tribunal member had fallen asleep for as long as 30 seconds or more to have persuasive force; 6. while we accept the evidence of Ms Stojonoff that the Tribunal member looked down or lowered her head to an angle of greater than 45 degrees, the observations of Refshauge J in Davis Samuel (No 4) at [47] set out in the 3 May 2024 appeal decision at [61] apply with equal force to looking down or lowering the head. This conduct is equally consistent with looking at the papers relevant to the hearing as with falling asleep; 7. other than this equivocal evidence that the Tribunal member looked down or lowered her head to an angle of greater than 45 degrees there is no other evidence that she fell asleep. 1. As Ms Stojonoff has not established that the Tribunal member fell asleep during the hearing, we are not satisfied that the Tribunal failed to afford procedural fairness to her. It follows that we do not accept that the Tribunal made any error of law in the making of the 22 November 2023 order. Issue 3: whether the Tribunal constructively failed to exercise its jurisdiction 1. We are not satisfied that the Tribunal constructively failed to exercise its jurisdiction by failing 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 for the following reasons: 1. the Tribunal in the 22 November 2023 reasons at [64]-[72] dealt with the issue of whether the Webbers were in breach of the varied contract with respect to the development of a modern e-commerce website; 2. the Tribunal in the 22 November 2023 reasons at [73]-[74] dealt with the issue of whether the Webbers were in breach of the varied contract with respect to the disputed one month of Facebook and Instagram management; 3. we accept that the Tribunal made no explicit finding that there had been no total failure of consideration paid under the varied contract. However, the Tribunal in making the finding in [68] of the 22 November 2023 reasons that the applicant had not established that the respondent had "not delivered the bulk of the website", implicitly dealt with this issue and rejected the submission of Ms Stojonoff. 1. As Ms Stojonoff has not established that 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, we are not satisfied that the Tribunal constructively failed to exercise its jurisdiction. It follows that we do not accept that the Tribunal made any error of law in the making of the 22 November 2023 order. Issue 4: whether Ms Stojonoff should be granted leave to appeal Whether the decision of the Tribunal was not fair and equitable 1. Ms Stojonoff has advanced no submissions as to the manner in which the Tribunal misapplied the law in finding that ss 60 (guarantee of due care and skill) and 61 (guarantees as to fitness for purpose) of the ACL had not been contravened. 2. We accept that the Tribunal made no explicit finding that Ms Stojonoff had not established that the Webbers contravened ss 60 and 61 of the ACL but it, implicitly, did so. 3. As to s 61 of the ACL, the Tribunal made the finding about the bulk of the website referred to above and findings that it accepted that the "placeholding text" could be easily updated (at [68] and [72] of the 22 November 2023 reasons), there had been no evidence from a website professional to establish the quality of the work and that mere assertion that the work was not of sufficient quality was not a sufficient basis to find in the applicant's favour (at [70] of the 22 November 2023 reasons). 4. The same finding about lack of proof about quality applied to the claim based upon s 60 of the ACL. In addition, the Tribunal relied upon the absence of objective proof that a reasonable provider of equivalent services would have done things differently (at [71] of the 22 November 2023 reasons). 5. Much of the focus of Ms Stojonoff's submissions were directed at challenging Ms Webber's positive evidence and submissions about the work that was done on the website and with the repetition of her contentions about the deficiencies in the work done by the Webbers. 6. However, the Tribunal's decision was based upon a failure by Ms Stojonoff to discharge her onus to establish her case with persuasive evidence which supported her own assertions. 7. We are not satisfied that the Tribunal made any error in these central findings we have referred to, let alone appealable error of the kind that would warrant the grant of leave to appeal (see at [35] of the 3 May 2024 appeal decision), all the more so when regard is had to the reasons set out in respect of the issue of whether its findings were against the weight of evidence. 8. It also follows that we are not satisfied that Ms Stojonoff may have suffered a substantial miscarriage of justice because the decision of the Tribunal was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act. Therefore, we refuse leave to appeal on this ground. Whether the findings of the Tribunal were against the weight of evidence 1. In circumstances where there was oral evidence and Ms Stojonoff has failed to provide a transcript of the hearing on 7 September 2023, it is impossible to determine whether the impugned findings of the Tribunal were against the weight of evidence. 2. It follows that we are not satisfied that Ms Stojonoff may have suffered a substantial miscarriage of justice because the decision of the Tribunal was against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act. Therefore, we refuse leave to appeal on this ground. Whether there is significant new evidence 1. Ms Stojonoff is seeking to rely on the following documents as constituting significant new evidence: 1. the Capodanno report; 2. the 7 December 2022 Stojonoff email; 3. the Stojonoff photographs. 1. In the Capodanno report Ms Capodanno sets out her qualifications and experience as a digital marketer, states that she agrees to be bound by NCAT Procedural Direction 3 - Expert Evidence, and expresses the opinion that the website is 50% complete. 2. In the 7 December 2022 Stojonoff email Ms Stojonoff requested Ms Webber to review "product shots". 3. The Stojonoff photographs are photographs of Ms Stojonoff's original website. 4. In the notice of appeal Ms Stojonoff has given the following explanation as to why this evidence was not available at the time of the hearing: "The website professional was overseas getting married and then went on honeymoon. The additional new evidence of my landing page has just been found on an old computer." 1. We are not satisfied that these documents were not reasonably available at the time of the hearing for the following reasons: 1. as to the Capodanno report, there is no evidence that it could not have been obtained prior to the hearing; 2. as to the 7 December 2022 Stojonoff email and the Stojonoff photographs, they were already in existence prior to the hearing. The fact that the Stojonoff photographs were located on an old computer does not satisfy the test in Al-Daouk at [23]. 1. It follows that we are not satisfied that Ms Stojonoff may have suffered a substantial miscarriage of justice because there is significant new evidence which was not reasonably available at the time of the hearing within cl 12(1)(c) of Sch 4 of the NCAT Act. Therefore, we refuse leave to appeal on this ground. The 19 June 2024 Stojonoff application Introduction 1. Before considering this issue, it is necessary to set out the evidence and submissions of the parties. The evidence of Ms Stojonoff 1. The 19 June 2024 Stojonoff documents comprise the following documents: 1. the letter dated 29 May 2024 to Ms Stojonoff (the 29 May 2024 letter); 2. an undated document from Ms Stojonoff which is a mixture of evidence and submissions (the undated Stojonoff document). The 29 May 2024 letter 1. In the 29 May 2024 letter, the author refers to possible business opportunities for Ms Stojonoff in relation to Lilipani products. The undated Stojonoff document 1. In the undated Stojonoff document, Ms Stojonoff alleges that comments made by Ms Webber to the press following the 3 May 2024 appeal decision were offensive, and have the potential to damage her and her brand. She refers to the 29 May 2024 letter. The evidence of the Webbers Ms Webber filed her response to the 19 June 2024 Stojonoff application (the 24 June 2024 Webber response 1. In the 24 June 2024 Webber response Ms Webber has attached her email correspondence with a journalist between 3 May 2024 and 7 May 2024 in which she responded to Ms Stojonoff's allegation that the Tribunal member fell asleep during the hearing in terms that are consistent with her evidence in the 8 June 2024 Webber declaration. The submissions of Ms Stojonoff 1. In the undated Stojonoff document, Ms Stojonoff submits that the publication of this decision on the NSW Caselaw website may have adverse consequences for her business if it is picked up by "International News Teams". 2. In her oral submissions, Ms Stojonoff submitted that the dispute with the Webbers was a private matter, and she did not wish the press or the public to have knowledge of this decision. She could not see the point of publishing this decision on the NSW Caselaw website. The submissions of the Webbers 1. In the 24 June 2024 Webber response Ms Webber has stated that she does not object to this decision not being published on the NSW Caselaw website. 2. In her oral submissions, Ms Webber did not address the 19 June 2024 Stojonoff application Conclusion 1. Section 64 of the NCAT deals with non-publication orders, and relevantly provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— … (b) an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal, … 1. In Treadgold-Svir v Dynamik Constructions Pty Ltd (No 2) [2023] NSWCATAP 271 (Treadgold-Svir (No 2)) at [38]-[40], the Appeal Panel relevantly stated: "[38] There is no doubt the Tribunal can make orders concerning the publication of information about proceedings, including the names of parties and personal information provided to the Tribunal in proceedings. However, a proper reason to do so is required having regard to the principle of open justice and the Tribunal must be satisfied it is "desirable" to do so: see s 64 of the NCAT Act. [39] The discretion to make such an order is not simply dependant on an applicant making a request. In this regard, unlike proceedings in the Guardianship Division and other circumstances prescribed in s 65 of the NCAT Act, the publication of the name of a party or witness in proceedings in the Consumer and Commercial Division (CC Division) is not prohibited. This is also the position in proceedings by way of appeal to the Appeal Panel from a decision of the CC Division. [40] In proceedings in the CC Division, consent from a party is not required for the Tribunal to publish a decision on Caselaw, including the parties' names. Having invoked the jurisdiction of the Tribunal, the principle of open justice permits publication unless there is good reason not to." 1. Having regard to the principles in Treadgold-Svir (No 2) at [38]-[40], we are not satisfied that Ms Stojonoff has established that an order should be made under s 64(1)(b) of the NCAT that this decision not be published on the NSW Caselaw website for the following reasons: 1. having commenced proceedings in the Tribunal, which proceeded by way of an open hearing both in the Consumer and Commercial Division and before the Appeal Panel, the dispute between herself and the Webbers and its outcome is not a private matter of which the press and the public have no interest; 2. having raised a question as to the integrity of the hearing and the administration of justice in the Tribunal by alleging that the Tribunal failed to afford procedural fairness to her by reason of the Tribunal member allegedly falling asleep during the hearing, it is important that our decision on this question is publicly available; 3. while we are doubtful that the contents of the 29 May 2024 letter are confidential information requiring protection, they are not disclosed in this decision. Orders 1. We make the following orders: 1. Luke Webber is joined as a respondent to these proceedings. 2. Leave to appeal is refused. 3. The appeal is dismissed. 4. The application of the appellant in the application for miscellaneous matters filed on 19 June 2024 that this decision is not published on the NSW Caselaw website is dismissed. ********** 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: 16 July 2024