Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Williams t/as Select Stables v Mead [2024] NSWCATAP 211 Hearing dates: 17 October 2024 Date of orders: 25 October 2024 Decision date: 25 October 2024 Jurisdiction: Appeal Panel Before: A Bell SC, Senior Member G Ellis SC, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is otherwise dismissed. (3) The stay order made on 21 August 2024 is lifted. (4) As a result, the amount of $4,515.00 which the appellant has paid into a solicitor's trust account is to be paid to the respondent within seven days of the date of these orders. (5) Each party is to bear their own costs of the appeal. Catchwords: APPEALS – No recording or transcript of the hearing or the oral reasons available – failure to comply with direction despite extension of time – no error on a question of law or basis for granting leave to appeal established Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Appellant – Taelar Rae Williams t/as Select Stables Respondent – Carla Mead Representation: Applicant – Self-represented Respondent – Self-represented File Number(s): 2024/00282302 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2024] NSWCATCD Date of Decision: 16 July 2024 Before: S Sutherland, General Member File Number(s): 2023/00138872 REASONS FOR DECISION Outline 1. On 16 July 2024 a member of the Tribunal made an order that appellant pay the respondent $4,515.00 on or before 30 July 2024. In this appeal, the appellant sought to have that order set aside, setting out three grounds of appeal and seeking leave to appeal on the basis that (1) the decision was not fair and equitable, and (2) the decision was against the weight of the evidence. 2. We are of the view that we are unable to find that any of those challenges have been established as the appellant has not provided either a recording or a transcript of either the hearing or the oral reasons delivered at the conclusion of that hearing. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [13] the Appeal Panel set out a non-exclusive list of questions of law: (1) Whether there has been a failure to provide proper reasons… (2) Whether the Tribunal identified the wrong issue or asked the wrong question … (3) Whether a wrong principle of law had been applied … (4) Whether there was a failure to afford procedural fairness … (5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations … (6) Whether the Tribunal took into account an irrelevant consideration … (7) Whether there was no evidence to support a finding of fact … (8) Whether the decision is so unreasonable that no reasonable decision-maker would make it … 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins, at [84], the Appeal Panel stated that 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. 1. It is necessary to note that, as stated in Guideline 1, Internal Appeals (which is published on the Tribunal's website), "an appeal is not an opportunity to have a second go at a hearing". The position was set out by an Appeal Panel in Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal. Hearing 1. Having identified the relevant documents, oral submissions were made, following in the usual sequence of appellant then respondent, followed by the appellant in reply, so that each party was able to speak in support of their case and to respond to the case of the other party. Documents 1. Documents lodged by the parties in respect of this appeal were those received from the appellant on 12 August 2024 and from the respondent on 20 August 2024 and 10 October 2024. 2. A question arose as to whether a recording and a statutory declaration containing transcript excerpts were provided by the appellant to the Tribunal and the respondent. There are two reasons why the appellant was not permitted to refer to that material. First, they had not been received by the Tribunal. Secondly, it would be procedurally unfair to permit the appellant to rely on excerpts from what was said at the hearing without permitting the respondent to do the same. 3. We note that the directions made on 21 August 2024 included: The Appellant is to lodge with the Appeal Registry and give to the Respondent by 18 September 2024: (a) All the evidence given to the Tribunal at first instance on which it is intended to rely; (b) 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; (c) The Appellant's written submissions in support of the appeal; and (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 a sound recording of the entire hearing. 1. On 11 September 2024 the time for compliance with that direction was extended to 18 September 2024. Appellant's submissions 1. The appellant referred to aspects of the evidence of Ms Leva, the contract, and matter pertaining to the horse that was the subject of the contract. Following those submissions, we explored with the appellant what she maintained had been provided to the Tribunal and the respondent in relation to the recording of the hearing, the transcript of that recording, and the oral reasons that were delivered following the hearing. Respondent's submissions 1. It is sufficient to record that the respondent replied to each of those matters. Submissions in reply 1. In reply, submissions were made in relation to photographs of the horse said to indicate its condition. It was also said that a price list was provided, prior to the contract, which showed $500 per week plus GST. It was accepted that the contract specified a different amount but the appellant said that the respondent was invoiced for $500 per week plus GST and that the amount charged was not questioned until after the horse was returned to the respondent. 2. It is noted that none of the submissions took us to documents lodged in support of or in response to this appeal. Consideration 1. The three grounds of appeal raised by the appellant may be summarised as raising (1) matters pertaining to the evidence of Ms Leva, (2) the interpretation of the contract, and (3) a denial of natural justice based on those two matters. 2. Without either a recording of the hearing or a transcript, we are unable to assess any aspect of the evidence of Ms Leva raised by the appellant. Without either the recording of the oral reasons or a transcript, we are unable to ascertain whether there was any error in how the member at first instance interpreted the contract. As a result, we are unable to determine whether there was any denial of natural justice. 3. Likewise, to be able to discern either whether the decision was not fair and equitable or whether the decision was against the weight of the evidence, we would need to have both the written and oral evidence that was provided at first instance and details of the reasons that were provided for the decision that was made. Not having that information prevents us from finding that there is any basis for granting leave to appeal. 4. In these circumstances, the outcome of this appeal is the result of a failure to comply with the direction made on 21 August 2024, despite an extension of time having been granted on 11 September 2024. The additional time and cost of adjourning the hearing of the appeal cannot reasonably be justified. 5. Accordingly, leave to appeal must be refused and the appeal must be dismissed. It is noted that a conditional stay order was made on 21 August 2024, the condition being that the amount in dispute, namely $4,515.00 be paid into a solicitor's trust account. During the hearing, the appellant indicated that had been done. As the appeal has been dismissed, the stay order should now be lifted and that amount remitted from that solicitors trust account to the respondent. Costs 1. The effect of r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) is that costs of the appeal are to be determined on the same basis as was the case at first instance. In these proceedings, costs were governed by s 60 of the NCAT Act, the effect of which is that each party is to bear their own costs unless there are special circumstances warranting an order for costs. 2. No order for costs was made at first instance and we do not consider there are any special circumstances warranting an order for costs in relation to this appeal. As a result, for the avoidance of doubt, we will make an order that each party is to be bear their own costs of the appeal. Orders 1. For the reasons set out above, the following orders are made: 1. Leave to appeal is refused. 2. The appeal is otherwise dismissed. 3. The stay order made on 21 August 2024 is lifted. 4. As a result, the amount of $4,515.00 which the appellant has paid into a solicitor's trust account is to be paid to the respondent within seven days of the date of these orders. 5. Each party is to bear their own costs of the appeal. ********** 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: 25 October 2024