Civil and Administrative Tribunal New South Wales Medium Neutral Citation: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Hearing dates: On the papers Decision date: 23 October 2014 Jurisdiction: Appeal Panel Before: R Seiden SC, Principal Member D Goldstein, Senior Member Decision: 1. Appeal on questions of law dismissed. 2. Leave to appeal on any other ground not granted. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - whether question of law - no error of law - leave to appeal - no substantial miscarriage of justice Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Agricultural Tenancies Act 1990 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Consumer Claims Act 1998 (NSW) Consumer, Trader and Tenancy Tribunal Act (2001) (NSW) Cases Cited: Associated Provincial Picture Houses Ltd v Wednesday Corp (1947) 45 LGR 635 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bilquip Pty Ltd, Illmat Pty Ltd, Holibass Pty Ltd v Chief Commissioner of State Revenue (NSW) (RD) [2013] NSWADTAP 36 Chapman v Taylor [2004] NSWCA 456 Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 Collins v Urban [2014] NSWCATAP 17 Craig v State of South Australia (1995) 184 CLR 163 Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 Hartnett v Migration Agents Registration Authority [2004] FCA 50 Italiano v Carbone [2005] NSWCA 177 J & V Prendergast v Western Murray Irrigation Limited Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Nestle Australia Ltd v Commissioner of Taxation (1987) 16 FCR 167 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Qushair v Raffoul [2009] NSWCA 329 Stoker v Adecco Gemuale Constructions Pty Ltd [2004] NSWCA 449 The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 Waterford v Commonwealth (1987) 163 CLR Texts Cited: Judicial Review of Administrative Action, 4th Ed; (2009) Lawbook Co Category: Principal judgment Parties: John Prendergast and Vanessa Prendergast (appellants) Western Murray Irrigation Ltd (respondent) File Number(s): AP 14/46443 (AP14/0265) Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-05-13 00:00:00 Before: P R Smith, General Member File Number(s): COM 13/65337 reasons for decision Background 1In December 2013, an application was filed in the Consumer, Trader and Tenancy Tribunal. On 1 January 2014, the NSW Civil and Administrative Tribunal (the Tribunal) was established and by clause 7 of schedule 1 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), the proceedings were taken to have been duly commenced in the Tribunal and eligible to be heard and determined by the Tribunal. The application was determined on 13 May 2014: J & V Prendergast v Western Murray Irrigation Limited (the Decision). 2The application, at first instance, concerned a claim by the now appellants, under s 3A(1)(c) of the Consumer Claims Act 1998 (NSW), for relief from payment of a sum to the respondent, in respect of water usage for the period 27 September 2012 to 27 March 2013. 3The appellants are consumers in relation to "goods", defined in s 3 of the Consumer Claims Act (NSW) to be "any tangible thing that is or may be the subject of trade or commerce but does not include money or an interest in land". By s 6 of the Consumer Claims Act (NSW) any consumer may apply to the Tribunal for determination of a consumer claim. As the Tribunal at first instance correctly noted, whilst the application had been placed in the commercial sub-division on the basis that it related to an agricultural tenancy, that was an error. The underlying dispute concerns charges for the supply of water. The Agricultural Tenancies Act 1990 (NSW) concerns tenancies "by which a person who was not the owner of the farm has a right to occupy or use it" (s 4). "Farm" refers to a piece of land and does not concern the supply of water to a property owner. The application was therefore correctly dealt with as a consumer claim. Jurisdiction of the Appeal Panel 4At first instance, the Tribunal dismissed the application and whilst not specifying the provision relied upon, it is plain that the application was dismissed pursuant to s 8(2)(a) of the Consumer Claims Act (NSW). 5Section 80(1) of the Act provides that an appeal against an internally appealable decision may be made to an Appeal Panel. An internally appealable decision is defined in s 32 of the Act to include a general decision made by the Tribunal. A general decision is defined in s 29 of the Act as a decision made in the exercise of the Tribunal's general jurisdiction which is, in turn, ascertained by reference to legislation other than the Act. In this case, the Tribunal's jurisdiction was enlivened by s 7 of the Consumer Claims Act (NSW). The Tribunal therefore had general jurisdiction in relation to the consumer claim and the Appeal Panel has jurisdiction in relation to the internally appealable decision. 6By s 80(2) of the Act, an appeal from an internally appealable decision lies, as of right, on any question of law or, with the leave of the Appeal Panel, on any other ground. The question of leave is further restricted in the case of an appeal from the Consumer and Commercial Division, by clause 12 of Schedule 4 of the Act. Appeal on the papers 7By orders dated 13 August 2014, the Appeal Panel constituted by S Westgarth, Deputy President granted leave to V Damasi to appear for the respondent and ordered, by consent, that the appeal be determined on the papers, unless by 15 August the appellants requested an oral hearing. An oral hearing was not requested. This appeal has therefore been determined on the papers. Decision at First Instance 8The underlying dispute concerns the assessment by the respondent of water charges to the appellants for the period September 2012 to March 2013. Assessment was necessary for the reason that the meter measuring the flow of water to the appellants' property was malfunctioning during most of that period. The appellants dispute the methodology adopted to perform the assessment. The critical reasoning of the Tribunal is found at [18] to [21] of the Decision, which provides as follows: 18. The Tribunal is of the view that the parties have overcomplicated the grounds upon which a reasonable assessment should be made. The historical data over a five year period appears to be a reasonable period upon which to base an assessment. The data may not take into account all contingencies that applied to the land over that period including meteorological factors but by extracting the highest figure and the lowest figure from that period the average is 63.3 ML. 19. The respondent has indicated they are prepared to accept an assessment based upon 11.7L/second as suggested by the SunRISE report. 20. If the Tribunal accepts the historical average as a reliable and appropriate method of assessment and further, accepts the flow rates as suggested by the applicant the other contingencies should not be taken into account to either reduce or increase the assessment. 21. The respondent has assessed the water used for the relevant period between 58ML and 69ML and used the lowest figure upon which to base the water charges. This figure is substantially lower that than the historical average. They have deducted from this figure the 14ML I (sic) that was registered on the meter prior to the malfunction. 9The Tribunal acknowledged that by using an historical average, contingencies that relate specifically to the land during the period would not be taken into account. Nevertheless, the Tribunal held that the respondent's assessment had not been shown to be unfair for the reasons that the respondent had used a lower figure than the historical low and had then made a further deduction. Furthermore, the respondent conceded that the flow rate based on a report provided by the appellants was acceptable. In light of this, the Tribunal held that the then applicants had not satisfied their burden to establish the grounds upon which the Orders sought could be made and the application was dismissed. Notice of Appeal 10The appellants are not legally represented. Mr Prendergast completed the requisite form, which is a standard form for an internal appeal and includes an application for leave to appeal. The box to indicate leave to appeal was sought, was checked. Accordingly, we must consider whether questions of law arise on the appeal and if not whether leave ought to be granted to appeal on any other ground. Requirement for Question of Law 11As noted above, an appeal to the Appeal Panel lies as a matter of right on a question of law. The notice of appeal does not articulate in express terms any question of law. It is necessary that a question of law be stated with precision, as an appellant's right to appeal arises from the question of law. Additionally, the question of law is the subject matter of the appeal: see for instance Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50]; in relation to appeals to the Federal Court of Australia, from the Administrative Appeals Tribunal, which lie only on "questions of law"; and Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [35] in relation to s 67 of the Consumer, Trader and Tenancy Tribunal Act (2001) (NSW) where appeals to the District Court lay only where that Tribunal had decided a question with respect to a matter of law. 12In 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. 13Without expressing exhaustively possible questions of law, they include in no particular order: (1)Whether there has been a failure to provide proper reasons: Stoker v Adecco Gemuale Constructions Pty Ltd [2004] NSWCA 449 per Santow JA at [41]; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444 per Meagher JA; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56] per McColl JA (Ipp JA and Bryson AJA agreeing); Qushair v Raffoul [2009] NSWCA 329 at [52] and the following paragraphs, per Sackville AJA (Campbell JA and Bergin CJ in Eq agreeing). Section 62 of the Act requires the Tribunal to furnish reasons. This requirement was earlier reflected in s 49 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). Recently, the Appeal Panel (Wright J, President; G Walker, Senior Member; and M Bolt, General Member) in Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 said in relation to the similar provision in s 89 of the Administrative Decisions Tribunal Act 1997 (NSW) at [32]: 32 Notwithstanding the words in the chapeau to subs (5), there is no reason as a matter of principle why the requirements set out in that subsection do not apply equally to reasons for decision which were not given as a result of a request under subs (3). Further, given the right of appeal from a decision of the ADT to the Appeal Panel under s 113 of the ADT Act and from the Appeal Panel to the Supreme Court on a question of law under s 119 of that Act, the Tribunal's obligation to give reasons should be commensurate with that of courts whose decisions are subject to appeal to the Supreme Court - see generally the discussion of principles in Campbelltown City Council v Vegan (2006) 67 NSWLR 372. As this matter was not the subject of any substantial submissions by the parties, however, it is inappropriate to deal with the topic in more detail and it can be accepted for the purposes of this appeal that the Tribunal was obliged to give proper reasons for its decision. Such reasons would include making findings on material questions of fact, referring to the evidence on which those findings were based, setting out the Tribunal's understanding of the applicable law and explaining the reasoning processes that lead the Tribunal to the conclusions it made. In assessing such reasons, however, it is appropriate to bear in mind the High Court's endorsement of the view that in the case of administrative decision makers this assessment is not best approached with an "eye keenly attuned to the perception of error": see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. (2)Whether the Tribunal identified the wrong issue or asked the wrong question: Craig v State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. (3)Whether a wrong principle of law had been applied: Chapman v Taylor [2004] NSWCA 456 at [33], per Hodgson JA (Beazley and Tobias JJA agreeing). (4)Whether there was a failure to afford procedural fairness: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]. Section 38 of the Act prescribes the procedure of the Tribunal generally. Relevantly, s 38(2) expressly requires the Tribunal's procedures to accord with natural justice. Sub-sections 5 and 6 also embody aspects of procedural fairness. These rules were previously reflected in s 28 of the Consumer, Trader and Tenancy Tribunal Act (NSW). Procedural fairness concerns the fairness of the proceedings and not the decision: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th Ed; (2009) Lawbook Co at [7.20]. (5)Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. This was recently the subject of consideration by the Appeal Panel in Director General, Department of Finance & Services v Porter. It was said at [26] to [29] as follows: 26 Failure to take into account a relevant consideration which the decision maker was bound to take into account is an error of law (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24 at 39 per Mason J). 27 Determining what is to be taken into account when making a decision is a matter of construction of the statute conferring power. Where the relevant matters are not expressly set out those matters are determined by implication from the subject matter, scope and purpose of the conferring statute: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39-40 per Mason J. What weight the Tribunal should give to those considerations is, however, generally a matter for the Tribunal (at 41 per Mason J). 28 Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to a relevant consideration where its process is merely a formulaic reference: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing). Instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory matter must be approached with caution, with care to avoid an impermissible reconsideration of the merits of the decision. 29 In assessing a purported failure to take into account a relevant consideration a mere failure to refer expressly to a matter will not necessarily justify an inference that there has been a failure to take into account a relevant consideration. Despite this, such an inference is still open to be drawn by the Tribunal in those circumstances: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 per Burchett J. In determining whether or not to draw the inference that failure to deal at all or in detail with a relevant consideration gives rise to an error by the decision-maker, the extent to which the facts and circumstances of the particular matter engage that consideration will be relevant and often determinative. Further, in the context of an appeal from a decision of an administrative review tribunal, such as this appeal, the nature and scope of the submissions put to the tribunal at first instance may also inform that process of determination. (6)Whether the Tribunal took into account an irrelevant consideration, as explained in Peko-Wallsend per Mason J at 40: In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ... (7)Whether there was no evidence to support a finding of fact: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 138. (8)Whether the decision is so unreasonable that no reasonable decision-maker would make it: Associated Provincial Picture Houses Ltd v Wednesday Corp (1947) 45 LGR 635; Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [10]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Appellants' contentions 14In summary, the appellants contend as follows: (1)The Tribunal gave permission to each party to rely on late submissions, but noted at [8] of the Decision that not all submissions were read (Ground 8). (2)The report relied upon by the respondent is demonstrably flawed when measured against historical usage on the subject land, because the report (Grounds 10 and 20): (a)did not consider actual past usage; (b)calculated usage at 15 litres per second (when it was conceded by the respondent to be 11.7l/s); (c)was produced without an inspection of the property and failed to consider the poor condition of the property due to the ill health of Mr Prendergast (as demonstrated in photos); and (d)relied on generalised yearly water statistics, not fitting for the subject property, as the property was in such poor condition. (3)The respondent's report is demonstrably inflated with respect to the relevant period (Grounds 10, 15, 17, 22): (a)There was evidence of actual water rates in two videos (demonstrating average flow to be 10 litres per second) and empirical evidence in the SunRise report; if one compares this to what is in the respondent's report one can see that the actual water usage for the period is 1/3 less than the figure in the respondent's report; (b)If one compares the orders placed during the period 27 December 2012 to 27 March 2013 to the respondent's report, it also demonstrates the respondent's assessment is excessive. The orders placed in that period total 34.884 ml and not the assessed 47.2ml. (4)The figure of 47.2ml, for the period 27 December to 27 March, in the report is not realistic as it translates to 16 waters in a period that includes February and March - harvest time, a non-watering period (Ground 11). (5)The Tribunal erred in concluding that the respondent gave the benefit to the appellant of the lower flow figure of 11.7 l/s because the assessment was based on 15 l/s (Grounds 16 and 19). (6)The Tribunal's reasoning that it is not necessary to take into account contingencies associated with the land's water usage because the figure assessed by the respondent is less than the historical average, is flawed because (Ground 18): (a)the historical figure used by the Tribunal is itself a high figure. The Tribunal's figure of 63.3 ml for the period, when added to the metered periods, totals 83.27ml for the year, an historical high; (b)the assessed figure does not take into account the poor condition of the land due to the ill health of Mr Prendergast and other personal factors affecting the appellants, that disabled them from watering. So, even though the assessed figure is lower than the historical figure, it must still be inflated; (c)some of the period was a low watering period, as it was harvest time; and (d)the assessed figure was based on the report which used the figure of 15l/s when the respondent had conceded that 11.7 was apposite and yet there was no adjustment to the assessed figure. (7)In summary, even though the assessed figure was lower than the historical average, the appellants contend that it was not low enough to compensate for the circumstances attending to the land during relevant period and failed to take into account the concession by the respondent. The Respondent's Contentions 15The Respondent contends that there is no breach of procedural fairness for the reasons that: (a)The Tribunal had before it a substantial number of documents filed in accordance with interlocutory orders; (b)There was a formal hearing at which both parties were present to make submissions and answer questions from the Tribunal; (c)The Tribunal received and read an extensive submission of the appellants served on the day of the hearing; (d)The submissions not read by the Tribunal included the submissions by both parties received after the close of the hearing. 16In relation to the other grounds, the Respondent contends that the Tribunal correctly apprehended the appellants' complaint about the respondent's method of assessing water charges and further that the Tribunal's key findings were correct and in accordance with the evidence including a comprehensive report filed on behalf of the respondent and the report filed by the appellants. The respondent supports the reasoning of the Tribunal and relies on its submissions filed at first instance on 21 February 2014. Conclusion on whether question of law raised 17In this case, the grounds of appeal are set out as numbered paragraphs that correlate to the numbered paragraphs of the Decision. They identify factual disputes. As noted in Waterford v Commonwealth (1987) 163 CLR 54 per Brennan J at 77 "[t]here is no error of law simply in making a wrong finding of fact." 18Nevertheless, pointing to a wrong finding of fact may be indicative of an underlying error of law and therefore raise a question of law. For instance, a wrong finding of fact may be indicative of an error of law occasioned by a failure to consider a relevant consideration, or consideration of irrelevant factors, or be reflective of a decision no reasonable decision-maker would make. Also, the distinction between fact and law is not always clear. In Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 at [9] to [23] the Appeal Panel considered the distinction between questions of law and fact. 19A close reading of the grounds of appeal reveals two questions of law. First, whether the appellants were not afforded procedural fairness for the reason that submissions filed by the appellants after the hearing were not read by the Tribunal (Ground 8). Secondly, whether relevant considerations were not taken into account (in particular Grounds 10, 15 to 18). The appellants allege that the Tribunal ought to have based its decision on criteria referable to the land in question and not historical averages. Errors of law Procedural fairness 20As to the first question of law, the Appeal Panel has concluded that there was no breach of procedural fairness, as identified by the appellants and no error of law for the following reasons. 21Orders were made on 20 December 2013 which provided, among other things, for the parties to file and serve the evidence on which they relied. 22On 3 January 2014 the parties were notified that the hearing of the proceedings was listed for 20 March 2014. 23On 16 January 2014, the Tribunal's orders of 20 December 2013 were varied to allow the parties extensions of the time allowed to file and serve the evidence on which they relied. The appellants were ordered to file and serve their evidence by 24 January 2014. 24On 18 February 2014, the Tribunal's orders of 20 December 2013 were again varied, on this occasion to allow the respondent until 21 February 2014 to file and serve the evidence upon which it relied. The Tribunal's notification of the orders stated that the matter remained listed for hearing on 20 March 2014. The proceedings were heard on that date. The hearing lasted approximately three hours and the Tribunal heard oral submissions from the parties. 25In paragraph 8 of the Decision, the Member stated that the Tribunal did not consider the material submitted by both parties after the date of the hearing, as to do so would have breached the principles of procedural fairness. This material included a submission by the respondent dated 1 April 2014 and documents from the now appellants sent to the Tribunal by facsimile on 31 March 2014. 26The documents sent from the appellants to the Tribunal on 31 March 2014 consisted of a cover page in the form of a submission, a three page document titled 'Property Information' which contains historical account information from the respondent in connection with the appellants, a copy of a letter from Ruralco to the appellants dated 23 January 2014, a copy of a Water Sales Credit document from Ruralco to the appellants dated 20 December 2013 and a NAB Domestic payment report dated 23 January 2014. 27For the reason that the appellants were seeking to file further evidence after the hearing had concluded, the Tribunal was correct in excluding the evidence. To admit the material into evidence after the hearing had concluded and without allowing the respondent to respond to it, would have amounted to a clear breach of procedural fairness. 28The Tribunal took into account, for the appellants, a bundle of documents which included two reports by SunRISE Mapping & Research dated 23 September 2013 and 10 January 2014. The material disregarded by the Tribunal was material coming after the hearing. 29Section 38(5)(c) of the Act requires the Tribunal to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings." In the circumstances, s 38(5)(c) was satisfied. Relevant considerations 30As to the second question of law (whether relevant factors were ignored) the task of the Tribunal was to make orders that "in its opinion, will be fair and equitable to all the parties to the claim" (Consumer Claims Act (NSW), s 13(1)). The factors that a Tribunal may (but not necessarily must) take into account are as varied as are the claims that come to the Tribunal. Section 13(2) of the Consumer Claims Act (NSW) identifies, without limiting the factors a Tribunal is bound to take into account in determining what is fair and equitable, several factors which "must be taken into account, if they are material in the circumstances". For the reason that the dispute the subject of the claim arose because there was no contractual mechanism for ascertaining water charges, where the meter failed, many of the identified factors are not material in the circumstances. 31Here the task of the Tribunal was to determine what was a fair and equitable charge for water usage, in circumstances where the parties had not planned for the contingency that the meter would fail. Evidence of historical averages, meteorological conditions, and the circumstances attending to the land, are all factors that might rationally have informed the Tribunal as to what was fair and equitable: but that is not enough. To be a relevant consideration, in the sense identified in Peko-Wallsend, the consideration must be one that the Tribunal was bound to take into account having regard to the subject matter, scope and purpose of the power the Tribunal was exercising. The task of the Tribunal was to determine what water charge for the period was fair to both parties. The appellants contend that the Tribunal failed to consider the personal circumstances of the appellants and the circumstances pertaining to the land. The Appeal Panel must decide whether in determining what charge was fair, the Tribunal was bound to consider those circumstances. 32As previously noted, s 13(2) of the Consumer Claims Act (NSW) identified several mandatory considerations, if material in the circumstances. The factors pointed to by the appellants are not expressly identified. The real question is therefore whether it may be implied from the subject matter, scope and purpose of the power, that the personal circumstances of the appellants and the circumstances pertaining to the land must be considered by the Tribunal when making a determination of a fair charge. 33As noted by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [29] the submissions of the parties may influence what are the mandatory considerations. The appellants contended before the Tribunal and reiterate on appeal that the historical averages are not a sound platform from which to determine whether the respondent's assessment represented a fair price, for the reason that neither the historical averages nor the respondent's report take into account the factors affecting the land in question. For this reason, it was necessary for the Tribunal to have regard to the evidence concerning the factors affecting the land. 34For the reason that the Tribunal's task was to determine what was a fair price as between the parties and because the appellants had contended that their circumstances did not follow historical patterns and that the respondent's report did not consider the circumstances attending to the land, it was incumbent on the Tribunal, at least, to consider: (a)the circumstances affecting the appellants; and (b)whether the Respondent's report in fact took account of the circumstances attending to the land. 35We now turn to consider whether the Tribunal took account, in the relevant sense, those circumstances. As Wilcox J noted in Nestle Australia Ltd v Commissioner of Taxation (1987) 16 FCR 167 at 184: To take the matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant. 36At [18] the Tribunal acknowledged that the historical data did not make allowances for contingencies affecting the land and at [23] said: The Tribunal understands that the applicants have been through an extraordinarily difficult period due to ill health and a family tragedy and monitoring a water meter may not have been a priority and I encourage the respondent to show some consideration in respect of discretionary charges that have added to the hardship of the applicant. 37It is apparent that the Tribunal had regard to the personal circumstances affecting the appellants. 38We now turn to consider the second relevant factor identified, whether the respondent's report took account of the circumstances affecting the land. The evidence before the Member included three expert reports, including two SunRISE Mapping & Research expert reports relied upon by the appellants. 39The respondent relied upon an expert report from Irrigation Systems Australia dated 12 February 2012. This report assessed the water usage on 4 different bases which were: (c)Climate - Crop Coefficient Method Estimate; (d)Local Averages Method Estimate; (e)Farm 277 Historical Water Use Estimate; and (f)Farm 277 Water Ordering History Analysis Estimate. 40The Farm 277 Water Ordering History Analysis Estimate considered the water ordering history in the period September 2012 to March 2013 when the meter did not function. The author of the Irrigation Systems Australia Report considered the ordering history of prior seasons as well as the 2012/13 season. The expert concluded that a fair estimation of water usage using the Farm 277 Water Ordering History from 1 September 2012 to 31 March 2013 was 76 megalitres using a 15L/s flow rate. 41The appellants' expert reports of 23 September 2013 cast doubt on the flow rate of 15L/s, thereby prompting the use of the 11.7L/s flow rate which was recorded as an average flow rate in an irrigation event on 11 February 2014.The respondent instructed its expert to use a flow rate of 11.7L/s instead of 15L/s. This adjusted the conclusion so that a fair estimation of water usage using the Farm 277 Water Ordering History from 1 September 2012 to 31 March 2013 was 58 megalitres using a 11.7L/s flow rate. The figure of 58 megalitres was the lowest estimate of the four different assessment methodologies referred to above. 42It therefore cannot be concluded that the respondent's report ignored entirely circumstances pertaining to the land and in particular historical ordering patterns. 43The Appellants' expert reports dated 10 January 2014 concluded by stating: I recommend that it is now appropriate to use a weighted average of the measured, actual flow rates to prepare new estimates of the water used during months when the meter was not working. 44This was not done. In addition, an independent calibration of a water meter was recommended. That too was not done. The appellants' 10 January 2014 report essentially concluded that more work was required to resolve the differences between the parties. 45The Tribunal, having regard to the expert reports, discerned that the figures charged by the respondent were less than the historical low and concluded that this mitigated against not making allowance for particular contingencies that affected the land and water usage and that the appellants had not demonstrated that the respondent's assessment was unfair. The Tribunal ultimately concluded that the appellants had not discharged their burden. This conclusion was not arrived at by ignoring relevant factors. 46Accordingly, no error of law has been demonstrated. Leave to appeal 47The appellants in any event, seek leave to appeal. The Appeal Panel noted in Bilquip Pty Ltd, Illmat Pty Ltd, Holibass Pty Ltd v Chief Commissioner of State Revenue (NSW) (RD) [2013] NSWADTAP 36 at [38] and [39] that the requirement for leave to be granted signals that an appellant must demonstrate a sound basis for the grant of leave. This was also referred to by the Appeal Panel in Collins v Urban at [84] as follows: 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. 48Furthermore, before granting leave to appeal in an internal appeal from the Consumer and Commercial Division, the Appeal Panel must first consider Schedule 4 of the Act. Clause 12 of Schedule 4 limits the grant of leave to appeal from the Consumer and Commercial Division, to cases where the Appeal Panel is satisfied the appellant may have suffered a "substantial miscarriage of justice" because (relevantly) the decision was not fair and equitable, or was against the weight of evidence. 49In Collins v Urban the Appeal Panel considered this provision and said at [68], [71], [76] to [79]: 68 Clause 12 does not require that the Appeal Panel must be satisfied that the appellant has actually suffered a substantial miscarriage of justice. All that is required is that the appellant "may" have suffered such a miscarriage. ... 71 From this passage, it can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. ... 76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, 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" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) 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 - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. 50It is only where the Appeal Panel is satisfied that an appellant may have suffered a serious miscarriage of justice that the Appeal Panel "may" grant leave to appeal in accordance with the principles earlier extracted from [84] of Collins v Urban. Consideration of leave to appeal 51The appellants' notice of appeal indicates that they primarily rely on the Decision being against the weight of the evidence to demonstrate both that there has been a substantial miscarriage of justice and also as warranting the grant of leave to appeal. The appellants' primary contention is that evidence regarding actual water usage and evidence of the circumstances on the land in question, demonstrate that the respondent's assessment method was flawed and resulted in inflated water charges. Accordingly, the Tribunal's order dismissing the application and therefore implicitly affirming the respondent's assessment method resulted in a miscarriage of justice. 52In order to consider granting leave, the Appeal Panel must first, in this particular case, be satisfied either that the matter was not conducted or decided fairly and equitably; or that it was decided against the preponderance of evidence. Furthermore, the Appeal Panel must be satisfied that had those circumstances not existed, there was a significant possibility or a chance which was fairly open, that the appellants may have been successful, at least in part. 53For the reasons stated above in relation to procedural fairness the Appeal Panel is not satisfied that the matter was not conducted or decided fairly or equitably. 54In relation to the evidence, as noted above, the appellants' expert reports were inconclusive and recommended further investigation. On the other hand, the respondent's report provided a range of conclusions and included consideration of historical watering history and therefore did not ignore circumstances pertaining to the land. The Appeal Panel is not satisfied that the Decision was against the weight of the evidence. Conclusion on leave to appeal 55In terms of Schedule 4 of the Act, the Appeal Panel is not satisfied that there was a substantial miscarriage of justice because the matter was not conducted or decided fairly or was decided against the preponderance of evidence. The prerequisites for granting leave are not satisfied. The Appeal Panel is therefore precluded from granting leave to appeal. Conclusion 56Insofar as the Notice of Appeal raised a question of law, the appeal is dismissed. The Tribunal's conclusion that the appellants had not satisfied their burden was open on the evidence and the contentions that there was a denial of procedural fairness and that the Tribunal failed to have regard to mandatory factors are not made out. 57For the reason that Sch 4, cl 12 of the Act is not satisfied, leave to appeal on any other ground is not granted. Orders (1)Appeal on questions of law dismissed. (2)Leave to appeal on any other ground not granted. 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. Principal 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: 23 October 2014