Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Strbik v Allies Security Services Pty Ltd [2014] NSWCATAP 91 Hearing dates: Determined on the papers Decision date: 21 November 2014 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member R Titterton, Principal Member Decision: 1. Application for leave to appeal is dismissed; 2. The appeal is otherwise dismissed Catchwords: Appeal - Civil and Administrative Tribunal (NSW) Legislation Cited: Civil and Administrative Tribunal Act NSW (2013) Cases Cited: BHP Billiton Ltd v Dunning [2013] NSWCA 421 Collins v Urban [2014] NSWCATAP 17 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 Pholi v Wearne [2014] NSWCATAP 78 Texts Cited: - Category: Principal judgment Parties: Premysl (Sam) Strbik (appellant) Allies Security Services Pty Ltd (respondent) Representation: - - File Number(s): AP14/46548 Publication restriction: - Decision under appeal Jurisdiction: 150003 Citation: - Date of Decision: 2014-08-14 00:00:00 Before: S Corley File Number(s): GEN 14/00231 reasons for decision Introduction 1In this matter the appellant seeks to appeal against a decision of a member sitting in the Consumer and Commercial Division of the Tribunal. The appellant had alleged that, having completed a two week course in June 2012, for which he paid $495, the respondent failed to provide him with a Certificate in Security Operations. He also claimed compensation for loss of earnings of $30,000. 2On 14 August 2014 his application was dismissed. The Tribunal found that the appellant had not established that he had completed all the course assessments necessary to be awarded a Certificate. The Tribunal also found that the appellant had not established a breach of the relevant agreement by the respondent resulting in either damages or costs to him. 3This is a matter in which the appellant requires the leave to appeal. For the reasons below, we consider that leave to appeal should be refused, and that the appeal should be dismissed. The Appeal 4In his Notice of Appeal the appellant states his grounds of appeal as follows: Acutalli: I am not confident that the NOTICE OF ORDER I've personally collected at NCAT on 28th-8-2014 two weeks after the original ORDER was made; is the original version!! Today is 10th-9-2014 four weeks after the original NOTICE OF ORDER was made and I still haven't received the mailed paper version neither e.mailed version, though all the previous mail from NCAT was delivered on time without any problem. (emphasis and spelling as in original). 5The appellant states the orders he seeks from the Appeal Panel as follows: Firstly ask Judge S. Corley to compare the version of NOTICE OF ORDER I'm supplying in an attachment to her personal version of NOTICE OF ORDER. It is difficult to suggest what should be changed when you are not sure what was the original decision like. Simply consider the financial compensation and at least award me the Security Certificate. 6In the section of the Notice of Appeal where the appellant was asked to state what decision the Tribunal should have made, he states: Entitle me to Security Certificate from 1/7/2012 to 21/8/2013 = 61 weeks: Visa card, MASTER card $200 per week compensation, course repayment. 7The Civil and Administrative Tribunal Act, 2013 (Act) sets out the basis upon which appeals from decisions of the Consumer and Commercial Division of the Tribunal can be made. Under s80 of the Act an appeal may be made as of right on any question of law (s80(2)(b)) or with leave of the Appeal Panel on any other grounds (s80(2)(b)). Schedule 4, clause 12 of the Act provides that an Appeal Panel may grant leave only if satisfied the appellant may have suffered a substantial miscarriage of justice because: (a)the decision of the Tribunal was not fair and equitable, or (b)the decision of the Tribunal 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). 8The expression "substantial miscarriage of justice" was considered by the Tribunal in in Collins v Urban [2014] NSWCATAP 17, and summarized at [71] and [79] as follows: [71]. . . [I]t 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. . . . [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 . . . 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." 9In the Notice of Appeal the appellant does not claim that the Tribunal made an error of law. In our view there is nothing in the appellant's Notice of Appeal which otherwise suggests the Tribunal made an error of law. 10The Notice of Appeal requires an appellant to indicate whether he is asking for leave. The appellant did not complete this section of the Notice of Appeal. However, in the section of the Notice of Appeal where the appellant was asked to describe in detail how the decision was not fair and equitable, he stated: Lost comprehensively despite being well-prepared and personally present at all three hearings with a decent paperwork and documentation whereas Mr Ali missed every time and his representatives at last two hearings were instructed very poorly with very poor documentation, the last one without virtually any documentation, paperwork or an instructions!! Not entitled to a single cent. Not entitled to a security certificate. Entitled to nothing. 11In the section of the Notice of Appeal with the appellant is asked to describe why the decision of the Tribunal was against the weight of the evidence, the appellant set out what occurred at the hearing and that documentary material was provided to the Tribunal to consider. 12In the section of the Notice of Appeal where the appellant is asked to identify what evidence is now available that was not reasonably available at the time of the hearing, the appellant identified various documents sent to be relevant to proving his claim for damages. He said "this evidence was overlooked and left at home... Possibly due to the sheer amount of paperwork I took "with me". " 13Notwithstanding the failure to seek leave, the Appeal Panel will consider whether leave to appeal should be granted having regard to the content of the Notice of Appeal and the requirements of sections 36 (1) and 38(4) of the Act. The latter section requires the Tribunal to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 14Finally, we note that the appellant has a number of additional documents upon which he wishes to rely on. These include copies of parts of his tax assessments for the financial years ended 30 July 2012 and 2013, six pages of ANZ Visacard statements for the period 3 July 2012 to 4 August 2014, and six pages of ANZ Mastercard for the period 16 July 2012 to 14 August 2014. The appellant states in the Notice of Appeal that he had overlooked these documents and left them at home at the time of the original hearing. This evidence is the evidence said not to be reasonably available at the time of the hearing. 15This evidence is not new evidence within the meaning of Schedule 12 clause 4 (c) of the Act and was in fact available. It was available for the original hearing. In relation to whether leave should be given to adduce this evidence in the appeal, this material should have been filed with the Tribunal in the original proceedings pursuant to the directions made or handed up at the original hearing. No adequate explanation has been provided which would warrant exercising a discretion to allow this material on appeal. Further, and in any event, the evidence is not relevant to the appeal having regard to the conclusions we have reached. Accordingly, this material should not be allowed as evidence in this application. Decision 16A party may appeal a question of law without leave. Where leave to appeal is otherwise required, the principles to be applied by the Appeal Panel in determining whether or not leave to appeal should be granted are set out in Collins v Urban [2014] NSWCATAP 17 at [84]: 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. 17As was explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. 18There is no error of law apparent to the Appeal Panel nor is there any basis to conclude that the appellant was denied procedural fairness. While the audio recording of the hearing was not provided, it is clear from the Notice of Appeal that each party was given an opportunity to present their cases and produce documents. It is also clear that there was an opportunity for the parties to ask questions and that the parties themselves were questioned concerning their respective positions. 19In this regards the appellant states in the Notice of Appeal: I was questioned roundabout an hour. I brought two friends who had something to say about the lease as well. Presented: 80 pages personal paperwork, 60 pages of Allies paperwork, 240 pages Allies Sec Services manual - altogether 380 pages. 20There is nothing in the material provided by the appellant that would support a conclusion that the there was a substantial miscarriage of justice because the decision was not fair and equitable, was against the weight of evidence or there is evidence now available that was not reasonably available at the time of the hearing. 21Other than to disagree with the decision, the appellant does not identify any error of the Tribunal in the conduct of the hearing or any error in the analysis of the issues of fact and law as determined by the Tribunal. Further, the reference in the Notice of Appeal to "versions" of the decision remains unexplained. 22A review of the decision shows that the Tribunal identified the contract, the subject of the claim, and reached conclusions about whether or not it had been breached by the respondent. The Tribunal made findings in relation to competing evidence which were available on the evidence. Central to the Tribunal's conclusions was the finding that the appellant did not satisfactorily complete the assessments for the course for which he had paid a fee and was therefore not entitled to receive a certificate of satisfactory completion. This was a finding available on the evidence before the Tribunal. 23The Appeal Panel does not otherwise discern any relevant error of the Tribunal from the material provided. 24For the above reasons, we do not consider that the appellant should be granted leave to appeal. 25The Appeal Panel makes the following orders: (1)Application for leave to appeal is dismissed; (2)The appeal is otherwise dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. 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: 21 November 2014