Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Steven McLaughlin v Rita Mary Fry [2015] NSWCATAP 5 Hearing dates: On the Papers Date of orders: 24 February 2015 Decision date: 24 February 2015 Jurisdiction: Appeal Panel Before: P H Molony, Senior Member Christine Paul, Senior Member Decision: 1. Leave to appeal granted. 2. Appeal allowed. 3. Remit the proceedings to the Consumer and Commercial Division for rehearing before a differently constituted Tribunal at Goulburn with both parties to be given the opportunity to rely on further evidence and submissions. Catchwords: Leave to appeal decision of Consumer and Commercial Division - appellant not served with notice of original hearing until after hearing took place – hearing not fair and equitable because appellant deprived of opportunity to present his case – may have resulted in a substantial injustice – leave granted – appeal allowed. Legislation Cited: Civil and Administrative Tribunal Act 2013 Consumer Claims Act 1998 Cases Cited: Atkinson v Crowley [2011] NSWCA 194 BHP Billiton Ltd v Dunning [2013] NSWCA 421 Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Collins v Urban [2014] NSWCATAP 17 Hutchings v CTTT [2008] NSWSC 717 Kyriakou v Long [2013] NSWSC 1890 Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 SAB v SEM [2013] NSWSC 253 Category: Principal judgment Parties: Appellant - Steven McLaughlin Respondent – Rita May Fry Representation: Appellant – in person Respondent – in person File Number(s): AP 14/46892 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 2 September 2014 Before: J Lennard File Number(s): GEN 14/40256 rEASONS FOR DECISION Introduction 1. Steven McLaughlin (the appellant) has sought leave to appeal against orders made against him as a respondent in proceedings in the Consumer and Commercial Division of the Tribunal on 2 September 2014 under the Consumer Claims Act 1998. Those orders: Required the appellant to pay Rita Mary Fry (the respondent) the sum of $6,260; and Declared that the respondent did not owe the appellant $2,600 in respect of concrete path works. 1. The dispute giving rise to those proceedings concerned concreting work done by the appellant at the respondent's home. The respondent alleged that the work was so defective as to be without any real value to her and sought a full refund of the amount she had paid for the work. 2. The appellant did not appear at the hearing at which the orders were made. The Tribunal was however, satisfied that he had been served with the Tribunal application. 3. The appellant filed his notice of internal appeal on 19 September 2014. The notice of appeal identified the following grounds of appeal – 2nd September 2014 papers were NOT served on me but left at my previous address (see stat dec for proof of moving) Cost of job: $5.950, not $6,260 as stated on notice of order. Myself (& my supplier) have given many options to fix this problem, none of which Rita would agree to (see emails attached) I was not present at the Tribunal due to receiving notice to attend 1 week after hearing date. I would like to be present to present my appeal. 1. In his notice of appeal the appellant admitted some difficulties with the concrete work, but says they can be readily remedied, and that the respondent will not negotiate with him. 2. As the appellant did not rely on any error of law ground leave is required under s 80(2) and clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013.That clause provides that: (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (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). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds 1. On 13 October 2014 the respondent filed a reply to the appeal. 2. At a directions hearing on 27 October 2014 the Appeal Panel ordered that: 1. Appellant has nothing else to file. 2. Respondent to file and serve submissions and other material by 3 /11/12014. 3. Appeal listed for hearing on the papers. 1. A hearing is not required in applications for leave to make an internal appeal: see s 50(a). In the considering +'s appeal on the papers we have had regard to the notice of appeal and the reply to the appeal (including all attachments). We have also had regard the original tribunal file. 2. In the course of reviewing the appeal papers it became apparent that the respondent may not have received all of the attachments to the notice of appeal. As a consequence, at our request, the Registrar wrote to the parties as follows – The Panel notes that there are a significant number of attachments to the notice of appeal, which the respondent asserts were not served on her with her copy of that notice. To remedy any unfairness that might flow to the respondent as a consequence, copies of those attachments are attached to the respondent's copy of this letter. The Panel directs the respondent to file and serve any additional submissions in reply she might wish to make on or before 19 December 2014. The Panel will then take those submissions into account when determining the appeal on the papers. The Panel's decision will be delayed to early in the new year as a consequence. 1. The respondent has provided further submissions dated 15 December 2014 and a number of character references. Her character is not an issue in this appeal. In her submissions she addressed issues of fact relating to the substantive dispute, but did not raise further issues going to whether or not the appellant should be granted leave to appeal. 2. We are satisfied that both parties have been given an opportunity to present and consider evidence and submissions relating to the appeal and that it is appropriate to determine this appeal on the papers. The principles applicable to granting leave to appeal 1. Section 80 of the NCAT Act is concerned with internal appeals. It provides– (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. In cases where leave to appeal is sought with respect to the decisions of the Consumer and Commercial Division of the Tribunal clause 12 of Schedule 4 of the NCAT Act relevantly provides that – (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (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). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. 1. This provision was discussed in detail by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 in which the Appeal Panel concluded that – 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. As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 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]. 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]. 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. 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]. 1. If we are satisfied that the appellant has made out one of the grounds for granting leave to appeal in clause 12 of Schedule 4, we must then consider whether we should exercise the discretion to grant leave to appeal under s 80(2)(b). In Collins v Urban the Appeal Panel considered a number of decisions concerning the granting of leave to appeal and summarised them as follows, at [84] – (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. Consideration 1. At the core of the appellant's reasons for seeking leave to appeal is his claim that he did not receive notice of hearing for the hearing that took place on 2 September 2014. That notice of hearing was sent to him by the Tribunal on 13 August 2014 at an address nominated by the respondent, but not otherwise verified by a business name, licence search, or the like. In the notice of appeal the appellant says that he had moved from the address to which the notice of hearing was sent. He did not receive it until it dropped off by the tenant of his old address on 9 September 2014. This was seven days after the hearing. 2. We note that the appellant has verified the content of his notice of appeal by a statutory declaration dated 12 September 2014. In a separate statutory declaration the appellant has also declared that he moved from the address to which the notice of hearing was sent, to his present address, on 19 September 2013. 3. Further, the appellant has provided a statutory declaration from the tenant of the premises to which the notice of hearing was sent. Relevantly, this says – I privately rent through Steven McLaughlin who now resides at … I also declare that I received a Notice of Conciliation & Hearing in my mailbox on 4 September & it into [the appellant's new address] on 5 September 2014. 1. An examination of the original Tribunal file reveals that on 10 September 2014 the appellant emailed the Wollongong Registry of the Tribunal concerning the notice of hearing. That email opened – Yesterday 10/09/2014 I opened an envelope that was placed in my letter box of the previous weekend. It was a Notice of Conciliation and Hearing (Group List) addressed to myself however sent to my previous address of [old address] (I have resided at [new address] for 12 months. The email went onto state that the appellant would have attended the hearing had he known of it, and to recite details of his efforts to resolve outstanding issues with the respondent. It advised of an intention to appeal. 1. In her submissions the respondent asserted that the address she provided for the appellant was his last known address. She noted that this was the address shown for him in the white pages phone directory, in which his mobile number only can be found. It was also the address to which the Concrete Supplier had sent correspondence and invoices in late 2013. In her submissions the respondent also raised issues concerning the quality of the work performed by the appellant. 2. On the material before us the Panel is satisfied, on balance, that appellant did not receive a notice of hearing for the hearing that took place on 2 September 2014, until after that hearing had occurred. As a consequence the appellant was deprived of the opportunity to present his case to the Tribunal and had orders made against him. With the benefit of hindsight that result was neither fair nor equitable to the appellant. Because he was unable to present his case the Panel is satisfied that the appellant was unable to influence the outcome of the case, which may have been more advantageous to him had he been heard. The potential for him to have suffered a substantial injustice as a result is both apparent and real. 3. It follows that we will grant the appellant leave to appeal under clause 12(1)(a) of Schedule 4. We will allow that appeal as we are satisfied that the hearing was not fair and equitable, due to the appellant not being given notice of hearing, and that the appellant may have suffered a substantial injustice as a result. 4. In our opinion the correct disposition of the appeal is to remit the proceedings to the Consumer and Commercial Division for rehearing before a differently constituted Tribunal at Goulburn with both parties to be given the opportunity to rely on further evidence and submissions. Orders 1. The Appeal Panel makes the following orders: Leave to appeal granted. Appeal allowed. Remit the proceedings to the Consumer and Commercial Division for rehearing before a differently constituted Tribunal at Goulburn with both parties to be given the opportunity to rely on further evidence and submissions. 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: 25 February 2015