Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Hearing dates: 05 March 2015, Submissions on costs closed on 27 March 2015 Date of orders: 08 April 2015 Decision date: 08 April 2015 Jurisdiction: Appeal Panel Before: Wright J, President M Harrowell, Principal Member J Redfern, Principal Member Decision: (1) The appeal is allowed. (2) The order of the Tribunal made on 19 January 2015 is set aside. (3) The respondent, Ozzy's Cheapest Car Sales Pty Ltd t/as Ozzy Car Sales, is to pay costs assessed in the sum of $456.00 to the appellants, Mr and Ms Hammond, within 14 days of this order. (4) The order of the Tribunal made on 18 December 2014 is set aside on condition that the respondent: (a) pays the sum of $456.00 to the appellants as required by order 3; and (b) provides to the Tribunal evidence of that payment having been made within 21 days of this order. Catchwords: ADMINISTRATIVE LAW – administrative tribunals – Civil and Administrative Tribunal (NSW) – duty to give reasons for decision – reasons inadequate – appeal allowed; CORPORATIONS – other matters – service – Corporations Act 2001 (Cth), s 109X – service by post on registered address of company – whether deemed service amounted to a reasonable opportunity to be heard or have submissions considered – no reasonable opportunity in this case; APPEAL AND NEW TRIAL – Civil and Administrative Tribunal Act 2013 (NSW), s 80(3) – whether to remit proceedings to the Consumer and Commercial Division or deal with the appeal by way of new hearing – proceed by way of a new hearing in this case; PROCEDURE – civil – judgments and orders – amending, varying and setting aside – setting aside – Civil and Administrative Tribunal Regulation 2013 (NSW), cl 9 – principles – conditions for discretion to be enlivened – principles for exercise of discretion – whether deemed service amounted to a reasonable opportunity to be heard – order set aside; PROCEDURE – civil – judgments and orders – actions on judgments – conditional orders – Civil and Administrative Tribunal Act 2013 (NSW), s 58 – set aside order conditional upon payment of costs; PROCEDURE – civil – costs – recovery of costs – litigants in person – not Australian legal practitioner – recovery of out-of-pocket expenses but not for time expended Legislation Cited: Acts Interpretation Act 1901 (Cth) Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Consumer Claims Act 1998 (NSW) Corporations Act 2001 (Cth) Motor Dealers Act 1974 (NSW) Motor Dealers Regulation 2010 (NSW) Motor Dealers and Repairers Act 2013 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Atkinson v Crowley [2011] NSWCA 194 CMT [2014] NSWCATGD 11 Cachia v Hanes (1994)179 CLR 403 Cameron v Cole (1944) 68 CLR 571 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 Collins v Urban [2014] NSWCATAP 17 Fancourt v Mercantile Credit Limited (1983) 154 CLR 87 Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Kyriakou v Long [2013] NSWSC 1890 Kyriakou v Long [2014] NSWCA 308 Northey v Bega Valley Shire Council [2012] NSWCA 28 Northpine (Aust) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 579 RHG Mortgage Limited v Ianni [2015] NSWCA 56 Ractliffe v VOCAT (Review and Regulation) [2015] VCAT 205 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd [No.2] (1990) 21 NSWLR 200 Stead v State Government Insurance Commission (1986) 161 CLR 141 Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 Category: Principal judgment Parties: Patrick Hammond (First Appellant) Hollie Hammond (Second Appellant) Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales (Respondent) Representation: P Hammond, first appellant in person (Appellants) K Ince, officer of the corporation (Respondent) File Number(s): AP 15/03082 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 19 January 2015 Before: S Smith, General Member File Number(s): MV 14/61487 REASONS FOR DECISION Introduction 1. The appellants, Mr Hammond and his daughter Ms Hammond, appeal against the decision of the Tribunal setting aside, under cl 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) (the Regulation), an earlier decision of the Tribunal made on 18 December 2014. 2. The Appeal Panel has decided that the Tribunal below erred in law by failing to give adequate reasons for its decision to set aside the earlier decision. The Panel has also decided that, in the circumstances of this case, it is appropriate to proceed to deal with the appeal by way of a new hearing of the application to set aside, as permitted by s 80(3)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act). 3. As a result of the new hearing and for the reasons set out below, the Appeal Panel has decided that the earlier decision made on 18 December 2014 should be set aside on conditions relating to the payment of certain costs. The Facts 1. On 9 April 2014, Mr Hammond bought a second-hand car from the respondent, Ozzy's Cheapest Cars Pty Ltd trading as Ozzy Car Sales (Ozzy), at its business conducted at an address in Penrith NSW (the Penrith Address), according to the tax invoice issued by Ozzy on that date. The car came with a statutory warranty as set out in Part 4 of Form 4 referred to in cl 28 of the Motor Dealers Regulation 2010 for the purposes of s 24 of the Motor Dealers Act 1974 (NSW) (the Form 4 Warranty). Although that Regulation and that Act were repealed on 1 December 2014, they are applicable in the present proceedings, which have been brought immediately before the commencement of the new Act and Regulation: see cl 6 of Sch 2 of the Motor Dealers and Repairers Act 2013 (NSW). The Hammonds became dissatisfied with the car in various respects including with the visual display unit, the tyres and the wheels. On 18 July 2014, Ozzy had Bob Jane T-Marts carry out repairs to the wheels at Ozzy's expense. The Hammonds were still not satisfied, however, and decided to commence proceedings in the Consumer and Commercial Division of the Tribunal against Ozzy for breach of the Form 4 Warranty and failure to comply with the consumer guarantee in s 54 of the Australian Consumer Law (NSW) (ACL). 2. On 16 September 2014, Mr Hammond obtained an ASIC Current and Historical Company Extract in respect of Ozzy, dated 16 September 2014 (the Company Extract), and a Business Name Extract from ASIC's database concerning "Ozzy Car Sales", extracted on 16 September 2014 (the Business Name Extract). 3. The Company Extract states that, since Ozzy's registration as a company on 26 June 2013, Ozzy's "registered address" has been a specified street address in Hinchinbrook NSW (the Hinchinbrook Address). This is also the address given for Ozzy's only shareholder and director named in the Company Extract. In addition, on both the Company Extract and the Business Name Extract, the Hinchinbrook Address is described as Ozzy's principal place of business. The Business Name Extract also expressly states the following in respect of "Ozzy Car Sales": Address for service of documents: [the street name and number of the Hinchinbrook Address] Hinchinbrook NSW 2168 1. The Hammonds' Consumer and Commercial Division application form was lodged on 9 October 2014 and stated that Ozzy's address was the Hinchinbrook Address. The application was listed for hearing on 18 December 2014. 2. The Tribunal, in accordance with its usual practice in the Consumer and Commercial Division, posted a copy of both the application lodged by the Hammonds and the notice of the hearing scheduled for 18 December 2014 to the Hinchinbrook Address, being the address identified in the application form, and not the Penrith Address. 3. In 2014 and 2015, Ms Ince was the officer of Ozzy responsible for dealing with consumer claims against the company brought in the Consumer and Commercial Division of the Tribunal. She worked at the Penrith Address and was responsible, among other things, for opening all the incoming mail. Ms Ince did not receive in the mail a copy of the Hammonds' application nor did she receive in the mail any notice of hearing scheduled to take place on 18 December 2014. This is not surprising, as they were not sent to the Penrith Address but to the Hinchinbrook Address. 4. If, however, Ms Ince had been aware of the application and the hearing on 18 December 2014, she would have taken steps to prepare Ozzy's case for that hearing and would have appeared to represent Ozzy on that occasion. 5. On 18 December 2014, (then) General Member Simon, sitting in the Consumer and Commercial Division, heard the application. It was not in dispute that Ozzy did not appear at that hearing. 6. Since Ozzy was absent, at the beginning of the hearing the Member confirmed that both the letter to Ozzy enclosing the application and the notice of hearing sent to Ozzy were addressed to the Hinchinbrook Address and that that was the address shown in the Company and Business Name Extracts. She also noted that those documents had not been returned to the Tribunal as undelivered mail. In those circumstances, the Member determined that it was appropriate to proceed in Ozzy's absence. 7. After hearing evidence and submissions on behalf of the Hammonds, Member Simon made an order that Ozzy pay $1,447.80 to the Hammonds immediately. Written notification of that order was sent by the Tribunal to Mr Hammond on 23 December 2014. 8. On 23 December 2014, Mr Hammond sent to Ozzy an email to which was attached a copy of the written notification of the order and which included a request that Ozzy provide to the Hammonds a cheque for $1,447.80. That email was received by Ms Ince. 9. At this point, Ms Ince responded promptly and on the next day, 24 December 2014, Ozzy filed in the Tribunal an application under cl 9(1)(b) of the Regulation to set aside the order made on 18 December 2014. The Set Aside Application 1. In its application, Ozzy contended that the order should be set aside because: None of the notices regarding this matter were ever received by Ozzy Car Sales due to incorrect address details being supplied to the tribunal by Mr Hammond. 1. The application was supported by a statutory declaration by Ms Ince who gave evidence to the following effect: 1. Ozzy's address was the Penrith Address as shown on a number of the company's documents; 2. Ms Ince was responsible for opening all of Ozzy's incoming mail and she had never received any notices of hearing in this matter; and 3. The first time she became aware of the matter was via Mr Hammond's email on 23 December 2014. 1. In response to directions from the Tribunal, the Hammonds filed written submissions dated 7 January 2015 opposing the set aside application and Ozzy filed written submissions dated 12 January 2015 in response. 2. On 19 January 2015, General Member S Smith considered the set aside application on the papers and ordered that the decision of 18 December 2014 be set aside. The reasons for decision were short and were as follows: It appears that the respondent did not receive the Notice of Hearing and could have suffered an injustice in not being able to present his [sic] case. Notice of Appeal and Reply 1. On 20 January 2015, the Hammonds filed a notice of appeal seeking to have the set aside decision of 19 January 2015 itself set aside and the original decision of 18 December 2014 reinstated. The Hammonds also applied for the costs of the appeal to be paid by Ozzy. 2. The grounds of appeal listed by the Hammonds in their notice of appeal were as follows: 1. It was not open to Member Smith to find that the respondent had not received the notice of hearing - error of law 2. The reason given by Member Smith is inconsistent with Act of Parliament which mandate service and receipt of notices - error of law 3. The ground relied on by the respondent had no basis in fact or law - error of law 4. The decision was devoid of a ratio decidendi - error of law (including no analysis of submissions) 5. Non receipt of notice by intended recipient not a relevant consideration - error of law 6. The "reasons" given by Member Smith were not relevant considerations under NCAT Regulations - error of law. 1. Ozzy's reply to appeal form was filed on 17 February 2015 and took issue with each of the Hammonds' grounds of appeal. Jurisdiction and Nature of the Appeal 1. The original application in the present proceedings is for monetary compensation based on alleged breaches of the Form 4 Warranty and the guarantee as to acceptable quality found in s 54 of the ACL. 2. The Tribunal's jurisdiction to hear and determine the original application is founded on s 7 of the Consumer Claims Act 1998 (NSW). The Hammonds in effect contend in their application that theirs is a "consumer claim" within the meaning of s 7(1) and the other requirements of s 7(2) and (4) are satisfied in the present case. There may be a dispute as to whether the car was bought by Mr Hammond or by both Mr Hammond and Ms Hammond but that does not need to be resolved at this stage. 3. In these circumstances, the original application is for a decision in the general jurisdiction of the Tribunal within the meaning of s 29(1) of the Act and the decision of 18 December 2014 is, therefore, a "general decision" within the meaning of s 29(3). Further, these proceedings in the Consumer and Commercial Division can be characterised as "proceedings for a general decision" within the meaning of s 32(1) of the Act. Under s 32(1), the Tribunal has internal appeal jurisdiction over "any decision made by the Tribunal in proceedings for a general decision". 4. A decision to set aside an original decision under cl 9 of the Regulation should be seen as being made in the same proceedings as the proceedings in which the original decision was made. Consequently, in the present case, the set aside decision of 19 January 2015 should be taken to be a "decision made … in proceedings for a general decision" within s 32(1) and, thus, an "internally appealable decision" within the meaning of s 32(4). 5. Under s 80(1) of the Act, an appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision was made. The Hammonds were parties to the proceedings in which the set aside decision was made and, thus, they can appeal against the set aside decision in the present case and the Appeal Panel has jurisdiction to hear and determine the appeal. 6. Section 80(2) of the Act provides: (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. 1. Although it was not addressed in submissions by the parties, none of whom was legally represented, in order to determine whether or not leave to appeal is required in the present case, it is necessary to decide whether the set aside decision is an ancillary or an interlocutory decision or a decision "of any other kind". Both "ancillary decision" and "interlocutory decision" are defined in s 4(1) of the Act and the definition of "ancillary decision" refers to a "decision determining proceedings". A decision determining proceedings can also be called a final decision. 2. In dealing with appeals from a court to an intermediate appellate court, such as appeals from orders of the Supreme Court to the Court of Appeal, there is usually a bipartite distinction between interlocutory orders, for which leave to appeal is required, and final orders which may be appealed as of right: see, for example, s 101(1)(a) and (2)(e) of the Supreme Court Act 1970 (NSW) and the discussion by Kirby P (as his Honour then was) in Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd [No.2] (1990) 21 NSWLR 200 at 206-210. As s 80(2) of the Act makes clear, however, in dealing with internal appeals in the Tribunal, the more traditional dichotomy between final and interlocutory orders has effectively been replaced by a tripartite classification of interlocutory, ancillary and final decisions. 3. A set aside decision under cl 9 is not a final decision because, even if one set aside application has been made, a further set aside application may be made, with leave of the Tribunal, by virtue of cl 9(6) of the Regulation. A set aside decision under cl 9 is analogous in this regard to an order refusing to set aside a default judgment in a court. Such an order has been held not to be a final order. In Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246, Gibbs CJ explained the situation as follows, at 248: The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v. Corney (1976) 50 ALJR 439, at p 444. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v. Nominal Defendant (1966) 117 CLR 423, at p 440. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theoretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one. In my opinion the test in Licul v. Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken - an inquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted. The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the Court's power to grant special leave to appeal. I therefore hold that the judgment appealed from is not a final judgment and that the appeal is incompetent. 1. It does not follow from this, however, that a set aside decision should be characterised as an interlocutory decision for the purposes of s 80(2) of the Act. As has already been noted, under the Act, non-final decisions may be classified as "ancillary" or "interlocutory". 2. The expression "ancillary decision" is defined in s 4(1) of the Act as meaning: a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including: (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. 1. The expression "interlocutory decision" is defined as meaning: a decision made by the Tribunal under legislation concerning any of the following: (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (i) any other interlocutory issue before the Tribunal. 1. From the definition of "ancillary order", it follows that, if a decision is an interlocutory decision, it cannot be an ancillary decision. 2. The set aside decision in the present case does not fall within any of the examples the subject of paragraphs (a) to (h) of the definition of "interlocutory decision" in s 4(1). Nor does it appear to fall within the description of "a decision … concerning any … interlocutory issue before the Tribunal". The ordinary meaning of "interlocutory", when used in relation to issues or activities, refers to those issues or activities that arise or take place prior to proceedings being finally determined. For example, "interlocutory" appears to be used in this sense in ss 58(2)(b)(ii) and 59 of the Civil Procedure Act 2005 (NSW) in relation to "activities". This being so, the expression "interlocutory issue" in paragraph (i) can be seen as referring to an issue which arises for decision prior to the final determination of the proceedings. 3. A set aside decision under cl 9 of the Regulation can only be made, however, after there has been a final determination of the proceedings. Clause 9 provides in part: (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. (emphasis added) 1. Thus, a decision on a set aside application is not a decision concerning an "interlocutory issue" in proceedings before the Tribunal for the purposes of the definition of "interlocutory decision". On this basis, it should be concluded that a set aside decision is not an interlocutory decision within the meaning of s 4(1). 2. Further, the definition of "ancillary decision" in s 4(1) of the Act includes "a decision … consequential on … a decision determining proceedings". Since a set aside application under cl 9 can only be made after, and in respect of, a decision that determines proceedings, a set aside decision naturally falls within the description of a decision consequential on a decision determining proceedings. 3. For these reasons, the Appeal Panel is of the view that the set aside decision of 19 January 2015 was an ancillary decision for the purposes of s 80(2)(b) of the Act. Accordingly, in so far as the grounds of appeal relied on by the appellants raise questions of law, leave to appeal is not required. The Appeal 1. The Hammonds' grounds of appeal identify a number of errors of law said to affect the set aside decision. It is convenient to treat the Hammonds' grounds of appeal (which have been set out above) as falling into two broad categories. First, as we understand it, ground 4 raises the question of whether the Tribunal below has failed to give adequate reasons for the set aside decision. This raises an error of law. 2. Secondly, grounds 1, 2, 3, 5 and 6 raise the question whether the Tribunal below made errors of law concerning whether Ozzy received any notice of hearing and the relevance of such a conclusion. 3. The reasons (which have also been set out above) only include findings that Ozzy apparently did not receive the notice of hearing and could have suffered an injustice in not being able to present its case. The power in cl 9(1)(b) of the Regulation to set aside a decision arises, however, "if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal". The discretion to set aside, once enlivened, is apparently unfettered. The reasons for decision of the Tribunal below do not include findings of fact as to whether Ozzy was absent from the hearing or whether its absence resulted in its case not being adequately put. Nor do the reasons indicate what findings of fact were made in relation to any discretionary factors taken into account. 4. In attempting to consider whether the Tribunal below made any errors of law as contended under grounds 1, 2, 3, 5 and 6, the Appeal Panel finds that the reasons for decision are so truncated that it cannot discern properly what the Tribunal's reasoning processes, by which it reached its conclusion, were. From the Tribunal's reasons, it is not possible to know whether the Tribunal below considered, adequately or at all, the matters that must exist before any discretion to set aside under cl 9(1)(b) arises, how it reached its conclusion as to whether the notice of hearing was received, what the relevance of that conclusion was in the Tribunal's reasoning processes and what specific discretionary considerations it took into account, beyond a reference to potential injustice. 5. In Collins v Urban [2014] NSWCATAP 17 at [47] ff, it was held that, in addition to the obligation under s 62 of the Act to give a written statement of reasons for a decision upon request, there is also a duty arising at common law to give reasons for the Tribunal's decisions. At [49], [50] and [52], the Appeal Panel in that case said: 49. One reason why reasons are generally required, notwithstanding a provision such as s 62, is that if reasons for decision are neither sought nor prepared and an appeal or application for leave to appeal is lodged, the findings of fact and legal reasoning of the decision maker at first instance would not be available to the appellate body by way of written reasons. In many instances not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right because the appellate body does not have a statement of the findings of fact, the relevant law and explanation of how the law was applied to the facts as found, by the decision maker at first instance. 50. It was held in Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 (per Moffitt JA, Manning JA agreeing) that: The force of the authorities, which in various ways say that the judge or magistrate at first instance in particular cases ought to have given reasons, is that, as part of his judicial duty and apart from any express requirement of any statute, he ought to have given reasons for the decision in question. I think there is duty upon a judge or magistrate, at least at first instance, in an appropriate case and in appropriate circumstances to give reasons for decision such as will facilitate a litigant, who may be aggrieved, exercising rights he may have to appeal. In Carlson v King [(1947) 64 WN (NSW) 6] Jordan CJ in delivering the decision of the Full Court said: "It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. [...]" The judgment otherwise makes it clear that this statement is directed to the general judicial duty of a judge of a court from which an appeal lies, whether or not a provision such as s. 144(3) [which in effect required a judge upon request to provide reasons] exists or not. … 52 The duty in relation to reasons endorsed in Pettit has been held to apply not only to Courts but also to other judicial or quasi-judicial tribunals or bodies - see for example Campbelltown City Council v Vegan (2006) 67 NSWLR 372. 1. In the Appeal Panel's view, the present case involves an example of reasons for decision that do not allow the Appeal Panel to discern the findings and reasoning relied upon to arrive at the decision in question so that the parties' appeal rights can be effectively exercised. 2. Consequently, the Appeal Panel is of the view that the Tribunal below failed to give adequate reasons for its decision to set aside the original orders made. This amounts to an error of law. Accordingly, it is appropriate to allow the appeal on this ground and set aside the decision of 19 January 2015, under s 81(1)(a) and (c) of the Act. 3. Having reached this conclusion, it is unnecessary for the Appeal Panel to consider the other grounds of appeal raised by the Hammonds. How to Proceed to Dispose of the Appeal? 1. The question then becomes: what should be done to ensure the just and expeditious resolution of the real issues in these proceedings? There are at least two options. First, the Appeal Panel can remit the set aside application to be reconsidered by the Consumer and Commercial Division of the Tribunal under s 81(1)(e), with or without further evidence. Alternatively, the Appeal Panel may 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, under s 80(3) of the Act. 2. At the hearing of the appeal, the Panel raised with the parties the possibility of proceeding under s 80(3). The parties expressly agreed that they were content for the Appeal Panel to proceed under s 80(3) to have a new hearing of the set aside application on the basis of the material before the Appeal Panel and any submissions the parties wished to make on the day. 3. In these circumstances, we are of the opinion that, in order to give effect to the guiding principle set out in s 36 of the Act, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings, it would be preferable not to delay the resolution of the proceedings by remitting the set aside application to the Consumer and Commercial Division. Rather, the Panel should deal with the appeal by way of a new hearing under s 80(3). Rehearing of the Set Aside Application 1. For the purposes of rehearing the set aside application, the Appeal Panel has before it the following materials: 1. Ozzy's application form lodged on 24 December 2014 seeking to have the original order set aside under cl 9(1)(b) of the Regulation, including a short statement of the reasons why the order should be set aside and Ms Ince's statutory declaration of 23 December 2014; 2. The Hammonds' submissions dated 7 January 2015 opposing the set aside application (together with attachments referred to below); 3. Ozzy's submission dated 12 January 2014 in support of the set aside application (together with attachments referred to below); 4. Mr Hammond's email of 23 December 2014 with the Tribunal's notice of the original order dated 23 December 2014 attached; 5. The Company Extract in respect of Ozzy dated 16 September 2014 and the Business Name Extract concerning "Ozzy Car Sales" extracted on 16 September 2014; 6. A copy of the Ozzy's Motor Dealers Act licence dated 26 August 2013; 7. An ASIC record of registration of the business name "Ozzy Car Carriers"; 8. Ozzy's tax invoice in respect of the sale of the car to Mr Hammond dated 9 April 2014; 9. A photograph of the inside of the car including the visual display unit; and 10. A tax invoice from Bob Jane T-Marts dated 18 July 2014 relating to wheel repairs on the car. 1. In addition, the Appeal Panel received oral submissions from the parties. Ozzy's Submissions 1. In its set aside application, Ozzy contends that none of the notices concerning the original application was ever received by Ozzy and, consequently, the original decision was made in its absence, which resulted in its case not being adequately put to the Tribunal. 2. Ozzy seeks to explain why it did not receive any of notice of the hearing on 18 December 2014 by blaming Mr Hammond for supplying the incorrect address, namely the Hinchinbrook Address rather than the Penrith Address, to the Tribunal. It points out that the address shown on each of Ozzy's Motor Dealers Act licence, the tax invoice in relation to the sale of the car to Mr Hammond and the ASIC record of registration of the business name "Ozzy Car Carriers" is the Penrith Address. In addition, it is said that Mr Hammond was obviously aware of Ozzy's email address. 3. Ozzy submits that "given the opportunity to present our case we strongly believe a different outcome would have been granted". 4. In oral submissions, it emerged that Ms Ince, even at the date of the appeal hearing, still does not have a copy of the original application made by the Hammonds and is not aware of the specific nature of the claims against Ozzy or of the evidence relied upon by the Hammonds in the original application. The only information Ms Ince has as to the Hammonds' case is what is said in the Hammonds' submissions of 7 January 2015 opposing the set aside application. In relation to the two evidentiary matters which were disclosed in those submissions, Ozzy submits: 1. As to the claim for replacing the digital display unit, whilst that unit was slightly faded, it was still legible. This submission was accompanied by a photograph that, on the copy before the Appeal Panel, appeared to show some numbers visible on a vehicle's digital display unit on the dashboard. 2. As to the claim for the cost of tyres, the wheel rims were repaired as disclosed in the Bob Jane T-Marts tax invoice of 18 July 2014. 1. Finally, Ozzy submits, in effect, that it would suffer an injustice if the original decision is not set aside and it is not allowed to present its case. The Hammonds' Submissions 1. The Hammonds submit that Mr Hammond did not provide an incorrect address for Ozzy to the Tribunal. The Hinchinbrook Address was the address shown on the Company Extract and the Business Name Extract. 2. It is submitted by the Hammonds that s 109X(1)(a) of the Corporations Act 2001 (Cth) permits service of the original application and notices by posting them to Ozzy's address as shown on the Company Extract. The Hammonds also rely on s 29 of the Acts Interpretation Act 1901 (Cth) in this regard to contend that the application and notice of hearing, which had been sent by post to the Hinchinbrook address, are deemed to have been served at the time at which the documents would be delivered in the ordinary course of post. They also rely on the fact that Ozzy has not established that the notice of hearing was not delivered to the address in question in order to argue that there is no basis for concluding that the deemed service has not occurred, relying on Fancourt v Mercantile Credit Limited (1983) 154 CLR 87. The Hammonds then submit that, in effect, that it was not open for the Tribunal to find that the notice of hearing had not been received by Ozzy. 3. The Hammonds also submit that the Member who heard the original application made no error of fact or law and Ozzy has suffered no injustice. Further, it is argued that, if the Hinchinbrook address was not Ozzy's address, this is because Ozzy's director failed to inform ASIC of the current registered office of the company. Ozzy should not be able to rely on its own negligence as a ground for relief by way of setting aside the original order of 18 December 2014 and to do so would be inconsistent with the guiding principle in s 36 of the Act. Thus, it is contended, the set aside application should be dismissed. 4. Further, the Hammonds submit that the Member hearing the original application, in fact, considered the arguments that might have been advanced by Ozzy if it had not been absent and still upheld the claim. They give examples of the digital display unit and the tyres. In oral submissions, Mr Hammond said that the evidence relied on by the Member at first instance is irrefutable and at any rehearing the result will be no different. On this basis, it is submitted, in effect, that Ozzy has not established that its case has not been adequately put to, or considered by, the Tribunal hearing the original application or that Ozzy would suffer an injustice if the decision is not set aside. Determination of Set Aside Application 1. Clause 9(1)(b) of the Regulation relevantly provides: (1) … the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: … (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. 1. Accordingly, before the Tribunal's power to set aside a decision that determines proceedings arises, the Tribunal must be satisfied that: 1. The decision was made in the absence of a party; and 2. That absence resulted in the party's case not being adequately put to the Tribunal. 1. If those two requirements are satisfied, the Tribunal then has a discretion to set aside or vary the decision. This follows from: 1. The use of the word "may" in the chapeau to cl 9(1); 2. The terms of s 53(3) of the Act, having regard to the reasoning of Basten JA in Atkinson v Crowley [2011] NSWCA 194 at [12]-[13] in relation to a similar provision in the legislation which applied to the Consumer Trader and Tenancy Tribunal, before it was abolished; and 3. The fact that cl 9(1)(b) applies in situations extending beyond those in which it might be held that the proceedings are a nullity (see, for example, Hoskins v Van Den-Braak (1998) 43 NSWLR 290 at 294 and the authorities there cited). Was the Decision Made In the Absence of Ozzy? 1. In the present case, it is not in dispute that the decision of 18 December 2014 was made in the absence of Ozzy. Thus, the first requirement in cl 9(1)(b) is satisfied. 2. The questions of whether or not Ozzy received a copy of the original application or the notice of hearing and whether or not those documents were served, or deemed to have been served, on Ozzy are not relevant to the issue of whether or not the decision was made, in fact, in Ozzy's absence. That is not to say, however, that those questions are not relevant to the exercise of the discretion, if it arises. Did That Absence Result in Ozzy's Case Not Being Adequately Put to the Tribunal? 1. The second requirement is that the party's absence resulted in its case not being adequately put to the Tribunal. In Ozzy's case, the fact that it was absent from the hearing on 18 December 2014, at which the original decision was made, meant that Ozzy did not put before the Tribunal any evidence or submissions concerning the claims made in the Hammonds' original application, on that occasion. It was not suggested that Ozzy had provided any written submissions or other material to the Tribunal before the Tribunal made its decision on 18 December 2014. 2. Even if the Appeal Panel accepted, as the Hammonds' submitted, that "Member Simon carefully considered arguments that might have been advanced by the absent party as well as questioning Patrick Hammond with regard to evidence and facts" (and the Appeal Panel was not taken to the transcript or sound recording of what occurred at the hearing), this would not necessarily establish that Ozzy's case was adequately put to the Tribunal before the decision of 18 December 2014 was made, for the purposes of cl 9(1)(b). As noted above, Ms Ince still does not know what specific case the Hammonds have made against Ozzy. Ozzy has not been provided with a copy of the Hammonds' evidence nor their submissions as to the facts and the law, in relation to the original application. Consequently, the officer of Ozzy responsible for formulating or presenting the company's case has not been afforded the opportunity to do so 3. Furthermore, Ms Ince has provided information, albeit limited, concerning what Ozzy's case is in relation to those claims of which she is aware as a result of the Hammonds' submissions on the set aside application. First, Ozzy has provided a somewhat indistinct photocopy of a photograph of the visual display unit and asserts that, whilst the visual display unit was faded, it was still working at the relevant time. Mr Hammond contends that his photograph of the unit shows incontrovertibly that it is defective. The Appeal Panel is not in a position to assess the merits of the parties' contentions in this regard. Nonetheless, Ozzy's material indicates that there is a case that Ozzy wishes to make concerning this unit. Such a case was not put to the Tribunal dealing with the original application and it is not so obviously devoid of merit as to render it liable to be dismissed summarily. 4. Secondly, in relation to the claim for the replacement of the tyres, Ozzy has given evidence of having some repair work done on the wheels and has provided a copy of the tax invoice relating to this work. It is not clear to the Appeal Panel whether or how the wheel repairs and the replacement of the tyres are said to be related, but the Panel is not prepared to conclude that Ozzy has no case at all to put in relation to whether there has been a contravention of the consumer guarantee under s 54 of the Australian Consumer Law or that its case has been adequately put to the Tribunal in this regard, as the Hammonds contend. 5. On all of these bases, the Appeal Panel is satisfied that Ozzy's case has not been adequately put to the Tribunal within the meaning of cl 9(1)(b). 6. As part of the second requirement under cl 9(1)(b), the Tribunal also has to be satisfied that the absence of the party resulted in its case not being adequately put to the Tribunal. In Ozzy's case, if Ms Ince had been present at the hearing on 18 December 2014, she and Ozzy would have been informed of contents of the Hammonds' original application, the bases for the claims and the evidence and submissions upon which the Hammonds were relying. Ozzy would then have been in a position to call whatever evidence and make whatever submissions it wished to, either on 18 December 2014 or at a later hearing if one was required. Being absent, Ozzy was not able to do this. In these circumstances, the Appeal Panel is satisfied that Ozzy's absence resulted in its case not being adequately put to the Tribunal. Principles Applicable to the Discretion to Set Aside 1. Since both requirements of cl 9(1)(b) are satisfied, the discretion whether or not to set aside the original decision is enlivened. 2. The discretion conferred by cl 9(1)(b) is unfettered by any express requirements of that clause but it must be exercised having regard to the statutory context in which the Tribunal operates. In particular, when applying cl 9(1)(b), the Tribunal must seek to give effect to the guiding principle referred to in s 36(1) of the Act: see, for example, Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 at [38]. Section 36 provides in part: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. 1. The central question in exercising the discretion is whether there is a real likelihood that it would be unjust to let the decision sought to be set aside stand. If so, it should be set aside on such terms as will minimise the possibility of injustice to the party which had obtained the original decision in its favour. See, for example, CMT [2014] NSWCATGD 11 at [67] and [68(e)]; Northey v Bega Valley Shire Council [2012] NSWCA 28 at [16]; Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 at 243-4 – these latter two cases are both authorities dealing with r 36.16(2)(b) in the Uniform Civil Procedure Rules 2005 (NSW), or its predecessor, equivalent to cl 9(1)(b). 2. Justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case: Cameron v Cole (1944) 68 CLR 571 at 589. In the Tribunal, s 38(5)(c) of the Act provides: (5) The Tribunal is to take such measures as are reasonably practicable: … (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 1. If a party has been given such an opportunity, however, and has deliberately not taken it, there may well be no relevant injustice if the decision is allowed to stand: see, for example, CMT [2014] NSWCATGD 11 at [68(a)]. In this regard, the issue of why the party was absent from the hearing may be very significant: see, for example, Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 at [37], [39] and [40]. 2. Injustice will only be likely to result if the party seeking to set aside the decision has an arguable defence or an arguable case that a different decision could have been reached. If not, setting aside the decision would be futile. See, in a different but related context, Kyriakou v Long [2013] NSWSC 1890 at [33] and [55], approved on appeal in Kyriakou v Long [2014] NSWCA 308 at [18]. Section 38(4) of the Act is consistent with this approach, in that it requires the Tribunal to act according to the substantial merits of the case without regard to technicalities or legal forms. 3. In summary, when exercising the discretion conferred by cl 9(1)(b), the Tribunal should direct its attention to whether there would be a real likelihood of injustice if the decision was allowed to stand. Relevant considerations will generally include: 1. Why the party was absent and whether the absent party had a reasonable opportunity to be heard or otherwise have its submissions considered in the proceedings; and 2. Whether the absent party has an arguable defence or an arguable case that a different decision could have been reached. 1. Setting aside a decision will naturally involve a degree of prejudice to the party which was initially successful. As part of the exercise of the discretion, the Tribunal should also consider how that prejudice can be cured or reduced, for example by the framing of any set aside order or by the imposition of suitable conditions on that order. Conditional orders can be made in the Tribunal under s 58 of the Act. Exercise of the Discretion Why Ozzy Was Absent 1. Ozzy's explanation of why it was absent from the hearing is to the effect that Mr Hammond supplied the wrong address for Ozzy, namely the Hinchinbrook Address instead of the Penrith Address, to the Tribunal and consequently neither the application nor the notice of hearing was ever received by Ozzy. This explanation is incorrect for two reasons. 2. First, Mr Hammond did not supply the wrong address. Mr Hammond inserted the Hinchinbrook Address as Ozzy's address in the form of application lodged with the Tribunal on 9 October 2014. Given the information in the Company Extract and the Business Name Extract, this was at least one, if not the only, correct address for Ozzy. Mr Hammond and the Tribunal were entitled to rely on the Company Extract and Business Name Extract obtained from ASIC for the purpose of identifying the address to which the Tribunal might post to Ozzy documents relating to the proceedings. 3. Secondly, the evidence did not establish that Ozzy never received the application or the notice of hearing. There was no evidence before the Member who heard the original application or before the Appeal Panel that the application and the notice of hearing were not delivered to the Hinchinbrook Address. The sole director of, and shareholder in, Ozzy, who apparently lived at the Hinchinbrook Address, was not called to give evidence and there was no evidence denying that the documents were received at that address or, if received, what happened to them after their receipt. 4. The application and the notice of hearing were posted to Ozzy at the Hinchinbrook Address. In the absence of any evidence from the sole director and shareholder or any other person with knowledge of what occurred at that address, we are prepared to conclude that the application and notice of hearing were delivered to the Hinchinbrook Address. We also accept, to the extent that it is relevant for present purposes, that those documents were served on Ozzy, having regard to s 109X of the Corporations Act, s 29 of the Acts Interpretation Act 1901 (Cth) and Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 (assuming, without deciding, that posting a document to the "registered address" shown on an ASIC Current and Historical Company Extract constitutes posting it to the company's "registered office", within the meaning of s 109X). 5. In all of these circumstances, Ozzy's explanation of why it was absent from the 18 December 2014 hearing should not be accepted. That conclusion does not, however, lead to the result that there is no real likelihood of injustice if the decision of 18 December 2014 was allowed to stand. It is appropriate to consider what actually occurred, if the evidence is sufficient to support such a finding. 6. On the material before the Appeal Panel, we find that, although the application and the notice of hearing were delivered to the Hinchinbrook Address, they were not provided to Ms Ince for her to deal with. It seems more probable than not that this was the result of some failure on the part of the persons who lived or worked at the Hinchinbrook Address to ensure that correspondence concerning claims against Ozzy in the Tribunal was brought to Ms Ince's attention so that it could be dealt with. Reasonable Opportunity to be Heard 1. On our findings set out above, the documents were delivered to the Hinchinbrook Address and were thus served on Ozzy. On this basis, it could be said that Ozzy has had, at least, an opportunity to be heard. The law, however, requires that a party be given a reasonable opportunity to be heard or otherwise have its submissions considered. The reasonableness standard requires all relevant circumstances to be considered. 2. If it were proved that the documents, although received by Ozzy at the Hinchinbrook Address, were deliberately not passed on to Ms Ince by a responsible officer of Ozzy, Ozzy could properly be seen as deliberately rejecting the opportunity offered. It could then be said that Ozzy had been given a reasonable opportunity to be heard in the circumstances but chose not to avail itself of the opportunity: see, for example, CMT [2014] NSWCATGD 11 at [47]. Similarly, if a respondent deliberately decided not to attend a hearing so that, at a later time, it could make an application to have the decision set aside on the basis of its absence and gain time by having any orders stayed while that application was heard and determined, it could also be concluded that the respondent had been given a reasonable opportunity to be heard but did not take up that opportunity for tactical reasons. 3. We are not, however, satisfied that the present case can be characterised in this way. 4. It does not appear to us that Ozzy could have derived any benefit at all from deliberately not passing on the documents sent to it at the Hinchinbrook Address to the officer responsible for conducting such proceedings on Ozzy's behalf. Consequently, we think it more probable that the failure to pass the documents on to Ms Ince was at worst inadvertent. If the documents had come to Ms Ince's attention prior to 18 December 2014, she would have been present, representing Ozzy, at the hearing prepared to put Ozzy's case. There is no reason to doubt that Ozzy, through Ms Ince, would have availed itself of the opportunity to put its case, if she had been given the chance. 5. Although in a technical sense the documents have been served on Ozzy and Ozzy might, as a result, be said to have had an opportunity, we do not think it has had a reasonable opportunity, to be heard or otherwise have its submissions considered on the original application, in the circumstances of this case. Arguable Defence or Arguable Case for a Different Decision 1. In the present matter, it is difficult to determine the strength of Ozzy's case because Ms Ince has not yet been fully apprised of the Hammonds' case against Ozzy and, consequently, she has not been able to formulate fully Ozzy's case in response. Where Ms Ince has been made aware, from the Hammonds' submissions opposing the set aside, of aspects of their case concerning the tyres and the visual display unit, she has provided factual material which indicates that there is some basis for Ozzy defending those aspects of the proceedings. 2. We reject the Hammonds' submission that the evidence at the original hearing is incontrovertible and that no other result is possible if the original decision is set aside. Where facts are in dispute, as in this case concerning the visual display unit and the state of the tyres and its cause, the Tribunal should be particularly wary of concluding that there was no reasonable possibility of a different outcome if the decision were set aside. The Court of Appeal has, in RHG Mortgage Limited v Ianni [2015] NSWCA 56 at [71], recently drawn attention to the High Court's comment in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145: "[Where a] denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference": 1. On the material presently available to the Appeal Panel, it should not be concluded that Ozzy has no arguable defence or no arguable case for a different result. We do not accept that it would be futile to set aside the original order of 18 December 2014 in this case. Prejudice to the Hammonds 1. If the set aside order is made, there will be prejudice to the Hammonds. Their time, effort and money expended in: 1. attending, leading their evidence and making submissions at the hearing on 18 December 2014; 2. taking steps to recover the amount ordered on 18 December 2014 to be paid; 3. opposing the set aside application; and 4. successfully appealing against the set aside decision, will have been effectively wasted. They will also be deprived of the enforceable decision that they previously obtained. 1. These are all relevant matters for the Appeal Panel to take into account in considering whether to set aside the decision. Injustice 1. In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1, Gleeson CJ said at [37]: Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. 1. In the circumstances of this case, the Appeal Panel is satisfied that there is a real likelihood of practical injustice if the original decision is allowed to stand and Ozzy is not given the opportunity to be heard or otherwise have its submissions considered in relation to the Hammonds' original application. Notwithstanding the prejudice to the Hammonds, Ozzy ought to be allowed the opportunity to present its case in defence of the Hammonds' claims at a fresh hearing. 2. Accordingly, the order made on 18 December 2014 should be set aside. Nonetheless, in order to do justice to all parties, a condition should be imposed with a view to reducing the prejudice to the Hammonds. 3. We address the related questions of costs and the appropriate condition to be imposed on the set aside order in the following paragraphs. Costs and Condition on the Set Aside Order 1. The Hammonds, in their notice of appeal, sought an order for costs. After the oral hearing, written submissions on costs were filed by both parties in accordance with the directions of the Appeal Panel. We have considered those submissions. 2. Section 60 of the Act provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 1. It is not necessary for us to decide whether r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) applies when the Appeal Panel is exercising a function of the Tribunal allocated to the Consumer and Commercial Division, having decided to deal with an internal appeal by way of a new hearing under s 80(3) of the Act, since r 38(2)(a) and (b) do not apply in this case because neither of the monetary thresholds in those paragraphs has been reached. Further, to the extent that the amount awarded relates to the costs of the appeal and not the new hearing, r 38 is not applicable in any event. 2. Section 60(1) of the Act establishes the general principle that each party should pay its own costs, and s 60(2) provides an exception if the Tribunal is satisfied that there are "special circumstances" warranting an award of costs. The list of circumstances that may be regarded as warranting an award of costs includes in s 60(3)(g) "any other matter that the Tribunal considers relevant". In the present case, the Appeal Panel considers that it is relevant that: 1. Ozzy's application to set aside the original order and the ensuing appeal would not have been necessary, had it not been for some failure on Ozzy's part to ensure that documents relating to claims against it delivered to the Hinchinbrook Address were passed on to Ms Ince; 2. the Hammonds successfully appealed against the original set aside decision; and 3. the Appeal Panel has dealt with the set aside application by way of a new hearing and has determined that, even though the original decision should be set aside, it is appropriate to take steps with a view to reducing any prejudice to the Hammonds as a result of the original decision being set aside and this can be addressed by an award of costs. 1. The Appeal Panel is satisfied that these circumstances amount to "special circumstances" that warrant the awarding of costs for the purposes of s 60(2) of the Act. In the light of this finding, it is not necessary to consider whether other circumstances might also justify an award of costs as contended by the Hammonds in their written submissions. 2. Under s 60(5)(b), "costs" includes the costs of, or incidental to, proceedings in the Tribunal and the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. Otherwise, "costs" is not defined in the Act. Given the general prohibition on the awarding of costs in s 60(1) and the absence of any definition, apart from the inclusive illustrations in s 60(5) which refer to "costs" without elaborating upon that term, we are of the view that the word "costs" in s 60 refers to the types of costs recoverable in legal proceedings and that the legal principles relating to what "costs" may be ordered to be paid by a Court apply in relation to the Tribunal, except to the extent that they are modified by the Act or other applicable legislation. As we understand it, there is no applicable statutory modification in this case. Accordingly, "costs" that the Tribunal can order to be paid under s 60(2) will not include compensation for time spent by a litigant who is not a lawyer in preparing and conducting his or her case: Cachia v Hanes (1994)179 CLR 403 at 409. In Cachia, the High Court explained the position as follows at 410-411: This is hardly surprising. It has not been doubted since 1278, when the Statute of Gloucester ((30) 6 Edw.I c.1.) introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, "but not to the costs and expences of his travell and losse of time" ((31) Coke, Second part of the Institutes of the Laws of England at 288. See also Howes v. Barber [1852] EngR 15; (1852) 18 QB 588 at 592 [1852] EngR 15; (118 ER 222 at 224); Dowdell v. The Australian Royal Mail Co. (1854) 3 El and Bl 902 at 906 [1854] EngR 604; (118 ER 1379 at 1381).). 1. A similar approach is apparently taken in the Victorian Civil and Administrative Tribunal and the Queensland Civil and Administrative Tribunal in relation to what "costs" are recoverable, where the word "costs" is not given a specific definition in the legislation applicable in either of those Tribunals: Ractliffe v VOCAT (Review and Regulation) [2015] VCAT 205 at [35] and Northpine (Aust) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 579 at [9] and [18]. 2. In the present case, costs in the applicable sense include: 1. The $396.00 fee paid when the notice of appeal was lodged; and 2. The cost of printing or photocopying in the order of 300 pages of material for use in the appeal. In this regard, the Hammonds claimed $622.00 (calculated at the rate of $2.00 per page for 311 pages, on the basis of what the Registrar of the Tribunal would have charged if the Tribunal had copied those pages for the Hammonds) but it does not appear that they actually paid those sums, nor was the Schedule B which set out details of the number of pages of copying and printing claimed, entirely accurate (for example, "Scope – 14 pages x 5 copies" does not total 90). In all the circumstances, the Appeal Panel is prepared to allow a lump sum $60.00 for copying and printing. These costs total $456.00. 1. The Hammonds have also claimed costs for the time spent in preparation. Mr Hammond conceded that neither he nor Ms Hammond was a legal practitioner. In accordance with the view we have taken of the meaning of "costs" in s 60 of the Act, we do not accept that the Hammonds' time spent in preparation is recoverable. Further, even if we were wrong in this conclusion, we would not exercise our discretion to award $1,646.00 (being $2,268.00 less printing of $622.00 as claimed by the Hammonds in their Amended Schedule A) for time spent in the hearing and in preparation, in addition to an award of $456.00, as $1,646.00 is not proportionate to, and is significantly greater than, the amount originally ordered to be paid by Ozzy, namely $1,447.80. 2. In our view, an award of costs of $456.00 is appropriate, given the size of the original claim and all the circumstances of these proceedings, which we have outlined above. 3. Further, in order to reduce the prejudice that the Hammonds will suffer from the original decision being set aside, we are of the view that the order setting aside the original order should be conditional upon Ozzy paying the amount of costs, $456.00, to the Hammonds. In other words, the order setting aside the original order will not take effect until Ozzy has paid the Hammonds the sum of $456.00 and provided evidence of that payment to the Tribunal. Conclusion and Orders 1. For these reasons our conclusions are that: 1. the Hammonds' appeal should be allowed; 2. the decision of the Tribunal of 19 January 2015 should be set aside; 3. the Appeal Panel should deal with the set aside application by way of a new hearing under s 80(3) of the Act; 4. the original decision of 18 December 2014 should be set aside; 5. Ozzy should pay to the Hammonds costs assessed in the sum of $456.00; and 6. the order setting aside the original decision should be conditional upon the sum of $456.00 being paid to the Hammonds and evidence of payment being provided to the Tribunal. 1. Accordingly, the orders of the Appeal Panel in this matter are: 1. The appeal is allowed. 2. The order of the Tribunal made on 19 January 2015 is set aside. 3. The respondent, Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales, is to pay costs assessed in the sum of $456.00 to the appellants, Mr and Ms Hammond, within 14 days of this order. 4. The order of the Tribunal made on 18 December 2014 is set aside on condition that the respondent: 1. pays the sum of $456.00 to the appellants as required by order 3; and 2. provides to the Tribunal evidence of that payment having been made within 21 days of the date of this order. ********** 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 Amendments 13 April 2015 - Corrected reference in order 4(a) in decision and in coversheet. 13 April 2015 - Corrected omission of "not" in paragraph 104. 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: 13 April 2015