Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mark Lewis v Trot Pty Ltd [2015] NSWCATAP 118 Hearing dates: 9 March 2015 Date of orders: 24 June 2015 Decision date: 24 June 2015 Jurisdiction: Appeal Panel Before: D Robinson, Principal Member C Paull, Senior Member Decision: The appeal is allowed The set aside decision made on 22 September 2014 is set aside The substantive decision made on 26 August 2014 is set aside The proceedings are remitted to the Tribunal for hearing Catchwords: Setting aside-set aside-Civil and Administrative Tribunal Regulation 2013 (NSW) Internal Appeals s 80 Civil and Administrative Tribunal Act 2013 (NSW) Legislation Cited: Civil and Administrative Tribunal Regulation 2013 (NSW) cl 9 Civil and Administrative Tribunal Act 2013 (NSW) s 80 Cases Cited: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 John v Prendergast & Vanessa Prendergast v Western Irrigation Ltd (2014) NSWCATAP 69 Category: Principal judgment Parties: Mark Lewis (Appellant) Trot Pty Ltd (Respondent) Representation: Represented in Person File Number(s): AP 14/51418 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 22 September 2014 Before: G Smith, Senior Member File Number(s): HB 14/43459 REASON FOR DECISION Introduction 1. The appellant entered into a contractual arrangement with the respondent, Trot Pty Ltd, the owner of the subject residential property, to carry out residential building work as defined under s 3 of the Home Building Act 1989. 2. The respondent initiated proceedings against the appellant in the Consumer and Commercial Division of the Civil and Administrative Tribunal New South Wales (the Tribunal) seeking damages for the rectification of alleged defective work. 3. On 26 August 2014 a member of the Tribunal (the presiding member) heard and determined the matter in the absence of the appellant, ordering the appellant to pay the respondent $9381.44 (the substantive decision). 4. The appellant lodged an application on 2 September 2014, under Schedule 4, cl 9(b) of the Civil and Administrative Tribunal Regulation 2013, seeking an order that the substantive decision be set aside (the set aside application). 5. The set aside application was determined by a different member of the Tribunal (the set aside member) on the papers in accordance with the Tribunal's usual practice. (Set aside applications are prescribed proceedings under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) " the Act" for which a hearing is not required). 6. The decision of the set aside member was to refuse the set aside application. 7. This was the hearing under s80 the Act of an internal appeal by the appellant from the decision of the set aside member. The Grounds Of Appeal 1. The Grounds of Appeal are: 2. The appellant instructed his solicitors to initiate proceedings against the respondent in the Local Court. Once the respondent initiated the substantive proceedings in the Tribunal the Local Court proceedings were transferred to the Tribunal where, under the relevant statutory regime, legal representation is not allowed as of right. His solicitors did not seek leave to represent him and ceased to act. 3. Notwithstanding this, when the substantive proceedings were listed the Tribunal registry forwarded the Notice of Hearing to the appellant's solicitors-being the address on the record. 4. The appellant's solicitors mailed the hearing notice to the appellant who, at the time, was on holidays and as a consequence did not know of and hence did not attend the substantive hearing. 5. On his return from holidays, the appellant became aware of the substantive decision and lodged the set aside application the crux of which was "I had no knowledge of the matter being listed before the tribunal". 6. In raising the above matters, the appellant submits that he was denied procedural fairness. In particular, the appellant argues that he was deprived of the opportunity to present his case, which largely rests on a report from an Andrew Conner dated 22/5/13 (the report). 7. The appellant seeks to have the set aside decision overturned and in its stead, requests the Appeal Panel to set aside the substantive order and refer the proceedings back to the Tribunal for determination. The Statutory Framework 1. In considering the appeal the starting point is the statutory framework laid down by the following provisions of the Act: S80 Making of internal appeals (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." S32 Internal appeal jurisdiction of Tribunal (1) The Tribunal has internal appeal jurisdiction over: (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) However, the internal appeal jurisdiction of the Tribunal does not extend to: (a) any decision of an Appeal Panel, or (b) any decision of the Tribunal in an external appeal, or (c) any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or (d) any decision of the Tribunal in proceedings for the imposition of a civil penalty in exercise of its general jurisdiction. Note : The decisions above may be appealable to the Supreme Court and, in some cases in relation to civil penalty decisions made by the Tribunal (whether under this Act or enabling legislation), the District Court. See section 73 and Part 6. (4) An internally appealable decision is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction. (5) An internal appeal is an appeal to the Tribunal against an internally appealable decision. (6) Subject to the procedural rules, if a decision of a registrar is an internally appealable decision, the provisions of this Act relating to the making and determination of an internal appeal are taken to apply as if: (a) any reference to the Tribunal at first instance (however expressed) included a reference to a registrar, and (b) any requirement concerning the granting of leave to appeal against particular kinds of decisions of the Tribunal or on particular grounds extended to decisions of the same kind made by a registrar or grounds of the same kind. Clause 9, Schedule 4 NCAT Regulation- Additional power to set aside or vary decision determining proceedings (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. Note. The following provisions of the Act are examples of provisions that expressly confer powers to set aside or vary decisions of the Tribunal: (a) section 45 (3) (which enables the Tribunal to revoke leave granted to a person to represent a party), (b) section 53 (4) (which confers a power on the Tribunal to set aside proceedings and decisions involving procedural irregularities resulting from a failure to comply with provisions of the Act or the procedural rules in relation to the commencement or conduct of proceedings), (c) section 63 (which confers a power on the President or a presiding member to correct obvious errors in decisions of the Tribunal), (d) section 64 (3) (which enables the Tribunal to vary or revoke a non-disclosure order made under section 64), (e) section 73 (3) (which enables the Tribunal to vacate or revoke an order with respect to contempt of the Tribunal). (2) The Tribunal may make an order under this clause of its own motion or on the application of a party. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made. (4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (5) A party may not make an application for an order under this clause to set aside or vary a decision of the Tribunal if: (a) an internal appeal or appeal to a court against the decision has been lodged or determined, or (b) an application for a judicial review of the decision has been made or determined. (6) A party may not, without the leave of the Tribunal, make an application for an order under this clause to set aside or vary a decision of the Tribunal if the party has previously made an application under this clause to have the decision set aside or varied. (7) If the Tribunal sets aside a decision under this clause, it may also set aside any orders that it made consequent on the decision that has been set aside. Note. An example of such a consequent order may be an order for costs in the proceedings. (8) Proceedings for the purposes of this clause are prescribed for the purposes of section 50 (1) (d) of the Act. Note. A hearing is not required for proceedings that are prescribed for the purposes of section 50 (1) (d) of the Act. (9) This clause does not limit any power of the Tribunal to set aside, revoke or vary its interlocutory decisions or any other decisions that do not operate to determine proceedings. Applying the Statutory Framework-Appealable Decision/ Leave to Appeal 1. In considering the above provisions, the first matter to be addressed is whether the decision to refuse the set aside application is one over which the Tribunal has "internal appeal jurisdiction". 2. If the answer to this is yes, the next question is whether the appellant requires leave to appeal. 3. These issues were recently considered, by the Appeal Panel of the Tribunal in Hammond v Ozzy's Cheapest Cars Pty Ltd (published 8 April 2015). At page 6 of that decision the Appeal Panel states: "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 ….. 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)" 1. The Appeal Panel went on to consider whether a set aside decision should be characterised as an" interlocutory" decision under s 80(2)(a) of the Act or an "ancillary" decision under s 80(2)(b) of the Act and concluded: "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…. 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. For these reasons, the Appeal Panel is of the view that the set aside decision ….. 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". 1. We have considered carefully the reasoning of the Appeal Panel and in light of those reasons and the overriding consideration to ensure comity and consistency in decision-making we accept the conclusions reached by the Appeal Panel. 2. Accordingly we find that in the present proceedings the set aside application is an ancillary decision within the meaning of s 80(2)(b) of the Act and that other than where the appellant raises questions of law, leave to appeal is required. 3. Although the Notice of Appeal refers to a number of matters, these all relate to a denial of procedural fairness. Denial of procedural fairness raises a question of law (John v Prendergast & Vanessa Prendergast v Western Irrigation Ltd (2014) NSWCATAP 69 at (13) which as already noted does not require the appellant to seek leave. 4. Even if leave were required, then, having considered the parameters of s 80(2)(b) of the Act and cl12 Sch 4 of the Act, we are of the view the appellant should succeed for the reasons given below. DECISION 1. We accept the appellant's evidence (which has not been contradicted) as to why he failed to attend the substantive hearing. What is more we are of the view that the circumstances were clearly unfortunate and resulted in the appellant being unfairly deprived of the opportunity to present his case, through factors that were largely not of his making. 2. The appellant in his appeal papers and again at the hearing confirmed that it is the set aside decision that he wishes to appeal. That set aside decision was made "on the papers" in accordance with the Tribunal's usual practice. 3. The set aside member had before him the set aside application (in which the appellant re-iterates the reason for his non-attendance at the substantive hearing); the appellant's statutory declaration (which also sets out his reasons for failing to attend the substantive hearing); a document that purports to substantiate the time and place of the appellant's holiday; the letter from the appellant's solicitor to the appellant advising of the 26 August 2014 substantive hearing and enclosing the Notice of Hearing. 4. On the basis of the above the set aside member concluded that the appellant "was served with notice of hearing at his Solicitors who had been acting for him in the proceedings prior to the transfer to the Tribunal. No information or reason is given for the failure of the (appellant)'s solicitor to attend the hearing. Furthermore, there is no submission as to what other orders may have been made or what evidence would have been provided had the (appellant) been represented at the hearing. In the circumstances I am not satisfied the absence of the (appellant) has resulted in that party's case not being adequately put to the Tribunal". 5. The set aside member was correct to the extent that the appellant failed to explicitly state that once the Local Court proceedings were transferred to the Tribunal, his solicitors had ceased to act in the proceedings. 6. What was implicit in the set aside application, however, was that this was the case, because once the proceedings came before the Tribunal, each party was required to represent its own case (s45 Act). 7. What is more, the set aside application included the solicitor's letter alerting the appellant to the Tribunal hearing and enclosing the Tribunal's Notice of Hearing. 8. In the best of worlds it would have been preferable for the appellant to specify the reason for his solicitor's non-attendance and clearly link that reason to the solicitor's actions in writing to the appellant advising of the Tribunal hearing date and pertinently, enclosing the Notice of Hearing. 9. It must be remembered, however, that there are instances when an unrepresented party seeking to prosecute a legal action is not always operating in the best of all possible worlds. It must also be remembered that the appellant's obligations arose under beneficial legislation. 10. The set aside member also states that on the material before him, it was not clear what evidence the appellant would have put forward had he attended the substantive hearing. 11. As noted above, the appellant primarily seeks to rely on the report which was in existence at the date of the substantive hearing but which he failed to include or refer to in the set-aside application. 12. It is relevant to note that the Tribunal's standard, set aside application form, in no way alerted the appellant to the need to refer to, or indeed include any relevant evidence that he would have raised, if he had attended the substantive hearing. And again, it is important to note the appellant was submitting his set aside application under beneficial legislation. 13. In light of these matters, we are satisfied that there is a real likelihood of a substantial miscarriage of justice if the set aside decision stands. We therefore allow the appeal and set aside the member's decision of 22 September 2014, refusing the appellant's set aside application. 14. S 81 of the Act allows an Appeal Panel to not only set aside the decision under appeal but also to substitute another decision for it. (S81 (1) (d). For the reasons given above, we substitute a decision to uphold the set aside application made by the appellant. 15. Clause 9 (1) (b) of the NCAT Regulations provides that the Tribunal may order that a decision be set aside 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. 16. We accept that this is the case in the circumstances of this matter and accordingly substitute a decision to set aside the substantive decision made on 26 August 2014. 17. Accordingly we make the following orders 1. The appeal is allowed 2. The set aside decision made on 22 September 2014 is set aside 3. The substantive decision made on 26 August 2014 is set aside 4. The proceedings are remitted to the Tribunal for hearing 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: 24 June 2015