Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Li v Ward Building Construction Pty Ltd [2016] NSWCATAP 104 Hearing dates: On the papers Date of orders: 12 May 2016 Decision date: 12 May 2016 Jurisdiction: Appeal Panel Before: Boland AM ADCJ, Deputy President Hennessy LCM, Deputy President Decision: 1. The matter is to be determined without a hearing. 2. The appellant's application to vary or set aside the Appeal Panel's decision of 9 February 2016 is dismissed. Catchwords: STATUTORY INTERPRETATION – meaning of "decision … made in the absence of a party" in clause 9(1)(b) of the Civil and Administrative Tribunal Regulation 2013 - application to vary or set aside a decision – whether a reserved decision can be said to be made in the absence of a party Legislation Cited: Civil and Administrative Tribunal Regulation 2013 (NSW), cl 9(1)(b), cl 9(5) Civil and Administrative Tribunal Act 2013 (NSW), s 32(3)(a), s 50(1)(c), s 56 Category: Procedural and other rulings Parties: Bo Li (Appellant) Ward Building Construction Pty Ltd (Respondent) Representation: B Li (self-represented) D Y Hua (Managing Director Ward Building Construction Pty Ltd) (Respondent) File Number(s): AP 16/11002 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2015] NSWCAT Date of Decision: 10 August 2015 Before: S de Jersey, General Member File Number(s): HB 14/49405 REASON FOR DECISION Overview 1. On 17 November 2015 the Appeal Panel heard an appeal made by Mr Li from a decision of the Consumer and Commercial Division of the Tribunal. Mr Li attended the hearing and made submissions. The Appeal Panel reserved its decision and gave the parties written reasons on 9 February 2016. Mr Li has applied the Appeal Panel (differently constituted) to vary that decision. 2. Mr Li's application is made under clause 9(1)(b) of the Civil and Administrative Tribunal Regulation 2013 (NSW) (NCAT Regulation). That provision allows the Tribunal, which includes the Appeal Panel, to set aside or vary its 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. 1. The basis for Mr Li's application is that he was absent when the decision was made. 2. We have refused to vary or set aside the Appeal Panel's decision for two reasons. First, it is based on a misunderstanding of the meaning of the words "decision … made in the absence of a party". Second, even if we are wrong about that, we are not satisfied that Mr Li's absence when the decision was made has resulted in his case not being adequately put to the Tribunal. 3. We have dispensed with a hearing and determined this application on the papers: Civil and Administrative Tribunal Act 2013 (NSW), s 50(1)(c). Meaning of "decision … made in the absence of a party" 1. The Tribunal may reserve its decision in relation to any proceeding: Civil and Administrative Tribunal Act 2013 (NSW), s 56. Reserving a decision means that instead of giving its reasons at the end of the hearing, the Appeal Panel gives the decision and the written reasons to the parties later. A decision determining an internal appeal takes effect on the date on which it is given or such later date as may be specified in the decision: NCAT Act, s 61. The date of decision appears on the front cover sheet of the reasons for decision. That is the date that the decision is made available to the parties. 2. The reference to a decision being made in the absence of a party in clause 9(1)(b) of the NCAT Regulation, is a reference to a decision being made at the end of a hearing where one party has not attended. It is not a reference to the Tribunal reserving its decision and giving a decision and written reasons later. That is because reserved decisions are made in private and no party will ever be present at the time the decision is made. Was Mr Li's case adequately put to the Tribunal? 1. If we are wrong in the conclusion we have reached about the meaning of the phrase "decision … made in the absence of a party", we would still not set aside or vary the Appeal Panel's decision. Mr Li attended the appeal hearing and made submissions. His absence at the time the decision was made in private by the Appeal Panel did not result in his case not being adequately put to the Appeal Panel. Meaning of clause 9(5) of the NCAT Regulation 1. The respondent, Ward Building Construction Pty Ltd, submitted that clause 9(5) expressly forbids the appellant from lodging an application to vary or set aside a decision of the Appeal Panel. That provision states that: (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. 1. This provision does not apply to the circumstances of this case. 2. A party cannot apply for a decision to be varied or set aside if that party or another party has lodged an internal appeal. Neither party is entitled to lodge an internal appeal from a decision of the Appeal Panel so that part of the provision cannot apply to this case: NCAT Act, s 32(3)(a). A party cannot apply for a decision to be varied or set aside if that party or another party has lodged an appeal to a court or applied to the court for judicial review. Neither party has appealed to a court or applied for judicial review of the Appeal Panel's decision so that part of the provision cannot apply to this case. Order 1. The matter is to be determined without a hearing. 2. The appellant's application to vary or set aside the Appeal Panel's decision of 9 February 2016 is dismissed. ********** 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. 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