Civil and Administrative Tribunal New South Wales Medium Neutral Citation: 203 Castlereagh St Pty Ltd v Skybloo Holdings Pty Ltd [2016] NSWCATAP 172 Hearing dates: 18 May 2016 Date of orders: 27 July 2016 Decision date: 27 July 2016 Jurisdiction: Appeal Panel Before: Cowdroy ADCJ, Principal Member P Molony, Senior Member Decision: (1) The decisions under appeal are set aside. (2) The proceedings be remitted to the Tribunal for hearing by Senior Member Bluth. (3) Costs reserved. Catchwords: Appeal for hearing on the papers – requirements of s 50 of the Civil and Administrative Tribunal Act 2013 with respect to hearing on papers – Tribunal failed to consider matters required by s 50 – appeal allowed Legislation Cited: Civil and Administrative Tribunal Act 2013 Retail Leases Act 1994 Civil and Administrative Tribunal Regulation 2013 Cases Cited: 203 Castlereagh Street Pty Ltd v Skybloo Holdings (No 2) [2015] NSWCATAP 170 House v The King (1936) 55 CLR 499 Jones v National Coal Board [1957] 2QB 55 Stead v State Government Insurance Commission (1986) 161 CLR 141 Re Refugee Review Tribunal & Anor; ex parte AAla [2000] HCA 57 Category: Principal judgment Parties: Appellant – 203 Castlereagh St Pty Ltd Respondent – Skybloo Holdings Pty Ltd Representation: Counsel: Appellant – Mr Bailey Respondent – Mr Salama Solicitors: Respondent – Osborne's Lawyers Agents Appellant – The Retails Leases Doctor File Number(s): AP 16/03873 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: (1) 9 December 2015 (2) 19 January 2016 Before: (1) Principal Member Harrowell(2) Principal Member Patten File Number(s): (1) COM 15/62608 (2) COM 15/28848, COM 15/54973 and COM 15/58609 Decisions under appeal REASONS FOR DECISION The appeals 1. 203 Castlereagh St Pty Ltd (203) has filed two appeals against decisions of the Consumer and Commercial Division made in proceedings under the Retail Leases Act 1994 (the RL Act) between it, as lessee, and Skybloo Holdings Pty Ltd (Skybloo), as lessor, with respect to retail shop premises in Homebush Bay. Those decisions are: * An interlocutory decision made 9 December 2015 dismissing the Appellant application to set aside directions made on 15 November 2015 that the proceedings in COM15/28848 and COM15/54973 remain listed for hearing on the papers (the first appeal). * A decision of the Tribunal made on 19 January 2016, following a hearing on the papers, determining the substantive applications in COM 15/28848 and COM 15/58609, in which the 203 was the applicant, and COM 15/54973, in which the Skybloo was the respondent (the second appeal). In both appeals 203 seeks leave to appeal. 1. The making of the decision in the second appeal has effectively made the first appeal redundant. At the heart of both appeals is the question of whether 203 was denied procedural fairness by the Tribunal when it determined the applications on the papers, without a hearing. History of the proceedings 1. The proceedings between the parties have a lengthy and complex history. It is necessary to traverse some of that history in detail in order to appreciate the issues raised in this appeal. 2. 203 filed its application in COM15/28848 on 20 April 2015. 203 was represented by an agent, Mr Soltan from the Retail Leases Doctor .203's application alleged that Skybloo had unlawfully called up a bank guarantee of $18,054.04, and wrongly paid it into its solicitor's trust account, rather than treating it as a security bond and paying it to the director general as required by the RL Act. 203 sought a refund of the bank guarantee plus interest, or alternately damages for the wrongful calling up of the guarantee. Secondly, 203 sought a refund of all amounts unlawfully invoiced and paid on account of land tax since 7 June 2011. 3. At the time 203 filed its application in COM15/28848 an Appeal Panel of this Tribunal had reserved its decision in 203's appeal against a decision of the Tribunal made on 22 July 2014. In short, that decision included: * A declaration that 203 had failed to exercise an option to enter into a new lease with respect to the premises at Homebush Bay; and * An order that 203 give immediate possession of the premises to Skybloo. 1. The appeal against that decision was heard on 15 and 16 December 2014, and reserved. The Appeal Panel determined the appeal on 12 August 2015, when it affirmed the decision of the Tribunal made on 22 July 2014: see 203 Castlereagh Street Pty Ltd v Skybloo Holdings (No 2) [2015] NSWCATAP 170. 2. 203's application in COM15/28848 was first listed for directions before the Tribunal on 5 May 2015 when it was adjourned for hearing to a date to be fixed after 30 June 2015. While the Tribunal record does not show it, the parties were in agreement that there was no appearance by Skybloo at that first directions hearing. 3. The application was then listed for hearing on 7 July 2015. On 1 July 2013 203 filed documents and a witness statement in support. 4. On 7 July 2013 the application came before Senior Member Bluth. Both parties were represented; 203 by its agent Mr Soltan, Skybloo by its solicitor Mr Valmas. There is a transcript of that hearing taken from poor quality recording. A perusal of that transcript indicates that Senior Member Bluth in the course of the hearing established the following, by directing the parties to the issues and considering the evidence and oral submissions they relied on: * That there were related proceedings under consideration by an Appeal Panel and the Tribunal; * That there was a limitation question with respect to 203's claim for a refund of land tax paid going back to 2003; * That Skybloo had made no demand of 203 before calling on the bank guarantee; * That the bank guarantee had been called on to meet various costs associated with the eviction of 203 from the premises. It is to be noted that Senior Member Bluth spent some time asking about the nature and extent of those expenses. * That 203 challenged the eviction costs which Skyboo wished to claim submitting that many of them were unnecessary and that the invoices had not previously been given to 203. * The basis on which 203 was claiming interest. 1. At the urging of Skybloo, Senior Member Bluth decided to refer the matter for mediation, with a next listing date of 11 August 2015. In response to a query from Mr Soltan as to whether the matter would be listed before him, Senior Member Bluth said, "I'll try and make it before me." 2. The next hearing took place on 4 August 2015, rather than 11 August. Again there is a transcript taken from poor quality audio to which we have had regard. The hearing was before Senior Member Bluth. 3. At the commencement of the hearing Mr Valmas, for Skybloo, informed the Tribunal that mediation had failed. Mr Valmas then handed up some proposed orders which he told the Tribunal represented a "concession by the respondent" (Skybloo) (T2.33). He specifically said that, "they are not by consent" (T2.35). The Tribunal then heard submissions from both sides with respect to the claims made in the application, including the basis on which 203 claimed interest. There was also discussion as to whether it was possible for the Tribunal to properly determine all the issues, especially those relating to damages for calling on the bank guarantee and costs, until such time as the Appeal Panel delivered its decision on the appeal against the orders made by the Tribunal on 22 July 2014. 4. At T14.21 Senior Member Bluth said: I'm just … I don't know if I can dispose of this matter today, unfortunately. I think we're going to have to stand it over. But it would be helpful if you could resolve some of these issues and maybe we just deal with the costs issue a little later. … 1. There then ensued some discussion about with respect orders 1 and 2 proposed by Skybloo, which Senior Member Bluth indicated he was minded to make, subject to an adjustment of the land tax amount. He proposed to stand over the balance of 203's application pending the determination of the Appeal Panel. 2. Mr Valmas then asked that the matter be stood down so that the parties could have some discussions. A short adjournment ensued. 3. When the parties returned they were in agreement about the form of order 1, which was concerned with a refund of land tax paid by 203. 4. Order 2, which was concerned with the payment of the amount of the bank guarantee to the Retail Tenancy Unit, was the subject of some debate. Skybloo wanted it noted that it was agreeing to such a payment without admission of liability. Ultimately, the Tribunal proposed a form of wording, involving Skybloo not admitting that there was a lease in existence, to which both parties agreed. 5. The Tribunal then made the following orders: 1. The respondent is to refund the applicant the amount of $8458.67 on account of land tax inclusive of interest within 14 days as directed by the applicant. 2. The respondent is to lodge the amount of $18,054.04 with the Retail Tenancy Unit on account of security bond within 14 days without admission by the respondent that a lease is in existence between the parties. 3. The issues of default costs of the respondent, damages to the applicant as a result of calling up the bank guarantee and costs of this application are adjourned. 2. Liberty to either party to restore to the list on 7 days' notice once the Appeal Panel has given its determination in AP14/46529, 1. Senior Member Bluth then made "a default listing for direction" on 13 October 2015 (T22.39). In response to a query from Mr Soltan, he said, "I'm sitting on that day. That's why I determined it" (T22.46). 2. On 12 August 2015 the decision of the Appeal Panel in 203 Castlereagh Street Pty Ltd v Skybloo Holdings (No 2) was published: [2015] NSWCATAP 170. It dismissed 203's appeal and found that 203 had not exercised its option to take a further lease of the Homebush Bay property. 3. 203's application in COM 15/28848 was next listed before Senior Member Bluth on 1 September 2015. He ascertained that following the decision of the Appeal Panel there was an issue about how the rental bond be applied. At T3.37 the following interchange occurred: Senior Member: … So the argument is over how we apply the rental bond and anything else. Is that right? Mr Valmas: Yes. Senior Member: So is that something that should be heard on the papers? 1. The reply from Mr Valmas is not clear and is labelled "indistinct" on the transcript. It does not appear to have addressed the question as to the suitability of the matter to be determined on the papers. There then ensued discussion in which the making of a timetable for submissions was the primary focus of all involved. Mr Soltan did bring to the attention of the Tribunal that 203 had an outstanding claim for damages for the wrongful calling of the bank guarantee. Having obtained the parties agreement to a timetable for the filing of material and submissions, the following interchange took place (T8.16) Senior Member: That's fine. Okay. And then the matter will be decided on the papers. Mr Soltan: Unless you decide (indistinct) … (indistinct). Senior Member: I'll bring it back if I have any issues. Three weeks is fine. Thank you very much. Three weeks for respondent. Three weeks for the applicant to reply. Okay. Thank you very much. 1. It seems clear from the above that Senior Member Bluth intended to make the decision on the papers himself, given his assurance that he would bring it back if he had, "any issues". The notice of orders made by the Tribunal on that day read: 1. By Determination of member, on 01 September 2015 the hearing was adjourned to a date to be fixed by the Registrar. 2. By consent, the respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the respondent intends to rely at the hearing by 22-Sep-2015. 3. By consent, the applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 13-Oct-2015. IMPORTANT NOTE: For the purpose of these directions "document" means: - Accounts or receipts And all documents must be legible and in colour (if the original is in colour). 4. The documents provided by each party must be placed in a folder, each page must be numbered to provide easy identification by all concerned at the hearing. Folders provided to the Tribunal and to the other party(ies) must be identical and in the same order. The folder(s) should be marked with the name of the party and include: - an index - =a chronology of significant events - all documents required by these directions And all documents must be legible and in colour (if the original is in colour). 5. If a party requires an extension of time to comply with these directions, an application should be made in writing to the Registrar no later than the day prior to the date of submission of documents to the Tribunal. 6. A failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing, unless leave is granted to do so. 7. All evidence from a party's witness(es) in support of that party(ies) must be in the form of a statement, statutory declaration, affidavit or expert report as appropriate. 8. By consent, once submissions received the decision is reserved to be decided on the papers without further hearing. A separate written notice of the new hearing date will be sent to you in the near future. 1. The next event was a directions hearing listed on 23 September 2015 before Principal Member Harrowell, apparently at his direction. Once again, there is a transcript taken from poor quality audio. At the commencement of the hearing the Principal Member explained (T2,24): Previously Senior Member Bluth made some directions with the filing and service of documents and evidence, the matter came before me because the notation was that decision was to be made on the papers and it didn't seem that directions had been made for the filing and service of submissions. 1. Mr Valmas then sought to reply, indicating that the respondent's documents, including submission, had been filed the day before. The Principal Member interjected, asking whether he was correct in thinking that Senior Member Bluth was not part-heard in the matter. The following interchange then occurred (T3.16) MR SOLTAN: Member Bluth is part heard in this matter. PRINCIPAL MEMBER: Do you agree with that? Do you agree that Senior Member Bluth is part heard? MR VALMAS: Part heard in the sense that the application being commenced and heard before him, yes. 1. The Principal Member then went on to query exactly what Senior Member Bluth had decided. With respect to orders 1 and 2 made on 4 August 2015, the following discussion occurred T4.26): PRINCIPAL MEMBER: Were they made by consent? MR VALMAS: They were made following the discussion by the parties - there was no final hearing on those orders. PRINCIPAL MEMBER: Did he take evidence or conduct a hearing to determine what orders should be made, or did the parties simply have a discussion and then those orders were effectively made as an output of those discussions? MR VALMAS: I think it was simply by way of discussion and the orders following the discussion. PRINCIPAL MEMBER: That would suggest that he wasn't part heard, that he wasn't asked to rule on an issue between the parties. MR VALMAS: No, he wasn't asked to rule on an issue" between the parties. Those orders have been performed and they are not the subject of any – 1. Mr Soltan then interjected, speaking for the first time with respect to the nature of the orders made on 4 August 2015 (T4.45) - MR SOLTAN: Can I just point – PRINCIPAL MEMBER: No, no, you keep saying that, Mr Soltan. Please, it doesn't help me decide anything. On the face of it, what the respondent is saying to me is that orders were made following a discussion, but he didn't take evidence or make a ruling or publish reasons in connection with it. That's not part heard. That just means he heard it on the day and did some work on the application, which resolved some of the issues following a discussion between the parties. Now the rest of it has been adjourned, and I appreciate people were waiting on a decision from the Appeal Panel on a different case so as to inform them about, presumably, their rights and so forth in these circumstances. It seems to me that Member Bluth is not part heard in those circumstances. MR SOLTAN: No, he is part heard. If you look at (indistinct) that was given … (indistinct) … the matter was actually listed for hearing – PRINCIPAL MEMBER: It doesn't matter whether it was listed for hearing. I'm interested in -- MR SOLTAN: (Indistinct) I took him through the witness statements. I took him through the invoices. There were extensive discussions on that day, so that matter is actually part heard. If you look at the orders there were some issue that he did not want to deal with until the Appeal Panel, make the decision – PRINCIPAL MEMBER: Mr Soltan, that just not correct. I've just got the handwritten documents which I've just found her. They are consent orders. They are short minutes of consent orders, which is what he made. Now, if that's right, he hasn't heard evidence at all. He might have run through the material, by he's not part heard at all. He hasn't embarked on a hearing. 1. It is apposite to observe, that whether or not the Tribunal has made consent orders is not a reliable indicator of whether a hearing has commenced and a member is part heard. Parties settling, and the Tribunal making consent orders after a hearing has commenced, is a common phenomenon. 2. Mr Soltan continued to argue that the matter was part heard, with the Principal Member overruling him. At T8.45 Mr Soltan sought to rely on the transcript of 7 July 2015. The Principal Member told him(T8.45) – PRINCIPAL MEMBER: I'm not wasting time on transcript, Mr Soltan. We're going to get on with this case. 1. In our view, had the Principal Member considered the transcripts it would have been plain to him that on 4 August 2015 Senior Member Bluth heard arguments and submissions with respect to concessions offered by Skybloo, which were not agreed or consented to by 203. After hearing from both parties he had indicated what orders he was minded to make, which orders would finally resolve some of the issues between the parties. As a result of those indications the parties then agreed a form of order. In those circumstances Senior Member Bluth was plainly part heard, whether or not he recorded himself as such. 2. Having found that matter was not part heard the Principal Member then turned his attention to how the matter was to be determined. At 10.1 the following interchange commenced - PRINCIPAL MEMBER: I want to come to the issue of determining it on the papers and I just wanted to clarify this. Does anybody object to the matter being determined on the papers? MR VALMAS: There's no objection, Principal Member. PRINCIPAL MEMBER: Anybody object? MR SOLTAN: Oh, well, Member -- PRINCIPAL MEMBER: No, no, do you object to the matter being determined on the papers - "Yes" or "No"? MR SOLTAN: Well, can I say this, Member: I've only been given - look, I've only been given this on my way here. This was provided to me last (indistinct) and having done (indistinct) with him, you look at some (indistinct) -- 1. In an affidavit filed in the appeal with leave, Mr Soltan explained that he had that morning received three affidavits from Skybloo, which outlined its significant claim for damages relating to eviction costs. This was what Mr Soltan was referring, when he told the Principal Member that he had "just been given this." The conversation continued., PRINCIPAL MEMBER: I'm just trying to save time here, Mr Soltan. MR SOLTAN: Yes, I'm not -- PRINCIPAL MEMBER: No, no, let's just be blunt about this. MR SOLTAN: I -- PRINCIPAL MEMBER: No, no, listen to me, please. I don't want to waste lots of parties' time. I appreciate you've had a lot of time taken up waiting for this matter to get on. I don't want to waste time unnecessarily. Section 50(3) of the NCAT Act prescribes that the hearings - it says: The Tribunal may make an order dispensing with the hearing if satisfied the issues can be adequately determined in the absence of the parties by considering any written submissions or any other document. Now, two issues that I saw in relation to these directions, and because the matter was referred to me to assign it to a person to make the determination on the papers: (a), whether or not the requirements had been met under subsection (3) of section 50, which requires the parties to make submissions, and be afforded an opportunity to make submissions about an order dispensing should be made. On the other hand, if it's made by consent - and it seemed that it was by consent - that it would be determined on the papers, then that's fine, we can simply record that consent. But if you're saying you're not consenting to an order on the papers, then we'll let you make submissions about that, whether it should be, and then the Tribunal will make a ruling on it. Because it might not have a hearing on it, but you've got to be given a chance to make submissions - might determine that it will be dealt with on the papers anyway. But I am trying to save the parties' money, because it does seem to me what you're submitting at the moment seems to be wasting time and effort of the parties, because I had thought what was lacking was actually a formal order in the directions of the Member for the matter to be determined on the papers and I was concerned, in allocating this matter to be determined on the papers, that somebody who actually determines it on the papers says, "Hang on, nobody made a formal order under section 50(2) and the direction Member Bluth made does not record appropriately the consent." MR SOLTAN: He made an order that the matter be -- PRINCIPAL MEMBER: Well, did you oppose that? MR SOLTAN: -- dealt with by paper. Look, having seen these materials today -- PRINCIPAL MEMBER: No, no, we're going backwards. Did you oppose the order, or did you consent to it? If it's an error that's been made, then we can just correct that, make the order by consent to have the matter determined on the papers and get on with it. MR SOLTAN: Yes. PRINCIPAL MEMBER: Are you prepared to consent or not? Let me just ask your opponent for the moment. Was there consent to the matter being dealt with on the papers? MR VALMAS: I thought it had been by consent and the actual order on 1 September (indistinct) copy says, "By consent, once submissions are received the decision reserved" – that was my misunderstanding of the order, in which case – I see, right. Okay. MR VALMAS: If my opponent wishes to vacate that order, then he should make a separate application. PRINCIPAL MEMBER: Right. Then, in relation to submissions, the other thing that I saw in relation to this, though, is that no time frame had been imposed in connection with the filing and service of submissions. Everything seemed to deal with the preparation of documents and witness statements, and I appreciate that it says once submissions are received, but there was no date for the filing and service of submissions. MR VALMAS: Principal Member, I think the documents we filed - the documents that were filed yesterday – included a section for the respondent's submissions. PRINCIPAL MEMBER: I see. MR VALMAS: It may be that following the documents served by the applicant there may be an exchange of further submissions which might cure any gaps, as it were. PRINCIPAL MEMBER: Well, then, what I was going to simply do is this -- MR SOLTAN: Yes -- PRINCIPAL MEMBER: Just a moment. MR SOLTAN: -- but -- PRINCIPAL MEMBER: No, no, let's just get the point over here. Have the respondents already filed their submissions? 1. It is apparent that Mr Soltan wished to be heard with respect to the issue of whether or not the matter should be determined on the papers, but was not allowed to express his views. The Tribunal went on to explore what further materials and submissions each party needed to file, during which Mr Soltan again sought to raise the issue of whether the matter should be heard on the papers. Once again, the poor quality audio does not assist in determining exactly what occurred. The transcript at T15.17 reads – MR SOLTAN: Can I say this, Member: it won't be an issue that (indistinct) ... (indistinct) I believe that even the witness statement is just on paper. PRINCIPAL MEMBER: If you want to - the parties agreed to that previously, okay, so I don't know if there are credit issues that are embedded in this or whatever, but perhaps one of the reasons, the parties consented. What Mr Valmas said to me, and he drew to my attention what the order says, that is, the parties consented to the matter being dealt with on the papers. If the Member determines it should be dealt with on the papers, they will list it and bring evidence along, but otherwise they will determine it on the papers. If you say it's not appropriate, then you need, when the evidence has been disclosed, if you want to make some application you can do it. MR SOLTAN: Okay, but -- PRINCIPAL MEMBER: Mr Soltan, this is about wasting time, isn't it, and making life unnecessarily complicated. MR SOLTAN: Yes -- PRINCIPAL MEMBER: I don't know what the issues are. You haven't put your evidence on in reply, so I can't possibly adjudicate today on whether or not -- MR SOLTAN: No that's (indistinct). If you give me liberty to list the matter for - - PRINCIPAL MEMBER: No I'm not giving liberty to list anything. If you have an application to vacate an earlier order, you can do it. We just don't have directions hearings for the sake of them. They're unnecessary. The position is this: everybody has agreed the matter gets determined on the papers, so that's what's going to happen unless somebody puts forward a cogent reason or makes an argument or makes an application why it shouldn't be determined on the papers. It seems to me to be a reasonable approach and Mr Valmas I think was advocating that before. MR VALMAS: I mentioned the fact that if they had an issue with the -- PRINCIPAL MEMBER: You could make an application. MR VALMAS: -- order, he could make the application. PRINCIPAL MEMBER: We'll deal with that if and when it arises. Now, in terms of, then, of the issues, because I do want to work out how long this is going to take somebody to deal with - can somebody tell me in very short compass what really the Tribunal is going to have to resolve? Do you want to go first, Mr Valmas, since you got to put on your evidence first? MR VALMAS: Well, the issues I think that were mentioned in order 3 of 4 August was the default costs of the respondent, costs and expenses incurred by the landlord in taking possession following the expiry of the lease. The second point is damages to the applicant and as a result of calling up the bank guarantee that relates to any loss that the applicant says he suffered by the drawing of the bank guarantee, the cashing in of the bank guarantee. Then the other issue was the costs of this application (indistinct) as the tenant made application for costs – he just said were thrown away, so (indistinct). PRINCIPAL MEMBER: Now, in -- MR VALMAS: There's one other final issue that should be mentioned. It was raised that there should be a final set of accounts or a final accounting, because that issue had not been resolved. That was flagged probably on 1 September 2015. There was no issue raised objecting to that. 1. Mr Soltan then pointed out to the Tribunal that remaining issue in 203's application related to the calling of the bank guarantee, and did not seek a ruling with respect to eviction costs, which was a matter raised by Skybloo. He correctly pointed out that there was no application from Skybloo seeking its eviction costs. The Principal Member then clarified that Mr Soltan was forecasting a submission that the Tribunal had no jurisdiction to entertain the claim for eviction costs in the absence of an application. 2. After some discussion the Principal Member indicated he would give Skybloo leave to file an application seeking orders in its favour, with the evidence and submission in this case, being evidence and submissions in that case: (see T20.41-47). Importantly, the Principal Member said at T21.1: "The new application is also referred for determination on the papers with this application." He did not seek the parties' views with respect to that order. 3. In subsequent discussions regarding how the applications were to proceed Mr Soltan twice tried to raise the issue of referring the matter to Senior Member Bluth for determination (see T24.10-17 and T24.36). This included a further offer to get transcript (T25.27) to demonstrate that the matter was part heard. The Principal Member said (T25.29) – PRINCIPAL MEMBER: You can do whatever you like with the transcript, but I'm not making further rulings on this. We're getting on with - you're getting on with this matter and I'm referring it – because there's a consent at the moment. I'm going to refer it to a hearing on the papers. Is there nothing else that you want to say? All this seems to be about member shopping, it seems to me, rather than actually about the real issue -- MR SOLTAN: No, what I -- PRINCIPAL MEMBER: But if you've got -- MR SOLTAN: Look, I put the (indistinct) submissions (indistinct) and they were read and they were discussed by Member Bluth. PRINCIPAL MEMBER: But that happens all the time. I've discussed the evidence today as well. 1. The Tribunal made the following directions on that day: 1. By Determination of member, on 23 September 2015 the hearing was adjourned to a date to be fixed by the Registrar. 2. The Tribunal notes the respondent has filed and served evidence as required by order 2 made 1/9/15 and that the bundle filed includes the respondent's submissions. 3. Order 3 made 1/9/15 is varied to require the applicant to include with its evidence any submissions, including in reply to the respondent's submissions. 4. On or before 27/10/15 the respondent is to file any submissions and evidence in reply. 5. The Tribunal notes that the applicant raises a jurisdictional issue concerning whether the Tribunal can make an award in favour of a respondent for damages and/or a money order in the applicant's application. To the extent necessary, the Tribunal gives leave to the respondent to file any application seeking orders in its favour and directs that the evidence and submissions in the present application be evidence and submission in any new application. The new application is also to be referred for determination on the papers with this application. 1. On 30 September 2015 Skybloo filed an application seeking an order that 203 pay it $27,791.13 which covered costs associated with the eviction of 203 from the Homebush Bay premises (COM 15/54973). 2. On 23 October 2015 203 filed a further application against Skybloo in which it sought among other things damages for unconscionable dealing in retaking possession, return of the bond, and damages for property lost during the eviction (COM 15/58609). 3. COM 15/54973 was listed for hearing on 11 November 2015. Both parties responded to this notice. In an email dated 3 November 2015 Mr Soltan wrote: COM 15/58609 — and also COM 15/54973 — relies on witness statements where there are conflicting evidence as to what happened. Our client will naturally be prejudiced by not being able to cross examine the Respondent as to statements tendered in proceedings. This prejudice may also extend to the Respondent. Our client therefore opposes hearing the above matter on papers and requests an oral hearing of the above matter unless the Tribunal is willing to find in favour of our client as to any conflicting evidence. It is absurd for an unconscionable conduct claim to be determined on papers and for a Tribunal member to rule which of the two witnesses is more creditable without seeing them and without affording either side the opportunity to cross examine any witness. There is no prejudice to either party because both parties were aware from the attached Notice dated 7 October 2015 that an oral hearing will take place on 11 November 2015 at 9:15am in room 12, Level 13. Our client requests that there will be an oral hearing on the above matter in accordance with the attached 7 October 2015 Notice of Hearing. 1. Following representations from both sides regarding what was to be heard when, and other issues associated with the fresh application, a Deputy Registrar of the made the following directions on 9 November 2012. 1. The Tribunal notes orders were made on 23 September 2015 including: a) Applications COM 15/28848 filed by 203 Castlereagh Street Pty Ltd (applicant) against Skybloo Holdings Pty Ltd (respondent) be listed for hearing on the papers with any application filed by the respondent; b) The respondent (Skybloo) filed an application COM 15/54973 against the applicant (cross application) on 30 September 2015 pursuant to leave granted 23 September 2015; c) By order 2 the Tribunal noted the respondent confirmed it had filed all its evidence (including in relation to any cross application); d) By order 3, the Tribunal ordered the applicant to file and serve its evidence and submissions in reply to the respondent's evidence by 13 October 2015; e) The applicant, without leave and without any application to extend time, filed: i. A further application COM 15/58609 on 23 October 2015 seeking additional orders in relation to the same subject matter of application COM 15/28848, an application that might constitute an abuse of process; and ii. Filed evidence on 3 November 2015 (Late Evidence). 2. The Tribunal directs that applications COM 15/28848 and COM 15/54973 remain listed for hearing on the papers. 3. The hearing of application COM 15/58609 on 11 November 2015 is vacated and is to be listed for directions on a date to be advised by the Registrar. 4. In the absence of an application to extend the time for the applicant to file and serve evidence until 3 November 2015, the Tribunal directs the papers be referred to the Presiding Member appointed to determine the proceedings on the papers to consider: a) Whether the Late Evidence may be relied upon; and b) If yes, whether the hearing should be vacated and listed for directions to consider, inter alia: I. What further directions should be made; ii. Whether the applicant's claim should be dismissed under clause 10 of Schedule 4 of the Civil and Administrative Tribunal Act, 2013 (NCAT Act) iii. Whether, by reasons of any adjournment, the applicant should pay the costs thrown away, including on an indemnity basis c) If the hearing is not vacated, to determine application COM 15/28848 and COM 15/54973. 1. On 16 November 2015 203 filed an application to set aside orders 2 and 4(c) above (COM 15/62608). The application was made under clause 9 of the Civil and Administrative Tribunal Regulation 2013. The orders sought to be set aside were those providing for a hearing on the papers. It was apparent from that application that 203 was strongly pressing for hearing at which witnesses could be cross-examined and oral submissions made. It it's submission 203 argued that on 23 September 2015, the Tribunal had no jurisdiction with respect to COM 15/54937 because it was yet to be filed. 2. The application to set aside was determined in writing by Principal Member Harrowell on 9 December 2015. This decision is the subject of the first appeal. The Tribunal dismissed the application to set aside. Having referred to the orders made on 23 September 2015 the Tribunal explained, at [21] – 21 The orders made by the Tribunal on 23 September 2015 were to facilitate the hearing of both matters, including the prospective new claim which was subsequently filed and became application COM 15/54973. The orders made by the Tribunal were consistent with the guiding principle for the just, quick and cheap resolution of the real issues in dispute as required by s 36 of the NCAT Act. The orders made were consistent with s38 of the NCAT Act which requires the Tribunal to act with as little formality as the circumstances permit and without regard to technicalities of legal form. While the orders were, in part, conditional upon the respondent filing the new application, nonetheless they were orders which the Tribunal had power to make in connection with the preparation of the application and counter claims for resolution by the Tribunal. 22 The orders made on 23 September 2015 were not made in the absence of the parties and, accordingly there is no power to set aside the orders pursuant to clause 9 of the Regulation. Further, even if clause 9 was applicable, the application to set aside the orders made 23 September 2015 is out of time, being made more than 7 days after the orders were made: see clause 9(3). 23 In relation to the directions made 9 November 2015, these orders were not orders dispensing the hearing of application COM 15/54973. Rather, they simply confirmed the earlier orders made on 23 September 2015 directing that the matter be determined on the papers. Accordingly, this second ground for setting aside the orders made on 9 November 2015 fails. 24 Finally, it should be noted that the applicant, without leave, filed a third application (COM 15/58609) which it sought to have heard with the other two applications which were the subject of directions made on 23 September 2015 together with further evidence after the due date. Directions were made to allow the question of the late service of the evidence to be dealt with by the Member dealing with applications COM 15/28848 and COM 15/549763. 25 However, there was no leave granted to file application COM 15/58609. Prima facie, this application appears to be an abuse of process in seeking to agitate matters which should properly have been brought in application COM 15/28848. Whether or not this is the case, is a matter that will need to be considered at a later time. However, this application had been erroneously listed by the Registry for hearing "on the papers" with applications COM 15/28848 and COM 15/54973, no order having been made for this to occur nor any order had been made giving leave for this further application to be filed at all. 26 It was for these reasons that application COM 15/58609, being the second application brought by the applicant against the respondent, was to be listed for directions at a later time. 27 Having regard to the above, it is clear that there is no basis to set aside the orders made on 23 September 2015 under clause 9 of the Regulation or any other basis because the parties were in attendance at that hearing and had an opportunity to adequately put their submissions on the issue of dispensing with a hearing. 28 In relation to the challenge to the directions made 9 November 2015, the applicant misconceives the effect of the orders made on that day and again no basis is shown for those orders to be set aside. 1. On 19 January 2016 the Tribunal published the decision of Principal Member Patten, made on the papers, with respect to all three applications before the Tribunal: COM 15/28848, COM 15/54973 and COM 15/58609. This decision is the subject of the second appeal. 2. The Tribunal noted at [5] that there was an order that "matter be determined on the papers", without defining what that matter was. 3. The Tribunal did not consider whether any of the three applications before it satisfied the requirements of s 50 the CAT Act for dispensing with a hearing. With respect to COM 15/58609, the Tribunal said: While it may be that as they were commenced without leave proceedings COM 15/58609 should be summarily dismissed as an abuse of process it seems to me that consistently with s 36 of the Civil and Administrative Tribunal Act I should consider the relief sought in light of the evidence already filed and the submissions of the parties. In my opinion this can be done without injustice to Skybloo. 1. The Tribunal dismissed the applications made in 203 (COM 15/28848 and COM 15/58609), with no order as to costs, On Skybloo's application (COM 15/54973) the Tribunal ordered that Skybloo was entitled to the security deposit and ordered 203 to pay Skybloo $21,620.31 forthwith. Findings 1. Section 50 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) (the CAT Act) relevantly provides: "A hearing is required for proceedings in the Tribunal except: … If the Tribunal makes an order under this section dispensing with a hearing …" (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing 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." 1. In these proceedings, as has been considered in the analysis above, it is apparent that when the initial determination was made for the Tribunal hearing to be conducted on the papers on 1 September 2015, the evidence then indicated that the issues were not unduly complex. However subsequently Skybloo filed its application foreshadowed on 23 September. The respondent also filed three affidavits in support of its claim, and annexed to at least one of the affidavits was a substantial amount of documentation. 2. Before the directions hearing on 23 September Mr Soltan, a lay advocate, who appeared for 203 (i.e. the appellant), indicated that he had only just been provided with the documentation. 3. Nevertheless, the Tribunal member directed that the matters be determined on the papers, and did not hear any submissions from the appellant on the issue of whether the matter should be determined on the papers. 4. By his emails in November to the Registrar, it was made abundantly clear by Mr Soltan that his client did not agree to the proceedings being determined on the papers. 5. Despite his objection to such course the Tribunal proceeded to hear and determine the matter on the papers: see 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Ltd delivered on 19 January 2016. Nowhere in such decision is there any reference to the question of whether the proceedings were to be determined on the papers and whether the appellant agreed to such course. The reasons for decision proceed directly to the issues between the parties. 6. In the affidavit filed by Mr Soltan in support of this appeal, he states clearly that objected to such a course. His objection reflects the comments he made in his emails to the Registrar in early November 2015 and his submissions made to the Tribunal on a number of occasions. 7. It has been a well-established principle that where there has been a denial of natural justice which affects the entitlement of a party to make submissions on an issue of fact, a denial of natural justice occurs. Further, if that 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 to the outcome where the denial relates to the opportunity of making submissions on a question of law: see Stead v State Government insurance Commission (1986) 161 CLR 141. 8. The High Court, in that decision, also determined that an appellant need only show that the denial of natural justice deprived him of the possibility of a successful outcome. To negate that possibility, it is necessary for the appellate court to find that a properly conducted trial could not possibly have produced a different result. The relevant portions of the decision are contained at pp144-5 of the decision. 9. The High Court in Stead referred to the decision of Jones v National Coal Board [1957] 2QB 55 at 67 where the Court of Appeal (UK) (Denning, Romer and Parker LJJ) said: "There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge… No cause is lost until the judge has found it so: and he cannot find it without a fair trial, nor can we affirm it". 1. Such principle has been restated by the High Court of Australia: see Re Refugee Review Tribunal & Anor; ex parte AAla [2000] HCA 57; 2000 Vol 176 ALR 219. 2. The breach of natural justice which has occurred in this case arises because the appellant was denied the opportunity of making submissions in a matter which could have had a profound effect upon the hearing namely whether or not the appellant agreed to dispensing with a public hearing. Had the public hearing taken place, cross examination would have been made by the appellant of the respondent's witnesses and submissions could have been made. It is quite impossible for the Appeal Panel to be satisfied that such a course would have made no difference to the ultimate result. 3. There has, in effect been a failure of the Tribunal to observe the requirements of s50(3) of the Act, namely to afford the appellant an opportunity to make submissions concerning the proposed order. 4. The Appeal Panel also finds that the Directions made for the hearing of the proceedings on the papers should not have been made, in circumstances where the proceedings were clearly part-heard before another Tribunal member. In effect, that Tribunal member should have been permitted to continue with the hearing until its completion. 5. In the circumstances the Appeal Panel finds that the decisions of the Tribunal in determining to hold a hearing on the papers constituted a wrongful exercise of discretion. It follows that the Tribunal member and the Registrar, having incorrectly applied legal principle, have committed an error of law: see House v The King (1936) 55 CLR 499 at 504-5. The Appellate Panel will accordingly grant the necessary relief with respect to both appeals. Orders 1. The decisions under appeal are set aside. 2. The proceedings be remitted to the Tribunal for hearing by Senior Member Bluth. 3. Costs reserved. ******* 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: 27 July 2016