Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Waters v Chai [2016] NSWCATAP 248 Hearing dates: 14 September 2016 Date of orders: 17 November 2016 Decision date: 17 November 2016 Jurisdiction: Appeal Panel Before: R Seiden SC, Principal Member DAC Robertson, Senior Member Decision: (1) Extend the time for the appellant to file an appeal against the decision of the Tribunal in proceedings GEN 15/66761 dated 11 January 2016 to 24 March 2016. (2) Allow the appeal against the decision of the Tribunal in proceedings GEN 15/66761 dated 11 January 2016. (3) Set aside the orders made in proceedings GEN 15/66761 on 11 January 2016. (4) Remit the proceedings to the Consumer and Commercial Division for hearing. Catchwords: APPEAL – procedural fairness – appellant failed to appear at hearing – appellant had sought adjournment – appellant had been informed Tribunal would "conciliate between the parties and make procedural directions" – unfair in those circumstances for Tribunal to determine proceedings adversely to the appellant in her absence Legislation Cited: Australia Consumer Law Civil and Administrative Tribunal Act 2015 (NSW) Civil and Administrative Tribunal Regulations 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Fair Trading Act 1987 (NSW) Sale of Goods Act 1923 (NSW) Cases Cited: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 Collins v Urban [2014] NSWCATAP 17 Italiano v Carbone [2005] NSWCA 177 Jackson v Land and Housing Corporation [2014] NSWCATAP 22 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Lam (2003) 214 CLR 1 Texts Cited: Aronson and Groves, Judicial Review of Administrative Action (5th edition 2013) Category: Principal judgment Parties: Fay Waters (Appellant) Jinfen Ruth Chai (Respondent) Representation: Solicitors: Kells Lawyers (Appellant) Jinfen Ruth Chai (Respondent in person) File Number(s): AP 16/14764 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Before: D Barnetson, General Member, on 11 January 2016 and D Harvey, General Member, on 23 February 2016 File Number(s): GEN 15/66761, GEN 16/03778 REASONS FOR DECISION 1. This is an appeal against two decisions of the Tribunal. By the first decision, delivered on 11 January 2016, the appellant was ordered to pay the respondent the sum of $10,000. By the second decision, delivered on 23 February 2016, the Tribunal dismissed an application by the appellant that the decision of 11 January 2016 be set aside pursuant to Clause 9 of the Civil and Administrative Tribunal Regulations 2013. 2. To enable an understanding of the appeal, it is appropriate to set out some detail of the procedural history. 3. Proceedings number GEN 15/66761 were commenced by the respondent on 15 December 2015. In those proceedings the respondent sought compensation in respect of the sale by the appellant to the respondent of a Rag Doll cat in 2014. The cat was delivered to the respondent in Singapore on or about 7 May 2014. The cat fell ill and ultimately was euthanized on 7 September 2014. The respondent sought an amount of $10,000 representing the cost of the kitten, transport to Singapore, and vet bills during the cat's illness. 4. On 17 December 2015 the Tribunal's Deputy Divisional Registrar determined, in response to a request by the applicant (respondent on the appeal), that the matter should be listed for telephone hearing at the first hearing only, noting: "If the matter does not finalise with the first hearing there may be a requirement to attend in person on the next occasion," and making procedural directions that: 1. The Respondent [appellant] is to provide/confirm a contact name and telephone number (preferably landline) to the Registry on or before Thursday, 7 January 2016. 2. The parties are to provide all documentation to be relied upon at the hearing to the Tribunal and the other party on or before Thursday, 7 January 2016." 1. On 17 December 2015 notice of the application and notice of hearing (on 11 January 2016) was sent by the Tribunal to the appellant's post office box. On 7 January 2016 the appellant sent an email to the Tribunal seeking an adjournment of the matter. The email was in the following terms: "I have tried to call today regarding the submission of paperwork and the telephone conference next week. I was placed on hold for up to half an hour each time. I wish to seek an extension of time for this matter as my husband has recently passed away and my children and I are grieving his loss and trying to cope with our own health and general well-being as our priority. I opened your letter of advice on Tuesday, 5 January 2016, and I have started to gather the information required as requested. If the matter can be postponed until February 2016 that would be appreciated to allow my family and I the time to grieve our beloved husband and father in a civil manner. Please acknowledge receival of my email by receipt." 1. On 8 January 2016 at 3.07 pm the Tribunal sent an email to the appellant in the following terms: "The request by the respondent [now the present appellant] for an adjournment of the hearing listed at NSW Civil and Administrative Tribunal, [Wollongong] has been refused. Reasons: The matter is listed for conciliation and hearing only. The Tribunal Member will conciliate between the parties and make procedural directions. Can you please email your contact number for the hearing as the contact number on the application is disconnected. Otherwise the matter will proceed in your absence. The matter remains listed on the above date and your attendance at the hearing is required." 1. The email discloses that the orders refusing the adjournment were made by the same Tribunal Member who subsequently heard the application on 11 January 2016. 2. On 11 January 2016 the appellant did not appear and the Tribunal made orders requiring the appellant to pay the respondent the sum of $10,000 on or before 25 January 2016. The orders set out the reasons for the decision as follows: Reasons $10,000 compensation for breach of contract. The Tribunal is satisfied, on the evidence before it, that the applicant contracted with the respondent for the purchase of a cat. This was shipped to Singapore to the respondent. Within one month the cat became ill. The respondent incurred costs associated with treatment and eventual euthanasia of the cat. The Tribunal is satisfied that the illness was present at the time of purchase. The Tribunal is satisfied that this is a breach of contract by the respondent and that the applicant is entitled to a full refund of the costs associated with the treatment of the cat. 1. The decision was posted to the appellant at her post office box. 2. The appellant prepared an application pursuant to clause 9 of the Civil and Administrative Tribunal Regulation 2013 seeking to set aside the decision on the basis that the decision was made in her absence which resulted in her case not being adequately put to the Tribunal. 3. The application was signed by the appellant and dated 18 January 2016. It was accompanied by a statutory declaration from the appellant also dated 18 January 2016. The statutory declaration stated that the information relied upon in the submissions was true and correct. The application set out in some detail the circumstances of the appellant's husband's suicide and her son's attempted suicide. The applicant stated: "(iii) I was unable to cope with even opening my mail for the whole of December 2015 and it was not until January 2016 that I was able to read your correspondence dated some few weeks earlier. After struggling to put something coherent together in reply I realised it was impossible. On 7 January 2016 I sent the email to NCAT requesting an extension." 1. The applicant continued: "(iv) On 11 January 2016 I obtained a medical certificate from Dr Dina Jamil and sent it to NCAT on the same day, 11 January 2016. I had hoped that the medical certificate I provided would have been sufficient to meet your requirements. I apologise that it was not. I find it extremely difficult to recount the event of my husband's death and my childrens' sufferance. However I have made an appointment for Dr Jamil for this coming Saturday, January 23 2016, as she is on leave until then so that I can recount these events to her once again so that she can prepare a more detailed certificate to enable me to provide the explanation as to the condition and treatment which prevented me from participating in the telephone conference." 1. The appellant also stated: "(vii) Due to my husband's suicide and overwhelming life events as described above, I was unfortunately in no fit nor proper condition emotionally or physically to even take part in the telephone conference which I was treating as being tantamount to a proper Court hearing." 1. In response to the request in the set aside application form to "describe in summary the case (evidence and arguments) you would have put to the Tribunal if you had not been absent", the appellant stated: "The cat was thoroughly examined three times by three qualified veterinarians prior to its departure from Australia and they found it fit, healthy and free from any illness. … Even the reports provided by the respondent of Dr Francis Tay dated 22 June 2014 and a report of Dr John Paul Ly dated 26 June 2014 clearly prove the test for Corona Virus and FIL/FELV were negative. This was almost 8 weeks after the cat had left Australia. … As it takes four weeks post-infection for FIP, mutation of Corona Virus to be detected, it is impossible for the cat to have been suffering from the corona virus or FIP prior to leaving Australia. As the cat arrived in Singapore on 7 May 2014 not only must the virus have been contracted after its arrival but most significantly well after all of my responsibilities had ceased." 1. In the section of the set aside application form dealing with extensions of time the appellant did not indicate either "yes" or "no" whether she required an extension of time. However the appellant included the following: 1. It would allow me an opportunity to obtain reasons for the decision of the tribunal so that I can ascertain exactly what was the 'illness' claimed to be present at the time of purchase. 2. It would allow me the opportunity to obtain a detailed doctors certificate to explain my inability to take part in the hearing due to my medical condition and why that condition/treatment prevented me from taking part in the telephone conference resulting in the decision being made in my absence. 3. It would allow me the opportunity to obtain and present the supporting medical evidence from Dr Peter Wright, Dr Brooke White the Veterinarians who performed the examination prior to the cat's departure to prove that the cat was fit and healthy at the time of purchase and at the time of departure from Australia. 4. It would allow me the opportunity to obtain and present supporting documentation from Australian Quarantine Inspection Services to prove that the cat was fit and healthy at the time of departure from Australia. 5. It would allow me to obtain a report from an independent AQIS Veterinarian supporting that FIP which is a mutation of Corona Virus can only be detected four (4) weeks post infection. 6. It would allow me an opportunity to obtain reasons for the decision of the tribunal to ascertain any other matters dealt with in my absence. 7. An extension of time would allow me the opportunity to coherently prepare my response in these difficult personal circumstances. 1. The application to set aside the decision attached the appellant's husband's death certificate, copies of the emails of 7 and 8 January 2016, copies of photographs of the cat taken from the respondent's Facebook page and a copy of the report dated 27 June 2014 of Dr John Paul Ly (who had treated the cat in Singapore) which recorded a negative test for corona virus. 2. Notwithstanding that the application to set aside was dated 18 January 2016, it was only received by the Tribunal on 25 January 2016. 3. On or after 23 January 2016 the appellant forwarded an email to the Tribunal stating "please find attached Dr report with further explanation for application to set aside or vary Tribunal decision for GEN 15/66761". 4. The attachment to the email was a further medical certificate dated 23 January 2016, signed by Dr Dina Jamil. The certificate referred to the application to set aside or vary the Tribunal decision, set out some detail of the doctor's consultations with the appellant and stated that she had diagnosed her as having "suffered a major traumatic event resulting in a diagnosis of post-traumatic stress disorder, major depression and general anxiety disorder". 5. The medical certificate continued "as previously stated in my medical certificate dated 11 January 2016, in my professional opinion, Mrs Waters was in no condition and hence 'unfit' to take part in any conference call during the period Monday, 11 January 2016 and Thursday, 11 February 2016 inclusive". 6. On receipt of the set aside application a Senior Member of the Tribunal made orders on 27 January 2016 staying the money order until further order, requiring the respondent to make submissions concerning the application to set aside by 3 February 2016, and requiring the appellant, as applicant to set aside, to make submissions in reply by 10 February 2016. 7. The respondent lodged a submission on 3 February 2016 to which was attached a bundle of evidence including the evidence which had been filed by the respondent prior to the hearing on 11 January 2016 and some further evidence including medical reports and general articles concerning corona virus and feline infectious peritonitis (FIP). The submissions generally addressed the substance of the case and issues arising in relation to the substantive merits of the claim against the appellant rather than any issues of prejudice or otherwise arising in relation to the set aside application. 8. On 10 February 2016 the appellant provided a bundle of submissions and documents to the Tribunal. In that bundle the appellant responded to the substantive submissions by the respondent and included a letter from the veterinary clinic which had examined the cat prior to shipment to Singapore, as well as a "Certificate of Health to Accompany Animals Exported from Australia" relating to the cat, issued by the Commonwealth Department of Agriculture on 6 May 2014. 9. On 23 February 2016 the Tribunal dismissed the application to set aside the orders made on 11 January 2016. In her reasons for the decision the Tribunal Member noted that the original notice of the hearing on 11 January 2016 had advised the parties that the Tribunal may make orders in your absence, that the parties had been directed to provide evidence by 7 January 2016, that the respondent had done so but the appellant had not and that the appellant had sought an adjournment on 7 January 2016 on the grounds that her husband had "recently passed away", which application had been refused on 8 January 2016. The Tribunal noted that the appellant's husband had passed away in June 2015 and commented that while extending sympathy and appreciation that grief can be lengthy process, "the Tribunal does not consider that seven months constitutes 'recently'." 10. The Tribunal noted that the Member hearing the matter on 11 January 2016 had attempted to telephone the appellant but there had been no answer. The Tribunal recorded that the Registry had received a faxed medical certificate from the appellant at 1.38 pm on 11 January 2016. The Tribunal noted that even if the certificate had been received prior to the hearing, it may not have been sufficient basis for an adjournment because it simply referred to the appellant "receiving medical treatment" and provided no explanation what the treatment was or why it resulted in the appellant not being able to participate in the hearing. 11. The Member referred to the set aside application, noting that it was lodged on 25 January 2016 and that the regulations required that the application be lodged within seven days of the date of the decision. The Tribunal Member recorded that the appellant sought an extension of time and set out a summary of the "reasons" which have been extracted at [15] above. 12. The Tribunal had power to extend the time for filing the set aside application pursuant to s41 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the Act") which provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. The Tribunal determined: "The Tribunal accepts that an extension of time to lodge the application for a set aside will give the applicant an opportunity, if she is granted an extension of time, to provide her evidence. The application form clearly asked the applicant to 'explain why the application was not lodged within the time limit'. The applicant has not provided any explanation as to the delay in lodging the application to set aside the orders in matter GEN 15/66761. The Tribunal can only draw an inference, given the applicant's conduct in this matter, that the applicant has simply not had any or sufficient regard to the Tribunal processes. In those circumstances, I am not satisfied to exercise my discretion in regard to granting an extension of time." The Tribunal Member also lifted the stay order made on 27 January 2016. The appellant lodged the Notice of Appeal on 24 March 2016. As Ms Field, who appeared on behalf of the appellant, acknowledged, that was outside the period of 28 days from the receipt of the notice of the original decision of 11 January 2016, so that the appellant required an extension of time to file the appeal in respect of that decision. Insofar as the Notice of Appeal challenges the orders made on 23 February 2016 refusing an extension of time and dismissing the set-aside application, the appeal was lodged within time, as the appellant received notice of that decision on 25 February 2016. 1. The grounds of appeal set out in the Notice of Appeal were as follows: 1. The Tribunal erred in law by denying the appellant procedural fairness by: 1.1 refusing an adjournment following the appellant's disclosure to the Court of her late receipt of the application and substantial personal difficulties; and 1.2 proceeding with the hearing of GEN 15/66761 on 11/1/2016 despite notifying the appellant by email on 8/1/2016 that the Tribunal Member would "conciliate between the parties and make procedural directions" on that occasion; and 1. The Tribunal erred in drawing the inference that the appellant "has simply not had any or sufficient regard to the Tribunal processes" where there was: 2.1 medical evidence before the Tribunal that the appellant was suffering from post-traumatic stress disorder, major depression and general anxiety disorder and that her condition had subsequently deteriorated at the time of receipt of the Tribunal application; and 2.2 evidence that the Appellant had not received the Application in the matter until 5 January 2016; 1. The Tribunal erred in refusing to set aside the decision made in her absence where there was: 3.1 evidence before the Tribunal to provide a credible and consistent explanation for the appellant's failure to attend the telephone conference on 11/1/2016; 3.2 evidence before the Tribunal that the appellant had a strongly arguable defence of the respondent's claim. 1. The Tribunal erred in law in making the original decision in circumstances where the supply and agreement were not made in NSW and the Tribunal did not have jurisdiction pursuant to section 79K of the Fair Trading Act 1987. 2. The Tribunal erred by finding a breach of contract, without sufficient evidence as to the terms of the contract. 1. The appellant also sought leave to appeal on the ground that the decision was not fair and equitable, was against the weight of the evidence and that significant new evidence had arisen that was not reasonably available at the time of the hearing. 2. The Notice of Appeal stated, as reasons why the Appeal Panel should grant leave: … Leave should be granted to appeal against the decision as it has serious detrimental ramifications for the appellant. The judgment in favour of the respondent is a substantial sum of money in itself. Additionally the entry of judgment significantly impacts on the appellant's reputation as a respected, ethical and responsible breeder of ragdoll cats. … The refusal to grant an extension of time for lodgement of the application for review was unreasonable where there was a clear explanation as to the cause of the previous failure to attend the listing before the Tribunal and where the appellant had provided material to demonstrate that she had a strongly arguable defence to the claim. 1. The respondent, who appeared before the Appeal Panel by telephone, had filed a voluminous reply, incorporating submissions and evidence. Most, but not all of the evidence had been filed by the respondent with the Tribunal prior to 11 January 2016, some had been filed in response to the application to set aside the decision of 11 January 2016, and some was fresh material for the appeal. 2. The respondent's evidence and submissions were almost entirely, if not entirely, directed to the merits of her claim. Consideration 1. The appellant's rights of appeal are limited by s80(2) of the Act which 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. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of clause 12(1) of Schedule 4 to the Act, leave to appeal may only be granted under s80(2)(b): If the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The grant of leave to appeal from an interlocutory decision pursuant to s80(2)(a) is not subject to the same limitation. 2. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows: "[71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred." 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are set out in the decision of the Appeal Panel in Collins v Urban at [84]: "The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 1. It is apparent from paragraphs [82] and [83] of the decision in Collins v Urban that these principles are equally applicable to an application for leave to appeal from an interlocutory decision pursuant to s80(2)(a) and an application for leave to appeal from any other kind of decision pursuant to s80(2)(b). 2. Ground 1 in the appellant's notice of appeal asserts that the appellant was denied procedural fairness in relation to the decision of 11 January 2016. 3. The question whether there has been a denial of procedural fairness is a question of law (Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [8]; Italiano v Carbone [2005] NSWCA 177 at [5]; Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [13]). 4. Before considering whether this ground of appeal has been established, we must determine whether to extend the time for the filing of an appeal against the decision of 11 January 2016. 5. The power to extend the time for filing an appeal arises from s41 of the Act which we have set out at [27] above. 6. The factors to be considered on an application to extend the time for the filing of an appeal were set out in Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [22] as follows: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; 1. In this case the explanation for the delay was both the appellant's medical condition and the fact that the appellant had filed an application to set aside the original decision. If that application had succeeded, the appellant would have had no need to appeal. 2. The appellant commenced the appeal within 28 days of being notified that the application to set aside the original decision had been dismissed. 3. The material before the Appeal Panel does not disclose when the appellant received notice of the decision made on 11 January 2016. Notice of the decision appears to have been addressed to the appellant at her post office box. 4. In the absence of evidence to the contrary, the notice of the decision is taken to have been received at the end of the fourth working day after it was posted (Rule 13(4)(a) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules)). That was 15 January 2016. Therefore the appeal was required to be filed by 12 February 2016. The appeal was filed on 24 March 2016. The delay was thus just under six weeks. We do not consider that to be a lengthy delay. 5. Because the appeal has been fully argued we are able to address on a final basis the appellant's prospects of success on the appeal if an extension of time were granted. For the reasons which follow, we consider, not merely that the appellant has a fairly arguable case, but that the appellant will, if granted an extension of time, succeed in her appeal. 6. We consider that the appellant was denied procedural fairness when the Tribunal proceeded to determine the respondent's claim on 11 January 2016 in circumstances where the appellant had been informed by the Tribunal that the matter was listed on 11 January "for conciliation and hearing only and that the Tribunal Member will conciliate between the parties and make procedural directions". 7. In those circumstances the appellant was entitled to expect that the matter would not proceed to final determination in her absence on 11 January 2016. 8. The notice of hearing which is customarily issued by the Tribunal Registry clearly states that if a party does not appear the Tribunal may determine the matter in their absence. 9. Section 53(c) of the Act provides that the Tribunal may dismiss proceedings if the applicant has failed to appear. Rule 35 of the Rules provides that the Tribunal may hear proceedings in the Consumer and Commercial Division in the absence of a party who has failed to attend a hearing if the Tribunal is satisfied that notice of the hearing was duly served on the party. 10. In circumstances where proceedings are determined in the absence of a party, clause 9 of the Civil and Administrative Tribunal Regulations 2013 (NSW) provides that the Tribunal may set aside a decision of the Tribunal that was made in the absence of a party if the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put. Such an application must be brought within 7 days after the decision was made. 11. In the ordinary course a party will not be denied procedural fairness where they fail to attend the first (or any subsequent) hearing, of which they received notice, and the proceedings were determined adversely to them in their absence. The Act, Rules and Regulations recognise that that may occur. 12. However, in circumstances where the Tribunal has refused an adjournment of a hearing on the basis that the hearing will be limited to conciliation and the making of procedural directions, there will be a denial of procedural fairness if the Tribunal proceeds at that hearing to determine the substantive proceedings adversely to a party in their absence. 13. Moreover, having received the email of 8 January 2016 set out at [6] above, the appellant was entitled to expect that all that would happen in her absence was that the Tribunal would make procedural directions. 14. The appellant did not seek to establish that she relied upon the email of 8 January 2016 in failing to "appear" on 11 January 2016. However, proof of reliance on a representation by a decision maker as to the procedure to be adopted is not necessarily required before a failure to comply with that representation will constitute a failure to accord procedural fairness. (See Aronson and Groves, Judicial Review of Administrative Action (5th edition 2013) at 442 [7.200], citing Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1). The question is whether the departure from the representation was, in all the circumstances, unfair. As Gleeson CJ stated in Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Lam (2003) 214 CLR 1 at 12 [34]: "It is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation." (See also McHugh and Gummow JJ at 34 [105] and Callinan J at 47 [145]). 1. The Tribunal Member determining the set aside application recorded that the Tribunal had sought to telephone the appellant but the call had not been answered. 2. Even putting to one side the medical evidence (not before the Tribunal on 11 January 2016) which suggests the appellant was in no fit state to answer the telephone on 11 January 2016, we consider that it would be impossible to conclude that the notification from the Tribunal could not have had some impact upon the appellant's decisions in relation to her appearance at the hearing. 3. It was, in our view, manifestly unfair for the Tribunal to determine the proceedings adversely to the appellant in her absence when all she could reasonably have expected would happen at the hearing on 11 January 2016 was that procedural directions would be made. 4. As Gageler and Gordon JJ stated in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 342-343: [59] There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard. [60] Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given. [footnotes omitted] 1. The appellant has filed evidence, both in support of her application to set aside the initial decision and on appeal, which demonstrates that there is a live issue between the parties as to whether the cat was infected with the disease which led to its death at the time it was shipped to the respondent. It could not be said that the failure to accord the appellant procedural fairness did not deprive the appellant of the possibility of a successful outcome. 2. The respondent did not identify any prejudice flowing from an extension of time for the lodgement of the appeal beyond: the fact that she has expended time and money in preparing for and attending (by telephone) numerous hearings, including paying for the express delivery of documents to Australia; the fact that if she is ultimately successful the receipt of her money will be delayed (we note in this regard that the appellant has, in accordance with directions of the Tribunal, deposited $10,000 into her solicitor's trust account); and the prospect of the orders in her favour being set aside. That prejudice would have been present even if the appeal had been lodged within time. It has been increased only marginally, if at all, by the six week delay in the filing of the notice of appeal. We do not consider the matters raised by the respondent are such as should prevent the grant of an extension of time to file the appeal. 3. Accordingly we extend the time for the appellant to file her appeal against the decision of 11 January 2016 to 24 March 2016. 4. As we have recorded above, we find the appellant was denied procedural fairness in the respects identified in Ground 1.2 of the notice of appeal. We will therefore allow the appeal and set aside the decision of 11 January 2016. We will remit the respondent's application to the Consumer and Commercial Division of the Tribunal to be determined at a further hearing. 5. Although it is therefore not necessary to consider the remaining grounds of appeal, we will deal with them briefly. 6. We will deal with the second and third grounds of appeal, which relate to the dismissal of the set aside application, after we have considered Grounds 4 and 5, which relate to the decision of 11 January 2016. Ground 4 1. By ground 4 the appellant asserts that the Tribunal erred in law because the supply and agreement were not made in New South Wales and the Tribunal did not have jurisdiction by reason of s79K of the Fair Trading Act 1987. Section 79K provides: 79K Supply or agreement made, or supply intended to be made, in New South Wales (1) The Tribunal has jurisdiction to hear and determine a consumer claim only if: (a) the goods or services to which the claim relates were supplied in New South Wales, or (b) a contract or other agreement to which the claim relates contemplated that the goods or services would be supplied in New South Wales (whether or not they were so supplied), or (c) a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales). (2) The Tribunal has such jurisdiction whether or not: (a) a contract or other agreement to which the claim relates confers jurisdiction on any other court or tribunal (whether in New South Wales or elsewhere), or (b) the rules of private international law require a law other than the law of New South Wales to be applied to the hearing or determination of the claim. 1. We do not consider that this ground of appeal is established on the evidence which was before the Tribunal Member on 11 January 2016. The evidence tendered by the applicant (respondent to the appeal) before the Tribunal Member on 11 January 2016 does not demonstrate unequivocally or beyond dispute that the contract for the sale of the cat or the delivery of the cat occurred outside New South Wales. The application stated that the applicant had paid the appellant for the shipping of the cat to Singapore. This would tend to suggest the cat was delivered in Singapore. However, there was no evidence of the manner in which the contract was formed, whether by email, internet, telephone or some other means. There is no suggestion that the issue was raised before or considered by the Tribunal Member on 11 January 2016, but we do not consider that the Tribunal Member would have erred by finding on the evidence before her on that date that the Tribunal had jurisdiction. Ground 5 1. By ground 5 the appellant asserts that there was an error of law in the Tribunal's finding that there was a breach of contract, in that the Tribunal did not have sufficient evidence of the terms of the contract. There does not appear to have been evidence before the Tribunal of any of the negotiations leading to the contract or of any documentation of the terms of the contract. However, there was evidence before the Tribunal Member of the payment for and delivery of a cat. 2. In the absence of evidence of the manner in which the contract was formed or any specific terms of the contract, the Tribunal was entitled to proceed on the basis that the contract was governed by the laws of New South Wales (including the Australian Consumer Law as applied by ss28 and 32 of the Fair Trading Act 1987 (NSW) and the Sale of Goods Act 1923 (NSW)). 3. There was evidence before the Tribunal upon which it could conclude that the appellant was in the business of supplying cats and that the sale of the cat to the respondent occurred in trade and commerce. In those circumstances, pursuant to s54 of the Australian Consumer Law and s19 of the Sale of Goods Act, the appellant guaranteed or warranted that the cat was of acceptable or merchantable quality. The Tribunal determined, on the evidence before it, that "the illness was present at the time of purchase". Although the appellant will clearly seek to dispute that proposition at the hearing of the claim, she does not submit that that conclusion was not open on the evidence before the Tribunal on 11 January 2016. It would not require evidence to establish that a cat infected with a potentially fatal disease was not of acceptable or merchantable quality. If the appellant wished to establish that the statutory guarantees and warranties were not applicable or that there was a term of the contract (either express or implied by custom and usage) which led to a different result, it was for the appellant to adduce evidence to establish such matters. In the absence of such evidence the Tribunal was entitled to conclude that the contract was governed by the Australian Consumer Law and the Sale of Goods Act and contained no term which might limit or exclude (to the extent that were possible) the statutory guarantees and warranties. 4. As the dispute is to be remitted for hearing and the parties may seek to adduce further evidence we do not consider it necessary or appropriate to say more concerning this ground of appeal. Grounds 2 and 3 1. The remaining grounds of appeal, Grounds 2 and 3, challenge the decision to dismiss the application to set aside the original decision. As the application to set aside was dismissed on the basis that it was out of time, the decision appealed against was the refusal to extend the time for filing the application. Such a decision is, pursuant to the definition of "interlocutory decision" in s4 of the Act, an interlocutory decision of the Tribunal, and, pursuant to s80(2)(a) of the Act, the appellant requires the leave of the Appeal Panel to appeal against that decision. 2. The grounds of appeal raised by the appellant in respect of the dismissal of the set aside application do not assert any errors of law, but rather suggest the decision was against the weight of the evidence or was not fair and equitable. 3. As we have determined that there should be an extension of time for the bringing of the appeal against the original decision and that the original decision should be set aside for an error of law constituted by a breach of procedural fairness, we do not strictly need to consider whether to grant leave to appeal against the refusal to extend time or the dismissal of the application to set aside the original decision. 4. However we note that the decision to refuse an extension of time and dismiss the application to set aside appears not to have taken account of the evidence submitted by the appellant in relation to her mental condition. The evidence before the Tribunal in support of the application to set aside the decision included the doctor's certificate of 23 January 2016 which clearly stated that the appellant was, by reason of her post-traumatic stress disorder, major depression and general anxiety disorder, in no condition to take part in any conference call throughout the period from 11 January 2016 to 11 February 2016. This period included the whole of the time from the date of the decision until 25 January 2016 when the set aside application was filed. The certificate was relevant and significant evidence and the Tribunal's failure to take it into account was itself an error which would justify the decision being set aside. 5. As the application to set aside was prepared on 18 January 2016, on the seventh day after the original decision and therefore at a time when the appellant was still within time to lodge the application, it is not clear that the matters set out in the application, in the section relating to extensions of time, were directed to an extension of time for filing the set aside application. The substance of those matters is rather addressed to an extension of time to file evidence in the substantive proceedings. 6. The Tribunal is required to ensure the parties understand its processes and have a proper opportunity to be heard (s38(5) of the Act). In our view the conclusion that "the appellant had had insufficient regard for the Tribunal's processes" could not be sustained in light of the material which the appellant had filed, if viewed in its entirety. We consider that the decision to refuse to extend time and to dismiss the set aside application involved a clear injustice. We also consider that the medical certificate dated 23 January 2016 provided a satisfactory explanation for the appellant's failure to appear at the hearing on 11 January 2016, and the delay in lodging the set aside application, and that the appellant's absence led to her case not being adequately put. 7. Were it necessary to do so we would grant leave to appeal against the refusal to extend time to seek to set aside the original decision, grant the extension of time and set aside the original decision. However, as the appeal against the original decision is to be upheld, it is not necessary to make any orders in relation to the set aside application or the appeal against the dismissal of the set aside application. 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: 17 November 2016