Civil and Administrative Tribunal New South Wales Medium Neutral Citation: RTO Experts Pty Ltd v Pathways Psychology Institute Pty Ltd [2018] NSWCATAP 216 Hearing dates: 15 November 2017 and 4 May 2018 Date of orders: 18 September 2018 Decision date: 18 September 2018 Jurisdiction: Appeal Panel Before: L P Robberds QC, Senior Member L Wilson, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. (3) The stay order made on 26 September 2017 is no longer operative and the $7,920 held in trust by the Tribunal is to be paid to the respondent. Catchwords: Contract for consulting services discharged – contract mutually abandoned – restitution for part of contract price – question whether any additional payment should be ordered remitted by Appeal Panel to Tribunal – WORDS AND PHRASES – substantial miscarriage of justice – fair and equitable – weight of evidence – significant new evidence – Civil and Administrative Tribunal Act 2013 (NSW) Sch 4, cl 12 Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: RTO Experts Pty Ltd (Appellant) Pathways Psychology Institute Pty Ltd (Respondent) Representation: In person (Appellant) In person (Respondent) File Number(s): AP 17/39715 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 5 September 2017 Before: M Eftimiou, General Member File Number(s): GEN17/21758 REASONS FOR DECISION 1. On 30 August 2015, Pathways Psychology Pty Ltd (Pathways) and RTO Experts Pty Ltd (RTO) entered into a written contract for RTO to supply, amongst other things, various assessment and training materials required by Pathways in order to achieve registration by the Australian Skills Quality Authority (ASQA) as an approved provider of vocational training. ASQA is the national regulator for Australia's vocational education and training sector. It regulates courses and training providers to ensure nationally approved quality standards are met. 2. At that time RTO was an expert in the provision of advice and material needed to achieve such registration. 3. Pathways provided courses in the psychology field, including those in order to achieve a Diploma of Counselling and a Graduate Diploma of Counselling. 4. Pathways had paid the full contractual sum by the end of October 2015. 5. A dispute arose and Pathways commenced proceedings in the Tribunal seeking an order that RTO pay Pathways $39,995. The Tribunal Member who heard that claim dismissed it. Pathways then appealed to an Appeal Panel and the appeal was allowed. 6. In addition to ordering RTO to pay Pathways $16,000, the Appeal Panel, by order 5, ordered that the question whether any additional payment should be ordered to be paid by RTO to Pathways by way of refund in respect of two items referred to in an invoice dated 20 August 2015 as "Project time" in the sum of $5000 and "Graduate Diploma of Relationship Counselling (11 units)" in the sum of $7920 be remitted to the Tribunal at first instance for determination by General Member Eftimiou (see pars 64 – 66 and order 5 of the Appeal Panel's reasons for decision published in [2017] NSWCATAP 65). 7. The reason why order 5 was made was because the Appeal Panel made the following rulings in par 66 of its reasons for decision: No findings were made by the Tribunal below as to the dispute whether any work had been performed in relation to the items Development of Assessment Materials Graduate Diploma of Relationship Counselling $7920 and Project time $5000. These questions will be remitted to the Tribunal at first instance for determination. Pathways is entitled to a refund in respect of either or both of these items if it be found that no work has been performed in respect of them. There is no basis for a finding that there were severable payments for distinct components within these two items of work. 1. The remittal of those two questions came on for hearing before Tribunal Member Eftimiou and on 5 September 2017 the Tribunal Member's judgment was published. In that judgment the Tribunal Member ordered RTO to pay to Pathways the sum of $7920. The Tribunal Member made that order because she was satisfied that: (a) Pathways had paid RTO $7920 for Resource Development of assessment material for the Graduate Diploma of Relationship Counselling; (b) none of that work had been done by RTO; and (c) Pathways had derived no benefit from the money paid by it to RTO (see par 29 of the Tribunal Member's judgment and par 24 of these reasons for decision). Notice of appeal 1. On 14 September 2017 RTO filed a notice of appeal against that order. 2. That was an appeal from a decision of the Consumer and Commercial Division of the Tribunal. Under s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (the Act), RTO had a right of appeal on a question of law and otherwise by leave in the circumstances described in cl 12 of Schedule 4 of the Act, as follows: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only 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 of the proceedings under appeal were being dealt with). 1. In the notice of appeal RTO merely stated the grounds of appeal as: "The Tribunal Member made an error of the law when reaching her decision." This statement was given in response to the direction in part 5 of the notice of appeal: List below a short summary of each reason why you consider the Tribunal was wrong when it decided to make the order/s appealed from. 1. Part 6A of the notice of appeal form dealt with leave to appeal and was completed by RTO as follows: There are several reasons why the tribunal was wrong when it decided to make the order on 5 September 2017 including: 1. The Tribunal member's decision exceeded what was required based on the order from the Appeal Panel on 28/3/2017 which stated at paragraph 66 "No findings were made by the Tribunal below as to the dispute whether any work had been performed in relation to the items Development of Assessment Materials Graduate Diploma of Relationship Counselling $7920 and Project time $5000. These questions will be remitted to the Tribunal at first instance for determination. Pathways is entitled to a refund in respect of either or both these items if it be found that no work has been performed in respect of them. There is no basis for a finding that there were severable payments for distinct components within these two items of work". The finding the Tribunal Member was required to consider was not whether the work was received but rather work had commenced. This is critical because what the Tribunal Member is therefore implying is that the work was sufficiently completed that we would have handed over a final product or at least a final draft however this is not what the Tribunal member was required to find. 2. Paragraph 14 (d) in relation to the trainer matrices is not relevant to any of the findings (even though it has no impact on the decision) because the appeal panel made it very clear there was no basis for a finding that there were severable payments for distinct components within these two items of work and what she (Tribunal Member) is referring to is a severable payment for distinct items of work in the project work for these. 3. Paragraph 17 is factually incorrect; it would appear that the Tribunal Member has not thoroughly looked at the evidence. The Clinical Placement Book referred to by RTO Experts Pty Ltd as an example clearly has some of the units of competency referenced that the Tribunal Member refers to in paragraph 22. 4. Paragraph 18 (b) is factually incorrect. The very qualification code and title on the Clinical Placement Kit are for the 2015 Graduate Diploma. The qualification is CHC81015 – Graduate Diploma of Relationship Counselling. 5. Paragraph 19 is not relevant because the finding the Tribunal Member was required to reach was not whether the documents were compliant but whether work had commenced. 6. Paragraph 20 appears to contradict the Tribunal Member's decision and in fact reinforces that work had commenced on the CHC81015 Graduate Diploma of Relationship Counselling. Further, whether there is overlap or not was not for the Tribunal member to find but also, the CHC Training package includes duplication across these qualifications so it is perfectly normal that there is some duplication. This is a flaw in the CHC training package which I was required to comply with to ensure that Pathways would meet their audit requirements. 7. Paragraph 25 is factually incorrect and exceeds the findings that the Tribunal Member was required to make. Paragraph 28 is an example of this as per point 2 above. Further however, the Tribunal Member states very clearly in this same paragraph that "The Tribunal accepts that RTO may have carried out Project time work and resource development work in relation to the Graduate Diploma…" 8. Paragraph 28 is factually incorrect as per points 2 & 7 above. 9. Paragraph 29 is factually incorrect repeats the same statement as per paragraph 28 and exceeds what the Tribunal member was required to find as per point 1. 10. The Tribunal Member appears to have dismissed the affidavit of Kathleen Zarubin, paragraph 35 (d) and annexure I which clearly evidence that work had commenced on CHC81015 Graduate Diploma of Relationship Counselling. 1. Part 6 B(i) of the notice of appeal form was completed as follows by RTO as to why the decision was not fair and equitable: There are several findings and reasons for the Tribunal member's findings that are based on an error of law and factually incorrect. These findings and reasons provided an incorrect basis for the tribunal member's decision-making and led to an unfair and inequitable ruling regarding the orders made. These issues have been described in Part A, Application for Leave to Appeal. 1. Part 6 B(ii) of the notice of appeal form made provision for dealing with the question whether the appellant alleged that the decision of the Tribunal was against the weight of evidence. RTO completed that section by stating: I gave evidence that the Clinical Placement Kit was some evidence for example that work had commenced on the CHC 81015 Graduate Diploma of Relationship Counselling however, despite this, the Tribunal Member erred in her findings. Specifically: 1. Paragraph 17 is factually incorrect; it would appear that the Tribunal Member has not thoroughly looked at the evidence. The Clinical Placement Book referred to by RTO Experts Pty Ltd as an example clearly has some of the units of competency referenced that the Tribunal Member refers to in paragraph 22. For example, pages 1, 2, 3, 8, 9, 18, 22, 27, 28, all headers and footers and content from various other pages is also highly relevant to and specific to CHC81015 Graduate Diploma of Relationship Counselling assessment in the workplace. 2. Paragraph 18 (b) is also irrelevant for the same reason as point 1 above. 3. In addition to being an error of law as discussed previously in this application, paragraph 19 is incorrect for the reason above at point 1. 4. In addition to being an error of law as discussed previously in this application, paragraph 20 is incorrect for the reason above at point 1. 5. Paragraph 26 is irrelevant for the same reasons as point 1 above. 6. Paragraph 28 is factually incorrect and irrelevant for the same reasons as point 1 above. 7. Paragraph 29 is factually incorrect and irrelevant as per point 1 above. 8. The Tribunal Member appears to have dismissed the affidavit of Kathleen Zarubin, paragraph 35 (d) and Annexure I which clearly evidence that work had commenced on CHC81015 Graduate Diploma of Relationship Counselling. 1. The notice of appeal form asked what evidence did the other party give and the question was answered by RTO stating that it was not clear that Pathways did provide any evidence to say that work had not commenced. It was also stated by RTO that Pathways provided affidavit and verbal evidence that work was not received. 2. In answer to the questions in the notice of appeal form – what evidence should the Tribunal have given more weight to? Why?, RTO repeated what is set out in subpars 1 – 10 of par 12 above. 3. Part 6 B(iii) of the notice of appeal form contains a statement: "Significant new evidence is now available that was not reasonably available at the time of the hearing." RTO gave the following details in relation to that statement: Paragraph 9 of the Tribunal Member's findings refer to a finding from the NCAT Appeal Panel that the contract was "mutually abandoned." The initial Appeal Panel orders were received on 8 May 2017, 41 days after the orders were made. In effect, what this meant was that I was unable to pursue an appeal of this specific decision in the higher courts of NSW if I chose because the time had lapsed. This finding had a critical impact on this matter and to this day, I contend that the contract was not mutually abandoned and that I provided evidence of this. The finding of this Tribunal member in this hearing in my opinion should not have considered this item in the reasons for her findings but also, if it is considered, the new evidence is that I was prevented from appealing the Appeal Panel decision due to the time taken to receive the decision. I did communicate with the NCAT on the same day requesting a directions hearing to clarify the date of the orders amongst other issues but this was denied. I sought legal advice as NCAT suggested, this is attached. 1. In answer to the question in the notice of appeal form: "Why was this evidence (including documents) not available at the time of the hearing", RTO answered: "This was not considered at the hearing as I was not aware that the Tribunal Member would be considering this issue as part of her reasons for her findings, it was not relevant to the findings that the Tribunal member was asked to make." 2. RTO wrote a letter dated 11 September 2017 addressed "To whom it may concern" with a heading "Re: Application for NCAT Appeal and Application for Stay of Original Decision Pending Appeal". The letter is 1 and 1/2 pages long and it attaches a 1 page appendix. It is clear from the content of the letter that it was written so that it would be treated as part of RTO's notice of appeal. The Appeal Panel has done so. The appendix however sets out 13 "items" with references to where it is said the items are referred to. The Appeal Panel takes into account the letter as part of the notice of appeal, but not documents referred to in the appendix to that letter, unless they were tendered into evidence before the Tribunal Member and were relied upon in the appeal. 3. It is unnecessary to set out here the whole of the letter and appendix. Parts of the letter are as follows: I wish to provide the following letter in support of my application due to the inability to provide all relevant information on the forms. Various sections of relevant forms state use a separate sheet if needed and this letter is to provide the additional information and explain the accompanying evidence ….. One of the fundamental reasons behind what we allege is an error of law is that the Tribunal member has exceeded what was required in making her decision. The decision the Tribunal Member was required to make was in relation to whether or not work had commenced on the CHC81015 – Graduate Diploma of Relationship Counselling. While this matter was raised at the time of the hearing with the Tribunal Member, the Tribunal Member, by basing her decisions on whether work was received implies that the work was complete or at least in a final draft and yet the contract was terminated before it could be completed. To make a finding which considers whether the work was received is not only in excess of the Appeal Panel's order but also does not reflect that the project was never completed; we were still working on the project, as has been widely documented and testified when we were issued with Notices from NCAT and the NSW Small Business Commissioner at which point we ceased work on the project. To assist the Tribunal and Appeal Panel, I have included the following evidence that was already submitted to the NCAT for the hearing on 21 August 2017. The only difference is that I have highlighted the relevant sections that I have referred to on the Clinical Placement Assessment Kit in my application at section 6A and 6B (ii). 1. The Appeal Panel takes it from the 2nd paragraph in that quotation and from appendix 1 that the "following evidence" referred to, included what is stated in appendix 1 as item number 10 namely: Work commenced on CHC81015 – Graduate Diploma submitted as evidence in the hearing dated 21/8/2017 including: 1 Clinical Placement Assessment Kit; 2 Portfolio of Evidence; 3 Vocabulary Journal; 4 Professional Reflective Journal (1); 5 Professional Reflective Journal (2). Reply to appeal 1. Pathways filed a reply to appeal which: (a) disputed that the Tribunal Member made an error of law; (b) in effect contended that the Tribunal Member had not made any errors; and (c) contended that leave to appeal should not be granted. Analysis of the Tribunal Member's judgment 1. Paragraph 8 of the Tribunal Member's judgment shows that the Tribunal Member was well aware that the Appeal Panel had ruled in par 66 of its reasons for decision that Pathways was entitled to a refund in respect of either or both of the items if it be found (by the Tribunal Member) that no work had been performed in respect of those items. Paragraph 8 was in these terms: No findings had been made by the Tribunal at first instance as to the dispute whether any work had been performed in relation to the items "Development of Assessment Materials Graduate Diploma of Relationship Counselling" $7,920.00 and "Project time" $5,000.00. There was a dispute between the parties as to whether any work in relation to those items was performed. Those questions were remitted to the Tribunal at first instance for determination. The Appeal Panel stated in its decision: Pathways is entitled to a refund in respect of either or both of these items if it be found that no work has been performed in respect of them. There is no basis for a finding that there were severable payments for distinct components within these two items of work. 1. The Tribunal Member's final statement on the $7,920 issue between the parties was part of par 29, which was the third last paragraph of her judgment. That statement was as follows: …, but the Tribunal is not satisfied that any Resource Development work was done. The Tribunal is satisfied that Pathways have paid to RTO $7,920 for Resource Development of assessment material for the Graduate Diploma and that work has not been done and Pathways have derived no benefit from the money paid by them to RTO. 1. In our view those quoted words include a finding by the Tribunal Member that no work had been performed by RTO in respect of the development of assessment materials for the Graduate Diploma of Relationship Counselling. 2. In the penultimate paragraph of her judgment, the Tribunal Member ordered RTO to pay Pathways the sum of $7,920 within 14 days. RTO's submissions 1. In RTO's letter dated 11 September 2017, it claimed that there was an error of law because the Tribunal Member exceeded what was required in making her decision. RTO claimed that the Tribunal Member was required to make a decision whether or not work had commenced on the CHC81015 – the Graduate Diploma of Relationship Counselling but instead based her decision on whether work was received by Pathways. The same point was made by RTO in subparagraph 1 of part 6A of the notice of appeal. 2. In our view that argument must be rejected. The Tribunal Member did not base her decision or order on whether work was received by Pathways. The Tribunal Member made her decision and ordered that RTO repay Pathways $7,920 because of the findings made by her in par 29 of the judgment. 3. In the following pars 30 - 45 we have considered the balance of the matters raised by RTO in part 6A of the notice of appeal with the exception of the trainer matrices which RTO has said are not relevant (see par 12 above). 4. Paragraph 17 of the Tribunal Member's judgment stated: RTO has not been able to satisfy the Tribunal that they have performed any work under the Contract in relation to the Graduate Diploma of Relationship Counselling. Contrary to what is stated in subpar 3 of part 6A of the notice of appeal, the Appeal Panel is of the view that par 17 is not factually incorrect. It is a statement of RTO's inability to satisfy the Tribunal that it performed any relevant work. 1. The Tribunal dealt specifically with the Clinical Placement Assessment Pack 1 Assessor Guide CHC81015, in par 28 of the judgment. The following is part of what the Tribunal there said: This document unit does not correspond with any of the unit clusters for the Graduate Diploma. Pathways have given evidence that this is a superseded document that is simply a template with no content. RTO was not able to satisfactorily explain to the Tribunal the relevance of this document and how it is evidence that work was done in relation to the component of the Contract for the Graduate Diploma. The document does not contain any performance criteria and no evidence that it meets the specific government criteria for 2015 for the Graduate Diploma. 1. Paragraph 18 (b) of the judgment stated: Pathways gave the following relevant evidence: … (b) The evidence of work provided by RTO in the material before the Tribunal is not relevant to the 2015 requirements for compliance with the Graduate Diploma. Contrary to what is stated in subpar 4 of part 6 A of the notice of appeal, the Appeal Panel is of the view that par 18 (b) is not factually incorrect. It is a statement of evidence given by Pathways. 1. Paragraph 19 of the judgment stated: The Tribunal is not satisfied that RTO has been able to provide any evidence of compliant assessment documents which are contextualised or written to include specific unique information and details for the Graduate Diploma as was required by the Contract. 1. In our opinion the Tribunal Member was not there stating that Pathways was entitled to the $7,920 because RTO had not been able to provide any evidence of compliant assessment documents which were contextualised or written to include specific unique information and details for the Graduate Diploma as required by the contract. In our opinion all that the Tribunal Member was doing was making the point that the fact that there was no such evidence was a fact that could be taken into account on the question whether no relevant work had been performed by RTO. 2. In our view par 20 of the judgment does not contradict the Tribunal Member's decision and it does not reinforce that work had commenced on the development of assessment materials for CHC81015 Graduate Diploma of Relationship Counselling. 3. In par 20 of the judgment, the Tribunal Member made reference to an overlap of work done for the Diploma of Counselling. In our opinion she did this for the purpose of making a finding (in par 20 of the judgment) that such work was not work performed by RTO for the development of assessment materials for the graduate diploma of relationship counselling. Paragraph 20 of the judgment concluded with the following sentence: RTO has not provided evidence of any specific work done in relation to the Graduate Diploma that was not an overlap of work done for the Diploma of Counselling. 1. Paragraph 25 of the judgment stated: RTO has not been able to satisfy the Tribunal that it provided to Pathways any draft assessment documents in relation to the Graduate Diploma. RTO has not been able to satisfy the Tribunal in the volumes of material that it has provided that it created a draft assessment for the Graduate Diploma that include (a) the full list of Government requirements required for that unit and (b) the contexualising information that presents those requirements within the appropriate manner that was specific for the Pathways Graduate Diploma. 1. In our opinion the Tribunal Member was not there stating that Pathways was entitled to the $7,920 refund because (a) RTO had not been able to satisfy the Tribunal that it provided to Pathways any draft assessment documents in relation to the Graduate Diploma; and (b) RTO had not been able to satisfy the Tribunal that it created a draft assessment for the Graduate Diploma that included (aa) the full list of Government requirements and (bb) the contexualising information that presented those requirements within the appropriate manner that was specific for the Pathways Graduate Diploma. In our opinion all that the Tribunal Member was doing was making the point that the fact that RTO had not been able to so satisfy the Tribunal, was a fact that could be taken into account on the question whether no relevant work had been performed by RTO. 2. Paragraph 28 of the judgment is set out in par 44 below. RTO has not drawn to the Appeal Panel's attention any evidence which shows that par 28 is factually incorrect or irrelevant. 3. Paragraph 29 of the judgment stated: 29. The Tribunal is satisfied that RTO during the period of the Contract did some development work for the Graduate Diploma for which it has been paid, but the Tribunal is not satisfied that any Resource Development work was done. The Tribunal is satisfied that Pathways have paid to RTO $7,920.00 for Resource Development assessment material for the Graduate Diploma and that work has not been done and Pathways has derived no benefit from the money paid by them to RTO. The Appeal Panel is not persuaded that par 29 of the judgment is factually incorrect or irrelevant and does not agree that the paragraph exceeds what the Tribunal Member was required to find. 1. Paragraph 35d of the affidavit of Kathleen Zarubin dated 23 June 2017 was in the following terms: The following documents specifically related to the Qualification CHC81015 – Graduate Diploma in Relationship Counselling to the stage I was able to given the previous lack of SME input into similar documents relevant to the Diploma. (Screen capture of these documents including date updated is in Annexure I) i Reflective Journal (RJ) 1 and 2; ii Portfolio of Evidence (P o E) iii Clinical Placement Assessment Pack (CP) iv Vocabulary Journal (VJ) 1. Annexure I to the affidavit was in the following terms: CHC81015 – AT1 – Reflective Journal 1 – Assessor Guide docx 7:27 pm Microsoft Word Document CHC81015 – AT1 Reflective Journal 2 – Assessor Guide docx 7:31 pm Microsoft Word document CHC81015 – AT2 Portfolio of Evidence – Assessor Guide docx 8:21pm Microsoft Word document CHC81015 – AT5 – Clinical Placement 1 – Assessor Guide docx 10:35pm Microsoft Word document CHC81018 – Vocabulary Journal – Assessor Guide docx 8:33pm Microsoft Word document 1. Significantly there was not annexed or exhibited to Ms Zarubin's affidavit any of the five documents described in Annexure I. Ms Zarubin's affidavit does not otherwise prove those five documents. In those circumstances no inference can be drawn from the screen capture that those files contain anything relevant to the question whether RTO had performed any work in respect of the development of assessment materials for the graduate diploma of relationship counselling, or indeed contain anything. Their contents have never been put before the Tribunal, nor any evidence that they are of a certain size, from which an inference could be drawn that they include something. Even if evidence had established, which it has not, that the files contained some data, this would not be sufficient to prove they contained work in respect of the development of assessment materials for the graduate diploma. 2. That conclusion is supported by what occurred during the hearing in the Tribunal on 21 August 2017. RTO had produced to the Tribunal a purple folder of evidence. Paragraphs 27 and 28 of the judgment record what occurred during the hearing: 27. The Tribunal asked RTO during the hearing to show how any of the documents provided in the "Purple Folder" of evidence related to any of the eleven units required for the Graduate Diploma. RTO advised that it was not able to do so and would require an adjournment. The Tribunal did not believe it was reasonable to adjourn proceedings to enable RTO to explain its own evidence that it had provided to the Tribunal. The Tribunal has considered the "Purple Folder" of Evidence. RTO has stated that this is evidence of template documentation (full suite of templates) developed for finalization of assessments for the Graduate Diploma that was developed by RTO. The Tribunal has not been able to identify any templates in that folder of evidence whose unit number corresponds with the eleven unit numbers that are required for the Graduate Diploma. The Tribunal accepts the evidence of Pathways that the documents contained in RTO's Purple Folder Evidence do not relate to any of the clusters required for the Graduate Diploma. The cluster numbers do not correspond with the cluster/unit numbers in the government. 28. The only other document that RTO was able to refer the Tribunal to as evidence that work has been done in relation to the Graduate Diploma is a document headed "Clinical Placement Assessment Pack 1 Assessor Guide CHC81015. This document unit does not correspond with any of the unit clusters for the Graduate Diploma. Pathways have given evidence that this is a superseded document that is simply a template with no content. RTO was not able to satisfactorily explain to the Tribunal the relevance of this document and how it is evidence that work was done in relation to the component of the Contract for the Graduate Diploma. The document does not contain any performance criteria and no evidence that it meets the specific government criteria for 2015 for the Graduate Diploma. 1. The fact that RTO did not in those circumstances produce to the Tribunal the five documents described in par 35d of Ms Zarubin's affidavit, strengthens the conclusion that no inference can be drawn that the files contained anything which supported a conclusion that RTO had performed any work in relation to the Development of Assessment Materials Graduate Diploma of Relationship Counselling. 2. Paragraph 27 of the judgment is also important because the content of that paragraph was not disputed by RTO in its notice of appeal. Part 6 B (ii) of the notice of appeal 1. In pars 47 - 50 we give consideration to subpar 5 of part 6 B (ii) of the notice of appeal (see par 14 above). 2. That subparagraph states: 5. Paragraph 26 is irrelevant for the same reasons as point 1 above. 1. Paragraph 26 of the Tribunal Member's judgment states: The Tribunal accepts that RTO may have carried out Project time work and resource development work in relation to the Graduate Diploma and RTO has been paid for that work. However, the Tribunal is not satisfied that any specific work for the Development of Graduate Diploma of Relationship Counselling was carried out. 1. It appears that the Tribunal Member included par 26 in her judgment because she had formed the view that if RTO carried out any specific work for the Development of Graduate Diploma of Relationship Counselling, then RTO would have brought that work to her attention. Alleged errors of law 1. It appears that RTO claims that the Tribunal made errors of law because, so it is submitted by RTO, what the Tribunal was required to consider was not (a) whether the work was received or (b) whether the documents were compliant, but whether the work had commenced (see RTO's claims in the notice of appeal, part 6A subpar 1 and subpar 5. See also page 1 of the letter dated 11 September 2017 where a claim similar to the first of the above two claims, is made). 2. These claims should be rejected as the Tribunal Member did consider whether work had commenced or more accurately, whether any work had been performed by RTO in relation to the item, development of assessment materials Graduate Diploma of Relationship Counselling. These reasons for decision have shown that that was the question considered by the Tribunal Member. It was answered in the negative by the Tribunal Member as a result of which the Tribunal ordered RTO to repay to Pathways $7,920. 3. The Tribunal Member did not justify the order for payment of the money because no work was received by Pathways or because the documents were not compliant (see pars 51, 34 and 38 of these reasons for decision). She made the order for payment because she was satisfied that no work had been performed by RTO in respect of the development of assessment materials for the Graduate Diploma of Relationship Counselling (see pars 8, 27, 28, 34 and 38 of these reasons. See also par 29 of the Tribunal Member's judgment). Clause 12 of Schedule 4 of the Act 1. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel considered clause 12 and a number of relevant authorities for the purpose of construing that clause. At [76] and following the Appeal Panel concluded: 76. Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12 (1) (a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 77. As to the particular grounds in cl 12 (1) (a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" … (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground under which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach … 78. If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 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 because of one of the circumstances referred to in cl 12 (1) (a), (b) or (c), it will 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…. Leave to Appeal – General Principles on the Grant of Leave 80. If the Appeal Panel is satisfied that the applicant for leave to appeal from a decision of the Consumer and Commercial (sic) may have suffered a substantial miscarriage of justice on one of the grounds identified in cl 12 (1) (a), (b) or (c), then the Panel "may" grant leave under s80 (2) (b) of the Act. 81. Thus, even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12 of Schedule 4 to the Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80 (2) (b). 82. The principles which govern the granting of leave to appeal by the Appeal Panel under s 80 (2) (b) should generally be consistent with those which are applied by Courts when considering the question of leave to appeal …. … 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 making was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: … (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, … (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: … . Was the decision fair and equitable 1. RTO has submitted that the decision was not fair and equitable because of the issues described in part 6A of the notice of appeal (see par 13 above). 2. We have shown in pars 27 – 46 above that that submission should be rejected. 3. The Appeal Panel published its reasons for decision on 28 March 2017. Those reasons included par 66 which is set out in par 7 above. 4. The proceedings heard by the Tribunal Member were the proceedings for the determination of the questions in par 66. 5. In making her decision, the Tribunal Member partly relied upon evidence given by RTO (see par 44 above for the evidence recorded in par 27 of the judgment). There was nothing unfair or inequitable in doing that. 6. RTO has not persuaded the Appeal Panel that the decision of the Tribunal under appeal was not fair and equitable and the Appeal Panel finds that the decision was fair and equitable. Was the decision against the weight of evidence 1. RTO claims that the decision was against the weight of evidence and relies upon the same matters set out in part 6A of the notice of appeal and some additional matters set out in par 14 above. 2. A decision under appeal can be said to be against the weight of evidence where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal Member could reach (Collins v Urban at [77]). 3. There is no question here of such a preponderance of evidence against the conclusion found by the Tribunal Member. 4. Part of the evidence relied upon by Pathways comprised evidence given by RTO and is recorded at par 27 of the judgment. 5. In par 14 above we set out the matters relied upon by RTO in part 6 B (ii) of the notice of appeal to support its claim that the decision of the Tribunal was against the weight of evidence. In the following pars 66 – 73 we consider those matters. 6. The Clinical Placement Kit was considered by the Tribunal Member in par 28 of her judgment. Reference is there made to some of the evidence and in particular Pathways' evidence that the document was a superseded document that was simply a template with no content. The Appeal Panel is not persuaded that par 28 of the judgment is incorrect and the Appeal Panel accepts the findings and evidence in par 28. 7. Paragraph 17 of the judgment has been considered by the Appeal Panel at par 30 above. 8. RTO's submissions on par 18 (b) of the judgment have been considered by the Appeal Panel at par 32 above. 9. RTO's submissions on par 20 have been considered at par 36 above. 10. Paragraph 26 of the judgment stated: The Tribunal accepts that RTO may have carried out Project Time Work and resource development work in relation to the Graduate Diploma and RTO has been paid for that work. However, the Tribunal is not satisfied that any specific work for the Development of Graduate Diploma of Relationship Counselling was carried out. 1. Paragraph 26 is relevant as it is one of the findings which contributed to the making of the findings in par 29 which findings resulted in the order made in par 30 of the judgment. 2. RTO's submissions on par 29 have been considered by the Appeal Panel at par 40 above. 3. RTO's submissions on the affidavit of Kathleen Zarubin have been considered by the Appeal Panel at pars 41 – 45 above. 4. RTO has not persuaded the Appeal Panel that the decision of the Tribunal under appeal was against the weight of evidence and the Appeal Panel finds that the decision was not against the weight of evidence. Was there significant new evidence 1. RTO claims that there is significant new evidence now available that was not reasonably available at the time of the hearing. That claim is referred to in pars 17 – 18 above and the claimed new evidence is that RTO was prevented from appealing the Appeal Panel's decision due to the time taken to receive the decision (see par 17 above). 2. This claimed new evidence by RTO does not involve a question of law and leave to appeal can only be granted by the Appeal Panel if RTO can satisfy the requirements of clause 12 of Schedule 4 of the Act (see par 10 above. See also [76] in Collins v Urban). It has failed to do so. 3. The claim that there was new evidence should be rejected for the following reasons. It is not evidence at all. It is not something which tends to prove the existence of a fact in issue. 4. RTO has not shown that it may have suffered a substantial miscarriage of justice because significant new evidence has arisen. It has not shown that it sought but was refused leave to appeal out of time. It has not shown that it would have failed on such an application. It has not shown that it was prevented from obtaining an extension of time. It has not shown that the Appeal Panel's decision that the contract was mutually abandoned, was wrong. 5. The Tribunal Member's reference in par 9 of her judgment to the finding by the Tribunal at first instance that the contract was mutually abandoned, was not challenged by the parties before the Appeal Panel, and thus had no bearing on the order made by the Tribunal that RTO pay Pathways $7,920. Conclusion 1. For the reasons set out in pars 23 – 79 above the Appeal Panel is not satisfied that RTO may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time of the proceedings under appeal were being dealt with). 1. In other words, the Appeal Panel is not satisfied that RTO may have been deprived of a significant possibility or a chance which was fairly open that a different and more favourable result would have been achieved because of one of the circumstances referred to in cl 12 (1) (a), (b) or (c). 2. The Appeal Panel is therefore of the opinion that leave to appeal should be refused and the appeal should be dismissed. Stay order made on 26 September 2017 1. On 26 September 2017 the Tribunal made orders that: 1. The order for the appellant to pay $7,920 to the respondent made on 5 September 2017 by Tribunal Member Eftimiou was stayed until the determination of the appeal or further order of the Tribunal whichever occurred first on condition. 2. That order was conditional upon the appellant paying $7,920 to the Tribunal by 10 October 2017 to be held by the Tribunal pending determination of the appeal or further order, whichever was the earlier. 1. On 11 October 2017 the Registrar of the Tribunal received $7,920 from Raelene Bartlett for the appellant. The receipt issued by the Tribunal to the appellant for that money stated that it would be held in trust in accordance with the orders made on 26 September 2017. 2. As the appeal is determined in favour of the respondent by these reasons for decision, the stay order referred to in paragraph 83 above ceases to be operative and the $7,920 is to be paid by the Tribunal to the respondent. 3. The Appeal Panel therefore makes the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The stay order made on 26 September 2017 is no longer operative and the $7,920 held in trust by the Tribunal is to be paid to the respondent. ********** ​ 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: 18 September 2018