Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Oz Local Australia Pty Ltd v Girl Friday Solutions Pty Ltd [2019] NSWCATAP 22 Hearing dates: 23 October 2018 Date of orders: 17 January 2019 Decision date: 17 January 2019 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member J Kearney, Senior Member Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act. 2013 the Tribunal dispenses with a further hearing. (2) The application to adduce fresh evidence is refused. (3) The application to extend the time in which to file the Notice of Appeal is refused. (4) Leave to appeal is refused and the appeal is otherwise dismissed. Catchwords: APPEAL – Leave to adduce fresh evidence in circumstances where default in compliance with directions - Challenge to dismissal of the adjournment application in circumstances where company failed to appear, medical evidence insufficient and no explanation provided why another representative would not appear – Extension of time to appeal – inadequate and inconsistent explanation of why appeal not lodged in time – evidence before the Tribunal sufficient to justify conclusions reached. Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: Nil Category: Principal judgment Parties: Oz Local Australia Pty Ltd (Appellant) Girl Friday Solutions Pty Ltd (Respondent) Representation: A Lewis (Manager) (Appellant) L Heffernan (Director) (Respondent) File Number(s): AP 18/35548 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 27 June 2018 Before: G Kinsey, General Member File Number(s): GEN 17/45259 reasons for decision Introduction 1. This dispute concerns an agreement between the appellant and the respondent in which the appellant agreed to provide IT services to develop a website and online facilities for the use by the respondent in its business. 2. The respondent asserted, inter alia, that after 22 months the work to construct the website and other facilities remained incomplete. Consequently, the respondent filed application GEN 17/45259 (original proceedings) in which it sought an order that the appellant pay to the respondent the sum of $30,000. That application was filed on 24 October 2017. 3. After the application was filed, the proceedings were listed in the Tribunal on a number of occasions. 4. The first occasion was 13 November 2017. At that time directions were made for the respondent (as applicant in the original proceedings) to file and serve any evidence by 20 November 2017. The appellant (as respondent in the original proceedings) was required to file and serve any evidence in reply by 11 December 2017. This evidence was to include relevant witness statements, expert reports and any other documents upon which each of the parties wish to rely. 5. The second occasion on which the proceedings were listed before the Tribunal was 19 February 2018. Further directions were made to allow additional time for the parties to provide relevant evidence. On this occasion, the respondent was directed to provide its evidence by 19 March 2018. The appellant was directed to provide any evidence in response by 26 March 2018. Again, the Tribunal directed that relevant documents to be filed were to include witness statements, expert reports and any other documents to be relied upon. 6. The proceedings were listed for hearing on 23 April 2018. At that time, the appellant made an application to adjourn the hearing. It would seem that a representative of the appellant, Mr David Eggert, asserted he was ill and unable to attend the hearing. A doctor's certificate was provided to support this application which said that Mr Eggert was "suffering from a medical condition and will be unfit for work from 23/04/2018 to 23/04/2018 inclusive". 7. The Tribunal refused the adjournment application and published written reasons for decision (Reasons for Refusal). The Tribunal then proceeded to hear the application and reserved its decision. While the parties did not provide a copy of the order and the Reasons for Refusal to the Appeal Panel, the Appeal Panel made the order and reasons for refusing the adjournment application available to the parties. 8. On 27 June 2018, the Tribunal made the following orders (decision): 1. the [appellant] is to pay the [respondent] the sum of $22,000 within 14 days of the date of these orders. 2. The Tribunal declares that the sum of $2815.26 is not due and owing by the [respondent] in respect of the balance of monies owed under the contract. 1. In doing so, the Tribunal published written reasons for decision (Principal Reasons) 2. Following publication of the Principal Reasons, the appellant applied to set aside the decision by application dated 10 July 2018. This application to set aside was dismissed on 14 August 2018. Written reasons for refusing the set aside application were provided. These reasons included the following: In its submission dated 23-JUL-2018 and 10-AUG-2108 the [appellant] has not addressed the nature of Mr Eggert's illness which prevented him from attending the hearing on 23-APR-2018, why applicant (sic) could not have been represented by a co-director, why its expert reports were not served by 11-DEC-2017 or by 26-MAR-2018 as directed by the Tribunal on 130NOV-2017 and 19-FEB-2018 respectively. Further, the expert report dated 22-JUL-2018 that the applicant now seeks to rely upon has been filed after the conclusion of the hearing and it is not clear if the respondent expert codex digital has been briefed with a complete scope of works. 1. A Notice of Appeal was filed by the appellant on 14 August 2018. Notice of Appeal and history of appeal proceedings 1. The Notice of Appeal lists the following as grounds of appeal: On the day of the hearing I was gravely ill and contacted the Tribunal by telephone to get advice on what to do about being too sick to attend the hearing on that day. I was advised to get a doctor's certificate & that would be suffice to adjourn the hearing. I submitted the doctor's certificate, but was advised in the following days, that it was not accepted and the hearing proceeded in my absence. I was denied the opportunity to present our case, which included showing the site work on a live computer and iPad (which was agreed was what we were to do by the member in the previous hearing), and present my expert's report on the site. The finding has been made with only the applicant presenting their case, and without me showing the site working, presenting our expert's report, or explaining any of our evidence. 1. The appellant sought orders that the decision be set aside. 2. The appellant also sought leave to appeal. 3. First, it was contended the decision was not fair and equitable because it was "unable to present the facts and provide the demonstration of the working website, nor the expert's findings". The appellant asserted a genuine doctor's certificate had been provided and that "to make judgement and to proceed with the hearing without representation is unfair". 4. Secondly, the appellant said the decision was against the weight of evidence. Having referred to a "full working version of the website" and a proposal to demonstrate its functions and to bring expert opinion from someone "who is a true expert with over 200 wordpress websites", the appellant contended that the expert evidence provided by the respondent revealed that the expert for the respondent "did not demonstrate any wordpress experience" and that the appellant wished to cross examine the expert for the respondent. 5. Thirdly, the appellant said more weight should have been given to the doctor's certificate "as the Tribunal staff had advised me that this would be ample to adjourn the case until I was well enough to attend". 6. Fourthly, the appellant says there is significant new evidence that was not reasonably available at the time of the original hearing. This evidence is said to relate to a former programmer, previously working for the appellant, who now works for a company called "House of Coders" (also referred to as House of Koders in some submissions) and an assertion that the respondent or House of Coders "have stolen [the appellant's] employee and intellectual property". 7. In reply, the respondent says there was another director of the appellant who could have attended the hearing. His name was Mr Andrew Lewis. The respondent also says the medical certificate was deficient. 8. Otherwise, the respondent refers to the history of the proceedings and maintained its position that the system supplied by the appellant was deficient and did not operate properly. The respondent says that the work of the appellant was not completed after about 3 years and that the appellant has made admissions that "the site was not configured". 9. The proceedings were listed for callover before the Appeal Panel on 21 August 2018. At that time, directions were made for the preparation of the appeal for hearing. The orders included for the parties to provide any evidence from the original hearing, any fresh evidence for which leave was sought, and to provide a copy of the sound recording of the hearing at first instance and a typed copy of relevant parts. 10. The proceedings were listed for hearing before the Appeal Panel on 23 October 2018. Mr Andrew Lewis appeared for the appellant. Ms Louise Heffernan appeared for the respondent. 11. Despite the directions of the Appeal Panel, we were not provided with all relevant documentation prior to the hearing of the appeal. Consequently, directions were made at the conclusion of the hearing of the appeal to permit the filing and service of evidence from the proceedings at first instance and further submissions. This included a legible copy of documents provided in the proceedings at first instance, a typed copy of any parts of the transcript relied upon by the appellant and submissions about whether an order should be made under s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act) dispensing with a hearing. 12. Again, these directions were not complied with on a timely basis. Consequently, on 23 November 2018 the Appeal Panel made further directions to extend the time in consequence of the appellant failing to comply with the directions made 23 October 2018. The process of providing further submissions was completed by the end of November 2018. 13. It is in this context that the appeal needs to be determined. 14. As the parties have had a chance to provide further written submissions, we see no need for a further hearing. Consequently, we will make an order dispensing with such a hearing. Consideration 1. It is unhelpful to attempt to set out in complete detail the submissions which the parties have made. A number of the submissions from both parties are unhelpful, simply seeking to criticise the conduct of the other party both during the course of the work, the subject of the dispute, or make other irrelevant comments on such matters as alleged "substance-abuse" by particular witnesses. 2. Rather, we will deal with relevant submissions by reference to the real issues to be determined by the Appeal Panel. They are: 1. Was the Tribunal in error in refusing the adjournment application? 2. Should the appellant be permitted to adduce new evidence? 3. Should the time to file the appeal be extended? 4. If yes, should leave to appeal be granted, should the appeal be allowed and, if so, what orders should be made? 1. There is a right of appeal on a question of law. Otherwise, leave to appeal is required. Leave may only be granted in an appeal from a decision of the Consumer and Commercial Division if the appellant can show it may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, was against the weight of evidence or there was significant new evidence that was not reasonably available at the time the original proceedings were heard: see s 80(2)(b) and Sch 4 cl 12 of the NCAT Act. Collins v Urban [2014] NSWCATAP 17 sets out relevant principles applicable to the grant of leave. 2. For the purpose of understanding our reasons, we should reference some of the documents which have been filed in this appeal to which we will refer in these reasons. These are: 1. Respondent's (Girl Friday) two volumes of material provided to the Tribunal in the proceedings at first instance, which are marked volume 1 and volume 2, which we will refer to as RB 1 and RB 2; 2. Appellant's 2 volumes of material marked "eNumber 46464SK50" and "eNumber 76464FH870", which we will refer to as AB1 and AB2; 3. Appellant's appeal bundle filed 26 September 2018, including new evidence in the form of a report from Mr Jason Toyer of Codex Digital (Toyer Report): which we will refer to as AB 3; 4. Appellant's further bundle of documents filed 29 October 2018 (after the hearing and without leave), including new evidence in the form of a report from Dong Yue dated 29 October 2018 (Yue Report) and an incomplete copy of the transcript of the hearing at first instance: which we will refer to as AB 4; 5. Appellant's further bundle of documents filed 30 November 2018 (filed after the hearing and without leave) including a covering submission from Mr Andrew Lewis, the representative of the appellant: which we will refer to as AB 5. Was the Tribunal in error in refusing the adjournment application? 1. The appellant submitted that, upon its director Mr Eggert taking ill, it contacted the Tribunal, made a request to adjourn and provided a medical certificate. 2. The effect of this submission is that, in refusing the adjournment application, the appellant had been denied procedural fairness. If such an error had been made, this would constitute an error of law for which there is a right of appeal. 3. The appellant, through its representative Mr Lewis, submitted that it was necessary for a director to appear, and that Mr Lewis, who appeared for the appellant in the appeal, was otherwise unavailable to appear at the original hearing on 27 June 2018. In making this submission, Mr Lewis conceded there was no evidence before the Tribunal, either in the proceedings at first instance or on appeal to support the claim he was unavailable on 23 April 2018 and why he could not attend. 4. The respondent said the Tribunal was correct to refuse the adjournment on this ground of challenge should fail. 5. It is clear that the proceedings had been listed before the Tribunal on a number of occasions. In this regard, the Tribunal was constituted by the same Member when the proceedings were listed on 19 February 2018 and 23 April 2018. 6. In the Reasons for Refusal, the Tribunal noted that the application for an adjournment was made by email sent at 9:47am on the morning of the hearing. The Tribunal set out the terms of the medical certificate, including reference to an unspecified "medical condition" which made Mr Eggert "unfit for work". The Tribunal referred to relevant authorities concerning applications to adjourn and the sufficiency of medical evidence. It is not necessary to set out these matters in detail. 7. The Tribunal then said on page 3 of the Reasons for Refusal: Applying the above principles to the present application the Tribunal is of the opinion the medical certificate provided by David Eggert does not adequately explain why he could not attend the hearing on 23/4/18. As noted earlier, the applicant opposed the application for the adjournment and was ready to proceed with the hearing. The guiding principle of the Tribunal set out in section 36 of the Civil and Administrative Tribunal Act 2013 is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Having regard to the guiding principle, I determined it was appropriate to proceed with the hearing and conclude the matter. The Tribunal notes that another representative of the respondent was in attendance at the hearing when the matter was last before the Tribunal. The respondent has not advanced any reason why that representative or some other person could not attend the hearing on 23 April 2018. 1. For these reasons, the application to adjourn was refused. 2. In our view, the reasons to reject the adjournment application were adequate. The Tribunal identified the relevant law to be applied in considering the evidence of illness. The Tribunal had regard to the fact that another representative of the appellant had appeared on earlier occasions before the Tribunal and that no explanation had been given as to why another person could not attend. 3. Mr Lewis, who appeared for the appellant at the hearing of this appeal, said he was unavailable to attend the hearing on 23 April 2018. However, no evidence of this fact was provided to the Tribunal at first instance, nor was any evidence provided to the Appeal Panel other than by way of a submission by Mr Lewis at the final hearing of the appeal. 4. It is clear from the evidence in this appeal that there are other employees of the appellant who were involved in the project. Again, no explanation has been given as to why somebody other than Mr Eggert could not have attended on the day of the hearing. 5. In our view, no error has been established and this ground of appeal is dismissed. Should the appellant be permitted to adduce new evidence? 1. Prior to considering whether the time to file the appeal should be extended, it is necessary to determine whether the appellant should be permitted leave to adduce new evidence, and if so what evidence. This is because the evidence, if admitted, will be relevant to a consideration of the merits of the appeal and whether the time to appeal should be extended: see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. 2. There are two written reports upon which the appellant wishes to rely. One is the Toyer Report, filed prior to the hearing of the appeal. The other is the Yue Report filed after the hearing of the appeal and without leave of the Appeal Panel. In addition, the appellant seeks to rely upon various emails and other documents said to be part of the project records including those found in AB 4 and AB 5. 3. In respect of the Toyer Report, Mr Lewis properly conceded this evidence was evidence that could have been obtained prior to the original hearing. An examination of the Toyer Report reveals that it purports to offer an opinion concerning the operational status of the system against the functionality specified in the scope of work. 4. As indicated above, the Tribunal in the proceedings at first instance, had originally made directions for the filing and service of such evidence on 13 November 2017. A further opportunity was provided to the appellant to provide such evidence by directions made 19 February 2018. The evidence had not been filed and served prior to the hearing on 23 April 2018. 5. This was despite the tribunal recording at [66]-[67] that: 1. that it made clear on 19 February 2018 that both parties were required to provide such expert evidence if it was to be relied on; and 2. the appellant had failed to comply with the directions to file such expert evidence. 1. Having regard to the history of these proceedings, the directions made, the nature and content of the Toyer Report, and the concession made by Mr Lewis in submissions to the Appeal Panel, it is clear that this report was evidence reasonably available at the time of the original hearing: see Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [19] and following. There is certainly no evidence to the contrary. 2. Accordingly, leave to rely on this evidence should be refused. 3. For the same reasons, leave to rely on the Yue Report should also be refused. Again, this report seeks to analyse the performance of the system and there is no evidence to suggest it was not reasonably available at the time of the original hearing, as that term is used in Sch 4 cl 12(1)(c) of the NCAT Act. 4. In any event, we note the Yue Report indicates there are some deficiencies in the system. In this regard the report records: HOTELS LIST / LOGIN FUNCTIONALITY -Client card and contact detailed dashboard -Location and venue notes -Pricing rules -Star ratings Conclusion-above functionalities are working. Star rating has bug and may not working well sometimes, and need fix. CONTRACTOR LOGIN FUNCTIONALITY -Upload photos -Job snapshot -Preference of jobs -Availability and schedule -Personal information Conclusion - above functionalities are working. Checkin has bug and may not work well sometimes, and need to fix. … RESPONSIVE FUNCTIONALITY -Website responds mobile -Website responds tablet -Functionality not limited Conclusion - above functionalities are working. The styling is a little messy and has room to improve. EDM MANAGEMENT/ MAILOUT FUNCTIONALITY Conclusion - doesn't have this functionality. CLOSING STATEMENT The Girl Friday website has been met the requirements in contract to a reasonable standard. Functionalities working as expected and covered the requirements. There are few bugs need to be fixed. 1. In relation to these deficiencies, the nature and extent of the problem is not disclosed, other than in the most general terms, nor is any explanation given as to what is required to fix the problems, including as to time. However, this evidence would tend to support the respondent's claim that defects remained in the system after nearly 2 years. It follows that if we had determined to allow the Yue Report, it would not have assisted the appellant. 2. In relation to other documents, including a statement from Mr Lewis, again this material should have been provided in accordance with the Tribunal's direction and leave should be refused. 3. As to the allegations concerning a former employee of the respondent and his employment contract, this is irrelevant to the present application. Insofar as the appellant has any rights arising from copyright in its software or has a complaint concerning the conduct of its former employee, these are not matters which can be pursued in the proceedings as presently constituted and, in any event, the appellant should not be permitted to do so at this time. 4. The last matter to deal with is the appellant's submission that it wished to rely upon a demonstration of the website at the original hearing, a matter which the Tribunal at first instance had indicated it would be permitted to do but which did not occur because Mr Eggert did not attend the hearing. 5. Again, there is no explanation as to why another director or employee of the appellant could not have attended the hearing at first instance and provide any relevant demonstration. 6. Further, to the extent relevant material was not included in the documents submitted by the appellant at the original hearing, there is no reason why statements from relevant witnesses were not prepared and filed as directed by the Tribunal. Such statements should have included any relevant screenshots or other information depicting the system operating satisfactorily and dealt with the evidence which had been provided by the respondent. In this regard, each of orders 8 made 13 November 2018 and order 7 made 19 February 2018, which related to directions for the filing and service of evidence provided as follows: All evidence from a party's witness(es) in support of that party(ies) must be in the form of a statement, statutory declaration, affidavit or expert report as appropriate. 1. In our view, having regard to the history of the proceedings, the appellant has had a reasonable opportunity to present its evidence and submissions and has failed to do so. 2. Accordingly, the applications to adduce fresh evidence should be refused. Should the time to file the appeal be extended? 1. In relation to the application to extend the time in which to file the Notice of Appeal, the appellant made the following submissions. 1. It was cheaper to file a stay and set aside application; 2. The appellant did not know there was 28 days in which to lodge an appeal; 3. The appellant had been informed by the brother-in-law of one of the directors or employees of the appellant that a set aside application was the appropriate way to proceed; 4. The appellant was not told when it filed the application to set aside and did not know there was a 28 day period to appeal; and 5. The appellant's representative thought the 28 day period ran from when the set aside application was determined. 1. In reply, the respondent submitted it had been prejudiced. It was unfair for the proceedings to continue. The proceedings had taken up a lot of time and money and, as evidenced by the history of the proceedings, the appellant had not complied with the Tribunal's requirements on a timely basis. 2. The Notice of Appeal indicates that notice of the decision was received by the appellant on 28 June 2018. Consequently, the time to file the Notice of Appeal was on or before 26 July 2018. 3. On 10 July 2018, the appellant filed the application to set aside or vary the Tribunal's decision. As indicated above, that application was dismissed on 14 August 2018. The Notice of Appeal is dated 14 August 2018 and was lodged on this date. The Notice of Appeal did not seek leave to appeal. However nothing turns on this point. 4. The oral submissions made by the appellant are somewhat inconsistent. On the one hand, it said it was unaware that the time to file the Notice of Appeal was 28 days from the date of notice of the decision. On the other hand, the appellant chose to pursue the "cheaper" option of applying to set aside the decision (the fee to lodge a set aside application being less than the fee to appeal) and asserted that it thought it had 28 days after the set aside application was determined in which to lodge the appeal. 5. Taken together, these matters count against the grant of leave to appeal. This is because, on balance, the material before the Appeal Panel suggests the appellant was aware of its rights, elected for the "lower cost" option, and when it failed on the set aside application then sought to exercise its rights of appeal. In our view, the explanation for the delay is unsatisfactory. In this regard, the Appeal Panel said in Jackson at [44]: If a party applied to set aside a decision under cl 9, was unsuccessful and then lodged an internal appeal under s 80 of the Act out of time, the fact that the party had lodged an unsuccessful set aside application would not by itself justify the grant of an extension of time in which to appeal. There would need to be some additional circumstances which would lead to an injustice being worked upon the appellant if an extension of time were not granted. No additional such circumstances were identified by the appellant. 1. Nonetheless, having regard to the fact that the appeal was lodged on the same day as the set aside application was dismissed, it is appropriate to consider the merits of the appeal: see Jackson at [22(4)]. 2. As stated above, and as recorded in the Principal Reasons, the dispute concerns a contract to develop software and an Internet portal for use in the respondent's business. There is no dispute in this appeal that the functional requirements and scope of work, at least initially, were recorded in a document entitled Scope of Works found in RB 1, Annexure 4 (Scope), there being some minor variations contained in emails between the parties from 1 September 2018 until the date when the contract was entered into on 1 October 2015: see Principal Reasons at [28]. There is also no dispute concerning the price for the works, namely $22,560 plus GST or that it would be paid by instalments: see Principal Reasons at [25]-[26]. 3. Relevantly, the Scope (by reference to the typed page numbers in that document) provided for the following: 1. Approximately 188 hours of work comprising Website Custom Functionality (100 hours), Content Gathering and Loading (10 hours), Website User Acceptance Testing (30 hours), Website Go Live (8 hours) and Project Management (40 hours): Scope p 12; 2. the work would take approximately 5 – 7 weeks to complete: Scope p 13; 3. Functionality would include Hotels List/login Functionality, Contractor login Functionality, Allocation Functionality, Calendar Functionality and Intranet Functionality: Scope p 4; 4. A content management system including text, image, video and audio publication: Scope p 4; 5. The website will be "Wordpress based" with custom functionality developed "by extending the most similar plug-in": Scope p 4; 6. Ability online to view shifts, apply for shifts, view applicants for shifts and assigned shifts to applicants: Scope p 5; 7. Hosting and backup facilities: Scope p 9. 1. In addition, the email exchange which provided modifications to the Scope prior to the contract being entered into on 1 October 2015 (Annexure 5 of RB 1) referred to an auto save function to provide for the situation where "shoppers are losing data and having to do it again": Annexure 5 of RB 1 p 2; 2. The Tribunal accepted as expert evidence a letter dated 15 November 2017 (AB 1) and a report from Mr Teremi, dated 1 March 2018 concerning the operation of the system (AB 2). 3. The letter dated 15 November 2017 was in the following terms: We have reviewed the information relating to the website and database it is connected to. Upon review and careful analysis of the data we concluded the following: 1. Website slow, poor response times and performance. 2. Importing and exporting data experienced loss of some data. 3. No double allocation allowed, which was in the specification but not available. 4. No database optimisation schedule or executed. 5. Mixed modes of .net and php generally poor practice. 1. In the report dated 1 March 2018, Mr Teremi gave evidence that he reviewed the specification documents, inspected the system and made various observations, including the following: 1. "I have understood that the website backup was not provided correctly. This may have been the case as it looks as though all data inside the website is missing. Data has not been included in the backup. There is no retention period on the hosting server. The computer that was used for hosting the site may not have been a real server. A real server would be probably backed up always (incrementally and substantially)" 2. There was no "backup plug-in" to provide a backup/restore facility "on-the-fly". Rather, it was necessary to contact the Internet service provider or reply upon the servers administrator/host to provide this service; 3. There was no newsletter functionality. 1. In his report dated 1 March 2018, Mr Teremi also made reference to an email from Mr Eggert dated 7 August 2015 concerning the system "deliverables", a matter to which we will return below. 2. During the hearing of the appeal, the appellant challenged the findings of the Tribunal. This challenge requires an analysis of what the Tribunal found in the context of the expert and lay evidence. 3. As to the expert evidence, the appellant said there was no evidence that Mr Teremi in fact operated the actual system which had been supplied. However, having made this submission, the appellant accepted that there was no evidence to support this submission. In addition, the appellant accepted that the system could have been downloaded and operated independently than over the Internet. 4. For the following reasons, we do not accept the submission that there was no evidence that Mr Teremi operated the actual system supplied. 5. In his report dated 1 March 2018, Mr Teremi says "there is no visible sign of a backup plug-in". This statement indicates that he has examined the system and his observations were made in circumstances where he had made reference to the specifications and any licensing constraints that might otherwise have applied. The appellant's "no evidence" submission is also inconsistent with Mr Teremi's comment that data in the backup is missing: see RB2 p 1 of 5. Lastly, it is inconsistent with his observations concerning the newsletter functionality. 6. In relation to the conclusion that there was no newsletter functionality, the appellant said that this was not a requirement of the specification. Therefore, any absence could not have constituted a breach of the agreement. Neither party has pointed to any part of the Scope that required this functionality. It follows that this lack of functionality could not constitute a relevant defect. However, for reasons that follow, this fact does not mean the decision of the Tribunal was in error. 7. Perhaps more significant, is the last dot point comment at RB 2 p 2 of 5 of Mr Teremi's report dated 1 March 2018. There, Mr Teremi says: I noted prior to the contract being issued and (sic) email from David Eckert (sic) Friday, 7 August 2015 issuing deliverables that were specified but not provided. I analysed this data and took note of the findings as highlighted in green. 1. The document with green highlighting, to which Mr Teremi refers, is part of Annexure 3. It is found following a copy of the NCAT Procedural Direction 3 – Expert Evidence, which Mr Teremi signed, as acknowledgement of his compliance with that Procedural Direction. The document with green highlighting is found at RB 2 pp 1-3 of 13. This document is an extract of an email sent by Mr Eggert on behalf of the appellant to Ms Heffernan on behalf of the respondent, into which has been inserted comments highlighted in green. A copy of the original, unedited, email is found at RB 3 pp 6-7 of 13. 2. The annotated comments in green do not suggest they have been prepared by Mr Teremi. For example, under the heading "Invoices" on p 2 of 13, are the comments: Didn't do it for us We didn't get this 1. Rather, the commentary found on those pages, highlighted in green and referenced by Mr Teremi for identification purposes, appears to be that of Ms Heffernan, or someone from the respondent, but not Mr Teremi. 2. The relevance of this analysis is that it is unclear from the report of Mr Teremi whether he is agreeing with the commentary highlighted in green or, as his report dated 1 March suggests, he simply "took note of the findings as highlighted in green" being comments of a third person. If the latter, then to the extent the Tribunal relied on the comments highlighted in green as expert evidence of particular defects, it was wrong to do so unless Mr Teremi provided a separate opinion to support such a view. 3. A resolution of this matter requires a consideration of the manner in which the Tribunal dealt with the evidence, including that of Mr Teremi and the lay evidence of the system not operating correctly. 4. In relation to the expertise of Mr Teremi, having identified his qualifications and experience in [45] of the Principal Reasons, the Tribunal said at [46]: I find that Mr Teremi has sufficient experience and qualifications to provide an expert opinion on the operation and functionality of the website and software programs developed by [the appellant] for the [respondent]. 1. Having rejected the evidence of Ms O'Grady (the respondent's other expert) earlier in its reasons at [50]-[51], the Tribunal then made the following findings concerning the evidence of defects, including the expert evidence of Mr Teremi at [60] and following of the Principal Reasons: 60 [The respondent] bears the onus of proof and must provide evidence which satisfies the Tribunal on the balance of probabilities that [the appellant] has breached its obligations under the contract. 61 The Tribunal has considered the evidence presented by both parties. The contract required [the appellant] to create a website for [the respondent] which met certain specifications as set out in the scope of works and (sic) varied in accordance with the email correspondence. 62 The Teremi Report establishes that there were many deficiencies with the website and software program developed by [the appellant]. Those deficiencies are highlighted in the report. 63 The findings of the Teremi Report were not challenged by [the appellant] and support the anecdotal evidence in the email correspondence between the parties. There is a history for at least 2 years of ongoing issues and problems with the website and software. 1. These findings included the views expressed by Mr Teremi in his letter dated 15 November 2017 that: 1. The system was slow; 2. Data was lost; 3. No double allocation was allowed; 4. The was no database optimisation; and 5. The system design showed poor practice. 1. The Tribunal then referred to the witness statements of Ms Sharpe, Ms Kendrick and Mr Roberts as well as the evidence of Ms Heffernan concerning problems with the system and concluded at [64]-[65]: 64 … the inescapable fact is the system did not perform according to expectations. 65 The system may have been live but did not function according to [the respondent's] specifications in the contract. [The appellant] did not deliver a website and software in accordance with the contract. 1. In making this finding, the Tribunal noted at [66], as we have recorded above, that the parties had been informed by the Tribunal at the directions hearing on 19 February 2018, that they needed to provide expert evidence on these issues. The Tribunal then continued at [67]: 67 (The respondent) filed the Teremi Report and the O'Grady Report. Whilst [the appellant] filed a submission and attached documents, it did not provide any independent expert's report to refute the claims made by [the respondent] or to challenge the findings in the Teremi Report. In the absence of such evidence, I accept the findings and conclusions of the Teremi Report. 1. As we indicated above, we have not been provided with a full copy of the transcript of the hearing, despite directions in this regard. However, what seems clear from the reasons at [13] was that only Ms Heffernan for the respondent gave oral evidence at the hearing. That is, the only expert evidence the Tribunal had before it was in the form of the documents to which we have referred. Otherwise, there was lay evidence concerning the functionality of the system in written and oral form. 2. The question is whether this evidence was sufficient to justify the conclusions which the Tribunal reached. In this regard, it needs to be remembered that the rules of evidence do not apply. On the other hand, in a case such as the present, a claimant must provide appropriate evidence by way of documents, written statements and/or expert reports which identifies the obligations in relation to any contract to supply goods and services, the manner in which such contract has been breached and must demonstrate that those breaches arise from the conduct of the person against whom the claim is made. 3. On balance, we have formed the view that the evidence which the Tribunal had before it was sufficient to justify the conclusions which it reached. It did so having regard to the documentary evidence provided by the appellant, which the Tribunal considered despite the appellant failing to appear at the hearing. The following matters are persuasive: 1. The contract provided for the working system to be delivered within 5 to 7 weeks. The work was not completed in 22 months 2. The system was to be an interactive system capable of having relevant data input in the system and retrieved from the system. That process included retaining that information in a relevant database in appropriate backup facilities. 3. The email exchanges between the parties, and the statements of the lay witnesses confirms that the system did not operate in the manner required and is not in a complete state. Examples of relevant evidence recording these facts include: 1. Ms Kendrick concerning the appellant "losing the data on the operation site", an event apparently occurring in 2017 (Kendrick's statement dated 13 November 2017 -RB1); 2. The email exchanges between Ms Heffernan and Mr Eggert, inter-alia found in AB 2 these include: 1. at p 43, email dated 28 March 2017- "There are continuous glitches almost daily at the moment"; 2. at p 56, email dated 21 July 2017-"We will be testing and using our manual system and our new system for August. So I hope everything is ready." 3. At p 76, email dated 8 August 2017- "There is still stuff missing … Not all functionality is uploaded as per the agreement." 1. Ms Sharpe, one of the contractors for the respondent, referred to an inability to access the "portal" in order to provide information and submit reports. In one case, Ms Sharp said her report would "not save correctly, and data would go missing" in consequence of which she had had to spend more than an hour and a half trying to fix the problem before contacting Ms Heffernan (Sharpe statement dated 17 November 2017-RB1). This event occurred in August 2017; 1. The observations made and opinions expressed by Mr Teremi on 15 November 2017 and 1 March 2018 are consistent with the observations of system users set out above. 2. There was no evidence from the appellant filed prior to the hearing to suggest that it conducted a review against the Scope during the course of the works nor has it provided any witness statements or documentary evidence to demonstrate that particular requirements of the system were met, when they were met and when the work required by the original Scope was completed. Rather, the evidence is in a stream of emails, with interposed comments and narratives, said to be "timelines" which are themselves attached to a further commentary, again lacking in relevant detail: see e.g. introductory summary at the front of AB 2. 1. Having regard to the above, we are not satisfied the Tribunal was in error in its findings of fact or that the appellant has demonstrated sufficient merit in its case to justify the Appeal Panel in granting an extension of time. 2. Accordingly, the request to extend time to lodge the Notice of Appeal is refused. If yes, should leave to appeal be granted, should the appeal be allowed and, if so, what orders should be made? 1. These questions do not arise. Orders 1. The appellant did not otherwise challenge the form of orders. It follows the appeal should be dismissed. 2. Consequently, the Appeal Panel makes the following orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act. 2013 the Tribunal dispenses with a further hearing. 2. The application to adduce fresh evidence is refused. 3. The application to extend the time in which to file the Notice of Appeal is refused. 4. Leave to appeal is refused and the appeal is otherwise dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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 January 2019