Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lysle v Stewart [2019] NSWCATAP 296 Hearing dates: 29 April 2019 Date of orders: 10 December 2019 Decision date: 10 December 2019 Jurisdiction: Appeal Panel Before: T Simon, Principal Member A Boxall, Senior Member Decision: (1) Leave to appeal is refused (2) The appeal is dismissed Catchwords: APPEAL – Home Building, jurisdiction, transfer, leave to appeal, no issue of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Roberts v Chan & Naylor Parramatta Pty Ltd [2018] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Rebecca Lysle (Appellant) Paul Stewart (First Respondent) Gary Cheshire (Second Respondent) Representation: None File Number(s): AP 19/00077 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 03 December 2018 Before: L Wilson, Senior Member File Number(s): HB 18/36330; 18/36330 reasons for decision Background 1. This is an internal appeal pursuant to s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 3 December 2018. 2. For the reasons set out below, we have decided to refuse- to grant leave to appeal and to dismiss the appeal. Background 1. The dispute involves two applications. The primary application was an application by the respondents that they were owed monies for building works done for the appellant who is a homeowner. There was also a cross application by the homeowner. The proceedings had been commenced in the Local Court and the appellant had sought to transfer the proceedings to the Tribunal. The respondents had ultimately consented to the transfer from the Local Court. The matter was listed for hearing before the Tribunal on 3 December 2018 to determine whether the Tribunal had jurisdiction to decide the matters and whether the matters should be transferred back to the Local Court. The Tribunal found it did not have jurisdiction to decide the matters and made an order transferring the matters back to the Local Court. Submissions and evidence 1. The Appeal Panel received the following documents from the parties: * On 24 December 2018 the appellant lodged the 'Notice of Appeal' * On 15 April 2019 the respondent provided submissions on the Appeal. While the respondent did not formally lodge a 'Reply to Appeal', we accept that those submissions constitute a reply to the Appeal. * On 23 April 2019 the appellant provided further submissions in relation to the appeal including documents and statements that were not originally before the Tribunal. 1. The Appeal Panel also had before it a copy of the directions that have been made by the Appeal Panel. Notice of Appeal 1. The Notice of Appeal was lodged on 24 December 2018, which is within the 28-day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules). Although the appellant has sought an extension of time, no such extension is required. 2. The appellant appeals on the basis of errors of law and seeks leave to appeal the decision pursuant to section 80 (2) (b) of the NCAT Act. Error of Law - Jurisdiction 1. The appellant submits that the Tribunal made an error of law in relation to the exercise of the Tribunal's jurisdiction to transfer the matters back to the Local Court and that the proceedings should have instead been dismissed for want of jurisdiction. The appellant submits that the transfer from the Local Court happened with the consent of the parties and that the jurisdictional time issues were not known to her at the time she made the application for transfer. Much of the material that has been provided by the parties to the Tribunal and to the Appeal Panel relates to the family issues between the parties. In her appeal the appellant does not appear to challenge that at least the respondents claim would be out of time to be heard in the Tribunal. The appellant submits that this is not a home building claim and that the proceedings relate to the family dispute rather than a home building dispute and that they are an abuse of process and should have been dismissed rather than transferred. 2. In the reasons for decisions, the Tribunal carefully considered whether the Tribunal had jurisdiction to decide each of the matters, including consideration of the time for commencing the proceedings. 3. The Tribunal considered the respondents application. The Tribunal found that in the event that oral contracts existed, the respondents claim in the Tribunal would be out of time, but may still be within time in the Local Court. The Tribunal relevantly found in relation to the respondent's claim that: The statement of claim pleads that two separate "verbal agreements" were entered between the parties to do work at two separate addresses; one in Granville the other in Campbelltown. Work at the first was allegedly done between August 2011 and January 2012 and work at the second was allegedly done between July 2012 and January 2013. S/C submitted the verbal agreements were entered prior to August 2011 for the Granville property and prior to July 2012 for the Campbelltown properties. For the purpose of this preliminary hearing, these dates are accepted to determine jurisdiction, but that is not a finding that I am satisfied on the balance of probabilities that (a) Oral contracts were entered between the parties; or (b) When any verbal agreements were made; or (c) What the content of any verbal agreements were, if any were made. S/C submitted that the work they did for RL/ TS was residential building work and was done pursuant to these verbal agreements entered as above. S/C submit the agreements included that they would be paid, unknown and unspecified amounts, from the proceeds of sale of the Campbelltown property. That property was sold in May 2013. Again all these facts are accepted at their highest for the purpose only of this preliminary hearing. On 13 January 2017 the first respondent, Ms Lysle, filed a cross claim against the two applicants S/C. 1. The appellant claims that instead of transferring the matter the Tribunal should have dismissed the matter for want of jurisdiction because the claim was an abuse of process and frivolous and was being used against her because of the dispute with her ex-partner, who was now in jail. Those same submissions were made to the Tribunal at the hearing and the Tribunal relevantly found that: RL [the appellant] gave multiple, compelling reasons why the Tribunal should dismiss S/C's [the respondent's] claim against her (and TS, who supports the claim against him) and then she would withdraw her cross claim. These included the stress/ distress arising from continuing to deal with her ex-partner and ex-in laws, how long the proceedings have been on foot, the fact that S/C did not comply on many occasions with the Tribunal directions and orders, and that S/C consented to the transfer to the Tribunal and did nothing about their current submission that both proceedings should go back to the Local Court until now. Despite how compelling these reasons were, the Tribunal considers it in the interest of justice to allow the parties to have their claims determined on their merits, in a venue which seems to have the power to do so. As previously explained, just because the Local Court determined that the building claims could be heard by the Tribunal under Division 4 of the Home Building Act (se s.48L(1)) this (implicit) finding does not bind the Tribunal. It is the case that these building (and negligence) claims cannot be heard by the Tribunal. The alternative to transferring them back to the Local Court is to dismiss them for want of jurisdiction. However the fact is it was RL who (successfully) sought to transfer these proceedings to the Tribunal, so it cannot be that complaint can be made now that the transfers back and forth have unduly prolonged what are painful proceedings for her. The Tribunal accepts that these proceedings are extremely painful for RL. However the distress that has arisen by their ongoing prosecution has partly been caused by their unnecessary transfer from the Local Court here, only to be transferred back almost one year later. The Tribunal accepts that S/C, through their lawyer, consented to the transfer. The Tribunal accepts that not only did S/C agree to the transfer but so did a Magistrate and that RL was not represented at the time. But nonetheless, the transfer happened as a result of RL's application and that in part has caused the extra delay in these ongoing proceedings. 1. The Tribunal was right not to make a final determination about the formation and the scope of the contract. The Appeal Panel accepts that the Tribunal had sufficient information in the pleadings and documents before her to accept the possibility of an oral contract between the parties. In the affidavit of Jessica Stewart dated 31 July 2017, which had been filed in the Local Court by the respondents in support of the statement of claim, she refers to the alleged works that were done by the respondents for the appellant. The claim does not amount to being frivolous simply because of the surrounding family circumstances. The Appeal Panel accepts that the Tribunal was correct to transfer the matter to be finally determined in the Local Court, including the contract formation and scope of any contract. 2. The Appeal Panel also finds that the Tribunal had the power to transfer the matter back to the Local Court pursuant to cl.6(a) of Sch 4 of the NCAT Act: (1) If the parties in any proceedings for the exercise of a Division function so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are: (a) to be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and (b) to continue before that court as if the proceedings had been instituted there. 1. The fact that the Tribunal may not have jurisdiction to hear and determine a claim made in proceedings of the Tribunal does not mean that the proceedings are not "proceedings for the exercise of a Division function", (as defined in clause 1 of Schedule 4) or that the Tribunal does not have the power to transfer the proceedings to a Court (see Roberts v Chan & Naylor Parramatta Pty Ltd [2018] NSWCATAP 69 para 51). 2. Accordingly, we find no error of law and this appeal ground fails. Leave to Appeal 1. The appellant seeks leave to appeal on the grounds that the decision was not fair and equitable. In that regard the appellant submits that the proceedings are being used against her due to her previous relationship with Mr Timothy Stewart. The appellant submits that the decision was against the weight of evidence because the Tribunal had not properly considered the appellant's documents including a folder of evidence. The appellant also claims that the Tribunal did not give sufficient weight to the respondent's conduct and non-compliance with previous directions or the serious nature of crimes committed against her and her children. 2. As demonstrated in [11] above, the Tribunal did take those issues raised by the appellant into consideration, including the stress that the proceedings were causing the appellant. In the reasons for decision the Tribunal also refers to the folder of documents that was filed by the appellant and states that it formed part of the evidence. 3. Clause 12 to Sch 4 of the NCAT Act relevantly requires that in order to grant leave the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that (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… 1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 may have been suffered 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. 1. In Collins v Urban, the Appeal Panel went on to list at [84] that 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. The Appeal Panel must also consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. We are of the opinion that leave to appeal should not be granted. The appellant has not demonstrated that there is a significant possibility that she was deprived of a chance that was fairly open of achieving a better outcome than occurred. Nor do we exercise the discretion to grant leave to appeal under s 80(2)(b). 3. The appellant's assertions that the decision was not fair and equitable and was against the weight of evidence, raises the same issues that were raised in the submissions on errors of law, which we do not accept. We do not find that the Tribunal did not reach a reasonable conclusion on the evidence that was before it. We are satisfied that the appellant did not suffer a substantial miscarriage of justice as a result. 4. In relation to leave, we are of the opinion that there are no issues of principle, no questions of public importance or matters of administration or policy which concern this appeal. Nor are we satisfied that the appellant has suffered a substantial miscarriage and leave to appeal is refused. Orders 1. In light of the above, the appropriate orders are: 1. Leave to appeal is refused 2. The appeal is dismissed ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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: 10 December 2019