Abdallah v Paco Nominees Pty Ltd

Abdallah v Paco Nominees Pty Ltd - [2024] NSWCATAP 259 - NSWCATAP 2024 case summary — Zoe

[9]

The affidavit Mr Azzi

The documents sought to be relied on were briefing documents that were before the respondent's experts which the appellant submits should have been included in the joint tender bundle before the Tribunal, but were not.
The appellant's counsel said that these documents were important as the Substantive Decision suggested that all the appellant's expert Mr Mellick did was to "regurgitate instructions", and that the documents sought to be tendered were in fact referred to by the respondent's experts. Mr Byrne submitted that these documents provided a very clear and logical basis to deduce or demonstrate that what in fact was being commented by the experts was different to what had been "built and signed off on" with the occupation certificates in 2019. Thus, the conclusion is that there were works afterwards.
Mr Byrne submitted that these were documents that should have been before the Tribunal.
Senior Member Molony enquired, consistent with the test in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111, why the documents now sought to be relied on were not reasonably available at the time of the Tribunal hearing. Mr Byrne's response was that at the time of the application for the adjournment of the hearing, the appellant, being unrepresented and confused, was not aware that those "Council documents" were not there, as was the Tribunal.
Mr Byrne submitted that it was "pretty critical" that the "fundamental documents" were not before the Tribunal.
In his written submissions, Mr Hopkins for the respondent stated that (footnotes and supporting evidence omitted): The appellant should not be permitted to rely on the fresh evidence referred to above. The … evidence [is] evidence which could have been raised at the time of the hearing. Importantly a tender bundle had been prepared ahead of the hearing by all parties, which contained the documents and evidence served to date by all parties, and to the extent that such documents or evidence was not contained in the tender bundle, it should not now be permitted to be as fresh evidence. To do so would violate principles of finality. Furthermore, the appellant served all of his fresh evidence in breach of the directions made by the Appeal Panel for service of his materials for the appeal, and this provides a further basis for those materials to be excluded.
Mr Hopkins then invoked the Appeal Panel's decision in Noori v JMG Auto Parts Pty Ltd [2022] NSWCATAP 250 where the Appeal Panel stated: 74. … an appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And, as the Appeal Panel stated in Temple, in passages relied on by the respondent: 38. … Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so). 39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. Yet, that is, in effect, what the present Appellants seek to do by identifying what they contend are contestable findings of fact by the Member. 75. To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website): … an appeal is not an opportunity to have a second go at a hearing.
These written submissions were amplified in oral submissions by Mr Hopkins, and then responded to by Mr Byrne. Mr Byrne emphasised that these documents should have been before the Tribunal, and that it was a procedural fairness issue that they were not.

[14]

A question of law

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. These include, but are not limited to: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
These matters were recently expanded by the Appeal Panel decision in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 where the Appeal Panel stated (references omitted): 32 To the above list [referring to the list in Prendergast extracted above] might be added the following (some of which are nuanced aspects of the categories in Prendergast): (1) Whether the Tribunal drew inferences that were not available from the facts as found (an extension of item 7 [of Prendergast]) … (2) Whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way: … (3) Whether the Tribunal's decision was vitiated by bias, or a reasonable apprehension of bias, relates to and intersects with the fair hearing rule, and may encompass or be related to the procedural fairness question: … (4) Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: … (5) Whether the facts as found necessarily satisfied the statute or necessarily did not: … … 33 Plainly, the categories are not closed. 34 In addition, because the list in Prendergast has been extensively referred to and cited, it is important to clarify the following: (1) There is an important difference between wrongly applying the correct principles and applying the wrong principles. The former may not raise a pure question of law, but the latter does: … Applying the wrong principles evinces a misconstruction of the statute. (2) As set out in Prendergast, to say that considerations are "relevant" in the appellate context signifies that those considerations are mandatory having regard to the text and context of a relevant provision. Similarly, to suggest that a consideration is "irrelevant" signifies that it is prohibited by the subject‑matter, scope and purpose of the statute. These are factors in the exercise of a discretion: … .

[15]

Leave to appeal

Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant 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 the proceedings under appeal were being dealt with).
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded 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.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
All that said, appeals in respect of interlocutory decisions required leave of the Appeal Panel: NCAT Act, s 80(2). Thus, the appeal in respect of the Interlocutory Decision requires leave.

[16]

Procedural background to the decisions

It is appropriate to set out the procedural history leading to the two decisions.
The respondent filed application 2022/00405598 (formerly HB 22/47666) on 26 October 2022. [1] The respondent summarised the details of its claim as follows: Severe water damage caused to Kitchen, garage, dining, laundry and lift as a result of flooding and water leaks due to defective building practices as reported in a building inspection report completed by OFT Building Consultants and Engineers. The following are the defective building issues: - Unsealed pipework entering walls - No waterproofing upturn on the balcony walls - No waterproof Angle to the laundry door - Copper pipework on the kitchen wall has no waterproofing - Waterproofing not present from the balcony tiles to the drain - Balcony slope for tiles to the drain is not to code, well under recommendations - Concrete wall joints are not sealed or waterproofed The estimated costs for fixing the building defects is between 400k to 500k.
The respondent explained in the application that: The house was purchased … in Dec 2021. In January 2022 after heavy rains we had water entry to the garage and laundry that resulted in extensive damage. In March 2022 after a storm there was further water entry to various areas of the house causing further damage which resulted in us seeking an insurance claim we our home insurers. We engaged our home insurance to try and claim for the repairs however as the damage is as a result of the building defects they will not honor any claims until all defects are repaired. We are not the original owners or developers. The only details we have for the builder is a name and email address. We have emailed the builder on a number of occasions to discuss the defects and make arrangements to have them fixed however we have had no response to our emails. We contacted HBCF to enquire about the home builders insurance as the house is still in warranty. We were advised to lodge a complaint with dept of fair trading who then advised us to put in an application to NCAT as they are also unable to locate the builder although his licence is still current.
The matter was first listed for directions on 5 December 2022. Relevantly, the Tribunal ordered: 3. The applicant(s) is (are) to provide IN HARD COPY to the respondent(s) and the Tribunal, either in person or by post, a statement of the amount claimed and how that amount has been calculated, and all documents (see note 3 below) on which the applicant(s) seek(s) to rely at the hearing by 6 February 2023. 4. The applicant(s) is (are) to give access to the property of the applicant(s) other than during the period from 24 December 2022 to 14 January 2023 to the representative of the respondent(s) and any expert engaged by the respondent(s) for the purpose of preparing an expert report, on 3 days' notice. 5. The respondent(s) is (are) to provide IN HARD COPY to the applicant(s) and the Tribunal, either in person or by post, all documents (see note 3 below) on which the respondent(s) seek(s) to rely at the hearing by 6 March 2023. 6. The applicant(s) is (are) to provide IN HARD COPY to the respondent(s) and the Tribunal, either in person or by post, all documents (see note 3 below) in reply on which the applicant(s) seek(s) to rely at the hearing by 27 March 2023. 7. … a joint expert report is to be provided IN HARD COPY to the Tribunal, either in person or by post, by 27 March 2023. 8. The applicant(s) is (are) to provide IN HARD COPY to the respondent(s) and the Tribunal, either in person or by post, the applicant's(s') outline of submissions (see note 4 below) by 3 April 2023. 9. The respondent(s) is (are) to provide IN HARD COPY to the applicant(s) and the Tribunal, either in person or by post, the respondent's(s') outline of submissions (see note 5 below) by 10 April 2023.
On 20 January 2023, the matter was set down for a one day hearing on 15 May 2023.
On or about 8 February 2023, the respondent sought to extend the time to comply with orders made on 5 December 2022. The Tribunal made the following orders to facilitate determining the application: 1. The parties are to negotiate in relation to the interlocutory orders sought by the applicant and are to file signed terms of agreement by 13 February 2023. 2. The parties are on notice that any proposed consent orders must allow the hearing to proceed as listed on 15 May 2023. 3. In the event that the parties are unable to agree, by 17 February 2023 they are each to file and serve evidence and submissions reflecting their respective submissions, together with proposed orders that would allow the hearing to proceed on 15 May 2023.
A second directions hearing was held on 24 February 2023. The Tribunal made the following relevant orders: 5. The hearing on 15 May 2023 is vacated. 6. Time to comply with order 3 made on 5 December 2023 (applicant's points of claim and lay and expert evidence) is extended to 11 April 2023. … 7. Time to comply with order 5 made on 5 December 2023 (respondent's points of defence and lay and expert evidence) is extended to 15 May 2023. 8. Time to comply with order 6 made on 5 December 2023 (lay evidence in reply) is extended to 29 May 2023.
On 10 March 2023, the matter was set down for a one day hearing on 6 July 2023.
On 9 May 2023, following receipt of an application for miscellaneous orders filed by the appellant, the Tribunal relevantly ordered: 1. Time to comply with order 6 made on 24 February 2023 is extended to 29 May 2023. 2. Time to comply with order 7 made on 24 February 2023 is extended to 17 July 2023. 3. Time to comply with order 8 made on 24 February 2023 is extended to 31 July 2023.
In addition, the hearing of 6 July 2023 was vacated by consent.
On 29 May 2023, the matter was set down for a one day hearing on 23 October 2023.
On 16 October 2023, the appellant filed an application for miscellaneous orders. In summary, he asked that the matter be listed for directions to consider vacating the hearing listed for 23 October 2024, and a further extending the timetable for the filing of evidence. The appellant relied on an affidavit of his solicitor Ms Smith sworn 16 October 2023. In his application, the appellant relevantly stated: As set out in the affidavit, the delays result from delays by the Applicant and delays arising due to miscommunication issues with the Respondent's insurer and due to issues affecting the Respondent's health, which caused delays in the Respondent serving its expert evidence, and lay evidence and points of defence.
Amongst other matters, Ms Smith stated: [Appellant's] Personal Issues 25 The [appellant] has suffered from ongoing health related issues since around May 2023, Furthermore, I am informed that the [appellant]experienced the death of a close family member in around August 2023. The [appellant]'s personal situation resulted in further delays in the preparation of the [appellant]'s evidence in the proceedings. 26 We acknowledge the tribunals prior orders which indicated that the Third Hearing Date would not be vacated due to the previous two hearing dates having been vacated by the Applicant, however we say that there has been a significant history of delay by the Applicant in its own proceedings, and the [appellant]has not previously sought any indulgence from the tribunal in respect of any extension and accordingly we respectfully request that the tribunal make an order for the extension of the Third Timetable and that the Third Hearing Date be vacated.
The Tribunal refused that application, stating: This matter is listed for final hearing on 23 October 2023. The proceedings were commenced on 22 October 2022 and the final hearing has been adjourned on two previous occasions. The respondent has now lodged an application for miscellaneous orders seeking an adjournment of the hearing and a further extension of time to comply with orders made by the Tribunal in respect of the filing and service of evidence (the interlocutory application). The respondent asks for the interlocutory application to be listed for directions. The Tribunal does not propose to list the interlocutory application for directions for the following reasons. First, there is no availability for a directions hearing prior to 23 October 2023. Second, the [appellant] did not make the interlocutory application until a week before the hearing, even though the [appellant] was due to file and serve all documents on which it seeks to rely at the hearing by 31 July 2023. The reasons for the [appellant]'s delays (lateness of the applicant's documents, communications with the [appellant]'s insurer and the [appellant]'s medical condition) are not, on their face, a sufficient explanation for the respondent's delay in making the interlocutory application until 16 October 2023. Third, the [appellant]'s consent to the application would not means that an application for an extension of time and an adjournment would be granted in any event. The adjournment and extension of time applications will be heard at the hearing.
After ordering the appellant to file his defence and any outstanding evidence forthwith, the Tribunal relevantly noted: 5. The parties' witnesses must be present at the hearing and the parties must be ready to proceed in the event that the adjournment application is refused. 6. As noted above, the applicant's consent to the interlocutory application will not be a sufficient basis for an adjournment to be granted. 7. The parties and their representatives are reminded of their statutory obligation under s 36(3) of the Civil and Administrative Tribunal Act 2013, which requires parties and their representatives to assist the Tribunal to resolve the real issues in dispute in a manner which is just, quick and cheap. This obligation extends to compliance with Tribunal orders and taking all necessary steps to ensure that proceedings which have been before the Tribunal for twelve months are heard and finalised.
And so, the parties appeared before Senior Member Dr Briggs on 23 October 2023.

[17]

The Interlocutory Decision

Mr Hopkins of counsel appeared for the respondent. The appellant was represented by Mr Adair of counsel. Mr Adair was only instructed to appear in relation to the application to vacate the hearing. He was accompanied by his instructing solicitor.
The matter commenced at 9.15AM and oral submissions were made on the application to vacate the hearing until approximately 10.20AM, at which time the Tribunal adjourned to 11.30AM to consider its decision.
The oral submissions of counsel amount to some 20 pages of transcript.
After adjourning for about an hour and 10 minutes to consider its decision, the hearing resumed with the Tribunal delivering an oral extempore decision relevantly as follows: The application today is made on behalf of Mr Abdallah to enable him to obtain evidence, which is divided into both liability evidence, that is concerning Mr Abdallah's assertion that a significant portion of the work was not constructed by himself or under his control. Mr Abdallah has filed expert evidence of Mr Melik, which seeks to respond to the report by Bullivant & Associates Pty Limited and Ross Brown, hydraulics consultant. That is the only evidence filed by Mr Abdallah. There are two principal reasons for the respondents seeking to have the application adjourned today, having failed to comply with the Tribunal orders: A misconception that the matters in dispute would be dealt with by his insurer, and that he was therefore under no obligation to meet the Tribunal directions, despite advice from his solicitors to the contrary; A series of great personal crises, which have left Mr Abdallah unable to manage matters that have impacted upon the claim before the Tribunal. There is evidence from Mr Abdallah's solicitor of his state of mind, and this is supported by letters, not expert medical evidence, of his response to several deaths in his immediate family in Australia and Lebanon in recent times (late 2022 and onwards). Additional matters for consideration contrary to the orders of the Principal Member; the parties were to attend with witnesses in order that the application could proceed. Counsel for the respondent was briefed to appear only for the application to adjourn. It would not be possible for counsel to continue the matter without preparation. Mr Melik's expert report fails to address the issues that he was briefed to deal with, and as a consequence, the respondent is left without expert evidence, particularly on costs, but also on some factual matters, which Mr Melik was instructed on by Mr Abdallah, who accompanied him on his inspection of the works. In relation to the orders made on 17 October, the respondent has failed to file and serve its defence and any evidence forthwith. The Respondent's evidence, or most of it, has not been served by the date of the hearing. The respondent's witnesses are not present and ready to proceed in the event that the application for adjournment fails. The applicant does not consent to the adjournment, and is ready to proceed. The respondent has again failed to have regard to s 36(3) of the Civil and Administrative Tribunal Act by apparently ignoring the orders made on 17 October. The principles in Aon have been raised, and it is the respondent's position that the application is brought in good faith. The circumstances warranting adjournment have been addressed, but no evidence of circumstances which do warrant the sympathy of the Tribunal, but fall short, in my view, of providing sufficient evidence to be weighed against the effects of any delay and the objectives of the guiding principle of case management in ss 36(1) of the Act. I have carefully considered circumstances which have surrounded Mr Abdallah's failure to file and serve any substantial evidence in his defence. His extraordinary, tragic family circumstances, which claim to have affected his ability to obtain evidence, including also the failure of the expert Melik, and any other witnesses for the defence, to attend the hearing today. In the circumstances, find that the application for adjournment must fail and the hearing should proceed today.
The hearing was then adjourned until 2pm.
When the hearing resumed, the appellant was not legally represented, although he was accompanied by his nephew.
The appellant is recorded as stating: I receive a phone call from the mental surgery. I supposed to be in there today, so I came here, I didn't go there, because I couldn't, I cant concentrate. So I called him to come and take me home.
The "him" the appellant was referring to was his nephew Mr Michael Mikhael, who told the Tribunal that he was "looking after the [the appellant] mentally and emotionally".
The following exchange took place: MEMBER BRIGGS: I see. So the gentleman who's here is going to take you home now? APPELLANT: I'm just - I called him, you know, to help me, because my - when I go out, I can't. I'm out of my mind. MEMBER BRIGGS: Right. So what do you wish to do? Do you do you wish to leave the hearing now with this gentleman? APPELLANT: I'm here. What do you want me to do? MEMBER BRIGGS: It's not what I want you to do, Mr Abdallah, it's what you want to do. You feel that you're able to continue a hearing, or do you need to leave because you're ill? APPELLANT: I have no solicitor. I can't answer. I cannot decide.
At this point, Mr Mikhael assisted the Tribunal by explaining that he was the one who gave instructions to lawyers who acted for his uncle, and translating from Arabic into English for him. After listening to Mr Mikhael, the Senior Member explained that he had dismissed the application for the adjournment in the morning, and that the matter would now proceed.
Mr Mikhael then said: We were hoping that by midday the matter would be adjourned, [unintelligible 00:02:35], and that I'd even, I'd come and pick him up and take him there. I spoke to Sam, counsel this morning. He rang me up and said, 'Look, Michael, you need to come down and take him home or do whatever, because the adjournment has not been successful". So that's where we're at. We're all very confused. He's confused. I'm confused. We've got lawyers, SLF acting for my uncle. We've got lawyers acting for the insurance saying, "I'll take over the file". And it seems to be at the eleventh hour everyone has just dropped everybody, and washed their hands of this case. No fault of the applicant. No fault of the applicant. But here we are today.
The following exchange then took place. TRIBUNAL: Now, obviously, I would think it's probably in Mr Abdallah's interest to be here. But in the event that he's not able to comprehend or apprehend what's happening, and he's got reason to attend with a psychologist, it's going to be a matter for you and he to decide whether you stay at the moment. I mean, if you stay, presumably, Mr Abdallah will be in a position to respond to what is put by the applicants. You said that you translate for Mr Abdallah. Is it necessary for Mr Abdallah to have a translator? MIKHAEL: Yes and no. From a legal stand, yes. I mean, already he's made an error by saying he's got surgery. It's not surgery. It's counselling, psychological evaluation - well, the evaluation was done last week, [unintelligible 00:05:1 1]. It's not a surgery. A lot of the words that, when translated from Arabic to English, can lose its meaning. But moreover, I mean, at the moment, and I'm going to refer to him as my uncle, not the respondent, because he's my uncle, he hasn't even argued his defence yet. It's very, very, very blanket defence, per Se. He hasn't argued quantum meruit. There's a lot of things you can argue his lawyers didn't do. No fault of theirs, because we were relying on the insurance lawyers to take over the file. I'm not trying to make submissions here, I'm just trying to give you some feedback as to what we've been through. TRIBUNAL: No, I just want to understand where we're up to. MIKHAEL: And where we're up to is, everyone has just dropped us at the eleventh hour. The insurers have declined the policy. They haven't given us a legitimate answer. The applicant wants to proceed. Well, what can we do? I mean, I would invite the applicant to adjourn the matter. We will pay the costs for the day. They have had, and I'm sure counsel would have addressed the matter earlier today - TRIBUNAL: Yes, those things were dealt with. … Perhaps you might like to sit with Mr Abdallah. MIKHAEL: I'd prefer not to, sir, because I don't want to see him as being represented. Because I do have a legal background. I don't want him to be seen as being represented on the question of appeal. I'm sorry, sir, I need to be honest with you. I mean, I tried to speak to the solicitor for the applicant outside. He refused to talk to me. TRIBUNAL: All right. MIKHAEL: I mean, come on, seriously? You can't have an off the record conversation with his nephew? No fault of his. And I can see he's giggling, and counsel will have his view on law and what section of the Act. I'm just speaking from the heart. … Can I just make my last point before I leave, please? TRIBUNAL: By all means. MIKHAEL: I think Mr Member should reconsider. That's again, not making submissions. Talking as a - TRIBUNAL: It sounds like a submission. … MIKHAEL: I say with the utmost respect to [unintelligible 00:09:50] and to you sir. Costs of the applicant for the day, payable within 21 days, and let the man have his fair day in court. TRIBUNAL: Sorry, I can't do that. I've made the orders, and the orders stand. MIKHAEL: In that case, I need to leave, sir, I can't be seen here, and I need to take my uncle with me. You can deal with it as you see fit, and that's no disrespect to you sir, or NCAT.
Shortly afterwards, the appellant and Mr Mikhael left the Tribunal room, and the matter then proceeded in the appellant's absence.
At the conclusion of the hearing, the Tribunal reserved its decision, and published the following note: A determination was given orally to an interlocutory application by the respondent to adjourn the proceedings to allow to obtain and file further expert evidence and his lay evidence. The application was refused for reasons published today 23 October 2023. On resumption. The respondent, Mr Abdullah, was excused from the hearing following representations by a relative Mr Mickael Michael, who referred to Mr Abdullah as his uncle. Mr Michael sought a re-view of the decision to continue the hearing noting that the circumstances left the Respondent without representation and with some difficulties in relation to the English language. (I note that there has been no previous submission or evidence of any difficulties experienced by Mr Abdullah with the English language) Mr Abdullah is and has been a licensed builder for some years. Mr Michael noted and Mr Abdullah confirmed that he was expected to attend a meeting with a psychologist this afternoon. This appointment was not referred to in submissions this morning. I declined to review the interlocutory determination and Mr Michael chose to leave the hearing accompanied by Mr Abdullah. Mr Michael and Mr Abdullah were aware that it was my intention to continue to hear the application. Counsel for the Applicant called Ms Saywell to adopt her affidavit under affirmation. Expert evidence was then called from Mr Brown - Hydraulics engineer, and Mr Bullivant - building expert and quantity surveyor. Mr Brown's evidence was given on affirmation under which his report was adopted and summary evidence given. Mr Bullivant adopted his report under oath and gave a summary of his evidence under oath. It was noted that the calculation of the quantum of the defects went to $697,281.00 exceeds the Tribunal's jurisdiction. the applicant has reduced its claim and seeks orders for the jurisdictional limit plus costs. The determination of the application is adjourned for Reserved decision.
The following day, 24 October 2023, the Tribunal issued the following "Orders" (24 October Orders) [2] : 1. The application HB 22 /47666 is listed for final hearing on Monday, 23rd of October 2023. The proceedings were commenced on the 22nd of October 2022 and the final hearing has been adjourned on two previous occasions. The respondent has now lodged an application for miscellaneous orders seeking an adjournment of the hearing and a further extension of time to comply with orders made by the Tribunal in respect of the filing and service of evidence (the Interlocutory Application). The respondent sought the interlocutory application to be listed for directions but that application was rejected by Principle [sic] Member Rosser on 17/10 23. 2. Orders made on that occasion were for the respondent to file and serve its defence and any outstanding evidence forthwith. 3. The applicant was to file and serve any evidence and submissions in response to the interlocutory application by 19 October 2023. 4. The parties were to take all necessary steps to ensure that all evidence is filed and served by the date of the hearing and is to file and serve any lay evidence in reply by the 20th of October 2023. 5. To the extent that the experts have not had an opportunity to conclave prior to the hearing the orders for a joint report were revoked noting if the Tribunal refuses the adjournment application the Tribunal may direct the experts to conclave while lay evidence is being given. 6. The parties witnesses must be present at the hearing and the parties must be ready to proceed if the adjournment application is refused. 7. It was noted that the applicant's consent to the interlocutory application will not be sufficient 8. The parties and their representatives are reminded of their statutory obligations under section 36 (3) of the Civil and Administrative Tribunal Act 2013 which requires parties and their representatives to assist the Tribunal to resolve the real issues in dispute in a manner which is "just quick and cheap". This obligation extends to compliance with Tribunal orders and taking all necessary steps to ensure that proceedings which have been before the Tribunal for 12 months are heard and finalised. 9. Neither party have complied fully with the above orders. 10. The application today is made on behalf of Mr Abdullah to enable him to obtain evidence, both liability evidence, that is concerning Mr Abdullah 's assertion that a significant portion of the work in issue was not constructed by himself or under his control and evidence of "extreme personal circumstances". 11. Mr Abdullah has filed the expert evidence of Mr Melick which seeks to respond to the report by Bullivant & Assoc Pty Ltd and Ross Brown, Hydraulics Consultant. That is the only evidence filed by Mr Abdullah. 12. There are two principal reasons for the respondent seeking to have the application adjourned today having again failed to comply with Tribunal orders. (a) A misconception that the matters in dispute would be dealt with by his insurer, and that he was therefore under no obligation to meet the Tribunal directions, despite advice from his solicitors to the contrary. (b) A series of "great personal crises" which have left Mr Abdullah unable to manage matters that have impacted upon the claim before the Tribunal. 13. There is evidence from Mr Abdullah's solicitor of his state of mind and this is supported by doctor's letters (not expert medical evidence) of his response to several deaths in his immediate family in Australia and Lebanon in recent times (late 2022 and onwards.) 14. Additional matters for consideration; contrary to the orders of the Principal Member the parties were to attend with witnesses in order that the application could proceed. Counsel for the Respondent was briefed to appear only for the application to adjourn. It would not be possible for counsel to continue in the matter without preparation. 15. Mr Melick's expert report fails to address the issues that he was briefed to deal with and as a consequence the Respondent is left without expert evidence particularly on costs but also on some factual issues which Mr Melick was instructed on by Mr Abdullah who accompanied him on his inspection of the works. 16. In relation to the orders made on 17 October; 1. The Respondent failed to file and serve its defence and any evidence forthwith. 2. The Respondent's evidence, or most of it, has not been served by the date of the hearing. 3. The Respondent's witnesses are not present and ready to proceed in the event that the application for adjournment fails. 4. The applicant does not consent to the adjournment and is ready to proceed. 5. The Respondent has again failed to have regard to S36 (3) of the Civil and Administrative Tribunal Act 2013, by apparently ignoring the orders made on 17 October. 6. The Respondent's counsel has been briefed only to deal with the adjournment application and the respondent is without representation or evidence other than part of his expert evidence. 17. The principles in Aon have been raised and it is the Respondent's position that the application is brought in good faith, the circumstances warranting an adjournment have been addressed, but no evidence of the circumstances, which warrant the sympathy of the Tribunal, but fall short in my view of providing sufficient evidence to be weighed against the effects of any delay and the objectives of the guiding principle of case management in s36(1) of the Act. 18. I have carefully considered the circumstances which have surrounded Mr Abdullah's failure to file and serve any substantial evidence in his defence, his extraordinary tragic family circumstances which are claimed to have affected his ability obtain evidence, including the failure of the expert Melick and any other witnesses for the defence to attend the hearing today. I find that the application for adjournment must fail and hearing should proceed today. (underlining added for the purposes of discussion below at [96])

[18]

The Substantive Decision

The reasons commence with the following summary: The Application for adjournment was addressed in the determination published on 24/10/2023. At that time the application had been adjourned twice and counsel for the Respondent was briefed to seek a further adjournment to allow Mr Abdullah to obtain lay and expert evidence. Mr Abdullah, at the date of the hearing had served one expert report by Mr Mathew Melick, a building consultant who trades as "Housepect", dated 31 August 2023, which is largely based upon the assumption, as instructed by Mr Abdullah that he was not responsible for the work which is the subject of this dispute. Mr Abdullah had served no evidence to support his contention. Mr Melick's report is primarily a recitation of Mr Abdullah's contention. Moreover, the "Housespect" report does not address quantum at all. Although directed to attend to give evidence, Mr Mellick has not responded to correspondence and did not appear at the hearing. The adjournment application was rejected for the reasons given in the extempore determination. It was submitted that Mr Abdullah had to run his case without a defence, counsel was briefed only to conduct the adjournment application and contrary to directions made on 29 May 2023 Mr Abdullah had not arranged for the expert or any lay witnesses to be present| Therefore, Mr Abdullah was required to run his case without a defence and without representation.
At [6] to [12], under the heading "Applicant's claim", the Tribunal then summarised the elements of the claims brought by the respondent.
At [13] and [14], the Tribunal notes the existence of a residential building contract between the appellant and a former owner of the subject property.
At [16] to [18], the Tribunal notes that an insurance claim had been made the respondent, and that the insurer's investigation concluded: ... that while rainwater has entered due to storm the underlying cause is Defective Building practices. The report does not identify any storm related damages or storm created openings attributable to any one single defined event.
At [17], the Tribunal records that the insurer recommended that the owner contact the appellant with a view to having him return to the site to rectify the works. The respondent and Fair Trading attempted to contact the appellant but were unable to do so. Ms Saywell thereafter commenced proceedings in the Tribunal.
At [19] to [26], the Tribunal summarises the expert evidence relied on by the respondent, and discusses some relevant authorities.
At [27] to [30], the Tribunal then acknowledges that the respondent was seeking a money order rather than a recertification order as contemplated as the preferred outcome under s 48MA of the Homebuilding Act 1989 (NSW), and discusses relevant authorities.
The Tribunal then states: 33 In the present case the builder has been given a generous opportunity to return to the site and rectify /complete defects and incomplete work. Even in the very unfortunate circumstances which Mr Abdullah has suffered there has been sufficient opportunity to make arrangements to carry out the work but he has failed to do so, or to arrange for others to attend to those defective items which he has accepted. 34 The builder's attitude has been generally to refuse to recognise that defects exist and/or to seek to blame others for them. The owner lodged a complaint with Fair Trading (Ref 10918731) but the builder remained adamant in the face of its efforts to acknowledge any defects. Mr Abdullah has refused to co operate with the owners, Fair Trading and the Tribunal in any attempt to facilitate resolution by compliance with directions, to prepare evidence or to defend the proceedings in relation to extensive on-going waterproofing issues which could render the premises unfit for occupation.
The Tribunal then concludes: 35 In the light of the opportunity offered to the builder to return to rectify the issues, his failure to engage with any dispute resolution process and his denial that any work is defective I find it 36 In the light of the opportunity offered to the builder to return to rectify the issues, his failure to engage with any dispute resolution process and his denial that any work is defective I find it impossible to make a work order in this application.
The Tribunal then considers the appellant's evidence, although we are not persuaded that it was necessary for the Tribunal to do so.
The Tribunal found that the appellant's expert evidence was unconvincing (Substantive Decision at [37]), and that the two expert reports relied on by the respondent had been: properly prepared in accordance with the President's directions, carefully and transparently analysed based upon the authors' training, education and experience and costed using Cordell's cost guide and LNA Master Landscaper's Cost Guide.
The Tribunal concluded that it was comfortable in adopting the respondent's expert reports and the conclusions and costs of work to rectify/complete the building work in contest between the parties with the exception that he rejected the provision of a contingency allowance of 5%.
Subsequently, on 17 May 2024, the Tribunal published the Substantive Decision.

[22]

The appellant's submissions

The ground of appeal agitated in Mr Byrne's written submissions is that, on the basis of the matters set out in section B2 to B4 of those submissions and addressed in section C2, the Interlocutory Decision was not fair and equitable, gave rise to an injustice which was reasonably clear, and has subjected the appellant to a substantial miscarriage of justice.
Section B2 of the submissions sets out the background of the conduct of the proceedings, including the personal circumstances of the appellant's brother dying seven weeks before the final hearing. It is submitted that this tragedy, and the appellant's associated grief and family responsibilities, along with delays and uncertainty in the appellant receiving a decision from his insurer, gave cause for the delay in the appellant filing his lay evidence, explained by his solicitor in two affidavits.
Section B3 of the submissions summarises that portion of the Tribunal hearing dealing with the appellant's application for an adjournment of the hearing. In summary, the appellant makes the following submissions.
First, the appellant sets out the following exchange between the Senior Member and the appellant's counsel: ADAIR: Well, I'm not in the practice of cross-examining on the fly. And that would be a difficulty, from my point of view. To effectively advance my client's interests at all, I would need appropriate preparation, and there is a large bundle. MEMBER BRIGGS: All right, it's 20 past 10. I'll adjourn for an hour initially, to see now long really it's going to take me to go through this, and to make a decision. So if we can reconvene, say at 11:30. ...
The appellant submits that that exchange was notable for several reasons.
Secondly, it disclosed an apparent misapprehension on the part of the Tribunal that, even if the appellant's counsel did not appear at the final hearing, Mr Abdallah would be represented by his solicitors.
Thirdly, it underlines the substantial volume of material (the 953-page tender bundle) for the final hearing.
Fourthly, the Tribunal implicitly accepts that the proposed adjournment of about an hour would be insufficient even for a barrister to be ready and able to cross-examine witnesses or otherwise effectively advance Mr Abdallah's interests.
Fifthly, the appellant submits that the underlined language (reproduced at [70]), can be explained on the basis that, in preparing 24 October Orders, the Tribunal also took into account matters [3] about which it became aware in an exchange between the Tribunal and Mr Mikhael, at about 2pm on 23 October 2023, immediately prior to the commencement of the final hearing including that: 1. in addition to the appellant's counsel not appearing, no solicitor from SLF Lawyers would be appearing so that, were the final hearing to proceed, Mr Abdallah would be self-represented; 2. the appellant had limited English skills, and would need a translator were the final hearing to proceed; 3. following the dismissal of the Adjournment Application, the appellant's counsel on the adjournment application had called Mr Mikhael and told him that he needed to "come down and take [the appellant] home"; 4. the appellant had an appointment with a psychologist, arranged through the National Disability Insurance Scheme, that afternoon; and 5. the appellant and Mr Mikhael were "very confused" about the circumstances in which the appellant had been placed as a result of the dismissal of the Adjournment Application and no legal representatives being present to represent him for the final hearing.
The appellant submits that although the 24 October Orders acknowledge for the first time that SLF Lawyers had effectively abandoned the appellant to represent himself at the final hearing, it did not contain reference to the other matters, each relevant to Adjournment Application, in (2) to (5) above.
Section B4 of the submissions ("Further exchanges prior to commencement of final hearing on 23 October 2023") summarises "[o]ther matters relevant to this appeal (including in particular, procedural fairness) [which] were addressed) or not addressed in circumstances where they ought to have been) in the exchanges between, on the one hand, the Tribunal and, on the other hand, Mr Abdullah or Mr Mikhael immediately prior to the commencement of the final hearing.
These included the following submissions.
First, on the basis of the exchange between the Senior Member and the appellant set out at [70], it must have been (or ought to have been) immediately obvious to the Senior Member that the appellant had limited English language spoken and comprehension skills. In any event, Mr Mikhael, who joined the appellant at the Bar Table, confirmed those limitations and the appellant's need for a translator. In this respect, upon Mr Mikhael introducing himself as the appellant's nephew, the Senior Member evidently assumed that Mr Mikhael was apprised of and understood all relevant background matters and was speaking as the appellant's representative.
Secondly, beyond asking whether the appellant needed a translator (and suggesting that Mr Mikhael could translate for him), the Senior Member did not offer to arrange, or indicate that the Tribunal could or would arrange, a translator for the final hearing. Likewise, the Senior Member did not explain (or suggest that, during the final hearing, he would explain) practices and procedures that might assist the appellant as a self-represented litigant.
Thirdly, after referring to the 24 October Orders again, submitting that the "status of, that document is somewhat unclear, particularly given the ex-tempore reasons of 23 October 2023, nevertheless the document records the Senior Member:

assumed that Mr Mikhael was properly apprised of relevant background matters and a representative of the appellant for the purposes of the hearing on 23 October 2023;
relied and placed significance on statements by Mr Mikhael, even observing, apparently in support of the decision to proceed with the final hearing, that Mr Mikhael "chose to leave"; and
was aware of the appellant's limited English skills and his need to attend a doctor's appointment for his mental health that day.

The appellant then submits: 26. in any event, Members Briggs noted (in the document referred to at [24] above) that, prior to his exchanges with Mr Abdallah and Mr Mikhael at the reconvening of the hearing at about 2pm on 23 October 2023, there had been no submissions in respect of Mr Abdallah's English difficulties or his medical appointment that day (Exh GA-1, 58), thereby implying that the Tribunal could not have taken those matters into account in deciding the Adjournment Application. There are, however, two problems with that suggestion. First, as addressed in [14]-[19] above, the Tribunal did in fact take into account some matters about which it became aware only after the hearing of the Adjournment Application. 27. And second, even if Member Briggs was in fact justified in disregarding those matters (Mr Abdallah's difficulties with English, and his mental health appointment scheduled for that day) in determining the Adjournment Application, they were nevertheless matters directly relevant to whether Mr Abdallah could or would be afforded procedural fairness were the final hearing to proceed, on notice of which the Tribunal had been squarely placed (by reason of the exchanges with Mr Abdallah and Mr Mikhail) prior to the commencement of the final hearing. In those circumstances, the Tribunal ought to have adjourned the final hearing on its own motion.
In section C2 of the submissions, after noting that the leave to appeal in respect of the Interlocutory Decision was required, and that leave will only be granted where there is an issue of principle, a question of general public importance or an injustice which is reasonably clear because: (a) the decision under appeal was not fair and equitable; (b) the decision was against the weight of evidence; or (c) significant new evidence (not reasonably available when the decision was made) has arisen, the appellant submits that: 38. Applying those principles, leave ought to be granted for Mr Abdallah to appeal the Adjournment Decision on the basis of the matters identified in Sections B2 to B4 above and addressed in Section C2 below. On the basis of those matters, it ought be clear that the Adjournment Decision was not fair and equitable, has given rise to an injustice which is reasonable clear, and has subjected Mr Abdallah to a substantial miscarriage of justice.

[24]

Conclusion

The respondent submits, and we accept, that there is no requirement to adjourn a proceeding to allow a delinquent party further opportunities to lead evidence. This is not a case where the appellant was denied a fair hearing, but one where the appellant failed to comply with directions for documents and evidence, did not serve various documents despite reasonable enquiry and repeated requests to do so by the respondent's legal representative, and did not comply with fresh directions of the Tribunal or take the opportunity afforded by the Tribunal to do so.
In our view, procedural fairness requires a party to be given a reasonable opportunity to defend the proceedings, if through their own fault, or that of their solicitors, the appellant failed to avail himself of that opportunity, we see no breach of procedural fairness.
As to the various contentions of the appellant set out at [95] to [98], we consider generally that the appellant reads and implies too much into the exchanges between the Senior Member and the appellant's counsel. More importantly, the matters the appellant refers to and are set out at 98 to (5) were raised after the Tribunal had already given its oral reasons for refusing the adjournment application.
As to the contention at [95], the contention posed does not appear to arise at all.
As to the contention at [96], the contention, we rhetorically ask "and therefore"? We understand that the appellant's materials had been filed months previously, allowing the appellant plenty of time to understand and respond to those materials which, noting that he did respond to the expert evidence.
As to the contention at [97], again, the contention posed does not appear to arise at all.
As to the contentions at [98], as we have noted, these matters were raised after the Tribunal had already dismissed the Adjournment Application. But, in any event, the appellant asserts that the Tribunal overlooked four matters.
The first matter is that the appellant had limited English skills, and would need a translator (sic - interpreter) to participate in the hearing.
We reject this submission. The Tribunal directly addressed this matter and rejected this as a basis for an adjournment when it noted, when the matter was raised by Mr Mikhael that: Mr [Mikhael] sought a re-view of the decision to continue the hearing noting that the circumstances left the [appellant] without representation and with some difficulties in relation to the English language.
In any event, this matter was not raised by the appellant's counsel in his oral submissions.
Further, it appears that at no stage prior to the suggestion of Mr Mikhael - after the Tribunal had refused the Adjournment Application - was it ever suggested that the appellant required the services of an interpreter.
In any event, it is tolerably clear from the transcript that the appellant was able to engage with the Tribunal in English.
The second matter is that is that following the dismissal of the Adjournment Application, the appellant's counsel had called Mr Mikhael and told him that he needed to "come down and take [the appellant] home". Accepting for the purposes of argument that this is factually correct, we do not see how it points to the decision not being fair and equitable.
The third matter is that the appellant had an appointment with a psychologist that afternoon. Again, there was no probative evidence of the appointment, nor had it been raised by the appellant's counsel during the course of the Adjournment Application. We see no substance in this matter. Accepting that the appellant did have such an appointment, it speaks to the priority with which he treated his attendance at the hearing, the (third) hearing date having been fixed some five months earlier.
The fourth matter was that appellant and Mr Mikhael were "very confused" about the circumstances in which the appellant had been placed as a result of the Adjournment Application being refused and no legal representatives being present to represent the appellant for the final hearing. Unrepresented litigants are often confused about proceedings. The appellant was not so confused that he failed to brief a solicitor and barrister on the Adjournment Application. No explanation has been given as to why one or both of his counsel or solicitor were not retained for the substantive hearing, the only explanation being a claim that the appellant had been "abandoned" by them both. We do not accept that submission. It was plainly stated by his counsel that his instructions were to appear to seek and adjournment only, not to defend the substantive proceedings. A more probable explanation than the appellant being abandoned by his legal advisers, is that the appellant instructed them not to defend the proceedings if he was denied an adjournment. The conduct of the appellant himself, his counsel and solicitors is entirely consistent with such an approach.
We do not consider any matter raised, or even all matters when considered cumulatively, identifies any error by the Tribunal in refusing the Adjournment Application.
As the Appeal Panel stated in Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11: We do not accept that there was any error on the part of the Tribunal in relying on and applying the guiding principle in this case. Section 38(5)(c) of the Act requires the Tribunal "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings". Principles of case management are also relevant in the determination of whether adjournments or extensions of time should be granted to a party in default or tribunal orders. See eg Mesiha v Murrell [2017] NSWCATAP 1. … To have granted an adjournment in this case would have been counter to the quick and cheap resolution of the issues and would have been unjust to the respondent in causing yet further delay expense and inconvenience as a result of the respondent's failure to comply.
Consequently, leave to appeal the Interlocutory Decision is refused. We are not satisfied that any ground on or matter raised by the appellant involves an issue of principle or a question a question of public importance or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result; particularly in circumstances where the appellant repeatedly failed to comply with directions of the Tribunal.

[27]

Appellant's submissions

In his written submissions, the respondent refers to various authorities, including Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401, SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88, Weber v Deakin University [2015] VSC 703, in the context of an appeal from the Victorian Civil and Administrative Tribunal and SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445.
In Weber the Supreme Court of Victoria stated that: A judge has a duty in relation to represented and unrepresented litigants alike to ensure that the trial is conducted fairly and in accordance with law. It is a frequent consequence of self-representation that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case. ... The assistance must be proportionate in circumstances - it must ensure a fair trial and ought not afford an advantage to the self-represented litigant (emphasis added by the appellant)
The appellant submits that that duty extends, at a minimum, to taking appropriate steps to ensure that an unrepresented litigant has sufficient information about the practices and procedures of the Tribunal so that a fair hearing could be conducted: SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445.
The appellant then submits: 50. The conduct of the final hearing, and exchanges between, on one hand, Member Briggs and, on the other, Mr Abdallah and then Mr Mikhail immediately prior to the commencement of the hearing, plainly disclose a denial of procedural fairness to Mr Abdallah. Member Briggs failed to provide any information (less so "sufficient information" to Mr Abdallah, as a confused and unintended self-represented litigant, about the practices and procures of the Tribunal so that Mr Abdallah might have understood how the final hearing would or could be conducted, and how, notwithstanding his having no legal background, he might have been able to engage in the hearing so as to protect or advance his interests. Notably, Mr Abdallah was not even informed of translator services that could have been arranged through the Tribunal. 51. The exchanges between Member Briggs and Mr Abdallah also contained implicit suggestions by Member Briggs that it would be preferable for Mr Abdallah not to remain for the final hearing, and instead attend his medical appointment. For example, in the extract in [16] above, Member Briggs suggested that Mr Abdallah should only remain for the final hearing if he was "in a position to respond to what is put by the applicants", but without providing any explanation as to what he meant by "responding to" or the practices and procedures of the Tribunal that might enable Mr Abdallah to provide any such response or otherwise engage in the hearing.

[28]

Respondent's submissions

The respondent's primary submission is that, to the extent that the appellant advances a claim that he was denied procedural fairness at the final hearing as he was not properly advised by the Tribunal, such a claim is without merit in circumstances where he voluntarily left the hearing for a forensic purpose, and as such was not present to be provided any such assistance.
The respondent then notes that the substance of the duty of the Court to unrepresented litigants can be drawn from the following principles stated in Hamod v State of New South Wales and Anor [2011] NSWCA 375 (per Beazley, Giles and Whealy JJA) at [309] - [316]°: The court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserve. A trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court. It is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant The court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent.
The appellant then notes that in Hamod the Court stated at [311]: Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial.° See also Aldous v State of New South Wales [2018] NSWCA 261 (Payne JA at [63], Basten and Macfarlan JJA agreeing). The application of that principle will vary depending upon the circumstances of the case …
The respondent then refers to the Court of Appeal decision Reisner v Bratt [2004] NSWCA 22 at [3] to [6] and the Appeal Panel decision ZPP v ZPO [2020] NSWCATAP 288 at [43].
The respondent then submits that procedural fairness is not an abstract concept and must involve practical injustice to be sustained, referring to the following passage of Basten JA in Italiano v Carbone [2005] NSWCA 177 at [88]: An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment", as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36). As the Chief Justice continued at [371]: A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations.
The respondent submits that, in this case, putting aside the fact that the appellant voluntarily left the final hearing, and as such there was no opportunity for the Tribunal to explain any relevant practice and procedure as the hearing progressed, the appellant has not in any event shown that a different outcome would have been open if any such assistance was provided. Instead, the sole argument seems to be that had the appellant been given an adjournment and further opportunity to prepare evidence, then he may have availed himself of that opportunity. The respondent submits that in those circumstances it is difficult to see how any alleged lack of assistance from the Tribunal was material.
Finally, the respondent submits that at no stage did the appellant request any such assistance: Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99 at [30] to [31].

[31]

Appellant's submissions

The appellant relies on section B5 of his written submissions. In summary, after referring to authorities which discuss a counsel's obligations to the Court in ex parte hearings, the appellant submits that: 1. the respondent's counsel made submissions that the Melik Report should not be admitted, or be given no weight, by reason that it did no more than, in essence, regurgitate instructions provided by or on behalf of the appellant; 2. the Tribunal accepted those assertions and thereby effectively dismissed the Melik Report, without reference to (or suggestion, in the transcript, that the Tribunal reviewed or gave consideration to) the contents of the report; 3. on even a cursory review of the Melik Report however, it is clear (and was, or ought to have been clear, to the respondent's counsel and the Tribunal) that, although the report makes several references to comments from the appellant, Mr Melik: 1. provided analysis, independent of and not reliant on instructions from the appellant, in response to each of the claims made in the Bullivant Report; 2. checked and assessed the appellant's instructions (that he was not the builder responsible for the alleged defective works) against and by reference to plans and drawings that had been submitted to Sutherland Shire Council in 2016 and 2017 in support of the relevant development application and construction certificates; 1. much of the analysis in the Bullivant Report was infected by Mr Bullivant having received information and photos, upon which he relied and placed significance in his analysis, from an unidentified person simply described as a "resident of the property" and ascribed the pseudonym "JP"; and 2. the above matters were neither brought to the attention of the Tribunal by the respondent's counsel during the final hearing, nor otherwise independently identified or understood by the Tribunal at the final hearing or in consideration of the joint tender bundle in the seven month period between the hearing and the Tribunal issuing the Substantive Decision on 17 May 2024; 3. the relevant development application and construction certificates and occupation certificates were included in the joint tender bundle or otherwise handed up to the Tribunal at the final hearing. The appellant submits that those documents should have been included in the joint tender bundle (prepared by the respondent's solicitors) or otherwise handed up to the Tribunal during the course of the hearing so that the expert reports could be properly considered by the Tribunal.

[32]

Respondent's submissions

The respondent's primary submission is that the argument that the hearing miscarried due to the weight being given to Mr Bullivant's expert report should not be accepted because: 1. Mr Bullivant's report was contained in the Tender Bundle and no objection was taken to it below; and 2. in any event, the weight to be given to an expert report is not a question of law from which a competent appeal lies, especially in circumstances where there seems to be a blanket submission that the report was "infected" by the provision of some photographs from a resident of the property.
The respondent then submits that this argument was not "run" below and that not only was there no objection to the report, it was included without complaint in the joint tender bundle. As such the respondent submits that considerations preventing new points being raised on appeal should be applied to these arguments: Hudson v Arp 1 (NSW) Ply Ltd (2014] NSWCATAP 61; Drivas v Burrows [2014] NSWCATAP 87.
Hence the respondent submits that, as a matter of principle, the appellant cannot now seek to argue that Mr Bullivant's report should not have been allowed into evidence, given that it was included without complaint from his former solicitors in the Tender Bundle.
Finally, the respondent submits that: leave should not be granted to run this argument as the factual findings using Mr Bullivant's report could not be said to be "against the weight of evidence". The expression "against the weight of evidence" describes a situation 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 - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. It could not be said that a failure to reject the entirety of an expert's opinion on the basis that his report included photographs provided by a resident of the property is a decision which a reasonable Tribunal member would reach, let alone be the only one available.

At a glance

Court

Decision date

Before

Source

Judgment (37 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (42)

Cited By (1)