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[2025] NSWSC 1267
General information, not legal advice.
Supreme Court of NSW
2025-10-30
Payne JA
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Abdallah v Paco Nominees Pty Ltd [2025] NSWSC 1267
Hearing dates: 2 September 2025
Date of orders: 30 October 2025
Decision date: 30 October 2025
Jurisdiction: Common Law
Before: Payne JA
Decision: (1) Leave to appeal on grounds 1, 2 and 4 refused.
(2) Appeal dismissed.
(3) Plaintiff to pay the defendant’s costs.
(4) The funds the subject of the undertaking to the orders of 28 August 2025 held in the trust account of the plaintiff's solicitors in these proceedings, Aquinas More Lawyers, not be distributed without further order of the court.
(5) Leave granted to the defendant, after a period of 7 days from the date of these orders, to apply to the chambers of Payne JA by email (copied to the plaintiff’s lawyers) for an order releasing the funds referred to in order 4.
Catchwords: APPEALS – appeal from a decision of the NCAT Appeal Panel from a decision of NCAT where the plaintiff became self-represented after a failed adjournment application – whether the plaintiff’s self-represented status was given sufficient consideration – whether a constructive failure to exercise jurisdiction where fresh evidence was not admitted by the Appeal Panel – whether the correct test for the admissibility of fresh evidence was considered by the Appeal Panel
Legislation Cited: Australian Constitution, s 75(v)
Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 80, 83, cl 12 Schedule 4
Home Building Act 1989 (NSW), s 18B, s 48MA
Uniform Civil Procedure Rules 2005 (NSW), r 50.16A
Cases Cited: Abdallah v Paco Nominees Pty Ltd [2024] NSWCATAP 259
Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111
BHP Billiton Ltd v Dunning [2013] NSWCA 421
Bloch v Bloch (1981) 180 CLR 390
Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41
Chalik v Chalik [2025] NSWCA 136
Dokas v Gallagher (No 2) [2024] NSWCA 236
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401
House v The King (1936) 55 CLR 499
Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99
Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11
Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47
SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317; [2015] FCAFC 88
Texts Cited: None
Category: Principal judgment
Parties: Georges Abdallah (Plaintiff)
Paco Nominees Pty Ltd (Defendant)
Representation: Counsel:
A Byrne (Plaintiff)
A Hopkins (Defendant)
Solicitors:
Aquinas More Lawyers (Plaintiff)
Branden Smith McKnight (Defendant)
File Number(s): 2025/00016105
Publication restriction: None
PAYNE JA: This is a case about defective building work which was commenced in 2022 in the NSW Civil and Administrative Tribunal (NCAT) by the defendant, Paco Nominees Pty Ltd. Despite numerous procedural orders, no defence was ever filed by the builder, Georges Abdallah, the present plaintiff. Instead, on 23 October 2023, being the third occasion the matter had been set down for final hearing before NCAT, the plaintiff made an unsuccessful adjournment attempt. Despite being warned by NCAT, in writing, well prior to the hearing date that if the adjournment application was unsuccessful the plaintiff should be prepared immediately to proceed with the hearing and, for that purpose, should ensure that all witnesses were present and ready to give evidence, the plaintiff was not prepared to proceed and did not have any witnesses ready to give evidence.
Instead, the plaintiff instructed his lawyers to make an adjournment application and, if unsuccessful, immediately to withdraw. The adjournment application was unsuccessful. After his lawyers withdrew, the plaintiff renewed his adjournment application on the basis that he was now self-represented. That application was refused. Following a brief exchange between the NCAT member, the plaintiff, and his nephew who was present and supporting him, the plaintiff left the hearing. The NCAT member then proceeded to hear the matter in the plaintiff’s absence. Subsequently, orders in favour of the defendant were made and a judgment published on 17 May 2023.
The plaintiff appealed to the Appeal Panel of NCAT complaining about the decision to refuse the adjournment and about an alleged denial of procedural fairness after the plaintiff’s lawyers withdrew. The Appeal Panel rejected both complaints: Abdallah v Paco Nominees Pty Ltd [2024] NSWCATAP 259.
The present summons complains only about the second part of the proceedings, that is, the refusal of the renewed adjournment application and an alleged denial of procedural fairness after the plaintiff’s lawyers withdrew. A ground framed as a constructive denial of jurisdiction by reason of rejecting an affidavit by the plaintiff who sought for it to be read before the Appeal Panel was also incorporated in the plaintiff’s summons.
At its heart, this case is about the application of well understood principles of procedural fairness to a case where a self-represented litigant, knowing that the substantive case had been listed to proceed, chose to leave the courtroom after his adjournment application had been refused. No error of law has been shown in the decision of the Appeal Panel in rejecting the plaintiff’s complaints and the appeal to this Court should be dismissed.
A stay of orders made by the Appeal Panel, granted by a judge of the Court in the duty list two business days before the hearing of the appeal, comes to an end by reason of the determination of these proceedings.
The orders, dated 28 August 2025, are as follows:
Upon the plaintiff having given the Court the undertakings in the Schedule, the Court orders:
- Enforcement of the orders and judgment of the Appeal Panel, NSW Civil and Administrative Tribunal, dated 17 December 2024 in case 2024/220171 is stayed until the determination of the proceedings before this Court or further order of the Court.
2. Pursuant to s 135(2) of the Civil Procedure Act 2005 (NSW), the Registrar-General of New South Wales to cancel all recordings of the Writ of Property issued by the District Court of New South Wales in proceedings 2025/11197 on 28 January 2025, including, without limitation, the recordings made pursuant to dealing AV83846.
3. The defendant to pay the plaintiff's costs of the Notice of Motion dated 15 August 2025.
The Court notes:
4. Within the evidence before the Court at the hearing on 28 August 2025 of the Notice of Motion dated 15 August 2025 was an email from the solicitors for Wafaa Abdallah and Markos Abdallah providing signed inter partes undertakings by their clients in relation to the property located at 194 Edgar Street, Condell Park NSW.
The plaintiff undertakes:
1. To cause the funds referred to in Order 4 of the orders made by the Federal Circuit and Family Court of Australia on 2 June 2025 in proceedings (P)PAC2094/2025, when paid pursuant to those orders, to be deposited into the trust account of the plaintiff's solicitors in these proceedings, Aquinas More Lawyers.
- Not to cause or permit any of those funds paid into the trust account of Aquinas More Lawyers to be removed from the trust account, or otherwise applied, dealt with or disposed of, other than:
in payment of the plaintiff's reasonable legal costs in these proceedings, up to a limit of $20,000
I Wafaa Abdallah, give an undertaking to Paco Nominees Pty Ltd that upon the removal of the Writ of Property (AV83846) registered on the title of 194 Edgar St, Condell Park, NSW 2200:
- Not to transfer, further encumber or deal with the property located at 194 Edgar St, Condell Park, NSW 2200 upon its transfer to me pursuant to the Consent Orders dated 2 June 2025 of the Federal Circuit and Family Court Australia in proceedings (P)PAC2094/2025 without first providing seven (7) days' notice to Paco Nominees Pty Ltd; and
- That this undertaking will remain operative until the earlier of:
a. Judgment being given in the Supreme Court proceedings in 2025/16105; or
b. Any further order of the Court;
I Markos Abdallah, give an undertaking to Paco Nominees Pty Ltd that upon the removal of the Writ of Property (AV83846) registered on the title of 194 Edgar St, Condell Park, NSW 2200:
- Not to transfer, further encumber or deal with the property located at 194 Edgar St, Condell Park, NSW 2200 upon its transfer to me pursuant to the Consent Orders dated 2 June 2025 of the Federal Circuit and Family Court Australia in proceedings (P)PAC2094/2025 without first providing seven (7) days' notice to Paco Nominees Pty Ltd; and
- That this undertaking will remain operative until the earlier of:
a. Judgment being given in the Supreme Court proceedings in 2025/16105; or
b. Any further order of the Court;
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 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 [with] 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 honour 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.
…
3. The [plaintiff](s) is (are) to provide IN HARD COPY to the [defendant] (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 [plaintiff](s) seek(s) to rely at the hearing by 6 February 2023.
- The [plaintiff](s) is (are) to give access to the property of the [plaintiff](s) other than during the period from 24 December 2022 to 14 January 2023 to the representative of the [defendant](s) and any expert engaged by the [defendant](s) for the purpose of preparing an expert report, on 3 days' notice.
5. The [defendant](s) is (are) to provide IN HARD COPY to the [plaintiff](s) and the Tribunal, either in person or by post, all documents (see note 3 below) on which the [defendant](s) seek(s) to rely at the hearing by 6 March 2023.
- The [plaintiff](s) is (are) to provide IN HARD COPY to the [defendant](s) and the Tribunal, either in person or by post, all documents (see note 3 below) in reply on which the [plaintiff](s) seek(s) to rely at the hearing by 27 March 2023.
- … 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 [plaintiff](s) is (are) to provide IN HARD COPY to the [defendant](s) and the Tribunal, either in person or by post, the [plaintiff](s) outline of submissions (see note 4 below) by 3 April 2023.
9. The [defendant](s) is (are) to provide IN HARD COPY to the [plaintiff](s) and the Tribunal, either in person or by post, the [defendant](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 defendant sought to extend the time to comply with the orders made on 5 December 2022. The Tribunal made the following orders:
1. The parties are to negotiate in relation to the interlocutory orders sought by the [defendant] and are to file signed terms of agreement by 13 February 2023.
- The parties are on notice that any proposed consent orders must allow the hearing to proceed as listed on 15 May 2023.
- 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.
…
5. The hearing on 15 May 2023 is vacated.
6. Time to comply with order 3 made on 5 December 2023 ([defendant]'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 ([plaintiff]'s points of defence and lay and expert evidence) is extended to 15 May 2023.
- 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 to vacate the hearing filed by the plaintiff, the Tribunal relevantly ordered:
1. Time to comply with order 6 made on 24 February 2023 is extended to 29 May 2023.
- 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 plaintiff filed a further application seeking, in essence, to vacate the hearing listed for 23 October 2023, and further extend the timetable for the filing of evidence. The plaintiff relied on an affidavit of his solicitor Ms Smith sworn 16 October 2023. In his application, the plaintiff relevantly stated that delays in preparation resulted from delays by the defendant, delays arising due to miscommunication issues with the plaintiff’s insurer, and issues affecting the plaintiff’s health that caused delays in the plaintiff serving his expert evidence, lay evidence, and points of defence.
Amongst other matters, Ms Smith stated:
[Plaintiff’s] Personal Issues
25 The [plaintiff] has suffered from ongoing health related issues since around May 2023, Furthermore, I am informed that the [plaintiff] experienced the death of a close family member in around August 2023. The [plaintiff]'s personal situation resulted in further delays in the preparation of the [plaintiff]’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 [defendant], however we say that there has been a significant history of delay by the [defendant] in its own proceedings, and the [plaintiff] 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.
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 [plaintiff] 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 [plaintiff] 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 [plaintiff] did not make the interlocutory application until a week before the hearing, even though the [plaintiff] 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 [plaintiff]'s delays (lateness of the [defendant]'s documents, communications with the [plaintiff]'s insurer and the [plaintiffs]'s medical condition) are not, on their face, a sufficient explanation for the [plaintiff]'s delay in making the interlocutory application until 16 October 2023.
Third, the [plaintiff]'s consent to the application would not [mean] 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.
[…]
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 [plaintiff]'s consent to the interlocutory application will not be a sufficient basis for an adjournment to be granted.
- 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.
On 23 October 2023, the matter commenced at 9.15 am. Counsel for the plaintiff, Mr Adair, announced to NCAT at the outset that "I’m instructed by SLF Lawyers and I appear for the limited purpose of seeking an adjournment of today's hearing".
Oral submissions were made on the application to vacate the hearing. Mr Adair submitted: “Now, as I’ve said, and I’ll make it absolutely clear, if the matter is forced on today, my client effectively has no defence”. Before concluding, Mr Adair adverted to the potential for a substantive hearing that day: “I’m not instructed to conduct a hearing on behalf of the [plaintiff]”.
At approximately 10.20 am NCAT adjourned to consider its decision. After adjourning for about an hour and 10 minutes, the hearing resumed with the Tribunal delivering an oral 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 [plaintiff] 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 [plaintiff] 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 [plaintiff] 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 [plaintiff] has failed to file and serve its defence and any evidence forthwith. The [plaintiff]'s evidence, or most of it, has not been served by the date of the hearing. The [plaintiff]'s witnesses are not present and ready to proceed in the event that the application for adjournment fails. The [defendant] does not consent to the adjournment, and is ready to proceed.
The [plaintiff] 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 [plaintiff]'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 [s] 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.
When the hearing resumed, the plaintiff was not legally represented, although he was accompanied by his nephew, Mr Michael Mikhael, who described himself as having “a legal background”. It was belatedly submitted in oral submissions in this Court that the NCAT member should not have engaged with Mr Mikhael. This, however, was not a complaint made to the Appeal Panel or referred to in the summons in this Court and may thus be put to one side.
Relevantly, the plaintiff stated to the Tribunal:
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.
MEMBER BRIGGS: I see. So the gentleman who's here is going to take you home now?
[PLAINTIFF]: 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?
[PLAINTIFF]: 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?
[PLAINTIFF]: I have no solicitor. I can't answer. I cannot decide.
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.
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 plaintiff and Mr Mikhael left the Tribunal room, and the matter then proceeded in the plaintiff’s absence.
At the conclusion of the hearing, the Tribunal reserved its decision, and published the following decision:
A determination was given orally to an interlocutory application by the [plaintiff] 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 [plaintiff], 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 [plaintiff] 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 [defendant] 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 [defendant] has reduced its claim and seeks orders for the jurisdictional limit plus costs.
The determination of the application is adjourned for Reserved decision.
- 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 [plaintiff] 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 [plaintiff] 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 [plaintiff] to file and serve its defence and any outstanding evidence forthwith.
3. The [defendant] 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.
- 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 [plaintiff]'s consent to the interlocutory application will not be sufficient
- 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.
- There are two principal reasons for the [plaintiff] 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 [plaintiff] was briefed to appear only for the application to adjourn. It would not be possible for counsel to continue in the matter without preparation.
- Mr Melick's expert report fails to address the issues that he was briefed to deal with and as a consequence the [plaintiff] 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 [plaintiff] failed to file and serve its defence and any evidence forthwith.
2. The [plaintiff]'s evidence, or most of it, has not been served by the date of the hearing.
3. The [plaintiff]'s witnesses are not present and ready to proceed in the event that the application for adjournment fails.
4. The [defendant] does not consent to the adjournment and is ready to proceed.
- The [plaintiff] 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 [plaintiff]'s counsel has been briefed only to deal with the adjournment application and the [plaintiff] is without representation or evidence other than part of his expert evidence.
17. The principles in Aon have been raised and it is the [plaintiff]’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.
NCAT’s substantive decision may be summarised briefly. The plaintiff, at the date of the hearing, had served one expert report by Mr Mathew Melick, a building consultant dated 31 August 2023, which was largely based upon the plaintiff’s core instruction that the plaintiff was not responsible for the work which is the subject of this dispute.
The plaintiff, however, had served no evidence to support his contention that he was not responsible for the work which is the subject of this dispute. Mr Melick's report was primarily a recitation of the plaintiff’s instruction. Moreover, the Melick report did not address quantum at all. Although the plaintiff was specifically directed to secure the attendance of Mr Mellick to give evidence on 23 October 2023, Mr Mellick did not appear at the hearing.
At [6] to [12], NCAT summarised the elements of the claims brought by the defendant. At [13] and [14], NCAT noted the existence of a residential building contract between the plaintiff and a former owner of the subject property. At [16] to [18], NCAT noted that an insurance claim had been made by the defendant, 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], NCAT recorded that the insurer recommended that the owner contact the plaintiff with a view to having him return to the site to rectify the works. The defendant attempted to contact the plaintiff but was unable to do so. The present proceedings were thereafter commenced at NCAT.
At [19] to [26], NCAT summarised the expert evidence relied on by the defendant. At [27] to [30], NCAT acknowledged that the defendant was seeking a money order rather than a recertification order as contemplated as the preferred outcome under s 48MA of the Home B**uilding Act 1989 (NSW). NCAT then stated:
[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.
[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.
… 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.
NCAT concluded that it should accept the defendant’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 NCAT rejected the provision of a contingency allowance of 5%.
On 17 May 2024, NCAT delivered its decision.
The plaintiff appealed that decision of NCAT in an internal appeal to the NCAT Appeal Panel, heard on 2 September 2024.
The Appeal Panel’s principal conclusion was there was no requirement to adjourn the proceedings to allow a delinquent party further opportunities to lead evidence. This is not a case where the plaintiff was denied a fair hearing, but one where the plaintiff 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 defendant's legal representatives, and did not comply with fresh directions of the Tribunal or take the opportunity afforded by the Tribunal to do so.
The Appeal Panel concluded that procedural fairness required a party to be given a reasonable opportunity to defend the proceedings and that opportunity was afforded to the plaintiff. The Appeal Panel concluded that by the plaintiff’s own fault, or that of his solicitors, the plaintiff failed to avail himself of the opportunity given. There was no denial of procedural fairness.
The Appeal Panel considered that the plaintiff read too much into the exchanges between the Senior Member and the plaintiff’s counsel in drawing several inferences from this brief interaction. Most of the matters the plaintiff referred to in challenging the decision to refuse the interlocutory adjournment application were raised after NCAT had already given its oral reasons for refusing the application, and the remaining inferences proposed did not arise (such as a misapprehension that the appellant would be represented by his solicitors at the hearing) or were not controversial (such as that the material provided was voluminous).
The Appeal Panel found that the defendant’s materials had been filed months before the hearing date, allowing the plaintiff plenty of time to understand and respond to those materials.
As to the matters raised after the adjournment had been refused the Appeal Panel concluded:
The Appeal Panel rejected the plaintiff’s contention that the plaintiff had limited English skills and would need the assistance of an interpreter to participate in the hearing. The Appeal Panel found that NCAT had directly addressed this matter and rejected it 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 [plaintiff] without representation and with some difficulties in relation to the English language.
The Appeal Panel noted that this contention was not, in any event, raised by the plaintiff’s counsel in his oral submissions seeking an adjournment. The Appeal Panel noted 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 plaintiff required the services of an interpreter. The Appeal Panel made a finding of fact, based on an examination of the transcript, that the plaintiff was adequately able to engage with NCAT in English.
Secondly, the Appeal Panel found that following the dismissal of the adjournment application, the plaintiff’s counsel had called Mr Mikhael and told him that he needed to "come down and take [the plaintiff] home". The Appeal Panel held “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”.
Thirdly, the Appeal Panel found that the plaintiff claimed that he had made an appointment with a psychologist on the afternoon of the hearing. The Appeal Panel noted that the appointment had not been raised by the plaintiff’s counsel during the course of the adjournment application. Accepting that the plaintiff did have such an appointment, the Appeal Panel concluded that “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”.
In response to submissions that that the plaintiff and Mr Mikhael were "very confused" about the circumstances in which the plaintiff had been placed as a result of the adjournment application being refused and no legal representatives being present to represent the plaintiff for the final hearing, the Appeal Panel concluded that the plaintiff was not so confused that he failed to brief a solicitor and barrister on the adjournment application. The Appeal Panel found that no explanation was given by the plaintiff about why one or both of his counsel or solicitor were not retained for the substantive hearing, the only explanation proffered by the plaintiff being an unsupported claim that the plaintiff had been “abandoned” by them both. The Appeal Panel did not accept that submission. The Appeal Panel found that it was plainly stated by the plaintiff’s counsel that the plaintiff’s instructions were to appear to seek and adjournment only, not to defend the substantive proceedings.
Critically for present purposes, the Appeal Panel found as a fact that a more probable explanation than the plaintiff being abandoned by his legal advisers was that the plaintiff instructed his lawyers not to defend the proceedings if he was denied an adjournment. The Appeal Panel concluded that the conduct of the plaintiff himself, his counsel, and solicitors was entirely consistent with that approach.
The Appeal Panel found that the matters raised, or even all matters when considered cumulatively, had not identified any error by NCAT in refusing the adjournment application.
The Appeal Panel referred to Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11, a case having some resonance with the present:
[19] 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.
(1) The Appeal Panel erred in failing to find that the plaintiff (Abdallah) had been denied procedural fairness at the final hearing before the Tribunal on 23 October [2023].
Particulars
(a) On 16 October [2023], Abdallah applied for vacation of a final hearing set down for 23 October [2023] and sought an urgent listing for the application.
(b) The Tribunal did not list the application, but adjusted the timetable for procedural steps, requiring evidence and submissions within days.
(c) On 23 October [2023], immediately prior to the final hearing, the Tribunal heard Abdallah's application to vacate and provided ex tempore reasons dismissing the application.
[no point (d)]
(e) The Tribunal then permitted Abdullah's barrister to withdraw, and provided a short adjournment (around an hour) before commencement of the final hearing.
(f) At commencement of the final hearing, Abdallah's solicitors unexpectedly did not appear (and his barrister had earlier withdrawn). As such, Abdallah appeared as a self-represented litigant.
(g) Whilst Abdallah was appearing at the final hearing:
i. Abdallah presented to the Tribunal as having limited English language and comprehension sills, and as being confused as to, and not understanding, his rights or obligations as a self-represented litigant;
ii. the Tribunal indicated to Abdallah that he should only continue to participate in the final hearing if he was "in a position to respond to what is put by the [defendants]", but without providing any explanation as to what was meant by "respond to" or related relevant practices or procedures of the Tribunal; and
ii. the Tribunal failed otherwise to provide Abdallah, as a self-represented litigant, with assistance to enable him to understand or participate in the conduct of the hearing 6 (including as to procedures and rights relating to admissibility of evidence, cross-examination and other tenants of a fair hearing).
(h) Abdallah then departed the hearing to attend a medical appointment, and the final hearing proceeded, with the Tribunal admitting evidence adduced by the defendant (in these proceedings) (Paco) as if the final hearing was adversarial (and not ex parte).
(i) The Tribunal consequently determined the proceedings in favour of Paco, ordering (inter ala) Abdallah to pay $500,000 compensation to Paco for breach of statutory warranties implied by the Home Building Act 1989 (NSW).
(j) Notwithstanding the matters in (a) to (i), the Appeal Panel determined that Abdallah was not denied procedural fairness because he either did not attend the final hearing or left the final hearing “once it had 'barely' commenced"
(2) The Appeal Panel erred in finding that:
(a) the procedural fairness requirement that a court or tribunal provide a self-represented litigant with sufficient information about the practices and procedures of the Tribunal so that a fair hearing could be conducted does not apply at a hearing if the self-represented litigant departs the hearing shortly after it commences; and
(b) the procedural fairness requirement in (a) did not apply to the Tribunal in respect of Abdallah by reason of Abdallah's having departed the final hearing shortly after it commenced.
Particulars – (a) & (b)
Abdallah repeats the particulars of ground 1.
(3) The Appeal Panel erred in its constructive failure to exercise jurisdiction by failing to find that the Tribunal had admitted and relied upon clearly inadmissible evidence of Paco.
[ … ]
(4) The Appeal Panel erred in its constructive failure to exercise jurisdiction by failing to admit and take into account evidence presented by Abdallah in the appeal of the Tribunal's decision.
Particulars
(a) Evidence was adduced by Abdallah in the appeal concerning inter alia the circumstances in which, on 23 October 2024, he became a self-represented litigant shortly before the commencement of the final hearing, and deficiencies in the hearing bundle that was presented to the Tribunal by Paco.
(b) The Appeal Panel refused to admit that evidence on the basis that it could reasonably have been adduced at the final hearing on 23 October [2023].
(c) The evidence in question could not reasonably have been adduced at the final hearing on 23 October [2023], having regard to:
i. the circumstances in which Abdallah had unexpectedly become self-represented on 23 October [2023];
ii. the nature and volume of the evidence, and the absence of sufficient time or opportunity for Abdallah to procure the evidence on 23 October [2023];
iii. the absence of any explanation from the Tribunal, to Abdallah as a self-represented litigant, of the status, contents, use or significance of the hearing bundle presented by Paco; and
iv. a copy of the hearing bundle not having been made available to Abdallah at the hearing.
(d) Not having allowed the evidence, the Appeal Panel dismissed various submissions by Abdallah on the basis of the absence of evidence (including as to Abdallah's English proficiency and the significance of primary evidentiary documents excluded from hearing bundle (before the tribunal on 23 October [2023]).
(e) Had the evidence been admitted, the Appeal Panel would reasonably have found that the Tribunal erred in failing to adjourn the final hearing and make procedural orders for the future conduct of the proceedings, including for the parties to prepare, file and serve further evidence.
At the outset of the hearing of this Court, a 5-lever arch Court Book was marked Exhibit A. The contents of Exhibit A were subject to a number of specific objections and rulings.
An affidavit by the plaintiff’s solicitor, Mr Azzi (and Exhibit GA-4) being pages 1430 to page 1697, which apparently dealt with the abandoned Ground 3, were not pressed.
There remained in dispute an affidavit sworn by the plaintiff dated 30 July 2024, together with Exhibit GAB-1 (pages 322-366 of Exhibit A) which had been tendered before the Appeal Panel but rejected. I admitted this evidence “subject to relevance, but limited to the question of leave to appeal under section 83 only”. The evidence was “not admitted for evidence of the truth of the contents.” Whilst I formally permitted counsel for the plaintiff to renew the tender at the conclusion of the proceedings no such application was made.
The affidavit sworn by the plaintiff dated 30 July 2024, together with Exhibit GAB-1, had been rejected by the Appeal Panel. The Appeal Panel found:
The affidavit of the [plaintiff]
[23] In addition to the affidavit of Mr Azzi of 18 August 2024 [the affidavit not read before me], the [plaintiff] also sought to rely on his own affidavit of 30 July 2024. His counsel conceded that this affidavit was in a “different category” to the evidence contain[ed] in Mr Azzi’s affidavit, and related to the interaction between the parties’ solicitors.
[24] The [plaintiff]’s counsel conceded that the case for receiving the [plaintiff’s] evidence was not as strong as the case for receiving the evidence of the [plaintiff]’s solicitor [Mr Azzi], and would be of limited assistance to the Appeal Panel. Senior Member Molony enquired what would be the purpose of the Appeal Panel receiving this evidence. Mr Byrne submitted that the purpose was to demonstrate that there was further information that could be put before the Tribunal for the adjournment application. He submitted that this was relevant evidence in these circumstances as the [plaintiff]s legal representative’s “simply disappeared” after the application for the adjournment.
Conclusion
[25] We refuse the tender of these materials given the long-standing decision of the Appeal of Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 which has been followed and applied on many occasions. To paraphrase that decision, the issue is whether, objectively, the evidence has arisen since the hearing and was “not reasonably available” at the time of the hearing (Al-Doauk at [27]), being documents that were before the experts briefed by the parties.
[26] Clearly that test is not satisfied in relation to the documents forming part of the affidavit of Mr Azzi dated 18 August 2024.
[27] As for the affidavit of the [plaintiff], the submission that this information which was not before the Tribunal for the adjournment application but should before the Appeal Panel is without substance. Further, the oral submissions of Mr Byrne that the [plaintiff]’s legal representative’s “simply disappeared” after the application for the adjournment is not supported by any probative evidence, either way. In this respect, we accept Mr Hopkins’ oral submissions made at the appeal hearing.
[28] For these reasons, we rejected the [plaintiff]’s application to rely on these two affidavits.
As I will explain, there was no error of law revealed by these conclusions.
The starting point is that the jurisdiction of the Appeal Panel was conferred by s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act):
80 Making of internal appeals
(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.
Note.
Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1).
(2) Any internal appeal may be made—
(a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
(3) The Appeal Panel may—
(a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
The appeal was limited, as of right, to any question of law: s 80(2)(b). Only with leave of the Appeal Panel (which was not granted) could the appeal extend to any other grounds. Critically for the plaintiff’s case here, the Appeal Panel did not determine to deal with this internal appeal by way of a new hearing and, thus, the question of permitting fresh evidence pursuant to s 80(3)(b) did not arise. The plaintiff’s case, which was predicated on the applicability of s 80(3)(b) to this new evidence, failed at this first and fundamental hurdle.
Given that the Appeal Panel did not determine to deal with this internal appeal by way of a new hearing, the evidence the plaintiff sought to adduce was only admissible if it fell within cl 12 of Schedule 4 of the NCAT Act which provided:
12 Limitations on internal appeals against Division decisions
(1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because—
(a) the decision of the Tribunal under appeal was not fair and equitable, or
(b) the decision of the Tribunal under appeal was against the weight of evidence, or
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
(emphasis added)
In order for leave to be granted under s 80(2)(b) on the basis of “significant new evidence”, it was necessary that the evidence meet the description of “evidence that was not reasonably available at the time the proceedings under appeal were being dealt with”.
There are three fundamental problems with the plaintiff’s case about the admissibility of this evidence. Each is sufficient to reject the tender. First, no complaint was made by the plaintiff in the summons or in submission that there was any error of law in the application of cl 12 of Schedule 4 of the NCAT Act to this evidence. Secondly, all of the evidence sought to be adduced by the plaintiff to which objection was taken was plainly reasonably available at the time the proceedings under appeal were being dealt with. The plaintiff’s real complaint is that his then lawyers did not deploy that evidence in support of his adjournment application. The evidence to which objection was taken was sought to be deployed before the Appeal Panel to conduct a different case to that conducted on behalf of the plaintiff before NCAT. Thirdly, so far as the attempt to tender the document in this Court is concerned, as I will explain, the appeal is on a question of law only. The Appeal Panel found the following, as a fact:
[126] … 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.
The plaintiff’s written and oral submissions commenced by addressing what was submitted to be the strongest ground, Ground 4, an alleged constructive failure to exercise jurisdiction. It was submitted that the Appeal Panel erred by failing to admit evidence presented by the plaintiff in the appeal of the Tribunal's decision. The “rejected’ evidence' comprised the affidavit sworn by the plaintiff dated 30 July 2024 together with Exhibit GAB-1 (pages 322-366 of Exhibit A) I have addressed above.
The essence of the plaintiff’s submission was as follows:
An Appeal Panel may permit fresh evidence “as it considers appropriate in the circumstances”: s 80(3) of the NCAT Act. The decision of Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111, however, addresses a different issue: namely, the circumstances in which leave may be granted (so far as needed) to bring an internal appeal before the Appeal Panel. Those circumstances are identified in cl 12 of Schedule 4 of the NCAT Act, and include where “significant new evidence has arisen … that was not reasonably available at the time of the proceedings”. As such, the Appeal Panel, in error, applied the wrong test.
The essence of Ground 1 is that the Appeal Panel allegedly erred in failing to find that the plaintiff had been denied procedural fairness at the final hearing before the Tribunal on 23 October 2023 by the refusal of NCAT to order an adjournment on the plaintiff’s application made after lunch. The plaintiff accepted that the Appeal Panel had not erred in finding that the adjournment application made by the plaintiff’s lawyers that morning had been correctly refused. The Appeal Panel’s alleged error was said to be demonstrated by the matters asserted in particulars (a)-(i), matters to which I will return in detail.
The plaintiff drew attention to Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401 where Hamill J found that the failure of the tribunal member to make sufficient enquiries before granting leave to a solicitor to withdraw gave rise to a denial of procedural fairness in that case (at [68]-[69]). The plaintiff submitted that in the present case:
By contrast, SLF Lawyers had been on the record as Mr Abdallah’s legal representatives in the NCAT proceedings since early 2023, and gave no notice to the Tribunal (or Mr Abdallah) that they would not be appearing for Mr Abdallah at the Tribunal Hearing.
The essence of Ground 2 is that the Appeal Panel erred in determining that the plaintiff had not been denied procedural fairness by the failure of NCAT to provide the plaintiff with sufficient information about the practices and procedures of the Tribunal.
The gravamen of this ground was submitted to be "the failure of the Tribunal to meet fundamental procedural fairness obligations in its engagement with Mr Abdallah as a self-represented litigant with language and mental health impairment".
The plaintiff submitted that s 38(5) of the NCAT Act obliged the Appeal Panel, as far as reasonably practicable, to take practical measures to ensure each party understands the nature of the proceedings. It was contended that the scope of this overall duty is necessarily affected by the circumstance of the parties, including their language proficiency and their legal representation (or lack thereof): SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317; [2015] FCAFC 88. The plaintiff submitted that NCAT was obliged proactively to instruct the plaintiff, as a newly self-represented litigant, about practice and procedure and that the failure to do so amounted to a breach of procedural fairness.
The right of appeal to the Supreme Court is confined to “a question of law” and does not extend to any other matter, such as a question of fact: Dokas v Gallagher (No 2) [2024] NSWCA 236 at [65], per Kirk JA and Griffiths AJA. An appeal on a question of law from the decision of the Appeal Panel can only be brought where the leave of the Supreme Court has been obtained, pursuant to s 83(1) of the NCAT Act.
In Dokas v Gallagher (No 2)**, Kirk JA and Griffiths AJA summarised the effect of those matters as follows:
[66] These and other features of s 83 of the CAT Act were highlighted in Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; (2023) 20 BPR 43,135 at [33] (which, although directed to an appeal under s 83(1) of the CAT Act to the Supreme Court, apply equally where the proceeding has been commenced in the Court of Appeal as is the case here):
(1) There is no appeal to this Court from a decision of the Appeal Panel as of right. The applicant must persuade the Court that leave should be granted.
(2) An appeal is limited to “an appeal on a question of law”.
(3) As was recently emphasised in Thomas and Naaz at [32], “it is not sufficient merely to assert that the Tribunal erred in law in order to satisfy the limited conferral of jurisdiction”. (To similar effect, see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; (2014) 96 ATR 875 at [6] and [22]; and Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]). Accordingly, it is well-settled that a challenge which is wholly or partly factual cannot be converted into a question of law merely by asserting that a question of law is involved or merely by asserting error itself.
(4) What constitutes a question of law is “vexed and context dependent” in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises (see Thomas and Naaz at [52] and Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51).
…
(7) It is unnecessary to decide for the purposes of this appeal whether a “question of law” encompasses a mixed question of fact and law (see generally, at the federal level, the decisions of the Full Court of the Federal Court in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 and May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2015] FCAFC 93 and contrast the position at the State level, which is reflected in cases such as Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]; and Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 at [45] per Chen J).
(8) The existence of a question of law is not merely a qualifying condition to the statutory right of appeal; rather, the question of law alone is the subject matter of the appeal (see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21] per French CJ, Gummow and Bell JJ and Davis v NSW Land and Housing Corporation [2016] NSWCA 325; (2016) 18 BPR 36,459 at [77] per McColl JA, with whom Meagher and Leeming JJA agreed).
(9) Whether or not an appeal is on a question of law should be approached as a matter of substance and not merely form. As the Full Court of the Federal Court said in Haritos at [107], if, as a matter of substance, there exists a question of law, the Court has “a procedural discretion, to be exercised judicially and where it is in the interests of justice to do so, to direct its formal identification in an amended notice of appeal even where the question of law has not been identified before the primary judge”. It is notable that the Court there viewed this approach as consistent with that of the Court of Criminal Appeal in R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [57]–[69] per Spigelman CJ (with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed). Where an appellant is unrepresented, it may be appropriate to adopt a more generous or benevolent approach in assessing whether the notice of appeal identifies a question of law (see, for example, Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]–[77] per Mortimer J, as approved in Haritos at [104] and see also Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]).
(10) A s 83 appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT at first instance (see Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 at [10]).
A motion in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 50.16A was filed within time by the defendant seeking an order that the summons be dismissed on the basis that the proposed grounds of appeal do not raise questions of law.
As I will explain, proposed Grounds of appeal 1 and 4 do not raise a question of law. Ground 2, read in isolation, does raise a question of law, but suffers from the same deficiency as Ground 1 in that all of the operative particulars of the ground raise questions of fact, which the Appeal Panel determined adversely to the plaintiff.
I will commence, as the plaintiff did, by a consideration of Ground 4.
Jurisdictional error, in the sense of a constructive failure to exercise jurisdiction, was discussed in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088. Gummow and Callinan JJ, with whom Hayne J agreed, held that for an administrative decision-maker “[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts” was both a constructive failure to exercise jurisdiction and a failure to accord natural justice: at [23]-[25]. Kirby J similarly found a constructive failure to exercise jurisdiction in that case where the decision-maker’s mistake “amounts to a basic misunderstanding of the case brought by an applicant”: at [88]. The term natural justice was used in Dranichnikov because, at that time, the Federal Court had no statutory power to review for breaches of natural justice, which was why Mr Dranichnikov had commenced proceedings in the High Court seeking review under s 75(v) of the Australian Constitution.
The phrase “constructive failure to exercise jurisdiction” provides a generic description covering most if not all, forms of “jurisdictional error”. In Dranichnikov it was used to identify a failure on the part of the Tribunal to address the central claim it was required to determine. Although the distinction may not matter in many cases, in principle there is a distinction between failing to address the claim and failing to consider material which must be considered in order to address the claim. A claim will seek the exercise of a specific power, such as the issue of a visa or the setting aside of a cancellation of a visa. In a particular case, that will require addressing a specific ground or grounds of eligibility relied on by the claimant. It was at that level that the Tribunal failed in Dranichnikov. However, the Tribunal might have addressed the correct question but failed to have regard to particular material which was said to support the claim and which the statute obliged the Tribunal to consider.
The plaintiff’s complaint here is quite different and fails for at least three reasons.
First, the Appeal Panel did not “fail to respond to a substantial, clearly articulated argument relying upon established facts.” The Appeal Panel carefully considered, and rejected, the argument advanced by the plaintiff.
As adverted to at [64], the provision relied upon by the plaintiff as permitting the tender of fresh evidence from the plaintiff in support of his claim that an adjournment should have been granted after he was “abandoned” by his legal representatives, was s 80(3)(b) of the NCAT Act (set out at [63]). This provision did not apply. This was because the Appeal Panel had not decided to deal with the internal appeal by way of a new hearing as provided for by s 80(3)(a). It formed no part of the plaintiff’s summons that the Appeal Panel erred in failing to determine to deal with the internal appeal by way of a new hearing as provided for by s 80(3)(a). The reference to "fresh evidence" in s 80(3)(b) is in the context of the Appeal Panel conducting a new hearing of the kind identified in s 80(3)(a) following the establishment of grounds of appeal that in the view of the Appeal Panel justify a new hearing. Section 80(3)(b) does not provide a general discretion to permit fresh evidence for the purposes of establishing error, as was contended by the plaintiff.
As was clearly pointed out by the defendant in written submissions, there is a provision permitting fresh evidence in an Appeal Panel hearing of the present kind. This was the provision considered and applied by the Appeal Panel. The evidence the plaintiff sought to adduce was only admissible if it fell within cl 12 of Schedule 4 of the NCAT Act. The Appeal Panel addressed the correct provision and applied the correct test.
It was not an error, let alone an error of law, for the Appeal Panel to conclude that the evidence sought to be adduced by the plaintiff was “reasonably available” at the time the proceedings under appeal were being dealt with, and thus not admissible. The Appeal Panel specifically referred to the decision in *Al-*Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 which dealt with this issue at [28]: "there is no feature of the evidence or the witness who provided the evidence to suggest it could not have been obtained at an earlier time and was not, in that sense, reasonably available", here at the time of the original hearing.
In any event, by reason of the plaintiff’s misapprehension about the provision which applied to the admission of fresh evidence here, no complaint was made about legal error in the application of cl 12 of Schedule 4 of the NCAT Act.
Secondly, the Appeal Panel carefully considered and rejected the plaintiff’s submission that an adjournment should have been granted after he was “abandoned” by his legal representatives. The Appeal Panel made findings about all of the elements asserted by the plaintiff as supporting his application for an adjournment. The fundamental basis of that claim, that he was “abandoned” by his legal representatives, was rejected by the Appeal Panel who made the finding of fact at [126] that “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”. That finding, which is central to the reasoning of the Appeal Panel in this issue, cannot be challenged in this Court.
Thirdly, there was no denial of procedural fairness occasioned by the refusal to admit the evidence sought to be tendered by the plaintiff. The Appeal Panel heard and carefully considered the arguments made by the plaintiff in support of admissibility and applied the correct legal test in concluding that the evidence was inadmissible. It was suggested before the Appeal Panel and in this Court that relevant unfairness was occasioned to the plaintiff by the plaintiff’s former lawyers’ conduct. I express no views about those suggestions, save to say that the plaintiff remains free, subject to any relevant procedural or substantive limitations, to pursue any grievance against his former lawyers in litigation against them. I note, in this regard, NCAT’s finding that a principal reason for the plaintiff seeking the adjournment was his “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”. Whether that conclusion is factually accurate or not is not a question which can be litigated in this appeal.
Ground 4 does not raise a question of law. It seeks to cavil with an evidential ruling based upon a factual finding as to whether the evidence was “reasonably available” at the relevant time. The Appeal Panel was correct to conclude that the evidence sought to be tendered was reasonably available to the plaintiff at the time of the hearing on 23 October 2023.
Ground 4 must be rejected.
Ground 1 does not raise a question of law. This is because the present appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT decision at first instance: Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 at [10] and Dokas at [66].
Ground 1 does not engage with what question of law allegedly arises from the Appeal Panel’s decision. Upon analysis, the plaintiff’s complaints about an alleged failure to make a finding about a denial of procedural fairness are in truth complaints about factual findings made by the Appeal Panel.
Obtaining leave to appeal from an internal decision of the Tribunal other than on a question of law is a two-stage process. At the first stage the plaintiff must persuade the Appeal Panel that it may have suffered a substantial miscarriage of justice. The asserted basis, if it is to arise, must be under clause 12 of Schedule 4 of the NCAT Act which is set out at [65] above. The Appeal Panel did not find that any of the matters addressed by clause 12 of Schedule 4 of the NCAT Act (1)(a)-(c) arose.
That the plaintiff’s complaints are, in truth, complaints about factual findings is made clear on an analysis of the “particulars” provided of Ground 1 (set out at [56]) above. Particulars (a)-(c) provide a description of the grossly late application by the plaintiff to adjourn the final hearing and the fact that the adjournment application was refused. It was made clear by the plaintiff’s counsel in this Court that the appeal to this Court made no complaint about the decision to refuse the adjournment made whilst the plaintiff was legally represented before lunch. In any event, the present appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT decision at first instance per Bronze Wing*.* Particulars (a)-(c) may thus be put to one side. There is no particular (d), which may also be put to one side. No complaint is made about particular (e) in this Court which may thus also be put to one side.
A focus of the plaintiff’s case in this Court was particular (f). This particular makes a factual claim, namely that at the commencement of the final hearing, the plaintiff’s solicitors “unexpectedly” did not appear. This particular should be rejected for three reasons. First, the present appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT decision at first instance per Bronze Wing. Secondly, this particular contains an assertion of fact, inconsistent with the factual findings of the Appeal Panel. The plaintiff claimed that the relevant finding of fact, at [126] of the Appeal Panel judgement (set out at [67]), was “speculation” rather than a finding of fact. I do not agree. The finding was expressed in conventional fact-finding terms, of “more probable than not”. At its highest, the plaintiff’s claim that the solicitors “unexpectedly” did not appear after lunch was an alleged subjective belief held by the plaintiff, inconsistent with a factual finding made by the Appeal Panel. It will be recalled that counsel for the plaintiff told NCAT that if the adjournment was refused, the plaintiff had no defence to the claim made. That submission is consistent with the Appeal Panel’s finding of fact which, in any event, cannot be challenged on this appeal.
Thirdly, the plaintiff’s new case in this Court, that his “abandonment” by his solicitor (but not his barrister) was unexpected, is not open to the plaintiff. This was not a complaint made to the Appeal Panel. The grounds of appeal before the Appeal Panel are inconsistent with this claim. The only ground which raised the issue, Ground 1(e), provided:
The Tribunal then permitted [the plaintiff’s] legal representatives to withdraw, so that [the plaintiff] (who the Tribunal knew had limited English skills) became self-represented in a proceeding involving complex factual and legal considerations and in respect of which [the opposing party] had legal representation. (emphasis added)
It is clear that the only ground of appeal before the Appeal Panel which raised this issue did not raise the issue of “abandonment” by the plaintiff’s solicitor (but not his barrister). I reject the plaintiff’s suggestion that the defendant acquiesced in the plaintiff conducting a case outside of the grounds of appeal. None of the references to submissions provided by the plaintiff make that claim good. Particular (f) does not raise a question of law but rather seeks to contest facts found against the plaintiff and to conduct a different case in this Court to the one conducted in the Appeal Panel.
Particular (g) makes a number of factual assertions which are inconsistent with the factual findings of the Appeal Panel and thus are not open to the plaintiff on this appeal. In particular, the assertion that the plaintiff had “limited English language and comprehension skills” is inconsistent with the Appeal Panel’s factual finding. The Appeal Panel found, as a fact, that (at [123]) "it is tolerably clear from the transcript that the [plaintiff] was able to engage with the Tribunal in English." That finding of fact cannot be challenged on this appeal.
The remaining particulars, (h) and (i) are descriptive only. Particular (h) records that the plaintiff departed the hearing “to attend a medical appointment”, and the final hearing proceeded. The hearing had been fixed for about 5 months prior to this date. This was the third occasion on which the matter had been set down for final hearing. NCAT had clearly informed the plaintiff and his lawyers, in writing long before the day of the hearing, that “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.” (emphasis added). No explanation was offered at the time (or now) about how it was, in light of this clear direction from NCAT, that a medical appointment had been fixed by the plaintiff for the afternoon of the final hearing. The fact of a medical appointment provides no basis to conclude that the Appeal Panel erred in its approach in any way, much less that it denied the plaintiff procedural fairness. Particular (i) records the fact that NCAT determined the matter in favour of the defendant. This conclusion does not give rise to any suggestion of error on the part of the Appeal Panel.
Particular (j) is the only particular addressed to the decision of the Appeal Panel. Particular (j) asserts that the Appeal Panel determined that the plaintiff was not denied procedural fairness because he either did not attend the final hearing or left the final hearing “once it had 'barely' commenced". This, by way of conclusion, is the essence of the plaintiff’s argument.
I have concluded that the adjournment application which was allowed to be restated after the luncheon adjournment, was properly refused. Applications for leave to appeal relating to a question of practice and procedure (such as an adjournment decision) must be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited therein.
The Appeal Panel concluded, correctly, that there was no requirement to adjourn a proceeding to allow a delinquent party further opportunities to construct a case. It will be recalled a defence has not even been filed by the plaintiff, let alone any evidence beyond an expert report based upon an assertion made by the plaintiff. This is not a case where the plaintiff was denied a fair hearing, but simply one where the plaintiff failed to comply with directions for the service of documents and evidence, did not serve essential documents despite repeated orders to do so by made by NCAT, and did not comply with the generous further opportunities afforded by the Tribunal to prepare his case for hearing. The Appeal Panel referred, correctly, to the guiding principle to be applied per s 36(1) of the NCAT Act:
36 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
Having failed to secure an adjournment of the final hearing, the plaintiff (on the Tribunal’s findings of fact) gave instructions to his lawyers to withdraw, so better to improve his prospects of subsequently claiming a denial of procedural fairness. The Appeal Panel found the plaintiff engaged in a strategy that involved the plaintiff instructing his lawyers to withdraw if his application for an adjournment failed. It is to be noted that counsel for the plaintiff submitted as part of the adjournment application that "I'll make it absolutely clear, if the matter is forced on today, my client effectively has no defence". That submission tends in favour of the conclusion drawn by the Appeal Panel.
Decisions regarding adjournments are discretionary, and the grounds upon which such decisions may be challenged are confined to those grounds identified in House v The King (1936) 55 CLR 499. Particular caution must be exercised by appellate courts when asked to intervene in such decisions. As explained by the High Court in Bloch v Bloch (1981) 180 CLR 390 at 395 (Wilson J, Gibbs CJ, Murphy, Aickin and Brennan JJ agreeing) (at 395):
The decision whether to grant or refuse an adjournment lies in the discretion of the trial judge, and it is indeed seldom that an appellate court will feel justified in reviewing such a decision.
In Maxwell v Keun [1928] 1 KB 645, English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. …
In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources, the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties … What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.
(citations omitted)
Procedural fairness simply requires a party to be given a reasonable opportunity to defend the proceedings. The plaintiff was given a reasonable opportunity to defend the proceedings. There was no breach of procedural fairness. The particulars to this ground considered both separately and as a whole make clear that the plaintiff is not raising a question of law only. Rather, central to Ground 1 are arguments the plaintiff wishes to make about critical facts found against him by the Appeal Panel. This is not permissible in an appeal under s 83 of the NCAT Act.
Leave to appeal on Ground 1 should be refused.
The essence of Ground 2 is that the plaintiff was denied procedural fairness by NCAT failing to explain relevant practices and procedures to him and the Appeal Panel erred in failing so to conclude. Framed in this way I accept that Ground 2 raises a question of law. An initial problem is that exactly the same particulars are provided for Ground 2 as are provided for Ground 1. For the same reasons as I have given in relation to Ground 1, if read with those particulars, Ground 2 does not raise a question of law. I am prepared, however, to address Ground 2 without regard to the particulars given which raise disputed questions of fact.
The content of procedural fairness is shaped by the relevant legislative context. Section 38 of the NCAT Act provides:
38 Procedure of Tribunal generally
(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) Despite subsection (2)—
(a) the Tribunal must observe the rules of evidence in—
(i) proceedings in exercise of its enforcement jurisdiction, and
(ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and
(b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.
(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(5) The Tribunal is to take such measures as are reasonably practicable—
(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and
(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
(6) The Tribunal—
(a) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(b) may require evidence or argument to be presented orally or in writing, and
(c) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
Section 38 of the NCAT Act relevantly provides that the Tribunal is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. It does not require the Tribunal to provide a defaulting party with an automatic adjournment of a final hearing. The statutory requirement is to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings if requested to do so*.* No such request was made in the present case.
I reject the plaintiff’s claim that he was denied procedural fairness at the NCAT hearing due to not being properly advised by the Tribunal as to matters of practice and procedure.
In Chalik v Chalik [2025] NSWCA 136, the Court of Appeal reiterated the principles underpinning a court’s responsibility to an unrepresented litigant and said:
[69] The question of the extent, if any, of assistance which a trial judge or appellate court should afford to an unrepresented litigant in civil proceedings is nuanced and has been the subject of many intermediate appellate judgments of this Court since Rajski [Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)] was decided almost 40 years ago. Those decisions have emphasised that an unrepresented litigant should be provided with sufficient information about the practice and procedure of the court to ensure a fair trial takes place: see, for example, Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at [48]; Jeray v Blue Mountains City Council [2010] NSWCA 153 at [14]. Even then, care must be taken not to disturb the balance which the rules of practice and procedure are designed to afford both parties: Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [39], citing Barton v Wright Hassall LLP [2018] UKSC 12; [2018] 1 WLR 1119 at [18] per Lord Sumption.
[70] In Bauskis v Liew [2013] NSWCA 297 at [69], Gleeson JA (Beazley P and Barrett JA agreeing) noted that the duty of a trial judge to assist an unrepresented litigant “does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant”. In Cicek v Estate of late Solomon [2014] NSWCA 278 at [130], Ward JA (Meagher and Barrett JA agreeing) held that none of the cases her Honour had reviewed:
“suggests that the primary judge in the present case had a duty to advise the appellants as to the inadequacies in their evidence having regard to the pleaded case or to adjourn the proceedings in order to permit them further time to re-plead their case in order for it to accord with the statement being made from the bar table as to the forgery complaints. A duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her.”
[71] Handley JA expressed similar views more than 20 years earlier in Rowett v Westpac Banking Corp [1993] NSWCA 240:
“Nevertheless, the role of a judge in a civil case is not to actively assist one party against the other; to advise one party against the other; or in any way to act as the legal adviser or the legal representative for that party even if that party is unrepresented. The role of the judge in a civil case in our system is to act as the umpire and he or she has no active role such as may occur under our system in criminal proceedings where a citizen is facing the State as prosecutor, and the judge has a proper role in protecting the accused, especially an unrepresented accused. Civil cases involve citizen (corporate or otherwise) against citizen, and the judge's role, as I have said, is that of an umpire.”
[72] See also Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [315]-[316]; Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 at [51]; Stone v Braun [2015] WASCA 103 at [62]-[69] per Beech J, Buss and Mazza JJA agreeing; Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 at [74]-[75]. More recently, in Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21] McCallum JA (Basten and Leeming JJA agreeing) observed that “the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point”.
[30] Further, where a party is unrepresented, a failure by the Tribunal to explain its procedures, if requested to do so, may also constitute a denial of procedural fairness, as well as a failure to comply with its obligations under s 38(5) of the NCAT Act: Shardlan [Morgan v Shardlan Pty Ltd as Trustee for the Stumar Family Trust t/as Carpet One and Blinds Wagga Wagga [2018] NDSWCATAP 143] at [21]; Lee v Cha [2008] NSWCA 13 at [48] (per Basten JA). This principle has, in some instances, led Appeal Panels in this Tribunal to decide that a failure to inform an unrepresented party that they had a right to cross-examine the other party’s witnesses was an error of law (see, for example: Wilson v AR Browning Nominees Pty Ltd t/as Ad-Built; AR Browning Nominees Pty Ltd t/as Ad-Built v Wilson [2015] NSWCATAP 238 at [9], [44]; Renda v Wu [2016] NSWCATAP 238 at [2], [62]).
[143] We find this ground to be misconceived for the simple reason that the appellant did not attend the hearing.
[144] While we accept that the fact that the appellant would be unrepresented at a hearing may be relevant to the Tribunal’s consideration of the Adjournment Application, it is disingenuous to suggest that at the time of the Adjournment Application the Tribunal was required to take “appropriate steps” to ensure that the appellant had sufficient information about the practices and procedures of the Tribunal so that a fair hearing could be conducted should the Adjournment Application not be granted.
[145] We do not consider that the appellant was denied procedural fairness in circumstances where he did not attend the final hearing, or at least left the final hearing once it had (barely) commenced.
No occasion arose to explain the practices and procedures of NCAT. On the Appeal Panel’s factual finding, not open to challenge in this Court, the plaintiff voluntarily did not attend the final hearing, or at least voluntarily left the NCAT hearing when it had “barely commenced”. As such, the plaintiff was not present at a time when relevant guidance about NCAT’s practices and procedures could have been given. That finding was plainly correct. In any event, it is a finding not open to challenge in an appeal under s 83 of the NCAT Act.
Further the plaintiff, like any other party, was under a duty to co-operate with the Tribunal to give effect to the guiding principle (set out at [105]) and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: s 36(3) NCAT Act. In the present case, on the view of the facts most favourable to the plaintiff, he did not comply with any directions or orders of the Tribunal and voluntarily left the final hearing before anything of substance happened. The defendant had not opened the case. No evidence had been tendered. There was no occasion for NCAT to explain to the plaintiff any practice or procedure relevant to some part of the case which had yet to occur.
The NCAT member did say, in explanation to the plaintiff and his nephew who was assisting him, prior to the plaintiff leaving, “now, obviously, I would think it’s probably in [the plaintiff’s] interest to be here… If you stay, presumably, [the plaintiff] will be in a position to respond to what is put by the applicants". That, in the circumstances, was all that was required. NCAT was not required as an incident of providing procedural fairness in the present case to advise the plaintiff about how his rights should be exercised. To have advised the plaintiff further would likely have involved stepping into the arena and would have been contrary to the principles gathered most recently by the Court of Appeal in Chalik v Chalik. No error of law was shown on the part of the Appeal Panel in failing to discern a denial of procedural fairness by NCAT.
Finally, the plaintiff has not in any event shown that a different outcome could have been open if any putative assistance had been provided. It is significant that at no stage did the plaintiff request any such assistance and as such did not enliven any additional potential obligations pursuant to s 38(5)(b) of the NCAT Act. Even in this Court, the plaintiff’s legal representatives could not formulate what precisely about the practices and procedures of NCAT should have been explained to the plaintiff but were not. The closest to an explanation was that the plaintiff should have been informed that he could ask questions of the defendant’s witnesses to cast doubt on their conclusions about liability and quantum. As the plaintiff’s only witness had not attended the hearing, in breach of NCAT’s direction, the plaintiff accepted it was unlikely that NCAT would have permitted the tender of his report. In circumstances where the plaintiff’s lawyer had told NCAT that morning "I'll make it absolutely clear, if the matter is forced on today, my client effectively has no defence", I am not persuaded that any different outcome was possible, or that a different conclusion about a possible outcome to that proffered by the plaintiff’s own counsel on the day of the trial should be reached.
The Appeal Panel did not err in finding that the plaintiff had not been denied procedural fairness. Whist I have addressed this ground on the basis that a question of law is raised, I would nevertheless refuse leave to appeal on Ground 2.
I would refuse leave to appeal on Ground 2 for all the reasons I have given and, in addition, for the reason of delay which has now occurred which would likely fundamentally prejudice the rights of the defendant. It will be recalled that the plaintiff has not filed a defence to the defendant’s claim. If the Appeal Panel’s decision were set aside and the matter remitted, essentially to the beginning as the plaintiff submits should be done, the plaintiff apparently wishes to file a defence placing blame on the original owner and the private certifier for various building defects. If the plaintiff had complied with NCAT’s orders and filed a defence in a timely way making such a claim, the defendant submits, and I accept, that it would have considered joining the original owner and the private certifier to the proceedings within the relevant time limits for doing so. That opportunity is now likely lost as more than six years have passed since the issue of the occupation certificate, which provides the outer time limit on the s 18B Home Building Act warranties. For this additional reason, leave to appeal on Ground 2 should be refused.
As noted at the outset, immediately prior to this case being heard, the plaintiff approached the duty judge and obtained a stay of further enforcement of the judgement of the Appeal Panel. Limited in that way, the application may be understood as being uncontroversial, although approaches to the duty judge in the days immediately leading up to a final hearing are to be deprecated as likely to lead to a waste of scarce judicial resources.
The orders sought by the plaintiff went much further than simply providing for a stay of enforcement. First, an order was sought directing the Registrar General to remove a record on the title to a property of a Writ of Property issued by the District Court of New South Wales in proceedings 2025/11197 on 28 January 2025. That order was granted. Whatever priority afforded to the defendant by reason of registration of that record was lost. This is the opposite of maintaining the status quo, the usual rationale for the grant of a stay. It seems, however, that despite the outcome of this case I cannot restore the priority formerly enjoyed by the defendant.
The orders made also incorporated undertakings given by two non-parties to the proceedings. A significant problem with the undertakings in the form they took is that the undertakings only remained operative the earlier of the time “until judgment is given in the Supreme Court proceedings in 2025/16105” or further order of the court. Those undertaking expire upon my giving judgment. It may be (I simply do not know) that the defendant has an interest it wishes to protect in relation to property now held by those third parties which is no longer the subject of an undertaking. When making orders, I will formally note that if they are so advised, nothing in those orders prevents the defendant from seeking immediate interlocutory relief from the Real Property list judge in relation to the expired undertakings given by Wafaa Abdallah and Markos Abdallah.
Finally, to avoid any doubt about the possible dissipation of the plaintiff’s funds held pursuant to an undertaking referred to in the orders of 28 August 2025, I will order that any funds the subject of the undertaking to those orders not be distributed without further order of the court. The defendant will be granted leave, after a period of 7 days has expired, to apply to my chambers for an order releasing those funds at its direction.
For the foregoing reason I make the following orders:
Leave to appeal on grounds 1, 2 and 4 refused.
Appeal dismissed.
Plaintiff to pay the defendant’s costs.
The funds the subject of the undertaking to the orders of 28 August 2025 held in the trust account of the plaintiff's solicitors in these proceedings, Aquinas More Lawyers, not be distributed without further order of the court.
Leave granted to the defendant, after a period of 7 days from the date of these orders, to apply to the chambers of Payne JA by email (copied to the plaintiff’s lawyers) for an order releasing the funds referred to in order 4.
The Court Notes
The stay of enforcement granted on 28 August 2025 has now expired. Nothing in these orders prevents the defendant from seeking immediate interlocutory relief from the Real Property list judge in relation to the subject matter of the expired undertakings given in relation to the stay by Wafaa Abdallah and Markos Abdallah.
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Abdallah
Paco Nominees Pty Ltd [2025] NSWSC 1267
(1981) 180 CLR 390
(2003) 77 ALJR 1088
(1936) 55 CLR 499
(1993) 67 ALJR 841
(2015) 229 FCR 317
(2022) 276 CLR 80
(1968) 118 CLR 186
(2015) 233 FCR 315
(2015) 233 FCR 397
(2000) 49 NSWLR 653
(2020) 103 NSWLR 36
(2010) 241 CLR 320