Accardo v Dods

Set aside Application

1. The next step is that Ms Accardo, as she was entitled to do, applied to the Tribunal to set aside the decision. Such applications must be made within seven days, which it was. In her application, Ms Accardo made a number of submissions including that:

• she failed to mention in her application for an adjournment that she has Hashimoto Thyroiditis, which makes her vulnerable to stress and high weather temperatures. In her case, she says it triggers a loss of balance and dizziness, and this is what occurred on the day of the hearing.
• she failed to mention that she has carer's duties.

1. Attached to her set aside application were a number of pieces of medical evidence. These were:

• a medical certificate dated 30 December 2017 stating that Ms Accardo has Hashimoto Thyroiditis and suffers loss of balance and dizziness;
• a request for a MRI Scan of her brain and cervical spine. We are unable to discern the date of the request of the document;
• a Patient Health Summary of Leichardt Medical Centre dated 18 August 2017 relevantly stating that since August 2015 Ms Accardo has suffered from Hashimoto Thyroiditis.

1. The set aside application was refused. The Tribunal stated that Ms Accardo had failed to supply any reasonable explanation with supporting evidence for her failure to attend. In the circumstances, the Tribunal was not satisfied that there had been a denial of natural justice.

The appeal

1. Against that background, Ms Accardo has filed a notice of appeal in respect of the Tribunal's decision of 18 December. There are four grounds of appeal identified in the notice.
2. The first is that the decision was made in her absence. To use legal language, this is an alleged denial of natural justice or procedural fairness. This raises a question of law, and an appellant has a right to appeal on a question of law pursuant to s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act).
3. The second error is that the decision was not fair and equitable, because a full refund was given to Ms Dods in circumstances where no consideration was given for the work undertaken by Ms Accardo.
4. The third error is that the decision was against the weight of the evidence.
5. The fourth error is that significant new evidence is now available that was not reasonably available at the time of the hearing.
6. Ms Accordo needs the leave or permission of the Appeal Panel to pursue the second, third and fourth grounds of appeal (NCAT Act, s 80(2)(b)).
7. We shall consider each ground of appeal in turn.

Error of law

1. The Tribunal has an obligation to ensure that Ms Accardo had a reasonable opportunity to present her case and be heard.
2. Ms Accardo submits that she only had 10 days to prepare her defence, and it would not have been possible in that time period while "conducting unchangeable and normal daily activities which include carer duties". She says that the preparing of her appeal documents took eight days.
3. Ms Accardo also says she could not have attended due to her Hashimoto Thyroiditis, but there is no corroborative or medical evidence that she was suffering from side effects of that syndrome on the day of the hearing. No explanation was given as to why she could not have sent somebody else along to represent her, or why she could not have sent in some evidence for the Tribunal to consider. We discussed these matters at the appeal hearing. Ms Accardo said that there was no-one who could have presented her case on her behalf, and that she had not been informed by the Registry that she could have sent in documents for the Tribunal to consider. In any event, as she was a critical witness, she had to be there to present evidence herself. Finally, Ms Accardo told us that, in fact, on the day of the hearing she was unwell due to her thyroiditis. She agreed that the medical certificate she later provided in support of her application to set aside the decision does not say so in terms, and she also told us that she did not attend a doctor on the day of the hearing.
4. Section 38 of the NCAT Act relevantly provides that 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: s 38(5)(c). Ms Accardo was clearly given notice of the hearing. She sought an adjournment, which was refused.
5. A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11, Gaudron and Gummow JJ at 611 [40]. Further, a failure to offer an adjournment to a self-represented party may, in some circumstances, be a failure to comply with the rules of procedural fairness: Italiano v Carbone [2005] NSWCA 177; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [21]. The Tribunal had a duty to consider, on the day of the hearing, whether it should proceed with the hearing in Ms Accardo's absence, even though she had already been informed by the Tribunal's registry that her adjournment application had been refused: Civil and Administrative Tribunal Rules 2014, r 35.
6. An application for an adjournment should be seen as the exceptional rather than the ordinary course; O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22]. The question of whether an adjournment should be granted is a discretionary one to be resolved according to the overall requirements of justice in the particular circumstances: Squire v Rogers (1979) 27 ALR 330; 39 FLR 106. Where an adjournment application is refused, the applicant must show that that refusal produced an injustice, in order to establish that the decision was in error: Dubois v R & B Bergin Pty Ltd [2011] NSWCA 309 at [43]. When determining whether to grant an adjournment, the Tribunal may take into account the guiding principle, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1); Dubois v R & B Bergin Pty Ltd [2011] NSWCA 309 at [45]; Armee v Brealey [2017] NSWCATAP 141 at [133]).
7. In circumstances where Ms Accardo provided no medical evidence or evidence of carer's duties to support her non-attendance and did not explain to the Tribunal in her request for an adjournment why she could not send someone else to represent her, the refusal of the adjournment application did not amount to a denial of procedural fairness. Ms Accardo was informed of the decision to refuse the adjournment application four days prior to the hearing and had time to make other arrangements. Further, when it eventuated that she was ill on the day of the hearing, she could have obtained a medical certificate and made a further adjournment application on that basis. The refusal to grant an adjournment on 14 December 2017, and the Tribunal member's decision to proceed with the hearing on 18 December 2017, did not, for these reasons, produce an injustice.
8. In the circumstances, we are not persuaded that the Tribunal denied Ms Accardo a reasonable opportunity to be heard.
9. The appeal on this question of law should be dismissed

Other errors

1. Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Consumer and Commercial Division arise. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). Each of the second, third and fourth grounds of appeal raise errors on other grounds. For each of these grounds, the Tribunal may grant leave if satisfied the appellant may have suffered a substantial miscarriage of justice.
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel concluded that leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
3. Even if the appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act: Collins v Urban at [80]-[84]; Pholi v Wearne [2014] NSWCATAP 78 at [32].
4. The second ground of appeal is that the decision of the Tribunal was not fair and equitable. The appellant makes two submissions to justify this ground. The first is that the Tribunal did not give equal weight to the days available to both parties. This submission relates to the Tribunal's refusal of the application for an adjournment. For the reasons we have already stated, the Tribunal was justified in doing so on the basis of the application presented to it. That decision was confirmed when the appellant sought to have it set aside.
5. The second submission is that the Tribunal gave no consideration to the work Ms Accardo had undertaken. This is understandable. There was no evidence presented by her to the Tribunal.
6. We reject this ground of appeal.
7. The third ground is that the decision of the Tribunal under appeal was against the weight of evidence. This ground can be refused for the same reason. The only evidence before the Tribunal was the evidence of Ms Dods which the Tribunal accepted. There was no evidence from Ms Accardo before the Tribunal. There was no error in the Tribunal acting on the evidence before it. We reject this ground of appeal.
8. The fourth and final ground of appeal is that significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). The appellant says she did not have enough time, being ten days, to file any evidence. In Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 the Appeal Panel considered the meaning of this expression and concluded at [23] that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. The Appeal Panel concluded that at [24] that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).
9. This ground too should be refused.

Conclusion

1. In conclusion we do not consider that the matter involves an issue of principle, a question of public importance, that the injustice is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
2. In the circumstances, leave to appeal on grounds two to four is refused.

Orders

1. For the above reasons, the Appeal Panel orders: 1. Leave to appeal is refused. 2. The appeal is dismissed.

Other

1. Ms Accardo should pay Ms Dods the $415 within 14 days of receiving these reasons. If she does not do so, Ms Dods can approach the Registry of the Consumer and Commercial Division of the Tribunal to issue a money order for enforcement of the original decision through the Local Court of NSW.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2018