Advertising Printing Australia Pty Ltd v Silverwater Plumbing Pty Ltd

NCAT Appeal Panel|2023-11-07

Date of Decision: 12 July 2023 Before: J Levingston, General Member File Number(s): GEN 23/27035

Introduction.

Advertising Printing Australia Pty Ltd (APA) has appealed against an order made in the Consumer and Commercial Division of the Tribunal (the CCD) on 12 July 2023 that it pay Silverwater Plumbing Pty Ltd (Silverwater Plumbing) $20,594.00, being damages for breach of contract. That contract was for the delivery by APA of fridge magnets, advertising Silverwater Plumbing, to suburban households in certain Sydney suburbs.
APA was not in attendance at that Tribunal hearing.
The appeal was filed with the Tribunal on 24 July 2023, within the time required by r. 24(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules). The appeal is an internal appeal to which the provisions of s 81 and s 82 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) apply.
The money order was initially stayed, until 9 August 2023, by an Appeal Panel order made on 25 July 2023. The appeal was then dismissed on 9 August 2023 when APA did not appear. The stay order then lapsed. While the appeal was reinstated on 15 September 2023, an application for a further stay was refused. The monies owing under the order have since been garnisheed from APA.

Scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) of the NCAT Act.
A question of law may include not only an error in ascertaining the legal principle, or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not having regard to a relevant consideration. This includes not making a finding on an element or central issue that is required to be made out in order to claim an entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v The State of South Australia (1995) 184 CLR 163 at 179.
In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel, at [13], set out a series of common questions of law: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The circumstances in which an Appeal Panel may grant leave to appeal from decisions made in the CCD are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; 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).
The test of whether evidence is reasonably available is not considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test which asks whether the evidence in question was unavailable because no person could have reasonably obtained it: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]; see too Elsayed v Tassone [2022] NSWCATAP 69 at [18].
In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel said at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
Even if an appellant from a decision of the CCD has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins, at [84], the Appeal Panel said that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
In the NCAT Act, s 81 deals with the determination of internal appeals. (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
In circumstances where an appellant is not legally represented, the Tribunal should look at the grounds of appeal generally in order to determine whether a question of law has in fact been raised, but must ensure that procedural fairness is given to the respondent before considering it: Prendergast at [12]. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel explained at [13]: 13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
Importantly, in Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.

The decision being appealed.

The Tribunal provided short, written reasons for its decision. It is necessary to set them out in full. REASONS Application 1 This is an application filed 16/6/23 which claims a remedy under the Fair Trading Act ("FTA") s79N for dames (sic) arising from a breach of an agreement to supply delivery of promotional material to consumer letter boxes; see also the Australian Consumer Law (NSW) ("ACL") s60 (guarantee to exercise due care and skill) and the remedy in ACL s236 (Damages). Appearances 2 There is no appearance by the respondent. The respondent was served with a notice of the hearing in accordance with the usual practice of the Registry which has not been returned undelivered. The respondent had an opportunity to attend and has offered no explanation for failure to attend. The applicant is entitled to have the application determined in default of an appearance by the respondent, and I am satisfied that it is in the interests of justice to do so: Civil and Administrative Tribunal Rules 2014 r 35(2). Jurisdiction 3 The Tribunal has jurisdiction pursuant to the Civil and Administrative Tribunal Act (CATA) ss 28, 29 and Schedule 4 clause 3, and power to make orders pursuant to the ACL and the FTA. Facts 4 The material facts (as defined by the courts) are (stated shortly): On or about 7/12/22 the parties made an agreement for the respondent to deliver the promotion materials into consumer letter boxes. The applicant delivered the promotional materials to a value of about $18,820 and paid the respondent $15,380. The applicant has since discovered that the respondent's servants, agents and contractors did not deliver the promotional materials as agreed, but dumped materials, did not make the deliveries which they said had been made, and delivered to the wrong locations. 5 The applicant has demanded a refund (including by this application) but the respondent has continued to fail or refuse to pay any refund. The applcaint (sic) also demanded return of undelivered stock which the respondent has refusewd (sic) to release. 6 The evidence is uncontradicted. The respondent has no defence to the claim. I am satisfied that the claims are proved. Law 7 I am satisfied that the applicant has a cause of action for breach of contract with a remedy in FTA s79N and ACL s236 for refund of money paid. I am satisfied that the applicant is entitled to the above Order. Conclusion 8 The Orders are made in default of the respondent's appearance to dispute the claims, and the absence of any evidence to disprove the claims. The Orders are made in the interests of justice as between the parties to determine their dispute. 9 In making this determination I have considered FTA s 79U (Matters to be considered by Tribunal when making orders) and the matters in s 79U(2)(h), particularly that the agreement was the subject of negotiations before the time it was made, and the commercial or other setting, purpose and effect of the contract. I am satisfied that the Orders are fair and equitable to all the parties to the claim.

Issues in the appeal.

Having reviewed the notice of appeal, the submissions made on appeal and considered the oral arguments made by the parties, we think that the appeal raises the following issues for consideration. 1. Whether the Tribunal by amending the name of the respondent from Bob Bojaj to APA at the hearing and then immediately hearing the application, without giving notice of the amendment to APA, denied APA procedural fairness? This is a question of law. 2. Whether the Tribunal failed to have regard to a relevant consideration when it did not consider the effect of the Recission of Business Relations Agreement between APA and Silverwater Plumbing signed by Mr Bajaj on 8 June 2023 and Mr Khan on 9 June 2023 (the recission agreement), or of Silverwater Plumbing's claim - spelt out in the application - that it signed the agreement under duress? This is a question of law. 3. The extent of the Tribunal's obligation to consider defences to an application when hearing an application ex parte. 4. Whether the Tribunal's reasons for decision were inadequate because: 1. It did not explain how it had assessed Silverwater Plumbing's damages by making findings of fact, considering the applicable law, or outlining how it reached the assessment of damages; and 2. It did not correctly consider or apply the applicable law when assessing Silverwater Plumbing's damages, by not giving APA credit for work actually performed under the contract, which work was evident from the materials relied on by Silverwater Plumbing. Inadequate reasons would give rise to a question of law. 1. Whether APA should be given leave to appeal because it may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal was not fair and equitable because it had not been notified that it had been named as a party; and, 2. the decision of the Tribunal was against the weight of the evidence with respect to assessment of Silverwater Plumbing's damages.

Material before the Appeal Panel.

We had the following material before us in considering the appeal. 1. Silverwater Plumbing's application to the CCD lodged 16 June 2023. 2. The orders made by the Tribunal on 12 July 2023 together with short written reasons for decision. 3. APA's notice of appeal with attachments received 24 July 2023. These included documents which post-dated the Tribunal's hearing. 4. APA's submissions with attachments filed 31 July 2023 most of which were not before the Tribunal when it made its determination. 5. APA's further submissions with attachments filed 9 October 2023. Once again, most of the attached documents were not before the Tribunal when it made its determination. 6. APA's bundle of documents filed 3 November 2023, many of which duplicated those already filed, and most of which were not before the Tribunal when it made its determination. 7. Silverwater Plumbing's response to the appeal dated 7 August 2023. 8. Silverwater Plumbing's request that the appeal be dismissed dated 11 October 2023. 9. Bundle of documents filed by Silverwater Plumbing on 9 October 2023. 10. Earlier orders and direction made by the appeal panel on 25 July 2023, 9 August 2023, 30 August 2023, 8 September 2023, and 15 September 2023.
Silverwater Plumbing did not file a formal reply to the appeal. It did not provide the Appeal Panel with a full copy of the materials it had provided to the original hearing, only selected pages. This resulted in us having an incomplete picture of the material given to the Tribunal by Silverwater Plumbing. Its bundle of material filed in the appeal on 9 October 2010 included a lot of material that was not before the Tribunal below. There was no audio or transcript of that hearing before us.
As well as not appearing at the Tribunal hearing, APA did not provide any material for that hearing.

Consideration of materials sought to be relied on in the appeal.

Both parties sought to rely on materials that were not considered by the Tribunal when making its determination.
We heard oral submissions about the admission of new evidence before us from the parties when hearing the appeal. Those submissions included some concessions made by Mr Khan, for Silverwater Plumbing, that certain materials, now sought to be relied on by APA, had been put before the Tribunal by Silverwater Plumbing at the initial hearing.
Because they were considered by the Tribunal, they were not significant new evidence to which the provisions of cl 12(1)(c) of Sch 4 of the NCAT Act applied and APA did not require leave to rely on them.
These materials, all of which can be found in the 9 October 2023 bundle consisted of: 1. Invoices from APA to Silverwater Plumbing dated 10 January 2023, 23 January 2023, 22 February 2023, 13 March 2023, 10 April 2023, 27 April 2023. 2. Email dated 26 April 2023 from Silverwater Plumbing to APA requesting details of past deliveries. 3. Email from chain between the parties consisting of two emails, both dated 27 April 2023, regarding 'Silverwater Plumbing Distributions'. 4. Photograph of handwritten page headed 'Magnet Deliveries 2023". 5. Email from chain between the parties consisting of two emails, both dated 15 March 2023, about deliveries to Baulkham Hills and Pennant Hills. 6. The recission agreement. This includes clause 2.2 Claims and Obligations: Both parties hereby waive and release any and all claims, demands, liabilities, causes of action, obligations arising from or related to the business agreement. This includes any claims for damages, indemnity, or compensation, whether known or unknown, suspected or unsuspected.
We admitted them in evidence before the Appeal Panel without objection.
We also admitted into evidence the following correspondence between the parties and the Tribunal: not between the parties themselves. 1. Emails (attached to the notice of appeal) exchanged between the APA and the Tribunal Registry up to and including the date of hearing in which APA had advised that Mr Bajaj, who Silverwater Plumbing had named as respondent to its application, was not the proper respondent. The emails did not ask for APA to be named as respondent but asserted that Mr Bajaj was not properly named. He was not the author of those emails. In summary, the Tribunal replied that any issues should be raised at the hearing. The final email from APA was timed at 4:03pm on the date of hearing - when the hearing was likely over - said there was no contract with Mr Bajaj and sought an adjournment. 2. An email dated 20 June 2023 (found on the Tribunal file) from Silverwater Plumbing to the Tribunal saying that the correct respondent was APA, with a company search attached.
We considered this evidence relevant to the question of whether or not APA had been denied procedural fairness by the Tribunal naming it as a party in its absence, and then, at once, determining the application without further notice. It is well established that evidence of this nature, going to an assessment of whether a party has been denied procedural fairness, is admissible on appeal: see Troy Hood trading as UR Place Landscape v Rutten [2016] NSWCATAP 250 and Waters v Waghorn [2016] NSWCATAP 247 at [27] - [34], [36].
We were satisfied that all the other material - not before the Tribunal below - which both parties sought to rely on in the appeal, was reasonably available to a person at the time of the Tribunal hearing. We therefore refused to admit it as evidence in the appeal. As a consequence, leave to appeal under cl 12(1)(c) of Sch 4 of the NCAT Act was refused.

Was APA denied procedural fairness?

Order 2 made by the Tribunal read: 2. The respondent's name BOB BAJAJ, is amended to ADVERTISING PRINTING AUSTRALIA PTY LTD ABN 25 153 045 759.
In par 2 of its reasons for decision, under the heading "Appearances" the Tribunal wrote: 2 There is no appearance by the respondent. The respondent was served with a notice of the hearing in accordance with the usual practice of the Registry which has not been returned undelivered. The respondent had an opportunity to attend and has offered no explanation for failure to attend. The applicant is entitled to have the application determined in default of an appearance by the respondent, and I am satisfied that it is in the interests of justice to do so: Civil and Administrative Tribunal Rules 2014 r 35(2).
It is clear that at that time APA had not been served with a notice of hearing in which it was named as a respondent to the proceedings. Staff of APA were aware of a notice of hearing addressed to Bob Bajaj, at APA's address, but not to the company itself. They had responded to the Tribunal by email asserting that Bob Bajaj was not the correct respondent, but they did not say that APA was. The Tribunal had responded by emailing APA staff the same notice of hearing addressed to Bob Bajaj and saying that issues of concern should be raised at the hearing. In the meantime, Silverwater Plumbing had emailed the Tribunal saying that the correct respondent was APA and enclosing a copy company search.
Rule 35 of the Civil and Administrative Tribunal Rules 2014 sets out the circumstances in which the CCD may go ahead to hear a case in the absence of a party who fails to attend a hearing. Relevantly, it provides: 35 Ex parte proceedings in Consumer and Commercial Division (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Where a hearing is held for proceedings to which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if: (a) the Tribunal is satisfied that notice of the hearing was duly served on the party, or (b) the Tribunal, being satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party. …
It is important to note that neither the NCAT Act nor the NCAT Rules contain a provision which entitle the Tribunal to determine an application "in default of an appearance by the respondent." Rule 35 provides for the Tribunal, in defined circumstances, to "hear the proceedings" in the absence of a party who has not attended. This still requires a hearing in which the applicant must prove its case. It is not a situation where, as can occur in the courts, there are express provisions allowing for judgment to be administratively entered in default of a party filing an appearance. There, the failure to enter an appearance can result in the respondent being deemed to have admitted all of the allegations in the originating application: see Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427 at [44] - [48] and Lexis Nexis Australia, Halsbury's Law of Australia, at [325-6925]. See also Unciform Civil Procedure Rules (NSW), Part 16. The entry of judgment is an administrative act and will only decide liability, rather than the claim in full, where the damages claimed are unliquidated and therefore must be proved. None of this applies to proceedings in the Tribunal, where it is incumbent on an applicant to prove its case, even when the matter is being heard in the absence of the respondent.
Up until the time that the Tribunal made the order joining APA as a party to the proceedings, the sole respondent to the proceedings was Bob Bajaj to whom all notices of hearing and the application were addressed.
Section 27 of the NCAT Act specifies who are parties to proceedings for general decisions (and administrative review decisions) in the Tribunal. It provides: The parties to proceedings for a general decision or administrative review decision are - (a) the applicant, and (b) if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant) - the person or body in respect of whom the order or other decision is sought, and (c) if the Attorney General or another Minister intervenes in the proceedings under section 44 of the Act - the Attorney General or Minister, and (d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and (e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules.
When the proceedings came before the Tribunal for hearing Bob Bajaj was the only respondent in accordance with s 27(b). Only after the order was made amending Mr Bajaj's name to that of APA did the company become a respondent in the proceedings pursuant to s 44, but it was not notified that was the case. When the Tribunal made that order, APA had not been served with any documentation naming it as a respondent. It had in its possession a notice of hearing addressed to Bob Bajaj, its director, and had asserted to the Tribunal's Registry that Mr Bajaj was not a party to a contract with Silverwater Plumbing. APA had not volunteered that it was the proper party, although Silverwater Plumbing had written to the Tribunal saying that APA was the correct respondent.
In those circumstances it was not open to the Tribunal to immediately proceed with the hearing after making an order amending the name of the respondent to APA, without first giving APA notice that it was now a party to the proceedings and an opportunity to be heard as to whether it should be named as a party. This is so for the following reasons.
First, there was no evidence before the Member upon which he could conclude that APA "was served with a notice of the hearing in accordance with the usual practice of the Registry." Mr Bajaj had been so served, but not APA. Secondly, as a consequence, by not giving APA an opportunity to be heard as to whether it should be made a party and by immediately proceeding with the hearing in those circumstances, APA was denied procedural fairness.
The fact that APA now agrees it is a proper respondent to the proceedings does not change the fact that at the time the Tribunal named it as respondent, it had a right to be heard about that issue and had not been given notice.
The order the Tribunal should have made was not one amending the application. Rather, it should have given APA notice that the Tribunal was considering joining it as a party to the proceedings and appointing a date to decide that issue. This is so because procedural fairness requires that a potential party be given the opportunity to be heard before it is joined in proceedings. In Keevers v Sarraf Property Group Pty Ltd [2022] NSWSC 1017 Harrison AsJ observed, albeit in a different context, at par 85.5 that: … if there was to be any joinder of additional parties to the proceedings below (not just to the appeal), that should only have occurred (by order pursuant to s 44 of the NCAT Act) following a proper hearing, of which proper notice was given and at which considered submissions were made.
We are cognizant of the fact that Mr Bajaj is the sole director of APA and therefore the controlling mind of the company. It can be argued that if he was aware of the proceedings then so was the company, and that therefore there was no denial of procedural fairness when the Tribunal: 1. amended the application to name APA as the sole respondent, and, 2. immediately proceeded to make orders against APA.
But what the materials before the Tribunal at that time showed was that APA staff were aware of was that there were proceedings wrongly naming Mr Bajaj as respondent, not APA. There has been no correspondence or emails to the Tribunal from Mr Bajaj himself indicating that he was personally aware of the proceedings, only from APA staff.
Before us Mr Bajaj argued that APA should have been given notice the decision to name it as respondent. APA was not given notice or the opportunity to be heard on that issue. It should have been. On appeal, he accepts that APA is the proper respondent to the application but argues that the manner in which the Tribunal went about joining APA denied the company procedural fairness. We agree.
This is an error on a question of law.

Failure to consider a relevant consideration - the recission agreement.

At par 7 of the reasons the Tribunal found that APA "has no defence to the claim", and, at par 8, it noted the orders were made in favour of Silverwater Plumbing in the "absence of any evidence to disprove the claims."
This is not correct. Silverwater Plumbing placed in evidence before the Tribunal the rescission agreement which, on its face, provides APA with what is possibly a complete defence to the claim. The recission agreement is in substance a mutual release, signed by both parties, which discharges them from further performance of the contract. In essence, it provides that both parties walk away from the contract, discharge each other form suits and claims, and undertake not to disparage each other.
In its application to the Tribunal Silverwater Plumbing had referred to this document and explained that: 16. On 7 June 2023 we paid the invoice and informed the Respondent that we were going to pick up our stock on 9 June 2023 and that we were going to take further action for the poor practices and unprofessional services in which we received. 17. Shortly after, we received an email from Jimmy and Bob of the Respondent indicating that the Applicant would now have to sign a document which resembled 'a deed of release' before we can take our stock. I emailed them back stating I did hot (sic)agree to signing the document and that I do not agree to the contents in it. 18. On 9 June 2023, my truck arrived at the Respondent's warehouse to pick up the stock in which I received a call from the driver stating that Jimmy said he will not give him the stock until I signed the 'deed'. then got on the phone with Jimmy in which he said the same thing, I explained that this was blackmail and he hung up. A hour went by and they still would not give the stock in which the driver was becoming upset and wanted to leave. I was given no choice but to sign the deed, however, in the body of the email used to send the Respondent the signed Deed, I wrote that I did not agree to the contents of the 'deed' and had simply signed it to be able to recover my stock.
Silverwater Plumbing essentially was arguing that it was not bound by the recission agreement because it was signed under duress, following APA illegitimately threatening to detain its advertising magnets if the recission agreement was not signed. If duress can be established, the recission agreement would be voidable at Silverwater Plumbing's option: Universe Tankships Inc of Monrovia v International Transport Workers Federation ("The Universe Sentinel") [1983] AC 366 at 400 and Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, at 45-46 per McHugh JA.
The Tribunal did not address any of these facts or the applicable law.
A failure to deal with evidence may in appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, by s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure 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." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. This is so, whether or not the proceedings are defended or heard ex parte. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
In this case the proceedings were heard ex parte in accordance with rule 35 of the NCAT Rules. While an ex parte hearing may practically be considerably simpler than a hearing in which both parties appear, the Tribunal must nonetheless hear the proceedings and decide the claim before it on its merits. In doing so the Tribunal 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": see s 38(5)(a) of the NCAT Act. It could not simply treat all the allegation made by Silverwater Plumbing as true, or as admitted by APA, as a result of its non-appearance as it was making "orders in default of appearance". It was required to hear and decide the claim based on the evidence before it.
In this case Silverwater Plumbing disclosed the existence of the recission agreement - which could constitute a complete defence to its claim - and of its claim that it was not bound by the recission agreement because it was signed under duress.
The Tribunal's reasons for decision do not refer to either. There can be no doubt that the material relied on by Silverwater Plumbing squarely raised the issue of whether it was bound by the recission agreement or not. The fact that APA was not in attendance at the hearing did not mean that the Tribunal did not have to deal with the issue of whether the parties had entered into a binding agreement resolving the dispute that was before the Tribunal. That was a highly relevant issue question raised by the evidence before the Tribunal.
The failure to consider it is an error of law.

Adequacy of reasons

The Tribunal ordered APA to pay Silverwater Plumbing $20,594. It found that Silverwater Plumbing had provided APA with promotional materials valued at "about $18,820" and paid it $15,380. It provided no explanation or breakdown of how the amount of $20,594 was calculated. It clearly was not simply a refund of the money paid to APA, as it exceeded the amount paid by more than $5,000 dollars.
As we have already noted Silverwater Plumbing has not provided us with all the material it provided to the Tribunal to prove its loss. From its application to the Tribunal, it is plain that Silverwater Plumbing claimed it suffered losses including: 1. Advertising magnets being delivered to incorrect suburbs, resulting in a loss of magnet stock and wrongful payments to APA; 2. Failure to deliver to agreed suburbs resulting in lost work and income; and 3. Wrongful delivery of multiple advertising magnets with resultant loss of stock.
In the application Silverwater Plumbing wrote: 19. Since working with the Respondent, we have had only 42 calls from delivering 118,000 from 1st of January - 1st of June 2023. 20. In 2022 when the Applicant was delivering through Australia Post, it had received 157 calls from delivering 120,000 Magnets and flyers, which is almost 4 times that. 21. On top of the poor service and results we have been charged for an additional 30,000 magnet and flyer delivery for June and forced to pay this to collect our stock. 22. We have been charged for 142,114 magnet and flyer deliveries when only 118,000 of the stock has indeed been used. 23. We seek an order requiring the Respondent to pay the Applicant $15,000 we have been charged and also to be reimbursed for the truck charges we had to pay to pick up our stock which was $594. We would also like to receive an additional $5,000 in compensation $15,627 worth of stock being wasted by 3-5 being delivered in each letter box.
The amount claimed Silverwater Plumbing totalled $35,861, significantly different to the $20,594 ordered by the Tribunal. It includes claims for unliquidated damages.
In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Bell P (as the Chief Justice then was) said at [70 -71]: 70… it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court. 71… in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made.
In the present case the reasons do not contain even "a basic explanation of the fundamental reasons" leading to the Tribunal's conclusion as to the amount of damages recoverable by Silverwater Plumbing: see Strbak v Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) (Strbak), and Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187; [1996] 2 Qd R 462 at 477; [1995] QCA 187. A person reading the decision is left in the dark as to how the damages were calculated and what principles of law were applied. It is not possible to infer how they were assessed from the Tribunal's findings.
This too constitutes an error of law.

Leave to appeal.

Given the conclusions we have reached with respect to errors of law affecting the Tribunal's decision, it is not necessary for us to consider whether to grant leave to appeal otherwise.

Disposition of the appeal.

For the reasons given above we will allow the appeal.
This is not a matter which we can readily rehear ourselves. The full body of documentary evidence that was before the Tribunal has not been provided to us. There are live issues going to both liability and damages that need to be considered. APA will wish to be heard.
We will therefore allow the appeal, set aside the Tribunal's decision and remit the matter for reconsideration by the Tribunal with further evidence allowed.

Orders

We make the following orders. 1. Appeal allowed. 2. Leave to appeal under cl 12(1)(c) of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) is refused. 3. The decision made by the Tribunal on File Number GEN 23/27835 on 12 July 2023 is set aside and the matter is remitted to the Consumer and Commercial Division to be reconsidered, with further evidence allowed.

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: 16 January 2024

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