Akratos v Papadopoulos

The jurisdiction of the Appeal Panel

1. There is no dispute that the decision the Tribunal made on 5 June 2014 is an "internally appealable decision" to the Appeal Panel: see Civil and Administrative Tribunal Act 2013, subs 32(4) and 80(1).
2. Subsection 80(2)(b) of Civil and Administrative Tribunal Act 2013 provides that an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
3. The appellant has not raised any question of law in his Notice of Appeal. However he has sought leave to appeal.
4. The Appeal Panel's power to grant leave to appeal from a decision of the Consumer and Commercial Division of the Tribunal is set out in subclause 12(1) of Schedule 4 of the Civil and Administrative Tribunal Act. That subclause gives the Appeal Panel the discretion to grant leave to appeal where it is satisfied the appellant has 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)."
5. The Appeal Panel, in Collins v Urban [2014] NSWCATAP 17, at [68], noted that cl 12 does not require the Appeal Panel to find that the appellant in fact "suffered a substantial miscarriage of justice." It was only required to find that the appellant "may" have suffered such a miscarriage. However, the Appeal Panel went on to say that there must be a sound basis for granting leave to appeal, namely 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 circumstances in cl 12(1)(a) or (b) not occurred or if the fresh evidence in para (c) had been available: see at [76].

The appellant's Notice of Appeal

1. In his Notice of Appeal the appellant identified the following as the orders the subject of his appeal: "1. Payment of $7,500 to the respondent by the applicant (sic) 2. Decision of the Member to accept quote by the respondent provided after extension of time had lapsed 3. Initial decision by Member to accept the works were defective in toto without (expert or otherwise) evidence to support such a decision 4. Member's decisions and orders were based on errors of fact, law and principle of justice."
2. The appellant identified five grounds of appeal as follows: 1. the evidence tendered by the respondent (applicant below) in support of his application did not support the decision the Tribunal made on 5 June 2014 that the work was defective; 2. the Member incorrectly assumed the works were wholly defective; 3. the respondent (applicant below) failed to comply with the Member's directions made on 25 March 2014 that he provide to the respondent (appellant in these proceedings) and the Tribunal, by 8 April 2014, all documents on which he intended to rely; 4. the Member relied on evidence outside the permitted time; and 5. the Member erred in awarding damages for the entirety of the respondent's claim.
3. The appellant identified the following as the orders the Appeal Panel should make: "1. Dismiss claim outright or apportion rectification (if found there is evidence to support this claim) to no more than 25% of cost of works. 2. The Member was not able to make the decision and orders he made on available evidence."
4. The appellant also indicated on his Notice of Appeal that he was seeking leave to appeal, time be extended within which to lodge his appeal and a stay of the following orders made by the Tribunal below: "1. Initial decision of Member to find works were defective. 2. Admission of quote by respondent that was out of time. 3. Final money order by the member."
5. On 18 July 2014, the Appeal Panel, constituted by Senior Member Boyce, granted a stay of the orders made by the Tribunal on 5 June 2014 and made orders for the filing and serving of a Reply to Appeal and evidence. Senior Member Boyce also indicated that the appellant's appeal was lodged out of time. In our view, the appellant's appeal of the decision made on 5 June 2014 was not lodged out of time. It was lodged on the 28th day after he was notified of the decision and was lodged within time: see Civil and Administrative Tribunal Rules 2014, cl 25(4)(c).
6. On 18 May 2015, at a directions hearing of the appellant's appeal, Deputy President, S Westgarth, noted that the stay remained in place but the respondent was at liberty to apply to the Tribunal (i.e. the Appeal Panel) for the stay to be lifted. The respondent has not sought to have the stay lifted. However, by reason of our decision not to grant leave to appeal and to otherwise dismiss the appellant's appeal, the stay order also automatically lapses.

Reply to Notice of Appeal

1. The respondent's Reply to Appeal was prepared and lodged by his daughter, Debbie Papadopoulos, as her father and mother are very elderly. In the Reply to Appeal the respondent's daughter said her father was very content with the outcome from the Member, which equalled the money they had paid for the works undertaken by the respondent and the additional $500 for removal of the current works to be delivered back to the respondent.

Material before the Appeal Panel

1. The appellant and the respondent each provided short written submissions. The Appeal Panel has also been provided with a copy of the photographs, tendered by the respondent, in support of his application before the Tribunal below.
2. The following documents were also provided to the Appeal Panel: 1. a three page quote, addressed to the appellant, from Greg's Metal Fabrications, dated 20 February 2014. The appellant said that this was a quote he had obtained and appears to be for the replacement of the steel security gates, fences and security grills the appellant had supplied. The invoiced amounts appear to total $7,405.90; 2. a quote, addressed to the respondent, from Sydneywide Welding Pty Ltd, dated 20 May 2014, to replace the steel security gates, fences and security grills supplied and installed by the appellant. This is the quote the respondent obtained and amount quoted was $10,065, which included $1,025 to remove and store (pending the collection thereof by the appellant) the steel security gates, fences and security grills installed by the appellant; and 3. a report form Ali Salami of Allan Top Roofing Pty Ltd, and a registered/licensed builder under the Home Building Act concerning the steel security gates, fences and security grills supplied and installed by the appellant at the respondent's home. The report is dated 26 March 2014 and was prepared at the request of the respondent. 4. a report of Ali Al Saedy, owner and director of Sydneywide Welding Pty Ltd, dated 20 May 2014, concerning the steel security gates, fences and security grills supplied and installed by the appellant at the respondent's home.
3. The quote and reports prepared at the request of the respondent were before the Tribunal below at the hearing of the renewal proceedings on 5 June 2014. It is unclear whether the invoice from Greg's Metal Fabrications was before the Tribunal below.

The decision of the Tribunal below

1. On 5 June 2014, the Tribunal provided the following written reasons for decision in regard to order 1: "I earlier made a finding that the work which was completed by the respondent was defective and I made orders - ref to HB 13/43290. Those orders were not complied with and the applicant renewed the matter before me to determine whether some other more suitable order should be substituted for the earlier orders that I made. Having already made a finding that the work was defective and as those orders were not complied with and as there is no settlement between the parties the only order that is really feasible NOW is a money order. The applicant has tendered quotations for sums which far exceed the original cost of the work. As a fair and equitable order I now ordered the return of the original money that was paid for the work i.e. $7000.00 plus a sum of $500.00 for the removal of the screen etc. and for their delivery to the respondent - total $7500.00. I should record that the applicant did not file and serve her reports and quotations until today. I allowed the reports and quotations into evidence even though the respondent had not seen them before today as the vast majority of those documents went to recording defects in the respondent's work was defective and the respondent was not prejudices by the late service of them. The other issue in those documents was the quotations to rectify the defective work. As indicated earlier those quotations far exceed the original cost plus a small amount to remove the respondent's work and return it to him. Again I do not see that the respondent was prejudices by the late submissions of those documents."

Consideration

1. As we have noted, the appellant seeks leave to appeal and in his Notice of Appeal he has addressed each of the matters in subclause 12(1) of Schedule 4 of the Civil and Administrative Tribunal Act. The matters the appellant raised in this regard were a repetition of the grounds of appeal identified earlier in this Notice of Appeal. We have dealt with these below. However, before we deal with these grounds it is convenient to briefly set out the legislative provisions relevant to the respondent's renewal of proceedings application and the powers of the Tribunal in regard to that application.

Relevant legislation

1. Clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act set out the requirements for making a renewal application and the orders the Tribunal has power to make where an application of this kind is made. The clause is in the following terms: "8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. … (4) When proceedings have been renewed in accordance with this clause, the Tribunal: (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This clause does not apply if: (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal."
2. As noted above, the respondent's renewal application arose from the Tribunal's determination, on 12 December 2013, in respect to the respondent's "building claim" made pursuant to s 48I of the Home Building Act (i.e. the original determination). The powers of the Tribunal in regard to the respondent's "building claim" were those set out in s 48O of the Home Building Act. That section is in the following terms: "48O Powers of Tribunal (1) In determining a building claim, the Tribunal is empowered to make one or more of the following orders as it considers appropriate: (a) an order that one party to the proceedings pay money to another party or to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person, (b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings, (c) an order that a party to the proceedings: (i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of any agreement, or (ii) do or perform, or refrain from doing or performing, any specified act, matter or thing. (2) The Tribunal can make an order even if it is not the order that the applicant asked for. (3) Sections 79R and 79T-79V of the Fair Trading Act 1987 apply, with any necessary modifications, to and in respect of the determination of a building claim."

Cl 12(1)(a) the Decision was not fair and equitable

1. The appellant contended the decision was not fair and equitable because: 1. it was not supported by the available evidence (including no expert evidence); 2. the quote submitted by the respondent should not have been admitted into evidence because it was not filed and served within the time ordered and it was inflated; 3. the decision was based on the whole of the works being defective when there was no evidence to support such a finding.
2. Section 38 of the Civil and Administrative Tribunal Act sets out the procedure of the Tribunal generally. Subsection 38(1) provides 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."
3. Subsection 38(2) provides that 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."
4. The common law rules of natural justice (often referred to as the requirements of procedural fairness), however, are to be considered the context of the relevant applicable legislative scheme: see Williams v NSW Land and Housing Corporation [2012] NSWSC 1022 at [38] and Gallo v Duflou [2014] NSWCATAP 115 at [28]. In this case the applicable legislative scheme is the Civil and Administrative Tribunal Act.
5. Subsection 38(4) of that Act requires the Tribunal 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.
6. Subsection 36(1) of the Civil and Administrative Tribunal Act sets out the guiding principle that is to be applied the practice and procedure of the Tribunal. That subsection is in the following terms: 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. (2) … "
7. The Appeal Panel has held that the requirements of procedural fairness and other matters of procedure are to be considered in the context of the above guiding principle: see Gallo v Duflou [2014] NSWCATAP 115 at [28]ff and Amad El Ahmad t/as Cars for Everyone v Imelda Reyes [2015] NSWCATAP 50 at [16]ff. Subs 36(1) provides as follows
8. As noted above, the decision the subject of the appellant's appeal is the 2014 decision of the Tribunal relating to the respondent's renewal application and not the 2013 decision of the Tribunal relating to the respondent's original building claim. In determining the respondent original building claim, the Tribunal made a work order under subs 48O(1)(c) of the Home Building Act. It was the appellant's failure to comply with that work order which gave the respondent the right to make the renewal application. As can be seen from the terms of subclause 8(4)(a) of Schedule 4 of the Civil and Administrative Tribunal Act the powers of the Tribunal in regard to the renewal application was limited to: 1. making another more appropriate order under the Civil and Administrative Tribunal Act or the enabling legislation (i.e. the Home Building Act in this case), which the Tribunal could have made at the time the matter was originally determined, or 2. refusing to make such an order.
9. That is, the purpose of the renewal proceedings was to consider, in light of the fact that the original order was not complied with, what other appropriate orders it could have made when the matter was originally determined and not to reconsider the substantive merits of the respondent's building claim. In regard to the merits of the respondent's claim, the Tribunal published the following reasons for decision in respect of the orders made on 12 December 2013: "REASONS The parties entered a verbal contract in December 2012 for steel security gates, fences and grills etc to be manufactured and installed by the respondent. There was no written quotation and no proof of any payments which were all allegedly made in cash. The respondent said to have been previously licensed to do such work but was now semi retired ad no longer licensed to do such work. The amount that was paid to the respondent in cash is said to be $6600.00. The applicant's evidence could best be described as scant and the claim would have failed but for a great bundle of unmarked and unrecorded photographs that were tendered by the applicant. In the presence of both parties I selected 38 of those photographs which I numbered and I recorded some comment on the back of each photograph. The photographs left me in no doubt that the work that was performed by the respondent was very defective and exhibited very poor workmanship. The order I made above is based on the evidence that the respondent requested and was denied an opportunity to inspect the work so as to enter into meaningful negotiations to settle the dispute. The order also takes into account the fact that the respondent is no longer licensed and therefore I can not make an order that he undertake the rectification work but he is to arrange another licensed tradesman to do the work."
10. On 25 March 2014, the Tribunal made a number of directions in regard to the respondent's renewal application. These orders included an order that, by 8 April 2014, the respondent (applicant below) was to provide to the respondent and the Tribunal, either in person or by post, a copy of "all documents" on which he intended to rely at the hearing. The term "all documents" was described to include witness statements/statutory declarations or affidavits, expert reports, quotations and any other document relied upon. In our view this was a generic description in that if the respondent intended to file and serve expert evidence he was required to do so by the nominated date. That is, it was not a direction that the respondent was to file such evidence.
11. Also included in the orders that were made on 25 March 2014 was an order that the appellant file and serve his evidence and an order that "a failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing, unless leave is granted to do so."
12. In his Notice of Appeal the appellant said he only gave oral evidence. It is unclear whether he had also provided a copy of the Greg's Metal Fabrications invoice.
13. The essence of the appellant's appeal is the Tribunal's acceptance of the respondent's evidence, when it had not been provided within the time ordered by the Tribunal. We agree there should be compliance with Tribunal orders and directions and where an order or direction requires a party to do something within a prescribed time it should be done within that time. If a party finds it cannot comply with an order or direction within the time prescribed an application to extend time should be made under s 41 of the Civil and Administrative Tribunal Act. There is no evidence before us that, in this case, the respondent made an application for an extension of time.
14. Nevertheless, subject to the requirements of procedural fairness, the Tribunal can accept material that is provided by a party outside the time prescribed in the order or direction for the provision of that material. For example, procedural fairness may require the other party being given an opportunity to respond to that material.
15. In this case, as noted above, in its reasons for decision, the Tribunal explained why it had allowed the respondent's reports and quotation (i.e. the report of Ali Al Saedy and Ali Salami and the quote from Sydneywide Welding Pty Ltd) into evidence even though they were not provided in accordance with the orders that had been made and the respondent had not been provided a copy of them prior to the hearing. The Tribunal's explanation was that "the vast majority of those documents went to recording defects in the respondent's work", which was a finding the Tribunal had already made in the original proceedings and for which the work order had been made. The Tribunal went on to find that in allowing these documents into evidence the respondent was not prejudiced in the renewal proceedings.
16. As we have explained, the renewal proceedings were not proceedings in which the merits of the respondent's building claim were the subject of re-consideration.
17. In this appeal, the appellant has not identified what prejudice he suffered in the Tribunal accepting these reports and quotes. Nor has the appellant said he was denied an opportunity to respond to them.
18. In our view, while the Tribunal accepted the respondent's report and quote into evidence, it placed little, if any, weight on them in making its decision. It is clear, from the Tribunal's reasons for decision in the renewal proceedings that the Tribunal's decision was not based on the work or the amounts contained in the report and quote provided by the respondent. The decision, as noted by the Tribunal in its reasons for decision, was based on what the respondent had paid the appellant for the material and work he had provided. The appellant has not suggested that he was not paid the amount alleged; namely $6,600.00.
19. In the original proceedings, the Tribunal found the work undertaken by the appellant, as depicted in the 38 photographs provided by the respondent, was "very defective and exhibited poor workmanship." The Tribunal also found the appellant was "unlicensed." That is, he was not licensed to do "residential building work": see Home Building Act ss 4 and 12. "Residential building work" is defined in cl 2 of Schedule 1 of that Act and includes fences and gates: see cl 3. Hence, the Tribunal could not make an order in the original proceedings, or in the renewal proceedings that the appellant undertake the repair work - it had to be undertaken by someone who was licensed to do that work. Again, the appellant did not contend otherwise in these proceedings.
20. In this regard the Greg's Metal Fabrications quote the appellant has provided is consistent with the findings of the Tribunal in that to repair the defective work of the appellant, that work had to be removed and replaced at a cost of $7,405.90. Whether Greg's Metal Fabrications is a licensed under the Home Building Act is unclear. It also not clear whether the appellant had in fact arranged for this organisation to undertake the work. In any even, the quote is dated after the date on which the appellant was to have complied with the work order made in the original building claim proceedings.
21. Again, it is not clear whether the Greg's metal Fabrication invoice was before the Tribunal below in the renewal proceedings.
22. In our view, on the basis of the information before the Tribunal in the renewal proceedings it was open to the Tribunal to make the order it made. It was an order made under subs 48O(1)(a) of the Home Building Act and appropriate given the material before the Tribunal and the nature of the building goods and services supplied by the respondent. However, it could only be made subject to the material (the building goods) being returned to the appellant.
23. For the reasons set out above, we find the Tribunal did not err in admitting into evidence the reports and quote provided by the respondent. We also find the available evidence (including the Tribunal's findings in the respondent's original building claim) supported the decision that was made in the renewal proceedings and the decision was based on the works being sufficiently defective to require their removal and not on the basis that the whole of the works being defective.
24. Accordingly, we find that the appellant has failed to establish that the decision of the Tribunal in the renewal proceedings was not fair and equitable on the grounds relied on.

Cl 12(1)(b) Decision of the Tribunal was against the weight of evidence

1. The appellant's grounds in regard to this subclause appear to relate to the evidence that was before the Tribunal in the original proceedings and which went to the merits of the respondent's building claim. As we have noted, the decision of the Tribunal in those proceedings were not the subject of this appeal. Accordingly, we have not considered them further.

Cl 12(1)(c) Evidence in now available that was not reasonably available at the time of hearing

1. The appellant's grounds in regard to this subclause refer to the quote he provided. The appellant otherwise re-iterates his concerns about the Tribunal accepting the respondent's evidence that was provided at the hearing of the renewal application and not within the time prescribed in the orders made prior to the hearing.
2. The quote, we note was dated 20 February 2014, which predates the hearing of the renewal application. The appellant has not said it was before the Tribunal at that hearing. In any event, it is not fresh evidence and even if it was before the Tribunal at the hearing, in our view it would not have brought about a result that was more favourable to the appellant. As we have noted above, the quote was consistent with the findings of the Tribunal.

Conclusions

1. For the reasons set out above, we find the appellant has not established that he suffered a substantive miscarriage of justice. Accordingly, his application for leave to appeal the decision of the Tribunal made on 5 June 2014, must be refused. His appeal must otherwise be dismissed and the stay that was granted must be lifted forthwith.
2. In accordance with our findings we order: 1. The appellant's application for leave to appeal is refused. 2. The appellant's appeal is otherwise dismissed. 3. The stay granted on 18 July 2014 is lifted forthwith.

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 June 2016