Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown

The hearing

1. At the commencement of the appeal hearing the Appeal Panel explained to Mrs Al-Daouk that it had received an email from Mr Ian Morakaya. He was a director of Furnco who had attended the hearing at which Mrs Al-Daouk's initial claim had been dismissed. The email explained that neither he nor any other representative of Furnco would be attending the appeal hearing. He asked that the matter proceed in his absence and requested the Appeal Panel to consider the contents of his email. In summary, the email set out a chronology of his version of events in dealing with Mrs Al-Daouk's complaints about the furniture purchased.
2. The Appeal Panel provided Mrs Al-Daouk with a copy of the email, and informed her that it would give her every opportunity to respond to it during the course of the hearing.
3. The Appeal Panel explained the procedure for an appeal to Mrs Al-Daouk, and that there were a number of key issues that she had to address.
4. The first was whether she should be granted an extension of time in which to file her appeal. As we noted above, we were satisfied, having heard her sworn evidence, and to which we have summarised briefly above, that it was appropriate to do so. We note that she also explained that she is a mother of five children, is studying fulltime and also undertaking work experience. All this combined to leave very limited time for her to attend the Registry to file the notice of appeal. Had she been able to lodge the appeal online, as she did with her other two applications, she would have done so.
5. The second issue was the need for her to establish an entitlement to a grant of leave in order to bring the appeal. We explained that cl 12 of Sch 4 of the NCAT Act provides that an Appeal Panel may grant leave only if it is satisfied the appellant may have suffered a substantial miscarriage of justice because 1. the decision of the Tribunal under appeal was not fair and equitable, 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen, being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with.
6. In her notice of appeal Mrs Al-Daouk had completed the sections which asked her to address each of these matters. However, during the course of discussion with the Appeal Panel she agreed that she did not dispute that the Tribunal was entitled to make the decision it did on 25 August 2014 on the basis of the evidence that was before it. That evidence was her own written submission, a statement of her friend Rawak Omar, photographs of the furniture, and her sworn evidence to the Tribunal. Thus it became clear that the principal, and only, reason she advanced for having suffered a substantial injustice (and therefore should be granted leave to appeal) was that evidence was now available that was not reasonably available at the time of the hearing.
7. That evidence was a report of Mr Mack.
8. In considering whether the evidence in question was not reasonably available, we note that her initial application was filed on 29 April 2014, and the final hearing at which the application dismissed was on 25 August 2014. The report now sought to be relied on was obtained on 20 September 2014.
9. Mrs Al-Daouk told the Appeal Panel that her husband, a pharmacist, became aware that one of his patients might be able to assist. This was Mr Mack. As indicated above, Mr Mack produced report about a month after the hearing.
10. There is little judicial guidance available on what the phrase "not reasonably available" means, and how it should be interpreted. We have found two authorities. In James Burke v ABL Group Pty Limited t/as Authentic Bricklaying (NSW) (under external administration) [2013] NSWDC 212 Judge Letherbarrow SC of the District Court of New South Wales noted at [25] that neither party could refer him to any authorities and stated at [26]: It is clear that the phrase in the context of the legislation that it is used poses a question of fact and degree for the Court to determine, in my view, upon a consideration of all the circumstances. Pursuant to s33 of the Interpretation Act, 1987, I am also required to take a purposive approach when interpreting this phrase. I have already referred to the objects of the legislation.
11. In Ortlipp v Employers Mutual NSW Limited as agent for the Workers Compensation Nominal Insurer [2014] NSWDC 157 Judge Taylor SC, also of the District Court of NSW, stated at [47]: Further, in deciding what is "reasonably available" the legislation should be construed in a way that is fair and just if that construction is available (see Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [24], referred to in Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 at [67]).
12. The expression being considered by the District Court in each of the cases of James Burke and Ortlipp referred to the expression "not reasonably available to the party" as that expression is used in s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act)".
13. In the present case cl 12(1)(c) of Sch 4 of the NCAT Act requires the Tribunal to consider if "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were dealt with)."
14. Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests 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. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud.
15. Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).
16. Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence.
17. In our opinion the intent of cl 12 of Sch 4 of the NCAT Act is to impose additional limitations on a party's entitlement to seek leave to appeal under s 80(2) of the NCAT Act from a decision of the Consumer and Commercial Division.
18. In the present case Mrs Al-Doauk took a number of steps to obtain evidence of the type now sought to be relied upon. However, the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.
19. 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. There is no evidence to suggest Mr Mack could not have provided the evidence if approached at an earlier time, at or before the hearing. Perhaps Mrs Al-Daouk's husband could have made enquiries of his patients earlier; perhaps Mrs Al-Daouk could have sought an adjournment of the hearing date so as to allow her more time to seek the report. These are rhetorical considerations, but having considered the evidence sought to be adduced, the only circumstances relied upon by the appellant to show such evidence was not reasonably available is that: 1. Mrs Al-Daouk did not know of and did not find Mr Mack until after the hearing; and 2. other prospective witnesses were approached but declined to help.
20. Neither circumstance would be sufficient to establish that the evidence was not reasonably available at the time of the hearing. Accordingly, we consider that leave to appeal should not be granted to Mrs Al-Daouk.

Orders

1. The Appeal Panel makes the following orders. 1. Leave is granted for the notice of appeal to be amended so as to seek leave to extend the time for filing the notice of appeal. 2. The time for the filing of the notice of appeal is extended to 29 October 2014. 3. Leave to appeal is refused. 4. The appeal is otherwise dismissed. 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

Amendments 11 August 2015 - File number and parties corrected 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: 11 August 2015