Amad El Ahmad t/as Cars for Everyone v Imelda Reyes

Legal Representation

1. Mr Newman sought leave to represent Mr Ahmad in these appeal proceedings and leave was granted without objection from the Respondent.

Notice of Appeal

1. The Tribunal's decision was received by the Appellant on 10 September 2014 and the Notice of Appeal was lodged on 2 October 2014, within the required time period.
2. The Notice of Appeal indicates that leave to appeal is sought, although in the Notice of Appeal and in his written and oral submissions to the Appeal Panel, Mr Newman indicated that he has one ground of appeal which relates to a denial of procedural fairness based on the Tribunal's refusal to allow cross examination of the applicant.
3. Section 80 of the Civil and Administrative Tribunal Act 2013 (the Act) relevantly provides, (2) Any internal appeal may be made: in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and in the case of any other kind of decision …….of the Tribunal at first instance - as of right of any question of law, or with the leave of the Appeal Panel, on any other grounds.
4. The Appeal Panel considers in these circumstances, as the grounds of appeal relate to a question of procedural fairness, the appeal relates to a question of law and can be made as of right without the need to seek leave of the Appeal Panel.

Grounds of Appeal

1. The Notice of Appeal states, in part: The tribunal erred in law and in fact when it held that the respondent's legal representative application to cross-examine the applicant should be refused for the reason that the representative was ill-prepared when, in truth, the stated reason for prohibiting cross-examination at the hearing was the tribunal member saying to the respondent's legal representative, "I will not allow cross-examination", and "I will not allow this tribunal to be turned into a trial" or words to this effect……… As a result critical issues favouring the respondent were precluded from being tested.
2. Other matters were also referred to in the Notice of Appeal, such as the difficulties and embarrassment caused to the respondent's legal representative when, in response to a problem with the microphone in the hearing room, he was asked to move to the front of bench where there was no bar table or desk on which to place his papers.
3. However, in the Appellant's written submissions, it was made clear that the appeal is limited to the ground that natural justice was denied by the refusal to allow cross-examination.
4. The Appellant asserts that he had a right to cross examine and submits, "where the Tribunal subsumes the putative right of a party to cross-examine then no piece of possible exculpatory evidence should be left unexplored, and that where such an issue is left un-traversed there may well be reasonable doubt as to whether justice has been done."
5. The Appellant also referred the Appeal Panel to a partial transcript of the proceedings, which he had prepared. Ms Reyes did not object to the contents or accuracy of the transcript. It revealed the following exchange, "Tribunal: Oh I see, you want to cross-examine. I'm not going to do cross-examinations. Now, what evidence are you advancing? Mr Newman: You won't let me cross-examine? Tribunal: No, I won't. What evidence are you advancing?............................. Mr Newman: If I'm not allowed to cross-examine……. Tribunal: You're not. Mr Newman: ….. that implies you'll put these questions to them? Tribunal: No. No, I'll put the questions that I decide I should put. Will you advance your evidence please. Mr Newman: Sir, there are omissions. Tribunal: Well then, your client can advance the evidence that demonstrates that. Mr Newman: No no no, but we don't have that information. She's given information and you haven't picked her up on it. Tribunal: My job is not to pick people up on it, my job is to understand the evidence they've advanced. Now you've been given leave to appear for your client. You haven't been given leave to conduct it in the way a trial would be conducted………….."

Consideration

1. The starting point for considering the question of procedural fairness is the statutory scheme. Section 36 (1) of the NCAT Act provides, 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. Section 38 relevantly provides, 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 enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 3. 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. 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. (emphasis added)
3. Williams v NSW Land and Housing Corporation [2012] NSWSC 1022 (Williams) involved an appeal from a decision of the Consumer Trader and Tenancy Tribunal. Ms Williams, an unrepresented Housing Commission tenant was opposing an application for her eviction, but inadvertently forfeited her right to cross-examination as she was not properly advised of the nature and purpose of cross-examination or her right to question witnesses during the proceedings. Schmidt J found that the Tribunal had denied Ms Williams procedural fairness and stated at 47, 'While the proceedings here in question came before the Tribunal, rather than a court, given that this statutory scheme requires the Tribunal to adhere to rules of procedural fairness, and to act according to equity, good consciousness and the substantial merits of the case, the importance of ensuring that Ms Williams had a fair opportunity to cross-examine the defendant's witnesses is apparent.'
4. Williams acknowledges that the right to cross-examination is important and restricting it can constitute a breach of natural justice. In Gallo v Duflou [2014] NSWCATAP 115 the failure to allow a party the opportunity to cross examine was regarded as a 'practical injustice' which prevented the appellant from having a reasonable opportunity to be heard.
5. However the right to cross-examination is not an unfettered right. A Tribunal can 'manage' examination and cross-examination, as long as it ensures a fair process. (See Young J's comments in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 22.)
6. The Tribunal's Reasons for Decision reveal that cross-examination was denied for several reasons. First, because of 'the difficulty of the hearing being conducted by telephone'. Ms Reyes was in Western Australia and was participating by telephone. However the Tribunal member had taken evidence from Ms Reyes, by telephone, without apparent difficulty and it is unclear as to why cross-examination by telephone would be any different.
7. Secondly, the Reasons state that cross-examination would likely take the applicant by surprise about matters that had not been flagged. Mr Newman stated that cross-examination would have related purely to the evidence already given by Ms Reyes in her own statement. In any event, rather than preventing cross-examination, there may have been practical measures available, such as an adjournment, to remedy any such concerns.
8. The third reason provided was that there was a real possibility that the hearing time would be exceeded to the prejudice of the next matter listed for 3:15 pm. Mr Newman submitted that it would have been open to the Tribunal member to allow cross-examination, but limit it to 5 to 10 minutes. This would have been acceptable.
9. Overall the Reasons state, 'The relative state of unpreparedness of the respondent's representative was sufficient to deny any application made to cross-examine the applicant by reason that there would not be a true observance of the guiding principle contained in section 36 of the Civil and Administrative Tribunal Act 2013.'
10. As stated above, section 36 of the NCAT Act provides, 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.
11. It may be that what is suggested is that any degree of unpreparedness would effect the time required for cross-examination and so impact on the section 36 requirement for a quick resolution of the issues. Or the Tribunal member may have considered that if a representative is unprepared he or she may have difficulty in ascertaining and focusing on the real issues in the proceedings.
12. Timeliness and efficiency seem to have been the pressing concerns. However, the statutory provision requires a resolution of the issues, which is "just, quick and cheap". Speed must be tempered by the requirements of fairness. Focusing on timeliness or the potential problems posed by unpreparedness to the exclusion of fairness is not mandated by section 36.
13. Failure to allow cross-examine may not be problematic if cross-examination is unlikely to produce relevant or useful evidence. In Mikel v Dudley [2008] NSWSC 1090, Hall J concluded that there had been no denial of procedural fairness in circumstances where a Tribunal had prevented the plaintiff from cross-examining a witness, because he was satisfied that cross-examination on any of the relevant issues would not have prevented the Tribunal making the findings it made.
14. Mr Newman submitted, however, that the questions he wished to put in cross-examination were relevant and probative. Mr Newman said that the presentation of his client's case rested, in part, on cross-examination of the applicant and the outcome of the matter could not be properly determined by the presentation of Mr Ahmad's evidence alone.
15. The respondent participated in the appeal hearing by telephone from Western Australia. She told the Appeal Panel that she had no comment about the appeal, as it seemed to involve the decision of the Tribunal rather than anything she had done.
16. Having considered all the circumstances of this matter, the Appeal Panel is satisfied that cross-examination of Ms Reyes should have been permitted and that appropriate management of such cross-examination could have addressed any concerns about timeliness and efficiency.
17. The Tribunal is required to comply with natural justice and to ensure that parties have a reasonable opportunity to be heard. The Tribunal has not been established to operate in the same way as a court. However, while it must facilitate quick and inexpensive resolution of the real issues, it must do this in a just manner, which requires adherence to the principles of procedural fairness, which, in the circumstances of this case, meant allowing cross-examination of the applicant.

Orders 1. The Appeal is allowed 2. The decision under appeal is set aside. 3. The matter is remitted to be reconsidered in the Consumer and Commercial Division of NCAT.

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: 25 March 2015