Amirbeaggi v NSW Self Insurance Corporation

NCAT Appeal Panel|2023-08-09

Summary

Since at least 12 September 2022, the appellants are, by direction of the Tribunal in its Consumer and Commercial Division, to have lodged and served all the material they rely upon in their claim against the respondent under the Home Building Act 1989 (NSW). Notwithstanding several extensions of time having been granted, they have apparently still not done so.
In some respects, that appears to result from the appellants' concerns that the Tribunal no longer has jurisdiction in respect of their claim. That is because they now wish to claim an unspecified amount in excess of the Tribunal's jurisdictional limit under the Home Building Act and because they claim that an amendment which has added parties and varied the nature of their claims invokes Federal jurisdiction which is beyond the authority of the Tribunal to adjudicate on.
In furtherance of those claims, the appellants have sought to transfer the proceedings from the Tribunal to, variously, the Federal Court of Australia, the District Court of NSW, the Supreme Court of NSW and now, again, the District Court. None of those applications have succeeded but the last of them is reserved and there is an internal appeal against one of the prior decisions on that issue. As I understand the appellants' submissions, an application for judicial review may have been lodged in respect of another.
To say that the procedural history of the matter is complex may be considered trite in those circumstances.
In the current proceedings, the matter has come before me to make directions in an appeal now lodged by the appellants against the decision of the Tribunal wherein it reserved the most recent application for transfer to a court and made directions to finalise the timetable for lodgment and service of material against the possibility that the application for transfer was unsuccessful. It is the second aspect of the decision which has excited the appellants' attention. Primarily, they say that because their assertions of a lack of jurisdiction in the Tribunal are correct, the further timetabling directions were also made without jurisdiction. As a consequence, they seek a stay of the relevant directions.

The Tribunal's decision

The orders and directions made by the Tribunal were as set out hereafter. "Order 4" of 7 June 2023 had provided an extension of time for the appellants to lodge and serve the material they relied upon in their application against the current respondent only. "Order 5" was a corresponding direction to the respondent: "1. By Determination of member, on 13 July 2023 the hearing was adjourned to a date to be fixed by the Registrar. 2. The decision concerning the applicants' miscellaneous matters application filed on 4 July 2023 is reserved. 3. Without prejudice to the applicants' application to amend their points of claim and for transfer, the timetable made by the Tribunal on 07-Jun-2023 is amended: 4. Order 4 is vacated and instead it is ordered that the applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of the further evidence on which the applicant intends to rely at the hearing, in the event that the miscellaneous matters application is dismissed, by 27-Jul-2023. The Tribunal notes that the further evidence foreshadowed is limited to an affidavit attesting to some formal matters. 5. Order 5 is vacated and instead it is ordered that the respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all evidence on which the respondent intends to rely at the hearing, in the event that the miscellaneous matters application is dismissed, by 21-Sep-2023. 6. 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. 7. All evidence from a party's witness(es) in support of that party(ies) must be in the form of a statement, statutory declaration, affidavit or expert report as appropriate."
The appellants appeal from directions three to seven inclusive and seek a stay of those directions. No reasons for the decision were given. Nor have they apparently been sought.

Legislative foundation and principles relating to granting a stay

The lodgment of an internal appeal does not affect the operation of the decision appealed against. Nonetheless, under s 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the Tribunal has discretion to stay or make another order affecting the operation of a decision pending the determination of the appeal. That discretion must be exercised judicially and the general principles that apply in relation to the exercise of that discretion are derived from the terms of s 43(3) itself.
Additional guidance in the application of the relevant principles can be obtained from the considerations applied by the Courts in deciding whether to grant a stay pending an appeal, summarised in a decision of the Appeal Panel constituted by the former President of the Tribunal, Justice Wright, in Bentran v Sabbarton [2014] NSWCATAP 37 at [9].
To summarise those principles here, it is sufficient to cite what was said by Slattery J in Beck v Colonial Staff Super Pty Ltd & Ors (No. 2) [2015] NSWSC 1360 at [35], that: "The principles governing a stay of a judgment pending appeal are well established. The applicant must demonstrate that there is a reason for the grant of a stay or that a matter is an appropriate case in the exercise of the Court's discretion. It is not necessary for the applicant for the stay to establish special or exceptional circumstances. The stay is likely to be granted if the appeal would otherwise be rendered nugatory. The Court considering the grant of a stay is not required to determine the merits of the appeal but usually considers whether the applicant has at least an arguable case; and the Court may impose conditions on the grant of a stay including that the applicant pay a sum of money […] or otherwise secure the payment of the disputed sum. The central determinant as to whether a stay would be granted, and if so upon what terms, if any, is the Court's assessment as to what is a fair balance of the rights of the parties, given that an appeal does not of itself operate as a stay and the party who has succeeded at trial is entitled to the fruits of its victory." (Citations omitted)
The overriding principle in an application for a stay is to ask what the interests of justice require: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83]; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18].
I will pause, at this point, to note that a question arises as to my ability to grant a stay if the appellants' assertion - that the Tribunal lacked jurisdiction when it made its decision due to Federal jurisdiction being invoked - is correct. It is arguable, but not argued before me, that the only powers remaining to be exercised within the Appeal Panel's jurisdiction is to form an opinion as to the existence of that jurisdiction for itself and, potentially, make an order transferring the proceedings at first instance to a court and deal with any issues of costs not relating to the substance of the claims that are now beyond jurisdiction: Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 (Wilson), particularly by reference to what was said by Leeming JA (with Macfarlan JA in agreement) at [5]; Gaynor v Burns [2020] NSWCATAP 203 at [36].
Neither party asserted that it was possible or appropriate for me to come to a concluded opinion as to jurisdiction, as opposed to making directions for that to be considered at a later date. I think that was appropriate: Wilson v Chan & Naylor; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2018] NSWCATAP 311 at [71] citing Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 553; [1992] HCA 55, In any event, because of the conclusion I have reached in respect of the merits of the application for a stay, I am not satisfied I need to consider that further in the absence of it being agitated by the parties.

Consideration

The starting point is that the respondent should be taken to be entitled to the benefit of the decision at first instance unless the appellants can demonstrate that it is appropriate to grant a stay of the orders made. The appellants must identify the circumstances that warrant a departure from the general rule that the decision at first instance should be presumed to be correct and is appropriate to be enforced: Hickie v Land Enviro Corp Pty Ltd [2014] NSWSC 472 at [17].
Little needs to be said about the apparent relative merit of the appeal. In substance, the appellants say that they have lodged amended points of claim wherein they seek an amount exceeding the Tribunal's monetary jurisdictional limit in home building matters and also add two new respondents against whom claims are made that invoke Federal jurisdiction which this Tribunal does not have.
The claim that the amendment is complete, and effective in the manner alleged, is advanced on two alternate bases. First, that the appellants have been given leave by the Tribunal to amend in that manner. Second, in the alternative, that such leave is not required in the Tribunal in any event.
I do not understand it to be in dispute, or capable of meaningfully being disputed, that if the claim has been taken beyond the Tribunal's jurisdiction then the Tribunal's ability to deal further with it is highly circumscribed: Wilson.
Given the dangers of approaching questions of procedure in this Tribunal based on a priori assumptions derived from the practice of courts where the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) have application, I am prepared to treat the appeal as arguable for the purpose of the application for a stay. Complex issues will, in my view, likely need to be considered by the Appeal Panel relating to the interplay between: 1. the Tribunal's power to determine its own procedure where the NCAT Act and the procedural rules make no specific provision (NCAT Act, s 38) on the one hand; and 2. the guidance offered, to the extent that may be a permissible consideration, by the accumulated wisdom distilled into the UCPR as to how such issues might properly be determined in the interests of justice on the other.
Having determined that the appeal is arguable, I can then properly consider whether the appellants can demonstrate real prejudice if the stay is not granted and, if so, the balance of convenience and the competing rights and interests of the parties: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383, at [18]; Yolarno Pty Ltd v Shandong Delisi Food Co Ltd [2022] NSWCA 30 at [4].
The view I have reached is that no stay on the merits is warranted. In fact, the application was, in my view, ill-conceived on several levels.
With respect to the appellants, it was by no means clear to me that they had fully considered and appreciated the effect of the Tribunal's directions when they lodged their application for a stay. I say that for two reasons. Firstly, because the breadth of the orders which are the subject of the application for a stay lack the focus one might expect a legally represented party to apply to the consideration of those issues. Secondly, because the appellants' submissions in respect of the stay commenced on a premise wholly unsupported by a proper reading of the Tribunal's decision.

Why was the application ill-conceived?

I should record that I have used the term ill-conceived deliberately. I make no finding that the application was misconceived as that term is used in s 55(b) of the NCAT Act.
The first reason the application was ill-conceived is because the only operative direction materially affecting the appellants was the direction extending the time available to them to lodge and serve any further material in support of the claim not encompassed by the amendments taking the matter outside the Tribunal's jurisdiction, by 27 July 2023.
The application for a stay was only lodged on 27 July 2023, leaving no time for it to be considered before the appellants' compliance with direction four was required. By the time the matter came before me, the date had passed. As determined in AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81, per Campbell JA at [95] and [110], a stay, strictly described, can only affect orders and directions which have prospective application.
Notwithstanding that, at the hearing before me the appellants confirmed that a "stay" of that order (amongst others) is what they sought.
The second reason the stay was ill-conceived is because directions four and five simply provided an extension to an earlier timetable. Were I to stay those orders, the earlier timetable would be re-enlivened. That outcome would be of no assistance to the appellants.
I will now turn to the third reason why the application for a stay was ill-conceived. The appellants, in both written submissions and at the commencement of their oral submissions in support of the application for a stay, agitated an argument as to prejudice on the basis that direction four required them to prepare for a hearing against all of the respondents they seek to pursue in respect of all of the claims they wish to make. Prejudice was alleged because the appellants would be forced to prepare their material for the hearing despite the need for it to be completely redone in a form suitable for use in a court, including with regard to the need to abide by the rules of evidence, when they succeed in their application for transfer.
However, if one actually reads direction four, that is not what it provides. Direction four was, relevantly, limited to an extension of time for the appellants to lodge and serve further evidence "… on which the [appellants] intends to rely at the hearing, in the event that the miscellaneous matters application is dismissed…" (emphasis added). As the miscellaneous matters application provided for recognition that the appellants' claims had been amended in a manner taking them beyond the Tribunal's jurisdiction and then for transfer to a Court, there can be no proper suggestion that the direction required what the appellants assert it did. It simply provided what was, given the protracted history of this matter, a further indulgence to the appellants to complete their material on their claim as it stood without the amendments taking it beyond jurisdiction.
When I pointed to that issue in oral submissions, the appellants maintained prejudice due to the volume of the material they would wish to produce in compliance with the direction, which they alleged to be substantial. However, that overlooked the final aspect of direction four, which noted that "the further evidence foreshadowed is limited to an affidavit attesting to some formal matters." I raised that with the appellants and expressed a preliminary view that an available inference from that notation is that the Tribunal was told that an affidavit attesting to some formal matters was all the appellants sought to lodge in addition to the several folders already lodged by them in the proceedings. Mr Amirbeaggi (the first appellant who also represented the appellants at the hearing and is a solicitor) denied that was what the Tribunal was told.
The parties had been directed to lodge and serve their evidence and submissions in advance of the hearing of the application for a stay. No affidavit going to this issue nor transcript of the hearing on 13 July 2023 was lodged. Notwithstanding that, I would have been prepared to accept Mr Amirbeaggi's assertion on that point from the (virtual) bar table, had his opponent been in a position to concede it. It was not.
On the basis that those that assert must prove, I am not satisfied in the absence of evidence that the Tribunal intended to indulge the appellants with anything more than an opportunity to lodge a short further affidavit; the cost of which (and therefore the attendant prejudice if it is subsequently wasted) being de minimis in the circumstances. The appellants have elected not to lodge such an affidavit. That is their forensic decision.
Having considered the matter further in my deliberations, I am also perplexed as to why the Tribunal even offered the appellants an extension of time to lodge further material if they did not ask for it, and why the appellants are appealing the orders if they did.
For completeness, I should acknowledge that I have focussed on direction four made by the Tribunal, but the appellants sought a stay of directions three to seven. In that regard: 1. Read separately to the subsequent directions, direction three had no prejudicial effect on the appellants, or significant operative effect warranting a stay. 2. Direction five provides that the respondent may lodge and serve any further material. The prejudice to the appellants if this order is not stayed was not addressed and, in my view, the obvious prejudice is to the respondent. If the respondent wastes resources preparing further material that becomes otiose it will bear that expense if the appellants succeed in their transfer application. The respondent opposed a stay. 3. The appellants bear no onus to review any further material lodged by the respondent yet, as there is no hearing date set in the Consumer and Commercial Division. Nor will there be, in all likelihood, if the most recent transfer application succeeds or the appellants succeed in challenging prior dismissals of their similar applications. 4. Direction six is in the nature of an explanation by the Tribunal as to the practice and procedure it adopts where parties fail to comply with directions. That the Tribunal made it in the context of the other directions is unexceptional. I would not stay it in the exercise of my discretion, on that basis. 5. Direction seven, likewise, is entirely in the nature of advice to the parties as to the procedure adopted by the Tribunal. There is no proper basis on which it should be stayed.
I will refuse to grant a stay.

Costs of the Application for a Stay

The parties sought to be heard in respect of costs of the application. In my preliminary view, particularly given the complexities I raised at [13] above, the appropriate outcome may be that I make no order as to costs, such that the parties' prospects of recovering their costs of the application rise and fall on the merits and outcome of the appeal. However, I will give the parties an opportunity to make submissions to the contrary.

Orders

My Orders are as follows: 1. The application for a stay is dismissed. 2. Should the parties seek any order as to costs of the application then: 1. Any party seeking a costs order ("costs applicant") is to lodge in the Appeal Registry and give to the other party(ies) evidence and submissions in support of the application for costs, within 14 days. 2. Any submissions and evidence in response to the costs application are to be lodged with the Appeal Registry and given to the costs applicant within 14 days thereafter. 3. Any submissions in reply are to be lodged with the Appeal Registry and given to the other party(ies), within 7 days thereafter. 4. Submissions on the application for costs by each party are not to exceed ten pages in length and must address the issue raised at [13] herein. 5. The Appeal Panel may dispense with a hearing and determine any application for costs on the basis of the written submissions and evidence provided. If the parties oppose this course, they should make submissions on this issue when complying with the directions as to their submissions on the substantive costs application. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application.

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 17 August 2023 - Paragraph 32 - corrected typographical error 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: 17 August 2023

(2020) 103 NSWLR 140

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