Amirbeaggi v NSW Self Insurance Corporation

NCAT Appeal Panel|2023-08-31

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 7 June 2023.
The Tribunal's decision concerned an interlocutory application filed by the appellants on 23 February 2023, in respect of proceedings they commenced against the respondent on 11 July 2022 under the Home Building Act 1989 (NSW) (the HB Act). These proceedings (the substantive proceedings) were an appeal against a decision made by the respondent concerning a Home Building Compensation Fund (HBCF) claim. The appellants sought an order transferring the proceedings to the Supreme Court of New South Wales. In these reasons for decision we refer to the appellant's interlocutory application as the February transfer application. We refer to a subsequent transfer application, made on the same day as the Notice of Appeal was lodged, as the July transfer application.
The February transfer application was determined on the papers on 7 June 2023, an order dispensing with a hearing of the application having been made at a directions hearing on 24 April 2023. The Tribunal dismissed the February transfer application and ordered the appellants to pay the respondent's costs.
The appellants appeal from this decision.
On 4 October 2023, the Tribunal determined the July transfer application in the appellants' favour and the substantive proceedings have since been transferred to the District Court of New South Wales.
For the reasons set out below, we have refused leave to appeal and dismissed the appeal.

Background and Tribunal proceedings

The background to the substantive proceedings and interlocutory applications made by the appellants up until the date of the Tribunal's decision is set out at [2] to [10] of the Tribunal's reasons for decision: "2. On 9 July 2022 the applicants filed an application against the respondent which included Points of Claim which comprised 12 pages. Those Points of Claim, which sought $340,000 plus costs, alleged the respondent wrongfully denied the applicants' claim under a homeowners' warranty insurance policy. 3. On 15 July 2022 the Tribunal advised the parties of a directions hearing on 8 August 2022 at which orders were made for the provision of Points of Defence and the documents upon which the parties wished to rely at the hearing. On that occasion, leave was granted for the parties to be legally represented and an access order was also made. 4. After Points of Defence (#1, ie the document marked 1 in the Tribunal's file for this application) were filed, extensions of time for the provision of the documents upon which the parties relied was granted but the 31 October 2022 directions hearing was maintained. 5. At that directions hearing, orders were made for the provision of Amended Points of Claim and for evidence and submissions in relation to the applicants' request for the proceedings to be transferred to a court. 6. When those submissions were provided, on 16 November 2022 by the applicants (#2) and on 29 November 2022 by the respondent (#3), they respectively included Amended Points of Claim and Points of Defence to the Amended Points of Claim. The respondent noted that, in the Amended Points of Claim, which comprised 29 pages, the applicant had named two non-parties as additional respondents despite leave to add those respondents not having been either sought or obtained. 7. On 7 December 2022 the applicants lodged an application to transfer the proceedings to the FEDERAL COURT. On 8 December 2022, when the application for transfer was to be considered, the applicants were unable to proceed which resulted in an adjournment with costs reserved. Orders were made for the provision of submissions as to costs. The respondent's submissions were received on 31 January 2023 (#4 being the online document and #5 the hard copy of the same document) and the applicant's submissions on 14 February 2023 (#7). 8. On 31 January 2023 the Tribunal received documents from the applicants (#6) which requested a transfer of their application to the DISTRICT COURT which was accompanied by a 33-page document in the form of a District Court Statement of Claim against three respondents. 9. On 23 February 2023 the applicants lodged an application which sought to have these proceedings transferred to the SUPREME COURT and provided the Tribunal with a 34-page document in the form of a Supreme Court Statement of Claim, again against three respondents. On 24 February 2023 the Tribunal made the following orders: '1. The applicants are to file and serve by 21 April 2023: (1) an application setting out the orders sought with respect to the further conduct of the proceedings; (2) in the event the applicant seek an order for leave to file an amended points of claim, their proposed amended points of claim, including the amount claimed and how that amount has been calculated; (3) any evidence in support of the orders sought with respect to the further conduct of the proceedings including evidence substantiating the amount of the claim in the event that the claim in the proposed amended points of claim is for an amount in excess of $500,000, which is to be way of affidavit or expert report; (4) written submissions in support of the orders sought with respect to the further conduct of the proceedings which are to be limited to five pages. 2. The respondent is to file and serve by 2 June 2023: (1) any evidence in opposition to the orders sought by the applicants with respect to the further conduct of the proceedings, which is to be way of affidavit or expert report. (2) written submissions in opposition to the orders sought by the applicants with respect to the further conduct of the proceedings, which are to be limited to five pages. 3. A hearing is dispensed with in relation to the application of the applicants referred to in order 1(1) above. 4. The Tribunal notes that the applicants have not obtained the leave of the Tribunal to join any additional respondents." 10. In response to those orders, no evidence was received. What was provided was the applicants' submissions on 23 February 2023 (#8) and the respondent's submissions on 5 June 2023 (#9)."

The Tribunal's reasons for decision

The Tribunal relevantly found: "13. The first basis of the application for transfer is that the applicants' claim exceeds $500,000. However, despite a clear direction, made on 24 February 2023, for the provision of evidence on that aspect, no such evidence has been provided. 14. The second basis of the application for transfer is that the applicants wish to pursue claims based on provisions of the ACL and the ASIC Act. As the Tribunal has jurisdiction to hear claims under the ACL, that does not warrant the application being transferred unless the jurisdictional limit of $100,000 is exceeded and, again, there is no evidence of that. 15. A consideration of the reliance on the ASIC Act suggests it overlaps the claim based on the ACL in that the factual allegations put would, if established, entitle relief under the ACL which would remove the need to rely on the ASIC Act. 16. Further, the basis of the claim under the ASIC Act appears to relate to the proposed third respondent and, as has been indicated more than once, the proposed third respondent is not a party to these proceedings. It is to be noted that the proposed third respondent is the firm of solicitors who have been acting in these proceedings for the sole respondent. 17. Additionally, the latest version of the Statement of Claim, which is in the Supreme Court format, appear to base a claim under the ASIC Act against the proposed third respondent on the conduct of a solicitor for the respondent during these proceedings."
The Tribunal made the following orders: "1. The application of the applicants (ie Farshad Amirbeaggi and Brooke Maniscalco) to have their proceedings against the respondent (NSW Self Insurance Corporation) transferred to the Supreme Court is dismissed. 2 The Tribunal notes that the applicants have neither sought nor obtained leave to add any other respondents. 3 The applicants are to pay the respondent's costs of these proceedings after 31 October 2022 on the ordinary basis, as agreed or assessed. 4 By 4 July 2023 the applicants are to file and serve (a) any Amended Points of Claim against the respondent, and (b) the documents upon which they wish to rely at the hearing of this application. 5 By 1 August 2023 the respondent is to file and serve (a) Points of Defence to any such Amended Points of Claim, and (b) the documents upon which they wish to rely at the hearing of this application. 6 The Registry is requested to relist this matter for directions as soon as possible after 1 August 2023."
The appellants filed the Notice of Appeal against the Tribunal's decision on 4 July 2023.

July transfer application

On 4 July 2023 the appellants also lodged the July transfer application, seeking an order to transfer the proceedings to the District Court of New South Wales, rather than to the Supreme Court as had been the case with the February transfer application. The grounds for the July transfer application were the same as those relied upon in support of the February transfer application.
The July transfer application was heard on 13 July 2023. The Tribunal reserved its decision. On 4 October 2023 the Tribunal made the following orders: "(1) Subject to order (2) below, pursuant to Clause 6 of Schedule 4 to the Civil and Administrative Tribunal Act the proceedings are to be transferred to the District Court of NSW (in accordance with the rules of that court), and to continue before that court as if the proceedings had been instituted there. (2) The operation of order (1) is suspended for 14 days from the date of these orders. (3) Subject to orders (4)-(6) below, the applicants are to pay the respondent's costs of the Application for Miscellaneous Matters filed on 4 July 2023 and any costs thrown away by reason of the applicants' commencement of proceedings in the Tribunal. Such costs are to be as agreed between the parties or as assessed. (4) Either party may file and serve upon the other party within 14 days of the date of these orders submissions, not exceeding 5 pages, seeking an alternative order regarding costs. (5) In the event a party files submissions in accordance with order (4) above, order (3) above will cease to have effect and the other party may, within a further 14 days, file and serve submissions in response, not exceeding 5 pages. (6) Submissions strictly in reply, not exceeding 3 pages, may be filed and served within a further 7 days. (7) Submissions filed pursuant to orders (4) and (5) above must address the question whether the question of costs can be determined on the basis of the written submissions and without a hearing."
The respondent has not appealed the Tribunal's decision.
On 27 October 2023, the appellants advised the Tribunal that in view of the Tribunal's 4 October 2023 decision, they no longer sought an order transferring the proceedings to the District Court of New South Wales, but otherwise "pressed for determination in the Appeal the balance of the relief sought in their Notice of Appeal".

Submissions and evidence

In deciding the appeal, we have had regard to relevant material in the Appeal Bundle lodged on 30 August 2023, including: 1. The Notice of Appeal; 2. The Reply to Appeal; 3. The parties' written submissions in support of and in opposition to the appeal; 4. The application to the Tribunal; 5. The points of claim and points of defence; 6. Amended points of claim and points of defence to the amended points of claim; 7. The parties' submissions to the Tribunal; 8. Procedural directions made by the Tribunal; 9. The Tribunal's reasons for decision; and 10. The procedural directions made at callover.
Material in the Appeal Bundle which was not relied on was so marked at the beginning of the appeal hearing.
The appellants also relied on reports of Mark Ellis and Ian Tucker dated 11 April 2023 and 20 April 2023 respectively, which the appellants claim they had sent to the Tribunal on 21 April 2023: see statement of Farshad Amirbeaggi dated 4 July 2023 at [159].
We have also had regard to: 1. The oral submissions made on behalf of the parties at the appeal hearing; and 2. The Tribunal's reasons for decision and orders in the July transfer application.
In view of our conclusions concerning the application for leave to appeal, it has not been necessary for us to have regard to the written submissions filed after the hearing in relation the Insurance Contracts Act 1984 (Cth), including whether HBCF insurance is state insurance which is excluded from the operation of that legislation.

Notice of Appeal

The Notice of Appeal was lodged within the 28 day period specified in cl 25(4) of the Civil and Administrative Tribunal Rules (the Rules).

Grounds of Appeal

The grounds of appeal specified in the Notice of Appeal are: 1. The Tribunal erred in finding that no evidence was served in support of the application when there was no evidence to support such a finding. 2. The Tribunal erred in finding that there was no evidence that the appellants' claim exceeded $500,000 when there was no evidence to support such a finding. 3. The Tribunal erred in finding that there was no evidence that the appellants' claim exceeded $100,000 when there was no evidence to support such a finding. 4. The Tribunal erred in concluding that the appellants' claim against the respondent could be accommodated by the Australian Consumer Law claim and in doing so applied the wrong principle of law or alternatively arrived at a conclusion that no reasonable decision maker could reach. (We note that in the appeal submissions, this ground of appeal was not pressed). 5. The Tribunal acted on a wrong principle, was guided by extraneous or irrelevant facts and mistook the facts.
The appellants set out particulars of the various grounds of appeal. The grounds of appeal were apparently drafted on the basis that the appellants had a right to appeal on a question of law, rather than on the basis that leave to appeal was required.
The Notice of Appeal also sought leave to appeal on the bases set out in cl 12 of Schedule 4 of the NCAT Act. We note that cl 12 of Schedule 4 does not apply to interlocutory decisions: Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [33] ("Champion Homes"). When this issue was raised with the parties' representatives at the appeal hearing, they agreed that cl 12 of Schedule 4 does not apply.
At the appeal hearing, the appellants sought and were allowed to add a particular to Ground 5, namely that the Tribunal failed to find that by reason of the allegation of breach of s 13 of the Insurance Contracts Act, federal jurisdiction was invoked, which deprived the Tribunal of the jurisdiction to determine any matter in the proceedings. As noted above, the parties filed written submissions in respect of this issue after the hearing, which have been unnecessary for us to consider.
The relief sought in the Notice of Appeal is as follows: "1. Grant leave to appeal. 2. Appeal upheld. 3. Set aside orders 1 to 3 made by Senior Member Ellis on 7 June 2023 and in lieu thereof Order that these proceedings be transferred to the District Court of New South Wales. 4. Costs. 5. Such further or other order as the Appeal Panel deems fit."
As noted above, following determination of the July transfer application in favour of the appellants, the appellants now seek the relief sought in the Notice of Appeal, other than an order transferring the proceedings. We take this to mean that the appellants seek orders: 1. Granting leave to appeal and allowing the appeal; 2. Setting aside the orders made by the Tribunal on 7 June 2023; and 3. Awarding costs of the appeal in their favour.

Issues

The issues to be decided in this case are: 1. Should leave to appeal be granted? 2. What order should be made in respect of costs of the appeal proceedings?

Should leave to appeal be granted?

It is not in dispute that the appellants require leave to appeal. This is because a decision in respect of an application to transfer proceedings is an interlocutory decision: Dyldam Developments Pty Ltd v Mewing [2017] NSWCATAP 170 at [18]. An internal appeal of an interlocutory decision of the Tribunal requires leave of the Appeal Panel: s 80(2)(a) NCAT Act.
The principles which apply to leave to appeal an interlocutory decision were considered by the Appeal Panel in Champion Homes. The Appeal Panel stated at [34] to [35]: "34 [T]here is no specification in the NCAT Act as to the circumstances in which leave should be granted in respect of interlocutory decisions. Rather, there is a discretion to be exercised and general principles apply to the grant of leave to appeal such decisions. 35 As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave."
The reference to Collins at [84] is a reference to the Appeal Panel's decision in Collins v Urban [2014] NSWCATAP 17. In that matter, the Appeal Panel summarised the principles which apply to applications for leave to appeal as follows: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) 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. BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."
We have refused leave to appeal for the following reasons.
First, the Tribunal's decision in respect of the February transfer application was a decision concerning practice and procedure and the exercise of discretion. It did not determine the appellants' substantive rights. This is demonstrated by the fact that following dismissal of the February transfer application, the appellants made the July transfer application. Had that transfer application been unsuccessful, the appellants could have appealed the Tribunal's decision.
Second, in Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299, Bell P (as he then was) stated: "27. Leave to appeal will also be refused where its grant would lack utility. … Not only is this consideration sound as a matter of common sense, but to grant leave in a case where there would be no utility in doing so scarcely facilitates 'the just, quick and cheap resolution of the real issues in the proceedings' cf. Civil Procedure Act 2005 (NSW) s 56. Moreover, scarce judicial resources should not be deployed in resolving proceedings whose utility is either wholly lacking or extremely limited. 28. Utility is, moreover, not to be measured by the interest that may lie in the particular answer of a court of a particular status on a question or questions in circumstances where any answer it gives will have no practical effect as between the parties, or at all. It is not the role of this Court to give advisory opinions on what may have become hypothetical questions."
In our view, the fact that (a) the appellants sought the same substantive relief in the appeal proceedings and in the July transfer application and (b) the July transfer application was determined in their favour prior to the appeal proceedings being determined means that the continuation of the appeal proceedings lacked utility.
Further, if leave to appeal were granted and the Tribunal's orders were set aside, the February transfer application would become an undetermined interlocutory application to transfer the substantive proceedings to the Supreme Court. Given that the substantive proceedings have been transferred to the District Court, that interlocutory application would fall to the District Court to determine. However, the appellants no longer want the substantive proceedings transferred to the Supreme Court, so they would presumably not press that application. These factors support our conclusion that the appeal proceedings lack utility.
Third, in any event, we are not satisfied that the Tribunal's decision was wrong, or if it was wrong, that it was more than arguably wrong. The Tribunal found that the appellants had not lodged evidence in support of the transfer application. While the appellants maintain that they sent evidence to the Tribunal on 21 April 2023, there is no evidence that the Tribunal received that material. In circumstances where the appellants did not dispute the order made on 24 February 2023 dispensing with a hearing of their proposed interlocutory application, it was incumbent on them to ensure that material sent to the Tribunal in support of the application was in fact received. We do not consider that the Tribunal erred in dismissing the February transfer application in the absence of evidence supporting the application.
Fourth, while not clearly articulated, it appears that the appellants may want leave to appeal granted and the orders made in the February transfer application set aside because of the costs order the Tribunal made against them. This is not a sufficient basis for leave to appeal to be granted. Further, even if the Tribunal had granted the February transfer application, we consider it likely that it would have made a costs order against the appellants on the same basis that the Tribunal which determined the July transfer application made such an order. In our view, the principles articulated in the reasons for decision for the July transfer application equally apply to the February transfer application. In relation to this, the Tribunal stated at [135] to [137]: "135 [T]he application for transfer was an application for an indulgence, that is for the Tribunal to make an order which would not have been necessary if the applicants had commenced their application in a forum with jurisdiction to determine their claim. The usual rule in cases where a party seeks an indulgence is that that party pay the costs of the application: Nardell Coal Corporation Pty Ltd (recs & mgrs appointed) (in liq) v Hunter Valley Coal Processing Pty Ltd [2003] NSWSC 642 at [144] - [145]. 136 I do not, as presently advised, consider that the conduct of the respondent in opposing the transfer of the proceedings was unreasonable. The respondent raised legitimate and substantial grounds in opposition to the application for transfer which, although I have ultimately found it should succeed, was finely balanced. 137 I propose to order that the applicants pay the respondent's costs of the Application for Miscellaneous Matters filed on 4 July 2023 and any costs thrown away by reason of the commencement of the proceedings in the Tribunal. I note that the Tribunal's orders of 7 June 2023 included an order that the applicants pay the respondent's costs of the proceedings after 31 October 2021. It is therefore not necessary to consider costs incurred by the respondent between 31 October 2022 and 7 June 2023."
Finally, we are of the view that the application for leave to appeal does not involve issues of principle, questions of public importance or matters of administration or policy which might have general application, an injustice which is reasonably clear, an error that is plain and readily apparent or a factual error that was unreasonably arrived at and clearly mistaken. Nor do we consider that the Tribunal went about the fact finding process in an unorthodox manner or in a manner that was likely to produce an unfair result.
The appellants have not established a sufficient basis for leave to appeal to be granted. Leave to appeal is accordingly refused.

What order should be made in respect of costs of the appeal proceedings?

We did not hear from the parties in respect of costs of the appeal proceedings. We have accordingly made procedural directions for the filing and exchange of evidence and submissions in the event that a party wishes to make an application for costs. Subject to the parties' submissions on this issue, we propose to dispense with a hearing and determine any costs application by considering the written material provided.
In addition to addressing whether a hearing on costs should be dispensed with, the parties' submissions must: 1. Address whether s 60 of the NCAT Act or r 38 of the NCAT Rules applies to costs of the appeal proceedings; 2. Set out the special circumstances that warrant an order for costs if s 60 applies; and 3. Address all other issues relevant to the exercise of the costs discretion.

Orders 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. In respect of costs of the appeal: 1. Any application for costs, supported by evidence and submissions, is to be filed and served within 14 days of the date of these orders. 2. Any material in response to a costs application is to be filed and served within 14 days thereafter. 3. Any material in reply is to be filed and served within 7 days thereafter. 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: 23 November 2023

(2021) 106 NSWLR 520

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