Betlem v JHA Australia Group Pty Ltd

NCAT Appeal Panel|2023-03-16|Before: Blake AM

Citation: N/A Date of Decision: 26 September 2022 Before: S Hausfeld, General Member File Number(s): GEN 22/26446

Introduction

This is an internal appeal brought under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act') against a decision made in the Consumer and Commercial Division of the Tribunal on 26 September 2022.
At relevant times, the appellant was the owner of vacant land in Summer Island, New South Wales ('land'). The respondent, JHA Australia Group Pty Ltd ('JHA'), provides consulting engineering services, including geotechnical, structural, hydraulic and environmental services.
On 11 July 2019, the appellant as an owner-builder engaged JHA to provide consultancy services in respect of structural engineering plans prepared for the appellant by a third party, Midcoast Piling and Drilling ('Midcoast'), for the construction of a residential dwelling and art studio ('premises') on the land. The appellant paid $300 for that advice. On 9 August 2022, the appellant accepted JHA's quote of that same date to provide engineering plans for the premises for $3,740 ('contract'). The contract plans were provided by JHA to the appellant on 10 September 2022. The appellant paid JHA the agreed contract price of $3,740 for the plans.

Application to the Tribunal

The appellant lodged a "Consumer Claim Application about Goods and Services" in the Tribunal on 16 June 2022 ('Application') seeking an order against JHA for $10,992.50, comprising $4,040 for the cost of the services provided by JHA and $6,882.50 for out-of-pocket expenses. The claim was based on a breach of contract in relation to JHA's engineering design and "misleading information". In summary, the appellant contended that JHA supplied misleading and incorrect information in relation to the design of screw pier footings and when that design failed after work had commenced, JHA refused to redo its design. In doing so, the appellant contended that JHA breached its contract with the appellant.
The Application (and the appellant's submissions on the appeal) raised the following contentions (summarised and paraphrased for convenience): 1. In August 2019, JHA agreed to engineer the structural foundations of the appellant's new premises. In accepting to undertake that work, JHA stated: We propose to carry out the following: Provide design and engineering drawings for the required footings and subfloor structure to carry the proposed prefabricated dwelling.... The design.... will be based on screw piers. … I have combined the cost of the screw pier design of about $1500 with the cost of the subfloor structure design all within the price quoted. 1. The screw pier footings had been drafted but not designed on the initial engineering plans dated 26 August 2019. The unknown depth meant that "JHA had not met the objective of our agreement…"; 2. Based on soil tests, JHA had calculated that at a maximum depth of 3.6m, the ground would support the premises and minimal torque would be reached at or around that depth. JHA stated in one of two emails dated 3 September 2019: The piers are to [sic] founded to a depth to support the loading requirements on the screw pier, which in the worst case is 3.6m as per the geotechnical design. … At this depth the ground was found to be suitable to support the dwelling would support the dwelling. In our design we will specify the depth of 3.6m where the DCP [Dynamic Cone Penetrometer] testing found suitable soil and a torque value to be reached as [sic] minimum. 1. A 3.6m length/depth specification was added to the final and accepted engineering design plans dated 6 September 2019 that were issued on 10 September 2019, and which relevantly stated in the covering email: Attached is [sic] the plans with the change of 3.6m width and screw depth pier and torque required provided, as well as the draft of the certificate. The certificate is the basis of everything and is what holds the responsibility on the engineer. 1. The 6 September 2019 plans contained the following note: Screw pier (by supplier) 3.6M confirmed through previous geotechnical testing or 50KNM torque. 1. The appellant provided in evidence an invoice from Midcoast dated 19 September 2019 that refers to, among other items, a price of $12,650 for the supply and installation of 46 screw piles which the appellant said were of 3.6m in length based on the advice and design of JHA; 2. The expected torque at 3.6m was not found by Midcoast during its piling works. In an email from JHA to the appellant dated 12 November 2019, the Senior Engineer Mr Tim Freeman stated: I gave a misleading reply when I said 3.6m and should have added providing that the torque requirement is met. You correctly stated that the torque was not met at 3.6m with the type of screw pier that was being used. Our RPEQ advises me that we have provided enough info for your builder to continue. He has researched the correspondence and says that it is stated that a 3600mm founding depth will be specified together with a minimum required torque. It also stated the torque value will take precedence over the 3600mm founding depth... "if in locations this torque value is reached at a lower depth or higher depth this will be taken over the 3.6m …". 1. In a further email to the appellant dated 12 November 2019, Mr Freeman apologised "if we gave misleading or incorrect information in any discussions however our instructions have always been consistent"; 2. The appellant contended that JHA revised the specification stating that torque took precedence over depth and discarded the need for any calculated depth measurement. JHA revised the screw pier length/depth to "unknown" on the JHA engineering design plans; 3. Midcoast stated in an email to the appellant dated 22 November 2019: … the ground conditions are not suitable for screw piles. 1. Midcoast recommended a slab on ground on a compacted bridging layer and to "forget piles"; 2. In an email to the appellant dated 26 November 2019, Midcoast stated: We could not find any bearing capacity or torque of consequence within the designated pile depths nominated. We tested to 8.5m and found no significant increase of the working loads … 1. JHA informed the appellant in an email dated 13 December 2019 headed "Without Prejudice" (the relevant part of which is not a "without prejudice" communication and no objection was made to the email being relied upon in the appellant's evidence) that while "the depth of the holes for the screw piers may have been deeper than anticipated, this method of construction is the best option for this case"; 2. A report obtained by the appellant from by Douglas Partners, geotechnical engineers, dated 26 February 2020, relevantly concluded that: Potential footings options that would be suitable for the ground conditions which may include stiffened raft, waffle pod system, strip pad footings or piled footings although the latter option is unlikely to be feasible due to the depth to suitable strata. and: The depth to suitable founding strata for deep footings (piers) is estimated at about 10.3m to 12.2m below ground level.
We understand from the appellant's submissions at the hearing of the appeal that the appellant accepted the Douglas Partners recommendation to install a stiffened raft slab in lieu of the JHA pier design.

Tribunal's Decision

The Tribunal dismissed the Application. The Tribunal found that the appellant had failed to prove her claims, finding at [15]-[17] of its Reasons: 15. The applicant who was the owner builder for the construction has chosen to lead no expert evidence. It emerged that the main problem was that although the respondent's drawings, which it is agreed were based on soil testing provided by the applicant, said the screw piers should be 3.6m in depth, torque testing when it came to construction, revealed that deeper piers were required and added additional costs incurred. The applicant chose, impermissibly, to be her own expert, based on internet searches which she seems to have done with considerable detail but no particular expertise. The applicant says that the soil test she provided was not the correct soil test and this respondent should not have used it, but I have no expert evidence to this effect. For all of the applicant's claims as to misreading or misuse of the soil test by the respondent, I have no expert or other cogent evidence supporting the applicant's claims. 16. The respondent says that warnings about the need for torque testing were in its drawings, and I accept this because the notation in the relevant plan says "screw pier (by supplier) 3.6m, confirmed through previous geotechnical testing or 500KNM torque": A4, sheet 6. This does seem consistent with the part of the Australian Standard concerning piers, to which the applicant took me, which apparently says that site monitoring with torque testing should normally occur: A2, p137. 17. I note that there was nothing in the Quote requiring the respondent to undertake soil testing.

Notice of Appeal - Extension of time

The Notice of Appeal was lodged in the Tribunal on 18 January 2023. The appellant acknowledged that an extension of time was required to allow the Notice of Appeal to be accepted out of time.
The appeal was lodged almost three months after the 28 days prescribed under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 ('NCAT Rules').
The relevant principles for the granting of an extension of time to appeal under s 41 of the NCAT Act are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [21] and [22]. In Jackson at [22], the Appeal Panel said in relation to an extension of time in which to bring an appeal: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]-[59].
JHA lodged its Reply to the Notice of Appeal on 9 February 2023 that included a separate document described as "Reply to Extension of Time" in which JHA opposed the application to extend the time for lodging the Notice of Appeal.
There was no evidence or submission made that JHA will suffer prejudice if we extend time other than in the sense described by the Appeal Panel in Jackson at [22(2)]. As to the criteria in Jackson at [22(3)], the delay in this case is however lengthy.
The appellant's explanation for the delay is set out in the Notice of Appeal and evidence in support of that explanation was provided. In summary, the appellant said: I had submitted two letters of complaint [to the Registrar]. All are attached Appendix 2. The first labelled Letter (B) was dated 27 Sep 2022, and it's [sic] response Letter (C) dated 25 Nov 2022. The second Letter (D) was dated 2 Dec 2022 and it's [sic] response, Letter (E) dated 19 Dec 2022. NCAT's response process took three months and never addressed my complaint of discrimination. Instead [the Registrar] recommended I appeal. On the 22 December I requested the recording of the Hearing and it arrived on the 23 December 2022. Evidence - Attached Doc (H). Because of these delays under section 41(1) + (2) of the Civil and Administration Tribunal Act 2013 I am requesting that this application for appeal be accepted even though the relevant period of time has expired.
Consistent with the usual practice, if an extension of time to appeal is required, that issue would primarily be resolved by the determination of the merits of the appellants' appeal. If leave to extend time is required, and the appeal has no merit, there would be no utility in granting leave. Conversely, if the leave is required, and the appellant demonstrates merit, the prejudice to the respondent of granting leave would not disincline the Appeal Panel to do so.
In these circumstances, we are satisfied that the appellant has made out a basis to justify relaxing the requirement that an appellant must bring an appeal within the time prescribed by the NCAT Rules. A refusal to grant leave to rely upon the grounds raised by the appellant in the Notice of Appeal would in our view be productive of an injustice on the appellant in the circumstances of this case.
We consider it appropriate to grant the appellant leave to extend the time for the filing of the Notice of Appeal to the date of the hearing of the appeal.

Grounds of Appeal

The grounds of appeal were set out in a detailed submission attached to the Notice of Appeal. The appellant also sought leave to appeal.
There are two main grounds of appeal, with a series of sub-issues raised within each primary ground of appeal. The issues in the two grounds of appeal overlap in many respects.

Ground 1: "Reasoning and explanations"

The appellant relied upon s 38(5)(c) and s 81(1)(d) of the NCAT Act to contend in ground 1 of the appeal: I did not receive a fair and impartial hearing due to the [Member's] bias and discriminating behaviour towards me. As a direct result of his behaviour [the Member] had failed to acknowledge and discuss crucial evidence of the hearing. Had he done so, he would not have dismissed my case.
Section 38(5)(c) of the NCAT Act provides: (5) The Tribunal is to take such measures as are reasonably practicable - … (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
Section 81(1)(d) of the NCAT Act provides in respect of internal appeals that the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including an order that the decision under appeal be quashed or set aside and for another decision to be substituted for it.
As part of the first ground of appeal, the appellant submitted that there were two methods to determine the length of a screw pier for installation, described as Method A and Method B, by reference to AS 2159-2009 "Piling and Installation" ('AS 2159').
Method A was for an engineer design the pier length prior to installation. This was said to require: 1. Soil tested by a geotechnical company to find the bearing layer capacity. The bearing layer capacity is where the soil is dense enough to hold the weight of the building; 2. The bearing layer capacity determines the length of the pier; 3. The engineer (the respondent) supplies engineering design plans with a safe working load, confirm the nearing capacity layer and minimum torque requirement; 4. In this scenario, "you cannot have bearing capacity without torque".
Method B was to have the crew piling company determine the pier length while installing. This required: 1. The drilling machine uses measurements of torque while it instals a pier to find the bearing capacity layer; 2. This is an alternative to soil testing and is what the Member referred to as 'torque testing"; 3. There is no need for an engineer for this process; 4. Torque is a force that causes an object to spin around a rotational axis; 5. In this scenario, you "cannot have torque without bearing capacity".
The appellant submitted that if JHA "had done the job properly then [Method] B should have been the same length as [Method] A" so that the drilling machine measuring torque should have found the bearing capacity at 3.6m. Instead, the piling company went to 8.5m and found no evidence of JHA's "confirmed Bearing Capacity and Torque [which] were later determined to be around 18 metres".
The appellant contended that JHA admitted to making mistakes and apologised "if we gave misleading or incorrect information in any discussions". She said that JHA refused to redesign the screw pier foundation contrary to AS 2159 which requires a reassessment "If the installed pile depth is inconsistent with the design depth" and if necessary, "additional geotechnical investigation shall be undertaken to determine the cause of the variation": (Section 7.2.4).
JHA was alleged to have changed the methodology after the start of the build. JHA confirmed that torque on the engineering plans meant torque testing. Torque testing required the screw piling company to determine the designated length by using a pile to test the soil with a torque measuring device in accordance with AS 2159-2009 at section 7.3.5.3.2. and the definition of "test pile" at section 1.3.34.
The appellant contended that JHA knew that torque testing was not the same as torque because they asked the screw piling company to use a screw pier to test the soil the day after the designated length of 3.6m was not found, stating: We recommend that the best way forward would be to ask the piling company to continue on one screw pier and see what depth they find suitable soil according to what they require in terms of Torque or capacity.
The Tribunal found that JHA included "warnings about the need for torque testing" in the drawings by the "notation in the relevant plan" that states "screw pier (by supplier) 3.6m confirmed through previous geotechnical testing or 50KNM torque" and that "torque testing when it came to construction revealed that deeper piers were required."
The Tribunal (as did JHA) was said to have wrongly equated torque on the engineering plans to torque testing. It was however the piling company that determined the length of the pier while installing (Method B) and not JHA (Method A). Therefore, it was put that JHA did not do the work they were engaged to do, which was to supply design length for the foundation screw piers. JHA therefore breached the contract.
The contract required JHA to do both the subfloor structure and the screw pier foundation design. The engineering plans of 26 August 2019 (that we observe were marked "Not for Construction") did not have a design length specification for the screw piers and only stated "screw pier by supplier". The appellant sought confirmation from JHA that it had determined the design length and specification for the screw piers. In response, JHA stated in an email dated 2 September 2019: In our design we will specify the depth of 3.6m where the DCP testing found suitable soil and a torque value to be reached as a minimum.
The appellant submitted that JHA then added screw pier design length to the engineering plans of 6 September 2019 by adding the words: "3.6 M confirmed through previous geotechnical testing".
That change was confirmed on 10 September 2019 in an email attaching the 6 September 2019 plans that stated: Attached is [sic] the plans with the change of 3.6m width and the screw pier depth and torque required …
The appellant submitted that accordingly, JHA confirmed that under Method A it was the entity to determine the length of the screw piers by designing the length prior to installation. As we have stated above, in reliance on the advice of JHA, the appellant said she arranged Midcoast to supply and instal 46 screw piles of 3.6m in length. Midcoast as the screw piling company was not "torque testing" (ie; under Method B) on the day of drilling as found by the Tribunal and JHA were actually overseeing the installation of the screw piles according to JHA's engineering design specifications.
The change in the method of installation after the engineering plans had been finalised and after the work had commenced caused the appellant to incur extra costs to the piling company of $4,930.
Such matters were said to contravene s 29(1)(b) of the Australian Consumer Law (NSW) by either intentionally or "in ignorance" making false statements that JHA's services were of a particular standard and the appellant was misled by JHA "to believe they had done the screw pier foundation design when in fact they had not".
Soil testing became irrelevant and was not required once JHA changed the means of installation to Method B.

Ground 2: The application was dismissed "with prejudice".

The appellant contended that she was denied "a reasonable opportunity to be heard or have all my submissions considered in the proceeding" contrary to s 38(5)(c) of the NCAT Act (which we have set out above).
The appellant said that she did not meet the requirements for representation by a lawyer under NCAT's "Guidelines for Consumer and Commercial Division, Representation, Item No 10" and "as such, under Item No 3 I was expected to represent myself".
The appellant contended that she had been denied her right to "a fair and impartial hearing" and was not allowed to present her case "in full, without discrimination".
The matters relied upon under this ground of appeal included: 1. The Member was biased and discriminatory; 2. The Member was informed of the appellant's disabilities. Under the Disability Discrimination Act 1992 (Cth), the Member "was required to make adjustments to his behaviour after I informed him of my disabilities." These were dismissed by the Member. The appellant was "rudely" told "to be quiet"; 3. The Member interrupted the appellant in a manner that was unnecessary, and a form of "bullying", and he was argumentative and abusive; 4. The Member's conduct caused repellent to cry and "breakdown and sob".
This ground of appeal also alleged that the Tribunal "wrongly dismissed and ignored evidence". The appellant submitted that she complied with the Notice of Order dated 14 July 2022 and that her research material was not internet based as found by the Tribunal and it was background material from various screw piling companies. The Tribunal wrongly dismissed that evidence contrary to s 38(2) of the NCAT Act that states that the Tribunal is not bound by the rules of evidence.
The appellant's evidence included reports, emails, invoices and engineering plans that were either "skimmed over", "ignored" or "wrongly dismissed".
This ground of appeal also contended that the Member did not follow procedure. The Tribunal did not cause JHA's engineer, Mr Condie, who represented JHA at the hearing before the Tribunal to "either contest or not contest any information he deemed an 'opinion'". Mr Condie was not cross examined and the Member did not ask him any questions as he could have done under s 46(1) of the NCAT Act or allowed cross examination of Mr Condie under s 38(4) of the NCAT Act.
The engineering issues were complicated, and the appellant wanted to read a submission as oral evidence under s 50 of the Evidence Act 1995 (NSW) being a summary of a 145-page document. The "summary statement" was provided as a written chronology in accordance with the Notice of Order dated 14 July 2022. The appellant was denied the opportunity to read the entire statement because of the Member's "disruptive behaviour" that included "constant interruptions, ambiguous questions and bullying" during the hearing. The appellant said: I feel like I was discriminated against. I had made a point of saying I was disabled with... depression and anxiety and to constantly interrupt me did not help this situation at all … I did not get to present my case properly in order and accurately.
The Member was allegedly impatient to listen for answers and a "vital decision" was made during an adjournment when the appellant said she was "indisposed" because of the Member's behaviour. The Tribunal is recorded as having decided that Method B was the means of installation by questioning the respondent during the adjournment. The Member did not disclose that to the appellant and was unaware of this happening until she obtained the sound recording of the hearing. Accordingly, the appellant submitted that she was denied "the opportunity to explain how Method B (torque testing) was a breach of contract by the respondent."

Appellant's Submissions and Evidence

Given the complicated technical issues raised in the proceedings and on the appeal, we have referred to the appellant's contentions above in some detail.
The appellant also relied upon a large volume of evidence. The appellant's evidence on the appeal included the original Application and attachments lodged in the Tribunal on 2 February 2022. The appellant relied on a bundle of documents lodged on 18 January 2023 described as "Additional Documents for Appeal", that included a series of documents identified as Appendices 1 to 5. As far as we were made aware, except for those documents relied upon in Appendix 2 in support of the appellant's application to extend time to lodge the Notice of Appeal, the material within those appendices was before the Tribunal or if it was not, it was not suggested as being "new" evidence or objected to by JHA.
In addition, the appellant relied upon a bundle of documents described as "Appeal Documents" lodged on 2 March 2023. That material included the evidence that was before the Tribunal, some submissions lodged as part of the appeal and an annotated transcript of the hearing before the Tribunal. JHA did not take issue with the accuracy of those extracts of the transcript included within the narrative provided by the appellant.

Reply to Appeal and JHA's Submissions and Evidence

JHA lodged its Reply to Appeal on 9 February 2023. As stated above, the Reply to Appeal included a separate document described as "Reply to Extension of Time". JHA also lodged with its Reply to Appeal a separate document described as "Reply to Leave to Appeal" of 6 pages in which JHA opposed the appellant's application for leave to appeal. Also included with the Reply to Appeal also another document of 6 pages described as "Reply to Grounds of Appeal".
At the hearing of the appeal on 16 March 2023, JHA provided a document described as "Response to Notice of Appeal" of 11 pages referred to as "Bundle A" together with a "Defence" of 9 pages plus attachments (Appendices A to H) referred to as "Bundle B". Neither Bundle A nor Bundle B appear to have been lodged with the Registry before the hearing.
No objection was taken to us receiving those documents. Bundle B was said to have been provided to the Tribunal at or before the hearing below. Bundle A appears to be a reformulation of the three separate documents referred to above that were lodged with the Reply to Appeal dealing with JHA's opposition to the extension of time, opposition to the application for leave to appeal and JHA's substantive submissions in response to the grounds of appeal.
We allowed JHA to rely on that material despite its lateness and we have treated Bundle A as a consolidated submission effectively replacing the earlier three separate submissions lodged with the Reply to Appeal.
JHA's submission in "Response to Notice of Appeal" comprising Bundle A, contended (in summary and paraphrased): 1. There is no basis to find actual or apprehended bias by the Tribunal. The Member was dealing with a party that repeatedly attempted to submit "copious amounts of non-probative evidence" and the "excessive interventions" by the Tribunal did not meet the threshold for bias in Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530; [2019] FCAFC 144; 2. Section 38(5) of the NCAT Act is qualified by what is a "reasonable opportunity" to be heard; 3. Section 36 of the NCAT Act does not contemplate hearings becoming "bogged down" in copious amounts of non-probative evidence. Section 38(6)(c) of the NCAT Act only requires the Tribunal to allow parties to present their respective cases for "the periods of time that it determines is reasonably necessary for the fair and adequate presentation of their case"; 4. There is no "logical connection" between the alleged bias and the merits of the appellant's case. There was no obligation for the Tribunal to require Mr Condie for cross-examination. The appellant was obliged to manage the conduct of her own case. The appeal "revolves around the Appellant's attempt to submit non-probative unqualified expert evidence …". The "non-probative and unqualified expert evidence" adduced by the appellant should have had no weight given to it by the Tribunal; 5. The common law principles of procedural fairness were extended to the appellant: this included allowing the appellant's verbal submissions to dominate the hearing time; she was afforded (but declined) the opportunity of obtaining expert evidence and given extensions to submit her evidence; and adjustments were made at the hearing to accommodate the appellant's hearing disability, including a change of seats, increasing the audio volume and granting a recess due to the appellant's anxiety 6. No decision was made by the Tribunal during the recess and the only exchange between the Tribunal and a representative of JHA at that time was in relation to an inquiry about a page reference that was "mentioned earlier".
At the hearing of the appeal, the respondent submitted that the soil test was obtained by the appellant and not JHA. The defects in the soil test only became apparent during the construction process and the best course of action was to continue with drilling until the piling contractor reached firm ground. Torque testing was required if the expected depth of 3.6m for structural depth was not found. Torque testing at the time of the construction revealed deeper piers were required at extra cost to the appellant. The appellant was given that advice and rejected it.

Submissions and Evidence

In our consideration of the issues on appeal, we have had regard to the Tribunal's Reasons and the evidence before us, as well as the parties' written submissions referred to above and the oral submissions delivered at the hearing.

Statutory basis of internal appeals

Internal appeals may be made as of a right on a question of law or otherwise with leave (that is, with the permission) of the Appeal Panel. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out a non-exclusive list of questions of law such as whether there has been a failure to provide proper reasons, whether the Tribunal identified the wrong issue or asked a wrong question and whether a wrong principle of law had been applied.
An error of law will also occur where there is a material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" that may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]-[25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [22]; DVE18 v Minister for Home Affairs (2020) 276 FCR 401; [2020] FCAFC 83 at [34]; followed by the Appeal Panel in Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 (Goncalves) at [9(2)].
A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence so as to raise a question of law. By s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance: Goncalves at [28]; Croghan v Rees [2021] NSWCATAP 328 at [40].
Where, as in this case, the appellant is self-represented, it is appropriate for the Appeal Panel to review the stated grounds of appeal, the material provided by the parties and the Tribunal's decision which is being challenged to ascertain whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: Cominos v Di Rico [2016] NSWCATAP 5 at [13]. In other circumstances, where a party is legally represented, it is expected that a notice of appeal will properly identify a question of law as explained in recent authority: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [58]-[59]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [26] (Leeming JA; with Meagher JA at [1] and Griffiths AJA at [75] agreeing); TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 at [20].
An internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]:

Leave to Appeal

The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that the decision of the Tribunal under appeal was not fair and equitable or the decision of the Tribunal under appeal was against the weight of evidence or there was significant new evidence that was not reasonably available at the time the proceedings under appeal were being dealt with.
In the Appeal Panel's decision in Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at paragraph [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where there was a significant possibility or a chance that was fairly open, that a different and more favourable result would have been achieved for the appellant had the relevant circumstances in paragraphs (a) or (b) of cl 12(1) not occurred or if the fresh evidence under paragraph (c) of cl 12(1) had been before the Tribunal at first instance.
Even if an appellant from the decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal. In the Appeal Panel's decision of Collins v Urban, the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in certain matters.
Those types of matters include issues of principle, questions of public importance, an injustice which is reasonably clear so that it would be unjust to allow the finding to stand, a factual error that was unreasonably arrived at and clearly mistaken or the Tribunal having gone about the fact-finding process 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.

Questions of law

Having reviewed the material to which we have referred above, we are satisfied that leave to appeal is not required because the appeal raises the following questions of law: 1. Whether the Tribunal's reasons were adequate; 2. Whether there was a denial of procedural fairness; and/or 3. Whether there was a constructive failure to exercise jurisdiction.

Relevant principles - inadequate reasons

In New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr) two members of the New South Wales Court of Appeal raised but did not decide the question of whether there is any duty, whether statutory or otherwise, for the Tribunal to give reasons for a decision in the absence of a request from a party under s 62(2) of the NCAT Act: Bell P at [54], Ward JA at [110-[114]. Bell P at [55] observed that it is not unreasonable to suppose that s 62(3) of the NCAT Act supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s 62(2) of the NCAT Act, and that the balance of his reasons proceeded on that basis.
Even though there is no other express statutory duty to give reasons set out in the NCAT Act (other than pursuant to cl 11 of Sch 6 which related to decisions of the Tribunal in the Guardianship Division), the Tribunal nonetheless endeavours, as a matter of good practice, to provide reasons for final or contested decisions: NCAT Policy 2, Publishing Reasons for Decisions, at [5]-[6].
Since Orr, the Appeal Panel has proceeded on the basis that an appeal on the ground of the failure to provide adequate reasons where there was no request for reasons raises a question of law: Meacham v Commissioner of Police [2020] NSWCATAP 107.
The features that are required for reasons to be adequate are set out in s 62(3) of the NCAT Act and provide some guidance as to the detail to be supplied in a decision by the Tribunal, such as the decision the subject of this appeal. Section 62(3) states: (3) A written statement of reasons for the purposes of this section must set out the following - (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.

Adequacy of the Tribunal's reasons

On 7 November 2019, when the piling company engaged by the appellant did not achieve the expected bearing capacity depth at 3.6m or the specified torque, the drilling continued to a depth of 8.5m and the specified minimum torque was still not achieved. The significance of this required some consideration by the Tribunal, in terms of its relevance to the appellant's breach of contract case, including the fact that in reliance on the expertise of JHA, the appellant had ordered 46 piers at 3.6m lengths for installation by Midcoast.
The Tribunal should have but did not explore the issues and the evidence going to the question of whether there had been a breach of contract, including for example the evidence of Midcoast and Douglas Partners who were both independently of the view that screw piling was inappropriate for this site and that Douglas partners determined that underlying hard soil/rock on the site was at a depth of between 10.3m and 12.2m.
In our view, in its Reasons, the Tribunal did not fully assess or evaluate the appellant's evidence and her contentions to an extent that was required to demonstrate an adequate or sufficient process of reasoning to have dismissed the Application on the basis that the Tribunal was not satisfied that the appellant failed to discharge her onus of proof to the civil standard, being on the balance of probabilities.
The complexity of the various technical issues was not addressed in the Reasons. The Tribunal dismissed the Application on three bases: 1. The appellant did not adduce "expert or other cogent evidence" to support her claims; 2. JHA warned about the need for "torque testing" in its drawings; 3. JHA relied upon the appellant's soil tests and it was not required to undertake its own soil testing.
As to the first, namely a lack of "expert or other cogent evidence", the appellant alleged a breach of contract. The Tribunal did not expressly address that issue by finding what by way of expert or other evidence was required for the Tribunal to determine that matter. Even in the absence of expert evidence, there was ample evidence that the Tribunal should have considered and evaluated that went directly to that issue. The Tribunal did give the impression that it was dismissive of the appellant's evidence and submissions because she "chose, impermissibly, to be her own expert …".
As to the second matter and JHA's "warnings" of the purported need for "torque testing", as the appellant has submitted, the Tribunal did not engage with the difference between torque that was identified on the later engineering plans and torque testing that was undertaken during installation by the piling company.
As to the third matter, the Tribunal did not deal with the appellant's case that at the time of installation, soil testing was no longer an issue. That was because JHA's contract to undertake Method A where a bearing capacity at an expected depth of 3.6m without torque or a minimum torque of 50KNM was not reached, even at a depth of 8.5m. This required a different process to be undertaken by the piling company involving Method B and torque testing being undertaken by the piling company during the installation work.

Procedural Fairness

The issues raised under this ground in respect of a denial of procedural fairness in part relate to the matters discussed above in relation to the adequacy of the Tribunal's reasons. The appellant contended that the Tribunal's Reasons displayed a lack of understanding of her case and that this was caused, at least in part, by the Tribunal failing to afford her procedural fairness by interrupting her, conducting itself in a way that caused her to become distressed and indisposed and because she was not permitted to read her "summary statement". Therefore, the failure to afford the appellant procedural fairness prevented the appellant from having the opportunity to properly present her case and, in turn, that caused the Tribunal to misunderstand the case put by the appellant.
As explained above, a failure to demonstrate an understanding of a party's case or to address the relevant issues in dispute in its reasons, may constitute a constructive failure by the Tribunal to exercise jurisdiction which will give rise to an error of law.
It is apparent from the transcript extracts and the letters of complaint to the Registrar, that the appellant experienced considerable difficulties in articulating her case and that in part was caused by the Tribunal's apparent frustration in being unable to understand the significance or relevance of some of the appellant's evidence and submissions.
This situation was exacerbated by the lack of a functioning hearing loop. There does certainly appear to have been communication difficulties between the Tribunal and the appellant. The exchanges between the Tribunal and the appellant suggest that the Tribunal either did not listen to or did not understand some of the appellant's submissions and the appellant's presentation became confused and ineffective causing her considerable distress and a concern that she was not able to properly present her case.
The requirement to afford procedural fairness is dependent on what is required to achieve practical justice in the circumstances of the case and "[a]s a general statement … dictates that a court give a party to litigation before it an opportunity to be heard before an order adverse to the party's interests is made": Safe Work NSW v Williams Timber PL and Easy Fall Guttering PL [2021] NSWCCA 233 at [29]; s 38(5)(c) of the NCAT Act.
The matters under consideration were technical and complex. The appellant as a self-represented party without technical qualifications or expertise presented what was in effect a case that was highly suited to having the benefit of expert evidence. However, the absence of expert evidence did not obviate the need for the Tribunal to carefully consider all of the relevant evidence and the case being put by the appellant. That case was that JHA was engaged to provide advice and engineering plans to determine the depth of the screw piers, which it expected to be at a bearing layer of 3.6m or a torque of 50KNM. Torque testing was not a part of JHA's scope of work. Torque testing was undertaken by the piling company at an additional cost to the appellant only because JHA's expected bearing layer at 3.6m was not reached, nor was the requisite torque value of 50KNM obtained, even after drilling to a depth of 8.5m.
For the reasons we have referred to above, the Tribunal's Reasons did not demonstrate a clear understanding or engage in a proper consideration of a major part of the appellant's case, namely that the appellant's contract with JHA meant that there should have been no need for torque testing by the piling company during or as part the pier installation works.
We need not make any finding that the Tribunal denied the appellant procedural fairness or discriminated against the appellant because we are satisfied that whatever the reason, the Tribunal failed to address all relevant considerations in the case advanced by the appellant which amounted to a constructive failure to exercise jurisdiction.

Conclusion

We have determined that the Tribunal's Reasons failed to disclose an adequate process of reasoning for dismissing the appellant's case by not expressly dealing with and discussing the primary contentions and evidence relied upon by the appellant in alleging a breach of contract by JHA.
In our view too there was a constructive failure by the Tribunal to exercise jurisdiction by failing to demonstrate in its Reasons an understanding of the relevant issues raised by the appellant's case. In the circumstances, we need not make any express finding whether this was caused by a denial of procedural fairness or whether the appellant was denied procedural fairness in the resolution of the issues on the appeal.
It is sufficient for us to have decided that this appeal raised questions of law, that leave to appeal was not required and that the issues raised in the proceedings should be remitted to another Tribunal Member for reconsideration.
Section 81 of the NCAT Act provides that in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. The section sets out a list of available orders that includes allowing the appeal, setting aside the primary decision and remitting the whole or any part of the case to the Tribunal for reconsideration, either with or without further evidence and in accordance with the Appeal Panel's directions.
For the reasons discussed above, we have decided that the most appropriate order in this case is to remit the whole of the proceedings for reconsideration by a differently constituted Tribunal. In the interests of justice, the concerns raised by the appellant in this appeal require the matter to be determined by a differently constituted Tribunal: Chapman v Nicolosi (No 2) [2023] NSWCATAP 73 at [5]-[26]. Further, given the complexity of the issues and the Tribunal's comments about the desirability of expert evidence, the parties should be permitted to adduce further evidence for that future hearing, including expert evidence.

Orders

We make the following orders: 1. Extend the time for the lodging of the Notice Appeal to 16 March 2023. 2. Allow the appeal. 3. The orders made in GEN 22/26446 on 26 September 2022 are set aside. 4. Remit proceedings GEN 22/26446 to the Consumer and Commercial Division for hearing by a differently constituted Tribunal on such evidence as the parties may lodge and serve in accordance these reasons and any further directions made by the Tribunal for that hearing. 5. No order as to costs.

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: 19 July 2023

Under the Disability Discrimination Act 1992(Cth)

(2020) 103 NSWLR 479

(2019) 100 NSWLR 578

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