BFT International Pty Ltd v Jeffrey Kin Shing Wong t/as Brighton Lawyers

Tribunal proceedings and decision

1. The application was listed for hearing before the Tribunal in 23 October 2019.
2. The Tribunal described the particulars of the appellant's claim in the proceedings as follows: 1. disclosing privileged information to the public after agreeing it would not be disclosed; 2. presenting a statement of claim without the client signing off on its content; 3. not following client's instructions to seek evidence from the opponent; 4. court case handling capability; 5. telling lies about case management; 6. overcharging; 7. presenting an incomplete affidavit for signing.
3. The Tribunal relevantly found that: 1. In relation to the allegation of wrongful disclosure of a privileged document, there was no breach of the consumer guarantee in s. 61 of the ACL. This was because the documentation in question had been given to the prospective landlord prior to the litigation commencing and therefore was in the public domain from that point in time. Moreover, the appellant, the Tribunal found, conceded that he was aware the document was annexed to his affidavit and he signed the affidavit without raising any issue of privilege. Accordingly, by signing the affidavit he waived any right to privilege: see paragraphs 62 and 63 of the Decision. 2. There was no evidence before the Tribunal to support the allegation that there were errors in the amended statement of claim: see paragraph 65 of the Decision. 3. Similarly, there was no evidence to support the allegation that the respondent failed to follow his instructions: see paragraph 65 of the Decision. 4. The allegations about the respondent failing to file and serve evidence was not substantiated. The respondent admitted to the serving of evidence one month after the timetable set by the Local Court. The Tribunal found there was no evidence of the appellant having suffered any loss as a result. Also, the allegation that the respondent did not serve any evidence at all was not supported by any evidence: see paragraphs 66 and 67 of the Decision. 5. The Tribunal was not satisfied that the respondent gave the appellant a guarantee of success. The Tribunal accepted the respondent's evidence in this regard: see paragraph 68 of the Decision. 6. In relation to the allegation that the respondent and the barrister retained did not properly conduct the case in the Local Court, the Tribunal found that the matter was subject to advocate's immunity and could not be the subject of a claim: see paragraphs 69 - 71 of the Decision. 7. In relation to the allegation of overcharging, the Tribunal found that this was not within its jurisdiction and could be the subject of an application to the Supreme Court to have the costs formally assessed: see paragraph 72 of the Decision. 8. In relation to the allegation that the appellant was not shown the annexures to his affidavit at the time of swearing, the Tribunal found that he was aware of the content of the annexures which were referred to in the affidavit. In any event, the Tribunal was not satisfied that the result of the litigation was in any way either, caused by or materially affected by, the fact that he was not provided with all the annexures at the time he swore the affidavit. The Tribunal found that even if the appellant did not have all the annexures in front of him, this was not causative of any outcome of the conclusion of the proceedings that would support a finding that the services were not fit for purpose: see paragraphs 73 - 75 of the Decision. 9. For all of the above reasons, the Tribunal dismissed the appellant's application.

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. 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 Schedule 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: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
5. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
6. In Collins v Urban, the Appeal Panel stated at [84] that 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.

Submissions and evidence

1. In deciding the appeal, we have had regard to the following:

• The Notice of Appeal filed and served on 19 November 2019.
• The Reply to Appeal filed and served on 10 December 2019.
• The appellant's submissions and annexures filed 9 January 2020.
• Respondent's outline of submissions filed 28 January 2020.
• A bundle of documents attached to the respondent's outline of submission enclosing the Affidavit of Jeffrey Wong dated 11 September 2019 and attachments.

Notice of Appeal

1. The Notice of Appeal was lodged on 19 November 2019, which is within the 28 day time period specified in cl 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules).
2. The appellant's Notice of Appeal purports to set out grounds of appeal based upon an annexure to the document. This annexure takes issue in a discursive manner with several paragraphs of the Decision.
3. In this document, the appellant does not always seek to differentiate between errors of fact and errors of law. In the section of the Notice of Appeal dealing with leave to appeal, the appellant seeks leave to appeal. In support of why the Appeal Panel should grant leave to appeal, the appellant states that there has been a clear case of "miscarriage of justice". The appellant states: "As I am not a legal professional, only one of many public member (lay person), I will never ever be in a position to tell the difference between the question of law and fact."
4. In support of his claim to be granted leave to appeal, the appellant asserts the Decision was not fair and equitable. In support of this, he relies upon the document attached to the Notice of Appeal, which also allegedly sets out his grounds of appeal. The appellant also asserts in the Notice of Appeal that the Decision of the Tribunal was against the weight of evidence.
5. In answer to the question: "What evidence should the Tribunal have given more weight to and why?", the appellant states: "All the evidence presented and the supplementary evidence submitted right before the Decision was made on 23 October 2019". At the section entitled "Decision of the Tribunal against the weight of evidence?" "What evidence did you give at the hearing? What documents did you show the Tribunal?" the appellant states as follows: 1 The respondent's own admissions that he didn't conduct cross examination during the hearing, however, the member you ignore this completely; 2 There has been a clear breach in handling the privileged information, however, the member has ignored that evidence by way of testifying (the respondent didn't even argue that). 3 The member on multiple occasion in her decision about the assertion that the complaint was not about negligence despite of that was integral part of my original complaint to the NCAT. 4 All the evidence was duly submitted and presented at the hearing.
6. On 12 December 2019 the Appeal Panel, constituted by M. Harrowell, Deputy President, made the following directions: "1. The Appellant is to lodge with the Tribunal and provide to the Respondent by 10 January 2020: (a) all the evidence provided to the Tribunal below on which it is intended to rely; (b) the Appellant's written submissions in support of the appeal; and (c) the sound recording of the hearing at first instance [if] what happened at the hearing is being relied on and a typed copy of the relevant parts."
7. As stated above, the appellant filed its submissions along with copies of some exhibits upon which it intended to rely. The submissions were 14 pages long and continued again in a discursive fashion criticising various paragraphs of the Tribunal's Decision. The appellant in the submissions appears to be restating each of the arguments it ran before the Tribunal and seeking to overturn each of the findings of the Tribunal which we have summarised above.
8. In light of the fact that the appellant was unrepresented and has been unrepresented throughout the appeal, we have considered that the fairest course is to proceed to deal with the submissions filed with a view to discerning what the grounds of appeal are and whether they can be interpreted as questions of law or questions of fact upon which leave to appeal is required. The most sensible way of doing this is to summarise the submissions of the appellant by reference to each of the particulars of the appellants claim and the relevant findings of the Tribunal below.

Disclosure of Privileged Document

1. First, the appellant refers to paragraph 16 of the Decision, where the Tribunal states there is no translation of an email which is written in Mandarin. The appellant submits that there was evidence of this supported by the materials before the Tribunal. However, this evidence was not taken into the Tribunal's consideration.
2. The appellant does not refer to any evidence or materials specifically. Further, the only evidence the appellant put before the Appeal Panel are Exhibits A, D, G and P, which were annexed to the appellant's submissions.
3. The directions of the Appeal Panel were clear that any evidence intended to be relied upon by the appellant was to be provided to the Appeal Panel and the respondent. The Exhibits mentioned do not evidence any translation.
4. This ground of appeal does not involve any error of law. We are not satisfied on the material filed by the appellant and the submissions made that there was any error in the challenged finding or statement of the Tribunal and hence, we decline to grant leave to challenge this finding.
5. Secondly, the appellant submits that the fact that the respondent has included the privileged document in subsequent filings has broken the privilege "which was overlooked or "ignored" by the Member, of which is material and I believe it should be viewed as an error of law that has occurred (disregarding relevant consideration)".
6. Assuming this to be an error of law for which leave is not required, in our view the Tribunal did not overlook or ignore this consideration. It is clear that the Tribunal below was aware that the allegedly privileged document was annexed by the respondent in the appellant's affidavit. The conclusion of the Tribunal that the material was not at that time privileged because it had already been given to a third party, the landlord, demonstrates that the Tribunal did not overlook or ignore this fact. We are also not satisfied that there was any error in the conclusion that the material was not privileged at that time.
7. Thirdly, the appellant complains about the statement at paragraph 17 of the Decision that the respondent subsequently annexed the allegedly privileged document to the appellant's affidavit. The appellant submits that, "the Member had no available evidence, to date, that this was annexed, which I believe is an act of making a decision based on no evidence, which is an error of law".
8. Assuming this to be an error of law, in order to make the submission out, the Appeal Panel would need to have all of the evidence below in order to conclude whether or not there was no available evidence for the finding. As stated above, the appellant only put limited material before the Appeal Panel. Accordingly, we are not in a position to be satisfied that the Tribunal did not have available evidence to support this finding of fact.
9. Fourthly, the Appellant takes issue with the statement in paragraph 62 of the Decision that "in any event, there is no doubt the documentation had been given to the prospective landlord prior to the litigation commencing. It therefore was in the public domain from that point in time". The appellant's submission in this regard was as follows: 1. The Member has replied [sic - relied] upon her assumption that the terms and conditions between BFT and the third party, which is not a party in any way or shape to this proceeding before the Tribunal, would automatically allow the contents of this form be published to the public. 2. The Member has taken into account of a relevant consideration (in this case, a separate contractual arrangement to which the Member has no exposure). 3. The Member has failed to address the fact that Brighton Lawyers have already admitted the disclosure of such privileged document. 4. The Member has made a finding/ruling based upon "no evidence".
10. Points 1 and 2 do not affect or cause us to doubt the correctness of the Tribunal's conclusion in this regard. We are unable to uphold the contention in point 3, in the absence of evidence of the alleged admission by Brighton Lawyers. In any event, the disclosure of the document is not in dispute. The issue concerns whether or not the document was privileged at the time.
11. We note the conclusion and finding of the Tribunal, at paragraph 63, that the appellant signed his affidavit with knowledge that the relevant document was annexed to it there by knowing it would be put in the public domain. As stated below, nothing in the appellant's submissions or materials causes us to doubt this finding. This finding is fatal to any complaint being made by the appellant as to an allegedly privileged document being used without his consent.
12. Finally, we are unable to uphold the submission that the Tribunal made its findings at paragraphs 42 and 63 of the Decision based upon "no evidence", in the absence of the full evidentiary material that was before the Tribunal being placed before the Appeal Panel.
13. In respect of the Tribunal's conclusion on the allegation of using a privileged document without instructions, the appellant also submitted that the Tribunal "has not explicitly explained what laws, if any, have been applied that rendered her conclusions (the form would have been out in public)". We do not agree that there was an absence of relevant reasoning in the statement of the Tribunal in this regard. There was no necessity for the Tribunal to explicitly explain what laws was being relied upon in its conclusion in this regard.
14. Nextly, the appellant referred to paragraph 63 of the Decision where the Tribunal stated: "Moreover, the Applicant conceded he was aware the document was annexed to his affidavit dated 17.06.17 when he signed the affidavit without raising any issue of privilege. Accordingly, by signing the affidavit he waived any right to privilege."
15. The appellant submitted "that the Member has totally ignored the evidence before the Tribunal". The appellant also suggested the Tribunal's decision was not fair and equitable and against the weight of the evidence before the Tribunal.
16. We note this is a challenge to a finding of fact and requires leave to appeal. In the absence of reference to specific evidence said to be before the Tribunal and overlooked or ignored or not given proper weight, we are unable to uphold this submission. Accordingly, we decline to grant leave to appeal in respect of this ground.
17. The above reasons, we reject these grounds of appeal.

Presenting a Statement of Claim with errors and without the client signing off on its content

1. The appellant refers to paragraph 19 of the Decision where the Tribunal stated the appellant claimed the Amended Statement of Claim contains errors. The appellant contended this was erroneous and that he never asserted the Amended Statement of Claim contained errors because he had never seen the Amended Statement of Claim.
2. In the absence of the parties' submissions and transcript of the proceedings before the Tribunal being placed before the Appeal Panel, we are unable to uphold this submission. In any event, we are satisfied that nothing of significance or relevance turns on this issue. It is of no consequence if the Tribunal has rejected a contention which the appellant now asserts was not a contention it was in fact asserting.
3. Accordingly, we reject this ground of appeal.

Failure to follow client's instructions

1. The Tribunal's conclusions in this regard are stated at paragraph 20 of the Decision as follows: "20. The applicant did not give any evidence in relation to this particular allegation. Nor was there any documentary evidence provided in relation to this claim."
2. The appellant, as we understand it, submitted this conclusion was incorrect as the appellant had contended that he had instructed the respondent not to disclose the privileged documents which the respondent did in fact do and he also instructed the respondent to exchange evidence before the hearing, which he did not do. The appellant submitted that "all of which was contained in the documents lodged with" the Tribunal.
3. In relation to the challenge to the finding of the Tribunal concerning the appellant's instruction not to disclose privileged documentation, we have already dealt with and rejected this submission above.
4. The appellant alleges that there was evidence before the Tribunal that he instructed the respondent to exchange evidence before the hearing which was overlooked or ignored by the Tribunal. In the absence of any specific reference to such evidence which is before the Appeal Panel, we are unable to uphold this submission. In addition, we note the finding of the Tribunal, which we see no basis for overturning, that any late filing of evidence did not cause any prejudice to the conduct of the appellant's case.
5. Finally, the appellant submitted that exhibit G, which was placed before the Tribunal, demonstrated a failure to follow his instructions which was not considered by the Tribunal. Exhibit G is a response by the respondent to criticism by the appellant as to the lawyers handling of his case. It does not evidence any failure to follow instructions.
6. Accordingly, we reject this ground of appeal.

Poor case management and lying about case management

1. The appellant's submission in respect of these two particulars of his claim focused firstly on paragraphs 21 to 24 of the Decision which are as follows: ''21. The applicant claims the respondent failed to properly case manage this application and he lied about the filing and serving of evidence. 22. The applicant has in his evidence an email dated 06.07.17 to whom Mr Wong is the only recipient. The email is from the partner of the defendant's law firm and a copy is "cc'ed'' to the junior solicitor at the defendant's law firm. 23. The email has not been sent to either the defendant or the applicant. The applicant said the director of the defendant company Megaroma Pty Ltd, a person he could only identify as "Frankie" sent the email. He was unable to produce the copy of the email from Frankie, nor was he able to say with any precision the date the email came into his possession. 24. The email from the defendant's solicitor criticises his opponent about procedural matters and lack of diligence in complying with some directions for the filing of a notice of motion, which was filed two days late."
2. The appellant submitted that: "the Member has clearly shown her bias against BFT in that Brighton Lawyers didn't provide documents (as directed by NCAT pasted below) within the directed timeframe as per NCAT's records. . . . Whereas BFT did everything it was asked to do in the way prescribed, the Member was trying to delegitimizing this evidence (an email) from the third-party on technical ground. How come the Member didn't apply the same to BFT which could have allowed it to resubmit the email (in the way the Member deemed as admissible). If this is not characterised as procedural unfairness, what it is?"
3. As we understand the above submission, there appeared to be two components to it: an allegation of bias and an allegation of procedural unfairness. The allegation of bias is based upon a suggestion that the appellant complied with procedural directions whilst the respondent did not. First, insufficient material has been placed before the Appeal Panel which would allow it to conclude that the respondent did not comply with procedural directions made by the Tribunal below. Secondly, and in any event, we are not satisfied that this demonstrates bias by the Tribunal. Accordingly we reject this ground of appeal.
4. The allegation of procedural unfairness is difficult to fully discern on the basis of the above submission. The suggestion seems to be the Tribunal should have allowed the appellant to "resubmit the email", meaning the copy of the email from Frankie, which would have rendered the relevant evidence admissible.
5. We reject this submission. There is no obligation upon the Tribunal to provide advice to a party on the form of its evidence or what further evidence it should lead. Further, the relevant evidence appears to be the evidence from the defendant's solicitor which the Tribunal did take into account and considered as admissible before it. Accordingly, nothing appears to turn on this matter.
6. The appellant, nextly, took issue with the conclusion of the Tribunal at paragraph 66 of the Decision that there "is no evidence of the Applicant having suffered any loss as a result of the late service of the material. The hearing date was not delayed". The appellant submitted there was relevant evidence provided to support such claim; however, this evidence was not taken into consideration at all by the Member, which, the appellant contended, is a form of error of law.
7. Again, in the absence of specific reference to the relevant evidence which in turn is before the Appeal Panel, the Panel is unable to uphold this submission. Accordingly, this ground of appeal is rejected.
8. The Appellant took issue with paragraph 67 of the Decision where the Tribunal referred to the appellant's statement that he did not believe the respondent served any evidence at all. The Tribunal found this allegation was not supported by any evidence.
9. The appellant submitted that he did submit that no Agreed Facts Sheet was filed at the Local Court hearing and one cannot produce something which was not done or delivered. We note that such a document does not constitute evidence. Accordingly, this submission does not disclose any error in the actual finding of the Tribunal as stated at paragraph 67 of the Decision. Accordingly, we reject this ground of appeal.
10. The appellant seeks to call into question paragraph 69 of the Decision which is as follows: "The Applicant made several allegations concerning the manner in which the proceedings were conducted in the Local Court by the Respondent and the Barrister. There exists advocates' immunity which provides lawyers with immunity from suit in relation to claims arising out of the conduct of the litigation. The rationale behind the immunity is that it ensures certainty and finality of judicial decisions."
11. The appellant contended that this conclusion was "against the weight of relevant evidence before the Tribunal" and the Member chose not to take into account relevant information. The appellant did not provide any further details or reference to any evidence in particular in the support of these submissions.
12. Accordingly, we are unable to uphold this submission and we reject this ground of appeal and to the extent that leave to appeal is required, we decline to grant such leave.
13. Finally, the appellant disputed the statements by the Tribunal below that the appellant was not making any allegations of negligence. The appellant contended that he did make several claims as to the lawyers being negligent. There was no specific reference to any submission, application or transcript of proceedings below in support of this claim. Accordingly, we are unable to uphold this submission.
14. In addition, we note the Tribunal at paragraph 69 of the Decision makes reference to the appellant making several allegations concerning the manner in which the proceedings were conducted by the respondent and the barrister. The Tribunal concluded that the respondent had the benefit of advocate's immunity. This conclusion would equally apply to any assertion that the respondent was negligent in the manner in which the proceedings were conducted.
15. Accordingly, we reject these grounds of appeal.

Overcharging

1. The appellant submitted that the Tribunal's conclusion that the question of over-charging was not within the jurisdiction of the Tribunal constituted "jurisdictional error (denial of the very existence of jurisdiction)".
2. The Appeal Panel notes that the allegation of overcharging, as referred to in paragraphs 30-33 of the Tribunal's Decision, concerned overcharging by the barrister retained on his behalf, Mr Tam, when he appeared on the Notice of Motion. We note Mr Tam was not a party to the proceedings. In our view there was no error in the conclusion of the Tribunal that this allegation could not properly be the subject of determination by the Tribunal in an application alleging contravention of s.61 of the ACL by the respondent.
3. Accordingly, we reject this ground of appeal.

Asked to sign an incomplete affidavit

1. The appellant seeks to dispute the finding of the Tribunal at paragraph 74 of the Decision, that the appellant was aware of the content of the annexures, which were referred to in the affidavit at the time the affidavit was sworn. Relevantly, the appellant submitted that Brighton Lawyers' own submissions "suggest that the annexures of the Lease form was not present (would be annexed) at the time of BFT swearing the affidavit".
2. Accordingly, the appellant submitted that the Member "has relied on non-existent evidence and made her decision, which should be subjected to appeal on the grounds of jurisdictional error".
3. In the absence of specific reference to evidence which is placed before the Tribunal and in the absence of the full evidentiary record before the Tribunal being placed before the Appeal Panel, we are unable to uphold this submission. Accordingly, we reject this ground of appeal and to the extent that leave to appeal is required, we decline to grant leave to appeal.

Conclusion

1. For the above reasons, the Appeal shall be dismissed and leave to appeal is refused.

Orders

1. The Orders of the Appeal Panel are as follows: 1. Leave to appeal is refused. 2. Appeal is dismissed.

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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: 27 February 2020