Body Sculpting Clinics (Bondi Junction) Pty Ltd v Kokkinis

The Authorities

In relation to courts and procedural fairness, the position was summarised in Hamod v State of New South Wales and Anor [2011] NSWCA 375 by Beazley JA, as Her Excellency then was, and with whom Giles and Whealy JJA agreed, where her Honour held (citations omitted): "[309] Courts have an overriding duty to ensure that a trial is fair ... This entails ensuring that the trial is conducted fairly and in accordance with law ... In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self represented …. In MacPherson Mason J, at [31] 534, noted that: 'A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'.' [310] … [311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case ... [312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised ... Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial ... The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant ... [313] The touchstone at all times remains that of fairness. …"
The Full Court of the Federal Court of Australia expressed views consistent with Hamod, in Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138. A number of Appeal Panel decisions have also touched on this subject in relation to hearings before the Tribunal.
In a considered decision in Gallo v Duflou [2014] NSWCATAP 115, the Appeal Panel considered that the Tribunal was subject to the common law obligation to inform an unrepresented litigant of the right to cross-examine and to ask the litigant whether he or she wished to ask a witness questions, and that that common law obligation was not excluded by s 38(5)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"). The Appeal Panel's reasons were as follows: "28. The starting point for considering the requirements of procedural fairness is the statutory scheme (Williams v NSW Land and Housing Corporation [2012] NSWSC 1022 at [38], [47], [49], [60]). 29. The statutory scheme applicable to this Tribunal is similar to that which applied to the former CTTT. This Tribunal is required to comply with the rules of natural justice when it conducts a hearing (Act, s 38(2); cf the repealed Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("CTTT Act"), s 28(2)). It is also required to take reasonably practicable measures "to ensure that the parties have a reasonable opportunity to be heard" (Act, s 38(5)(c); cf CTTT Act, s 35). 30. The Tribunal has the power to "examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings" and may "call any witness of its own motion" (Act, s 46(1)(a), (c); cf CTTT Act, s 39(1)(a) and (c)). 31. There is a difference between the two statutory schemes in relation to the requirement to explain procedural matters. Section 28(4)(b) of the CTTT Act provided that "[t]he Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand:... (b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings." By contrast, s 38(5)(b) of the Act provides that "[t]he Tribunal is to take such measures as are reasonably practicable... (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings" (emphasis added). 32. The words "if requested to do so" might be taken to suggest that the Tribunal does not have a duty to explain to a party that they may cross examine the other side's witnesses unless the party asks the Tribunal whether they may cross examine. However, in our view, that interpretation of the provision is not warranted. 33. Where a party is unrepresented, a court or tribunal has a common law duty to ensure that that party understands that they may cross examine the other party and that party's witnesses (subject of course to any contrary statutory provision): Lee v Cha [2008] NSWCA 13, Basten JA at [48]-[49]; Norfeld Pty Ltd v Jones trading as Watermark Patent & Trademark Attorneys [2014] NSWSC 992, Hamill J at [92]-[96]. This is particularly so where the absence of an understanding of a procedural matter adversely affects a party's opportunity to be heard. 34. In the case of In the Marriage of N and M L Johnson (1997) 22 Fam LR 141 at 115, Ellis, Baker and Lindenmayer JJ commented: "In the unreported decision of C and O (Fam C of A, Full Court, 18 March 1996, unreported) the Full Court of this Court, at p 22 held: 'This ground does however raise the wider issue as to under what circumstances the court is able to give assistance to an unrepresented litigant in the course of proceedings before it. Clearly a trial judge would be obliged to inform a litigant in person of the manner in which the trial is to proceed, the order of the calling of witnesses and the right which he or she has to cross-examine witnesses. Similarly, I am of the opinion that a trial judge should explain to a litigant in person any matters of procedure relative to the litigation and generally assist him or her by taking basic information from witnesses called, such as, name address and occupation and then indicating to him or her as the trial proceeds when he or she may ask questions, whether in chief or in cross-examination and when final submissions are to be made.'" 35. Thus, the Full Court of the Family Court has recognised a judicial obligation to inform an unrepresented litigant of the right to cross-examine and to ask the litigant whether he or she wishes to ask a witness questions. That common law obligation also applies to this Tribunal and is not, in our view, excluded by s 38(5)(b) of the Act where assistance is not directly requested. 36. In the circumstances of this case, the rules of natural justice required the Tribunal to explain to the appellant that he had a right to question the respondent's witnesses, and to give him some explanation of "what the process was and why it was important" (Williams v NSW Land and Housing Corporation [2012] NSWSC 1022 at [47]). If the Tribunal had done this, the appellant would then have had an opportunity to consider whether to request that those witnesses be made available for cross examination, and whether to request an adjournment so that this could occur. 37. The appellant was entitled to expect that the author of the report and the letter relied upon by the respondent would come to the hearing, because the material provided to both parties by the Tribunal prior to the hearing stated: "If you are relying on witnesses, those witnesses must attend". 38. The Tribunal was put on notice, when Mr Carter was giving evidence, of his view that he could communicate information to the author of the expert report which might cause the author to change his expert opinion. 39. The respondent was given an opportunity to cross examine Mr Carter, and did so. This is not a case like Cheung v Yang [2013] NSWSC 1694 where neither party cross-examined the other's witnesses. Mr Carter's evidence did not comply with the Tribunal's procedural direction concerning expert witnesses, but Mr Carter nevertheless had some expertise and commented on the validity of the findings in the expert report. Thus, the person the appellant put forward as having some expertise as to the cause of the damage to the respondent's pool was cross-examined, and the respondent's expert was not available for cross-examination. This was not procedurally fair. 40. The expert evidence which Mr Carter challenged was critical to the finding that the appellant was responsible for the damage to the respondent's pool. This again makes the case unlike Cheung v Yang [2013] NSWSC 1694, where the evidence which could have been challenged was not important for the outcome of the case. 41. In the absence of an explanation from the Tribunal that there was, or may be, a right to cross examine the respondent's witnesses, and of the purpose of cross examination, the (unrepresented) appellant did not understand that he could request an adjournment and/or request that the respondent's witnesses attend for cross examination. This resulted in "practical injustice", given the importance of the expert evidence (Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 214 CLR 1, Gleeson CJ at [37]). 42. In these circumstances, the Tribunal did not ensure that the appellant had a reasonable opportunity to be heard, as it was required to do by s 38(2) and 38(5)(c) of the Act. This was an error of law."
In the case of Cheung v Yang [2013] NSWSC 1694, referred to by the Appeal Panel in Gallo at [39] and [40], Harrison J said that Mr Cheung had not been denied procedural fairness in circumstances where the Consumer, Trader and Tenancy Tribunal had directed that there was to be no cross-examination of any witnesses in the proceedings. His Honour said: "59. … The only witnesses that Mr Cheung identified as a potential candidate for cross-examination was Mr Bae, and then only on the question of some relatively small amounts paid to him for plumbing and electrical work. Denying Mr Cheung the opportunity to cross-examine him would not attract a legitimate complaint in the circumstances, as well for the reason that the contest about the quantum of the cost of the works effectively disappeared in the wake of the Tribunal's acceptance of the value of the works performed by Mr Cheung. 60 It was wholly within the legitimate power of the Tribunal to dispense with cross-examination if it thought fit in accordance with the terms of s 28 of the Act. The only limitation upon its power to do so consists in its obligation to conform to the rules of procedural fairness. Refusing to permit Mr Cheung to cross-examine Mr Bae did not offend those rules."
Thus, whilst never doubting that procedural fairness needed to be applied by the Tribunal, his Honour held that no practical injustice had occurred through the Tribunal's refusal to allow Mr Cheung to cross-examine Mr Bae. This underlies the basal point that not only must procedural unfairness be shown, but an appellant also needs to demonstrate that the procedural unfairness caused some practical injustice.
In Wilson v AR Browning Nominees Pty Ltd t/as Ad-Built; AR Browning Nominees Pty Ltd t/as Ad-Built v Wilson [2015] NSWCATAP 238, the Appeal Panel said: "9. Ms Wilson also says she was not informed of her right to cross-examine the witnesses called by the respondent below. For the reasons set out below, we accept the appeal should be upheld on this ground. … 46. In our opinion, unless the Tribunal can be comfortably satisfied that it is unlikely that any cross examination may produce relevant evidence, or there are other procedural or discretionary reasons to prevent cross examination, the ordinary course which should be taken is for the Tribunal to explain its procedure to the parties (particularly litigants in person), including an explanation of the right to cross examine and the purpose of cross examination in the hearing process. The party may then elect whether to cross examine. Of course, the Tribunal retains control of its procedure, including the breadth, scope of and time allowed for any cross examination. Failing any explanation of the right to cross examine, it is more likely that a conclusion that party was denied procedural fairness may be drawn. … 48. Absent questions asked of a party's expert witness, as in this case, the Tribunal may approach that party's evidence as being relevantly unchallenged. ... As we have observed, if Ms Wilson had cross examined, there may have been material available by which such a challenge could have been mounted. The failure to inform her that she could cross examine the witness cannot therefore be said to have had no likely effect. This failure has resulted in "practical injustice" given the importance of the expert evidence: Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 214 CLR 1 per Gleeson CJ at [37]; Gallo v Duflou ibid at [41]. In that sense we are of the opinion that Ms Wilson was denied procedural fairness."
Thus, the Appeal Panel considered that the ordinary course in the Tribunal would be to explain its procedure to the parties (particularly litigants in person), including an explanation of the right to cross examine and the purpose of cross examination in the hearing process, and that the failure to do so would make it more likely that a finding that that party was denied procedural fairness would be drawn.
The following year, in Renda v Wu [2016] NSWCATAP 238, the Appeal Panel held, at [62]: "62 Where a party is self-represented, a court or tribunal has a common law duty to ensure that that party understands the relevant procedures of the court or tribunal, including those available for cross examination: Lee v Cha [2008] NSWCA 13, Basten JA at [48]-[49]; Norfeld Pty Ltd v Jones trading as Watermark Patent & Trademark Attorneys [2014] NSWSC 992, Hamill J at [92]-[96]; Gallo v Duflou [2014] NSWCATAP 115 at [32]-[36]. We consider that, having embarked upon a determination of the merits of both applications, the Tribunal had an obligation to explain to the tenant that she was entitled to apply to cross examine the agent and the landlord's parents and, in the case of the landlord's parents, to apply for an adjournment for this purpose if necessary. Failing to do so denied her an adequate opportunity to be heard. ..." 63. Unlike the situation in Raslan v Pan [2015] NSWCATAP 12, the lack of an opportunity to cross examine these witnesses constituted a "practical injustice": see Raslan v Pan [2015] NSWCATAP 12 at [28]; Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 214 CLR 1, Gleeson CJ at 13-14 [37]-[38]; Gallo v Duflou [2014] NSWCATAP 115 at [41]. This is because the Tribunal relied upon the evidence of these witnesses to reject the tenant's evidence and to make findings of fact in favour of the landlord which were critical to the determination of both proceedings.
Again, the Appeal Panel held that the Tribunal owed a duty to ensure that the parties understood the relevant procedures of the Tribunal, including that of cross-examination, and that, in that case, practical injustice had occurred. That was because the Tribunal relied upon the evidence of the witnesses not cross-examined to reject the tenant's evidence and to make findings of fact in favour of the landlord which were critical to the determination of both proceedings.
In York v Ken Ross Repairs Mudgee Pty Ltd [2020] NSWCATAP 93, the Appeal Panel said: "84. The Tribunal also has a statutory obligation to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard and to have their submissions considered: NCAT Act, s 38(5)(c). In the circumstances we have described here, that did not occur. 85. The Tribunal did not explain the practice and procedure that it would adopt to the unrepresented parties, and in particular did not explain that either party may ask to be allowed to cross-examine the other party's witnesses. Given the adversarial nature of these proceedings and the significant factual dispute, in the absence of such an explanation the parties were not placed in a position to be able to make an effective choice - see Hamod v State of New South Wales and Anor [2011] NSWCA 375 Beazley, Giles and Whealy JJA at [312] - as to whether they should ask to be allowed to cross-examine the opposing party's witnesses. 86. Since the Tribunal did not take the opportunity to examine or cross-examine witnesses itself [s 46(1)(c) of the NCAT Act], the lack of such an explanation being offered to the parties may have prevented them from having a reasonable opportunity to have their submissions considered, as the primary mechanism for resolving the factual dispute between them had not been engaged in. Had a party asked for leave to cross examine given the very different versions of events given by the parties' witnesses, it is difficult to see how that request could have been refused in the interests of natural justice."
In that case there were significant factual disputes between the parties, and the absence of an explanation about cross-examination denied the appellant the opportunity to make a choice about whether to cross-examine.
Five days after the decision in York was published, a differently constituted Appeal Panel published its considered decision in Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99. In that decision the Appeal Panel noted that the Tribunal is obliged to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings and that the Tribunal may, itself, cross-examine witnesses.
In relation to cross-examination, the Appeal Panel said: "29. It is well-established that a failure by the Tribunal to allow a party an opportunity to cross-examine another party's witness may, in some situations, constitute a denial of procedural fairness: see e.g. Morgan v Shardlan Pty Ltd as Trustee for the Stumar Family Trust t/as Carpet One and Blinds Wagga Wagga [2018] NDSWCATAP 143 ("Shardlan") at [21]; Gallo v Duflou [2014] NSWCATAP 115 at [21] citing Wakim v Mathiew Pty Ltd [2002] NSWSC 405 at [30]. 30. Further, where a party is unrepresented, a failure by the Tribunal to explain its procedures, if requested to do so, may also constitute a denial of procedural fairness, as well as a failure to comply with its obligations under s 38(5) of the NCAT Act: Shardlan at [21]; Lee v Cha [2008] NSWCA 13 at [48] (per Basten JA). This principle has, in some instances, led Appeal Panels in this Tribunal to decide that a failure to inform an unrepresented party that they had a right to cross-examine the other party's witnesses was an error of law (see, for example: Wilson v AR Browning Nominees Pty Ltd t/as Ad-Built; AR Browning Nominees Pty Ltd t/as Ad-Built v Wilson [2015] NSWCATAP 238 at [9], [44]; Renda v Wu [2016] NSWCATAP 238 at [2], [62]). 31. However, cross-examination is not an essential element of an oral hearing, nor is there a rigid rule that fairness always requires cross-examination to be permitted in administrative hearings: Aronson and Groves, Judicial Review of Administrative Action (6th ed 2017) at 612, citing O'Rourke v Miller (1985) 156 CLR 342 at 353 (per Gibbs CJ), Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at 595-596 (per Flick and Perry JJ) and other cases. 32. We referred earlier to s 46 of the NCAT Act which provides power for the Tribunal itself to call, examine and cross-examine witnesses. In comparison to legislation establishing other state civil and administrative tribunals, the NCAT Act does not expressly provide for a general right of the parties to cross-examine or examine witnesses (see e.g. s 102 of the Victorian Civil and Administrative Tribunal Act 1988 (Vic) and s 95 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)). Rather, what is provided for by s 38 of the NCAT Act is that the Tribunal may determine its own procedure in relation to any matter for which the NCAT Act or procedural rules do not provide, and may inquire into and inform itself on any matter in such manner as it sees fit, subject to the rules of natural justice. As Harrison J found in Cheung v Yang [2013] NSWSC 1694 at [60] (in relation to s 28 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), which was in much the same terms), it is wholly within the power of the Tribunal to dispense with cross-examination if it thinks fit, provided it conforms to the rules of procedural fairness. 33. In this case, the Tribunal did advise both parties at the outset of the hearing that they would have an opportunity to "ask questions about the evidence" and "test the evidence" they heard (although it was not clear exactly who they could ask questions of) (see transcript, AB p. 38). It is clear that immediately following Mr Hassarati's oral evidence, the Tribunal did not specifically invite the appellants to ask questions, nor did the Tribunal invite them to do so later in the hearing. To the contrary, it would appear from the transcript provided to us that when Mrs Jannis sought permission to ask questions of Anthony (Hassarati) the Tribunal refused her permission to do so. 34. The Tribunal was in error in not allowing cross-examination and/or failing to offer the appellants with a chance to do so. Our reasons are as follows."
The Appeal Panel's reasons for finding error were, similarly to York, the existence of significant factual differences between the parties' witnesses as to the terms of the contract including the scope of work to be performed. The Appeal Panel said that findings concerning the terms of the contract were critical in determining the claims made by the appellants in their application and that those findings required the Tribunal to resolve the conflict in the evidence just referred to.
That brief review of the authorities establishes, at the risk of oversimplification, that the question of procedural fairness boils down to two essential elements. First, as Beazley JA said in Hamod at [313], the touchstone at all times remains that of fairness. Second, as Gleeson CJ said in Lam (cited in several of the decisions quoted above) the procedural unfairness must result in practical injustice. His Honour said at [37]: "… Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."

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