Body Sculpting Clinics (Bondi Junction) Pty Ltd v Kokkinis

Background

1. The background to the dispute was well summarised by the Tribunal as follows: "1. The Applicant attended the Respondent's clinic on or about 29 December 2018 for a consultation about fat reduction treatments. 2. She paid $5,000 for a course of nine treatments involving her outer thighs, upper arms, upper knees and inner knees. 3. The Applicant claims that she received all but one treatment on her upper arms and that the treatments to her thighs left her with an indentation in her left thigh and a lump in her right thigh. Her subsequent statement claimed that she was left with an indentation in her right thigh. 4. The Applicant commenced these proceedings on 4 April 2020 initially seeking a full refund of the price that she paid for the treatments. 5. By the time that the matter came on for hearing the Applicant was claiming the cost of the one treatment that she did not receive in an amount of $599.00 plus the cost of remedial treatment to the right thigh in an amount of $4,400.00. 6. The claim will be dealt with as a consumer claim under the provisions of s.60 of the Australian Consumer Law (ACL) to the extent that the Applicant claims that the Respondent did not provide its services with due care and skill thus causing her damage. 7. The claim was heard by telephone on 10 August 2020 and 13 January 2021. It was listed for hearing on 16 October 2020 but was adjourned due to unforeseen circumstances."
2. The respondent gave evidence and was cross-examined after the Tribunal invited the appellant to ask her questions if it wished. In addition to her testimonial evidence, the respondent tendered a photograph and reports from a cosmetic surgeon, Dr Ajaka, a general practitioner, Dr Loomba, a Dr Wong (whose qualifications were not provided to the Tribunal) and a statutory declaration from a Ms Salem, a beautician and someone who had extensive experience in cryolipolysis (the fat reduction process undertaken by the appellant on the respondent).
3. In its reasons for decision, the Tribunal summarised the salient content of the respondent's testimonial evidence, the photograph, the doctors' reports and the statutory declaration of Ms Salem.
4. The appellant's evidence (admitted and marked as Exhibit B by the Tribunal) comprised a letter to the Applicant dated 26 October seeking to refute her claim, together with a number of annexures. A copy of that letter and annexures was not provided to us on this appeal, but from the Tribunal's reasons it appears the letter was a mixture of both various factual assertions and submissions on the case.
5. In its reasons for decision the Tribunal summarised the salient content of Ex B.
6. At the end of the summary of Ex B the Tribunal said at [55]: "It is noted that at no time did the Respondent seek to cross examine any of the doctors or Ms Salem."
7. The Tribunal then set out the legal principles applicable in the case and its findings.
8. In that part of its reasons for decision, the Tribunal discussed the photographic evidence, said that it was satisfied from the observations of the three doctors and Ms Salem that the respondent did have an indentation in her right thigh, accepted the respondent's evidence that that indentation was first observed following treatment by the appellant to her thighs, and accepted the evidence of Ms Salem that the indentation that she observed in the respondent's thigh was the result of incorrect placement (of a particular instrument) during the appellant's treatment.
9. The Tribunal then said: "75. I do not accept the Respondent's criticism of Ms Salem's qualifications. The Respondent provided no evidence 'from any of its own cryolipolysis technicians as to the correct procedure or to challenge the evidence of Ms Salem. 76. The Respondent did not seek to cross examine Ms Salem to challenge her evidence. 77. The Respondent did not call any medical evidence to challenge the opinions of the three general practitioners relied upon by the Applicant." (Our emphasis)
10. Thus, the Tribunal twice said that the appellant had not sought to cross-examine Ms Salem (at [55] and [76]) and noted once (at [55]) that the appellant had not sought to cross-examine any of the three doctors whose reports were tendered in support of the respondent's case. Those observations, of course, presupposed that the appellant knew it could seek to cross-examine those witnesses.
11. The Tribunal then went on to discuss the contents of the doctors' reports and made a finding that the indentation in the respondent's right thigh was caused by a lack of due care and skill by the appellant.
12. The Tribunal then awarded the respondent an amount of $5,274 comprising a reimbursement of $599 for the treatment not received and $4,675 for the cost of remedial treatment to her right thigh.
13. We have listened to the sound recording of the hearing before the Tribunal. The Tribunal did not explain to the appellant (or the respondent) its procedures nor, most particularly, the right to cross-examine the other party's witnesses. The cross-examination of the respondent by the appellant occurred when the Tribunal asked the appellant whether it wished to ask the respondent questions. It occurred after the following exchange: "Member: In relation to (the respondent's) statement which is Exhibit A, Mr. Gialouris do you have any questions you wish to ask her in relation the evidence there? Mr. Gialouris: Yes, I do."

The Authorities

1. 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. …"
2. 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.
3. 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."
4. 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."
5. 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.
6. 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."
7. 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.
8. 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.
9. 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.
10. 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."
11. 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.
12. 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.
13. 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."
14. 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.
15. 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."

Decision

1. In the present case, the Tribunal did not explain the Tribunal's procedures to the parties and did not advise them that they may ask to cross-examine the other party's witnesses.
2. It is true that in this case, differently from Gallo and Renda, there had not been any direction that the parties' witnesses attend for cross-examination and neither the doctors nor Ms Salem were present or otherwise available for cross-examination on the day of the hearing. However, in the event that the appellant, having been informed of the procedures of the Tribunal, elected to cross-examine any of the witnesses who were not present, an adjournment would have enabled that cross-examination to occur, as several of the above quoted authorities point out.
3. At the conclusion of the respondent's oral evidence, the Tribunal invited the appellant to ask any questions it had of the respondent, and some cross-examination of her took place. No such invitation was extended to the respondent to cross-examine the author of Ex B (at least to the extent that that document contained evidence of facts).
4. More importantly, at no point did the Tribunal make any mention of the possibility of cross-examination by the appellant of Drs Ajaka, Loomba and Wong, nor of Ms Salem. Yet, the express references to the absence of any request to cross-examine those witnesses at [55] and [76] of the Tribunal's reasons, and the context in which those statements were made, persuade us that the absence of any request by the appellant to cross-examine those witnesses played a not insignificant part in the Tribunal's reasoning process in coming to its conclusions. As the Appeal Panel pointed out in Wilson at [48], absent questions asked of a party's expert witness, the Tribunal may approach that party's evidence as being relevantly unchallenged.
5. In our opinion, the reliance by the Tribunal on the absence of any request to cross-examine in arriving at its conclusions without having informed the appellant of the right to cross-examine, and to ask the appellant whether it wished to ask those witnesses questions, visited a practical injustice upon the appellant. If the Tribunal was going to rely upon the absence of any such request, it should have drawn that to the appellant's attention during the hearing when advising the appellant of the Tribunal's processes and possible consequences if cross-examination did not take place.
6. We have not overlooked the fact that the appellant called no expert evidence of its own, and so it faced a difficult and perhaps insuperable task in seeking to defend itself, at least in relation to the expert evidence, based upon what concessions it might obtain by cross-examination. However, it is not beyond the bounds of possibility that concessions may have been made in cross-examination which would have been of assistance to the appellant.
7. As was settled in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, where there has been a denial of procedural fairness, a new trial should be ordered unless there was no possibility of a different result. In this case, we are unable to say that there is no possibility of a different result had the appellant been given the opportunity to cross-examine Drs Ajaka, Loomba and Wong and Ms Salem.
8. Therefore, we will order a new hearing, but limited to the issues whether: 1. there is an indentation in the respondent's thigh; 2. if there is, was the indentation caused by the appellant's treatment; 3. If so, was the indentation caused by any lack of due care and skill on the part of the appellant.
9. All other determinations made by the Tribunal at first instance should remain. Those include those findings set out in the Tribunal's reasons at [63]-[69], [73] and [84]-[85], [86] first sentence, [88]-[89]. For the avoidance of doubt, the sum of $599 awarded the appellant for the treatment not undertaken should remain, but the liability and quantum for the remedial treatment referred to by Dr Ajaka (in the sum of $4,675) will be open for determination because Dr Ajaka's evidence on that issue may be the subject of challenge in cross-examination.
10. On this appeal the appellant sought to tender evidence, including expert evidence, which it had not sought or obtained for the hearing at first instance. We rejected its tender because the appellant accepted that that evidence did not meet the description of being "not reasonably available" at the hearing before the Tribunal as required by cl 12 of Sch 4 of the NCAT Act. But, whilst a new hearing will correct the practical injustice visited upon the appellant, a new hearing should not provide it with an additional opportunity to that which it had before the first hearing to obtain and tender expert evidence. The appellant made a deliberate forensic decision not to obtain and tender that evidence at the hearing, and it should be held to that decision.
11. Therefore, in fairness to the respondent, this new hearing should be conducted solely on the basis of the evidence already given, together with such evidence as may be adduced in any cross-examination.
12. In due course the Tribunal will make directions, if needed, for the parties to lodge with the Tribunal and serve the documentary evidence and any written submissions they tendered before the Tribunal at first instance. However, we shall make an additional order now for the appellant to lodge and serve a full written transcript of the hearing before the Tribunal for the assistance of the Tribunal hearing the remitted matter.

Orders

1. We make the following orders: 1. Appeal upheld. 2. Order 1 made by the Tribunal on 12 July 2021 is set aside. 3. The matter is remitted to the Tribunal, differently constituted, to be determined in accordance with these reasons. 4. The appellant is to lodge with the Tribunal and serve on the respondent a transcript of the whole of the hearing at first instance (being 10 August 2020 and 13 January 2021) within 28 days of the date of these orders unless that time is extended by the Tribunal.

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: 17 November 2021