Bombardieri v Milsom

NCAT Appeal Panel|2022-10-12|Before: Blake AM

Overview

This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 1 July 2022 in proceedings between Eniko Bombardieri (Ms Bombardieri), and Dean Milsom (Mr Milsom). The Tribunal made orders providing for the return of the six pot plants by Mr Milsom to Ms Bombardieri and otherwise dismissed the proceedings (the Tribunal Decision).
We have decided to refuse leave to appeal and dismiss the appeal.

The factual background

Ms Bombardieri is a nurse.
Mr Milsom, who at the time at the relevant events was aged 73 years and has a number of medical conditions, lives at Banora Point (the Milsom residence).
For a period of approximately four months ending in March 2022, Ms Bombardieri lived at the Milsom residence and provided carer services to Mr Milsom.
Disputes arose between Ms Bombardieri and Mr Milsom as to the return of various goods at the Milsom residence which she claimed, and he denied, that she had purchased with her own monies (the uncollected goods).

The Tribunal Decision

In the Tribunal Decision, the Tribunal dealt with Ms Bombardieri's claim under a series of headings: 1. under the heading "CLAIM", it described Ms Bombardieri's claim as being for the return of goods or compensation in the amount of $15,000.00; 2. under the heading "JURISDICTION", it found that the Tribunal has jurisdiction to hear and determine the claim for the return of the uncollected goods; 3. under the heading "RELEVANT LEGISLATION", it set out the definition of "goods" in s 3 and s 31B of the UG Act, and cl 8 of the Uncollected Goods Regulation 2020 (NSW) (UG Regulation); 4. under the heading "FINDINGS", noted that it had considered the filed materials and the sworn oral evidence and submissions of both parties; 5. under the heading "LIVING ARRANGEMENT OF THE PARTIES", it described the circumstances in which the parties met and in which Ms Bombardieri lived at the Milsom residence. The arrangement was not as an intimate domestic or de-facto relationship; 6. under the heading "BLINDS, FLOOR COVERINGS AND CARER'S PAYMENT CLAIMS", it noted that Mr Milsom had submitted bank documents to show his payments for blinds and floor coverings. It found that these items do not fall within the jurisdiction of the Tribunal as 'uncollected goods' and that this part of Ms Bombardieri's claim is dismissed; 7. under the heading "FURNITURE ITEMS", it made the following findings: "1. The Applicant has submitted receipts for the purchase of furniture items including outdoor dining, bedroom furniture and Manchester, shaver, lounge suite and chairs to the total value of $20,057.20. 2. The Respondent has provided bank statements in evidence of 14 x $2,000 cash withdrawals and 1 x $6,000.00, a total of $34,000.00 that occurred at or around the time of the purchase of the furniture items and during the period the Applicant was residing with the Respondent. 3. The Tribunal notes the Respondent has submitted bank statements for the period prior and the period after the time with the Applicant and there are no cash withdrawals for those other times. 4. The Applicant has not produced any bank documents to show the purchases were made from her bank account. 5. The Respondent says that he withdrew the large cash amounts to enable the Applicant to purchase the new furniture for his home and the Applicant put the purchase receipts in her name. 6. The Tribunal is satisfied on the evidence of the Respondent that the furniture was purchased with money withdrawn from his bank account. 7. The Tribunal is not satisfied that the Applicant made any financial contribution to the purchase cost of the furniture and her claim for ownership of the furniture has not been established. 8. The Applicant's claim for return of furniture items is not allowed and is dismissed." 1. under the heading "PERSONAL BELONGINGS", it found that Ms Bombardieri had collected all her personal belongings with the exception of six pot plants; 2. under the heading "PERSONAL BELONGINGS", it found that the Tribunal has no jurisdiction to make orders for costs incurred or losses suffered by Mr Milsom by the actions of Ms Bombardieri.

The history of the appeal

On 26 July 2022, Ms Bombardieri as the appellant commenced proceedings 2022/00218611 against Mr Milsom as the respondent by filing a notice of appeal (the notice of appeal) in which she: 1. challenged the 1 July 2022 orders: "The tribunal has decided that I am entitled only for 6 pot plants. l disagree the decision as I paid for furnishing the house that includes lounge, dining, bedroom furnitures, flooring and blinds. l am requesting for financial reimbursement. 1. set out the following grounds of appeal: "The tribunal did not know that Dean had 3 other bank accounts apart from the one he has provided the court. I still have my rental property for which I can provide the tenant agreement and the rent I have paid so far. It is not possible for me to live in 2 places at the same time. I wonder how he made up those receipts claiming that I boarded in his house. I cannot find his claim on his bank statement copy that he has provided me. I feel this fraud and illegal and I want to take it further to claim my rights. 3 days after he locked me out of his house 3he went to the Tweed Police Station to request a AVO against me to stop me from getting my belongings from his house stating that I was his girl friend and he had a break up with me. The police enquired of me and they declined to provide AVO against me" 1. while crossing the box "No" adjacent to the question "Are you asking for leave?" set out the information under the following headings 1. "Decision not fair and equitable": "Dean never gave me cash anytime. Dean never transferred any money in my account. My bank statement shows all my purchases. I never boarded in his house and so never paid any boarding fees as he claims. Dean never received or gave any receipts as he claims. All the time I have been paying rent for my rental property for which I have attached the copies of the rent receipts." 1. "Decision of the Tribunal against the weight of evidence": "What evidence did you give at the hearing? What documents did you show the Tribunal? He had submitted I bank statement to the court while in reality he has 4 bank accounts that I am aware of. There is no mention of the money paid for groceries in the bank statement that he provided during my stay at his place. I have sent all the receipts from the purchases made by me. Also I have highlighted the same in my account reflecting the same. Enclosed is the copy of my bank card. What evidence did the other party give? What documents did the other party show the Tribunal? Dean has given me 4 pages of bank statement from 1 of his bank account. He was supposed to give me all the copies, but this all I received from him. Also I do not know the other papers that he has given the tribunal. What evidence should the Tribunal have given more weight to? Why? Dean transfers funds between his 4 bank accounts. When I stayed in his house he renovated the kitchen, bought a new stove, painted the inside of the house, bought security screens and doors. He also purchased the materials required to build a retaining wall across the back of his house. None of this was mentioned in his bank statement that he provided me. I wonder from where he got the money for all the above mentioned task. He is also claiming that he paid for the furnishings in the house which is not true." 1. "Significant new evidence is now available that was not reasonably available at the time of the hearing": "What evidence/documents do you now seek to produce to the Tribunal? if you want to rely on documents or statements you must attach copies to this application form. I understood that the tribunal is not aware of Dean's 4 different bank accounts until the hearing. I am sending across copies of my current rental agreement, rent receipts and bank statement showing proof the money with drawn. Why was this evidence (including documents) not available at the time of the hearing? I did not know that he witheld information regarding his 4 different bank accounts and the expense incurred on his house renovations. I am unable to defend myself as am unaware of his lies to the tribunal. I have a witness and she is more than happy to attend the hearing when required. [name and telephone number omitted]" 1. attached documents including: 1. bank statements of various accounts in her name for periods ending prior to 30 March 2022 (the Bombardieri bank statements); 2. photographs of the Milsom residence of which some have captions describing what is depicted (the Bombardieri photographs); 3. bank statements of an account in the name of Mr Milsom for the period from 11 August 2021 to 6 October 2021 (the Milsom bank statements).
On 12 August 2022, the Appeal Panel relevantly made the following procedural orders (the 12 August 2022 orders): " … 2 The Appellant is to lodge with the Appeal Registry and give to the Respondent by 01 September 2022: (a) All the evidence given to the Tribunal at first instance on which it is intended to rely; (b) Any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely; (c) The Appellant's written submissions in support of the appeal; and (d) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing. 3 The Respondent is to lodge with the Appeal Registry and give to the Appellant by 15 September 2022: (a) All the evidence provided to the Tribunal at first instance on which it is intended to rely; (b) If appropriate in response to (b) above, any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely; (c) The Respondent's written submissions in opposition to the appeal; and (d) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Respondent in the appeal, a typed transcript of the relevant parts of the hearing (except to the extent already provided by the Appellant), together with the sound recording of the entire hearing (unless already provided by the Appellant) …"
On 29 August 2022, Mr Milsom filed his reply to of appeal, in which he supported the 1 July 2022 orders for the reasons given in the Tribunal Decision.
On 5 September 2022, Ms Bombardieri filed a bundle of documents (the Bombardieri documents).
On 21 September 2022, Mr Milsom filed a bundle of documents (the Milsom documents).

The hearing of the appeal

On 12 October 2022, we heard the appeal by telephone. Ms Bombardieri and Mr Milsom each represented themselves. There was also an interpreter in the Hungarian language to provide assistance to Ms Bombardieri if required by her.
Ms Bombardieri relied on the Bombardieri bank statements, the Bombardieri photographs and the Bombardieri documents.
Mr Milsom sought to rely on the Milsom documents. As he had not complied with order 3 of the 12 August 2022 orders by giving a copy to Ms Bombardieri, we refused to allow Mr Milsom to rely on the Milsom documents.
In addition to relying on the Bombardieri bank statements, the Bombardieri photographs and the Bombardieri documents, Ms Bombardieri made oral submissions. We indicated to Mr Milsom that we did not need to hear any oral submissions.
At the conclusion of the hearing, we reserved our decision.

The scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
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, which relevantly includes whether there was a failure to afford procedural fairness and whether there has been a failure to provide proper reasons.
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: 1. the decision of the Tribunal under appeal was not fair and equitable (cl 12(1)(a)); or 2. the decision of the Tribunal under appeal was against the weight of evidence (cl 12(1)(b)); 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) (cl 12(1)(c)).
In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [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 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." (emphasis in original)
In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.
The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
In Collins, the Appeal Panel at [84(2)] stated 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."
An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that in the case of an appeal from a decision of the Tribunal an internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision.
In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.

The issues

We are satisfied that the appeal was commenced within the time of 28 days prescribed under r 25(4)(c) of the NCAT Rules.
We have found it difficult to discern in the notice of appeal, and the Bombardieri documents and the oral submissions of Ms Bombardieri any question of law except to the extent referred to in [35(1)] and [35(2)] below. While we accept that Ms Bombardieri is aggrieved by the 1 July 2022 orders and the Tribunal Decision, most of the matters upon which Ms Bombardieri are irrelevant to the issue of whether she should be granted leave to appeal. We have not addressed these irrelevant matters.
Having regard to the principles set out in Cominos at [13], the following issues arise for consideration and determination in this appeal: 1. whether the Tribunal erred in failing to afford procedural fairness to Ms Bombardieri; 2. whether the Tribunal erred in failing to provide proper reasons; 3. whether Ms Bombardieri may have suffered a substantial miscarriage of justice within cl 12(1) of Sch 4 of the NCAT Act, and if so the discretion should be exercised to grant leave to appeal.

Whether the Tribunal erred in failing to afford procedural fairness to Ms Bombardieri

The issue of whether the Tribunal erred in failing to afford procedural fairness to Ms Bombardieri is a question of law in respect of which she has a right of appeal.
During her oral submissions Ms Bombardieri said she had not received Mr Milsom's documents. In response, Mr Milsom said that he had provided to her the documents including the Milsom bank statements which he relied upon at the hearing. She accepted that she had received these documents. In these circumstances the Tribunal did not fail to afford procedural fairness to Ms Bombardieri because she did not receive the documents relied on by Mr Milsom.
As she developed her oral submissions Ms Bombardieri's complaint was that Mr Milson had not relied on bank statements for other accounts in his name. Mr Milson had no obligation to rely on any such bank statements in the proceedings. The Tribunal had no power to require Mr Milson to tender any such bank statements in evidence. Ms Bombardieri could have attempted to require the production of any such bank statements Mr Milson by applying for the issue of a summons for their production pursuant to s 48 of the NCAT Act. In these circumstances the Tribunal did not fail to afford procedural fairness to Ms Bombardieri because Mr Milsom did not tender into evidence any such bank statements.
For these reasons we reject this ground of appeal.

Whether the Tribunal erred in failing to provide proper reasons

The issue of whether the Tribunal erred in failing to provide proper reasons is a question of law in respect of which she has a right of appeal. This issue relates to the finding by the Tribunal that floor coverings, blinds or carer's payment claims were not "uncollected goods" within the meaning of the UG Act.
In NSW Land and Housing Corporation v Orr [2019] 100 NSWLR 578; [2019] NSWCA 231 (Orr) Bell P at [66], [68], [70]-[73] and [77] set out the following principles with respect to the adequacy of reasons of the Tribunal (with Ward JA at [109] agreeing): "[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley)." "[68] In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58]." (emphasis in original) "[70] As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court." (emphasis in original) [71] That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (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, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. [72] Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed. [73] In this context, in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187, Fitzgerald P said of the Queensland Retail Shop Leases Tribunal, adapting the language of Samuels JA in the unreported decision of this Court in Strbak v Newton [1989] NSWCA 202, cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469, that, while such a tribunal: "might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary". It should be noted that Samuels JA in Strbak had been describing the duty of a District Court judge to give reasons as opposed to that of a tribunal member." "[77] These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [14] (Gleeson CJ); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Pozzolanic at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291."
The observations in Orr at [66], [71] and [77] have been recently applied by the Appeal Panel: Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 at [20]-[23]; P8 Auto Ltd t/as European Automotive Ballina v Dolling [2022] NSWCATAP 41 at [18].
Section 3 of the UG Act relevantly contains the following definitions: 3 Definitions In this Act - … uncollected goods means goods that are uncollected as referred to in section 5.
Section 5 of the UG Act when read with cl 4 of the UG Regulation provides for the circumstances when goods are uncollected for the purposes of the UG Act.
We are satisfied that the Tribunal in finding in the Tribunal Decision that blinds, floor coverings and carer's payment claims do not fall within the jurisdiction of the Tribunal as uncollected goods did not meet the minimum acceptable standard for reasons as explained in Orr. There was no basic explanation of the fundamental reasons which led the Tribunal to its conclusion. There was no reference to the definition of "uncollected goods' in ss 3 and 5 of the UG Act when read with cl 4 of the UG Regulation. The reasoning process for this finding was not exposed.
For these reasons we uphold this ground of appeal. However, we have decided to dismiss the appeal relating to blinds, floor coverings and carer's payment claims pursuant to s 81(1)(a) of the NCAT Act. In the light of the Tribunal's notation that Mr Milson had submitted bank documents to show his payments for blinds and floor coverings, and the lack of documentary evidence of Ms Bombardieri having paid the Sutto's invoice and the first and second Border invoices with her own funds, there was insufficient evidence for the Tribunal to have found that Ms Bombardieri was the owner of the blinds and floor coverings. Further, there was no evidence that Ms Bombardieri was the owner of the Milsom Centrelink Report. While the Tribunal failed to provide proper reasons, even if one or more of these items were properly to be characterised as uncollected goods, then Ms Bombardieri's claims in respect of these items would nonetheless have failed on the basis that there was insufficient evidence that she was their owner.

Whether Ms Bombardieri may have suffered a substantial miscarriage of justice within cl 12(1) of Sch 4 of the NCAT Act and if so the discretion should be exercised to grant leave to appeal

We are not satisfied that Ms Bombardieri has established that the Tribunal Decision was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act for the following reasons: 1. so far as her contention that Mr Milsom never gave her cash anytime, the Tribunal found to the contrary; 2. so far as her contention that Mr Milsom never transferred any money into her account, there was no such evidence. The finding of the Tribunal was that the furniture was purchased with money withdrawn from his bank account; 3. so far as her contention that the Bombardieri bank statements show all her purchases, they were not in evidence; 4. so far as her contention that she did not pay any boarding fees, receive any receipts, and was paying rent for her rental property, they do not establish that she was the owner of the uncollected goods.
We are not satisfied that Ms Bombardieri has established that the Tribunal Decision was against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act for the following reasons: 1. in the absence of all the evidence given to the Tribunal at first instance and a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing, as required by order 2(a) and (d) of the 12 August 2022 orders, it is impossible to assess whether the findings of the Tribunal whether the evidence in its totality preponderated so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach; 2. there was no documentary evidence that Ms Bombardieri used any of her funds to purchase any of the uncollected goods.
In the Bombardieri documents Ms Bombardieri provided the following explanation for her failure to tender the Bombardieri bank statements: "WHY THE APPEAL PANEL SHOULD CONSIDER ANY NEW EVIDENCE English is my 2nd language and so made it hard for me to get the evidence. That time I don't know, I must send my Bank Statement, think the receipt is only what I have to give."
In her oral submissions Ms Bombardieri explained that she was not told by the Tribunal that she should rely on the Bombardieri bank statements.
We are not satisfied that Ms Bombardieri has established that the Bombardieri bank statements are significant new evidence which has arisen and were not reasonably available at the time the proceedings were heard within cl 12(1)(c) of Sch 4 of the NCAT Act for the following reasons: 1. we accept that there are entries in the Bombardieri bank statements which record the following payments as having been made by Ms Bombardieri and it may be inferred that these payments were made in payment of particular invoices: 1. $3,000.00 to Sutto's Floor Coverings as recorded in the Sutto's invoice; 2. $456.00 to Amart Furniture in payment of the Amart invoice; 3. $850.00 and $845.00 to Border Blinds Shutters & Awnings in payment of the first and second Border invoices; 4. $2,990.00.00 to Furniture 'N' More in payment of the Furniture 'N' More invoice; 1. there was no evidence before us that the Bombardieri bank statements were unavailable because no person could have reasonably obtained them. On the contrary, they would have been available to Ms Bombardieri at the end of each period covered by each of the Bombardieri bank statements; 2. the written and oral explanations of Ms Bombardieri for her failure to rely on the Bombardieri bank statements do not provide a reason why they are to be characterised as satisfying this criterion. It is an established principle that the duty of a court, and by extension the Tribunal, to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised the Tribunal: see, for example, Zhang v Zhang [2022] NSWSC 924 at [178]. It is surprising that Ms Bombardieri did not seek rely on the Bombardieri bank statements given that she had referred to "bank statement" in her uncollected goods application.
As none of the criteria in cl 12(1) of Sch 4 of the NCAT Act have been satisfied, we are not satisfied that Ms Bombardieri may have suffered a substantial miscarriage of justice.
Even if we had been satisfied that Ms Bombardieri may have suffered a substantial miscarriage of justice, then having regard to the matters in Collins at [84(2)], we would not have exercised the discretion under cl 12(1) of Sch 4 of the NCAT Act to grant leave to appeal against the Tribunal Decision.

Orders

We make the following orders: 1. leave to appeal is refused; 2. the appeal is dismissed.

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: 24 October 2022

Uncollected Goods Regulation 2020(NSW)

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