Croll v Form and Colour Pty Ltd

The Appeal

1. On 3 March 2023 Ms Croll filed a Notice of Appeal against the decisions of the Tribunal in both HB22/36727 and HB22/45182.
2. The Notice of Appeal stated five grounds of appeal, but at the hearing of the appeal Ms Croll's counsel stated that only the first three grounds of appeal were pressed.
3. The three grounds of appeal were clarified in written and oral submissions. The first ground of appeal was that the Tribunal failed to afford procedural fairness to Ms Croll in the following respects: 1. failing to inform Ms Croll of the process of cross-examination or provide her with the opportunity to cross-examine Ms Reid; and 2. failing to permit Ms Croll to give evidence in reply.
4. The second ground of appeal, as clarified in submissions, was that the Tribunal failed to provide reasons and/or that the reasons were inadequate, and, in particular, that the Tribunal's written reasons did not comply with section 62 of the NCAT Act and NCAT Policy 2.
5. Section 62(3) of the NCAT Act provides that a written statement of reasons provided following a request by a party must set out the following: 1. the findings on material questions of fact, referring to the evidence or other material on which those findings were based, 2. the Tribunal's understanding of the applicable law, 3. the reasoning processes that lead the Tribunal to the conclusions it made.
6. NCAT Policy 2, after referring to section 62(3) of the NCAT Act and the express obligation to give reasons for certain types of Guardianship Division decisions, provides at [6]: "Even though there is no other express statutory duty to give reasons set out in the Act, the Tribunal nonetheless endeavours, as a matter of good practice, to provide reasons for final or contested decisions.(Whether there is also a common law duty on the Tribunal to give reasons for some or all of its decisions -as discussed by the NCAT Appeal Panel in Collins v Urban[2014] NSWCATAP 17 at [43] to [64] -is not settled: see NSW Land and Housing Corporation v Orr [2019] NSWCA 231 (per Bell P at [54]-[55], [71]; Ward JA at [111]-[114])."
7. The third ground of appeal was that the Tribunal had made an error of law in determining that Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) applied on the issue of costs instead of section 60 of the NCAT Act.
8. Counsel for Form and Colour ultimately accepted in oral argument that all three grounds of appeal raised questions of law such that leave to appeal was not required. In our view that concession was correctly made.
9. A preliminary question on the hearing of the appeal was whether the Notice of Appeal was lodged outside the time permitted by Rule 25(4) of the NCAT Rules, and, if so, whether the Appeal Panel should grant an extension of time under section 41 of the NCAT Act. Rule 25(4)(c), which applies in this instance, provides that the Notice of 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 (whichever is the later).
10. Although Ms Croll was provided with written reasons at her request on 3 February 2023, she had already been given oral reasons for decision on 22 November 2022. This means that the Notice of Appeal was lodged outside the time permitted by Rule 25(4). However it was understandable in the circumstances that Ms Croll would wait until written reasons had been provided pursuant to her request and she had an opportunity to consider them. At the hearing of the appeal counsel for Form and Colour ultimately did not oppose an extension of time being granted for the Notice of Appeal to be lodged. We will grant an extension of time to lodge the Notice of Appeal to 3 March 2023.

First ground of appeal: procedural fairness

1. In the written and oral submissions made on her behalf, Ms Croll emphasised that the Tribunal did not proceed by inviting the parties to give oral and written evidence and then to make submissions. Instead the Tribunal proceeded by asking Ms Croll and the solicitor for Form and Colour certain questions. The adoption of this procedure occurred in a context in which Ms Croll was self- represented whilst Form and Colour was represented by a solicitor.
2. Counsel for Ms Croll submitted that the adoption of this procedure resulted in procedural unfairness to Ms Croll by the Tribunal in two respects: 1. failing to inform Ms Croll of the process of cross-examination or to provide her with the opportunity to cross-examine Ms Reid; and 2. failing to permit Ms Croll to give evidence in reply.
3. In respect of cross-examination, Ms Reid had provided a witness statement to the Tribunal dated 10 October 2022 which the solicitor for Form and Colour referred to at various times in statements which he made to the Tribunal at the hearing. The statement of Ms Reid was 24 pages long and referred to numerous documents. Although Ms Croll did not inform the Tribunal in express terms that she wished to question Ms Reid, it was submitted that it was clear from the written documents provided by Ms Croll and from statements which she made to the Tribunal that Ms Croll challenged the truthfulness of statements made by Ms Reid.
4. In response to the witness statement of Ms Reid, Ms Croll had provided to the Tribunal a number of documents, including documents entitled "Basis of my Evidence", "Evidence based Claims", "Response to Statement of Wende Reid", "Missing Evidence in Statement of Wende Reid" and "Facts based on Evidence". In these documents, Ms Croll asserts repeatedly that evidence in Ms Reid's witness statement is "false". Ms Croll describes Ms Reid's witness statement as "fabricated lies and contradictions". The challenges to Ms Reid's credibility went to a number of core factual issues including what was said at meetings between Ms Croll and Ms Reid, whether instructions were changed and additional work was requested and the state of repair of the property which Ms Reid recounted in her statement.
5. Counsel for Ms Croll referred to a number of exchanges between the Tribunal Member and Ms Croll, including the following at lines 175-182 in which the Tribunal Member indicated the procedure which he would adopt: "Ms Croll: Am I able to give you more evidence to confirm the budget? General Member: The reason I'm asking questions is because if I simply say, tell your story, and I'm not being critical of you, because you've got a lot on your mind about this. If I say, just tell your story, we can stop you talking at about 3 o'clock today and we can start you again on another day at whatever time and we can go for another two or three hours. I really don't want to do that, because what I'm trying to do is get to the things that address the matters that I've really got to be concerned with."
6. Counsel for Ms Croll also pointed to the following exchange at lines 841-854 in which Ms Croll indicated that she challenged certain evidence of Ms Reid: "Ms Croll: I'm going to address all the issues that they have raised. General Member: Well I don't think you need to address all the issues. Ms Croll: All the incorrect statements. General Member: Sorry? Ms Croll: All the incorrect statements, with no evidence to back up, would that help? General Member: Really, how long are you going to take if you're addressing every single bit of incorrect evidence, I think we'd be here till 4 o'clock wouldn't we? Ms Croll: No, just give me five minutes. General Member: I'll give you five minutes to address the incorrect evidence. I'll then stop you and let you go onto something else. Ms Croll: Okay. General Member: Is that fair? Ms Croll: Okay, all right. General Member: Five minutes, starting now. [Inaudible] to do that timing."
7. On behalf of Ms Croll it was submitted that the failure of the Tribunal to explain to her that she had a right to question Ms Reid and to explain what that process involved and why it was important constituted a breach of a common law duty to ensure procedural fairness and was also in breach of section 38 (2) and (5)(c) of the NCAT Act. Ms Croll referred to Italiano v Carbone [2005] NSWCA 177 at [105]-[106], Lee v Cha [2008] NSWCA 13 at [48]-[49], Norfeld Pty Ltd v Jones [2014] NSWSC 992 at [92]-[96], Gallo v Duflou [2014] NSWCATAP 115 at [33] and Williams v NSW Land and Housing Corporation [2012] NSWSC 1022 at [47].
8. Subsection 38(2) of the NCAT Act provides: "The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
9. Subsection 38 (5)(c) provides: "The Tribunal is 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."
10. In respect of the asserted failure of the Tribunal to permit Ms Croll to give evidence in reply, counsel for Ms Croll referred to the same materials and also to the following exchange at lines 1046-1065: "Ms Croll: Am I able to have a chance to address, what David [the solicitor for Form and Colour] just said? General Member: No. Ms Croll: Why not? General Member: Because you have taken up - you had the benefit of most of the hearing time, and we do not go backwards and forwards, backwards and forward, backwards and forwards. The usual process is that one party gets one go, the other party gets one go and I have given you a chance to respond as well. But I am not going to just - I've been very patient with the timing because I've understood you're there by yourself. But I'm not going to go backwards and forwards because you're only going to want to repeat the same things that you've already said to me. You've had your chance to put your case forward. You've had your chance to respond to the cross-claim and I'm certainly not going to go into that backwards and forwards. Ms Croll: I understand. I just haven't got the experience to bring out all the evidence, the critical ones. General Member: You do not get extra goes because this is your first time here. If everybody who was first time here, got an extra go and an extra go and an extra go, we'd never finish one case. Ms Croll: Okay. Am I able to come back for a second hearing? General Member: No. The hearing's finished…"
11. Counsel for Form and Colour submitted Ms Croll was given the opportunity to take the Tribunal Member to evidence produced by Form and Colour and Ms Croll made submissions about that evidence. Form and Colour submitted that there was no proscriptive obligation on the Tribunal requiring the Tribunal Member to provide advice specifically on the right of a party to cross-examine. In any event, it was submitted that the Tribunal Member provided the guidance required by section 38 of the NCAT Act. Reference was made to the explanation given to Ms Croll at lines 511 - 520: "My function is to go through the evidence and see whether I am satisfied that she was justified up until the time this all fell apart in claiming the initial amount, because you say you want that money back… statements, in one sense, are not any help unless they are supported by specific evidence. Statements that are submissions have to be supported by specific evidence, and I'm looking at the specific evidence and at the moment I'm getting into a very confusing chain… "
12. In oral submissions counsel for Form and Colour also submitted that there was nothing in the transcript to indicate that Ms Croll had stated to the Tribunal that Ms Reid should not be believed.
13. Form and Colour submitted that Ms Croll was afforded procedural fairness but that even if that was wrong, the outcome for Ms Croll in the underlying dispute would remain unchanged. In reply, counsel for Ms Croll submitted that it was impossible to say that it would have made no difference to the outcome if the Tribunal Member had taken the steps which Ms Croll asserts ought to have been taken to afford procedural fairness.

Second ground of appeal: failure to provide reasons/inadequate reasons

1. Ms Croll submitted that her application clearly stated that her claim was based on breach of the consumer guarantees under the Australian Consumer Law (ACL). She submitted that the Tribunal failed to consider the relevant legislation during the hearing or in the oral reasons. In relation to the subsequent written reasons provided by the Tribunal, Ms Croll submitted that the ACL was only referred to in the passages at [4],[17] and [42] to which reference has already been made.
2. Ms Croll submitted that the Tribunal never asked or considered whether Form and Colour breached its obligation under the ACL to provide services with due care and skill and, if so, to identify the appropriate amount of Ms Croll's loss. It was submitted that neither the oral nor the written reasons contained any application of the applicable law nor any legal reasoning or analysis of the evidence under the ACL.
3. Ms Croll criticised the Tribunal for failing to cite any authority in its oral and written reasons and also criticised the Tribunal for taking only approximately 15 minutes after the hearing to deliver its oral reasons.
4. Ms Croll submitted that the Tribunal's reasons did not meet the minimum acceptable standard because they did not set out the applicable legal principles or the Tribunal's reasoning process. It was thus submitted that the reasons did not comply with section 62(3) of the NCAT Act and NCAT Policy 2.
5. Form and Colour submitted that while Ms Croll made reference to the ACL and relied upon it as the source of her entitlement to a refund, in truth Ms Croll was disputing the nature of the agreement reached between the parties and whether she was provided with the services she bargained for in the course of the negotiations. It was submitted that Ms Croll did not bring her claim under the ACL and that it is not the role of the Tribunal to find avenues of relief for an aggrieved party.
6. At the hearing of the appeal, Form and Colour submitted that the parties disagreed as to what Ms Croll's cause of action in fact was, with Form and Colour submitting that Ms Croll had not in fact made a claim for breach of statutory warranties but in truth made a contractual claim for a refund due to non- provision of services. Form and Colour further submitted that the parties also disagreed about the nature of the claim which the Tribunal was actually deciding in its reasons for decision. Form and Colour did not accept that this indicated a lack of clarity in the Tribunal's reasons.
7. Form and Colour submitted that the company's claim against Ms Croll was a claim for payment for services under the Home Building Act 1989 ("HBA"). However counsel for Form and Colour acknowledged that whilst the company contended that the contract with Ms Croll was in writing, the contract was not signed and dated by or on behalf of each of the parties as required by section 7 of the HBA. Counsel acknowledged that no issue in relation to section 7 of the HBA had been raised at the hearing and there was no statement by the Tribunal in its reasons identifying how the Tribunal had jurisdiction to make an order in the company's favour under the HBA. Form and Colour submitted that the Tribunal had jurisdiction to make an order in the company's favour by virtue of section 48K of the HBA.
8. Neither party submitted in relation to the Tribunal's reasons determining Ms Croll's claim that there was any difference in substance between the Tribunal's oral reasons provided on 22 November 2022 and the subsequent written reasons provided on 3 February 2023. This means that it is convenient to consider only the written reasons for determining Ms Croll's claim.

Third ground of appeal: costs

1. Ms Croll submitted that in her claim she sought payment of $22,100 and that in its claim Form and Colour sought a sum up to $14,000. Ms Croll submitted that the claims were made in two separate proceedings and that the Tribunal was in error in these circumstances in combining the amounts of the two claims so as to bring Rule 38 of the NCAT Rules into operation. Ms Croll referred to the decision of the Appeal Panel in Hanave Pty Ltd v Wine Nomad Pty Ltd ( No.2) [2022] NSWCATAP 361.
2. Form and Colour noted that Ms Croll's application had been amended on 12 September 2022 to seek not only a return of $22,100 but also to be relieved of the obligation to pay unpaid invoices totalling up to $14,000. Form and Colour submitted that this meant that Ms Croll's claim was for more than $30,000, thus enlivening Rule 38.
3. In relation to its own claim, Form and Colour conceded at the hearing of the appeal that there had been an error in the Tribunal's approach to costs and that the orders as to costs made by the Tribunal should be seen only as orders for costs on Ms Croll's claim.

First ground of appeal: procedural fairness

1. Section 38 of the NCAT Act makes it clear that, subject to its terms, the Tribunal may determine its own procedure in relation to any matter for which the NCAT Act or the procedural rules do not otherwise make provision. The Tribunal is required by section 38 to proceed with as little formality as the circumstances of the case permit. The Tribunal may decide to proceed on the papers without an oral hearing at all and that does not, of itself, constitute a denial of procedural fairness: Simjanovska v Dogan [2023] NSWCATAP 69 at [95]. Furthermore, if the Tribunal decides to conduct an oral hearing, fairness does not necessarily require that cross-examination be permitted.
2. In Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99 the Appeal Panel considered whether the appellants had been denied procedural fairness by not being provided an opportunity to cross-examine the respondent's witnesses. The Appeal Panel held (emphasis added): "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."
3. There is nothing inherently unfair in the Tribunal deciding in a particular case to dispense with calling witnesses and to proceed by questioning the parties about specific issues. However the risks of taking such a course are magnified where one party is unrepresented and unfamiliar with the Tribunal's procedures whilst the other party has legal representation. In these circumstances there is a greater risk that the unrepresented party will not have the opportunity to explain the issues of concern to them in their own words and will fail to take steps during the hearing which are necessary to protect their own interests.
4. These risks may not materialise in all, or indeed in a majority of circumstances. However, in the particular circumstances of this case there was ample written material provided by Ms Croll to make it clear that she challenged the credibility of Form and Colour's witness on core factual issues, including what was said at critical meetings. Moreover, the exchange between Ms Croll and the Tribunal Member at lines 841-854 which we have set out illustrates that Ms Croll was asserting that there were "incorrect" matters in Ms Reid's statement.
5. It was procedurally unfair to Ms Croll for her to be given "five minutes to address the incorrect evidence". Nor was that unfairness ameliorated by the Tribunal seeking and obtaining Ms Croll's assent to that course. In the particular circumstances of this case, Ms Croll should have been informed that if she challenged Ms Reid's credibility on relevant issues it would be necessary for her to give sworn evidence on those issues (including cross-examination by Form and Colour if thought fit) and for Ms Reid to give sworn evidence on those issues (including cross-examination by Ms Croll if thought fit). This should have involved an explanation of the role and function of cross-examination, including the importance of giving a witness the opportunity to accept, refute or qualify any challenge to their evidence.
6. Had this course been followed then Ms Croll could also have been afforded any necessary opportunity to rely on evidence in reply.
7. We uphold this ground of appeal.

Second ground of appeal: failure to provide reasons/inadequate reasons

1. As we have indicated, in relation to Ms Croll's claim it is sufficient to refer to the Tribunal's written reasons dated 3 February 2023. Ms Croll's application claimed that statutory warranties under the ACL had been breached. The Tribunal indicated in its written reasons that Ms Croll was asserting a breach of statutory warranties under the ACL. Yet the written reasons do not identify which statutory warranties were under consideration, do not contain any material findings relevant to any statutory warranties, do not set out the Tribunal's understanding of the applicable law concerning statutory warranties and do not set out any reasoning process which led the Tribunal to reject Ms Croll's claim for breach of the warranties.
2. Perhaps because of the way the hearing was conducted, the Tribunal seems to have focussed on the terms of the agreement without any real consideration of the issue of breach of warranties. However this is not entirely clear from the reasons. The fact that the parties to the appeal cannot agree on what cause of action the Tribunal was actually considering and deciding does emphasise that the reasons lack clarity.
3. In our view the written statement of reasons for dismissing Ms Croll's claim fails to comply with the requirements of section 62 of the NCAT Act.
4. In relation to the oral reasons of the Tribunal, to the extent that they dealt with the application by Form and Colour, as noted in NCAT Policy 2, the issue of whether there is a common law duty on the Tribunal to give reasons in the absence of a request for written reasons under section 62 of the NCAT Act is not settled. However, if the Tribunal does choose to give reasons in the absence of such a request, the decision of the NSW Court of Appeal in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578 provides guidance. President Bell (as His Honour then was), with whom Ward JA agreed, stated at [55] that it was "not unreasonable" to suppose that section 62(3) supplied important guidance as to what should be set out by the Tribunal in reasons which it chooses to give without a request pursuant to section 62(2).
5. By this standard, the oral reasons for allowing Form and Colour's claim, which appear to have followed the same process of reasoning as the written reasons, were, in our view, also inadequate. As the matter was not raised for submissions by both parties during the hearing of the appeal and was not properly argued, we will refrain from making any observations on the impact of section 7 of the HBA on Form and Colour's claim for relief. No doubt however, this will be the subject of further consideration by the parties.
6. We uphold this ground of appeal.
7. We wish to add however that we regard Ms Croll's criticisms of the Tribunal for failing to cite any authorities and for delivering oral reasons 15 minutes after the hearing concluded as unwarranted. There is no reason why it is inherently necessary for the Tribunal to refer to authorities in its reasons. Moreover, the Tribunal has a high volume caseload and limited resources. The concomitant time pressures on Tribunal Members are very real. The fact that reasons are delivered promptly after an oral hearing is certainly not of itself any basis for criticism of the Tribunal.

Third ground of appeal: costs

1. Section 60 of the NCAT Act provides that each party to proceedings in the Tribunal is to pay the party's own costs unless there are special circumstances. However Rule 38 of the NCAT Rules carves out certain exceptions to section 60 for proceedings allocated to the Consumer and Commercial Division of the Tribunal. Relevantly, Rule 38 (2)(b) provides that in Consumer and Commercial Division proceedings where the amount claimed or in dispute is more than $30,000, the Tribunal may award costs even in the absence of special circumstances.
2. In Hanave Pty Ltd v Wine Nomad Pty Ltd ( No.2) [2022] NSWCATAP 361, the Appeal Panel made it clear at [43]-[46] that whilst it is frequently the case that the Tribunal will have before it two separate applications where the opposing parties each seek remedies, for the purpose of Rule 38 of the NCAT Rules the two applications are different sets of proceedings unless they are consolidated.
3. In our view, the Tribunal was in error in this case by proceeding on the basis that Rule 38(2)(b) applied to legal costs in both proceedings because the amount claimed or in dispute in both proceedings totalled more than $30,000 in aggregate. The proceedings were not consolidated. The amount claimed or in dispute in each proceeding should have been considered separately.
4. As it happens, by reason of the amendment to Ms Croll's application on 12 September 2022, the amount claimed or in dispute in that proceeding was more than $30,000 such that it was appropriate to make an order for costs by virtue of Rule 38(2)(b). As conceded by Form and Colour (correctly in our view), Rule 38(2)(b) did not apply to the proceeding by Form and Colour and costs of that proceeding should not have been awarded (there was no submission that special circumstances applied). It is unnecessary for us to consider the extent to which there is an overlap between the two proceedings by virtue of the amendment to Ms Croll's application.
5. We uphold this ground of appeal insofar as it relates to the application by Form and Colour.
6. In relation to the costs of the appeal, Rule 38A of the NCAT Rules relevantly provides that, despite section 60 of the NCAT Act, the Appeal Panel must apply the first instance provisions when deciding whether to award costs in relation to an internal appeal. As the amount claimed or in dispute in Ms Croll's application is more than $30,000, we will make an order that Form and Colour pay Ms Croll's costs of the appeal in relation to Ms Croll's application. As the amount claimed or in dispute in Form and Colour's application is less than $30,000 we will make no order as to the costs of the appeal in relation to that application.

Orders

1. For the reasons set out above we allow the appeal and make the following orders: 1. Extend the time for the appellant to lodge the Notice of Appeal to 3 March 2023. 2. The orders made on 22 November 2022 in application HB22/36727 and in application HB22/45182 are set aside. 3. The respondent (Form and Colour Pty Ltd) is to pay the costs of the appellant (Felicity Croll) of the appeal in relation to application HB22/36727. 4. Application HB22/36727 and application HB22/45182 are remitted for rehearing by a differently constituted 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: 25 July 2023