Dama Building Group Pty Limited v CK Roofing Solutions Pty Limited

1. We briefly summarise the background of the dispute and the Tribunal proceedings as follows:

(1) The respondent issued a quote addressed to the owner of the Property for roofing works dated 21 February 2020 for $21,928.50;

(2) The quote was agreed to on about 3 March 2020 and roofing works commenced in about March 2020;

(3) Subsequently there were water ingress from the roof which were reported by the owner of the Property to the appellant. The appellant contacted the respondent and they tried to resolve the issues but with no final agreement;

(4) The appellant filed the Tribunal proceedings against the respondent on 24 July 2024 seeking a money order for about $94,780;

(5) The appellant claimed that the roofing works which had been done by the respondent were defective and that the respondent had not complied with the statutory warranties implied under s 18B of the Home Building Act 1989 (NSW) (HB Act);

(6) The respondent filed a Defence in the Tribunal proceedings on 22 November 2024 denying the claims on various grounds including but not limited to that:

(a) the work was not incomplete;

(b) the work was not defective; and

(c) the appellant had not breached the statutory warranties;

(7) The Tribunal had power to determine the proceedings as a building claim under the HB Act;

(8) The Tribunal proceedings were listed for formal hearing on 20 February 2025;

(9) On 17 February 2025 the applicant filed an interlocutory application seeking an adjournment of the hearing;

(10) On 18 February 2025 the Registry emailed the applicant to state that the adjournment application was filed too close to the hearing date and the application would be determined by the presiding member at the time of the hearing;

(11) Later on 18 February 2025 the appellant lodged with the Registry an application for leave to attend the hearing by audio visual link;

(12) This application was not determined before the hearing; the Senior Member states at [9] of the Reasons that he was informed that the Registry had advised the appellant's solicitor that the request would be considered at the hearing;

(13) At the beginning of the hearing on 20 February 2025 Mr Anne, solicitor, appeared in person for the respondent; there was no attendance by or on behalf of the appellant;

(14) The respondent was also represented by its company directors and also in attendance was the respondent's expert Mr Ovidi;

(15) At the request of the Senior Member, Mr Anne contacted the appellant's Sydney's solicitors' office by way of his mobile phone and spoke to a receptionist who assisted with forwarding the call and shortly thereafter Mr Anne was able to speak to a solicitor, Mr Ward of Aditum Lawyers;

(16) There was a conversation between the Senior Member and Mr Ward via Mr Anne's mobile phone which was on speakerphone and is recorded on the transcript;

(17) The Senior Member offered a short adjournment to Mr Ward to attend the hearing in person which Mr Ward declined;

(18) The Senior Member dismissed the Tribunal proceedings on the ground that the applicant failed to attend the hearing.

1. In the attachment to the Notice of Appeal the appellant set out the grounds of appeal as follows:

(1) The Tribunal erred in dismissing the application on the basis that the applicant failed to attend the hearing because:

(a) the appellant's legal representative attended the hearing in part by telephone but was denied the opportunity to attend the full duration of the hearing by telephone;

(b) alternatively, the Tribunal's refusal to grant the appellant's request to attend via telephone or video link or to adjourn the hearing was a failure to apply the principles of procedural fairness and natural justice;

(2) The Tribunal failed to consider alternative measures to a dismissal of the proceedings, such as granting an adjournment under Procedural Direction 1 and s 51 of the NCAT Act;

(3) The appellant was prejudiced by procedural irregularities including:

(a) the appellant's legal representatives were only engaged on 6 February 2025 and made reasonable applications to the Tribunal for an adjournment or telephone or video attendance, in accordance with the Tribunal's Procedural Direction 1;

(b) the respondent issued late communications requiring the appellant's agent Ms Rastrgo, for cross-examination on 12 February 2025, eight days prior to the hearing;

(4) The Tribunal failed to consider compelling reasons for the adjournment request, including:

(a) late engagement of legal representatives;

(b) the unavailability of a key expert witness, which was communicated to all parties in advance;

(5) The Tribunal gave undue weight to procedural efficiency over substantive justice contrary to s 36(1) of the NCAT Act, which requires matters to be resolved in a manner that is just, quick and cheap;

(6) The respondent would not have suffered prejudice if the hearing had been adjourned.

1. In the attachment to the Notice of Appeal the appellant crosses the relevant box to confirm that it also seeks leave to appeal on each of the limbs of cl 12(1) Sch 4 of the NCAT Act being:

(1) The Decision was not fair and equitable;

(2) The Decision was against the weight of evidence;

(3) There is now significant new evidence which was not reasonably available at the time of the hearing.

1. In [10] of the attachment to the Notice of Appeal the appellant seeks to have the Decision set aside and directions made for the exchange of written submissions and determination of the preliminary issue of standing prior to the hearing of the substantive matter.
2. In [11] of the attachment to the Notice of Appeal, the appellant submitted that it relies on the Appeal Panel decision of Collins v Urban [2014] NSWCATAP 17 for the following reasons:

(1) Collins v Urban established that leave should be granted where the decision raises issues of principle, public importance or procedural fairness;

(2) Leave may be warranted where a Tribunal's error is plain and central to the decision so that the failure to correct it would result in an injustice;

(3) The Tribunal's order improperly disregarded procedural protections, raising issues concerning the fair administration of justice under s 36 of the NCAT Act and whether principles of natural justice were breached when the appellant was effectively excluded from presenting its case.

1. The parties have filed the following documents and submissions in the appeal which we have considered.
2. The appellant filed:

(1) The Notice of Appeal;

(2) The appellant's bundle of documents filed 23 May 2025 which included:

(a) affidavits of - Nataliya Rastrigo dated 8 May 2025, Ievgen Ieriemieiev dated 9 May 2025 and Dragan Sulkak dated 9 May 2025 (it was submitted on behalf of the appellant that the purpose of the affidavits was to establish that there was a substantial dispute between the parties);

(b) the appellant's written submissions;

(c) a typed transcript of the relevant parts of the hearing;

(3) The appellant's reply documents filed on 20 June 2025.

(1) The respondent's Reply to Appeal filed on 10 April 2025;

(2) The respondent's bundle filed 12 June 2025.

1. At the hearing, the appellant tendered proposed Short Minutes of Order which we have included in the appeal papers. Both parties agreed that, if the appeal were allowed, the proposed short minutes of orders would be appropriate, which included an order that the Decision be set aside.
2. We have also considered the parties' oral submissions at the hearing of the appeal.

1. We summarise the appellant's submissions in chief dated 23 May 2025 as follows:

(1) The Tribunal erred in dismissing the claim on the basis that the appellant failed to attend because the legal representative did attend in part by phone but was denied the opportunity to attend the full duration of the hearing;

(2) Alternatively, the refusal to grant the appellant's request to attend via phone or video link or to adjourn the hearing was a failure to apply the principles of procedural fairness and natural justice;

(3) The Tribunal failed to consider alternative measures to a dismissal such as granting an adjournment under Procedural Direction no 1 and s 51 of the NCAT Act;

(4) The Tribunal failed to consider compelling reasons for the adjournment request including late engagement of legal representatives and the unavailability of a key expert witness;

(5) The Tribunal gave undue weight to procedural efficiency over substantive justice contrary to s 36(1) of the NCAT Act;

(6) The Tribunal did not determine the interlocutory applications submitted by the appellant;

(7) The appellant's representative was present by telephone and available by AVL to attend the hearing;

(8) It was not a proper exercise of judicial discretion but a procedural response that prioritised form over substance without proper consideration of the applications;

(9) The decision to dismiss the matter, despite the appellant's ability to attend by alternative means, was inconsistent with the Tribunal's duty to provide a fair opportunity to be heard;

(10) The Tribunal relied on the perceived discourtesy of non-attendance and failed to properly consider the interests of justice, constituting a failure to exercise reasonable discretion;

(11) The Tribunal member failed to address the adjournment application (lodged three days prior to the hearing); failed to address the AVL appearance request (lodged two days prior to the hearing); failed to address the availability and engagement of legal representatives by telephone or AVL and failed to address the serious prejudice that would follow from a dismissal;

(12) The appellant contends that the respondent would not have suffered prejudice if the application had been adjourned, but the dismissal of the proceedings prevent the appellant from pursuing its claim for defective building work; the claim involves significant factual and expert issues which have not been resolved or heard; there is a significant procedural and substantive unfairness to the appellant by not having a hearing on the merits;

(13) The underlying claim has substantial merit and had the matter not been summarily dismissed, the appellant would have been entitled to a fair hearing with a strong prospect of succeeding on the substantive claim;

(14) The substantive claim concerns significant water ingress caused by defective roofing work which the appellant contends is a major defect for the purpose of s 18E(4) of the HB Act;

(15) The Tribunal's discretion to dismiss the proceedings under s 55 of the NCAT Act must be exercised judicially and take into account relevant considerations as listed in 4.1 of the submissions dated 23 May 2025.

1. We summarise the respondent's submissions as follows.

(1) The appellant's grounds of appeal lack precision as to what the alleged errors are; but the respondent submits that they appear to be:

(a) the Tribunal denied the appellant procedural fairness;

(b) the Tribunal failed to exercise discretion reasonably;

(c) the Tribunal misapplied s 36(1) of the NCAT Act;

(d) there was a lack of prejudice to the respondent.

(2) The appellant had a reasonable opportunity to prosecute its case:

(a) there was a directions hearing on 12 August 2024 at which time directions were made for the appellant to file its evidence and points of claim by 26 August 2024;

(b) this date was extended by the Tribunal at the request of the appellant to 15 September 2024;

(c) a notice of hearing was issued on 7 January 2025 for the 20 February 2025 hearing;

(d) the appellant retained Queensland based lawyers 2 weeks before the hearing;

(e) in response to the appellant's adjournment application and AVL application the Tribunal advised that they would be dealt with on the day of the hearing and that the hearing remained listed for a hearing in person;

(f) the correspondence from the appellant's solicitors originated from George St, in Sydney;

(g) at the hearing, the Tribunal informed the appellant's legal representative at the hearing that it was not listed for telephone hearing and offered an adjournment for the appellant or solicitor to attend the hearing in person;

(h) the appellant, its witnesses and legal representatives all failed to appear at the hearing in person as required;

(3) The Tribunal correctly exercised its discretion to dismiss the proceedings under s 55(1)(c) of the NCAT Act:

(a) the appellant did not appear and had no intention to appear or participate in the hearing;

(b) a dismissal was consistent with the guiding principles of s 36 of the NCAT Act;

(c) the Tribunal requested the respondent's solicitor to contact the appellant's solicitor's office to ascertain why there was no appearance;

(d) the Tribunal then offered the adjournment of the proceedings to allow the appellant or its representative to appear in person;

(e) the appellant's submission that its phone discussion with the Tribunal member on the day of the hearing satisfied appearance at the hearing is misconceived and should be rejected;

(4) There was no error in the application of s 36(1) of the NCAT Act as the appellant failed to participate in the processes of the Tribunal and comply with the Tribunal's directions and failed to attend the hearing to move on any interlocutory applications;

(5) The respondent had responded to the points of claim and filed evidence in support of its defence to the claim including an expert report and prepared for and attended the hearing in person with legal representation and witnesses. After putting the respondent to such costs, it would have been appropriate for the appellant to appear at the hearing;

(6) The appellant's claim was also without merit for the following reasons:

(a) as there was no contract between the appellant and the respondent; the respondent performed work pursuant to a contract between it and the homeowner;

(b) the appellant was not an immediate successor in title or a non contracting owner and accordingly had no standing to commence or maintain the proceedings for breach of statutory warranties;

(c) there was no evidence that the alleged defects were caused by or within the scope of the respondent's scope of works;

(7) The evidence which the appellant now seeks to rely on - the affidavits of Nataliya Rastrigo dated 8 May 2025, Dragan Suljak dated 9 May 2025 and Ievgen Ieriemieiev dated 9 May 2025 are not significant and can not be said to be new. This evidence was available or could have been available at the time of the hearing and as such the appellant ought not be granted leave to rely upon it.

1. We summarise the appellant's submissions in reply dated 20 June 2025 as follows.
2. The summary dismissal of an application for non appearance at a hearing is an interlocutory decision and leave to appeal is required - s 80(2)(a of the NCAT Act;
3. The respondent's references to cl 12 of Sch 4 of the NCAT are not relevant as cl 12 relates to appeals under s 80(2)(b) of the NCAT Act.
4. The appellant relies on the authority of Infinity Security Gorup Pty Limited v Commission of Police, NSW Police Force [2023 ]NSWCATAP 173 and [29] to [30] as well as the Appeal Panel decision of Collins v Urban [2014] NSWCAPAP 17 at [84] to submit that leave to appeal.
5. The appellant submits that leave should be granted for 3 broad reasons:

(1) The grounds of appeal raise issues of procedural fairness, a denial of the right to be heard and legal unreasonableness; a failure to afford a party procedural fairness is an error on a question of law as the Tribunal is required to act in accordance with the rules of natural justice s 38(2)(a) of the NCAT Act;

(2) By dismissing the matter for non-appearance the Tribunal effectively determined the rights of the parties by bringing the proceedings to an end;

(3) There is a real dispute between the parties as to merits which is apparent from the witness statement of D Suljak dated 11 September 2024 and the roof inspection report by Roof Reports dated 21 June 2024;

1. Leave should be granted to the appellant to rely on the new evidence of affidavits of Nataliya Rastrigo dated 8 May 2025, Ievgen Ieriemieiev dated 9 May 2025 and Dragan Sulkak dated 9 May 2025 - this evidence supports leave to appeal being granted as it further demonstrates that there is a real controversy between the parties.
2. These submissions are expanded on in the written submissions dated 20 June 2025.

1. A decision to dismiss proceedings for failure to attend the hearing under s 55(1)(c) of the NCAT Act is a summary dismissal of the proceedings and therefore an interlocutory decision within the meaning of s 4 of the NCAT Act. There was no dispute in this regard.
2. It follows that leave to appeal the Decision is required: s 80(2)(a) of the NCAT Act.
3. We have not considered any submissions regarding cl 12 of Sch 4 of the NCAT Act as they are not relevant to this appeal. As is clear from the express language of cl 12 of Sch 4, this clause is relevant to appeals filed under s 80(2)(b) of the NCAT Act which are final or ancillary decisions of the Consumer and Commercial Division of the Tribunal for where leave is required.
4. This appeal is from an interlocutory decision and as such filed under s 80(2)(a). There is no specification in the NCAT Act as to the circumstances in which leave should be granted in respect of interlocutory decisions of the Tribunal. Accordingly general principles apply to the grant of leave to appeal such decisions.
5. The principles governing leave to appeal an interlocutory decision are summarised in the often quoted Appeal Panel decision Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35] (as adopted in Infinity Security Group v Commissioner of Police at [29] and [30]):

[35] As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following:

(1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 175; [1981] HCA 39;

(2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ;

(3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; [2000] 104 FCR 564;

(4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative;

(5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323;

(6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation [1988] FCA 398; (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 225-6;

(7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec);

(8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9;

(9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave.

1. Applying the relevant principles from Champion Homes v Guirgis, we do not consider it appropriate to exercise our discretion to grant leave to appeal in the circumstances of this case. We have reached this decision for the following five primary reasons.
2. Firstly, the appellant submits that there is a substantial reason to grant leave to appeal because the appeal raises the issue of procedural fairness and a denial of the right to be heard and legal unreasonableness.
3. The appellant submitted at the hearing of the appeal that the basis of its adjournment request was in passages of the transcript commencing at T12:42. At T12:42, the transcript records, Mr Ward:

But to-to be frank, we're not in a position to proceed. There's no joint report before the Tribunal, and both reports are problematic. There's the standing issue, which is a very complex area that needs some time and consideration and proper submission. Frankly, the-the matter is not ready to proceed and we are not in a position to appear before you this morning.

You should be in a position, having written to the Tribunal, you should be in a position to be here this morning, to be here in person to state all of these things to the Tribunal.

1. The appellant made an oral submission at the hearing that the Senior Member refused to hear from the appellant at T16:09 and T16:38.
2. However, by the time the Senior Member makes the comments at T16:09 and T16:38, it is in the context of having already given Mr Ward a reasonable opportunity to attend the hearing in person. The Senior Member said at T13:33

As-as the situation is at present, there is no-one here for the applicant to make an application on the part of the applicant and I have asked the respondent solicitor to telephone you to try to get to the bottom of this.

.......

If you can be here within a half an hour, I'll hear you. Are you able to come to the Tribunal to say something on behalf of the applicant?

Whether we were there in person or not, the matter would not be in any shape to proceed. I don't see how the matter could move forward.

1. Again, the Senior Member at T15:14 asked Mr Ward if he would attend the hearing in person. The transcript shows that the Senior Member's offer of a short adjournment to give Mr Ward time to attend the hearing in person to make the applications, was never accepted.
2. We are not satisfied in these circumstances that there was a failure by the Senior Member to afford procedural fairness to the appellant as submitted by the appellant. As the Appeal Panel held in Boreland v Brewis [2024] NSWCATAP 140 at [65]:

Procedural fairness requires that parties have an adequate opportunity to put their case and test the case against them. By s 38(5)(c) of the NCAT Act, the Tribunal is required to take "reasonably practicable measures" "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".

1. There was no issue that the Sydney office of the appellant's legal representatives was aware that the hearing was listed on 20 February 2025 and it was an in-person hearing to be held at 66 Goulburn St, Sydney. This is established by the interlocutory applications made to the Registry before the hearing date; firstly to have the proceedings adjourned, and secondly to attend the hearing by audio visual link.
2. The representatives were aware that these applications had not been determined prior to the hearing on 20 February 2025 and in the case of the adjournment application had been specifically informed by the Registry that the application would not be considered until the day of the hearing.
3. When there was no attendance at the commencement of the hearing by the appellant or anyone on its behalf, the Senior Member took what we consider to be reasonably practical measures and asked the solicitor for the respondent to telephone the Sydney office of Aditum Lawyers, which Mr Anne did on his mobile phone in the hearing room at T3:24.
4. It then took a few minutes for a solicitor (Ms Mansi of Aditum Lawyers) to connect onto the line which was at T11.43. Then Mr Ward, who identified himself as the principal from Aditum Lawyers also joined the call. The connection between Mr Ward, Mr Anne and the Senior Member continued by way of speakerphone on Mr Anne's mobile phone.
5. The transcript from T12:42 to 16:09 establishes that the Senior Member inquired of Mr Ward on several occasions whether someone would attend the hearing in person, because that was what was required. Mr Ward said that he could attend by video link and sought leave, which the Senior Member refused.
6. At T13:33 the Senior Member said:

...this is not a telephone hearing. If you can be here within a half an hour, I'll hear you. Are you able to come to the Tribunal to say something on behalf of the applicant?

1. Mr Ward did not accept the offer of the short adjournment. Part of his response was:

Whether we were there in person or not, the matter would not be in any shape to proceed. I don't see how the matter could move forward.

So the question is this: are you able to be here to make submissions on behalf of the applicant or are you not able to be here?

1. At T15.14 the Senior Member repeated the question.

Yeah, Senior Member, a-a-as you'll-you-ll see from the application in front of you, we are in fact able to appear by, uh, video link or-or audio link.

You need to be here to s-,to a-, to apply for leave.

...if you would, could you clarify, the matter being determined now is the application for the adjournment?

No, the matter being clarified now is why is there no one here on behalf of the applicant in person to press the applications which have been made to the Tribunal?

That's been explained in detail, Senior Member, with respect.

1. From T16:13 to T16:38, the discussion between the Senior Member and Mr Ward continued on Mr Anne's mobile speakerphone with the Senior Member saying at T16:19 that it was not a telephone hearing and then at T16:38 indicating that he was going to dismiss the proceedings.
2. We are satisfied that the Senior Member gave the appellant's representative more than a reasonable opportunity to attend the hearing in person in order to move on the appellant's interlocutory applications. The fact that Mr Ward would not confirm to the Senior Member that someone would attend the hearing in person on behalf of the appellant and nor did Mr Ward give the Senior Member any satisfactory reason as to why there could not be a personal attendance we consider that it was open to the Senior Member to refuse to determine the interlocutory applications and consequently dismiss the substantive proceedings for non-attendance under s 55(1)(c) of the NCAT Act.
3. Secondly, the central complaint in the appeal is a challenge to the practice and procedure required by the Senior Member and that the Senior Member gave undue weight to procedural efficiency over substantive justice. Consistent with the principles of Champion Homes v Guirgis at [35(7)], restraint should be applied in reviewing such decisions. The Notice of Hearing required an in-person hearing; the Senior Member was clearly requiring this despite the appellant's legal representative's apparent resistance to attending in-person.
4. This resistance from the appellant's legal representative was in circumstances where both the hearing venue and the offices of the solicitors were within the CBD of Sydney and presumably in walking distance and no reasonable explanation had been provided as to why the offer of the short adjournment was not acceptable. The only explanation for not attending in person, was that Mr Ward considered that the matter could not proceed in any event due to other issues such as late engagement of lawyers by his client and the unavailability of an expert witness.
5. As the matter was listed for formal hearing and the respondent was in attendance, we are satisfied that the Senior Member was entitled to determine the procedures for the interlocutory applications and the hearing which was to require attendances in person.
6. Thirdly, we do not consider that the Decision to dismiss the proceedings under s 55(1)(c) of the NCAT Act determined the substantive rights between the parties. It was open to the appellant within seven days of the Decision to file an application in the Tribunal to reinstate the proceedings under s 55(2) of the NCAT Act if it could support the application with evidence of a reasonable explanation for the failure to attend in person. Such an application was not filed.
7. Additionally, as there had been no determination of the substantive application on the merits, it was open to the appellant to file a new application. There are time limitations under the HB Act which apply, but no submission was made at the hearing of the appeal that even if a new application were to be filed at the time of the hearing of the appeal that there would be a time limitation issue barring the appellant from bringing the substantive claim against the respondent.
8. Fourthly, we do not consider there has been any error of principle which has resulted in an injustice. The proceedings were listed for formal hearing and in person. It was open to the Senior Member to require a personal attendance to make the interlocutory applications, particularly in circumstances where there was no satisfactory explanation as to why there could not be an in person attendance and also where the offer of a short adjournment had not been accepted. The Senior Member has not made an error of principle which has caused an injustice by dismissing the proceedings in these circumstances. No leave was given for the appellant to attend by telephone and therefore the appellant or someone on its behalf was required to be present.
9. Fifthly, in Collins v Urban the Appeal Panel in deciding whether to grant leave the Appeal Panel stated:

[84] The general principles derived from these cases can be summarised as follows:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) 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,

BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

1. We are not satisfied that any of the above Collins v Urban principles are applicable in this case to justify a grant of leave as:

(1) The Senior Member was not arguably wrong to dismiss the proceedings under s 55(1)(c) of the NCAT Act for the failure to appear where there was no personal attendance as required by the Notice of Hearing; such a decision was open to him;

(2) There is no issue of principle or public importance;

(3) There is no error by the Senior Member that is plain or apparent or an injustice which is reasonably clear;

(4) The Senior Member has not gone about matters before him 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. In fact, it is to the contrary. The Senior Member has taken more than reasonable steps to inquire whether there would be a personal attendance at the hearing by or on behalf of the appellant; in addition he has offered a short adjournment to facilitate the personal attendance by the legal representative of the appellant which was not acted upon; and it was only when he was satisfied of the fact that there was not going to be a personal attendance that he has dismissed the application for failure to appear.

(5) There is no conduct on the part of the Senior Member which we consider was unorthodox or has led to an unfair result. It was reasonable that the Senior Member refused to submit to the expectations of the appellant's legal representative to be able attend the hearing by telephone.

1. For these reasons we are not satisfied that leave to appeal should be granted and the appeal is otherwise dismissed.

1. The appellant has been unsuccessful. If the respondent seeks costs, it must file and serve submissions within 14 days of the publication of these reasons. We have made directions regarding any costs application.
2. Submissions on costs are to be limited to 3 pages, and must identify the applicable costs rule.
3. We propose to deal with the question of costs on the written submissions and any other documents filed in support, without a hearing in accordance with s 50(2) of the NCAT Act. Either party opposing that course must address that issue in their submissions.

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) The respondent is to file and serve any submissions (and if necessary, evidence) in relation to costs within 14 days of the publication of these reasons.

(4) The appellant may file and serve a response within a further 14 days.

(5) The respondent may file and serve a reply within a further 7 days.

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.