DeMarco v Macey

Supreme Court of NSW|2022-06-24|Before: Lonergan J

Judgment

HER HONOUR: This matter involves judicial review of a decision from the NSW Administrative Tribunal involving alleged bias and denial of procedural fairness.
The plaintiff is Mr Godfrey Demarco ("the appellant"). The first defendant is David Macey. The second defendant is Debbie Macey ("the respondents"). They are husband and wife. C Lambert of Counsel appeared for the plaintiff. C Mobellan of Counsel appeared for the respondents. The parties relied on a court book (Ex A(1)-(2)). In addition, the appellant relied upon the transcript before the Appeal Panel (Ex B) and Exhibit 4 before the Tribunal Member (Ex C). The first defendant relied upon his affidavit filed 5 April 2022 (Ex 2).
By summons filed 27 October 2021 the appellant seeks the following orders: 1. Leave to appeal from the whole of the decision below. 2. Appeal allowed. 3. The whole of the decision of the Tribunal below be set aside. 4. The matter be remitted back to the Civil and Administrative Tribunal of NSW for rehearing de novo.
On 18 March 2022, Lonergan J granted a stay a proceedings on the following basis: "On account of the plaintiff giving the usual undertaking as to damages: Pursuant to r.50.7 of the Uniform Civil Procedure Rules 2005 (NSW) the orders made by the Appeal Panel of the Civil and Administrative Tribunal of NSW on 28 September 2021 and any related orders as to costs are stayed until 8 April 2022 Pursuant to s.135(1) of the Civil Procedure Act 2005 (NSW) the Defendants are restrained from enforcing the judgment entered in the District Court on 17 November 2021 pursuant to the above orders of the Appeal Panel of the Civil and Administrative Tribunal of NSW of 28 September 2021 until 8 April 2022."

Background

A dispute arose between the respondents, who are husband and wife, and the builder, Mr DeMarco. The respondents engaged the builder to carry out renovations on their property. For convenience and without meaning any disrespect, I shall refer to the parties by name.
On 8 July 2020, the NSW Civil and Administrative Tribunal ("NCAT") determined the principal proceedings in favour of a money order payable by the appellant (respondent at first instance) to the respondents (applicants at first instance) in the amount of $317,919 in Proceedings HB 19/08505: See De Marco v Macey [2021] NSWCATAP 291 ("Appeal Determination") at [2].
On 7 August 2020, De Marco filed an Appeal in relation to the first instance decision (Appeal Determination at [22]).
On 28 September 2021 in Demarco v Macey (No. 2) [2021] NSWCATAP 354, the Appeal Panel made orders in respect of the Appeal Determination that the order made by the Tribunal on 8 July 2020 was varied to substitute for the builder to pay the owners the amount of $389,184 (instead of $317,919) (at [64]); and the appeal was otherwise dismissed. On 9 November 2021, the appellant was ordered to pay the respondents' costs.
In short, subject to correcting an arithmetical error at first instance (Appeal Determination [4] to [15]), the Appeal Panel rejected all of the appellant's other grounds of appeal. The submission challenges the decision made in relation to the correction of the arithmetical error has not been specifically raised as a ground in this appeal, but the order in which the Appeal Panel dealt with it is the subject of challenge in this Court. Therefore, it does not arise for determination in this Judgment.

The appeal to this Court

On 27 September 2021, the appellant filed two summonses in this Court. One is a summons commencing an Appeal, the second is a summons Seeking Leave to appeal pursuant to Part 50 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") and s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act").

Grounds of Appeal

It is unclear whether, from the appellant's grounds of appeal, whether he is seeking judicial review or an appeal. However, in my view, it should be treated as an appeal. This is because the appellant's first recourse from the Appeal Panel is his statutory right of appeal pursuant to s 83(1) of the NCAT Act, to which I will return.
The grounds of appeal set out in the appellant's summons filed 27 October 2021 are as follows: 1. The Appeal Panel erred at law in not quashing the orders of the Tribunal and ordering/remitting the matter for rehearing before a different Tribunal Member on the grounds of apprehended and or actual bias on the part of the Tribunal Member. (Apprehended or actual bias) 2. The Appeal Panel erred at law by acting on wrong principle and or taking into consideration irrelevant matters when: 1. considering the ground of apprehended and or actual bias on the part of the Tribunal Member; and or 2. dismissing the ground of apprehended and or actual bias on the part of the Tribunal Member. 1. The Appeal Panel erred at law in not quashing the orders of the Tribunal and ordering/remitting the matter for rehearing before a different Tribunal Member on the grounds that: 1. The appellant was denied procedural fairness and or afforded natural justice; and or 2. the hearing miscarried (denial of procedural fairness).
Appeal ground (1) articulated in this Court is much wider than the actual appeal ground raised before the Appeal Panel.

Extension of time to appeal

The first preliminary issue to be determined is whether the appellant should be granted an extension of time to file the summons, although it was framed in his summons as seeking leave to appeal. On 26 October 2021, the appellant who was self-represented attempted to file this summons in the Equity Division. It was rejected by the Registry. He was advised to file the summons in the Common Law Division. He did this the following day, namely 27 October 2021. The respondent does not oppose an extension of time being granted. Taking these circumstances into account, it is my view that the appellant's explanation is satisfactory. Hence, I extend the time for filing the summons up to and including 27 October 2021.

Leave to appeal

The second preliminary issue to be determined is whether leave to appeal should be granted.
Section 83(1) of the NCAT Act reads: "A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings."
In BHP Billiton Ltd v Dunning [2013] NSWCA 421 ("BHP Biliton") the Court of Appeal set out the following principles with respect to a grant to leave to appeal; "Principles relevant to leave applications [19] In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary judge was arguably wrong in the conclusion arrived at: Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 per Sheller JA; Zelden v Sewell [2011] NSWCA 56 at [22] per Campbell JA (Young JA agreeing). [20] Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or an injustice which is reasonably clear, in the sense of going beyond merely what is arguable: Carolan per Kirby P; Jaycar Pty Ltd v Lombardo [2011] NSWCAS 284, Campbell JA (Young and Meagher JJA agreeing) at [46]. See also Lee v New South Wales Crime Commission [2012] NSWCA 276 per Bathurst CJ (Macfarlan and Barrett JJA agreeing)."
Further, as was said in Collins v Urban [2014] NSWCATAP 17 ("Collins") at [84]: "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…"

The appellant's submissions

There being the real possibility that the Tribunal was biased and the Appeal Panel erred in not quashing the orders of the Tribunal and remitting the matter for rehearing before a different Tribunal Member on the grounds of apprehended bias and that the failure of the Appeal Panel to accord the appellant natural justice or procedural fairness resulted in the hearing of the Appeal before the Appeal Panel miscarrying. These are issues of principle, questions of public importance or policy which have a general application to the administration of justice and therefore the Court should grant leave for the Appeal under section 83(1) of the NCAT Act.
This Court should also exercise its discretion to grant leave as if the decision of the Appeal Panel is allowed to stand, it is more than merely arguable, that it will work a grave injustice on the appellant.

The respondents' submissions

The respondents submitted that, firstly there is no basis upon which the Court would grant leave as required by s 83 of the NCAT Act because the appellant has failed to identify any issues of principle; any questions of general public importance; or any injustice going beyond it being reasonably arguable that the primary judge was in error.
Secondly, even if leave to appeal under section 83 of the CAT Act ought to be granted, the Appeal Panel did not err as submitted by the appellant in the summons.

Resolution

Appeal grounds 1 and 2 raise the issues of apprehended bias. In my view, they raise questions of general public importance and matters concerning the administration of justice. On this basis, I will grant leave to appeal.

Grounds of Appeal before the Appeal Panel

To determine the grounds of appeal in the appeal before this Court, it is necessary to set out the grounds of appeal raised before the Appeal Panel, as these grounds confine the appeal grounds that can be raised in this Court. In Metwally v University of Wollongong [1985] HCA 28 at 71, the High Court emphasised that it is elementary that a party is bound by the conduct of their case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against them, to raise a new argument which, whether deliberately or by inadvertence, they failed to put during the hearing when they had an opportunity to do so. This applies to the circumstances of the matter before this Court. Had the appellant raised more far reaching grounds before the Appeal Panel it would have had the opportunity to consider them.
The Grounds of Appeal raised before the Appeal Panel relevant to this current appeal are as follows: (Ex A(2), 548-9) 1. The Tribunal erred in law when it failed to accord the appellant, who was self- represented, procedural fairness when it refused to give the appellant sufficient time to consider and respond to the extensive oral submissions of the solicitor for the respondent. 2. The Tribunal also erred in law when having not provided the appellant sufficient time to consider and respond to the oral submissions of the solicitor for the respondent it ended the hearing without notice thereby failing to observe the two basic requirements of natural justice; (i) to ensure that the appellant received a fair hearing and (ii) to ensure the appellant was not subjected to actual or apprehended bias.
It should be noted that the allegations of actual bias or apprehended bias raised in the grounds of appeal are limited to two topics. The first one is when Tribunal Member failed to allow the self-represented appellant sufficient time to consider and respond to extensive oral submissions. The second one was when the Tribunal Member ended the hearing without notice and failed to ensure that appellant was not subjected to actual or apprehended bias. Alternatively, the appellant says that he was denied procedural fairness.

The Appeal hearing before the Appeal Panel

On 2 November 2020, the Tribunal Member's decision was appealed before the Appeal Panel. Both parties were legally represented. C Mobellen appeared for the respondents. C Lambert appeared for the appellant. At the hearing, the following exchanges took place between the Tribunal Members and the appellant's counsel: (T17.12-23.49) "LAMBERT: That's what ground 1 is about. It's about procedural fairness. It's what in colloquial terms we'd say is a fair go. We say that in terms of the manner in which the Senior Member expected the self-represented litigant to respond to three days of complex hearing, complex argument and also three hours of legal and oral submissions - I couldn't do it, a counsel, I couldn't respond to three hours of complex legal submissions by preparing for three-quarters of an hour over lunch. I know that he was given the night before to prepare but he didn't know what he was going to face. He didn't know that until Mr Comino got up in the morning and began speaking and that's why I say it would have been more appropriate even though she claims it was in the interests of justice that she didn't order written submissions, I say that that's completely anathema. In fact, it would have been in the interests of justice to have ordered written submissions because then Mr De Marco would have had an opportunity to respond to them. … LAMBERT: Page 8 is where it begins, and all I've done is extracted the range of interjections and comments that are made by the Senior Member aimed at Mr De Marco over the course of the proceedings. Just reading them on their face, it's quite apparent that she has formed an opinion of Mr De Marco that 5 he's either deliberately trying to mislead the Tribunal or alternatively he's a liar. The things - you know, she starts of by saying, "You're on a really bad foot." That's the first thing on the first day of the hearing and then it just goes on from there. PRINCIPAL MEMBER SIMON: Isn't that in relation to the fact that certain evidence hadn't been provided? I mean, I don't think that - where's the issue? LAMBERT: Well, what I'm saying is that that approach, Principal Member, gets compounded throughout the rest of the proceedings. So she talks to him in this way: "Just tell me. Don't oil it." I'd be most offended if had a member of the judiciary address me in that way: "If you won't answer, then I'll keep going without an answer. Can we do one thing at a time or is that beyond you, Mr De Marco?" That's demeaning. "No, don't skip like this." Now, this is an interesting point here. "I will not tolerate the extreme," the word was "lying" when the transcript came to me. When I listened to the transcript I could not quite make out whether it said "lying" or something else and I gave it a much softer interpretation in my original submissions where I said, "the extreme way," but the word was "lying" in the transcript: "I will not tolerate the extreme lying which you have been since you walked into this room, spinning story after story. You know what I'm talking about. I'm sick of you telling me there's an easier - what's easier and then we just go on and on and on and it's not easy in the end. Do you know what's easy? What you signed up for under the contract." I mean, she's already predetermined the proceedings at that very point, you know. PRINCIPAL MEMBER SIMON: How does that reflect her predetermining the proceeding? I mean, how does that one paragraph suggest she's predetermined the proceedings, just to be clear? LAMBERT: Well, I withdraw that. I'll withdraw that. PRINCIPAL MEMBER SIMON: Yes. LAMBERT: So, you know, it just continues, continues on and on: "You know what I think happens? I think you're trying to explain so I can understand it and then I start to understand it and you've realised it's not going in your favour and you're going to give - you're trying to give me another explanation. That's what I think's happening here, Mr De Marco. You can do whatever you like. I'm sick of the time you take to make it, going over and over the same point and I'm starting to think you're actually doing this as a ploy, Mr De Marco." So, she doesn't look at Mr De Marco's demeanour and she doesn't look at the manner in which he's trying to present his argument and understand perhaps he might be having problems presenting his argument, and he might be having problems making his point, and he might be a bit muddle-headed. Rather, she makes a determination that he's deliberately behaving in this way, and we say that there's nothing in the evidence that would go to that. And, you know, it finally gets to the point where she says to him at one point, "Where do you think that" - she leads him through a set of figures and she says to him, "Where do you think that figure is from, Mr De Marco," and then he says, "Well, at first I know they're from my statements," and she says, "Absolutely right. Ten out of ten. Go to the top of the class." That's demeaning to be spoken to in that way, particularly for a man who's been a builder for many years and is in his 70s. So, we say that she lost detachment and in losing detachment she fails to give equal attention to both parties, to Mr De Marco's argument, particularly in terms of his argument with respect to provisional costs and also PC costs and 25 the difference between what the actual figures might be and what the quoted figures were. We also say that the test in terms of apprehended bias is a pretty low one. I set out, for example, in my submissions in reply at paragraph a quote that comes from Livesey v New South Wales Bar Associate where it says: "One advantage of the test of reasonable apprehension on the part of a fair-minded and informed observer is that it makes plain that an appellate Court is not making an adverse finding on the question of whether it is possible or likely that the particular judge or juror was in fact affected by disqualifying bias." So, all that's necessary is - and I agree with Mr Mobellan inasmuch as I agree with the fact that it is at least a two-step and that is set out by me. I've adopted Mr Mobellan's authority of Wootten v Godfrey which is an Appeal Panel decision and there, they say: "Step 1 is the identification of the factor which is it hypothesised might cause a question to be resolved other than as a result of a neutral evaluation of the merits." And we say that that factor was the fact she had formed such a jaundiced view of Mr De Marco, that she believed him to be lying or she believed him to be purposely obfuscating or she believed him to be purposely attempting to mislead the proceedings. That's the first factor: "Step 2, the articulation of how that factor might cause a deviation from the neutral evaluation of the merits." Well, that's where we say that that manifested itself by virtue of the fact that she didn't provide him with sufficient time to prepare his submissions in response to Mr Comino's legal and factual arguments, and also, at the same time, she curtailed the proceedings without any notice to Mr De Marco, and we say that those things had a drastic impact upon the outcome of the proceedings. And we also say in terms of step 3, the consideration of 10 reasonableness of apprehension, we would say that any reasonable objective observer-- PRINCIPAL MEMBER SIMON: I don't really know that that's what's meant by step 2. The step 2 is more about how the bias impacts the decision-making. That's what step 2's about. And you've just said to us that it relates back to not giving a reasonable opportunity to provide written submissions. I'm not sure that's what step 2's about. LAMBERT: I didn't just say that. PRINCIPAL MEMBER SIMON: Perhaps if you could then address as to how this alleged bias has affected the decision, or infected the decision. That would be useful. LAMBERT: Well, we say that for example, there's clear evidence in the transcript that Mr Comino was coaching Mr Macey whilst under cross-examination. PRINCIPAL MEMBER SIMON: Well, she put a stop to that as soon as she 30 saw it happening. LAMBERT: Three times, Principal Member. She should've actually-- PRINCIPAL MEMBER SIMON: Well, she can only stop it. LAMBERT: She should've actually-- PRINCIPAL MEMBER SIMON: What do you suppose she does about it? LAMBERT: --discontinued the proceedings, and we say that because of the apprehended bias, she didn't, so instead of actually, actually doing what she should've done, which is that she should've discontinued the proceedings when it occurred for the second time, yes, she captures it on the first occasion and she issues him with a warning. Then it occurs again. She issues another warning. At that point, she should've seriously given consideration to curtailing the proceedings in their entirety and we say that she didn't do that because she was biased against Mr De Marco. And that's one of the primary factors, we say, that in terms of the second factor, that's indeed an articulation of how the - how her jaundiced opinion of Mr De Marco was a deviation from the natural evaluation of the merits of the case, because there were no natural merits in that instance when Mr Macey was being coached in his cross-examination, and we say that a reasonable bystander would've easily apprehended bias in that regard. PRINCIPAL MEMBER SIMON: Yes, okay. SENIOR MEMBER BURTON: Can I ask you this. What you're saying, how does it apply to an analysis of what the Member actually does at paragraphs 51 and following, because-- LAMBERT: Well, I'd have to go to and following, Senior Member. SENIOR MEMBER BURTON: Yes. PRINCIPAL MEMBER SIMON: Yes ..(not transcribable).. SENIOR MEMBER BURTON: The point being that irrespective of how angry she seems to be getting with both parties and then accepting your point maybe more with yours, how does it actually reflect in choice of evidence, because it seems she just deals with the evidence as it falls out at and following? Isn't that where you have to show that it's in first her decision to get through what Principal Member Simon has put to you on that second stage? LAMBERT: No, I disagree with that submission. We say that these proceedings entirely miscarried, and they miscarried at the point when she discovered that a witness was being coached. And what follows thereafter is irrelevant thereafter. I mean, I hear what you're saying, that, you know, she attempted to try to deal with the evidence as it was before her, but then the manner in which she deals with, for example, the exhibit A4, which the respondents attempt to use, is exhibit A4 is filed by the respondents and it's missing columns of the right-hand side. She then actually reads the columns in to Mr De Macey's(as said), which was a prior affidavit, to cure that affidavit. She doesn't leave - she doesn't set it aside and say, "Well, that's not admissible." Well, she says it's not admissible. She says it's not admissible, but then what she does is she then, over the course of the hearing - and you can see this if one reads the transcript - she reads those columns in to evidence for Mr De Macey, so it's all very well to say that, you know, she deals with the evidence as it falls out. I wouldn't say that at all. I would in fact say she favours Mr De Macey in terms of curing his evidence. SENIOR MEMBER BURTON: You fundamentally disagree then with the analysis in paragraphs 33 to 35 of the Primary Member's decision, where she puts an analysis of the way that document was dealt with. LAMBERT: I fundamentally disagree with it, yes. SENIOR MEMBER BURTON: Yes." [my emphasis]
I accept that the extract of the transcript above reveals that Counsel for the appellant withdrew his submission that the Tribunal Member had predetermined the proceedings on the basis of her comments "I will not tolerate the extreme lying which you have been since you walked into this room, spinning story after story. You know what I'm talking about…". However, it is my view that the allegation of apprehended bias was not withdrawn.

The Senior Tribunal Member's decision dated 8 July 2022

The hearing before the Senior Tribunal Member took over 4 days on 27 September 2019, 3 December 2019 and 18-19 May 2020 (via telephone).
The reason that I reproduce this portion of the Senior Tribunal Members decision at [25]-[40] is that it was considered and largely adopted in the Appeal Panel's decision: "[25] Before attempting to outline the respondent's case, it is useful to make some general observations and findings. [26] The first of these is that the respondent failed to take every opportunity he was given to present his case in a way that would assist him and indeed assist the Tribunal. [27] Despite numerous directions made before the substantive hearing and for the adjourned period between the first and subsequent substantive hearing dates, the respondent chose not to put on any clear and concise evidence that at the very least would crystalize his defence. [28] What the respondent chose to do was to produce at the first substantive hearing date of 27/9/19, a bundle of documents which were allowed in without objection and marked R1. [29] At the conclusion of that day, the evidence not having completed, both parties were given a further opportunity to file and serve evidence. Once again the respondent chose not to comply with the Tribunal's directions and instead produced a second bundle of documents at the commencement of the next hearing day. [30] In light of his insufficient and unsubstantiated reasons as to why this evidence was not filed and served as directed, his prior history of non-compliance with directions and the advanced stage of the proceedings, I refused the respondent leave to rely on these documents. [31] The way the respondent conducted his case failed to serve his case and only served to frustrate the proceedings and muddy the waters. This is best illustrated by the following examples. [32] Some days before the resumed hearing day, the applicants served a "correction document" which adopted a different format to exhibit A4, which was filed and served as directed. Amongst other things, A4 sets out the applicants' response to the figures put forward by the respondent in his document R1, which it will be recalled was allowed into evidence at the commencement of the first hearing day, the respondent not having complied with directions for the filing and serving of evidence. [33] As the formatting of A4 resulted in a failure to reproduce all relevant columns in full, on each page of that document, some care was required in correlating the relevant columns set out in R1, with those reproduced and then responded to, in A4. For ease of reference and convenience the applicants prepared a correction document which duplicated the columns set out in A4 in complete form, on each page. This correction document was served on the respondent a few days before the hearing resumed. [34] Due to the respondent's insistence that he had not had sufficient time to consider the correction document, I allowed an adjournment for him to review both A4 and the correction document and to satisfy himself that the correction document was no more than a clarification of A4 (which, as noted had been served as directed) . [35] When, after this adjournment, the respondent seemed unable or unwilling to undertake this simple process and in an effort to advance matters, I disallowed the correction document and with the parties' assistance embarked on the process of correlating the relevant tables in R1 with the corresponding tables in A4, thus confirming on the record that A4 (see pp 35-40 ) reproduces the respondent's columns ( see pp30-53 R1) and is the applicants direct response to the figures the respondent sets out in those columns. [36] Another instance of the respondent's unfortunate approach relates to the oral submissions. At the close of the evidence, I advised the parties that in my view it was unfair to require an unrepresented party to respond to the written submissions of the other party's solicitor. For this reason the matter was adjourned to the following day for oral submissions, the Tribunal having explained what would be required and the purpose of submissions. When the time came for the respondent to address the Tribunal he stated that he was unprepared, faced with what had been the applicant's' solicitor's oral submissions earlier that morning. [37] The respondent was given the lunch break to collect his thoughts, having had the preceding evening to prepare his submissions. [38] Once again, however, the respondent did not act so as to put forward his submissions in a way to assist his case and the Tribunal. The respondent had some 3 hours after the lunch break to state his oral submissions and was given considerable leeway during that time while he took prolonged pregnant pauses, fixating on the monetary figures in issue. Although the respondent had some considerable difficulty in crystalizing his figures ( a matter I address below) the actual difference between the parties as to the amounts due and paid is not substantial. There are clearly more pressing issues such as why the contract was terminated and the state of the contract work at the time of termination. Notwithstanding this the respondent, in making his oral submissions, persisted on fixating on the applicants' figures and refusing to move onto other issues, giving the impression that he was deliberately delaying matters. After several warnings, when the respondent refused to move from his entrenched position I ended the hearing without the respondent having completed his submissions. [39] In taking this unusual course I was influenced not only by what I have described above but also by the respondent's history of non-compliance; the fact that throughout the hearing the respondent repeatedly acted so as to prolong proceedings by raising unsubstantiated matters pertaining to his financial predicament, his health and other personal circumstances, which he claimed hindered him in complying with the building work, the Tribunal's directions and now, it seemed, in making his oral submissions. Indeed, when cross-examined the respondent appeared to expand and add to these unsubstantiated matters, once again, giving the impression that he was obfuscating. [40] Further, the applicants' submissions, to which the respondent was required to respond, were confined to matters that had clearly been in the arena for some time. The respondent's objections, interjections and cross-examination during the hearing left me in no doubt of his grasp of these matters."

The Appeal Panel's decision dated 28 September 2021

The Appeal Panel was comprised of Principal Member Simon and Senior Member Burton ("the Appeal Panel").
The Appeal Panel recorded: "[24] The grounds of appeal as pressed were as follows: (1) The Tribunal erred in law in its alleged failure to accord procedural fairness when "it refused to give the [self-represented builder] sufficient time to consider and respond to the extensive oral submissions of the solicitor for the [owners]" and "ended the hearing without notice" with resulting failure to give a fair hearing and to "ensure the [builder] was not subjected to actual or apprehended bias". … [25] At [25]-[40] of the reasons for decision, the Tribunal set out a detailed history of the preparation for hearing and the conduct of the hearing."
The submissions made by counsel for the appellant before the Appeal Panel and set out earlier go way beyond the grounds of appeal articulated in the Notice of Appeal.
Under the heading, "Consideration and conclusion on appeal grounds, Procedural Fairness", the Appeal Panel stated at [37]: "[37] We have been provided with comprehensive transcript of the hearing and written and oral submissions on that transcript. It is necessary to consider the selected passages with which we were presented in their context."
That transcript and the written and oral submissions concerning the transcript before the Tribunal Member were also before this court and I have carefully read them.
At [38]-[55] the Appeal Panel continued: "[38] We have also taken into account, as context for what occurred at final hearing, the Tribunal's findings about the builder's apparently haphazard conduct of the preparation for hearing. The builder was given opportunities and extensions of time with which he did not comply. The Tribunal comprehensively set out at [25]-[40] the procedural history of the matter. That history was not challenged on appeal beyond the limited aspects raised in the builder's submissions, which touch on the pre-hearing findings of failure to prepare by the builder. [39] In our view the transcript reveals thorough care by the Tribunal throughout the proceedings to accord the builder procedural fairness in the face of conduct by the builder that did not comply with the duties of co-operation required under s 36 of the NCAT Act. This included providing time overnight and some extra time on the last day of hearing to allow the builder to consider what he was going to say about well-known issues on material that had long been in evidence. There was no explanation why preparation for submissions had not occurred. The owners' solicitor addressed nothing new in relation to the evidence and the submissions were entirely predictable. It was clear at the end of the evidence that the matter was to proceed the next day and that each party would complete oral submissions. [40] The Tribunal split the time to provide submissions on last hearing day equally between the parties and pushed the owners to finish before allocated lunchtime to do so. The hearing ended early in the afternoon because the builder had nothing further to say and proposed he needed to more time to prepare. [41] As recorded above, the Tribunal found that the builder had "a firm grasp on the issues at hand". That firm grasp was demonstrated in the belated material he was allowed to put into evidence, the questions he asked and the lines of argument he put forward. [42] The builder had been provided with repeated indulgences in preparation. A belated realisation of the need to provide something further should not have been allowed to prejudice the other party who, for the most part, had advanced a timely and comprehensive presentation of their case. A party who does not comply and co-operate, without proper explanation, notice or justification, should not be granted last-minute indulgences at the expense of the other party: Italiano v Carbone [2005] NSWCA 177 at [85]-[86]. [43] The same applies to a choice not to take advantage of a grant of leave for legal representation; a choice of self-representation by one party is not in itself a legitimate basis for using the other party's choice to obtain legal representation to justify an indulgence at the last moment. [44] It was submitted that the Tribunal ought, in the context of the builder having difficulties in presenting his case, offered the opportunities of written submissions or a further adjournment to prepare. There was no formal application for further time or for an adjournment. The Tribunal gave the builder, even during submissions, long intervals to consider his next submission. It was at the very last moment that the builder said he needed more time: D4pm T 19-21. There was no substantiated justification provided as to why such a further concession would accord procedural fairness to both parties in the context of the procedural history and delays which the Tribunal described. [45] The builder had not provided a written response or submission between the commencement of the proceedings in April 2019 and immediately prior to the initial hearing date in December 2019, despite numerous opportunities and directions. In December 2019 he filed his material late and that was admitted. However, despite directions to do so, he chose not to reply in March 2020 to the owners' response in February 2020. [46] The builder did not demonstrate what additional benefit the builder would have obtained from an adjournment and/or the opportunity to make written submissions. It seems to us that the primary points in the builder's defence were made by him, given his grasp of the issues, as best could be made on the state of the builder's own evidence and were considered by the Tribunal. [47] The builder did not put forward a basis to which have warranted an adjournment at such a late stage: see, eg, O'Neill v T & I Engines PL [2015] NSWCATAP 77 at [22]. [48] Further, there is no basis for the allegation of bias and any inference of pre-judgment was withdrawn before us during oral submissions. Constraints were caused by the builder's lack of compliance with the directions procedures that are designed to facilitate a party's preparation and presentation of the party's case. Tribunal's evident frustration at points with the builder and his conduct did not translate into a denial of a proper opportunity to present his case. [49] The Tribunal expressed at points an equivalent, if not greater, level of frustration with the owners' expert and others on the owners' side of the record for failures in preparation and presentation: see, eg, D1 pp 100-101 for the expert and throughout D2 and D3 transcript for the owners and their solicitor. This frustration with the owners' side of the record was entirely justified in respect of, not only preparation failures, but also numerous disruptive interventions by Mr Macey when he thought his solicitor, who was there to present the case, was not sufficiently making a point. [50] Apart from those expressions of frustration at each party's conduct of its case, in our view the Tribunal appropriately, in the context of a case that had preparation and presentation issues on both sides, sought to clarify the issues and the evidence in an even-handed manner. The builder has not demonstrated that the Tribunal's conduct in relation to the builder's submissions gives rise to a reasonable apprehension that the Tribunal would decide the case other than on its legal and factual merits: see, eg, Wootten v Godfrey [2019] NSWCATAP 255 at [24] and authority there cited. [51] In our view the Tribunal's questioning and interventions were a legitimate exercise in eliciting from the parties, and then testing with them, the grounds of the owners' claim and the builder's defence and what evidence had been provided in support. The degree of questioning and intervention with the builder was greater simply because his case lacked preparation and presentation. We reject the submission that the Tribunal's behaviour in that respect, including any frustration, was "demeaning" to the builder; rather, it was intended to understand the builder's case. [52] Finally, there was no means to identify from the transcript or other material before us who Mr Macey may have been speaking to at some points while giving his evidence in a telephone hearing, except on one occasion when the Tribunal said that it was the owners' solicitor. The main indication that there was background chatter in fact came from the Tribunal's intervention to identify that it was occurring and to seek to close it down in a telephone hearing when in-person hearings were not available, which was the appropriate course. … [55] In closing submissions, the builder agreed that the new builder's contract scope of works did not exceed his.... In closing submissions the builder also stated that his estimates of what had been expended from PC and PS allowances were not substantiated by documentation in evidence: D4pm T 6-20. On that matter the builder, contrary to his submissions on appeal, bore the onus of proof if he sought to challenge documented allowances in the contract with the owners. As a result of the builder's lack of substantiation on this point it was not possible, beyond the analysis that led to the owners' concession which we have already recorded in varying the final ordered amount, to deduct further amounts from the new builder's allowances (or add them to the owners' contract price beyond what was added) for such matters. (The owners' analysis was referred to in summary from the documentation in re-examination of the male owner…"

Judicial Grounds (1)-(2) - Actual and apprehended bias

In these grounds of appeal, the appellant contends that the Appeal Panel erred at law in not quashing the orders of the Tribunal and ordering/remitting the matter for rehearing before a different Tribunal Member on the grounds of apprehended and or actual bias on the part of the Tribunal Member. Further, it is argued that the Appeal Panel erred at law by acting on wrong principle and or taking into consideration irrelevant matters when: considering the ground of apprehended and or actual bias on the part of the Tribunal Member; and or dismissing the ground of apprehended and or actual bias on the part of the Tribunal Member.
The parties have referred to many authorities concerning: actual, apprehended and unconscious bias. I shall reproduce the most relevant ones here.
In Polsen v Harrison [2021] NSWCA 23 ("Polsen"), the Court of Appeal set out the principles that underpin the test of the reasonable fair minded lay observer at [46]: "[46] To the passages from the authorities extracted and emphasised by the trial judge…may be added the following propositions: (i) the application of the apprehended bias rule depends on the circumstances of each case; (ii) the fair-minded lay observer is an hypothetical figure, founded in the need for public confidence in the judiciary; (iii) there is an unavoidable level of imprecision in the standard of what a fair-minded lay observer "might" apprehend, such that a fanciful or speculative possibility must be clearly distinguished from the requisite "firmly-established" apprehension of bias; (iv) a finding of apprehended bias is not to be reached lightly; … (xi) the fair-minded lay observer is not presumed to reject the possibility of pre-judgment of a matter, otherwise an apprehension of bias would never arise in the case of a professional judge; … (xxi) the fair-minded lay observer would not reasonably apprehend bias on the part of a judge from a short and emotional exchange taken out of context and weighed in isolation; (xxii) the fair-minded lay observer will have regard to the cumulative effect of comments made by a judge and not to particular individual statements from their context; and (xxiii) subsequent statements made by a judge, following the comments or conduct said to give rise to a reasonable apprehension of bias, may indicate that an earlier expressed statement or impression was not final or that the judge had not committed to a particular point of view"
In VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 ("VFAB"), Kenny J in the Federal Court said at [81]: "[81] Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225, at 230: "While sustained ill-temper can give rise to a reasonable apprehension of bias, monetary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator." As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error."
Recently, in the decision concerning bias in Choi v Secretary, Department of Justice and Communities [2022] NSWCA 172, Ward P stated: "[3] The relevant test, where there is an application for a judicial officer to disqualify himself or herself for apprehended bias is as to whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide. The application of this (double might) test requires two steps: first, identification of what it is said might lead the decision-maker to decide a question other than on the merit of that question; and, second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [16] per Gleeson CJ, McHugh, Gummow and Hayne JJ, as confirmed by the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson) at [31] per Gummow A-CJ, Hayne, Crennan and Bell JJ). [4] In Ebner, it was said (at [8]) that: The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. [5] All the relevant circumstances of the particular case may be taken into account in applying the test, though only such knowledge of matters of legal or other specialist practice and process as can reasonably be attributed to the lay observer (including, perhaps, matters of which the observer would inform himself or herself before reasonably forming any firm apprehension) will be taken into account (Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 at 584-585 per Toohey J; Najjar v Haines (1991) 25 NSWLR 224 at 239-240 per Clarke JA). [6] The relevant standard of assessment was set out by Kirby J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [111] namely that: … It is enough to show that "in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it". … (Emphasis in original) [7] It is important also to bear in mind the caution that judges should not too readily accede to applications for disqualification for apprehended bias, since otherwise litigants may succeed in effectively influencing the choice of the judge in their own court (see (Spedley) at 417-418 per Kirby P, as his Honour then was, his Honour there referring to cases including Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 at 352 per Mason J, as the Chief Justice then was; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 at 276 per Priestley JA, with whom Hope and Glass JJA agreed, and Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 (Fitzgerald) at 49 per Samuels JA, with whom Mahoney and Meagher JJA agreed). In Spedley, Kirby P (as his Honour then was) said (at 418) that: Judges should perform the duties of their office which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness avoiding the relinquishment of their duties which will then necessarily fall to another judicial officer for whom the task may be no more congenial. Such relinquishment will also involve costs, delay and inconvenience to parties who are otherwise entitled to have the decision of the judicial officer appointed to their case [his Honour there referring to Re JRL; Ex parte CJL; Re Polites; Ex Parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 100 ALR 634]."
These principles of apprehended bias also apply to a Senior Tribunal Member.
I have confined the appellant's submissions to those that relate to the grounds articulated in the Notice of Appeal.

The appellant's submissions

Although it is true to say an allegation of conscious pre-judgment or conscious bias was withdrawn, it is not true to say that the potential for unconscious bias was withdrawn and the appellant proceeds on this aspect of Grounds (1) and (2).
On the final day of the hearing when the self-represented applicant has been forced on by the Tribunal to make closing submissions, other than on one occasion, the Tribunal Member is entirely non-responsive, for the most part says nothing but "Mn-hmm" and immediately soon after this exchange abruptly terminates the proceedings without notice.
It should be observed that on a plain reading of the face of the transcript it cannot be said that the comments directed by the Senior Tribunal Member at the appellant throughout the proceedings, could or should be characterised as simple frustration. The frequency and very nature of the comments in and of themselves, although perhaps engendered by the Tribunal Members "evident frustration" are both hostile and at times derogatory.
The Appeal Panel's decision makes no reference to the objective informed fair-minded observer anywhere in its' decision nor does it make any reference to the individual exchanges relied upon by the appellant in its submissions before the Appeal Panel, nor does it make any reference to what might have been the cumulative effect of the comments by the Tribunal Member.
In fact, the reasoning of the Appeal Panel amounts to the following invalidly premised syllogism; (i) the Tribunal expressed evident frustration with the appellant; (ii) the Tribunal expressed an equal if not greater level of frustration with the respondent; therefore (iii) the appellant was accorded procedural fairness, natural justice and a fair hearing.
The reasoning of the Appeal Panel is fallacious as both the major and minor premises are negative and therefore, as per the rules of syllogistic reasoning it follows the conclusion cannot be positive. It goes without saying that reasoning of this nature does not satisfy the test required by the authorities for either actual or apprehended bias and is an irrelevant consideration.
In light of the comments and conduct of the Senior Tribunal Member there was an objective possibility that an informed fair-minded observer might apprehend that the Tribunal Member would not determine the matter impartially.
It is arguable that these comments and conduct are (i) the factor which might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits; (ii) the comments and conduct caused a deviation from a neutral evaluation of the merits in that the Tribunal member did not have an open mind to the arguments and evidence that was put before her by the appellants; and (iii) there was a reasonable apprehension of her not having an open mind to the arguments and evidence put before her by the appellant and therefore a reasonable apprehension that she would decide the matter otherwise than as a result of neutral evaluation of the merits of the matter.

The respondent's submissions

Contrary to what is asserted at appeal submission [15], the Appeal Panel addressed the questions of bias and fair hearing.
Given the appellant does not dispute that it withdrew any allegation of any inference of pre-judgement (NCAT Appeal Determination [48]), the appellant has not identified how it was open to it now to raise the issue of actual unconscious bias in these proceedings. There is no evidence that the issue of actual unconscious bias was raised during the hearing of the Appeal.
It is evident that the Appeal Panel considered the issue of bias on a cumulative basis and respectfully correctly when it considered the approach of the Tribunal on the whole as being "in an even-handed manner".
To the extent that the real gravamen of the appellant's complaint is that the NCAT Appeal Panel should have considered each and every 'intervention' by the Tribunal at first instance. The appellant does not articulate how it presented its case in that manner before the Appeal Panel. It is not evident that it asked the Appeal Panel to "consider each of these individual comments" (Appeal Submissions [36]). Hence, the appellant should not be permitted to raise the issue anew in these proceedings.
The question that arises is whether the appellant has identified the 'hypothetical factor' in relation to which the Senior Member at first instance might have decided the case other than on its legal and factual merits which are said to give rise to an apprehension of bias.
In any event, the appellant does not articulate how any error in the NCAT Appeal Panel's approach in this respect led it into material error of law.
In reply, the appellant's submissions covered topics that were not articulated as grounds of appeal in the summons. As the allegations of bias against a Tribunal Member are of a very serious nature the appeal grounds need be set out with precision. I need only refer to a few of them which are somewhat repetitive.

The appellant's submissions in reply

The test for determining bias, in particular apprehended bias, is not whether the Appeal Panel considers the Tribunal's conduct to be even-handed. Rather, it is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. It should be noted by this Court that the term 'fair minded lay observer' appears nowhere in the decision of the Appeal Panel.
Therefore, the reasonableness test as to whether or not a fair-minded lay observer would have apprehended bias on the part of the Tribunal is relatively low. And it is submitted that the conduct of the Tribunal in this matter satisfied this relatively low test and the Appeal Panel erred at law in failing to find apprehended bias on the part of the Tribunal.
In identifying that rationale, Lord Hewart was not referring to the fundamental importance that justice should manifestly and undoubtedly be seen by other members of the judiciary. His Lordship was referring to the fundamental importance that justice being manifestly and undoubtedly being seen to be done should be the perception of both the parties and the general public.
It is difficult to understand how the Appeal Panel could have come to the 'cumulative' conclusion that the Tribunal's conduct did not give rise to a reasonable apprehension of bias when it entirely failed to consider the nature of any of the individual comments made by the Tribunal member.

Resolution

I agree that on appeal the issue of bias should normally be dealt with first. However, this issue was not set out in the Grounds of Appeal in this Court, but more importantly this issue was not set out in the Appeal Grounds before the Appeal Panel nor was this principle drawn to its attention. What was addressed first by the Appeal Panel was an arithmetical correction of little moment. For these reasons, it is my view that the Appeal Panel did not make an error of law here.
Earlier in this judgment, I accepted that at the hearing before the Tribunal Member, Counsel for the appellant withdrew his submission that the Tribunal Member had predetermined the proceedings. It follows that the appellant was no longer alleging actual bias. However, he did not withdraw his submission in relation to apprehended bias.
The relevant test, where there is an application for a judicial officer to disqualify himself or herself for apprehended bias is as to whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide. The application of this (double might) test requires two steps: first, identification of what it is said might lead the decision-maker to decide a question other than on the merits of that question; and, second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits (citations omitted). An application was not made by the appellant to the Tribunal member to disqualify herself but he was no doubt unaware that he could have done so as a self-represented litigant.
The respondent has submitted that the specific language used in the Appeal Panel's judgment demonstrates that it had given proper consideration to the totality of the comments made by the Tribunal Member over the course of the hearing in deciding that there was no bias.
The Appeal Panel did not make any specific reference to the language used by the Senior Tribunal Member. In my view, it is inaccurate to classify the number of the exchanges between the appellant and the Tribunal Member over 4 days namely on 27 September 2019, 3 December 2019 and then 18-19 May 2020 (these last two days were by telephone) as "mere frustration". To give a few examples, the Tribunal Member expressed that she was "sick of" the way the appellant was responding to her questioning, she questioned the appellant's intellect, asking whether a simple task was "beyond [him]", and at one point regrettably saying to him "I will not tolerate the extreme lying which you have been doing since you walked into this room spinning story after story. You know what I'm talking about. I'm sick of you telling me there's an easier - what's easier and then we just go on and on and on and its not easy in the end. Do you know what's easy? What you signed up for under the contract." She explicitly expressed her "frustration" with the appellant on numerous occasions and her belief that the appellant was deliberately being difficult "as a ploy", noting at one point that she needed to take a break because she was at risk of saying something that she might "regret" on the basis that the appellant was "incapable."
Isolated incidences of frustration expressed by judicial officers or Tribunal Members do not give rise to an apprehension of bias in the mind of a reasonable person. However, at this hearing over four days there were numerous demeaning, belittling and condescending comments made to the unrepresented appellant. It is not to the point, as the Appeal Panel stated at [49], that the Tribunal Member expressed at points an equivalent, if not greater level of frustration with the respondents.
I have found this to be a difficult decision. I accept that the appellant was a difficult litigant. However, there are grounds to think that the numerous unfavourable and critical comments made by the Tribunal Member might have led her to lose objectivity so as to decide a question other than on its merits. There is a logical connection between this behaviour and the apprehended or feared deviation from the course of deciding the question other than on its merits. In these circumstances, it is arguable that a fair minded lay observer might reasonably apprehend that the Tribunal Member might not have brought an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide. The Appeal Panel did not properly address the issue of apprehended bias. In this regard, the Appeal Panel erred in law. Its decision should be set aside.

Judicial Ground (3) - Denial of procedural fairness

In these grounds of appeal the appellant submits that the Appeal Panel erred at law in not quashing the orders of the Tribunal and ordering/remitting the matter for rehearing before a different Tribunal Member on the grounds that: the appellant was denied procedural fairness and or afforded natural justice; and or the hearing miscarried.
The 6 key issues in relation to procedural fairness are: (1) the issue of the Tribunal starting without the appellant present; (2) the issue of the respondent talking with his solicitor while under cross examination; (3) the failure of the Appeal Panel to ensure the appellant understood his rights; (4) the procedural unfairness of Exhibit A4; (5) the procedural unfairness of requiring the appellant to cross-examine the respondent without the respondent providing a prior written statement as to contract termination; and (6) the issue of the failure of the Tribunal to assist the self-represented plaintiff's informal application for an adjournment and the abrupt termination of the proceedings by the Tribunal.
Only some of these key 6 issues may amount to a denial of procedural fairness but as the proceedings are to be remitted to a differently constituted Appeal Panel it is more appropriate that they be dealt with there after it considers the issue of apprehended bias. Some of the issues raised overlap and the arguments concerning apprehended bias.

Result

The result is that the decision of the Appeal Panel dated 28 September 2021 is set aside. The matter is to be remitted to a differently constituted Appeal Panel to be dealt with according to law.

Costs

Costs are discretionary. Costs normally follow the event. The defendants are to pay the plaintiff's costs.

The Court Orders 1. Leave to extend the time to file the summons up to and including 27 October 2021 is granted. 2. Leave is granted to appeal. 3. The decision of the Appeal Panel dated 28 September 2021 is set aside. 4. The matter is remitted to a differently constituted Appeal Panel according to law. 5. The defendants are to pay the plaintiff's costs.

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: 05 October 2022

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