Designer Blinds and Plantations Pty Ltd v Finocchiaro

Ground of appeal

1. The notice of appeal had been prepared by the appellant without apparent or disclosed legal assistance. In accordance with the approach outlined in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [12] we discern the ground of appeal to be that the appellant did not receive procedural fairness because it did not receive notice of the final hearing.
2. The appellant in effect sought a fresh hearing where it could put its case. On the appeal it sought to put forward material which, if it had been filed and served in accordance with directions for the preparation for the primary hearing, would in all likelihood have generated evidence in reply by the now-respondent. There was no indication that such material was not available to be filed and served in a timely fashion for the primary hearing.

Applicable legal principles for appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) provides as follows: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."
2. Clause 12 of Schedule 4 to CATA states: "An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."
3. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
4. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
5. These categories are not exhaustive of errors of law that give rise to an appeal as of right. In Prendergast at [13], the Appeal Panel enunciated the following as specifically included: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
6. Turning to asserted errors of fact, in respect of which leave to appeal is required, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]-[79] and [84(2)] as follows: "74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. 84 The general principles derived from these cases can be summarised as follows: … (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."
7. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that decision the Appeal Panel stated at [37]-[39]: "37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"
8. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."
9. Even if the appellant establishes that it may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the CATA, the Appeal Panel has a discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Panel's consideration of whether or not to exercise that discretion.

Error of law

1. Absence of procedural fairness as alleged by the appellant would be, as noted above, an error of law.
2. Inspection of the Consumer and Commercial Division file confirms that the Notice of Hearing (NOH) for 8 January 2021 directed to the then-respondent (now appellant) was posted to the current principal place of business of the then-respondent at Campbelltown in NSW, where the then-respondent had received other notices including the Tribunal's directions of 9 November 2020. That was also the address on the contract and the invoice issued by the appellant to the respondents.
3. The NOH was dated 11 November 2020 and was sent the same day as the applicant (now respondent to the appeal) emailed to the Registry (in compliance with directions) an ASIC search dated 9 November 2020 showing the former registered office and principal place of business of the respondent at Appin in NSW, which the respondent, by its own admission in the Notice of Appeal, had not updated.
4. The email was sent at 2.40pm on 11 November 2020. We assume that the NOH was prepared and possibly put in the post before the email was sighted or processed.
5. Review of the transcript leads us to draw the inference that the Tribunal did not rely on deemed service but, rather, saw the congruence between the principal place of business (as recorded on the contract and invoice) and the address to which previous notices had been sent and was satisfied by inference of continuity of receipt that the appellant knew the hearing date, knew about the directions to put on evidence and essentially did nothing. There was sufficient in the application and supporting material to require a response by way of evidence and argument, as the appellant's belated material demonstrates.
6. If the primary member's inference was correct, as we think it was, then there is no substantive basis to say the appellant was denied procedural fairness because the Tribunal had before it at hearing only the applicant's material.
7. Although the primary member did not express, either orally at the hearing or in his published orders, his reasons for concluding that the appellant had received notice of the hearing, the member nevertheless recorded a finding to that effect.
8. It was open to the appellant, pursuant to s 62 of the CATA, to seek written reasons for that finding. The appellant did not do so. As we have noted above, there was a rational basis upon which the member could have reached that conclusion and, not having sought written reasons, it is not open to the appellant to seek to appeal on the basis that the member did not provide adequate reasons for his finding.
9. It is apparent from the transcript which the parties provided after the hearing that the Tribunal gave detailed reasons for its substantive conclusion in favour of the then-applicant, that were grounded in the evidence before it.
10. The appellant received the Tribunal's orders of 9 November 2020. It claims that it didn't receive the applicant's material to which it was to respond by a certain date. However the appellant raised no query about that. The appellant has not filed any affidavit or statutory declaration to support its assertions concerning the non-receipt of the respondent's evidence or notice of the hearing. Such an affidavit or statutory declaration would have been required if the appellant had sought to set aside the primary decision pursuant to s 55(2) of the CATA rather than lodging an appeal.

Appropriate relief on appeal

1. CATA s 81 provides as follows: "(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance."
2. There was no established absence of procedural fairness, no other established error of law and no established basis for a grant of leave to appeal.
3. The appeal must be dismissed. Order 3 of the orders made at the primary hearing permitted the respondent to dispose of the blinds if the appellant had not collected them within two weeks of the date of the orders. That order has been stayed until further order. The stay should be lifted but it is appropriate that the appellant have a further period of two weeks to collect the blinds. Accordingly orders 2 and 3 made by the Tribunal on 8 January 2021 (and amended on 11 and 12 January 2021) should be varied by replacing 22 January 2021 with the date which is fourteen days after the publication of this decision.

Costs of appeal

1. The parties were self-represented, no leave for legal representation on the appeal was sought or granted, and there are no special circumstances put forward, or evident, that justify an award of costs of the appeal under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW).

Orders

1. The orders we accordingly make are as follows: 1. Appeal dismissed. 2. The stay of order 3 made on 8 January 2021, granted on 3 February 2021, is lifted immediately. 3. Orders 2 and 3 made on 8 January 2021 are varied by replacing "22 January 2021" in each order with the date that is fourteen days after the date of publication of these orders.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 June 2021