Donohoe v Albulario

CATAP 98 Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; 20 BPR 43 Thomas v The King (1937) 59 CLR 279; [1937] HCA 83 Waterford v The Commonwealth (1987) 163 CLR 54; [1987] HCA 25 Category: Principal judgment Parties: Christopher Donohoe (Plaintiff) Crisanto Albulario (First Defendant) Ellen Albulario (Second Defendant) NSW Civil and Administrative Tribunal (Third Defendant) Representation: Counsel: DP O'Connor (Plaintiff) HM Atkin (First and Second Defendant)

Solicitors: Adams & Partners (Lawyers) (Plaintiff) Crown Solicitor (Third Defendant) File Number(s): 2024/353794 Decision under appeal Court or tribunal: Civil and Administration Tribunal New South Wales Jurisdiction: Appeal Panel Citation: [2024] NSWCATAP 166 Date of Decision: 28 August 2024 Before: G Blake AM SC, S Higgins (Senior Members) File Number(s): 2024/200508

JUDGMENT

1. BASTEN AJ: In August 2020 the plaintiff, Christopher Donohoe (the builder), undertook to build a two-bedroom home for the defendants, Crisanto and Ellen Albulario (the owners), on a block of land in Leura. The initial contract price was $339,000, subsequently varied to $358,097. The builder was paid $338,047, but the home was not completed within the agreed period or within subsequent extensions granted by the owners.
2. On 22 September 2023 the owners terminated the contract and on 26 September 2023 commenced proceedings in the New South Wales Civil and Administrative Tribunal (the Tribunal) seeking compensation for defective and incomplete works, together with damages for loss caused by the builder's delay.

Proceedings in Tribunal

1. With admirable expedition, the Tribunal, constituted by a senior member of the Consumer and Commercial Division, Mr R C Titterton OAM, conducted a hearing on 13 December 2023, less than two months after the proceedings were commenced. However, a substantial issue which arose from that initial hearing was whether the builder had been accorded procedural fairness.
2. On 29 April 2024 the Tribunal delivered a decision rejecting claims for defective works, but accepting a document prepared by a Mr Sam Elali, the accounts manager for a construction entity known as "the Mattrix Group" as to the cost of completion of the works. Mr Elali estimated the price of completing the building as "between $350,000 and $390,000". The Tribunal allowed an amount of $380,000 for completion costs, from which was deducted an amount of $16,950 which the owners would have paid to the builder had the builder completed the works. The amount allowed was therefore $363,050. The Tribunal also allowed an amount of $26,000 for "delay damages". The two amounts were added (incorrectly) and an order made for payment of $399,050. (The amounts total $389,050.)
3. By an agreement dated 25 November 2020, shortly after construction commenced, a schedule of payments was provided giving a total of $339,000. (The Tribunal's reasons incorrectly noted the total as $33,900, clearly a typographical error.)
4. There was no dispute that the works had reached "lockup" stage, the builder giving evidence at the hearing that the works were "75 to 80% complete", which he later corrected to "90 to 95% complete". [1] Given the document prepared by Mr Elali the Tribunal stated that "it appears the amount at completion was at the lower end of the scale", apparently referring to the 75-80% estimate. The discrepancy between the initial contract price, as varied, and the estimate of the cost to complete the works was, nevertheless, neither self-evident nor explained.

Proceedings before the Appeal Panel

1. On 27 May 2024, a solicitor for the builder filed a notice of internal appeal to an appeal panel of the Tribunal. Pursuant to s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), an appeal was available "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds". In the notice of appeal, a box was ticked indicating that leave was sought (though no order for leave was included in the annexure to the notice), but the grounds identified what were described as "errors of law". (It will be necessary to return to the grounds shortly.)
2. At a hearing on 19 August 2024, before two senior members of the Tribunal constituting the Appeal Panel, the builder was represented but the owners appeared in person. Again with admirable expedition, the Appeal Panel delivered its decision on 28 August 2024, nine days after the hearing. [2] The reasons of the Appeal Panel summarised the issues before it and the outcome in the following terms: "2 The substantial issues in the appeal are whether the Tribunal made errors because it failed to afford procedural fairness to Mr Donohoe by conducting the hearing on 13 December 2023 in accordance with the proper procedure by failing to inform Mr Donohoe that he had a right to apply for an adjournment and to cross-examine the expert witness of the Albularios, accepted the evidence of the Albularios as to the existence and reasonable cost of remedying incomplete work, and made a money order rather than a work order. 3 We have decided that the Tribunal did not make any such errors. It follows that we have decided to refuse leave to appeal and order Mr Donohoe to pay the Albularios' costs of the appeal."
3. As the Appeal Panel noted, on 12 August 2024 the builder had lodged amended grounds of appeal signed by his counsel, grounds 1, 2 and 3 of which challenged the reliance by the Tribunal on the document prepared by Mr Elali, without advising the builder that if that statement were accepted, he had no material by way of response and was entitled to seek an adjournment to remedy the situation. These steps were necessary, ground 1 submitted, to ensure procedural fairness. Only ground 4 (dealing with a different issue) contained an application for leave.
4. The Tribunal identified two preliminary matters, namely that the appeal (1) "was lodged within time", and (2) "is on one or more questions of law". [3] Having determined that the appeal was lodged within time, the Appeal Panel turned to the second question. [4] The Appeal Panel concluded that each of grounds 1, 2 and 3 was "properly characterised as a question of mixed fact and law" and therefore not a question of law. It therefore denied the builder a right of appeal, absent a grant of leave, which it proceeded to consider and refuse.

Proceedings in this Court

1. On 24 September 2024, the builder filed a summons seeking leave to appeal from the decision of the Appeal Panel. (Contrary to the express provision in the Act, the Tribunal was joined as a defendant. [5] ) The grounds of appeal can best be described as inarticulate and confusing. An amended summons was filed on 6 November 2024, with grounds which will be noted below.
2. In the course of the hearing in this Court, the parties raised two "jurisdictional" issues. The owners sought and obtained pro bono counsel, who provided careful written and oral submissions. The owners contended that the builder had no right of appeal to this Court, because the Appeal Panel had made no decision in the internal proceedings before it, except to refuse leave to appeal, with the result that there had been no appeal before it. This contention was based upon an ingenious interpretation of the statutory provision conferring a right of appeal to this Court, namely s 83(1) of the CAT Act. For reasons explained below, that contention must be rejected.
3. The builder's primary submission in this Court was that the Appeal Panel had erred in rejecting grounds raising issues of procedural unfairness as not involving one or more questions of law. If accepted, that submission has the unfortunate consequence that, unless leave is refused, the matter will need to be returned to the Appeal Panel or, perhaps, the Tribunal for a further initial hearing.
4. Before considering the issues sought to be raised by the builder, it is necessary to identify and address the contention of the owners that this Court has no jurisdiction to hear the proposed appeal.

Jurisdiction of Supreme Court

1. The jurisdiction of this Court turns upon the terms of s 83(1) of the CAT Act which reads: 83 Appeals against appealable decisions (1) 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.
2. The "internal appeal jurisdiction" of the Tribunal includes an appeal from a "general decision", and is, perhaps with a degree of superfluity, identified as an "internal appeal". [6] The "internal appeal jurisdiction" excludes an appeal from a decision made by the Tribunal sitting as an appeal panel. [7] It was not in dispute that the single member of the Tribunal was exercising the Tribunal's "general jurisdiction", so that the decision of the Tribunal determining the original dispute was a "general decision". [8]
3. To appreciate the significance of the owners' submissions, it is necessary to have reference to the whole of s 80 providing for "internal appeals": 80 Making of internal appeals (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.
4. This provision distinguishes between an internal appeal made as of right and one made with leave: s 80(2)(b). Where leave is required there is, the defendant submitted, no internal appeal until leave is granted. An applicant for leave is not a "party to an … internal appeal" for the purposes of s 83(1). Therefore, there is no proceeding in which a decision is made until leave is granted. The term "the proceedings" in s 83(1) must refer to the proceedings of an internal appeal.

Legal principles

1. The descriptor "question of law" is used in the CAT Act to identify both the jurisdiction of the Appeal Panel and the jurisdiction of this Court. [11] It is a term which by necessary implication excludes appeals which do not raise a question of law. As Spigelman CJ explained in Attorney-General for the State of New South Wales v X:: [12] "31 In a joint judgment, the High Court said in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394: 'The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has as yet been formulated.' 32 As this passage indicates, it is often the case that analysis of whether a particular matter answers the description of 'question of law' proceeds on the basis that those words are used in contra-distinction to 'question of fact' and that the combination of the two formulations exhausts the whole of the relevant sphere of discourse." As the Chief Justice accepted, it is "usually, but not always, useful to proceed on this basis".
2. In the present case, the Appeal Panel rejected the builder's appeal as of right on the basis that the grounds were each properly characterised as "a question of mixed fact and law". Whether that characterisation creates a third category, or merely takes the particular ground outside the "question of law" category, is a semantic issue which need not be pursued. [13] On one view, to describe a ground as raising a question of mixed fact and law suggests the possibility that there is a question of law which might be addressed, but that the pleader has failed to separate that question, or, perhaps, has identified it only at an unhelpful level of generality. As the High Court noted in a valuation case, Maurici v Chief Commissioner of State Revenue: [14] "We do not doubt that the question argued there, and again here, as to the relevance of scarcity, was a question of at least mixed law and fact. The making of a valuation will frequently involve an application of legal principle or principles. Questions of law, fact and opinion do not always readily and neatly divide themselves into discrete matters in valuation cases and practice …."
3. The very fact that these are semantic questions is important. As Spigelman CJ further noted in Attorney-General v X: "28 The determination of whether a particular alleged error in matters such as fact finding, the exercise of a discretion or a process of evaluation answers the description 'question of law', will depend on the scope, nature and subject matter of the statute, including the nature of the body making the relevant decision. In the present case the decision maker is a Judge of the Supreme Court of New South Wales. Different consideration may apply in the case of a non-judicial decision maker. (See e.g. Craig v South Australia (1994-1995) 184 CLR 163 esp at 176-180). 29 It is not necessarily the case that the meaning given to the words in one statutory context should be applied in another. However, a number of matters have been identified to constitute a 'question of law' in such a way that they would generally fall within those words, whenever used in a statute …."

Reasoning of Appeal Panel

1. The Appeal Panel dealt with the existence of a question of law in the following terms: "37 We find that it is unsatisfactory that, notwithstanding the terms of the 7 August 2024 orders, grounds 1 to 3 of the amended grounds of appeal did not identify any question of law. Not only do these amended grounds of appeal not state any question, but also their terms make clear that questions of fact are necessarily to be considered as part of each of them. It is unnecessary to consider ground 4 of the amended grounds of appeal in this context as its terms make clear that it is advanced in support of the grant of leave to appeal. 38 In the absence of grounds 1 to 3 of the amended grounds of appeal stating any question, we understand that Mr Donohoe is raising the following questions: (1) as to ground 1, whether the Tribunal failed to afford procedural fairness to Mr Donohoe by conducting the hearing in accordance with the proper procedure by not informing him that he had a right to apply for an adjournment for the purpose of obtaining expert evidence; (2) as to the first limb of ground 2, whether the Tribunal failed to afford procedural fairness to Mr Donohoe by conducting the hearing in accordance with the proper procedure by not informing him that he had a right to cross-examine Mr Elali; (3) as to the alternative limb of ground 2, whether the Tribunal should not have received the Construction Proposal into evidence; (4) as to ground 3, whether the Tribunal should have given no weight to the Construction Proposal."
2. The first point made at [37] was that the grounds did not "state any question". The second point was that each involved a question of fact. However, at [38] the Tribunal was able at (1) and (2) to identify questions as to procedural unfairness in terms which may have required findings as to the procedure adopted before the Tribunal member, but did not require the resolution of any aspect of fact-finding relevant to the disputes before the Tribunal.

Denial of procedural fairness

1. The statutory scheme of the CAT Act expressly imposes an obligation to accord procedural fairness (emphasis added): 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal - (a) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
2. The reference in s 38(2) to "the rules of natural justice" is more commonly identified as the obligation to accord procedural fairness. The language operates at a high level of generality, meaning that the content of the obligation will depend on the context and circumstances in which it is to be applied. Part of that context is to be identified in the statutory obligation contained in s 38(5), although that is by no means an exhaustive statement of the obligation.
3. As the Full Court of the Federal Court explained in Haritos, dealing with the scope of an appeal on a "question of law" under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth): "202 Although, as the High Court explained in Allan at [11], [26] s 44 extends to non-jurisdictional error, one of the functions of s 44 is to ensure that the Tribunal stays within its jurisdiction. It follows that jurisdictional error would found a question of law under s 44. An appeal on the question whether the Tribunal made a jurisdictional error in a specified respect, such as denying a party procedural fairness (see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82) would be, in our opinion, an appeal on a question of law. We have referred above at [126], by way of example, to what was said on this subject in Sharp Corporation. [27] A similar conclusion was reached in Clements v Independent Indigenous Advisory Committee; [28] and in Ekinci the Full Court said, at [93]: [29] Although different views have been expressed by some members of the court on the issue whether denial of procedural fairness by the AAT raises a question of law for the purposes of s 44 of the AAT Act …, it is now established that "this court should accept the principle that a denial of procedural fairness is an error of law and that, therefore, an appeal from a decision of Tribunal on the ground of such a denial raises a question of law" (Clements at [8]). No textual aspect of s 44 denies the conclusion that, as a contextually understood judicial review provision, it encompasses the authority in this Court to undertake any relevant process to assess the answer to a question of law such as whether a person was denied procedural fairness by the Tribunal. Any answer to that legal question of jurisdiction may require factual evaluation and determination of what occurred before the Tribunal. Such is not to usurp the function of the Tribunal of fact finding, but to ensure that the Tribunal acts lawfully and with authority."

Orders

1. Two further matters need to be addressed. One is the question of leave to be given by this Court to permit the appeal to be determined favourably to the builder. The second, if leave is granted, is what precise orders this Court should make to give effect to the error identified above.

Leave to appeal

1. The error in approach identified above is sufficient to invalidate the orders made by the Appeal Panel. If the jurisdiction of this Court is invoked in a timely and procedurally appropriate fashion, it would be a rare case in which the Court would decline to grant leave to appeal.
2. It is unfortunate that a dispute involving a significant sum of money has become embroiled in issues concerning the legality of the conduct of the very Tribunal established to resolve such disputes, as justly, expeditiously and cheaply as possible. However, the sums involved are not small. As Spigelman CJ observed almost two decades ago in Italiano v Carbone: [30] "The Tribunal is a body which has been granted important powers, including powers which are not limited to small disputes in which speed and economy are entitled to determinative weight. It has a jurisdiction with respect to building claims up to $500,000 and the amount awarded in this particular case is almost double the jurisdiction of the Local Court. There are real limits to the extent to which this Court should countenance the Tribunal ignoring the basic requirements for its proper functioning, as laid down by the Parliament directly, or indirectly through Regulations which are capable of being disallowed by Parliament."
3. The monetary limit on the civil jurisdiction of the Local Court, when sitting in its General Division, is now $100,000: the award by the Tribunal in the present case was almost four times that figure. When sitting in its Small Claims Division, the jurisdictional limit of the Local Court is $20,000. By no stretch of the imagination was this a small claim. Thus, as the Chief Justice explained, there must be a tension between the priority given to speed and informality on the one hand and the need to ensure justice is done in applying the judicial process to resolve a dispute of financial significance to the parties. Both elements in this tension are revealed by the terms of s 38 of the CAT Act, set out above.
4. For these reasons, there should be a grant of leave to appeal, the appeal from the Appeal Panel must be allowed and the orders made by the Appeal Panel set aside. That is because the Appeal Panel erred in concluding that there was no appeal as of right and that the builder required leave.

Form of orders

1. These were the orders sought in the further amended statement of claim. The builder also sought an order that the matter be remitted to the Tribunal for a rehearing. However, such an order is unnecessary in respect of an appeal: remittal may take place after removal (which does not occur on an appeal), and is generally unnecessary in any event. (The order of certiorari removing a matter from one tribunal to a supervisory court is no longer made.) If the orders in the Appeal Panel are set aside, there will be an unresolved appeal before the Appeal Panel.
2. The real issue as to orders was whether, if this Court were of the view that the Appeal Panel had erred in rejecting the builder's appeal as of right, it should not merely set aside the orders of the Appeal Panel, but should take the further step of allowing the appeal to the Appeal Panel and setting aside the orders made by the Tribunal. The builder's case in favour of the additional order was that the Appeal Panel had accepted that procedural unfairness had been established and that the mandate in Pt 6 of the Civil Procedure Act 2005 (NSW) obliges the Court to make such orders as will most efficiently dispose of the real issues in dispute.
3. The owners opposed the additional order. It was common ground between counsel, that, prior to the hearing in this Court, the owners had obtained an assurance from the builder that where the orders sought the setting aside of the decision of "the Tribunal" (order 3) and remittal to "the Tribunal for a rehearing" (order 4), in each case the "Tribunal" referred to the "Appeal Panel". That assurance had allowed the owners to avoid the need to prepare submissions to rebut the builder's claim of procedural unfairness. The owners submitted that they should be allowed an opportunity to establish before the Appeal Panel that there had been no denial of procedural fairness to the builder.
4. It might be objected that the owners had their opportunity to resist findings of procedural unfairness before the Appeal Panel, but did not avail themselves of that opportunity. However, it should be recognised that they were then unrepresented, and no such point was taken in this Court.
5. The understanding (or perhaps concession on the part of the builder) might not be determinative. If this Court were satisfied that there had been procedural unfairness, and that only one result would be possible, namely that the proceedings start afresh before the Tribunal, the Court would have the power to make such an order, pursuant to s 69(3)(b) of the Supreme Court Act 1970 (NSW). To explain why that course should not be taken, it is necessary to refer to the manner in which the issue of procedural unfairness arose before the Appeal Panel and was determined by it.

Proceedings before Appeal Panel

1. In considering whether to grant leave to appeal (having determined that leave was required) the Appeal Panel dealt with grounds 1 and 2 of the amended grounds of appeal. The dispositive passage in the Tribunal's reasons, leading to the conclusion that there should be no grant of leave to pursue these grounds read as follows: "58 We are satisfied that the Senior Member should have understood from the exchanges during the hearing … that Mr Donohoe did not adduce expert evidence because the Construction Proposal did not comply with NCAT Procedural Direction 3 - Expert Evidence (PD3) and that he was prejudiced by its admission into evidence. While the Senior Member was entitled to dispense with compliance with PD3 by Mr Donohoe, having regard to the principles in Italiano at [105]-[107], he should have informed Mr Donohoe that he had a right to apply for an adjournment for the purpose of obtaining expert evidence. 59 We are also satisfied that the Senior Member understood the deficiencies of the Construction Proposal as expressed in the 29 April 2024 reasons at [51]. He should have understood the importance of cross-examination as a means of Mr Donohoe challenging its accuracy. In these circumstances, having regard to the principles in Gallo at [33] and Jannis at [29]-[31], he should have informed Mr Donohoe that he had a right to cross-examine Mr Elali. 60 However, we are not satisfied that the Tribunal breached s 38(5)(c) of the NCAT Act and the principles in Flightdeck Geelong at [51]-[60] by its failure to ensure that Mr Donohoe had a reasonable opportunity to be heard by informing him he had a right to apply for an adjournment and to cross-examine Mr Elali because he adduced no evidence that he would have applied for an adjournment and/or cross-examined Mr Elali if he had been informed of his rights to do so."

Failure to identify steps which would have been taken

1. The tenor of [60] was to place a burden on the builder to demonstrate that the lost opportunities could have been availed of by him to achieve at least the possibility of a different outcome. However, caution should be applied in adopting statements in the High Court and in other jurisdictions as to materiality. In Flightdeck Geelong, [31] materiality was dealt with under the heading "relief for denial of procedural fairness", leading to a blurring of the distinction between materiality as a basis for denying relief and as an element in establishing procedural unfairness. It was said that the appellant may bear an onus "to demonstrate what they would have done, or what evidence they would have led, so as to establish they were in fact denied procedural fairness", [32] adopting an explanation provided by Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH. [33]
2. Two points arise from this reasoning. First, the joint reasons in WZARH, immediately prior to the passages extracted, stated: "58 Contrary to the submission of the Minister in this appeal, and as has repeatedly been recognised in the Full Court of the Federal Court, Lam is not authority for the proposition that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process." [Footnote omitted.]
3. What then followed were two examples of circumstances, the first being where the administrator is shown to have "misled a person into refraining from taking up an opportunity to be heard" and a second where the administrator has simply failed to afford a fair opportunity to be heard. It is not necessary for present purposes to determine whether the observations in WZARH were intended to apply to unfairness resulting from the failure to advise adequately an unrepresented party (or parties).
4. Secondly, the principles governing the establishment or assumption of materiality have been clarified by later decisions of the High Court, including, as counsel for the builder pointed out, Nathanson v Minister for Home Affairs. [34] Thus, the suggestion by the Appeal Panel that procedural fairness could not be established unless the builder had adduced evidence that, if given proper advice, he would have applied for an adjournment to obtain an expert report and cross-examined Mr Elali, would need to be reconsidered in the light of the reasoning in Nathanson.

Obligation to assist litigant

1. There is a second issue as to the approach adopted by the Appeal Panel, albeit one which may work against the owners. In accepting that there had been a failure by the senior member to give adequate advise to an unrepresented litigant as to the relevant procedural steps, the Appeal Panel relied on statements of the duty made by the Full Court in Flightdeck Geelong. But the lengthy passage from the judgment dealt with the duty of a court to a litigant in person. [37] The Appeal Panel said that s 38(5) of the CAT Act "reflects the general law duties of procedural fairness and the principles in Flightdeck Geelong at [51]-[60] apply to proceedings in the Tribunal". [38] In fact, several factors suggest that those principles may need to be adjusted in applying them to the circumstances before the Tribunal.
2. First, as the Appeal Panel (otherwise constituted) discussed in STAR Training Academy Pty Limited v Commissioner of Police (No 2), [39] "where self-represented parties form the vast majority of appellants in internal appeals, the strictures on requiring them to identify the questions of law they rely upon have been, properly in our view, relaxed". The same approach must undoubtedly apply before a single member of the Tribunal.
3. Secondly, that approach should apply with greater, rather than lesser, emphasis than in judicial proceedings in determining the scope of the obligation of the Tribunal to ensure unrepresented parties are fully advised as to the steps required to present a case and respond to an opponent's case.
4. Thirdly, the degree of procedural flexibility which is conferred on the Tribunal by Pt 4, Div 1, of the CAT Act, which is designed to allow parties a cheaper and more informal means of determining disputes, may impose an expanded obligation on the Tribunal to ensure that the parties know how procedures will operate. The very fact that the rules of evidence do not apply may lead, as in this case, to evidence being admitted which may have little weight but which, in the absence of contradiction, is found to be dispositive.

Making an additional order

1. These unresolved issues suggest that the Appeal Panel may have undervalued the weight to be given to the obligation to assist unrepresented parties in the Tribunal, and overstepped in imposing an onus on the builder to establish materiality. These concerns, together with the basis on which the parties proceeded in this Court, make it inappropriate to rely, without further steps being taken on the findings as to procedural unfairness made by the Appeal Panel. Accordingly, the additional order sought by the builder will not be made. That is not to suggest that the Appeal Panel erred in making findings as to procedural unfairness, nor that an order by the Appeal Panel for a rehearing in the Tribunal will not eventuate.

Conclusions

1. Unfortunate as the outcome must be for the owners, this is not a case where protracted litigation has resulted with respect to a small financial dispute. This is a case involving a significant sum of money. As there appears to be no dispute that the contract was terminated as a result of breach by the builder in failing to complete the works, the possibility of a negotiated outcome might be thought attractive.
2. The Court makes the following orders: 1. Grant the plaintiff leave to rely upon the further amended statement of claim filed in Court at the hearing. 2. Grant the plaintiff leave to appeal from the decision of the Appeal Panel delivered on 28 August 2024. 3. Allow the appeal and set aside the orders made by the Appeal Panel. 4. Order that the defendants pay the plaintiff's costs in this Court.

Endnotes

1. Tribunal decision at [35].
2. Donohoe v Albulario [2024] NSWCATAP 166 (G Blake AM SC, S Higgins (Senior Members)).
3. Appeal Panel decision at [28].
4. Appeal Panel decision at [33]-[40].
5. CAT Act, s 84(3).
6. CAT Act, s 32(1), (4) and (5).
7. CAT Act, s 32(3).
8. CAT Act, s 29(1), (3).
9. Collins v The Queen (1975) 133 CLR 120; [1975] HCA 60.
10. The form did not provide for a qualified answer, such as, "Yes, if leave is required".
11. CAT Act, ss 80 and 83 respectively.
12. (2000) 49 NSWLR 653; [2000] NSWCA 199; see also Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [111]-[112] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).
13. See Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; 20 BPR 43,135 at [33(7)] (Griffiths AJ).
14. (2003) 212 CLR 111; [2003] HCA 8 at [8].
15. See, Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 ("Orr").
16. Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority (NSW) [2006] NSWCA 314 at [27] (Spigelman CJ).
17. Eaglesfield v Marquis of Londonderry (1876) 4 Ch D 693, 703, quoted by Dixon J in Thomas v The King (1937) 59 CLR 279, 307; [1937] HCA 83, allowing a defence of honest and reasonable mistake in relation to a charge of bigamy.
18. Attorney-General v X at [3(v)].
19. Attorney-General v X at [63]; [136]; see also NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509, 512 ("whether the material before the Court reasonably admits of different conclusions") (Kitto J); Hope v Bathurst City Council (1980) 144 CLR 1, 7-8 (Mason J, Gibbs and Stephen JJ agreeing); Jedko Game Co Pty Ltd v Collector of Customs (NSW) [1987] FCA 74 at [9] (Beaumont and Burchett JJ).
20. Orr at [58]-[59].
21. (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [13]; Orr at [60]: see also High Court authority referred to in fn 19 above.
22. See Haritos at [62(8)]; [114].
23. See Medical Council of New South Wales v Mooney [2024] NSWCA 180 at [95]-[97] and cases referred to there (Leeming JA, Kirk JA and Price AJA agreeing).