Everson v Barazi

NCAT Appeal Panel|2021-09-06

REASONS FOR DECISION

By Notice of Appeal filed on 10 June 2021 the appellant ("Everson") appeals a decision of the Tribunal made on 12 May 2021 pursuant to which the Tribunal ordered Everson to pay to the respondent the amount of $20,658.60. Everson did not attend the hearing.
Everson operates an earthmoving business and constructed an access track for the respondent on land of the respondent. The reasons provided by the Tribunal for the order for the payment of money showed it was calculated as follows: 1. $11,891.60 refund for services not provided with due care and skill and not fit for purpose. 2. $6347 cost of rectifying damaged underside. 3. $2420 building report.
The reasons were provided orally at the hearing. The Tribunal recorded: "The Tribunal is satisfied that notice of the hearing has been duly served on the respondent, and that the Tribunal considers it just requires the matter be dealt with in the absence of the party."

Facts

Everson claims that the decision is not fair and equitable. Everson disputes the claim made by the respondent that the access way provided by Everson was defective. Everson claims that the track was constructed in accordance with his instructions from the respondent and that it was never asserted that the track was placed in the wrong location. Everson claimed that the access track was used for its intended purpose for trucks and machinery.
Everson seeks to rely upon photographs which were taken of the site, and upon other documentation. He claimed the evidence was not available at the time of the hearing because: "Everything was not organised Just not enough time in a day and can't afford to take time off."

The respondent opposes the grant of leave to bring the appeal. The reply states that Everson did not attend two of the three hearings which were conducted by telephone; that Everson provided no documents for the hearing before the Tribunal; that Everson did not request the Tribunal to reschedule a hearing nor seek adjournment or an extension of time.

Notice of Tribunal hearing to appellant in proceedings HB 20/45431

The Tribunal record shows that the following relevant orders were made:

Orders 5 January 2021:

Amendment to claim such that the applicant seeks an order that the respondent pay $20,658.60;
The respondent shall provide to the applicant and the Tribunal either in person or by post, a copy of all documents on which the respondent intends to rely at the hearing on 25th of January 2021. Such list to include witness statements, expert reports, photographs, Council receipts, quotation, any other documents to be relied upon.

Orders 26 of February 2021:

Orders were made on this day for the preparation of the matter for hearing. The respondent (appellant) informed the Tribunal that he had information that he could provide within two days. The respondent did not do so.
The proceedings were adjourned to a date to be fixed by the Registrar with the direction that no further adjournment be granted except in exceptional circumstances. The issues to be identified at the hearing included the scope of the works agreed to between the parties; the purpose of the track and whether it was made known to the respondent (now appellant); whether there were any variations agreed to the work; whether the respondent (appellant) was entitled to payment for any additional work on a quantum meruit basis; had the respondent failed to complete the agreed work; was the work carried out fit for purpose and perform due care and skill; what is the reasonable compensation for any loss or damage suffered by the applicant.
The orders stated that the parties might wish to rely upon expert evidence; they were encouraged to seek legal advice and access to the site. The Tribunal made the following Orders: "7. Time for the respondent to provide any documents to the applicant and the Tribunal is extended to 12 April 2021 8. If the applicant wishes to submit any documents in reply to the respondent's documents, he should do that, by providing to the respondent and the Tribunal, by 19 April 2021 A party who does not comply with these directions, including a party who fails to provide documents in hard copy as directed, may NOT rely on that material provided without leave of the Tribunal."

Orders 12 May 2021

The hearing before General Member S. Hanstein was held on this date. The respondent (appellant) had provided with his notice of appeal a bundle of invoices and photographs. No other information was provided and, as already referred to, the respondent (appellant) did not attend the hearing. Accordingly, the hearing was held ex parte, and resulted in the money order which is the subject of this appeal.

Orders for Hearing

Following the filing of the appellant's notice of appeal, a call over was conducted on 14 July 2021. Both the appellant and the respondent attended by telephone and the following orders relevant to the appellant were made: "4. The Appellant is to lodge with the Tribunal and give to the Respondent any written submissions in reply by 25 August 2021. … 7. The Appeal is listed for HEARING on 06 September 2021 at 10:15 AM in Sydney for a half day 8. The Appellant is to lodge with the Tribunal and give to the Respondent by 04 August 2021: (a) all the evidence given to the Tribunal below on which it is intended to rely; (b) any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leave to rely; (c) the appellant's written submissions in support of the appeal; and (d) the sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts."

Appeal hearing on 6 September 2021

At the commencement of the appeal on 6 September 2021 it became apparent that the appellant had not filed any documents, other than those attached to his notice of appeal, and had not obtained the sound recording of the original Tribunal hearing. The appellant asserted that he had posted materials for the appeal to the Tribunal and provided a tracking number. These had not been received by the Appeal Panel. A bundle of the appellant's material was subsequently received in the Tribunal on 20 September 2021. The appellant informed the Appeal Panel that on the day of the Tribunal hearing he had his telephone with him in his pocket but, as he was driving heavy machinery, he did not hear it ring and accordingly did not participate in the hearing.

Orders 6 September 2021

The Appeal Panel made orders adjourning the proceedings to give the opportunity to the appellant to provide further evidence that he had posted to the Appeal Panel. Accordingly, the proceedings were adjourned to 15 October 2021.

Appeal hearing on 15 October 2021.

The appellant provided a bundle of documents comprising invoices, emails and two statements, which were received on 20 September 2021 With the exception of the statements, all the information predated the date of the Tribunal hearing, and could not constitute "fresh evidence": had the appellant chosen to do so, this evidence could have been provided to the Tribunal member for the hearing. A partial transcript of the Tribunal hearing was also provided, together with the appellant's responses to issues raised by the Tribunal member.
The Appeal Panel questioned the appellant as to his failure to comply with the directions of the Tribunal concerning the provision of evidence upon which he wished to rely in opposition to the respondent's claims and also his reason for non-attendance at the hearing. The appellant informed the Tribunal that he was "just very busy at work"; that he is "still very busy and very strapped for time"; "I just couldn't get organised". The appellant also stated that he had taken no action in the proceedings until the amount of the money order had been withdrawn from his bank account.

Failure to participate in the Hearing

The Tribunal is required to afford procedural fairness to both parties. This includes a right to be heard. A failure to afford a party procedural fairness will constitute an error of law: see Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28; [2003] FCAFC 143 at [8].
Section 38 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) imposes upon the Tribunal the requirement to ensure that such measures are taken as are reasonably practicable to give the parties a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: see section 38(5)(c).
The appellant was provided with the opportunity of attending the hearing and providing the submissions and evidence in response to the claim brought by the applicant (now the respondent to this appeal). The Tribunal member was satisfied that the appellant was aware of the hearing and proceeded with the hearing. The appellant does not dispute that he was aware of the hearing before the Tribunal.
It follows that the opportunity for the appellant to have a further hearing has been lost. Lord Bridge in Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 at 898, said in relation to parties failing to attend a hearing without adequate excuse: "But in any of these cases it would surely be fanciful to say that there had been a breach of the audi alteram partem rule [i.e. the right for a party to be heard]."
As Kirby J said in Ernest Franz Allesch v Brigitte Maunz (2000) 203 CLR 172; [2000] HCA 40 at [40]: "Courts are not obliged to delay proceedings indefinitely because one party, although proved to be on notice the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment… The rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation."

Failure to comply with Tribunal's Directions

Orders were made by the Appeal Panel on 14 July 2021 directing the parties to attend to the preparation of the appeal. In particular, the appellant was directed, pursuant to Order (8) to provide by 4 August 2021 any evidence upon which he wished to rely and "the sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on, and a typed copy of the relevant parts."
No sound recording or transcript was provided to the Appeal Panel for its first hearing on 6 September 2021. In these circumstances, it was impossible for the Appeal Panel to consider the appeal. The appellant was directed to provide the reasons to enable the Appeal Panel to have regard to the submissions which the appellant would seek to make.
In Al Bisher v Sabbagh [2021] NSWCATAP 100, an Appeal Panel was faced with the same situation. Before dismissing the appeal, the Appeal Panel stated at [18]: "[18] The Appeal Panel cannot fulfil the guiding principle set out in s 36(1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings if it has to review for itself a lengthy sound recording of the hearing at first instance in circumstances where it has directed a party who is relying on what happened at the hearing to prepare a typed copy of the relevant parts and the oral reasons. Section 36(3) of the NCAT Act makes it plain that the parties to proceedings in the Tribunal have a duty to co-operate with the Tribunal and to comply with directions and orders of the Tribunal to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings."
The Appeal Panel also refers to the decision in Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123. In that decision the orders of the Tribunal concerning the supply of a sound recording had not been fulfilled. The Appeal Panel observed that the appellant did not seek an adjournment despite the fact that it was explained to her that the absence of such recording could impact adversely on her appeal. The Appeal Panel considered the content of the notice of appeal but dismissed the appeal.
In the absence of the sound recording and transcript, the Appeal Panel will consider Everson's grounds of appeal with the material provided, to consider whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: see Cominos v Di Rico [2016] NSWCATAP 5 at [13]. However, the Appeal Panel is conscious that there are limits to the obligation to do so: see Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [39] where Bell P referred to the decision in Barton v Wright Hassall LLP [2018] 1 WLR 1119; [2018] UKSC 12 at [18] where Lord Sumption referred to the limits of providing assistance to unrepresented litigants. Bell P then said at [40]-[41]: "[40] The above passage was cited with approval by Garling J in Ryan v The Council of the City of Sydney [2018] NSWSC 265. At [45], his Honour noted that: '… While the Court has a duty to treat litigants in person fairly and to hear their arguments fully, the court may not indulge the litigant with special treatment in the way that disfavours their opponent'. [41] Similarly, in Malouf v Malouf (2006) 65 NSW LR 449; [2006) NSW CA 83 at [183], Bryson JA remarked that: 'Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one's lawyers, or to retain none. … Without procedure, procedural directions and compliance, justice will not be done at all. … The compliant also have an entitlement to consideration, and their compliance should not be disregarded, or mocked, by treating their opponent's obligation to comply with the court's directions as less than important, or as superfluous'."

Findings

The Appeal Panel invited the appellant to seek an adjournment at the hearing on 6 September 2021, for the purpose of providing more time for him to apply for the sound recording and for the preparation of a transcript. The Appeal Panel did so for the purpose of determining whether there was any apparent defect in the hearing or denial of natural justice to the appellant.
The Tribunal has been provided with a partial transcript which records that the Tribunal member carefully considered the issues and the evidence of the respondent (applicant). The evidence included not only documentation relevant to the claim, but also a detailed Scott's Schedule setting out each item of the claim and the reason for it. The appellant failed to respond to the schedule.
An examination of the notice of appeal, and of the documents provided by the appellant for this hearing does not satisfy the Appeal Panel that the appellant has suffered, or might suffer, a substantial miscarriage of justice such that a grant of leave should be made in which to bring the appeal under section 80(1) of the CAT Act.
In summary, the Appeal Panel has arrived at such conclusion because of the following reasons: 1. The appellant was offered the opportunity of a telephone hearing but failed to participate. In these circumstances, the appellant has been provided with procedural fairness and the appellant cannot claim that he has been done any injustice. The Tribunal was entitled to proceed in his absence, expressly noting that it was satisfied that the appellant had notice of the hearing; 2. The grounds of appeal do not raise an adequate reason for his failure to attend the hearing: the fact that he claimed to have insufficient time to prepare himself and was "on machinery" does not have a consequence that the hearing at first instance was not a valid hearing; the Tribunal notes that the appellant failed to provide any submissions prior to the hearing before the Tribunal, and did not participate in the hearing; 3. The interests of the respondent are to be considered: the respondent has participated in the Tribunal hearing, presented the evidence and a decision has been made and there is no reason why the respondent should be prejudiced by further delay; 4. The appellant seeks to rely upon photographs, invoices and other documents in support of his case. However, whilst the Tribunal, on an appeal, (provided leave is granted to bring the appeal) may consider fresh evidence: see section 80(3)(b) of the CAT Act, it is apparent that this evidence was available, or could have been available at the time of the original hearing. Accordingly such material does not qualify as "fresh evidence": see Lawless v The Queen (1979) 142 CLR 659 at 669 per Stephen J. In Timmins v Timmins [(1919) P. 75, 80], Hill J relying upon the decision in Johnson v Johnson [1900] P. 19 said of the term "fresh evidence" (in the Summary jurisdiction (Married Women) Act 1895 (UK)): "… means evidence of something which has happened since the former hearing or has come to the knowledge of the party applying since the hearing, and could not by reasonable means have come to his knowledge before that time,.."
Where an internal appeal is made and no question of law is involved, an appeal may be brought with the leave of the Appeal Panel as provided by section 80(2) of the CAT Act. Before an Appeal Panel may grant leave, it must be satisfied that there is the risk of a substantial miscarriage of justice, as considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84]. There the Appeal Panel said, inter alia: "(2) Ordinarily it is appropriate to grant leave to appeal only on matters that involve: (a) issues of principle; (b) questions of public importance or matters of administrational 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."
In summary, it must be demonstrated that an appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable, or the decision under appeal was against the weight of evidence, or new evidence is available that was not reasonably available at the time of hearing. The Appeal Panel considers that the Notice of Appeal raises no issues to suggest that a substantial miscarriage of justice has occurred. In these circumstances, it would refuse a grant of leave to bring the appeal.
The overriding objective set out in section 36 of the CAT Act would be defeated if these proceedings were allowed to continue by way of appeal. Further, litigation should not be conducted in such a manner. In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the majority at [92] said of the Court Procedure Rules 2006 (ACT), and especially rule 21, which provided objectives to facilitate just resolution of the real issues in proceedings and timely disposal of proceedings at affordable cost: "The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle problems of delay and cost in the litigation process… [93] Rule 21 (2) (b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants… [98] Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in the light of the purposes and the objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of the proceedings… It cannot therefore be said that adjust resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs."
It would also be unfair to the respondent to grant leave to appeal against the decision given the appellant's failure to comply with the Tribunal's directions and failure to participate in the hearing. The Tribunal member made the decision based upon the evidence before the Tribunal. The Appeal Panel can find no error in the Tribunal's decision-making.
For these reasons leave to bring the appeal under section 80(2) of the CAT Act is refused and the appeal is dismissed.

Orders

The Appeal Panel orders that the appeal be dismissed.

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: 03 November 2021

Court Procedure Rules 2006(ACT)

(2006) 65 NSW LR 449

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