Fadel v Siotor

NCAT Appeal Panel|2024-02-27

Background.

Mahmoud Fadel (the appellant) filed a notice of internal appeal on 5 December 2023 in which he sought to appeal two earlier decisions made in proceedings commenced against him by Eva Siotor (the respondent).
The first in time is a decision made by the Consumer Trader and Tenancy Tribunal (the CTTT), a predecessor of the Civil and Administrative Tribunal (NCAT), on 2 August 2012 (the 2012 decision). The order was made in proceedings commenced by the respondent in the CTTT against "Michael Fadel" for uncompleted and defective work. The proceedings were heard in the absence of the appellant. The CTTT made an order that Michael Fadel pay the respondent $6,859.00.
As far as the notice of appeal relates to the 2012 decision, the appeal is more than 11 years out of time.
The CTTT was replaced by NCAT on the establishment of the Civil and Administrative Tribunal Act (NSW) (the NCAT Act) on 1 January 2014 (the establishment day). Schedule 1 of the NCAT Act contains savings, transitional and other provisions which address how NCAT assumed the functions previously vested in its predecessor Tribunals, and regarding how existing and previous proceedings before those Tribunals are to be dealt with by NCAT. We will discuss the transitional provisions in more detail later in these reasons.

Material before the Appeal Panel

In considering the appeals we were provided with the following materials: 1. From the appellant - 1. Notice of appeal with attachments and application for stay both filed on 5 December 2023. 2. Statement of Mahmoud Fadel received 8 December 2024 with respect to the stay application. 3. Statement of Mahmoud Fadel dated 17 January 2024 with attachments. 4. Submissions of Mahmoud Fadel dated 25 February 2024. 5. Submissions of Mahmoud Fadel dated 13 April 2024. 1. From the respondent - 1. Reply to appeal filed 13 December 2023. 2. Submissions relating to the stay application filed 14 December 2023. 3. Materials relied on before the Tribunal when the correction order was made, namely: 1. Email from Eva Siotor to NCAT dated 29 August 2023 requesting that the correction order be made. 2. Affidavit of the Eva Siotor dated 25 September 2023; and, 3. Submissions dated 25 October 2023. 1. Submissions dated 30 January 2024. 2. Affidavit of the Eva Siotor dated 30 January 2024. 3. Submissions dated 9 April 2024. 4. Affidavit of the Eva Siotor dated 9 April 2024. 1. Notice of orders made by the Tribunal Member on 27 September 2023 seeking submissions on the application to correct the decision, to be filed by 25 October 2023. 2. Order made by the Tribunal dated 3 November 2023 amending the order made on 2 August 2012 and giving short reasons for doing so. 3. Certified amended order made on 2 August 2012. 4. Orders made by the Appeal Panel on 6 December 2023, 18 December 2023 and 8 February 2023.
The statements from both parties give rise to questions concerning whether they contain new evidence and if so whether they, or parts of them, can be relied on in the appeals without leave of the Appeal Panel. Because of the conclusions we have reached it is not necessary to deal with the new evidence issues.
Before turning to consider the merits or otherwise of the appeals, it is necessary to first consider the Appeal Panel's jurisdiction to entertain the internal appeal against the 2012 decision, and whether the Tribunal below had jurisdiction to make the correction order.

The 2012 decision.

The Appeal Panel's jurisdiction to hear internal appeals is found in s 32 of the NCAT Act, which relevantly provides: (1) The Tribunal has internal appeal jurisdiction over - (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) However, the internal appeal jurisdiction of the Tribunal does not extend to - (a) any decision of an Appeal Panel, or (b) any decision of the Tribunal in an external appeal, or (c) any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or (d) any decision of the Tribunal in proceedings for the imposition of a civil penalty in exercise of its general jurisdiction. Note - The decisions above may be appealable to the Supreme Court and, in some cases in relation to civil penalty decisions made by the Tribunal (whether under this Act or enabling legislation), the District Court. See section 73 and Part 6. (4) An internally appealable decision is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction. (5) An internal appeal is an appeal to the Tribunal against an internally appealable decision. (6) …
Section 29(3) provides that: A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction.
In the present matter the 2012 decision, which is of a kind the Tribunal could make a general decision concerning, was not made by NCAT, but by the CTTT before NCAT commenced. It is, therefore, not a decision of the Tribunal determining a matter over which it has general jurisdiction. It is a decision of the CTTT.
The savings and transitional provisions found in Schedule 1, Part 2, Subdivision 3 of the NCAT Act preserves specified, unexercised rights of parties to proceedings in abolished Tribunals, such as the CTTT, and provides how those rights may be exercised after NCAT's establishment. Clauses 9 & 10 of Sch 1 relevantly provide: 9 Certain unexercised rights to make applications or appeals to existing tribunals may continue to be exercised in NCAT (1) This clause applies to each of the following unexercised rights (an existing unexercised application or appeal right) - (a) an unexercised right to apply to an existing tribunal for it to make a decision at first instance concerning a matter, (b) … (c) an unexercised right to appeal to an existing tribunal against a decision of another person or body. (2) A person who has an existing unexercised application or appeal right may apply or appeal to NCAT for the exercise of the same functions that could have been exercised by the existing tribunal to which the right relates had the existing tribunal not been abolished. Note - An application or appeal under this clause that would have required leave before the establishment day will still require such leave. Also, any time limits under existing law for making the application or appeal will continue to apply to applications or appeals under this clause. See subclause (3). (3) For the purposes of subclause (2) - (a) NCAT has and may exercise all the functions that the relevant existing tribunal would have had in relation to the application or appeal if it had been made before the establishment day (including any functions relating to the granting of leave to apply or appeal), and (b) the provisions of any Act, statutory rule or other law (including provisions concerning the time within which to apply or appeal) that would have applied to or in respect of the application or appeal had this Act and the relevant amending Acts not been enacted continue to apply. 10 Certain unexercised rights to appeal against decisions of existing tribunals may continue to be exercised (1) This clause applies to each of the following unexercised rights (an existing unexercised appeal right) - (a) an unexercised right to appeal against a decision of the Administrative Decisions Tribunal or another tribunal or body to an Appeal Panel of that Tribunal, (b) an unexercised right to appeal against a decision of an existing tribunal to a court. (2) A person who has an existing unexercised appeal right may appeal against the decision of an existing tribunal to which that right relates - (a) if the decision was originally appealable to an Appeal Panel of the Administrative Decisions Tribunal - to an Appeal Panel of NCAT, or (b) if it was originally appealable to a particular court - to that court. Note - An appeal under this clause that would have required leave before the establishment day will still require such leave. Also, any time limits under existing law for appealing will continue to apply to appeals under this clause. See subclauses (3) and (4). (3) For the purposes of an appeal made to an Appeal Panel of NCAT under this clause - (a) the Appeal Panel has and may exercise all the functions that an Appeal Panel of the Administrative Decisions Tribunal would have had in relation to the appeal if it had been made before the establishment day (including any functions relating to the granting of leave to appeal), and (b) the provisions of any Act, statutory rule or other law (including provisions concerning the time within which to appeal) that would have applied to or in respect of the appeal had this Act and the relevant amending Acts not been enacted continue to apply. (4) For the purposes of an appeal made to a court under this clause - (a) the court continues to have and may exercise all the functions that the court would have had if the appeal had been made to it before the establishment day (including any functions relating to the granting of leave to appeal), and (b) the provisions of any Act, statutory rule or other law (including provisions concerning the time within which to appeal) that would have applied to or in respect of such an appeal had this Act and the relevant amending Acts not been enacted continue to apply. (5) Without limiting subclauses (3) and (4), if the original powers of an Appeal Panel of the Administrative Decisions Tribunal or a court (as the case requires) would have included the power to remit the proceedings to be heard and decided again by the existing tribunal concerned, the Appeal Panel of NCAT or court may in determining an appeal under this clause - (a) remit the proceedings instead to NCAT, and (b) make such other orders as it considers appropriate to facilitate the remitting of the proceedings to NCAT.
Clause 6(1) defines unexercised right thus: unexercised right means a right (including a right exercisable only with leave) that: (a) was available to be exercised immediately before [1January 2014], and (b) had not yet been exercised before that day.
It follows that for the 2012 decision to be internally appealable to an NCAT Appeal Panel the appellant must have an unexercised right to internally appeal the 2012 decision, made by the CTTT, to the Appeal Panel of the Administrative Decisions Tribunal.
Part 6 of Consumer Trader and Tenancy Tribunal Act 2001 (the CTTT Act) (Repealed) contained provisions dealing with appeals and rehearings. There was no right to appeal to the Appeal Panel of the ADT.
Section 67 provided that a party to CTTT proceedings may appeal to the District Court against a decision on a matter of law. No appeal has been made to the District Court, which is the only avenue of appeal available to the appellant with respect to the 2012 decision: see Giappichello and Anr v Eakin's A-1 Pools Pty Ltd [2015] NSWCATAP 141 at [46] - [51] (Giappichello) and Chadwick v NSW Land and Housing Corporation [2022] NSWCATAP 62 at [117] - [119].
During the second day of hearing, we discussed this reasoning with the parties and sought their views. Both, despite their earlier submissions to the effect that we could hear the appeal, understood and did not take issue with the reasoning, Indeed, the respondent withdrew her earlier submissions and embraced this reasoning to argue that we could not entertain an appeal against the 2012 decision.
Mr Fadel also had a right to apply to the Chairperson of the CTTT for a rehearing under s 68 of the CTTT Act. That section relevantly provided: (1) A party in any proceedings that have been heard and determined by the Tribunal (the completed proceedings) may, in the manner and within the time prescribed by the regulations, apply to the Chairperson to have the completed proceedings reheard by the Tribunal. (2) The grounds on which such an application may be made are that the applicant may have suffered a substantial injustice because: (a) the decision of the Tribunal in the completed proceedings was not fair and equitable, or (b) the decision of the Tribunal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the completed proceedings were being heard). (3) The applicant may request that the rehearing be limited to the matters specified in the application. (4) If the applicant is relying on significant new evidence as a ground for the rehearing, the applicant must establish or otherwise produce the new evidence in support of the application. (5) The Chairperson is not to grant the application unless: (a) each other party in the completed proceedings has: (i) been notified and given a copy of the application, and (ii) been given an opportunity to respond in writing to the application within the time prescribed by the regulations, and (b) the Chairperson has taken into consideration any such response. (6) Subsection (5) does not apply in relation to such classes of applications as may be prescribed by the regulations. (7) The Chairperson is not to grant the application unless it appears to the Chairperson that the applicant may have suffered a substantial injustice. (8) The Chairperson's decision whether to grant or refuse the application: (a) may be made without the need for any hearing or meeting, and (b) is not to be considered to be part of the Tribunal's proceedings, and (c) is final and not subject to review of any kind. (9) If the application is granted, the Chairperson is to determine: (a) the constitution of the Tribunal in a manner appropriate for the purposes of the rehearing (having regard to the circumstances of the case), and (b) the matters that are to be reheard. (9A) If an application is refused, a person may make a further application under this section, but only if the application is made within the time prescribed by the regulations and the Chairperson is satisfied that: (a) significant new evidence has arisen since the application was refused, and (b) that evidence suggests a substantial injustice to one or more parties to the proceedings has occurred. (10) The rehearing is to be dealt with by the Tribunal as a fresh hearing of the matters to be reheard, but it does not give rise to any further rehearing under this section. (11) Subsection (9) does not prevent the Tribunal from dealing with any matter that arises during the rehearing so long as it is a matter that is related to the completed proceedings. (12) If, in relation to any completed proceedings, more than one application for a rehearing is granted by the Chairperson, all of the matters to be reheard are to be reheard together. (13) A person cannot make an application under this section for a rehearing of completed proceedings if: (a) the amount claimed or disputed under the completed proceedings is more than the amount prescribed by the regulations, or (b) the person is a corporation and the matter relates to a dispute in respect of which the Tribunal has jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010. (14) The regulations may exclude the making of an application for a rehearing under this section in cases of any prescribed class or description.
An application for rehearing had to be made within 14 days after receipt of the decision: see cl 22(2) of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) (Repealed) (the CTTT Regulation). If not, an extension of time could be sought under s 81 of the CTTT Act.
The grounds for seeking a rehearing set out in s 68(9A) of the CTTT Act mirror those for seeking leave to appeal, from an Appeal Panel, on other than a question of law, in an internal appeal from the CCD of NCAT. They are set out in Cl 12 of Schedule 4 of the NCAT Act. However, the scope of internal appeals and an Appeal Panel's powers under the NCAT Act are much wider than those given the Chairperson of the CTTT by s. 68.
Division 2 of Part 6 of the NCAT Act (Internal Appeals) provides: 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. 81 Determination of internal appeals (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.
The differences between an internal appeal under the NCAT Act an application for rehearing under the CTTT are such that the two procedures cannot be equated. As a result, we consider that an unexercised right to seek a rehearing in the CTTT (albeit with an extension of time required) cannot be exercised by means of an internal appeal under the NCAT Act.
Further, in Giappichello an Appeal Panel held that it had no jurisdiction to hear and determine an appeal from a rehearing decision purporting to have been made under s 68 of the CTTT Act because: 1. As the CTTT was abolished, no one holds the position of Chairperson and there are no continuing delegates to consider rehearing application (at [27]). 2. There was no power in an NCAT Member to make a rehearing decision under s 68 of the CTTT Act. 3. Any decision on a rehearing application under s 68 was a decision of the Chairperson or delegate, not of the CTTT. Section 68(8)(b) provided that the Chairperson's decision "is not to be considered to be part of the Tribunal's proceedings" and "is final and not subject to review of any kind": see [29]. 4. NCAT has no jurisdiction to make an order under s 68 of the CTTT Act given to it by enabling legislation or the NCAT Act itself: see [31] - [33].
It is sufficient that we are satisfied that this Appeal Panel has no jurisdiction to hear an internal appeal from the 2012 decision.

The correction decision.

The position with respect to the correction decision is different. The appeal is from a decision made by NCAT purporting to correct a decision of the CTTT under s 63 of the NCAT Act. The first issue is whether NCAT had jurisdiction to make that decision.
The correction order was made on 2 November 2023. At that time s 63 of the NCAT provided: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where - (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons, or (e) there is an inconsistency between the name of a person stated in the text of the notice or statement and the name stated on the person's birth certificate or other form of identification.
It is important to understand that, prior to the abolition of the CTTT, Ms Siotor had a right, which she had not exercised, to apply for correction of the order to the CTTT in accordance with s 50 of the CTTT Act. 50 Power to correct decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the notice or statement in accordance with the directions of the Tribunal. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the Chairperson may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where: (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons. (4) The powers of the Tribunal under this section may be exercised by the Chairperson or by the member who presided at the proceedings to which the decision relates.
There was a live issue as to whether the Tribunal had power under either section to name a different person as respondent as was initially claimed to have occurred here: see Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188. There is no suggestion that s 63(3)(e) was applicable.
The order made by the Tribunal on 2 November 2023, in the absence of Mr Fadel, read: Pursuant to s 63 NCAT Act the registry is directed to amend the Notice of Order and Tribunal record to reflect that the name of the respondent is varied from Michael Fadel to Mahmoud Fadel.
That order was made by the same person who made the 2012 decision, in her then capacity as a Member of the CTTT. She made the correction order in her capacity as a General Member of NCAT. It is clear that she did so under s 63.
As noted above we requested submissions from the parties as to how the Tribunal had power to make the correction order under s 63 of the NCAT Act, or whether it should have considered the correction application under s 50 of the CTTT Act. The appellant's submissions dated 9 April 2024 did not address the issues, although the appellant changed his previous position by admitting he has had contact with Ms Siotor and had provided a quote for work to either her partner or her. She submitted that the 2012 decision became a decision of NCAT on the establishment date, and thereafter could be corrected by an order made under s 63 of the NCAT or, by virtue of Cl 9 of Sch 1 of the NCAT Act, under s 50 of the CTTT Act.
"The Tribunal" referred to in s 63 means NCAT (see the definition in s 4), not the CTTT. NCAT does not have power to correct a CTTT order under s 63 unless there is a specific provision to the contrary made elsewhere. Two provisions, suggest themselves.
First, cl 14 of Sch 1 of the NCAT Act provides: (1) An existing order of an existing tribunal made under other legislation is taken on and from the establishment day, to be an order made by NCAT under the corresponding provision of that legislation (as amended by a relevant amending Act) or this Act (as the case may be). (2) This clause is subject to the other provisions of this Schedule. (3) In this clause - existing order of an existing tribunal is an order made by the tribunal before the establishment day, and includes an order that would have come into effect on or after the establishment day.
There is an order of the CTTT (an existing Tribunal) made under the Home Building Act 1989 (NSW) (the HBA) which is taken to be an order made by NCAT from the establishment day. This will be the case unless some other provision of Schedule 1 provides what is to happen: see cl 13(2).
As a result, we need to consider cl 9 of Schedule 1. While on its face, this might apply to the situation, it does not authorise NCAT to make a correction order under s 63. Rather, it requires NCAT to apply the law that applied to the CTTT, namely s 50 of the CTTT Act. Correction orders under that section, however, were to be made by the Chairperson of the CTTT or by the member to that Tribunal who presided at the proceedings to which the decision relates. There is no longer a CTTT. There is no Chairperson and there are no Members. In Giappichello the Appeal Panel said, at [26]-[28] that: 26. Upon the creation of NCAT; 1. the CTTT was abolished: see clause 3 of Schedule 1 NCAT Act; and 2. each current Tribunal member of the CTTT ceased to hold office on the establishment day: see clause 4(1) of schedule 1 of the NCAT Act. 27. Consequently, on and from the establishment day there ceased to be any person holding the position of Chairperson of the CTTT and, upon abolition of the CTTT, any delegation ceased to operate. 28. Therefore a Member of NCAT had no power which [sic] to make the … Decision and that decision is void.
While that decision was made with respect to a rehearing application under the CTTT Act, the reasoning applies equally to the consideration by a Member of NCAT of whether to make a correction order under s 50 of the CTTT Act. There is no power in the President of NCAT or in a Member of NCAT to make such an order.
Therefore, Sch 1 of the NCAT Act contains no provision, other than cl 14, which applies to the present circumstances. Clause 14 provides that the 2012 order is to be taken as an order made by NCAT.
The s 63 order made by the Tribunal corrected an order made under the HBA, which is taken to have been made by NCAT from the establishment day. It therefore fell within NCAT's general jurisdiction and is one that can be the subject of an internal appeal.

The principles applicable to applications to extend time.

Section 41 of the CAT Act provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
The principles to be applied by the Appeal Panel on applications for an extension of time in which to appeal were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Appeal Panel relevantly said: 22 The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].

Should we extend time to lodge an appeal against the 2012 decision?

We do not think it necessary to consider this question with respect to the 2012 decision as we do not have jurisdiction to hear an appeal from the decision of the CTTT. The District Court has, with leave.
We will dismiss that appeal.

Should we extend time to lodge an appeal against the correction decision?

The appeal against the correction decision was 5 days late. The appellant says that he was sick and not living at his usual address in the time leading up to that decision being made, and was not notified of the proceedings. The respondent vigorously contests this. The delay is short and the explanation reasonable.
Since the correction order Ms Siotor has successfully garnisheed the money owing to her from the Mr Fadel's bank account. This was the culmination of many years of effort by the Ms Siotor, trying to obtain payment from the Mr Fadel, attempts which it is difficult to accept he was not aware of.
As to the appellant's prospects of success should leave to appeal be granted, we think them nugatory.
The grounds of appeal do not clearly raise an error on a question of law. We accept that, in respect of self-represented non legally trained parties, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised (Cominos v Di Rico [2016] NSWCATAP 5 at [13]).
The only ground of appeal that arguably raises an error on a question of law is that the appellant did not receive a copy of the procedural directions of the Tribunal giving him the opportunity to make submissions as to whether or not the s 63 NCAT order should be made amending his name. That gives rise to potential consideration that he was not given a reasonable opportunity to make submissions prior to the order being made, and so was denied procedural fairness. No other issue is raised, such as any complaint that the correction decision was made 'on the papers' and without an oral hearing (ss 50(2) and (3) of the NCAT Act).
The appellant asserts that he did not receive the procedural directions of the Tribunal regarding the proposed amendment of his name, because for a period of time he was living at a different address.
However, irrespective of the veracity of that submission, the appellant has made submissions in this appeal as to why he opposes the s 63 NCAT Act order, and why he would have opposed it in the correction decision. Those submissions do not now assert that he disputes that Michael Fadel and Mahmoud Fadel are the same person. The appellant accepts that he, Mahmoud Fadel, used the name Michael Fadel, and issued a quotation. The correction of the order was to change the spelling of the first name of the party who an order had been made against, not to make an order against a different party or make an order that involved the re-opening of the case.
We are not satisfied that the appellant has suffered any practical injustice within the principles set out by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] by reason of not providing written submissions in accordance with the procedural directions of the Tribunal Member even if we accepted his assertion that he had, for a period of time, been living at a different address.
In cases where leave to appeal is sought with respect to the decisions of the Consumer and Commercial Division of the Tribunal (the CCD) clause 12 of Schedule 4 of the NCAT Act relevantly provides that - 12 Limitations on internal appeals against Division decisions (1) 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). Note - Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.
This provision was discussed in detail by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 in which the Appeal Panel concluded that - 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. 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]. 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.
As discussed previously, Mr Mahmoud Fadel now admits that he and Michael Fadel (against whom the original order was made) are the one and the same man. We cannot see how in those circumstances he can argue that he has suffered a substantial injustice by the correction order being made. Given his admission, there is no real possibility or chance of their being a different outcome were he to be granted leave to appeal.
The point he really wishes to argue is not that correction order wrongly named him, but that he did not do the work the subject of Ms Siotor's initial claim. Therefore, the injustice he claims does not result from the correction order, but from the 2012 order itself, which related to that work. There is no issue of principle, or matter of public importance or policy, arising in the circumstances.
While well out of time, Mr Fadel still has an existing right to appeal to the District Court with respect to the 2012 decision.
If we were to grant leave, the appeal is destined to fail.
If we are wrong about that and the appeal were to be allowed, it would not materially advance Mr Fadel's position. Setting aside the correction order would not change the fact that Ms Siotor has successfully garnisheed the money owing, or provide Mr Fadel with an automatic right of repayment. He would still be left having to appeal the 2012 order. Similarly, apart from some inconvenience, Ms Siotor's position would not be materially changed if Mr Fadel were to succeed. He would have to appeal the 2012 decision or take some other action for the 2012 order and the money she has recovered to be at risk.
In all those circumstances we do not think this an appropriate case in which to extend time for the making of the appeal against the correction order. We will refuse an extension of time and dismiss the appeal.

Orders

The Appeal Panel makes the following orders: 1. The appeal against the order made by the Consumer Trader and Tenancy Tribunal order made 2 August 2012 in HB12/17936 is dismissed, as the Appeal Panel does not have jurisdiction to hear it. 2. An extension of time to enable the appellant to appeal the decision made by the Civil and Administrative Tribunal in HB12/17936 on 2 November 2023 is refused. The appeal is dismissed accordingly.

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: 02 July 2024

Consumer Trader and Tenancy Tribunal Act 2009(NSW)

Consumer Trader and Tenancy Tribunal Act 2001(NSW)

Consumer, Trader and Tenancy Tribunal Regulation 2009(NSW)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (20)