Falzon v Lockrey [2023] NSWCATAP 32 | Case summary

NCAT Appeal Panel|2023-01-30|Before: Blake AM

Introduction

The owner did not make any submissions about the adequacy of the reasons in the Tribunal Decision on the issue of the jurisdiction of the Tribunal.
The owner submitted that the Tribunal did not have jurisdiction to hear and determine the proceedings because there were two separate contracts for the building work, one for the tiling and waterproofing of the bathroom and toilet for which the 30 July 2021 invoice and the 20 August 2021 invoice were applicable, and one for the other work for which the 20 September 2021 invoice was applicable, each of which was below the threshold for residential building work of $5,000 prescribed under cl 12 of the HB Regulation. He relied on his text message to the owner and the owner's reply on 19 August 2021 (the 19 August 2021 text messages): "Hi Chris Just sent an invoice for tiling works, I'll invoice the jobs separately so you can differentiate between the list of jobs Many thanks Dave" "Thanks Dave, sounds good (with a thumbs up emoji)"
The owner submitted in relation to the 20 September 2021 invoice that he assisted the owner in installing the toilet and so was not doing plumbing and drainage work.

HB Act

Part 2 Division 1 (ss 4-11) contains provisions dealing with contracting for residential building work and specialist work. Section 4 deals with unlicensed contracting and relevantly provides: 4 Unlicensed contracting (1) A person must not contract to do - (a) any residential building work, or (b) any specialist work, except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work. …
Part 2C (ss 18A-18G) contains provisions dealing with statutory warranties. Section 18B deals with warranties as to residential building work and relevantly provides: 18B Warranties as to residential building work (1) The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work - (a) a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract, … (c) a warranty that the work will be done in accordance with, and will comply with, this or any other law, …
Part 3A Division 1 (s 48A) contains definitions for resolving building disputes and building claims. Section 48A includes the following definitions: 48A Definitions (1) In this Part - building claim means a claim for - (a) the payment of a specified sum of money, or … that arises from a supply of building goods or services whether under a contract or not, … … building goods or services means goods or services supplied for or in connection with the carrying out of residential building work or specialist work, being goods or services - (a) supplied by the person who contracts to do, or otherwise does, that work, or …
Part 3A Division 4 (ss 48K-48MA) contains provisions dealing with the jurisdiction of the Tribunal in relation to building claims. Section 48K confers jurisdiction on the Tribunal to hear and determine any building claim provided the criteria in that section are satisfied.
Part 6 Division 2 (ss 92-98) contains provisions dealing with insurance requirements for residential building work. Section 92 deals with the requirement of insurance and relevantly provides: 92 Contract work must be insured (1) A person must not do residential building work under a contract unless - (a) a contract of insurance that complies with this Act is in force in relation to that work in the name under which the person contracted to do the work, and (b) a certificate of insurance evidencing the contract of insurance, in a form approved by the Authority, has been provided to the other party (or one of the other parties) to the contract. … (3) This section does not apply if the contract price does not exceed the amount prescribed by the regulations for the purposes of this section or (if the contract price is not known) the reasonable market cost of the labour and materials involved does not exceed that amount. (4) If the same parties enter into two or more contracts to carry out work in stages, the contract price for the purposes of subsection (3) is taken to be the sum of the contract prices under each of the contracts. …
Schedule 1 contains definitions and other interpretative provisions. Clause 1 relevantly contains the following definitions: 1 Definitions (1) In this Act - … plumbing and drainage work means - (a) plumbing and drainage work within the meaning of the Plumbing and Drainage Act 2011, or … residential building work - see clause 2. … specialist work means the following work whether or not done in connection with a dwelling - (a) plumbing and drainage work, other than roof plumbing work, …
Clause 2 contains the definition of "residential building work" and relevantly provides: 2 Definition of "residential building work" (1) In this Act, residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in - … (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling. (2) Each of the following is included in the definition of residential building work - … (b) specialist work done in connection with a dwelling, … (3) Each of the following is excluded from the definition of residential building work - (a) any work (other than specialist work) the reasonable market cost of the labour and materials involved in which does not exceed the amount prescribed by the regulations, …

HB Regulation

Clause 12 prescribes the threshold for residential building work and provides: 12 Thresholds for residential building work For the purposes of clause 2(3)(a) of Schedule 1 to the Act, the prescribed amount is $5,000.
Clause 53 prescribes the threshold for insurance for residential building work and provides: 53 Insurance thresholds For the purposes of sections 92(3) and 96(3)(e) of the Act, the amount of $20,000 (inclusive of GST) is prescribed.

PD Act

Part 1 (ss1-5) of the Plumbing and Drainage Act 2011 (NSW) (PD Act) contains preliminary provisions. Section 3 contains definitions and relevantly provides: 3 Definitions (1) In this Act - … plumbing and drainage work - see section 4. …
Section 4 contains the definition of "Plumbing and drainage work" and relevantly provides: 4 Plumbing and drainage work - meaning … (1) In this Act, plumbing and drainage work means - … (c) the construction of, or work on, a sanitary plumbing system, or … (3) A sanitary plumbing system means an assembly of pipes, fittings, fixtures and appliances used to collect and convey sewage to a sanitary drainage system. (4) A sanitary drainage system means an assembly of pipes, fittings and apparatus (usually located below ground level) used to collect and convey the discharge from a sanitary plumbing system, together with discharge from fixtures directly connected to a drain, to a sewer. …

Adequacy of reasons

In NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr) Bell P at [66], [68], [70], [71] and [77] set out the following principles with respect to the adequacy of reasons of the Tribunal (with Ward JA at [109] agreeing): "[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley)." "[68] In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58]." (emphasis in original) "[70] As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court." (emphasis in original) [71] That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. [77] These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [14] (Gleeson CJ); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Pozzolanic at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291."
The observations in Orr at [66], [71] and [77] have been recently applied by the Appeal Panel: Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 at [20]-[23]; P8 Auto Ltd t/as European Automotive Ballina v Dolling [2022] NSWCATAP 41 at [18].

Post-contractual conduct

Post-contractual conduct is admissible on the question of whether a contract was formed. It may shed light on the proper interpretation of earlier communications alleged to constitute a contract. Further, subsequent communications may be used by a party as an admission by conduct of the existence or non-existence of a subsisting contract: Keybridge Capital Ltd v Bell Potter Securities Ltd [2022] NSWSC 1022 (Keybridge) at [11]-[12].

Consideration

Having regard to the principles in Orr at [66], [68], [70], [71] and [77], we are satisfied that the Tribunal provided inadequate reasons in the Tribunal Decision for its finding that it had jurisdiction to hear and determine the proceedings for the following reasons: 1. the Tribunal in the Tribunal Decision at [15] found that there was a single contract between the parties for a bathroom renovation but did not explain the facts upon which that finding was made; 2. inconsistently, the Tribunal in the Tribunal Decision at [17] found that there were two or more contracts between the parties but did not explain the facts upon which that finding was made; 3. the Tribunal while setting out s 92(3) and (4) of the HB Act in the Tribunal Decision at [16] did not explain the relevance of these provisions dealing with insurance for its determination that it had jurisdiction, and further did not refer to and explain the relevance of the threshold for insurance of $20,000 pursuant to cl 53 of the HB Regulation.
While this failure of the Tribunal to provide adequate reasons constitutes an error, this error in itself does not result in the appeal being allowed. Rather in view of issue 2 we decided that it was appropriate to rehear the question of whether the Tribunal had jurisdiction to hear and determine the proceedings.
To the extent that the builder submitted there was oral evidence that there were two separate contracts comprising the building work, we reject those submissions as the builder failed to provide the transcript of the hearing. It follows that we are limited to the evidence comprised in exhibits 1 and 2 in considering whether the Tribunal had jurisdiction to hear and determine the proceedings.
In considering this issue we are satisfied that there was a single contract between the parties for renovation of the bathroom and toilet at the property for the following reasons: 1. the 26 July 2021 text messages and copies of the plans of the bathroom and toilet provided by the owner beforehand indicate that there was a single contract between the parties for renovation of the bathroom and toilet at the property at a fixed price with the precise scope of works not specified; 2. while we are permitted pursuant to the principles in Keybridge at [11]-[12] to have regard to subsequent communications between the parties to determine whether they entered into a second contract for the performance of building work at the property, these subsequent communications do not indicate the parties entered into a second contract: 1. the 20 September 2021 invoice in referring to "Apply villaboard to bathroom, separate toilet and breezeway" clearly related to work specified in the 26 July 2021 text messages; 2. the words "Just sent an invoice for tiling works, I'll invoice the jobs separately so you can differentiate between the list of jobs" in the 19 August 2021 text messages do not indicate there was a second contract but, rather, that the work other than the tiling would be invoiced separately.
We are satisfied that the building work carried out under the single contract constituted residential building work for each of the following reasons taken separately and cumulatively: 1. the reasonable market cost of the labour and materials involved was $8,638.30, being the total of the 30 July 2021 invoice, the 20 August 2021 invoice and the 20 September 2021 invoice, and thus exceeded the exclusionary threshold of $5,000 prescribed under cl 12 of the HB Regulation. Even if the amount of $8,638.30 should be reduced by $792.00 to take account of the discount agreed on or about 28 September 2021, then the amount of $7,846.30 still exceeded this exclusionary threshold; 2. the item described as "Fit taps, install toilet and connect bath and shower to mains" in the 20 September 2021 invoice was specialist work done in connection with a dwelling within cl 2(2)(b) of Sch 1 of the HB Act by reason that it was plumbing and drainage work, being work on a sanitary plumbing system within s 4(1)(c), (3) and (4) of the PD Act. It follows that the exclusionary threshold of $5,000 prescribed under cl 12 of the HB Regulation was not applicable to this item.
In view of our finding that the building work was carried out under the single contract which constituted residential building work, we are satisfied that the proceedings before the Tribunal involved a building claim within the meaning of s 48A(1)(a) of the HB Act and accordingly that the Tribunal had jurisdiction to hear and determine them pursuant to s 48K of the HB Act. None of the exclusions of jurisdiction specified in s 48K of the HB Act is applicable to these proceedings.
For these reasons, while we accept the ground of appeal that the Tribunal failed to provide proper reasons with respect to its finding of jurisdiction, we reject the ground of appeal that the Tribunal did not have jurisdiction to hear and determine the proceedings.

Issues 3 and 4: whether the Tribunal failed to afford procedural fairness to the builder and took into account extraneous material

Introduction

The builder submitted that the owner's written submissions before the Tribunal comprised over 300 pages most of which he had not previously seen. The owner disputed that there were any documents that were not included in exhibit 1.

Consideration

The rules of procedural fairness require that anything relied upon by a court in reaching its decision be made known to the parties to the proceeding prior to the making of the decision, so that the parties may oppose reliance upon it, produce evidence in relation to it and make submissions about it. Reliance upon material which does not emerge in that manner is a breach of the rules of procedural fairness: Berry v Andrews [2022] FedCFamC1A 120; (2022) 65 Fam LR 183 (Berry v Andrews) at [10].
Questions of procedural fairness aside, reliance on extraneous material by a judge, if established, would reveal error of the type identified in House v R at 504-505 and in particular the type of error that occurs when a judge allows extraneous or irrelevant matters to guide or affect his judgment: Berry v Andrews at [14].
We accept that, if the Tribunal received and took into account extraneous material that had not been received into evidence, then that would constitute a failure to afford procedural fairness to the builder and error of the type identified in House v R at 504-505 by allowing extraneous or irrelevant matters to guide or affect its decision.
We are not satisfied that the Tribunal received and took into account extraneous material for the following reasons: 1. the builder failed to include these additional documents in the materials he provided to the Appeal Panel; 2. the builder did not point out any document that had not been received into evidence relied on or referred to by the Tribunal in the Tribunal Decision.
For these reasons, we reject the ground of appeal that the Tribunal failed to afford procedural fairness to the builder and took into account extraneous material.

Issue 5: whether the exercise of the discretion of the Tribunal in making a money order miscarried

Introduction

The builder submitted that it was inappropriate for the Tribunal to make a money order in circumstances of the fraud of the owner, and it should have made a work order.

Consideration

The Tribunal in the Tribunal Decision at [47] identified two separate reasons for making a work order.
To the extent that the builder submitted there was oral evidence bearing upon these reasons, we reject those submissions as the builder failed to provide the transcript of the hearing.
We are not satisfied that upon the proper construction of s 48O of the HB Act there are any mandatory considerations that are to be taken into account when the Tribunal exercises its discretion whether to make a work order or a money order other than the principle that rectification of the defective work by the responsible party is the preferred outcome as required by s 48MA of the HB Act.
As set out in the Tribunal Decision at [47] and [48], the Tribunal took into account s 48MA of the HB Act and expressed reasons each of which was sufficient in itself to exercise the discretion against a work order. The Tribunal was not required to take into account the builder's allegations of fraud by the owner in exercising this discretion.
It follows that the Tribunal did not make any error of law in the exercise of its discretion under s 48O of the HB Act.
For these reasons, we reject the ground of appeal that the exercise of the discretion of the Tribunal in making a money order miscarried.

Issue 6: whether leave to appeal should be granted to the builder and if so whether the appeal should be allowed

Introduction

In the notice of appeal, the builder relevantly set out the following contentions: 1. as to whether he had breached the statutory warranty under s 18B(1)(a) of the HB Act: "Richard Eastman report relied on misleading information a waterproofing certificate was not supplied. This is false, numerous copies were issued. The report has numerous errors and inconsistencies suggesting the painting has been applied poorly with runs in paint, etc." "The ADO report provided a Quote to remove and re-apply waterproofing membrane, This Is not a bona fide estimate from a licensed contractor. Richard Eastman, ADO do not hold a wet seal, or a tilers licence, I have not sighted a licence number on the Quote, or qualifications to provide a quote to Re-apply waterproofing membrane. The Quote does not comply with the HB act, It is an offence to quote for work $6;592.08 without a contractor licence, the ADO quote is not a reliable or legal document" 1. as to significant new evidence having become available: "Significant new evidence has become available, being the Tenancy agreement, detailed pictures and condition report supplied in submissions presented after hearing was completed."
In his oral submissions, the builder relevantly submitted that he gave oral or written evidence before the Tribunal that he was in partnership with his son who held a contractor licence under the HB Act, and that he substituted invoices with his son's name. He also submitted that Mr Eastman in cross-examination agreed that a warranty had been provided.

Consideration

To the extent that the builder submitted there was oral evidence by himself that his son held a contractor licence under the HB Act and his son was the substituted contracting party on the tax invoices and by Mr Eastman agreeing that a warranty had been provided, we reject those submissions as the builder failed to provide the transcript of the hearing.
In discussions during the hearing of the appeal the builder agreed that he did not cross-examine Mr Eastman about his qualifications.
The second aspect of the rule in Browne v Dunn (1894) 6 R 67 is concerned with the weight to be afforded to evidence which has not been the subject of cross-examination and is to the effect that evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact. It might be legal error not to accept unchallenged and uncontradicted evidence which is not inherently implausible: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (Ghosh) at [69]-[70] (Brereton JA), (Simpson AJA at [137] agreeing).
Having regard to the principles in Ghosh at [69]-[70], we are satisfied that the Tribunal was entitled to accept the unchallenged evidence of Mr Eastman. While there was a warranty certificate for waterproofing by the builder in the documents of the builder, the absence of transcript meant there was no indication that it was put to Mr Eastman nor what was his reply in respect of it. Accordingly, we do not accept that the Tribunal Decision that the builder breached the statutory warranty in s 18B(1)(a) of the HB Act by reason of defective and incomplete works, and that the reasonable cost of rectification and completion was $6,592.08, was not fair and equitable or against the weight of evidence within the meaning of cl 12(1)(a) and (b) of Sch 4 of the NCAT Act. Contrary to the submission of the builder, there is no requirement that an expert witness holds a contractor licence under the HB Act before he will be able to give an opinion as to the reasonable cost to rectify and complete defective and incomplete residential building work. The expert witness is not thereby offering to contract to undertake the work.
Pursuant to s 4 of the HB Act the builder was required to hold a contractor licence. In the absence of any contrary evidence, we do not accept that the Tribunal Decision that the builder breached the statutory warranty in s 18B(1)(c) of the HB Act by reason of being an unlicensed contractor was not fair and equitable or against the weight of evidence within the meaning of cl 12(1)(a) and (b) of Sch 4 of the NCAT Act.
We are not satisfied that the documents identified by the builder constitute significant new evidence (being evidence that was not reasonably available at the time the proceedings before the Tribunal were being dealt) that has arisen within the meaning of cl 12(1)(c) of Sch 4 of the NCAT Act. The materials before the Appeal Panel indicate that the tenancy of the property commenced on 6 September 2021 and thus the documents identified by the builder would have been available prior to the hearing.
Since none of the criteria in cl 12(1) of Sch 4 of the NCAT Act has been satisfied, we are not satisfied that the builder may have suffered a substantial miscarriage of justice. It follows that leave to appeal against the Tribunal decision should be refused.
Even if we had been satisfied that the builder may have suffered a substantial miscarriage of justice, then having regard to the matters in Collins at [84(2)], we would not have exercised the discretion under cl 12(1) of Sch 4 of the NCAT Act to grant leave to appeal against the Tribunal Decision.

Conclusion

Since we have decided not to grant leave to appeal, we have decided to make an order refusing leave to appeal. Since we have rejected the grounds of appeal constituted by issues 2 to 5, we have decided to make an order that the appeal should otherwise be dismissed pursuant to s 81(1)(a) of the NCAT Act.

Orders

We make the following orders: 1. leave to appeal is refused; 2. the appeal is otherwise dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 06 February 2023

The scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law, which relevantly includes whether there has been a failure to provide proper reasons, whether there was a failure to afford procedural fairness and whether the Tribunal failed to take into account relevant (in the sense of mandatory) considerations.
Whether a court or tribunal has jurisdiction or power to make a decision or take some other step in the proceedings raises a question of law: Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [26]-[27] (Bathurst CJ and Bell P) (Johnson J at [128], Garling J at [136] and Lonergan J at [137] agreeing).
An appeal in relation to the miscarriage of the exercise of a statutory discretion under s 48O of the HB Act in the sense of House v R (1936) 55 CLR 499 (House v The King) at 504-505; [1936] HCA 40 raises a question of law: Leung v Alexakis [2018] NSWCATAP 11 at [141].
In House v The King at 504-505 Dixon, Evatt and McTiernan JJ stated: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 (Peko-Wallsend) Mason J at 39-40 explained the ground of failing to take into account a relevant consideration (Gibbs CJ at 30 and Dawson J at 71 agreeing): "The ground of failure to take into account a relevant consideration can only be made out if a decision·maker fails to take into account a consideration which he is bound to take into account in making that decision … What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act."
In Peko-Wallsend Mason J at 40 explained the ground of taking into account irrelevant considerations (Gibbs CJ at 30 and Dawson J at 71 agreeing): "In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ..."
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable (cl 12(1)(a)); or 2. the decision of the Tribunal under appeal was against the weight of evidence (cl 12(1)(b)); or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) (cl 12(1)(c)).
In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered 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." (emphasis in original)
In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated 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" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act 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.
The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
In Collins, the Appeal Panel at [84] summarised the general principles which govern the granting of leave to appeal: "[84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."
An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
The Appeal Panel may 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: s 80(3)(a) of the NCAT Act. The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including an order that the appeal is to be dismissed: s 81(1)(a) of the NCAT Act. The Appeal Panel may exercise all the functions that are conferred by 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: s 81(2) of the NCAT Act.
Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that, in the case of an appeal from a decision of the Tribunal, an internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision.
In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.

(2022) 65 Fam LR 183

(2019) 100 NSWLR 578

Falzon v Lockrey

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