Farrugia v The Hour Glass (Australia) Pty Ltd

1. Part 1 (ss 1-6) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) contains preliminary provisions. Section 4 contains definitions and relevantly states:

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interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following -

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(h1) the granting of leave for a person to represent a party to proceedings,

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1. Part 3 (ss 28-34) contains provisions dealing with the jurisdiction of the Tribunal. Section 32 deals with the internal appeal jurisdiction of the Tribunal and relevantly states:

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(3) However, the internal appeal jurisdiction of the Tribunal does not extend to -

(a) any decision of an Appeal Panel, or

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1. Part 4 Div 3 (ss 44-48) contains provisions dealing with the practice and procedure of the Tribunal. Section 45 deals with the representation of parties and relevantly states:

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(b) may be represented by another person only if the Tribunal grants leave -

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(ii) in the case of representation by an Australian legal practitioner - for a particular or any Australian legal practitioner to represent the party.

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(3) The Tribunal may at its discretion -

(a) grant or refuse leave under subsection (1)(b), and

(b) revoke any leave that it has granted.

1. Part 3 (regs 9-11) of the Civil and Administrative Tribunal Regulation 2022 (NSW) (NCAT Regulation) contains miscellaneous provisions. Regulation 9 confers an additional power to set aside or vary a decision determining proceedings and relevantly states:

9 Additional power to set aside or vary decision determining proceedings - the Act, s 90(2)(a)

(1) In addition to a power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if -

(a) all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, or

(b) the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.

1. In 2022, Mr Farrugia purchased a Hublot watch from Hour Glass for $40,800.00.
2. Mr Farrugia, after returning the watch to Hour Glass on four occasions for repairs, remained dissatisfied with the performance of the watch. LVMH carried the repairs to the watch.
3. On 23 October 2024, Mr Farrugia commenced proceedings 2024/00393525 in the Consumer and Commercial Division of the Tribunal under the Fair Trading Act 1987 (NSW) against Hour Glass (the CCD proceedings) by lodging an application form in which he claimed various remedies (the Farrugia application).
4. On 8 May 2025, the Tribunal constituted by Senior Member D Charles granted leave for LVMH, which had been joined as a respondent on the application of Mr Farrugia, to be represented by an Australian legal practitioner, on condition that it does not seek an order for costs in the proceedings (the CCD representation order).
5. On 11 August 2025, the Tribunal constituted by Senior Member K George made an order dismissing the Farrugia application (the 11 August 2025 order).

1. On 5 September 2025, Mr Farrugia appealed against the 11 August 2025 order by lodging a notice of appeal.
2. On 26 September 2025, the Appeal Panel constituted by Deputy President G Sarginson made procedural orders for the hearing of the appeal (the 26 September 2025 AP orders) including by order 2 making the AP representation order. In order 3 the Appeal Panel provided the following reasons for the AP representation order:

"The second respondent, LVMH Watch and Jewellery Pty Ltd, seeks leave to be legally represented in the appeal. The appellant opposes leave being granted. The parties made submissions on this issue on 26 September 2025. The appellant asserts he will be disadvantaged as he does not intend to obtain legal representation. The Appeal Panel has considered the applicable principles in respect of the grant of legal representation under s 45 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) and the procedural guideline for representation in Consumer and Commercial Division matters (the same principles are relevant to the grant of legal representation in an appeal). The amount claimed or in dispute in the original proceedings exceeded $40,000, and the appeal seeks to set aside the orders dismissing the proceedings. By reason of the amount in dispute and the complexity of the legal issues, the Appeal Panel is satisfied that leave for legal representation should be granted, and it is not satisfied that it is appropriate to impose any condition. Further, the appellant should obtain advice about the operation of Rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 on the issue of costs and how those Rules affect the operation of s 60 of the NCAT Act. Although a condition restricting the Solicitors for the second respondent was imposed in the Tribunal proceedings that they not be able to claim costs, it is the Appellant who has chosen to appeal and the legal issues in the appeal are not the same legal issues as in the Tribunal at first instance. The Appeal Panel often deals with hearings where one party is legally represented and another is self-represented. That, of itself, does not obviously create disadvantage. The Appellant can obtain his own legal advice, and the Appeal Panel can manage a hearing that is procedurally fair to a self-represented litigant. There is no evidence of the Appellant having a disadvantage such as a disability."

1. On 3 October 2025, Mr Farrugia sent an email to the Appeal Registry, which was not copied to Hour Glass and LVMH's solicitors, relevantly attaching the 3 October 2025 Farrugia application in which he:

"1. That Order 2 made by the Appeal Panel on 26 September 2025 be varied to add the following condition:

"Each party is to bear their own costs in the appeal, regardless of outcome."

2. That this application be determined on the papers, or otherwise listed for short submissions if the Panel prefers."

"1. Consistency with prior NCAT orders in this matter

1.1 0n 8 May 2025, the Tribunal (Senior Member P. Charles, Legal) granted the Respondent LVMH Watch and Jewellery Australia Pty Ltd leave for legal representation on condition that it would not seek an order for costs in that proceeding (Case No. 2024/00393525). (Annexure A)

1.2 The Appeal Panel's orders of 26 September 2025 depart from that protective condition without stated justification. Given the same parties and substantially the same dispute, procedural consistency favours the re-imposition of a no-costs condition in this appeal.

2. NCAT Act statutory objectives and fairness

2.1 Section 3(d) of the Civil and Administrative Tribunal Act 2013 [NSW) (NCAT Act) requires that the Tribunal be accessible, eefficient and fair, with minimal formality.

2.2 Section 38 requires the Tribunal to act with as little formality as is consistent with the proper consideration of the matters and to ensure proceedings are conducted to facilitate the just, quick and cheap resolution a the real Issues.

2.3 Allowing the Respondents to seek costs against an unrepresented Appellant creates an economic barrier that undermines access to justice and the ability to advance the appeal on its merits.

3 Section 60 costs framework

3.1 Section 60 of the NCAT Act provides that, in general, each party is to pay their own costs unless the Tribunal is satisfied there are special/exceptional circumstances justifying a costs order.

3.2 Varying Order 2 to state expressly that each party is to bear their own costs does not prejudice the Respondents, it confirms and preserves the statutory starting point and prevents costs exposure from operating as a deterrent to the continuation of the appeal.

4. Imbalance of resources and practical effect

4.1 The Appellant is a self-represented individual. The Respondents are well-resourced corporate entities represented by specialist counsel.

4.2 If costs exposure remains open, the financial risk to the Appellant is so disproportionate that it may become Impracticable to continue the appeal- not for lack of merit, but due solely to fear of financial ruin. Such an outcome is contrary to the Tribunal's statutory objectives.

5. Disposition sought

5.1 The Panel should vary Order 2 to add the condition that each party bear their own costs in the appeal. This preserves access to justice and aligns with the prior NCAT order in the same dispute (Annexure A)."

1. On 9 October 2025, the Appeal Panel constituted by myself made procedural orders for the hearing of the 3 October 2025 Farrugia application including for submissions on whether it should be dismissed for want of jurisdiction of the Tribunal and which included the following note:

"(1) The Appeal Panel notes that s 32(3)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that the internal appeal jurisdiction of the Tribunal does not extend to any decision of an Appeal Panel. The parties will need to address the question of whether the 3 October 2025 Farrugia Application should be dismissed pursuant to s 55(1)(b) of the NCAT Act on the basis that it is in substance an appeal against order 2 made on 26 September 2025."

1. On 13 October 2025, Mr Farrugia sent an email to the Appeal Registry, which was not copied to Hour Glass and LVMH's solicitors, in which he requested a stay of the 26 September 2025 AP orders pending the determination of the 3 October 2025 Farrugia application (the 13 October 2025 Farrugia application).
2. On 14 October 2025, the Appeal Panel constituted by myself made procedural orders for the hearing of the 13 October 2025 Farrugia application.
3. On 5 November 2025, the Appeal Panel constituted by myself reserved my decision on the 13 October 2025 Farrugia application.

(1) whether the 13 October 2025 Farrugia application should be dismissed;

(2) whether a hearing of the 3 October 2025 Farrugia application should be dispensed with;

(3) the 3 October 2025 Farrugia application.

Whether the 13 October 2025 Farrugia application should be dismissed

1. As this decision contains my decision on the 3 October 2025 Farrugia application, there is no utility in determining the 13 October 2025 Farrugia application. It follows that the 13 October 2025 Farrugia application should be dismissed.

Whether a hearing of the 3 October 2025 Farrugia application should be dispensed with

1. Each of Mr Farrugia and LVMH consents to a hearing of the 3 October 2025 Farrugia application being dispensed with.
2. I am satisfied that the issues for determination in respect of the 3 October 2025 Farrugia application can be adequately determined in the absence of the parties by considering their written submissions. Accordingly, I have decided pursuant to s 50(2) of the NCAT Act to make an order dispensing with a hearing in relation to this application.

1. Before considering this issue, I have summarised the submissions of the parties.

(1) the Appeal Panel plainly has jurisdiction to consider the 3 October 2025 Farrugia application. ft falls squarely within the Appeal Panel's case-management powers and does not amount to an internal appeal under s 32(3)(a) of the NCAT Act;

(2) the 3 October 2025 Farrugia application is a procedural request to vary an interlocutory order within the same proceedings;

(3) the Appeal Panel has jurisdiction to vary its own interlocutory directions and conditions, including orders for legal representation;

(4) regulation 9 of the NCAT Regulation empowers the Tribunal to "set aside, revoke or vary" interlocutory decisions, on application or on its own motion;

(5) the AP representation order is an interlocutory decision, as expressly defined in the NCAT Act;

(6) accordingly, the 3 October 2025 Farrugia application is not misconceived and should not be dismissed under s 55(1)(b) of the NCAT Act.

1. Mr Farrugia advances four submissions as follows:

(1) firstly, s 32(3)(a) of the NCAT Act does not bar the 3 October 2025 Farrugia application because:

(a) it prevents internal appeals against Appeal Panel decisions;

(b) he is not appealing; he is asking the Appeal Panel to exercise its own procedural power to vary its earlier interlocutory order;

(c) the relief sought is case-management in nature not appellate;

(2) secondly, the Appeal Panel has power to vary interlocutory orders because:

(a) regulation 9 of the NCAT Regulation confirms power to vary interlocutory decisions and does not limit any other variation powers;

(b) the AP representation order is expressly identified by the NCAT Act as an interlocutory decision;

(c) sections 36 and 38 of the NCAT Act reinforce the Tribunal's control over its own procedure to ensure the just, quick and cheap resolution of issues. Varying the AP representation order now promotes efficiency by resolving costs exposure early and allowing the appeal to proceed on the real issues;

(3) thirdly, the 3 October 2025 Farrugia application is not misconceived under s 55(1)(b) of the NCAT Act because:

(a) section 55(1)(b) permits dismissal where proceedings are misconceived or lacking in substance;

(b) the application is well founded. It advances a clear statutory pathway (NCAT Regulation, reg 9) and seeks a modest procedural variation to safeguard fairness;

(c) it therefore cannot be dismissed as misconceived;

(4) fourthly, granting the 3 October 2025 Farrugia application promotes consistency and fairness because:

(a) in the CCD proceedings, the Tribunal made the CCD representation order only on a no-costs condition. The application simply seeks procedural consistency and fairness in the appeal context,

(b) denying this protection risks shutting out a self-represented party due to financial intimidation rather than the merits of the appeal;

(c) the Tribunal's own Service Charter reinforces that NCAT must (a) resolve, the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and (b) ensure that its decisions are timely, fair, consistent and of a high quality. The variation sought aligns directly with these commitments.

1. Mr Farrugia submits that the Appeal Panel should confirm it has jurisdiction to determine the 3 October 2025 Farrugia application, decline dismissal under s 55(l)(b) of the NCAT Act, and vary the AP representation order accordingly by adding "Each party is to bear their own costs in the appeal regardless of outcome."

1. LVMH opposes the 3 October 2025 Farrugia application for want of jurisdiction and because it is inconsistent with the costs provisions in the NCAT Act and the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
2. LVMH, after referring to ss 5 and 32(3) of the NCAT Act, submits that the 26 September 2025 AP orders constitute a decision of the Appeal Panel over which the Tribunal does not have internal appeal jurisdiction. It relies on Jeray v Information and Privacy Commission [2024] NSWCATAP 239 (Jeray) at [51] where the Appeal Panel held that it did not have jurisdiction to review an interlocutory decision of a differently constituted Appeal Panel. The Appeal Panel determined the question of whether to impose the condition sought by Mr Farrugia after hearing submissions of the parties on 26 September 2025. The Appeal Panel has made its decision, and absent any new circumstances having been put before it by him that were not available at that hearing, Mr Farrugia is seeking to put forward an appeal which the Appeal Panel has no jurisdiction to entertain.
3. In the alternative, if the Appeal Panel were to accept that Mr Farrugia is technically putting forward an application to vary rather than strictly an appeal, then LVMH submits that the 3 October 2025 Farrugia application should still not be entertained. Absent changed circumstances from the 26 September 2025 hearing, then the application remains in substance an appeal of the kind which s 32(3) of the NCAT Act prohibits. Where an application to vary is in substance an appeal it ought not be entertained: Director of Public Prosecutions v Geraghty [2000] NSWSC 228 (Geraghty) at [3]-[9]. Otherwise, a variation to an interlocutory order will not be made absent changed circumstances or material that was unavailable at the hearing: AIN v Medical Council of New South Wales [2017] NSWCATAP 36 (AIN) at [23]. Nothing of that nature has been identified.
4. If the Appeal Panel does not accept that the 3 October 2025 Farrugia application should be dismissed on the basis it lacks jurisdiction pursuant to s 32(3) of the NCAT Act, LVMH also submits that the application should be dismissed as the order sought is necessarily one the Appeal Panel cannot make, being inconsistent with s 60 of the NCAT Act and rr 38 and 38A of the NCAT Rules. The Appeal Panel is not entitled to fetter, in advance, its jurisdiction to order costs. The parties will be entitled to be heard on the question at the conclusion of the proceedings. Accordingly, the Appeal Panel cannot impose the condition sought by Mr Farrugia and it is beyond jurisdiction.
5. As there is no jurisdiction for the Appeal Panel to determine the 3 October 2025 Farrugia application, or alternatively as the application is misconceived and lacking in substance, it would be frivolous and vexatious to LVMH for the application to be determined by the Appeal Panel. LVMH submits that the application should therefore be dismissed under s 55(1)(b) of the NCAT Act for want of jurisdiction.

(1) the Appeal Panel plainly has jurisdiction to determine the 3 October 2025 Farrugia application. LVMH mischaracterises it as an "internal appeal" under s 32(3) of the NCAT Act; in truth it is a procedural variation sought within the same proceedings;

(2) section 32(3)(a) of the NCAT Act bars an appeal from one Appeal Panel to another. It does not prevent the same Panel from revisiting its own interlocutory directions where the Interests of justice so require. That power arises under reg 9 of the of the NCAT Regulation and s 64(1) of the NCAT Act, which authorise the Appeal Panel to set aside, revoke or vary interlocutory orders at any time;

(3) the AP representation order is plainly interlocutory: it does not determine any substantive right or the outcome of the appeal. Authorities such as Jeray and Geraghty concern attempts to re-appeal or reopen decisions of a differently constituted Appeal Panel, and are therefore inapposite;

(4) LVMH's reliance on rr 38 and 38A of the NCAT Rules and s 60 of the NCAT Act misconceives the relief sought. He does not seek to fetter the Appeal Panel's eventual costs discretion, but rather to maintain procedural parity consistent with the first instance "no costs" condition. Such a safeguard promotes, not restricts the Tribunal's statutory obligation under s 36 of the NCAT Act to ensure proceedings are conducted justly, quickly cheaply and with as little formality as possible;

(5) the 3 October 2025 Farrugia application is neither frivolous nor vexatious within s 55(1)(b) of the NCAT Act; it raises a bona fide question of procedural fairness. LVMH's suggestion that it be dismissed for want of jurisdiction lacks foundation in either statute or principle;

(6) accordingly, the Appeal Panel retains jurisdiction to consider and determine the 3 October 2025 Farrugia application and should proceed to hear it on its merits.

1. The Appeal Panel AP made the AP representation order under s 45(1)(b)(ii) and (3)(a) of the NCAT Act after a contested hearing, and provided written reason for this decision.
2. I accept that the AP representation order is an interlocutory decision of the Appeal Panel within s 4(1)(h1) of the NCAT Act.
3. Mr Farrugia in the 3 October 2025 Farrugia application seeks to vary the AP representation order by adding a condition. He has not sought to revoke the AP representation order under s 45(3)(b) of the NCAT Act.
4. In Geraghty, Hidden J considered an application to set aside an order made, by consent, by Simpson J under the Proceeds of Crime Act 1987 (Cth). A preliminary question which arose was whether the proper course was for the applicant to seek leave to appeal against that order to the Court of Appeal, pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW). His Honour at [6] noted earlier authorities recognised a distinction between a challenge to an interlocutory order upon the basis that it was wrong in law or without jurisdiction, on the one hand, and an application to rescind or vary an interlocutory order in the light of changed circumstances, on the other. Accordingly, His Honour at [9] was satisfied that the application was not properly brought in the Common Law Division of the Supreme Court.
5. In AIN at [23], the Appeal Panel set out the principles that constrain the Tribunal when confronted with an application to re-agitate an existing interlocutory decision:

"[23] ... The principles relating to the variation or discharge of interlocutory orders otherwise than by appeal were set out by McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46-7. In that case, his Honour, in a passage often cited, said:

The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see for example Wilkshire & Coffey v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest "until further order" (as to which see for example Warringah Shire Council v Industrial Acceptance Corp (unreported, SC(NSW), McLelland J, 22 November 1979).

In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application: see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164-5; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447-8; Chanel Ltd v F W Woolworth & Co [1981] 1 All ER 745; [1981] 1 WLR 485; Adam P Brown Male Fashions v Philip Morris [1981] HCA 39; (1981) 148 CLR 170 at 177-8; [1981] HCA 39; 35 ALR 625 at 629-30; Butt v Butt [1987] 1 WLR 1351 at 1353; Gordano Building Contractors Ltd v Burgess [1988] 1 WLR 890 at 894."

1. In Jeray at [51], the Appeal Panel disagreed with the submission of the appellant that the Appeal Panel can, under s 32(2)(a) of the NCAT Act, review an interlocutory decision made in the appeal by a differently constituted Tribunal:

"[51] ... Section 32(2)(a) provides that the Tribunal has, in exercise of its internal review jurisdiction, the jurisdiction to make ancillary and interlocutory decisions of the Tribunal. Significantly, s 32(3)(a) then provides that the internal appeal jurisdiction of the Tribunal does not extend to any decision of an Appeal Panel. This precludes us from reviewing an interlocutory decision of the differently constituted Appeal Panel in exercise of our internal review jurisdiction. An appeal against such an interlocutory decision can only be made to the Supreme Court on a question of law with the leave of the Court: NCAT Act, s 83(1). Accordingly, the current miscellaneous application must be dismissed."

1. In Kimber v Clark as trustee of the estate of Kimber (Review of orders) [2025] FCA 1181 (Kimber), Perram J considered an interlocutory application of Ms Kimber which sought to review earlier orders made by Charlesworth J who had dismissed her earlier application to extend the time to seek leave to appeal. His Honour, having referred to r 39.04 of the Federal Court Rules 2011 (Cth), found at [8]:

"[8] ... in effect, what Ms Kimber is seeking through her review application is in substance an appeal. In my view, a review application under r 39.04 cannot be used as a backdoor or de facto mechanism of appeal. This is particularly so in this case where there is no appeal from Charlesworth J's orders of 20 August 2025. It is often said in various areas of legal discourse that one cannot achieve indirectly what cannot be achieved directly. I therefore do not accept that the review application, framed as it is, is one which the Court ought to entertain and I therefore would dismiss Ms Kimber's application for a review of the orders."

1. Having regard to the principles in Geraghty, AIN, Jeray and Kimber, I am satisfied that the 3 October 2025 Farrugia application is in substance an appeal against the AP representation order. It is not founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Appeal Panel on the hearing of the original application. It has been made in circumstances where Mr Farrugia has not sought leave to appeal to the Supreme Court under s 83(1) of the NCAT Act against the AP representation order.
2. Section 32(3)(a) of the NCAT Act states that the internal appeal jurisdiction of the Tribunal does not extend to any decision of an Appeal Panel. It follows that in the exercise of the internal appeal jurisdiction of the Tribunal I am precluded from varying or setting aside the AP representation order. The submissions of Mr Farrugia are misconceived. In particular, Mr Farrugia's reliance on reg 9 of the of the NCAT Regulation and ss 36, 38 and 64(1) of the NCAT Act as the source of the power to make the order sought is misplaced. Even if the AP representation order can be characterised as a decision "that determines proceedings" within reg 9(1), neither of the conditions for the exercise of this power in pars (a) and (b) have been satisfied. Further, none of ss 36, 38 and 64 of the NCAT Act is a source of power. Section 36 stipulates the guiding principle to be applied to the practice and procedure of the Tribunal. Section 38 contains general provisions dealing with the procedure of the Tribunal. Section 64(1) provides for the making of non-disclosure orders. If the reference to s 64(1) of the NCAT Act is a mistaken reference to s 63(1), then this subsection is not a source of power as it is predicated on "an obvious error in the text of ... a written statement of reasons for the decision".
3. It is unnecessary to consider LVMH's other submissions. It follows that the 3 October 2025 Farrugia application should be dismissed.

(1) The application of the appellant lodged on 13 October 2025 is dismissed.

(2) A hearing of the application of the appellant lodged on 3 October 2025 is dispensed with.

(3) The application of the appellant lodged on 3 October 2025 is 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.