Fassas v Maciel

NCAT Appeal Panel|2015-03-31|Before: Redfern J

Solicitors: File Number(s): AP 14/53217 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 03 October 2014 Before: Bradford C File Number(s): COM 14/44198

Introduction

Mr and Mrs Fassas seek leave to appeal from a decision of the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (the CCD) of 3 October 2014. The CCD dismissed Mr and Mrs Fassas' application for relocation of part of the fence located close to the boundary line between their property and the property of their neighbours, the respondents, Mr and Mrs Maciel.
For the reasons that follow we have decided to dismiss the appeal.

Grounds of appeal

Mr Mrs Fassas list their grounds of appeal as follows: [1] decision was contrary to s.36(1) of [the Act]. [2] hearing was not conducted in the accordance with the rules of natural justice as required by s.38(2) of the Act. [3] hearing was not conducted equitably and having regard to the merits of [Mr and Mrs Fassas'] case as required by s.38(4) of the Act. [4] hearing did not meet the requirements of s.38(5)(a) of the Act as [Mr and Mrs Fassas'] representative [Mr Tsimboulas] was not properly advised of [the] nature of the proceedings. [5] hearing did not comply with s. 38(3)(c) of the Act as [Mr and Mrs Fassas'] representative [Mr Tsimboulas] was not given [a] reasonable opportunity to be heard will make submissions.
Mr and Mrs Fassas ask the Appeal Panel to revoke the CCD's order dismissing the original application, and to make an order in their favour as requested in the original application, or an order that there be a rehearing of their application. Alternatively they also seek an order that they may implement the order sought at their own expense.
Mr and Fassas assert that their grounds of appeal establish the grounds for an appeal on a question of law. They say that if the grounds of appeal do not give rise to appeal as of right on a question of law, they should be given leave to appeal because there has been a substantial miscarriage of justice in that the original decision was not fair and equitable, against the weight of the evidence and that new evidence has arisen that was not reasonably available at the time of the hearing.
Mr and Mrs Fassas have provided very detailed submissions. One of their principal complaints is that during a conciliation between the parties prior to the hearing their representative (their son-in-law Mr John Tsimboulas) was shown a small number of photographs by Mr and Mrs Maciel but that they did not disclose that a substantial submission with attachments had been lodged with the CCD and was in the possession of the member of the CCD hearing their application.
Mr and Mrs Fassas assert that the member did not ascertain whether they or Mr Tsimboulas had been served with or had seen Mr and Mrs Maciel's documents. They say they were prejudiced because Mr Tsimboulas was not able to properly assess and consider the impact of Mr and Mrs Maciel's documents during the course of the hearing, nor make appropriate final submissions at the conclusion of the hearing. They say they only became aware of the extent of Mr and Mrs Maciels's documents after the hearing when Mr Tsimboulas accessed the CCD file to examine the documents for the purpose of advising them whether to seek a review of the CCD's decision.
They claim that the documents filed by Mr and Maciel disclosed inaccuracies and inconsistencies, and the member erred in relying on them. They say that if they had been given access to those documents prior to or at the hearing they would have asked for an adjournment to consider the evidence.
Mr and Mrs Fassas also submit that the CCD, in essence, misunderstood the 2013 survey. They say that survey clearly showed the encroachment by Mr and Mrs Maciel's garage and fence and that the CCD could not have made its findings based on a proper assessment of the survey. They also say that the CCD erred in giving inappropriate weight to the documentary evidence provided by Mr and Mrs Maciel. They submit that they now face the situation whereby they are unable to access a portion of their land to use and enjoy and to make proper repairs, maintenance or to address other issues.

Mr and Mrs Maciel's reply 26 November 2014

Mr and Mrs Maciel filed their reply to the notice of appeal on 26 November 2014. In summary, they support the original orders made by the CCD and oppose the application for leave to appeal and the appeal itself. They too have filed detailed submissions which are annexed to their reply. They ask that the appeal be dismissed on the basis it is frivolous or vexatious or otherwise misconceived or lacking in substance (see s55(2) of the Act). Alternatively they ask the Appeal Panel to uphold the decision of the CCD.
Mr and Mrs Maciel dispute that the fence is encroaching on Mr and Mrs Fassas' land. They say that the fence was erected at the written request of Mr and Mrs Fassas and that previously there had never been a fence in that section between the two properties. They submit that access to the section of the land which Mr and Mrs Fassas refer to as being encroached is physically impossible for any person to be able to access other than with a long stick, broom or hose. In any event they dispute that their garage encroaches on the land as claimed and in that respect of the rely on a letter of Marrickville Council dated 26 April 2013 which states precisely that.
Mr and Mrs Maciel concede that their documents were not provided to Mr and Mrs Fassas prior to the hearing. In paragraph 4 of their submissions they say that a written chronology and bundle of documents were presented to Mr Tsimboulas in the course of the conciliation and that he had an opportunity to review the documents. They say that Mr Tsimboulas chose to review only a limited number of the documents provided. They reject the proposition that the CCD had been provided with the documents beforehand and state that the documents were only provided following the failed conciliation. They submit that the member specifically asked Mr Tsimboulas whether he had had a chance to review the documents that were being presented and that he replied in the affirmative.
Their primary position is that is not open to Mr and Mrs Fassas to now object to their documents in circumstances where Mr Tsimboulas had been asked by the member whether he had had an opportunity to review them, and he answered in the affirmative.

Provision of the sound recording of the hearing on 10 December 2014

On 10 December 2014 Mr and Mrs Maciel provided a copy of the sound recording of the hearing to the Appeal Panel. Also included was a partial transcript, which includes an exchange between the CCD member and Mr Tsimboulas. Mr Maciel asks the Member if he can submit a chronology of events. The member asks Mr Tsimboulas if he has seen the document. Mr Tsimboulas replies "yeah, seen all the documentation that is provided, happy for him [ie Mr Maciel] to provide any documentation".

Further submissions

Extensive further submissions were provided by both parties. Relevantly Mr Tsimboulas says that for Mr and Mrs Maciel to introduce a substantial amount of evidence at the hearing without Mr and Mrs Fassas being given an adequate opportunity to consider their position is contrary to reasonable process and prevented the CCD from being given the opportunity of hearing from both parties equitably. Mr Tsimboulas submits that had he been given access to Mr and Maciel's document he would have sought an adjournment of the proceedings to enable Mr and Mrs Fassas to "bring forward" a number of witness statements that would demonstrate inaccuracies in Mr and Mrs Maciel's chronology and documents.
He submits that "the confusion" about whether he had responded correctly or accurately to questions put to him about whether he had sighted all documentation relied on by Mr and Mrs Maciel was unfortunate, and is explicable in the context of the way in which the proceedings progressed. He submits that the very nature of tribunal proceedings should recognise that errors or omissions take place during the course of proceedings which involve citizens with little or no experience of tribunal or evidential processes. He submits that "this situation" should not be held against Mr and Mrs Fassas in achieving a proper consideration of their application.

The appeal

The Civil and Administrative Tribunal Act 2013 (NSW) (the Act) sets out the basis upon which appeals from decisions of the CCD can be made. Under s80 of the Act an appeal may be made as of right on any question of law (s80(2)(b)) or with leave of the Appeal Panel on any other grounds (s80(2)(b)).
We have set out above each of the five grounds of appeal stated by Mr and Mrs Fassas. Each involves an alleged failure to follow or to comply with a positive requirement on the CCD appearing in the Act. If established, such failure would amount to an error of law, in respect of which Mr and Mrs Fassas would be entitled to appeal as of right. The five grounds of appeal may be summarised as follows: 1. the decision of the CCD was contrary to s.36(1) of the Act (Ground 1); 2. the hearing was not conducted in the accordance with the rules of natural justice as required by s.38(2) of the Act (Ground 2); 3. the hearing was not conducted equitably as required by s.38(4) of the Act (Ground 3) 4. the hearing did not meet the requirements of s.38(5)(a) of the Act, (Ground 4) 5. the hearing did not comply with s. 38(3)(c) of the Act as their representative Mr Tsimboulas was not given reasonably opportunity to be heard or make submissions (ground 5).
We note that the reference to s.38(3)(c) in ground 5 is incorrect, and probably a typographical error. There is no s.38(3)(c) of the Act, we assume that this is a reference to s.38(5)(c) of the Act.
Grounds 1, 2 and 3 may be considered together. In our view these grounds of appeal are misconceived. Ground 1 relies on s. 36(1) of the Act. That section provides that the "guiding principle" for the Act and the procedural rules, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Ground 2 relies on s.38(2) of the Act . That section provides that the Tribunal, which includes the CCD, is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. Ground 3 relies on s.38(4) of the Act. That section provides that the Tribunal, which includes the CCD, is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
We do not accept the CCD, in the circumstances explained above, conducted itself as in any way inconsistent with these sections of the Act. We do not consider that the CCD failed to act in accordance with guiding principle set out in s.36, nor do we consider Mr and Mrs Fassas have raised any matter which suggests that the CCD infringed its obligations pursuant to s.38. On the contrary the submissions that the CCD acted entirely consistently with those sections. Accordingly we do not consider that these grounds raise an error warranting a grant of leave to appeal.
Grounds 4 and 5 require separate consideration. Ground 4 relies on s.38(5)(a) of the Act. That section provides that the Tribunal (and therefore the CCD) is to take such measures as are reasonably practicable to ensure that the parties to the proceedings before it understand the nature of the proceedings. Ground 5 relies on s.38(5)(c) of the Act. That section provides that the Tribunal (and therefore the CCD) is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
It is convenient to consider ground 5 first. The sound recording of the proceedings with which we have been provided indicates that the hearing lasted some 30 minutes. Mr Tsimboulas appeared for Mr and Mrs Fassas at the hearing, had the opportunity to present evidence and to make submissions on behalf of Mr and Mrs Fassas, and did so. The CCD favoured the submissions of Mr and Mrs Maciel based on the evidence before it.
Ground 4 however is the kernel of the Mr and Mrs Fassas' argument. This ground is that the hearing did not meet the requirements of s.38(5)(a) of the Act, in that Mr Tsimboulas was not properly advised of the nature of the proceedings. That section provides that the Tribunal is to ensure that the parties to the proceedings before it understand the nature of the proceedings. This is amplified in their submissions the effect of which is to submit that the CCD failed to explain to Mr Tsimboulas avenues available to him, such as seeking an adjournment, and that they were denied natural justice by not being provided with Mr and Mrs Maciel's documents in a manner which provided him with a reasonable opportunity to assess them. However it is common ground that Mr Tsimboulas was asked directly by the CCD member whether he had seen the documents, that he answered affirmatively, and that he stated that he was "happy" for Mr and Mrs Maciel to provide "any documentation". Although Mr Tsimboulas now concedes that he was unfamiliar with the procedures of the CCD, we do not accept that in the circumstances it is open to Mr and Mrs Fassas to now submit that there has been an error made by the CCD amounting to an arguable appeal point and as now warranting a grant of leave.
In summary, the effect of the grounds of appeal, amplified in Mr and Mrs Fassas' submissions, is that the CCD failed to afford them procedural fairness or natural justice in the conduct of the hearing. However, we are not satisfied, on the facts before us, that any such failure to afford procedural fairness arose. The CCD member clearly enquired of Mr Tsimboulas whether he had seen documents to be relied on by Mr and Mrs Maciel, and Mr Tsimboulas responded affirmatively. He now appears to concede that he made an error, and did not understand that he might have been able to object to the document or to ask for an adjournment.
In our view none of the five grounds of appeal have been established. Accordingly we are not satisfied there has been an error of law or that the appeal can or should be allowed on this basis.

Grounds of appeal requiring leave

Schedule 4, clause 12 of the Act provides that an Appeal Panel may grant leave if satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal was not fair and equitable, or 2. the decision of the Tribunal was against the weight of evidence, 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).
The expression "substantial miscarriage of justice" was considered by an Appeal Panel of the Tribunal in Collins v Urban [2014] NSWCATAP 17, and summarized at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred."
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act: Pholi v Wearne [2014] NSWCATAP 78 at [31].
The principles to be applied by an Appeal Panel were set out in Collins v Urban [2014] NSWCATAP 17 where an Appeal Panel of the Tribunal conducted a review of the relevant cases. The Appeal Panel concluded that ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application; an injustice which is reasonably clear so that it would be unjust to allow the finding to stand; a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal had gone about its fact finding process in an unorthodox or unfair manner.
We have set out above Mr and Mrs Fassas' five grounds of appeal. We shall not repeat them.
The core matter that Mr and Mrs Fassas are advancing in relation to a miscarriage of justice is that Mr Tsimboulas not understand or appreciate the contents of the documents which he allowed to be admitted into evidence. We have carefully examined those documents. They include a detailed chronology of events, which in particular relates to the building of a garage at the rear of the Maciel's property, and a detailed account of dealings between the parties about both the garage and the fence. The dispute relating to the garage was not issue that was before the CCD. The Tribunal determined this matter on the basis of the available evidence about the boundaries of the respective boundaries. This evidence included surveys and correspondence from the Marrickville council. The Tribunal decided to dismiss the application on the basis of this evidence and not by reference to any material that was included in the chronology.
In other words, the receipt of those documents by the CCD did not make, nor could it have made, any difference to the outcome of Mr and Mrs Fassas' application. For that reason, we are not persuaded that Mr and Mrs Fassas have suffered a miscarriage of justice and should be granted leave to appeal on that basis.
Even if we considered that Mr and Mrs Fassas established that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act: Pholi v Wearne [2014] NSWCATAP 78 at [31]. In circumstances where Mr and Mrs Fassas were represented at the hearing, the decision was clearly available to the CCD on the evidence before it, and the value of the work to be undertaken was $220 for Mr and Mrs Fassas on the one hand and $220 for Mr and Mrs Maciel on the other, we would not, in the exercise of our discretion, have grant leave to appeal.
In any event, we do not consider that this ground of appeal presents any issue of principle or question of public importance, no matter of administration or policy which might have general application, or demonstrated an injustice, or an error in the CCD's fact finding process warranting a grant of leave to appeal in this matter as warranting the a grant of leave to appeal.

Conclusion

To the extent that the notice of appeal raises errors of law, we are not satisfied that any error has been established and that the appeal should be dismissed. The Appeal Panel is also of the view that Mr and Mrs Fassas have raised no issue of principle or question of public importance, no matter of administration or policy which might have general application, or demonstrated an injustice, or an error in the CCD's fact finding process warranting a grant of leave to appeal in this matter.
For these reasons we consider that the appeal should be dismissed.

Other

There is one final matter to note. The submissions of both parties made reference from time to time as to what occurred during the conciliation held immediately prior to the CCD hearing. The policy of the law is to encourage settlement of litigation, and the law protects and keeps confidential all communications made in an effort to reach a settlement. Therefore the law does not permit disclosure of those settlement discussions or the events that occurred during the course of those discussions. Therefore we have not paid any regard to or placed any weight on those submissions.

Decision

For these reasons, the Appeal Panel makes the following order: 1. The appeal is 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. Principal 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

Amendments 24 April 2015 - corrected hearing date in coversheet and typographical error in paragraph 35 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: 24 April 2015

At a glance

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Judgment (14 paragraphs)

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Legislation Cited (1)

Cases Cited (2)