FleetServ Pty Ltd v Maiden Co Pty Ltd

Grounds of appeal

1. As we have already indicated, a contention of procedural unfairness is at the centre of this appeal.
2. The nature of the appellant's complaint is best revealed from what is set out in the section of the Notice of Appeal concerning why it is said that the decision of 17 April 2023 was not fair or equitable. It is there stated: The transcript indicates the [Tribunal] made only one real attempt to call me, someone on the other line said "he is with the customer call back." As a business we have clear etiquette as to how the phone should be answered. There is no identity given by the phone answerer to indicate they have even called the correct number. [The Tribunal] advised he would try and call back. There is no further attempt by the [Tribunal] to contact the respondent [appellant]. I say I was here all day in my office with the door closed waiting for the call. I provide (sic) 2 numbers by emails prior to the hearing one being my direct number that is recorded and logged as it diverts to my mobile. No calls were received from the NCAT. It appears from the transcript the only number relied upon by [the Tribunal] was the one supplied by the applicant [respondent]. (page 4) The applicant [respondent] confirms on the day of the hearing, evidence has not been sent to the respondent by an admission he has the only 3 copies. (Page 5) [The Tribunal] indicates he will not accept the respondent [appellant] to appear virtually and therefore will not accept any evidence or discussion for the respondent [appellant] effectively giving a one-sided case. (Page 6) [The Tribunal] indicates the orders will be set aside. (Page 7) The transcript, the applicant's [respondent's] original incomplete submission and comments made by Member Titterton in the stay application are all indicative of the respondent [appellant] being deliberately excluded from ventilation of a fair and equal contest. [The Tribunal] could only arrive at a position of ruling against the respondent [appellant] as there was NO evidence from the respondent [appellant] to dispute what insufficient evidence put forward by the applicant [respondent] in the initial application. All I request is an opportunity to see evidence provided to [the Tribunal] and prepare a defence accordingly.
3. It was also said in the Notice of Appeal that the appellant did not give any evidence at the hearing on 17 April 2023 because Mr Creak had Covid-19 and notified the Tribunal accordingly.
4. From these aspects of the Notice of Appeal we discern that the appellant challenges the orders made on the grounds that there was procedural unfairness to the appellant in the making of the orders on 17 April 2023 in the absence of hearing from the appellant that it wished to have the opportunity to consider and respond to the respondent's evidentiary material and submissions The contention is that the procedural unfairness consisted of: 1. The Tribunal's failure to telephone the appellant on the correct telephone number, or at all. 2. The Tribunal's failure to make a second call to the appellant in order to try and speak to Mr Creak. 3. The Tribunal deliberately excluded the appellant from having the opportunity to put its case in a fair and equal contest test, including by setting aside the grant of leave to appear by telephone or AVL.

Nature of the appeal

1. The order for the payment of a sum of money was a final order in respect of which the appellant has a right of appeal, without leave, on a question of law: s 80 (2) (b) of the Civil and Administrative Tribunal Act (NCAT Act).
2. The questions we have already referred to concerning procedural fairness raised a question of law: Italiano v Carbone [2005] NSWCA 177.
3. Whilst part of the totality of the circumstances to be considered concerning procedural fairness in respect of the order for the payment of money, Order 3 was also a distinct subject of the appeal. It was an interlocutory decision in respect of which leave to appeal was required: s 80 (2) (a) of the NCAT Act.
4. It was an interlocutory decision on an aspect of practice and procedure in respect of which there are well-established principles upon the grant of leave to appeal, one of which is that if there be relevant it be an error that has resulted in substantial injustice: Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35].
5. Furthermore, as will be seen, an important matter that arises in respect of Order 3 (the interlocutory order) is that we should not entertain a moot point: for example, see Taphouse Investments Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCATAP 171.

Procedural fairness - the law

1. Under r 35 (2) (a) of the Civil and Administrative Tribunal Rules 2014 (NSW), the Consumer and Commercial Division of the Tribunal is, specifically, empowered to proceed to hear proceedings in the absence of a party who has "failed" to attend the hearing if the Tribunal is satisfied that notice of the hearing was duly served on the party.
2. It is also the case that the Tribunal is bound to accord procedural fairness to the parties - an obligation derived from the common law and reinforced by ss 38 (2) and (5) (c) of the NCAT Act: see CKG v Public Guardian [2014] NSWCATAP 32 at [14]; Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41 at [62].
3. Section s 38 (5) (c) of the NCAT Act, provides: The Tribunal is to take such measures as are reasonably practicable- …. (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
4. The application of s 38 (5) of the NCAT Act must be considered in the context in which "the concern of the law is to avoid practical injustice": per Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
5. In that regard, we see it is a relevant consideration that under s 36 (3) of the NCAT Act a party to proceedings in the Tribunal is under a duty to co-operate with the Tribunal to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 36 (1)).
6. Furthermore, as was said by the Court of Appeal in Collier v Attorney General for NSW [2021] NSWCA 16, at [19] (see also Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 206 at [93]): …..However, a party, including an unrepresented party, cannot terminate proceedings by simply failing to attend without excuse or justification. If an excuse or justification is proffered promptly, it may on occasion result in a hearing being reopened or resumed. However, a party who acts in this way without justification cannot complain of procedural unfairness if the judge decides that the hearing should proceed in his or her absence. Were it otherwise, the court process could be manipulated at the whim of a disaffected party, with consequential prejudice to other parties in the proceedings and, consequentially, those involved in other proceedings.
7. A denial of procedural fairness results in the grant of curial relief, only if that denial is shown by the applicant to have been material to the decision. Materiality of a denial of procedural fairness is shown by the existence of a realistic possibility that the decision could have been different had procedural fairness been observed. The onus which the applicant bears to establish materiality is no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded. Establishing that threshold of materiality is not onerous: Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 398 per Gageler J at [45]-[47].
8. In cases where conduct on the part of a Tribunal in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard, it is part of establishing that the person has in fact been denied a reasonably opportunity to be heard that it be demonstrated that the person would have taken some step if that conduct had not occurred: per Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [59].
9. Under Regulation 9 of the Civil and Administrative Tribunal Regulations 2022 (NSW), a party may apply, within 7 days of a decision, to set aside the decision in circumstances where the decision has been made in the absence of the Party. Regulation 9, relevantly, provides: 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 - ….. (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.
10. Along with an appeal from the decision of 17 April 2023 on the grounds of procedural unfairness, an application under Regulation 9 is one of, at least, two ways in which a breach of the procedural fairness requirement to be heard may be remedied; see Kline at [7]. A refusal by the Tribunal to set aside under Regulation 9 is not determinative of the procedural fairness question raised on appeal.
11. The discretionary power to set aside in Regulation 9 provides a speedy option to seek a remedy, with a determination usually made on the papers. The tests to be applied on an appeal on the ground of procedural unfairness and on the application to set aside under Regulation 9 are not the same, although the factual context may overlap.
12. This is not an appeal from the decision of a differently constituted Tribunal to dismiss the appellant's application under Regulation 9, including to refuse to extend the time for making the application-the application was 2 days out of time.
13. Nevertheless, as expanded upon below, we consider that the deficiencies in the appellant's application under Regulation 9 concerning the reasons for non-appearance at the hearing on 17 April 2023 have some bearing upon the credibility of the appellant's explanation for its absence from the hearing.

The respondent's proceedings in the Tribunal and the hearing on 17 April 2023

1. The vehicle was purchased in February 2022. The repair work the subject of the claim was carried out in June 2022.
2. The respondent's application in the Tribunal, dated 20 March 2023, gave the following "reasons" for the claim: As the owner, we had continuously reported to the dealership that there was strong vibration from the engine of the car since February 2022. The dealer inspected the car and disregarded the vibration as a non-issue and did not repair, although other mechanics had reported the issue as being the clutch fly-wheel. Here is a timeline of how the events occurred: 14 Feb 2022-Vehicle Purchased (documented evidence No.1 will be provided) 22 Feb 2022-Significant damage had occurred and taken to mechanic for inspection. Amongst faults found, the mechanic reported "severe engine vibration (requires further investigation) suspect dual mass flywheel" (documented evidence No. 2 will be provided) 04 Mar 2022-Dealership inspected the vibration and referred to it as a "slight vibration evident due to right side engine mount hard" (documented evidence No.3 will be provided) 05 Mar 2022-Maiden Co had lost confidence with dealership mechanic upon the confirmation that the rear brake pads had been installed backwards (documented evidence No.2 & No. 3 will be provided) 05 to 26 April 2022-Strong vibration continued 26 Apr 2022-Inspection was carried out by the manufacturer (Mercedes Benz) confirming the clutch flywheel was causing the strong vibration and a quote was provided (documented evidence No.4 will be provided) 27 Apr 2022-Permission was given to Mercedes Benz to conduct repairs as confidence was lost with dealership mechanic 06 June 2022-Repairs completed on the vehicle by the manufacturer and the removal of the engine was required to carry out the repairs (documented evidence No.5 will be provided) We would like to contest the response of the dealership, that the warranty period had elapsed as the knowledge of the issue was documented and brought to their attention, however it was dismissed without being addressed in a timely manner
3. The "documented evidence" referred to in the application was not provided to the appellant before the hearing on 17 April 2023, but in accordance with the notice of hearing next referred to they were brought to the hearing by Mr Burns of the respondent, who appeared in person on that occasion.
4. The application itself and a "Notice of conciliation and hearing (group list) - in person" [our emphasis] were received by the appellant well before the hearing on Monday, 17 April 2023. This Notice identified as important information that the parties should bring the relevant documents to the hearing, that if a party did not attend the matter may be finalised in their absence, and that if a party could not attend the hearing in person a request could be made to attend virtually.
5. As appears from the Tribunal's announcement on 21 October 2022, the measures put in place in response to the Covid-19 pandemic were changing and the Tribunal was gradually resuming in-person hearings. It was said in the announcement that it was important to check the notice of hearing to see whether the hearing would take place in person or remotely.
6. As the Tribunal explained to Mr Burns, the respondent's representative at the hearing on 17 April 2023, at this first group list hearing in the Consumer and Commercial Division the parties are, firstly, given the opportunity to see if the proceedings can be resolved by conciliation. If this did not occur and more time was required before a final hearing so that documentary material could be exchanged between the parties and considered by them then the proceedings are adjourned to a date to be fixed for final hearing.
7. From the material presented by the appellant on appeal it seems likely, at least, that if there had been an appearance on behalf of the respondent on 17 April 2023, whether in-person or by telephone, the proceedings would have been adjourned to a date to be fixed for final hearing in order to allow the parties to consider and present their evidentiary material and written submissions in advance of the final hearing.
8. On 5 April 2023, Mr Creak, a director of the appellant, sent an email to the Tribunal, copied to "Bart Khan", which referred to the respondent's application, and stated: …, due to a chronic lack of staff I humbly request that I attend the hearing virtually or by phone please. Contact details are listed below.
9. The contact details, given in printed form under the name of the business, included two landline telephone numbers, one of which was said to be a direct number.
10. Mr Bart Khan is the Sales Manager of the appellant.
11. As Mr Creak told us at the hearing of the appeal, he has considerable experience of appearing in Tribunal proceedings on behalf of the appellant.
12. On Friday, 14 April 2023, at 3:12 pm, Mr Creak sent another email to the Tribunal, copied to the respondent and "Bart Khan", concerning the hearing on 17 April 2023, which in the subject matter of the email was described as a "Consiliation (sic) Hearing". This email included that: Further to the attached email I can confirm I am unable to attend this hearing in person as several staff including myself are showing symptoms of COVID. I have informed the applicants of my unavailability and I am available to attend by phone at 10.15 a.m. on; [two landline numbers were then set out, one of which was "direct"]
13. These two landline numbers were set out in the text of the email, but were followed by the printed landline numbers, as with the 5 April 2023 email. One of these numbers in the text of the email was the same as that given in the email of 5 April 2023. The other number, referred to as the direct number, presumably by mistake, was missing one number from the direct number given in the 5 April 2023 email.
14. On, Saturday, 15 April 2023, at 12:47pm, Mr Creak sent another email to the Tribunal, copied to the respondent and Bart Khan, on the subject of "Consiliation (sic) Hearing 17/04/23", which stated: Hi NCAT I have just tested positive for Covid, I feel a doctor's certificate is redundant in this case. I am available by phone.
15. Like the previous emails, the email of 15 April 2023 went on to provide the same two landline telephone numbers in printed form under the name of the business.
16. Unlike the email of 5 April 2023, the emails of 14 and 15 April 2023 asserted a position that the appellant would not be appearing in person because Mr Creak was unable to do so (due to Covid), but said he was available to appear by telephone.
17. Neither of the emails of 14 and 15 April 2023 explained why some other person, such as Mr Bart Khan, could not appear for the appellant at the hearing on 17 April 2023 in order to participate in the conciliation stage, including to examine the appellant's documents which it was expected to bring to the hearing, and, if necessary, to convey the appellant's position that it wished to have the opportunity to present written evidence and submissions in response to the appellant's case.
18. There was no suggestion that Mr Bart Khan had Covid at any relevant time.
19. The emails of 14 and 15 April 2023 should have reiterated the request for leave to appear by telephone on the basis of the new information supplied.
20. The email sent on Saturday, 15 April 2023 did not attach any photographic evidence of the Covid test referred to in the email or proof of registration with NSW Health of a positive test. These were, relatively, simple steps to have taken in the circumstances.
21. By the morning of 17 April 2023, before the hearing at 10:15am, there had been no response from the Tribunal to the emails from Mr Creak of 5, 14 and 15 April 2023. Before the hearing that day, there was no enquiry on behalf of the appellant as to whether it had leave to appear by telephone and, if so, how that would be achieved. So far as the parties were concerned, the hearing was to proceed in person.
22. In the morning before the hearing, the appellant did not supply the Tribunal with any updated Covid information concerning Mr Creak, or any other employees of the appellant.
23. In the morning of 17 April 2023, before the hearing at 10:15am, the Tribunal decided it would grant leave to each party to appear by telephone/AVL. It appears that it did so at this time because from the transcript it can be seen that at the commencement of the hearing the Tribunal referred to "directions" it had "made" on this subject, apparently, following the Tribunal's receipt of information "that morning" from the Registry about the information from the appellant that its representative had tested positive for Covid.
24. However, the earliest time that the direction or order granting such leave can be said to have been made was at the hearing itself when the Tribunal referred to the matter near the commencement of the hearing in the presence of Mr Burns.
25. No written notice of this leave decision was given to parties until an email from the Tribunal Registry was sent to them at 10:34am.
26. As appears from what the Tribunal said about the grant of that leave near the commencement of the hearing and from the terms of the email sent at 10:34am, the leave granted was to be exercised by the appellant dialling into a number to be supplied by the Tribunal.
27. On appeal, the relevant procedural facts that occurred at the hearing on 17 April 2023 were established by a transcript prepared by Transcript Divas Australia, at the request of the appellant, from a sound recording of the hearing obtained by the appellant and from a sound recording obtained by the respondent. We have listened to relevant parts of this latter sound recording.
28. There was one aspect of the transcript which was controversial. This concerned whether Mr Bart Khan took a call from the Tribunal some 4 minutes, or so, after the commencement of the hearing.
29. The transcript from Transcript Divas Australia contained no reference to any statement that identified the person who took a call from the Tribunal. On appeal, Mr Bart Khan provided an affidavit in which he said he never took a call from the Tribunal on 17 April 2023.
30. In his main affidavit in support of his appeal, sworn on 23 June 2023, Mr Creak stated: 10….. We have a detailed call register, I can confirm no calls were received by myself or any staff on that day from Member Gardner…. 11. Transcript does not categorically confirm Member Gardner called the numbers provided other than one call made to a number provided by Maiden [the respondent]. There appears to be no real attempt to contact me….
31. The call register referred to was not presented in evidence. When asked about the register in his oral evidence on appeal, Mr Creak modified his affidavit evidence somewhat by stating that it was only his direct number that was the subject of a call register and this had not logged any call from the Tribunal. This was consistent with what was set out in the Notice of Appeal (see above).
32. Both the transcript and sound recording make it clear that no telephone number was supplied by Mr Burns to the Tribunal.
33. Subsequently, another sound recording of the hearing was obtained by Mr Burns and from this recording he prepared a transcript of a relevant passage concerning this call in which the person who took the call begins by stating: Pennant Hills Auto Traders, Bart speaking.
34. We have listened to the sound recording concerning this aspect and agree with the transcript provided by Mr Burns. The sound recording is clear about this.
35. Mr Creak's evidence on appeal concerning this subject (as above and also further below), the accuracy of which he maintained even after Mr Burns evidence concerning what the sound recording revealed about the answer to the Tribunal's call, was not accurate and credible and along with other aspects of his evidence referred to below has led us to conclude that we are not prepared to accept his evidence on important controversial aspects because it was not corroborated by objective evidence. The sound recording evidence also leads us to reject Mr Bart Khan's affidavit evidence that he did not receive a call from the Tribunal.
36. The relevant procedural facts that occurred at the hearing were as follows: 1. The hearing on 17 April 2023 commenced at, or very close to, 10:15am, with Mr Burns, director of the respondent, physically present at the hearing. 2. At the commencement of the hearing, the Tribunal mentioned to Mr Burns that this was a group list hearing but the respondent's case was the only matter in the list. Mr Burns mentioned there could be an issue and noted that the appellant had notified by email that they could not attend. The Tribunal referred to "directions" it had "made" indicating that the appellant could appear by telephone or AVL. 3. Near the commencement of the hearing, the Tribunal mentioned that the appellant had to dial in, it would check and see if the Registry had made the directions and that if the respondent had not dialled in it might call the appellant, as to which Mr Burns said he had no problem. 4. After the Tribunal explained, briefly, to Mr Burns what occurs at this first, group list hearing, Mr Burns said he had his documentation organised for the hearing, asked if it was worth sharing it with the appellant and suggested he could just send it because he didn't want things dragging out. The Tribunal expressed its agreement to that step. As a consequence, Mr Burns sent an email to Mr Creak at 10:18am on 17 April 2023, copied to the CCD Registry and to Mr Bart Khan. The email stated: "Please find documentation for conciliation attached." 5. The email sent at 10:18 a.m., apparently, attached the various documents which the appellant relied upon during the subsequent hearing of the merits on 17 April 2023, including copies of the documents referred to in the application, along with a Case Summary and a written statement by Mr Burns, dated 14 April 2023. 6. Mr Creak did not deny receiving this email and its attachments. It did not prompt any response from Mr Creak. This is inconsistent with the statement in the Notice of Appeal, which document is signed by Mr Creak, that he had "…not seen any evidence that was only provided to the member on the day of hearing." 7. A little over 3 minutes into the hearing, the Tribunal then said it would see if it could get Mr Creak on the line. From the sound recording, it is apparent that the Tribunal made three attempts to contact Mr Creak on a number (or numbers) but with each attempt the response was a recorded message that the number dialled was not in service. The number dialled is not referred to in the transcript but if the Tribunal was working off the direct number given in the text of the 14 April 2023 email this could explain the problem. 8. The Tribunal then asked Mr Burns if he had a number for Mr Creak, who responded that he had the numbers off the "email signature" and that he also had, potentially, a number for a colleague of theirs, but no number was given by Mr Burns to the Tribunal. In the meantime, the Tribunal said it would try one more time. It dialled again on a number that is not revealed in transcript, but which this time rang through and was answered by "Bart" in the terms we have set out above. Strangely, the transcript omits that answer. 9. The conversation then proceeded as follows (and was heard by Mr Burns on loudspeaker in the hearing room): Tribunal: Good morning, my name's Tribunal Member Gardner, I was hoping to speak to Mr Ian Creek (sic), if he's available? Bart: He's actually with a customer at the moment, sorry, can he return your call? Tribunal: Look, can I try and call him back in a couple of minutes, is that alright? Bart: I assume about 15 minutes. Tribunal: Okay, all right, thank you. Bart: No trouble. [As appears in the transcript, except that we have changed "Speaker" to "Bart" and used "Tribunal" instead of the Member's name] 1. Leaving aside, for the moment, the potential significance of being told that Mr Creak was with a customer, it was unsatisfactory for the Tribunal to be told that Mr Creak would not be available for about 15 minutes, even more so, in circumstances where there had been no prior communication from the appellant to the Tribunal about such a delay. 2. The reference in the conversation with "Bart" about Mr Creak being "with a customer" provoked an exchange between the Tribunal and Mr Burns about the apparent inconsistency between such information and the statement from Mr Creak in his email that he had tested positive to COVID and could not attend the Tribunal. Subsequently, Mr Burns informed the Tribunal that he had previously spoken to the person who answered the call (he had heard the answer on loudspeaker), that he was a colleague of Mr Creak and that they worked next to each other. 3. The Tribunal asked Mr Burns to provide him with his documents. 4. After a short examination of the documentary material and a further exchange about the Tribunal's concern with the information it had been given that Mr Creak was with a customer, the Tribunal said that it was going to refuse leave to appear virtually and that it would proceed to hear and determine the case (see at about 7:45 to 8:10 minutes into the hearing). The Tribunal informed Mr Burns that because it had refused the leave to appear by telephone or AVL there was a chance that the appellant might apply to have the orders set aside, which it had to do within 7 days. Plainly, the Tribunal had in mind Regulation 9 referred to below. 5. After a period of time considering the documentary material and some questioning of Mr Burns, including some short, sworn evidence, the Tribunal read out the orders it made (at about 35:35, hence, at about 10:50 am). The Tribunal then proceeded to read out oral reasons for decision and the hearing concluded just after 11.00am.
37. The email sent to the parties by the Division Registry at 10.34am, on 17 April 2023, concerning leave to appear by telephone or AVL, relevantly, stated: Each party has leave to appear via phone/AVL. Reasons: 1. On 14-Apr-2023, the respondent's representative wrote to the Tribunal seeking leave to appear via phone/AVL, on the basis that he (along with other staff members) are experiencing COVID symptoms. 2. The matter is listed for conciliation and hearing on 16-Apr-2023 at 10:15. 3. While no medical evidence has been provided, the Tribunal considers that it may not be possible for the respondent to secure appropriate evidence (noting that many people who have COVID do not test positive on a RAT, only via PCR) prior to the hearing. 4. In the interests of public health, given the short time to determine the request and on the basis that appearance by phone/AVL does not appear to cause any prejudice to the applicant, each party has leave to appear via phone/AVL. 5. The Tribunal considers that this approach is consistent with section 36 of the Civil and Administrative Tribunal Act 2013 (NSW) and, relative to the respondent not attending, allows the parties a greater opportunity to participate in both the conciliation and any hearing. You can access virtual hearing by clicking http://avl.justice.nsw.gov.au and then entering the meeting id Meeting ID 10001309). There you may seek leave from the Tribunal Member to attend the hearing virtually or by telephone. If you wish to attend the hearing by telephone, please call 02 9765 5580 and enter your meeting id. …..
38. There was no communication to the appellant that such leave was set aside until the appellant was sent the orders in written reasons of the Tribunal.
39. The reference in paragraph 2 of this email to the date of 16 April 2023 (a Sunday) was an obvious mistake for 17 April 2023. However, in his oral evidence on appeal Mr Creak said he was confused by this date of 16 April 2023 and gave it as one of the reasons he did not call into the Tribunal. We do not accept this as credible evidence.
40. At the hearing of the appeal, Mr Creak gave sworn evidence, including as to the truth and correctness of various affidavits presented in support of his appeal. He was cross-examined.
41. His evidence included that he was in his office (on his own) on the morning of 17 April 2023. He said he had come in to the office that morning in order to take the call that he expected from the Tribunal and he was waiting to receive a call from the Tribunal, which never came. He said he sat and waited for the call for about an hour. He denied that he was with any customer that morning, he was feeling very unwell and he had tested positive to COVID. He said he went home about midday.
42. When asked by the Appeal Panel why he had not called the Tribunal, he gave evidence to the effect that he did receive the above email, sent at 10.34 am, he should have called the Tribunal, he was confused by the 16 April 2023 date, he, probably, did not have all his faculties, he was expecting the Tribunal to call him, he had past experience of difficulties in obtaining calls from the Tribunal and he did not think that the hearing would be proceeding in his absence.
43. Unsatisfactorily, he gave evidence that he still did not know who had answered the call from the Tribunal. This was so, despite Mr Burns evidence with his transcript of the call answered by Bart and the availability of the sound recording confirming this. He said his hearing was not good and this explained his difficulty with what emerged from the sound recording but we did not detect any hearing difficulty during his oral evidence.
44. Given our finding that it was Mr Bart Khan who answered the call from the Tribunal, there was no explanation from Mr Creak as to why Mr Khan, who had been copied on each of the three emails about attending the hearing, was not alerted to put the expected call from the Tribunal immediately through to Mr Creak, why Mr Khan would, incorrectly, say that Mr Creak was with a customer and would not be available for some 15 minutes, why Mr Khan would not have informed him straight away that a call had come from the Tribunal and why he did not call into the Tribunal in response.
45. In view of these matters, we consider that there has been no credible explanation on behalf of the appellant as to why Mr Creak, or some other representative of the appellant for the purpose of the hearing, was not available to take the Tribunal's call made shortly after the commencement of the hearing so as to participate in the hearing, or as to why no representative of the appellant called in to the Tribunal, shortly, after the Tribunal's call answered by Mr Khan, or, shortly, after the email was sent at 10:34 am.
46. Nor do we consider that there has been any credible explanation provided as to why no representative of the appellant attended the hearing on 17 April 2023 in person. In view of the problems with Mr Creak's evidence that we have already discussed, we are not prepared to accept his uncorroborated evidence that he had tested positive to Covid-19 on Saturday, 15 April 2023 and was suffering from Covid-19 symptoms on 17 April 2023. Furthermore, as we have already mentioned, no explanation has been provided as to why some other person could not have represented the appellant in person on that occasion.
47. Our conclusion concerning Mr Creak's evidence about a Covid-19 receives further support from the absence of: 1. Any explanation from Mr Bart Khan about his statement that Mr Creak was with a customer consistent with Mr Creak suffering from Covid-19. 2. Any corroborative proof of his medical condition supplied to the Tribunal before the hearing on 17 April 2023 and, more significantly, in support of his application made on 26 April 2023 to set aside the decision pursuant to Regulation 9 (see further below), particularly, in view of the Tribunal's finding in its written reasons that the reference by his colleague, who answered the call from the Tribunal, to Mr Creak being "with a customer" was inconsistent with Mr Creak's evidence that he had Covid and could not attend the hearing.
48. It is pertinent to note that it is no part of the appellant's case on appeal that Mr Creak or Mr Bart Khan was in any way misled by the Tribunal's indication that it might make a second call in some 15 minutes time in order to speak with Mr Creak. On the contrary, their position was to deny any knowledge of any call to the appellant by the Tribunal.

The Tribunal's decision of 17 April 2023

1. In written reasons issued on 17 April 2023, the Tribunal: 1. Explained that, initially, it had granted leave to appear by telephone or AVL on the basis that the respondent's representative had COVID. It referred to the call with one of Mr Creak's colleagues who had indicated he was "with a customer". It found this evidence was inconsistent with Mr Creak's evidence that he had Covid and could not attend the hearing and the Tribunal was no longer confident that Mr Creak's evidence in this matter was credible. Accordingly, it decided to set aside the leave to appear by telephone or AVL. 2. Explained that it had proceeded to hear and determine the application given that the appellant was, plainly, on notice of the hearing and it was satisfied that notice of the hearing was duly served on the appellant. 3. Found that it accepted the respondent's undisputed evidence, it was satisfied that the relevant defect was present at the time of sale, there was a breach of s 54 of the Australian Consumer Law (NSW) and it was satisfied that the respondent was entitled to the compensation which it sought.

Appellant's Regulation 9 application to set aside the 17 April 2023 decision

1. In the differently constituted Tribunal's written reasons dated 18 May 2023, refusing the set-aside application, the Tribunal set out relevant aspects of the appellant's application and supporting materials, including the appellant's response to the respondent's opposition to the application.
2. As we have already said, despite the Tribunal's adverse conclusion about the evidence that Mr Creak had Covid-19, at a time when contemporary, corroborative material ought to have been reasonably available, Mr Creak presented no such material in his set-aside application to support his email statements to the Tribunal before the hearing on 17 April 2023 or concerning the statement on the call from the Tribunal that he was "with a customer". Plainly, this was an important matter to address on the set-aside application.
3. The significance of the absence of such evidence from the appellant was compounded by the absence of any response from the appellant to specific statements from the respondent, in opposition to the application, criticising this weakness in the appellant's application and stating that it was "Bart" who had answered the call from the Tribunal.
4. In rejecting the set-aside application the Tribunal, amongst other things, emphasised that the appellant had not produced any evidence to prove that he had Covid-19 at the time of the hearing and had not disputed Mr Burns account of the communication the Tribunal had with "Bart", who had told the Tribunal that Mr Creak was with a customer.
5. The Tribunal accepted that the criteria in Regulation 9 that the appellant's absence resulted in its case not being adequately put to the Tribunal had established.

The appellant's contentions concerning its defence to the respondent's claim

1. On appeal, the appellant addressed the merits of the opportunity to defend the respondent's claim that it contended it had lost. We can refer to this, briefly, because we accept that if the appellant had established it had been denied procedural fairness it would have satisfied the low threshold requirement to show a realistic possibility of a more favourable outcome at a new hearing.
2. In particular, Mr Creak's affidavit evidence referred to the following matters: 1. the considerable time that had elapsed before the respondent's application was commenced; 2. there had been a pre-purchase inspection and road test that had occurred before purchase of the vehicle, which had not revealed any problems; 3. the defects with the vehicle were maintenance and repair matters that could reasonably be expected with a vehicle of that age; and 4. a concern that the respondent had incurred costs to improve the vehicle beyond what was required to place it in an acceptable state of repair.

Consideration-procedural fairness ground in respect of the payment order

1. We have already referred to the relevant legal principles concerning the challenge to the payment order on the ground of procedural unfairness.
2. We have set out above our findings concerning the relevant events and about the lack of a credible explanation for the absence of an appearance in person by any representative of the appellant hearing on 17 April 2023 and the absence of an appearance by telephone by any representative of the appellant in response to the Tribunal's call or before the Tribunal made the payment order near the conclusion of the hearing on that day.
3. Dealing with the grounds of procedural fairness concerning the payment order outlined above: 1. Plainly, a correct telephone number for the appellant was called because it was answered by Mr Bart Khan. 2. There is no basis for a conclusion that the Tribunal deliberately excluded the appellant from putting its case in a fair and equal contest.
4. As to the absence of a second call being made to the appellant, whilst that is a step that the Tribunal could have appropriately taken (and have done so without waiting for the 15 minutes to pass that Mr Bart Khan referred to), we do not consider that in the totality of the circumstances procedural fairness obliged the Tribunal to take this step and that the appellant was denied procedural fairness as a consequence.
5. We reiterate that it is not part of the appellant's case that it was misled by the reference to the making of a second call.
6. As we have already said, it was unsatisfactory that no representative of the appellant ready to appear at the hearing was available when the Tribunal did call, without prior warning to the Tribunal and justification. It was a breach of the appellant's duty under s 36(3) of the NCAT Act to co-operate with the Tribunal not to be so available, or to have otherwise ensured it was able to participate by telephone at 10:15 am by calling into the Tribunal.
7. The Tribunal was then placed in a position it should never have been in which it could make a further attempt to chase up Mr Creak, who, according to his whim or convenience, could make himself available to appear by telephone.
8. Furthermore, whether judged by the facts available to the Tribunal at the time or by the facts that emerged on appeal: 1. The appellant had received notice of the in- person hearing on 17 April 2023 and, through, at least, Mr Creak had actual knowledge of such a hearing. 2. Without a credible explanation, no representative of the appellant appeared in-person at that hearing. 3. If the appellant really did want to appear at the hearing, it was open to it to call in to the Tribunal at any time during the hearing and seek to persuade the Tribunal that it should be heard.
9. In these circumstances, we also conclude that the Tribunal complied with the requirement in s 38(5) to take reasonably practicable measures to ensure that the appellant had a reasonable opportunity to be heard.
10. We also consider that there was no denial of procedural fairness to the appellant and no practical injustice was suffered by it because, in the circumstances we have just referred to, the appellant lost no reasonable opportunity to be heard at the hearing on 17 April 2023.
11. Accordingly, we do not uphold the procedural unfairness ground of appeal concerning the payment order.

Consideration-appeal against interlocutory order setting aside leave to appear by telephone/AVL

1. We have already rejected as baseless the contention that the Tribunal deliberately excluded the appellant from putting its case in a fair and equal contest. The order setting aside leave to appear by telephone or AVL and refusing such leave was provoked by the understandably surprising information conveyed by Mr Bart Khan that Mr Creak would be unavailable for some 15 minutes because he was with a customer.
2. As appears from what we have just said about the payment order, the setting aside of the leave to appear order was inconsequential to the question whether the requirements of procedural fairness were satisfied in respect of the making of that order.
3. In the circumstances, we consider that the challenge on appeal to Order 3 goes nowhere. It has no practical consequence and is, therefore, a moot point. We should not entertain a separate challenge to that order.
4. Another way to approach the challenge to this order, given the inconsequential nature of that challenge, is to conclude that any error that might be involved in the making of that order did not result in any substantial injustice.

Consideration-extension of time for lodging the appeal

1. The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.
2. We have considered the factors that, generally, should be considered concerning the application for an extension of time, as outlined in Jackson, including the issues as to the length of delay, explanation for delay and the appellant's prospects of success.
3. The length of delay is considerable, but is, largely, explained by the course that the appellant first pursued under Regulation 9 and the time taken to obtain a transcript of the hearing on 17 April 2023. The appeal was lodged 6 days after the appellant had obtained the transcript. The appellant acted reasonably promptly to obtain the transcript, first, by lodging a request for the sound recording on 22 May 2023, which was 4 days after the decision refusing its Regulation 9 set aside application.
4. As appears from our analysis above, the appellant raised some questions concerning the application of the principles of procedural fairness which were both questions of some importance concerning the conduct of proceedings in the Tribunal and had arguable prospects of success.
5. Accordingly, we consider that the appellant should be granted the required extension of time for lodging the appeal.

Orders

1. For the above reasons, we make the following orders: 1. The appellant is granted an extension of time until 20 June 2023 in which to lodge the appeal. 2. Leave to appeal from Order 3 of the orders made by the Tribunal on 17 April 2023 is refused. 3. The appeal 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. 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: 10 October 2023