Fletcher-Jones v Avant Garde Logistics Solutions Pty Ltd

The Nature of Appeals in the Tibunal

1. An appeal to the Appeal Panel does not automatically provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2). Leave is required to agitate any alleged error which is not an "error on a question of law": NCAT Act, s 80 (2)(b).

The appellant's grounds

1. The appellant, who is by leave, legally represented, set out six purported grounds in her notice of appeal, as follows: 1. The decision was against the weight of the evidence; 2. That the respondent gave evidence that was false or misleading, in particular by its representative giving evidence that it had not been paid twice whilst also asserting that he had not looked at the bank statements; 3. The member failed to ensure that the respondent produced the best evidence; 4. That the Tribunal should have adjourned briefly to allow the respondent's representative to have checked its bank statements; 5. That there is significant new evidence available showing that the appellant may have suffered an substantial miscarriage of justice; and 6. That the decision was not fair or equitable.

Leave to appeal

1. Where, as here, the appeal is from a decision made in the Consumer and Commercial Division (other than in respect of interlocutory decisions), there is a qualification to the possible grant of leave in that the Appeal Panel may only go on to consider a grant of leave if it is first satisfied that the elements of cl 12(1) of Sch 4 of the NCAT Act are made out, in that the appellant may have suffered a substantial miscarriage of justice on the basis, relevantly to the appellant's claim that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal 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).
2. We agree with the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 where it said, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: ... [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
3. In Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, the Court summarised the principles relevant to a grant of leave at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
4. We may decide to conduct a new hearing if we are satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17]. We were not so satisfied, for the reasons that follow.

The allegations of error

1. The appellant does not specifically identify an error on a question of law and needs leave to appeal. To an extent, there are allegations which could, if clarified, be considered to allege a breach of procedural fairness, but that is not how the grounds are drafted.
2. Rather, the appellant asserts that both payments were directed to the respondent, and indicates that she is investigating whether the overpayment was actually paid to the respondent, or not. She has been in correspondence with her bank since the decision was made in this regard, which we return to below. The new evidence referred to in ground 5 is a document on the letterhead of the National Australia Bank naming the appellant and a nominated account which, without further explanation has a table whereby two identical entries are inserted, relevantly in the following terms: Date Amount Account funds transferred to Name/Narrative 24/8/20 $596.75 [a BSB and account number] apex logistics
3. An inference may possibly be drawn that this indicates that two payments to the same account on the same day left the appellant's account, but this is not explicit. Nor is the named recipient the respondent in the proceedings.

Directions in the appeal

1. In preparation for the appeal, the appellant was directed to lodge and serve the material she relies upon, whether it was before the Tribunal or is fresh evidence, her submissions and the sound recording and transcript of the relevant parts of the hearing below.
2. By consent, a hearing of the application for leave to appeal and for the appellant to be allowed to rely on fresh evidence was dispensed with.
3. The appellant was initially directed to lodge her material by 5 May 2021. The appellant then sought, and was granted, an extension to do so until 3 June 2021.
4. The appellant failed to comply. On 18 June, the appellant's representative wrote to the Registry seeking a further extension of time for a further 14 days, from that date. The appellant confirmed that she was in receipt of the recording of the hearing below but no explanation was given as to why the directions had not been complied with, save for reference to the appellant seeking ongoing clarification from her bank in respect of the payments from her account.
5. The parties were directed to make submissions in respect of the appellant seeking a further extension, and in respect of the Appeal Panel dispensing with a hearing of the application to extend time. The respondent objected to an extension being granted and sought dismissal of the appeal. Neither party made submissions regarding the potential for us to dispense with a hearing as requested.
6. We are satisfied that the issues regarding the application for an extension of time can be adequately determined on the papers lodged in the absence of the parties. We will make an order dispensing with a hearing of that application.
7. We are not satisfied that there is any proper explanation for the appellant having failed to comply with the directions in the appeal. Awaiting further clarification from her bank would not have prevented her from lodging the material she relied on in the proceedings below, the sound recording and partial transcript, or submissions other than submissions that might arise out of any further correspondence from the bank. In particular, submissions could have been provided explaining why new evidence from the bank was not reasonably available for consideration at the hearing at first instance.
8. Whilst procedural directions are not to be used as instruments of oppression, and insistence on compliance should not deprive a party from a reasonable opportunity to present their case, there are other factors to be weighed. Firstly, compliance with the Tribunal's orders and directions is mandatory: NCAT Act, s 36(3). Secondly, directions are made with a view to allowing the Tribunal to achieve the ultimate goal of resolving disputes in a way which is not only just, but also quick and cheap: NCAT Act, s 36(1).
9. Over three months after the decision made in her own application, the appellant has still lodged nothing probative to establish that the Tribunal was in error or that she may be entitled to the remedy she seeks. Indeed, as at 2 July 2021, being the extended date sought by the appellant but not approved by the Appeal Panel, the appellant has not provided submissions to the Tribunal.
10. The appellant did, however, lodge an application for a summons to her bank seeking information regarding the payments from her account, on 30 June 2021. That proposed summons was not in a form that could be issued, as it was addressed to the Bank, and not its "Proper Officer". Irrespective of that technical defect, however, it is clear from the request to issue the summons that the appellant still does not have the evidence necessary to support her appeal. Of course, the summons process was available in the proceedings below, and the appellant has made no attempt to explain why the attempted issue of a summons has been left so late. Clearly, any evidence returned by the summons, if allowed, would not meet the terms of cl 12(c) of Sch 4 to the NCAT Act, because it was reasonably available at the time the proceedings under appeal were being dealt with. We will refuse the application for summons.
11. We are also mindful of the amount in issue, in comparison to the prejudice to the respondent in terms of cost and inconvenience in further amendments to the timetable and the ultimate resolution of the appeal. As Lord Griffiths noted in Ketteman V Hansel Properties Ltd (1987) 1 AC 189 at 220, there is a strain imposed on litigants when the issues in proceedings change, which includes the anxieties occasioned by facing new issues, the raising of false hopes and the legitimate expectation that a trial would determine the issues one way or the other.
12. We accept that there is no minimum monetary amount governing when leave to appeal should be granted by the Appeal Panel.
13. However, the quantum of any order is a relevant consideration, due to the requirement on us to implement the practice and procedure of the Tribunal so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: NCAT Act s 38(4).
14. The Court of Appeal held in Gibson v Drumm [2016] NSWCA 206, at [20]: Another consideration in determining whether to grant leave is the sum in issue in the proposed appeal: Dunn v Ross Lamb Motors (1978) 1 NSWLR 26. Although there is no minimum amount specified in the rules of court below which leave will not be granted, the Court has refused leave in matters because of the small amount involved, such as where it was considered the grant of leave was not warranted having regard to the appropriate allocation of court resources and the disproportionate costs to the parties: see Wilson v Tetley [2003] NSWCA 124; Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56; Jaycar Pty Ltd v Lombardo. Accordingly, whilst the mere fact that a small amount is in issue will not necessarily disentitle a person to a grant of leave, having regard to the case management principles enshrined in the Civil Procedure Act, it will nonetheless be a relevant factor and in an appropriate case may be decisive.
15. Given the amount in dispute, the appellant's ongoing failure to comply with directions in the appeal and the lack of any probative evidence that the appellant may be entitled to the outcome that she seeks, this is not a matter where we are satisfied that we should further extend time for the appellant to lodge her material.
16. In the absence of any evidence or submissions showing that the decision below was affected by error, leave to appeal should be refused and, to the extent then necessary, the appeal dismissed.
17. Or orders are. 1. The application for a summons to the National Australia Bank is refused; 2. A hearing of the appellant's application for an extension of time to lodge material in the appeal is dispensed with; 3. The appellant's application for an extension of time to lodge material in the appeal is refused; 4. Leave to appeal is refused; 5. Appeal 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

Amendments 22 September 2021 - [22] corrected - "and directions" added to second sentence. 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: 22 September 2021