Goodfellow v Gilchrist

Availability of appeal

1. The original application made by the Homeowner under the HB Act was for a decision in the general jurisdiction of the Tribunal under s 29(1) of the NCAT Act. The decision in the re-registered application HB 17/41814 was a "general decision" within the meaning of s 29(3). The decision to refuse to set aside that decision is a "decision made …in proceedings for a general decision" within s 32(1) of the NCAT Act and is thus an "internally appealable decision" within the meaning of s 32(4) of the NCAT Act.
2. In Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 the Appeal Panel concluded that a decision on a set aside application is an "ancillary" decision as defined in s 4 of the NCAT Act, as a "decision .. consequential on …a decision determining proceedings". An appeal against that decision may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds: NCAT Act, s 80(2)(b).
3. To the extent that the appeal does not raise a question of law, the appellant seeks leave of the Appeal Panel to appeal the findings of the Tribunal below. Where such leave is sought to appeal from a decision of the Consumer and Commercial Division of the Tribunal, the Appeal Panel's power to grant leave is set out in cl 12 of Sch 4 to the NCAT Act. That clause relevantly provides as follows: 12 Limitations on internal appeals against Division decisions An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

Grounds of Appeal

1. The Builder contends that he was denied procedural fairness because the determination of HB 17/41814 was made in his absence due to the non-receipt of Tribunal mail and his unavailability to attend the Tribunal hearing.
2. The Builder seeks leave to appeal on the basis that he has suffered a substantial miscarriage of justice on all three grounds set out in cl 12(1)(a) and (b). He contends that the decision was not fair and equitable because it was made on an ex parte basis in his absence; the decision was against the weight of evidence because the Tribunal still has to review the evidence and reports he can make available; and he had reports and evidence to lodge at a hearing.
3. The Homeowner replied to the grounds of appeal stating that the Builder has had three opportunities to present a case to the Tribunal and chose to attend one; he has attempted to mislead the Tribunal about his absences from each hearing; and he has provided all his evidence via submission and that has been reviewed at each hearing. The Homeowner opposed leave to appeal being granted, contending that the Builder has not suffered any miscarriage of justice nor has he provided any new evidence that was not reasonably available at the time of the hearing; and being absent from a hearing for which due notice was given is not a sound reason to claim leave to appeal.

Documents provided on the appeal

1. With his Notice of Appeal and application for a Stay the Builder provided copies of the documents he had provided on 12 December 2017 in support of his set aside application including photographs. Written submissions responding to the Homeowner's Reply to the appeal were received on 27 April 2018.
2. The Homeowner has provided documents going to his dispute as to the building work from October 2015, evidence he provided to the hearing on 25 January 2018 as to the Builder's location, and written submissions.
3. An element of the Builder's case is his claim that he has not received notice of some of the Tribunal hearings. Pursuant to s 38(2) of the NCAT Act the Appeal Panel obtained the Division files in order to confirm where notices of hearing and other correspondence were sent. That information was discussed with the parties during the hearing of the appeal, and can be summarised as follows: 1. Notice of the hearing in HB 17/35508 listed for 8 September 2017 was sent by post to the Builder at an address in Azalea Avenue, Coffs Harbour. That address was the address provided by the Homeowner on the application, and was the business address for the Builder on the copy of his Contractor Licence (printed 15 August 2017) and the ASIC Business Name details (dated 18 April 2017) provided by the Homeowner. That notice was not returned to the Tribunal as undeliverable. 2. Notice of the orders made on 8 September 2017 in HB 17/35508 was posted to that address. On 12 September 2017 the Builder lodged a set aside application, stating that due to changing his address he was not notified of the hearing. Correspondence on the Builder's letterhead dated 11 September 2017 shows his address as Collingwood Street, Coffs Harbour. 3. Notice of the listing for hearing of the re-registered application (HB 17/41814) on 27 October 2017 was sent on 3 October 2017 to the Builder at the Collingwood Street address. Notice of the orders made on 27 October 2017 was sent to the same address. 4. The second set aside application, unsigned and undated, and without payment of the fee, was received at the Newcastle registry on 17 November 2017. In that application the Builder states that he did not receive notice of the hearing held on 27 October 2017. On 17 November 2017 the registry notified the Builder that he had to complete the form and pay the fee by close of business 24 November 2017, or the application would be rejected and dismissed. A signed copy of a set aside application dated 24 November 2017, with confirmation of payment of the fee at ServiceNSW on 24 November 2017, was received on 4 December 2017. In that application the Builder requested an extension of time to make the application, stating he "was working away as a builder and opened mail on [his] return" and immediately rang the Newcastle registry and was told to apply for a set aside. 5. The parties were given an opportunity to make written submissions, including on whether leave should be granted to extend the time to make the set aside application. The submissions provided by the Homeowner included documents confirming the Builder's presence in Coffs Harbour on 29 October 2017, and 1, 8 and 12 November 2017.
4. No copy of the sound recording for the hearing on 25 January 2018 was provided to the Appeal Panel.

Extension of time

1. The appeal was received by the Tribunal on 21 March 2018. The decision dated 2 February 2018 was mailed to the Builder at the Collingwood Street address. The appeal should have been lodged by 7 March 2018 in accordance with rule 23(3)(b) Civil and Administrative Tribunal Rules 2014 (the Rules).
2. In the Notice of Appeal the Builder stated that he needed an extension of time to lodge the appeal because: I only first reviewed this order on 26-2-18 since then I have had to seek independent legal advice (an appointment was only available on 16-3-18) now I have been advised to lodge an appeal.
3. In his written submissions the Homeowner opposed an extension of time, stating that there was no reason given why the Builder failed to review the orders before 26 February 2018, the decision was clearly explained at the hearing on 28 January 2018, and the Builder should have appealed within the required timeframe.
4. The Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]-[22] set out the relevant principles in relation to an extension of time in which to bring an appeal (references omitted): 21. Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. 22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a)The length of the delay; (b)The reason for the delay; (c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d)The extent of any prejudice suffered by the respondent (to the appeal), and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable.
5. In relation to the length of the delay, the orders are dated 2 February 2018, and the Builder received his copy by mail. The Builder confirmed that the address to which the orders were sent in Collingwood Street, Coffs Harbour is his address. Applying rule 13(4)(a) of the Rules, the notice was received on 8 February 2018. While the Notice of Appeal states that the orders were received on 26 February 2018, that is not consistent with either the reference in the application for an extension of time to the Builder having "reviewed" the orders on that date, or with the Builder's statement at the appeal hearing that he was not sure if there was a delay in getting the orders. Applying rule 13(4)(a), and in the absence of firm evidence to the contrary, the appeal was lodged two weeks late. That is a relatively short delay.
6. The reasons given by the Builder for the delay were less than satisfactory. While the Builder stated in his Notice of Appeal he was seeking "independent legal advice", it emerged in submissions on the appeal that the advice he was seeking was from a person he knows who has experience in the workings of the Ombudsman and tribunals; and despite the reference to obtaining an appointment to seek legal advice, it transpired that it was the availability of that person that caused the delay. The Appeal Panel considers that given the Builder's previous set aside application, and given the reasons for the dismissal of the set aside application in HB 17/49004, he has not provided a satisfactory reason for the delay in lodging the appeal.
7. The Homeowner identified as prejudice arising from the late appeal that he had thought the process had been settled. He has a claim under the Home Building Warranty Insurance that is being postponed until this issue is finalised. The Builder has not paid the money as ordered on 27 October 2017.
8. The Appeal Panel considered that, as discussed below, the Builder has an arguable case on the appeal. Having regard to that consideration, and the short period of the delay, and while acknowledging that the reasons for the delay are not satisfactory, the Appeal Panel was of the view that it was appropriate to exercise the power conferred by s 41 of the NCAT Act and extend the time to lodge the appeal to 21 March 2018.

Whether there was an error of law

1. The decision under appeal is the decision in HB 17/49004 to dismiss the Builder's application under cl 9 of the Regulation to set aside the decision and orders made in HB 17/41814 on 27 October 2017.
2. Clause 9 of the Regulation provides: 9 Additional power to set aside or vary decision determining proceedings (1) In addition to any 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 in either of the following circumstances: … (b) if 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. (2) The Tribunal may make an order under this clause of its own motion or on the application of a party. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made. …
3. The Builder's Notice of Appeal contends there was a denial of procedural fairness, stating that "this matter was determined in my absence at the Tribunal due to my inability to attend proceedings, therefore the matter was determined solely on an ex parte basis".
4. However, the Builder was present at the hearing of the set aside application on 25 January 2018. His complaint about proceedings being heard in his absence relates to the hearing of HB 17/41814 on 27 October 2017.
5. Based on the Member's reasons, the focus of the hearing of the set aside application was whether or not leave should be granted to extend the time to lodge the application. Clause 9(3) of the Regulation required that the set aside application be lodged within 7 days after 27 October 2017, or 3 November 2017. When finally lodged in accordance with rule 23 of the Rules, it was 19 days late.
6. As noted above, there is no copy of the sound recording of the hearing on 25 January 2018. The Member's reasons indicate that at that hearing there was evidence given as to the Builder's claim that he needed an extension of time because he had been away for work. As the Member's reasons confirm, and as the Builder accepted in the appeal hearing, he had in fact been absent for only one night in the relevant period. At the appeal hearing he stated that on 11 November 2017 he had found inside the house a bundle of mail including the Tribunal notice of the orders of 27 October 2017. The Appeal Panel is not satisfied that the Builder has established any aspect of the hearing of 25 January 2018 in which it could be said he did not have an opportunity to explain why he needed an extension of time to lodge the set aside application. There was no denial of procedural fairness.
7. The Builder is not legally represented, and the Appeal Panel must determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]. The Jackson v NSW Land & Housing criteria (see [22] above) for granting an extension of time were discussed at the appeal hearing, both in the context of the need for an extension of time for the appeal itself, and for the decision the subject of the appeal. It is not apparent from the Member's reasons that, in determining not to extend time for the lodgement of the set aside application, he considered any factors other than the length of the delay and the reasons for it. In particular, it is not apparent that he considered whether the Builder had an arguable case.
8. By the time of the hearing on 25 January 2018 there had been no directions given for formal exchange of evidence by the parties, and such evidence as there was on behalf of the Builder was that provided in response to the request for submissions for the two set aside applications HB 17/39452 and HB 17/49004. In the absence of any discussion as to the strength or otherwise of the Builder's case, we are not confident that the Member's reasons demonstrate that he had regard to all relevant considerations in determining not to grant an extension of time to make the set aside application. It may be that he did, however in the absence of a sound recording it is not possible to confirm whether the Member gave more detailed reasons at the hearing than appear in the written reasons provided on 2 February 2018. Failure to take into account a mandatory relevant consideration, or failure to provide adequate reasons, would be an error on a question of law: Prendergast at [13].
9. We are satisfied that there was an error on a question of law, and the appeal should be allowed. The application made on 24 November 2017 by the Builder to have the decision and orders in HB 17/41814 set aside should be reheard. The parties have provided written submissions and documentary evidence on the set aside application, and it is a matter for the Division whether there is any need for fresh evidence to be permitted on the re-hearing.

Orders

1. The order made by the Appeal Panel on 4 June 2018 were: 1. Leave granted to extend the time in which to lodge the appeal to 21 March 2018; 2. Appeal upheld; 3. The matter is remitted to the Consumer and Commercial Division for re-hearing of the application made on 24 November 2017 to set aside the decision and orders in HB 17/41814 made on 27 October 2017.

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: 13 June 2018