Hamilton v Rural Machinery Repair Service

Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited: Bienstein v Bienstein (2003) 195 ALR 225 at 320; [2003] HCA 7
Collins v Urban [2014] NSWCATAP 17
Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399; [1991] FCA 655
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49
Licul v Corney (1976) 180 CLR 213 at 225; [1972] HCA 6
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39
Swain v City of Parramatta Council [2026] NSWCATAP 110
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Texts Cited: None cited

Category: Principal judgment

Parties: Elizabeth Hamilton (Appellant)
Rural Machinery Repair Service (Respondent)

Representation: Appellant (Self-Represented)
M Aiken (Agent) (Respondent)

File Number(s): 2026/00081536

Publication restriction: Nil

reasons for decision

Introduction

1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT Act”) against a decision made in the Consumer and Commercial Division of the Tribunal on 23 February 2026. The appeal is against a decision of the Tribunal which refused an application by the appellant to reinstate Tribunal proceedings that had been dismissed.

2. The appellant, Ms. Hamilton, appeared by audio-visual link at the appeal panel hearing conducted on 2 July 2026. The respondent to the appeal is not an entity, but rather is a business name of a business which is owned by William Aiken. Mr. Aiken appeared by audio-visual link at the appeal panel hearing. As can be seen below in these reasons, we shall make an order adding Mr. Aiken as a respondent to the Tribunal proceedings below and to these appeal proceedings. We shall refer to Mr. Aiken as “the respondent” in these reasons for decision.

3. For the reasons set out below, we have decided to grant leave to appeal and to allow the appeal.

Background

4. On 30 June 2025, the appellant commenced proceedings in the Tribunal against the respondent. The proceedings involved a claim by the appellant that the respondent had not correctly repaired the hydraulic system to the appellant’s tractor. The appellant sought a refund of money she had paid to the respondent and money she had paid to a third-party who had done repairs to the tractor after the respondent’s repairs. The claim was valued at $16,375.46, according to the application filed in the Tribunal.

5. The respondent denies liability to the appellant.

6. There were directions hearings conducted in the Tribunal proceedings in which both the appellant and respondent participated.

7. The application was listed for final hearing at 1.15 pm on 27 January 2026. The hearing was to be conducted at the courthouse at Ballina, New South Wales.

8. When the application was called upon by the Tribunal for hearing on 27 January 2026, Mr. Aicken appeared but there was no appearance at the Tribunal hearing room for the appellant. The Member dismissed the proceedings on the basis of the non-appearance by the appellant. There is a substantial contest about what happened on 27 January 2026, an issue to which we shall return later.

The reinstatement application

9. Section 55(2) of the NCAT Act relevantly provides:

“Dismissal of proceedings

The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances-

…

(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

…

The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.”

10. On 30 January 2026, the appellant made an application to reinstate proceedings, pursuant to s. 55(2) of the NCAT Act. She did so using the Tribunal’s standard form for such applications. She signed and dated the form on 29 January 2026. Section 4 in the standard form provides for the applicant for reinstatement to set out his or her reasons for seeking reinstatement. In section 4 of the appellant’s form, she stated in summary:

11. She had planned to meet a friend at the Ballina courthouse at 1.00 pm on 27 January 2026;

12. The appellant drove to the Ballina courthouse but there was holiday traffic which caused the appellant to be delayed;

13. The appellant arrived at the Ballina courthouse at 1.15 pm only to find all the doors locked;

14. The appellant had left her telephone in her car. At 1.20 pm, she used the mobile telephone of her friend to telephone the Tribunal registry. The appellant said she was told to call back in 10 minutes. She did so, and the person with whom she spoke said she would make inquiries and then respond to the appellant. At about 1.40 pm, the appellant received a text message with a number for her to telephone, she telephoned the number and the person to whom she spoke told her that her application had been dismissed;

15. The appellant stated in section 4 of the form “My friend has sent stat dec to confirm this information. Telephone records and CCTV at the Court House could also confirm my attendance.” (Emphasis added).

16. On 28 January 2026, Meryl Jean Broadley had made a statutory declaration before, and witnessed by, a justice of the peace. The statutory declaration appears to have been duly declared and witnessed in accordance with the Oaths Act 1900 (NSW).

17. The statutory declaration recounts that Ms. Broadley had arrived at Ballina Courthouse shortly before 1 pm, having parked at Martin Street. Ms. Broadley gives evidence about trying the courthouse door but it was locked. She gives evidence about waiting on River Street, facing the courthouse. She gives evidence that the appellant arrived around 1.15 pm. The courthouse door was tried but was locked and other courthouse doors were tried but were locked. She gives evidence about providing her mobile telephone to the appellant and the appellant placing telephone calls to the Tribunal registry. She gives evidence that the appellant was informed at about 1.40 pm that her case had been dismissed and that the appellant looked shocked. A copy of Ms Broadley’s statutory declaration dated 28 January 2026 was included in the appellant’s materials lodged in support of her appeal.

18. The appellant tried to file the statutory declaration with the Tribunal. She said she was not able to do so and that she ended up posting it separately from the reinstatement application. The statutory declaration of Ms. Broadley was filed with the Tribunal registry shortly after 30 January 2026. The appellant did not serve a copy of the statutory declaration upon the respondent. The respondent was not aware of the statutory declaration until he received a copy in the materials for the purposes of the appeal.

19. On 6 February 2026, the Tribunal made directions for the determination of the reinstatement application. The directions were:

20. The applicant is to provide the respondent with a copy of her reinstatement application on or before 10 February 2026.

21. The respondent is to provide to the Tribunal and the Applicant with any submissions and documents in reply to the application to reinstate by 16 February 2026.

22. The Applicant is to provide to the Tribunal and the Respondent with any submissions and documents in reply to the respondent’s submissions and documents by 19 February 2026. (Emphasis added).

23. A copy of the reinstatement application was sent to the respondent. The respondent filed a response to the application. An extract from the respondent’s response to the reinstatement application was included in his materials lodged for the purposes of the appeal. The response did not respond to the content of the statutory declaration and nor did the response suggest the respondent was aware of the existence of the statutory declaration. The respondent did not send a copy of his response to the appellant, and she was not aware of that material until she received a copy in the materials for the purposes of the appeal proceedings.

24. The respondent opposed reinstatement.

25. On 23 February 2026, the same Member who had dismissed the appellant’s substantive application on 27 January 2026, made the decision on the appellant’s reinstatement application. The orders and reasons given on 23 February 2026 were as follows:

“1. The application to reinstate the proceedings has been considered and is refused.

a. The Tribunal is not satisfied that the Applicant has provided a reasonable explanation for their failure to appear.”

18. On 26 February 2026, the appellant filed her notice of appeal, which is the subject of this appeal panel hearing, against the decision that had been made on 23 February 2026 refusing her reinstatement application.

19. On 8 May 2026, the Member who refused the reinstatement application gave further written reasons for the decision to refuse the reinstatement application.

20. In the 8 May 2026 reasons, the Member said that on 27 January 2026, when the appellant’s application was listed for hearing, the appellant had not appeared. The Member stated that at 1.57 pm on 27 January 2026, he dismissed the application under s. 55.(1)(c) of the NCAT Act.

21. The Member referred to case law authorities which explain how applications to reinstate proceedings should be approached. The Member then stated:

“8. The Applicant therefore bears the onus of establishing, on the balance of probabilities through sufficient evidence, that there was a reasonable explanation for the failure to appear. Assertions made in an application form alone are insufficient to discharge that burden.

9. In the reinstatement application, the Applicant asserted that she was delayed in arriving at the courthouse due to traffic congestion, that she arrived at or about the listed hearing time to find the courthouse doors closed, and that she made telephone contact with NCAT registry staff shortly thereafter. The Applicant contended that the dismissal occurred despite her attendance in the vicinity of the courthouse and asserted that telephone records, CCTV footage and a statutory declaration from a third party could confirm her account.

10. The assertions made by the Applicant were not supported by sworn evidence or by any documentary or objective records that were before the Tribunal when the decision on reinstatement was made. Despite the assertion in the application that a statutory declaration from another person existed to confirm her claims, no such document was available at the time. Further, while the Applicant asserted that her presence at the courthouse could be demonstrated by surveillance recordings, no surveillance recordings were produced in support of the reinstatement application. Consequently the reinstatement application was without supporting evidence.”

22. The Member stated that the appellant had not given a reasonable explanation for her non-appearance such that “the threshold requirement in section 55(2)” was not met. The Member stated, at [13] in the written reasons “the discretion to reinstate the proceedings did not arise.”

Documents relied upon prior to the appeal, grounds of appeal and submissions

23. As mentioned above, the appellant filed her notice of appeal on 23 February 2026. Attached to the notice of appeal was Ms. Broadley’s statutory declaration made on 28 January 2026. The appellant indicates that she is seeking leave to appeal. Amongst other things, the appellant claims that the decision was not fair and equitable. In the notice of appeal, the appellant pleads:

“…

The decision was not fair and equitable as my appearance at the hearing on 27/1/26 was hindered by NCAT not ensuring I was notified of a change in entry to the courtroom.

The evidence is CCTV, phone calls and stat. dec.

New evidence is stat. dec and should be CCTV and phone records if NCAT checks. Ballina courthouse informed me after 27/1/26 that the alternate entry was down Martin Street and up a flight of stairs Ballina courthouse has informed me that CCTV is available but not to the public.”

24. The appellant filed material in support of her appeal on 9 April 2026. The material includes a “call log” which appears to be a note the appellant has prepared purporting to show telephone calls placed by her to the registry of the Tribunal at 1.19 pm, 1.22 pm, 1.23 pm and 1.38 pm on 27 January 2026 and business records and financial records showing the appellant paid for petrol at River Street, Ballina, at 2.39 pm on 27 January 2026.

25. The appellant submits in her written material that her failure to appear was not deliberate, that she did not attend the hearing because the entrance she tried was locked, and she did not know that there was another separate entrance to Ballina courthouse. She submits that she actively sought assistance from the Tribunal registry, while she was outside the courthouse, to attend the hearing. She submits that she attended Ballina courthouse later on 18 March 2026, entering again by the River Street entrance, but made inquiries with court staff and discovered the alternate entrance. She submits that her claim in her application has not been determined on the merits and she would suffer a serious miscarriage of justice because of the refusal to reinstate her application.

26. The respondent filed a reply to the appeal on 8 April 2026. The respondent filed a bundle of documents on 21 May 2026 on which he sought to rely at the appeal panel hearing.

27. The respondent submits that the appellant’s claims about what happened on 27 January 2026 are factually incorrect. He says that after the matter was called upon for hearing at 1.15 pm, the Tribunal granted the appellant sufficient leniency by adjourning for 30 minutes and then a further 15 minutes, to allow the appellant time to arrive. He says that during the adjournments he was constantly scanning for the arrival of the appellant. He gives evidence about the doors to the courtroom at Ballina and says that when he was seated in the foyer outside courtroom 2 he had a clear view of “both roads, footpaths, and entries” and at no point did he witness the appellant gaining access or approaching “the area.” He also says that there was a sheriff’s officer present and she too was on “active lookout” for the appellant. He submits that the appellant’s claim of delay due to holiday traffic is a weak submission; holiday traffic in Ballina should not be a surprise and any decision by the appellant to give herself such a short window between being present at the Ballina courthouse and the commencement of the hearing was a dubious decision, given the importance of the hearing.

28. The respondent also submits that the appellant’s substantive case is weak and lacks merit. (Much of the material contained in the bundle of documents filed on 21 May 2026 related to the issues in dispute between the appellant and the respondent pertaining to the underlying dispute about repairs to the hydraulic system in the appellant’s tractor). He points to prejudice and hardship he has suffered through the Tribunal process and the mental health strain of the process.

The appeal panel hearing

29. At the appeal panel hearing, we explained that this proceeding was an appeal concerning the decision of the Tribunal on 23 February 2026 to dismiss the reinstatement application.

30. The Appeal Panel explained how appeals may be sustained against the decision of the Tribunal on 23 February 2026 as of right on a question of law or if the appeal panel grants leave to appeal, and the circumstances in which leave to appeal may be granted. The appeal panel confirmed with the parties what material they sought to rely upon for the purposes of the appeal panel hearing.

31. The appellant’s reinstatement application was not part of the evidence before the Appeal Panel. The Appeal Panel undertook some inquiries and obtained a copy of the reinstatement application. That course was considered by the Appeal Panel to be appropriate given the fundamental importance to the appeal panel hearing of the applicant’s reinstatement application and our obligation to facilitate the resolution of the real issues in the proceedings: s. 36(1) of the NCAT Act. The reinstatement application was received by the Appeal Panel as exhibit A at the appeal panel hearing. (The parties had been given an opportunity to make submissions about whether or not the Appeal Panel should receive the reinstatement application at the appeal panel hearing and there was no objection).

32. The Appeal Panel’s inquiries also led to the discovery of the Tribunal’s reasons dated 8 May 2026. The written reasons were received by the Appeal Panel as exhibit B at the appeal panel hearing. (The parties had been given an opportunity to make submissions about whether or not the Appeal Panel should receive the written reasons and there was no objection).

33. The Tribunal raised a query with the parties about why a business name was the named respondent to the appellant’s application. Mr. Aiken stated that he was the owner of the business to which the business name applied.

34. The parties were then invited to make their oral submissions.

35. Most of the appellant’s oral submissions were directed to her explaining what she said had transpired on 27 January 2026 at Ballina courthouse, notwithstanding that the Appeal Panel had sought to direct the parties to focus on the decision of the Tribunal made on 23 February 2026 with respect to the reinstatement application.

36. In her oral submissions, the appellant did make criticisms of the Tribunal’s reasons as recorded on 23 February 2026, submitting that those reasons did not explain why the Tribunal had not accepted that her explanation was a reasonable one and those reasons did not indicate even what material was before the Tribunal in refusing her reinstatement application. That part of her submissions, we accept, could potentially point to the Tribunal being in error on a question of law in terms of the adequacy of reasons. However, the appellant did in her oral submissions, clearly indicate that she was seeking leave to appeal. Her notice of appeal had also been explicitly framed as an application seeking leave to appeal.

37. In her oral submissions, the appellant also submitted that it seemed from the Member’s reference, in the written reasons dated 8 May 2026, to ‘no corroborating evidence’, that the Member had not looked at Ms. Broadley’s statutory declaration when making the decision.

38. For his part, the respondent’s oral submissions were also mainly directed to Mr. Aiken’s explanation of what had transpired on 27 January 2026 and his refutation of the appellant’s claims of her attempts to appear at 1.15 pm and later that afternoon. Mr. Aiken also addressed what he said was the unmeritorious nature of the appellant’s underlying substantive application.

39. In her reply submissions too, the appellant focussed again on the events of 27 January 2026 at Ballina courthouse.

40. The Appeal Panel reserved its decision and indicated that it would seek shortly to provide the parties with its orders and reasons for its decision.

Scope and nature of internal appeals

41. The basis upon which appeals from decisions of the Tribunal may be brought are identified in s. 80 of the NCAT Act. Section 80 of the NCAT Act states that an appeal may be made ‘as of right on any question of law, or with leave of the Appeal Panel, on any other grounds’ (s. 80(2)(b) of the NCAT Act). Where an appeal is not available as of right, the Appeal Panel must be satisfied that the requirements set out in cl 12 sch 4 of the Civil and Administrative Tribunal Act are established before granting leave to appeal.

42. The meaning of a “question of law” was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (“Cusumano*”*) at [25]-[40]. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and Cusumano at [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

“What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51.

For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly [Shire Council v Styles [2024] NSWCATAP 104] at [28]–[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A); see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]–[54], [109]–[114].

Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required.”

43. Where a party is self-represented and that party’s material and submissions raise a question of law in substance, a more generous approach is warranted as an aspect of ensuring procedural fairness, even though the ground has not been raised expressly or with precision: Unique at [27]-[28] and Cominos v Di Rico [2016] NSWCATAP 5 at [13].

44. Clause 12 of Sch 4 of the NCAT Act provides that the Appeal Panel may grant leave to appeal a decision from the Consumer and Commercial division (CCD) pursuant to s. 80(2)(b) of the NCAT Act, only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

45. the decision of the Tribunal under appeal was not fair and equitable; or

46. the decision of the Tribunal under appeal was against the weight of evidence; or

47. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

48. The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of sch 4 of the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76], stating that a substantial miscarriage of justice may have been suffered:

… where there 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.

46. The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel concluded at [84] that:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

(a) Issues of principle; or

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; or

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

47. It is important to note that an appeal is not an opportunity for the losing party to rerun their case, save in narrow circumstances: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

Consideration

48. The notice of appeal has been filed within time: r 36 of the Civil and Administrative Tribunal Rules 2014 (NSW).

49. William Aiken should have been the party to Tribunal proceedings 2025/248873 as he is the owner of the business name Rural Machinery Repair Services. We will join him as a respondent to Tribunal proceedings 2025/248873, and thereupon he needs to become a respondent to the appeal proceedings: r 29(b) of the Civil and Administrative Tribunal Rules 2014 (NSW). The business name Rural Machinery Repair Services should also be removed as a party to the Tribunal proceedings below and to this appeal proceeding. We shall make orders accordingly.

50. We characterise the notice of appeal in this case as one raising the question whether leave to appeal should be granted. We refer to [36] above in these reasons for decision. We are satisfied that we can regard the Tribunal’s written reasons made on 8 May 2026 as a statement of the Tribunal’s reasons for coming to the decision it did on 23 February 2026. We take that view because the cover page to the written reasons, and [2] in the written reasons, indicate that the written reasons are the reasons for the orders and decision dated 23 February 2026. We are also satisfied that it is appropriate for us to take this view, notwithstanding the later date of the 8 May 2026 reasons and because the reasons do cite a decision (Swain v City of Parramatta Council [2026] NSWCATAP 110) reported after the 23 February 2026 decision. Apart from that singular reference, there is nothing in the 8 May 2026 written reasons which would suggest that the Tribunal had taken into account any material considered or reviewed by the Tribunal after 23 February 2026.

51. Thus, we do not characterise the appeal as one seeking to rely on any error of law based on any potential inadequacy of reasons in the record of the Tribunal’s decision made on 23 February 2026. In our view that would not be a satisfactory basis on which to determine this appeal, in the light of the 8 May 2026 reasons because, although there was the reference to the Swain decision in those reasons, the Member did make it clear in the 8 May 2026 written reasons that the written reasons were for the 23 February 2026 decision.

52. As mentioned above too, in the course of her oral submissions, the appellant had also submitted that it seemed from the reference in the 8 May 2026 written reasons to ‘no corroborating evidence’ that the Member did not look at Ms. Broadley’s statutory declaration when making the decision. We note that a failure to take into account relevant material, in circumstances where the Tribunal is obliged to take the omitted factor into account, may raise a question of law. Such a potential ground of appeal does not arise, in our view, in the particular circumstances of this appeal. That is because the facts are unclear as to whether or not the Member was aware of the statutory declaration at the time when the 8 May 2026 written reasons were prepared.

53. Further or alternatively, leave to appeal is also necessary in this case because of the character of the decision sought to be appealed.

54. This appeal does not relate to the discretionary element of the decision to refuse the appellant’s reinstatement application. At [13] in the Member’s written reasons dated 8 May 2026, the Member made it plain that no discretionary considerations had arisen as part of the decision.

55. We take into account that the Tribunal’s decision on 23 February 2026 was a decision on a procedural application. That decision did not involve a point of practice - such as a decision within a hearing to refuse an adjournment application or rulings on the tender of evidence – where leave to appeal is less likely to be granted, but nor was the decision that was made on 23 February 2026 an interlocutory decision that determined a substantive right, being the sort of interlocutory decision where leave to appeal may more readily be granted: see Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399; [1991] FCA 655. We acknowledge that, as the High Court of Australia has explained, the “distinction between final and interlocutory judgments is not always easy to draw”: Licul v Corney (1976) 180 CLR 213 at 225; [1972] HCA 6 per Gibbs CJ. The test to be applied for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Bienstein v Bienstein (2003) 195 ALR 225 at 320; [2003] HCA 7 at [25]. The consequence of the order to refuse reinstatement, in its legal effect as opposed to its practical effect, was not to determine finally the rights of Ms. Hamilton and Mr. Aiken in the principal cause pending between them. That is because the appellant could make a further application for reinstatement, even though such an application might have very little prospect of success, and may have to be accompanied with an application, under s. 41 of the NCAT Act, for an extension of time to bring the reinstatement application.

56. Thus, we are satisfied that the appellant needs to persuade the Appeal Panel that leave to appeal should be granted to her.

57. We are satisfied that leave to appeal should be granted and that the appeal be allowed for the following reasons.

58. First, the following circumstances and considerations are notable:

59. The lack of support “by sworn evidence” (see [10] in the 8 May 2026 reasons) and the absence of “corroborating documentary material” (see [11] in the 8 May 2026 reasons) were matters that were ‘central to the Tribunal’s decision and not merely peripheral’ (see Collins v Urban, supra, at [84]), with respect to the Tribunal decision which refused the appellant’s reinstatement application.

60. There was in truth sworn evidence and corroborating documentary material in existence that supported the appellant’s claims in the reinstatement application. There was the statutory declaration of Ms. Broadley, made on 28 January 2026, which corroborated the essential elements of the appellant’s claims which she had made in the reinstatement application dated 29 January 2026 and lodged on 30 January 2026. That is, the statutory declaration, suggested that the appellant was planning to appear at the hearing on 27 January 2026, that the appellant was present at the hearing location at around 1.15 pm, that the appellant (and Ms. Broadley) were both thwarted from entering the hearing location by a locked door or doors at the Ballina courthouse, and that the appellant promptly made multiple attempts to contact the registry of the Tribunal before the dismissal decision was made.

61. The reinstatement application alerted the reader to the existence of the statutory declaration and that the statutory declaration had been sent to the Tribunal. The reinstatement application set out why the appellant claimed the proceedings should be reinstated and then stated, “My friend has sent stat dec to confirm this information.”

62. According to the appellant the statutory declaration was posted to the Tribunal registry at about the same time as she lodged her reinstatement application, although a copy was not served on the respondent or directly affixed to the reinstatement application.

63. We note the form of the directions made on 6 February 2026. Orders 2 and 3 of those directions directed the respondent and the applicant in reply, as applicable, to serve submissions “and documents” (our emphasis), but order 1 directed the appellant only to provide a copy of the reinstatement application to the respondent;

64. If the directions on 6 February 2026 had directed the appellant to serve the application “and documents” upon the respondent, we are satisfied that it is likely that the appellant would have served the statutory declaration upon Mr. Aiken. Further, we are satisfied that it is likely that Mr. Aiken would have referred to the statutory declaration, had a copy of it been provided to him by the appellant, and responded to it, by 16 February 2026 as part of his response to the reinstatement application. If Mr. Aiken had done so, then it is likely that the Member, who made the decision on 23 February 2026, would have been alerted to the fact that the appellant had filed with the Tribunal the statutory declaration, to which she referred in her reinstatement application. In the 8 May 2026 written reasons, the Member did not refer to Mr. Aiken’s response to the reinstatement application. We infer from the Member’s reasons that the Member had already decided to reject the reinstatement application on the basis of the stated lack of evidence from the appellant, and on that premise, had not addressed the respondent’s response to the reinstatement application.

65. Secondly, procedural fairness lies at the heart of the Tribunal’s function and two aspects of procedural fairness are “the opportunity to be heard, to advance its own case”: International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 at [54] per French CJ. A Tribunal decision may not be fair and equitable, for the purposes of s. 80(2)(b) of the NCAT Act, where evidence of a party directly relevant to the Tribunal decision, has not been considered by the Tribunal.

66. As explained to the appellant and the respondent at this appeal panel hearing, it is not for us to determine the course of events that transpired on the afternoon of 27 January 2026 at Ballina courthouse or its environs. True it is that in some cases it is appropriate for an appeal panel to exercise its power (see ss. 81(1)(d) and (2) of the NCAT Act) not to remit proceedings back to the Tribunal but for the appeal panel to substitute its own decision. But here there is direct contest between the parties about a number of facts, including questions about the layout of the Ballina courthouse and the entrance (or entrances) to it. We are not in a position to resolve the contest, between the appellant and the respondent, about the disputed facts, in the forum of this appeal panel hearing.

67. However, and as set out above in these reasons for decision, in determining whether a substantial miscarriage of justice has taken place, in the context of a decision whether or not to grant leave to appeal, we do not need to be affirmatively satisfied that a substantial miscarriage has taken place. The question for us is whether there was a significant possibility or chance which was fairly open, that a different result, and a result more favourable to the appellant would have been achieved. In considering that question, we are satisfied that had Ms. Broadley’s statutory declaration come to the attention of the Member who made the decision on 23 February 2026, that there was a significant possibility or chance which was fairly open, that a different result, and a result more favourable to the appellant, would have been achieved.

68. We take into account that although the refusal of the reinstatement application is properly characterised as an interlocutory decision, the practical effect of it here was that the decision made on 27 January 2026 to dismiss the application in the proceedings remained in place. That meant that the applicant had lost her chance to have the merits of her substantive claim determined. Moreover, the dismissal happened in circumstances where there was a significant possibility that the appellant was actually present in the vicinity of the hearing room for the merits of her substantive claim to be determined, and was present at or around the appointed time for the hearing of 1.15 pm, but had been prevented from entering the hearing room because the particular courthouse door (or doors) which both she, and Ms. Broadley, tried to cross, to gain access to the hearing room, was (or were) locked.

69. It appears from the written reasons for decision that Ms. Broadley’s statutory declaration was not brought to the Member’s attention by 23 February 2026. The statutory declaration was central and material to the issues the Member needed to decide on the reinstatement application: see s. 55(2) of the NCAT Act. We are satisfied that the appellant may have suffered a substantial miscarriage of justice as the decision under appeal was not fair and equitable because Ms. Broadley’s statutory declaration, filed with the Tribunal on 6 February 2026, was not considered by the Tribunal when the decision was made on 23 February 2026 to refuse the reinstatement application. We are satisfied that because the statutory declaration was not brought to the Member’s attention, there is an injustice that is reasonably clear. The appellant’s opportunity to advance her own case on the reinstatement application was materially truncated and the requirement of procedural fairness was not satisfied.

70. Thirdly, we have considered the respondent’s submission that it was not appropriate to grant leave to appeal because the appellant’s substantive case was so weak. The Appeal Panel read the respondent’s material filed as part of the appeal. We do not have a sufficient understanding of the underlying substantive dispute, or all of the evidence that might be relevant to that dispute, to be in a position to reach a conclusion that the appellant’s substantive case was as weak as the respondent submitted, and so for the limited purpose of determining the appeal in respect of the dismissal of the reinstatement application, we cannot accept this submission.

71. Accordingly, we are satisfied that leave to appeal should be granted, the appeal allowed and that the order made on 23 February 2026 should be set aside.

Remittal

66. There is a dispute about when on 27 January 2026 the application was dismissed. The May 2026 written reasons stated the dismissal order was made at 1.57 pm, but the appellant’s position, which received some support from the statutory declaration of Ms. Broadley, was that one of the Tribunal’s registry staff had told the appellant by about 1.40 pm on 27 January 2026, that her application had been dismissed by that time. Because of that disputed fact, in remitting the reinstatement application for rehearing, it seems to us that the Member to hear the remitted application should differ from the Member who made the order on 23 February 2026.

67. Upon the remitter, there should be, in the first instance, a directions hearing. Consideration could be given to whether directions could usefully be made to give the appellant a further opportunity to file and serve evidence in support of the application and a further opportunity for the respondent to file and serve evidence in response to the application, including in response to Ms Broadley’s statutory declaration. The appellant needs to bear in mind that it is not for the Tribunal to collate CCTV footage in support of her claims and the appellant’s signed reinstatement application is not a substitute for her own statutory declaration or affidavit. At the directions hearing, consideration could also be given to whether the reinstatement application should be determined at a hearing, rather than on the papers.

Conclusion

68. The Appeal Panel makes the following orders:

69. William Aiken is joined as a respondent in Tribunal proceedings 2025/00248873 and as a respondent to these appeal proceedings.

70. Rural Machinery Repair Service is removed as a respondent in Tribunal proceedings 2025/00248873 and as a respondent to these appeal proceedings.

71. The appellant is granted leave to appeal.

72. The appeal is allowed.

73. Set aside order 1 made by the Tribunal on 23 February 2026.

74. The appellant’s application to reinstate the proceedings, dated 29 January 2026, is remitted for determination by the Consumer and Commercial Division of the Tribunal, to be determined by a Member of the Tribunal other than the Member who made the decision the subject of this appeal.

75. The appellant’s application to reinstate the proceedings, upon the remitter to the Tribunal, should be remitted in the first instance to a directions hearing.

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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