Ikimdzhieva t/as C & L Upholstery Services v Fudala

NCAT Appeal Panel|2017-09-04

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013. The appellant, C&L Upholstery Services (C & L Upholstery) challenges orders of the Tribunal, made in the Consumer and Commercial Division, on 26 May 2017 awarding the respondent to the appeal, Ms Fudala, compensation in the sum $1,605.60.
The subject matter of the Tribunal's decision was a consumer claim by Ms Fudala against C & L Upholstery, arising out of an agreement by which Ms Fudala engaged C & L Upholstery to re-cover Ms Fudala's sofa bed.
The basis of C & L Upholstery's appeal are that the orders of the Tribunal must be set aside because they were infected by bias and a lack of procedural unfairness on the part of the Tribunal. C & L also seeks to rely on what it categorises as new evidence, which it claims undermines the evidence on which Ms Fudala relied at the hearing to establish the liability of C & L Upholstery.
Mr Tsakmakis was granted leave to appear for C&L Upholstery at the appeal hearing. Ms Fudala acted for herself at the appeal hearing.
For the reasons set out below, we have decided to refuse leave to appeal and to dismiss the appeal.

Background

There was no issue either at the hearing or on appeal that C&L Upholstery agreed to re-cover Ms Fudala's sofa bed on the basis that Ms Fudala would provide the fabric for C&L Upholstery to use. There was also no issue at the hearing or on appeal that C&L Upholstery re-covered the sofa bed with fabric that Ms Fudala supplied to C&L Upholstery's workshop.
The main matter in dispute at the hearing of Ms Fudala's application was whether C&L Upholstery had re-covered the sofa with the wrong side of the fabric facing out and whether there were other faults in C&L Upholstery's work, including zippers falling off, crooked corners on cushions and foam cushions of different widths being put into cushion covers.
Ms Fudala's application against C&L Upholstery sought an order for payment of $2,103.00. C&L Upholstery disputed that there were any faults in its work.

Tribunal proceedings and decision

The application to the Tribunal was lodged on 24 November 2016. The matter was first listed before the Tribunal on 13 January 2017. The hearing was adjourned until 17 February 2017. Conciliation having evidently been unsuccessful, procedural directions were made for the parties to provide to the Tribunal and each other any documents on which they intended to rely at the hearing.
The matter was listed for hearing on 5 May 2017. At the end of the hearing the Tribunal reserved its decision. The Tribunal's orders and reasons for decision were published on 26 May 2017.
The Tribunal found that:

Section 60 of the Australian Consumer Law required C&L Upholstery to supply services with due care and skill;
The fabric Ms Fudala supplied to C&L Upholstery was considered non-reversible by the manufacturer;
C&L Upholstery covered the sofa bed with the incorrect side facing up;
This could only have arisen if C&L Upholstery had failed to make any inquiry as to which side of the fabric should be featured in covering the sofa bed;
Ms Fudala claimed that she had told C&L Upholstery the side of the fabric she required. This was either ignored or, in the alternative, the furniture was upholstered without any inquiry or seeking instructions from Ms Fudala;
It was a departure from proper standards of workmanship to carry out the work without seeking specific instructions from the party providing the material as which side of the material should be faced upwards;
Photographs show that cushion corners have not been completed in a satisfactory manner and there was a failure to meet the acceptable standards required of a professional upholsterer;
Ms Fudala was entitled to a refund of the upholstery labour costs and the cost of the fabric.
Ms Fudala was not entitled to the cost of replacement of the cushion inserts as they would have required replacement in any event given their age;
A 10% reduction should be applied to the cost of labour and material as Ms Fudala had 17 to 18 months use of the sofa bed after it was returned to her and she would be unjustly enriched if a reduction was not given.

In making its decision, the Tribunal referred to the evidence and submissions provided by Ms Fudala (which included a document prepared by Michael Virtue, the state manager of Warwick Fabrics Australia) and to the evidence provided by C&L Upholstery (which included the affidavits of Mr Constantine Tsakmakis and Ms Diana Ikimdzhieva).
The Tribunal also referred to Mr Tsakmakis' conduct during the hearing in the following terms: …… 4. The matter came before me for hearing on 5 May 2017 in Murwillumbah when both parties were in attendance. 5. Mr Constantine Tsakmakis, who I understood to be a husband or partner of the respondent also attended and demanded to be heard on the basis that he was "the principal witness". No application was made for him to appear on behalf of the respondent but it was noted that all of the evidence had been filed by the respondent and it included an affidavit of Mr Tsakmakis sworn on 10 March 2017. 6. I declined to allow Mr Tsakmakis to appear in the matter or to appear on behalf of the respondent as his initial presentation was overbearing and disruptive. I did initially allow him to sit at the bar table with his partner but he interrupted and interjected on a number of occasions so I requested him to sit in a seat behind the bar table and to only speak if he was asked to do so. The matter then commenced as a formal hearing. …… 24. Mr Constantine Tsakmakis provided an affidavit dated 10 March 2017 and as indicated earlier, he attended the Hearing. He presented in a somewhat aggressive manner at the outset and wanted to continue talking to present his own case. He was advised that as he was not the respondent that he should simply sit in the Hearing room and allow his wife to present the case. Despite being encouraged on several occasions to allow this to happen without interruption he continued to interrupt and to talk over evidence or conversations. He was invited to retire behind the bar table to discourage him from being actively involved in the Hearing but again on three or four occasions he simply interrupted when others were talking and wanted to present his own version of the incident. Mr Tsakmakis was informed that he had put his evidence on in a formal manner by affidavit and that the whole of his evidence would be taken into account and assessed in relation to the claim. He was advised that supplementary evidence could not be permitted if it had not been included in the original evidence provided in accordance with directions. 25. Eventually whilst the evidence was continuing Mr Tsakmakis interrupted on a number of occasions without being spoken to and he was then politely requested to consider whether he may be better off outside the Hearing room if he felt unable to control his desire to interrupt the proceedings. At that stage he apologised for his conduct and continued to sit quietly. After about twenty minutes Mr Tsakmakis stood up and made his way towards the point where his wife was sitting at the bar table and he showed a clear intention to disrupt the proceedings further. At that point in time he was required to leave the Hearing room so that the matter could proceed with his wife presenting the whole of the evidence which had been filed.

Scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with leave (meaning the permission) of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).

Question of law

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.

Leave to appeal

The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis 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).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (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; (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.
In cases involving a self-represented litigant who cannot clearly articulate grounds of appeal and distinguish between questions of law and errors of fact in relation to which leave to appeal is required, it is appropriate for the Appeal Panel to consider the material provided on the appeal to properly identify the grounds of appeal (Prendergast at [12]).

Submissions and evidence

In deciding the appeal, we have had regard to the following:

The Notice of Appeal received on 21 June 2017;
The Reply to Appeal dated 28 June 2017;
A document submitted by C & L Upholstery on 4 July 2017 which is headed "Questions for Anita sales representative of Warwick fabrics". The second page of that document is said to be an email from Mr Virtue of Warwick Fabrics addressed to Mr Tsakmakis;
A bundle of documents submitted by C & L Upholstery on 28 July 2017, which includes a written submission and the evidence that was before the Tribunal;
A bundle of documents submitted by Ms Fudala on 14 August 2017, which includes a written submission and the evidence that was before the Tribunal;
A further document received from C & L Upholstery on 30 August 2017in which Mr Tsakmakis claims that Ms Fudala altered her statement; and
Oral submissions made by Mr Tsakmakis and Ms Fudala.

C & L Upholstery provided a sound recording of the hearing on 5 May 2017 to the Appeal Panel, but not to Ms Fudala. This is notwithstanding the orders made at the call over on 4 July 2017, which required a party who wished to rely on what happened at the hearing to provide a sound recording to both the Tribunal and the other party. Ms Fudala had no objection to the Appeal Panel considering the recording.

Notice of Appeal

The Notice of Appeal was lodged on 21 June 2017, which is within the 28 day time period specified in cl 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (the Rules).

Notice of appeal and submissions

The ground of appeal specified in the Notice of Appeal is that the Tribunal acted as an advocate for Ms Fudala, was biased against C & L Upholstery and denied C & L Upholstery procedural fairness.
In C & L Upholstery's written submission, which was prepared by Mr Tsakmakis, the substance of the alleged bias and procedural unfairness are relevantly that:

The refusal of the Tribunal to allow Mr Tsakmakis to present the case on his wife's behalf was an error that caused "great injustice";
Mr Tsakmakis wasn't able to file an application for "costs and compensatory damages", which he had intended to file in the hearing, because he was not allowed to appear for his wife;
A self-represented party expects to appear before an "independent fair minded officer of the law and with the help of his filed supporting material, to have a fair oral hearing";
The examination of Diana Ikimdzhieva under protest was inappropriate and legally questionable. She was forced to answer questions which only Constantine Tsakmakis could answer because she had not dealt with Ms Fudala except for one brief meeting on 9 November 2015;
Diana Ikimdzhieva could only answer questions about her affidavit. She did not know what was in her husband's folders or supporting material and she did not have her husband's technical knowledge to explain anything about the job.
The Tribunal Member did not ask Diana Ikimdzhieva whether she wanted to be represented by her husband and she did not know that she had a right to ask to be represented.

Appeal hearing

At the hearing, Mr Tsakmakis argued that the errors made by the Tribunal were that:

The Tribunal Member was biased or in the alternative denied procedural fairness to his wife because he didn't have the opportunity to present the case on behalf of his wife.
The Tribunal Member was biased or in the alternative denied procedural fairness to his wife because if he had presented her case he would have told the Tribunal Member that the reason he covered the sofa with the inside of the fabric facing out was because Ms Fudala had repackaged the material.
The Tribunal Member denied procedural fairness because his wife was not allowed to introduce new material. Mr Tsakmakis indicated that the "new material" he referred to was that he would have told the Tribunal that Ms Fudala was not telling the truth. He also would have explained to the Tribunal that fabric is always rolled a particular way, with the side to be displayed on the outside of the roll. Mr Tsakmakis stated that he would have explained the process he uses unless he is given particular instructions.

In addition, Mr Tsakmakis also sought to rely on new evidence, namely the email he states was obtained from Mr Michael Virtue, the Queensland state manager of Warwick Fabrics, after the hearing.
Mr Tsakmakis confirmed that the matters set out above were the only bases on he claims that the Tribunal erred. He did not press the assertion in the written submission that "the examination of Diana Ikimdzhieva under protest was inappropriate and legally questionable". We have accordingly not addressed it.

Denial of procedural fairness

C&L Upholstery's primary ground of appeal is that it was denied procedural fairness because Mr Tsakmakis was not permitted to represent his wife at the hearing on 5 May 2017.
A denial of procedural fairness is a question of law: Italiano v Carbone [2005] NSWCA 177.
Procedural fairness concerns the fairness of the proceedings and not the decision itself.
The Tribunal's process is set out in s 38 of the NCAT Act. This section provides that: 1. The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. 2. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
Further, s 38(5) provides that the Tribunal is to take such measures as are reasonably practicable to ensure that "the parties to the proceedings before it understand the nature of the proceedings" and that "the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".
Having a reasonable opportunity to be heard does not mean that a party has a right to be represented in proceedings before the Tribunal. With some limited exceptions, parties are not entitled to be represented and may only be represented if the Tribunal grants leave for that to occur: s 45(1) NCAT Act. At its discretion, the Tribunal may grant or refuse leave for a party to be represented: s 45(3)(a) NCAT Act.
Clause 32 of the NCAT Rules is relevant to the Tribunal's decision concerning whether to grant leave for representation. Relevant factors for the Tribunal to consider when deciding such an application include "whether the proposed representative has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings" (cl 32(1)(a)(ii)) and "any other circumstances that [the Tribunal] considers relevant" (cl 32(1)(b).
In this case, the Tribunal did not specifically refer to cl 32 of the Rules in its reasons for decision. However, it is clear from the reasons for decision that Mr Tsakmakis' conduct during the hearing led to the decision to not allow Mr Tsakmakis to sit at the bar table or to speak for his wife. As noted above, Mr Tsakmakis' conduct was described as "overbearing and disruptive".
C & L Upholstery provided a recording of the hearing. We have listened to the hearing. While we take the view that the Tribunal Member was abrupt in the manner in which he dealt with Mr Tsakmakis, we are not satisfied that the Tribunal's assessment of Mr Tsakmakis' conduct was unreasonable. It is clear that Mr Tsakmakis did try to speak when he had been directed not to by the Tribunal Member. In our view, such conduct by a person involved in a hearing may be a sufficient reason not to allow that person to represent a party. This is because the person may have difficulty dealing fairly with the other party and with the Tribunal. In addition, the person may have difficulty complying with the statutory obligation of a party's representative to cooperate with the Tribunal in the resolution of the real issues in dispute in a manner that is just, quick and cheap: s 36(1) and s 36(3) NCAT Act.
In any event, we note from the sound recording that Ms Ikimdzhieva did not apply to be represented by her husband at any point during the hearing. Further, while Mr Tsakmakis claims that Ms Ikimdzhieva was unable to answer questions or present her case, the sound recording does not make good that assertion. Ms Ikimdzhieva answered questions put to her by the Tribunal Member without any apparent difficulty, even if she did state from time to time that she had not done the work and that the question was one for her husband. If Ms Ikimdzhieva felt that she could not defend the application herself, it was open to her to seek leave to be represented and/or to seek an adjournment of the hearing. While Mr Tsakmakis claims that Ms Ikimdzhieva was unable to take such an action, we are not satisfied that this submission is supported by the material provided.
It is clear from the reasons for decision that the Tribunal took into account C & L Upholstery's case, as Ms Ikimdzhieva presented it at the hearing. This includes the written material that was provided in defence of the claim brought by Ms Fudala. Part of that written material was Mr Tsakmakis' affidavit, which explained the process used to cover the sofa and which disputed evidence given by Ms Fudala.
During the hearing, Ms Ikimdzhieva submitted both that Ms Fudala had not told the truth and that the problem had been created by Ms Fudala not stating what side of the fabric should face up. Ms Ikimdzhieva also stated that Ms Fudala had not told her husband what side should face up and submitted that it was Ms Fudala's responsibility to do so. Further, Ms Ikimdzhieva told the Tribunal which way the fabric was rolled when it was dropped off and also that rolls of fabric which come from a supplier are always rolled with the right side on the inside. We conclude from this that the evidence Mr Tsakmakis told us he would have given and the submissions he would have made had he represented his wife were in fact put before the Tribunal during the hearing.
In addition, while Mr Tsakmakis asserts in the written submission that C & L Upholstery was not able to file its own claim, an application for costs could have been made in the event that Ms Fudala was unsuccessful. We note that if that had been the case, the Tribunal could not have made an order for costs unless special circumstances were established: s 60 NCAT Act. As C & L Upholstery was a supplier of services in the transaction with Ms Fudala, it could not have brought a claim against Ms Fudala in the Tribunal in any event, as a consumer claim can only be lodged by a consumer: s 79E Fair Trading Act 1987
C & L Upholstery has not established a denial of procedural fairness either in relation to the Tribunal requiring C & L Upholstery to be represented by Ms Ikimdzhieva rather than by Mr Tsakmakis, or otherwise in relation to the conduct of the hearing.
In any event, we conclude that even if Mr Tsakmakis had been allowed to represent his wife during the hearing, the outcome would not have been different.
In relation to this, it is not in dispute that the sofa was covered with the side of the fabric which the manufacturer's representative Mr Virtue states is the correct side on the inside rather than facing out.
There is a dispute between the parties as to whether Ms Fudala told C & L Upholstery which side of the fabric was to face out. Ms Fudala told the Tribunal that she had done so. It is clear from the sound recording of the hearing that Ms Ikimdzhieva denied that this had occurred. The Tribunal did not specifically make a finding as to whether Ms Fudala did notify which side of the fabric she wanted to face out. However, the Tribunal stated at [37]: …. [It] is in my opinion a departure from proper standards of workmanship to carry out the work without seeking specific instructions from the party providing the material as to which side of the material should be faced upwards. The explanation by both Mr Tsakmakis and his wife that they made an assumption because of the way in which the material was rolled does not satisfy me that they were acting in a reasonable or appropriate manner in those circumstances, particularly where they claim to have had no specific instructions as to the manner in which the fabric should be applied. I am satisfied that the actions of the respondent, through Mr Tsakmakis, constituted a clear breach of the warranties provided for under s. 60 of the Australian Consumer Law.
In our view, such a finding open to the Tribunal based on the evidence that was before it. We are not satisfied that the Tribunal's finding in this regard would have been any different if Mr Tsakmakis had represented his wife.
This ground of appeal is refused.

Bias

Mr Tsakmakis claims that the Tribunal was biased against C &L Upholstery. The Notice of Appeal states that the Tribunal acted as Ms Fudala's 'advocate' or 'supporter'. By this we understand that C & L Upholstery is maintaining that the Tribunal had an inclination to favour Ms Fudala at the hearing, and therefore was either actually biased or apparently biased.
In the case of actual bias, a subjective test is involved. As the authors of Judicial Review of Administrative Action and Government Liability (6th ed 2017, Thomson Reuters) state at [9.40]: A claim of actual bias requires cogent evidence that the decision-maker was in fact biased. Actual bias will not be made out by suspicions, possibilities or other equivocal evidence. In the absence of an admission of guilt from the decision-maker, or, more likely, a clear and public statement of bias, this requirement is difficult to satisfy.
As is understandable on the part of a litigant who is not legally qualified, Mr Tsakmakis did not seek to distinguish between a claim that the Tribunal Member was actually biased and a claim of apprehended bias on the part of the Tribunal Member. However, the law requires that distinction to be made, as there is a clear difference between the two kinds of bias when assessing both the relevant evidence and applicable legal principles. Therefore, during the course of the appeal we enquired about the basis for the bias allegation. Mr Tsakmakis submitted that the Tribunal Member was biased because he had denied C&L Upholstery procedural fairness by not permitting Mr Tsakmakis to represent C&L Upholstery at the hearing.
We are satisfied that the evidence does not establish actual bias on the part of the Member. The heavy onus of proving the subjective state of mind of the Member, such that he had a predisposition to decide the matter adversely to C & L Upholstery, has not been satisfied.
The test for deciding whether a judicial officer is disqualified by reason of the appearance of bias was stated by Gleeson CJ, Gaudron, McHugh, Gummow and Callinan JJ in Johnson v Johnson (2000) 201 CLR 488 at 492: It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
This test was re-affirmed by the High Court in Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31].
The test requires the court to consider possibilities (indicated by the word 'might' in the passage of Johnson cited), at two stages. As Gleeson CJ, McHugh, Gummow and Hayne JJ said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7]: The question is one of possibility (real and not remote), not probability.
Thus the test, for good reason, establishes a relatively low threshold.
The High Court stated in Johnson (above) at 493 that: The observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require him [or her] to discard the irrelevant, the immaterial and the prejudicial'.
This was stated in the context of judicial proceedings, but can be applied in the context of a tribunal required to act judicially, as was the Tribunal at the hearing.
In other words, the matter of principle relevant to the application of the test for apprehended or apparent bias is the "knowledge" of the fair-minded observer. In its application to the Tribunal, the fair-minded observer is attributed with knowledge of the salient facts upon which the claim is made and of the processes of the Tribunal and its members when determining disputes or actions that come before them: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87; [1990] HCA 31).
At its core, the principle of apparent bias as it applies to the Tribunal exists not only to protect litigants from actual bias and injustice, but also to ensure public confidence is maintained in the Tribunal by ensuring that justice appears to be done.
We accept that, in principle, the appearance of bias to a reasonable and objective observer may emerge by the use of language, without a decision maker being actually biased at all. To that end we have considered whether the sound recording indicates the Member's tone or demeanour as establishing any apparent bias on the part of the Member.
It is clear from the sound recording that the Tribunal Member conducted the hearing in a manner which could be described as firm and at times he was very abrupt. However, he was firm and abrupt with Ms Fudala as well as with Mr Tsakmakis and Ms Ikimdzhieva.
Overall, the material before us does not establish that a fair minded lay observer would have a reasonable apprehension that the Tribunal might not have brought an impartial and unprejudiced mind to the hearing: Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31].
This ground of appeal has not been established.

New evidence

C & L Upholstery seeks to rely on new evidence, being a document said to have been produced by the Mr Michael Virtue of Warwick Fabrics.
As noted, the "new evidence" ground of appeal in cl 12 of Schedule 4 of the NCAT Act requires the leave of the Tribunal.
In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection cl 12(1)(c) of Schedule 4: In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.
Whether evidence was "reasonably available" is not considered by reference to any subjective explanation from the party seeking leave to rely on it but by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained it: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23], as cited in Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 at [40].
According to Mr Tsakmakis, information was requested from a Warwick Fabrics sales representative after the hearing in order to address issues that had not been addressed in the document from Mr Virtue that Ms Fudala provided to the Tribunal. He stated that while he had sought information from the sales representative, Mr Virtue sent him the document on which he now seeks to rely.
Although Ms Fudala submitted that the document is not genuine, it is not necessary for us to make any finding concerning its authenticity as we are not satisfied that this document constitutes "new evidence" in the relevant sense. This is because it was open to C&L Upholstery to approach Warwick Fabrics for the information contained in the document prior to the hearing and to include any document provided by Warwick Fabrics in the bundle of documents provided to the Tribunal.
Further, we are not satisfied that the document constitutes "significant" new evidence in any event. In relation to this, the document relevantly states: As discussed - Avignon Scarlet - This is the correct side we recommend as pictured on the samples. (Dark brown background, raised red pattern) - The fabric is still available - The fabric is 100% polyester - The fabric has NOT been tested on the reverse side so we don't recommend it is used on that side even though it is similar. - We always supply fabrics rolled and packed securely in plastic to protect it. - We always supply paper work with the fabrics inside the rolls of material. - Fabrics are always rolled and sent out with the correct side rolled to face the inside of the roll as you roll it out. - If fabrics are resupplied or rerolled before employing a tradesman, customers should discuss and confirm the suitable details for the workmanship before proceeding.
Even if the document had been before the Tribunal Member at the hearing, we are not satisfied that it would have affected the Tribunal's conclusion that it was "a departure from proper standards of workmanship to carry out the work without seeking specific instructions from the party providing the material as to which side of the material should be faced upwards".
This is all the more so when the contents of Mr Tsakmakis' affidavit dated 10 March 2017 are taken into account. This affidavit was before the Tribunal and included in C&L Upholstery's bundle of appeal documents. At [3], Mr Tsakmakis relevantly states: A few days after she brought the material I was not there my Son George told her to leave the roll next to my cutting bench. When I arrived noticed the roll was open with no plastic cover of protection, it looked very loosely rolled I assumed she bought the material from some discount warehouse.
Mr Tsakmakis' affidavit reflects his view that Ms Fudala had not obtained the fabric directly from a supplier such as Warwick Fabrics. In such circumstances, Mr Tsakmakis could not rely on an assumption that the correct side of the fabric always faced the inside on a roll to justify not having sought Ms Fudala's advice prior to undertaking the work.
As we have concluded that the new evidence on which C& L Upholstery now seeks to rely is not new evidence in the sense required by cl 12 of Schedule 4 of the NCAT Act and that it is not significant new evidence in any event, we are not satisfied that C & L Upholstery has established a basis for a grant of leave to appeal.

Conclusion

We are not satisfied that the Tribunal Member denied procedural fairness in not allowing Mr Tsakmakis to represent C & L Upholstery at the hearing, or in not allowing Mr Tsamakis to add to his evidence. Nor are we satisfied that C & L Upholstery has established that the Tribunal Member was biased against C & L Upholstery.
We are not satisfied that C & L Upholstery has established that the new evidence on which it seeks to rely is significant new evidence that was not available at the time of the hearing before the Tribunal. There is therefore no basis on which we would grant leave to appeal.
We are not satisfied on the basis of the material provided by C & L Upholstery on the appeal that the Tribunal's decision would have been any different had Mr Tsakmakis represented his wife, been able to give further evidence of the kind suggested by Mr Tsakmakis during the hearing or provided additional documents to the Tribunal. We are satisfied that the findings made by the Tribunal were open to it on the evidence provided by the parties.
We have therefore refused leave to appeal and dismissed the appeal.

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: 29 September 2017

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