JJ Built This Pty Ltd v Secretary, Department of Customer Service

NCAT Appeal Panel|2024-08-30

REASONS FOR DECISION

The Appellant filed two appeals to the Appeal Panel. The appeals were filed in respect of orders made by the Tribunal in proceedings by way of case management, and prior to the hearing or determination of those proceedings by the Tribunal.
For the reasons set out below, we have refused to grant leave to the Appellant in respect of both of the appeals, and they are each dismissed. We have also ordered that the Appellant pay the costs of each of the three Respondents.

Materials before the Appeal Panel

Written submissions were filed by the Appellant and the First Respondent. The Second and Third Respondent (who were not legally represented at the hearing) also filed joint written submissions.
The Appellant also filed an Affidavit of Shain Andre Nav dated 13 August 2024 and an Affidavit of Joe Hanna dated 29 August 2024. For the reasons set out below, these affidavits were not relevant to the matters before us.
The First Respondent filed an Affidavit of Jamie John Coss (Mr Coss) dated 28 August 2024. Mr Coss was the solicitor for the First Respondent. His affidavit annexed the documents relevant to these appeals which are set out below.

Relevant facts

On 13 March 2024, the First Respondent issued a Rectification Order (No. 11204898) to the Appellant. It was stated to have been issued under s 48E of the Home Building Act 1989 (NSW) (HB Act). It ordered that rectification work on the property owned by the Second and Third Respondents (the Property) be performed by 10 May 2024.
The Appellant accepts that it did building work on the Property. But it claims it did not do the work the subject of the Rectification Order.
Accordingly, the Appellant filed an application to the Tribunal on 11 April 2024 (proceedings 2024/00135450) seeking a stay of the Rectification Order pursuant to s 48O of the HB Act or in the alternative that the Rectification Order be "dismissed and/or withdrawn" pursuant to s 49D of the HB Act.
No substantive hearing of the matter has occurred. The Tribunal has made no consideration of the relevant evidence or law.
The matter has, however, been before the Tribunal on the following occasions for case management in preparation for the substantive hearing.
On 1 May 2024, the matter was listed before General Member Ash. The directions and reasons issued to the parties (relevantly) stated as follows (our emphasis): On 1 May 2024 the following orders (and/or directions) were made: 1. Rana Ensor, is joined as Respondent to this proceeding. 2. The hearing is adjourned to a date and time to be confirmed by the registrar. 3. The Rectification Order File No. 11204898 dated 13 March 2024 is stayed until further orders are made by Tribunal. 4. While the applicant has permission to be represented by a legal practitioner at the next directions hearing, the issue of ongoing representation for any party is adjourned to the directions hearing. Reasons for decision: On 11 April 2024 a contractor lodged an application with the Tribunal. The matter comes into the CCD division group list today…. The application seeks: "1. A Stay of the Rectification Order, [File No. and date] pursuant to Section 48O of the [HB Act]. 2. The Rectification Order, [File No. and date] be dismissed and/or withdrawn pursuant to Section 49D of the [HB Act]…." … The gist of the application is that the order is directed to rectification of work for which the contractor did not contract or is not responsible for. The gist of the home owners' position is that there is an urgency and a safety issue given their child's state of health. … There was no prospect that the applicant's interim application for a stay could be heard with full receipt of and testing of evidence from each party, having regard to the state of the group list. The Tribunal is satisfied that the contractor has a prima facie basis for its grievance and that if it is made to comply with the order then it will suffer an injustice. This is not to downplay the owners' concern. They have a prima facie basis for their concern about the safety and integrity of their house and the safety of their family. But and on balance a short stay to allow the matter to be placed before a Senior Member for directions is appropriate.
On 3 July 2024, following other correspondence between the First Respondent and the Appellant, the First Respondent wrote to the Tribunal (copied to all parties) raising a threshold question whether the Tribunal had jurisdiction to hear the matter the subject of the application. (It appears that no listing date had been allocated by the Registry prior to this correspondence. Accordingly, the 3 July 2024 email also requested that the matter be relisted for directions.)
On 10 July 2024 the matter was listed for case management before Deputy President Harrowell. The relevant directions and comments are extracted below (our emphasis): On 10 July 2024 the following orders (and/or directions) were made: 1. The proceedings are listed for directions on 17 July 2024 at 10:00 am 2. The parties may appear in person or by [AVL]… 3. The applicant is to provide to the parties and the Tribunal a document setting out precisely what orders were sought, against whom and the legal basis for those orders, including the Tribunal's jurisdiction to make the orders. Reasons These proceedings were commenced by application of a builder who apparently entered into a contract to do home building work with Dr Esnor [sic]… The following would appear to be the facts: 1. Dr Esnor [sic] made a complaint …in consequence of which an investigation occurred under Part 3A of the [HB Act] 2. In consequence of that investigation, a rectification order was issued… pursuant to s 48E of the HB Act. 3. The applicant initially commence [sic] these proceedings against the first respondent, named as the "State of New South Wales trading as Building Commission NSW". … In its application, the applicant appears to seek orders under s 49D. This section entitles a contractor to appeal a rectification order made under s 49D of the recently inserted new Part 3B of the HB Act. However, it would not appear such an appeal can be lodged in connection with an order made under s 48E. Rather, an order made under s 48E and its operation is regulated by Part 3A of the HB Act. In light of these matters, it is appropriate that the applicant clarify the basis of its application to the Tribunal. Ordinarily, there must be a building claim within the meaning of s 48A of the HB Act. Relevant to the present case, s 48A provides a "building claim means a claim for …(b) the supply of specified services". On one view, the present claim is not a claim "for" the supply of specified services. On the other hand, pursuant to s 48O of the HB Act the Tribunal may order a party to "do or perform, or refrain from doing or performing, any specified act, matter or thing". In addition, it may be that Dr Ensor wishes to commence proceedings against the builder to seek orders in accordance with the rectification order made by the Building Commission. As necessary, the parties should obtain legal advice about these matters and be in a position to inform the Tribunal of their respective positions. The direction that the applicant provide a document setting out its precise claims and the legal basis therefore prior to the directions hearing will assist the parties and the Tribunal in determining what directions or orders should be made. In this regard, the parties should also consider whether the State is a proper party to the proceedings.
The Appellant filed a Notice of Appeal (First Appeal) to this Appeal Panel under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on 16 July 2024 (2024/000262176). 1. It challenged Orders 1, 2 and 3 made by DP Harrowell on 10 July 2024 (as italicised in para 13 above). 2. The Grounds of Appeal stated (our emphasis): The Order of 10 July 2024 relists the matter for directions on 17 July 2024. The timeline for Appeals and Internal Appeals is 28 days from the date that notice of the decision was received, as per NCAT Guideline 1. The Order in question was made on 1 May 2024 by General Member Ash. It has been well over 28 days since the Order was made. It does not appear that any appeal was made within the 28 days from 1 May 2024. The matter is being revisited after the final order was made by the request of the Respondent. The Order of 10 July 2024 gives us only 7 days, being extremely short notice, to prepare for a matter. In addition, one of the Applicants has recently had surgery and is recovering and the other is currently undertaking a business course. 1. It requested the Appeal Panel make orders that "The Order dated 10 July 2024 be dismissed". 2. On section 6B of the form (Application for Leave to Appeal from a Consumer and Commercial Division Decision), the Appellant marked "No" to the question "Are you asking for leave?". 3. It was accompanied by an Application for stay of original decision pending appeal, filed on the same day (First Stay Application). The First Stay Application requested that Orders 1, 2 and 3 made by DP Harrowell on 10 July 2024 be stayed.
The First Appeal and the First Stay Application was referred to PM Suthers on 16 July 2024. On that same day, he made the following orders (and/or directions): 1. The Appeal is listed for a Call Over and Hearing of the Application for a Stay on 31 July 2024 at 11:30 am. A separate written notice of the Call Over and Hearing of the Application for a Stay will be sent to the parties. 2. If an order under s 43 of the [NCAT Act] is still pressed, then on or before 19 July 2024 [the Appellant] is to lodge with the Appeal Registry and give to the other party any further evidence and submissions in support of the Application for a Stay by email. 3. On or before 29 July 2024, each Respondent is to lodge with the Appeal Registry and give to the other parties any evidence and submissions in opposition to the Application for a Stay by email. 4. The Appeal Panel declines to grant an ex parte stay.
The following day, 17 July 2024, the substantive proceedings were again in the list for case management before DP Harrowell. The relevant directions and comments are extracted below (our emphasis): On 17 July 2024 the following orders (and/or directions) were made: 1. The hearing is adjourned to 30 July 2024 03:15 PM 2. The time to comply with order 3 made 10 July 2024 is extended to 4:00pm on 26 July 2024, the applicant to provide points of claim in accordance with that order which must include the following information: a) Whether the applicant asserts the rectification order, the subject of this dispute, was made under Part 3A or Part 3B of the [HB Act] and the facts relied on to support that contention. b) Whether, by reason of the matters in a), the applicant contends the Tribunal has jurisdiction to deal with the application: (i) as a "building claim" within the meaning of s 48A of the HB Act, as permitted by s 48K of the HB Act as found in Part 3A; or (ii) as an appeal under s 49D of Part 3B of the HB Act; or (iii) any other basis upon which relief is sought. b) [sic] the precise orders sought. 3. On or before 19 July 2024, the first respondent (State of New South Wales) is to advise the Tribunal the proper name of the respondent which, it would appear, should to be [sic] the Commissioner of Fair Trading. 4. The respondents should be in a position at the directions hearing to indicate to the Tribunal their response. As appropriate, the Tribunal will then consider what directions should be made including for the filing of points of defence and/or the separate determination of any jurisdictional matter.
The Appellant filed another Notice of Appeal (Second Appeal) to this Appeal Panel (also under s 80 of the NCAT Act) on 24 July 2024 (2024/000272034). 1. It challenged Orders 1 and 2 made by DP Harrowell on 17 July 2024 (as italicised in para 16 above). 2. The Grounds of Appeal stated (our emphasis): We have lodged an appeal against the previous orders of 10 July 2024 made by Deputy President Harrowell. With that appeal, we had also filed an Application for Stay of the Original Decision pending Appeal. An ex parte stay was not granted by the Appeal Panel, and the Appeal is listed for a Call Over and Hearing on 31 July 2024 at 11:30am, as per the Order of 16 July 2024 made by Principal Member A. D. Suthers. Despite the lodgement of an Appeal, the Directions Hearing of 17 July 2024 continued, presided over by Deputy President Harrowell, in which further orders being appealed in this Notice, were made. We wish to appeal the Orders of 17 July 2024, as it is not appropriate to continue making substantive case management Orders when Appeals are afoot. In addition, with the Directions Hearing of 17 July 2024 being only 7 days after notice was received on 10 July 2024, we were not given an appropriate amount of time to prepare. The Order of 17 July 2024 has the effect of thwarting and circumventing the Appeal and Stay Applications filed by us on 16 July 2024, as well as continuing to be professionally oppressive. 1. It requested the Appeal Panel to make orders that: 1. The Order dated 17 July 2024 be dismissed. 2. The Respondents pay the Appellant the costs of this Appeal and Stay, and of the Appeal and Stay filed on 16 July 2024. 3. The matter be listed for a substantive Hearing. 1. On section 6B of the form, the Appellant again marked "No" to the question "Are you asking for leave?". 2. It was accompanied by a second Application for stay of original decision pending appeal, filed on the same day (Second Stay Application). The Second Stay Application requested that Orders 1 and 2 made by DP Harrowell on 17 July 2024 be stayed.
On 25 July 2024, PM Suthers made the following orders (and/or directions), in respect of the Second Appeal / Second Stay Application: 1. In respect of the decision made on 17 July 2024 in matter number 2024/00135450 [the substantive proceedings] the operation of order 2 is stayed until further order of the Tribunal or finalisation of the appeal, whichever is the earlier in time. The hearing at first instance, scheduled on 30 July 2024, is vacated and the parties are excused. 2. The Appeal is listed for a Call Over and mention of the Application for a Stay on 31 July 2024 at 11:30 AM.
On 31 July 2024, PM Suthers made the following (relevant) orders relating to the First Appeal and the Second Appeal: 3. The Appellant is to lodge with the Appeal Registry and give to the Respondents by 14 August 2024: (a) all its evidence and submissions relied upon in respect of the application for leave to appeal; 4. The Respondents are to lodge with the Appeal Registry and give to each other party by 28 August 2024: (a) all their evidence and submissions in response. 5. The Appeal is listed for HEARING of the application for leave to appeal only, on 30 August 2024 at 10:15 AM in Sydney for a half day. 6. These directions apply [to both Appeals] and the application for leave to appeal in that matter will be heard with this application [i.e. both together] on 30 August 2024. 7. The stay granted in the appeal on 25 July 2024, by order 1, is extended to 5pm on 30 August 2024.

Scope and nature of internal appeals

Section 80(2) of the NCAT Act provides as follows: (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
Section 5(1) of the NCAT Act relevantly provides: 5 Meaning of "decision" (1) In this Act, decision includes any of the following - (a) making, suspending, revoking or refusing to make an order or determination,
An "ancillary decision" is defined in s 4(1) of the NCAT Act as (our emphasis): a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary, or consequential on, a decision determining proceedings, including - (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings.
An "interlocutory decision" is also defined in s 4(1) of the NCAT Act as meaning (our emphasis): a decision made by the Tribunal under legislation concerning any of the following - (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal.
Where the appeal is from a decision made in the Consumer and Commercial Division (other than in respect of interlocutory decisions), there is a further qualification to the possible grant of leave in that the Appeal Panel may go on to consider a grant of leave in the broader sense only if it is first satisfied that the elements of cl 12(1) of Sch 4 to the NCAT Act are made out. Clause 12(1) reads as follows (our emphasis): 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a [Consumer and Commercial 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). Note - Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.
We agree with the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 (Collins) where it said, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: ... [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
The Appeal Panel in Collins continued: 77. As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1. If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2. The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78. If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79. In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55].
Accordingly, to succeed in an appeal to the Appeal Panel, the Appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal.

What is a question of law for the purposes of s 80(2) of the NCAT Act?

Following a body of decisions of the Supreme Court and Court of Appeal, the Appeal Panel has recently confirmed that a question of law in the context of s 80(2)(b) should be interpreted similarly to "a question of law alone" or a "pure question of law." It may be simpler to note that it excludes questions of mixed fact and law and, of course, questions of fact: see for example Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338; Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141; Crystele Designer Homes Pty Ltd v Wood [2023] NSWCATAP 242; Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36, citing, variously, Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223; Orr v Cobar Management Pty Ltd [2020] NSWCCA 220; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40.

Caution regarding interlocutory decisions

As was recently succinctly stated in Albecz v Bloom [2024] NSWCA 166, where leave is sought to appeal from an interlocutory decision, and noting that s 56(1) of the Civil Procedure Act 2005 (NSW) is mirrored in s 36 of the NCAT Act: 7 …Particular caution is appropriate in reviewing interlocutory rulings, such as this, on matters of practice and procedure: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [73] (Ward JA, Emmett and Gleeson JJA agreeing). 8 Unless they are likely to affect the final outcome, for example through failure to join a necessary party, appeals from procedural rulings tend to be disruptive of the orderly disposition of proceedings and not apt "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Civil Procedure Act 2005 (NSW), s 56(1). Interlocutory rulings are frequently made on incomplete evidence and may be revisited if circumstances change. Attempts to pre-empt findings on disputed issues should not be the subject of an interlocutory appeal.

Consideration of these appeals

We have set out the relevant extracts above in some detail relating to the orders previously made in the substantive proceedings by GM Ash (on 1 May 2024) and by DP Harrowell (on 10 and 17 July 2024). This is to show that it is patently clear that the Tribunal has not, in respect of those proceedings: 1. received or considered any evidence or submissions; 2. made any substantive findings of fact; or 3. made any decision on any question of law (including the jurisdictional question, for which it has repeatedly sought submissions from the Appellant).
The order for an "interim stay" by GM Ash on 1 May 2024 has clearly been misunderstood and misconstrued by the Appellant: see the Grounds of Appeal at para 14(2) above. The Appellant appears to believe that order was a final decision regarding a stay of the Rectification Order; or alternatively, that because 28 days had passed since 1 May 2024, the First Respondent was "out of time" to now challenge or reverse it (notwithstanding no evidence had been considered or any question of law resolved). Although not relevant to the submissions before us, this belief is echoed in the Appellant's submissions in support of their Stay Applications (dated 19 July 2024 and filed on 22 July 2024) considered by PM Suthers where they state (at paragraphs 3 and 6): 3. This email [dated 3 July 2024] that was sent [by the First Respondent] to the Registrar, seeks to have the decision of General Member Ash on 1 May 2024, attached to this document as "Annexure C" , reviewed. This is in breach of Rule 25.4.C of the Civil and Administrative Tribunal Rules 2014 and NCAT Guideline 1 as Mr Coss' email does not follow due process for appeals and nor is it within the prescribed 28-day period. … 6. The Directions Hearing on 17 July 2024, with Deputy President Harrowell presiding, sought to review the issues as raised in Mr Coss' email and sought to put Mr Hanafi for the Applicant on the spot in relation to whether the matter fell under Part 3A or 3B, in effect, cross examining Mr Hanafi. Mr Hanafi naturally resisted such an approach. Mr Hanafi stated that the appeal was on foot and the Directions Hearing should be rightfully adjourned in the interest of efficacy but was denied. Deputy President Harrowell decided to press on and adjourned the Directions Hearing with case management dates that fall immediately before the first Appeal listing… 7. The effect (if not the intention, we do not know the intention) of the a. Order of 10 July 2024; b. The Directions Hearing of 17 July 2024; and the c. Orders of 17 July 2024 is to circumvent and thwart the Appeal and Stay Applications filed by the Applicant. 8. Without commenting on the intention, as we do not know, and it may have been inadvertent, there has been, on the face of it, an improper use of the Tribunal's powers to seek to defeat the Applicant's Stay Application and Appeal.
But even though some time passed between the 1 May 2024 case management hearing, the substantive matter had been neither heard, or determined: 1. It was stated to be an "interim" stay; 2. The reasons stated by GM Ash clearly evidence that there was no opportunity at that time to give the matter proper consideration, and it was properly a matter to be considered by a Senior Member of the Tribunal. 3. It was specifically noted that further directions hearings would be held to progress the matter for this purpose.
In those circumstances, it is implausible that it could have been considered by the Appellant to be anything other than as described. It was an "interim" (stop gap) order, until the matter was properly considered by the Tribunal and finally determined, having regard to the relevant evidence and the law put before it (which, at that stage, had clearly not occurred).
As noted above, s 80(2) of the NCAT Act provides that a party may appeal from an ancillary decision as of right on any question of law, or with leave of the Appeal Panel on any other grounds.

No question of law arises

The Appellant submits that there is a question of law that arises from the content of the 3 July 2024 email from Mr Coss, which "seeks to overturn the Order of Member Ash" and the orders made on 10 July 2024 which by DP Harrowell which had "striking similarities" to Mr Coss' email.
The Appellant is misguided. We reject the Appellant's submissions on this point.
It is clear that no question of law has been decided by the Tribunal in respect of the substantive proceedings, by way of orders made or otherwise.

The nature of the "decisions"

In respect of whether there were "decisions", "ancillary decisions" or "interlocutory decisions", the First Respondent pointed to the Appeal Panel's decision in Australian Press Council Inc v Southey [2022] NSWCATAP 127 (Australian Press Council). Although not required to determine the precise point before us, the Appeal Panel's comments at [32]-[33] and [37] ff are instructive: 32. The High Court considered the meaning of the term "decision" in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The ADJR Act defined "the making of a decision" in terms almost identical to those in which the term "decision" is defined in the NCAT Act. The ADJR Act conferred a right to apply for judicial review of a decision of an administrative character made under an enactment. 33. Mason CJ considered that the definition of "the making of a decision" did "not elucidate significantly" the meaning of "decision" in the ADJR Act (at 335). His Honour observed (at 337) that a "conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment." His Honour concluded (at 338) that the term "decision" in the ADJR Act referred to an ultimate or operative determination. … 37. The NCAT Act contemplates that a party may appeal to the Appeal Panel, with leave, from an interlocutory decision of the Tribunal (s 80(2)(a)). To this extent, the NCAT Act is different from the legislation considered in Bond's case and in Daley v Hughes. "Interlocutory decision" is defined as follows in s 4(1) of the NCAT Act: [set out above in these Reasons] 38. Each of these decisions, with the possible exception of the last category, involves the Tribunal making an order or direction under a statutory power. For example, the power to direct that a summons be issued is conferred on the Tribunal by s 48(1) of the NCAT Act. The power to make rulings on the admission of evidence is part of the Tribunal's power to determine its own procedure (NCAT Act, s 38(1)). None of these decisions are properly described as steps in the reasoning of the Tribunal. 39. The only paragraph in the definition of "interlocutory decision" which could possibly apply to the finding that the Australian Press Council is not a "voluntary association" is the last one: "a decision made by the Tribunal under legislation concerning… any other interlocutory issue before the Tribunal". The term "interlocutory" is not defined. It is relevantly defined in the Macquarie Dictionary as follows: "Law temporary or provisional, pending final judgement or determination; interim: interlocutory injunction." The question of whether the Australian Press Council is a "voluntary association" was determined at the end of the proceedings as part of the final determination of the proceedings. It was not an issue determined pending the final determination; it was an issue which was determined as part of that determination. In our view, it is not properly described as an "interlocutory issue." 40. Paragraph (i) of the definition of "interlocutory decision" refers to "any other interlocutory issue before the Tribunal," thus implicitly indicating that paragraphs (a) to (h) of the definition all identify interlocutory issues. Having regard to the types of decision identified in those paragraphs, we do not consider that the legislature intended that a finding as to a question of law made in the reasons for decision given in a final determination is an "interlocutory decision." 41. If requested to provide reasons for a "decision," the Tribunal is required to provide a written statement of reasons setting out findings on material questions of fact, the Tribunal's understanding of the applicable law and its reasoning processes (NCAT Act, s 62(3)). There is nothing in the language of s 62 to suggest that setting out the applicable law or reasoning processes in the Tribunal's written reasons is itself the making of a "decision." 42. The NCAT Act also permits appeals from ancillary decisions "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds" (s 80(2)(b)). An "ancillary decision" is: A decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including - (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. 43. The finding that the Australian Press Council is not a voluntary association was not an ancillary decision, because it was not preliminary to or consequential on the decision determining proceedings. It was, at most, part of the reasoning in respect of the final decision. As it was a finding made in the alternative, it may not even be properly characterised as part of the reasoning in support of the final decision. 44. On balance, we consider that the Tribunal's conclusion that the Australian Press Council is not a voluntary association is a legal finding on the way to the making of a decision, or a step in the Tribunal's reasoning, which is not a "decision" within the NCAT Act (applying the reasoning in Bond). Accordingly, it is not an "internally appealable decision" and the appeal is incompetent.
Having regard to the comments above, we agree with the submissions of the First Respondent, and of the Second and Third Respondent, that there were no "ancillary decisions", as submitted by the Appellant: 1. All of the orders are case management orders directed towards the preparation of the proceedings for hearing and they are properly categorised as interlocutory decisions. 2. The Appellant at para [15] of its submissions has failed to include the underlined words in the definition of "ancillary order" in s 4 of the NCAT Act: a decision (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including a decision concerning whether the Tribunal has jurisdiction to deal with a matter
The Appellant's argument that the orders were not interlocutory orders "as they do not resemble any of the examples given in Section 4(1) [of the NCAT Act]" is rejected.
The First Respondent also submitted that there was no utility in progressing the appeal in respect of any orders made on 10 July 2024 because they were "overtaken" by the orders of 17 July 2024. And, in addition, any orders made were not "final", noting that matters were still pending final determinations. These submissions were echoed in the written submissions of the Second and Third Respondents at paragraphs 18 and following.
Although there is some doubt as to whether there was a "decision" due to the lack of "finality" of the orders made, their failure to deal with any question of law, their procedural nature or otherwise we have had regard to the wide definitions of both "decision" and "interlocutory decision" in s 4(1) of the NCAT Act and on balance have concluded that the orders comprised "interlocutory decisions" under s 4(1)(l) of the definition.

Should leave be granted?

Being interlocutory decisions, the leave of the Tribunal is therefore required: s 80(2)(a) of the NCAT Act. The provisions of cl 12 of Sch 4 to the NCAT Act relate only to s 80(2)(b), and do not apply.
The submissions made by the Appellants provide no rational basis for the grant of leave, in circumstances where the substantive proceedings remain on foot, no final decisions were made, the utility of the First Appeal is not apparent given the 17 July 2024 orders, and the Appellant has misconceived the nature of the 1 May 2024 orders (and indeed, the appeals themselves - as evidenced by their repeated attempts to present factual matters of no relevance to the Appeal Panel). And as cautioned in the authorities referred to above, an interlocutory decision relating to procedural matters should be regarded with caution in considering any grant of leave to appeal.
We therefore refuse to grant leave to appeal in respect of both of the appeals. The appeals should be dismissed. It follows as a consequence that each of the First Stay Application and the Second Stay Application should also now be refused.
For further completeness, we note the following: 1. Even if we were to find that there was no "decision", and thus no "interlocutory decision", we would seek to dismiss the appeals under s 55(1)(b) of the NCAT Act: see Australian Press Council at [52]; 2. Even if we were to accept that the appeals were against one or more "ancillary decisions" (which we do not), there is nothing in the submissions or evidence presented by the Appellant that reveals any miscarriage of justice (substantial or otherwise) for the purpose of cl 12 of Sch 4 of the NCAT Act, because the substantive matter has been neither considered nor determined against the Appellant. In addition: 1. The Appellant's submissions and allegations about actions of the First Respondent (and indeed about members of this Tribunal) are spurious, without substance and are rejected. 2. Their oral and written submissions were that there was a substantial injustice because they are fighting a case for works that they did not do, relying on the two affidavits of Mr Nav and Mr Hanna and allegations of a "finding by the local [Parramatta] Council that the Appellant did not do the work." Their reliance on these "untested" affidavits, and to other factual matters still to be determined by the Tribunal in the substantive proceedings are, as noted above, of no relevance to the question before us. 3. The Appellant also submitted that there was an injustice because they were "put to task of dealing with procedural matters". By that, we take that to be a reference to the directions of the Tribunal to provide clarity as to the basis of their claims. That does not result in a substantial miscarriage of justice. 4. As noted by the Second and Third Respondents, the Appeal Panel must consider the consequences of the 10 July 2024 and 17 July 2024 orders upon the parties, and in particular upon the Appellant. And there is no basis in any of the Appellant's submissions or evidence for a finding that substantial injustice arises or may arise to them. To the contrary, there is an injustice to the Respondents if these proceedings were to continue.
The Second and Third Respondents are anxious for this matter to proceed to a substantive determination of the dispute. Our decision accords with the guiding principle of the NCAT Act, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Appeal Panel must seek to give effect to this guiding principle when it exercises any of its powers: s 36 of the NCAT Act.
The next steps properly lie with the Tribunal at first instance. That includes the need for the Tribunal hearing the substantive matter to resolve the questions validly put to the Appellant in previous orders made by DP Harrowell.

Costs of the appeal

The First Respondent submitted that costs should be ordered in respect of both Appeals and the Applications for Stays.
In our view, the facts set out above satisfy us that there are special circumstances warranting a departure from the usual presumption in s 60(1) of the NCAT Act that each party pay its own costs of proceedings.
As noted above, the Appeals filed by the Appellant represent a misunderstanding of the orders made by the Tribunal on 1 May 2024, 10 July 2024 and 17 July 2024. No orders or directions made effected any relevant decision that warranted or required consideration by the Appeal Panel. There is no relevant question of law to ground either of the appeals. The Appeal Panel is not a forum for determining questions of fact or law that have not been decided, let alone considered, by the Tribunal at first instance. The evidence filed by the Appellant for this hearing (and the submissions) were also misconceived; as we said to the Appellant during the hearing on many occasions, it is not this Appeal Panel's role on appeal to consider factual matters relating to (and not determined in) the substantive proceedings. For that reason, the Affidavits filed by the Appellant were unnecessary and irrelevant.
The bringing of these appeals (and each of the accompanying stay applications) is fundamentally contrary to the guiding principle noted above. We agree with the First Respondent's submissions that they have unnecessarily delayed and frustrated the efficient progression of this matter before the Tribunal which is required to consider these matters, and has not yet been permitted to do so.

The parties to these Proceedings

As a final matter (noting the comments of DP Harrowell above), we have corrected the name of the First Respondent to "Secretary, Department of Customer Service" in these Reasons for Decision.

Orders

As advised orally at the hearing on 30 August 2024, we make the following orders: (1) Leave to appeal in each of the two appeals is refused. (2) Both appeals are dismissed. (3) Both applications for a stay are refused. (4) The directions hearing listed for 4 September 2024 for case management of the substantive matter is confirmed. (5) The Appellant is to pay the costs of all three Respondents in respect of each of the two appeals.

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: 03 January 2025

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