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

Scope and nature of internal appeals

1. 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.
2. 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,
3. 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.
4. 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.
5. 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.
6. 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.
7. 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].
8. 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?

1. 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

1. 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

1. 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).
2. 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.
3. 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.
4. 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).
5. 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

1. 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.
2. The Appellant is misguided. We reject the Appellant's submissions on this point.
3. 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"

1. 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.
2. 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
3. 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.
4. 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.
5. 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?

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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

1. The First Respondent submitted that costs should be ordered in respect of both Appeals and the Applications for Stays.
2. 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.
3. 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.
4. 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

1. 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

1. 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