Lake v Ballina Golf and Sports Club Limited & Anor

The appellant's proceedings and the Tribunal's decision

1. The following matters were relevant features of the primary proceedings.
2. The compensation sought by the appellant consisted of the following: 1. The sum of $297.50 against each respondent (separate proceedings for each claim) for one half of the cost of obtaining membership at Mullumbimby Golf Club paid on 29 September 2021. The appellant joined this golf club following the suspension of his membership rights at the first respondent in order to obtain an active golf handicap so as to be able to play amateur competition golf. 2. The sum of $125 against the first respondent in respect of lost prize money. 3. The sum of $50 against the second respondent in respect of the lost benefit of part of the amount the appellant paid in respect of his handicap.
3. Central to the appellant's claims was an allegation that the first respondent had wrongfully caused his handicap to be rendered inactive in circumstances where the handicap was a right granted to him by the second respondent for which he paid a specific fee and that it was only the second respondent which could suspend that right. The appellant alleged that the first respondent had made his handicap inactive by wrongfully using some software made available to clubs with the approval of the second respondent called a GA Tier 3 software package.
4. As far as the second respondent was concerned, the appellant alleged it was liable to him because it had a flaw in its systems which had allowed the first respondent wrongfully to render his handicap inactive.
5. The first respondent's contentions included: 1. Separate to club membership the appellant was entitled to obtain a golf handicap issued under the world handicap system and administered by the second respondent. 2. When applying for a golf handicap each player agrees that the handicap is owned by the second respondent and is only permitted to be used by the player as an extension of their membership privileges. In addition, the players golf club has the express authority to adjust, freeze or suspend a player's handicap. 3. Accordingly, each player's handicap is conditional upon their membership privileges. 4. There was a clause in the first respondent's By-laws (Clause 16.1) which provided that during a suspension from the club and its facilities the member cannot play golf at any club as a member of the first respondent and his handicap at the first respondent is suspended.
6. The appellant took issue with each of these contentions save for the contention in paragraph 12(1).
7. It was uncontroversial that the appellant's golf handicap had been made inactive on some date in late August 2021 following the suspension of his membership rights. How and by whom this had occurred was not established.
8. The Tribunal's reasons for dismissing the claims included the following: 7. The applications were dismissed for the following reasons. a. As to Golf Australia and Golflink, no ASIC search was tendered by the applicant. The notice to that respondent was returned to sender to the registry and the applicant did not provide suitable particulars as to the legal entity of that respondent; b. The applicant did not and could not particularise the provisions of the Australian Consumer Law under which he brought his claims. While the Tribunal may in appropriate circumstances identify relevant provisions, in this case none were apparent; c. No terms and conditions of any agreement or membership entitlements or charter of either respondent were tendered by the applicant; d. The (sic) was no evidence tendered by the applicant of any breach of agreement or duty or charter by either of the respondents that was in any way persuasive. There was no real evidence tendered by the applicant of any weight, at all. e. No viable cause of action was disclosed as accruing to the applicant and being within the scope of the jurisdiction of this Tribunal.

Subsequent proceedings

1. The Tribunal's reasons for decision of 12 September 2023 (from a different Member in proceedings GEN 23/28746) concern a claim against the first respondent for the sum of $645.00. The Tribunal was unclear about this claim and stated that: "It may be it is a refund of most of a $650 membership fee the applicant paid to the respondent on 30 May 2021… It may be it is the cost to join the Mullumbimby Golf Club." The Tribunal went on to say: 2. What is clear is that the application relates to the consequences of the suspension of the applicant's membership and membership privileges of the respondent club…. One of the consequences was that the applicant's handicap became "inactive" which I understand to mean it was not available to him when he played competition golf. To enable the handicap to be reactivated, the applicant joined the Mullumbimby Golf Club. The handicap is administered by Golf Australia. 3. The applicant contends the respondent illegally caused the handicap to be inactivated, and that is the basis of this application. 4. That same contention was the basis for earlier applications in the Tribunal [the Tribunal then identified the applications the subject of this appeal].
2. The Tribunal in proceedings GEN 23/28746 dismissed the application on the basis that it was barred by principles of res judicata or issue estoppel. Alternatively, the Tribunal dismissed the application on the basis that there was insufficient evidence to establish that the first respondent unlawfully caused his handicap to be rendered inactive.

Nature of the appeal

1. Under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..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)
2. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1 issues of principle; 2 questions of public importance or matters of administration or policy which might have general application; or 3 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; 4 a factual error that was unreasonably arrived at and clearly mistaken; or 5 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,

Principles

1. Under r 25 (4) (c) of the Civil and Administrative Rules 2014 (NSW) the time period to file an internal appeal in the circumstances of this matter is 28 days from the date the appellant was "notified" of the decision or given reasons for the decision (whichever is the later). It is uncontroversial that the appellant was notified of the reasons for decision on or shortly after 24 May 2022.
2. The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. In that case the Appeal Panel said that the time limit should generally be strictly enforced but that was not to say that exceptions should not be made where the interests of justice so require (at [21]). The Appeal Panel added (at [22]): The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].]

Reason for delay

1. In the Notice of Appeal, the appellant provided the following reason for the delay in commencing his appeal: 1 In 2023 the Member hearing same claim that was defeated… told applicant that he could appeal. This was the first time applicant was aware of such. 2 The Applicant was recovering from the 2022 floods and only now has house back and liveable and [is] emotionally able to deal with the previous happenings.
2. These are not satisfactory explanations for the delay.
3. Information concerning appeals and as to the time in which to lodge an appeal is readily available to prospective appellants on the Tribunal's website and it was the appellant's responsibility to acquaint himself with these matters. Furthermore, there was no explanation from the appellant about the considerable delay in commencing the appeal even after he had been informed by the Tribunal in 2023 about his ability to appeal.
4. As to the impact of the floods, it is clear that the appellant was able to pursue a fresh claim in 2023. It would seem, therefore, that the only reason for the extensive delay between the time he pursued those fresh proceedings and the time of the appeal was the matter he referred to in the first of his reasons which we have already described as unsatisfactory.

Merits of appeal

1. We now turn to the next relevant question concerning the extension of time application, namely the merits of the appeal.
2. From the material presented by the appellant we consider that the grounds of appeal can be fairly summarised as follows: 1. An allegation of bias (actual or apprehended) on the basis that it appeared that the Tribunal member had prejudged the outcome before hearing from the parties and the Tribunal required the appellant to supply evidence to support statements but did not require this from the respondents (Ground 1). This raises a question of law. 2. The Tribunal failed to address the appellant's claim of fraud and otherwise failed to address the appellant's case or ask itself the right questions (Ground 2). This also raises a question of law. 3. Contentions of procedural unfairness in failing to identify for the appellant available causes of action and failing to receive verbal evidence from the appellant (Ground 3). Potentially, these raise questions of law. 4. An application for leave to appeal on the basis that the decision was not fair and equitable for the same or similar reasons as those set out in (1) to (3) (Ground 4). 5. An application for leave to appeal on the basis that there is significant new evidence not reasonably available at the time of the hearing (Ground 5). 6. An application for leave to appeal on the basis that the decision of the Tribunal was against the weight of evidence (Ground 6).
3. As to Ground 1, the appellant submitted: 2. `The person hearing claim had apparently made up his mind before hearing, as exampled by his question "what part of the consumer law act was the Applicant relying on".
4. Furthermore, the appellant contended that the hearing lasted only 5 minutes with no verbal evidence taken from or offered to the appellant. However, we are unable to make any findings about the length of the hearing or the procedure that was followed because the appellant did not provide any sound recording or transcript of the hearing despite the direction for him to do so (directions on 29 August 2024; see direction 2 (d)).
5. The question from the Tribunal relied upon by the appellant on its own is incapable of establishing pre-judgement by the Tribunal. It was a reasonable question for the Tribunal to have asked.
6. The contention that the appellant was required to provide evidence to support his case whereas the same did not apply respondents, even if this be correct (which was not established) is also not capable of establishing bias in this case. The appellant was required to prove his case and a principal reason why his claims were dismissed was because he failed to show that he had any viable causes of action, including by providing proof of the necessary elements of a cause of action.
7. Accordingly, we consider that Ground 1 of the appeal has no merit.
8. As to Ground 2, the appellant did not demonstrate that he had put a case of fraud to the Tribunal, nor did he identify the elements of such a case as advanced to the Tribunal. In any event, as appears from the written and oral submissions made by the appellant on appeal a case of fraud did not rise above an assertion that this is what occurred. The case of fraud appears to begin with an allegation that the first respondent had caused his handicap to become inactive in circumstances where they had no authority to take this step. On appeal, the appellant went further and appeared to allege that the first respondent had knowingly misled the second respondent with the result that the handicap had become inactive. However, there was an absence of any evidence showing how the inactivity of the handicap had been brought about, a matter which the appellant acknowledged in his Notice of Appeal where he stated (when dealing with the new evidence ground for leave): At the time of the hearing it was not clear how the club made handicap inactive…
9. Further as to Ground 2, there were two documents which the appellant presented to the Tribunal in support of his case. The first was a document sent to him in December 2020 by Mr Robb from Golf NSW consisting of a rule (B) concerning the world handicap system. Amongst other things, this stated that any handicap administered by an affiliated Australian golf club was owned by Golf Australia, that use by a golfer of such a handicap is only permitted under licence granted by Golf Australia to the player as an extension of their golf club's affiliation privileges, or as otherwise permitted by Golf Australia, and that such a licence may be revoked or suspended by Golf Australia in accordance with the provisions of the World Handicap System, and otherwise in circumstances considered by Golf Australia to be exceptional ((B) (ii)). This rule also stated that Golf Australia delegated to its member associations the power to administer on its behalf the handicapping of all players who were members of clubs affiliated with these associations ((B) (i).
10. The second document was an email from Mr Robb sent to the appellant on 14 December 2020 in relation to an earlier concern of the appellant about the freezing of his handicap which was not the subject of these proceedings. In that email, it was stated: Typically a freeze of handicap would only be associated with a breach of the rules of golf significant enough that the club felt that all playing privileges should be removed for a period of time. When we receive requests to freeze handicaps we would require the reasoning behind the request and if it is not related to a serious or repeated breach of the rules we would generally not support the freeze.
11. The appellant contended that his suspension had been for "non-golf" related reasons and this was not disputed by the respondents. Nevertheless, the email from Mr Robb refers to "typically" what occurs and it is a long way from establishing that it would be unlawful for the second respondent to suspend the handicap in other circumstances.
12. We also note that the rule (B) is far from clear as to the scope of the power given to a golf club in respect of the administration of the handicapping system, including concerning temporary inactivity.
13. Neither of these documents was referred to in the Tribunal's reasons for decision.
14. The Tribunal was required to consider and respond to substantial submissions which have been squarely raised and seriously advanced: Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited [2020] NSWCATAP 182 at [170]-[175]. It was required to address a substantial, clearly articulated argument relying upon established facts: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24]; 77 ALJR 1088.It was also required to take account of relevant considerations including critical evidence.
15. However, the problem for the appellant on appeal concerning the merits was twofold. The legal structure surrounding his golf handicap was opaque. Furthermore, he did not demonstrate that he had put to the Tribunal any substantial submission tending to reveal a legal case for compensation (whether under the Australian Consumer Law or in tort or contract) utilising these documents. He never presented any material showing how the inactivity of his handicap had been brought about, that this had occurred unlawfully and by means that involved a contravention of the Australian Consumer Law or a tortious wrong or breach of contract.
16. Accordingly, we consider that Ground 2 lacks merit.
17. As to Ground 3, the appellant criticised the Tribunal because he said it required him to know the law. However, at the least, the appellant needed to acquaint himself with some potential legal basis for recovering compensation before he commenced his proceedings and he then needed to present the Tribunal with evidentiary material which he believed substantiated his case. The appellant did not do this.
18. The appellant also criticised the Tribunal for not allowing verbal evidence from him. However, the appellant did not establish what was said at the hearing by himself and by the Tribunal about this subject and is not possible for us to determine whether what occurred involved any breach of the requirements of procedural fairness.
19. Accordingly, we consider that Ground 3 lacks merit.
20. As to Ground 4, we consider that this ground lacks any merit for the reasons we have already provided in respect of Grounds 1 to 3.
21. As to Ground 5, in the Notice of Appeal the appellant stated: At the time of the hearing it was not clear how club made handicap inactive. Golf Australia refused to answer questions, the club refused to answer, the only ray of hope was Golf NSW who pointed to the Tier 3 software package supplied by Golf Australia to clubs. It wasn't until applicant became the captain of the Mullumbimby Golf Club and had access to Tier 3 software package that evidence became available.
22. Although requested to do so, the appellant did not provide any clear description in his Notice of Appeal as to what was the new evidence he sought to rely upon. The Notice of Appeal required him to attach copies of any documents or statements he sought to rely upon. Attached to the Notice of Appeal were various documents, including, relevantly, a Statutory Declaration by the appellant made on 28 June 2023, a written answer about access to Golf Link, apparently, from "Golf Link/Golf Australia" referring to the Tier 1 and Tier 3 software systems, and a copy of the Constitution of the first respondent.
23. In his Statutory Declaration the appellant stated: … As captain of Mullumbimby Golf Club I interact with Tier 1 and Tier 3 Software Packages on a continual basis, which is supplied by Golf Australia. There is no provision in Tier 1 and Tier 3 Software Package to circumvent or override Golf Australia rights regarding the control of a person/member's handicap. No provisions or agreement can be made regarding their handicap other than contacting Golf Australia. Golf Australia can only make a ruling on the infringement of golf rules, and can only make a ruling making handicap inactive if those rules have been breached. The only action a Golf Club can make is if a member/person does not renew their membership resulting in their handicap becoming inactive.
24. As appears above, prior to commencing his proceedings Golf NSW had provided the appellant with answers to questions and relevant material concerning an earlier concern he had about freezing his handicap. The appellant seems to acknowledge in his Notice of Appeal that Golf NSW had been the "only ray of hope" and it had pointed to the Tier 3 software package. On appeal there was no evidence from the appellant about any attempts to understand and prove the operation of the Tier 3 software package for the purpose of the primary proceedings. Nor was there any evidence about any attempts the appellant made to obtain relevant information from either Golf NSW or Golf Australia about his complaints the subject of these proceedings in advance of the hearing of those proceedings.
25. It was also open to the appellant in the primary proceedings to pursue steps to obtain relevant documents by subpoena. There has been no suggestion that he sought to take such steps.
26. In these circumstances, we do not accept that the appellant has shown that he took reasonable steps to obtain relevant material for the purpose of the primary proceedings. Accordingly, we do not consider that the appellant has established that the new evidence was not reasonably available at the time of the hearing.
27. In addition, the new material which the appellant seeks to rely upon does not provide a basis for concluding that such material may well overcome the deficiencies in establishing recognisable causes of action against one or more of the respondents that we have already referred to. The appellant's Statutory Declaration, relevantly, only provides assertions and the other documentary material does not advance his case. Accordingly, we do not consider that the new evidence is "significant" new evidence.
28. In these circumstances we do not consider that Ground 5 of the appeal has any merit.
29. As to Ground 6, it appears from the Notice of Appeal that the appellant, in reality, seeks to rely upon new allegations that were not put to the Tribunal in the primary proceedings and do not appear to be supported by any evidence presented in those proceedings. In particular, the appellant stated: The Applicant supplied photographic written evidence that…. The club did so [made handicap inactive] by using the Tier 3 software package supplied to club by G. A. for use when a member becomes non-financial. The applicant was still financial for a further 9 months after clubs action. The club committed fraud by their actions.
30. Accordingly, and also for the reasons already given in respect of Ground 2, we do not consider that Ground 6 has any merit.
31. With respect to the grounds of appeal for which leave to appeal is sort, we also do not consider that the appellant has raised any question of principle or any question of public importance or shown that he may have suffered a substantial miscarriage of justice.
32. The appellant submitted that his case set a precedent that affected not only the 1200 members of the first respondent but all golfers in Australia. We do not agree. The appellant's case was dismissed because of matters concerning the manner in which he sought to present his complaints which do not appear to us to be of general application.
33. The respondents did not point to any specific prejudice concerning their defence of the proceedings arising from the delay. However, we do accept the first respondent's submission that it has suffered prejudice at a general level consisting of the inconvenience and some cost from the delay in finalisation of the dispute.

Conclusion

1. For the above reasons concerning the extensive delay in bringing the appeal, the absence of a satisfactory explanation for that delay, the absence of merit in the appeal and the undesirability of such an extensive delay in finalising the dispute, we have decided that the application for an extension of time in which to bring the appeal is refused.
2. It will be apparent from our analysis of the grounds of appeal that had we granted the required extension of time in which to bring the appeal we would have concluded that the application for leave to appeal should be refused and the appeal should be dismissed.

Second respondent's position on the appeal

1. At the hearing of the appeal, Mr Fullagar, solicitor, who appeared for the second respondent informed as that the second respondent had only, recently, become aware of these proceedings and that it was not a proper party to the appeal because there had not yet been any valid determination of any dispute between the appellant and the second respondent.
2. We consider it unnecessary for us to make any determination about these matters in view of the conclusion we have already reached about the application for an extension of time in which to commence the appeal.
3. We should say at this point that we do consider that the Tribunal's reliance upon the absence of an ASIC search concerning the second respondent was open to criticism because it was a step concerning the identification of a party that should have been addressed by the Tribunal before the hearing. However, our refusal of the grant of an extension of time in which to commence the appeal, for the reasons we have given, supplants this issue.

Costs of appeal

1. In the first respondent's written submissions it applied for costs of the appeal under s 60 (2) of the NCAT Act on the basis that special circumstances warranted an order of costs. However, after some discussion at the hearing of the appeal, we were informed by the first respondent's solicitor that the application for costs was no longer pursued.

Orders For these reasons we make the following orders: 1. The application for an extension of time in which to commence the appeal is refused. 2. The appeal is dismissed. 3. Each party is to bear their own costs of 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

Amendments 07 February 2025 - Correction to representation 10 February 2025 - Paragraph 1: second sentence, amended "two" to "to". Paragraph 21: deleted the square bracket before "The Appeal Panel". Paragraph 30" amended "is" to "was" in the second sentence. Paragraph 39: deleted the words "by the Secretary". Paragraph 50: amended "is" to "has" in the second sentence. 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: 10 February 2025