This is the appeal of Dr Guohua Liang from the decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 14 June 2018 (the Decision).
The Tribunal had dismissed Dr Liang's application.
For the following reasons, we have decided dismiss the appeal. To the extent that the Notice of Appeal raises grounds other than questions of law, leave to appeal is refused, and the appeal otherwise dismissed.
[2]
Background
It is appropriate to set out the background to the appeal.
On 13 February 2018, the appellant filed application GEN 18/07468 in the Consumer and Commercial Division of the Tribunal (the Tribunal). An overview of the appellant's claim, set out in the application, is as follows:
I attended Cisco Instructor CCNA 1 Course Monday 9 February ??? Friday 13 February 2015. I paid for $1300.00. The training has a "major issue" of errors in both written exam and Skill Test (practical exam); and not being of an acceptable quality of training. I found errors in both written exam and practical exam during the training period in 2015. Those errors caused me stressful, and decreased my concentration and performance in other components of assessments. Therefore, I request a full refund.
Moreover, I strongly believed that I have been treated unfairly by both instructors. Firstly, I did complete the Hands on Skills Exam, the Final Exam and the course feedback as required by the Academy, but they have not assigned me a complete in the gradebook view. Secondly, both instructors did not provide me any opportunity to do the second attempt of Final Online Exam at that time, even though I should be provided an opportunity to do it.
Furthermore, on 25 Jan 2018, I only emailed both of them to ask about my certification of course completion for the CCNA 1 Instructor Course, but they have spread those emails to other staff members. They have put me in the embarrassing situations and have damaged my reputation, since 28 Jan 2018. In the result, that has caused me stressful and depression, now I have to take medical treatment. Therefore, I request for compensations.
. . .
In my view that the training is faulty with major issues of errors in both practical exam and written exam. I have been treated unfairly by both instructors. Moreover, those errors caused me stressful, and decreased my concentration and performance in other components of assessments. Furthermore, both instructors have spread emails to other staff members, so that I have been put in the embarrassing situations, and my reputation have been damaged by them, since 28 Jan 2018. That has caused me stressful and depression, I have to take medical treatment now. Therefore, I request compensations of $38698.00, and a full refund of $1300.00.
The appellant sought compensation of approximately $40,000, and a refund of fees paid to the respondent in the amount of $1,300. In proceedings relying on Part 6A of the Fair Trading Act 1987 (NSW), Dr Liang claimed that the services provided to her by the respondent University of Technology Sydney (UTS) were unsatisfactory. The services comprised an educational course administered by UTS, by way of its Cisco Networking Academy, which (if passed by the student) would lead to certification as an instructor, capable of teaching a particular course provided by that Academy (or similar academies elsewhere).
Dr Liang said that services provided by UTS were "not of an acceptable quality" because, in short, there were "errors" (allegedly "major" ones) in components of the final assessment for the course (to which errors Dr Liang attributed her failure to pass the course), and that she was treated "unfairly" by the instructors.
Dr Liang also contended that she was discriminated against on grounds of race and age, that she was vilified, and that she was victimised contrary to the Anti- Discrimination Act 1977 (NSW). Further, she said that the second and third respondents had, in effect, defamed her.
The appellant subsequently claimed she was discriminated against on grounds of her race, age and because of her application to the Tribunal.
After two directions hearings, the matter was set down for hearing on 12 June 2018.
One business day before the hearing (Friday, 8 June 2018), Dr Liang served a request to issue a summons. The proposed summons would have sought nine categories of documents concerning certain courses taught at UTS by the second and third respondents - specifically, a course taught in Autumn 2017 (whereas the course Dr Liang undertook was provided in early 2015) - as well as some other general information concerning the second and third respondents (student feedback and the instructors' professional qualifications), and Dr Liang's "handwritten exam paper for both the final written exam and practical exams".
On the morning of the hearing on 12 June 2018, Dr Liang did not mention the application to issue a summons (which was thus not determined), but did seek to tender additional material. The Tribunal rejected the additional material, in short because it was made available too late and could not fairly be answered, and was irrelevant in any event, being largely concerned with the course taught in Autumn 2017.
In written reasons published 14 June 2018, the Tribunal dismissed the application. The Tribunal found that the appellant had failed to establish there was an error in the examination paper. The Tribunal noted that there was no evidence before it, in the form or examination papers or questions, which would demonstrate error on the part of the examiner. Similarly, the Tribunal found that there was no evidence that the course material and presentation was not carried out with due care and skill. The Tribunal rejected the appellant's "similar fact evidence" of other course participants.
The respondents submit, and we accept, that:
the essential reason why Dr Liang failed below was that the Tribunal was not satisfied to the applicable standard that there were any errors in the examination process or that Dr Liang had been treated unfairly in any relevant sense.
Dr Liang never identified the errors in the marking of her examination papers which she had generally asserted. Although the examination questions were before the Tribunal (as an annexure to the affidavit of Mr Colville), Dr Liang did not have copies of her answers to those questions, and did not attempt to say what her answers had been, or how they had been incorrectly marked. The unchallenged evidence from UTS was that the original examination scripts would have been destroyed within six months of the completion of the course, in accordance with UTS policy.
The Tribunal gave reasons why there was no substance in Dr Liang's attempt to rely on complaints made by other students about other courses. The written reasons address the fact that the additional material sought to be tendered on the morning of the hearing was rejected as irrelevant and prejudicial.
Relevantly, the Tribunal stated in its written reasons:
Consideration
The applicant has failed to establish there was an error in the examination paper. There is no evidence tendered before the Tribunal, in the form or examination papers or questions, which would demonstrate error on the part of the examiner.
The applicant bears the onus of proof, in the Tribunal's view her evidence has not established, on the balance of probabilities that the examiner has singled her out or that she was marked differently to other course goers.
Other than the most general of submissions these allegations are not supported by documentary evidence.
The Tribunal was not taken to the applicant's exam papers and I am not satisfied that the applicant has established an error in the examination paper.
Similarly, there is no evidence before me that the course material and presentation is not carried out with due care and skill. The applicant sought to rely on similar fact evidence by tendering a complaint form alleging that others in the course were also dissatisfied. Evidence of complaints by other course participants was presented to the Tribunal on the morning of the hearing. I examined the material. It contained a long list of names without signatures. Even if I was satisfied that other students agreed to be witnesses, there can be no probative value in the fact that other persons have complained about the course material. The documents were not signed by the witnesses concerned and were not presented in the form of affidavits or statutory declarations. The documents presented on the morning of the hearing contained a mere list of complainants, depriving the respondent of any opportunity to test the allegations in cross-examination, or to properly respond to them. Under all of the circumstances I formed the view that the evidence was not relevant or prejudicial rather than probative. The evidence was excluded.
I have had regard to the affidavit filed by the respondent. Mr Colville describes the structure of several assessment tasks, and the criteria which had to be met in cases where the applicant was granted a re-sit, due to poor performance in the first examination. In particular, his evidence demonstrates that a particular pass mark must be achieved with respect of each of several assessment tasks. I have had regard to paragraphs 23 and following.
Mr Colville states that the final exam by the applicant was marked at 60.7% for that online examination which was below Cisco's required pass mark of 80%. The applicant states that the 80% pass mark was a fabrication, however, at annexure 15 the deponent attaches a letter to another course participant, who also sat for the second exam after failing the first. Mr Colville states that this participant scored 93.7% and it is noted "Total 99% reduced to 80% for the grade book." I am satisfied on the sworn evidence of Mr Coleville that the 80% pass mark requirement was not a fabrication but applied to those who had to sit the examination for a second time. There is clear contemporaneous evidence that other students were subjected to the rigorous second testing regime. I am further satisfied that the applicant did not achieve this mark.
. . .
I accept and prefer the evidence of Mr Colville. The considered affidavit sets out how the course was administered and how the marks were awarded. The applicant has not provided evidence that the respondent has not administered the course with due care and skill, rather it appears that three years after the event, the applicant became dissatisfied with the outcome, and feels she was unjustly singled out and discriminated against. I am not satisfied that the applicant has discharged her onus of proof. In all of the circumstances her claim for damages for breaches of the Australian Consumer Law is dismissed.
[3]
Preliminary issues
At the commencement of the appeal hearing the appellant made the following preliminary applications namely:
that the appeal be transferred to the Supreme Court of NSW;
that questions of law be referred to the Supreme Court of NSW;
that summons be issued; and
that the appeal be adjourned.
[4]
Application for transfer
The appellant asked that the appeal be transferred to the Supreme Court of NSW. She based her request on cll 5(7) and 6 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act).
Clause 5(7) provides:
Effect of pending court proceedings on Tribunal
If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.
A transfer on the basis of cl 5(7) is misconceived, as the application is premised on an application being made to the Tribunal for the exercise of a Division function. Division function is defined in cl 1 as "a function of the Tribunal allocated to the Division by this Schedule (that is Sch 4)". This appeal is not the exercise of a Division function in that sense, or indeed any, sense. This is an appeal against an internally appealable decision which may be made to an Appeal Panel by a party to the proceedings in which the decision is made. The application based on this clause must be refused.
Clause 6 relevantly provides:
6 Transfer of proceedings to courts or to other tribunals
(1) If the parties in any proceedings for the exercise of a Division function so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are:
(a) to be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and
(b) to continue before that court as if the proceedings had been instituted there.
Again, this clause is applicable when the Tribunal is exercising a Division function. The application for transfer on the basis of cl 6 is also misconceived, and must be dismissed.
[5]
References of questions of law to Supreme Court
The appellant also relied on s 54 of the Act. That section relevantly provides:
54 References of questions of law to Supreme Court
(1) The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court.
(2) The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred.
(3) The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section, but may decline to exercise that jurisdiction if it considers it appropriate to do so.
The appellant has not identified any questions of law arising in the appeal to be transferred to the Supreme Court. We decline to do so ourselves, if for no other reason we see none arising which require determination by that Court. That application is also refused.
We turn now to the remaining two preliminary applications. As the outcome of the application to issue summonses could be a factor in any application to adjourn the hearing, it is appropriate to consider that issue first.
[6]
Application to issue summonses
We note that on 6 September 2018 the Tribunal refused an application by the appellant that summonses be issued. Oral reasons were given, and a transcript of those oral reasons later provided to the parties. In summary, the Principal Member refused to grant leave to issue the appeal because:
the documents requested related to the subject matter of the original dispute (and therefore not the appeal);
the matter of the summonses was not dealt with prior to the original hearing;
there was no reason, particularly where the Appeal Panel might not proceed with a new hearing under s 80(3) of the Act, to have the summonses issued for the purposes of the appeal.
On 25 October 2018, the appellant asked again for leave to have the summonses issued. The Appeal Panel made the following relevant directions:
the appellant was to serve a copy of the draft summonses on the respondents;
on or before 5 November 2018 the appellant was to file and serve written submissions as to why the summonses should be issued in the appeal; and
on or before 8 November 2018 the respondents are to file and serve submissions in reply.
The Appeal Panel gave brief reasons. It stated:
The Appeal Panel has received a further request to issue summons from the appellant by email dated 24 October 2018 (copy to be emailed).
An earlier request was refused at a hearing on 6 September 2018. Oral reasons were given, those reasons subsequently being published.
The application now made appears substantially the same as the earlier application. It appears premised on the assumption the appeal is a new hearing permitting parties to adduce whatever evidence they want, irrespective of whether it could reasonably have been produced in the original hearing at first instance. These matters will need to be addressed in any submissions.
The appellant did not file any submissions as directed.
The respondents lodged submissions on 8 November 2018. They say the summonses should not be issued because:
Dr Liang has not shown why the material she seeks could not have been procured by her with reasonable diligence in the proceedings below;
the proposed summonses seeks material which is either patently irrelevant or does not exist.
The respondents note that the appellant seeks to issue six summonses to various current or former employees or officers of UTS, as well as one third party, Cisco Systems Australia Pty Ltd. They submit that the summonses seek some 14 separate categories of documents. They submit, with some justification, that aspects of the proposed summons are drafted like interrogatories, asking questions or requesting action to be taken (such as "verifying" various facts).
The respondents further submit, again with justification, that some of the proposed summonses appear to seek to compel individuals to attend and give evidence and that, other than Mr Colville, those individuals did not give evidence below and the evidence which was before the Tribunal did not refer to them in any other way.
The appellant has suggested that the summonses should be issued for a variety of reasons, including that:
she believes that an email which was in evidence before the Tribunal, namely annexure "JC2" to Mr Colville's affidavit, was "false or misleading" and it is necessary to "verify" it;
she wants to obtain her original hand-written examination scripts from February 2015. Here we note that the evidence before the Tribunal was that these examination scripts would have been destroyed some time later in 2015 in accordance with standard UTS document retention policies;
she believes that her grades at Cisco Networking Academy had been altered dishonestly;
she believes that the "evidence of [the] remarked student's exam paper by committee", apparently referring to students who took part in a different course conducted in 2017, "confirms [that] students were treated unfairly and their exam results were marked unfairly";
she disbelieves that changes to her working hours as a casual academic at UTS were a result of more general budgetary considerations, and maintains the view that those changes amount to some form of victimisation. Here we note that this was not an issue before the Tribunal.
The respondents submit, and we accept, that none of those reasons suffice to explain why it is necessary to seek the production of what would be new evidence on appeal. Clearly some of the material would fall into the "fishing" category which is an impermissible use of subpoenas and summonses.
In summary, we do not propose to allow the summonses to be issued because:
the documents requested relate to the subject matter of the original dispute. The appellant had requested summonses to be issued the day before the hearing. This was refused by the Tribunal. If the appellant now wishes to attack the Decision, which she is entitled to do, she does not need the actual documents to mount an argument that the Tribunal's discretion miscarried;
there is no reason, particularly where the Appeal Panel might not proceed with a new hearing under s 80(3) of the Act to have the summonses issued for the purposes of the appeal.
[7]
Application to adjourn hearing
On 9 November 2018 at 12:23 PM, the appellant wrote to the Registry indicating that a Summons Commencing An Appeal had been filed with the Supreme Court on 8 October 2018 and the both parties were to attend a directions hearing on 6 November 2018. The appellant asked the Registry to "cancel" the appeal hearing of 14 November 2018.
That day, at 3:50 PM the registry received a note from the solicitor for the respondents. The solicitor, Mr Jack Geng, indicated that respondents understood the appellant's request to "cancel the hearing" was a request for an adjournment. Mr Jang stated that the respondents opposed the adjournment as the appellant had not provided any satisfactory reasons for an adjournment.
The appellant responded one minute later, at 3:51 PM. In an email to the Principal Registrar of the Tribunal, the appellant stated that she had confirmed over the telephone that she had requested the Tribunal to cancel the hearing and to transfer all files (being appeal file AP 18/31141 and Divisional file GEN 18/07468) to the Supreme Court "for appeal".
On 9 November 2018, the Registry wrote to Dr Liang. It advised her that the appeal remained listed for hearing, but that she could pursue her application for an adjournment at the hearing.
On 12 November 2018 at 9:10 AM, the appellant sent a further email to the Registry. She urgently requested the Tribunal to make "an order called a 'stay proceedings' in regards to" the appeal under s 43(3) of the Act. She stated that her Summons Commencing An Appeal was being decided by the Supreme Court, and asked this hearing today be adjourned to a date after the conclusion of her appeal to the Supreme Court. Again, Dr Liang asked that the files be transferred to the Supreme Court. She stated that the appeal to the Supreme Court is to:
"appeal all decisions related to File no GEN 18/07468 & AP 18/31141 from the whole of the decision on the grounds of an error of law, the question of law, a denial of procedural fairness, lack of jurisdiction and/or other irregularities. The appeal/hearing at NCAT would be useless or ineffective, because the decisions of the internal appeal panel … are not appealable at NCAT under section 7(f) NCAT Guideline. . ."
That appears to be a reference to the NCAT "Internal Appeals" Guideline. Clause 7(f) simply states that decisions of the internal Appeal Panel are not internally appealable.
The appellant also stated that the appeal fell outside the Tribunal's jurisdiction, and that the appeal would be useless or ineffective, because the Tribunal does not have jurisdiction in malicious prosecution, or defamation, discrimination claims, personal injury claims, such as mental health claims and to impose a civil and/or criminal penalty on those people who breach the Crimes Act 1900 (NSW).
Finally, we note that on 8 October 2018, the appellant filed a summons seeking an appeal and summons seeking leave to appeal in the Supreme Court of NSW. That summons was first returnable on 6 November 2018. We were told that on that occasion the Supreme Court adjourned the matter for further directions.
It is against that background that the appellant now seeks an adjournment of the appeal hearing.
As indicated, we refused the application for the adjournment of the hearing. We did so for the following reasons.
First, the appeal was basically ready to proceed. While it is true that the appellant had not filed reply submissions as envisaged in the directions of 6 September, she had filed voluminous submissions totalling 79 pages, including attachments. And the respondents have filed their submissions and Reply. In other words, by and large, the appeal had progressed in a regular fashion and was ready for hearing.
Secondly, the application was opposed by the respondents, who were ready to proceed.
Thirdly, the basis of the adjournment was that the appellant had commenced another appeal in the Supreme Court. Even assuming that that court has jurisdiction to hear an appeal from the Tribunal's decision, a proposition which must be doubted, it was simply not appropriate to commence this appeal here, and then ask for it to be adjourned for some indefinite period. The indefinite period for which the adjournment is sought militated against the grant of an adjournment.
We turn now to the substance of the appeal.
[8]
Nature of the appeal - first appeal
Section 80 of the NCAT Act provides that an appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Relevantly, an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to the following as constituting errors of law:
1. whether there has been a failure to provide proper reasons;
2. whether the Tribunal identified the wrong issue or asked the wrong question;
3. whether a wrong principle of law has been applied;
4. whether there was a failure to afford procedural fairness;
5. whether the Tribunal failed to take into account a relevant (mandatory) consideration;
6. whether the Tribunal took into account an irrelevant consideration;
7. whether there was no evidence to support a finding of fact;
8. whether the decision was so unreasonable that no reasonable decision-maker would have made it.
Any other ground of appeal requires leave. Ordinarily it is appropriate to grant leave to appeal only in matters that involve an issue of principle, a question of public importance, an injustice which is reasonably clear or if the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result: see Collins v Urban [2014] NSWCATAP 17 at [84].
We shall consider each of the identified grounds of appeal in turn. As the Appeal Panel noted in Prendergast at [11], it is necessary that a question of law be stated with precision, as an appellant's right to appeal arises from the question of law. However, in circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally: Prendergast at [12]. Therefore, it is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise.
[9]
Grounds of Appeal
The appellant's grounds of appeal appear in a number of places. We shall deal with each in turn, applying the principles set out above.
[10]
Notice of Appeal
The appellant's grounds of appeal first appear in the Notice of Appeal in the following terms. (We have added paragraph breaks to provide clarity, and the square bracketed paragraph numbers as references):
I am writing to make a formal complaint as follows;
[1] (1) the Notice of Order by the Tribunal Member Jeffery Smith on the 29 June 2018 is an unfair Order, because leave was granted for the parties to be represented by an Australian Legal Practitioner without my consent;
[2] (2) significant new evidences had arisen that were not reasonably available and not accepted into the hearing, including: (a) those requested documents in the issue of a Summons were not provided by respondents; I wish to request these documents again, (b) all the submitted 3 articles of evidences were dismissed by the Senior Member, Ms. Thode, despite one of 3 submitted documents of evidences containing a student's signature; and two documents of evidence were requested documents in the issues of a Summons. The absence of these documents provides an unfair detriment to my case. I wish these documents to be considered.
[3] (3) The Notice of Order by Senior Member S, Thode on 14th of June 2018 is an unfair Order, the hearing has not been well fully heard, but she made final order. She said during hearing "We may not be well part heard, because we cannot finish the case today."
[4] (4) The misleading email marked "JC2", Annexure, page 15, Affidavit of Mr. Colville, without proper verification of the received date & timestamp, both missing on the email, thus this submission should be scrutinized and dismissed as 1 had stated in the top paragraph of page 6, in my submission on 12th of June 2018. Yet Senior Member S. Thode both accepted this misleading email and was satisfied by its misleading contents (first & third paragraph, page 4 of the Notice of Order).
[5] (5) Errors in the Order. The evidence of the accepted misleading email marked "JC2" confirms errors in the notice of Order by Ms. Thode;
[6] Therefore, I request that NCAT investigate this case and to also scrutinize Senior Member, Jeffery Smith and S. Thode's own personal affiliation to UTS, the Barrister Alexander Flecknoe-Brown, and/or Barry Neilson's Lawyers (UTS's legal representatives). I also request an Internal Appeals.
We do not consider that any of these matters amount to a ground of appeal. We make the following brief comments.
As to Notice of Appeal [1], there is no substance in the complaint about UTS being granted leave to be legally represented. Leave was sought by letter to the Registrar of the Tribunal dated 22 May 2018, which was copied to Dr Liang. The request was reiterated several times in email correspondence over the following week. The orders granting such leave to both parties were made on 29 May 2018. Both the application and the decision were made with reasonable notice to Dr Liang. No error has been shown in the exercise of the discretion to make those orders. Nor did the fact that UTS was legally represented lead to any unfairness or inequity. The respondents submit, and we accept, the Decision turned on Dr Liang's failure to discharge her onus of proof.
As to Notice of Appeal [2], this is not a proper ground of appeal. It is a submission that, if the summonses sought by the appellant were issued, evidence may be found on which to base a submission that Mr Colville's evidence, including Annexure JC-2, was fabricated.
As to Notice of Appeal [3], the respondents submit, and we accept, that this is based on a misunderstanding of the way the hearing on 12 June 2018 proceeded. The transcript shows that, at an early stage of the hearing, the Tribunal was concerned that the matter might not be able to be completed as scheduled. However, Dr Liang agreed that all she wanted to say was contained in her written submissions. On that basis, the Tribunal member indicated that the hearing was indeed complete, and reserved her decision. Accordingly, it is incorrect to say that the matter was only part-heard.
As to Notice of Appeal [4] and [5], these are simply assertions that Mr Colville's evidence was fabricated.
As to Notice of Appeal [6], a request that the Tribunal investigate the matter and "scrutinize" various members is not a proper ground of appeal.
[11]
The appellant's submissions
Further grounds of appeal are set out in 25 pages of written submissions filed 16 October 2018. Before dealing with the substance of those submissions, we make a number of observations.
First, It is not is not necessary for us to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, and are often unsupported by any evidence at all, and we have not done so: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443; Rajski v Bainton (Court of Appeal, unreported, 6 September 1991). This is particularly so where, as is the case here, the submissions are voluminous, unfocused and diffuse.
Secondly, we are not satisfied that many, if any, of the matters raised were the subject of evidence, submissions and rulings by the Tribunal. If issues were not raised at the hearing before the Tribunal, do not think it appropriate to consider them now. As the plurality of the High Court of Australia noted in Coulton v Holcombe [1986] HCA 33 at [9]:
. . . in a recent decision of six Justices of this Court - University of Wollongong v. Metwally (No. 2) [1985] HCA 28; (1985) 59 ALJR 481, at p 483; [1985] HCA 28; 60 ALR 68, at p 71 - the Court said:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
See too Palm Homes Pty Ltd v Kav's Constructions Pty Ltd [2015] NSWCATAP 113 at [27]; Bartel v Ryan [2018] NSWCATAP 231 at [25]; Langford-Smith v Harris [2017] NSWCATAP 198 at [26].
Thirdly, as the Court of Appeal stated in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2], (adopted in Mifsud v Campbell (1991) 21 NSWLR 725):
There are ample statements of this Court and of the High Court to express the duty upon judicial officers as to the giving of reasons. . . . a judge may, in dealing with large bodies of evidence, be forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression. Judgment writing should not become a process that is oppressive and that produces unnecessary prolixity. Not every piece of evidence must be referred to. That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved.
The grounds of appeal commence at page 11 of the submissions. Thirteen grounds are identified as follows, and we shall deal with each in turn.
First, the "drawing of inferences in the absence of evidence". The appellant submits that:
The application was dismissed due to absence of evidence of plaintiffs hand-written Exam Papers to approve those errors in the instructors' marking solution. It was the question of law, whether the making of finings and the drawing of inferences in the absence of evidence was an error of law?
(emphasis in original)
The point is further developed as follows:
the evidence of plaintiffs hand-written Exam Papers can confirm the errors in Instructors' Marking Solutions for both Written Exam and Hand on Skills Exam, but the evidence in respondents' hands. The application was dismissed because of absence of evidence of plaintiffs hand-written Exam Papers to approve those errors in the instructor's marking solutions. The member has made the findings and drawing of inferences - the application was dismissed in the absence of evidence (the marked plaintiffs hand-written Exam Papers) but the evidence is in the hands of UTS and not in the Consumer (appellant). According to paragraph 2 above, the absence of evidence of plaintiffs hand-written Exam Papers confirms that the error of law in the decision.
The appellant describes this ground as an error of law. We do not agree. It appears to be a submission that the Tribunal erred in dismissing the appellant's application in the absence of her hand-written examination scripts. As the Appeal Panel remarked in Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [18], a court or tribunal is informed and persuaded only by the presentation of evidence. Evidence is material which tends to persuade the court or tribunal of the truth or probability of the facts being alleged. Evidence may be photographic, documentary or testimonial. But it will only succeed in persuading the tribunal if it appears as being truthful, reliable and cogent. In civil cases the standard or proof depends on the balance (or preponderance) of probabilities. This simply means that a party must prove that their case is more likely than not to be true. If the scales tip in favour of the party, however slight, they have proved their case. But if the probabilities are equal, they have failed to prove their case.
The application was dismissed because of the appellant's lack of evidence. This ground of appeal should be dismissed.
The second ground of appeal, also described as a question of law, is that:
The question of law, due to absence of evidence of plaintiffs hand-written exam paper, in a process of construction in order, whether the finding and inferences can be drawn from the scope of teaching services have been provided/taught by Mr. Colville and Mr. Hendriks in 2017, were not provide due care and skills?
As with many years teaching experiences in the repeated subjects, the trend of instructors' quality of teaching service is normally positive increased. Autumn 2017 Subject 32524 LANs & Routing (included CCNA1 and CCNA2) which is strongly related to the course CCNA 1 the plaintiff took in 2015. Both instructors have repeated teaching CCNA 1 and CCNA2 for many years. Those large number students' collective complaints and individual complaints can confirm the performance of instructors teaching quality and their behaviours, misconduct and dishonesty.
it is a Question of Law, to consider in making the decision are determined by a construction of the statute conferring the power... the statute might exhaustively state those matters or merely recite them in an inclusive way. They must be determined by implication from the subject matter scope and purpose of the Act.
It is a question of law, whether the scope and trend of the quality of education services provided/taught by the two instructors were not carried out with due care and skills (Autumn 2017, the Subject 32524 LANs & Routing (including CCNA1 & CCNA2)) can draw an inference for this case (CCNA 1), that the teaching services provided by both instructors were not provided with due care and skills?
(emphasis in original)
At least in part, this ground appears to raise the same issue as was raised in the first ground. To that extent this ground should also be dismissed.
To the extent that other issues are raised, we can identify no error of law. This ground of appeal should be dismissed.
The third ground of appeal is that the Tribunal "wrongly held that it should not apply an intensive or rigorous standard of evaluation". This ground is said to raise two further sub-grounds, namely whether the Tribunal could impose civil and/or criminal penalties and that the Tribunal failed to apply correctly ss 4, 23, 24 and 25 of the Australian Consumer Law (ACL).
This ground of appeal is misconceived. First, the Tribunal did not hold that it should not apply an intensive or rigorous standard of evaluation. The Tribunal found that there was "clear contemporaneous evidence that other students were subjected to [a] rigorous second testing regime". In those circumstances, the Tribunal was satisfied that the appellant did not achieve the necessary 80% pass mark. Secondly, there was no issue as to the imposition of civil or criminal penalties before the Tribunal.
As to a misapplication of provisions of the ACL, this would be a question of law. However, we see no basis for the assertion in the appellant's submissions, which are not developed in any coherent way, or supported by any evidence.
This ground of appeal should be dismissed.
The fourth ground of appeal, "false or misleading statement - 80% pass mark requirement", contains a range of allegations and submissions including but not limited to:
the Tribunal making false and misleading statements;
Mr Colville fabricating evidence;
Mr Colville breaching UTS policy.
We see no basis for the assertions in the appellant's submissions. We were not referred to any evidence to support them. This ground of appeal should be dismissed.
The fifth ground of appeal is described as "false or misleading statement" - one hour time limit for the Practice SBA". The appellant submits, again, that Mr Colville provided false or misleading evidence to the Tribunal, and that these misleading statements damaged her reputation. The appellant asserts that the Tribunal failed to apply the correct law.
We see no basis for the assertions in the appellant's submissions. This ground of appeal should be dismissed.
The sixth ground of appeal is described as "combination of the false, email "JC2" and misleading "SBA". This ground raises a range of concerns, including but not limited to:
Mr Colville's false and misleading evidence;
an assertion that the respondents, and their legal representatives, acted dishonestly, and in breach of various sections of the Crimes Act 1900 (NSW).
We see no basis for the assertions in the appellant's submissions. This ground of appeal should be dismissed. The allegations of criminal conduct by the respondents and their legal representatives are serious, if not scandalous, allegations which should not have been made.
The seventh ground of appeal is described as "False or Misleading Email, JC2". This is a further submission that Mr Colville's evidence was false or misleading. The appellant says that it was irrational for the Tribunal to "take no steps to identify" the "false and misleading" document. This ground is misconceived. It raises no error of law and the ground should be dismissed.
The eighth ground of appeal is described as "knowingly misrepresent term "SBA" to replace "Hands on Skills Exam". The submission in relation to this ground cover over one single spaced page. Overwhelmingly the submission is based on the appellant's belief that annexure JC2 to Mr Colville's affidavit was fabricated. This ground is misconceived. It raises no error of law and the ground should be dismissed.
The ninth ground of appeal is described as "errors in exam papers". Again, the ground is based on an allegation of that Mr Colville provided "false and misleading exam papers", and that he "dishonestly denied" errors. This ground is entirely without substance and should be dismissed.
The tenth ground of appeal is described as "false or misleading documents, exam papers". It is an allegation, again, that Mr Colville "provided fabricated Exam Papers in his Affidavit", including annexures JC4, JC5, JC6 and JC7. This ground too is entirely without substance and should be dismissed.
The eleventh ground of appeal is described as "false or misleading statements by respondents' representative". Over some four pages of dense submissions, the appellant develops arguments that:
the Tribunal failed to identify false or misleading statements made by Mr Flecknoe-Brown;
Mr Flecknoe-Brown provided false and misleading statements without evidence at the hearing;
Mr Colville breached UTS policy;
(again) Mr Colville provided false and misleading evidence to the Tribunal
This ground raises scandalous allegations. It is entirely without substance, not supported by evidence and must be dismissed.
The twelfth ground of appeal is described as "outside of jurisdiction of NCAT". The appellant submits:
NCAT does not have jurisdiction in malicious prosecution, or defamation, discrimination claims, to impose a civil and/or criminal penalty to those people who have breached Crimes Act 1900 and to appeal any decision of an Appeal Panel. Therefore, plaintiff seeks an appeal to be transferred to the Supreme Court.
It appears therefore that this is a submission in support of the appellant's application that the appeal be transferred to the Supreme Court if NSW. To that extent it does not constitute a ground of appeal and must be dismissed.
The thirteenth ground of appeal is described as "denial of procedural fairness and/or other irregularity". The appellant submits that the Tribunal hearing proceeding was not "fully heard", and that the member "failed to give the applicant appropriate opportunities to be heard". This ground is misconceived. The appellant was present at the Tribunal hearing, made some oral submissions and indicated that she wished to rely on her written submissions.
The appellant also submits that significant new evidence has arisen that was not available, or not accepted by the Tribunal. This appellant is here referring to the evidence that might be produced if the summonses referred to above were issued. The aspect of the ground is misconceived. It too must be dismissed.
[12]
Conclusion
In summary, we have dismissed each ground of appeal to the extent that any ground raises an error.
Nor would we grant leave to appeal in respect of any ground. We are not satisfied that the appellant has raised any issue of principle, a question of public importance, an injustice which is reasonably clear or if the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
[13]
Summons Commencing An Appeal / Summons Seeking Leave
At the hearing the appellant also told us that she also wished to rely on the content of the Summons she had filed in the Supreme Court of NSW on 8 October 2018, in particular on the section headed "Details of Appeal" appearing in the appellant's Summons Commencing An Appeal / Summons Seeking Leave to Appeal.
This section is 13 pages in length and to a very large extent simply repeats what is set out in the appellant's submissions of 16 October 2018. In those circumstances, we do not consider it necessary to summarise, review or to otherwise deal with this document. To the extent that they raise any grounds of appeal, we can identify no error of law, and would not grant leave in respect of any other claimed error.
[14]
Conclusion
For the above reasons, we have decided dismiss the appeal. To the extent that the Notice of Appeal raises grounds other than questions of law, leave to appeal is refused, and the appeal otherwise dismissed.
[15]
Costs
The appellant has been unsuccessful. If the respondents seek costs, they should file and serve submissions as to costs within 14 days of the publication of these reasons. The appellant may respond within a further 14 days. We propose to deal with the costs application on the papers and without a hearing. Any party who thinks a different course should be followed should address that issue in their submissions.
[16]
Orders
1. Application to transfer the appeal to Supreme Court of NSW refused.
2. Application to refer questions of law to the Supreme Court of NSW refused.
3. Application for the issue of summonses refused.
4. Application to adjourn the appeal proceedings refused.
5. Appeal dismissed.
6. Leave to appeal refused.
7. The respondent to file and serve submissions as to costs by 17 December 2018
8. The appellant to file and serve submissions in response by 7 January 2019.
[17]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 29 November 2018
Parties
Applicant/Plaintiff:
Liang
Respondent/Defendant:
University of Technology, Sydney
Legislation Cited (5)
Australian Consumer Law Civil and Administrative Tribunal Act 2013(NSW)
The Tribunal accepted Mr Colville's evidence about the way in which the relevant course was conducted and the standards which Dr Liang was required to meet, but failed to meet.
The Tribunal also rejected the claims of discrimination and defamation for want of jurisdiction.
On 13 July 2018, the appellant filed this appeal. She says that the Decision was not fair and equitable, against the weight of the evidence, and that there was significant new evidence now available that was not reasonably available at the time of the Tribunal hearing. In addition, she also submits that various procedural orders made in the Tribunal hearing (such as allowing the parties to be legally represented) were "unfair".
Directions hearings in the appeal were held on 6 September 2018, and the matter listed for hearing on 14 November 2018.
Before considering the substance of the appeal, it is necessary to deal with a number of preliminary issues.